Reauthorization of the Violence Against Women Act in 2021 and the Implications for Its Restorative Practice and Diversion Provisions

By Casey Gwinn, Esq.

 

November 16, 2021 (San Diego, CA)

 

As the Senate considers reauthorization of the Violence Against Women Act (VAWA) this fall, little known provisions of the current bill passed by the House (HR1620) have avoided public scrutiny. The deeply troubling provisions refer to “Restorative Practice” (without limitations) and include promoting domestic violence diversion (without limitations) for all felony and misdemeanor domestic violence, dating violence, sexual assault, sex trafficking, and stalking offenses under VAWA. “Restorative Practice” in the pending VAWA bill is defined as: “…a process, whether court-referred or community-based, that— (A) involves, on a voluntary basis[emphasis added], and to the extent possible, those who have committed a specific offense and those who have been harmed as a result of the offense, as well as the affected community; ‘‘(B) has the goal of collectively seeking accountability from the accused, and developing a process whereby the accused will take responsibility for his or her actions, and a plan for providing relief to those harmed, through allocution, restitution, community service or other processes upon which the victim, the accused, the community, and the court (if court-referred) can agree; “(C) is conducted in a framework that protects victim safety and supports victim autonomy; and ‘‘(D) includes protocols to address the use of information disclosed during such process for other law enforcement purposes.” [1]

 

This definition of “Restorative Practice” in the pending bill has never been validated in any published research on its application to the handling of domestic and sexual violence cases. The more commonly used phrase “Restorative Justice” also has scant research to support its efficacy in the context of domestic and sexual violence.[2] Ironically, throughout HR1620 there is strong emphasis on “evidence-based” programs and processes and yet the “Restorative Practice” provision was placed in VAWA with no evidence-based research to support it in addressing domestic violence, dating violence, sexual assault, sex trafficking, or stalking. But now the Senate is being asked to make it public policy in America in addressing domestic violence, dating violence, sexual assault, sex trafficking, and stalking. The House already passed HR1620 and provided no critical review of the provision. What is the import of such a policy statement in VAWA? All felony and misdemeanor offenders charged with domestic violence, dating violence, sexual assault, or stalking could be eligible for non-criminal justice system, yet to be defined or researched, intervention processes. This cannot be the authors’ intent for VAWA. Attempted murderers, rapists, sex traffickers, stranglers, and stalkers will be able to avoid criminal convictions or responsibility for their offenses with the sanctioned approval of the Congress of the United States. Our research, for example has established that men who strangle women are the most dangerous men on the planet.[3] They are the most likely offenders to kill women after they have applied pressure to their neck in a non-fatal assault.[4]Stranglers of women are the most likely to kill police officers in critical incident encounters.[5] And they are often the mass shooters in this country.[6] Yet HR1620 allows stranglers of women and potential killers of police officers and mass shooters to all be eligible for “restorative practice” processes. There are no limits in HR1260 to the types of offenders or the types of cases that will be eligible for “Restorative Practice.” Ironically, Congress made non-fatal strangulation a stand-alone, serious felony under VAWA in 2013 with a maximum of a ten year prison sentence.[7] In 2019, Congress added non-fatal strangulation to the Uniform Code of Military Justice as a felony.[8] With this history and documented research, it is unconscionable that Congress is being asked to make such offenses eligible for a non-criminal justice system “restorative practice.”

 

If there is any question about the intended and limitless reach of the Restorative Practice approach in VAWA, one need only look at the “diversion” section of the bill to get clarification.

 

The diversion provision in HR1620 is in Title I, Section 102 and reads in part:‘‘…(28) To develop or strengthen policies and training for law enforcement officers, prosecutors, and the judiciary in recognizing, investigating, and prosecuting instances of domestic violence, dating violence, sexual assault, and stalking against individuals who have been arrested or otherwise have contact with the juvenile or adult criminal justice system, and to develop or strengthen diversion programs for such individuals and for such individuals to receive comprehensive victim services…”[9] Note, the “comprehensive victim services” are focused on “individuals who have been arrested”, they are not even focused on victims of the crimes. Diversion programs are well-known across America. They allow certain types of criminal offenders to avoid criminal prosecution and be “diverted” from the criminal justice system through informal mechanisms that allow them to avoid a criminal conviction or criminal sanctions of any kind. It is generally prohibited in domestic violence and sexual assault offenses. The formal legal definition in the context of criminal law refers to “…diverting a defendant out of the criminal justice system by having them complete a diversion program rather than be incarcerated or serve another alternative sentence. Criminal charges are typically dropped when a defendant successfully completes a diversion program. The defendant therefore avoids the stigma of a criminal conviction.”[10]

 

The pending VAWA Reauthorization language in HR1620 seeks to promote and implement diversion programs nationwide for domestic violence, dating violence, sexual assault, sex trafficking, and stalking. Imagine…no more criminal prosecutions for such offenses – whether felony or misdemeanor. The decriminalization of domestic violence, dating violence, sexual assault, sex trafficking, and stalking is the ultimate import of what HR1260 is seeking in the diversion provision. It is even reinforced by changing the name of the original Grants to Encourage Arrest title in VAWA to “Grants to Encourage Improvements and Alternatives to Criminal Justice Response.”[11]

 

The Restorative Practice provision of HR1620, as currently written, ignores the reality of gender-based violence in America, and particularly ignores the intimidation and terror experienced by so many victims. It is well researched that domestic violence and sexual assault perpetrators often get their victims to drop charges through threats of violence or through apologetic manipulations.[12] In the domestic violence context, the U.S. Supreme Court has found that domestic violence cases are “notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial.” (Davis v. Washington, 54 U.S. 813 (2005)). The Battered Women’s Justice Project has found: “Violent criminals routinely escape justice by intimidating witnesses to their crimes, which has resulted in justice system professionals, community leaders, and researchers declaring witness intimidation a national concern and a challenge to administering justice.” (Martinson, 2012). Nevertheless, HR1260 assumes “voluntary” agreement by victims to diversion and restorative practice processes. There are not even any standards to define “voluntary” within the bill. The approach in the bill puts victims into face to face interactions with their abusers with little regard for the terror, manipulation, and intimidation victims face day in and day out.

 

Perhaps the most troubling aspect of the Restorative Practice provisions of VAWA is the implied conclusion that victims of domestic and sexual violence actually want their offenders to avoid criminal accountability. Such a conclusion by Congress would be unsupported by any large scale research. Our work with survivors in Family Justice Centers and other types of multi-agency collaboratives has found the exact opposite. Family Justice Centers seek to provide comprehensive victim services to survivors of domestic and sexual violence. They also seek to enhance accountability of offenders. Family Justice Centers serve more than 150,000 survivors of sexual and domestic violence in 43 states. Family Justice Centers are an evidence-based practice with a growing body of peer-reviewed, academic research behind the framework that brings together police officers, prosecutors, advocates, doctors, nurses, mental health professionals, and others under one roof to increase victim safety and promote offender accountability.[13] In 2020, our VOICES Survivor Advocacy Committees across the country helped develop a survey and hosted focus groups for survivors to elevate their views and voices in the ongoing effort to promote criminal justice and bail reform in America. Their voices are ignored in the current Restorative Practice and diversion sections of VAWA.

 

Family Justice Center survivors in our survey and focus groups in 2020 overwhelmingly supported domestic violence offenders being arrested, prosecuted, and convicted of domestic and sexual violence offenses. The large majority do not support “Restorative Practice” or “Diversion” for offenders.[14] In our published research from Family Justice Center survivors, 80.1% of domestic violence survivors opposed diversion of perpetrators, 97.4% of survivors want police to respond to 911 calls for help as a Priority 1 call, and 96.1% of survivors do not want offenders to get out of jail more quickly through bail reform efforts.[15] The vast majority of survivors in the Family Justice Center world are not calling for decriminalizing domestic violence or defunding the police. They want better responses from police and prosecutors and more protections for themselves and their children. The voices of Family Justice Center survivors are not represented in any way in HR1620’s Restorative Practice and Diversion provisions.

 

Our published research is clear. The pathway to safety, healing, and hope for survivors of domestic and sexual violence is not decriminalizing these crimes. It is more trauma-informed and hope-centered approaches to the needs of adult and child survivors.[16]

 

The effort of the authors of HR1620 to defund and eliminate criminal prosecution of domestic and sexual violence perpetrators ignores the massive body of evidence that VAWA’s focus on criminal justice system intervention since its passage in 1994 has saved lives and reduced violence against women, children, and men. We have written extensively on the positive impacts of VAWA over the years as have many other authors.

 

VAWA, Including Its Criminal Justice Provisions, Has Saved Lives

 

VAWA, has been, by any measure, stunningly impactful in reducing homicides and the over-all rates of domestic violence in this country. After passage of VAWA, the rate of intimate partner violence against females declined 53% between 1993 and 2008, from 9.4 victimizations per 1,000 females aged 12 years or older to 4.3 victimizations per 1,000, according to the Bureau of Justice Statistics.[17] Rates of violence against males declined 54%, from 1.8 per 1,000 aged 12 years or older to 0.8 per 1,000.[18] The number of victims of intimate partner violence declined, from approximately 2.1 million victimizations in 1994 to around 907,000 in 2010.[21] Between 1993 and 2007, the number of intimate partner homicides in females decreased 26%, and the number of intimate partner homicides in males decreased 36%.[19] The highest decrease in homicides was of men. Why? Women no longer needed to kill their abusers. The criminal justice system was starting to hold them accountable for their abuse. A report from the University of Kentucky found there was a 51% increase in the reporting of domestic violence after the VAWA mandatory arrest laws were passed, and that there was a 63% decrease in nonfatal violence and a 24% decrease in fatal violence after the passage of VAWA.[20] A survey in the early 2000s, found that 85% of women in a shelter supported the mandatory arrest policies of VAWA.[21] The large majority of survivors (77%) felt mandatory arrest reduced the burden of responsibility for survivors, instead of “disempowering them” (18%), as some advocates argue today.[22]

 

The largest drop in domestic violence homicides from VAWA’s impacts were homicides of black men. They dropped by 75% in the first five years of VAWA. Homicides of black women dropped 45%. Why? Because arrest and prosecution were protective. Women were not left with the desperate choice of killing their abusers and men were being prosecuted for misdemeanor domestic violence before their violence could escalate to a homicide.

 

Ironically, many advocates pointed to the failure of the criminal justice system to protect black women as part of the need for the Violence Against Women Act and the need for laws allowing battered women syndrome to be admissible in prosecutions for domestic violence of black and brown men.[23] Law school Dean Linda Ammons, of Widener University, noted in one article that, before VAWA, black women were left with no choice but to kill their abusive partners.[24] A Michigan Study between 1986-1988 found a high rate of women being forced to kill their abusive partners in the absence of any other system intervention.[25]“These women have been victimized not only by their partners within the “privacy” of the nuclear family structure, but more egregiously by a government that failed to protect them, overcharged them when they protected themselves, refused their equal right to a fair trial and sentencing, and finally, incarcerated them in a gendered system that has denied them some of their most basic human rights. Clemency remains their only hope for justice.”

 

Prior to VAWA, many police departments had in fact “decriminalized” domestic violence. In 1986, police officers in the District of Columbia, for example, responded to over ninety-thousand domestic violence calls yet arrested only forty people.[26]

 

We must not forget the documented work in the city of San Diego that launched the Family Justice Center movement. Domestic violence homicides were 90% higher when abusers faced no consequence in the criminal justice system in 1985 before we began our move toward a coordinated community response, comprehensive victim services with evidence-based prosecution of offenders, then the Family Justice Center framework.[27] Even prior to the creation of the evidence-based Family Justice Center framework, the seminal study of the American Bar Association also found that victims who decline to engage in the criminal justice system in the midst of the trauma and violence they are experiencing later overwhelmingly believe prosecution was helpful – with 90% of victims contacted professing their support for prosecution two years after successful conclusion of the case.[28] Victims don’t have autonomy in the midst of the rage, violence, and terror. Asking them whether they want the case to be prosecuted is best done when victims are not in the midst of severe violence, abuse, and the coercive control of their abuser.

 

The vast majority of victims seeking help in our Family Justice Centers are women of color and they ARE NOT CALLING FOR AN END TO THE CRIME OF DOMESTIC VIOLENCE. They are asking that law enforcement not do less but do more and do it better. They are asking that agencies work together more effectively to meet their needs and distinguish between actions taken in self-defense and the actions of a rage-filled, misogynist. Should we condemn structural and systemic racism? Yes. Should we call for reform and improvements? Yes. Should we support evidence-based programs for early intervention opportunities and for use with low-level offenders? Yes. But decriminalize domestic violence? No. Ignore the wishes and desires of survivors at a time in their journey when they actually have autonomy and agency? No. Eliminate mandatory/preferred arrest policies? No. Put terrified victims into face to face interactions with their abusers in the name of “community solutions” to domestic violence? No.

 

COVID-19 has already shown us the potential impacts of weakening criminal justice system responses to domestic and sexual violence. Since the beginning of the pandemic, we have seen dramatic drops in arrests and prosecutions for domestic and sexual violence. And we have seen massive rises in domestic violence homicides and domestic violence murder-suicides.[29] We have seen a rise in police officers murdered by men with a history of strangulation against women. We have seen a rise in mass shootings perpetrated by men with a history of violence against women. We have seen, in essence, the impact of decriminalization in the last 18 months in this country. We must re-double our efforts to send a clear message that gender-based domestic and sexual violence is a crime in this country and those choosing to commit such offenses will face the consequences. And we must listen to the voices of survivors in this journey toward improved responses.

 

We recommend elimination of “diversion” as it is currently defined in HR 1620 and more restrictions and guidelines to protect victims and allow the criminal justice system to hold offenders accountable for potentially lethal levels of violence and abuse even if survivors at times choose not to participate in the prosecution of their abusers. We recommend “Restorative Practice” be required to have evidence-based outcomes before being implemented wholesale as policy across America. We recommend clear limitations of such “practice” to be limited to low-level misdemeanor domestic violence offenses where the victim has not suffered injuries, where sexual assault has not been committed, where no protection order is in place, where weapons have not been used, where sex trafficking has not occurred, and life-threatening assaults like non-fatal strangulation or death threats have not been perpetrated against the victim. In the absence of such changes, the entire “Restorative Practice” section (and the diversion section) should be removed from the bill before being passed by the Senate.

 

Perhaps the “Restorative Practice” section of VAWA should be focused on a far more pressing issue than letting perpetrators avoid consequences for their crimes. Many survivors of domestic violence have been victimized not only by their abusive partners, but more egregiously by a government that failed to protect them, overcharged them when they protected themselves, refused their equal right to a fair trial and sentencing, and finally, incarcerating them in a gendered system that has denied them some of their most basic human rights. The far better focus on “restorative practice” would be addressing the over incarceration and wrongful incarceration of women, especially of women of color. If Congress is going to pour $25 million into restorative practice, let’s direct the money to initiatives and programs throughout the country serving criminalized and incarcerated survivors and let’s advocate for legislative and policy changes to assist them. Many of us in this work can find common ground and focus on helping survivors obtain clemency, parole, resentencing, and pro-bono representation in criminal defense and post-trial motions. Let’s focus on the appalling number of domestic violence, sexual assault, and human trafficking survivors who are serving decades in prison for crimes that directly resulted from their severe victimization. Congress should focus on the many who continue to be prosecuted when they defend themselves or those victims who are forced by their abusers to engage in criminal activities. This Congressional focus would be true “restorative practice.”

 

In our focus groups on criminal justice reform this past year in Family Justice Centers, one survivor gave us her views clearly: “The poor social workers and advocates cannot do it all. And if I am being strangled, I don’t want a social worker out there asking me how I feel right now. I want law enforcement to get me out of that, and I want a judge to hear my story, and I want someone to be held accountable for hurting me.” She, like millions of other survivors, is not calling for “Restorative Practice” (with no limitations) or for “Diversion” (with no limitations). She is calling for us to be faithful to the original intent and spirit of the Violence Against Women Act.
Please call your senators (202-224-3121) or email them through their websites and urge them to reconsider eliminating the sections of VAWA on “Restorative Practice” and “Diversion” that seek to decriminalize domestic violence, sexual assault, and sex trafficking.
Casey Gwinn was a domestic and sexual assault prosecutor in San Diego for 20 years. He served as the elected San Diego City Attorney from 1996-2004 and oversaw the creation of the first Family Justice Center in the United States. He provided leadership to the President’s Family Justice Center Initiative between 2004-2006. He now serves as President of Alliance for HOPE International, one of the leading social change organizations in the country focused on addressing domestic and sexual violence through trauma-informed, hope-centered, collaborative, multi-agency victim services and offender accountability frameworks. Casey can be reached at: casey@allianceforhope.com.
Sources:
[2] The Office on Violence Against Women (OVW) funded nine studies of restorative justice practice in domestic and sexual violence contexts in 2016. None of them provided “evidence-based” outcomes to justify making such approaches national policy in the United States. See https://www.justice.gov/opa/pr/justice-department-announces-nine-studies-focused-approaches-life-saving-work-authorized.
[3] Gwinn, C., Hellman C., Hope Rising: How the Science of HOPE Can Change Your Life(2018); Gwinn, C., Strack, G., Mack, M., “Law Reform Targets Crime of Strangulation,” Domestic Violence Report, Volume 19, Number 06, August/September 2014, pp.81-84(4).
[4] Glass, N., Laughon, K., Campbell, J., et al., “Non-fatal Strangulation Is an Important Risk Factor for Women,” J. Emerg Med, Oct. 35 (3), 329-335 2008), Accessed November 13, 2021: https://www.ncbi.nlm.nih.gov/entrez/eutils/elink.fcgi?dbfrom=pubmed&retmode=ref&cmd=prlinks&id=17961956
[5] Gwinn, C., “Men Who Strangle Women Also Kill Cops”, Domestic Violence Report, Volume 7, Number 3 (2015), 197-199 (3). Accessed November 10, 2021, at: https://www.civicresearchinstitute.com/online/article_abstract.php?pid=6&iid=1116&aid=7316.
[6] Gu, J. “Deadliest Mass Shootings Are Often Preceded by Domestic Violence at Home”, Bloomberg News, June 30, 2020. Accessed November 11, 2021, at: https://www.bloomberg.com/graphics/2020-mass-shootings-domestic-violence-connection/.
[7] See 18 U.S.C. Section 113 (a)(8) (2013) to review the language of VAWA 2013 regarding strangulation and suffocation assaults.
[8] See 10 U.S. Code § 928 – Art. 128. Assault by Strangulation
[11] See HR 1620, Heading for Title 1, Section 102.
[12] Goodman, L., Epstein D. Listening to Battered Women: A Survivor-Centered Approach to Advocacy, Mental Health, and Justice, (2008).
[15] Gwinn, C., Strack, G. & Hellman, C., “Survivors’ Voices on Law Reform”, Domestic Violence Report, Volume 26, Number 02, December/January 2021, pp.28-30(3). Accessed November 13, 2021, at: https://www.civicresearchinstitute.com/online/article_abstract.php?pid=18&iid=1461&aid=9499.
[16] Gwinn, C., Hellman, C., Hope Rising: How the Science of HOPE Can Change Your Life (Morgan James Publishing, 2018).
[18] Id.
[19] Id.
[20] Id.
[21] Barata, P.C. and Schneider, F., Battered Women Add Their Voices to the Debate about the Merits of Mandatory Arrest, Women’s Studies Quarterly, Vol. 32, No.3/4, Women Crime, and the Criminal Justice System (Fall-Winter, 2004), pp. 148-163 (Feminist Press).
[22] Id.
[23] See Ammons, L., Mules, M., “Babies, Bath Water, Racial Imagery and Stereotypes: The African-American Woman and the Battered Woman Syndrome”, 1995 Wis. L. Review 1003.
[24] Id.
[25] See Jacobsen, Carol, Mizga, Kammy, D’Orio, Lynn, Battered Women, Homicide Convictions, and Sentencing: The Case for Clemency, 18 Hastings Women’s Law Journal 31 (2007).
[26] Hearn, Marcellene Elizabeth, Comment, A Thirteenth Amendment Defense of the Violence Against Women Act, 146 U. Pa. L. Rev. 1097, 1111-1113 (1998); Simon, Leonore M.J., A Therapeutic Jurisprudence Approach to the Legal Reasoning of Domestic Violence Cases, Psychol. Pub. Policy & L., 43, 74 (1995) (including the most recent research at the time indicating that stranger offenders fared worse than non-stranger offenders in sentencing outcomes).
[27] See Gwinn, Strack, Dream Big: A Simple, Complicated Idea to Stop Family Violence(Wheatmark, 2010).
[28] See Smith, B., Davis, R. “An Evaluation of Efforts to Implement No-Drop Policies: Two Central Values in Conflict” (2004). See https://www.ojp.gov/pdffiles1/nij/199719.pdf.
[29] Gwinn, C., Strack, G., “Another Perspective on the Moment of Truth Statement”, Domestic Violence Report, Volume 26, Number 02, December/January 2021, pp.17-21(5). Accessed November 11, 2021, at: https://www.civicresearchinstitute.com/online/article_abstract.php?pid=18&iid=1461&aid=9498.