Editor’s note: This story contains explicit descriptions of abuse.
Essex resident Brianna Yarnell is mother, sports fanatic and celebrated blogger for the parenting website Vermont Moms. She is also a survivor of domestic and sexual violence and, this legislative session, has used her story to advocate for a new survivor protection bill in the Statehouse.
H.45 proposes a specific protection many might not be familiar with: protection from abusive litigation. That’s when someone filing a suit against another person has been convicted of stalking, abusing or sexually assaulting the other party. The same applies to members of the plaintiff’s household or family.
It’s an issue Yarnell said she knows too well. “I’m trying to speak up now because I am safer than I was before and safer than a lot of survivors,” said Yarnell in an interview with Community News Service.
H.45 allows for lawsuits to be dismissed if the court finds by a preponderance of the evidence that a party is engaging in abusive litigation as characterized by the plaintiff’s history of abuse against the defendant. The bill has already passed the House and has left the Senate Judiciary committee with a favorable vote, waiting for final floor approval. Yarnell was one of several people who gave testimony on the proposal to committee members.
To Chief Superior Court Judge Thomas Zonay, who oversees Vermont’s trial courts, the bill is “really a focused attempt to provide a level of protection when the rules of civil procedure and the rules of family procedure weren’t designed to really address this type of conduct,” as he told the Senate judiciary committee April 27.
Yarnell spelled out in testimony April 14 and in an interview the toll taken when, she said, her abusive ex began taking her to court for a litany of legal complaints.“In my case, it had particularly been financial abuse because I have had to retain a lawyer for over a decade, but it can also be emotional abuse and just harassment basically,” she said in an interview, adding that over the past 12 years, Yarnell and her husband have spent more than $40,000 and counting in legal fees.
Yarnell’s story with the court system began in March 2011. Her son was 8 weeks old, and Yarnell had survived a near fatal domestic assault. Even after that initial trauma, Yarnell told legislators that she was stalked, raped and forced to send her infant for unsupervised visits to her ex, the boy’s father. “Even with a protection order in place, I did not trust that my son and I were safe,” Yarnell said in her testimony.
Yarnell described litigation abuse taking many forms over the next decade. First, she said, her abuser filed in court to drop the relief from abuse order against him, then for partial custody of their son, then for sole custody. If Yarnell considered changing their custody order, she said, harassment and threats would follow. Only when her abuser fled the state in 2019 did she feel comfortable filing for sole custody of her son, she said.
Despite Yarnell having experienced temporary homelessness and food insecurity, she said, she had to hire legal defense or risk losing custody of her son or her own security. She said she worked 50 hours a week to pay for the legal fees and lost a job due to missed time for meetings with her lawyer and court proceedings.
“Even years after climbing my way back from homelessness, job loss and poverty, I’m still vulnerable to all of those hardships because of the ongoing financial burdens,” said Yarnell in testimony.
The problem to Yarnell, she said later in an interview, is that “it’s all ‘legal’ because the abuser is just exercising their constitutional right to file within the court.”
She hopes the bill can save survivors from facing that kind of financial and emotional burden.
The proposal, she said in an interview, “is a good foundation. It doesn’t cover everything, but nothing will.”
Sen. Dick Sears, D-Bennington, raised a question in committee about whether H.45 is needed when there’s an existing rule allowing judges to throw out cases they deem petty or frivolous.
Zonay, the chief administrative judge, told Sears that the rule “has not provided the mechanism for this particular category of individuals with a level of clarity for all the judges and for all the litigants to know this is out there as a mechanism to protect.”
Yarnell, who wasn’t in the committee room to answer that concern directly, responded in an interview: “If it has already gotten to a judge, the victim is already experiencing abuse. They still would need to have a lawyer to represent them — they are still being served by their abuser.”
And Yarnell said she is wary of trusting judges to consistently protect people who’ve been abused. Vermont judges, in her experience, “are absolute wild cards, all of them,” she said, and “things that should never happen, happen.”
Yarnell said parrying legal claims from her ex has been life-altering for her family. “I wonder how different my son’s life would be if we had the opportunity to spend this money in a more positive way, instead of continuing to fight for our safety and protection,” she said in her committee testimony.