Prove It: Victims are Saddled With the Burden of Proof

Prove It. 

I’ve said it once, and I’ll say it again: The presumption of innocence is the bedrock of our legal system. But in civil court, in cases involving domestic abuse, that presumption requires stringent validation. Since most abuse occurs in the home, behind closed doors with no witnesses, advocates have to evaluate each situation. They have to take measures to verify the abuse and testify in court or have formal depositions presented to presiding civil court judges. Proving abuse beyond a reasonable doubt is an unduly onerous burden to place on victims.

In 2019, I was the lucky recipient of a one-year civil restraining order in my home state of Connecticut. I’m lucky because I didn’t have physical evidence. I never recorded his abuse. I never thought to take pictures of the physical destruction he perpetuated on our home. And I never called the police for help until that moment when I was afraid he was going to take my life in front of my children. I’m lucky because in Connecticut there is a firearms restriction. A judge can order the abuser to surrender or transfer all of their firearms or ammunition. I’m lucky because according to the research, “a woman is five times more likely to be murdered when her abuser has access to a gun.” I’m lucky because I am here today writing this article. I’m lucky because my judge found my testimony credible. 

Who Is Innocent Until Proven Guilty? Abuser or Victim?

The presumption of innocence works great in criminal court. A judge and jury are required to look at the accused and remain unconvinced of their culpability. Evidence has to be shown. Witnesses have to testify. And a prosecutor has to prove without a reasonable doubt that the accused has committed the crime. But in civil court, specifically related to domestic abuse, the presumption of innocence is less effective. The case at hand is not the state vs. the accused. It’s the victim vs. the accused. Why is the accused abuser given the presumption of innocence? Why isn’t the victim given the presumption of truth? 

In civil court, a victim of a crime has two choices. Their first choice is to find an attorney and the funds to compensate the attorney. Their second choice, if funding an attorney is not financially feasible, is to represent themselves as a pro-se litigant. A pro-se litigant is an individual who presents their case in front of a judge without an attorney. With attorney’s fees in the range of $250 - $600 an hour, it’s no wonder why some victims may be forced into representing themselves. If the victim is lucky enough to be able to have an attorney, there is still an enormous element of chance when going into civil court. There are plenty of implicit biases to overcome with every human involved in the case (confirmation bias, gender bias, experience bias, similarity bias, etc.) Judges are given complete discretion over the rulings as juries are not usually involved in civil cases. In Connecticut, judges in civil court are given a significant level of judicial discretion. They’re able to choose how to weigh several factors, which laws to apply to each case and which professionals to believe. Domestic abuse training is not required in most courthouses throughout the country. And if your case is complex, a few hours in front of a judge can be inadequate. 

In my case, I again was lucky. I had saved money in a retirement account since I was 19 years old. I had a little bit of wiggle room to protect myself. But as I type that sentence out, it’s also disgusting to know the money I’ve been saving and expecting to grow with compound interest for my future has been decimated to protect myself from a crime committed against me. 

The Burden of Proof Falls on the Domestic Violence Survivor

When it came to getting a temporary restraining order, it was granted within hours. But if I wanted to have the order last for a year, I had to go to court and pay to prove myself worthy of protection. I had to go on the stand in a courtroom for the first time in my life—and tell my story to a judge while the abuser sat in the same room and merely denied the allegations. While he had the benefit of the presumption of innocence, I was saddled with the burden of proof. 

In criminal court, the burden of proof is tackled by many. Police officers, prosecutors, witnesses, detectives and forensic specialists can be called upon to make reports. A prosecutor can build a sound case.  They can swab for DNA and have labs test the samples. They can attest to patterns of behavior by interviewing relevant witnesses. And they can paint a full picture of the crime committed. These individuals are also removed from the case itself. They are not suffering from the trauma of needing to apply for such protection. They are not worrying about their living situation or their financial situation. They are not suffering from a trauma response which can show itself by inability to sleep, emotional dysregulation and panic attacks. 

In civil court, a victim has to gather and compile all the information relevant to their case. Then they show it to their attorney and hope the story is shared in a compelling and competent way. All the while, the victim is also dealing with much in their private life. They are dealing with the emotional, physical and mental ramifications of having been abused. And they are often worried about their future and their present situation. And in my case, being pressured by the opposing counsel and other court employees to voluntarily drop parts of the temporary restraining order. 

Prove It

Our civil court system has many flaws. One of which is presuming the innocence of the accused and not the innocence of the victim. Proving abuse beyond a reasonable doubt is an unduly onerous burden to place on victims. It is imperative that advocates evaluate each situation and are able to define and outline the abuse that occurred. In the current landscape victims are put up against their abusers. They are required to litigate for their rights to life, liberty, and the pursuit of peace and happiness. 

I was able to prove my abuse in my case. I was afforded life. But my liberty and pursuit of peace has been taken away. Why? Because this wasn’t the end of my story. I have children with my abuser.

Family Court and Post-Separation Abuse

I’m forced into continuing a relationship with my abuser until our children are 18 years old. I’m forced into communication as well. I’m forced to see him regularly during custody drop-offs. I’m forced to fully encourage his relationship with our children. And I’m forced into spending incredible amounts of money and time when he takes me to court, for any reason. 

Who forced me into this situation? 

The civil family court system. 

Under court order, I’m obligated, or I’ll face contempt of court charges. Or perhaps even worse, I could face parental alienation charges and lose custody all together. The same court that saved my life also prolongs and perpetuates abuse because children are involved. And while I’m grateful for the initial protection, I look forward to the day that children’s safety is paramount in civil family courtrooms. With the help of resources like DomesticShelters.org, survivors are created everyday. Now it’s time to advocate for change in our legislative and judicial systems to create more protections for the entire family. 

Editor's Note: This article is part of #YourVoice, an ongoing column published on this website by individual contributors in their own personal capacity and that involves the opinions, recollections and/or information provided by such contributors, and which does not necessarily reflect the official policy or position of this website. JoAnna Baanana is a mother, survivor, advocate, writer and marketer. In 2019 she left her abusive husband and began to untangle the threads of her new life as a survivor. While she’s grateful for the lessons she’s learned along the way, she’s ready to make changes to the systems that perpetuate abuse.