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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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108. Dasgupta, supra note 88, at 1377; see also Russell P. Dobash et al., Separate and Intersecting Realities: A Comparison of Men’s and Women’s Accounts of Violence Against Women, 4 VIOLENCE

AGAINST WOMEN 382, 406-07 (1998); Michael S. Kimmel, “Gender Symmetry” in Domestic Violence:

A Substantive and Methodological Research Review, 8 VIOLENCE AGAINST WOMEN 1332, 1344 (2002).

109. Dasgupta, supra note 85, at 214; see also Harrison & Willis Esqueda, supra note 37, at 132 (explaining that women who violate behavioral norms are seen as deviant or wicked).

GOODMARK.7.11.2008 7/16/2008 12:44:53 PM 2008] When Is a Battered Woman Not a Battered Woman? 95 as to conclude that the woman who used force is the batterer; he or she may simply conclude that, if the woman used violence, she could not be battered.”110 To resonate with those who can provide assistance, the narratives of women who fight back must strike a delicate balance. Battered women who fight back may be fearful but are not passive—they actively resist their abusers.111 While these women tell compelling stories of being abused and of taking action to stop that abuse, those stories may not be enough to persuade hearers that they are, in fact, battered women. These women must also overcome the stereotype that they defy: the weak, passive, and helpless battered woman.112 Consider, for example, the following exchange between a prosecutor trying the case of a battered woman who killed her abuser and a witness who had known both parties. Responding to the prosecutor’s question about how Dianne reacted when abused by her husband, the witness stated, “You know, Dianne was really calm. You know, Dianne would be really calm until he smacked her and then she’d smack him back. I never seen her do anything to him, you know, it was always him doing it to her, and then she would fight back.” The prosecutor then remarked, “She could probably hold her own, though,” to which the witness replied, “Well, she tried. No, not, well, I don’t think she could hold her own, but she was pretty tough, she’s a pretty tough girl, you know.”113 The prosecutor used this exchange to bolster his contention that, because Dianne could defend herself, she could not possibly be battered.114 Explaining their active resistance to judges schooled in battered women syndrome and the paradigmatic victim poses real challenges for women who fight back.115

110. Osthoff, supra note 94, at 1527; see also Fenton, supra note 39, at 27. This problem is more acute for women who have been charged with assaulting their partners. “Battered women who become defendants frequently find that their entire history of victimization gets erased when they are labeled perpetrators.” Osthoff, supra note 94, at 1529. Susan Miller reports, however, that police officers are beginning to express “a sense of understanding, if not even tacit approval” of the actions of women who fight back. MILLER, supra note 86, at 66. Some of the officers Miller interviewed applaud women’s initiative “because they are not putting up with guys’ shit anymore. Instead of taking it, like the past hundred years, women are giving it back. Which I think is good. I am sick of going to a scene and seeing a battered defenseless woman. And I’m sick of going back to the same scene another day and seeing the same battered defenseless woman.” Id. at 65.

111. MILLER, supra note 86, at 30.

112. STARK, supra note 21, at 389 (“Battered women often complain that they do not recognize themselves in their representation as pathetic victims of another’s will in the courtroom.”).

113. Ferraro, supra note 50, at 116.

114. Id.; see also STARK, supra note 21, at 157 (quoting a prosecutor’s argument that Valoree Day, a battered woman who killed her husband, could not have been abused because she was not “docile, submissive, humble, ingratiating, non-assertive, dependent, quiet, conforming and selfless”).

115. See, e.g., Alana Bowman, A Matter of Justice: Overcoming Juror Bias in Prosecutions of Batterers Through Expert Witness Testimony of the Common Experiences of Battered Women, 2 S. CAL.

REV. L. & WOMEN’S STUD. 219, 247 (explaining that victims who do not meet expectations about how battered women should behave may face credibility problems with juries); Ferraro, supra note 50, at 117 (arguing that portrayals of battered women as tough and assertive undermine the credibility of battered women with juries).

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

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

Social science research suggests that two groups of women are particularly likely to fight back against their abusers: African American women and lesbians.116 A survey of the reasons that they might fight back is offered here, to give a sense of the diversity of the narratives that women who fight back might tell, if given the chance. Not every theory applies to every woman. But the multitude of theories suggests a vast range of stories that women could bring to courts when seeking protection. The narratives of these women may be particularly hard for courts to assimilate, however, given what they have come to believe about battered women.

A. African American Women Who Fight Back

Studies suggest that African American women are more likely than white women to fight back when physically assaulted117 or psychologically abused.118 Various theories have been developed to explain that difference, and while the applicability of those theories is a matter of debate in the social science community, their existence and variety highlights the potential for tremendous diversity in the stories of African American women who fight back.

One very basic and concrete reason that African American women are more likely to fight back may be their perception that no outside assistance is available. Some African American women refuse to turn to formal social services because they have had past negative encounters with the social service provision system.119 Having encountered social service systems that are not culturally competent,120 and that may even seem hostile,121 they are unlikely to

116. The literature on women who fight back is incredibly dynamic. There is some evidence, for example, that despite stereotypes of Asian women as passive and submissive, South Asian women actively resist the violence against them, some (though relatively few) through the use of physical force.

Margaret Abraham, Fighting Back: Abused South Asian Women’s Strategies of Resistance, in DOMESTIC VIOLENCE AT THE MARGINS, supra note 63, at 253, 253-55. Because the research on African American women and lesbians is the best developed, they are the groups discussed here; this focus should not suggest, however, that other women are not fighting back.

117. Vicki A. Moss et al., The Experience of Terminating an Abusive Relationship from an Anglo and African American Perspective: A Qualitative Descriptive Study, 18 ISSUES MENTAL HEALTH NURSING 433, 447 (1997) (describing outcomes of qualitative study in which ten African American women, as opposed to two white women, described fighting back physically); Carolyn M. West & Suzanna Rose, Dating Aggression Among Low-Income African American Youth: An Examination of Gender Differences and Antagonistic Beliefs, 6 VIOLENCE AGAINST WOMEN 470, 487 (2000) (finding rates of physical aggression among African American women ranging from 66.3% to 16.3%, depending on the measure, and describing those rates as higher than rates of physical aggression among white women); see also Robert L. Hampton & Richard J. Gelles, Violence Toward Black Women in a Nationally Representative Sample of Black Families, 25 J. COMP. FAM. STUD. 105, 106 (1994) (finding a greater use of violence by African American women).

118. West & Rose, supra note 117, at 487.

119. Robert Hampton et al., Domestic Violence in the African American Community: An Analysis of Social and Structural Factors, 9 VIOLENCE AGAINST WOMEN 533, 534 (2003); see also Doris Williams Campbell et al., Intimate Partner Violence in African American Women, ONLINE J. ISSUES NURSING (Am. Nurses Ass’n, Silverspring, M.D.), Jan. 31, 2002, http://www.nursingworld.org/ojin.

120. RICHIE, supra note 52, at 146; Tricia B. Bent-Goodley, Perceptions of Domestic Violence: A Dialogue with African American Women, 29 HEALTH & SOC. WORK 307, 308-09 (2004); Janice Joseph, GOODMARK.7.11.2008 7/16/2008 12:44:53 PM 2008] When Is a Battered Woman Not a Battered Woman? 97 avail themselves of those services.122 Other African American women believe that the supports and services created to assist battered women are intended to be used only by white women.123 When African American women are willing to turn to service systems for assistance, their efforts may be thwarted. Particularly for poor African American women living in depressed urban areas, simply reaching the available social services may be impossible.124 As Dr. Tricia B. Bent-Goodley explains, “Transportation constraints, lack of money to get to appointments, and fear of entering a perceived hostile environment often result in a decreased likelihood of African Americans keeping appointments and fully participating in services.”125 The inability of African American women to access social services fosters a sense of isolation that discourages them from seeking outside assistance.126

Woman Battering: A Comparative Analysis of Black and White Women, in OUT OF THE DARKNESS:

CONTEMPORARY PERSPECTIVES ON FAMILY VIOLENCE 161 (Glenda Kaufman Kantor & Jana L. Jasinski eds., 1997). The screening, history-taking, and assessment tools used by many social service agencies have been developed and evaluated through work with Caucasian women, which may cause social services providers to miss issues that arise from the different cultural experiences of African American women. Campbell et al., supra note 119.

121. RICHIE, supra note 52, at 146; Susan F. Grossman et al., Rural Versus Urban Victims of Violence: The Interplay of Race and Religion, 20 J. FAM. VIOLENCE 71, 72-73 (2005). Although one study found that African American women were more likely to remain in shelters longer than their white counterparts, they ascribed the longer stay to the institutional racism African American women encountered in accessing resources that could help to keep them safe once they left shelter. Grossman et al., supra, at 72-73; see also Janice Haaken & Nan Yragui, Going Underground: Conflicting Perspectives on Domestic Violence Shelter Practices, 13 FEMINISM & PSYCHOL. 49, 49-50 (2003) (presenting the story of a young African American woman who experienced shelter as alien and isolating).

122. But see Vetta Sanders Thompson & Anita Bazile, African American Attitudes Toward Domestic Violence and DV Assistance, http://www.musc.edu/vawprevention/research/ attitudesdv.shtml (last visited Apr. 8, 2008) (arguing that African American women do use social services, but may wait to do so until the violence is life threatening).

123. Shamita Das Dasgupta explains, “[M]any domestic violence shelters in this country state that they are ‘colorblind.’ However, the codes of most shelters have been set by and for White women.

Therefore, the statement, ‘We treat everyone the same,’ in actuality can only mean ‘we treat everyone as though she or he is White.’” Dasgupta, supra note 88, at 1379; see also RICHIE, supra note 52, at 146;

Fenton, supra note 39, at 54. One study suggests that African American women may be less likely to use social services provided by whites because they “are socialized to appear in control in the presence of Anglo Americans” and therefore may feel uncomfortable presenting themselves as victims. Moss et al., supra note 117, at 445.

124. Neil Websdale, Nashville: Domestic Violence and Incarcerated Women in Poor Black Neighborhoods, in DOMESTIC VIOLENCE AT THE MARGINS, supra note 63, at 142, 150-51 (explaining that the fear of the physical spaces in which they live—for example, the inability to get a cab back to their homes—can keep low-income battered women from seeking out resources). Because the experiences of poor women of color in addressing domestic violence are so different from those of the paradigmatic victim, Donna Coker suggests that the poor woman of color should be used as the standard for determining whether domestic violence services are appropriate, responsive, and useful to the needs of battered women. Donna Coker, Shifting Power for Battered Women: Law, Material Resources, and Poor Women of Color, 33 U.C. DAVIS L. REV. 1009, 1026-28 (2000).

125. Bent-Goodley, supra note 120, at 308.

126. RICHIE, supra note 52, at 119. Richie notes, too, that “[w]hen the African American battered women took action to protect themselves (as they were socialized to do in their families of origin), they were essentially penalized for not relying on the systems that they felt had failed them in the past.” Id. at GOODMARK.7.11.2008 7/16/2008 12:44:53 PM

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

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