One in three women will experience intimate partner violence (IPV) in their lifetime. Up to 92% of these women will also suffer a brain injury (BI) at the hands of a partner (1,2). To put this in a Canadian perspective, for every 1 NHL player that suffers a concussion, 5,500 Canadian women suffer the same injury due to IPV. It is with these statistics in mind that research teams such as the SOAR project (Supporting Survivors of Abuse and Brain Injury through Research) have been assembled to better understand, characterize, and manage the urgent crisis that is intimate partner violence-related brain injury (IPV-BI).
A major pillar of scientific and clinical interest in IPV-BI research is designing and implementing BI screening tools specific to IPV. Although research teams approach this topic with the intent of better understanding IPV-BI, improving BI diagnostic science, and designing intervention strategies tailored to IPV-BI, careful consideration must be taken to ensure that providing BI screening information will not harm patients in other areas of their lives. To justify any health screening, two criterion must be met: 1) the presence of sufficient risk of a positive result (in other words, the likelihood of a positive result must be deemed significant); and 2) the availability of an evidence-based validated treatment or intervention in the event of a positive result (3–5). Despite these concerns, when limiting perspective to a healthcare silo, the benefits of screening for IPV-BI seem to outweigh the concerns. However, the impacts of screening for IPV-BI outside of the healthcare context must also be considered. Through applying an intersectional lens, which considers the intersection of social categories such as race, gender, class, and other characteristics of marginalization, we recognize the wide-ranging experiences of survivors of IPV and acknowledge we have a responsibility to ensure BI information in other contexts does no harm. Specific to women who have experienced IPV-BI, the legal implications of BI screening information are of particular concern.
My master’s thesis examined the ethico-legal considerations of screening for BI in women who have experienced IPV. The concerns surrounding screening for IPV-BI arise from a history of mental health information, such as depression, anxiety, or post-traumatic stress disorder (PTSD) being weaponized against women in family law proceedings. Not only does this imply BI will be similarly weaponized, but that disorders often diagnosed alongside BI – depression, anxiety, and PTSD – will almost certainly be used in an attempt to prove a woman is unfit to parent. To examine this issue, lawyers were interviewed to elicit their knowledge of IPV, BI, and IPV-BI, as well as the role each may play in Canadian family courts.
Lawyers provided significant insight into how IPV-BI may impact the outcome of parenting disputes in Canadian family law. The major findings can be separated into three themes: (1) education; (2) capacity; (3) causation.
It was clear through the interviews that there is a limited understanding of both IPV and IPV-BI by the legal profession. Despite all participants reporting they have had cases which involved IPV, most reported no formal education on IPV and its complexities or how it should factor into parenting disputes. It is therefore unsurprising that IPV is often dismissed within family law as irrelevant, and foreshadows lawyers being similarly ill-equipped to support clients who have sustained IPV-BI.
Capacity, here, refers to either a woman’s ability to give and receive legal instructions because of any deficits caused by the BI, or more importantly, the woman’s capacity to parent. Every participant stated that they would expect the opposing lawyer to use IPV-BI as a means to challenge a woman’s ability to parent. Interestingly, participants also said they would do the exact same thing if they were representing the alleged abuser, despite acknowledging how absurd that may sound. This mirrors the historical instances in family law where stigmatized health disorders such as depression were used to minimize a woman’s parenting capacity.
Lastly, lawyers emphasized that it would be difficult to prove that IPV caused the BI if there was no physical evidence. Unfortunately, this is often difficult for women and lawyers to provide in situations involving IPV. In the absence of physical evidence showing IPV or IPV-BI, this becomes a situation of hearsay. In these cases, women are either not believed, their experiences of violence are minimized, or the courts acknowledge that the IPV exists but dismiss it as marital conflict and deem it irrelevant to the parenting dispute. Courts may also rely on a physician’s testimony to discuss the implications of BI on tasks relevant to parenting (such as memory). However, not all physicians are well informed on the complexities of IPV-BI. It is therefore difficult for women and their lawyers to find suitable experts who can speak to both IPV and BI appropriately without causing undue harm to women through the testimony of BI and its effects.
Should we continue to screen?
Ultimately, these themes show that IPV-BI does leave women legally vulnerable due to a lack of legal precedent (it has never been seen before), inadequate education surrounding IPV and IPV-BI for legal professionals, and the difficulty in proving causation. It is important to emphasize that the BI is not the problem. Rather, it is inserting it into a legal system that is ill-equipped to appropriately address IPV-BI and which continues to suffer from the influences of sexism and racism. Although I have highlighted issues with screening for IPV-BI, I am not advocating for the cessation of this important practice; however, screening should implement the following recommendations to ensure equitable and ethical care:
- Expert allyship: Organizations such as SOAR should have physicians in their team who are well versed in IPV-BI and eager to advocate for women in court.
- Trauma-informed legal team: Connecting women to trauma-informed legal professionals ensures women feel supported and both women and their counsel are well-prepared to address IPV and IPV-BI in parenting disputes.
- Assessment of parenting capacity: Incorporate an assessment of the patient’s capacity to parent into the screening tool. This may help counteract any allegations immediately, avoiding additional assessments and mitigating the impact these claims may have on the outcome.
- Transparent informed consent: It is important that patients know that this information will likely be submitted in a parenting dispute by their spouse’s counsel. Informed consent will ensure patients can adequately prepare with their legal team.
Without implementation of these recommendations, IPV-BI has the potential to become another avenue for the perpetuation of violence post-separation – a common occurrence in outcomes of parenting disputes in Canada. These recommendations call for scientists and clinicians alike to broaden their conception of ethics and contextualize their research within the reality of their participants’ and patients’ lives.
Although current statistics show heterosexual women experience the most severe physical IPV conducive to causing BI, it is important to note that IPV in all of its forms (physical, psychological, sexual, financial, coercive control) and IPV-BI is not exclusive to heterosexual relationships or to people identifying as women. Future research surrounding IPV-BI, IPV-BI screening, and their intersection with law should be expanded to explore the phenomenon with other relationships and identities along the sexuality and gender spectrums.
- World Health Organization, Department of Reproductive Health and Research, London School of Hygiene and Tropical Medicine, South African Medical Research Council. Global and regional estimates of violence against women. WHO. World Health Organization; 2014.
- Valera EM, Berenbaum H. Brain injury in battered women. J Consult Clin Psychol. 2003;71(4):797–804.
- Arora N, Hjalmarsson C, Lang E, Boyle A, Atkinson P. We should routinely screen for domestic violence (intimate partner violence) in the emergency department. Can J Emerg Med. 2019;21(6):701–5.
- McLaughlin KD. Ethical considerations for clinicians treating victims and perpetrators of intimate partner violence. Ethics Behav [Internet]. 2017;27(1):43–52. Available from: http://dx.doi.org/10.1080/10508422.2016.1185012
- Palmer VJ, Yelland JS, Taft AJ. Ethical complexities of screening for depression and intimate partner violence (IPV) in intervention studies. BMC Public Health. 2011;11(5).
Acknowledgements to Dr. Paul van Donkelaar, Dr. Judy Illes, Dr. Deana Simonetto, and the entire SOAR team for their leadership, support, and contributions to this work.