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Part I

Mapping the Obstacles to Criminal Justice for Women

The Pivotal Role of the Criminal Justice System in Stopping Violence Against Women
The Problem: Systematic Denial of Protection and Justice to Women
Six Principal Obstacles to Equal Protection and Justice for Women


Near Absolute Police and Prosecutorial Discretion
2. Institutionalized Sexism and Racism
3. The Absence of Societal Mechanisms for Controlling the
Criminal Justice System
4. The Cooptation of Victim Advocates and of Rape and
Domestic Violence Crisis Centers
5. The Invisibility of Denial of Equal Protection and Justice
6. The Error of Ignoring District Attorney Powers


If you're looking for specific tips and information for advocating on a victim's case, skip this section for now, go back to the index, and find the section that most applies to your case. The section that follows here is more an analysis, or perhaps better said, it's a boulder by boulder description of the enormous obstacles that still block women's path to equal justice in the criminal justice system.

Don't get discouraged as you read this. As daunting as the details may be, our hope is that instead of despair, you'll begin conjuring up just the right round of dynamite needed to once and for all blast these obstacles out of the way and to open the path to equal justice for women that is so long, long overdue.

The Pivotal Role of the Criminal Justice System in Stopping Violence Against Women

Comprehensive, effective, and nondiscriminatory implementation of criminal justice system powers is essential to ending violence against women, both for freeing individual women and for ending the world wide epidemic of violence against women.

No doubt, all segments of society must make profound changes before violence against women will be eliminated. But once there is violence or threat of violence, the criminal justice system is the only sector of society that has the power and authority to step in and stop the violence. The criminal justice system alone is invested with the power and authority to enforce the laws against violence, to carry out a criminal investigation, to arrest and detain a perpetrator, and to provide justice for criminal offenses. If the criminal justice system doesn't fully do its part to put the perpetrator under control, you can social work these cases endlessly. In all likelihood the perpetrator will just turn around and easily undo any peace and equilibrium you and the victim have been able to establish in her life.

The pivotal importance of the criminal justice system in stopping violence against women can be illustrated in both the positive and the negative. On the positive side, a handful of diverse jurisdictions around the country that have implemented a consistent, aggressive, and modern criminal justice response to domestic violence have been able to reduce their domestic violence homicide rates by over 60% in just a matter of years. If domestic violence were a disease, this kind of dramatic reduction in deaths would be heralded a miracle cure.

You may recall a series of studies from the late 1980's which found that arresting perpetrators resulted in only minimal reduction of future violence in the relationship. These studies are still used to argue against the necessity of a strong criminal justice system response, so it's important to be aware of a core flaw, not in the studies themselves, but in the conditions at the time. The system in place at the time consisted principally of arrests by themselves, without the crucial follow-up investigations and prosecutions in place. It was like trying to make the airplane fly with only one wing. It's easy to see that if perpetrators are merely arrested and detained for a couple days and then let go without follow-through, they are likely to be even more dangerous to victims.

It wasn't until the early 1990's when a few jurisdictions, most notably San Diego, CA and Quincy, Massachusetts, began to pioneer the more modern, comprehensive law enforcement approach to domestic violence. In addition to pro-arrest policies, the new approach included a complete police investigation with an eye to prosecution, prosecutorial follow-up, no diversion/no-drop policies, victim support, and intensified probation monitoring and/or correctional follow through. It was only when this full spectrum criminal justice response was applied to domestic violence that the immediate and dramatic reductions in domestic violence homicides took place in those pioneering cities. These positive and striking results have now been successfully reproduced in a number of other jurisdictions throughout the country.

No other approach to domestic violence - not educational, therapy based, and not diversion programs - has shown anywhere near the effectiveness and impact obtained by the implementation of a comprehensive criminal justice response. If anything, studies of non-criminal justice remedies to domestic violence repeatedly demonstrate their ineffectiveness in bringing about any significant reduction in the levels of violence.

Given the proven and unequivocal benefits of a full criminal justice response, it's sad that still today, the pivotal importance of good criminal justice system response is still more often manifested in the negative.

On the negative side, the consequences of law enforcement failures to implement their powers on behalf of women are all too evident by tracing law enforcement histories leading up to domestic violence homicides. What's found in case after case where women have been murdered by their partners is a history of gross failures of law enforcement to respond properly to the victims' previous requests for help. Half-baked investigations, officer bias against women, contempt of victims, inadequate prosecution, slap-on-the-wrist sentencing, careless follow-up, and overall system disregard paves the road to one domestic violence homicide after another. Sloppy law enforcement response emboldens the perpetrators, throws the women into despair, and leads to an incalculable number of severe injuries and deaths to women.

A year 2002, Domestic Violence Fatality Review from Washington State aptly names this all too common inadequate law enforcement response to domestic violence "the meaningless processing of cases". All too often, instead of implementing their powers on the victim's behalf, criminal justice officials were found to be carelessly handing the cases off from one to the next. Perpetrators were never really held accountable despite multiple rounds through the system, and ultimately the women were murdered.

When the criminal justice system withholds its powers from victims of rape and domestic violence, it bolsters the perpetrators, and, in fact, increases the danger to the victim. The perpetrators are emboldened by the immense authority behind the system's could-care-less attitude. The perpetrators feel they've been given the ultimate green light to carry on with the violence or to escalate. In fact, once law enforcement responds carelessly, it's not uncommon for perpetrators to invoke law enforcement authority in taunting the victim. "Go ahead, call the Sheriff," Avelino Macias would taunt his estranged wife Teresa, "The Sheriff protects me more than they protect you."

The victim, on the other hand, is dangerously weakened and driven into despair by the system's denial of help. Right at the moment she takes the great risk of exposing her intent to confront the perpetrator by bringing in law enforcement, she is betrayed by inadequate law enforcement response in front of the perpetrator. "Instead of helping me," Teresa had told her mother regarding authorities' responses to her calls for help, "they sunk me even more." Like many victims of domestic violence homicide, Teresa had been driven into such deep despair by the Sheriff's repeated disregard of her more than 25 calls for help, she had given up on calling the Sheriff for help in the weeks before Avelino lay in wait and executed her. (See "Women Don't Have to Die.")

Nor do you have to limit your observations to domestic violence homicides to see the harm of law enforcement disregard for violence against women. The same can be seen in the law enforcement histories of so many cases where there are serious injuries. Or in cases of serial rapists or serial child molesters. If you dig out the law enforcement histories in these felony cases, here again you'll most always find a trail of law enforcement disregard of the perpetrator's prior lower level violence against women and children.

Given the increased danger to women created by official's denial of protection and justice, it should be clear that any police officer or prosecutor who routinely mishandles violence against women, over the course of his or her career, or even over the course of a year, is more dangerous to women than a hundred batterers and rapists.

What's more, if you look at the law enforcement history in cases of serial killers and mass murderers, you'll also frequently find a trail of inadequate law enforcement response to the perpetrator's earlier violence against women. A current case in the news is that of John Muhammad whose sniper killing spree in the fall of 2002 held the entire populace of Washington DC under siege for weeks and resulted in the killing of 13 people and the wounding of 5.

In the two years prior to that killing spree at least three police agencies, the Tacoma PD, the Bellingham PD, and the area Sheriff's Department had failed to respond properly to Muhammad's domestic violence related crimes against his wife and children and against the mother of Jahn Malvo, Muhammad's juvenile accomplice in the killing spree. These law enforcement agencies never once arrested Muhammad, nor obtained an arrest warrant for these crimes, despite the fact that Muhammad had abducted and concealed his children from his wife for over a year, despite the fact that he had made threats to kill that were heard by credible witnesses, and despite the fact that law enforcement was in touch with Muhammad and had ample evidence to prove those crimes.

As a point of insight into Tacoma Police mentality it's worth noting that in that same time period Tacoma PD had obtained an arrest warrant for Muhammad - But that arrest warrant had nothing to do with domestic violence. Tacoma PD obtained the arrest warrant because Muhammad had shoplifted $27 worth of meat from a Tacoma store. The Tacoma PD took stronger action on behalf of the store owner's loss of $27 worth of meat than on behalf of Muhammad's wife, including when Muhammad abducted and concealed their three children for over a year.

It's also worth noting that in April, 2003, Tacoma Police Chief Brame shot and killed his own wife in front of their two children.

The Fallacy of Avoiding the Criminal Justice System. If you are a victim advocate reading this, it may seem silly to belabor the point that effective criminal justice system response is essential to stopping violence against women. But there are many women in the violence against women movement who are so disgusted by the sexism, the racism, and all the other abuses of power in the criminal justice system, that they are desperately looking for ways to circumvent the system altogether. They point not only to the system's mishandling of violence against women, but also to the system's persistent discriminatory violations of defendant's rights as well, especially abuses against defendants of color. And the point is undeniably true. The criminal justice system, probably more than any other public entity, abuses its powers in a highly discriminatory manner, and, in fact, frequently actively uses its immense powers to enforce existing inequalities and injustices in the social order.

But it would be as foolhardy to divert women's energies away from the criminal justice system as it would be to advise a minority community not to call the fire department because their current fire department responds in such racist ways. What alternate solution could we possibly create that could respond at one in the morning when a woman has a knife to her neck? Who's going to investigate when the perpetrator says she started it and he was acting in self defense? Who's going to invest in the necessary equipment, training, and salaries to respond to millions of these cases? And when the perpetrator promises to stay away from the house, by what authority are we going to stop him when he breaks the promise?

And if, for the sake of argument, we were to create such a system, is there any question that the current law enforcement system would not sit idly by? They would, of course, immediately begin to arrest the members of our alternative system the moment we moved to restrict a perpetrator's freedom. So doesn't that bring us inevitably right back to the confrontation with the current justice system that we wanted to avoid in the first place?

What then? Are we going to make the millions of women who now call the police to secure their safety give up their housing and go into shelters? The kids too? And for how long? And let the violent perpetrators run free? To find more victims?

And what about justice? Do we say, oh well, she may have been beaten to a pulp, but as long as she's safe, she doesn't need justice? Do we say that first we must stop all justice system abuses of male defendant's before we demand justice for women? Or do we create an alternate justice system as well as an alternate system of first response?

Or are we going to prevent this violence from happening in the first place? With education? And how many women are we willing to let die before the prevention education sinks in? And since most young boys turn to violence after growing up in violent homes, isn't stopping the current violence against women the first priority of any successful prevention program? And doesn't that bring us right back to the original dilemma? Who's going to step in and stop the current violence that's ravaging millions of women's lives today? What good does it do to tell kids not to play with matches if there's a wildfire raging all around them and the firemen won't budge?

It doesn't take but a few minutes thought to see that when it comes to intervening in the rampant existing violence against women, the criminal justice system as exclusively authorized and empowered by the state is as pivotal and irreplaceable as the fire department is to fighting fires. But it's worth doing the mental exercise if only to beat down once and for all the temptation to give up on dealing with the criminal justice system. It's true the criminal justice system is permeated with abuses. And it's true these abuses can easily endanger and re-victimize victims, as well as victimize defendants. But this is all the more reason we need to confront this system head on, and to remake the current justice system into a system that responds adequately, equitably, and even handedly.



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Copyright © Marie De Santis,
Women's Justice Center,


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