Women subjected to abuse have been promised that the criminal legal system will help them if they report those who abuse them to law enforcement and cooperate with prosecution. But those same systems turn punitive quickly when women act to protect themselves from their abusers. A number of high profile cases in the United States provide examples of women who survived gender-based violence only to find themselves punished in the criminal legal system. Those women include Marissa Alexander, initially sentenced to twenty years incarceration for firing a warning shot into the ceiling of her own home to prevent her former husband, Rico Gray, from re-assaulting her, and Cyntoia Brown, originally sentenced to life in prison for killing a man who paid her to have sex as a 16 year old trafficking victim. Both Alexander and Brown have been released from prison, but only after concerted lobbying on their behalf. And for every Alexander or Brown, there are hundreds or thousands of other women still incarcerated for crimes related to their own victimization. The #SurvivedandPunished movement in the United States has done incredible work in publicizing the plight of individual criminalized survivors and lobbying parole boards and governors for their release. But substantive law and structural changes are necessary to prevent law enforcement from revictimizing these survivors.
The overcriminalization of survivors begins with girls. Mandatory arrest laws in domestic violence cases have directly contributed to larger numbers of girls being incarcerated. Mandatory arrest laws require police to make arrests in cases involving domestic violence whenever they have probable cause to do. Such laws were meant to address police inaction in domestic violence cases, denying police the discretion to informally handle such matters. But since the inception of mandatory arrest laws, arrests of women and girls have increased significantly. The increase in the arrest of girls is largely attributable to fights between girls and their parents, which increasingly have ended with police arresting girls. The “sexual abuse to prison pipeline” funnels girls who have experienced sexual victimization into the juvenile justice system.1
86% of incarcerated women have experienced sexual violence; 77% have experienced intimate partner violence.2 And while it is often an integral part of the criminal activity for which they are convicted, that violence is often seen as immaterial by the criminal legal system. Prosecutors with enormous amounts of discretion charge women with serious crimes, ignoring the context of gender-based violence within which those crimes happened and pressuring women to plead guilty by charging women with crimes that could result in excessively long periods of incarceration. Moreover, prosecutors treat victims of gender-based crimes as though they were perpetrators when those victims refuse to cooperate with the criminal system, using material witness warrants (which enable prosecutors to request that judges issue arrest warrants for witnesses who fail to comply with subpoenas ordering them to testify) to have victims arrested and incarcerated to force their testimony. Victims of violence—defendants and witnesses—are incarcerated in conditions that exacerbate their existing trauma and undermine their ability to care for themselves and their children and assert agency upon release. Their chances of securing parole or clemency are jeopardized by their desire to share their stories of survival and to embed their actions in the context of their partners’ violence. When they are released, they are often subject to conditions that undermine their safety and make it difficult to secure employment, housing, and necessities. Criminalized victims of sex trafficking, for example, are routinely made to register as sex offenders, enduring not only the internalized stigma of that status but the very real consequences of having the community notified of that status through online registries. Undocumented survivors of trauma and gender-based violence from other countries seeking refuge in the United States have also been criminalized in recent years, with disastrous results for those survivors and their children.
Addressing the needs of criminalized survivors must be part of the larger project of criminal system reform. But too often, criminal system reform lacks a gendered analysis, with gender-based violence excluded from reform efforts. Anti-violence activists sometimes fear that the progress made in increasing awareness of and funding for services for gender-based violence will be lost if gender-based violence becomes part of criminal system reform. But what those advocates miss is the very real damage that the criminal legal system is doing to survivors of gender-based violence, both as witnesses and as defendants. To ensure that survivors are not revictimized by the system that failed to keep them safe in the first instance, laws like mandatory arrest laws that needlessly bring girls and victims of violence into the criminal system, and material witness laws, which enable prosecutors to ask that victims be jailed pending their testimony, should be repealed. Prosecutors should strongly consider context when making initial charging decisions and thoroughly investigate claims of abuse before instituting criminal proceedings against survivors of gender-based violence. In those cases that do go to trial, juries should hear testimony about the history of violence and about how the experiences of trauma and violence shape survivors’ reactions to that violence. If some form of accountability for survivors is appropriate, that accountability should not involve incarceration or other conditions that exacerbate existing trauma. Only these kinds of changes will ensure that survivors of gender-based violence are not #SurvivedandPunished, but #Survived.
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