FAILED INTERVENTIONS: DOMESTIC VIOLENCE, HUMAN TRAFFICKING, AND THE CRIMINALIZATION OF SURVIVAL.

• Author: Richert, Alaina

Over the last decade, state legislators have enacted statutes acknowledging the link between criminal behavior and trauma resulting from domestic violence and human trafficking. While these interventions take a step in the right direction, they still have major shortcomings that prevent meaningful relief for survivor-defendants. Until now, there has been no systematic overview of the statutes that require courts to consider a defendant's history of trauma in the contexts of domestic violence and human trafficking. There has also been no attempt to explore how these statutes relate to each other. This Note fills those gaps. It also identifies essential elements future statutory interventions in these contexts must include in order to grant effective relief to survivor-defendants. These reforms are essential to create a legal system that does not criminalize surviving domestic violence and human trafficking.

INTRODUCTION I. LINKS BETWEEN DOMESTIC VIOLENCE, HUMAN TRAFFICKING, AND CRIMINAL OFFENSES A. Domestic Violence, Human Trafficking, and Criminal Offenses B. IPV and Criminal Offenses C. Childhood Domestic Violence and Criminal Offenses II. EXISTING STATUTORY APPROACHES A. Inadequate Alternatives B. Human-Trafficking Statutes C. Domestic-Violence Statutes 1. IPV Statutes 2. Domestic-Violence Statutes III. ENDING THE CRIMINALIZATION OF SURVIVAL A. Provide an Affirmative Defense B. Allow for Resentencing C. Fewer Limitations on Types of Crimes D. Issues with Limitations Based on When the Abuse Occurred E. Nexus Requirements 1. A Problem with Nexus Requirements 2. Why a Nexus Requirement Is Desirable and How to Mitigate the Problem CONCLUSION INTRODUCTION

The legal system is failing criminal defendants who are survivors of domestic violence and human trafficking. In recent years, studies have revealed that there are compelling links between trauma in these contexts and criminal behavior. (1) Arresting, prosecuting, and incarcerating survivors who have committed crimes related to their abuse is itself a form of trauma. These actions treat survivors as criminals and expose them to an increased risk of experiencing physical or sexual violence. (2) In addition, survivor-defendants (3) who are convicted of offenses linked to their abuse are subject to the negative collateral consequences that accompany criminal convictions, including barriers to securing housing, employment, public assistance, a driver's license, and financial aid. (4)

Over the course of the last decade or so, legislators have enacted statutes that acknowledge the link between trauma and criminal behavior in the context of domestic violence and human trafficking. (5) Domestic violence is a pattern of emotional, physical, sexual, psychological, or economic abuse perpetrated by one household member against another. (6) Intimate partner violence (IPV) is a type of domestic violence perpetrated by someone who is or wants to be in an intimate relationship with another person. (7) Human trafficking is the use of coercion or fraud to obtain some kind of labor, including commercial sex acts. (8) Since domestic violence, IPV, and human trafficking overlap, it is possible for someone to experience these forms of abuse simultaneously.

New York, (9) California, (10) and Illinois (11) recently passed laws giving courts discretion to reduce sentences when a defendant's offense is related to being subjected to domestic violence. In addition, thirty-eight states have passed affirmative defenses for human-trafficking survivor-defendants since 2010. (12) While these laws are a step in the right direction, (13) they do not go far enough. They often impose restrictions that deny relief to survivor-defendants, such as excluding certain types of offenses or those that occurred before a specific period.

This Note undertakes the first systematic overview of all statutes that require courts to consider a defendant's history of domestic violence or human trafficking and explores how these statutes are related. Part I explains how trauma induced by domestic violence or human trafficking may lead survivor-defendants to commit criminal offenses. Part II provides an overview of all statutes that require courts to consider a defendant's being subjected to domestic violence and human trafficking. Part III compares these statutes, identifies their shortcomings, and proposes necessary elements of future statutory interventions.

1. LINKS BETWEEN DOMESTIC VIOLENCE, HUMAN TRAFFICKING, AND CRIMINAL OFFENSES

   People who experience domestic violence or human trafficking are at an increased risk of committing a criminal offense. (14) For example, domestic-violence and human-trafficking survivor-defendants may commit a crime against their abuser in self-defense, be forced by their abuser or trafficker to steal or commit other crimes, or turn to substance abuse to manage the emotional and physical pain caused by their abuse. (15) This Part explores some of the pathways between the trauma of domestic violence and human trafficking and subsequent criminal behavior. Section LA discusses the trauma experienced by survivor-defendants in the contexts of domestic violence and human trafficking. Section LB explores the unique paths between IPV and criminal behavior. Section I.C highlights the connections between childhood domestic violence and criminal behavior. These links have critical implications for future statutory interventions and demonstrate how prosecuting and imprisoning survivor-defendants for their crimes effectively criminalizes survival.

   1. Domestic Violence, Human Trafficking, and Criminal Offenses

      The trauma of domestic violence and human trafficking affects people's subsequent behavior and mental health and can lead to criminal behavior. (16) Perpetrators of domestic violence or human trafficking may force their victims (17) to steal, participate in group crimes, take responsibility for their abuser's crime, or commit some other criminal offense. (18) Abusers in these contexts may force their victims to commit sex-related crimes. (19) For example, Judy Norman, an IPV survivor-defendant who shot her abuser, was forced by her abuser to prostitute herself (20) Her abuser would beat and maim her if she refused or if he felt that she should have made more money. (21)

      People who experience domestic violence or human trafficking may also respond to the abuse by using violence to protect themselves or others. (22) In one case, Catina Curley was subjected to nine years of severe, relentless abuse, including punching, slapping, and strangulation, by her husband Renaldo. (23) Renaldo dislocated her shoulder, attempted to push her out of a moving car, and gave her many black eyes and other facial injuries. (24) During one incident, Renaldo followed Catina around the house, yelling at her, choking her, and throwing things at her in front of her daughter. (25) When he went downstairs, Catina called her aunt for help, armed herself with a handgun, and begged Renaldo to let her leave the house. But Renaldo walked toward her, continuing even as Catina screamed, trembled, and told him to stop. Catina fired the gun, the bullet hit Renaldo, and he died from the wound within one or two minutes. Devastated, Catina called 911, but when the police arrived, she was arrested. Catina was found guilty of second-degree murder and sentenced to life in prison. (26)

      Beyond violent crimes, domestic-violence and human-trafficking survivor-defendants may also commit crimes when they use controlled substances to manage their trauma. (27) People who experience domestic violence or human trafficking often use controlled substances to cope with mental-health problems or the physical and emotional pain that results from past and present abuse. (28) For example, Laura, an incarcerated survivor, (29) became an alcoholic when she was fifteen after using alcohol to cope with domestic violence from her stepfather. (30) To numb the pain of her abuse, she would drink large amounts of vodka when she saw her stepfather preparing to sexually abuse her. (31) Relatedly, abusers sometimes pressure their victims into using drugs or alcohol as a way to control them. (32) For example, abusers may force victims to use drugs or alcohol so they are less able to resist, or they may want them to become addicted so that victims are incentivized to stay with them when they promise to supply more drugs or alcohol. (33)

      The majority of incarcerated women have experienced these kinds of trauma. (34) Female prisoners report experiencing abuse before incarceration at a higher rate than male prisoners. (35) For example, one study found that 60% of women in prison have experienced domestic violence. (36) Women in jail have experienced domestic violence at similar rates: 86% of them have experienced sexual violence at some point in their lives, 77% have experienced IPV, and 60% have experienced domestic violence by a caregiver. (37) Multiple studies asking more comprehensive, behavior-specific questions have found that 71%-95% of incarcerated women have experienced physical violence at the hands of an intimate partner. (38) This is much higher than the national average of one in four women being abused by their intimate partner at some point in their lives. (39) The trauma associated with domestic violence often goes undetected and unaddressed during a survivor's entire period of incarceration. (40)

   2. IPV and Criminal Offenses

      There are also many unique ways that IPV causes victims to be criminally charged, such as abusers' manipulation of the criminal justice system, unjust enforcement of kidnapping laws, failure to protect laws, and economic abuse. For example, abusers often falsely accuse their victims of criminal activity as retaliation for victims reporting their abuse to the police. (41) In other IPV cases, abusers have convinced the police that the victim was the primary aggressor in the relationship, thus creating bias in the...