VAWA @ 20 – Index

Introduction – Nishan Bhaumik on the history of the Violence Against Women Act’s passage and reauthorization and the goals of the VAWA @ 20 series.

VAWA After the Party: Implementing Proposed Guidelines on Campus Sexual Assault Resolution – Mary P. Koss and Elise C. Lopez of the University of Arizona on the effect of existing and proposed VAWA guidelines on the process for sexual assault adjudication at institutions of higher education.

Roll Back “Prison Nation” – Donna Coker, Professor of Law at the University of Miami School of Law, on VAWA’s contribution to hyper-incarceration.

Raising the Visibility of the Margins and the Responsibility of Mainstream – Marcia Olivo, Sisterhood of Survivors/Miami Workers Center, and  Kelly Miller, Idaho Coalition Against Sexual & Domestic Violence, on the need to expand VAWA in order to guarantee protections for marginalized communities.

HIV, Violence Against Women, and Criminal Law Interventions – Aziza Ahmed, Associate Professor of Law at Northeastern University School of Law, on HIV/AIDS and the negative consequences of the criminal law approach to sex trafficking.

Art, Violence, and Women – Yxta Maya Murray, Professor at Loyola Law School, on how visual art can inform the feminist legal process.

The Politics of Pretext: VAWA Goes Global – Deborah M. Weissman, Reef C. Ivey II Distinguished Professor of Law, University of North Carolina School of Law, on VAWA International (I-VAWA), Congress’s attempt to expand U.S. influence in the realm of violence against women as a matter of foreign policy.

Building the Knowledge Base: Research Funding through VAWA – Claire M. Renzetti, of the University of Kentucky, Rebecca M. Campbell, of Michigan State University, and Allison Adair, of the University of Kentucky, on the 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.

Stalled at 20: VAWA, the Criminal Justice System, and the Possibilities of Restorative Justice – Leigh Goodmark, Professor Law at the University of the Maryland Francis King Carey School of Law, on restorative justice and the failure of VAWA to provide abuse survivors with alternative venues for seeking justice.

The Mainstreaming of the Criminalization Critique: Reflections on VAWA 20 Years Later – Mimi E. Kim, Assistant Professor, School of Social Work, California State University, Long Beach, on the troubling collaboration between feminists and the criminal justice system represented by VAWA’s attachment to the Crime Bill of 1994.

VAWA in the Lives of Battered South Asian Women in the United States – Shamita Das Dasgupta, Ph.D., DVS, Manavi, on the experiences of battered South Asian immigrant women under VAWA.

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, on the New York City Gender Justice Taskforce and her work leading the Sakhi for South Asian Women, an anti-domestic violence agency.

VAWA and Welfare Reform: Criminalizing the Most Marginalized Women – Ann Cammett, Professor at CUNY School of Law, on how national welfare reform legislation and the rising rate of female incarceration undermined VAWA’s goals for poor women.

Improving Civil Legal Assistance for Ending Gender Violence – Elizabeth L. MacDowell, Associate Professor of Law and Director of the Family Justice Clinic at the William S. Boyd School of Law, University of Nevada Las Vegas, on necessary reforms to VAWA to expand civil remedies for domestic abuse survivors.

A Disappearing Act: The Dwindling Analysis of the Anti-Violence Movement – Kerry Toner on the failure of VAWA to address the complex social phenomenon of domestic violence and the complete experiences of survivors.

Gender Violence and Civil Rights – Julie Goldscheid, Professor, CUNY Law School, on the need for a renewed civil rights initiative in light of Morrison striking down VAWA’s original civil rights remedy.

Nishan Bhaumik

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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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Mary P. Koss and Elise C. Lopez
University of Arizona

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The 20th anniversary of the passage of the Violence Against Women Act (“VAWA”) and its reauthorization in 2013[1] merits celebration and marks a time to contemplate the future legislative and policy agenda. This commentary considers the effect of existing and proposed VAWA guidelines on the process for sexual assault adjudication at institutions of higher education. The focus is several documents including the US Department of Education Office of Civil Rights “Dear Colleague Letter”[DCL],[2] DCL clarification,[3] and the Proposed Guidelines for the Violence Against Women Act Reauthorization as disseminated for comment in the Federal Register of June 20, 2014.[4] We aim to establish that taken together, these documents: (1) blur the distinctions between campus misconduct resolution and criminal justice process;[5] (2) lack scholarly analysis of sexual assault justice on campus;[6] and (3) clash with contemporary values and practice standards of student affairs professionals.[7] This commentary identifies enhancements derived from restorative justice principles [RJ] and situates them within misconduct resolution framework while maintaining consistency with DCL and VAWA required elements. RJ offers a range of formats that are relevant to the student body at large as well as to individuals involved in sexual misconduct of varying severity and can be implemented at multiple time points in case processing. We draw upon many sources that collectively express desire for policy guidance that supports evidence-based innovations intended to increase congruence with victims’ perceptions of what constitutes justice, raise the likelihood that offenders will be held responsible by sanctions proportional to the harm done, and augment the extent to which institutional responses deter future sexual misconduct.[8]

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Roll Back “Prison Nation”^*

Donna Coke^†

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The Violence Against Women Act (VAWA) represents an unprecedented federal focus on violence against women, both in terms of money allocated and in terms of changes in federal law.   VAWA dollars have increased services for victims including civil legal representation, shelters, and youth prevention programs.   The substantive law changes in VAWA include relief for some immigrant victims, expanded tribal court jurisdiction over certain instances of gender violence that occur on Native American land, and the provision that protection orders in one state are enforceable in another state. While VAWA has made these important positive changes in civil law and remedies, the most significant changes and the most significant dollars have been in the area of law enforcement. More than 50% of the current VAWA allocation is directed to training and support of police and prosecutors.

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Yxta Maya Murray[1]

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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]

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Deborah M. Weissman^*

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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.”[1] 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.[2] 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.[3]

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

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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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Leigh Goodmark[1]

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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 Work, in Restorative Justice And Violence Against Women, supra note 7, at 19.

[9] Id. at 20.

[10] Id.

[11] Julie Stubbs, Restorative Justice, Gendered Violence, and Indigenous Women, in 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 Justice, Coordinated 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.

Julie Goldscheid ^*

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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]

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