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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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78. See, e.g., Morrison, supra note 77, at 139. Mary Eaton stresses the importance of developing lesbian-specific theories of domestic violence, rather than attempting to fit lesbian violence into prevailing feminist theories. Mary Eaton, Abuse by Any Other Name: Feminism, Difference, and Intralesbian Violence, in THE PUBLIC NATURE OF PRIVATE VIOLENCE: THE DISCOVERY OF DOMESTIC ABUSE 195-223 (Martha Albertson Fineman & Roxanne Mykitiuk eds., 1994).

79. See Evan Fray-Witzer, Twice Abused: Same-Sex Domestic Violence and the Law, in SAME-SEX DOMESTIC VIOLENCE: STRATEGIES FOR CHANGE 20 (Beth Levanthal & Sandra E. Lundy eds., 1999).

80. LORI GIRSHICK, WOMAN TO WOMAN SEXUAL VIOLENCE: DOES SHE CALL IT RAPE? 137-38 (2002); Fray-Witzer, supra note 79, at 20-21; Morrison, supra note 77, at 95.

GOODMARK.7.11.2008 7/16/2008 12:44:53 PM 2008] When Is a Battered Woman Not a Battered Woman? 91 sexual conduct to qualify for protective orders.81 If the face of the paradigmatic victim of violence is that of a white woman, the face of her abuser is certainly that of a man, creating enormous challenges for victims of intra-lesbian violence seeking assistance.

The combination of battered woman syndrome, historical representations of victimhood, gender essentialism, and political expediency as endorsed by the media and popular culture have combined to create the prevailing narrative for victims of domestic violence: Battered women are weak, dependent, passive, fearful, white, straight women who need the court’s assistance because they are not able to take positive action to stop the violence against them.

Judges rely on these stereotypes to analyze the cases they hear. They, too, have seen victims represented as white women, with all of the historical baggage that designation carries. The judiciary is still predominately white, male, and middle-class, more likely to envision and sympathize with the women they know—their daughters, their sisters—who are statistically less likely to fight back. Domestic violence trainings that emphasize battered women syndrome and victims who are passive, dependent, weak, and afraid, reinforce these beliefs. Judges who internalize these messages are looking for a particular kind of victim telling a particular kind of story in protective order cases: a white, straight (likely middle-class) woman telling a story of passivity, dependency, fear, and inability to address the violence done to her without the assistance of the court.82 To merit the court’s assistance, “one must be a victim—a particular kind of victim.... An inability to show one’s victim status may result in a failure to obtain the assistance one needs.”83 For the “perfectly constructed plaintiff,” “a white, married, church-going, tee-totaling, homemaker, with no criminal record—not even a parking ticket,”84 these

81. Ellen A. Meyers, Developing a Successful Community Outreach Program: A Look at Criminal Justice and the Lesbian and Gay Community, in A PROFESSIONAL’S GUIDE TO UNDERSTANDING GAY AND LESBIAN DOMESTIC VIOLENCE: UNDERSTANDING PRACTICE INTERVENTIONS 239, 242 (Joan C.

McClennen & John Gunther eds., 1999). The Supreme Court’s decision in Lawrence v. Texas, 539 U.S.

558 (2003), has removed that barrier.

82. See PTACEK, supra note 64, at 133 (“The ‘ideal victim profile’ of a woman seeking protection from battering would describe a white woman who speaks English and has no material needs or who has the means to hire an attorney to seek financial support through the probate court.”) Evan Stark argues that this narrative resonates with judges and lawyers “because it emphasizes thematic elements that are widely associated with the sorts of tragedies to which women are believed to succumb....” STARK, supra note 21, at 139.

83. Morrison, supra note 51, at 1085; see also Lori B. Girshick, No Sugar, No Spice: Reflections on Research on Woman-to-Woman Sexual Violence, 8 VIOLENCE AGAINST WOMEN 1500, 1505 (arguing that “the stories of lesbians and bisexual women do not sound ‘familiar’ to court personnel”). Studies of police decisions to arrest underscore this point. Male police officers may give women preferential treatment, but only when those women act in accordance with gender stereotypes. Such treatment may cease, however, “when women violate norms of appropriate feminine conduct and break the bargain.” Christy A. Visher, Gender, Police Arrest Decisions, and Notions of Chivalry, 21 CRIMINOLOGY 5, 8 (1983).

84. Morrison, supra note 51, at 1083. This kind of stereotyping hurts women in other areas of the law as well. See, e.g., Jane C. Murphy, Legal Images of Motherhood: Conflicting Definitions from Welfare “Reform,” Family, and Criminal Law, 83 CORNELL L. REV. 688, 692-723 (1998).

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

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stereotypes present no problem. But women who tell a different story might find themselves unable to secure the kinds of assistance that could help them avoid further violence.

–  –  –

Studies of women who use force against their partners indicate that overwhelmingly large numbers of those women have been battered.85 In her recent study of women arrested for domestic assaults, sociologist Susan Miller found that ninety-five percent of the women had used violence in reaction to a partner’s violence.86 As Miller explains, “Typically, women’s use of force is in response to their current or former partner’s violence or can be characterized as a reaction that results from past abuses and their relative powerlessness in the relationship.”87 Researchers agree that the vast majority of women who use violence do so to defend themselves or their children or to prevent an impending attack.88 But women cite other reasons as well: to stand up for themselves in an attempt to salvage their self-worth, to get their partners’ attention, to earn their partners’ respect, to retaliate for threats against their families, and to retaliate for their partners’ abusive behavior.89 Sociologist and battered women’s advocate Evan Stark argues that women use violence in order to express their identities as beings independent of their controlling partners. Describing Nathaline





85. Shamita Das Dasgupta, Just Like Men? A Critical View of Violence by Women, in

COORDINATING COMMUNITY RESPONSES TO DOMESTIC VIOLENCE: LESSONS FROM DULUTH AND

BEYOND 195, 202 (Melanie F. Shepard & Ellen L. Pence eds., 1999) (summarizing research on women who use physical force against their partners).

86. SUSAN L. MILLER, VICTIMS AS OFFENDERS: THE PARADOX OF WOMEN’S VIOLENCE IN

RELATIONSHIPS 116-20 (2005). Jane Murphy, Mary Ann Dutton, Lisa Goodman, and Dorothy Lennig report similar findings in a study of women seeking protective orders through the District Court for Baltimore City. Murphy et al., supra note 27, at 515, app. A (finding that eighty-two percent of women reported fighting back).

87. MILLER, supra note 86, at 130.

88. See, e.g., MILLER, supra note 86, at 124; Shamita Das Dasgupta, A Framework for Understanding Women’s Use of Nonlethal Violence in Intimate Heterosexual Relationships, 8 VIOLENCE AGAINST WOMEN 1364, 1372 (2002); Dasgupta, supra note 85, at 202; L. Kevin Hamberger & Theresa Potente, Counseling Heterosexual Women Arrested for Domestic Violence: Implications for Theory and Practice, 9 VIOLENCE AND VICTIMS 125, 128 (1994); Daniel G. Saunders, When Battered Women Use Violence: Husband-Abuse or Self-Defense, 1 VICTIMS AND VIOLENCE 47, 56 (1986);

Rachel Somberg et al., No Single Profile: The Diversity of Battered Women’s Experiences 13 (unpublished manuscript, on file with author). Michael Johnson and Kathleen Ferraro suggest the term “violent resistance” to describe women’s violence that is not motivated by a desire to control their partners, given the parameters of the term “self-defense” under the law. Michael P. Johnson & Kathleen J. Ferraro, Research on Domestic Violence in the 1990s: Making Distinctions, 62 J. MARRIAGE & FAM.

948, 949 (2000).

89. Dasgupta, supra note 85, at 206-09; see also Dasgupta, supra note 88, at 1372; Daniel G.

Saunders, Are Physical Assaults by Wives and Girlfriends a Major Social Problem? A Review of the Literature, 8 VIOLENCE AGAINST WOMEN 1424, 1434 (2002) (summarizing research on gender equality in intimate partner violence).

GOODMARK.7.11.2008 7/16/2008 12:44:53 PM 2008] When Is a Battered Woman Not a Battered Woman? 93 Parkman, a thirty-five-year-old African American woman who stabbed her abusive partner the day after he threatened to cut her, Stark writes The main damage Nate suffered had less to do with physical or psychological trauma—though both were present—than with her feeling that Larry had so circumscribed her capacity to freely act that she was dying as a distinct person.... What drove her into the street that night was the existential threat to her standing as a free woman, the fact that Larry intended to subordinate her purposes to his as well as hurt her physically, to make her his thing. This, she could not allow.90 Women may also use violence because they lack (or believe that they lack) other options to address the violence against them.91 Susan Miller has organized women’s use of violence into two categories: defensive behavior (the attempt to escape or avoid a violent incident against the woman or her children, typically after the man has already used violence against her) and frustration responses (expressive acts conveying the woman’s frustration over her inability to escape the violence or control the violent situation).92 Both of the reasons differ significantly from the reasons that men typically resort to violence within relationships. Research amply documents that men, unlike women, use violence to exert coercive control over their partners.93 Sue Osthoff, director of the National Clearinghouse for the Defense of Battered Women, defines battering as “a systematic pattern of using violence, the threat of violence, and other coercive behaviors and tactics, to exert power, to induce fear, and to control another person.”94 By contrast, very few women who fight back are seeking to exercise control or induce fear in their partners,95 and even fewer are successful in doing so.96 In her study of women who had used violence against their partners, Professor Shamita Das Dasgupta found that neither the women nor their partners believed that the women’s violence had made their partners fearful for their safety.97 In fact, one study found that men were more frequently amused and laughed when their partners initiated violence, suggesting that the men did not take their partners’ violence seriously.98 Ironically, women’s use of force may lead to escalation of the

90. STARK, supra note 21, at 165-66; see also id. at 346 (describing a similar “quest for autonomy” by Bonnie Foreshaw).

91. Saunders, supra note 88, at 56.

92. MILLER, supra note 86, at 116-20.

93. See generally STARK, supra note 21.

94. Sue Osthoff, But Gertrude, I Beg To Differ, a Hit Is Not a Hit Is Not a Hit: When Battered Women Are Arrested for Assaulting Their Partners, 8 VIOLENCE AGAINST WOMEN 1521, 1526-27 (2002).

95. See L. Kevin Hamberger & Clare E. Guse, Men’s and Women’s Use of Intimate Partner Violence in Clinical Samples, 8 VIOLENCE AGAINST WOMEN 1301, 1302 (2002).

96. Dasgupta, supra note 85, at 202.

97. Id. at 209-10.

98. Hamberger & Guse, supra note 95, at 1319.

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

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

violence99 and make women who fight back more vulnerable to serious injury.100 Ultimately, Dasgupta concludes that “generally women are quite unsuccessful in achieving their objectives through violence. That is, in most cases, women are able neither to control violence against themselves nor modify their abusive partners’ behaviors according to their own will by using violence against them.”101 Women are often ambivalent about using violence against their partners.

Although many women who fight back perceive that they have no choice but to use violence to defend themselves or their children,102 they are nonetheless conflicted about what they have done. While they recognize that their actions may be illegal, they also believe them to be morally justified.103 But their belief in the morality of their actions does not prevent women who fight back from reacting negatively to having done so. Women who use violence experience higher levels of depression and fear or anxiety than violent men104 and often feel guilty about their actions.105 Women who fight back are more likely than men to admit to using violence and to take responsibility for their violent behavior.106 These women tend to include a great deal of detail in their stories, including exactly where they struck their abusers and how hard they hit.107 This willingness to admit to and minutely recount their violence may be tied to how society perceives violence by women. Because women are socialized to refrain from using violence, they may perceive their violence as “a violation of their socially prescribed gender role,” making these “transgressions” more memorable.108 Women who fight back undermine societal assumptions about appropriate gender roles and how a battered woman should respond to violence. As Dasgupta argues, “[S]ocieties that believe in the stereotype of feminine passivity and tolerance... may perceive a woman who uses violence against her intimate partner as ‘unnatural,’ ‘freakish,’ and ‘criminal by nature’ and deal with her accordingly.”109 Once a battered woman uses violence, her status as “victim” is imperiled. Sue Osthoff explains, “[A] practitioner may not go so far

99. LEE ANN HOFF, BATTERED WOMEN AS SURVIVORS 54 (1990); Saunders, supra note 88, at 57.

100. Dasgupta, supra note 88, at 1372.

101. Id. at 1378 (citations omitted).

102. MILLER, supra note 86, at 124.

103. Id. at 126.

104. Hamberger & Guse, supra note 95, at 1303.

105. STARK, supra note 21, at 166; Dasgupta, supra note 85, at 211.

106. MILLER, supra note 86, at 126; Nancy Worcester, Women’s Use of Force: Complexities and Challenges of Taking the Issue Seriously, 8 VIOLENCE AGAINST WOMEN 1390, 1401 (2002).

107. McMahon & Pence, supra note 54, at 52.



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