VAWA @ 20: Introduction

Introduction

Nishan Bhaumik

 In 1994, Congress passed the most comprehensive response to what Congress had identified as a disturbing trend of violence against women. The Violence Against Women Act (VAWA) of 1994 was a result of decades of hard-fought, strategic advocacy highlighting the legal and public neglect of violence against women, both inside and outside of the private home.

In 2014, on the 20th anniversary of VAWA, CUNY School of Law reflects upon the progress of VAWA. Our VAWA@20 Symposium first examines VAWA’s past political struggles and legal battles and then considers its future role in eliminating gender-based violence. Footnote Forum collaborated with the VAWA@20 Symposium to present a collection of cutting-edge analyses by scholars and practitioners on VAWA’s role in eliminating gender-based violence.

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VAWA @ 20: Raising the Visibility of the Margins and the Responsibility of Mainstream by Marcia Olivo and Kelly Miller

VAWA @ 20: Raising the Visibility of the Margins and the Responsibility of Mainstream

Marcia Olivo, Sisterhood of Survivors/Miami Workers Center

Kelly Miller, Idaho Coalition Against Sexual & Domestic Violence

 

The Violence Against Women Act (VAWA) originated over twenty years ago from a movement lead by predominately white, middle class, educated women in a strong capitalist economy, who were outraged at the lack of response to violence against women and who looked to the criminal justice system as the solution. The federal legislation has been the foundation for addressing gender based violence in our country. In recent years, there is a growing understanding that the criminal justice system as the primary mechanism to end gender based violence is a false solution. Decades of mass incarceration of African American men and men in other communities of color have resulted in the “New Jim Crow” and the school to prison pipeline. Instead of helping youth get their lives back on track, incarceration in a juvenile facility is the greatest predictor of adult incarceration and adult criminality. The criminal justice response assumes that violence against women is an individual aberration and ignores the complexity of violence and the structural oppressions that sustain it. It also heightens the potential for state control of marginalized communities through police surveillance and interventions utilizing the criminal justice system.

 

In 2013, the voices and experiences of immigrant women, Native American women, and the LGBTQ community were the catalyst for the amendments to the VAWA. The 2013 amendments represent a critical course correction to the VAWA, raising the visibility of communities marginalized by society.

 

Before the 2013 amendments, Native American victims of domestic violence often were denied justice because their courts had not been permitted to prosecute non-Native offenders – even for crimes committed on tribal land. For example, if an individual committed a crime on a reservation such as a rape or sexual assault, simply walking outside the bounds of the reservation could make the crime nearly impossible to prosecute if the perpetrator was not affiliated with the reservation. As a result, survivors were routinely denied justice at alarming rates as well as suffering disproportionate rates of violence in the first place. The VAWA 2013 attempts to address this injustice and restores tribes’ authority to preside over cases involving non-Indian perpetrators and Indian victims on tribal land in cases involving domestic violence, dating violence, and violations of protection orders.

 

Similarly, immigrants who experience violence may be dependent upon their partner’s status in order to remain in the country or may fear that contacting law enforcement will lead to deportation. Individuals who engage in abuse often use the threat of deportation or loss of immigration status as methods of control and isolation. VAWA 2013 retained important self-petition protections for immigrants who experience abuse, while also strengthening the International Marriage Broker Regulation Act and the provisions around self-petitions and U visas.

 

Likewise, lesbian, gay, bisexual, and transgender survivors of violence often experience discrimination when seeking services for gender based violence. In VAWA 2103, Congress specifically recognized LGBT survivors as an underserved population and prohibited recipients of VAWA funds from discriminating against individuals on the basis of their sexual orientation or gender identity.

 

Each time that VAWA has been reauthorized, Congress has broadened the law to reach more communities. The forward momentum is promising and lets us re-imagine a future VAWA that has the potential to create real solutions to end gender based violence in all communities. As momentum grows, the fundamental injustice of violence against women and girls in all communities will be felt deeply and widely enough so that individuals, organizations, and communities will mobilize to re-imagine a version of VAWA that will challenge mainstream services for individuals and communities impacted by gender based violence, the response of the criminal justice institutions, and social norms. A bold vision powerful enough to achieve real solutions that reach every individual and all communities and directly addresses the deepest roots of violence and the structures that sustain it is emerging.

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VAWA @ 20: HIV, Violence Against Women, and Criminal Law Interventions by Aziza Ahmed

HIV, Violence Against Women, and Criminal Law Interventions

 

Aziza Ahmed[i]

The growing calls for the “securitization of body and property,”[ii] documented by Jonathan Simon in his book Governing Through Crime, illustrates a deep tension in our understanding of the role of criminal law as a tool for societal transformation.[iii] For some, including communities of color, the criminal legal system is a place where inequality flourishes;[iv] for others, including those feminists who have support criminal law interventions, it has become a tool to realize equality.[v] The Trafficking Victims Protection Act, reauthorized in 2013 as an amendment to the Violence Against Women Act (VAWA),[vi] relies heavily on the criminal law to obtain its goals. Countering the conventional reliance on criminal law, critical feminist legal scholars concerned about the detrimental impact on poor communities and communities of color. They critique the criminal law orientation of TVPA and VAWA for contributing to the destabilization of communities, particularly, communities of color.[vii] The carceral aspects of VAWA/TVPA also raise difficult questions for anti-violence advocates concerned about the war on crime, including, mass-incarceration. How has this “feminist war on crime,”[viii] backfired?

 

In the realm of HIV/AIDS, an area in which I research and write, the feminist war on crime produces troubling effects. As feminist attention to HIV increased, so did the importation of feminist ideas about why women may be at risk for HIV. [ix]   One of the primary reasons, feminists argue, is violence against women.[x] But what constitutes violence against women? A key point of contention was the issue of transactional sex – sex in exchange for goods, money, or services. The way the issue of increased HIV risk in the context of transactional sex splintered feminists. Should violence against women be defined broadly, including all forms of transactional sex as a form of violence against women? Should see all transactional sex as sex-trafficking? Is it possible that some people choose to engage in transactional sex or sex work? Abolitionist feminists answer this question clearly: no woman chooses to sell sex, all women who do so are trafficked. In turn, these feminists engaged the criminal justice system to end the sex-industry.

 

Although the abolitionist project is well-meaning, this criminal law approach to trafficking has many negative consequences. Women, particularly women of color,[xi] are frequently arrested in the course of raids and rescues.[xii] Some feminists focus on “ending demand”:[xiii] ramping up efforts to criminalize purchasing sex (abolitionist feminists do not support the arrest of women in the sex industry). The connection between HIV, anti-trafficking raids, prostitution arrests, complicates this picture even further. Law enforcement frequently use condoms, promoted by public health agencies as a means to stop the spread of HIV, as evidence against those being charged with prostitution related crimes. In 2012, Human Rights Watch documented the extensive use of condoms as evidence in New York, Washington DC, Los Angeles, and San Francisco.[xiv] Sex work activists challenging the use of condoms as evidence have had some success in changing these programs. The Access to Condoms Coalition reported that while advocacy resulted in a policy shift in New York away from using condoms in prostitution cases, trafficking cases may still utilize condoms as evidence.[xv]

 

Given the potential for criminal law related interventions driving vulnerable groups away from necessary services instead of to them, and due to negative consequences like the use of condoms as evidence, public health experts see criminal law as a barrier to effectively addressing the HIV epidemic amongst marginalized individuals who are otherwise persecuted by or prosecuted by the state. In 2014, for example, a leading public health journal the Lancet, dedicated a special issue to sex work. An article by Kate Shannon and her co-authors modeled various interventions to measure how change in structural determinants of health would impact HIV transmission. Researchers found that the decriminalization of sex work would avert “33-46% of HIV infections in the next decade.”[xvi] This evidence places the pro-carceral, anti-sex trafficking feminist position in opposition to public health evidence on reducing the spread of HIV.

 

The blunt tools of the criminal law system offer little to remedy the complex realities that accompany the precarious existence of many in the sex industry. Ending violence requires us to take a critical lens to the current reliance on criminal law as a tool to realize women’s equality.

 

 

[i] Aziza Ahmed is Associate Professor of Law at Northeastern University School of Law. Many thanks to Leigh Goodmark, Donna Coker, and Julie Goldscheid for inviting me to participate in this forum. Thanks also to the editors of the CUNY Law Review Footnotes Forum.

[ii] Jonathan Simon, Governing Trough Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear 13 (2007).

[iii] Id. at 11.

[iv] See generally Loïc Wacquant, From Slavery to Mass Incarceration: Rethinking the ‘Race Question’ in the US, 13 New Left Review (2002); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012).

[v] See Leigh Goodmark, Autonomy Feminism: An Anti-Essentialist Critique of Mandatory Interventions in Domestic Violence Cases, 31 Florida State University Law Review (2009) (Discussing, in part, the rise of the mandatory arrest and prosecution approach to domestic violence and its negative consequences for women); see also Simon, supra note ii, at 182 (Explaining how the feminist reform project lined up with arguments for the decline of the welfare state).

[vi] 47 U.S.C. §1-1264.

[vii] See Goodmark, supra note v; see also Donna Coker, Shifting Power for Battered Women: Law, Material Resources, and Poor Women of Color, 33 U.C. Davis Law Review 1009 (2009); Aya Grueber, The Feminist War on Crime, 97 Iowa Law Review 741 (2007).

[viii] This phrase was coined by Aya Grueber. See Grueber, supra note vii, at 741.

[ix] Aziza Ahmed, Rugged Vaginas and Vulnerable Rectums: The Sexual Identity, Epidemiology, and Law of the Global HIV Epidemic, 26.1 Columbia Journal of Gender and Law 1 (2013).

[x] National Coalition Against Domestic Violence, Intimate Partner Violence and HIV/AIDs, available at http://www.ncadv.org/learn/DV%20and%20HIV%20AIDS.php (last visited October 12, 2014). This claim is based on epidemiological work, see, e.g., Kristin Dunkle et al, Gender Based Violence, Relationship Power, and Risk of HIV Infection in Women Attending Ante-Natal Clinics in South Africa, 363 THE LANCET 1415 (2004).

[xi] Red Umbrella Project, Criminal, Victim, or Worker: The Effect of New York’s Human Trafficking Courts on Adults Charged with Prostitution Related Offenses, available at http://www.redumbrellaproject.org/wp-content/uploads/2014/09/RedUP-NYHTIC-FINALweb.pdf (last visited October 12, 2014).

[xii] Melissa Ditmore, The Use of Raids to Fight Trafficking in Persons (2009) available at http://sexworkersproject.org/downloads/swp-2009-raids-and-trafficking-report.pdf (last visited October 10, 2014).

[xiii] Coalition Against Trafficking in Women, Ending the Demand, available at http://www.catwinternational.org/BestPractices/EndingDemand (last visited November 15, 2014).

[xiv] Human Rights Watch, Sex Workers at Risk, available at http://www.hrw.org/reports/2012/07/19/sex-workers-risk (last visited October 10, 2014).

[xv] Access to Condoms Coalition, Access to Condom Coalition’s Response to NYPD Announcement available at http://www.nocondomsasevidence.org/2014/05/12/access-to-condoms-coalition-response-to-nypd-announcement/ (last visited November 15, 2014).

[xvi] Kate Shannon et al., Global Epidemiology of HIV Among Female Sex Workers: Influence of Structural Determinants, THE LANCET (2014).

VAWA @ 20: Art, Violence, and Women

Art, Violence, and Women

 Yxta Maya Murray1

 

Morrison v. United States threatens to shrink our understandings of the violence women suffer and the varieties of harmony they deserve. In that way this Supreme Court decision that struck down the Violence Against Women Act’s civil provision proved a disaster in far more ways than one.

Women often experience brutality, and seek – what, precisely? Ah, the old woman question. To understand these endurances and quests, we must fathom with far more precision what “violence” means to women, and what its opposite looks like to them. Until quite recently, such grand definitional projects seemed beyond the human ken. At the inception of second wave feminism, poet Muriel Rukeyser wrote: “What would happen if one woman told the truth about her life? The world would split open.”2 More than twenty years later Catharine MacKinnon clamored that we barely know what a woman is, let alone all the sensations that she experiences.3 Robin West, too, lamented that patriarchy had strangled women’s abilities to speak about their pain and pleasure.4 Yet some progress prevailed: From feminist and womanist artists and critics came stories and even entirely new vocabularies defining women’s mingled experiences with violence, happiness, suffering, bliss, rape, abortion, work, and sex. Louise Erdrich wrote novels about women’s struggles to gain family, stay safe, and nourish even the tiniest seeds of happiness in the face of violent poverty and white supremacy.5 In Austria, novelist Elfriede Jelinek described the myriad ways capitalism and male dominance trash and kill women.6 Irish installation artist Cathy Wilkes voiced the rigors and despairs that come with living within this beleaguered thing, the female body.7 Angela Harris and Kimberlé Crenshaw studied how race and gender interacted in women’s experiences of violence as well as in their own practices of world- and self-building.8 Carrie Mae Weems argued that history’s violence creates the present moment and also engaged in peacemaking in her own efforts to reclaim that past in her art.9

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VAWA @ 20: The Politics of Pretext: VAWA Goes Global

The Politics of Pretext: VAWA Goes Global

Deborah M. Weissman,1 Reef C. Ivey II Distinguished Professor of Law, University of North Carolina School of Law

weissman@email.unc.edu

919-962-5108

The twentieth anniversary of the Violence Against Women Act (VAWA) provides an opportunity to assess the meaning and consequences of the Act. VAWA and its subsequent Congressional reauthorizations represent efforts to protect women from gender-based violence in the realm of domestic politics. But with the introduction of a new bill, VAWA International (I-VAWA), Congress has signaled its intent to expand U.S. influence in the realm of violence against women as a matter of foreign policy. First introduced in 2007, and subsequently re-introduced in each succeeding session of Congress, I-VAWA seeks to “prevent and respond to violence against women and girls around the world, as a matter of basic human rights as well as to promote gender equality, economic growth, and improved public health.”2 It proposes to “systematically integrate and coordinate” foreign policy and foreign aid programs in order to mitigate the harm caused by violence against women in the world at large.3 I-VAWA creates a new office of Global Women’s Issues within the Department of State and establishes the position of Ambassador-at-Large within the U.S. Agency for International Aid (USAID) responsible for global assistance programs. It derives much of its programmatic initiatives from a 2012 document created by USAID entitled “United States Strategy to Prevent and Respond to Gender-Based Violence Globally” (hereinafter 2012 Strategy) which articulates U.S. interests in assuming leadership in efforts to end violence against women: promoting global market economies, strengthening national security and defense, and assuring that such form of violence is recognized as a criminal and not cultural act.4

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VAWA @ 20: Building the Knowledge Base: Research Funding through VAWA

Building the Knowledge Base: Research Funding through VAWA

 

Claire M. Renzetti,1 University of Kentucky; Rebecca M. Campbell, Michigan State University; and Allison Adair, University of Kentucky

 

The Violence Against Women Act (VAWA) has been credited with facilitating the growth in research on all forms of violence against women. In the first few years following passage of VAWA, funding for this research was provided by the Violence Against Women Grants Office (VAWGO), which today is known as the Office on Violence Against Women (OVW). In fiscal year 1998, however, dedicated funding for violence against women research and evaluation was legislatively appropriated to the National Institute of Justice (NIJ), which resulted in a substantial increase in empirical studies of the causes and consequences of violence against women as well as research on responses to both victims and perpetrators.2 In an analysis of NIJ’s Compendium of Research on Violence Against Women, we identified 328 research projects that had been funded between 1993 and 2013, with a significant uptick after 1995.3 This has undoubtedly improved the knowledge base on violence against women. As Auchter and Moore state, “We know a lot more about VAW today than we did when VAWA was originally passed because of the dedicated funds provided by the NIJ VAW program of research.”4

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Stalled at 20: VAWA, the Criminal Justice System, and the Possibilities of Restorative Justice

Stalled at 20: VAWA, the Criminal Justice System, and the Possibilities of Restorative Justice

Leigh Goodmark1

 Since its passage in 1994, the Violence Against Women Act (VAWA) has promoted a criminal justice approach to addressing intimate partner abuse. But VAWA has done little to provide people subjected to abuse with alternative avenues for seeking justice. VAWA could and should do more. Restorative justice is one option that future versions of VAWA might explore.

Since its inception, VAWA has required states receiving funding through its grant programs to adopt either mandatory or pro-arrest policies, sending the clear message that criminal justice intervention was the preferred method of addressing intimate partner abuse.2 VAWA has also funded the implementation of no-drop prosecution policies, which encourage prosecution regardless of the victim’s willingness to participate.3 As a result of these policies, in some jurisdictions women subjected to abuse are forced to testify against their partners, an outcome achieved througWM. & MARY J. WOMEN & L. h pressure, subpoenas, and in extreme cases, arrest and incarceration of the women who the system was meant to protect until their cooperation is secured.4

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A Disappearing Act: The Dwindling Analysis of the Anti-Violence Movement

by Kerry Toner

I’m struggling to work in a world of domestic violence (DV)1 services defined by the criminalization of DV.  This is largely due to remedies created or strengthened by the Violence Against Women Act (VAWA), first passed by Congress in 1994.  Want the violence to stop?  Get an order of protection. Housing based on your status as a DV survivor?  Produce police reports naming you as a crime victim.  VAWA has been successful in its two central goals, at least on the surface: increased remedies within and improved access to the criminal legal system, and increased public awareness.  However, its widespread impact has also been to reduce the extremely complex social phenomenon of DV to specific acts that can be easily absorbed into our existing legal structures.  As sociologist Beth E. Richie has said, when we won the mainstream, we lost the movement.2

The criminalization of DV looks to neatly categorize specific acts, like punching or slapping, but DV is never a single act and our solutions cannot rely solely on the law.  And, maybe our solutions cannot rely at all on the law, as Black feminist theory may suggest in its critique of a racist criminal legal system that perpetuates state-sponsored violence, largely against communities of color.3 How can a legal system that is responsible for enacting violence be a solution to violence? This fundamental question must be explored for the future of DV work. Ultimately, we must decide if VAWA, in its current state, can ever be a truly useful tool for building the peaceful communities that anti-violence movements envision.  This essay explores a narrower question: since VAWA funds the majority of DV services, can we improve what we have? How can we work for a broader understanding of DV and subsequently the alternative solutions that emerge, when our current programs are constrained by a narrow legal understanding?

DV is about domination.  It is far more than the widely-recognized, specific tactics of abuse like hitting or forcing sex.  Any degrading, manipulative, deliberate behavior that serves to deny one’s autonomy and exercise control over their actions or beliefs is abusive. The critical work of anti-violence activists recognizes that the abuse of power inherent in DV stems from a complex, layered set of factors that influence individual choices to abuse and permit violence against women as a social phenomenon.  Early anti-violence movements identified the desire to dominate as conditioned through most social systems, not only those pertaining to gender.  Domination in intimate relationships is learned, and stems not only from patriarchy, but from white supremacy, religious hegemony, and capitalist systems.  These systems of structural oppression are internalized by society at large, and are rooted in our personal relationships, family structures, community values and institutions.  If intimate partner violence is a complex rendering of rewarding power over others in many contexts, we cannot adequately challenge DV without addressing the bigger picture.

VAWA’s heavy reliance on the criminalization of DV trades a comprehensive understanding for legal definitions of criminal acts of violence. It forces complex experiences of control and coercion into an overly-simplistic definition of abuse, like assault or rape. Using a criminal legal framework as the primary mechanism of defining DV fails to capture the pattern of behavior and tactics that abusive people engage in to control their partners.  Furthermore, public awareness gained by VAWA has contextualized DV for most people through a legal lens. We see the key actors as those with gate-keeping power like judges, prosecutors, and service providers, decentering voices of survivors and swapping individual experiences for cookie-cutter models of abuse.  The negative consequences of this lens are many.  Some survivors of DV are limited in their access to services and protections, and some are ineligible; gate-keepers to services have certain expectations of victims; people who perpetrate abusive acts beyond narrow legal constructions are made to believe their acts are legally and socially permissible (as are their victims); and the general public remains confused about what DV really is.

These consequences have been illustrated to me many times.  Several years ago, I accompanied a woman to apply for a temporary order of protection. A survivor of viciously manipulative psychological abuse and physical intimidation, Kate’s4 application to the county Family Court was tricky.  Her husband, a devout Christian, used scripture as a weapon, profoundly attacking the self worth and value of Kate and their children through their spirituality.  His behavior was highly controlling and dangerous; unfortunately, its legal significance depended on the analysis of a judge who was well-known as a conservative Christian, adherent to particular patriarchal beliefs about gender roles in the family. Since Kate was unable to leave her home, being granted the temporary order and having her husband removed from the home was critical to her safety.  Kate knew this could put her at greater risk of violence from her husband, but also believed that he would follow a court order and leave the home if ordered to do so.  Kate prepared extensively to convey the risk she faced:  her husband’s pattern of control and manipulation, and his likely capacity for extreme physical violence.   The judge explored these topics thoroughly and Kate made her case bravely and eloquently. Kate’s testimony went so well that, despite our initial concerns, the judge’s decision came as a shock.  He denied her order of protection, stating “I don’t see this as abuse.”

This ruling represented much of what can go wrong in this system designed to serve DV survivors.  Kate was the victim of a terrifying and cruelly abusive husband, she and her children were being actively harmed, and they lived in fear of his abuse escalating.  Her need for outside intervention was clear, and she invoked proper legal mechanisms, but because her husband’s pattern of abuse did not fit squarely within legally defined acts of DV, the court rejected her claims.  Also, the judge’s apparent lack of clarity on the distinction between DV and legally-defined DV offenses, plus his lack of sensitivity to the significance of his ruling, led him to make a global judgment about Kate’s experience and legitimacy as a survivor, though he was not charged with that task by law.  Kate was left feeling that her claims of abuse were inadequate and undeserving of help. And like an abusive partner, the judge minimized Kate’s experiences, denied the abuse, and refused government intervention, an ironic outcome of a system designed to restore autonomy and safety to people who are being controlled by someone they love.

The harm caused by a lack of deep analysis of DV and its intersections with other forms of oppression is exacerbated by our denial of the broad impact of DV.  One in four women experience partner abuse,5 so most people have either been abused, witnessed abuse, or known someone being abused or abusive. As a result, we form opinions about what DV is and how it should be responded to, which can be impacted by our own unresolved trauma.  The judge on Kate’s case, for personal reasons, may not have seen her experience as abuse.  His task of locating Kate’s experience within New York State’s DV offenses stymied the opportunity to hear Kate’s narrative for what it was.  Lawyers, counselors, advocates, shelter workers and government employees are often similarly untrained, forcing well-meaning people to use their own knowledge to sort complicated stories of abuse into narrow legal frameworks.  Raising public awareness around DV is an important goal.  However, that awareness raising must include an understanding of the intricacies and root causes of DV.

Like in any social justice movement, a basic principle is that our work be directed by the wisdom of DV survivors.  The early battered women’s movement grew out of survivors coming together to tell their stories, locating their experiences within structures of oppression, and developing principles of non-violence that accounted for complex issues of race, gender and class. These principles are employed by many DV programs, but not consistently.  Instead of designing services around legal remedies, we need to center the voices of survivors, listen closely to their experiences, and assist in identifying the services that would meet their self-identified needs.

In my current work, I supervise a small direct services arm of a DV prevention program that uses a deep analysis of DV, its root causes and intersecting issues.  Reflecting our understanding of violence, our direct services approach creates space for survivors to identify their needs, concerns and goals, without judgment; we offer information on their options.  We communicate an understanding that their needs stem from their whole person, not only their experiences with abuse.  We are careful never to urge survivors toward any particular remedy, instead having candid conversations about what to expect, system limitations, and potential positive and negative outcomes. We hear survivors’ frustration and share our analysis of how services could improve. This act of infusing our work with a critical analysis of violence, and open hearts and minds, makes our work meaningful. We know this from those we serve.

Is it possible to mainstream a DV movement that reflects people’s complete experiences, making room for those who have been boxed out by rigid definitions or an unwelcoming system, and moving closer toward a non-violent society?  It feels daunting to bring a complex theory into already challenging direct service work. Doing so would require significant political and structural shifts to better align DV services with the lived realities of survivors, but to do any less perpetuates the status quo. We can do better.

1 Also known as Intimate Partner Violence (IPV), a term coined more recently to encompass the intimate violence in relationships not occurring within a home, e.g. among teens.

2 Beth E. Richie. Arrested Justice: Black Women, Violence, and Americas Prison Nation 65 (NYU Press) (2012).

3 See, eg Id., Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color (Oct. 15, 2014, 5:54 PM), http://socialdifference.columbia.edu/files/socialdiff/projects/Article__Mapping_the_Margins_by_Kimblere_Crenshaw.pdf.

4 This name has been changed for privacy reasons.

5 The Public Policy Office of the National Coalition Against Domestic Violence, Domestic Violence Facts (Oct. 15, 2014 5:59 PM), http://www.ncadv.org/files/DomesticViolenceFactSheet(National).pdf.

VAWA @ 20: A Disappearing Act: The Dwindling Analysis of the Anti-Violence Movement by Kerry Toner

A Disappearing Act: The Dwindling Analysis of the Anti-Violence Movement

by Kerry Toner

I’m struggling to work in a world of domestic violence (DV)[1] services defined by the criminalization of DV.  This is largely due to remedies created or strengthened by the Violence Against Women Act (VAWA), first passed by Congress in 1994.  Want the violence to stop?  Get an order of protection. Housing based on your status as a DV survivor?  Produce police reports naming you as a crime victim.  VAWA has been successful in its two central goals, at least on the surface: increased remedies within and improved access to the criminal legal system, and increased public awareness.  However, its widespread impact has also been to reduce the extremely complex social phenomenon of DV to specific acts that can be easily absorbed into our existing legal structures.  As sociologist Beth E. Richie has said, when we won the mainstream, we lost the movement.[2]

The criminalization of DV looks to neatly categorize specific acts, like punching or slapping, but DV is never a single act and our solutions cannot rely solely on the law.  And, maybe our solutions cannot rely at all on the law, as Black feminist theory may suggest in its critique of a racist criminal legal system that perpetuates state-sponsored violence, largely against communities of color.[3] How can a legal system that is responsible for enacting violence be a solution to violence? This fundamental question must be explored for the future of DV work. Ultimately, we must decide if VAWA, in its current state, can ever be a truly useful tool for building the peaceful communities that anti-violence movements envision.  This essay explores a narrower question: since VAWA funds the majority of DV services, can we improve what we have? How can we work for a broader understanding of DV and subsequently the alternative solutions that emerge, when our current programs are constrained by a narrow legal understanding?

DV is about domination.  It is far more than the widely-recognized, specific tactics of abuse like hitting or forcing sex.  Any degrading, manipulative, deliberate behavior that serves to deny one’s autonomy and exercise control over their actions or beliefs is abusive. The critical work of anti-violence activists recognizes that the abuse of power inherent in DV stems from a complex, layered set of factors that influence individual choices to abuse and permit violence against women as a social phenomenon.  Early anti-violence movements identified the desire to dominate as conditioned through most social systems, not only those pertaining to gender.  Domination in intimate relationships is learned, and stems not only from patriarchy, but from white supremacy, religious hegemony, and capitalist systems.  These systems of structural oppression are internalized by society at large, and are rooted in our personal relationships, family structures, community values and institutions.  If intimate partner violence is a complex rendering of rewarding power over others in many contexts, we cannot adequately challenge DV without addressing the bigger picture.

VAWA’s heavy reliance on the criminalization of DV trades a comprehensive understanding for legal definitions of criminal acts of violence. It forces complex experiences of control and coercion into an overly-simplistic definition of abuse, like assault or rape. Using a criminal legal framework as the primary mechanism of defining DV fails to capture the pattern of behavior and tactics that abusive people engage in to control their partners.  Furthermore, public awareness gained by VAWA has contextualized DV for most people through a legal lens. We see the key actors as those with gate-keeping power like judges, prosecutors, and service providers, decentering voices of survivors and swapping individual experiences for cookie-cutter models of abuse.  The negative consequences of this lens are many.  Some survivors of DV are limited in their access to services and protections, and some are ineligible; gate-keepers to services have certain expectations of victims; people who perpetrate abusive acts beyond narrow legal constructions are made to believe their acts are legally and socially permissible (as are their victims); and the general public remains confused about what DV really is.

These consequences have been illustrated to me many times.  Several years ago, I accompanied a woman to apply for a temporary order of protection. A survivor of viciously manipulative psychological abuse and physical intimidation, Kate’s[4] application to the county Family Court was tricky.  Her husband, a devout Christian, used scripture as a weapon, profoundly attacking the self worth and value of Kate and their children through their spirituality.  His behavior was highly controlling and dangerous; unfortunately, its legal significance depended on the analysis of a judge who was well-known as a conservative Christian, adherent to particular patriarchal beliefs about gender roles in the family. Since Kate was unable to leave her home, being granted the temporary order and having her husband removed from the home was critical to her safety.  Kate knew this could put her at greater risk of violence from her husband, but also believed that he would follow a court order and leave the home if ordered to do so.  Kate prepared extensively to convey the risk she faced:  her husband’s pattern of control and manipulation, and his likely capacity for extreme physical violence.   The judge explored these topics thoroughly and Kate made her case bravely and eloquently. Kate’s testimony went so well that, despite our initial concerns, the judge’s decision came as a shock.  He denied her order of protection, stating “I don’t see this as abuse.”

This ruling represented much of what can go wrong in this system designed to serve DV survivors.  Kate was the victim of a terrifying and cruelly abusive husband, she and her children were being actively harmed, and they lived in fear of his abuse escalating.  Her need for outside intervention was clear, and she invoked proper legal mechanisms, but because her husband’s pattern of abuse did not fit squarely within legally defined acts of DV, the court rejected her claims.  Also, the judge’s apparent lack of clarity on the distinction between DV and legally-defined DV offenses, plus his lack of sensitivity to the significance of his ruling, led him to make a global judgment about Kate’s experience and legitimacy as a survivor, though he was not charged with that task by law.  Kate was left feeling that her claims of abuse were inadequate and undeserving of help. And like an abusive partner, the judge minimized Kate’s experiences, denied the abuse, and refused government intervention, an ironic outcome of a system designed to restore autonomy and safety to people who are being controlled by someone they love.

The harm caused by a lack of deep analysis of DV and its intersections with other forms of oppression is exacerbated by our denial of the broad impact of DV.  One in four women experience partner abuse,[5] so most people have either been abused, witnessed abuse, or known someone being abused or abusive. As a result, we form opinions about what DV is and how it should be responded to, which can be impacted by our own unresolved trauma.  The judge on Kate’s case, for personal reasons, may not have seen her experience as abuse.  His task of locating Kate’s experience within New York State’s DV offenses stymied the opportunity to hear Kate’s narrative for what it was.  Lawyers, counselors, advocates, shelter workers and government employees are often similarly untrained, forcing well-meaning people to use their own knowledge to sort complicated stories of abuse into narrow legal frameworks.  Raising public awareness around DV is an important goal.  However, that awareness raising must include an understanding of the intricacies and root causes of DV.

Like in any social justice movement, a basic principle is that our work be directed by the wisdom of DV survivors.  The early battered women’s movement grew out of survivors coming together to tell their stories, locating their experiences within structures of oppression, and developing principles of non-violence that accounted for complex issues of race, gender and class. These principles are employed by many DV programs, but not consistently.  Instead of designing services around legal remedies, we need to center the voices of survivors, listen closely to their experiences, and assist in identifying the services that would meet their self-identified needs.

In my current work, I supervise a small direct services arm of a DV prevention program that uses a deep analysis of DV, its root causes and intersecting issues.  Reflecting our understanding of violence, our direct services approach creates space for survivors to identify their needs, concerns and goals, without judgment; we offer information on their options.  We communicate an understanding that their needs stem from their whole person, not only their experiences with abuse.  We are careful never to urge survivors toward any particular remedy, instead having candid conversations about what to expect, system limitations, and potential positive and negative outcomes. We hear survivors’ frustration and share our analysis of how services could improve. This act of infusing our work with a critical analysis of violence, and open hearts and minds, makes our work meaningful. We know this from those we serve.

Is it possible to mainstream a DV movement that reflects people’s complete experiences, making room for those who have been boxed out by rigid definitions or an unwelcoming system, and moving closer toward a non-violent society?  It feels daunting to bring a complex theory into already challenging direct service work. Doing so would require significant political and structural shifts to better align DV services with the lived realities of survivors, but to do any less perpetuates the status quo. We can do better.

 

  1. Also known as Intimate Partner Violence (IPV), a term coined more recently to encompass the intimate violence in relationships not occurring within a home, e.g. among teens.
  2. Beth E. Richie. Arrested Justice: Black Women, Violence, and Americas Prison Nation 65 (NYU Press) (2012).
  3. See, eg Id., Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color (Oct. 15, 2014, 5:54 PM), http://socialdifference.columbia.edu/files/socialdiff/projects/Article__Mapping_the_Margins_by_Kimblere_Crenshaw.pdf.
  4. This name has been changed for privacy reasons.
  5. The Public Policy Office of the National Coalition Against Domestic Violence, Domestic Violence Facts (Oct. 15, 2014 5:59 PM), http://www.ncadv.org/files/DomesticViolenceFactSheet(National).pdf.

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/.