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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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Id. at 44. See also GIRSHICK, supra note 80, at 139 (“When women in same-sex relationships seek legal avenues, they take a public risk of exposing themselves to homophobia, biphobia, and harassment....”). Lundy argues, however, that refusing to use the system both compromises the safety of victims and concedes victory to those who would keep victims of same-sex domestic violence from using the system. Lundy, supra, at 44-45.

237. Lundy, supra note 236, at 49-50.

238. Morrison, supra note 77, at 147 n.300 (referring to a “well-known story within the community of advocates working against same-sex domestic violence in the San Francisco, California area during the mid to late 1990s”).

239. Lundy, supra note 176, at 296-97.

240. RENZETTI, supra note 77, at 92.

241. Lundy, supra note 236, at 51; see also Lundy, supra note 176, at 294 (“[An] attorney... has described the court system as ‘a horror show with a circus-like atmosphere when lesbian abuse cases are brought to court.’”).

242. Dietrich, supra note 177, at 157.

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decision-makers expect to hear. On some level, it doesn’t matter why battered women fight back—only that they do, and that their stories are heard by those in a position to provide assistance. Because theirs is not a story that courts are conditioned to hear, however, it is a story that advocates frequently discourage their clients from telling. Revealing that a battered woman has used physical violence against her abuser may blind the judge to her need for protection.

Advocates thus ask their questions narrowly and prepare their clients carefully, omitting any mention of the force victims use. Victims’ stories go untold in the name of securing a protective order.

So what? Why is this careful tailoring of women’s stories a problem for either the battered woman, whose odds of receiving assistance improve, or for the advocate, who has achieved what she believes to be the client’s goal?

The stories of battered women who fight back are remarkably diverse.

They are stories of fear, frustration, anger, protectiveness, self-image, racism, homophobia, lack of options, and lack of resources. In the hands of advocates, however, those stories frequently get distilled down to the story of the paradigmatic victim, the stock narrative, minus any violence the woman might have done, no matter what her reason. The choice to exclude violence from the narratives of battered women who fight back is logical from an instrumental perspective. But the failure to tell judges the unedited stories of battered women who fight back has ramifications for both battered women and advocates. The inability to tell their stories may prevent battered women from healing and exacerbate doubts about battered women’s credibility. The silencing of battered women’s voices undermines their autonomy and highlights a troubling trend in the battered women’s movement: replacing women’s stories and experiences with professional judgments about what is best for battered women.

A. Editing the Stories of Women Who Fight Back

Battered women who fight back tell stories that judges do not expect to hear. Given this element of surprise, coupled with concerns about judges’ perception of the credibility of battered women—particularly African American women—it is hardly surprising that advocates edit women’s violence out of their stories.

This Article began with the proposition that narratives help us to organize and understand our world.243 Those stories, over time, coalesce around familiar themes and characters, and those stock narratives, or skeletons, frame how we come to view unfamiliar people and situations. Deviating from the stock

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narrative may create cognitive dissonance for the hearer: “New stories, stories not part of the common culture, will... have difficulty being heard.”244 The legal universe is constructed on these stock stories; skeletons “are part of a line of precedent that reflects a universalized narrative.”245 We create similar skeletons of people. “Our culture,” Professor Mark A. Fajer explains, “contains a wide variety of assumptions, both good and bad, about categories of people.

Although not everybody believes in the strongest versions of these assumptions—that every member of the group strongly displays the characteristic—most people understand that our society connects certain traits with certain categories.”246 One obvious connection of a category and a trait in the context of domestic violence is battered women and passivity.

It is hardly surprising that lawyers organize their cases around these stock characters and stories, seeking to situate their clients’ narratives within the skeletons of past successes. The failure to conform can be disastrous for litigants. Pre-existing understandings of group characteristics impede true understanding when a group member exhibits characteristics that are markedly different—like fighting back. In the court context, the inability to overcome a pre-existing understanding of “battered woman” as “passive” could easily preclude the woman who fights back from being able to persuade a judge that she needs protection; the judge would instead create a story that reflects his own beliefs about how battered women are expected to behave, and rule accordingly. The lawyer’s role is to prevent the judge from reconstructing the client’s story in a way that undermines the client’s goals for the representation.247 For a victim of violence, if the goal is to secure a protective order, the lawyer must attempt to persuade the judge of a narrative that fits the narrow bounds of what is actionable under the law. If the woman’s goal is to publicly tell a story that may be difficult for the judge to hear, though, the lawyer’s role might be to create space for that story, notwithstanding the impact on the outcome of the case. One woman’s decision to tell a different story can pose a danger for other litigants as well. As Professor Mary Coombs explains in the context of rape victims, “[U]nsuccessful narrative structures help reconfirm the very... myths that make future cases hard to win.”248 When unconventional narratives are not persuasive, later litigants who tell similar stories may find it difficult to prevail.

244. Id. at 435.

245. Christopher P. Gilkerson, Poverty Law Narratives: The Critical Practice and Theory of Receiving and Translating Client Stories, 43 HASTINGS L.J. 861, 911 (1992). These narratives have traditionally been told from a white, male perspective. Regina Graycar, The Gender of Judgments: Some Reflections on “Bias,” 32 U.B.C. L. REV. 1, 4 (1998).

246. Mark A. Fajer, Authority, Credibility, and Pre-Understanding: A Defense of Outsider Narratives in Legal Scholarship, 82 GEO. L.J. 1845, 1847 (1994).

247. Coombs, supra note 7, at 289.

248. Id. at 291.

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Battered women enter the courtroom at a disadvantage. Social science research establishes that women are generally perceived as less credible than men (and occasionally, as no more credible than children).249 The claims of battered women are viewed with a great deal of suspicion; the credibility of battered women is challenged at every turn. Judges often share their cynicism about battered women’s claims with their colleagues; the judicial grapevine buzzes with the received wisdom that women seek protective orders only to gain advantage in divorce and custody proceedings.250 The materials produced to aid judges with their determinations reflect this incredulity; in one bench book dedicated to family law matters, judges are told to view the claims of battered women with a healthy dose of skepticism.251 While it is rare to see such advice in print, advocates and judges have both described the disbelief with which battered women’s claims are received in certain contexts.252 Judicial doubt intensifies when women describe how they fight back against their abusers. While the stories that clients tell their lawyers “reveal a broad spectrum of human character,”253 stories that challenge judicial preexisting understandings of victim behavior are likely to raise doubts about the victim’s credibility.254 Women who fight back enter the courtroom with their credibility in question by virtue of their failure to comply with the prevailing victim stereotype.255 As evidenced by the stories told above, women who fight back are not seen as needing protection, and their claims are routinely downplayed (particularly in the cases of lesbian victims) or dismissed.

In heterosexual couples, arguments about similarities in the rates of violence among men and women may be at play as well. An entire literature disputing the prevalence of men as perpetrators of interpersonal violence has

249. Ellis & Schafran, supra note 145, at 110.

250. Deborah M. Weissman, Gender-Based Violence as Judicial Anomaly: Between “The Truly National and the Truly Local,” 42 B.C. L. REV. 1081, 1122 (2001).

251. See Martha Albertson Fineman, Domestic Violence, Custody, and Visitation, 36 FAM. L.Q.

211, 218-19 (2002); Susan Scott, Judge, Superior Court of N.J., Advocating for Victims of Domestic Violence, Panel Discussion at Rutgers Law School (Oct. 7, 1998), in 20 WOMEN’S RTS. L. REP. 73, 76Joan S. Meier, Domestic Violence, Child Custody, and Child Protection: Understanding Judicial Resistance and Imagining the Solutions, 11 AM. U. J. GENDER SOC. POL’Y & L. 657, 662-63 (2003) (arguing that judges are skeptical of battered women’s claims in custody cases); Susan Scott, supra note 250, at 76 (describing the belief of judges that women may lie in protective order hearing proceedings to evict men from their homes).

253. Binny Miller, Give Them Back Their Lives: Recognizing Client Narrative in Case Theory, 93 MICH. L. REV. 485, 525 (1994).

254. Fajer, supra note 246, at 1863.

255. Kohn, supra note 33, at 734, 742; see also Carolyn Copps Hartley, “He Said, She Said”: The Defense Attack of Credibility in Domestic Violence Felony Trials, 7 VIOLENCE AGAINST WOMEN 510, 539 (2001) (“[I]f jurors accept the commonly held myths about domestic violence... they may ‘fill in the blanks’ with an unrealistic view of the violent relationship, and their evaluation of the evidence may be based on misconceptions and prejudices....”). As Mary Coombs notes, “The range of ‘credible’ stories is narrower than the range of true ones.” Coombs, supra note 7, at 280.

GOODMARK.7.11.2008 7/16/2008 12:44:53 PM 2008] When Is a Battered Woman Not a Battered Woman? 117 emerged;256 some see this literature as a backlash against the gains that the battered women’s movement has made over the past thirty years.257 Backlash or no, doubters have succeeded in pressing the public case for proportionality— the proposition that within relationships, men and women are equally violent.258 Despite the reasoned responses to these claims (that men’s violence is more serious, more damaging, and more likely to be a means of controlling their victims),259 those preaching proportionality have made some inroads into society’s understanding of what interpersonal violence is. When judges with whom the proportionality argument resonates hear that women have fought back, they may be likely to simply categorize those women as violent, rather than exploring the context for women’s violence and the justification for its use.

Given the private nature of domestic violence and the frequent lack of evidence other than the victim’s testimony, advocates might be tempted to edit unhelpful details out, “to spin the victim’s demeanor as consistent with the myth of the helpless battered woman” to convince judges of the credibility of women who fight back.260 The failure to reinterpret the narrative in a manner that meshes with a judge’s preconceptions could prevent the client from securing the relief she seeks—the relief that she asked the advocate to help her obtain.261

B. Voice and Validation

The process of coming to court to seek protection is not undertaken lightly by most victims. Having been assaulted by someone she likely loved and trusted, the battered woman then must decide whether to make that violence public by sharing it with court staff, judges, and advocates. She may come to

256. See, e.g., Linda Kelly, Disabusing the Definition of Domestic Abuse: How Women Batter Men and the Role of the Feminist State, 30 FLA. ST. U. L. REV. 791, 794-800 (2003); Murray A. Straus, Women’s Violence Towards Men Is a Serious Social Problem, in CURRENT CONTROVERSIES ON FAMILY VIOLENCE 55 (Donileen R. Loseke et al. eds., 2005); Martin Fiebert, References Examining Assault by

Women on Their Spouses or Male Partners: An Annotated Bibliography,

www.csulb.edu/~mfiebert/assault.htm (last visited Feb. 26, 2008).

257. Walter S. DeKeseredy & Molly Dragiewicz, Understanding the Complexities of Feminist Perspectives on Woman Abuse: A Commentary on Donald G. Dutton’s Rethinking Domestic Violence, 13 VIOLENCE AGAINST WOMEN 874, 874 (2007).

258. See, e.g., Fiebert, supra note 256; Straus, supra note 256, at 65-68.

259. See, e.g., DeKeseredy & Dragiewicz, supra note 257, at 1; see generally Kimmel, supra note 108 (arguing that claims about gender symmetry fail to thoroughly analyze gender identity and ideology); Suzanne C. Swan & David L. Snow, The Development of a Theory of Women’s Use of Violence in Intimate Relationships, 12 VIOLENCE AGAINST WOMEN 1026 (2006) (arguing that claims of gender symmetry are simplistic and misleading because they do not properly contextualize women’s violence).

260. Kohn, supra note 33, at 735.

261. Cf. Cathy Lesser Mansfield, Deconstructing Reconstructive Poverty Law: Practice-Based Critique of the Storytelling Aspects of the Theoretics of Practice Movement, 61 BROOK. L. REV. 889, 916 (1995) (discussing this issue in the context of poverty law).

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