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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? 83 helplessness.31 This inability to exercise control, according to Walker, leads battered women to assume that they cannot stop the violence. Instead of actively seeking ways to escape violent relationships, the women sink into relative passivity, self-blame, and fatalism born of the randomness of the violence.32 As Walker’s ideas gained currency among experts on domestic violence, a portrait of the paradigmatic victim began to emerge. In the literature on domestic violence, the battered woman has been described as “scared, helpless, meek, and blameless,”33 “passive” and “submissive,”34 and “weak” and “powerless.”35 Battered women have also been depicted as “deferential, submissive to authority, and compliant to the demands of others,”36 “vulnerable, ashamed... dependent, unassertive, depressed and defenseless....”37 Although the paradigmatic victim wants to leave the relationship, she is described as feeling powerless to do so. She is expected to cooperate with the legal system—with police who want to arrest and prosecutors who want to pursue her abuser.38 By all accounts, the paradigmatic battered woman comports with societal notions of the “victim”—she does not use violence against her batterer unless she is convinced that she must do so or face imminent death herself. Other than retaliating against her batterer when she sees no other viable option, the victim does not fight back.39

31. In her book, Walker discusses the concept of learned helplessness, describing the conclusions Martin Seligman reached based on his research on dogs who were shocked at irregular intervals, and adopting that research to explain the behavior of battered women. Id. at 45-48.

32. Evan Stark, Re-Presenting Woman Battering: From Battered Woman Syndrome to Coercive Control, 58 ALA. L. REV. 973, 998 (1995) (citing WALKER, supra note 4, at 75-85).

33. Laurie S. Kohn, Barriers to Reliable Credibility Assessments: Domestic Violence VictimWitnesses, 11 AM. U. J. GENDER SOC. POL’Y & L. 733, 741 (2003).

34. Alison M. Madden, Clemency for Battered Women Who Kill Their Abusers: Finding a Just Forum, 4 HASTINGS WOMEN’S L.J. 1, 48 (1993); see also Sharan K. Suri, A Matter of Principle and Consistency: Understanding the Battered Woman and Cultural Defenses, 7 MICH. J. GENDER & L. 107, 129 (2000) (“In order for the syndrome defense to work, the woman must be portrayed as passive and weak....”).

35. Shelby A.D. Moore, Battered Woman Syndrome: Selling the Shadow To Support the Substance, 38 HOW. L.J. 297, 301 (1995); see also Developments in the Law—Legal Responses to Domestic Violence, 106 HARV. L. REV. 1498, 1592 & n.136 (1993) (citing to court opinions that portray battered women as “helpless, passive or psychologically disturbed”).

36. G. Kristian Miccio, A House Divided: Mandatory Arrest, Domestic Violence, and the Conservatization of the Battered Women’s Movement, 42 HOUS. L. REV. 237, 309 (2005).

37. Lisa A. Harrison & Cynthia Willis Esqueda, Myths and Stereotypes of Actors Involved in Domestic Violence: Implications for Domestic Violence Culpability Attributions, 4 AGGRESSION & VIOLENT BEHAV. 129, 130 (1998). Sharon Allard notes that these stereotypes reflect traditional views about what constitutes appropriate behavior for all women. Sharon Angella Allard, Rethinking Battered Woman Syndrome: A Black Feminist Perspective, 1 UCLA WOMEN’S L.J. 191, 196 (1991).

38. Joanne Belknap & Hillary Potter, The Trials of Measuring the “Success” of Domestic Violence Policies, 4 CRIMINOLOGY & PUB. POL’Y 559, 559 (2005); Donna Coker, Race, Poverty, and the CrimeCentered Response to Domestic Violence: A Comment on Linda Mills’s Insult to Injury: Rethinking Our Responses to Intimate Abuse, 10 VIOLENCE AGAINST WOMEN 1331, 1341 (2004).

39. Zanita E. Fenton, Domestic Violence in Black and White: Racialized Gender Stereotypes in Gender Violence, 8 COLUM. J. GENDER & L. 1, 28 (1998).

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

Walker’s theory of battered women as passive non-actors quickly spread throughout the legal world, primarily (and counterintuitively) to justify the actions of battered women who killed their abusers rather than leaving their relationships.40 The theory of learned helplessness was used to explain how battered women were so conditioned to live with violence that they could not take affirmative steps to leave their relationships; resorting to the extreme violence of killing a partner was cast as an understandable reaction to a kill-orbe-killed situation, when no other option was available. Professor Elizabeth Schneider writes Expert testimony on battered woman syndrome was developed to explain the common experiences of repeated assault on battered women, and its impact. The goal was to assist the jury and the court in fairly evaluating the reasonableness of the battered woman’s action.

The notion of expert testimony was predicated on an assumption that battered women’s voices either would not be understood or were not strong enough to be heard alone in the courtroom.41 Expert testimony on battered woman syndrome began to be heard regularly in the cases of battered women who killed their abusers; most states now permit experts to testify on the impact of domestic violence on battered women.42 As former prosecutor and Professor Alafair Burke notes, “[T]he theory is taught to counselors, police officers, prosecutors, parole board officials, and socialservice providers to improve the quality of their responses to domestic violence.”43 These professionals, in turn, defined their clients by and planned their interventions around what they had been taught about battered woman syndrome. As the image of the battered woman depicted by Lenore Walker took hold among the major players in the legal system, the paradigmatic victim began to crowd out the stories of women who did not conform to the stereotype.

Not everyone who worked with battered women recognized their clients as the passive non-actors of Walker’s theory, however. Nine years after the publication of The Battered Woman, sociologists Edward Gondolf and Ellen Fisher developed an alternate theory intended to explain the behavior of battered women. Survivor theory provided an alternative narrative for victims of violence, one that purported to explain why they remained in violent relationships without labeling them as passive or weak. In an effort to shift the conversation about why battered women remain in abusive relationships,

40. Shelby Moore points out that this is the “glaring contradiction” in Walker’s theories—that a woman who has been totally helpless suddenly realizes that she can kill her batterer. Moore, supra note 35, at 318.


42. STARK, supra note 21, at 135 (stating that all fifty states permit this testimony “at least to some degree”).

43. Alafair S. Burke, Rational Actors, Self-Defense, and Duress: Making Sense, Not Syndromes, Out of the Battered Woman, 81 N.C. L. REV. 211, 221 (2002).

GOODMARK.7.11.2008 7/16/2008 12:44:53 PM 2008] When Is a Battered Woman Not a Battered Woman? 85 Gondolf and Fisher recast the battered woman as a survivor who actively takes measures to protect herself and her children from within the relationship, rather than the passive victim immobilized by the failure of past efforts to forestall the violence and unable to leave her abuser.44 Having determined that help is not available, the survivor may come to the rational conclusion that she may be more likely to survive if she suffers physical violence within the relationship than if she attempts to leave.45 Victims embraced this theory and its language of survival, which emphasizes their strength, resilience, and ultimate triumph over the violence.46 The legal system, however, has been slower to accept this alternate narrative.47 While survivor theory provides an alternative narrative to Walker’s helpless victim, it similarly fails to capture the experiences of women who fight back. Survivor theory recasts a victim’s passivity in terms of a conscious choice to stay in a violent relationship, but does not account for affirmative actions that a victim might take—like fighting back.48 The problem with reframing victims as survivors, psychologist Sharon Lamb notes, is that, like Walker’s theory, it oversimplifies the experience of being battered. She writes, “If the culture overemphasizes the helpless victim, and if victims overemphasize the survivor victim, we are caught between two stereotypes that preclude a range of experiences and the unifying awareness that victimization is too frequently a part of every woman’s life.”49 The stories of battered women are too complex to be shunted into the overarching categories of “victim” and “survivor.” Creating such categories has the unintended but nonetheless harmful consequence of penalizing those victims whose stories do not fit neatly within them.

B. The Paradigmatic Victim Is White Victimhood is intimately tied to traditional notions of womanhood, notions that have been largely defined by a white norm. As Professor Shelby Moore argues



45. STARK, supra note 21, at 304.

46. Sharon Lamb, Constructing the Victim: Popular Images and Lasting Labels, in NEW VERSIONS OF VICTIMS: FEMINISTS STRUGGLE WITH THE CONCEPT 108, 119-20 (Sharon Lamb ed., 1999).

47. STARK, supra note 21, at 138 (arguing that Walker’s model remains the primary explanation for battered women’s behavior in the legal system because it better fits the system’s temporal and procedural constraints).

48. Survivor theory has also been used by prosecutors to overcome expert testimony on battered woman syndrome in the cases of women who kill their abusers. My thanks to Nancy Levit for this observation.

49. Lamb, supra note 46, at 126; see also STARK, supra note 21, at 305 (describing Donna, a battered woman who killed her husband, as exemplifying the tension between a “victim” self and a “survivor” self).

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

Victim status... is readily accessible to white women because both the Anglo American tradition and the social development of women have established “true women” as pious, pure, submissive, and domestic. Generally speaking, white women in America are, and have been, best able to enjoy the benefit of victim status because they are expected to be “true women.” Comparatively, African American women, whose stereotype was created by slavery, have been and continue to be denied “true woman” status as defined by American culture.50 Or as Professor Adele Morrison bluntly asserts, “The battered woman is a victim. Victims are white.”51 Simply by virtue of their race, women of color face an uphill battle in having their victimization recognized and rectified, even when they attempt to conform their behavior to that of a stereotypical victim. April, an African

American battered woman, described her experience:

I was told to act like a little white girl... to look sad, to try to cry, to never look the jury in the eye. It didn’t really work for me because the judge took one look at me and said, “You look pretty mean; I bet you could really hurt a man.”52 The word victim, then, implies whiteness, a construction that deprives African American women of victim status and its associated protections.

The battered women’s movement has long struggled with issues of race.53 Although women of color have been involved in the movement from its beginnings, their cautions and criticisms about the development of the movement have not always been heeded,54 and the face of the battered

50. Moore, supra note 35, at 324; see also Fenton, supra note 39, at 21 (explaining that the white woman ideal, the “good girl” deserving of protection, as a function of historical characterizations of women); Kathleen J. Ferraro, The Words Change, But the Melody Lingers: The Persistence of the Battered Woman Syndrome in Criminal Cases Involving Battered Women, 9 VIOLENCE AGAINST WOMEN 110, 113 (2003) (arguing that “the characterization of battered women as helpless reinforces conventional notions of femininity” that have traditionally excluded women of color); Marilyn Yarbrough with Crystal Bennett, Cassandra and the “Sistahs”: The Peculiar Treatment of African American Women in the Myth of Women as Liars, 3 J. GENDER RACE & JUST. 625, 633-34 (examining the historical contrasting of African American and white women).

51. Adele M. Morrison, Changing the Domestic Violence (Dis)Course: Moving from White Victim to Multi-Cultural Survivor, 39 U.C. DAVIS L. REV. 1061, 1078 (2006).


WOMEN 119 (1996).

53. SUSAN SCHECHTER, WOMEN AND MALE VIOLENCE 271 (1982) (quoting a white woman within the movement as saying, “Our idea of including women of color was to send out notices. We never came to the business table as equals. Women of color join us on our terms....”).

54. Martha McMahon & Ellen Pence, Making Social Change: Reflections on Individual and Institutional Advocacy with Women Arrested for Domestic Violence, 9 VIOLENCE AGAINST WOMEN 47, 56 (2003); Charlene M. Waldron, Lesbians of Color and the Domestic Violence Movement, in VIOLENCE IN GAY AND LESBIAN DOMESTIC PARTNERSHIPS 43, 43-44 (Claire M. Renzetti & Charles Harvey Miley eds., 1996).

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