Silver lining: VAWA’s lapse provides opportunity to reflect

—Leigh Goodmark

The 112th Congress failed to reauthorize the Violence Against Women Act (VAWA), which expired at the end of last year. Commentators have decried that failure as yet one more facet of the Republican Party’s War on Women, proof that Congress cares little about the plight of women subjected to abuse by their partners. Some have suggested that it is particularly important to immediately fund the Violence Against Women Act because of the financial support it provides for police, prosecutors and courts in the fight against domestic violence. I agree that Congress should pass the Violence Against Women Act—but not because of the damage that the failure to reauthorize the law might do to the criminal justice response. Instead, we should use the opportunity given by Congress’ failure to reauthorize VAWA to rethink whether pouring hundreds of millions of dollars into the criminal justice system is the most effective policy option for combating domestic violence in the United States.

The legal system, particularly the criminal justice system, is the primary response to domestic violence in the United States, largely because, since 1994, VAWA has made that system a priority, channeling hundreds of millions of dollars into criminal justice initiatives designed to eradicate domestic violence.  At VAWA’s inception, the intention to cast domestic violence as a crime, and therefore to address domestic violence through the criminal justice system, was clear. As Democratic Congresswoman Carolyn Mahoney explained during the floor debates on VAWA, “Right now, if you assault a stranger, you go to jail. If you assault your spouse, you get therapy. The Violence Against Women Act brings an end to this backward system.”

Eighteen years later, it’s worth pausing to ask not whether Mahoney was right—she was. VAWA radically changed US policy on domestic violence and ensured that the criminal justice response would be primary. But it is worth pausing to ask what orienting domestic violence law and policy towards the criminal justice system has achieved. A study from the Department of Justice reveals that from 1994 to 2010, domestic violence in the US dropped by 64%, a figure that many have claimed proves the effectiveness of VAWA’s criminal justice focus. But the reality is a bit more nuanced than the soundbyte. From 1994 to 2000, the rate of domestic violence fell 48%—but the crime rate generally fell 47%. From 2000 to 2010, the decline in domestic violence “slowed and stabilized,” according to the study, while the overall crime rate continued to fall.

Given these figures, it is hard to argue that the criminal justice response to domestic violence since 1994 has been particularly effective. Moreover, social science researchers have found scant evidence that the criminal justice reforms of the last thirty years have had any impact on rates of domestic violence, suggesting that the current VAWA proposal to authorize $292 million primarily for police, prosecutors, and courts will simply throw good money after bad.

Which is not to say that VAWA is unimportant. The current version of VAWA, the one that the Congress failed to pass, is particularly important for the same reasons that it has been controversial: because it extends greater protection to those groups—immigrant women, Native American women, and lesbians, gay, bisexual and transgender people subjected to abuse—who are most marginalized and most in need of assistance. Moreover, VAWA funds other important services for people subjected to abuse, including transitional housing and civil legal assistance.

But VAWA could do so much more. A good start would be to redirect some of the $292 million that is currently earmarked for the criminal justice response into other kinds of assistance for people subjected to abuse. That assistance could target some of the larger structural issues that contribute to domestic violence or fund innovative programs that seek to bring justice to people subjected to abuse without requiring them to engage with the state. VAWA could support programs that provide direct economic assistance, community-based justice responses, restorative justice programs, and reproductive health initiatives.

At the time of its passage, VAWA was revolutionary. It could be revolutionary again by refocusing its efforts on more promising policy initiatives. The criminal justice response to domestic violence has had eighteen years of dedicated funding with underwhelming results. The time has come to think more creatively about how to achieve justice for people subjected to abuse. The delay in passing VAWA provides us with that opportunity.

Leigh Goodmark is Associate Professor of Law, Director of Clinical Education, and Co-Director of the Center on Applied Feminism at the University of Baltimore School of Law. She is the author of A Troubled Marriage (NYU Press, 2012).

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