For the past forty years, the criminal legal system has been the primary societal response to gender-based violence (which includes intimate partner violence, rape and sexual assault, and human trafficking) in the United States. Antiviolence advocates tout legislative victories, increased enforcement of laws criminalizing gender-based violence by police and prosecutors, and longer penalties as proof of society’s dedication to ensuring that those who do violence are held accountable.
Criminalization was meant to increase awareness of gender-based violence and decrease that violence by changing community norms about its acceptability. But those efforts have also led to increased rates of arrest, prosecution, conviction, and incarceration of the very people they were meant to protect: victims of violence. So many victims of violence have been caught up in the criminal legal system that an entire movement—known by the hashtag #SurvivedandPunished—has emerged to protest their revictimization by the criminal legal system.
Several factors may be responsible for the prosecution of people for crimes related to their own victimization. In the context of intimate partner violence, for example, law professor Carolyn Ramsey has suggested that women’s increasing economic power and the liberalization of divorce laws have created expectations that women will simply end violent relationships. When women fail to take advantage of this ostensible newfound freedom to leave their violent partners, their self-defense claims are seen as not credible, prompting prosecutors to pursue them.
But law reform itself has also had a substantial impact on prosecutors’ determination to press these cases. Feminist antiviolence advocates championed law reform, believing that state intervention via the criminal legal system was essential if gender-based violence was to be taken seriously. In the late 1970s and ’80s, antiviolence advocates lobbied for substantial changes to rape and domestic violence law. These changes were intended to make prosecution more frequent and more successful and to signal the state’s condemnation of gender-based violence. States removed barriers to prosecuting rape cases, including requirements that victims vigorously resist their rapists, have witnesses corroborate their claims, and report their rapes immediately. Given the liberalization of rape law, rape victims were expected to bring their claims to court—not take matters into their own hands by defending themselves. In the context of intimate partner violence, states enacted mandatory arrest laws (requiring police to make arrests in all cases where they had probable cause to do so) and no-drop prosecution policies (committing prosecutors to pursuing any case of intimate partner violence where sufficient evidence existed).
The Violence Against Women Act (VAWA), enacted as part of the 1994 Violent Crime Control and Law Enforcement Act, incentivized the adoption of such policies and funded increased criminalization through grants to police, prosecutors, and courts that now total in the billions of dollars. The antiviolence advocates behind these reforms—who had “a vision of social justice as criminal justice, and of punitive systems of control as the best motivational deterrents for men’s bad behavior”—were dubbed “carceral feminists” by sociologist Elizabeth Bernstein. As social work professor Mimi Kim has explained, although antiviolence advocates initially thought they could control how law enforcement intervened in gender-based violence cases, law enforcement’s goals and strategies soon eclipsed the policy aims of advocates—a dance Kim describes as “the carceral creep.” The push for criminal anti-trafficking laws has largely followed the intimate partner violence playbook, establishing the centrality of criminal prosecution in governmental anti-trafficking strategies and using the law to punish behaviors as varied as giving someone a place to stay, holding money for someone, and selling someone for sex.
The criminalization of gender-based violence championed by carceral feminists has been ineffective in decreasing that violence. Rape is still underreported and rarely prosecuted. Rates of intimate partner violence have decreased since the inception of legal reforms, but those rates decreased in tandem with the overall crime rate between 1994 and 2016 and have fluctuated in the past few years.
Criminalization has also had significant consequences for victims, something that some antiviolence feminists, particularly feminists of color, foresaw from the beginning of the reform movement. While many white feminists believed the criminal legal system would protect victims of gender-based violence, people of color were primarily focused on preventing that system from doing harm. Black feminists noted that support for the criminal legal system strengthened institutions that not only targeted those who used violence but also passed judgment on those who defended themselves from violence.
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To benefit from legal system reforms, survivors of violence had to perform their victimization in very specific ways: they had to be perfect victims. The gendered rhetoric of criminalization created unrealistic stereotypes of people subjected to abuse. Blameless victims (usually meek, passive women) were pitted against monstrous perpetrators (usually men). Blamelessness guaranteed that victims would be treated sympathetically. Victimization is a constructed identity—that is, claims of victimization are believed only to the extent that others accept those claims as true.
But victims of violence don’t always—or even often—conform to these stereotypes. In her book Unintended Consequences of Domestic Violence Law (2019), Heather Nancarrow, a sexual violence researcher in Australia, recounts a discussion she had about intimate partner violence with Indigenous women. During it, one Aboriginal woman noted that women in her community used violence. Nancarrow writes, “We all nodded politely but said nothing and moved on: we simply did not know how to respond.”
The legal system is similarly confounded by victims who fail to fit stereotypes—who use force to defend themselves or who are angry, for example. Such victims face a hostile legal system skeptical of their claims. A woman who was being stalked by an ex-boyfriend against whom she had a protective order repeatedly called police, to no avail. She finally fought back against her stalker, who was later tried for violating the protective order. A judge noted her requests for help but said, “At the same time, she seems to put up a fairly tough exterior here.” The woman’s “tough exterior” coupled with her willingness to confront her stalker likely led to his acquittal—despite his admission that he had violated the order on numerous occasions.
Some victimization claims are deemed more credible than others. Psychology researchers Kathy A. McCloskey and Mekha Rajan write, “Women who are abrasive and argumentative, who are aggressive towards their abusers for any reason (including self-defense), or who otherwise fail to conform to traditional female gender roles” are imperfect victims. The list of imperfect victims goes on, and includes sex workers, lesbians, trans people, and women of color, particularly Black women. As anti-trafficking activist Holly Joshi has argued, Black women have never been seen as survivors or “good” victims, but rather tools that the criminal legal system can use to punish Black men.
Imperfect victims are more likely to be arrested. And once victimized women become criminal defendants, the opportunity to be seen as a perfect victim all but vanishes. As sociologist Elizabeth Comack writes in Women in Trouble: Connecting Women’s Law Violation to Their Histories of Abuse (1996):
Crime categories are premised on a binary opposition or dualism between ‘the criminal’ and ‘the law abiding.’ Those who are processed through the system and end up in prison are relegated to the criminal side of the equation. The net effect is to cast criminal women as Other—and the underlying message is clear: they are not like the rest of us.
A system so reliant on this kind of binary leaves little room for the complicated stories of criminalized survivors—for imperfect victims. The portrayal of the victim-defendant in a criminal trial is hotly contested ground. For example, in the trial of Joan Little, charged in 1974 with murdering a prison guard who’d attempted to rape her, prosecutors and defense attorneys offered competing visions of Little. Analyzing Little’s trial, historian Catherine O. Jacquet notes in The Injustices of Rape (2019) that while prosecutors characterized Little as a “violent and scheming seductress,” the defense realized that she needed to be seen as “sympathetic and respectable” to be acquitted. Violence is gendered male. Women who use force deviate from gender norms and may be punished severely for doing so.
Criminalization undoubtedly increased enforcement of laws prohibiting gender-based violence, particularly in the context of intimate partner violence (and, later, trafficking). Mandatory arrest and no-drop prosecution policies in intimate partner violence cases ensured that police made arrests whenever they had probable cause and that prosecutors pursued cases whenever they had sufficient evidence. Police and prosecutors often enforced those policies without looking beyond isolated incidents or asking whether the defendant was actually the victim of violence. When women used force or were accused of using force, they were subject to criminalization. “In the name of equal justice,” criminologist Meda Chesney-Lind has explained, the criminal legal system enforced laws against women just as it did against men, a phenomenon Chesney-Lind calls “vengeful equity.” Or as Oklahoma prosecutor Steve Kunzweiler has argued: “If women are equal, then they are equal in all ways, including the idea that there are women to whom you have to say, ‘Goodbye!’”
Arrest rates of women after the adoption of mandatory arrest policies tell the vengeful equity story. Jurisdictions across the United States logged significant increases in the numbers of women arrested, both in dual arrests (both parties were arrested) and in arrests of women only, after such laws were adopted. After the passage of mandatory arrest laws in California, for example, men’s arrests rose by 60 percent; women’s arrests increased by 400 percent. McCloskey and Rajan report that in Kenosha, Wisconsin, arrests of women increased twelve times following the enactment of mandatory arrest laws.
To be clear, women are not usually the primary perpetrators of intimate partner violence, and women did not become more violent after the passage of mandatory arrest laws. Instead, as sociologist Alesha Durfee has explained, the jump in arrest rates is at least in part “directly attributable to the implementation of mandatory arrest policies and not simply an increased use of violence by women in intimate relationships.”
Most women in prison have one thing in common: they have experienced gender-based violence. In that sense most incarcerated women are criminalized survivors. Studies show that anywhere from 50 percent to 95 percent of incarcerated women have been raped, sexually assaulted, or subjected to abuse by intimate partners. Abolitionist Beth Richie has said that she has never met an incarcerated Black woman who has not experienced some form of gender-based violence. Similar rates of victimization are found among adjudicated girls. One researcher found that 74 percent of the girls held in an Ohio facility for “delinquent” girls were abused by family members—65 percent by people unrelated to them. And 52 percent had been sexually abused by nonfamily members, 22 percent by family members.
Incarcerated women are much more likely to be victims of violence than men. In In Search of Safety: Confronting Inequality in Women’s Prisons (2017), Barbara Owens, James Wells, and Jocelyn Pollock report that incarcerated women areseven times more likely to have been sexually abused and four times more likely to have been physically abused. Owen describes gender-based violence as a “defining experience” for incarcerated women.
In a survey of women incarcerated in Oregon’s Coffee Creek Correctional Facility, 44 percent of the women reported that the relationships they were in at the time of their arrests contributed to their convictions; 69 percent linked trauma to their incarceration. A 2020 survey of people incarcerated in women’s prisons for murder or manslaughter found that 41 percent of those who experienced intimate partner violence prior to their incarceration were in prison for killing a partner; 30 percent of all respondents said they were incarcerated for attempting to prevent physical or sexual violence against them or a loved one.
“Criminalization,” historian Robin D. G. Kelley writes, “is to be subjected to regulation, containment, surveillance, and punishment, but deemed unworthy of protection.” Criminalized survivors experience criminalization in all of those ways. Criminalization harms victims of gender-based violence by using laws against them which were intended to benefit them; empowering police, prosecutors, and other government agents to harm them in the enforcement of those laws; creating an expectation that victims will turn to the criminal legal system, justifying harsher penalties for those who choose not to or cannot do so; and reinforcing stereotypes about victims and punishing them when they fail to conform to those stereotypes.
“Once the relevant connections are drawn between women’s abuse histories and their troubles with the law,” Comack writes in Women in Trouble, “then it would seem relevant to query whether their incarceration serves any benefit—to the women themselves, to their families, to their communities or to the larger society.” The answer is no—the criminal legal system is not benefitting any of these entities, and in fact it does serious harm to all of them. As long as criminalization is the primary response to gender-based violence, survivors will always be in danger of punishment. The only sure way to protect survivors from criminalization is abolition.
Excerpted from Imperfect Victims: Criminalized Survivors and the Promise of Abolition Feminism. Copyright © 2023 by Leigh Goodmark. Reprinted with permission from University of California Press.
Image: Jr Korpa/Unsplash
