How the Violence Against Women Act Failed Women

How the Violence Against Women Act Failed Women

How the Violence Against Women Act Failed Women

The provision of the 1994 Crime Bill sponsored by then-Senator Joe Biden has contributed to mass incarceration and state violence.

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Stefanie Mundhenk had always wanted to help people—as a child, she hoped to become a missionary doctor. After she was raped by another student in her senior year of college, however, she decided to give back in another way: by becoming a prosecutor.

“I wanted to go into sex crimes and put rapists in jail forever,” she said. “The power that prosecutors have and the fact that they’re seen as these heroes of public safety was really appealing to me—and it became all the more appealing to me after I suffered the kind of things that I thought prosecutors fixed.”

As Mundhenk applied to law school that year, in 2015, her life was consumed by a hall-of-mirrors search for justice familiar to many who have experienced sexual assault. Her requests for counseling were rejected by mental health services, her request not to be assigned to sit next to her assailant in class was denied by university officials, and campus police said that they’d have to interrogate her for five to six hours if she wanted to file a legal case, while also assuring her that a legal case was hopeless.

She worked her way through applications while navigating levels of depression and anxiety she had never experienced before. Fueled by anger, she outlined in every application what had been done to her and how her work as a prosecutor would stop it from happening to other women.

Mundhenk herself would have been shocked by the dramatic change of heart she would ultimately experience. Just a few years later, as she finished law school, her job applications outlined a very different dream: She wanted to specialize in representing people accused of sex crimes. This practical decision came alongside a philosophical one: She had become a prison abolitionist.

Her transformation echoes a nationwide crossroads at a time when the landscape of public opinion has shifted dramatically, first in the aftermath of #MeToo and then with last summer’s nationwide uprisings against police brutality, but where the policy prescriptions for these changes have not yet been determined. It is a strange—and potentially consequential—historical convergence that this will take place after the chief architect of the Violence Against Women Act (VAWA), a key piece of the much maligned 1994 Crime Bill, has assumed the mantle of the presidency.

VAWA lapsed in 2019, but on March 17 of this year, the House voted to reauthorize it by a wide margin. The bill now awaits a vote in the Senate, where it will face considerable partisan hurdles. Those hurdles, however, are largely related to the bill’s gun control provisions. As President Joe Biden himself said, the bill’s passage “should not be a Democratic or Republican issue.” The carceral approach to public safety and protection that VAWA fits into has been a bipartisan consensus for decades.

During his 2020 election campaign, Biden helped pave his path to the presidency through strategic burnishing of his sponsorship of VAWA—even as he tried to distance himself from the crime bill that it was a part of.

“My husband stabbed me 13 times and broke my neck while the police were on the scene. I nearly died and I am permanently paralyzed,” an emotional Tracey Motuzick, formerly Thurman, says says in an August 2020 Biden campaign video. The clip is of her speaking during a 1990 testimony at the US Capitol while a somber then-Senator Biden looks on. Biden has called VAWA his “proudest legislative accomplishment” and his campaign pledged to make the act’s reauthorization one of his first 100 days priorities.

Biden’s campaign was conspicuously quieter about the 1994 Crime Bill overall, which has come under scrutiny for its unmistakable role in accelerating the mass incarceration crisis. Biden is not alone in treating VAWA as the exception to the rule, but the symbolic weight of the act obscures its real history. Since its passing, VAWA also contributed to mass incarceration and other forms of state violence—with women themselves being among its victims.

Mundhenk’s first time in court was nothing like the episodes of Law and Order: Special Victims Unit she’d seen—and it certainly didn’t look like the kind of place where she’d be able to fight for justice for women like her.

It was the summer after she’d graduated from college, and Mundhenk had an internship working with a lawyer in Texas while she geared up to start law school.

She watched a long line of men, clad in orange jumpsuits and chained to each other, shuffle slowly past a judge to hear their fate. Every one of them was Black.

“It was horrifying and gross,” said Mundhenk. “I didn’t understand how people were behaving like this was normal and like something wasn’t dreadfully wrong.”

The building blocks to the scene she saw that day were laid decades earlier. Historian Elizabeth Hinton argues that the seeds of mass incarceration were planted well before the 1994 Crime Bill, against the backdrop of the 1960s. This decade was an intense period of the global Cold War, during which the United States and its allies vied for control of a world order in the process of being completely rearranged in the aftermath of World War II. At the same time, a wave of anticolonial movements for national independence from European colonizers in Asia and Africa destabilized the centrality of global superpowers. The United States’ entry into a civil war in newly independent Vietnam, aiming to “contain” the spread of communism and the influence of the Soviet Union in the region, sparked intense backlash in the homeland. Anti-war radicalism dovetailed with other forms of agitation, and helped build a “New Left”: a broad coalition of groups like the Students for a Democratic Society, staking out opposition not only to war but also to racism, patriarchy, homophobia, and other forms of injustice. The government reacted to these groups repressively, fueled by deep suspicion of Soviet involvement. The FBI and local police forces coordinated efforts to infiltrate, surveil, sabotage, and destroy these groups, often by covert, illegal, and lethal means. One tried and true tactic: co-opting the goals of the movement into federal policy and state institutions.

Part of these revolutionary trends was a radical feminist movement for “Women’s Liberation.” In the 1970s, a subset of activists in this movement focused their efforts on getting women out of abusive households by founding and managing shelters for battered women across the country. From 1975 to 1978, 170 such shelters were opened across the United States.

It was hard for a burgeoning grassroots movement to meet its needs for security (including from potentially violent partners of the sheltered women) and funding, which meant many began to turn to the state. One of these activists was Sharon Rice Vaughan, who founded one of the first of such shelters in St. Paul, Minn. The radical women’s group she worked with was averse to accepting government funding because they opposed the Vietnam War. A $35,000 grant from the state’s mental health board was hard to turn down, however—doing good things with dirty money was better than not doing anything at all, they reasoned. When they realized it came with strings attached, like being absorbed into the government structure and abandoning their nonhierarchical administrative model, they moved ahead anyway. Similar concessions across the country laid the groundwork for government control over many women’s shelters.

“Feminists found themselves in a neverending quest for funding from the very state administrators and wealthy capitalists they detested and an unending series of painful compromises,” writes legal scholar Aya Gruber in The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration.

These concessions met with the protestations of many Black feminists, who understood the state to be its own kind of violent abuser. “Welfare is like a super-sexist marriage,” wrote Black feminist Johnnie Tillmon, who was the first chair of the National Welfare Rights Organization, in Ms. magazine in 1972. “You trade in a man for the man. But you can’t divorce him if he treats you bad. He can divorce you, of course, cut you off anytime he wants. The man runs everything,” She believed that anti-poverty activism and welfare reform should be the central focus of feminism.

But a combination of ideological differences within the feminist movement and the resource gaps confronting their work meant they moved ahead anyway. Within a decade, Gruber recounts, law enforcement had become “the centerpiece of feminist DV [domestic violence] activism.”

Meanwhile, violent crime and the desire for welfare reform was reshaping the national political landscape. George H.W. Bush’s notorious “Willie Horton” ad exploited the brutal rape of a white woman by a Black man on furlough from prison to steamroller Democratic candidate Michael Dukakis in the presidential election.

That strategy set the stage for years of political discourse. Historian Donna Murch argues that Democratic upstart Bill Clinton defeated the incumbent Bush in the following 1992 election in part by running to the right of Bush on criminal justice—going as far as flying back to Arkansas during the campaign to personally oversee the execution of Rickey Ray Rector, a Black man convicted of killing a police officer. This strategy was no shot in the dark: It was the implementation of extensive social science research commissioned by the Democratic National Committee, which uncovered a pervasive characterization of the Democrats as a “give away party, giving white tax money to blacks and poor people.” The survey feedback was so nakedly racist and classist that the party chair ordered nearly all copies of the report destroyed.

Clinton had also run on the promise of welfare reform, culminating in the “welfare to work” legislation “the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.” His election helped accelerate trends toward the rebalancing of federal government resources away from social services and toward the carceral system.

During these same years, Senator Joseph Biden was drumming up support for what would become the Violent Crime Control and Law Enforcement Act, or the 1994 Crime Bill. Both parties continued waging their battle to be tougher on crime than the other.

Republican Representative Scott L. Klug bragged that his party had pushed the bill to include “$1 billion more for prison instead of hugs, and understanding and social workers.” Biden boasted that the bill proved Democratic support for 60 new death sentences, 100,000 new cops, and 125,000 new prison cells. The bill also created the infamous “three strikes” rule and a variety of new mandatory minimums for drug and violent crimes.

This combination of reduced social support and the increased criminalization of America’s racialized underclass dramatically accelerated mass incarceration, aided by the incentives provided by recent legislation for prison construction. The Willie Horton ad was no fluke: The politics of transferring social resources from food stamps to nightsticks was popular with enough of the electorate to sway elections. Because of this toxic combination, the number of state and federal inmates doubled under Bill Clinton, growing more rapidly than under any other president, including under Republican Presidents Richard Nixon, Ronald Reagan, and George H.W. Bush—the presidents who were instrumental in advancing the “war on drugs” that is often given an outsize role in the explanation of mass incarceration.

Planted inside the bill was a carrot that helped more progressive politicians—including Bernie Sanders—to vote for the new legislation: the Violence Against Women Act.

After 23 years in jail, Kelly Savage believes that no one should be incarcerated. But she’s particularly struck by the injustice of when domestic violence survivors like herself land in jail after seeking help.

In 1995, Savage was out running errands when she called home to ask her abusive husband whether they needed vacuum bags. His behavior had been escalating since he started using meth, and Savage had been desperately, quietly plotting to leave him—a move made almost impossible without regular access to a phone or knowledge of where the nearest shelter was. She thought a mundane question would help assuage any of his suspicions about her preparations. Instead, her husband told her to come home, because their 3-year-old son Justin wouldn’t wake up.

“There was a Greyhound every other day. I was supposed to be on it the next morning,” she said. “Unfortunately, the next morning never came.”

When Kelly raced home to find that Justin wasn’t breathing, she dialed 911 in defiance of her husband’s death threats. When the police arrived, both Savage and her husband were arrested for Justin’s murder. They were eventually both found guilty and sentenced to life without parole.

While rates of incarceration primarily remain disproportionately male, women’s incarceration has increased twice as fast as men’s in recent decades. Studies show that the rate of incarcerated women who have experienced physical or sexual violence prior to incarceration hovers around 90 percent.

The numbers of women incarcerated, including those subject to domestic abuse, continued its precipitous rise, accelerated by the passage of the very legislation that purported to protect them.

VAWA was a boon for carceral politics. Despite its inclusion to appease the more progressive members of the Democratic Party, it was very much a product of its time. Pointing out that almost a quarter of the proposed Crime Bill was for fighting violence against women, Democratic Representative Sam Coppersmith assured skeptics that these funds were “to hire new police officers and prosecutors, or to train existing cops and prosecutors, not social workers. If you are serious about fighting domestic violence, you must support this bill.”

Indeed, the bill was packed with carrots for police departments, prosecutors, state legislators, and nonprofit domestic violence organizations alike to hew to the carceral consensus. In her book A Troubled Marriage: Domestic Violence and the Legal System, law professor Leigh Goodmark outlines how the appropriately named “Grants to Encourage Arrest Policies” program gave money to law enforcement agencies, resulting in a slew of mandatory arrest legislation. The single largest appropriation under the Violence Against Women Act was directly for law enforcement: Its “STOP grants” program, explicitly crafted to increase arrest and prosecution, grew over time from $26 million in 1995 to $189 million by 2010. Other grant programs bundled in the legislation designated for particular vulnerable groups—such as individuals with disabilities, youth, and rural women—could be and were used to train and fund law enforcement and prosecutors.

In 2017, after more than two decades in jail, Savage’s sentence was commuted by California Governor Jerry Brown and she was released the following year. Today, she works on behalf of incarcerated and formerly incarcerated domestic violence survivors like herself. While her case was not necessarily a result of the Violence Against Women Act, it is emblematic of its effects. In California, arrests had doubled after mandatory arrest policies were implemented, increasing men’s arrests by 60 percent and women’s arrests by a staggering 400 percent.

Despite recent attempts to wall off this legislation from the larger emerging conversation about mass incarceration, the Violence Against Women Act was part and parcel of the overall construction and legitimation of mass incarceration. Though this critique has only recently been made mainstream, it was already raised at the time by feminists like lawyer and activist Mari Matsuda, who wrote in Ms. in 1994: “We know that the police are a source of violence in our communities. not just a deterrent to it…that the death rows will house our brothers as part of the ongoing genocide perpetrated in the name of crime prevention.” Goodmark sounds a similar note in a recent op-ed on the subject: Punitive and carceral approaches to domestic violence fail to protect vulnerable people for the same reasons that these approaches fail in response to any other crime—because carceral solutions ignore vulnerable people. Except when they are the system’s prey.

Today, Stefanie Mundhenk is a public defender in Danville, Ky. A slew of domestic violence cases she’s worked on over the years have even more deeply complicated her feelings about carceral responses to domestic violence. Before, she was tempted to make what she calls “carve-outs” for policies on intimate partner violence (IPV) and sexual assault—crimes so heinous they were exceptions to her disavowal of the wider criminal justice system. But as time went on, she began to think that carceral approaches to these problems suffered many of the same defects.

“We constantly try to shove women, or victims in general, into this box of an adversarial solution, and it doesn’t consider the nature of the problem,” said Mundhenk. She says that she regularly fields calls from the spouses or partners of people facing domestic violence charges who are desperate to keep the accused out of jail. It might be because people can still care about someone who abuses them—or at the very least may not want to put them in jail—or it may also be because economic dependence on a partner could mean homelessness, hunger, or insecurity without them.

Mundhenk says that in her experience, victims frequently do not want to move forward with prosecution.

“I don’t think monsters exist. I think people are just people and they make complex decisions for a lot of complex reasons,” she said. “I think our solutions a lot of times make things much worse because I don’t think that black-and-white solutions can address complex familial interactions.”

Many people do not fit into the space of protection originally imagined by VAWA. The 1994 framing of the “Violence Against Women Act” and surrounding institutional choices equated the problem of domestic violence solely with the offenses perpetrated by men on presumptively cisgender women. The reality is not so simple. In some studies, lesbian women report higher lifetime rates of intimate partner violence than do heterosexual women. Rates of intimate partner violence in LGBT relationships are as high or higher than in heterosexual relationships between cisgender people, with bisexual and trans people (of any sexuality) generally reporting higher rates of IPV than their cisgender, heterosexual, gay, and lesbian counterparts. For decades, studies have shown that men in heterosexual relationships are also victims of domestic violence. The rate of this kind of violence has proved notoriously difficult for sociological researchers to ascertain, perhaps as a result of the force of dominant gender narratives. Some studies find that men experience intimate partner violence at comparable rates to women, though typically sustaining lower levels of physical injury, while others show the opposite. The field continues to refine its approach.

Black women who experience IPV face multiple overlapping barriers to receiving help, including distrust of and discrimination from police and providers. Those who do not fit the imagined profile of the right victim (because they are the wrong race, gender, sexual orientation, or even age) report facing exclusion, hostility, and mockery when they attempt to get help from domestic violence shelters, agencies, hotlines, and the police—the very same formal institutions supported legally and financially to address the problem by laws like VAWA. Though the 2013 renewal of VAWA introduced LGBT-inclusive language, LGBT people, especially transgender people, remain vulnerable to higher rates of intimate-partner violence and systemically poor treatment by law enforcement.

Social scientists have long debated narrow definitions of domestic violence, offering alternatives that treat community-level conditions or “social determinants of health” as the primary explanations for intimate partner violence, rather than the more specific focus on cultural attitudes around gender roles. This perspective might help explain why LGBT individuals have higher rates of IPV despite presumably having less investment in prevailing cultural norms of gender and sexuality: Rampant bigotry adds “minority stress” to their lives, which increases the chance of violent interpersonal dynamics. This strategy of explanation also explains correlations between domestic violence and financial stressors like eviction and utility shut-offs. The involvement of the carceral system not only fails to solve the root problem but also adds the stresses of arrest and incarceration.

Arrest-based responses to domestic violence, like those encouraged by the 1994 bill, were rationalized by their advocates using premature social science. In 1984, the Minneapolis Domestic Violence Experiment found that arrest was the best way to stop an abuser from reoffending. A deluge of press coverage followed, and by 1989, the number of police departments with pro-arrest policies had gone from 10 percent to 89 percent. A 1989 survey found that a third of sampled police departments cited the experiment and its results as an influence on their department’s policies. By 1991, the number of states with pro-arrest domestic violence laws had gone from just a few when the study was published to about half. One of those states was Connecticut, where in 1986 “Thurman’s Law” was passed, mandating arrest for domestic violence. It was named for the woman appearing in Biden’s campaign video.

But there was a problem: The study had a tiny sample size—205 people—in a single city in a single year. When the same researchers expanded the study to five cities for several years, from 1986 to 1992, things looked dramatically different—so much so that Gruber quotes a group of criminologists (including an author of the 1984 study) as saying that “mandatory arrest may make as much sense as fighting fire with gasoline” in response to the new data in 1992. While arrest often had an immediate deterrent effect, it increased the chance of violence over time. In Milwaukee, for example, it made violence twice as likely. The research also showed that race and poverty played a role in the effectiveness of arrests; among unmarried, unemployed men, an arrest increased violence. Further studies confirmed what many skeptics had feared: While pro-arrest policies tended to have a protective effect for white and Hispanic women, they tended to backfire for unemployed men and in districts with higher Black populations—increasing rather than deterring violence for the most vulnerable.

And yet, the adoption of pro-arrest policies continued unabated—soon to be fueled by the passage of VAWA.

In 2015, further analysis of the same research found another disturbing effect of pro-arrest policies. Black domestic violence victims were significantly more likely to die after their partner was arrested than white victims—but not from homicide. Having a partner arrested increased a Black victim’s mortality by 98 percent, often from maladies of stress or poverty like heart disease.

Mundhenk says that in her time doing criminal defense in Texas, Maryland, Virginia, and the District of Columbia, she has not once had a white client. In Kentucky, many of her clients are white but the levels of poverty they face are like nothing she’s ever seen before.

“It’s existence, always trying to figure out where your next meal is coming from or where you’re sleeping at night,” she said. “All of our social ideals sort of get obliterated when there’s extreme poverty.”

One result is that Mundhenk is often negotiating with prosecutors on behalf of her client’s partners: Despite having experienced abuse, they usually don’t want their partner locked up. The prosecutor’s indifference to a desire for reconciliation, Mundhenk says, often puts people in the position of feeling pressured to lie about their abuse if they want to avoid incarceration.

“There should be another option, there should be a spectrum of options,” Mundhenk said. “The options should be not be put them in a cage or nothing ever happened,”

Prisons and policing systemically harm survivors,” said Alisa Bierria, a Black feminist philosopher at University of California, Riverside. “We have to find ways to show that we mean business about something without having to bring criminalization into it.”

Bierria is a cofounder of Survived and Punished, a grassroots prison abolitionist organization focused on survivors of domestic violence. She believes that the most helpful thing a Biden presidency could do is to work to deconstruct the carceral system he helped build.

“Decarceration, defunding policing and prisons, moving those funds to things that survivors have said that they need again and again in every study: affordable housing and mental health services to address the trauma that people have experienced,” Bierria says, adding that these basic resources increase self-determination and therefore safety. “That is such common knowledge within the field that it’s becoming a little bit frustrating.”

This years’s iteration of VAWA includes some changes that acknowledge the gaps Bierria points out, including increased funding for prevention, housing protections for survivors, and some money for alternatives to the carceral system. It doesn’t, however, change the central tenets of the legislation.

“At core, VAWA remains a funding bill, and what it disproportionately funds is the criminal legal system,” said Goodmark. “VAWA’s core commitment to the criminal legal system as the primary response to intimate partner violence hasn’t changed.”

A recent study of victims of violent crime in Los Angeles found that just 21 percent of victims were assisted with navigating the legal system, only 25 percent received help with medical care, less than 30 percent received mental health support, and just 15 percent received housing support. It also found that 82 percent of victims supported alternatives to incarceration, including mental health services and restorative justice.

There are a variety of people and groups working on non-carceral solutions to gendered violence. Professor of criminal justice Alissa Ackerman works on restorative justice practices to help survivors of sexual assault heal. In the Navajo Nation Peacemaking Program, community members and the extended families of people experiencing violence—including couples experiencing domestic violence—convene to talk through issues, rather than bringing in a third party with no knowledge of the stakes or circumstances facing the people involved. “We have to make community members understand what sexual harm looks like, what it feels like, why it is unacceptable,” says prison abolitionist Mariame Kaba in her new, best-selling book, We Do This ’Til We Free Us. “We have to make interpersonal violence unthinkable.”

In The Feminist War on Crime, Gruber writes that when people ask her what we’re supposed to do about violence against women if we don’t use police and prisons, she has a simple answer: “Give women money.”

For Mundhenk, her own journey has been about accepting that her anger at her rapist, and at the negligence and hostility of the institutions supposedly meant for her protection, are not mutually exclusive with her belief that prisons should not exist.

“There’s a difference between feeling malice towards someone, and knowing that a particular system is not going to make that icky feeling go away and it’s not going to help anyone—in fact, it’s going to harm a lot of people,” she said. “It’s recognizing that prisons are not a proper tool for the change we desire.”

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