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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 2008] When Is a Battered Woman Not a Battered Woman? 79 of their life they use the storied version of their experience as the basis for further reflection.”10 Even after adults have developed more complex forms of reasoning and ordering, they continue to rely on narrative to understand their lives.11 Bruner notes, “[O]ur capacity to render experience in terms of narrative is not just child’s play, but an instrument for making meaning that dominates much of life in culture.”12 Using narratives to order their worlds and understand their experiences is particularly important for victims of domestic violence. Battering—being physically, emotionally, and/or sexually abused, isolated, controlled, or degraded—can drastically affect how women view themselves. Battering can fundamentally change a woman’s personality and undermine her confidence in her abilities, her skills, and even her sanity. Narratives that enable a woman to see that she is not responsible for the violence against her, and that she is actively struggling against that violence, can be an essential tool in helping her hold on to her sense of self.13 Elaine Lawless, who documents the experiences of battered women in her book, Women Escaping Violence: Empowerment Through Narrative, explains that “telling our stories is a positive, therapeutic act that aids the storyteller in trying to make sense of a life that otherwise might appear too fragmented, purposeless, or chaotic”14—adjectives that might seem to describe the lives of battered women. If the battered woman is denied her ability to tell her story, “‘self’ can never be realized.”15 Narratives are essential in creating a basis for self-knowledge by helping individuals to understand and organize their worlds. Beyond the individual, though, narratives are also a building block for developing interpersonal relationships. Narratives form the foundations of our ties to other people. We establish relationships based on the stories we tell about ourselves, our history, our likes and dislikes, our goals and aspirations. Bonds develop when the stories we share resonate with others. Narratives shape the self that we present

10. MALCOLM GLADWELL, THE TIPPING POINT: HOW LITTLE THINGS CAN MAKE A BIG

DIFFERENCE 118 (2002) (quoting Jerome Bruner).

11. See BRUNER, supra note 9, at 56 (“The typical form of framing experience (and our memory of it) is in narrative form.”); see also DONALD E. POLKINGHORNE, NARRATIVE KNOWING AND THE HUMAN SCIENCES 150 (1988) (“[W]e achieve our personal identities and self concept through the use of the narrative configuration, and make our existence into a whole by understanding it as an expression of a single unfolding and developing story.”); John A. Robinson & Linda Hawpe, Narrative Thinking as a Heuristic Process, in NARRATIVE PSYCHOLOGY, supra note 9, at 111, 111 (“The stories we make are accounts, attempts to explain and understand experience.”).

12. BRUNER, supra note 9, at 97.

13. Elaine Lawless, who conducted ethnographic research with battered women in Missouri, posits that in telling their stories, many battered women are able to construct themselves for the first time.

Lawless believes that the time the women spent telling their stories allowed them to try to make “some sense of a life that perhaps has not made a great deal of sense to [them] as [they have] lived [them].” LAWLESS, supra note 3, at 14.

14. Id. at 16.

15. Id. at 18.

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to the rest of the world for society’s approval and approbation.16 Narratives can be instrumental as well; they may be offered for their ability to show others what we need and how they can help us.17 As psychologist Robert Coles was reminded by an early clinical supervisor, “The people who come to see us bring us their stories. They hope they tell them well enough so that we understand the truth of their lives. They hope we know how to interpret their stories correctly.”18 The stories battered women tell profoundly affect their ability to enlist those who hear those stories in helping them address the violence. Battered women may tell their narratives to police, shelter staff, friends, clergy, welfare caseworkers, and/or child protection social workers. How the hearer interprets and constructs these stories may determine whether assistance is forthcoming.

In her study of shelter staff, for example, Michelle VanNatta found that workers looked for particular elements in a potential client’s story to determine whether the woman really needed shelter because she had been battered (as opposed to being a “nonbattered homeless woman,” for example).19 Through screening interviews, VanNatta found that shelter workers attempted to elicit detail about the intensity of the violence, the immediacy of the danger, and the actions that the woman had taken to protect herself.20 If the woman’s story did not mesh with the shelter worker’s expectations of battered women, the woman was likely to be denied refuge.21 This screening did not end when the woman was admitted to shelter; workers continued to scan the narratives told by battered women in the shelter to determine whether their stories reflected what workers expected to hear from battered women. As VanNatta notes, “Because ‘real’ battered women are constructed as women in pain who would want to seek help and support from staff, as well as to connect with the other residents with whom they are assumed to have many common experiences, women who do not actively participate in these programs may come under workers’





16. Janette Y. Taylor describes battered women’s “testimony” as “a vehicle by which women share

their stories and perform self-healing, affirmation, and empowerment.” Janette Y. Taylor, Talking Back:

Research as an Act of Resistance and Healing for African American Women Survivors of Intimate Male Partner Violence, in VIOLENCE IN THE LIVES OF BLACK WOMEN: BATTERED, BLACK AND BLUE 145, 154 (Carolyn M. West ed., 2002); see also Leigh Goodmark, Telling Stories, Saving Lives: The Battered Mothers’ Testimony Project, Women’s Narratives, and Court Reform, 37 ARIZ. ST. L.J. 709, 756 (2005) (discussing the impact sharing stories had on participants in the Battered Mothers’ Testimony Project).

17. ROBERT COLES, THE CALL OF STORIES: TEACHING AND THE MORAL IMAGINATION 20-21 (1989) (discussing the functions of patient stories in the psychological context). Coles cautions, though, that even when stories are instrumental, it is essential not to jump past the story itself to reach a diagnosis, lest the full nature of the client’s story be lost. Id. at 21-23.

18. Id. at 7; see also BRUNER, supra note 9, at 86 (explaining that children learn not only that they need to determine their desires, but also to “tell[] the right story” in order to get what they want).

19. Michelle VanNatta, Constructing the Battered Woman, 31 FEMINIST STUD. 416, 424 (2005).

20. Id. at 423-25.

21. EVAN STARK, COERCIVE CONTROL: THE ENTRAPMENT OF WOMEN IN PERSONAL LIFE 77

(2007) (“Danielle is excluded [from a shelter] because her aggressive response to abuse proves she was not really a victim. Wrote the shelter worker, ‘she is an extremely young woman with “ruff attitude”—if he hits me I always hit him back.’”).

GOODMARK.7.11.2008 7/16/2008 12:44:53 PM 2008] When Is a Battered Woman Not a Battered Woman? 81 suspicions.”22 To secure assistance, a battered woman must tell a compelling story; if her narrative fails to resonate, she may find the shelter door barred.23 Establishing interpersonal bonds through narrative is often the key to ensuring battered women’s access to services.

A. Narratives and the Law

Narratives are central to the development of the law and the operation of the legal system. Stories are passed from actor to actor, shaping the way that a particular event or person is understood within a legal context and influencing the legal system’s reaction to that event or person.

Law lives on narrative, for reasons both banal and deep. For one, the law is awash in storytelling. Clients tell stories to lawyers, who must figure out what to make of what they hear. As clients and lawyers talk, the client’s story gets recast into plights and prospects, plots and pilgrimages into possible worlds.24 Those stories are then told to judges, who retell them in findings of fact, conclusions of law, and orders.25 Repeating these stories allows those involved in the legal system to situate their own actions and decisions within a familiar and accepted context, shielding them from criticism or question.26 Storytelling is at the heart of the petition of a battered woman seeking a civil protection order. Judges routinely tell the petitioners who come before them asking for assistance, “Tell me why you’re here.” Victims, who are typically unrepresented,27 attempt to convey their stories to the court, with varying degrees of success. Some victims’ stories are difficult to follow: The narratives are not linear, the victims struggle with injuries and emotions, and sometimes, the stories are told in different languages. Other victims tell stories that do not meet the judge’s needs: They fail to focus on the immediate violence that brought the woman to the court that day, they include details the

22. Id. at 426.

23. Elaine Lawless explains, “The woman telling her story may believe that she got into the shelter and received help because of what ‘he did,’ when, in fact, she receives aid and shelter based on what she says.” LAWLESS, supra note 3, at 38 (emphasis in original).

24. ANTHONY G. AMSTERDAM & JEROME BRUNER, MINDING THE LAW: HOW COURTS RELY ON

STORYTELLING, AND HOW THEIR STORIES CHANGE THE WAYS WE UNDERSTAND THE LAW—AND

OURSELVES 110 (2000).

25. Id.; see also Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601 (1986) (describing the violence that judges do through their interpretation of narrative).

26. AMSTERDAM & BRUNER, supra note 24, at 110.

27. The vast majority of petitioners in domestic violence cases do not have counsel; the numbers are close to one hundred percent at temporary protective order hearings, which take place almost immediately after the violence, long before the victim ordinarily has the chance to secure assistance. See Jane C. Murphy, Engaging with the State: The Growing Reliance on Lawyers and Judges To Protect Battered Women, 11 AM. U. J. OF GENDER SOC. POL’Y & L. 499, 511-12 (2003) (finding that few women had lawyers in protective order hearings, and that those with lawyers were more successful in securing protective orders).

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judge deems erroneous, and they stress incidents that are not actionable under the law.28 Because most victims are unrepresented in protective order proceedings, the victim’s story is typically unedited by anyone else. Without assistance in shaping the narrative in a way that meets the needs of the forum, the victim’s need for protection may not be clear. When her story does not conform with what the judge expects to hear or contain language (like “I am afraid” or “I was beaten”) that signals to the judge that the woman is, in fact, a victim of violence, the judge may not recognize her narrative as one that warrants granting the court’s protection.29 Narratives both help women understand their own experiences and enable women to reach out to others for assistance in addressing the violence against them. A danger lurks in the narratives, however: If the narrative the woman constructs does not resonate with the hearer, the battered woman’s ability to engage that hearer in her struggle may be imperiled. As a result, how battered women construct their narratives is essential.

II. THE PARADIGMATIC VICTIM AND HER SILENCED SISTERS

The dilemma for women who fight back is that a stock narrative already exists for victims of domestic violence. That narrative has been shaped by the work of Lenore Walker, who first introduced the ideas that came to be known as battered woman syndrome, as well as by political choices the battered women’s movement made in attempting to secure support, resources, and legislative and systemic change. That narrative is drastically different from the narratives of women who fight back.

A. The Paradigmatic Victim Is Passive

In 1979, Lenore Walker changed the way that society, and particularly the legal system, looked at battered women. In her book The Battered Woman, Walker provided what quickly became accepted as one answer to the question perennially asked of battered women: Why doesn’t she leave?30 Walker explained that over time, battered women, finding that they cannot anticipate, control, or stop the violence against them, begin to suffer from learned

28. While the law’s primary focus is physical violence, many victims present stories of fear or emotional abuse—not because no physical abuse occurred, but because that abuse was secondary for them. Leigh Goodmark, Law Is the Answer? Do We Know That for Sure?: Questioning the Efficacy of Legal Interventions for Battered Women, 23 ST. LOUIS U. PUB. L. REV. 7, 28-30 (2004).

29. See, e.g., Jane C. Murphy, Lawyering for Social Change: The Power of the Narrative in Domestic Violence Law Reform, 21 HOFSTRA L. REV. 1243, 1275 (1993) (describing one judge’s refusal to grant a protective order by stating “[S]ince I would not let that happen to me, I can’t believe that it happened to you.”).

30. WALKER, supra note 4, at 43.



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