May 2016 Bar Bulletin
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May 2016 Bar Bulletin

Domestic Violence Survivors and Abusive Litigation:

The Need for Washington To Restore
Its Recently Invalidated Anti-SLAPP Law

(First of Two Parts)

By Antoinette Bonsignore

 

Domestic violence survivors are often confronted with abusive or retaliatory litigation tactics as a weapon of abuse. Abusive litigation occurs when batterers/abusers use the legal process to harass and intimidate domestic violence survivors in order to control the lives of their victims by financial, emotional and psychological means.1 The calculated nature of abusive litigation is driven by the need to exert and reestablish control and power over a survivor once that survivor chooses to separate physically from the abuser; consequently providing the abuser the means to continue the victimization.2

Ironically, the very legal system that a survivor once believed would provide protection from an abuser essentially becomes another weapon that can cause emotional and financial devastation.3 Divorce and child custody hearings, as well as protection order hearings, are the most common opportunities for the abuser to repeatedly confront and have contact with the survivor. And the very act of separating from the relationship, filing for divorce, child custody or protection orders, or simply calling 911 provides the retaliatory motivation that often drives abusive litigation by batterers.4

Abusers use abusive litigation tactics to reestablish and retain control over their victims’ lives.5 The need to reassert control after the survivor physically separates from the batterer manifests in violence as well as abusive litigation tactics designed to overwhelm the survivor’s life.

This control manifests itself when survivors are repeatedly forced to face the abuser in a courtroom, and suffer punishing financial and emotional consequences. Abusive litigation becomes a form of punishment for leaving the relationship. In fact, the characteristic tactics and justifications that typically surround patterns of physical violence mirror the reasons why abusers engage in abusive litigation — the end result being the psychological and emotional devastation of survivors and therefore continued victimization.6

In some cases. domestic violence survivors may be able to defend against abusive litigation using anti-SLAPP (Strategic Litigation Against Public Participation) laws.7 Anti-SLAPP laws protect individuals from litigation that is intended to deter or dissuade someone from communicating with a government agency, such as the police, or from making public statements regarding public issues. Generally, SLAPP is a lawsuit intended to censor critics and suppress free expression by burdening someone with significant legal costs. Anti-SLAPP laws are designed to remedy the suppression of such free expression.

Washington’s Anti-SLAPP law was first enacted in 1989, making Washington the first state in the nation to do so.8 Since its enactment, the law has provided a tool for domestic violence survivors to defend against some forms of abusive litigation.

For example, domestic violence abusers may sue a former partner who has called the police to report abuse or when that abuser violates a protection order. It is not uncommon for abusers to claim that the survivor falsely reported domestic violence to authorities or to sue the survivor for defamation.

Even though such lawsuits are typically meritless, because truth is an absolute defense to a defamation claim, the mere filing of a lawsuit forces survivors to have to go into court, hire a lawyer (if they can afford one), and to relitigate issues that have already been decided by the courts. These lawsuits affect domestic violence survivors throughout the country, as well as sexual assault survivors, and are intended to punish and silence survivors. In fact, defamation claims have become an all too common weapon of choice used by accused rapists to retaliate against sexual assault survivors.9

Moreover, as one author has noted, defamation claims used against sexual assault survivors:

can have a chilling effect on sexual assault reporting, which is already remarkably low. If an alleged perpetrator files a defamation suit, the alleged victim must go through a civil trial as a defendant — a long and potentially traumatic experience. The chance of a rape allegation being false is also small: Researchers put the number of false rape allegations between 2 and 8 percent, no higher than that of most other crimes.10

In 2010, the Washington Legislature took another step forward to strengthen the state’s anti-SLAPP laws, unanimously passing a bill to establish additional protections against SLAPP lawsuits. However, Washington’s broad and groundbreaking 2010 amendments were found to be unconstitutional by the Washington Supreme Court last year.11

The 2010 statute expanded the scope of the previous version of the anti-SLAPP law by providing, among other reforms, broader protections for the types of public participation covered under the act.12 The previous versions of the law limited the public participation covered by the statute to speech and to “statements made to government officials in the course of government decision making directed towards government officials.”13 The 2010 law broadened the public participation protections and “is aimed at protecting speech made to the general public that relates to a matter of public concern.”14

Seattle attorney Bruce Johnson, a nationally recognized First Amendment and anti-SLAPP law expert, played a key role in developing this legislation. Johnson, a partner at Davis Wright Tremaine, explained, “The 2010 law was designed to enable ordinary citizens to participate in discussions of public matters without fear of expensive and debilitating retaliatory litigation. That risk has returned, unfortunately.”15

According to Johnson, despite the invalidation of the 2010 law, the original anti-SLAPP law enacted in 1989 still provides protection for communications made to government agencies, which includes communications to police, such as 911 calls. However, the 1989 anti-SLAPP law does not contain the same rigorous mechanisms contained in the 2010 law; the 2010 law also significantly provided greater protections for domestic violence survivors combating abusive litigation.


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