Feminist theories and practices of lawyering : legal representation for women who are survivors of domestic violence

Abstract

The image of a spiral represents the relationship between theory, practices and the experiences of women in the continual project of developing feminist theories. Feminists create tentative theories to explain the experiences of women. These theories inform feminist practices. The practices then lead to new experiences and new interpretations of experiences, which may require new or revised theories. Feminist theories are therefore subject to constant testing in the light of the diverse experiences of women. Each turn on the spiral may require revisiting the same issues; each movement upward on the spiral also represents development of feminist theories towards the goal of more accurately reflecting the diverse experiences of women. The first goal of this project was to consider how feminists develop feminist theories from the experiences of women, considering the relationship between theory and practice in gathering the experiences of women, and in the interpretation and presentation of those experiences. The second goal was to develop feminist theories of lawyering in the area of domestic violence from the experiences of women who are survivors of domestic violence, thereby moving feminist theories of lawyering a full turn on the theory-practice spiral. The theoretical component of the first goal of the project required using feminist theories to inform the gathering and interpretation of the experiences of women with their legal representation. The theoretical component of the second goal required testing current feminist theories of lawyering in light of these experiences. The experiences of women are therefore central to the theoretical aspects of the project. They also provide a focus for the practical aspects of the project: recommendations for lawyers about representing women who are survivors of domestic violence. Perhaps the most significant finding of the research is the frequency with which the women felt that their lawyers did not believe them, especially with respect to the level of danger in which they lived and the severity of the abuse that they endured. Focusing on the disbelief of the lawyers with respect to these aspects of the women's experiences revealed the lawyers' lack of understanding of the dynamics of domestic violence. This finding alone virtually precludes the possibilities for truly ethical lawyer-client relationships in which power is shared and the two-way process of lawyer translation takes place in the context of mutual understanding, respect and a willingness to listen which are required for dialogue. These findings also provide a backdrop to the other issues raised by the research, especially the lack of involvement of the women indecision-making and the lack of advocacy provided to the women. Effective legal representation requires that lawyers be aware of the context in which women seek protection from the legal system, and that lawyers be prepared to assist the women in ensuring their safety by advocating for protection by the legal system throughout the legal process. Lawyers should also be prepared to confront and expose gender bias as it operates in particular cases in a manner that furthers the interests of their clients, and to assist in ensuring that women receive adequate support in using the legal process. The development of feminist theories builds on what we know about women's experiences by producing tentative theories which are tested in light of further experiences. In this project, feminist theories concerning the gathering and interpretation of women's experiences provided the basis for the development of the research methods. The experiences gathered were used to test the recent developments in feminist theories of lawyering. Attention to the situated aspects of experiences resulted in the development of situated theories of feminist lawyering: theories that are relevant to non-Maori women in New Zealand, and that provide a lens through which other women might consider their own theories, practices and experiences.