In September, a victim of domestic violence and sexual assault sued the San Francisco Police Department, accusing the agency of violating her privacy. In 2016, the department had taken a DNA sample from the victim in the course of investigating the abuse case. But years later, the police used that evidence to identify, arrest, and charge her with retail theft. An investigation into the woman’s case revealed that the SFPD routinely entered victims’ samples — including the samples of other victims of sexual assault — in a database used to identify suspects of crimes.
Also in September, prosecutors requested, and a judge ordered, that a 20–year–old rape victim be held in jail on $500,000 bail until she testified against her rapist. The young woman, unable to pay the bail, spent nine days in jail before she testified. Thus, the victim was held against her will by her rapist, and later held against her will by the state as a “material witness.”
And a KTVU investigative report published last month documented the stories of dozens of women who were raped, sexually assaulted, and sexually harassed at FCI Dublin, a federal prison in California’s Bay Area. As the prison has received more media scrutiny, lawyers for the incarcerated women reported that their clients have experienced “a crackdown on communication,” including difficulty in making and receiving calls and having their legal mail intercepted. “I think part of that is an attempt to prevent the public from speaking with survivors and prevent survivors from telling their stories,” the lawyers told the station.
The punishment of survivors of gender-based violence by the criminal legal system — people known as criminalized survivors — happens every day, in a number of ways. This is the subject of my forthcoming book, Imperfect Victims: Criminalized Survivors and the Promise of Abolition Feminism. The events described above all came to light after the book went to press, yet the numerous stories I discuss range from similar to identical. Indeed, Imperfect Victims explains how the legal system inflicts that punishment.
For the last nine years, my students and I have represented imperfect victims through the Gender Violence Clinic at the University of Maryland Carey School of Law. Our clients are, for the most part, women charged with crimes related to their own victimization. These women, many of whom have been convicted of serious crimes, are, above all, human beings — beautiful and complex like all of us are. They force my students to reconsider what it means to label someone a murderer. Imperfect Victims tells their stories, as well as the stories of other criminalized survivors punished by the legal system.
If most people think about criminalized survivors of intimate partner violence, rape, sexual assault, or trafficking at all, they think about a woman who fights back against her partner in self-defense and is charged with murder or manslaughter. These stories are legion.
Tracy McCarter, a Manhattan nurse, pulled a knife to protect herself after her drunk ex-husband, James Murray, demanded money and threatened to kill her. After Murray was stabbed, McCarter screamed for help and tried to stop his bleeding. According to reports, then-District Attorney Cy Vance’s office did not tell the grand jury that indicted McCarter about Murray’s history of abusing McCarter, or about Murray’s intoxication on the day he was killed. McCarter was charged with murder. During his campaign to succeed Vance as DA, Alvin Bragg trumpeted on Twitter: “I #StandWithTracy. Prosecuting a domestic violence survivor who acted in self-defense is unjust.” After he took office, however, Bragg’s office only asked the presiding judge to reduce McCarter’s charges to manslaughter— a far cry from Bragg’s dismissal of charges in other self-defense cases not involving survivors. Even then, the judge denied Bragg’s request, stating that the district attorney had not provided her with sufficient evidence that McCarter was a victim of domestic violence.
There are so many ways that survivors of violence are punished by the criminal legal system. No matter their age, from police interactions to prosecution to the courts to the pain of imprisonment, survivors’ trauma is compounded at every step of the carceral process.
There are so many ways that survivors of violence are punished by the criminal legal system. No matter their age, from police interactions to prosecution to the courts to the pain of imprisonment, survivors’ trauma is compounded at every step of the carceral process.
The criminalization of survival begins during childhood. Danielle Hicks-Best was 11 when she was raped twice by men in her neighborhood. After she and her parents reported those rapes to police, police decided that Hicks-Best was lying about the assaults. They dismissed the sexual assault charges and instead charged Hicks-Best with filing a false police report. Concerned about the impact a trial would have on her, Hicks-Best’s parents decided to have her enter an Alford plea, maintaining her innocence while acknowledging that the state had sufficient evidence to convict. She was declared a ward of the court. Hicks-Best’s father recalled how her daughter processed what happened to her: “She would say, ‘Daddy, I got raped and I got locked up.’”
Bresha Meadows, meanwhile, could not remember a time when her father did not physically abuse her mother; Meadows was 8 when her father began sexually abusing her and 12 the first time he raped her. And Meadows was 14 when she shot and killed her father as he lay passed out drunk on the couch. Meadows did not believe that she would be arrested. She thought it would be clear to police that she had acted in self-defense. But Meadows was arrested on the night of the shooting and charged with aggravated murder. She pled guilty to involuntary manslaughter and was sentenced to a year and a day in juvenile detention, plus six months in a mental health facility.
Adolescent trafficking victims are regularly criminalized by a system that believes that arrest and prosecution are the way to “save” them. Girls and trans and gender non-conforming youth are held in juvenile detention facilities to compel their testimony and to ensure that they do not return to their traffickers. Young people who come into the system as witnesses describe feeling like little more than “a piece of evidence” against their traffickers.
The criminalization of survival continues into adulthood. Arrest is a serious threat for victims of gender-based violence. A new study from the National Domestic Violence Hotline found that 25% of victims of intimate partner violence and sexual assault who called police were threatened with arrest, while 12% were arrested. The consequences of arrest, moreover, are disproportionately visited on women of color. In 2020, Black women and Latinas made up 25% of Connecticut’s population of women — but 53% of those arrested for domestic violence.
Police seem to arrest victims for three reasons. Police like to say that they arrest for the victim’s “own good.” In Seattle, for example, deputy police chief Marc Garth-Green told the city council that victims of trafficking needed to be arrested “to disrupt the cycle of violence and abuse”; he added that “jail can be a safer place than out on the street” for people trafficked into prostitution. Police also arrest to compel the victim’s participation in prosecution; as one officer explained, victims of violence became cooperative witnesses after they were asked, “Do you want to be a witness, or do you want to be a suspect? Decide.” Finally, police arrest because they see victims as perpetrators. When people who have used force to defend themselves fail to conform to stereotypes of victims of violence as feminine, helpless, passive, afraid, and cooperative, police find their claims of violence not credible and categorize them as offenders. This is particularly true for women and trans and gender nonconforming people of color.
Prosecutors pursue cases for similar reasons. Prosecution is seen as a way of “saving” victims who are deemed unable or unwilling to save themselves. Prosecutors bring cases that they believe they can win. And prosecutors pursue cases when they are unaware or do not believe that the defendant is a victim. Prosecutor Chana Krauss disputed Nikki Addimando’s testimony about the abuse inflicted by her partner, whom Addimando killed in self-defense. Krauss argued that Addimando’s injuries, for which there was photographic evidence, could have been “self-inflicted” or the result of “foreplay with any one of her other sexual partners.” When victims become defendants, it is as though a switch flips for prosecutors; the ability to appreciate a defendant’s victimization disappears.
For convicted criminalized survivors, the trauma of prosecution is often compounded by the experience of incarceration. Prison essentially replicates the gender-based violence that criminalized survivors endured before being incarcerated.
American prisons have been described as the “harshest and scariest places in the democratic world.” That’s by design; former Massachusetts Governor William Weld once said that prison should be a “tour through the circles of hell.” Prisons are filthy, crowded, infested, and noisy. Basic human needs are barely met. Correctional officers have almost complete control over the lives of incarcerated people, and abusive, humiliating, and degrading treatment is the norm. Incarcerated people regularly endure strip searches — a form of sexual assault by the state. After visitations in Michigan, for example, incarcerated women had to sit naked in a chair, pull their knees to their chests, and spread their genitals. Louise told her family not to visit: “I have been raped too many times that [the chair] was horrific for me.”
Correctional officers in men’s facilities place trans women in cells where they are likely to be raped. And correctional officers sexually abuse incarcerated women regularly. Department of Justice investigations of prisons in New Jersey, Alabama, and Florida found evidence of “severe and pervasive” abuse including oral, anal, and vaginal rapes, coerced sex in exchange for contraband, and groping of incarcerated women. Reporting that treatment risks retaliation; people are threatened, harmed, and transferred to prisons far from their families after they report. Criminalized survivors like Kwaneta Harris are routinely housed in solitary confinement. Harris has been in solitary in a Texas prison continuously since 2015.
Survivors continue to be punished when they seek post-sentencing relief: modification of sentence, parole, commutations, and pardons. Prosecutors routinely oppose petitions filed under “second look” laws that enable judges to consider the connection of gender-based violence to a survivor’s crime. Parole commissioners berate criminalized survivors for failing to leave their partners and for failing to show sufficient remorse; but when survivors react emotionally, they are deemed too angry or too unstable to be released. Governors have the power to release criminalized survivors, but use that power sparingly, if at all.
The criminal legal system routinely punishes the imperfect victims of gender-based violence. That punishment begins when victims are children, continues when victims seek protection from the state or are compelled to participate in prosecution, and is at its apex when victims become defendants in criminal cases. For some, the answer to this problem is reform: to fix the parts of the system that are harming victims of violence while leaving the apparatus of state punishment intact. But reforms cannot and will not prevent the punishment of survivors of gender-based violence. So long as police, prosecutors, judges, parole commissioners, governors, and presidents have discretion to blame them for not seeking assistance, decide that they are not credible, and determine whether and what type of criminal punishment is warranted, criminalized survivors are vulnerable. Abolition feminism is the only politics and practice that can prevent that harm.
Abolition feminism is the only politics and practice that can prevent the harm of survivor criminalization.
Abolition feminism rejects the use of oppressive state systems to respond to violence. As Mariame Kaba frequently says, “Prison is not feminist.” Instead, abolition feminism demands that we defund the structures that drive criminalization — police, prosecutors, criminal courts, prisons, probation, parole — and devote that funding to meeting human needs, including the need for safety. Abolition feminism opposes new criminal laws that increase the reach of the carceral state and seeks the repeal of existing laws — like mandatory arrest and felony murder — that bring survivors into the criminal legal system. Abolition feminism incorporates the survivor defense work being done by groups like Survived&Punished, MUAVI, Love and Protect — the kind of work that helped to #FreeBresha. Abolition feminists fight to close prisons and jails and to prevent new facilities — particularly those claiming to be “trauma informed” or “gender responsive” — from being built.
Abolition feminism is a big ask for an anti-violence movement that has long been committed to increasing the reach of the criminal legal system. But dismantling the system is the only way to ensure that criminalized survivors are no longer punished by that system. Leaving the system intact legitimates that system and stymies radical change. Reform makes it seem as though the criminal system is “working”: that it is creating safety, preventing violence, or holding people accountable, although the evidence undermines that claim. Reform too often focuses on individuals, failing to address the structural conditions that bring criminalized survivors into the system. Reforms like the creation of kinder, “feminist” jails and prisons only expand the reach of the criminal legal system. They don’t make anyone safer. The next wave of the anti-violence movement should be about building what all people need to survive, rather than finding new and different ways to cage them. To free them all.
Image: Bernard Hermant/Unsplash
