Psychological Subjugation: The Elusive Form of Abuse

That which is demanded of the victim may be explicitly articulated or implied. Where it has been implied, it is nevertheless expected that it will be understood and responded to. When individuals in power communicate by implication, those over whom they have power must comprehend by inference. Imagine living under the rule of a domestic autocrat whose expectations must be met, but are communicated indirectly. Verbal examples include statements that require interpretation. Non-verbal examples include facial expressions, body language, and tone of voice.

Perpetrators of psychological subjugation appear to be motivated by a desire for power and control over the other participant in an intimate relationship. When subjugators are successful, their victims are deprived of the freedom and liberties that the rest of us take for granted. Victims are left without a sense of individual identity, and with nagging doubts regarding their self-worth.

It is not at all uncommon to encounter cases in which abusers engage in efforts aimed at restricting the freedom and autonomy of former partners. Such efforts lend support to the hypothesis that the controlling behaviors from which the partner sought to escape were (and continue to be) motivated by a desire to subjugate.

Imagining the Solutions

In 2003, Joan Meier (founder, Legal Director, and Acting Executive Director of DV LEAP — Domestic Violence Legal Empowerment and Appeals Project) published an article in the American University Journal of Gender, Social Policy, & the Law, titled “Domestic Violence, Child Custody, and Child Protection: Understanding Judicial Resistance and Imagining The Solutions.” In that article, Meier wrote: “I seek to open a dialogue between those like myself who start with an advocate's perspective and those [in] evaluative roles (courts and forensic evaluators) who must start from a 'neutral' perspective. … ”

In her article, Meier opined that “
many judges and evaluators actually exhibit skepticism or disbelief toward abuse allegations, which is somewhat resistant to contrary input.” In an article appearing in the Journal of Child Custody in 2015, Jennifer Hardesty and her colleagues, reported on “The Influence of Divorcing Mothers' Demeanor on Custody Evaluators' Assessment of Their Domestic Violence Allegations.” Hardesty, et al., offering a perspective similar to Meier's, wrote: “In the context of child custody evaluations, researchers have found that court personnel (including but not limited to custody evaluators) have ignored or minimized DV reports, failed or refused to investigate allegations, failed to examine DV documentation, and failed to prioritize child safety in custody decisions.” Hardesty, et al. add: “The precise reasons why custody evaluators minimize or dismiss DV allegations, however, are not known.”

In the 14 years since the publication of Meier's article, progress toward imagining the solutions has been unimpressive. The impediments lie in inadequate research, ineffective communication in legal contexts, and unsuccessful treatment of abusers. Notable for its absence on my short list of obstacles in the path to progress is treatment of victims. I have no basis for presuming that victims are receiving inadequate treatment.

Imagining solutions will require developing more effective means by which to conduct research. In 2003, James Bow and Paul Boxer published an article titled “Assessing Allegations of Domestic Violence in Child Custody Evaluations.” In their article, they provided data gathered through a survey of 115 evaluators whose clinical experience averaged 22.09 years, and whose experience conducting child custody evaluations averaged 13.84 years. “On average, [survey respondents] reported that 37% of their child custody referrals involved allegations of domestic violence.” In 2002, Peter Jaffe and his colleagues wrote: “In a review of parents referred for child custody evaluations by the court, domestic violence was raised in 75% of the cases.”

Professionals involved in family law matters should be concerned by the 38 percentage-point difference between the incidence datum cited by Bow and Boxer and that reported by Jaffe and his colleagues. A discrepancy of this magnitude constitutes evidence of the need for uniform definitions and for reasonably compatible research methods.

An impediment to useful research has been the failure to differentiate among the various forms of abusive behavior. Researchers seeking data on the transmission of infectious diseases in hospital settings would undoubtedly differentiate among diseases transmitted through person to person contact, those susceptible to airborne transmission, those linked to insufficiently sterilized instruments, and those likely to be attributable to carelessness in food preparation. Constructively addressing abusive behavior in its various forms is dependent upon increasing our understanding of the interpersonal dynamics of abusive relationships. Achieving that objective will be compromised by the use of words that do not accurately describe that which they are intended to describe.

A Thorn By Any Other Name

On Jan. 20, 2006, The New York Times published a Clyde Haberman interview of Elie Wiesel, Auschwitz survivor and recipient of the 1986 Nobel Peace Prize for his chronicling of the Holocaust. A key element of the interview was a discussion of what appeared to be an increasing tendency among Jews to employ references to the Holocaust in describing events having a significantly negative impact on Jews. Wiesel stated: “You can imagine what I think about it.” He added: “Anyone who has a public platform should respect language, and that means to respect the truth that language is supposed to carry.”

On July 8, 2017, Clare McGlyn, writing for Vox, a general interest news website, endorsed the assignment of a new term for the abusive actions involved in the release of what has come to be known as “revenge porn.” McGlyn observed that “language matters because it frames our laws and public debates.” Words with agreed-upon meanings should not be used in ways that ignore their denotation.

When it appears that an issue deemed to be of critical importance by some is not being taken seriously by others, those who view the issue as significant must consider the means by which others will be persuaded. The concepts of domestic violence and intimate partner violence have been receiving increased attention; the forms of abuse that I believe are best described by the term psychological subjugation have not. The objective of convincing skeptics that psychological subjugation, by itself, does significant harm will not be more easily achieved by describing such abuse as a form of intimate partner violence.

When litigants have registered allegations of psychological subjugation, the ability of courts to create parenting plans likely to serve the best interests of children will require recognition, by evaluators and judges, of the legitimacy of forms of abuse the consequences of which are not visible.

The Guidelines for Intimate Partner Violence: A Supplement to the AFCC Model Standards of Practice for Child Custody Evaluation “incorporate a broad view of intimate partner violence that includes physically, sexually, economically, psychologically, and coercively controlling aggressive behaviors.” Notwithstanding my strong endorsement of the Guidelines and the Model Standards to which the guidelines are a supplement, I believe that efforts to constructively address abusive behaviors are compromised by the use of words that mischaracterize that which they are intended to describe. We should not jettison descriptive accuracy in our search for words with persuasive power. It is illogical, at best, to believe that increasing public understanding of psychological subjugation can best be accomplished by calling it something that it's not.

Detecting Deception

William Marston, whose systolic blood pressure deception test was rejected in the Frye case, also created Wonder Woman, and equipped her with the Lasso of Truth. Those caught in the lasso were unable to lie. Evaluators engage in perilous self delusion when they believe themselves to be able to detect deception in face-to-face interactions with litigants.

Meier opines that many abusers are able to display a “smooth and charming persona.” Her perspective is shared by many others who have written on the subject. Hardesty and her colleagues have written: “Mother's demeanor (i.e., hostile vs. pleasant) was the most consistent predictor of evaluators' recommendations and judgments of credibility.” Jeffrey Wittmann, a forensic psychologist who is an Editorial Board member and frequent contributor to The Matrimonial Strategist, has called attention to the perception distorting effects of disaffiliation bias.

Litigants' parenting effectiveness should not be judged by their receptivity to having their parenting skills scrutinized by forensic mental health professionals. Failure by a mental health professional to understand why a victim of psychological subjugation might react negatively to the evaluative process suggests a remarkable degree of professional ignorance.

The Evaluative Task

To their current areas of inquiry, evaluators should consider adding inquiries likely to generate evidence of psychological subjugation if, in fact, such subjugation exists in the relationship between two parents embroiled in custody/access litigation.

I offer the following recommendations:

1. Pose questions regarding changes in social activities (particularly those in which one participates unaccompanied by a spouse).
2. Seek information regarding changes in the handling of finances (e.g., cessation of credit card purchases).
3. Discuss any changes in TV viewing habits. Litigants can be asked about the shows that they watched before marriage and the shows that they currently watch.
4. Litigants can then be asked to discuss the reasons for the changes in viewing habits.
5. Litigants can be encouraged to describe changes in any out-of-the-home activities (gym, pool, etc.) —€ particularly those activities that the person being interviewed would ordinarily engage in without his/her spouse.
6. Changes in attendance at events such as reunions should be explored. A person who regularly attended his/her high school and/or college reunion and who stopped doing so after marriage should be encouraged to discuss the reasons.
7. It may be productive to discuss a litigant's email address. If the litigant shares an email address with his/her spouse, how was that decision made? Is it a decision with which the litigant is comfortable? If the litigant has his/her own email address, is the privacy of emails respected?

Leslie Drozd, a prolific writer in the areas of family violence and alienation, and a member of the task force that developed AFCC's Guidelines for Intimate Partner Violence, has developed an extensive set of questions to be used by evaluators in their interviews with custody litigants. Many of Drozd's proposed questions address the issues alluded to above.

Looking Ahead

It is reasonable to anticipate that in the not-too-distant future, there will be sufficient social science research on psychological subjugation to enable attorneys to file Brandeis briefs the contents of which will assist triers of fact.

Important lessons are often learned in unexpected contexts. In 1997, the United States Supreme Court, handing down a decision in a case unrelated in any manner to family law, provided guidance to all researchers who hope that their work will be useful in legal contexts. In General Electric v. Joiner, 522 U.S. 136 (1997), the Court noted (at 137) that “studies cited by respondent's experts were … dissimilar to the facts presented” in the case. The Court pointed out that a trial court “may conclude that there is simply too great an analytical gap between the data and the opinion proffered” 22 U.S. 136, 146.

The essential elements of a Brandeis brief would best be supported in the trial record if testimony bridging the analytic gap between points referenced in the brief and the specific issues in the case before the court were to be offered by an expert rebuttal witness.

When we try to understand events with which we are unfamiliar, the resource that we tap is our collected memories. We conduct a search for similar experiences, similar sensations, and similar emotions. We have experienced physical pain. Having experienced it enables us to imagine what it is like to have pain inflicted by a partner in a relationship that we had expected would be characterized by love. Few individuals in positions of authority (a group that includes evaluators and judges) have experienced the forms of mistreatment that I have referred to here, collectively, as psychological subjugation.

Not having experienced abuse of this type makes understanding it more difficult. That is not surprising. What is remarkable and disturbing is the apparent failure to listen — the communication of disinterest. Even those who have never experienced anything like psychological subjugation have both the cognitive and the emotional ability to understand it. It will require effort. The responsibilities of evaluators and judges include the obligation to expend the requisite effort.

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David A. Martindale, Ph.D., ABPP, a member of this newsletter's Board of Editors, is board certified in forensic psychology by the American Board of Professional Psychology and is the Reporter for the Association of Family and Conciliation Courts' Model Standards of Practice for Child Custody Evaluation. Between 1991 and 2003, he served as President of the Board of the Institute for the Study of Family Violence, in New York. His practice is limited to forensic psychological consulting. Additional information may be found at www.damartindale.com.