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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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We must be willing to tell counterstories—alternate narratives that subvert the received wisdom and describe our clients’ authentic experiences with their violent partners. Counterstories “destroy... the bundle of presuppositions, received wisdoms, and shared understandings against a background of which legal and political discourse takes place.”305 If narratives are responsible for producing stereotypes and paradigms, counterstories can show judges that “the factual universe on which legal decisions are based can be too narrow.”306 As Professor Christopher Gilkerson argues, Lawyers can correct universalized narratives only when they assert advocacy stories as alternatives to prevailing stock stories that do not fit the client’s narrative. Systematic juxtaposition of client and universalized narratives is a method that can demonstrate the incompleteness (and thus falsity) of universalization by highlighting the absence and importance of the client’s perspective. Client narratives therefore hold the potential to make judges aware of and acknowledge the perspective of those excluded.307 Counterstories carry the potential to transform judicial practice because they force decision-makers to confront “the human lives their decisions affect”;308 the hope in telling such stories is that judges will view their work “through a more empathic lens.”309 Counterstories bring into stark relief the gulf between

305. Delgado, supra note 265, at 2413; see also Delgado, supra note 8, at 563 (criticizing the “inner circle of about a dozen white, male writers” on antidiscrimination law who “only infrequently cite a minority scholar”).

306. Baron & Epstein, supra note 9, at 185.

307. Gilkerson, supra note 245, at 920; see also Leslie G. Espinoza, Legal Narratives, Therapeutic Narratives: The Invisibility and Omnipresence of Race and Gender, 95 MICH. L. REV. 901, 916 (1997) (describing how dominant narratives reinforce oppression and how counterstories break that oppression); Hayman & Levit, supra note 9, at 433 (arguing that counterstories drive critical inquiry into how well stock narratives reflect reality).

308. Hayman & Levitt, supra note 9, at 435.

309. Id.

GOODMARK.7.11.2008 7/16/2008 12:44:53 PM 2008] When Is a Battered Woman Not a Battered Woman? 127 judicial assumptions about battered women and the real women seeking the court’s protection. Faced with the juxtaposition of the paradigmatic victim and the real plaintiffs telling very different stories, judges may have to rethink the stereotypes on which they rely. One counterstory might be easy for a judge to reject, but regular exposure to these stories should make a judge question his or her beliefs about battered women.

Collaboration between lawyer and client is essential in the construction of counterstories.310 Power imbalances are inherent in the attorney/client relationship; to redress that imbalance, “room for client voice... must be carved out of lawyer-dominated space.”311 The need for collaboration also addresses the concern about the instrumentality of client stories. The decision to tell a counternarrative must be the result of discussion about the goals of the representation and the advocate’s approach to her work with battered women, as well as thoughtful counseling about how the legal system is likely to view the client’s claims. Through that conversation, the advocate and client must decide what empowerment means for that woman, particularly if they believe that testifying to how she fought back and winning her case are mutually exclusive goals.312 Advocates should share their experiences with the legal system, not only to give the client a sense of what she might face should she decide to tell her own story, but also to provide the client with a sense of the importance of her story within the larger context of the legal system and of the battles that women without counsel face when they tell unmediated narratives.

Battered women might be more willing to share their stories regardless of the consequences if they understood how doing so could benefit the women who come after them. The advocate and the client must discuss short and long-term goals, not only around what the legal system can offer by way of immediate protection, but also in terms of additional legal options, how her choices will affect her family and other relationships, how telling her story relates to her sense of herself, and any other concern that the client puts on the table. Only after these discussions have taken place can the client make an informed choice about how to formulate her legal narrative. Creating space for that choice, and

310. This collaboration is particularly important to lawyers who have adopted a client-centered approach, an approach embraced by many advocates as consistent with the goals of empowering battered women. See V. Pualani Enos & Lois H. Kanter, Who’s Listening? Introducing Students to Client-Centered, Client-Empowering, and Multidisciplinary Problem-Solving in a Clinical Setting, 9 CLINICAL L. REV. 83 (2002); Alex J. Hurder, Negotiating the Lawyer-Client Relationship: A Search for Equality and Collaboration, 44 BUFF. L. REV. 71 (1996).

311. Alfieri, supra note 279, at 2140; see also Lucie E. White, Mobilization on the Margins of the Lawsuit: Making Space for Clients to Speak, 16 N.Y.U. REV. L. & SOC. CHANGE 535, 544-45 (1987/88) (arguing that lawyers are not well trained in helping clients to find space for their stories).





312. Cathy Mansfield contends that “given the choice between presentation of full story regardless of its impact on legal outcome, and presentation of interpreted story, distilled for legal content, I believe most clients would choose presentation of a distilled story.” Mansfield, supra note 261, at 928. The lawyer has no right to make that assumption; the power to make that choice should be the client’s, despite Mansfield’s assertion that to allow the client that choice abdicates the lawyer’s role. Id. at 929.

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

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

providing context for making the choice, recognizes the client’s autonomy and underscores the advocate’s commitment to empowerment, both for her own client and for the battered women she cannot represent.313 The lawyer must also recognize that the client may not yet have found her voice. Traumatized, defiant, angry, grieving the loss of the relationship, ashamed of her action or inaction, the client’s story may change depending on the emotions she feels and the acceptance or resistance she meets as she begins to articulate her narrative. Her story may be in transition, and may remain in flux over the life of the case.314 Professor Leslie Espinoza cautions, “[L]awyer interaction with a client who has been abused should allow the client the space to construct a story in her own time.”315 The lawyer must avoid the temptation to make the initial client story the “one ‘true’ story” and adhere to that narrative regardless of how the client’s understanding of her story evolves over time.316 Moving away from the paradigmatic victim through counterstories is neither quick nor easy. Some have asked whether, given the many pitfalls it poses for battered women, it is worthwhile to attempt to tell these stories in the legal system at all. The dearth of other avenues to address violence, however, and the benefits that can accrue to those who are successful in bringing legal claims, both by way of protection and by way of the validation that can come from telling a story and having the system respond positively as a result, makes it imperative that advocates attempt to create a forum for the stories of women who fight back in the legal system.317 Judges “must first be convinced of some inadequacy in the old” story before being open to a new one; as a result, “[s]tory change is... both difficult and incremental.”318 But the difficulty of the endeavor is hardly a reason to continue to perpetuate a stereotype that does not reflect, and indeed undermines, the experiences of battered women who fight back and ask the legal system for protection.

–  –  –

In Professor Janice Ristock’s work on lesbian abuse, she writes that she “seeks to tell troubling tales.”319 Too often, however, advocates for battered women substitute safe stories for troubling tales, editing the violence that their

313. Miccio, supra note 36, at 317-18 (stressing the importance of respecting battered women’s decisionmaking in respecting autonomy).

314. Espinoza, supra note 307, at 908.

315. Id.

316. Id. at 913-14.

317. I have suggested elsewhere that lawyers have an ethical duty to work from within the system to make the kinds of changes that will ultimately provide better results for battered women. See Leigh Goodmark, Going Underground: The Ethics of Advising a Battered Woman Fleeing an Abusive Relationship, 75 UMKC L. REV. 999, 1022-23 (2007).

318. Taslitz, supra note 243, at 435.

319. RISTOCK, supra note 176, at 28.

GOODMARK.7.11.2008 7/16/2008 12:44:53 PM 2008] When Is a Battered Woman Not a Battered Woman? 129 clients do out of the stories that they tell judges. While those omissions may be instrumental, helping women to attain the short-term goal of securing the court’s protection, in the long run such omissions undermine the opportunities available to women who fight back by enabling the paradigmatic victim to remain the gold standard for the court system. By telling counterstories we can show judges the variety and complexity of the stories of battered women and provide spaces in which those stories can be heard.

Ristock admonishes, “We need to continually ask... How else can this story be told? What difference would that make?”320 Let’s rewrite the story of the battered woman that began this article. Imagine that she had counsel, and that her counsel had told her how difficult it might be to get a protective order if she disclosed that she had fought back. But also imagine that she and her counsel discussed a number of other things as well: her struggle as an African American woman to be free of violence, her need to assert her strength and her independence, her concerns about other women being abused, and the inability of judges to see strong African American women as victims of violence. After that conversation had happened, how would her story sound? Not only “I will not allow him to beat on me,” but “I hit back to keep him from beating me worse” and “I need this protective order to show him I’m serious about not being abused.” It’s impossible to know whether the court would have been willing to hear her. But if judges did hear her story, and the voices of the innumerable women like her, they might begin to listen.

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