Wednesday, May 25, 2016

The Night in Question - Guest Post by @JRBProf

By Jeff Baker

The judge interrupted me as I asked my client another question in the hearing, “Counsel, I don’t have time to hear her whole life story. Please stick with what happened on the night in question.” 

“Your honor, this is all relevant to her claim that the defendant has abused her and is a danger to her.” It really was, but it was hard to explain to the judge without launching into testimony myself. To understand what happened that night, to understand the trauma, to understand the terror, to understand the abuse, we needed to show the judge that the night in question was just a small part of the life in question, the family in question.  
“Counsel, I’ll decide what I need to hear. Stick with the date of the alleged abuse. We have other cases to hear today.” I had no choice, so my client and I told the story as best we could.  

"Storytelling is a powerful weapon against
an abuser who wants to own the narrative"
I continued the direct examination, asking my client to testify about the night in question. Did he threaten you? Yes. How did he threaten you? He had the gun out on the kitchen table when I got home. Where were your children?  He had taken them to his parents’ house out in the country. Why didn’t you leave?  He took my keys from the counter and put them in his pocket. How did you get to the shelter?  I ran to my neighbor’s house when he went to the restroom. Why did you leave? Because he always told me that I’d be better off dead. He told me that my family didn’t care anymore and that I was a terrible mother. The last time he hit me….

“Objection. Outside the scope.”
“Sustained.  Counsel, keep it to the night in question.” 
“Yes, your honor.” 

What did the gun on the table mean to you? That he was going to kill me.  Did he threaten you? Not with words, not this time, but I knew he would do it. How did you know? 

“Objection.  Speculation. She can’t know what he meant.  He could have been cleaning it.” 
“Overruled. Let’s hear it.” 

How did you know? I knew he would do it, because he had been threatening to do it for years. He always said he was joking, but I saw it in his eyes. He told me if I ever tried to leave him he’d kill me, and he knew I was planning to leave him. He knew that I had called my mother because he stole my phone. He knew I had applied for a job because he read all my emails. He found the suitcase I’d packed with the kids’ stuff under their bed.
On the night in question? No, earlier in the week, but he took that night off to be sure he caught me when I came home.  

The judge granted the motion for a protection order to keep him away from her, but denied our motion for full custody of the children. She’d have to see him every other weekend until the divorce was final. He hadn’t threatened the children, the judge said, and had not abused them. The judge gave her a restraining order but denied her child support. She could get a job, the judge said.    

After a decade of representing victims of sexual assault and domestic violence, after hundreds of clients, I have learned a few things. No two relationships are the same, and every relationship is a hyper-local culture with a language and signals that may seem benign to the world but that can be fatal at home. An abusive relationship can last for one night of sexual assault, or it can be a decades-long campaign of coercion and intimidation. No two clients are the same, yet the dynamics of power are common. Abuse is not about violence or anger; abuse is about control, possession and subjugation. 
Storytelling is a potent weapon against an abuser who wants to own the narrative, but telling the story repeatedly can traumatize a fatigued victim ever more.  

Tickets for The Interference available here.
I am grateful and proud to contribute some ideas for The Interference this year. Lynda Radley, Alex FthenakisCathy Thomas-Grant, and the Pepperdine crew and cast are undertaking a critical and hard project. The night in question will always matterthe facts, the tick-tock, the actions. But the night in question only really matters in the context of the lives and communities in question. 

The Interference is an ambitious attempt to explore the hyper-local relationship, on the night in question, between the young man who wants possession of the young woman’s body and the young woman who loses possession of her body to him. It is even more ambitious to explore the lives in question all around them, the life of the university, the life of fraternities, the life of friends, the life of the team and its fans, the life of the law, the life of the family. 

The lives in question must grapple with their own complicity on the night in question in the hyper-local relationship of possession, subjugation and coercion. The law will grapple with the facts of the case and the interpretation of police, prosecutors and judges. The university will measure discipline with money, reputation, liability and the cost of telling the truth. Our society will confront or ignore the forces that teach a young man he can possess a woman as his reward for being a man. The young man will reckon with his conscience and power. The young woman will fight to defend possession of herself or die trying.       

Jeff Baker is a clinical law professor at Pepperdine University with years of experience representing victims of sexual assault and abuse, writing about the law of gender violence, and advocating for just community responses. He has served as a consultant for the Pepperdine Scotland Company’s original play, The Interference.

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