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#What’s Wrong with the Violence Against Women Act?

When Congress passed the Violence Against Women Act (VAWA) in 1994, it was a landmark in federally recognizing the scourge of domestic violence. It also brought about a very practical change, meant to address the problem of cops treating such cases as private family matters instead of serious crimes. With grant funding as reward and with the backing of many leaders in the battered women’s movement, VAWA encouraged states to adopt mandatory arrest policies that allowed domestic violence cases to move forward without the cooperation of victims. Eighteen years later, with a reauthorization of VAWA now stalled on Capitol Hill, a vocal group of researchers and advocates are questioning whether VAWA’s original intent—to make law enforcement the primary tool to stop domestic violence—was the right approach. “VAWA’s focus on law enforcement reduces the really more complicated thing of violence against women to be a problem of the law,” says Beth E. Richie, a sociologist and professor at the University of Illinois at Chicago who studies violence against women. “And it’s not just a problem of the law.”

VAWA has increased prosecution rates of domestic violence cases, but there is little conclusive evidence that it has significantly reduced the incidence of violence. According to the Department of Justice (DOJ), the rate of intimate partner violence dropped 64% between 1994 and 2010, a drop pro-VAWA policymakers largely attribute to the law. But this decrease happened at the same time violent crime as a whole fell dramatically nationwide, making it hard to know whether a drop in domestic violence might have happened without the policies adopted under VAWA.

Domestic violence is still a severely under-reported crime and some critics say mandatory arrest policies have exacerbated this problem. These policies, which existed in some states before VAWA but became more common after early versions of VAWA encouraged them, require police officers responding to domestic violence calls to arrest alleged abusers if there is probable cause to believe assaults have taken place. The intent of these laws was to spur a culture change in law enforcement, which had a long history of declining to intervene in domestic violence situations. But some say mandatory arrest discourages some women from reporting domestic violence because they fear their partners—sometimes a family’s sole earner—will be automatically arrested and thrown in jail.

Domestic violence victims who avoid calling the police or seeking other help can put themselves in even more danger. A 2007 Harvard study found that the rate of intimate partner homicide is higher in states that have mandatory arrest laws on the books. Paradoxically, it appears VAWA may have had a much greater effect on the rate of women killing their partners (down 40% between 1995 and 2008) than on men killing their partners (down just 7% in the same period). Women may be less likely to kill their partners when an aggressive police response is readily available, but it appears the threat of arrest and prosecution has done little to dissuade abusive men from killing. In addition, in some cases, victims themselves are taken into police custody because of mandatory arrest laws. Police on the scene may not be able to determine who is the primary aggressor in a violent episode and may feel compelled to arrest both parties if they have probable cause.

Some feminist researchers have another reason to criticize mandatory arrest laws: They say the policies do nothing to address the causes of intimate partner violence, which is highly correlated with unemployment and economic distress. Even worse, these researchers say, mandatory arrest laws remove the preferences of abused women from a process that can leave them financially strapped and worried that the state will take custody of their children. “When you institute a mandatory arrest policy, the hope is that you will control the police and make sure they respond,” says Donna Coker, a former battered women’s shelter worker and now a law professor at the University of Miami. “But too often, it has the unintended consequence of increasing the potential for state control of marginalized women.”

Coker believes some of the VAWA funding now allocated to law enforcement should be redirected to prevention, job training and services that help women with the logistics of leaving their abusive partners. “You look at the relatively miniscule amount of money going to transitional housing compared to criminal justice and it’s outrageous,” says Coker. Federal funds authorized through VAWA for transitional housing in 2012 were about one-fifth the total allocated for law enforcement action. Housing is by far the most common unmet need for victims.

Leigh Goodmark, a law professor and director of the family law clinic at the University of Baltimore, has represented abused women in court for two decades and says VAWA is blind to the needs of victims who want abuse to stop, but don’t want to permanently separate from their partners. “As a movement, we’ve been ambivalent about these women,” says Goodmark, author of the new book A Troubled Marriage: Domestic Violence and the Law. Coker and Goodmark are among a group of academics who advocate allowing some domestic violence victims to have options beyond just automatic arrests and prosecution of their abusers. These ideas include restorative justice, which focuses on repairing harm caused by violence, counseling services for victims and batterers, and orders of protection that might allow partners to still have contact.

This kind of advocacy makes lawyers like Dorchen Leidholdt, legal director for Sanctuary for Families, a New York City organization that provides legal and social services for domestic violence victims, nervous. “I worry about sending the signal to law enforcement that domestic violence should be treated differently from other forms of crime,” she says. Such an approach could turn back time, says Leidholdt, to the days when police officers responding to a domestic violence incident would merely tell a batterer to cool off and walk around the block.

Queens County, NY, where Leidholdt has represented domestic violence victims in court, has the highest domestic violence conviction rate of any borough in New York City. The head of the domestic violence unit in the district attorney’s office there, Scott Kessler, prosecutes cases using many of the ideas embodied in VAWA. His unit receives about $325,000 a year in VAWA grant funding, which helps prosecutors build domestic violence cases without victim cooperation. Kessler says less than 25% of domestic violence victims cooperate in his cases, so he relies on evidence like 911 calls, digital photographs taken by police at the scene and recordings of telephone calls accused batterers in jail make to their victims in violation of protective orders. “It’s a chess match,” says Kessler. “I need to think one step ahead.”

The current political fight over VAWA, while not centered on the law enforcement focus of the law, illustrates the difficulty of passing nuanced federal legislation that can target the specific needs of communities and victims. A 2013 reauthorization of VAWA, which passed with broad bipartisan support in the Senate, is stalled in the House in part because of Republican opposition to a new provision that would apply to Native American victims of rape and domestic violence. (Other contentious provisions would apply to gay, transgender and immigrant victims.) The Senate version, which the House may soon pass. would allow tribal courts to try non-Native alleged abusers and rapists, which some Republicans say is unconstitutional. The needs of Native American women, who experience rape and domestic violence at rates much higher than the general population, are not met by VAWA in its current form, according to those who support the tribal courts provision.

Other communities may also be left behind or even harmed by VAWA. Richie, the University of Illinois professor, has written extensively about how law enforcement affects communities of color and says economic empowerment might do far more to curb domestic violence in poor black neighborhoods than the policies in VAWA. “When it becomes the only thing we do and it takes so much lobbying and research attention, it does harm other strategies,” says Richie.

Kim Gandy, president and CEO of the National Network to End Domestic Violence, which is lobbying hard to reauthorize VAWA, says it’s clear why the legislation focuses so squarely on law enforcement. VAWA was originally part of the Violent Crime Control and Law Enforcement Act of 1994, one of a series of “tough on crime” laws enacted in the 1990s when the violent crime rate in the U.S. was four times higher than it is now. “We’re lucky it’s got something beyond law enforcement money,” says Gandy, a former prosecutor. Every year, more than $100 million in VAWA funding is devoted to non-law enforcement priorities, including transitional housing, special assistance for victims in rural communities and the disabled, and civil legal assistance. “We’re not looking to shift money from law enforcement to services,” says Gandy. “We’re just looking for more money for both.”