Judicial discourses involving domestic violence and expert testimony

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Hamilton, Melissa

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Feminist scholars and activists broadly perceive the criminal justice system as perpetuating gendered norms. The justice system is more likely to maintain the status quo of cultural and familial relations between women and men than to accept feminist ideologies that seek to promote understanding of the status of women in violent relationships. These concerns are highlighted in the realm of the justice system’s understanding of the needs and strategies of battered women. Domestic violence activists have been successful in encouraging legislative reform in certain jurisdictions to permit expert testimony on battered women’s experiences in criminal trials. The focus of this research is how judges, applying this law, select and frame the evidence, as well as interpret the social meaning of the evidence to develop judicial knowledge on the subject. This study systematically analyzes the text and rhetoric of over 60 California appellate decisions to achieve a better understanding of how the justice system socially constructed the issues and identities related to intimate abuse between adults. Building on feminist and social constructivist theories and using an analytical induction model, I explored and described the ideological definitions of battering that permeate judicial discourse and affect judicial decision-making. In this analysis, two sets of discourses emerged. The discourses of resistance focus on the abused woman’s actions in regard to whether she resisted the immediate assault and whether she took steps to permanently end the relationship. The second discourse relates to expert testimony on Battered Women’s Syndrome and other issues to explain the common practices of battered women, battering men, and the dynamics of abusive relationships. Such expert testimony strongly influences the judiciary’s knowledge of domestic violence.