Why Physical Harm Trumps Psychological Harm in Family Law Contexts
Updated: Nov 8, 2022
Criminal law prohibits both threats of physical harm as well as actual physical harm. What flows from this prohibition in family law contexts is the idea that physical harm is worse than psychological harm when it comes to intimate partner violence. Of course, not all intimate partner violence includes physical harm.
The connection between intimate partner violence, be it physical or psychological, and children’s best interest is not intuitive. This is particularly true because in families where intimate partner violence exists, children may not have experienced the abuse directly. It is an error to presume that indirect abuse has no implications for future parenting plans. Without question, the choice by one parent to be abusive in an intimate partner relationship reflects a propensity to be abusive in all relationships, either physically or non-physically, including with their children.
Legal support for the assumption that physical harm is worse than psychological harm shapes expectations about the experience of harm. What we know from research is that regardless of the frequency or severity of the physical harm experienced, female victims of intimate partner abuse report that psychological abuse is by far the greatest source of their distress. This is congruent with the research that suggests psychological abuse is the strongest predictor of post traumatic stress disorder.
What this means is that when a mother is applying for an EPO or writing an affidavit or giving testimony, they may focus on what is most salient to them. They may describe how they experienced name calling, yelling, fear, intimidation, public embarrassment, belittling, unpredictability, blame, dehumanizing, isolation, etc..
“Survivors often frame their courtroom stories in a way that fails to fit the expectations of most judges and even of the law itself: what may feel to victims like the most insidious and intimate brand of abuse can come across to legal gatekeepers as something that really doesn’t count as abuse at all” (Epstein & Goodman, 2018, p. 418).
When a victim’s testimony focuses on psychological vs physical harm, or in situations where physical harm is not present, a mother who describes her experience as she experienced it, in truthful ways, may fail to describe the key features of domestic violence as presumed by the legal system.
In not recognizing the validity of narratives offered by victims of both physical and non-physical domestic violence, the court and other decision makers will continue to see a credibility gap that does not exist. Further, the harm of psychological abuse will continue to be wrongfully minimized and BIC determinations, compromised.
Epstein, Deborah and Goodman, Lisa, Discounting Women: Doubting Domestic Violence Survivors’ Credibility and Dismissing Their Experiences (2019). University of Pennsylvania Law Review, Vol. 167, Issue 2, Pp. 399-461., Georgetown University Law Center Scholarship @ Georgetown Law, 2018, Available at SSRN: https://ssrn.com/abstract=3133066
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