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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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In one final irony, sometimes the reframing simply cannot contain the client’s lived experience. Sociologist Evan Stark describes how one battered woman, Emily D., initially resisted her attorney’s pressure to present herself as a passive victim. Although Emily later relented, the stock victim story simply could not be squared with how Emily presented—“aggressive, demanding, even ‘rude.’”285 As Stark recounts, “The more Emily D. was advised by her attorneys to behave like the stereotypic victim the court expected, the more inappropriate her behavior became.”286 The lawyers’ determination to substitute their judgment for Emily D.’s ultimately undermined the client’s case.287 Even when clients assent to the editing of their stories, when those stories are not consistent with the client’s experiences as she understands and expresses them, that conflict can manifest itself in ways that detract from her credibility. Lawyers who counsel clients to change their stories in order to help them “win” might, in fact, be achieving just the opposite result.

How advocates structure narratives has ethical implications as well.288 The ethical rules that govern the profession require lawyers to zealously advocate for their clients, but does that zeal justify editing client stories to better meet the expectations of the court? The definition of zealous representation becomes crucial here.289 If zealous representation is defined as winning the client’s legal case, editing may be justifiable. As Professor Cathy Lesser Mansfield argues, storytelling may be instrumental: Clients engage lawyers to produce particular results for them, regardless of the violence done to their stories in the process.290 Even if the lawyer edits the client narrative within the context of the legal system, the client’s story remains “intact and within the client’s control.”291 When lawyers fail to exercise their professional judgment in crafting client narratives, Mansfield contends, they give clients only the illusion

284. Stark, supra note 32, at 1011.

285. Id. at 1013.

286. Id. at 1013-14; see also STARK, supra note 21, at 352 (describing the alternate narratives used during the trial of Bonnie Foreshaw and the poor fit of the victim narrative in her case).

287. Stark, supra note 32, at 1014-15.

288. For a discussion of narrative and the rules of ethics, see generally Muneer I. Ahmad, The Ethics of Narrative, 11 AM. U. J. GENDER SOC. POL’Y & L. 117 (2002).

289. Michelle Jacobs considers a similar issue in the context of representing the poor. Jacobs argues that the definition of zealous representation must be different when representing indigent clients because of the particular challenges posed by the representation. Michelle S. Jacobs, Legal Professionalism: Do Ethical Rules Require Zealous Representation for Poor People?, 8 ST. THOMAS L.

REV. 97 (1995). Similarly, zealous representation must be defined differently when representing battered women because of the unique issues raised by representation.

290. Mansfield, supra note 261, at 895. Mansfield argues that reinterpreting the client’s story is “not falsification of the client’s normative reality, but facilitation of client story toward client goal.... It empowers client narrative by selectively relating interpreted client narrative appropriate to serving the purpose for which the story is told in the first place.” Id. at 903.

291. Id. at 907.

GOODMARK.7.11.2008 7/16/2008 12:44:53 PM 2008] When Is a Battered Woman Not a Battered Woman? 123 of control, essentially abandoning their clients to what may be a hostile process.292 Particularly where the failure to interpret allows the court unfettered access to “the negative realities of the client’s life,” the lawyer abdicates her role by failing to “erect this interpretive barrier between the client and the decision-making entity.”293 But if zealous representation means presenting the client’s case in the most complete and authentic way possible—regardless of effect on the outcome— such editing becomes a more dubious proposition.294 Editing to fit a stock story, Professor Christopher Gilkerson argues, “transforms the client’s narrative into a story that best fits the story law tells about a person in the client’s general circumstance and position”—a decision over which the client has little control, given “the disparities of power and knowledge between lawyer and client.” 295 Gilkerson notes that the client’s goal may not be winning the case—the traditional measure of success—but rather presenting her story as she experienced it.296 If the client is more interested in controlling how the story is told than the effect on the hearer, zealous representation must mean enabling her to tell the story of her choosing.

This question of editing or not editing and its effect on winning or losing a case sets up a Catch-22 for victims, however. She may choose to tell the story of fighting back against her abuser, and risk judicial skepticism and disbelief;

alternatively, she may edit her story and deny herself the opportunity to give voice to her experience, thereby branding her actions as deviant. Editing victims’ stories reinforces the stereotype of the paradigmatic victim, making it more difficult for women to tell stories that fail to conform. Victims of violence should not have to choose between telling their chosen stories and receiving protection. By working together to change judicial perceptions of victims of violence, advocates and battered women can try to make room for all of the stories that battered women have to tell.





V. REWRITING THE VICTIM NARRATIVE

As advocates, we must find ways to create space for the narratives of women who fight back. One crucial aspect of creating that space is helping judges understand that the paradigmatic victim speaks for very few battered women, and not at all for women who fight back. For years, advocates have relied on judicial education to broaden judicial perspectives on the experiences

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of battered women, with questionable success. The time has come to try something new. Telling counterstories that show judges the diversity of battered women’s experiences may help us to make that space.

Judicial education—defined as training provided by experts on issues judges might confront in their cases—is frequently touted as the remedy for a legal system that is unresponsive to battered women’s claims. If only judges were presented with more information on these issues, the thinking goes, they would be more receptive to and protective of battered women.297 If judges understood that some battered women use fighting back as a strategy for warding off violence and the other reasons that women may feel compelled to use violence, they might look at these cases differently.

Perhaps. But the battered women’s movement has been doing judicial education for many, many years now, and still battered women and their advocates document daily the injustices battered women face when they seek protection.298 The extent to which that education has been successful in making judges more sympathetic to the claims of battered women is open to debate.

Judicial education reaches only a small percentage of all of the judges in the country who are hearing domestic violence cases. Voluntary education programs tend to be self-selected; judges interested in the area, who need the training the least, are the most likely to attend.299 Mandatory judicial education creates resentment towards the subject matter and sometimes the trainers, who frequently come from the advocacy community.300 What is clear is that judicial education has made an impact in helping to create and maintain the rigid stereotypes of battered women that judges continue to expect. The essentializing of battered women is a byproduct of the indoctrination of judges in learned helplessness and the battered woman

297. See, e.g., Deborah Epstein, Effective Intervention in Domestic Violence Cases: Rethinking the Roles of Prosecutors, Judges, and the Court System, 11 YALE J.L. & FEMINISM 33, 44-45 (1999); Katie J. Land, Toward More Effective Judicial Education in Issues of Family Violence, 9 BUFF. WOMEN’S L.J.

31, 31 (2000); Lundy, supra note 176, at 304-05. The battered women’s movement still sees judicial education as essential; the House of Representatives recently authorized five million dollars to train judges on domestic violence, largely at the behest of the advocacy community. See Press Release, Nat’l Network To End Domestic Violence, supra note 214.

298. For example, I receive daily e-mails including newspaper stories documenting how domestic violence continues to be dismissed by courts.

299. See, e.g., Earl G. Penrod, Judicial Education in Indiana: An Overview and a Proposal for Change, 40 VAL. U. L. REV. 409, 418 (2006).

[T]ime on the bench for some judges is accompanied by a level of intellectual snobbery that results in an inability to fully appreciate the value of continuing and continuous education.

Having ‘seen it all’ over the years, these judicial officers are unable or unwilling to recognize that there might be something to learn beyond the local courtroom. They not only fail to appreciate how much new information there is to learn, they also fail to understand that much of what they presently know is inaccurate.

Id.

300. This observation is based on years of experience as a provider of judicial education, both as a member of the advocacy community and as a staff member for an organization dedicated to judicial training, and the comments I heard from judges participating in those trainings.

GOODMARK.7.11.2008 7/16/2008 12:44:53 PM 2008] When Is a Battered Woman Not a Battered Woman? 125 syndrome;301 no “Domestic Violence 101” training is complete without some coverage of these concepts. Trainings tend to generalize and simplify for the sake of brevity and understanding; by distilling the discourse down in this way, judges are offered only the most basic, easily digested understanding of what domestic violence is and how a vast range of women experience it.302 Even if judges received the ideal training—the highest quality trainers and most up-to-date, comprehensive information on the diversity of battered women’s experiences303—judicial education still would be unlikely to change the prevailing stereotypes of battered women, because that training would not comport with what judges experience on a day-to-day basis in their courtrooms.

In a culture in which women’s own violence is largely suppressed in their narratives, judges would be asked to change their views on victims of domestic violence in ways that conflicted with the stories they heard from women seeking orders of protection. Without hearing from women who fight back and nonetheless seek protection in their courtrooms, judges might simply dismiss the information they received from trainers as at best incorrect, and at worst biased. Training cannot be effective so long as it clashes with judges’ experiences of their caseloads. Judges are unlikely to change if the stories that they hear do not change.

Beyond formal training programs, then, how can advocates for battered women educate judges to look beyond the paradigmatic victim? Advocates can bring the cases of women who fight back and other non-conforming victims of violence before the courts. They can help clients tell the stories they want to tell and explain why, despite fighting back, those women should be entitled to the protection of the courts. Lawyers can appeal cases when necessary, fighting for binding precedent that acknowledges that women who fight back are entitled to protection. They can create “disorienting moments”304 for judges, prompting them to question what they think they know about domestic violence and who victims of violence are. Telling counterstories is the kind of education that might actually create a more hospitable environment for women who fight back.

The creation of the stereotypical battered woman is not solely a function of what the courts have come to expect, but also of what the advocacy community has chosen to present to those systems despite its increasing awareness of the

301. My thanks to the participants in the AALS Clinical Legal Education Conference Works-inProgress session, who provided me with this insight.

302. Kathleen Mahoney suggests a number of improvements in judicial education around gender bias issues, and points to the Wester Judicial Education Centre in Canada as a model for improving judicial education. Mahoney does not provide any empirical data measuring this improvement or point to any concrete changes in the quality of judicial decisionmaking as a result of the training. Kathleen E.

Mahoney, The Myth of Judicial Neutrality: The Role of Judicial Education in the Fair Administration of Justice, 32 WILLAMETTE L. REV. 785, 814-19 (1996).

303. Given the constraints of time, money, and qualified trainers, making such training available to all of the judges hearing domestic violence cases is highly implausible.

304. Jane Harris Aiken, Clients as Teachers, 16 WASH. U. J.L. & POL’Y 81, 85 (2004).

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

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

diversity of battered women. This narrowing of the range of acceptable victims began during the early years of the movement, and continues each time that an advocate edits a client story because she believes that, otherwise, the client cannot prevail. Our failure to allow clients to tell unedited narratives has created the barriers that non-stereotypical victims—African American women, lesbians, women who fight back—face when they seek assistance. Particularly for unrepresented women, who have no advocates to craft acceptable stories, the results have been devastating.

To the extent that we as advocates doubt that our clients’ stories will be credible or persuasive, we perpetuate untruths about our clients who fight back—that they are not believable, that they are wantonly violent, that they are not victims of abuse. Why should judges change their minds about these women and reassess the stories they tell if advocates have no faith in those stories either?



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