Legal narratives, therapeutic narratives: the invisibility and omnipresence of race and gender.

Author:Espinoza, Leslie G.
Position:Symposium: Representing Race

My first introduction to Denise Gray was through a form.(1) The intake sheet was dated October 17, 1994. The legal problem was straightforward:

Divorce. Married 7 years. Has lived with H [husband] on and off for 15 years. Two children from H born out of wedlock. Clt [client] married in Belmont, MA. Clt has children. H has not been living at home since Dec 1993 when clt found out from 12-yr-old daughter that H was sexually abusing her for the past 2 months. Clt got a temp TRO in Middlesex Probate Ct right away and an extension good til Dec 1994. TRO states H can't be alone w/daughter and can't be either physically or verbally abusive to Clt and children. DSS [Department of Social Services] filed a formal complaint in Dec 1993 but Clt and daughter did not want to press charges so matter was left at that. H supposed to attend "sex offenders" meetings and has not. H living w/another woman who is pregnant by him. Clt was hoping H got necessary help so he would come back and the family would be reunited. H doesn't pay support. W [wife] working til Aug 94. No court orders governing custody, support or visitation. Clt needs advice on all. Note: will probably have DPW [Department of Public Welfare] case soon.(2)

My introduction to Denise Gray would come much later. I am a clinical law professor.(3) The clinic, Boston College Legal Assistance Bureau, is known as "LAB."(4) I teach students law by supervising them as they represent, usually for the first time, a real person with real problems.(5)

Denise's case was assigned to my case docket.(6) I reread the in-take sheet. The top of the form gave me Denise's name, address, and telephone number. It named her husband, Robert Gray, as the opposing party; his address was listed as unknown. Denise was 44, not deaf, and not in need of an interpreter. I assigned the case to Alisa, one of the students I was supervising that semester. The student contacted the client(7) and set up an interview. Following the interview, Alisa would develop a case plan and strategy based on Denise's goals. Alisa would eventually counsel Denise about her options. Alisa would then become one of a succession of student attorneys to move Denise's case slowly through the overburdened court system.(8)

The facts of Denise's case were disturbing, but not unusual.(9) All of the divorce cases on my docket involved abuse of the wife, children, or both. Often the abuse was sexual. Four pending cases involved undisputed rape or sexual abuse of a daughter or daughters by their father.(10)

After a while, try as we might, domestic attorneys, whether we are clinical law professors or representing for-pay clients, become inured to the most shocking of social taboos.(11) Abuse becomes normalized for us. Rape of a child is awful, but it happens. Family law attorneys have routine ways of redressing the situation.(12) This is the standard response: temporary protective orders in district court,(13) divorce action filed in the probate court,(14) and temporary orders during the pendency of the divorce providing for support, custody,(15) and protection.(16) The temporary probate court orders become permanent upon the final adjudication of the case.(17)

The standard response is comforting to the attorney(18)-you get to feel like the knight in white armor.(19) It allows you not to think of the reality of what this family is going through. You do not have to ask the discomforting questions about what happened, exactly, and who knew what when, exactly. It keeps the case and the attorney's focus forward looking. A contextual understanding of what happened does not really matter. Only enough of the background to support the outcome is relevant.(20) What matter are the solutions.(21) Get the father out of the house, keep him away from the family. Get the mother control of her life and the children. Obtain physical and legal custody for the mother, no visitation for the father, and protective orders to allow the mother to get the police to help to keep the father away.(22)

This is exactly what happened with Denise Gray. It is now October of 1996. Denise is divorced. The children are with her. The children have no contact with their father. Their father is restrained permanently from coming close to them, from calling them, from having someone else call them on his behalf.

So why is it that I cannot just close the case file and move on from this case? Perhaps it is because of all the things that Denise and I did not discuss.

Right up to the day of the divorce hearing, Denise was extremely ambivalent about contacting her husband, Robert. She was clear in stating that she wanted a divorce and a "no contact" order. Indeed, she presented a polished account of the horrors of her years with Robert in a number of preliminary court hearings.(23) But Denise kept calling Robert.(24) A week before the final hearing, Denise called Robert at the prison where he was serving time for a number of offenses, including the sexual assault of his daughter. She apologetically told her lawyers that she missed him. In the two years of processing this case, the only time Denise cried was when reminiscing on what good friends she and Robert were, how close they were. Denise recounted how they struggled together, through long talks and much therapy, to address his drinking, gambling, and violence, and how much she missed him.

Certainly Denise, her succession of student lawyers, and I were aware of the significance of the divorce document that would detail the terms of the final order. We were devising a pattern for the interactions-or lack thereof-of this family. But we did not really think about or discuss the actual impact of the order. For example, what was the role of the extended families? How would the families be affected by the order? Did it matter that Denise and Robert Gray had two children, a sixteen year old son, Eric, and a now fourteen year old daughter, Lily? Did it matter that at the time of the final divorce hearing, Eric had a son; Denise and Robert were now grandparents? Did it matter that Denise was a white' Jewish woman? Did it matter that Robert was an African American man?

For Denise, the two years of court appearances and negotiating a divorce agreement were about much more than standard legal outcomes. This time was fundamentally about the way that Denise understood her life. Lawyers are not trained as therapists.(25) We are quick to remind our clients and ourselves that we are not therapists. And yet the construction of a legal story, the obtaining of the facts, the structuring and development of the background of the case, requires the client to build a narrative.(26) And like it or not, the building of a narrative is a powerful force in developing an understanding of self.(27)

The first part of this article will examine the importance of constructing a narrative to clients who have suffered domestic trauma.(28) These clients are overwhelmingly women.(29) Much has been written about the importance of giving voice to the client's story.(30) However, the psychological and sociological literature on victims of sexual and domestic abuse makes it clear that for most of these victims, especially at the time they become our clients, the story of their past is shifting and restructuring. As their present changes, as they break from an abusive relationship, they see events differently. The perspective they will ultimately adopt, for purposes of their own healing, as well as for purposes of a legal case, is still in the making.(31)

The way that the victims of trauma grow to understand what happened to them and what was of their making may be central to their survival.(32) Recovery is premised on the ability to see oneself, not only now but also in the past, simultaneously as a victim and a survivor.(33) This takes time. Lawyer interaction with a client who has been abused should allow the client the space to construct a story in her own time.(34) Lawyers should adopt a more fluid technique of interviewing and counseling that provides space for an evolving contextual understanding of the client's personal history. Even more challenging, legal interaction should incorporate cultural and sociopolitical exploration.(35) Recognition of the patterns of oppression that link victim-survivors to each other is a crucial element in constructing individual histories.(36) Clients and lawyers do not exist in a vacuum that separates us from social patterns. A less detached, less categorical,(37) and less judgmental form of client interaction will open doors to deeper understanding for both the client and the lawyer.(38)

In the second part of this article, I will challenge the predominant approach to client interaction as genderized and racialized. Lawyers reproduce in our individual relationship with clients the broader patterns of law that oppress outsiders.(39) We do not wrestle with the impact of gender-related trauma. Likewise we do not recognize that race matters. Race is invisible, it is mute, despite its omnipresence.(40) In our interactions with clients, we are silent about race. Lawyer silence is a reflection of the predominant theoretical approach to racial justice-colorblindness.(41) The law, and, ergo, the lawyer, strive to treat everyone as if they were the same color, the same race.(42)

Colorblindness does not erase subordination, colorblindness perpetuates it. Colorblind lawyering acts as a barrier to any acknowledgment and response to the reality of the impact of race in our clients' lives.(43) Denise's lawyers knew her husband was Black, and that the children of this marriage were multiracial and categorized as Black by society and themselves.(44) This most salient factor of the family's dynamic was never mentioned. As a lawyer, I was not trained how to talk about race.(45) And I have not trained the next generation of lawyers how to talk about race. This article is a call for change, for race-conscious legal education.


To continue reading