Expanding View of Domestic Violence Gives Survivors New Tool, but Unsympathetic Judges Remain an Obstacle

The San Diego County Superior Court judge listened to an impassioned plea from a lawyer seeking a restraining order to protect her client, Kimberly Abutin, who feared for her physical safety.

Kimberly’s husband, Albert Abutin, “had a hair-trigger temper, would slam doors,” and often hurled sexist insults at his wife, the lawyer told the court.

While Albert denied fault in one altercation that left Kimberly with a head injury, attorney DeAnn Salcido instead built her case around a legal concept that was relatively untested at the time called coercive control — a pattern of financial, emotional and psychological manipulation that victim advocates say can be a precursor to domestic violence.

But Judge James A. Mangione was unimpressed. He denied the request to order Albert to stay away from Kimberly. If Kimberly were speaking the truth, Mangione asked, why would she remain for five years in a marriage with an abuser and have a child with him?

“To this court, having a relationship as she’s portrayed it, and yet conceiving a child with him is inconsistent,” Mangione wrote in his Aug. 4, 2021, ruling, agreeing with the argument put forth by Albert’s attorney. “I found her not credible.”

Experts in domestic violence say judicial skepticism of abuse victims, often with misogynistic overtones, has long been widespread in U.S. family court, creating dangerous hurdles to justice. The expanded conception of domestic violence on paper is of limited use if judges continue to cast a skeptical eye on testimony, usually from women, of manipulation within intimate relationships.

Mangione was appointed to the Superior Court of San Diego County by former Gov. Jerry Brown in 2015 at age 61.

If Mangione had ever heard of the then brand-new California law allowing victims to claim coercive control — a broad range of behaviors including humiliation, surveillance, intimidation, gaslighting and isolation that strips an intimate partner of a sense of autonomy and personhood — it seemed lost in the courthouse.

Sandra Ross, a board member of California Protective Parents Association, said that as important as California’s law is, for it to be used effectively, “a lot depends on the personal biases of judges and attorneys.” She maintained that victims are at the mercy of judges’ experiences and prejudices.

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Courtesy San Diego County Superior Court Judge James A. Mangione was appointed to the Superior Court of San Diego by former Gov. Jerry Brown in 2015.

The California Judicial Council, which oversees the state judiciary, said it has “always included content on coercive control as a form of abuse, even before the statute was enacted.” The council said it has included training on the law in at least 10 of its courses, with another three planned for this summer.

Under the 2022 California Rules of Court, every judge who hears family matters “must participate” in a periodic update on domestic violence education. But it doesn’t have to be through the judicial council, but may be through other providers approved by it.

The San Diego County Superior Court’s public affairs office said it could not disclose whether Mangione had received this training prior to hearing the case because the judicial code of ethics would “prevent the judge from speaking about this case.”

When state Sen. Susan Rubio introduced California’s coercive control bill, which was signed into law in September 2020 and took effect the following January, she said victims would be able to use a “pattern of abuse as part of their testimony in court” when seeking custody or a restraining order. For Rubio it was personal —- she survived an abusive relationship. She said the new law would give victims another tool to escape dangerous situations in the home.

But the success of a plea for court protections depends on many factors. Navigating a justice system that tends to favor those who can afford protracted litigation can become a nightmare. Some women obstructed in this pursuit end up feeling let down by the justice system and regretting their decision to come forward.

Mothers and ‘monsters’

Sociologist Evan Stark, who first articulated the concept of coercive control in 2007, said in an interview that behavior of the kind experienced by Kimberly was a manifestation of “gender oppression rooted in patriarchy.” He also emphasized that coercive control is not just what men do to women, but what men prevent women from doing for themselves. And, he noted: “Patterns of behavior and instances of control can add up to abuse.”

In Kimberly’s case, attorney Salcido said that threshold had clearly been met. In her five-year marriage to Albert, a deputy in the San Diego County Sheriff’s Office, the couple constantly argued, according to testimony from Kimberly’s two teenage children from a previous marriage.

“Why should anybody have to live their life that way on eggshells, waiting for his next hair-trigger temper tantrum to happen?” Salcido said in the courtroom.  She pointed out that one of the significant provisions in the law is that it includes behavior that threatens the victim’s peace of mind. She warned that Kimberly would never get the peace of mind she was entitled to if “Mr. Abutin escapes the consequences of his behavior.”

Without a protective court order, Salcido told the court, Albert “will be emboldened to continue to verbally harass her at exchanges, at any school events, to mutter under his breath like he did when he would walk away from fights to the point where their children would hear the mother called the C-word.” Salcido said the restraining order would help to prevent the escalation of Albert’s behavior into something even worse.

But Mangione was having none of it. He also dismissed the claims of Albert’s first wife, Heather who, in testifying on behalf of Kimberly, said he had abused her, too.

“With regard to Heather Abutin, I found her not credible — again, ‘He was living hell,’ that ‘He’s a monster,’ ‘He’s out of his mind,’” Mangione said according to the court transcript,  paraphrasing Heather’s side of the case. “And yet, she had three children with him. And not only had three children with him, but after they broke up, is so frightened and intimidated by Mr. Abutin, she continued to stay in contact with him asking for advice and asking him for money.”

Kimberly said Heather had no stake in the outcome of her case, yet “she felt brave enough to let the judge know it is a cycle.” And Heather volunteered to testify, Kimberly said, because “she wanted to finally tell her story since she never did when she divorced him.”

During the trial, Salcido said Heather had warned Kimberly, an emergency nurse at Kaiser, even before their child was born that she should leave Albert “as his behavior would never change.” Salcido told the judge that Albert made every effort to keep the two women “isolated from each other.”

Albert’s attorney, Ermilla A. Martinez, argued that Heather should not be trusted because in her declaration, she accused Albert of having hit her when they were married, and then asked that that statement be retracted during Kimberly’s hearing.

Martinez argued that Kimberly should not be trusted either. How could she say he had financially controlled her when a year before they separated she had bought herself a $75,000 BMW, Martinez asked.

Martinez questioned why Kimberly married Albert even after noticing his allegedly explosive temper in the two years they dated. “And then she planned and she had a child with this person that had an explosive temper,” Martinez said.

That kind of reasoning has long been discredited by research on why women stay in intimate relationships even if they are abused. In a recent case in Southern California, Los Angeles County Superior Court Judge Michael J. Convey said studies and case law helped him decide in favor of a woman seeking a restraining order against her abuser. “Many studies have shown and cases have addressed situations where parties continue to have, for example, sexual relations after the breakup, or after a restraining order was already in place.”

According to the U.S. Centers for Disease Control and Prevention, most women will, on average, attempt to leave an abusive relationship between five and seven times before successfully and permanently doing so.

Salcido told the court that Albert blew up again in March 2021, after he and Kimberly had signed a “civility agreement” outlining the terms of the divorce that Kimberly had long wanted. Soon after, Kimberly told him he could no longer share their bed, and he should move out.

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Courtesy DeAnn Salcido Attorney DeAnn Salcido represented Kimberly Abutin in her court case accusing her husband of coercive control during their marriage.

“He lost his temper for whatever reason,” Salcido told the court, and he threw a clipboard he was holding at the headboard of the bed where Kimberly was sitting. According to Kimberly’s testimony, the clipboard ricocheted and hit her in the back of the head, causing a concussion.

“She was taken to the hospital that day by her son, and she has been seeing a therapist ever since to deal with the PTSD and the anxiety that it created,” Salcido told the court.

Martinez questioned that claim, saying she has “absolutely no medical records to show that she had an exam that day by a doctor, and that she had a CT scan that day or in the future.”

She argued that Albert lashed out only when Kimberly “threatened,” soon after signing the agreement, to take their son to Menifee, a city one hour away from Chula Vista in San Diego County, where they were living. Kimberly said in an interview that she owned a house there. Martinez said Kimberly’s motive in seeking a restraining order was to get more child support and get Albert to pay her attorney’s fees. The two are also entangled in a custody battle over their 4-year-old child.

Women’s rights advocates would say that the abuse Kimberly said she experienced in her marriage is not uncommon in families of law officials. As the National Center for Women and Policing noted, “Two studies have found thatat least 40 percent of police officer families experience domestic violence, in contrast to 10 percent of families in the general population.”

Anna Lvovsky, an assistant professor at Harvard Law School, where she teaches the history of policing and criminal law, wrote in an article published in the June 2017 issue of the Harvard Law Review about the “judiciary’s undue willingness to accept what the police say as gospel truth.” Kimberly said she often wonders how fair a judgment she received from Mangione.

She decided not to appeal the denial of the restraining order, which she could have done within six months of the ruling, said Julie Saffren, who practiced family law in Santa Clara County for 15 years and is currently an adjunct professor at Santa Clara University School of Law, where she teaches a course on domestic violence. Kimberly said she let the deadline expire because she did not have the money to pursue that option. “I have spent $50,000 on this case so far,” she said.

Just last month, a judge denied her the child support she had sought from Albert, saying she was earning as much as he was.

A pattern of misogyny

A 2019 study by Joan Meier, a law professor and director of the National Family Law Violence Center at George Washington University, shows an apparent “systemic gender bias against women” in U.S. family courts.

Her study found that women often grapple with the high cost of legal help and are penalized by courts that favor fathers. Women risk losing custody if they accuse men of abusive behavior toward their children. Family courts do not provide public defenders because the two parties in the controversy are individuals on a relatively equal footing, unlike in a criminal court, where it is a state versus the defendant. So women with little financial means are sometimes forced to act as their own attorneys.

“Mothers who allege abuse are losing custody at disturbing rates, and children often face grave consequences when they are forced to return to their allegedly abusive parent,” Meier said. 

What is it going to take before an abused woman can get help? Should somebody get killed before she can get justice?       —Kimberly Abutin

Some advocates for domestic violence victims say the courts have become a venue for more abuse. After hours of preparing for court, survivors are likely to be re-traumatized there, especially if the judge is not sensitive to interpersonal issues and traditional gender dynamics.

Kimberly Abutin would be the first to agree.

“The system is horrible and disgusting and I was mistreated by it,” she said in a recent interview. “What is it going to take before an abused woman can get help? Should somebody get killed before she can get justice?”

Women’s rights advocates underscore Kimberly’s concerns.  According to a 2017 CDC report, the most recent available, more than half of women slain in the U.S. are killed by intimate partners.

“Too many are forced to go through our courts without legal representation and the expert support needed to have a fair chance at justice,” said Dr. Aleese Moore-Orbih, executive director of the California Partnership to End Domestic Violence. “That’s why legal assistance for survivors is a key funding priority for the partnership at both the state and federal levels.”

Mistrust of the system

Feelings of structural disadvantage in the courts can drive victims of abuse away from pursuing their legal rights. Such is the story of one woman living in Southern California, the African American mother of an 8-year-old.

The former actress, currently working as a wine salesperson, spoke about her case on the condition she not be identified by name. Here, we’ll call her Iris.

She said she cycled in and out of Southern California courts, making at least 80 appearances there over seven years, running through a number of attorneys and sometimes even representing herself, all to protect herself and the child from the father who, she alleges, has a documented history of abuse.

The child was born after what she described as a “brief entanglement” that lasted all of 97 days. He represented himself as a pharmaceutical sales representative. He showed up on their first date in a sports car. But “from the first moment there were red flags,” Iris said, adding: “I thought I was to blame.’’ He would keep deriding her passion for acting and gaslighting her. “He would tell me I was too old to pursue a Halle Berry, and kept comparing me to other women in the industry.” He would also “initiate an argument and then record my response.”

Three months into what she described as a coercively controlled relationship, Iris, then 41, found out she was pregnant. “Oh, so now you are carrying my child,” was how her ex reacted, she said. She recalled him also telling her, “It’s an inopportune time to get pregnant,” and encouraging her to terminate the pregnancy.

I didn’t know I was being abused. I had no black eye or broken bones.     —Iris

But Iris decided to continue with the pregnancy, even though she had made up her mind to end the relationship. Throughout her pregnancy, she said, he refused to assist in prenatal care. “He felt that because I was having his child he could control me,” Iris said. Eventually, she gave up acting and started working as a paralegal. By that point, he was regularly parking and loitering outside her job and home, as well as calling her repeatedly, including during working hours.

Initially, “I didn’t know I was being abused,” Iris said. “I had no black eye or broken bones.” She said she just thought he had a personality disorder.

When their child was born, Iris said her ex did not want to sign the birth certificate, but at the same time filed for sole custody when the child was 2 weeks old. The parents have 50-50 custody.

“Abusers will sue for custody because they don’t want to pay child support,” said Lisa Aronson Fontes, author of “Invisible Chains: Overcoming Coercive Control in Your Intimate Relationship.”

According to Iris, “there were no less than 27 hearings related to his requests for a reduction in child support,” and it still has not been resolved. The court calculated in October 2020 that the child’s father owed her more than $79,000 in child support, attorney fees and accrued interest.

Iris claimed he ceaselessly engaged in so-called litigation abuse, where an abusive partner tries to retain power and control over the victim by misusing the court system against the victim, according to the nonprofit WomensLaw.org, a project of the National Network to End Domestic Violence.

Court documents showed her ex filed repeated petitions and motions requesting multiple adjournments or violating the judge’s orders by not paying the right amount in child support.  Or he would take repeated action to force her to come to court. These actions are similar to those described by WomensLaw as litigation abuse.

“The court allowed him to come in and create utter chaos in my life,” she said.

Iris said the protracted legal fights forced her to spend so many hours in court and away from work that it ruined her financially. Fearing that he still might be stalking her, she said she has changed her telephone number five times over the last few years. She said she has been forced to learn how to advocate for herself, something she is planning to do at the next custody payment hearing.

“I have lived my entire life fearing he can harm my child,” Iris said. She said she has been diagnosed with depression and PTSD.

“If you are constantly feeling you are living under siege, it harms your body and mind,” noted Chitra Raghavan, a professor in the psychology department at the John Jay College of Criminal Justice in New York and the director of its forensic mental health counseling program. “It leaves you no longer feeling human.”

Like with many domestic abuse survivors, Iris said she has lost faith in the justice system. Too many judges have discredited her. “The overall issue that faces litigants like myself is patriarchy,” she said. “If you are not male and white, then you are at a severe disadvantage.”

Iris said she did not want to even try seeking legal remedies from California’s coercive control law because one of her former attorneys told her it would be futile. Besides, her experiences have led her to believe that women like her risk facing more trauma in courtrooms.  “Our legal system has become a springboard for abuse,” Iris said, noting that she is on her “third trial judge and technically, third trial.”

Asked about Iris’ comments, Pallavi Dhawan, director of Domestic Violence Policy for the Los Angeles City Attorney’s Office, who helped craft the coercive control law, said they echoed “the documented trend in family courts where judges will sometimes interpret allegations of domestic violence in a manner unfavorable to the alleged victim.” But she noted that each survivor would have her own experience.

The bigger picture is that without a culture of understanding within the courts, systemic bias will continue, regardless of the laws on the books, said Moore-Orbih, the domestic violence activist.

“Gender and racial bias,” she said, “are significant barriers to ensure that survivors are believed and therefore treated fairly.”

This article is part of a series on California’s coercive control law, underwritten by a Domestic Violence Impact Reporting Fund grant from the Annenberg Center for Health Journalism at the University of Southern California.

[This article was originally published by San Francisco Public Press.]

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