Same violence, same sex, different standard: an examination of same-sex domestic violence and the use of expert testimony on battered woman's syndrome in same-sex domestic violence cases.

• Author: Pertnoy, Leonard D.

1. INTRODUCTION

   1971 marked the genesis of the Battered Women's Movement and, since then, remarkable strides have been made to address and combat domestic violence. (2) Today, for example, a myriad of domestic abuse agencies offer an array of services, including: 24-hour hotlines; counseling; safe houses; transitional living; children's services; life skills education; professional training; batterers' intervention; and legal assistances These strides, however, cannot extirpate two ugly truths: domestic violence still pervades our society, (4) and it afflicts more than those in heterosexual relationships. (5)

   Anecdotal evidence and a growing body of literature indicate that domestic abuse is not unique to heterosexuals, but occurs in lesbian, gay, bisexual, and transgender ("LGBT") relationships, as well. (6) While it is true that heterosexual women are most often likely to experience intimate violence from their male partners, (7) empirical data now suggests that those in same-sex relationships are proportionally as likely to experience violence in their relationships. (8) Moreover, the patterns, modes, and effects of same-sex domestic violence appear to be virtually identical to heterosexual domestic violence. (9) The following stories reflect these similarities. In fact, by replacing the abuser's name with the letter "X," one becomes pressed in determining the contours of the abusive relationship:

   We started fighting a lot. X got mad at ridiculous things and then I discovered that X was cheating on me. I confronted X and asked X to leave. Instead of leaving, X hit me and said, 'Don't you ever tell me to leave this house!' The next day, X apologized and promised [to] never hit me again. For the next two years, X beat me up on several occasions and finally broke my jaw. A week later, X knocked me into the wall so hard that I needed stitches in my head. I got a restraining order against X the following day. X called to apologize three days after it had been served. X was being so nice that I let X back into the house and, as soon as X was inside, X became abusive again. (10)

   X and I were living together maybe three days when we were in the bedroom and X became angry and hit me .... X smashed my guitar. X kicked and stomped my dog out the door. X would rip off my clothes. X would kick and punch me. I often got black and blue. I could never understand what triggered it. Every little frustration or problem seemed to immediately explode into an exaggerated fit of temper.... These episodes could go anywhere from one hour to four hours, depending upon how much energy X had. (11)

   Admittedly, these stories sound like the all too familiar accounts of domestic abuse inflicted upon women by men; but, surprisingly, both of these stories are told by gay and lesbian domestic violence survivors, respectively. Part II of this Article examines domestic violence in same-sex relationships, (12) its prevalence, similarities, and differences to domestic violence in heterosexual relationships, (13) and the issues that those affected by same-sex domestic violence face. (14) Part III focuses on Battered Woman's Syndrome expert testimony and its role in same-sex domestic violence cases. (15) Finally, Part IV suggests that expert testimony must adapt to today's self-defense cases involving victims of same sex violence. (16)

2. DOMESTIC VIOLENCE

   1. DOMESTIC VIOLENCE DEFINED

      There is a wide variation of terms used to describe violence within intimate relationships. (17) Perhaps the most common term is "domestic violence," but other oft-used terms include "intimate partner abuse," "intrapersonal abuse," "wife beating," "spousal abuse," and "dating violence.'' (18) For purposes of this Article, the term "domestic violence" is used, because it accurately denotes that men and women both receive and inflict violence, and that violence occurs in a wide range of relationships. (19) As aptly noted by the National Coalition of Anti-Violence Programs ("NCAVP"), (20) a leading LGBT social justice task force, the term domestic violence implies nothing specific about "marital status, sexual orientation, gender or gender identity, cohabitation, sexual behavior or other attributes of the partners and/or their relationship." (21) In disregarding these variables, the NCAVP eschews the age-old--and incorrect--notion that domestic violence is limited to heterosexual male-to-female violence. (22) Instead, the NCAVP subscribes to the view that domestic violence is an inclusive term, meaning: "a set of behaviors used by one person in a relationship to control the other," (23) and which "can occur in short or long-term relationships and affect[] all communities," that is, the heterosexual as well as the LGBT communities. (24)

      The Network/La Red, another "social justice organization that works to end partner abuse" in the LGBT community, (25) likewise defines domestic violence broadly as "a systemic pattern of behaviors where one person tries to control the thoughts, beliefs, and/or actions of their partner, someone they are dating, or someone they had an intimate relationship with." (26) These definitions more accurately describe domestic violence, because, despite there being "no accepted definition of domestic violence in the medical literature," (27) it is widely accepted that the central element of domestic violence is not the type of relationship, but power. In fact, a cursory review of the empirical data on domestic violence makes clear that "the goal of the batterer is to maintain his or her domination and control over the victim." (28)

      The data also reveals that batterers will resort to physical violence, psychological or emotional abuse, or material or property destruction to maintain control over their victims. (29) Physical violence is the "most obvious form of control and coercion an abuser uses to maintain the power balance," as it is "easy to recognize black eyes, bleeding gashes, and large bruises as signs of domestic violence." (30) Forms of physical violence include pushing, grabbing, slapping, punching, kicking, pulling hair, throwing objects, raping, strangulating, stabbing, and shooting. (31) The latter examples tragically reveal that not all victims survive the corporeal abuse inflicted upon them. (32)

      Significantly, physical harm is not necessarily the most ubiquitous or harrowing form of violence in all relationships. Some abusers choose to psychologically torment and debase their victims through continual ridicule, humiliation, and threats of physical violence. The abuser may tactically employ a less-obvious mode of abuse, either alone or in combination with physical abuse; namely, he or she may choose to psychologically torment and debase the victim through "continual ridicule, humiliation, and threats of physical violence." (33) This form of abuse has been variously characterized as "the use of verbal and nonverbal acts which symbolically hurt the other or the use of threats to hurt the other"; "behaviors that can be used to terrorize the victim ... that do not involve the use of physical force"; the "direct infliction of mental harm" and "threats or limits to the victim's well-being," and "an ongoing process in which one individual systematically diminishes and destroys the inner self of another. The essential ideas, feelings, perceptions, and personality characteristics of the victim are constantly belittled." (34)

      Not surprisingly, "many [victims] report that [psychological abuse] is as harmful or worse than physical abuse they suffer.... " (35) This is particularly true for victims who are emotionally vulnerable, as it can further rupture their sense of self and foster feelings of low self-esteem, self-blame, guilt, rejection, and depression. (36)

      Moreover, abusers may willfully destroy, steal, or sell their victim's real or personal property. (37) Common examples of this abuse are punching holes in the wall, breaking dishes, slashing tires, tossing clothing and personal effects out of the home, defacing pictures, withdrawing funds, and disposing of precious keepsakes. (38) As one victim poignantly recounted: "I returned home from work to find my apartment destroyed; all of my clothes slashed to ribbons, my piano seriously damaged, precious items destroyed or stolen, plants massacred." (39) Even more virulent undertakings involve setting fire to the victim's dwelling, discarding the victim's medicine or medical aids, and abducting, injuring, or killing the victim's beloved pet. (40) These actions can beget the most acute anguish, because the victim's recovery of irreplaceable property is downright impossible. While some victims are eventually able to flee their abusers, others become entrapped in a cycle of violence that can involve each of the aforementioned modes of violence.

   2. SIMILARITIES BETWEEN HOMOSEXUAL AND HETEROSEXUAL DOMESTIC VIOLENCE

      Domestic violence afflicts the heterosexual and homosexual communities equally in many regards. (41) Ample evidence--both empirical and anecdotal--indicates that the violence itself, its cycle, its effects, and its prevalence appear to be virtually identical in both classes of victims. (42) This is compelling because, by recognizing these similarities, same-sex domestic violence can be recognized as a valid public health concern equally deserving of attention and resolve. (43)

      1. The Cyclic Fashion, Forms, and Effects of Domestic Violence

         In an overwhelming number of cases, abusive partners repeat a pattern of controlling behavior "when there is a challenge to his or her sense of control." (44) This pattern, coined the "cycle of violence" by Lenore Walker in her book, The Battered Woman, (45) applies equally to heterosexual and same-sex couples. (46) This cycle "has three distinctive and repetitive steps," beginning with "the tension building stage." (47) During this phase, the victim will typically experience minor battering incidents and verbal and psychological abuse. (48)...