The Public Nature of Private Violence

Women and the Discovery of Abuse

Martha Albertson Fineman

• Publisher: Routledge
• Year: 2013
• Topic: Law
• eBook ISBN:
  9781136041341
• Subtopic: Politics
• Index: Law

Explores diverse feminist and legal responses to domestic violence across cultures. Argues that domestic violence must be viewed in its social and cultural context and offers suggestions for those dealing with incidents of abuse.

Section II
Feminist Theory and Legal Norms

Introduction
by Joan Meier

Feminist legal thought has at its heart the goal of articulating the peculiarly male character of “traditional” or “mainstream” legal norms, and recasting those norms in light of women's experiences, realities, and values.¹ In the field of domestic violence, these legal norms have historically been a direct reflection of social and cultural norms which for centuries expressly approved the use of violence by male heads of household against women and children as a means of upholding the patriarchal family system.² Current American legal and social norms are more ambiguous: while family violence is nominally illegal and even criminal, most legal and social institutions still extend little if any recognition or help to victims of such violence, preferring to treat it as a private family dispute rather than a crime. Perhaps because the problems are more apparent in the implementation rather than the definition of the law, domestic violence has been a priority for American feminist activists for close to two decades, but has only recently begun to receive sustained legal analysis by feminist theorists.

The five papers in this section are indicative of the growing sophistication of feminist legal theory in this area. Each examines the assumptions underlying legal images and norms pertaining to domestic violence, and seeks to develop new theoretical frameworks and alternative vantage points from which to view the problem. Two of the papers—those by Rapaport and Van Praagh—analyze and question existing substantive legal standards regulating violence in the family. Eaton, Ashe and Cahn, Van Praagh, and Sells also challenge traditional legal modes of thought, rejecting the “all-or-nothing” approach to defining the “rights” of individuals in the family, and urging a more contextual, nuanced approach to intimate violence by the government and legal system. In their emphasis on the subject of family violence, on the need for “context,” and on the voices of outsiders to the sociopolitical power structure, these papers are archetypes of feminist legal thought which support and complement one another.

However, these papers also push the boundaries, not only of traditional legal discourse, but, to some extent, of “traditionally feminist” assumptions and analyses. Feminist legal thought has historically looked at women as the outsiders to society's norms and positions of power.³ However, in feminism's “third phase,”⁴ the feminist critique has begun to be applied to feminist thought itself, identifying those who have been left outside the feminist analysis—such as African-American women and lesbians—and examining the implications of these new outsiders' experiences for feminist thinking. Thus Marcia Sells and Shauna Van Praagh demand that the voices of children be heard in child welfare decisions; Marie Ashe and Naomi Cahn urge us to listen to the stories of abusive mothers as well as “good mothers” and children; and Mary Eaton confronts feminists with the troubling reality of intralesbian violence.

Perhaps not coincidentally, this broadening of the scope of feminist analysis necessitates an expansion of the feminist archetype—in which women are victims of male oppression and inequity—to encompass women as sometimes victimizers of other outsiders. However, opening up the feminist project to the reality of women's complicity in the suffering of others has the potential for challenging the fundamental raison d'être of feminism. Most of the authors in this Section are optimistic that abandoning the paradigm in which women are innocent victims of male power in favor of a more multifaceted and real depiction of women as simultaneous agents and victims of oppression can be accommodated by and is consistent with feminist thinking. However, these essays raise the question of whether the concept of “feminism,” insofar as it treats gender as the fundamental construct, is still useful.

Woman as Perpetrator and Victim: Intralesbian Violence and Maternal Child Abuse

In “Abuse by Any Other Name: Feminism, Power and Intralesbian Violence,” Mary Eaton attempts to do for sexual orientation what Kim Crenshaw and others have done for race.⁵ Eaton challenges the “essen-tialism” of much of feminist theory as inadequate to account for lesbian oppression generally, and intralesbian violence in particular. At the same time, Eaton notes that intralesbian violence in particular poses a profound challenge for feminist analyses. The common thread in most feminist understandings of heterosexual domestic violence is the view that it is fundamentally a product of society's gender norms, an exercise of male power over women. The existence of intralesbian violence potentially either confirms or destroys this fundamental premise: if we look only at biology, intralesbian violence, by its mere existence, contradicts the gendered hypothesis for heterosexual domestic violence. If, on the other hand, intralesbian violence is seen as mimicking the gender roles of heterosexual society, a gendered explanation for domestic violence may still be valid.

In attempting to reach a tentative understanding of the dynamic of and reasons for intralesbian violence, Eaton notes several potential parallels between lesbian battering and what is known about heterosexual battering, including comparable rates of incidence and types of abuse. More importantly, same-sex battering appears similar to heterosexual battering in that in both contexts, typically one partner is the “batterer” and the other the “victim,” rather than both being participants in a mutually violent relationship. Concomitantly, some aspects of “battered woman syndrome”—a phrase coined to describe the responses of female victims of male intimate violence—are also seen in the lesbian community.

Despite these possible parallels, Eaton argues that, at root, intralesbian violence may be quite different from heterosexual battering in some important respects. For example, the role of sexualization in domestic violence may differ greatly among lesbians and among heterosexuals. Other psychodynamics particular to lesbian relationships may well play a role in intralesbian battering. Most fundamentally, Eaton rejects the rigid projection of “male” and “female” roles on lesbians in battering relationships (as “butch” and “femme”) as both inaccurately stereotypical, and subject to the same problems as stereotyped assumptions about the nature of abusers and victims in heterosexual relationships have been.⁶

As a result of the lack of easily defined pigeonholes in which to put intralesbian violence, victims of such violence are silenced even more than female victims of heterosexual battering. Intralesbian violence is denied by the dominant culture (through the legal system), the feminist subculture (represented by shelters), and the lesbian community, because it does not fit the stereotypes prevalent in any of these. The lesbian community's reluctance to “air its dirty laundry” in public may be shared by the black community, but the utter denial of lesbian battering by both the feminist and dominant cultures sets it apart fundamentally from the problems faced by both black and white heterosexual battered women.

In the end, Eaton calls for a “lesbian-specific model of intralesbian violence” which is separate from but coexists with feminist accounts of domestic violence. In-depth study of this phenomenon and development of a clarifying model are vital for lesbian victims of battering. But any such construct will have to incorporate the reality that, ultimately, both heterosexual and lesbian victims of intimate violence are victims of male power—because both are denied full self-determination in a culture which relies on male domination of women as the primary social determinant.

In “Child Abuse: A Problem for Feminist Theory” Marie Ashe and Naomi Cahn similarly challenge feminism to address another context in which women abuse others: maternal child abuse. The authors point out that child abuse by mothers is far more prevalent than has been generally acknowledged in feminist circles. Like intralesbian battering, maternal child abuse has been largely ignored by feminist thinkers, in part because this phenomenon is problematic for feminist theories, which have focused on ways women are victimized by men. Most existing feminist theories have either neglected the issue entirely, or dismissed maternal child abusers as either unnatural or as themselves pure victims of male or societal oppression.

Feminists' dismissal of abusing mothers has until now been partly a failure to counter patriarchal society's tendency to either idealize women as mothers or demonize women who violate the idealized image of the mother. These tendencies are apparent both in psychological theory, where the perspective of the child has dominated, and in governmental and legal policies regarding child abuse, where white male norms defining the proper role of women have traditionally reigned.

Ashe and Cahn urge us to abandon the pointless debate over whether abusing mothers are really agents of harm to children or victims forced by their oppression to do harm to children, that is, either “bad” or “good.” Drawing on a recent development in feminist legal thought, postmodernist feminism, which calls for abandonment of essentialist categories and attention to the narratives of the excluded, the authors urge us to listen to the voices of abusing mothers to gain a more realistic and multifaceted understanding of them. Experience and psychological theory suggest that all mothers have ambivalent feelings toward their children; that no mother is all good or all bad; and that the reasons for abusing mothers' behavior have yet to be understood. To do justice to women (and children), feminism must find ways to give “bad mothers” a voice, and bring these outsiders too under the feminist umbrella.

Other Subcultures: Children and Religious Community

In “The Youngest Members—Harm to Children and the Role of Religious Communities,” Shauna Van Praagh expands the focus to include the role of religious communities, as subcultures which both nurture and harm children. Like Eaton and Ashe and Cahn, Van Praagh calls for abandonment of a dichotomy embedded in traditional legal norms: in this case, the conflict between parents' rights and the right of the state to intervene on behalf of children. Unlike Ashe and Cahn, however, she calls for a more child-centered analysis on which to base the proper scope of state interventions. Such an analysis, she suggests, must include understanding and recognition of the profound role religious communities can play in the life and well-being of children.

Recognition of the role of religious communities in the life and development of children cuts across the traditional “parent/state” dichotomy from two perspectives. On one hand, acknowledgement of the power of religious communities in cultivating children's identities and values necessarily tempers the traditional definition of the parents as the sole parties with rights and responsibilities toward children. On the other hand, Van Praagh argues that religious communities also serve children's interests in “developing a unique identity through membership.” Moreover, religious communities can comprise an alternative normative culture, a kind of competing public or social authority to that of the state. Recognition of this subsidiary normative universe, along with society's established commitment to religious pluralism, should give rise to a more complex assessment of the costs and benefits of state intervention to protect children. Thus, rather than framing state interventions to protect children as a conflict between the state and parental rights to religious freedom, the analysis should also include the child's interests in membership in her religious community and the harm to the community from state intervention.

Expansion of the child's “domestic sphere” to include her religious community necessitates that we be sensitive to possible harms to children stemming from such communities. Justifications for physical beatings and even killing of children are found in more than one religion. Religious communities can create insularity, which reduces the opportunity for larger society to intervene to protect children. And, of course, religious creeds can lead to childrens' injuries or death when medical intervention is refused in favor of faith healing.

In calling for a more explicit and honest recognition of the positive and negative contributions of religious communities to children's development and well-being, Van Praagh does not purport to “resolve” the difficulties of particular cases or provide a single formula for deciding cases concerning children. Fundamental normative clashes between religious tenets and society's assessment of harm to children will still occur. However, a more cooperative and respectful interaction may be the very means necessary for resolving some of the most difficult value clashes and slowly developing some shared definitions of unacceptable abuse.

The Voice of the Child

In “Child That's Got Her Own” Marcia Sells brings us back down to earth with an examination of how feminist theory interacts with existing legal norms regarding child abuse in the real world of a prosecutor's office. Invoking the stories of several abused children, Sells questions the value of criminal prosecution for this most difficult of crimes. While feminist analyses and theories have given prosecutors tools for assessing child abuse, the impact of abuse, how to question children, and a conviction that it is cathartic for victims of abuse to “tell their story,” Sells emphasizes the trauma to children who must testify against someone they love, and whose genuine voices cannot really be heard in court, because of the artificial constraints of legal questioning and cross-examination of witnesses. The priority of criminal prosecution is not to help children, but to win convictions. Whether or not convictions ultimately benefit the child victims, a far more delicate and sensitive process is necessary to work with and heal abused children.

Sells' paper is a plea for more active and effective involvement of Child Protection Services agencies. In her view, a noncriminal, “helping” response should at least be attempted before the harsh and inflexible hand of the criminal law is applied. However, too many agencies have ceded too much of their responsibility for intervention and assistance to the criminal prosecutors' offices, which often possess superior investigative resources. This trend is unlikely to be reversed anytime soon, particularly in light of the Supreme Court's decision in DeShaney v. Winnebago County Department of Social Services,⁷ which foreclosed a constitutional cause of action against agencies for failure to protect children against abuse, on the ground that the state has no “affirmative” duty to protect private citizens from privately inflicted violence. Sells challenges DeShaney, arguing that agencies should be constitutionally required to follow through an intervention once it is begun, and to protect children's liberty interest in “bodily integrity.”

The sterility of the DeShaney analysis epitomizes the inadequacy of our current legal system for dealing with harm to children. If society can move even part of the way to Sells' goal, it will be a better place for children.

Sexism in the Criminal Law: Of Hell, Fury, and Scorned Men

In “The Death Penalty and the Domestic Discount,” Elizabeth Rapaport also examines the operation of legal norms pertaining to domestic violence in practice. However, she does so from the more global perspective of an empirical overview, and from the somewhat unusual vantage point of a study of capital punishment. Rapaport examines capital sentencing law and practice as an embodiment of society's moral values, with respect to the relative heinousness of different types of murderous violence. Her analysis is both quantitative and qualitative, and demonstrates the hypocrisy of the claim that our law protects and values the family.

Rapaport's qualitative analysis indicates ...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Preface
• Section I / Images of Violence
• Section II / Feminist Theory and Legal Norms
• Section III / International and Comparative Perspectives on Domestic Violence
• Section IV / Policy Postscript
• References
• Cases
• List of Contributors