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

By Pertnoy, Leonard D. | St. Thomas Law Review, Summer 2012 | Go to article overview

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


Pertnoy, Leonard D., St. Thomas Law Review


I. 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)

II. DOMESTIC VIOLENCE

A. 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.

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