OPPOSE HB 2237 / SB 5205
Dear Concerned Citizens,
My name is Shira Cole. We work with an active dv survivor group of ~30 members, and a larger contact base of ~150 members. Myself and one other survivor were heavily involved participants in this process with stakeholders and larger group meetings throughout 2023 in this process. All of our suggestions were denied or removed from HB 2237, further critique of this process here. Family Violence Appellate Project’s analysis, research and survivor stories located here. Two page attorney analysis summary here. And Bande Lee, who is a forensic psychiatrist and domestic violence expert, urgently requests you to oppose HB 2237 here.
That theres such incredible urgency and funding of removal of dv protections despite its existence for 35 years is highly suspicious.
When I talk to DV survivors about loosing custody, it’s usually the same story. “The judge didn’t believe the domestic violence…,” “the judge wouldn’t hear it…,” “the judge decided my “emotional impairment” was worse…,” “my attorney didn’t give them the evidence I asked him to…” or worse their case has had so many temporary orders and because the issue of domestic violence is deferred until trial, the child is subjected to abusive homes during this whole time with an impossible parenting plan for mom to abide by which is later used to label her with “abusive use of conflict.” I HAVE NEVER HEARD A SURVIVOR PARENT SAY, “I wish the judge had MORE discretion when it came to domestic violence.”
HB 2237 (and the much worse version, SB 5205) takes out all of the protections that survivor rely on to escape the abuse. HB 2237 creates a pathway for the abuser to continue to abuse, control and harassment of the survivor parent by requiring the survivor parent to communicate on a potentially daily basis to get approval from him for all her child-related decisions. HB 2237 makes it easier for an abuser to say “hey my dv in the past but her “emotional impairment” is forever (usually PTSD from my abuse).” Right now we have an epidemic of abusers convincing judges to rebut the DV language in the 191 statute EVEN WHERE THERE EXISTS NO ALLOWANCE TO REBUT THE PRESUMPTION–so HB 2237 will make this significantly more easy for abusers and increase it’s occurrence. The proponents of HB 2237 REJECTED the language that the DV restriction be discretionary only in “extraordinary circumstances,” meaning they want to ignore child abuse/domestic violence EVEN IN ORDINARY CIRCUMSTANCES.
HB 2237 wouldn’t be such a problem if there wasn’t such an imbalance of power and lack of protections in family court.
Lets note the imbalance of power, first the median cost of litigation was determined to be $112,731 and the median income of Mothers was 53% to that of Fathers in 2020 (see ref below). In severe cases fathers have bought multiple experts, including Guardian Ad Litems, to show up to court to convince the court that the domestic violence didn’t happen and mom is crazy. This is compounded by society’s bias against single moms and overrepresentation of women as mentally ill more so than men, we have a recipe for history of domestic violence to be ignored, discounted and even used against the survivor.
Comparing family law to criminal law and there exists substantial lack of protections of survivor parents which are made exponentially worse by HB 2237’s increase of discretion.
In criminal court, it would be deemed a conflict of interest if the prosecutor had even the slightest contact with the accused–in family court an abuser has not just a lengthy relationship and huge incentive for revenge, but financially benefits from abusively litigating against the survivor as he could win custody and have her pay him–this has the effect of giving an abuser prosecutorial like powers to lie, aggressively litigate and drag the survivor to court for 18 years.
In criminal court, an accused is provided an attorney and appeal at no cost–survivor parents who can pay go bankrupt, those who can’t pay lose custody, and many both go bankrupt and lose custody. The added discretion from HB 2237 wipes out any remaining chance for an appeal.
In criminal court, a person is found guilty based on whether they committed a precise act as outlined in a preexisting law–in family court any behavior has the potential to be labeled with “abusive use of conflict” this goes against two very important constitutional protections: 1) Vague laws create arbitrary enforcement, 2) the vagueness of “abusive use of conflict” is so bad, it operates like an ex post facto law by penalizing a parent retroactively. While criminal courts recognize this harm, why hasn’t family law caught up to this yet? In State v. Hull 1976, “A fundamental concept of due process is that citizens are entitled to fair warning that particular conduct is proscribed before they can be held criminally liable for engaging in it. United States v. Harriss, 347 U.S. 612, 98 L. Ed. 989, 74 S. Ct. 808 (1954). THIS PRINCIPLE IS THE BASIS FOR THE PROHIBITION OF EX POST FACTO, OVERBROAD AND VAGUE LEGISLATION.”
Removing custody from a dv survivor, especially when that parent was the primary parent, feels WORSE THAN GOING TO PRISON, to the child it FEELS LIFE THREATENING.
Combine all of the following: the vagueness of “abusive use of conflict,” imbalance of power, ability of abuser to litigate like a prosecutor, lack of constitutional protections to survivors we willingly give criminals; and add that to the discretion from HB 2237 and you have a recipe for auctioning off children to the more abusive and wealthier party.
Is a law really even a law if its discretionary? How can we appeal dangerous court orders when judges can do whatever they want? Removing mandatory provisions from 191, is the equivalent in criminal law to REMOVING MINIMUM AND MAXIMUM SENTENCE GUIDELINES AND PLACING PETTY THEFT ON THE SAME LEVEL WITH MURDER, oh but with the rebuttable presumption that murder shall face a stiffer penalty.
We have many contacts who have dv findings against them, and have lost custody as well. But these errors are not due to the LACK of discretion, but the EXISTENCE of the current statutes discretion. These survivors aren’t asking for more discretion, these parents with DV findings want the court to spend more time understanding their case, want the court to have more education on domestic violence, they want the courts to look at the actual violence and they want the coercive control statute refined.
When the Superior Court Judges Association defended SB 5205 last year they highlighted 4 scenarios where they claimed judges needed more discretion. HB 2237 does VASTLY more than what is actually necessary to address those four scenarios with harmful, if not fatal, consequences to survivors and children. A narrowly tailored bill addressing those 4 scenarios has been written for your convenience here with a link to that letter from SCJA.
Finally, you can’t sugarcoat a bill with beautiful language that encourages, but doesn’t require, judges to do the right thing. What makes this bill good for survivors? “But we added “protective actions” language to the 191 statute” Its already in the coercive control statute!
Thank you for reading.
(References re balance of power statistics: https://www.courts.wa.gov/subsite/wsccr/docs/ResidentialTimeSummaryReport2016.pdf : https://iwpr.org/the-wage-gap-for-mothers-by-state/ )