By Staff Writer Zeqi Chen

In March 2022, the Violence Against Women Act (VAWA), was reauthorized for the fourth time, albeit after a four-year delay. First enacted in 1994, VAWA is the federal legislative milestone against domestic violence that provides protections for individuals who have suffered gender-based harm. 

VAWA’s most iconic achievement was the establishment of criminalization as a way to combat intimate partner violence and advance the criminalization of intimate partner violence. This approach, which allocates most of its funding to law enforcement to address domestic violence, was opposed by anti-violence activists as early as 1994 when VAWA was passed. They warned that criminalizing domestic violence would disproportionately target communities of color and punish survivors. 

With the death of George Floyd to the “Black Lives Matter” movement, the breakdown of trust between the public and police has led to increasing challenges to the traditional role of law enforcement and debates around the effectiveness of its powers in social justice. The assumption that the carceral system is an effective response to intimate partner violence and that intervention by police, prosecutors, and courts began to be questioned. Amidst social movements and activist opposition to prisons, the fourth reauthorization of VAWA continues the policy of funding the criminal legal system nonetheless. It is time to rethink the possible decriminalization component of VAWA when the racial and gender bias of criminalized domestic violence is exposed.

As the White House showed, the reauthorized VAWA made several important improvements:

  1.  Increases services and support for survivors in LGBTQ+ and other marginalized communities to fund the creation of survivor-centered restorative services. 
  2. Strengthens the prevention of sexual violence and improves the healthcare system’s response to domestic violence.
  3. Updates the SMART and CHOOSE programs to reduce dating violence and protect children who are victims of domestic violence. 
  4. Increases the safety and security of Native survivors by expanding the criminal jurisdiction of tribal courts. 

While the newly authorized bill emphasizes the needs of marginalized groups and survivors, and to some extent fills previously existing gaps, it does not change the core of VAWA, which remains focused on funding the criminal legal system. Its grant program includes the creation of a federal prosecution network, strengthening law enforcement’s response to gender-based violence, enhancing additional trauma-informed and victim-centered law enforcement training, and supporting the prosecution of firearm crimes.

The 2022 reauthorization of VAWA continues the trend of adopting criminal laws in response to gender-based violence is to be expected, as long as it is clear that VAWA is part of the 1994 Crime Bill. VAWA was passed under the Violent Crime Control and Law Enforcement Act and was originally intended to strengthen the criminal legal system’s response to intimate partner violence and rape. 

VAWA should be judged on its validity as to whether criminalization reduces gender-based violence. The assertion most often used to support VAWA is that intimate partner violence has been significantly reduced and to some extent deterred since VAWA’s inception. President Biden has frequently noted that the annual rate of domestic violence has dropped by 63 % since the VAWA was passed.

Leigh Goodmark’s analysis of the data is noteworthy, addressing that such statistics ignore the fact that crime rates in the United States have also declined by substantially the same amount. In the 6 years following the passage of VAWA, the incidence of domestic violence fell by 48% and the overall crime rate fell by 47%. Between 2000 and 2010, when VAWA was reauthorized, the incidence of domestic violence declined less than the overall crime rate. During this time, the violent crime rate declined by 33% and the domestic violence rate declined by 25%. Between 2005 and 2010, intimate partner violence declined even less than the overall rate of decline in violent crime. The latter declined by 26% while the former declined by only 6%.

In addition, after years of decline, cases of intimate partner violence have increased, especially since the implementation of the lockdown order since the 2020 pandemic. The growth rate of domestic violence in the United States is 8.1%. In particular, intimate partner violence homicides have increased while gun ownership rates have remained largely unchanged. These trends suggest that the effects of VAWA’s criminalization of domestic violence should be re-examined, as the federal government has spent hundreds of millions of dollars since 1994 to increase the criminal legal system’s response to intimate partner crime.

The increasingly visible role of police intervention in domestic violence has made women increasingly hesitant and reluctant to call for help with domestic violence. Although VAWA has funded training for police to respond to gender-based violence in a trauma-informed manner for nearly 30 years, a 2015 survey from the National Domestic Violence Hotline reveals that many people no longer choose to deal with gender-based violence by calling the police out of uncertainty about how they will be treated by the police and fear of police brutality. More than 80% of those who had not previously contacted the police expressed fear of calling them again in the future. Of those who called the police, one in four reported being arrested or threatened with arrest when they called the police to inform them of the gender-based violence they had been subjected to. Two-thirds said they were worried or even afraid to call the police in the future if they were subjected to gender-based violence. 24% said they would not call the police again.

Increasing police involvement in families experiencing domestic violence as a result of mandatory arrests has led to the criminalization of mothers. Some states require police to report to child protection agencies whenever a child is present during domestic violence interventions, and such policies result in the criminalization of women who have also suffered violence as survivors. In Oklahoma, for example, where female incarceration rates have been nationally high for 30 years, child abuse and neglect are the most common crimes faced by incarcerated women.

The concept of “governing through crime” proposed by Jonathan Simon provides an explanation for the use of the criminal legal system to address social problems despite the lack of effectiveness of criminalization. The transformation of the American public from a criminal punishment system that was seen as perverse decades ago to one that is now normalized and supported reflects a change in perception. 

Victims have become the center of political action. A safer community is created by making the victim’s experience empathetic to the public and punishing the offender through legislation and harsh penalties. In this criminal legal system, any focus on the accused is a sign of devaluation and lack of attention to the victim. Thus, governing society through crime becomes a way to promote community safety and well-being. It is undeniable that the criminal justice system is central to the protection of victims of domestic violence, although it is still rife with gender and racial bias. It is important to reimagine how the decriminalization component of VAWA is conceived in response to VAWA’s problems.

“Funding is often a zero-sum game”, Goodmark states, so funds that are largely spent on criminalization are not available to invest in non-incarceration programs that address intimate partner violence. VAWA could increase prevention funding to support interventions with youth and men who use violence if the billions of dollars VAWA invests are not in ex post facto penalties that fail to reduce and stop intimate partner violence. Indeed a range of non-criminal approaches to addressing gender-based violence are beginning to bear fruit

FreeForm, which works to redefine intimate partner violence as a structural economic problem, provides unrestricted cash grants to survivors to meet financial needs and prevent victims from falling into violent relationships resulting from economic hardship. In terms of interventions for male perpetrators, programs such as MenCare and Fathers for Change that involve men as fathers have been effective in reducing violence. Working with adolescent populations, Coaching Boys into Men, Safe Dates, and Fourth R has been successful in reducing juvenile delinquency and victimization rates by increasing education about gender-based violence among adolescents.

What the next reauthorization of VAWA and the creation of safe communities in societies where gender-based violence still exists depends on our imagination. Rethinking solutions to gender-based violence and shifting the focus from criminal punishment to the development of alternatives to criminalization is what a future VAWA that effectively reduces and prevents gender-based violence can do.

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