Legal aid “significantly lowers the incidence of domestic violence.” That’s according to an extensive 2003 study in the US.
Economists Farmer & Tiefenthaler took an unprecedented look at how increasing social service provision affected the frequency of domestic violence during the 1990s. They found that increasing social service programs reduced the likelihood of abuse. However, no measure was more effective than the availability of legal aid, including shelters and emergency helplines.
Because legal services help women with practical matters (such as protective orders, custody, and child support) they appear to actually present women with real, long-term alternatives to their relationships.
Another 2012 study from Alvarez & Marsal found an even more significant result; since intimate partner violence is a pattern of repetitive behaviour, a successful legal intervention avoids 1.76 incidents over the twelve months following the intervention.
Despite the importance of legal help for domestic violence survivors, access still remains an issue. Approximately half of the clients Women’s Aid support are eligible for legal aid and, of those who apply, 75% receive legal aid. This leaves over 60% of women with no access to legally aided representation.
It is important to note that obtaining a domestic violence order is not always effective and can sometimes agitate an already dangerous relationship. But overall, the results are positive.
One study cited by the Institute of Policy Integrity in New York interviewed survivors one month after they obtained a protective order, and again six months afterwards. They found a positive impact on their well-being that increased over time. Respondents reported lower re-abuse rates and 95% said they would seek a protective order again.
However, obtaining an order is often dependent on having access to legal representation. According to another study cited by the Institute, 83% of victims represented by a lawyer were successful in obtaining a protective order, compared to just 32% of victims without a lawyer. If they fail to get an order, they will be stuck in the same situation, with the abusive partner likely to retaliate.
The Expense of Legal Aid
While legal aid is heavily subsidised, it is not free. The minimum contribution required is €130. For victims of domestic violence receiving social welfare payments, this minimum contribution can represent almost 70% of their weekly income, or even exceed their income if they are under the age of 26. There is a waiver system, but the Legal Aid Board grants waivers very rarely.
The Free Legal Advice Centres (FLAC) state in their report ‘Accessing Justice in Hard Times’:
Victims of domestic violence may have avoided, or may be avoiding, the civil legal aid scheme for economic reasons… Organisations working with victims of domestic violence have stated that the increase in legal fees for advice and representation provided by the Legal Aid Board puts legal assistance out of reach for most women availing of their services, in particular for those reliant on state payments.
SAFE Ireland reports an increase in the number of requests to St Vincent de Paul by victims of domestic violence for the funds to make the legal aid contribution. Women’s Aid also have a small fund made up of donations given to very severe cases.
If someone cannot access legal aid they have three choices; represent themselves, get private counsel or not take the case at all.
“We would recommend that someone has legal representation, but we have more women who are choosing to represent themselves because they just cannot afford either the private or the legal aid system,” Sinead Harrison of Women’s Aid says.
It’s always in someone’s best interest to have legal representation in a court case, absolutely, and particularly when it’s domestic violence because they shield you from the abuser as well. What are you going to do, be in the position of having to question the abuser?
However, if someone chooses not to represent themselves, they can quickly get buried in debt. Harrison says:
The fees can run into the thousands. You can be talking for a day in Dolphin House (the family District Court), anywhere from €200-€300 for representation and for a day in Phoenix House, which is the Circuit Court, you could be talking €600-€800 for the day because you need both a solicitor and a barrister as well.
And the difficulty is there can often be multiple hearings. The domestic violence order might be sorted… but there’s all the other aspects, the family situation that the women have to sort out if they’re separating; access, custody, maintenance, all those.
By comparison, abusers are more likely to have control of the family resources, making them more able to obtain counsel that their victims.
There is also a strict means test for civil legal aid. Applicants must not exceed €18,000 in disposable income (minus some expenses) and must not have more than €100,000 in capital, for example, land, cars, and stocks.
In cases where the victim and the abuser jointly own land, this can count against the victim even if they have no access to that land.
The Legal Aid Board does prioritise domestic violence cases. However, the current waiting time for a court case in the family court in Dublin is 20 weeks.
“The 20-week wait is hugely problematic because it just gives the abuser so much time,” Harrison explains.
He knows at this stage that she’s taken action because he’s got his summons through the post, which is what prevents some women taking action because doing that puts themselves hugely at risk. This just gives him four months to prey on her and hope that she won’t go ahead with it then. Yeah, it’s very problematic.
FLAC note: “Long waiting periods can be exploited by abusive partners to drain family assets and to intimidate victims to drop their cases. Delays in accessing state-subsidised legal services can also place those at risk in increased danger of harm.”
And while domestic violence cases are expedited i.e. applications for protective orders, other cases brought by victims of domestic violence, such as divorce and custody hearings, are not. If someone wants to get legal aid for multiple cases, they will have to reapply for it every time and be placed at the bottom of the waiting list.
Abusers often use the legal system to further victimise their partners. Harrison says:
They can use the courts to get at you. They’ll keep bringing you to court to change access and mess around. Non-payment of maintenance is huge, with women having to keep going back to court to try and enforce maintenance payments.
Introducing a fee waiver
Both FLAC and Women’s Aid have called on the Government and the Legal Aid Board to waive the required contribution for victims of domestic violence.
There is precedent for doing so. In 2013 the requirement for parents to pay the contribution was abolished in cases where there is a danger of the State taking their children into care. There are also waivers for any potential victims of human trafficking.
Both organisations believe that abolishing the contribution for those experiencing domestic violence would be an important step for helping them to end the abuse.
“Abolition of fees would ensure that no individual in need of court protection would be refused legal assistance on financial grounds,” they argue.
When asked whether she would consider introducing a waiver for domestic violence victims, Minister for Justice Frances Fitzgerald stated:
I think we need a universal policy… I don’t think you separate out one group of victims. So I think it’s a broader policy issue that needs to be examined… I’m making some decisions in relation to that at present. In terms of access to aid there is obviously a strong Constitutional imperative around it but I think there is a very strong feeling that if people are in a position to contribute that they ought to. But I’m very keen to reduce barriers to access to solicitors.
Contributions made up 3.9% of the Legal Aid Board’s funding in 2014.
Fixing our legal aid system
Other helpful changes include being able to either grant legal aid for multiple cases or make it easier for those who have already been awarded legal aid to reapply.
If the legal system favours the abuser, this can have far-reaching consequences. If the High Court or Supreme Court makes a decision, it is binding on all of the lower courts. This precedent may negatively affect further applicants.
Providing quality legal assistance to victims of domestic violence would have numerous benefits, not just to victims themselves but also to the State.
In 2003, the US Centre for Disease Control (CDC) released a report estimating the costs of domestic violence to the State, including medical care, lost productivity and lost lifetime earnings, and the total came to more than $9bn.
However, even the CDC admit that this vastly underestimates the full costs of intimate partner violence. For example, the study did not take into account the intangible costs such as the pain and suffering of survivors and their families, the costs to the criminal justice system of prosecuting and jailing abusers, or the costs of social services such as women’s shelters or counselling.
They noted that it also didn’t measure the impacts on children, including the fact that children who experience domestic violence are more likely to perpetuate such abuse in the future. Therefore, through legal intervention, the cycle of violence can be stopped for many more people.
This is the second article in a series on legal aid. You can find the first article, about proposals to limit criminal legal aid, here.