Category Archives: Features

ANSWERING THE CALL TO SERVE: THE NEED FOR CULTURAL COMPETENCY IN THE LEGAL PROFESSION

By Karla Carter, Esq.

I was sitting in my Wills & Trusts class during my second year of law school when I learned something very important: my family needed an estate plan. I was a college-educated Black woman from a rural maritime community who was pursuing a professional degree in law and, up until that point, I had no idea that “estate planning” applied to my family and the parcel of land my dad owned in the Northern Neck region of Virginia. We came from humble beginnings. My dad made his living on the water as a commercial fisherman and cook. While we lived modestly, (my dad was frugal and a good steward of his modest income), I never felt like we were poor by any stretch of the imagination. Still, I didn’t think we were the kind of people who had an “estate.” 

Over the years, I had seen movies like “Brewster’s Millions” and “Rainman” which dealt with large inheritances, and I always associated wills and “estates” with a lot of money, mansions, and fine jewelry. I never thought that my childhood home and the land upon which it sat was also an estate that needed protection through proper estate planning.

Sadly, my story is not unique among the Black, Indigenous, and other communities of color where estate planning is not a mainstream practice. Many families in these communities hold their land through an unstable form of land ownership known as heirs property where property passes from generation to generation without the benefit of a will. Heirs property is especially prevalent among low-wealth communities of Blacks who own land in the rural south, Whites in the Central Appalachian region of the country, Hispanics in the colonias communities of southwestern United States, and Native American groups. 

While all populations, regardless of race, are impacted by heirs property, Black families have lost a disproportionate amount of land to heirs property issues. According to the USDA, heirs property is the leading cause of Black land loss in America, with millions of acres lost to this unstable form of ownership, which has translated into billions of dollars of lost generational wealth. To understand this present problem requires one to first understand the historical and cultural framework that gave rise to this problem in the Black community. 

DECADES OF SORROW

After Emancipation, freed Black people acquired millions of acres of land, owning roughly 16-19 million acres by 1910. Often denied access to White-owned establishments to obtain legal services and financing, Black people began developing their own economic structure as a means of building wealth within the Black community. However, as Blacks began to establish thriving towns, to register to vote, to start businesses, and to engage in politics, opposition by Whites to a rise in Black prominence led to public lynchings and other atrocities that contributed to the Great Migration where millions of Blacks fled the South because of the violence and brutality they suffered in the South and the promise of opportunities for financial independence in the North. Here was a population of Americans whose status had shifted from one of being property to actually owning property themselves, but because they lacked the external resources and support they needed to protect their property in the Jim Crow South, what could have been a triumphant story quickly became one of sadness, desperation, and loss. Many decades of sorrow form the backdrop of Black land loss in America and between 1910 and the present day, Black land ownership has dwindled to roughly 2.5 million acres. 

LAWYERS & LAND LOSS IN LOW-WEALTH COMMUNTIES

A common theme exists across all low-wealth communities where heirs property is prevalent, regardless of race: the lack of access to trusted, quality legal services. A lack of trust in government and the legal system by people in low-wealth communities has its roots in the past unethical practices of government officials, lawyers and judges who preyed on this vulnerable population to defraud them of their land. The partition process was a common vehicle for abuse and decades of legal chicanery and outright deception by government officials has resulted in a deep mistrust of the government and the legal system by people in low-wealth communities. This scenario played out countless times: Because heirs property owners hold the property as tenants in common, any one owner of the property has standing to file a partition suit in court. Often, a developer would purchase the interest of one of the heirs, which gave the developer standing to bring a partition suit in court. Rather than ordering a division of the property, the courts regularly granted the requests of the developers, thus forcing families with strong connections and emotional attachments to the land to be separated from the family property. Land that had been in families for generations was lost forever. Often the land was sold way below market value, resulting in the heirs receiving little to no proceeds from the forced sale. These unjust outcomes were the rule, not the exception, resulting in billions of dollars of lost family wealth, and not just in the Black community. Native Hawaiians have been impacted by forced partition sales and Hispanics in New Mexico lost more than 1.6 million acres of land in the late 19th and early 20th centuries because of forced partition sales. 

As a profession, our hands are unclean. However, there is a better way forward and our profession has taken meaningful steps to correct these past wrongs.    

PARTITION REFORM IN THE UNITED STATES

In Virginia and a growing number of states, partition reform is on the rise with the expectation that we will see a decline in these types of forced sales of family land. In 2020, Virginia adopted provisions of the Uniform Partition of Heirs Property Act (UPHPA), which was enacted for the purpose of helping families preserve their family land and to protect their land from the vulnerabilities inherent in heirs property. The law requires the court to consider partition in kind as well as the family’s emotional attachment to the property. If a sale does occur, the court is required to appoint an outside appraiser to ensure that the family receives a commercially reasonable share of the proceeds. Virginia’s approach to adopting the UPHPA was to incorporate the UPHPA provisions into its existing partition procedures set forth in Virginia Code §§8.01-81, et seq.   

Lawyers and legal scholars were among the stakeholders instrumental in bringing about partition reform in this country, but the real work begins with lawyers creating opportunities for low-wealth communities to have access to trusted, quality legal services. Providing quality legal services requires not only professional competence, but also cultural competence. 

CULTURAL COMPETENCE IN THE LEGAL PROFESSION

Rule 1.1 of Virginia’s Rules of Professional Conduct requires lawyers to provide “competent representation” which requires “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”  

As lawyers, we are called upon to treat our clients with respect and courtesy, something that can only be accomplished if we pursue cultural competency as a way of better serving our clients and the larger community. Being culturally competent is just as important as being professionally competent. We can’t serve our clients effectively without being in tune with the culture, experiences, belief systems, and values of our client. In providing services to the low-wealth communities that need and deserve our service, we must pursue cultural competence in our service to this population. For example, to help a Black family stablilize their land ownership, a lawyer benefits from a knowledge and understanding of the history that led to the widespread lack of estate planning in the Black community. Your background may be vastly different than the client you are serving, but to pursue cultural competence to better serve our community carries tremendous value. The need for legal services in low-wealth communities is vast and matters involving land are some of the most expensive to resolve. 

PREPARING LAWYERS TO ANSWER THE CALL

There is likely an attorney reading this article who has a desire to serve in this area, but who lacks the professional training and experience in the areas of real estate, land use, and estate planning needed to serve this population. Fortunately, programming is being developed to launch in 2023 to help willing lawyers who have a desire to increase both their cultural competence and their professional knowledge to equip them to serve this population.  

The sad history of land loss in low-wealth communities in this country is one that has persisted long enough, and a new narrative is being written, one in which lawyers and judges seek justice for all and where low-wealth communities are able to preserve their family legacies through estate planning and other needed legal services. To close the wealth gap in America, attorneys are needed to stand in the gap by providing trusted, quality legal services to the low-wealth communities that need it most. Lawyers dedicated to the pursuit of cultural competence and professionalism in serving low-wealth communities are the key to closing the wealth gap in America and helping families create generational legacies. To those lawyers willing to join me on this mission, I bid you Godspeed.  

Karla D. Carter, Senior Counsel, Dominion Energy

Karla Carter is a frequent writer and speaker on issues involving heirs property and the need for access to legal services in low-wealth communities. For questions about future training opportunities as described in the article, contact Karla Carter by email at: karla.carter001@gmail.com

The PhD Project: Building a Stronger, More Diverse Workforce. Together.

Olivia Schmitt 

The PhD Project addresses a hidden barrier to workforce diversity: the lack of diversity among college professors. According to Pew Research, 48% of Gen Z – the largest generation in American history – is nonwhite. Yet more than 75% of the faculty at the nation’s colleges and universities – from professors to administrators – are white, according to the U.S. Department of Education’s National Center for Education Statistics.

Having a professor “who looks like me” can have a profound impact on students. It can give them a role model, inspire them to strive for more, and ultimately set them on a path for career success. That’s why The PhD Project is building workforce diversity by creating more diversity in front of the classroom. And the nonprofit is doing it by targeting the place where great leaders are created: business schools. 

For The PhD Project’s mission to come to life, it has created a network of more than 1,400 Black/African American, Latinx/Hispanic American and Native American professors. Many of them have left successful careers in the corporate world to earn business PhDs, with the intent to mentor and inspire underrepresented students who aspire to a career in business. For nearly 30 years, The PhD Project has been responsible for quintupling the number of underrepresented professors, administrators and academic leaders at an extensive list of academic programs. It has 62 members at 15 universities across the state of Virginia; 16 of those members are at Virginia Tech. The nonprofit also has more than 250 additional members who are currently pursuing their doctorate.

By creating a more diverse population of business PhDs, the project is transforming business education – and transforming business – for everyone. The PhD Project is a growing and dedicated community of business professors, PhD candidates and corporate leaders who share a commitment to diversity and inclusion. Through mentoring, networking, and unique events – and by connecting businesses to a diverse pool of high-potential candidates – the nonprofit is building a national movement that continues to gain momentum as more diverse business faculty inspire more diverse business students who will one day lead more diverse corporations. 

While it’s a good start, there is more to be done.

Just one business educator from an underrepresented background can impact far beyond the handful of students in the classroom. That professor’s students can go on to become leaders in the corporate world, or business professors themselves, bringing new light to hiring practices, innovative approaches and alternative perspectives to the lives of hundreds, if not thousands of people.  


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PhD Project member Dr. Nicole Thorne Jenkins, the John A. Griffin Dean of the McIntire School of Commerce at the University of Virginia, has seen this firsthand and says the need for change is urgent. (pictured above)

“As generation Z continues to matriculate on university campuses, they demand environments that reflect the representation that they see in their peer groups. As business schools, we are the gatekeepers to corporate America and as such, we must evolve into communities that have the cultural fluency to prepare our students for a diverse and dynamic marketplace,” Dr. Jenkins says. “This begins with having representative voices across all facets of the learning environment through holistic admissions processes, robust hiring processes and the design and content of academic programming.”

In the 21st century, diversity is critical. It’s not a box to be checked on a business plan. It’s a requirement for an effective, competitive workforce. When the people in front of the classroom look like the people sitting at the desks, when everyone knows that their unique abilities are recognized and valued, when everyone has an opportunity to succeed, campuses are stronger. Companies are stronger. Society is stronger.

For more information about The PhD Project mission, model and how you can get involved, please visit https://phdproject.org/

Wellness-Agni for Legal Professionals

By: Susan Borecki*

“I feel, therefore I exist.”

-Thomas Jefferson

Years ago, I took a sabbatical from my legal practice and enrolled as a student at the Ayurvedic Institute. Ayurveda is the science of life based on the ancient Vedas. Yoga is the most well-known Vedic discipline in the West. Another that is becoming more widely known is Ayurveda. Ayurveda is the “Mother of all Healing.”  Health and healing according to Ayurveda begin with Agni. 

Agni is the Sanskrit word for fire. In my last article I discussed Agni and digestion. Today we will explore the role that Agni plays in the legal profession. 

Agni refers to the digestive fire, the fire of intelligence, and the fire governing all transformative processes. Like fire, Agni is hot, light, sharp, and dry. Agni governs the highly organized process of creating and blending acid, bile, and enzymes to transform food into usable energy. Maintaining a balanced Agni translates into better digestion, elimination, and immune function.

Agni is also the vehicle by which food becomes consciousness. Agni governs the processing and assimilation of information. All this, through the miracle of fire. 

We speak of something to consider, and legal professionals are voracious consumers. We take in myriad bits of a vast variety of information and evaluate them considering all the related circumstances. We craft them into legal principles, arguments, and conclusions. 

Just as a balanced Agni results in the smooth digestion of food, so a balanced Agni gives optimal job performance. There are a few key qualities that make for an effective and efficient legal professional. All of them require effective and efficient Agni.

Ability to Listen

Meeting with clients requires the ability to welcome people into your environment and help them feel comfortable and appreciated. We do this through outwardly communicating that we are listening. Asking the right questions and reflecting to the client what you have heard is a dance, just as a flame will do. Your good Agni communicates warmth and your understanding of the situation. Your good Agni processes the client’s words and nonverbal cues and allows you to reassemble them into a legally meaningful construct. And, because you have intelligently evaluated your client, you are able to restate the issues in a way that the client is able to understand.

If your Agni is balanced, you will be calm and assess the matters discussed with clarity and control. This in turn stimulates the client’s confidence and trust. If your Agni is too strong, you might appear irritated or angry and judgmental. If it is too low, you could appear distracted or uninterested. You might not accurately assess risks and the chance of success. The plan of action you create may prove ineffective.

Compassion and Empathy

Compassion is the ability to feel sympathy for the client who needs help. Empathy allows you to put yourself in the client’s shoes and feel what they feel. Your internal flame naturally seeks out that of the client. If the client’s Agni is low, you sense it, whether consciously or not. If your Agni is strong, it will reach out to bolster the client’s. If the client’s Agni is too high, one’s own Agni remains cool, to calm the blaze. Your compassionate fire quietly assesses the client and decides if and how you can help. As we know, just listening and being present is often enough.

Extend to others the same compassion and empathy you have for your clients. You cannot hope to be successful if you are not able to appreciate the clerks, your opponent, or the judge. Your subtle flame is always vigilant to the signals given by those who play a role in the outcome of your case.

Assertiveness

An effective legal professional has the appropriate skills and the confidence to use them. An assertive lawyer is game for what may come. One’s enthusiasm—powered by a healthy Agni–is steady, within a manageable range. Out-of-control Agni will make one overly aggressive. One can misread a situation or over-worry an insignificant or unintended slight. This in turn will make one react with anger, failing to maintain a steady, measured course. 

Unfettered aggression can, as they say, “burn bridges.”  In the middle of a conference or a hearing, one can misstep if one overly identifies with one’s points. Zealous representation can be enthusiastic but is ineffective when fanatical and overheated. A well-tempered Agni gives the intelligence to act rather than react. Sometimes, with the right attitude, just showing up really is enough. 

Analytic Skills and Perspective

No one disputes that being able to assess a situation and apply the law appropriately is key for legal professionals. Setting out a problem with an argument supported by law in outline form is our bread and butter. What may not be so apparent is how much analysis is the right amount. An overactive Agni could make one dive too deep in the weeds or blind to key factors.

An insufficient Agni may leave one sputtering and at a loss when it is time to drive home the winning argument, whether on paper or orally. The measured, consistent Agni will make all the important points, to the necessary degree, in both the filings and at the hearing.

Creativity and Timing

There is a general cadence of cases in each area of the law. Within the normal range there is some ebb and flow in which you make a case uniquely yours. Weaving a fresh approach around black letter law is the mark of a consummate professional. 

Understanding how and when to shine new light on an old situation is possible for one with the fire of discernment. Inroads are made by insight coupled with the sincere desire to express a new, better way of seeing things. 

Dedication and Commitment

Of course, the ability to keep the flame of attention burning throughout the whole life of a case is essential. But staying motivated and “stoked” can be a challenge. Confronted with obstacles and delays, a sufficient reservoir of patience can be hard to find. In such situations, knowing that for everything there is a beginning and an end, is the currency of a professional. We talk about putting things off on the back burner or letting things simmer, for example. 

As a criminal defense attorney, I have found that dedication means maintaining the same level of attention and appetite for a case from presentment to the notice of appeal. After the codefendant has pled out, when it is “just us” at the defense table, then me delivering my closing argument (completely convinced of an acquittal), and me enjoying every minute of the 2.67 days the jury is out, and years later remembering my cross of the government’s DNA lab technician, the flame of attention still burns strong. 

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Many of us start the day with caffeine in the form of a large, lovely mug of coffee or tea. To enkindle your Agni, first drink a glass of filtered water. Serve it at room temperature because chilled and iced drinks tend to extinguish Agni. Drink it thoughtfully, as an acknowledgement of your Agni, which will guide you through your day. 

  • The author is a frequent contributor about wellness from the Asian historical perspective. The article should not be construed as medical advice on the subject.

Getting Creative: Why Diversity, Equity, and Inclusion Initiatives are Mental Health & Wellness Initiatives

By: Sarah Knarzer, Esq.1

While well-intentioned, many diversity, equity, and inclusion initiatives (DE&I initiatives) tend to struggle to gain momentum and succeed in law firms and other legal organizations, particularly when those initiatives are focused solely on hiring practices. It is no surprise that diversity, equity, and inclusion does not just miraculously occur in the workforce because some leaders have agreed that it is the right thing to do. In fact, employers who have prioritized practices such as employing attorneys with diverse experiences, making success attainable for all employees, and creating supportive communities within their work force, have realized that DE&I initiatives are the formula for a stronger, healthier workplace. It is evident that for values such as diversity, equity, and inclusion to truly become part of firm or legal organization, they must be integrated into everything that firm or legal organization does, including mental health and wellness programs, and vice versa. 

              Diversity and the Workplace

“Despite the increased emphasis on diversity and inclusion within the legal field over the past decade or so, the legal profession remains one of the least diverse of any profession.”2 This is despite the fact that “studies have shown, time and time again, that diversity is good for business.”3 One primary barrier is leadership—without diverse leadership, diversity initiatives will almost always fail. For example, as of 2017, Asian Americans were the largest minority group at major law firms.4 However, “[a]mong Asian Americans, although women outnumber men among law firm associates, men outnumber women by almost twofold at the partner level.”5 

Diversity for diversity’s sake—a numbers game where you achieve a quota of “diverse” employees and call it a day—is doomed from the start. Such initiatives—while necessary—focus primarily on hiring/recruitment practices, are reactive in nature, and don’t address the root of why minority attorneys struggle to find the same success and satisfaction in the work force as their majority counterparts: minority attorneys at all levels of their legal organization don’t often have the resources to start on the same footing as their majority colleagues in an inequitable workplace or to integrate with or feel embraced by their peers in an non-inclusive workplace.6

 For illustration, being invited to the party is the first step, but if you are not invited to dance, or if you do not have the ability to dance in the first place, you will not have as much fun as the others at the party, despite everyone’s good intentions. Accordingly, injecting robust mental health and wellness initiatives into all aspects of your workplace’s diversity, equity, and inclusion strategy addresses many of the barriers to employee retention, promotion, and public perception as a diverse workspace—but more importantly, it strengthens and empowers employees to be successful on an individual level and as a collective workforce. 

                Need for a Flexible Approach

Mental health and wellness initiatives that take a “one-size-fits-all” approach and ignore the diverse experiences and backgrounds of their employees will not succeed. Minority employees’ mental health can be directly impacted by microaggressions, bias, and a lack of inclusivity that they may experience in their workday. This is particularly true in the legal occupation where many attorneys struggle with mental health—ALM’s 2020 Mental Health and Substance Abuse Survey showed that out of 3,200 responses, 64% of attorneys experience anxiety, 31.2% experience depression, 10.1% feel they struggle with alcoholism, 2.8% feel they may have a drug problem, and, most concerning, 17.9% of respondents have contemplated suicide during their professional legal career.7 

The legal community has made great strides with destigmatizing some of these mental health concerns and providing resources for attorneys who are struggling, but to fully address the concerns of all attorneys, we must identify the sources of mental health problems and the barriers to receiving help before we can remove them. For example, diverse cultural attitudes and stereotypes often impact the way minorities seek help with their mental health or prevent them from seeking help altogether.8

                      A Supportive Environment   

Feeling included, supported, and capable of success in an organization is critical to strong mental health and well being in the workplace.9 Given the amount of time, energy, and attention attorneys spend in their work, it is impossible to ignore the impact that their work environment may have on their mental health. Injecting DE&I initiatives into all aspects of your workplace’s mental health and wellness strategy addresses many of the negative experiences that are unique to minority attorneys and fosters a work environment that is a source of positivity and personal fulfillment for all employees; and mentally well and happy people are better employees, supervisors, leaders, and attorneys. There is no single approach to solve all mental health, well-being, diversity, equity, and inclusion concerns in your workspace. 

However, mental health and well-being and DE&I strategies must be intersectional if they are to be achieved.10  By incorporating concepts of diversity, equity, and inclusion into your mental health and wellness programs, and vice versa, you will start to provide employees and attorneys from all experiences and backgrounds with the resources they need to succeed both personally and professionally at your legal organization. 

    To illustrate, attorneys who manage various disabilities may have experiences that are more challenging than their colleagues’ without disabilities through no fault of any person involved. In addition to the difficulties caused by their disability, these attorneys frequently struggle with both subtle and overt instances of bias and discrimination in the workplace.11 These instances often arise from a lack of understanding of a person’s abilities. 

For example, an attorney who uses a wheelchair to be mobile may not be able to accompany colleagues on a firm-wide hike. A standard health insurance plan may not account for the employee who requires the use of a hearing-aid to participate in a conversation. An employee who is neurodivergent (has autism, dyslexia, etc.) may not be able to integrate socially or professionally without accommodations or support from all their peers. And, of course, while organizations frequently state that they do not permit bullying or harassment in the workplace, it undoubtedly still occurs—and minority communities may endure the most of such unacceptable conduct. 

These are just some of the examples where an individualistic approach would benefit human resources, administrative, and employee development staff in supporting their attorneys within a legal organization. By increasing anti-bias training and education and making small modifications to certain practices—such as health insurance coverage for disabilities, ensuring food options for specialized diets (ex. vegan, kosher), hosting a diverse variety of social functions, permitting flexible leave and floating holidays for those of different religions and ethnic traditions—your workspace can become more equitable and your employees will feel more included, supported, and empowered to succeed.12 

Of course, recruitment, hiring, and retention policies are integral to any diversity, equity, and inclusion strategy. Pooling from diverse backgrounds, valuing diverse experiences, and promoting diverse employees to positions higher up in your legal organization are all critical to obtaining a strong, healthy workplace. However, even in this area of your organization’s diversity strategy, mental health and well being concerns can and should be considered. 

For example, it is important not to tokenize the diverse employees that are currently a part of your workforce in advertising materials and/or recruitment.13 Tokenization occurs when a minority person is hired, promoted, and/or advertised “only to prevent criticism and give the appearance that people are being treated fairly” and without any real intention or practice to treat them in the same capacity as a majority counterpart.14 Doing so is not only misleading to potential employees by setting them up for expectations for their employment that can only fail and disappoint them, but it is also exhausting for one or two choice people to be the beacon for diversity in their organization (often without a paycheck to reflect that additional work,) anxiety-inducing to feel the need to be the perfect example and a mentor to any and all other diverse employees, and discouraging to feel that they were only hired to be a statistic or photo opportunity and not for their skills, abilities, and strengths as an attorney. This does not mean they cannot or should not be a part of those hiring and recruitment practices but doing so should be on their terms and they should feel free to speak honestly about their experiences, even the negative ones. 

Another example is for hiring managers to truly value diversity as a policy, not as a statistic. In a recent study, 76% of new job seekers and employees have reported that a diverse work environment is a crucial factor in considering offers of employment.15 (Speaking for myself, I certainly considered diversity initiatives—and the opportunity to become involved with diversity initiatives—in accepting my current position as an associate at my law firm.) This statistic indicates that now, more than ever, it is important to have a concrete DE&I strategy that can be used as an incentive for diverse and diversity-minded candidates to work at your organization. However, it is also important for interviewers and hiring managers to be honest with potential employees who inquire about DE&I initiatives in your workplace. 

If an employee accepted a job offer partially on the impression that they were joining an organization that had strong diversity, equity, and inclusion policies, only to learn that such policies were not, in fact, valued or practiced by the organization as a whole, they may grow to resent their employer, thus impacting their mental health and well-being as an employee. If your organization is not where you think it should be in terms of diversity and inclusion, but you and others are working to improve that and are looking to hire those who feel the same, then say so—candidates may be excited about the opportunity to leave an impression on their firm and, if given the opportunity and an environment to do so, they may feel fulfilled and empowered by their organization to be a successful employee. 

                    In Closing   

The methods in which your legal organization can strengthen both mental health and wellness initiatives and DE&I initiatives by intersecting the goals of each may be critical to supporting attorneys at your organization. How your firm or organization accomplishes this will require creativity and commitment from all levels—and your strategy will have to be unique to your firm or organization’s workforce, resources, and environment. However, the first step is to view each initiative not as mutually exclusive of the other, but instead as compatible and harmonious goals that, if achieved, will cultivate a workspace where employees can flourish both professionally and personally.

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  1. Sarah K. Knarzer is an Associate Attorney with McCandlish Holton’s Civil Litigation Group in Richmond, Virginia. She is passionate about diversity and inclusion in the legal community and is happy to discuss this article and other initiatives with anyone else who is interested. For inquiries, please e-mail sknarzer@lawmh.com.
  2. Allison E. Laffey & Allison Ng, Diversity and Inclusion in the Law: Challenges and Initiatives, American Bar Association (May 8, 2018), https://www.americanbar.org/groups/litigation/committees/jiop/articles/2018/diversity-and-inclusion-in-the-law-challenges-and-initiatives/.
  3. Id.
  4. Chung et al., The Portrait Project: A Portrait of Asian Americans in the Law (2014).
  5. Laffey, supra note 2 (citing Chung, supra note 3, at 18).
  6. Dr. Heather Bolton, DEI That Ignores Mental Health Is Doomed, HR Daily Advisor (Nov. 6, 2020), https://hrdailyadvisor.blr.com/2020/11/06/dei-that-ignores-mental-health-is-doomed/.
  7. lex Andonovska, Lawyers Reveal True Causes of Mental Health Struggles Beyond COVID-19, JDJournal (May 7, 2020), https://www.jdjournal.com/2020/05/07/lawyers-reveal-true-causes-of-mental-health-struggles-beyond-covid-19/ (citing Mental Health and Substance Abuse Survey, ALM Intelligence (2020)).
  8. For more examples of the way diverse backgrounds affect mental health, see Jayne Reardon & Bree Buchanan, Lawyer Well-Being: An Uncharted Path to Increasing Diversity and Inclusion, American Bar Association (Feb. 19, 2018), https://www.americanbar.org/groups/litigation/committees/diversity-inclusion/articles/2018/winter2018-lawyer-well-being-alcoholism-self-help/.
  9. Patricia Silva, Mental Health Efforts Will Support Diversity In Legal Industry, Law360 (June 9, 2020, 10:09 p.m.), https://www.law360.com/articles/1278451/mental-health-efforts-will-support-diversity-in-legal-industry.
  10. Garen Staglin, The Essential Role of mental Health For A Diverse, Inclusive Workplace, Forbes (July 14, 2020, 9:00 a.m.), https://www.forbes.com/sites/onemind/2020/07/14/the-essential-role-of-mental-health-for-a-diverse-inclusive-workplace/?sh=72e0da4bac4d.
  11. For examples and statistics, please see Blanck et al., Diversity and Inclusion in the American Legal Profession: First Phase Findings from a National Study of Lawyers with Disabilities and Lawyers Who Identify as LGBTA+, 23 Univ. D.C. L. Rev 23 (2020).
  12. For other examples, see Making Diversity, Equity, and Inclusion a Part of Your Corporate Wellness Program, WellRight (July 8, 2020), https://www.wellright.com/blog/making-diversity-equity-and-inclusion-a-part-of-your-corporate-wellness-program.
  13. Five Ways to Avoid Tokenism in Diversity and Inclusion Work, The Network (Aug.19, 2020), https://www.the-network.com/five-ways-to-avoid-tokenism-in-diversity-inclusion-work/
  14. Avoiding Tokenism when Promoting Cultural Diversity in the Workplace, Thomas (Nov. 26, 2020), https://www.the-network.com/five-ways-to-avoid-tokenism-in-diversity-inclusion-work/.
  15. What Job Seekers Really Think About Your Diversity and Inclusion Stats, Glassdoor (July 12, 2021), https://www.glassdoor.com/employers/blog/diversity/.

Make Justice Accessible to Autistic Individuals

By: Walewska M. Watkins*

    Introduction1    

Disabled individuals2—especially those who are intellectually and developmentally disabled— are more likely to become involved in the criminal justice system as survivors or offenders than those who are not disabled.3 They are exploited and injured by strangers and caregivers who take advantage of their physical, intellectual, developmental, or communication limitations.4 Too often, they are re-victimized by our collective failure to sufficiently empower them in rejecting abusive criminal behavior and obtaining legal protections.5 

Whether intentionally or negligently, we have failed to create administrative and judicial systems willing to believe and sufficiently accommodate them.6 We have yet to eliminate personal and systemic biases that conceive of the harms inflicted upon them as inevitable, necessary, or benign or simply as civil or administrative infringements that do not require prosecution.

Disabled individuals also disproportionately bear certain burdens of inequality, including unemployment, poverty, homelessness, and violence that can drive them—as they drive others— to engage in criminal conduct. Some—especially those with intellectual and developmental disabilities—are manipulated into criminal behavior by their social isolation or misinterpretation of the nature of illicit activities.7 Regardless of their status as accusers or accused, disabled individuals are entitled as a matter of law to fully access and participate in our judicial systems. 

As attorneys, we are charged with the aspirational goals of our Rules of Professional Conduct to consider the existing deficiencies in the administration of the justice and to improve our laws and the quality of services we render to the public.8 As officers of the court, we should aspire to eliminate existing and emerging physical and communication barriers that prevent disabled individuals from participating in investigative and adjudicative processes free of condescension and pernicious discrimination. We should also seek to create and enforce remedies that fairly redress the harms disabled individuals experience and address the harms they may perpetrate. 

What is Autism?

An Autism Spectrum diagnosis generally identifies individuals with sensory processing, executive functioning, communication, or social interaction approaches that depart from the stereotyped expectations we deem the norm. Depending upon their profile or situational needs, those who have received the benefit of an Autism Spectrum diagnosis (i.e., Autistic individuals) may be entitled to the protections afforded under federal and state disability rights statutes. 

Some Autistics may, for instance, process language (including its intonations, interruptions, and accompanying gestures) or other sensory stimuli (e.g., a banging gavel or a crowd suddenly standing up) differently from that preferred by a government agent or institution (e.g., more slowly, more intensely, more fearfully, etc.) Others may communicate through alternative means or assistive technology (e.g., American Sign Language, speech generating devices, picture boards, or electronic communication boards) or may have developed an individualized approach to vocabulary, grammar construction, volume, cadence, facial expressions, or mannerisms. Yet others may require emotional or social supports either sporadically or consistently. 

According to the National Institute of Mental Health, about 1.9% of the general population has been diagnosed as Autistic by either a medical or educational expert.9 It is likely, however, that this number underestimates Autism’s prevalence since women and racial and ethnic minorities are more likely to go undiagnosed.10 

The Centers for Disease Control and Prevention estimate that close to 24% of adult Virginians are disabled.11 Though historical changes in diagnostic criteria and previous systemic failures in data collection make it difficult to establish the size of Virginia’s Autistic cohort, estimates show that about 10% of Virginian children who receive supportive education services is Autistic.12 This suggests that Autistics represent a similar proportion of the population here as they do nationwide.

Is Autism a Disability That Our Courts Must Accommodate? (Yes. It is.)

The Americans with Disabilities Act (ADA) along with its regulations and the Virginians with Disabilities Act (VDA) define “disability” in terms of a substantial limitation of one or more major life activities, including neurological functions such as perceiving, concentrating, analyzing, and communicating.13 While each Act has its own nuance, they both seek to ensure that disabled individuals are guaranteed equal opportunities and full participation in social and civic life.14 

Title II of the ADA, for example, requires public entities—such as our Commonwealth courts and Commonwealth Attorneys— to take appropriate steps to ensure the protection of the statutory and constitutional rights of “qualified individual[s] with a disability.”15 These steps (sometimes referred to as “reasonable accommodations”) may include providing access to technological aides, certain professional services, and the assistance of others to facilitate the disabled individual’s communication and participation in government services, programs, or activities.16 The VDA similarly prohibits excluding “person[s] with disability” from participating in or benefiting from programs or activities undertaken by the state, on behalf of the state, or otherwise receiving state financial assistance on the basis of their disability.17 

Whether they do so consistently or only under the stress of participating in judicial processes, Autistic individuals can find these processes inaccessible and thus evidence a substantial limitation to a major life activity. Their unconventional needs or behaviors may, moreover, prevent narrowly focused prosecutors, legal representatives, jurors, or judicial officers from fairly evaluating Autistics’ competence, memory, motivations, and trustworthiness and from honoring their rights to due process of the law and other constitutional guarantees. Autistic individuals would therefore qualify as “person[s] with disability” and be accordingly entitled to receive reasonable accommodations throughout their participation in the judicial process and related proceedings. 

How Can Our Court Systems Reasonably Accommodate Autistic Individuals?

While disabled individuals may be capable of filing a request for a reasonable accommodation (i.e., a modification or adjustment to processes) in advance of a particular interaction,18 they may not know in advance that they will need one. The absence of such requests does not relieve an entity of its obligation to take “appropriate steps”19 to prevent disability-based discrimination.

A logical first appropriate step in providing yet unrequested reasonable accommodations is to recognize that an individual may be unable to perform a specific task in the standardized manner. An attorney, judicial officer, or support staff may, for example, perceive that a person is struggling to complete intake paperwork.20 Without demanding information about the source or nature of the person’s disability, they may volunteer to read the text aloud or paraphrase for simplicity. This may quickly address the challenges faced by dyslexic individuals, by those unfamiliar with technical language, or by Autistic individuals who struggle with open ended questions. 

Depending upon the type of form in question, attorneys may alternatively offer to complete the form for the individual—which would discretely address language production, educational, or motor coordination disadvantages experienced by the disabled individual. The reasonable accommodation that would best fit a situation and an individual, however, will depend upon the situation, the substance of the form, the individual, and the disability. 

Recognizing and honoring a disability is more complicated and must go farther than preparing initial paperwork to access justice. It is the courts’ duty to ensure that Autistic or otherwise disabled victims, witnesses, and even accused are afforded means and strategies for communication that can effectively help them establish their positions and communicate their experiences of trauma.21 

Non-Autistic participants in judicial process should, for example, refrain from relying on the ambiguity of body language and demeanor since Autistics may either produce or perceive those differently. Autistics’ demeanor may, for example, be significantly influenced by trauma and by their unconscious development of “a psychological safety mechanism made up of complex layers of physical, emotional and social actions…”22 

Autistics may also easily misunderstand open ended questions and become unduly anxious due to their limited ability to capture context clues and intended meanings.23 Indeed, following some of our sister states’ precedent, judicial officers should consider exercising their discretion—as contemplated by Va. S.Ct. Rule 2:611— to allow leading questions during a direct examination as a reasonable accommodation to develop testimony at trial.24 

The rules on relevance may have to yield to accommodate an Autistic witness and allow the presentation of contextual information about Autism and how the person’s Autistic profile or learned coping strategies may express itself in the individual’s tone, posture, expressions, behavior, or choices. Such modification to our traditional notions of relevance can similarly provide context to behavior presented as evidence of Autistic defendants’ motive, intent, fault, guilt, demeanor, and remorse to ensure that harms are repaired without imposing disproportional accountability.25 

Individualization of accommodations is fundamental as Autistic individuals are not monolithic. For some, these or similar accommodations may represent the best means to “facilitate the ascertainment of truth,” “avoid needless consumption of time,” and protect an Autistic or otherwise disabled witness from “harassment or undue embarrassment.”26 For us, they may represent our best acknowledgement of the special vulnerabilities of Autistic victims that make them easy targets for physical abuse and psychological and intellectual manipulation. 

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*About the author

Walewska M. Watkins is a legal services attorney, living and working in Northern Virginia. She received her Juris Doctor from Georgetown University Law Center and her LLM in Environmental Law from Tulane University Law School. She is licensed to practice law in New York, California, Puerto Rico, the District of Columbia, and our Commonwealth of Virginia. Her practice has included civil rights, environmental regulation, gender discrimination, and First Amendment rights as well as copyrights and commercial litigation. Ms. Watkins is a member of the Governor’s Virginia Latino Advisory Board and the Fairfax County’s Community Action Advisory Board, a Virginia Board for People with Disabilities’ TAA, and a member of the Little Lobbyists, a not-for-profit organization that advocates for the rights of children with complex medical needs and disabilities.

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  1. There is a growing body of activism and scholarship focused on law enforcement interactions with Autistic individuals and on how training and experience working and socializing with Autistics can improve law enforcement outcomes. Little work has been done, however, to enrich prosecutorial decisions on Autism and on how Autistics may experience crime and criminal prosecutions differently from non-Autistics. During its 2021 Spring Training Institute last April, the Commonwealth’s Attorneys’ Services Council assumed a leading role introducing our state attorneys to an overview of Autism, how aspects of prosecutorial and judicial processes can affect Autistics’ access to justice, and how some reasonable accommodations can mitigate certain challenges. The expert training panel—“Autism and Criminal Justice”— included attorney Ariel Simms from The Arc of the US’ National Center on Criminal Justice & Disability, attorney Kelly Israel from the Autistic Self Advocacy Network, the Honorable Judge Susan J. Stoney from the Fairfax County General District Court, and the author. This article reflects some of its lessons.
  2. This National Center on Disability and Journalism’s Disability Language Style Guide recognize that some disability activists prefer the use of person first language—i.e., “person with a disability”—, while others prefer identity first language—i.e., “disabled person.” Nat’l Ctr on Disability and Journalism’s Disability Language Style Guide, https://ncdj.org/style-guide/#disabledpeople (last accessed April 30, 2021). The Autistic community currently prefers identity first language and thus this writing will follow their lead.
  3. Leigh Ann Davis, People with Intellectual Disability in the Criminal Justice System: Victims & Suspects, p. 1, available at https://thearc.org/wp-content/uploads/forchapters/Criminal%20Justice%20System.pdf#:~:text=People%20with%20intellectual%20and%2For,including%20reasonable%20accomdations%20as%20necessary (last accessed April 30, 2021). See also Jeffrey A. Cohen, Thomas A. Dickerson, and Joanne Matthews Forbes, A Legal Review of Autism, A Syndrome Rapidly Gaining Wide Attention Within Our Society, 77 Albany Law Review 389, 417 (2014)(citing Karen Hughes et al., Prevalence and Risk of Violence Against Adults with Disabilities: A Systematic Review and Meta-Analysis of Observational Studies, 379 Lancet 1621, 1626, 1627 (2012))(Autistic individuals are more likely to be victims than perpetrators of crime.) (Content Warning: This article includes ableist language and perspectives.)
  4. See, e.g., Christina Rainville (Jan. 09, 2018), Prosecuting Cases for Children on the Autism Spectrum [American Bar Association’s Center on Children and the Law Blog Post], available at https://www.americanbar.org/groups/child_law/resources/child_law_practiceonline/child_law_practice/vol_32/april-2013/prosecuting-cases-for-children-on-the-autism-spectrum/ (last accessed April 30, 2021); Karen Hughes et al., Prevalence and risk of violence against adults with disabilities: a systematic review and meta-analysis of observational studies, p. 8 (2012), available at https://www.who.int/disabilities/publications/violence_children_lancet.pdf (last accessed April 30, 2021); Leigh Ann Davis, People with Intellectual Disability in the Criminal Justice System: Victims & Suspects (August 2009), p. 1, available at https://thearc.org/wp-content/uploads/forchapters/Criminal%20Justice%20System.pdf#:~:text=People%20with%20intellectual%20and%2For,including%20reasonable%20accomdations%20as%20necessary (last accessed April 30, 2021).
  5. Id.
  6. Leigh Ann Davis, People with Intellectual Disability in the Criminal Justice System: Victims & Suspects (August 2009), p. 1, available at https://thearc.org/wp-content/uploads/forchapters/Criminal%20Justice%20System.pdf#:~:text=People%20with%20intellectual%20and%2For,including%20reasonable%20accomdations%20as%20necessary (last accessed April 30, 2021).
  7. Id.
  8. Va. State Bar: Professional Guidelines, Preamble: A Lawyer’s Responsibilities, available at http://www.vsb.org/pro-guidelines/index.php/rules/preamble/ (last accessed April 30, 2021). See also Supreme Court of Virginia, Virginia’s Courts in the 21st Century: To Benefit All, To Exclude None, available at http://www.courts.state.va.us/courtadmin/aoc/judpln/reports/2009_strat_plan.pdf (last accessed May 31, 2021)((Vision 2.5 reads: “Eliminate from the operation of the Judicial System harmful biases such as those based on race, gender, age, disability or socioeconomic status”; Vision 5.9 reads: “Ensure that participants in the judicial process are not discriminated against because of race, language, gender, age, disability, or socioeconomic status.”)
  9. Nat’l Inst. of Mental Health, Prevalence of ASD, available at https://www.nimh.nih.gov/health/statistics/autism-spectrum-disorder-asd (last accessed on May 11, 2021).
  10. See, e.g., Jen Malia, “My Daughter and I Were Diagnosed with Autism on the Same Day,” The New York Times, (October 15, 2019), available at https://www.nytimes.com/2020/04/15/parenting/autism-mom.html (last accessed May 11, 2021); Allison B. Ratto et al., What About the Girls? Sex-Based Differences in Autistic Traits and Adaptive Skills, 48 Journal of Autism Dev. Dis. 1698–1711 (2018); David S. Madell et al., Racial/Ethnic Disparities in the Identification of Children With Autism Spectrum Disorders, 99 Ame. Journal Public Health 493 (2009), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2661453/ (last accessed June 14, 2021).
  11. U.S. Centers for Disease Control and Prevention, Disability & Health U.S. State Profile Data for Virginia (Adults 18+ years of age), available at https://www.cdc.gov/ncbddd/disabilityandhealth/impacts/virginia.html (last accessed on May 12, 2021).
  12. Easter Seals, 2016 State Autism Profiles VIRGINIA, https://www.easterseals.com/explore-resources/living-with-autism/2016-autism-virginia.pdf (Content Warning: This document includes ableist language and perspectives.)
  13. As defined by the Americans with Disabilities Act (ADA), the term “disability” means an actual or perceived “physical or mental impairment that substantially limits one or more major life activities” or a record of such an impairment. 42 U.S.C. § 12102(1); 42 U.S.C. § 12102(2)(C). The ADA protects individuals who are perceived as disabled, but who are not actually so, only if their perceived impairment is not one that would be regarded as transitory, defined as lasting six months or less. 42 U.S.C. § 12102(3)(B). See 42 U.S.C. § 12102(4)(including rules of broad construction and interpretation). See also 28 C.F.R. § 35.108. For purpose of the ADA, “major life activities” include, but are not limited to, “but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A). They also include immune, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. 42 U.S.C. § 12102(2)(B). See also Virginians with Disabilities Act, Va. Code § 51.5-40.1.
  14. See 42 U.S.C. § 12101(b); Va. Code § 51.5-1.
  15. 42 U.S.C. § 12132. See also 42 U.S.C. § 12131(1)(defining the public entities subject to ADA’s Title II); 42 U.S.C. § 12131(2)(defining “qualified individual with a disability” as a disabled individual who, with or without reasonable accommodations, “meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”)
  16. 28 C.F.R. §35.160.
  17. Va. Code § 51.5-40.
  18. The Supreme Court of Virginia highly recommends the use of the following form to make a reasonable accommodation request: http://www.courts.state.va.us/courts/ada/accommodation_request_form.pdf (last accessed May 31, 2021). No government entity may, however, predicate the processing or grant of a reasonable accommodation upon the filing of a paper application or preferred form.
  19. 28 C.F.R. §35.160(a)(1) (“A public entity shall take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.”)
  20. The basis for this exemplary scenario must be credited to attorney Ariel Simms from The Arc of US.
  21. 28 C.F.R. § 35.160(b)(1) (“A public entity shall furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities, including applicants, participants, companions, and members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.”)
  22. Kieran Rose, Autistic Masking and Autistic Burnout: What is Masking?, available at https://theautisticadvocate.com/autistic-masking/ (last accessed on May 12, 2021).
  23. Similarly, slang, popular expressions, and overly symbolic language can also confuse or easily frustrate certain Autistic and otherwise disabled individuals.
  24. See, e.g., State v. Rivera, 987 A.2d 887, (R.I. 2010) (affirming decision to permit adult with developmental disabilities to be questioned by leading questions in a sexual assault case); People v. Augustin, 112 Cal. App. 4th 445, 449, 5 Cal. Rptr. 3d 171, 175 (2003)(affirming trial court’s decision to accommodate assault victim with cerebral palsy and speech disabilities by permitting leading questions on direct examination); State v. Stewart, 2003 WL 21251642, *11 (Tenn. Crim. App.)(affirming decision to permit direct examination of adult victim through leading questions, noting victim’s “mental condition” and “severe speech impediment” such that she “could not express herself as other witnesses can”); Trammell v. State, 298 So. 2d 66 (1974) (affirming decision to allow witness who had suffered a stroke to be questioned by leading questions and to answer non-verbally).
  25. Jeffrey A. Cohen, Thomas A. Dickerson, and Joanne Matthews Forbes, A Legal Review of Autism, A Syndrome Rapidly Gaining Wide Attention Within Our Society, 77 Albany Law Review 389, 413 (2014). (Content Warning: This article includes ableist language and perspectives.) The Hon. Jeffrey A. Cohen and the Hon. Thomas A. Dickerson are Associate Justices of the Appellate Division of the New York State Supreme Court, Second Judicial Department.
  26. See Va. S.Ct. Rule 2:611. See also Connecticut Code of Evidence § 6-8(b)(3), Comment (“Under exception (3), the court may allow the calling party to put leading questions to… a witness who has trouble communicating.”); California Rule of Evidence 767, Comment (“The exception stated at the beginning of the section continues the present law that permits leading questions on direct examination where …such questions are necessary to obtain relevant evidence. This would permit leading questions on direct examination for …examining handicapped (sic) witnesses[.]”)(internal citations omitted).

अग्नि Agni: The Power of Fire

By: Susan Borecki

Many years ago I took a sabbatical from my legal practice and enrolled as a student at the Ayurvedic Institute.  Ayurveda is the science of life based on the ancient Vedas.  Yoga is the most well-known Vedic discipline in the West.  Another discipline that is becoming more widely known is Ayurveda, the “Mother of all Healing.”  Health and healing according to Ayurveda begin with Agni. 

Agni is Sanskrit for fire.  Agni is hot, light, sharp, and dry.  Agni governs innumerable physiological processes including digestion and the assimilation of food at the cellular and more subtle levels.  

Digestion is key to health and wellness according to Ayurveda.  Foods are digested differently so one needs to know which foods are compatible with one another.  For example, poultry (including eggs), should not be eaten with dairy (such as milk and cheese).  Similarly, dairy should be eaten separately from fruits.  Fruits should be eaten alone, and not served on top of cereal or baked into bread or muffins.  Grains, including wheat and rice, combine well with beans, vegetables, meat, nuts, eggs and cheese.

If one’s agni is strong, the rules can be followed less stringently.  If one’s agni is poor, incompatible food combining can result in incomplete digestion.  The body is not always easily able to eliminate undigested food.  Accumulated over time, undigested food becomes a toxin called Ama.  

Ama is cold, dull, wet, heavy and viscous.  Ama can result in indigestion, fatigue and cloudy thinking.  Ama accumulation can be seen on the tongue.  A clear tongue, free of a white or brown coating, can be an indication of good agni.  A coated tongue may be a sign of ama in the body.  Ama can collect into the deep tissues and, if not addressed, can result in weight gain, dullness and ill health.

According to Ayurveda, food will absorb the ambient energies.  You can improve the quality of your digestion, therefore, by being mindful of your thoughts as you cook and eat.  Be fully present and emotionally grounded while handling food.  

Don’t argue or entertain disagreeable thoughts while cooking and eating.  And never criticize your food.  Your food fuels your activities, your thoughts and your feelings.  It also is incorporated into your tissues including the mind.  If you don’t like a particular dish, then finish it quietly or put it aside.  

You can improve your digestive fire by consuming simple, fresh and tasty meals.  Think positive, good thoughts while you cook and eat your meals.  Put off unpleasant topics for another time.  

Kindle your agni with Agni Tea:

1 quart water 
1 pinch cayenne 
2 handfuls minced fresh ginger root 
2 Tbs. cane sugar or other sweetener 
1 to 2 tsp. rock or sea salt

½ a lime, squeezed

Put the first 5 ingredients in a pot and boil for 20 minutes.  Add the lime juice and enjoy.

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This article is for entertainment purposes only and is not to be used to diagnose or treat illness.  

The Power of Breath

By: Susan Borecki, Esq.* 

“Wisdom is not acquired save as the result of investigation.” – Sankara Charya

Where did that button go?  That bright red button that opens up the hole in the courtroom floor.  It was right here a minute ago, wasn’t it?  It was under a folder, maybe.

I practice criminal law in Washington, DC.  My job is representing the accused.  I do my best to challenge the prosecutor, her witnesses, her theory, and her evidence.  If I am lucky, I also have witnesses, a theory and evidence to present.  But I am not normally so lucky.  

I attended a CLE in the early 90s called, “Only the Strong Survive.”  One of the presenters discussed the Red Button.  It was somewhere on the defense table, but was mostly elusive.  Usually, the best one could hope for is the court reporter to ask for a break.  

The presenter of this class gave a lot of pointers on preparing to defend the indefensible, how to bolster your client’s and your own confidence.  One tip I remember was labeling your trial binder with the client’s name emblazoned in large bold letters on the cover and spine.  Things you could do ahead of time so maybe you had a lot of distractions that you wouldn’t think about the red button.

But a CLE is not usually the place to look for solutions to mental or professional crises.  We have to find those elsewhere.  I did.  Let me share it with you here.

Meditation is the quieting of the endless chatter in the mind.  It is the attention to the breath that helps move one’s consciousness away from the mundane details that keep us busy and distracted.  

It’s a few moments of discipline leading to peace.  Over time, with practice, meditation stills the mind.  It gives one the confidence to find the necessary momentum, to pivot, whether it is standing one’s ground or ceding it with grace.  

The gap between two breaths contains a universe of possibilities.  

So, let’s get started.  Sit comfortably and breathe in (you didn’t need me to tell you to take off your mask, right?).  Breathe out.  Breathe out through your mouth, pushing the air out from your diaphragm.  Breathe in again, this time more deeply.  

If you haven’t closed your eyes yet, close them now.  Breathe in from your nose, filling your lungs.  Pause, if only for a nanosecond, then breathe out, again through your nose.  Give yourself the pause.  Continue breathing in and out like this for a few minutes.  Some people go for hours, but a few minutes once or twice a day is fine.  

Center your attention around your breath.  Thoughts may arise in your mind.  Ignore them.  They will drift by.  If they are important, they will be there when you are done.  Keep to the simple task of relaxing and breathing until you are done.

The answer to panic is the emptiness between breaths.  The breath can lead to space and clarity.  There is no reason to disappear.  Instead, transform and refresh by centering yourself.

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*The author has been a student of Ayurveda and its related disciplines for as long as she has practiced law. Her specialty is criminal law, and she has prevailed in a number of high profile and precedent setting cases. 

An Immigrant Woman’s Odyssey: Domestic Violence in America

By: Iqra Sheikh, Esq.*

Settling in America

Maryam [1] was born and raised in small rural community in Asia. In her country’s culture, the siblings of one family are often married to the siblings of another family, in order to strengthen family ties and preserve the family’s wealth. Women in the community were also taught that this system would also reduce domestic violence; for if a man were inclined to beat his wife, he would be reminded that her brother was married to his sister and could retaliate accordingly.

Neither Maryam nor her husband received any formal education, and both spoke the local ethnic language of their country, rather than the national language spoken by the elite. Nonetheless, Maryam and her husband immigrated to America, hoping as all immigrants do, to make a better life for themselves in the new world. For years they worked the night shift at a convenience store together; saving money to purchase their own franchise outlet, enabling them to accumulate wealth beyond their highest expectations. Despite their financial success, the couple remained childless; much to their sorrow and that of their families.                              

Cultural Norms Follow

Although their family overseas began pressuring Maryam’s husband to take a second wife, Maryam was shocked when her husband called her from a trip back to their home country and informed her that he had married again. By the time Maryam’s husband returned to America, his second wife was expecting their first child, while Maryam was still married to him.

Maryam’s husband, upon returning from his overseas trip with his second wife, had also changed in his conduct towards Maryam. He had become not only abusive but demanded that Maryam agree to a divorce and return to their home country. Maryam now found herself in a precarious position. She had no home to return to and lacked independent finances. As a divorced woman, she would also be shunned by her family and relatives.

Faced with a legal quandary of his own making, Maryam’s husband became physically abusive. His violent temper became increasingly physically dangerous, leaving Maryam with black eyes, a bloody nose, and broken limbs. With no one to turn to, she suffered in silence.

Maryam and her husband associated mostly with fellow immigrants from their home country; most of whom believed that spousal abuse was a private family matter. One learned from the old country experience, never to involve the authorities in family matters. Further, despite her many years in the United States, Maryam still had limited English skills. Relying on her husband to communicate with the outside world, manage their money, and secure their legal immigration status.

She had no grasp of her legal rights or the governmental options at her disposal, even if she had been able to communicate her needs in good English. Fearing for her life, Maryam fled her husband, staying with and relying on the charity of close friends. Her friends, however, similarly lacked the legal knowledge to assist Maryam or the language skills to advocate on her behalf.                                       

Immigrant Women and Domestic Violence

Domestic violence is not only an immigrant problem, but immigrant victims of domestic violence—many although not all women—face unique hurdles and challenges that limit their ability to seek redress. While sensationalist stories of acid attacks and honor killings in immigrant communities often garner the most media attention, most forms of domestic violence go unreported. Statistics on domestic violence involving immigrant groups are incomplete and unreliable; even though more than ten million people a year, many of these are women, are victims of domestic violence in the United States annually.

Immigrants, however, experience higher rates of domestic violence than the native-born population; largely because the social drivers of domestic violence can be particularly prevalent in immigrant communities. Some studies show that nearly 50 percent of immigrant women have experienced domestic violence and that in some cities in this country nearly 50 percent of domestic violence homicide victims are foreign born.

Immigrant victims of domestic violence are soft targets because of their delicate immigration status and may also fear law enforcement because of their experience in the countries from whence they came. Many spousal abusers also threaten to deport their victims if they complain and keep the children as hostages. Economic dependency on an abuser, and the economic consequences that can follow if the abuser is arrested, are motivating factors that lead abused spouses to maintain their silence in immigrant communities. Especially if the immigrant women are in the country illegally.

Many immigrant victims of domestic violence and abuse may also have high threat perception from police officers; particularly if they come from countries where law enforcement is routinely abusive towards civilians or indifferent to sexual and gender-based crimes. This threat perception may be exacerbated by their fear of deportation. Spousal abusers often exploit these fears.

Unfortunately, some of these concerns may be warranted: in a 2015 study by the American Civil Liberties Union (“ACLU”) found that of 900 immigrant domestic violence and sexual assault victims, 88 percent of respondents said that police often or sometimes do not believe the victim or blame the victim for the violence and 83 percent said that police often or sometimes do not take allegations of domestic violence and sexual assault seriously.

Another 51 percent of them said police are often or sometimes biased against immigrants and 69 percent said that police are often or sometimes biased against women. Sixty-one percent of the respondents said that reporting domestic violence or sexual assault to the police could trigger criminal charges that could lead to deportation. .

Many immigrant women like Maryam are unaware that the U.S. legal system can grant them primary custody of the minor children, spousal and child support from their abuser, protection orders to prevent their abusers from threatening them, and the right to file criminal charges against their abusers, without fear of deportation. Fewer still know how to secure legal assistance from pro bono legal clinics and volunteer attorneys.  Like Maryam, they are often at the mercy of their spousal abusers.                                               

Needs of Immigrant Women

Immigrant victims of domestic violence, if they complain, also risk ostracism by their family and community. Volunteer counsel must be taught to grasp the social and cultural challenges of the immigrant abused spouse. Lacking such training, they can appear callous and indifferent to someone like Maryam. A grasp of the cultural diversities of our society is needed by today’s legal professional. Her needs also entail language and norm value hurdles that she needs to surmount.

Even if Maryam were to surmount many of these hurdles, she could face threats to her physical safety and that of her family back in the old country. Domestic squabbles have been known to spark blood feuds and violence between families. The legal challenges extend beyond staying in the country without being deported or having custody of the children. They can take on a sinister format that calls for the volunteer attorney to be sensitive not only to the client’s legal needs, but also the cultural barriers and challenges that the client faces. No easy task.

Lack of adequate translation services is particularly acute in the rural areas of this country, and victims may be forced to rely on their young children to act as translators, which can often compound the trauma children of an abusive marriage face. Concern of getting the children involved will sometimes muzzle a victim’s voice and stifle her ability to tell her story and seek redress from the authorities. Maryam, while having no children, nevertheless, faces many of the same challenges.                                                           

Summary

Although lack of access to justice can be debilitating for immigrant women who are the victims of domestic violence, legal assistance can benefit them greatly and reduce their abuse. As many survivors’ report, the most frightening part of domestic abuse for an immigrant spouse like Maryam is the reality that one cannot escape from the abuser or get help from the authorities. Especially like Maryam, a feeling that their life in America has turned into a nightmare. Leading some to commit harm to themselves and their children in response to the pressures that they face.

Volunteer attorneys have the power to not only provide legal assistance to their clients, but also to end the most frightening part of their ordeal by giving them control over their lives, and the option to leave the spousal abuser on their own terms; without fear of continued physical abuse. With legal assistance, Maryam can leave her abusive husband without fear, and before the vicious circle he has created can lead to the loss of her life.  Her need is dire. Her American dream need not end in a nightmare.                                                                                       ______________________________________________________________________________

*The author is a Virginia lawyer who is both familiar with the challenges that immigrant women face, and who volunteers of her time to assist the victims of domestic violence within immigrant communities in the United States.

1. The name Maryam is fictional character. A composite of the abuses and suffering that many immigrant women undergo daily, because of norm-value systems that has followed them to this country.

Available Resources

Attorneys who, while not familiar with the plight of immigrant women, who seeks to assist, can find help in some of the resources listed below:

  1. Legal aid organizations including, but not limited to: Legal Services of Northern Virginia, Legal Aid Society of Eastern Virginia, Central Virginia Legal Aid Society, and Blue Ridge Legal Services.
  2. Immigrant legal service organizations including, but not limited to:  Ayuda, Capital Area Immigrant Rights Coalition, Hogar Immigrant Services, and Just Neighbors.
  3. Domestic violence organizations, including, but not limited to: The National Domestic Violence Hotline.

LGBTQ+ CLIENTS IN TODAY’S LEGAL CASES

                                                         by Julie Currin, Esq.

        To begin to learn more about this diverse community, I did several immersion exercises.  I took a few days to binge-watch all the current episodes on the NETFLIX series “Queer Eye”.  In this series, five fabulous gay and/or transgender men help a nominated “hero” take a step forward in self-esteem, fashion, grooming, and furnishings.  Recently, they worked in Japan which added a new cultural dimension to the prior stories based in Philadelphia, PA,  a couple of Georgia cities, and a few more places in the Southeast United States.  I also read a Gender memoir by Jacob Tobias called “Sissy” about growing up gender non-conforming and nonbinary.  I attended a web-based continuing legal education program for LGBTQ+ Visibility Week on Seminal LGBTQ+ legal cases in the U.S. and U.K. and I did online research for tools used by clinicians with this population.  

        My study was designed around several same-sex marriages that were just now beginning the process of divorce in Virginia.  I wanted to find out the historical background of our clients to include family makeup, religiousness, coming out narrative, activism, trauma assessment (PTSD), basic alcohol screening and where indicated, suicide risk.  Then I wanted to answer two questions for use by the law firm where I am employed.  First, did the client feel accepted and treated with respect?  And second, how did the client feel the legal system was working for them as these are some of the first same-sex marriages interfacing with Virginia’s divorce laws.  

        Same-sex marriage became legal in Virginia on October 6, 2014, in the U.S. Supreme Court’s refusal to hear an appeal in the Fourth Circuit Court of Appeals case of Bostic v. Schaefer.  Yet it wasn’t until February 2019 that the Virginia General Assembly passed a bill to explicitly and legally include surrogacy contracts for same-sex couples.  In these intervening years, no changes were made to divorce law in the Commonwealth that might specifically address specific LGBTQ+ case differences.  So how is the old law working for same-sex couples in divorce?

        D, a 25-year-old white male who identifies as homosexual was born in Georgia.  He described his childhood as “traditional” although his parents were unmarried.  He attended church in his early years but did not feel his family held any strong religious beliefs.  He spent developmental years 6-12 in a group home along with 2 maternal brothers and one sister due to his mother’s mental health issues.  It was only after many narrative questions, when an open-ended catchall inquiry was made, that molestation by a maternal uncle at age 4-5 and by a teenage boy at age 6 was disclosed as “maybe impacting his sexuality.”  D is in the Navy and did not self-identify as gay until approximately 16.  He hid this since he attended a “ghetto” school which he defined as a lot of fights, nearby gunshots, and violence.  He first came out at 19 and first told his father at the age of 20.  He waited longer because his Dad had made unaccepting comments about a lesbian step-sibling and he felt he would be kicked out of the house.  He told his father when he was leaving for boot camp and so was out of the house.  His father was upset and took months to get over it.  His mother was more accepting, as were a younger half-brother and a maternal aunt.  He does not feel that his Navy career has been impacted by this life choice.  He presented as very easy-going, described himself as a “clean freak” who generally laughs off or lets slide offensive gay slurs or jokes.  He did not scale for alcohol abuse, briefly overusing at home between 20 to 22, nor for PTSD or suicide risk.  He does not engage in activism.

         The AUDIT-C or Alcohol Use Disorders Identification Test-Concise was utilized for all participants.  I also used the PCL-C or PTSD Checklist – Civilian Version and standard questions about suicidal ideation, any prior attempts, and current thought patterns.

        The main reason D feels his marriage did not last had to do with his mate not making the effort to be included in D’s extended family and feeling financially taken advantage of.   He did not feel in any way judged by the staff at our law firm nor did he feel that the legal system was working any differently for him than a straight couple.

        Having been the attorney working with D, these were not surprising results.  However, the late in the interview disclosure of youthful sexual exploitation made me aware of how important open-ended catchall questions can be in a narrative approach.

        My next participant was E, a 32-year-old Black Navy man born in Kingston, Jamaica.   E told me that childhood abuse was normalized in Jamaica during his early years.  He described being beat with paddles and belts.  He felt his father beat him more because he liked boys and tried to “beat it out of him” including hitting him with tree limbs, throwing stones at him, and punching him in the stomach.  He recognized his sexuality early at age 5 or 6, had his first experiences about 11 or 12, and at the age of 14 came out and was rejected by both parents initially.   One sister was accepting.  He feels he had to hide his inner self and be hypermasculine which caused great psychic stress culminating in two suicide attempts in his early twenties. Even now, E experiences psychosomatic reactions.  He said it is not easy being gay and Black, that it is stressful.  He struggles with self-acceptance and feeling worthy of God’s love as a result of his family upbringing and religious indoctrination. These are still impactful.  He does not abuse alcohol.  He feels African-Americans are less tolerant of homosexuality and that the church is hypocritical.  Because he is in the military, he continues to have to restrain his normal reactions to gay-bashing and feels that overt instances of public discrimination have increased under the current President.  He has symptoms of PTSD.  He uses exercise as a coping mechanism.

        E is married to a Muslim born in Senegal who has not come out yet to his family.  He feels two masculine gay men have a harder time making a relationship work like his marriage.  Although they began a divorce, E and his spouse are pausing in that process to try to work things out.  He felt accepted and not judged coming to our law firm for help.  He does not perceive at this stage of litigation that the legal system has treated his case any differently.  He would like me to interview his spouse.

        S is a 47-year-old white Bisexual female born in California.   She is highly educated and very verbal.   She describes herself as a “nerd jock.”  She has a degree in Psychology and teaches middle school health science/gym.  S has had significant relationships with men but leans more toward women.  She too has a military background.  She felt the need to hide her sexual identity when stationed overseas and when teaching in rural Virginia.  She feels accepted at the school where she teaches now.  She did not have a strong religious upbringing.  She did not screen in for alcohol abuse.  She does have symptoms of PTSD, including memory problems when highly stressed, anxiety and depression.  

        S married cross-culturally, an Asian woman with medical issues and raging tantrums.  After 9 years together and despite couples counseling and in-home separation, the parties are in an acrimonious divorce at this time.  There are accusations of adultery and domestic violence.  S feels the Courts treated her request for a protective order differently than in male/female cases.  Although she felt accepted at our firm, she feels her case is not progressing in the same way traditional couples divorcing would.  She feels the length of time it’s taking is traumatic and wonders if her attorney is making the same efforts, filing the same paperwork, pushing as hard in her case as in straight divorces.  She is interested in reading the final study paper.

        I had hoped to include one more female participant in this first grouping but was not able to schedule the interview before the deadline for this paper.  Nor do I include the first interview I reported because it was not as in-depth and did not have the benefit of the tools used in these three cases. Nor was I as immersed in LGBTQ+ issues at the time that I met with the first person.  

        As the first foray into these issues suggests, there is much we can learn about treating our LGBTQ+ clients with understanding and respect.  The truth is that we are “counselors” of law and when we identify issues that impact our client’s directly and potentially their cases, we have a duty to advise.  This could go so far as to take the form of a referral for professional counseling assistance but at minimum, we should be including additional questions in our intake documents and interviews to be better stewards of equal justice for all.

Julie Currin, Esq., is an attorney in Virginia Beach.

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