Beyond Criminalizing Domestic Violence

By Leigh Goodmark (she/her) • March 18, 2021 • Vol. 01 No. 01

Editor’s Note: The effects of the coronavirus pandemic will take years to untangle. Already, scholars are raising alarms about increasing incidents of intimate partner violence (more colloquially known as “domestic violence”). This uptick is an anomaly: since the 1990s, rates of intimate partner violence have fallen, and many point to the 1994 Violence Against Women Act (VAWA) as a cause. The act was one of then-Senator Joe Biden’s signature pieces of legislation, an achievement he often references. It expired in 2019, after the Republican-controlled Senate failed to reauthorize it. Now that Democrats control Congress, they are again moving to reauthorize the law. But activists and legal experts caution that we should first examine its legacy. In this essay, Leigh Goodmark, an expert on gender and the law, proposes how VAWA might be reimagined. She asks: What could a non-carceral response to domestic violence look like?

When Bonnie called the police, all she wanted was to figure out how to get her car back.  

Earlier that day, her boyfriend had assaulted her, then left in her car without her permission. “Since that day,” Bonnie says, “my life has fallen apart.” The police arrested her boyfriend, even though Bonnie repeatedly asked them not to. Over Bonnie’s objection, the court entered an order prohibiting Bonnie and her boyfriend from having contact. Whenever Bonnie tried to talk with prosecutors, they dismissed her concerns. Bonnie felt hurt, overwhelmed, and angry. She could not understand why strangers got to make decisions that hugely impacted her life without her input. 

Prosecutors charged Bonnie’s boyfriend. Although Bonnie did not want to participate, they subpoenaed her and forced her to testify. Her boyfriend was convicted and incarcerated, despite Bonnie’s insistence at sentencing that she did not want him to go to prison. When she gave her victim impact statement, Bonnie says, the judge repeatedly interrupted, sighed, and called her support for her boyfriend “troubling.” Bonnie felt humiliated and dehumanized by the judge, who not only prohibited her boyfriend from contacting her but also limited the amount of contact Bonnie could initiate with her boyfriend, even though Bonnie had faced no charges. Bonnie’s relationship ended not because she wanted it to, but because the legal system intervened. 

Bonnie’s experience is not unique. And it is directly linked to one of President Joe Biden’s signature accomplishments—the Violence Against Women Act (VAWA). VAWA—enacted in 1994; expanded and reauthorized in 2000, 2005, and 2013; and expired in 2019 as a result of Congressional inaction—is finally back on the table. Last week, with Biden’s support, the House introduced a new version of the legislation. But some anti-violence activists advocate for a very different kind of VAWA—one that doesn't rely on prisons or the criminal legal system as a solution. In other words, a non-carceral VAWA.

VAWA always had a criminal bent. The legislation ultimately passed as part of the 1994 omnibus crime bill but was drafted in 1990, after then-Senator Biden requested that an earlier crime bill include “something on women.” It defined domestic violence using the language of the criminal law (as “felony or misdemeanor crimes of violence”), created a number of new federal crimes involving intimate partner violence, and promoted policies associated with increased criminalization. Above all, VAWA provided funding, and it primarily funded the criminal legal system. By 2013, approximately 85% of VAWA funding flowed to the criminal system, to places like courts, police, and prosecutors. VAWA promoted the idea that arrest and prosecution would decrease and deter violence, if only the criminal legal system had the necessary funding and training. 

But after 26 years of public funding, it appears that criminalizing intimate partner violence may not lower incidence rates.

While it is true that rates of intimate partner violence have dropped significantly since VAWA’s inception, this trend requires context. Since 1994, all violent crime rates in the United States have fallen, and the general rates of violent crime fell in tandem with the drop in intimate partner violence. Between 1994 and 2012, both rates of intimate partner violence and the overall violent crime rate decreased by 67%. Between 2016 and 2018, the number of incidents of intimate partner violence in the United States rose substantially—from 597,2000 to 847,230—before dipping to 695,060 in 2019. Rates for 2020 haven’t been released yet, but—partly due to the COVID-19 pandemic—they will likely be much higher.

In short, as VAWA poured billions of dollars into the criminal legal system, rates of intimate partner violence did no more than keep pace with the drop in the overall crime rate. Moreover, the frequency of incidents has climbed since then. And there is little to no social scientific evidence suggesting that criminalization (arrest, prosecution, conviction, and incarceration) deters or decreases intimate partner violence.

Indeed, far from deterring intimate partner violence, criminalization exacerbates some of the strongest factors that correlate with it, including economic instability and trauma.

An Evolving Concept of “Justice”

The world has changed since VAWA’s passage in 1994. At that time, only a few women (mostly women of color) argued that criminalization would harm marginalized communities. Now, those women are joined by voices from the mainstream anti-violence movement, including community organizations such as Embrace, in rural Wisconsin, which lost significant funding after placing a Black Lives Matter sign outside of its offices, and a few VAWA-funded state coalitions against intimate partner violence. People increasingly recognize that criminal interventions often harm those who use violence and those who are victimized—and that those interventions reverberate beyond individuals and into their families and communities. VAWA’s current carceral bent ignores the destruction that criminalization wreaks in communities of color, particularly Black and indigenous communities. The bill is increasingly out of sync with a world that questions police funding levels, a world in which anti-violence agencies affirm that “Black Lives Matter.”  

Fear often motivates resistance to moving away from criminalization: What will happen if we no longer use the criminal legal system to arrest, prosecute, convict, and punish those who use violence? How will we deter violence? How will we protect people? Such doubts fail to appreciate how little the criminal system does to keep people safe or prevent violence. They fail to recognize the damage that system inflicts. Our continued reliance on criminalization stifles imagination and creativity. Most importantly, it sells a false sense of security, promising an end to violence that it does not and cannot deliver. 

Biden has an opportunity to design a new VAWA—one that shifts away from the criminal system and toward prevention and non-punitive responses. A non-carceral VAWA would be a major step toward developing and implementing responses that might make the change we so desperately need. In the end, our goals are the same: stopping intimate partner violence.

Which prompts the question: What could a non-carceral response to intimate partner violence look like?

To answer this question, we must consider what role law enforcement plays in the context of intimate partner violence, and how we could accomplish the same goals differently. Police are currently the only first responders to intimate partner violence; almost every anti-violence organization urges callers to hang up and dial 911 if they are in an emergency situation. This model reflects an understanding of justice centered on punishment. It also stems from the belief that separation, through incarceration, is essential to stopping violence.

Each of these assumptions is open to challenge. Depending on the level of violence involved, advocates with training in trauma or neighborhood-based violence “interrupters” could substitute for police as first responders. Our conceptions of justice could expand: rather than assuming justice requires a criminal conviction, we could ask survivors what justice means to them and try to deliver what they need. Finally, we could change the emphasis on separation through criminalization. If someone wants to leave a relationship, we can provide them with the support and resources to do so. But if not, we must recognize that separation does not stop intimate partner violence—in fact, it often makes it worse. We must also acknowledge the reality that many people choose to continue relationships with violent partners—they want the violence to end, but not the relationship, and believe that their partners (who are often co-parents as well) have the capacity to change. Instead of focusing on separation, anti-violence efforts could focus on helping people confront their use of violence and change their behavior.

The new VAWA could also reflect a wider understanding of what intimate partner violence looks like. We now know that it also includes violence that is deeply harmful but not criminal—like emotional, psychological, economic, and spiritual abuse. By expanding our definition of violence, we also become better suited to prevent it.

VAWA is both a funding bill and a statement of federal priorities in the realm of intimate partner violence. A non-carceral VAWA would send a clear message about federal anti-violence policy by redirecting funding from law enforcement toward preventive measures and non-carceral responses. Funding ought to focus on three areas in particular: first, expanding economic opportunities for both survivors and their partners; second, preventing violence at its source by promoting evidence-based programs shown to decrease violence; and finally, coordinating community-level responses that don’t rely on the criminal legal system.

Criminalization currently stifles innovation in our responses to intimate partner violence. The possibilities are bounded only by our imaginations.          

Economic Empowerment

Low-income women are disproportionately likely to experience intimate partner violence; the less income a woman has, the more likely she is to be victimized. A lack of economic resources makes it difficult for women to leave violent situations, particularly if they are economically dependent on their partners.

One of VAWA’s first priorities should be to economically empower survivors of intimate partner violence. VAWA could, for example, put money directly into the hands of survivors to enable them to meet their immediate needs and overcome the economic dependence that prevents them from finding safety. FreeFrom, based in Los Angeles, works to “dismantle the nexus between intimate partner violence and financial insecurity” in part by doing just that. Through its Survivor Safety Fund, since March 2020 FreeFrom has distributed more than $266,000 to 1100 survivors in the United States, allowing them to pay rent, utilities, and address other basic needs. 

Year after year, survivors of violence identify housing as their most pressing unmet need. While VAWA provides some funding for transitional housing (about $35 million in 2018), that amount pales in comparison to the money spent to equip and train law enforcement ($268 million just for VAWA’s two largest grant programs in 2018). VAWA could instead follow the lead of organizations such as the District Alliance for Safe Housing, which recognizes that safe housing is a basic human right and sees housing as an essential strategy in helping survivors of violence achieve safety. Funding should be redirected toward emergency, transitional, and permanent housing.

Though intimate partner violence affects all genders, the majority—around 85%—is perpetrated by men. Research shows that male underemployment and unemployment is one of the strongest predictors of perpetration of intimate partner violence. But criminalization jeopardizes employment, making it more difficult for those who have been arrested, convicted, or incarcerated to find and keep work. VAWA funds could go toward job training and employment services for men who use violence. VAWA could also tackle larger structural issues that perpetuate economic inequality, such as the gender and racial pay gap, or mandate an increase in the minimum wage, which President Barack Obama’s Council of Economic Advisors estimated could decrease crime rates by 3–5%.

Addressing Root Causes

Rather than supporting after-the-fact interventions, VAWA funding could be used to prevent violence in the first place. Adverse childhood experiences like child abuse and neglect and witnessing violence in the home and community make children more likely both to use violence and be victimized. VAWA funds some violence prevention programs but could use additional funding to seed programs that intervene to prevent adverse childhood experiences. Nurse-family partnerships, for example, which send nurses to the homes of families at risk of child abuse and neglect, have been shown to decrease rates of intimate partner violence. Organizations such as Fathers for Change harness the powerful identity of fatherhood to help reach fathers who are abusing both partners and substances. VAWA could build on existing prevention efforts, dedicating additional funds to working with adolescents to prevent teen dating violence, using evidence-supported programs such as the Safe Dates Project and The 4th R. 

Traditional counseling has a mixed track record in preventing recurring violence. Such counseling is based on the belief that men use violence to assert power and control over their intimate partners and requires men to confront the patriarchy within society as well as their own sexism and justifications for male violence. VAWA could pilot programs that build on existing research on the correlates of intimate partner violence and recognize how trauma and the perpetration of violence intersect. Instead of ignoring the trauma that some men who use violence have experienced or dismissing it as an excuse, programs such as the Strength at Home Men’s Program acknowledge trauma as a potential driver of, but not an excuse for, violence. VAWA already does prevention work; shifting VAWA funds from criminalization to prevention would bolster those efforts.

Harnessing the Power of Community

VAWA requires funded communities to establish coordinated responses to intimate partner violence. While VAWA’s list of potential community stakeholders is diverse, it is heavily weighted toward law enforcement: police officers, prosecutors, judges, and probation and corrections officials. But studies repeatedly show that 40–50% of victims of violence never contact law enforcement for assistance—instead, they rely on families, friends, and other relationships. A non-carceral VAWA could redefine coordinated community responses to eliminate the role of law enforcement and bolster broader community involvement. As activists in the defund movement frequently point out, defunding the police is not about saving money—to respond effectively to social problems like intimate partner violence, we need to spend more money in communities.

VAWA grants could seed community accountability work. Community accountability projects like Creative Interventions in Oakland, California ask victims, “What do you need to feel safe?” and help community members meet victims’ needs. The Creative Interventions toolkit teaches communities to identify violence, cultivate allies, and confront barriers to both helping victims feel safe and encouraging perpetrators to accept accountability. Community accountability involves concrete strategies like pod mapping, which asks members of communities to visualize and document the mutually supportive relationships with those people they would call on if they experienced violence. VAWA could pilot programs to measure the effectiveness of these kinds of non-carceral interventions.

Restorative justice focuses on harm instead of crime and asks what the harm was, how the harm impacted the individual, and what must be done to redress the harm. Restorative justice is individualized and built around the specific needs of the person who has been harmed. Using restorative justice in the context of intimate partner violence has long been controversial in the anti-violence community, raising concerns about safety and the re-privatization of intimate partner violence. But restorative practices are currently used with positive results in intimate partner violence cases all over the world.

Restorative practices cannot replace the current criminal legal response, which is designed to process large numbers of cases as expeditiously as possible. Restorative justice is time-, cost-, and labor-intensive and inappropriate in cases where the person harmed does not want to participate or the person using violence is unwilling to accept responsibility. But restorative practices could provide justice for those unable or unwilling to interact with the criminal legal system. A non-carceral VAWA should provide support for restorative options.

A Path Forward

Last week, the House introduced a new VAWA bill. This version includes money to pilot and study restorative justice interventions in cases involving intimate partner violence. It creates additional housing protections. It increases the funding dedicated to prevention. But in the end, it remains very carceral, and funnels the majority of its funds into responses through the criminal legal system.

VAWA funding is finite. Even if all of the VAWA money that currently goes into the criminal legal system was reallocated, we would not have enough funding to cover the programs covered here, nor for the countless other avenues available. For issues as complex and entrenched as violence, change takes a long time and lots of resources.

But with redirected funding, we could do some of the work described above and, by doing that work, create space for the development of new ideas and generate evidence to support future funding and innovation. We could use this new VAWA as an opportunity to change the way we think about intimate partner violence—and, possibly, finally bring it to a halt.  

Until then, people like Bonnie must seek answers elsewhere. After calling the police, Bonnie was thrust into the long and complex criminal legal system without her consent. That system does “more harm than good for victims,” Bonnie told me. “There is no humanity in assembly line justice,” she said. “I almost see the judicial system as an abuser now … So many similar behaviors in regard to making victims feel lesser and not ‘well enough’ to make their own decisions.” If restorative justice had been available, she would have opted for it.

Bonnie’s experience with the criminal legal system left her disillusioned, sad, and angry. But Bonnie, who is a therapist, decided to help people get the support she lacked. Now, she’s working toward starting a support group for people who have had similar experiences with both intimate partner violence and criminalization, to help them deal with the compounded trauma that she knows so well. Bonnie said, “It is my only way of knowing how to help and give back.” 

Leigh Goodmark (she/her) is the Marjorie Cook Professor of Law at the University of Maryland Carey School of Law and the author of Decriminalizing Domestic Violence: A Balanced Policy Approach to Intimate Partner Violence.

Edited by Caroline Lester (she/her)