VAWA @ 20: The Mainstreaming of the Criminalization Critique: Reflections on VAWA 20 Years Later by Mimi Kim

The Mainstreaming of the Criminalization Critique: Reflections on VAWA 20 Years Later

Mimi E. Kim[1]

 

In 1991, Kimberlé Crenshaw drew sharp attention to the shortcomings of the feminist anti-violence movement, coining the term “intersectionality” to chart those vast regions occupied by racially marginalized women.[2] After the Violence Against Women Act (VAWA) passed three years later in 1994, Mari Matsuda responded in a Ms. Magazine article featuring a haunting photograph of an electric chair.[3] At that time, she was among the few to raise public concern about the feminist alliance with the criminal justice system represented by VAWA’s attachment to the Crime Bill of 1994. Matsuda expressed not only her dismay over the carceral implications of the bill but, perhaps more so, the eerie silence from feminists seemingly willing to muffle any misgivings about collaboration with the criminal legal system under the thunder of self-congratulatory applause.[4]

 

Such critique was not new. Angela Davis, in her 1981 book, Race, Class and Gender,[5] and battered women’s movement activist, Susan Schechter, in her 1982 account of the history of the anti-violence movement entitled Women and Male Violence[6] raised concerns over the dangers of feminist alliances with crime control rather early in the history of the anti-domestic violence movement. What is remarkable and tragic is how these pre-VAWA warnings faded with the growing hegemony of the feminist carceral response. No doubt, the rising dollars feeding the five-fold increase in U.S. rates of incarceration would also reward strategies aligned with the growth of the carceral state. By 1994, VAWA appeared to be a victory by most feminist anti-violence advocates and a sympathetic public despite the occasional warnings of such vocal critics as Matsuda and isolated pockets of disbelief among some of us working in shelters, advocacy centers and crisis lines. In 1994, I was among those shelter workers struck by the incongruence of a movement we embraced and a criminal legal system we abhorred.

 

Twenty years past VAWA, the experience of and conditions underlying domestic and sexual violence experienced by women of color and other marginalized people still defy the gender essentialist boundaries of a white-dominated mainstream movement. And twenty years later, we are also left with a rather perplexing juxtaposition of opposing “movement trends.”

 

On one hand, the critique of over-criminalization has become commonplace. While harsher critics may hurl the sharp barbs of “carceral feminism”, a term still a little academic even for those who might agree, milder allusions to “over-reliance on the criminal legal system” have permeated parts of the anti-violence field. For example, a 2002 gathering of concerned anti-violence advocates led to a Ms. Foundation report alerting the movement and the larger public to the phenomenon of “over-reliance on criminalization.”[7]

 

More recently, the Converge Conference of January 2014 that inspired this set of essays represented a new assemblage of progressive feminists, largely constituted of academics and activist/professionals who identify with but remain critical of the feminist anti-violence movement, particularly its emphasis on criminalization. In May 2014, California’s Blue Shield Against Violence brought together a statewide domestic violence grantee conference that highlighted Angela Davis and Aqeela Sherrills, the latter credited with orchestration of the historic 1992 Crips-Bloods truce, as keynote speakers. The specter of the prison-industrial-complex, the complicity of the anti-violence movement and the call for revolution figured centrally in that gathering. In October 2014, the National Network to End Domestic Violence, a national coalition of all state domestic violence coalitions featured Beth Richie’s call to prison abolition[8] and my own historical analysis of carceral feminism within their national gathering, a rare and cautiously welcomed moment in that organization’s history.

 

Those of us who have identified with Angela Davis, Kimberlé Crenshaw and Mari Matsuda as well as Ida B. Wells, the sisters of the Combahee River Collective and lesser known heroines and heroes in social movement struggles more than the more visible champions of VAWA have had the opportunity to stand awestruck and even hopeful at some of the changes we have seen over the past ten years. Some of us have also tempered our enthusiasm with a wariness of the ways in which the critique becomes consumable fare. While I argue against facile accusations of cooptation, I also find this conjunctural moment as one that gives us opportunity to examine the confluence of forces that make such openings possible, as well as to remain aware of conditions that hasten the dissolution of such successes into the perpetual ebb and flow of the hegemonic sea.

 

On the other side of this seeming openness to critique is the reality of feminist anti-violence activism today, perhaps most visible in the morality campaigns accompanying rising public outrage over sex trafficking. In fact, it is this latest form of feminist anti-violence activism that led sociologist Elizabeth Bernstein to coin the term “carceral feminism,”[9] born like the term “intersectionality” in academic journals but informed by the narrowly defined and disturbing strategies pursued by anti-violence feminists as well as the phenomenal policy successes of these social movements. Likewise, this rather new label for a certain form of feminism identified with the pursuit of criminalization has also gained traction among activists who are not only politically opposed to the carceral state but who are also the most likely targets of its violence.

 

Institutionally, the anti-violence field has been taken over by another phenomenon. While battered women’s shelters struggle to survive and racial or ethnic-specific agencies falter in the sweep to consolidate and homogenize services, a new anti-violence institution has come to the fore. Family Justice Centers, founded by prosecutorial offices in San Diego, embraced by the George W. Bush Administration and generously funded by federal agencies and local philanthropists attracted by the concept of an all-encompassing anti-violence “one-stop-shop” or “shopping mall” have risen from the one original storefront to the current roster of over 80 institutions nationwide. Most have followed the model offered by the original San Diego center, that is, the leadership and administration by the office of the District Attorney with the collaboration of satellite community-based organizations. Battered women’s shelters have suffered from justified critiques of becoming increasingly individualistic and punitive, hardly the liberatory spaces imagined at the movement’s beginning. The Family Justice Center model, however, presents a highly problematic alternative, one driven by law enforcement under the guise of a friendly and convenient commercial center.

 

Hence, the growing critique of over-reliance on criminalization has been accompanied by a substantial rise not only in the “encourage to arrest” and law enforcement priorities represented by VAWA, but the increasing occupation of the anti-domestic violence field by institutions directed by the criminal justice system. And, not surprisingly, this odd juxtaposition is complemented by the interest even among law enforcement in alternatives to criminalization. This is in part the result of individuals, even among the system’s avid proponents, who are truly concerned about the ineffectiveness of the criminal justice system, its clumsy instruments and disturbing roster of “unintended outcomes.” However, a more systemic analysis would also reveal those mechanisms of cooptation that seek potentially radical alternatives and transform them into products that keep the carceral machinery ever-reproducing through innovation and the incorporation of critique.

 

There are those who remain vehemently opposed to or at least significantly skeptical of all of this brouhaha about the feminist alliance with criminalization. This includes people who are rightfully cautious about critiques that appear to abound in utopian visions of transformation, seemingly ignorant of the realities of brutality, manipulation and lethality. These also include more systemic forces that, at best, cannot imagine an alternative to the options that many feminists have fought so hard to achieve and, at worst, are willing or even eager to uphold a carceral state that labels, invalidates and disappears swaths of marginalized populations under the guise of public safety.

 

The critique of criminalization and the admonishment of the feminist anti-violence movement for their complicity is going mainstream. Those of us who straddle the chasm between mainstream anti-violence networks, including their progressive edges, and prison abolitionist politics have some serious political analysis and some heavy-duty praxis ahead. The anti-trafficking movement has succeeded even more swiftly than preceding anti-rape and anti-domestic violence movements in making new criminal codes, harsher sentencing and the coercive participation of the victims of violence into the criminal justice system a renewed social norm for dealing with violence against women and children. The latest gender violence campaign is undoubtedly informed by the incredible, unspeakable brutality against children, women, men and transgender persons who have been and continue to be the victims of trafficking in all its forms. But moral outrage tends to point easily towards criminalization as a remedy, organizing all other strategies inside and outside the system towards the criminal justice response.

 

The current flurry of attention to sexual assault on campuses and resulting campus initiatives to take sexual violence seriously through internal mandatory reporting and encouragement to arrest policies is the latest contemporary phenomenon that casts large shadows over the rising critique of criminalization. Within the feminist anti-violence movement, the critique of criminalization may have gone mainstream. But even among those who share concern about over-criminalization, the calls to strengthen and expand the criminalization response often appear to go hand-in-hand when addressing gender violence especially in contexts where there is poor or very little institutional action. Moral outrage still makes a straight line to calls for rescue and salvation and their close companions, punishment and vengeance.

 

The path forward is to imagine, practice, implement, improve and expand alternative community accountability and transformative justice responses to violence that take seriously domestic and sexual violence and also resist the carceral state. The current call is to expand to more sustainable solutions, embedded within communities and more informed by the collective self-determination of those most impacted by such forms of violence – and to challenge the practice and logic of criminalization while still taking the safety and integrity of survivors and accountability for those individuals and systems doing harm seriously.

 

In 2000, Incite! Women of Color Against Violence brought together the forces for a new social movement made up of predominantly women and transgender people of color whose vision for an anti-violence movement brought together the intersection of domestic and sexual violence as well as state violence. Since that time, a scattered group of individuals and organizations, united by this intersectional, anti-carceral politic, also turned back to local communities to imagine, practice and implement alternative strategies. Improvement and expansion remain future goals made challenging by the utter lack of resources accompanying such strategies. Some of us who have been involved in these fledgling attempts not only to critique the movement of which we have been a part but also to give wings to new configurations, shared initial experiences, achievements and lessons learned in a 2012 special issue of the journal Social Justice.[10]

 

In March 2015, Incite! Women of Color and Trans People Against Violence will hold the 15th year anniversary of its historic gathering in 2000. Angela Davis, Andrea Smith, Beth Richie, Shira Hassan, Mia Mingus, CeCe McDonald, Xandra Ibarra, Rachel Herzing, Mariame Kaba, Clarissa Rojas, Andrea Ritchie and a host of other women, trans and people of color who have struggled against violence in the form of the fist, the handcuff, the empty pantry and prison bars will form yet another assemblage of people defying gender essentialism, race-based nationalism and the white-dominant mainstream of so many movements of which we are a part. And each represents a legacy of struggle, a nation of survival and a future of liberation that will require the enormity of our creativity and vision. Mainstreaming the critique against criminalization, for those of us who may occasionally get a graced position at that mainstream table, can bring a welcome sense of recognition, relief – yes, even liberation. But it will take a certain type of collectivity to resist its seductions and to leverage momentary gains towards the world that is not only possible but that is absolutely necessary.

[1] Assistant Professor, School of Social Work, California State University, Long Beach

[2] Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color, 43 Stan. L. Review 1241, 1241-99 (1991).

[3] Mari J. Matsuda, Crime and Punishment, Ms. Magazine, Nov. – Dec. 1994 at 86-88.

[4] See e.g. Mari J. Matsuda, Where Is Your Body: And Other Essays on Race, Gender, and the Law (1996).

[5] Angela Y. Davis, Women, Race & Class (1981).

[6] Susan Schechter, Women and Male Violence: The Visions and Struggles of the Battered Women’s Movement (1982).

 

[7] Shamita DasGupta. Safety and Justice for All: Examining the Relationship between the Women’s Anti-Violence Movement and the Criminal Legal System, Ms. Foundation for Women, (2003), http://files.praxisinternational.org/safety_justice.pdf.

[8] Beth E. Richie. Arrested Justice: Black Women, Violence, and America’s Prison Nation (2012).

[9] Elizabeth Bernstein, Militarized Humanitarianism Meets Carceral Feminism: The Politics of Sex, Rights, and Freedom in Contemporary Antitrafficking Campaigns, 36 Signs (Chic) 45-71 (2010).

 

[10] Alisa Bierria, Mimi Kim and Clarissa Durazo Rojas (Eds.), Special Issue. Community Accountability: Emerging Movements to Transform Violence, 37 Social Justice 4, (2012), http://communityaccountability.wordpress.com/social-justice-journal-issue/editors-introduction/.

 

 

VAWA @ 20: VAWA in the Lives of Battered South Asian Women in the United States by Shamita Das Dasgupta

VAWA in the Lives of Battered South Asian Women in the United States

Shamita Das Dasgupta, Ph.D., DVS, Manavi

The slapping, pinching my skin until bruises appeared, and twisting my arms behind my back began three days after my wedding. I thought this was the strain of the wedding and will pass when we start living together. But it never stopped. In a new country who would I talk to, who would listen to me? He kept saying no one would believe me, I don’t even speak English! He kept saying he will kick me out of the home in this country. My parents don’t want me back, they will be ashamed. They gave me a big wedding and expect me to be with my husband forever. My relatives will say ‘she hasn’t been able to satisfy her husband; she must have done something… My husband says, “You have nowhere to go, you are my naukrani,[1] and that’s how you will stay.” I have no choice.

As an advocate, I have heard some variation of the above lament in numerous South Asian languages since 1985, when I was fortunate enough to be a part of a six women team to co-found Manavi[2] in New Jersey. Organizing around intimate partner violence against women in a community that took overt pride in being a ‘model minority’ was difficult to say the least.[3] While the South Asian community denied the existence of all social ills, the mainstream[4] anti-domestic violence agencies of the time disregarded South Asian women’s distinct needs under the argument, ‘you are in this country now, therefore…’ Yet, South Asian women’s experiences of abuse in the home were palpable enough to warrant an organized community based response that was linguistically appropriate and sensitive to cultural nuances. Manavi’s birth was based on this premise.

By the time Manavi was gearing up to operate effectively and the self-taught advocates were learning the ropes, a daunting barrier appeared in the guise of Immigration Marriage Fraud Amendments (IMFA) in 1986. IMFA was passed to balance extensive immigration based on family reunification and fraudulent marriages, and may have had men in the crosshairs. However, in South Asian communities, battered women became the unwitting victims of the decision. Stories of women being terrorized by their violent husbands who could, at whim, render them deportable residents of this country, abounded. IMFA became a tool of abuse in the hands of violent spouses who successfully thwarted the timid bids of escape by their immigrant wives by vowing to throw them out of the country in ignominy. The best that we as advocates could do for women is to help with individual appeals for permanent grounds under their feet and gather each case for some unknown use in the future.

As a community based and volunteer led organization, Manavi had little financial backing to develop systematic and consistent responses to the victims and perpetrators of intimate abuse. It persevered with tiny donations from individuals who believed in the issue and minuscule grants from small foundations. Even though there were non-governmental anti-domestic violence agencies in every state and county, South Asian women were invisible in this panorama. The South Asian battered women’s movement was gathering force when we received requests for sending in stories of women who have experienced ‘immigration abuse.’ That is, women who have had to endure their spouses’ brutalities lest they are made ‘illegal’ in this country. We were galvanized into action. Manavi sent in women’s stories and testified in front of a commission that was convening meetings of community based organizations to gather information around the country. Those pieces of lives of women that we shared then became a part of the fabric on which VAWA was passed in 1994.

While VAWA-1994[5] provided an escape route for battered immigrant women, it still required them to lay a trail of police reports and help seeking records from advocacy agencies to provide credibility for their complaints. For South Asian women, who attempt to salvage their marriages until the last moment, such a condition was tantamount to abandoning them to their abusers’ control. Consequently, the resource remained out of the reach of most South Asian battered women. Nonetheless, advocates realized that the policy was mandated to support battered women’s charges against their abusers. Even though there were serious gaps in knowledge of domestic violence practitioners, and the law enforcement regarding the lived circumstances of South Asian women and the barriers to their seeking help, these could be ameliorated by education and sensitivity training. With the availability of funds from the VAWA allocation, this was now a viable possibility.

The protection of immigrant battered women that VAWA-1994 offered was extended in the later reauthorizations that eliminated the need for professional affidavit and police record and made South Asian battered women’s search for legal residency easier. Although calling the police for help has remained a challenging hurdle for South Asian women due to cultural prohibitions, it has become slightly more acceptable due to the encouraging collaborations between community based agencies and domestic violence practitioners including the police. Large numbers of battered women in the South Asian community are aware of the options of self-petitioning and U-visa to remain cowed by the threat of willful deportation by the abusers.

There are numerous other provisions of VAWA and its subsequent reauthorizations, from interstate enforcement of orders of protection, creation of T visas, and encouragement of legal assistance programs, to recognition of stalking and dating violence, that provide welcome assistance to South Asian battered and sexually assaulted women. But the strongest of VAWA contributions is that it recognized violence against women in the home as a serious crime, worthy of society’s attention and indignation. In the South Asian community, this recognition means cutting through the historical dismissal of woman abuse as ‘normal wear and tear of life’ and the hostility toward women who speak out as ‘traitors to the culture.’ For community based organizations like Manavi, it has meant being supported by the formidable forces of the federal government. In addition to the practical benefits VAWA has brought to individual women, it also has instigated the process of cultural transformation by forcing changes in the laws and practices of institutions. The topic of intimate violence, which was hitherto ‘unspeakable’ in the community, is now recognized, to some degree, as a legitimate issue that must be discussed and acted upon.

VAWA is not close to arriving at the perfect zone. South Asian women on derivative visas are still forced to remain dependent on their spouses even when they turn out to be abusive; neither law enforcement nor the judiciary are adequately sensitive to South Asian women’s life conditions and social pressures that constrict their responses to abuse. The awareness of resources and recourses available in situations of domestic violence is still limited at best and potential female immigrants are still uninformed of the hazards of entering the U.S. on derivative visas. In addition, many South Asian women who break a lot of barriers to take the abuser to court find that their accounts are not always believed. The stereotypes of South Asian women and unfamiliarity with the patterns of abuse they experience frequently result in a credibility gap; that is, the truth seekers in court view South Asian women as untrustworthy.[6]

Yet, VAWA-2013 brings new hopes to the South Asian community based organizations like Manavi. South Asian advocates hope VAWA-2013 will highlight the issues of violence that youth face, as the next generation comes of age in the community. Along with dating violence, we hope there is increased recognition of and education about forced marriage in colleges and universities, an emerging problem in the community. Another emerging issue that has been overlooked by VAWA is one that has been generated by the tremendous movement of labor due to globalization: transnational abandonment of wives and children. There is little recognition of abandonment as violence against women even in the advocacy community in the U.S., yet, abandonment has far-reaching consequences for married South Asian women. It profoundly affects their financial, emotional, physical, and social well being and renders their lives and livelihoods practically nonviable.[7] The problem is not insignificant. In India alone, immigrant husbands have abandoned at least 30,000 women[8] and the phenomenon may be on the rise.[9] Furthermore, we hope that VAWA-2013, with its special focus on sexual violence, will help generate a positive shift in attitude in the South Asian community, similar to what twenty years of VAWA work has accomplished in the area of domestic violence. Our only hope is that the process would be quicker this time around.

[1] Naukrani is a Hindi term that means ‘housemaid.’

[2] Manavi is the first community based organization that focused on violence against South Asian women in the United States. See, www.manavi.org

[3] Anannya Bhattacharjee, The Habit of Ex-Nomination: Nation, Woman, and the Indian Immigrant Bourgeoisie, 5 Public Culture 19-44 (2002); DasGupta, S., & Dasgupta, S. D., Women in exile: Gender relations in the Asian Indian community in the U.S. in Contours of the Heart: South Asians Map North America, 381-400 (Sunaina Maira et al. eds., 1998).

[4] By ‘mainstream,’ I mean the ideas, attitudes, activities, and practices that are considered ‘normal’ and conventional. These tend to be related to the dominant community in a nation.

[5] VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 1994, Pub. L. No. 103–322, 108 Stat 1796 (codified at 42 U.S.C. §§13701-14040 (1994)).

[6] Shamita Das Dasgupta, Battered South Asian Women in U.S. Courts, in Body Evidence: Intimate Violence Against South Asian Women in America, 211-226 (Shamita Das Dasgupta, 2007).

[7] Urjasi Rudra and Shamita Das Dasgupta, Transnational abandonment of South Asian women: A new face of violence against women, Manavi Occasional Paper No. 6 (2011), available at http://www.manavi.org/wp-content/uploads/2013/10/Transnational-Abandonment.pdf.

[8] Although not all abandoning husbands are residents of the U.S., a significant number are.

[9] Piyush Mishra, Fraudulent NRI marriages on the rise, THE TIMES OF INDIA, (December 20, 2013), http://timesofindia.indiatimes.com/city/ahmedabad/Fraudulent-NRI-marriages-on-the-rise/articleshow/27667834.cms; Madhur Singh, The Honeymoon’s Over, TIME, (October 25, 2007), http://content.time.com/time/magazine/article/0,9171,1675399,00.html.

VAWA @ 20: The Gender Justice Movement: The Fullest Expression of the former Battered Women’s Movement, and the Domestic Violence Movement by Tiloma Jayasinghe

 

The Gender Justice Movement: The Fullest Expression of the former Battered Women’s Movement, and the Domestic Violence Movement

 

Tiloma Jayasinghe, J.D., Executive Director, Sakhi for South Asian Women

 

How long are we going to push our movement to move, before it actually does? In academia, in activism, in front-line service work, and back-office messaging, the emerging mainstream of America is clamoring for a movement to end gender violence that embraces their identity and their needs. Historically marginalized communities may still be vulnerable because of structural oppressions that pose barriers to the fullest expression of their strength, but we are growing in size. How many times does Beth Richie have to note that feminists “won the mainstream but lost the movement” before we (and by we I mean all those with an anti-oppressive, intersectional lens to ending gender violence) capitalize upon that loss and form a more perfect movement? (Richie, B., Plenary Opening Remarks, Converge Conference, University of Miami Law School, Feb. 2014). “Challenges to the traditional feminist framing of intimate partner violence demand a “more nuanced framing that attends to the intersections of race, gender, class, and disability combined with our more robust understanding of abuse” (Goldscheid, J., 82 UMKC L. Rev. 623, 640, (2014).

When someone asks what I do for a living, I used to say, “I run a domestic violence agency.” Then, that started to feel problematic, so I started to say, “I run an anti-domestic violence agency.” And that also felt wrong in some way, both because it did not capture the breadth and scope of our work, and because it was framed in the negative. Even if I used a more inclusive frame to hold the scope of violence that we address, and say that Sakhi is an “anti-gender violence organization” that still is described as what we are not, rather than what we are and what we are FOR. When naming the problem, we should certainly inscribe to a more holistic and comprehensive term such as gender violence to account for the diversity of experience and identification of the people who are impacted. But how should we define the movement? To date, we have identified ourselves as the problem we are trying to eliminate. The predominant rhetoric, in fact, names an entire movement by a very limited term – “domestic violence” movement. But even the “movement to end violence” or the “gender violence” movement does not really set forth our goals in a positive, aspirational light. Plus, to many of us working on the so-called margins of the movement, the term “domestic violence movement” has the implications of being mainstream, racist, un-nuanced, and un-responsive to our communities’ needs, and in fact, willing to sacrifice them and their needs, for some larger good. What that good is, I don’t know.   Twenty years since the passage of the Violence against Women Act, which resulted after decades of work of the battered women’s movement, it is about time that the movement identifies itself with something we can all rally behind and work to achieve. Accordingly, just as the scope of the problem is broad, so should the umbrella term for all those who seek to end it be – the counterpoint of gender violence is gender justice. We moved away from calling ourselves the battered women’s movement. We can do it again, and this time move away from “domestic violence movement’ to the “gender justice movement.”

Gender Justice can be defined as follows:

Gender justice envisions and fights for a world in which people of all gender identities and expressions have the support and resources they need to live safe, healthy, and fulfilling lives. These might include, but are not limited to, safe and loving homes and families, comprehensive and accessible healthcare, material security (i.e. job security and food security), cultural expression, education, and political agency. Gender justice recognizes that realizing this vision cannot be done without considering issues of gender,   race, socioeconomic class, sexuality, nationality, ability, age, and other factors that inform identity and power, and thus, consistently works with an intersectional approach to its    activism.[1]

 

This is just one aspect of its definition, and it is at a stage of malleability, where it can be developed and defined in more clear ways through participation of the movement to end gender violence. But, like Juliet, you may ask, what’s in a name?

Names have power. Framing is important, the way we name, identify and advocate around named terms have capacity to move people, money, resources and goals. Framing can be used by social justice movements to send a message and advocate for social change. See Goldscheid, at 647 (citing Nixon J., Humphreys, C., Marshaling the Evidence: Using Intersectionality in the Domestic Violence Frame, 17 Soc. Pol.: Int’l Stud. in Gender St. & Soc’y 137, 141 (2010)). Ensuring positive framing of our movement’s goals and the work of the people within it validates the tenet of resilience and recovery that are linchpins of our work. Marginalization is not the same as eternal damnation — there is power to transform, there are great skills, knowledge and capabilities that must be respected in even the most marginalized, “vulnerable” class. These communities are resilient, strong, and have integrity. In the US, communities of color, immigrant communities, queer communities, are all often described as vulnerable or marginalized, but we must also be named resilient – of having the capacity and the deep-seated knowledge and ability to be invulnerable and centered if we can address any barriers that hold us back. Survivors of gender violence from these communities are entitled to more than just survival strategies – they should thrive. The concept of thriving is not part of becoming less vulnerable — that’s just surviving. Thriving, is a much more lush and luxurious concept — reflecting resilience and strength.

An intentional focus on framing, and naming our work in broader, more nuanced ways enables us to include more allies and participants in working towards shared goals,gives voice to people who experience gender violence from diverse, often ignored social locations and cultural backgrounds and emphasizes a structural approach that recognizes multiple oppressions and interlocking systems of power and dominance. Goldscheid at 652-3. The experiences of the newly formed New York City Gender Justice Taskforce is a perfect example of what can happen if the gender violence movement embraces gender justice as a rallying call. Although it is still nascent in development, it may be an exciting harbinger of things to come. The coalition was quickly cobbled together in order to ensure that the new mayoral administration in NYC heard the issues and recommendations of those who respond and work to end gender violence. The coalition comprised of sexual assault, domestic violence, and shelter agencies – all mainly service providers, including the agency I lead, Sakhi for South Asian Women. When we were deliberating names that could be inclusive of everyone at the table, the name Gender Justice was identified. It was broad enough to hold all the groups and individuals who were part of the coalition. The term is not used as a proxy for an amalgam of sexual assault/domestic violence/shelter advocates. Adopting the term gender justice requires an intersectional, inclusive, anti-oppressive lens. To name yourself a gender justice advocate, meant that you worked at the intersection of related movements for social justice, outside of service delivery alone, with an understanding of who was NOT at the table, and understanding that we cannot hope to end violence within the home if we cannot end it in our culture. It is a testament to how innovative and progressive this coalition is that they maintain sight of the advocacy they initiated with administration officials and agencies to promote better services and systems that support survivors of violence, while at the same time adopting an intersectional, inclusive, anti-oppressive lens within the group and committing to do the work that results from adopting such a lens. This means creating spaces to explore the work that is not mainstream, not hinged to criminal legal services, and not typically discussed, and an understanding that context matters, as does language. This means that more groups must be included, and more diversity must be embraced. The experiences of this Taskforce can be viewed as a microcosm for how the movement can develop. As Gender Justice advances the Taskforce’s agenda, scope and comprehension, it can advance the domestic violence movement, if it is embraced.

The term gender justice also more fully holds the breadth of work that advocates who works on ending gender violence for their constituencies. Gender violence is more than a single-issue problem. It is more than violence, in fact. Or rather, it is all about violence, but not just domestic, gendered, or intimate-partner related. When a person is experiencing gender violence, there are a whole complexity of other issues that are involved. This is true of any and all communities, but particularly heightened for communities lacking in resilience. The summer of 2014, in which gun-related deaths, murders of black men and youth by law enforcement, dominated our headlines, as well as outright conflict and war abroad, demonstrated issues that the gender justice movement should care about. Women of color are not going to call 911 if they are afraid that the person causing harm may be shot. I can tell you that immigrant, Muslim, women of color often choose to live in violent situations rather than engage in the responses that we currently have at our hands – engagement with the criminal legal system. Take the case of Sakhi. In an average month, the advocate who is working on one woman’s case will engage in work alongside immigration reform advocates to address the high rates of deportation and policies like “Secure Communities” that tear families apart. She will engage in civic integration work by providing ESL workshops and training that help survivors navigate the complex city subway system, for example. She will liaise with criminal legal system reform efforts, through testifying before City Council about instances where law enforcement has failed to provide translation or interpretation services. She will be aware of the huge barrier that the anti-Muslim, anti-South Asian sentiment that arose after 9/11 – being perceived as a potential terrorist is a big barrier for a woman to engage in government systems to access services. She assist her client in enrolling in job training courses so that the survivor can bring income into the home. To say that she is only a domestic violence victim advocate would make you think that she is responding to the violence alone. This is the grossest diminution of the scope and breadth of her work. She works at the intersection of numerous social justice issues to promote the resilience, empowerment and transformation of the women she serves. She is a gender justice advocate. She is not unique. Cessation of violence is a critical goal at the heart of our movement, but it is not the end of our work. We all work for more than just the absence of violence; we work towards justice. For the people we serve to enjoy their fullest expression of human dignity. I am a gender justice advocate. My organization works towards gender justice. Join us as we work to end gender violence and promote gender justice.

[1] I supervised a group of Barnard undergrad students who engaged in research on gender justice issues, and this was the definition that the bright, diverse, committed group of young women developed. I use it here as an example, not as the one, true definition.

VAWA @ 20: VAWA and Welfare Reform: Criminalizing the Most Marginalized Women by Ann Cammett

VAWA and Welfare Reform: Criminalizing the Most Marginalized Women

Ann Cammett, Professor, CUNY School of Law

Introduction

The Violence Against Women Act (VAWA), originally passed by Congress as part of the Violent Crime Control and Law Enforcement Act of 1994,[1] was intended to provide federal intervention into the problem of pervasive gender violence. Soon after VAWA’s enactment, however, national welfare reform legislation, along with a skyrocketing rate of female incarceration, served to undermine the aspirational goals of VAWA for the most marginalized victims—poor women. Therefore, the enactment of VAWA must be viewed in the political context of conservative retrenchment into law and order policies and the elimination of the social safety net.

Welfare Reform

Before VAWA, feminist advocates in the 1970s developed a strategic network of services for battered women to help them procure public benefits in order to gain independence from intimate partners who often blocked access to resources.[2] This strategy was predicated on the common sense notion that economic freedom was a critical element in rebuilding the lives of victim/survivors and their children. Domestic violence was, and is, a primary cause of homelessness.[3] In addition to shelter arrangements, the provision of food stamps, Medicaid, and public assistance—then called Aid to Families with Dependent Children or AFDC—were important stepping-stones toward financial independence for battered women. However, less than two years after the original VAWA legislation President Bill Clinton also signed into law the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA),[4] fulfilling his pledge to “end welfare as we know it.”[5] The new legislation abolished AFDC and replaced it with Temporary Aid To Needy Families (TANF), a time-limited, discretionary state block program that sharply curtailed or denied benefits to many women, including noncitizens. Propelled by racialized rhetoric framing welfare as a “culture of dependency” that discouraged work among poor mothers, politicians successfully sought to stoke white resentment to shred the social safety net.[6] When the dust cleared, welfare was no longer an entitlement and TANF did not guarantee enough income to keep families out of dire poverty.[7]

The weakened social safety net had particularly dire consequences for women attempting to separate from domestic violence situations. Apart from an emphasis on work to the exclusion of nearly all other activities, PRWORA institutionalized a reactionary vision of family construction. Central to the logic of welfare reform is “marriage promotion”—the preferred solution to poverty, which is clearly laid out in the legislation. In fact, PRWORA itself exalts the heteronormative family as a policy prerogative, as indicated in Congressional findings on the importance of marriage and two-parent households.[8] In the absence of reconstituting a two-parent household through marriage promotion, PRWORA requires women to participate in paternity establishment and child support enforcement in order to aggressively transfer the obligation of support for very poor children from the state to “absent” parents, usually fathers.

In this gendered framework, it is easy to imagine why meeting enhanced requirements for necessary benefits would be even more onerous for women fleeing marriages or relationships plagued by intimate partner violence. For example, these women often have difficulty fulfilling work requirements given the other immediate priorities that dovetail with their safety needs, including safe housing and the need to manage altered childcare and school responsibilities. To this end advocates fought for, and obtained, important exemptions and specialized services for victims of domestic violence.[9] Specifically, the Family Violence Option (FVO) gives states the option to screen recipients for domestic violence and to grant exemptions from work and paternity/child support enforcement.[10] However, while these provisions have mitigated the impact of PWRORA for many women, their limited scope, haphazard application, local implementation problems, and even caseworker hostility have left a weakened system of support for many battered women.[11] These problems undermine the intent of VAWA, and put pressure on some women to return to dangerous and unhealthy relationships, as they often are compelled to make choices between survival and punitive state regulation.

The Criminalization of Poor Women

When welfare reform was signed into law there was vigorous debate about the historic gutting of the longstanding entitlement program, but one very significant portion of the legislation received far less attention at the time: the felony drug ban on welfare benefits.[12] While Congress did allow for modification or opt-out for the states,[13] PRWORA imposed a lifetime denial of federal welfare benefits on people convicted of felony drug-related crimes.[14] This aspect of welfare reform serves as a significant barrier for survivors of intimate partner violence because of the very strong correlation between exposure to domestic and sexual violence, women’s criminality, and the “war on drugs.”

The so-called war on drugs had a radical negative effect on communities of color generally, but especially on women. The exponential growth of women’s incarceration in the 1980s and 1990s[15] is directly tied to prosecutions for drug offenses, which are also linked to extremely high percentages of co-recurring domestic violence. Researchers consistently have found high levels of past and current physical and emotional abuse in the lives of women drug abusers.[16] For instance, by some accounts more than 75 percent of incarcerated women report histories of severe physical abuse by an intimate partner during adulthood, and 82 percent suffered serious physical or sexual abuse as children prompting, for many, illegal drug use as a form of self-medication.[17] While VAWA funding has encouraged efforts to recognize and address domestic violence, the Correctional Association aptly notes that, “[t]he large numbers of survivors in prison represents a failure of both the criminal justice and social service systems.”[18] Stated differently domestic violence serves as a risk factor for women’s incarceration, which should be directly confronted to alleviate unnecessary suffering.

As such, the felony drug ban has an outsized impact on poor women who are recovering from both drug abuse and domestic violence. The number of victims affected by the ban is substantial. According to the Sentencing Project, the felony drug ban has likely affected hundreds of thousands of women over the course of their lifetimes, well after most will have completed serving their felony sentences.[19] Moreover, the felony drug ban operates in tandem with a host of other civil collateral consequences[20] that women face after a criminal conviction, creating obstacles to both freedom from abuse and successful reintegration.

Conclusion

While we celebrate the important successes of VAWA on its 20th anniversary— especially the expansion of protections and resources to underserved groups—we should undertake a critical assessment of how welfare reform and the escalating criminalization of poor women limited the contours of service delivery to some victims from the outset. The prevalence of incarcerated survivors of violence demonstrate the importance of acknowledging, prioritizing and providing responsive services to survivors of domestic violence who also have criminal records related to their victimization.

[1] P.L. 103-322 (1994).

[2] Christine George, Welfare Reform and the Safety Needs of Battered Women, in The Promise of Welfare Reform: Rhetoric or Reality? 184 (K. M. Kilty & E. Segal, eds., 2006).

[3] ACLU Women’s Rights Project, Domestic Violence and Homelessness (2006), available at https://www.aclu.org/sites/default/files/pdfs/dvhomelessness032106.pdf.

[4] P. L. 104-193 (1996).

[5] William J. Clinton, Op-Ed., We Ended Welfare Together, N.Y. Times, August 22, 2006, § 2.

[6] I have developed this concept much more in a separate paper. See Ann Cammett, Deadbeat Dads & Welfare Queens: How Metaphor Shapes Poverty Law, 34 B.C.J.L. & Soc. Just. 233 (2014), available at http://lawdigitalcommons.bc.edu/jlsj/vol34/iss2/3.

[7] See Jason DeParle, Welfare Limits Left Poor Adrift as Recession Hit, N.Y. Times, Apr. 7, 2012. (The women that DeParle interviewed “have sold food stamps, sold blood, skipped meals, shoplifted, doubled up with friends, scavenged trash bins for bottles and cans and returned to relationships with violent partners — all with children in tow.”)

[8] 42 U.S.C. 601 § 101. Findings.

“The Congress makes the following findings:

(1) Marriage is the foundation of a successful society.

(2) Marriage is an essential institution of a successful society which promotes the interests of children.

(3) Promotion of responsible fatherhood and motherhood is integral to successful child rearing and the well-being of children.

(4) In 1992, only 54 percent of single-parent families with children had a child support order established and, of that 54 percent, only about one-half received the full amount due. Of the cases enforced through the public child support enforcement system, only 18 percent of the caseload has a collection.

(5) The number of individuals receiving aid to families with dependent children (in this section referred to as “AFDC”) has more than tripled since 1965. More than two-thirds of these recipients are children. Eighty-nine percent of children receiving AFDC benefits now live in homes in which no father is present…”

See also Ann Cammett, Deadbeats, Deadbrokes, and Prisoners, 18 Geo. J. Poverty L. & Pol’y 127 (2011).

[9] See George, Welfare Reform and the Safety Needs of Battered Women, supra note 2, at 185.

[10] Id.

[11] Id.

[12] 21 U.S.C.A. § 862a.

[13] States can opt out of the complete lifetime ban, modify it, or adopt it in its entirety. To date nearly three quarters of states have adopted some form of restriction. See Marc Mauer and Virginia McCalmont, A Lifetime Of Punishment: The Impact Of The Felony Drug Ban On Welfare Benefits, The Sentencing Project, (2013), http://sentencingproject.org/doc/publications/cc_A%20Lifetime%20of%20Punishment.pdf

[14] Id.

[15] The number of women in prison increased by 646% between 1980 and 2010, rising from 15,118 to 112,797. See Guerino, P., Harrison, P.M., & Sabol, W., Bureau of Justice Statistics, Prisoners in 2010 (2011).

[16] See ACLU, Break the Chains: Communities of Color and the War on Drugs, and The Brennan Center at NYU School of Law, Caught in the Net: The Impact of Drug Policies on Women and Families 9 (2005).

[17] See Correctional Association of New York, Survivors of Abuse and Incarceration http://www.correctionalassociation.org/issue/domestic-violence, last visited Nov 5,, 2014.

[18] “Some women are in prison for defending themselves against an abuser. Others are incarcerated because they engaged in criminal activity to survive or because they took action at the behest of an abuser out of fear and threat of harm.” Correctional Association of New York, Survivors of Abuse and Incarceration Fact Sheet, http://www.correctionalassociation.org/issue/domestic-violence, last visited Nov 5, 2014.

[19] See Mauer and McCalmont, A Lifetime Of Punishment, supra note 13, at 4.

[19] Id.

[20] Colgate Love, Margaret, Jenny Roberts, and Cecelia Klingele, Collateral Consequences of Criminal Convictions: Law, Policy and Practice at section 9:10 (NACDL Press and Thomson Reuters Westlaw 2013).

VAWA @ 20: Improving Civil Legal Assistance for Ending Gender Violence by Elizabeth MacDowell

Improving Civil Legal Assistance for Ending Gender Violence

Elizabeth L. MacDowell, William S. Boyd School of Law, University of Nevada Las Vegas*

Introduction

The Violence Against Women Act (VAWA) provides vital funding for improved civil legal responses to domestic and sexual violence, but current approaches do not go far enough to address deep-rooted problems. This essay advocates for new approaches that address the problems survivors encounter in family courts, where civil remedies for domestic violence are typically pursued. These reforms require addressing stereotypes about perpetrators as well as victims, and lifting barriers to civil legal assistance for vulnerable populations. This essay describes the goals of civil responses, barriers to achieving those goals, and proposes amendments to VAWA to address the problem.

Goals of Civil Remedies for Domestic Violence

Anti-domestic violence activists pursued civil remedies for domestic violence as an alternative to the criminal justice system.[1] Specifically, legislation creating civil protection orders was seen as a way for women of color to obtain injunctive relief prohibiting abuse without subjecting abusive partners to racist law enforcement practices.[2] Protection orders were also designed to improve upon injunctive relief available through divorce proceedings, and expand protection from abuse and other relief to unmarried women.[3] Civil orders could be enforced through criminal contempt proceedings in family court, and not require engagement with the criminal system.[4] Overall, activists wanted battered women to have more agency and control over remedies for domestic violence than those available through criminal responses. They also hoped that family court orders for custody and protection of children created a hedge against removal of children by child protective services; a prophylactic against intrusion of state into the lives of battered women.[5] However, numerous problems plague survivors seeking help for domestic violence in civil as well as criminal courts, including family courts where remedies for domestic violence are typically pursued.

Perfect Victims And Perceivable Perpetrators

Family courts are rife with bias, especially for domestic violence survivors.[6] Critical feminist theories like intersectionality explain why some women may be recognized as victims more readily than others because of the ways that dominant social norms about victims interact with race and gender stereotypes.[7] In particular, domestic violence law and policy is informed by an ideal of the perfect victim: a woman who is white, middle class, heterosexual, and passive.[8] Women who diverge from that norm are less likely to be recognized as victims. Additionally, recognition as a victim depends on the identity of the perpetrator.[9] As a companion to the victim identity, the “perceivable perpetrator” identity is hinged on assumptions about criminality that relate to race, sexuality and class. In brief, these assumptions tend to view men of color as more likely to be perpetrators than white men.[10] Thus, being recognized as a victim deserving of assistance or relief requires fulfilling two sets of expectations: that of the perfect victim and the perceivable perpetrator. For poor women, women of color, lesbians, and women who fight back, this also requires overcoming stereotypes that negate their victimization. .

Intersecting Civil, Criminal, and Child Welfare Systems

Despite the intentions of activists, survivors accessing civil remedies may also become engaged with the criminal justice system and other potentially punitive state systems, and experience unwanted interventions into their families. Such interventions become more likely when systems are intertwined, such as when family courts utilize child welfare workers to investigate custody claims,[11] when criminal and civil remedies are combined within specialized, integrated domestic violence courts,[12] and when civil legal assistance and other services are combined with law enforcement within Family Justice Centers.[13] In these instances, the goals and objectives of the State supersede those of survivors, and the benefits of civil responses are unrealized.

New Approaches to Address Old Problems

Expanding Anti-Bias Training and Accountability Measures

Congress should amend VAWA to address the intersectional nature of gender stereotyping. Training for judges and other court personnel under VAWA focuses on stereotypes as they pertain to victims, not addressing stereotypes about perpetrators.[14] Additionally, training about stereotypes regarding the prevalence of domestic violence in particular racial communities does not necessarily address the intersecting nature of race and gender stereotypes and how this impacts assessments of whether domestic violence has occurred (e.g., that white men may be perceived as less culpable than black men, especially of violence against woman of color, or that white women are more credible victims than are black or Latina women).[15] Neither does it necessarily address the ways in which class intersects with stereotypes about race and gender. VAWA should be amended to specify that trainings for court personnel include a more comprehensive and intersectional approach to these issues. Additionally, VAWA should be amended to encourage greater understanding about how these stereotypes impact outcomes and accountability for courts and service providers. This should include funding to encourage tracking of statistics on the race and gender configurations of parties and outcomes in civil court cases. Court watch programs are also a promising way to promote accountability and improve legal responses,[16] and should be funded as well.

Separating Systems and Services and Fostering Accountability

The goal of civil legal responses is to increase safety and eliminate violence by offering survivors a positive alternative to the criminal justice system and encourage freedom from unwanted state intervention. Thus, civil remedies should not be bundled with criminal remedies or law-enforcement services, nor should survivors be exposed to child welfare systems as a price of accessing civil assistance. Federal grants should be structured to encourage independence of civil and criminal courts, and independence of child welfare systems from cases where the state is not a party. If integrated courts and programs continue, they should be required to demonstrate how survivors are protected from unwanted state interventions. Moreover, civil legal services, including self-help services, should be required to demonstrate independence from courts, law enforcement, and any other potentially conflicting service partners. Federal law should also require funded legal service programs to demonstrate accountability to survivors both in terms of their own services and how they foster accountability of the courts; for example, by partnering with other advocacy organizations in systemic advocacy and reform.[17]

Removing Funding Restrictions that Limit Access and Remedies

Funding restrictions that defeat the development, study, and dissemination of best practices should be eliminated. These include federal prohibitions on tort litigation, lobbying,[18] and legal assistance to prisoners.[19] In particular, the problems of stereotyping and bias as well as the strong connection between incarceration and victimization demonstrate the need for legal services to assist incarcerated women and aid in their reentry.[20] Therefore, barriers to legal assistance for prisoners should be eliminated through VAWA with the express purpose of addressing and eliminating gender violence.

Conclusion

Problems in the civil system have inhibited access to important resources for gender violence survivors. However, through some relatively minor amendments to VAWA, the goals of civil remedies may be more readily achieved.

* Associate Professor of Law and Director of the Family Justice Clinic at the William S. Boyd School of Law, University of Nevada Las Vegas.

[1] Interview with Barbara Hart, Nov 21, 2013, Director of Strategic Justice Initiatives and Director of Law and Policy, Violence Against Women Initiatives, Muskie School of Public Service, Cutler Institute for Health and Social Policy, University of Southern Maine (notes on file with author) (hereinafter Hart Interview). See also Susan Schechter, Women and Male Violence: The Visions and Struggles of the Battered Women’s Movement 162-65 (1982) (describing early civil legal reforms for battered women).

[2] Hart Interview; Schechter, supra note 1, at 163.

[3] See id. at 163 (noting problematic nature of remedies for unmarried women); Hart Interview, supra note 1.

[4] Id. But see Schechter, supra note 1, at 162-63 (describing family courts’ failure to enforce orders).

[5] Hart Interview, supra note 1.

[6] See, e.g., Elizabeth L. MacDowell, Theorizing from Particularity: Perpetrators and Intersectional Theory on Domestic Violence, 16 J. of Gender, Race & Justice 531, 539 n.28 & 29 (2013) (describing studies); Jeannette F. Swent, Gender Bias at the Heart of Justice: An Empirical Study of State Task Forces 6 S. Cal. Rev. L. & Women’s Stud. 1, 55-58 (1996); Schechter, supra note 1, at 162-63.

[7] See generally Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1257 (1991).

[8] See generally Adele M. Morrison, Changing the Domestic Violence (Dis)Course: Moving from White Victim to Multi-Cultural Survivor, 39 U.C. DAVIS L. REV. 1061 (2006).

[9] See MacDowell, supra note 6, at 546-49.

[10] Id. at 547.

[11] See Leah Hill, Do You See What I See? Reflections on How Bias Infiltrates the New York City Family Court – the Case of the Court Ordered Investigation, Col. J. L. & Soc. Prob. 527 (2007).

[12] See Elizabeth L. MacDowell, When Courts Collide: Integrated Domestic Violence Courts and Court Pluralism, 20 Tex J Women & Law 95 (2011).

[13] See Family Justice Center Alliance, http://www.familyjusticecenter.org/index.php/history.html.

[14] See 42 U.S.C. § 13992(6) & (13) (2013) (regarding training on sex stereotyping of victims provided by grants).

[15] See id. at § 13992(13).

[16] See, MacDowell, supra note 6, at 575-76; see also Laura Jones, Court Monitoring as Advocacy, 16 Connections 17, 7-11 (Fall 2012), available at http://www.wcsap.org/sites/wcsap.huang.radicaldesigns.org/files/uploads/resources_and_pubs/connections_2012_10/Connections_2012_10.pdfp.

[17] For a detailed discussion of access to justice reform, see Elizabeth L. MacDowell, Reimagining Access to Justice in the Poor People’s Courts, 22 Geo. J. Pov. L. & Pol’y (forthcoming 2015) (manuscript on file with author).

[18] 42 U.S.C. § 13925(b)(9) – (10).

[19] See Rebekah Diller & Emily Savner, A Call to End Federal Restrictions on Legal Aid for the Poor, Brennan Center for Justice 3-4 (2009), available at http://www.brennancenter.org/publication/call-end-federal-restrictions-legal-aid-poor.

[20] See Correctional Association of New York, Survivors of Abuse & Incarceration (2012), available at http://www.correctionalassociation.org/issue/domestic-violence.

 

VAWA @ 20 : Gender Violence and Civil Rights by Julie Goldscheid

Gender Violence and Civil Rights

Julie Goldscheid, Professor, CUNY Law School

 

The civil rights remedy enacted as part of the 1994 Violence against Women Act (VAWA) was widely touted as holding the promise to transform views about gender violence, to fill gaps in existing laws, and to help meet the constitution’s promise of guaranteeing equal protection of the laws. Although the law, which allowed survivors of gender violence to sue the perpetrator for money damages in federal court, had some critics, and although it did not reach as far as its drafters had hoped, many expressed outrage and disappointment when it was struck down by the Supreme Court as unconstitutional in U.S. v. Morrison.[1] Recent statements by Vice President Biden announcing his plan to convene a Summit on Civil Rights and Equal Protection for Women and calling for a new look at a civil rights remedy,[2] remind us that the decision striking the remedy need not end efforts to consider how new and existing civil rights laws and initiatives might advance survivors’ options and shift cultural understandings of abuse.[3]

“Civil rights” continues to be a frame that holds expressive and symbolic value and can play a key role in advancing transformative change. Twenty years after the VAWA civil rights remedy was enacted, gender violence survivors’ civil rights continue to be violated. Violations occur both through the commission of acts such as intimate partner violence and sexual assault, and through discriminatory treatment of actors throughout the civil and criminal justice systems, including police, prosecutors, court personnel and judges. Unfortunately, there is no shortage of examples. We can look to Jessica Lenahan, whose procedural due process claim was rejected by the U.S. Supreme Court after her children were killed, following local law enforcement authorities’ refusal to follow up on her calls for help after her former husband took their children in violation of a protective order.[4] Or we can consider the challenges facing Marissa Alexander, who is threatened with 60 years in prison for defending her life from her estranged abusive husband.[5] And we need go no further than the events surrounding Ray Rice’s abuse of his then-fiancé for a reminder that cultural norms still countenance abuse.[6] Innumerable examples of less high-profile cases mirror similar themes. Survivors’ challenges are exacerbated by policies emphasizing criminalization and incarceration, vilification of those who are undocumented, and punitive policies towards the poor. VAWA’s anniversary affords an opportunity to consider how civil rights laws and civil rights initiatives, broadly construed, might be used today.

The 1994 VAWA civil rights remedy provided a private right of action against a perpetrator of a crime of violence that was gender motivated.[7] It reflected multiple goals: it sought to provide an alternate to criminal justice remedies; to put a suit for redress in the hands of the survivor rather than the state; to afford a means of compensating for economic harms resulting from abuse; and to afford a federal remedy so that survivors could recover regardless of the state in which they lived.[8] It sought to fill gaps left by formal and informal failures of and discrimination by state law and practice, and to recognize the connection between gender violence and historic and enduring gender-based stereotypes and prejudices. The goals can be thought of as two-fold: practical, in terms of affording compensation and providing redress that otherwise would be unavailable; and symbolic, in that a law reframing gender-based violence as gender discrimination and a civil rights violation, would help transform stereotypes treating gender violence as a private matter, not worthy of public concern. Current proposals could advance both those goals.

The need for laws and policies that address survivors’ practical and economic concerns remains stark. Gender-based violence exacts an economic toll on its survivors and has a harsher impact on those with limited means. Ongoing work is needed to effect more widespread enactment and enforcement of laws and policies helping to ensure that survivors don’t lose their housing or employment as a result of abuse. Although it seems anathema to the United States’ current economic justice policies, economic relief could encompass broader availability of financial benefits, to help expand survivors’ choices in the face of abuse.

A renewed civil rights initiative could address transformative goals through law reform and related initiatives. A revised civil rights remedy could revive a cause of action against a perpetrator; it could avoid the Morrison Court’s concerns by incorporating a jurisdictional element requiring a connection with commerce in each case.[9] In addition, a renewed civil rights remedy could be directed to hold institutions accountable for responses to gender violence survivors that violate survivors’ civil rights. The 1994 civil rights remedy was premised on the assumption that existing laws provided remedies for institutional actors’ roles in committing and perpetuating abuse. But survivors’ experiences in light of recent caselaw, suggests that it might be time to re-think that assumption. Take, for example, law enforcement accountability for responding to survivors’ calls for assistance. The Castle Rock decision foreclosed procedural due process arguments; although substantive due process and equal protection theories remain available, requirements of proof either of intentional discrimination or of officers’ affirmative acts that increased the danger of private violence, effectively preclude many suits.[10] Internationally, courts and other adjudicatory bodies increasingly recognize States’ responsibility to do “all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge.” We might consider how to lay a foundation for more meaningful accountability.

Renewed remedies might build on existing initiatives to use the power of the federal government to hold local officials accountable. Recent Department of Justice investigations have held police departments in New Orleans, Puerto Rico, and Maricopa County, and the prosecutors’ office in Missoula, Montana, accountable for gender—biased law enforcement.[12] Legislation could confirm that the Department of Justice’s civil rights investigatory authority applies to all state agencies involved in the investigation and prosecution of gender violence. An administrative guidance could confirm the Department of Justice’s authority to investigate claims of gender-biased law enforcement practices and its conclusions that biased policing includes both over- and under-enforcement, as well as policies and practices that reflect compound forms of bias. Initiatives might replicate and regularize the court watch programs that have produced important reports documenting the injustices survivors face in family court in particular.[13]

Complementary initiatives can shine a spotlight on the multiple and enduring ways gender violence violates survivors’ civil rights. Public education campaigns could be directed at challenging the ways deeply entrenched biases such as those based on race, national origin, immigration status, sexual orientation and gender identity, as well as gender, shape survivors’ experiences of abuse and of the systems that purport to serve them. Summits could provide survivors an opportunity to share the ways their experiences with the civil and criminal justice systems violated their civil rights. Other education campaigns could let survivors know about available investigatory resources when local law enforcement fails.

The last twenty years confirm the compelling need to use all available strategies to assist survivors and to shift enduring cultural norms that allow gender violence and its attendant harms to persist. It behooves us to tap our collective creativity to consider the role civil rights law and policy can play in that critical project.

 

 

 

[1] 529 U.S. 598 (2000).

[2] The White House, FACT SHEET: Standing Up for Women’s Civil Rights, 20 Years After VAWA, (Sep. 9, 2014), http://www.whitehouse.gov/the-press-office/2014/09/09/fact-sheet-standing-women-s-civil-rights-20-years-after-vawa.

[3] Some of the arguments presented in this essay were presented and developed more fully in, Julie Goldscheid, Rethinking Civil Rights and Gender Violence, Geo. J. Gender & L. 43 (2013).

[4] Castle Rock v. Gonzales, 545 U.S. 748 (2005).

[5] See Free Marissa Now, http://www.freemarissanow.org (last visited Oct. 8, 2014).

[6] See, e.g., Natalie J. Sokoloff, Ray Rice, Janay Rice, and DV, http://nataliesokoloff.wordpress.com/publications-2/ray-rice-janay-rice-and-dv/ (last visited Oct. 8, 2014).

[7] 42 U.S.C. §13981 (1994), invalidated by United States v. Morrison, 529 U.S. 598 (2000).

[8] See, e.g., Sally F. Goldfarb, Use and Abuse of Federalism, 71 Fordham L. Rev. 57 (2002); Victoria F. Nourse, Where Violence, Relationship and Equality Meet: The Violence Against Women Act’s Civil Rights Remedy, 11 Wis. Women’s L.J. 1 (1996).

[9] In fact, legislative proposals introduced after the Morrison decision did just that. See Violence Against Women Civil Rights Restoration Act of 2003, H.R. 394, 108th Cong. (2003); Violence Against Women Civil Rights Restoration Act of 2001, H.R. 429, 107th Cong. (2001).

[10] See, e.g., Goldscheid, supra note 3, at 66-74.

[11] Julie Goldscheid & Debra J. Liebowitz, Due Diligence and Gender Violence: Parsing its Power and its Perils, Cornell Int’l L.J. (forthcoming 2015), available at http://ssrn.com/abstract=2494867 (citing cases).

[12] See, e.g., U.S. Dep’t of Justice, Special Litigation Cases and Matters, http://www.justice.gov/crt/about/spl/findsettle.php#police (last visited Oct. 8, 2014).

[13] See, e.g., National Center on Domestic and Sexual Violence, National Court WATCH Programs and Projects, available at: http://www.ncdsv.org/images/NationalListofCourtWatchProgramsUPDATEDMARCH08.pdf (last updated Mar. 8, 2008).

 

 

VAWA @ 20: A Collection of Essays

 

 

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CUNY Law Review is excited to announce the publication of a fifteen part series about the legacy and impact of the federal Violence Against Women Act (VAWA)
This year marked the 20th Anniversary of VAWA, which was signed into law on September 13, 1994.

In collaboration with CUNY Law professors Julie Goldscheid and Ann Cammett, as well as a range of authors across several disciplines, CUNY Law Review is presenting fifteen brief, insightful pieces offering different perspectives on the impact of VAWA and potential directions for future reform.

These pieces will be published on our website in two parts: the first will go live on November 21, 2014, at 8pm, and the second on November 30, 2014.

They are available at VAWA @ 20 above or by clicking the picture!

 

 

 

 

Digital Program — The Long Crisis: Economic Inequality in New York City

LongCrisisProgram-1

The City University of New York Law Review is proud to present “The Long Crisis: Economic Inequality in New York City”, a panel event focusing on the role that economic inequality and injustice play within the context of social justice legal issues and practical solutions lawyers and activists are employing to help overcome the inequality.

The Law Review thanks our fellow student organizations for endorsing this event: Law Students for Reproductive Justice (LSRJ); Latin American Law Students Association (LALSA); Labor Coalition for Workers’ Rights and Economic Justice; CUNY Law’s National Lawyers Guild Chapter (NLG); Iraqi Refugee Assistance Project (IRAP); Students for Justice in Palestine (SJP); CUNY Law Association of Students for Housing (CLASH).

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Panel Event: The Long Crisis — Economic Inequality in New York City

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The City University of New York Law Review is proud to present “The Long Crisis: Economic Inequality in New York City” on November 12, 2014, at 6:00pm, at the CUNY School of Law (2 Court Square, LIC, 11101).

“The Long Crisis” will reflect the theme of CUNY Law Review’s 18th volume: the role that economic inequality and injustice play within the context of social justice legal issues and practical solutions lawyers and activists are employing to help overcome the inequality.

The panel features Fahd Ahmed, acting executive director of DRUM–South Asian Organizing Center; Tom Angotti, professor of Urban Affairs and Planning and Director of the Hunter College Center for Community Planning and Development; Stanley Aronowitz, Distinguished Professor in the Ph.D. Program in Sociology at the CUNY Graduate Center; Jennifer Jones Austin, CEO and executive director of Federation of Protestant Welfare Agencies; Shawn Blumberg, legal director of Housing Conservation Coordinators; and Robin Steinberg, founder and executive director of The Bronx Defenders. A free dinner reception will follow the panel.

The event is completely free and open to the public, but it’s necessary to register at bit.ly/long-crisis

CUNY Law Review’s Brett Dolin Quoted in The Gothamist

Notes & Comments author and Cunity Conversations discussion leader Brett Dolin was quoted in The Gothamist about his research on BIDs:

Brett Dolin, a law student at CUNY who has been researching the legal history of BIDs in New York City, argues that the determination of whether a BID should be established in the first place has drifted away from the original intention. According to the 1989 BID Act, a BID can be formed in a neighborhood that is in a “deteriorated condition.”

“But a lot of times the BID Act has been used to to fund totally different kinds of initiatives that have nothing to do with improving the quality of life or the commercial environment,” Dolin said. His research has focused on how a variation on a BID was being used to attempt to fund Hudson River Park in Manhattan by having a specific district of residents and business owners pay a fee for a park everyone in the city can use.

“Not only is this unfair for residents of the area, but the governing structure of a BID doesn’t lend itself to democracy,” Dolin says. “Property owners, by law, must hold a majority on a BID committee, and if they’re governing a public space, isn’t that a violation of the equal protection clause?”

Check out the rest of the article here!