Jailing People Subjected to Abuse for Failing to Prosecute—Violating Human Rights to Vindicate Human Rights

By Leigh Goodmark

Last week, Sheila Kimball, of Kennebec County, Maine, spent a night in jail after refusing to testify against her husband in a domestic violence prosecution. Kimball was held in summary contempt by Judge Donald Marden for her failure to respond to the prosecutor’s questions after being arrested and brought to court in her pajamas. This follows the incarceration of Jessica Ruiz, another Kennebec County woman, in September 2013. Ruiz was arrested because prosecutors “believed” she did not intend to testify in a domestic violence proceeding. After spending 17 hours in jail, Ruiz testified at trial. Two women incarcerated within an eight month period because they were not interested—or, in the case of Ruiz, may not have been interested—in engaging with the state to incarcerate their partners. Margo Batsie of the Maine Coalition to End Domestic Violence supported prosecutors’ decisions, stating that holding abusers accountable for their behavior was paramount, apparently regardless of the impact on the people that had been abused.

Over the past forty years, domestic violence law and policy has come to rely disproportionately on state based, carceral responses to intimate partner abuse. The state has increasingly brought its power to bear not only against abusers, but also against their partners, if those partners fail to participate in prosecution. People subjected to abuse may have numerous reasons for not wanting to see their partners prosecuted: religion, economics, immigration status, parenting assistance, community support, and even love. But in most states, policy empowers prosecutors to bring cases without regard to the wishes of the person subjected to abuse. Worse, in jurisdictions like Kennebec, which have strong no drop prosecution policies, prosecutors use the power of the state not only to hold abusers accountable, but also to compel people subjected to abuse to participate in that process and to punish them when they choose not to do so. In a dramatic departure from the empowerment ethos of the early battered women’s movement, which engaged women in determining their own needs, goals, and options, the state has substituted its blanket judgment about the best way to address intimate partner abuse and found that the criminal justice system is the answer. The encroachment on the rights of people subjected to abuse might be easier to justify if there were good evidence that the intervention of the criminal justice system actually deters further abuse; given that no such evidence exist, such policies are deeply problematic.

In Lenahan v. United States, the Inter-American Commission on Human Rights declared that freedom from domestic violence is a fundamental human right. International human rights law requires that states take active steps to prosecute those who commit intimate partner abuse. But there must be a balance that respects the autonomy of people subjected to abuse and allows them to make decisions about whether and how to be involved with those prosecutions. Without such checks, prosecutors are violating the human rights of people subjected to abuse in the name of vindicating those same rights. Incarcerating women subjected to abuse for making decisions about their engagement with the state cannot be what the battered women’s movement intended at its inception. What Sheila Kimball and Jessica Ruiz have learned is that the state is less concerned about their well-being, goals, and desires than it is about prosecuting the men who abused them, regardless of how such prosecutions affect them personally. Kimball, Ruiz, and others like them might think twice about engaging the state again.

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