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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? 87 women’s movement has been that of a white, middle-class, heterosexual woman.55 The early women’s movement’s desire to propound a unified women’s experience—a “We the Women” position—ignores or silences differences in favor of presenting one voice. As Professor Angela Harris notes, the gender essentialism written in to this type of rhetoric worked to silence the voices of women of color. “Not surprisingly, the story they tell about ‘women,’ despite its claim to universality, seems to black women to be peculiar to women who are white, straight, and socioeconomically privileged....”56 Differences are relegated to the footnotes, and the experiences of “white women quietly become the norm, or pure, essential woman.”57 Feminists brought gender essentialism with them into the battered women’s movement.58 Attempting to universalize the experience of being battered, advocates for battered women argued that battering was a societywide problem. As Lenore Walker wrote in The Battered Woman, “Battered women are found in all age groups, races, ethnic and religious groups, educational levels, and socioeconomic groups. Who are the battered women? If you are a woman, there is a 50 percent chance it could be you!”59 The result of this campaign was to bring to the forefront the one characteristic shared by all of these women—that they were women.60 Suppressing the differences in the experiences of those women behind the face of the dominant culture—the face of a white woman—had serious consequences for women whose experiences did not mirror not women of color.61 “[I]t is only the white ‘she’ who is the real

55. Aarati Kasturirangan et al., The Impact of Culture and Minority Status on Women’s Experience of Domestic Violence, 5 TRAUMA VIOLENCE & ABUSE 318 (2004); Beth A. Mandel, The White Fist of the Child Welfare System: Racism, Patriarchy, and the Presumptive Removal of Children from Victims of Domestic Violence in Nicholson v. Williams, 73 U. CIN. L. REV. 1131, 1157-58 (2005).

56. Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581, 588 (1990).

57. Id. at 595.

58. McMahon & Pence, supra note 54, at 55; see also Sarah M. Buel, The Pedagogy of Domestic Violence Law: Situating Domestic Violence Work in Law Schools, Adding the Lenses of Race and Class, 11 AM. U. J. GENDER SOC. POL’Y & L. 309, 321 (2003) (explaining how gender essentialism is employed by feminists to explain domestic violence).

59. WALKER, supra note 4, at 19. This language continues to be used by scholars in the field. See, e.g., Albert R. Roberts, Myths, Facts, and Realities Regarding Battered Women and Their Children: An Overview, in HANDBOOK OF DOMESTIC VIOLENCE INTERVENTION STRATEGIES 3, 6 (Albert R. Roberts ed., 2002) (“Woman battering takes place in all social classes, religions, races and ethnic groups.

Although violence against women seems to be more visible in the lower class because it is more frequently reported to police and hospital emergency rooms in inner-city neighborhoods, it is increasingly being recognized as a pervasive problem in middle- and upper-class homes as well.”).

60. Beth E. Richie, A Black Feminist Reflection on the Antiviolence Movement, in DOMESTIC VIOLENCE AT THE MARGINS: READINGS ON RACE, CLASS, GENDER, AND CULTURE 50, 52 (Natalie J.

Sokoloff with Christina Pratt eds., 2005)

61. Morrison, supra note 51, at 1081-82. The image of the battered woman as white is reinforced by depictions of white victims in the media and popular culture. Farrah Fawcett in The Burning Bed (Tisch/Avnet Productions Inc. 1984); Julia Roberts in Sleeping with the Enemy (Twentieth Century-Fox Film Corp. 1991); the obsession with the trial of O.J. Simpson for killing his beautiful, white ex-wife, Nicole Brown—all contribute to the image of battered women as white women. As Linda Ammons GOODMARK.7.11.2008 7/16/2008 12:44:53 PM

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

battered woman, who is the ‘real’ victim.”62 Unsurprisingly, with white women as the movement’s focus, the particular problems facing women of color were largely ignored.63 While there is little doubt that domestic violence does, in fact, affect women of all age groups, races, ethnic and religious groups, educational levels, and socioeconomic groups, it is equally true that all of these groups experience battering differently, and that women of color, poor women, and lesbians face a number of obstacles not encountered by straight, white, middle-class women as they seek safety64—obstacles that may cause them to react differently to the violence. The decision to universalize women’s victimization in the home, manifested in the movement’s “every woman could be a victim” rhetoric, pushed the concerns of marginalized women further to the sidelines of debates about how to address domestic violence.

Putting a white face on the battered woman had a political dimension. To increase the legal protections for and funding to assist battered women, advocates needed the support of state and federal politicians and policymakers.

While politicians may not have been terribly interested in the problems of poor black women, it was easier to sell them on the need to protect their own mothers, sisters, and daughters.65 In the 1970s, the leaders of the battered women’s movement made a “conscious, strategic decision” to universalize the experience of being battered in order to get the issue of domestic violence on the national agenda.66 Battered women’s advocates recast the image of the battered woman to reflect society’s most powerful voices, a move designed to bring home the message that because domestic violence affected white women, it was worthy of the attention of those in power.67 This recasting, though, had perverse consequences. As sociologist Beth Richie points out, “In the end, the assumed race and class neutrality of gender violence led to the erasure of low-income women and women of color from the dominant view.”68 The message that domestic violence happens to everyone (meaning middle-class white women) was underscored by the faces of the notes, the stories of women who do not fit that image, such as African Americans, are rendered suspect.





Linda L. Ammons, Mules, Madonnas, Babies, Bathwater, Racial Imagery and Stereotypes: The AfricanAmerican Woman and the Battered Woman Syndrome, 1995 WIS. L. REV. 1003, 1006-07 (1995).

62. Morrison, supra note 51, at 1083.

63. As Beth Richie notes, “[T]he assumption of ‘everywoman’ fell into the vacuum created by a white feminist analysis that did not very successfully incorporate an analysis of race and class.” Richie, supra note 60, at 52.

64. Black women, for example, are more likely to need help with medical care and face greater economic hardships when they leave abusive relationships. Harrison & Willis Esqueda, supra note 37, at 133; see also JAMES PTACEK, BATTERED WOMEN IN THE COURTROOM: THE POWER OF JUDICIAL RESPONSES 20-23 (1999) (debunking both the “class myth” (the notion that battering occurs only in poor families) and the “universal-risk theory” (the idea that “all women are equally likely” to be battered)).

65. Senators David Boren and William Cohen made statements to this effect during the debate over the first Violence Against Women Act in 1991. 137 CONG. REC. 1314-15 (1991).

66. Rinku Sen, Between a Rock & a Hard Place: Domestic Violence in Communities of Color, 2 COLORLINES (1999), available at http://new.vawnet.org/Assoc_Files_VAWnet/RockandHardPlace.pdf.

67. Richie, supra note 60, at 53.

68. Id. at 52-53.

GOODMARK.7.11.2008 7/16/2008 12:44:53 PM 2008] When Is a Battered Woman Not a Battered Woman? 89 white, middle-class women (many of whom were survivors themselves)

advocating for change.69 Professor Barbara Fedders argues:

The ability of the movement to win legislative victories... seems premised on its capacity to convince legislators that domestic violence affects middle-class and white women as much or more than lowincome women and women of color.... Although domestic violence is a universal problem, it gains political significance primarily because it affects white, middle-class women such as those in this movement, those you know, and those who vote.70 Battered women’s advocates won major legislative victories by convincing policymakers of the universality—whiteness—of domestic violence. But when all victims are depicted as white, the particular needs, challenges, and issues of women who do not fit that description can too easily be ignored as politicians and policymakers consider what legislation to pass and services to fund.71 Economic assistance, job training, and decent affordable housing may not be concerns for white, middle-class women, but often cause lower income women of color to remain in abusive relationships. The resources that the mothers, sisters, and daughters of the politically powerful might need to escape violence are likely very different than what less well-connected women require.72

69. Barbara Fedders, Lobbying for Mandatory Arrest Policies: Race, Class, and the Politics of the Battered Women’s Movement, 23 N.Y.U. REV. L. & SOC. CHANGE 281, 282 (1997). Beth Richie notes that the national leadership of the battered women’s movement continues to be largely white, to the dismay of many women of color who have dedicated their lives to the movement. Richie, supra note 60, at 54.

70. Fedders, supra note 69, at 296; see also Mandel, supra note 55, at 1157 (“[M]any of the gains were made... through convincing the government that [domestic violence] was also affecting white middle-class women”). Fedders quotes Mary Jane Cronin, Head of the Federal Law Enforcement Assistance Administration during the Carter Presidency, who stated, “[T]here was a federal response because the problem cuts across class and race. If domestic violence affected only poor women, it would have been dismissed.” Fedders, supra note 69, at 297 (quoting SCHECHTER, supra note 53, at 192 (emphasis removed).

71. Many scholars point to the widespread passage of mandatory arrest laws as an example of this phenomenon. While mandatory arrest laws underscore the seriousness of domestic violence and the need to treat such actions as criminal, there is widespread ambivalence within the African American community about employing such laws, which add to the disproportionate incarceration of African American men. As Martha McMahon and Ellen Pence note, “[V]iolence and criminal justice interventions can be experienced differently and have quite different consequences for women in different communities, particularly among those who are marginalized.” McMahon & Pence, supra note 54, at 55. As Aya Gruber contends, if domestic violence primarily affected white, middle-class women, then the implementation of mandatory arrest laws should have led to the widespread arrest of white men, rather than the disproportionate jailing of black men that has resulted. Aya Gruber, The Feminist War on Crime, 92 IOWA L. REV. 741, 797 (2007).

72. As Donna Coker notes, “[I]ndividual women’s experiences are ignored when criminal justice actors, advocates, and judges presume that the experience of abuse is the same for everyone and that the same remedies will work for everyone.” Coker, supra note 38, at 1337.

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

–  –  –

C. The Paradigmatic Victim Is Straight In its earliest days, the language used in the movement to stop violence against women portrayed victims as straight. The early battered women’s movement talked about “wife abuse” rather than “domestic violence” or “intimate partner violence,” underscoring the assumption that violence between partners happened only within marriages.73 By definition, lesbians could not be battered women, because they could not be wives.74 While the language of the movement has evolved, research on domestic violence continues to focus on violence done to women by men.75 Violence in lesbian relationships was also at odds with early feminist theories about domestic violence.76 Ideologically, seeing lesbians as victims was problematic because battered women’s advocates rooted the causes of domestic violence in the patriarchy, viewing violence as yet another manifestation of men’s privilege and the oppression of women.77 This analysis simply does not apply as well to lesbian battering, although some theorists have reconfigured their patriarchal analyses to account for lesbian battering.78 The laws of many states similarly fail to account for lesbian battering. In six states, same-sex violence still is not recognized under the laws enabling victims of domestic violence to seek civil protection orders.79 In a number of other states, the laws do not explicitly enable same-sex partners to petition for relief; as a result, those victims are dependent on individual judges to interpret the law in ways that afford them protection.80 Prior to the Supreme Court’s holding in Lawrence v. Texas that private sexual activity between adults cannot be criminalized, lesbians in some states would have had to admit to illegal

73. Early works on domestic violence included R. Emerson Dobash and Russell P. Dobash’s Violence Against Wives (1979), Del Martin’s Battered Wives (1976), and Murray A. Straus’s survey, Wife-Beating: How Common and Why?, 2 VICTIMOLOGY 443 (1977).

74. Grace Giorgio, Speaking Silence: Definitional Dialogues in Abusive Lesbian Relationships, 8 VIOLENCE AGAINST WOMEN 1233, 1255 (2002).

75. Carolyn M. West, Battered, Black, and Blue: An Overview of Violence in the Lives of Black Women, in VIOLENCE IN THE LIVES OF BLACK WOMEN, supra note 16, at 5, 11 (presenting research on African American women that focused primarily on heterosexual relationships).

76. See infra Part III.

77. CLAIRE RENZETTI, VIOLENT BETRAYAL: PARTNER ABUSE IN LESBIAN RELATIONSHIPS 105-06 (1992); Adele M. Morrison, Queering Domestic Violence To Straighten Out Criminal Law: What Might Happen When Queer Theory and Practice Meet Criminal Law’s “Conventional” Responses to Domestic Violence, 13 S. CAL. REV. L. & WOMEN’S STUD. 81, 118 (2003).



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