We Can’t Breathe: Domestic Violence Advocacy and the Criminal Justice System

 

 

Deborah M. Weissman and Leigh Goodmark

 

In recent months, as summits were held on many campuses in preparation for new and improved protocols to respond to gender-based violence, and the Ray Rice incident created opportunities for public debate about the problem, Eric Gardner was killed by NY police in a choke hold while being arrested for selling single cigarettes in the street, Mike Brown was shot, hands up, in Ferguson, Ezell Ford was killed by Los Angeles police, witnesses say while he was lying in the street, and Tamir Rice, a 12-year-old boy, was shot and killed by a policeman judged unfit for duty two years prior.  The failure of the criminal justice system to obtain accountability for violence by police officers demonstrates the seeming intractability of racism and police abuse.

There is an important connection between these two sets of seemingly disparate events. How do the recent cases of racial violence by police authorities implicate gender based violence?  Farah Tanis, the co-founder of Black Women’s Blueprint, explains that events in Ferguson demonstrate that “[w]hen sexual violation is not placed squarely in the context of racial justice issues, it silences survivors.”

Scholars and advocates have articulated concerns about the dissipating ties between domestic violence advocacy groups and the civil rights movement from which they emerged.  The politics of “unmodified feminism,” as Angela Harris has noted, has shaped the paradigmatic law-and-order response to domestic violence with troubling consequences that have been exhaustively examined.  Even as domestic violence has been properly reframed as a human rights issue, much of the focus of this initiative has invoked demands for a more vigorous police response. 

The current crisis of systemic racism manifested in police practices makes evident that domestic violence advocates must intentionally realign themselves to join with the civil rights movement to dismantle racist police practices.  Domestic violence advocacy groups with traditions of mainstream identity politics have been absent from coalition efforts to litigate and legislate an end to racial profiling.  For example, in Maryland v. King, the U.S. Supreme Court was asked to consider whether the states could require individuals in police custody who were not yet convicted to give DNA samples to law enforcement without violating their Fourth Amendment rights to be free from unreasonable search and seizure.  Amicus briefs were filed by a consortium of civil rights groups who argued that such acts that appear to be neutral on their face have been used disproportionally as investigatory tools against minority populations and provide an incentive for pretextual and race-based stops and arrests for the purpose of DNA sampling. State-based domestic violence organizations and “federally recognized state sexual assault coalitions,” however, aligned themselves with law and order interests and also appeared as amicus in the case, arguing for upholding the statute.  To be sure, domestic violence and sexual assault amici have a compelling argument that DNA evidence may facilitate rape prosecutions, but as experts have noted, “[p]utting DNA from arrestees into databanks also exposes more innocent people to the risk of false accusation or conviction.” Perhaps more significantly, nowhere in their brief did the domestic violence and sexual assault agencies express any concerns about the well-documented problem of racial profiling practices or advocate for the law to be implemented in a racially neutral way, although they could have done so without weakening their position in support of upholding the statute.

It is already well-documented that people of color, immigrants, LGTBQ, and poor people are reluctant to seek police protection from abusive partners.  As campus policies pertaining to sexual assault develop, students have questioned whether calling the police or reporting enforces structural oppression.  Domestic violence groups must seize upon opportunities to expand advocacy into broader social justice networks, and create opportunities to untether solutions to gender-based violence from a failed racist criminal justice system that has done little to ameliorate the problem of violence against women. 

 

An amendment that has gutted parts of the Prison Rape Elimination Act gives domestic violence advocates an opportunity to join with social justice advocates to curtail abuses endemic to the criminal justice system. Passed with bipartisan support in 2003 and signed by then-President George W. Bush in response to evidence of the startlingly high rates of rape and sexual abuse in correctional facilities, the Prison Rape Elimination Act prohibits sexual misconduct in prisons and requires states to investigate and appropriately respond to allegations of violations.  Among PREA’s requirements is that states certify by May 2014 that they are in compliance with PREA or that they intend to comply.  But earlier this year, the Senate Judiciary Committee adopted an amendment that essentially gutted that requirement by eliminating most of the financial penalties that states faced if they failed to comply with PREA.  The amendment was offered by Republican Senator John Corwyn of Texas (one of the states most vocally opposed to the compliance requirement)--and supported by Democratic Senate Judiciary Chairman Pat Leahy.  Why would the Committee support an amendment that so thoroughly de-fanged PREA? (link to https://www.themarshallproject.org/2014/12/02/delay-defy-defang).  To protect victims of domestic violence.

 

During the hearings on the Amendment, Senator Corwyn explained that funds for PREA enforcement were tied to grants for police and victims of domestic violence.  If states failed to comply with PREA’s requirements, they risked losing those funds.  Rather than harm victims of domestic violence, the committee seems to have decided, they would allow states to evade PREA’s requirements instead.

 

As SpearIt, a law professor from the Thurgood Marshall School of Law at Texas Southern University, pointed out last February at CONVERGE! Re-Imagining the Movement to End Gender Violence (link: http://www.law.miami.edu/academics/converge/) , prison rape is part of the cycle of gender violence in many low income communities.  Men and women who experience sexual violence in prison bring that trauma back into their communities, where it plays out in their own interpersonal relationships.  Domestic violence advocates should care about the elimination of prison sexual violence, both because it is an atrocity and a human rights violation in and of itself and because it is part of a spectrum of gender violence tied directly to intimate partner violence.  Domestic violence advocates should join the National Prison Rape Elimination Commission and other human rights organizations seeking to overturn this shortsighted decision.  Domestic violence advocates should not allow ourselves to be used as a pretext for Texas and other states to continue shirking their responsibilities under PREA.