The Feminist War on Crime

• Author: Aya Gruber
• Position: Associate Professor of Law, Florida International University College of Law; J.D., Harvard Law School
• Pages: 742-833

Aya Gruber: I am grateful for the input of Jorge Esquirol, Heather Lauren Hughes, Karen Pita Loor, Jean Zorn, Lorraine Schmall, and Donna Coker. I also acknowledge the excellent editorial work by Kate Mueting and the Iowa Law Review staff. This Article was presented at the 2006 SEALS New Scholars Workshop.

Page 742

Prologue

July 2000: I am standing in the busy hallway of District of Columbia Superior Court, where life swirls around like a tempest. There are young and old, faces of color, women with small babies-all huddled around oddly out-of-place orange and yellow plastic chairs lining the hall. Uniformed D.C. metro police lounge in groups, swapping stories and laughing, while inscrutable U.S. Marshals in ties and with military crew cuts determinedly enter courtrooms, accompanied by young, impeccably groomed, grey-suited U.S. Attorneys. I stand with my client, Jamal,¹ who, at nineteen years old, still retains a beautiful baby face, with neatly done-up plats and the latest Nike sneakers. Jamal might have come straight from the soundstage of MTV's TRL or a teen TV show. This, however, is no TV show, and Jamal is here for the civil-protection order ("CPO") portion of his domestic violence proceedings.² He had been arrested ten days ago after his eighteen-year-old girlfriend, Britney, called the police and claimed that he punched her and threw a plate at her. As of late, domestic violence advocates had been subpoenaing defendants to testify at CPO hearings in the hopes of producing self-incriminating statements that could be used against Page 743 defendants in later criminal trials.³ I am here to make sure that the judge honors Jamal's Fifth Amendment privilege.

A few minutes before we enter the courtroom Britney shuffles up. She is equally cute and colorful, squeezed into tight-stretch jeans with platform flip-flops and yellow shoulder-length braids. She looks more ready for the galleria mall than for court. She asks if I am Jamal's attorney, and I reply in the affirmative. She says, "The other lady told me I have to be here, but I didn't want to come." She goes on to explain that she and Jamal live together with their baby in a project called Lincoln Heights-a place, incidentally, where a young male like Jamal is lucky to make it to age nineteen without a severe criminal record or drug habit. Britney tells me that she only called the police "cause I was mad and wanted him out the house." She does not want to pursue charges against Jamal and adamantly refuses to comply with any no-contact order.⁴ Then, in a more hushed tone, she asks, "What if I just leave now and don't show up later-will they drop the case?"

o here I am again, straddling the line between zealous advocacy, ethics violation, and obstruction of justice.⁵ The answer to Britney's question is Page 744 likely "yes." The government rarely serves domestic violence witnesses properly, and judges routinely dismiss cases when witnesses fail to show up.⁶I say, "Britney, I can't tell you what to do. I am not your attorney. However, let's sit down, and you can tell me what happened between you two."⁷

Just as I am finishing my sentence, a young woman rushes up and inserts herself between Jamal, Britney, and me. She is blonde, no more than twenty-four, with a hip haircut and an enormous diamond engagement ring. "Domestic violence clinic student," I think to myself.⁸ She glares at me and demands, "What are you doing talking to my victim, and why is your defendant near her? He's violating the no-contact order!"⁹ A new, but as-of Page 745 yet unsuccessful, tactic of the clinic students is to assert that domestic violence victim-witnesses were "represented parties" under the ethical rules and thus any defense attorney who attempted to talk to them violated ABA Model Rule 4.2.¹⁰ This was an effort to prevent defense attorneys from obtaining statements in preparation for trial. I reply, "Britney came up to me. Apparently, she does not want to pursue this case or have no contact with Jamal." The advocate replies sarcastically, "I'm sure she told you that she wants to drop the case." ¹¹

Britney turns to the advocate and protests, "I don't want to be here, and Ms. Gruber told me I could leave." The advocate shoots me an accusatory glance, so I defensively reply, "No, I told her that I could not give her any advice on what to do, but, as you can see, she does not want to pursue this case."¹² The advocate snaps, "Well, we'll just see about that. Come on Britney Page 746 we need to talk, away from them."¹³ With that, she leads Britney away through the mass of humanity gathered in the bustling hall. Ten minutes later, we are all seated at counsel table. I listen as the judge orders a renewable one- year civil-protection order, including a requirement that Jamal have no contact with Britney or the baby.¹⁴ Britney looks down as the judge reads the order.¹⁵ Page 747

Introduction

In the past several years, domestic violence reforms, which include sweeping protection orders,¹⁶ advocates,¹⁷ specialized courts,¹⁸ special evidentiary rules,¹⁹ mandatory arrests, and no-drop policies,²⁰ have become increasingly popular and common in criminal court systems.²¹ The appeal of such domestic violence reforms often crosses political and philosophical lines. Many of the most ardent feminists and strict conservative policymakers would agree that Jamal and Britney should be permanently separated²² and Jamal should be incarcerated.²³ Feminists might see such an outcome as the system taking domestic violence seriously and purging itself of the patriarchal idea that woman abuse is legitimate.²⁴ Conservatives would consider incarceration appropriate retribution for Jamal's moral culpability Page 748 and management of Jamal's dangerousness.²⁵ But how could two camps with such different views of state power converge on the use of that power against Jamal? By embracing harsh criminalization policies, domestic violence reformers actually strayed from the underlying values of the feminist movement. They have also bolstered conservative ideologies and thus reinforced, rather than dismantled, inequality. Of course, not all feminists work in the area of domestic violence. Moreover, many of the ones who do work in this area do not advocate criminalization as a solution to domestic violence. It is undeniable, however, that domestic violence reform is a huge part of the feminist movement and that criminalization efforts are in the forefront of domestic violence reforms.²⁶

In the late 1960s and 1970s, feminists spearheaded the domestic violence and rape-reform movements²⁷ and described gendered crimes as manifestations of larger patriarchal attitudes and policies infecting society in general.²⁸ The criminal system failed to address gendered crimes adequately, exposing the extent to which such patriarchal beliefs pervaded the legal structure.²⁹ Feminists directed their initial efforts at equalizing and civilizing the criminal justice system's treatment of female victims,³⁰ providing access Page 749 and resources to such victims, and creating programs to address the economic and social realities that kept women in abusive relationships or led them to remain silent about rape.³¹

Around the same time, the spark of a new and powerful criminal-reform movement appeared. In response to a perception, however false, that crime rates were perpetually rising³² and that the court system afforded too many rights to defendants,³³ a grassroots movement revolving around the victim emerged.³⁴ The crime victims' rights movement inserted new players, justifications, and a barrage of new legislation into criminal jurisprudence.³⁵The general public lauded the plethora of reforms in the name of empowering victims, leaving the only criticism to come from civil libertarians who expressed the unpopular view that the reforms posed threats to defendants' civil rights.³⁶ However, while the movement engages the Page 750 rhetoric of individual rights and victim autonomy, it is really not about victim agency. Rather than securing victim autonomy without qualification,³⁷many victims' rights reforms simply seek to position the victim in the legal system in a way that inexorably leads to more liability and punishment for the defendant.³⁸ In a sense, the victim is a foil, a tool of an even larger and more dangerous program of vigorous individuality and denial of social responsibility.³⁹ The victims' rights movement is and always has been a product of conservative tough-on-crime ideology.⁴⁰

Unfortunately, feminist criminal law reform, which began laudably with the goal of vindicating the autonomy and rights of women, has increasingly mirrored the victims' rights movement and its criminalization goals. Many of the widespread domestic violence reforms are more about increasing the likelihood of defendants going to jail than about supporting the individual desires, welfare, and interests of victims.⁴¹ Reformers have embraced Page 751 incarceration and separation models, despite a plethora of gender and race- based scholarly critiques.⁴² Moreover, the domestic violence system treats victims with increasing amounts of paternalism and disdain, as more advocates and jurists buy into the belief that female victims are weak, damaged, and unable to recognize their own interests.⁴³

This Article cautions domestic violence reformers to adhere to the original feminist program of recognizing women's autonomy and pressuring...