When Jenny’s divorce was granted five years ago, she thought she was finally free.
But, she told a panel of state lawmakers in January, her ex-husband merely took his abuse tactics outside of the home they used to share, to a new venue: the Vermont state courts.
In the years since their divorce was finalized, Jenny’s ex-husband — who was criminally charged with domestic assault but pleaded down the charge, she said — has pummeled her with “motion after motion” in civil court, according to Jenny’s account to lawmakers. VTDigger is identifying Jenny only by her first name in order to protect her safety.
“The courts that I believed would provide me and our child protection are a weapon that my former spouse uses against me to destroy me psychologically, emotionally and financially,” she said.
It’s a pattern victim advocates call abusive litigation, by which perpetrators of domestic violence draw out court proceedings, often filing petty or unfounded litigation against their current or former partners, to exert control and cause personal damage even long after a relationship has ended.
The Vermont House earlier this month approved H.45, a bill which seeks to curb such abusive litigation from progressing through the state courts. It’s one of numerous bills before the Legislature this year that have shown a spotlight on the many forms of intimate partner violence, both domestic and sexual.
Some, like H.45, take a look at the state’s domestic violence adjudication and intervention processes. Another would broaden the state’s definition of sexual violence.
“Let’s just say it right out: Roughly half of homicides annually in Vermont are related to domestic violence. Half,” Attorney General Charity Clark said at a Statehouse press conference in late January. “And in addition to that, a much larger number, 40,000 people in Vermont, are victims of domestic and sexual violence every year. Forty thousand is a very large number.”
Advocates hope that one bill, H.27, could be a step forward to intervening in abusive relationships before they become physically violent. The bill would expand the legal definition of domestic violence to include a pattern of coercive, controlling behavior, allowing the courts to grant relief from abuse orders before an abuser even begins to inflict physical harm.
Under current law, survivors have to prove that they’ve been physically abused by their partners before they can get such court protections, according to Jessica Barquist, the director of policy and organizing for the Vermont Network Against Domestic & Sexual Violence. That intervention should come sooner, she argued, “because it never starts with physical abuse. There is that pattern of escalating behaviors.”
She offered an example: A stay-at-home mom in the Northeast Kingdom came to the network seeking refuge from her husband, who Barquist said was described as controlling and suspicious of his wife. According to Barquist, he removed the backseats from his wife’s car, rendering her incapable of leaving the house while she was taking care of the kids.
“It wasn’t physical abuse — she couldn’t obtain relief (in court) — but just incredibly controlling and restricting, and really limited her ability to get her already limited supports,” Barquist said.
Coercive and controlling behavior can take other forms, Barquist said, such as making threats against pets or children, threatening to report a partner’s immigration status, and financial abuse. Abusers will often seek to isolate their partner either physically — like the car seat example — or emotionally from friends and family by controlling their partner’s communications, such as their cellphone or email use.
But not even victims’ advocates are unanimous in their view on the subject. At a Wednesday hearing on H.27, Rachel Seelig, a lobbyist for Vermont Legal Aid, said she fears that abusers could weaponize an expanded definition of abuse, gaslighting their victims and lodging their own abuse allegations in court. Legal Aid already sees this occur when legally representing victims, she said.
Barquist pushed back, saying the bill was “designed with these fears in mind,” and that “the need (for H.27) is much outweighed against what we feel like could be the potential for harm with this language.”
In Jenny’s case, even without H.27 in place, her ex-husband was still able to lodge what she said were baseless accusations at her in court. His legal motions ran the gamut: He twice appealed their divorce. He claimed that his Fourth, Fifth and Fourteenth Amendment rights were violated in court. He accused Jenny of malicious prosecution, stalking, kidnapping, assault, fraud, slander, libel — the list went on. He has gone after not only Jenny, but her attorneys, her parents and their daughter’s therapist.
His motions are continually denied, she said, but “it’s not about winning or justice for him,” she said. “It’s about power and control.” On top of the emotional warfare, she said the legal battles have been financially devastating, her legal bills soaring into the tens of thousands of dollars.
To even testify to lawmakers in January was a legal liability for her, Jenny feared. Lawmakers changed the camera angle of the hearing’s livestream so her face wasn’t visible to those outside the room.
“Every moment of my life, I live in fear of what motion will come next. And I hope today, in this moment, you hear this fear,” Jenny told the committee.
Lawmakers’ work this session has also extended into the realm of sexual violence. On Friday, House members voted 121-12 to pass H.40, which would establish penalties for non-consensual tampering with or removal of a condom. Only California has passed a similar piece of legislation.
Rep. Barbara Rachelson, D-Burlington, the primary sponsor of the bill, said her adult daughter came to her with the idea for the bill, which seeks to address so-called stealthing, which is when someone purposefully removes or tampers with a condom during or before sex without alerting their sexual partner.
“I had never heard of stealthing before and wondered if it was relevant to Vermont,” Rachelson said on the House floor on Thursday. “The more I read and the more I talked to students and constituents, it became clear that this was not just a weird thing happening in California.”
There are potential physical ramifications for the act, like the risk of pregnancy or sexually transmitted infections and diseases. But proponents of the bill say that the act also deceives a partner, violating their trust and waging emotional damage.
During one of the committee’s hearings on H.40, Rep. Mari Cordes, D-Lincoln, came to sit at the head of the long table — not in her capacity as a legislator, but as a survivor.
“It happened to me more than 20 years ago,” Cordes told her colleagues on Feb. 2. “I had consensual sex with someone I trusted, a friend, and he stealthed me.”
She had never heard the term at the time, she said. All she knew was that she felt traumatized by the experience. “I couldn’t understand why I felt the way that I did after this happened, because I didn’t know it was sexual assault,” she said.
“My experience at the time was to dissociate,” Cordes continued. “I felt I had no control. I felt very isolated. I felt very small, disempowered. I felt violated. I had trouble with trust after that.”
But she “packed it up” away in her mind, and didn’t tell anyone about the experience until more than 20 years later, when she said she confided in a therapist. It wasn’t until then that it clicked for her: “I had the intellectual understanding that this was sexual assault.”
Like other forms of sexual violence, it can be difficult to gather accurate data on how common stealthing is. One Melbourne study dating back to 2017 found that, of more than 2,000 clinic patients surveyed over the course of three months, nearly 1 in 3 women reported having been stealthed in their lifetimes.
But Rachelson told her colleagues on Thursday that, when conducting her research on the topic and in speaking with college-aged constituents about it, she discovered that the act — in the words of one 2019 Michigan Journal of Gender & Law article she cited — has “grotesque ubiquity.” She described happening upon internet forums and “blogs galore” offering tips on how to effectively stealth. “It’s a thing,” Rachelson said.
Despite its apparent ubiquity, proponents of H.40 say that, just like Cordes for so many years, many victims of stealthing don’t have the words to describe what happened to them, or realize that it’s a form of assault. They say a major benefit of even discussing H.40 in a public forum is to raise awareness of the issue.
After the House panel’s Feb. 2 hearing concluded, one observer in the room approached some of the lawmakers and shared that, upon hearing the testimony, she realized that it happened to her, too.
Not all lawmakers were on board. Of the 12 who voted no on H.40, many attributed their opposition to what they considered the bill’s “inequity” in its narrow scope, focusing only on condom removal. What if someone lied about her use of contraceptives before engaging in sex, they asked. During a House floor debate on Thursday, Rep. Anne Donahue, R-Northfield, equated such a lie to sexual assault.
Before casting his “no” vote on the bill in the House Judiciary Committee on Tuesday, Rep. Tom Burditt, R-West Rutland, said women had more to gain from H.40 than men, and called the bill “the most unequal piece of legislation that’s ever come out of this room, out of this building.” Burditt’s colleague, Rep. William Notte, D-Rutland City, responded with fervor.
“If this bill wasn’t equal, if this bill did somehow favor women, I don’t give a rat’s ass,” Notte said. “Because you want to look at the history of sexual abuse, you want to look at the history of sexual violence, you want to look at how there’s been a double standard between men and women and what happens sexually — either consensually or non-consensually — in this country, it has favored man 99.9% of the time.
“If this bill is focused on women, and if this bill does something more for women than it does for men, good,” he concluded.
H.40 has led lawmakers, advocates, law enforcement and judicial officers to return to an ongoing debate about where domestic and sexual violence cases should be adjudicated. Should stealthing, for example, be prosecuted as a crime? Or should damages be negotiated in civil court? Another bill passed by the House in February, H.41, reckons with those questions by allowing cases of domestic and sexual violence to be referred to community justice centers.
Sarah Robinson, the deputy director of the Vermont Network Against Domestic & Sexual Violence, told VTDigger in February that different survivors often want different outcomes. Some want to see their perpetrators serve time, but for many, she said, what they really need are “practical things that will help make their lives easier, and it’s not necessarily always about incarceration or punishment.” Through civil court, survivors can potentially obtain monetary judgements or court orders, such as stay-away conditions.
There is also the issue of burden of proof. In a criminal case, a prosecutor has to prove that a crime occurred beyond a reasonable doubt, which can be exceedingly difficult in the case of sexual or domestic assault, and the process of obtaining that proof can be intrusive and retraumatizing to a survivor, Robinson and Barquist said.
In her work on sexual violence legislation, Rachelson said that survivors of sexual assault have told her that the criminal prosecution process was, in ways, more intrusive than the assault itself — hence why she ultimately decided to go with civil penalties in H.40, rather than criminal.
But she said that also raises the question: Why are survivors treated this way in the criminal justice system?
“That’s not like a law of nature. How can we change that?” she told VTDigger. “How can we change that so people don’t say, ‘That was worse than being raped?’”