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Hastings Women’s Law Journal

Abstract

Many feminists target ignorance of domestic violence as the main reason for judicial resistance to decisions that would punish abusers and redress battered women's harms. But feminist demands to educate courts - to create, for example, a reformed tort law system in which courts understand and take into account the complex situation of battered women litigants - seek an epistemological grounding from which to adjudicate the intractable contradictions in both legal discourse and cultural discourse about women. Domestic violence continues to co-exist with public condemnation of such violence by feminists and some lawmakers. Domestic violence is an open secret in our culture, fated to interface at common law with the open secret in American jurisprudence that the myth of an abstract rule of law is at the same time readily deconstructed, yet crucial and indispensable. Ignorance is not a cognitive darkness from which people emerge into the light of understanding. Rather, ignorance is pluralized and specified to correspond to various regimes of knowledge. For battered women, these regimes of knowledge include cultural mandates that women be intelligible in terms of pre-determined gender roles and sexual identities. For adjudicators, these regimes of knowledge include professional mandates to sustain the authority of precedent through appeals to a rule of law. The combination of (i) the utility to courts of an abstract rule of law, and (ii) social prescriptions for the intelligibility of women, fosters a privileged ignorance of violence against women that will not be erased through enlightenment.

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