When “Victims” Become “Criminals”

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Domestic violence is a national epidemic to which federal and state authorities have been increasingly responsive. At the federal level, funding for programs under the Violence Against Women Act of 1994–designed to criminalize battering and to support victims of abuse—such as hotlines, shelter services, civil and legal services, and grants for training law enforcement, was reauthorized in 2000. Similarly, at the state level, authorities have continued to enhance the prosecution of battering. In 1997, in response to advocates’ complaints that police routinely arrested both the batterer and his victim during domestic violence interventions, New York enacted a Primary Physical Aggressor Act, which requires police officers to arrest only the primary aggressor, i.e., the batterer. In 2001, New York State extended the Family Protection and Domestic Violence Intervention Act of 1994, requiring mandatory arrest for anyone suspected of seriously beating a spouse. Under the Clinic Access and Anti-Stalking Act of 1999, New York created the new crime of “stalking,” providing local authorities with expanded powers for prosecuting menacing and harassing behavior.

Yet when battered women strike back at their abusers, often when these very systems have failed them, we as a society abruptly and immediately view them as predators—perpetrators, not survivors, of abuse. Our sympathy ends at the precinct door. Too often we disregard the complexity of their actions, categorizing them as criminals who deserve our condemnation, unable to continue to see them as victims who deserve our support. This schism in our thinking represents an enormous gap in our response to domestic violence, and a great injustice to the women who suffer it. Prison is a terrible place for victims of physical and sexual abuse. Nevertheless, New York State’s women’s prisons are filled with them. In 1999, researchers found that 90% of women incarcerated at the Bedford Hills Correctional Facility had endured severe physical or sexual abuse in their lifetimes. And a study conducted in 1996 by New York’s Division of Criminal Justice Services found that 93% of women convicted of killing sexual intimates — current or former boyfriends, girlfriends, or spouses — had been physically or sexually abused in the past. We cannot ignore these numbers. We must recognize how domestic violence underlies women’s criminality, not in order to excuse it, but to better address it.

Moreover, our examination of this link should extend to all criminal acts, not only to those involving retaliation against an abuser. Often women commit non-violent drug and property crimes as a result of coercion by an abuser, or because of substance-abuse addictions that stem from abuse. Studies show, for example, that women drug abusers are four times as likely to have been sexually assaulted than women who do not use drugs.

When women are arrested and arraigned, the criminal justice system begins to obscure the role domestic violence has played in their lives. Despite the high percentage of women defendants who have been abused, court personnel are not required to screen female suspects for a domestic violence history. Women are assigned counsel (notoriously underpaid) who have never handled a homicide case and with no training in domestic violence. Prosecutors habitually disparage a woman defendant’s assertion that abuse played a role in commission of her offense. Many judges, even those sitting in specialized domestic violence courts (designed to deal with batterers, not battered women defendants) refuse to permit evidence of abuse to be admitted at trial, frustrating the possibility of an effective justification defense. The ultimate damage is done to women who might otherwise have been sentenced to an alternative to-incarceration program or probation, but who are instead sent to prison, an environment where they are at risk for more sexual abuse, have few opportunities to seek counseling, and where they face major obstacles to maintaining family relationships, especially with their children.

After making significant advances over the past decade in our response to the epidemic of domestic violence, now we need to continue moving forward by focusing on the untold numbers of battered women who become ensnared in New York State’s criminal justice system. We need to help these women free themselves of abuse, not to imprison them.

The Women in Prison Project continues to work on behalf of incarcerated domestic violence survivors. Building on last year’s victory of restoring domestic violence survivors’ eligibility for temporary release programs, this year the Project is advocating for legislation that would make them eligible for early parole release consideration. The Project is also researching possible models for better legal representation for women who strike back against their abusers. The Project has also begun discussions with an independent documentary film company about collaborating on a film to highlight what happens when the systems designed to help battered women fail and they themselves get caught up in the criminal justice system.