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

Leigh Goodmark[1]

Click here for a recommended citation and to download a paginated PDF version of this article.

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 through 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]

Given the historic under-enforcement of crimes involving intimate partner abuse, VAWA’s focus on developing a robust criminal justice response was unsurprising. Advocates believed, and some continue to believe, that requiring the criminal justice system to intervene in cases of intimate partner abuse would keep women safe and hold their partners accountable.[5] What VAWA failed to acknowledge, however, was that the state and the women it purported to serve did not always share the same goals. Some women subjected to abuse were not interested in having their partners arrested or participating in prosecution. Some were unable to leave their relationships for a variety of reasons, including immigration status, economic hardship, community sanction, religious beliefs, and children. Others wanted to continue their relationships with their partners, albeit without the violence.[6] For those women, VAWA’s criminal justice reforms offered little help.

VAWA could promote other choices for these women. Restorative justice is one option. Restorative justice emphasizes repairing harms rather than punishing crimes, giving victims and offenders the opportunity to engage in dialogue around the harm, assessing the impact on the victim, and outlining the steps necessary to ensure offender accountability and meet the victim’s needs.[7]

Anti-violence advocates have been skeptical about using restorative justice. They fear that restorative processes could endanger women and that restorative justice practitioners do not understand the dynamics of intimate partner abuse well enough to make those processes safe.[8] Critics cite the lack of offender accountability in restorative justice, claiming that restorative justice is insufficiently punitive and fails to send the strong anti-abuse message necessary to create community accountability norms.[9] Some are concerned about the gender and race implications, believing that restorative justice pushes the problems of women, particularly women of color, back into the private sphere from whence it emerged forty years ago.[10] In addition, advocates worry about whether restorative justice focuses more on reintegrating the offender than on supporting the person subjected to abuse[11] and whether restorative justice forces forgiveness on women who are not ready to forgive or creates sufficient space for their anger.[12]

But restorative justice holds promise for addressing intimate partner abuse. Restorative justice provides an alternative to the criminal justice system without jettisoning that system altogether. Restorative justice could help us to change community norms around intimate partner abuse. The early battered women’s movement believed that enacting laws declaring intimate partner abuse a crime would begin to create that change, because the laws would assert the community’s disapproval of abuse.[13] But laws against intimate partner abuse have existed in most states for at least the last thirty years, and, as has been made clear in the coverage of the incident involving NFL player Ray Rice and his wife, those community norms have not decisively changed; only the release of a videotape showing Rice knocking his wife unconscious was sufficient to significantly sway public opinion about the incident.[14]

Restorative justice could also expand communities’ understanding of abuse. The law’s definition of abuse is narrow, generally providing redress for physical harm and threats of physical harm and little else.[15] But people subjected to abuse experience multiple forms of abuse that the law does not reach—verbal, emotional and psychological, economic, reproductive and spiritual.[16] Restorative justice could enable communities to respond not only to illegal activity, but also to cases involving abuse that is legal, but nonetheless extremely harmful.

Restorative justice honors the humanity of both the person subjected to abuse and her partner and prioritizes change over punishment as the goal of intervention. Restorative justice refuses to damn those who abuse, expressing disapproval of the act but hope for and trust in the person who commits it and is willing to try to change, unless and until that person proves unworthy of hope and trust.[17] Without such an approach, people who abuse may curtail some of their violence to avoid further criminal involvement, but they are unlikely to fundamentally change their behavior toward their partners.

Restorative processes, which include victim-offender mediation[18] and conferences bringing together victims, offenders, and members of their communities,[19] put a great deal of power into the hands of victims: the power to determine whether restorative processes are appropriate, to confront their partners, to have their partners admit responsibility for their actions, and to seek reparations. Restorative processes can be victim-centered, deployed only at victims’ requests and only in ways that are acceptable to them. Restorative processes engage the community in condemning the harms inflicted and provide community support for victims who may previously have been isolated. In a study of one feminist-informed, intimate partner abuse sensitive restorative program, victims reported that abuse decreased significantly post-conference.[20]

VAWA provides only minimal support for these kinds of programs. VAWA funds federally recognized Indian tribes interested in implementing restorative practices, including sentencing circles and other alternative justice courts,[21] but such funding is not available to non-tribal courts or to community-based agencies interested in providing restorative justice processes outside of the criminal justice system. Instead, VAWA continues to commit the vast majority of its appropriated funds to police, prosecutors, and courts implementing criminal justice “reforms,” as it has for the past twenty years. VAWA’s continued emphasis on the criminal justice response leaves little room for innovative work on restorative justice and provides no financial incentive to explore different ways to reach people subjected to abuse who are unable to interact with or uninterested in criminal justice intervention. VAWA could create demonstration projects, testing whether, when restorative justice programs are designed with intimate partner abuse at the forefront, such programs can be useful not only in addressing immediate incidents of abuse, but in changing the behaviors and attitudes of abusive partners and the way that communities view abuse. By expanding its focus beyond criminal justice, the next iteration of VAWA could substantially increase the potential for people subjected to abuse to find justice.

[1] Professor of Law, University of Maryland Francis King Carey School of Law.

[2] Barbara Fedders, Lobbying for Mandatory Arrest Policies: Race, Class and the Politics of the Battered Women’s Movement, 23 N.Y.U. Rev. L & Soc. Change 281, 300 n.73 (1997).

[3] Barbara E. Smith & Robert C. Davis, An Evaluation of Efforts to Implement No-Drop Policies: Two Central Values in Conflict III-4-3 (2004).

[4] Leigh Goodmark, A Troubled Marriage: Domestic Violence And The Legal System 125-28 (2012).

[5] Barbara J. Hart, Arrest: What’s the Big Deal? 3 Wm. & Mary J. Women & L. 207 (1997).

[6] Sally F. Goldfarb, Reconceiving Civil Protection Orders for Domestic Violence: Can Law Help End the Abuse Without Ending the Relationship?, 29 Cardozo L. Rev. 1487, 1499 (2008).

[7] Loretta Frederick & Kristine C. Lizdas, The Role of Restorative Justice in the Battered Women’s Movement, in Restorative Justice And Violence Against Women 41-45 (James Ptacek ed. 2010).

[8] James Ptacek, Resisting Co-Optation: Three Feminist Challenges to Antiviolence Workin Restorative Justice And Violence Against Womensupra note 7, at 19.

[9] Id. at 20.

[10] Id.

[11] Julie Stubbs, Restorative Justice, Gendered Violence, and Indigenous Womenin Restorative Justice and Violence Against Women, supra note 7, at 106.

[12] Susan L. Miller & LeeAnn Iovanni, Using Restorative Justice for Gendered Violence: Success with a Postconviction Model, 8 Feminist Criminology 247, 250 (2013).

[13] Emily Sack, Battered Women and the State: The Struggle for the Future of Domestic Violence Policy, 2004 Wis. L. Rev. 1657, 1666 (2004).

[14] David Von Drehle, Seeing Is Believing, TIME, Sept. 22, 2014, at 20.

[15] Goodmark, supra note 4, at 40-45.

[16] Id.

[17] John Braithwaite, Restorative Justice And Responsive Regulation 35 (2002).

[18] Miller & Iovanni, supra note 12, at 248.

[19] Ptacek, supra note 7, at 9.

[20] C. Quince Hopkins et al., Applying Restorative Justice to Ongoing Intimate Violence: Problems and Possibilities, 23 St. Louis U. Pub. L. Rev. 289, 307-09 (2004).

[21] U.S. Dep’t Of JusticeCoordinated Tribal Assistance Solicitation: FY 2014 Competitive Grant Announcement  20 (2014),  available at http://www.justice.gov/ sites/default/files/tribal/pages/attachments/2014/11/19/ctas_fy-2015_solicitation.pdf.

VAWA @ 20: GENDER VIOLENCE AND CIVIL RIGHTS

Julie Goldscheid *

Click here for a recommended citation and to download a paginated PDF version of this article.

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]

Continue reading

VAWA @ 20: A DISAPPEARING ACT: THE DWINDLING ANALYSIS OF THE ANTI-VIOLENCE MOVEMENT

Kerry Toner

Click here for a recommended citation and to download a paginated PDF version of this article.

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]

Continue reading

VAWA @ 20: THE MAINSTREAMING OF THE CRIMINALIZATION CRITIQUE: REFLECTIONS ON VAWA 20 YEARS LATER

Mimi E. Kim*

Click here for a recommended citation and to download a paginated PDF version of this article.

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.[1]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.[2] 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.[3]

Continue reading

VAWA @ 20: VAWA IN THE LIVES OF BATTERED SOUTH ASIAN WOMEN IN THE UNITED STATES

Shamita Das Dasgupta, Ph.D., DVS

Click here for a recommended citation and to download a paginated PDF version of this article.

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.

Continue reading

VAWA @ 20: 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

Click here for a recommended citation and to download a paginated PDF version of this article.

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?[1] “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.”[2]

Continue reading

VAWA @ 20: VAWA AND WELFARE REFORM: CRIMINALIZING THE MOST MARGINALIZED WOMEN

Ann Cammett, Professor, CUNY School of Law

Click here for a recommended citation and to download a paginated PDF version of this article.

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. Continue reading

VAWA @ 20: IMPROVING CIVIL LEGAL ASSISTANCE FOR ENDING GENDER VIOLENCE

Elizabeth L. MacDowell*

Click here for a recommended citation and to download a paginated PDF version of this article.

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. Continue reading

VAWA @ 20: A Collection of Essays

 

 

Screen Shot 2014-11-21 at 4.55.39 PM

 

 

 

 

 

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!

IMPROVING LAW SCHOOL FOR TRANS* AND GENDER NONCONFORMING STUDENTS: SUGGESTIONS FOR FACULTY

Gabriel Arkles*

Click here for a recommended citation and to download a paginated PDF version of this article.

Introduction

In a way, creating accessible, nondiscriminatory, and effective law school experiences for trans* and gender nonconforming[1] students is easy. All of our skills as educators apply; we can simply extend our existing strategies and best practices. Like all students, trans* and gender nonconforming students benefit from professors who care about their learning and expect the best from them, create respectful classroom dialogue on difficult issues, provide meaningful feedback, and so on.

In another way, creating accessible, nondiscriminatory, and effective law school experiences for trans* and gender nonconforming students is fantastically difficult. Simply acknowledging trans* existence and accepting gender nonconforming people on their own terms requires an overthrow of a deeply entrenched view of gender in our society: that gender is a binary, fixed, universal, apparent, and apolitical truth. Many everyday classroom practices and longstanding university policies created with the best of intentions can harm trans* and gender nonconforming students because they are based on assumptions about gender that just don’t hold up. Partly because of these policies and practices, relatively few openly trans* and gender nonconforming people hold positions—especially the most powerful and prestigious positions—as faculty, staff, or students in law schools. Fortunately, more and more trans* and gender nonconforming people are entering law schools and many cisgender[2] people want to learn how to work with them respectfully and effectively.

Continue reading