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«GOODMARK.7.11.2008 7/16/2008 12:44:53 PM When Is a Battered Woman Not a Battered Woman? When She Fights Back Leigh Goodmark† INTRODUCTION I. THE ...»

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GOODMARK.7.11.2008 7/16/2008 12:44:53 PM

When Is a Battered Woman Not a Battered

Woman? When She Fights Back

Leigh Goodmark†

INTRODUCTION

I. THE IMPORTANCE OF NARRATIVE

A. Narratives and the Law

II. THE PARADIGMATIC VICTIM AND HER SILENCED SISTERS

A. The Paradigmatic Victim Is Passive

B. The Paradigmatic Victim Is White

C. The Paradigmatic Victim Is Straight

III. THE STORIES OF WOMEN WHO FIGHT BACK

A. African American Women Who Fight Back

B. Lesbians Who Fight Back

1. Why Battered Lesbians Don’t Ask Outsiders for Help........... 105

2. Battered Lesbians Are Unlikely To Be Believed

3. Access to Resources To End the Violence

4. The Legal System and Battered Lesbians

IV. THE IMPORTANCE OF OWNING NARRATIVES

A. Editing the Stories of Women Who Fight Back

B. Voice and Validation

C. Narrative Reconstruction: Implications for Advocates.................. 119 V. REWRITING THE VICTIM NARRATIVE

CONCLUSION

† Associate Professor, University of Baltimore School of Law. Stanford Law School, J.D 1994; Yale College, B.A. 1991. This paper was presented at the SEALS New Scholars Workshop in July 2006 and at the AALS Clinical Legal Education Conference Works-in-Progress session in May 2007. My thanks to Odeana Neal, for clearing the way, to Nancy Levit, for her tireless editing and continual support of this piece, and to Margaret Johnson, Jane Murphy, and Evan Stark for their comments and critique. The staff of the Yale Journal of Law and Feminism, particularly Emily Chapuis and Emma Alpert, have made an enormous contribution to this Article. They are wonderful collaborators. All mistakes are, of course, mine. Kristen Ross provided essential research assistance and many good ideas.

Copyright © 2008 by the Yale Journal of Law and Feminism GOODMARK.7.11.

–  –  –

“I will not allow him to beat on me,” the woman stated.1 The judge hearing her petition for a temporary protective order seemed skeptical of her explanation: After her partner assaulted her, she hit him back to stop him from battering her further. While she was clear and truthful about having fought back, she continued to insist that she was the victim of the assault, that his violence was vastly disproportionate to hers, and that she needed the assistance of the court to ensure her future safety. The judge expressed disbelief: Why would a woman who fought back need protection? Why should he find her eligible for a remedy that is intended to stop violence when she had admitted to violent behavior? The advocates in the courtroom grimaced at the exchange— you never let a client tell a judge that she fought back unless it is absolutely necessary.

Ultimately, after much back and forth about what exactly she had done, the judge granted the woman a temporary protective order. Given the lesser burden of proof required for temporary order—as opposed to final protective orders— and the ex parte nature of the hearing,2 his decision was hardly surprising. But if that petitioner were to tell the judge hearing her request for a final protective order the same story she had shared with this judge, the odds are good that her petition would be denied. She simply would not have looked enough like a victim to be believable.3 Over the past thirty years, the public, the media, and the legal system have coalesced around a stereotypical image of victims of domestic violence. Before the birth of the battered women’s movement, the assumption was that domestic violence happened to “them”—poor African American women who lived in slums.4 Advocacy by the battered women’s movement around the idea that domestic violence is endemic to all races, ethnicities, religions, and

1. This story is based on a specific encounter I witnessed and recorded one morning in the District Court for Baltimore City, Maryland, but have observed many times before.

2. See, e.g., MD. CODE ANN., FAM. LAW § 4-505 (West 2008) (describing the temporary protective order process). Like most states, Maryland has a two-stage process for protective order proceedings, the first of which is ex parte. See Catherine F. Klein & Leslye E. Orloff, Providing Legal Protection for Battered Women: An Analysis of State Statutes and Case Law, 21 HOFSTRA L. REV. 801, 1035-37 (1993) (describing the legal standard required to issue ex parte temporary protection orders).

3. In her study of battered women and narrative, Elaine Lawless describes a reshaping process that begins from the moment a woman who fights back reaches shelter and tells her story to shelter staff and

residents:

The warnings of the staff, the advice of the other residents, the interjections of the counsel who leads the support group that night, and the court advocates who work closely within the ‘system,’ all point to one imperative. She must not tell her story, or at least she must not tell the story the way she’s been telling it here, in the shelter, for the past few hours and days.

ELAINE J. LAWLESS, WOMEN ESCAPING VIOLENCE: EMPOWERMENT THROUGH NARRATIVE 48 (2001).

4. LENORE E. WALKER, THE BATTERED WOMAN 21-22 (1979) (describing the myth that poorer and minority group women are battered more frequently than middle class or “Anglo” women).





GOODMARK.7.11.2008 7/16/2008 12:44:53 PM 2008] When Is a Battered Woman Not a Battered Woman? 77 socioeconomic brackets, coupled with the introduction of “battered woman syndrome” and its reliance on the theory of learned helplessness to explain why battered women remain in abusive relationships, changed the portrait of the victim of intimate partner violence.5 The image of a victim of domestic violence morphed from a low-income woman of color to a passive, middleclass, white woman cowering in the corner as her enraged husband prepares to beat her again. This woman never fights back. Because this woman is the one who lawyers want to present and judges expect to see in their courtrooms, women who fight back are at a distinct disadvantage when they turn to the civil legal system for assistance. The battered woman who fights back simply is not a victim in the eyes of many in the legal system.

Who fights back? Unsurprisingly, women who fight back are those with the fewest other options for addressing the violence against them. They are women who lack access to resources, women who may be afraid or unwilling to turn to the police or other professionals for assistance, and women whose marginalized status may deprive them of the ability to make choices other than retaliation. They are women who may be conflicted about turning to the civil legal system and who find that when they do, and when they are honest about how they have defended themselves, they are penalized for exercising one of the few options open to them to prevent or escape from an assault.

Listening to the exchange described at the beginning of this Article, the advocates grimaced because they knew that once the judge heard that the woman had used force, her credibility would be sharply questioned.6 Concerned about how it would affect her ability to secure a protective order, many, even most, advocates would have dissuaded her from telling that story, editing it to prevent questions about who was the primary aggressor and whether she actually needed protection. The advocates would have counseled her to change her story—not to lie, but to tailor it more narrowly given the objective she sought.7 In doing so, they would have denied her reality, her truth and her voice.

This Article looks at the conflicting narratives of victims of domestic violence who ask the civil justice system for assistance. It first discusses the importance of narrative in the construction of identity, both in constituting one’s self and in determining how that self is presented to the world. It then juxtaposes the prevailing narrative of the domestic violence victim—the passive, middle-class white woman—against the narratives of women who

5. See infra Part II.

6. Battered women find their credibility challenged on a number of different dimensions: as women, as women of color, as women alleging violence, and in cases that rely almost exclusively on sorting out conflicting testimony. See infra Part III.

7. As Mary Coombs recognizes, “That natural and appropriate desire to win one’s case...

inevitably colors the way the case is presented and heard.... [T]he story is likely to be crafted, within the limits of the factors, to resonate rather than clash with the fact finder’s cultural script.” Mary I.

Coombs, Telling the Victim’s Story, 2 TEX. J. WOMEN & L. 277, 278 (1993).

GOODMARK.7.11.2008 7/16/2008 12:44:53 PM

78 Yale Journal of Law and Feminism [Vol. 20:75

fight back. The Article argues that victims of violence are encouraged to tailor their stories as closely as possible to the prevailing narrative to persuade the legal system of their need for protection, and presents the consequences both for victims and for their advocates in constructing narratives that deny women the right to defend themselves. The Article finally asks how the construction of the victim of domestic violence can be reframed to enable women who fight back to tell the stories they choose to tell.8

I. THE IMPORTANCE OF NARRATIVE9

From earliest childhood, narratives are how we understand and order the world around us. As psychologist Jerome Bruner explains, children begin using narratives at three and four years old to organize their experiences: “They are not able to bring theories that organize things in terms of cause and effect and relationships, so they turn things into stories, and when they try to make sense

8. Before I began working on this Article, I was concerned about the appropriateness of a white, straight woman telling the stories of African American women and lesbians. bell hooks has stated, “When we write about the experiences of a group to which we do not belong, we should think about the ethics of our action, considering whether or not our work will be used to reinforce and perpetuate domination.” BELL HOOKS, TALKING BACK: THINKING FEMINIST, THINKING BLACK 43 (1989). Richard Delgado has similarly warned legal scholars that when white scholars write about subordinated groups, the writing may suffer “from a failure of empathy, an inability to share the values, desires, and perspectives of the population whose rights are under consideration,” and he suggests that white authors move on to other topics. Richard Delgado, commentary, The Imperial Scholar: Reflections on a Review of Civil Rights Literature, 132 U. PA. L. REV. 561, 568 (1984). Battered women also share this

skepticism:

When I read [the advertisement for a study of African American battered women], I thought “Here’s another White woman researcher from the University of Washington who wants to come to our community and get into our business!” They always come to our communities to study us and you never hear from them again.

Janette Y. Taylor, No Resting Place: African American Women at the Crossroads of Violence, 11 VIOLENCE AGAINST WOMEN 1473, 1478 (2005). Joan McClennen discusses her “journey as a stranger in a foreign land” as a straight woman investigating violence in the lesbian, gay, bisexual, and transgender communities, and offers strategies for doing meaningful work as a nonaffiliated researcher.

Joan C. McClennen, Researching Gay and Lesbian Domestic Violence: The Journey of a Non-LGBT Researcher, 15 J. GAY & LESBIAN SOC. SERVICES 31, 32 (2003). I have tried to heed these criticisms and to rely heavily on the work of battered women, African American women, and lesbians to inform my analysis. I have also relied on my own experiences, however, having listened to the stories of hundreds of women in the context of protective order and other civil family law proceedings. This is, in part, my story as well, the story of an advocate who has been leery of presenting non-conforming narratives of women who fight back to courts.

9. I use the terms “narrative” and “story” interchangeably in this Article, although I realize that others define those terms far more precisely. See, e.g., JEROME BRUNER, ACTS OF MEANING 43-52 (1990) (outlining the characteristics of a “narrative”); Jane B. Baron & Julia Epstein, Is Law Narrative?, 45 BUFF. L. REV. 141, 145 (1997) (arguing that the terms “narrative” and “story” require clear definition). But see Robert L. Hayman, Jr. & Nancy Levit, The Tales of White Folk: Doctrine, Narrative, and the Reconstruction of Racial Reality, 84 CAL. L. REV. 377, 399 (1996) (book review of RICHARD DELGADO, THE RODRIGO CHRONICLES: CONVERSATIONS ABOUT AMERICA AND RACE (1995)) (using “narrative” and “story” interchangeably, and noting the imprecision and fluidity of the terms); Theodore R. Sarbin, The Narrative as a Root Metaphor for Psychology, in NARRATIVE PSYCHOLOGY: THE STORIED NATURE OF HUMAN CONDUCT 3, 3 (Theodore R. Sarbin ed., 1986) (using “narrative” and “story” coterminously).



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