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Battered Women and Feminist Lawmaking
By Elizabeth M. Schneider Yale University Press
Copyright © 2000 Yale University
All right reserved. ISBN: 978-0-300-08343-9
Chapter One
Introduction: Battered Women, Feminist Lawmaking, and Equality
In the late 1960s a movement of feminist activists and lawyers began to bring the problem of woman abuse to public attention. At that time, there was no legal recognition of a harm of violence against women by intimates-today known as domestic violence. It simply didn't exist in the legal vocabulary. In 1992, the United States Supreme Court recognized the pervasiveness and severity of intimate violence for the first time in Planned Parenthood v. Casey, and in 1994 Congress passed the Violence Against Women Act. This book is about the process of feminist legal advocacy and lawmaking on intimate violence that has led the Supreme Court, other courts, Congress, and state legislatures to recognize this harm.
Planned Parenthood v. Casey is widely known as the decision in which the Supreme Court narrowly upheld constitutional protection for women's right to reproductive choice, not as a case about intimate violence. But the restrictive Pennsylvania abortion statute challenged in Casey included a mandatory "spousal notification" provision. Battered women's advocacy organizations argued that enforcement of this provision wouldmean that women who faced intimate violence, and who could not tell their partner that they were pregnant without fear of harm, would be unable to freely exercise their reproductive choice. The Court struck down this provision as unconstitutional on these grounds.
In its decision, the Court described the problem of domestic violence, drawing on a startling statistical picture:
In an average 12-month period in this country, approximately two million women are the victims of severe assaults by their male partners. In a 1985 survey, women reported that nearly one of every eight husbands had assaulted their wives during the past year. The [American Medical Association] views these figures as "marked underestimates," because the nature of these incidents discourages women from reporting them, and because surveys typically exclude the very poor, those who do not speak English well, and women who are homeless or in institutions or hospitals when the survey is conducted. According to the AMA, "researchers on family violence agree that the true incidence of partner violence is probably double the above estimates; or four million severely assaulted women per year."
Studies on prevalence suggest that from one-fifth to one-third of all women will be physically assaulted by a partner or ex-partner during their lifetime.... Thus on an average day in the United States, nearly 11,000 women are severely assaulted by their male partners. Many of these incidents involve sexual assault.... In families where wife-beating takes place, moreover, child abuse is often present as well.
Other studies fill in the rest of this troubling picture. Physical violence is only the most visible form of abuse. Psychological abuse, particularly forced social and economic isolation of women, is also common.
Many victims of domestic violence remain with their abusers, perhaps because they perceive no superior alternative.... Many abused women who find temporary refuge in shelters return to their husbands, in large part because they have no other source of income.... Returning to one's abuser can be dangerous. Recent Federal Bureau of Investigation statistics disclose that 8.8 percent of all homicide victims in the United States are killed by their spouses.... Thirty percent of female homicide victims are killed by their male partners.
The statistics that the Court recited, though horrifying, were not news. Feminists in the United States had argued for more than two centuries that women's legally sanctioned subordination within the family denied them equality and citizenship. They saw intimate violence as an important vehicle of this subordination, for, as Wendy Williams put it, it involves the "ultimatum: do as I say, ... subordinate yourself to me, or you will be injured." Feminists claimed that domestic violence threatened not only women's right to physical integrity and perhaps even life itself, but women's liberty, autonomy, and equality. Yet it was only in the late 1960s that any aspect of this link between violence and equality began to be reflected in law and culture.
Since then, the rebirth of a women's rights movement in the United States has had a substantial impact in shaping social attitudes and defining public issues. Law has been a critical component of this process of change, and feminist lawyers have played a central role in shaping it. Feminist activists and lawyers have challenged assumptions about gender roles, the family, and the workplace. Through a process of feminist lawmaking they have given name and visibility to harms experienced by women, such as intimate violence and sexual harassment, that were previously buried by cultural complicity.
The development of a battered women's movement has been one of the most important contributions of the women's rights struggle. This movement created the theoretical concept of battering, and the issue has now moved from social invisibility as a "private problem" to an important public concern. There is hardly a day when a story on some aspect of domestic violence does not appear in the media. The O. J. Simpson case, with its subtext of battering, held public attention for several years. There has been an explosion of innovative activist and advocacy efforts in both state and federal legislative arenas. Organizations have founded shelters or networks of "safe homes," set up telephone hotlines, challenged police practices that fail to intervene effectively to assist battered women, drafted legislation to protect women through civil orders of protection as well as criminal and tort remedies, and developed programs to work with battering men. Lawsuits and legislation have produced improved police and court practices. Activists have developed teen-dating violence programs and special law school and medical school courses. Government reports, legal and social-science literature, and media coverage have proliferated. Advocates and scholars continue to formulate new legal approaches to violence against women. Work in the United States is linked to a feminist human rights campaign on gender violence around the world.
Nevertheless, this many-faceted barrage of activity has not achieved linear, ascending progress; instead, the result has been complex change, partial inroads, and deep resistance. In this book I examine both accomplishments and contradictions through the lens of feminist legal advocacy efforts on violence against women in the United States.
Feminist legal arguments about gender violence have developed from feminist insights about the way heterosexual intimate violence is part of a larger system of coercive control and subordination; this system is based on structural gender inequality and has political roots. The source of insight about the connection between lived personal experience and structural power relations was the notion that "the personal is political." In the context of intimate violence, the impulse behind feminist legal arguments was to redefine the relationship between the personal and the political, to definitively link violence and gender.
Although there have been dramatic strides in the way the law on intimate violence has incorporated these insights, in the process of lawmaking, feminist ideas about the relationship between violence and gender have been simultaneously transformed, depoliticized, subverted, and contained: the broader link between violence and gender inequality that animated them has, to a large degree, been lost, or at least undermined. For example, widespread use of the term "battered woman syndrome" has reinscribed notions of female pathology, provocation, and victim blaming into legal discourse. In the very process of change, systemic analysis of gendered violence consistently meets with ambivalence and resistance. Each step forward provokes efforts to dilute and contain the original theoretical framework.
I have been deeply involved in the work of the movement that I describe. I first became concerned with the problem of violence against women through my work as a lawyer on issues of legal treatment of battered women who, having defended themselves against their assailants, faced problems of gender bias in the criminal law. I have continued to work on these issues in a variety of capacities: in teaching, writing, legal advocacy, and public education; in preparing a report for the Ford Foundation on legal reform efforts for battered women; in training judges and lawyers about issues of gender and violence; and in working to integrate issues of gender generally, and gender violence in particular, into legal education. I have also done work internationally on these issues, most recently and intensely with feminist lawyers, activists, and judges in South Africa. These experiences as activist, lawyer, and theorist have given me a wide vantage point to critically evaluate feminist lawmaking on domestic violence.
My work has explored the social and political meaning of legal claims in feminist struggle, and particularly within the battered women's movement. This work on rights claims began with the development of a theoretical framework that I have called the "dialectical interrelationship between rights and politics." The assertion of legal claims and claims of rights has been shaped by political struggle. Legal argumentation and the articulation of rights reveal tensions and contradictions that sharpen political analysis and move it forward; these theoretical insights must be integrated into practice in order to reshape it. I emphasize the need for close attention to the interrelationship between theory and practice in our understanding of the complexity of women's lives and in the articulation of women's experiences into legal claims.
This theoretical perspective on the relationship between law and social movements shapes this book. The book examines concrete ways in which this dialectical interrelationship operates in feminist lawmaking on battering. It analyzes how the articulation of rights has exposed tensions and paradoxes in feminist legal strategies and visions, but has also clarified issues and sharpened debate. In both content and structure, the book reflects this dialectical relationship between theory and practice.
Now is a time of enormous challenge and opportunity for work on male battering of women. The passage of the Violence Against Women Act and the introduction in Congress of a second Violence Against Women Act have given broad national attention to this issue. Stories of women murdered by battering men continue to receive widespread publicity. Grants of clemency to battered women who killed their abusers have attracted much media attention. In states where restraining-order legislation or the mandatory arrest of batterers has strengthened legal remedies, the percentage of batterings that are reported has increased dramatically. Nevertheless, women who seek help often face "mutual restraining orders" or arrest along with their abusers. And at the same time that legal reform efforts have expanded, public response to clemency efforts has rekindled a national debate on issues of violence against women and women's "retaliation." Anita Hill's experience in alleging sexual harassment against Supreme Court nominee Clarence Thomas, and other more recent, highly publicized sexual harassment cases have underscored the tenacity of views of women as unreasonable and provocative. The current right-wing backlash on such issues as the Violence Against Women Act contests claims of the seriousness of the problem.
The challenge for feminist lawmaking is profound. Feminist legal theorists and practitioners must confront the theoretical implications of strategic choices and the strategic implications of theoretical choices in women's rights litigation, and in legal work on battering particularly. I have argued that the task for feminist lawyers is both to describe and allow for change: to describe a legal problem for women-describe it in detail and in context-and translate it to unsympathetic courts in such a way that it is not misheard and at the same time does not remain static. Feminist lawmakers must develop legal theory and practice that are accurate to the realities of women's diverse experiences but that also take account of complexity and allow for change.
Although this book grew out of this dialectical understanding of the relationship between law and social movements, it has developed far beyond this framework in two important respects. First, I now see law in a more complex, fluid, and multifaceted way. Law is made, and operates, in many sites and in many different ways; it does not exist outside culture but is reflected in popular consciousness, where it takes on a wide range of cultural forms and produces cultural meanings. Law is made, and works, both on the level of "grand" theory and visionary conceptualization and on the "ground" level in practice, not only in major law reform litigation but in individual cases. Yet I still believe that law can be a means of defining and redefining selfhood, of perceiving and reconceiving experience, and that law reform can express new collective identities and needs and manifest a sensitivity to those needs.
Second, I now more deeply understand that even if feminist lawyers describe women's experiences and get the description right, positive change will not necessarily ensue. The process of change is chaotic and uneven; the constitution of women as legal subjects, and the social and legal construction of the problem of domestic violence, are multifaceted; the hurdles of containment and subversion in legal discourse are substantial. As the saying goes, change may simultaneously involve one step forward and two steps backward.
The first section of the book describes the history and early experience of the battered woman's movement, the feminist vision that drove it, and social construction of the problem of domestic violence. It then turns to the theoretical framework of feminist lawmaking. I situate this analysis in feminist legal work and strategy on domestic violence, detail the history of feminist lawmaking on domestic violence, and explore new legal descriptions of violence as gendered that draw on feminist insights concerning gender and violence. I examine aspirations and contradictions of feminist lawmaking in examples of battered women in court and women's international human rights.
In the second section of the book, I explore three core theoretical dilemmas in this framework of feminist analysis on battering: notions of how to define abuse and identity of battered women, which raise issues of what I call particularity and generality in feminist legal theory and practice; of how to describe the complexity of battered women's experiences; and of concepts of domestic violence as private. I explore how these three theoretical tensions emerge and reemerge in different aspects of feminist lawmaking.
In the third section of the book, I examine feminist lawmaking "on the ground." Here, I describe how assertion of legal claims and incorporation of feminist arguments into legal discourse reveal both possibilities and limitations of the vision of gender violence. I look at how legal discourse has opened up the possibility of political "conversation" and transformative experience, and how this process of transformation, containment, and subversion of feminist insights has occurred. I detail generic issues that shape the translation of these insights into law, the incorporation of battered women's experiences and stories into law, the processing of these experiences into "cases," the rejection of battered women's experiences as an authoritative source of legal knowledge, consequent reliance on "experts" and the construction of expert testimony, the role of lawyers, and the meaning of process. I then turn to a closer examination of these themes in two contexts: battered women who have committed homicide in defending themselves against assault, and battered women who are mothers.
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Excerpted from Battered Women and Feminist Lawmaking by Elizabeth M. Schneider Copyright © 2000 by Yale University. Excerpted by permission.
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