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A study from British Columbia researchers sheds new light on how women surviving intimate partner violence are discriminated against in the legal system.

Women who sustain brain injuries from intimate partner violence are at risk of having their diagnosis used against them in court disputes about parenting, according to a new study from researchers with UBC’s Supporting Survivors of Abuse and Brain Injury Through Research project, otherwise known as SOAR.

About one in three women will experience intimate partner violence in their lifetime, according to the World Health Organization. A 2019 study found as many as 92 per cent could suffer a traumatic brain injury resulting from blows to the head or strangulation, which cuts off the supply of oxygen to the brain.

Even when relatively mild, brain injuries can have wide-ranging impacts on a person’s daily life. A brain injury can cause a person to have trouble remembering things and organizing tasks. It can also cause increased irritability or mood swings. Research suggests abuse and brain injury can both increase the likelihood of a depression, anxiety, substance use disorder or post-traumatic stress disorder diagnosis as well.

But systemic discrimination against women in the family law system and gaps recognizing these brain injuries mean a diagnosis introduced to support abuse allegations can be used against women who have survived violence in parenting disputes.

And that could result in the abusive behaviour continuing or the woman losing custody to her alleged abuser, according to SOAR researchers.

“Women are held to a much higher standard when it comes to mental health and substance use and classic ideas of what makes a good parent,” said lead author Quinn Boyle, a PhD candidate at the University of British Columbia with Neuroethics Canada.

“By comparison, men may cite excuses such as having a troubled childhood and tend to garner a lot of sympathy from judges in those situations.”

Scrutinized in women, but dismissed in men

The study, published in the Journal of Law and Biosciences, interviewed 12 family lawyers in B.C. and Ontario to examine how a hypothetical client’s brain injury diagnosis would impact their legal strategies if they represented her or the alleged abuser in a parenting dispute.

They shared that they had seen perceived problematic behaviours like partying or mood swings scrutinized in women and dismissed in men during their years of practice.

But the participants said while a diagnosed brain injury could be used as evidence of abuse, it was a double-edged sword.

No expert could ever say with 100 per cent certainty an injury or behaviour was the result of abuse without other physical evidence, one lawyer also shared.

And as the alleged abuser’s lawyer, the lawyers said they would likely use the records to argue her capacity to parent was diminished.

The lawyers expressed that if they believed the abuse allegations to be true, they would not represent the alleged abuser. But if the client denied them, they have a professional responsibility to zealously advocate for their client’s interests.

“I don’t think that people are inherently going out of their way to discriminate against women,” said co-author Deana Simonetto, an assistant professor of sociology at UBC Okanagan. “But we have a system that over the years has fostered certain types of ideologies around women, and that discriminated against them.”

Parallels can be drawn with how records of mental health disorders have been historically used against women in parenting disputes between parents and with the child welfare system, Boyle and Simonetto said.

Despite confidentiality laws for doctor-patient relationships, it can be violated if a judge deems the information to be important to determining the best interest of the child.

Case law shows that over time, the courts recognized there are effective ways to manage mental health conditions that do not necessarily diminish that person’s ability to parent their child.

Boyle says his research supports concerns that without proper understanding of the impacts of brain injuries and how to manage them in the courts, evidence of brain injuries could be used the same way.

Discrimination and barriers at every legal stage

Indigenous mothers with brain injuries, the lawyers noted, may also have their children apprehended from their custody due to symptoms of a brain injury before they are able to file a parenting dispute.

The BC Court of Appeal recently heard an Indigenous mother’s legal challenge to social workers’ expansive rights to access medical and mental health records of parents they investigate.

“Not only do Indigenous women need to worry about intimate partner violence and brain injuries being weaponized due to sexism, but also that they are disproportionately impacted by the child welfare system due to racism,” said Boyle.

Strides have been made in recognizing and caring for sport-related brain injuries, but their impacts on women surviving abuse has not yet been well-studied or the effects litigated in Canada’s courts.

Judges do not receive mandatory training about brain injuries or their impacts on women who are abused. Such training is also not mandatory for family practice lawyers interviewed in the study.

And medical professionals and shelter workers are often not well-trained to recognize and screen for brain injuries caused by abuse even in routine appointments.

A call for trauma-informed legal and medical teams

The study co-authors recommend trauma-informed legal teams, including mandatory training for judges and lawyers, and expert witnesses allied with legal aid and women’s organizations who can speak to the impact of brain injuries on parenting capacity in court with the legal context in mind.

They also want to see parenting capacity assessments added to screenings for all traumatic brain injuries so there is a paper trail of the doctor’s opinion of the injury’s impact. Women should also be fully informed and consent to the possibility this diagnosis could be shared in court before they are screened and assessed.

“These recommendations are hopefully temporary until there’s some massive systemic change in the legal system,” said Boyle.

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