Despite the progress of the last three decades, the American public and even feminists remain caught in a web of ambivalence and contradictory attitudes and beliefs about battered women. Are battered women traumatized victims who suffer at the hands of their individual abusers and from the systemic failures of a male-dominated culture? Are they, therefore, unable to save themselves or their children? In contrast, are these women survivors who manage to protect themselves as best they can under uniquely difficult circumstances? Do they deserve recognition for their efforts, or do battered women somehow contribute to or exacerbate their own abuse and, therefore, share the blame for their violent predicaments? Conflicting beliefs about battered women have translated into conflicting policies and laws in the battle against domestic violence.
This Article focuses on one conflict in particular: how policies and laws deal differently with the choices of battered women. The legal system gives, but also denies, battered women choices in a variety of ways. It acknowledges, but also refuses to acknowledge, the past choices of battered women. For example, some policies, particularly in the criminal justice system, consider battered women to be weak and helpless. These policies, consequently, deny women any choice, even though crucial decisions that seriously affect their lives are involved. Other laws, such as those concerning restraining orders, typically require battered women to make choices and to take the initiative in order to successfully resist their abusers. Still other practices are even more harsh because they retrospectively denounce the "choices" battered women have made, effectively punishing the women personally for their responses in situations that did not permit true choices. Do battered women have choices? "Always," "Sometimes," and "Never" are each correct responses in the present hodgepodge of policies.
This Article aims to draw attention to all the micro- and macro-level decisions that battered women, and particularly battered mothers, make throughout their experience of domestic violence. These decisions are opportunities for both the women and domestic violence policymakers. By understanding the motivations behind the decisions and incorporating those motivations into laws and policies, policymakers can do more by recognizing the choices of battered women, while heavily influencing their decisions. The system needs to identify and eliminate the troubling conflicts in its present policies by squarely confronting the agency that battered women have, accepting the agency, and using it to an advantage in battling domestic violence. The choices battered women make are significant ones and policies should aim to improve them. This is especially true of battered mothers whose actions impact not only themselves, but also their children.
Part II of this Article begins with an examination of some current policies in the fight against domestic violence and their contrary positions on the choices of battered women and on the victim-agent debate. Part III then explores in detail the history and contours of the victim-agent debate, including the significant contributions of Lenore Walker and Elizabeth Schneider in moving the image of battered women closer to reality. The agency of battered women should not be feared or merely punished in hindsight; instead, as Part IV explains, it should be recognized, accepted, and assisted by both feminist theorists and policymakers. Finally, the Article concludes in Part V by focusing on battered mothers and failure to protect proceedings as a prime example of where agency can be used effectively to interrupt the vicious cycle of family violence. It specifically proposes that where evidence of abuse against mothers exists, there be a mandatory probationary period of intensive counseling and support services for battered mothers prior to any removal of the children, and prior to definitive findings of child neglect or child abuse, or any termination of parental rights.