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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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court knowing that taking that step is likely to anger her abuser further or to change their relationship irrevocably. Calculating all of the variables—her needs, her fear, her love for her partner, and so many more—she decides to tell her story. It is essential that she find a listener willing to hear and accept that story.

Those whose stories are believed have the power to create fact; those whose stories are not believed live in a legally sanctioned “reality” that does not match their perceptions.... [T]here are few things more disempowering in law than having one’s own self-believed story rejected, when rules of law (however fair in the abstract) are applied to facts that are not one’s own, when legal judgments proceed from a description of one’s own world that one does not recognize.262 A judicial determination that her story is not credible can be crushing for a battered woman who summons the courage to come before the court and describe her abuse. Such a ruling rejects her reality, recreates her life in a way that clashes with her own experiences, and ultimately, denies her the court’s protection. Once dismissed, these women may be less likely to seek the assistance of the courts again.263 Given the high stakes for women seeking the court’s assistance, the compunction battered women and their advocates feel to tell stories that jive with the court’s preconceptions about victims of violence makes perfect sense.

But the failure to allow or to encourage battered women to tell their stories as they see fit has a price as well.

The stories we tell give us the opportunity to define ourselves.264 Selfdefinition can be particularly important for marginalized groups, whose identities have been constructed by the dominant culture as a means of silencing and oppressing them. Professor Richard Delgado writes, “Members of out-groups can use stories in two basic ways: first, as means of psychic selfpreservation; and second, as a means of lessening their own subordination....

A principal cause of the demoralization of marginalized groups is selfcondemnation. They internalize the images that society thrusts on them....”265 When we edit the stories of battered women, we lie about who they are and how they perceive the world around them. When those stories are accepted by others as truth, women are forced to live that lie.266 For the battered woman who fights back, that lie—that she is the passive, weak, dependent stereotypical victim—contradicts the actions that she has taken to protect herself and can

262. Kim Lane Scheppele, Forward: Telling Stories, 87 MICH. L. REV. 2073, 2079-80 (1989).

263. T.K. Logan et al., Protective Orders: Questions and Conundrums, 7 TRAUMA VIOLENCE & ABUSE 175, 185 (2006).

264. Taylor, supra note 8, at 1475-76.

265. Richard Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 MICH.

L. REV. 2411, 2436-37 (1988).

266. Gilkerson, supra note 245, at 875; Kohn, supra note 33, at 735.

GOODMARK.7.11.2008 7/16/2008 12:44:53 PM 2008] When Is a Battered Woman Not a Battered Woman? 119 undermine her self-image and self-worth as well as her standing in her community.

The failure to tell the stories of women who fight back not only denies the experiences of the individual women, but also undermines the credibility of the women who will come after them seeking assistance from the courts. Until judges grow accustomed to hearing the diversity of battered women’s stories, they will continue to look askance at non-conforming narratives. Skilled advocates can help judges to understand these stories, working with clients to shape and present their narratives in ways that judges might accept. But given the dearth of representation for victims of domestic violence, few women have such advocates. Women without counsel “cannot benefit from the techniques of ‘demeanor repackaging’” used to make the stories of women who fight back more palatable to judges.267 When advocates counsel women who fight back to edit their stories rather than helping judges to reformulate their notions of who a battered woman is, they deny unrepresented women the opportunity to gain from the telling of their clients’ stories as well. The failure to tell these narratives may even increase the danger to all women who fight back. As domestic violence advocates and scholars Martha McMahon and Ellen Pence argue, Women who fight back become increasingly vulnerable to their abusers if the advocacy community does not recognize their actions as legitimate responses to being beaten. The idealized image of the perfect victim and the naive notion that there is a healthy or proper way of being abused makes women who fight back... more vulnerable to both the abuser and the institutions to which they turn for help.268 When advocates are unwilling to accept that women fight back and to present fighting back as a coping strategy, they are complicit in the silencing of their clients and in the creation of additional hurdles for other women.

C. Narrative Reconstruction: Implications for Advocates

The silencing of women who fight back is particularly ironic given the theoretical foundations of advocacy for battered women. Recognizing that battered women had been denied agency and authority in their relationships, a belief in a woman’s right to self-determination was one of the cornerstones of the nascent battered women’s movement.269 The movement’s focus on the

267. Kohn, supra note 33, at 735.

268. McMahon & Pence, supra note 54, at 71.

269. Miccio, supra note 36, at 257, 264; see also STARK, supra note 21, at 79 (“Shelters were opened... in which safety was a means to empowerment and collective empowerment was an instrument to challenege systemic sexual inequality....”). As Kris Miccio writes, “Women’s choices were not pathologized....” Miccio, supra note 36, at 286.

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

empowerment of battered women attracted advocates to the work, particularly formerly battered women, who were among the first to establish shelters and draw attention to the needs of victims of violence.270 As the movement has become more professionalized, however, “sisters” have become clients,271 and the voices of battered women have been muted in favor of deference to the judgment of the social workers, counselors, lay advocates, and lawyers working with them.272 One unintended consequence of the credentialing of the battered women’s movement may be a failure of these professionals to acknowledge the diversity of battered women’s stories.273 The increasing professionalism of the battered women’s movement has coincided with a shift away from respect for women’s choices.274 This shift is reflected in a number of policies embraced by many domestic violence advocates, chief among them mandatory arrest and “no drop” prosecution.275 Those policies imply a belief that battered women cannot make rational choices at times of crisis and that professionals’ judgment should be substituted for the women’s own good.276 The pressure advocates exert to edit the stories of women who fight back constitutes the same sort of substituted judgment. It underscores advocates’ assumptions, based on their experiences, that women who fight back will not be eligible for relief unless their stories echo the prevailing narrative. It devalues the rational and legitimate choice that a woman makes to fight back. Editing a woman’s decision to fight back out of her story suggests to the woman that her decisions are unjustifiable, her actions aberrant. Battered women fight back to preserve their autonomy and sense of self;277 we denigrate those choices when

270. See SCHECHTER, supra note 53, at 56.

271. Susan Schechter describes how the professionalization of some battered women’s shelters fundamentally changed the nature of the interactions between service providers and residents in those shelters, shifting the balances of power in those relationships. Id. at 106-10.

272. Kathleen Waits, Battered Women and Their Children: Lessons From One Woman’s Story, 35 HOUS. L. REV. 29, 80-81 (1998); see also McMahon & Pence, supra note 54, at 57-58 (“Professionalization and specialization of U.S. advocates’ relationships to battered women...

contributed to institutionalized responses to domestic violence.”).

273. Lucie White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38 BUFF. L. REV. 1, 44-45 (1990).

274. This is certainly true among lawyers. See, e.g., Edward S. Snyder & Laura W. Morgan, Domestic Violence Ten Years Later, 19 J. AM. ACAD. MATRIMONIAL. L. 33, 47-50 (2004) (“If the attorney determines that domestic violence is present, the first goal is to stop the violence and help the client be safe. The most valuable tool in keeping a client safe is the civil protective order.... Although there may be economic ramifications in filing for a protective order, an attorney must realize that a victim could be swayed by the consequences to the abuser. The attorney must encourage the victim to focus upon thwarting further abuse.”).

275. Mandatory arrest refers to policies which remove discretion for arrest from police, requiring them to make an arrest in domestic violence cases whenever they have probable cause. “No drop” or victimless prosecution allows prosecutors to pursue domestic violence cases without the assistance or approval of the victim. See generally Miccio, supra note 36 (providing background on these policies and questioning their effectiveness).

276. Id. at 303.

277. See, e.g., STARK, supra note 21, at 166 (discussing one woman’s experience fighting back).

GOODMARK.7.11.2008 7/16/2008 12:44:53 PM 2008] When Is a Battered Woman Not a Battered Woman? 121 we stifle that portion of their narratives. Each time an advocate counsels a woman to tailor her story without appreciating that decision or giving her the opportunity to tell her story as she chooses, that advocate turns her back on the principles that undergird the battered women’s movement and does violence to her client.

Attorneys have tremendous power in shaping the stories of their clients;278 even if the lawyer hews closely to the story told by the client (and not all do), it is the lawyer’s voice, the lawyer’s choice of words, the lawyer’s tone and inflection and pacing that structure the narrative heard by the court. Lawyers can misuse that power in a number of ways: by silencing client voices, by omitting particular kinds of narratives, by presenting only narratives that are acceptable to the legal system, and by requiring client obedience to the lawyer’s translation of the story.279 When lawyers rewrite client stories without client input or approval, they take from clients the power to decide how they want to be presented and exclude the client from the strategic choices that will shape her case.280 Reconstructing client narratives in ways that are not consistent with their choices, feelings, and perspectives on the violence is disempowering for battered women. A battered woman is disempowered when, “rather than having faith in the validity of her story, she is counseled to retell the incident to make it more suitable for the [legal system].”281 M. Joan McDermott and James Garofalo identify “guiding the victim in shaping and retelling her story to make it a better case for the prosecution” and “counseling and advising a victim of domestic violence in a manner that suggests that the professional knows better than she does what is in her own best interest” as potential sources of disempowerment for battered women.282 This reshaping is disempowering, they argue, because it suggests that women’s “own stories lack the legitimacy of real, prosecutable criminal victimization. Ironically, the practice of conveying to victims the idea that ‘you’re only a victim if...’ is the very practice that the women’s movement has fought long and hard against for victims of domestic battery and sexual assault.”283 This disregard for women’s lived experiences

278. See Sally Frank, Eve Was Right To Eat the “Apple”: The Importance of Narrative in the Art of Lawyering, 8 YALE J.L. & FEMINISM 79, 87 (1996); Carolyn Grose, A Persistent Critique: Constructing Clients’ Stories, 12 CLINICAL L. REV. 329, 331 (2006).

279. See generally Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative, 100 YALE L.J. 2107 (1991) (arguing that a lawyer’s telling of his client’s story often falsifies its normative content and loses the client’s own narrative).

280. See Miller, supra note 253, at 564-65; John B. Mitchell, Narrative and Client-Centered Representation: What Is a True Believer To Do When His Two Favorite Theories Collide?, 6 CLINICAL L. REV. 85, 100-01 (1999).

281. M. Joan McDermott & James Garofalo, When Advocacy for Domestic Violence Victims Backfires: Types and Sources of Victim Disempowerment, 10 VIOLENCE AGAINST WOMEN 1245, 1250 (2004).

282. Id. at 1251.

283. Id. at 1259.

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

may make them feel “absent, impotent, even desperate”284—a far cry from what most advocates hoped to achieve when they began working with battered women.

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