Securing Access to Justice for Women

An Activist’s Guide to Improving Overall Criminal Justice Response to Violence Against Women

Introduction:

Enforcing the Laws, A Critical Missing Link in the Struggle to End Violence Against Women

• Protection and Justice for Women, Progress or Propaganda?
• How Biased Officials Easily Obstruct Protection and Justice for Women
• Eight Key Legal Cases: Does Law Enforcement Have a Duty to Victims of Violence Against Women?

• Introduction
• The Immense Benefits to Communities, Summary of Research
• Two Decades of Disturbingly Stagnant Numbers
• Eleven Lessons Learned, Eleven Strategies Forward
• Tear Down That Wall! and Other Pivotal Changes for Increasing Women’s Numbers and Influence in Policing
• Sample Letters and Tips for Obtaining Sex and Race Statistics from Law Enforcement
• Resources

Part 2 ~ Establishing Restrictions on Law Enforcement Discretion to Ignore Violence Against Women

• Law Enforcement Discretion, How It Fuels Violence Against Women, and Why it Must Be Restricted
• The Human Rights Framework: A Beacon and Blueprint for Change
• Making Civilian Oversight of Police Work for Victims of Violence Against Women
• Highlighting the Gendered Blind Spot,
  Engaging Social Justice and Civil Rights Groups
  in Securing Women's Justice Rights
• VAWA Critique
  In Which a Little-Known Legal Brief Plows into Hallowed Terrain
• Dear Feminist Law Professors

~ ~

The whole world effort to end violence against women is critically blocked by widespread failures of criminal justice officials to properly enforce violence against women laws. Rife with anti-women biases, too many police, prosecutors, and other justice officials don’t want to do these cases. They know they don’t have to do these cases. And they know no one can make them do them. If women are ever to be free, all this must change.

~ ~

The purpose of this guide is to explore the kinds of things that can be done to fix the problem of justice officials’ systematic failures to properly enforce violence against women laws.

The silence has been broken! Women’s groups to end violence against women have mushroomed around the globe. And well tailored laws to deal with this violence have been put in place most everywhere.

But a decade into the 21st century, women’s access to justice and protection remains blocked and out of reach. Here in the U.S. where modern laws promise full remedy for these crimes, more often than not women are met by biased justice officials who dismiss or minimize the offenses, and deliver indifference and disregard.

A major study* in 2009 of Dept. of Justice rape data finds that, contrary to popular belief and official rhetoric, conviction rates for rape in the U.S. haven’t improved since the 1970’s. According to the study, still today, U.S. rapists go to jail in only roughly 2% of rapes reported to police.

A meta-analysis of domestic violence studies in 2009 by a Univ. of Michigan team** finds that only 1 out of 6 domestic violence cases reported to police results in conviction.

These are just two of an array of recent studies which reveal that quite the contrary to law enforcement’s claims of treating violence against women more seriously, law enforcement has mostly polished their public rhetoric, and made little real improvement in their actual responses to these debilitating crimes. The monumental efforts being made by so many others to end this violence are being subverted by the systematic failures of justice systems to properly enforce the laws.

This justice denied is especially dangerous for women. It defeats the victims. And it emboldens the perpetrators by giving them an official green light to continue on with their violence. Justice denied cements the oppression of all women. Yet when justice officials refuse to properly enforce the laws, there is no viable legal remedy with which women can hold these officials to account. In most countries, including in the U.S., there is no codified right to justice for women. In fact, recent rulings from our highest courts have only strengthened law enforcement’s rights to do nothing at all.

Two Key Obstacles to Justice for Women

Justice systems around the world share two key obstacles blocking women’s access to justice and protection.

The first obstacle is that criminal justice systems harbor more concentrated patriarchal powers and anti-woman bias than most any other institution. The hyper-male control of justice systems is rooted deep in their history, structures, and cultures, and is extremely resistant to change.

The second key obstacle to justice for women is that law enforcement and justice systems have near absolute discretion in deciding which crimes to ignore and which to treat seriously. No matter how much evidence there is that the crime occurred, police and prosecutors have no legal obligation to enforce the laws, nor any legal obligation to protect.

Laws and remedies are in place around the world for holding justice officials accountable when these officials act over aggressively, such as when police and prosecutors use excessive force, conduct illegal searches, make false arrests, or overcharge cases. These are the kinds of abuses most often directed at suspects and defendants, most of whom are men. These law enforcement abuses are given such import that many of the corresponding rights and remedies for these offenses are enshrined in the U.S. constitution, and in the constitutions of most countries of the world.

But women generally come to the justice system from the other side, most frequently and most urgently as victims of violence against women. Women need law enforcement to act. And on this most pivotal point in determining women’s freedom or subjugation, law enforcement is free to turn away and do nothing, a law enforcement discretionary power repeatedly upheld by the U.S. Supreme Court. In the U.S. and around the world, women have no viable legal remedy to hold law enforcement to account when justice and protection are denied.

These two obstacles in combination, the intense institutionalized sexism of justice systems, along with officials’ unfettered discretion to choose which crimes to treat seriously and which to ignore, lead inevitably to systematic denial of justice to women. Women’s vital access to protection and justice has been left completely to the unchecked biases and discretion of individual police and prosecutors. Too many of these officials don’t want to do these cases. They know they don’t have to do these cases. And they know nobody can make them do these cases. And the violence against women rages on.

The results are disastrous for women around the globe. All the monumental labor of constructing modern violence-against-women law is for naught and annihilated in the hands of sexist officials who are free to ignore enforcing these laws with impunity. All the long struggles to secure women’s other rights are also curtailed, as the day in, day out, one sided reign of sexist violence freezes women in their tracks, and causes all women to live in fear.

The Urgent Need To Remake Justice Systems that Truly Provide Equal Protection and Justice for Women

Because women’s freedoms pivot so critically on effective enforcement of violence against women laws, it’s urgent that we overhaul our justice systems to guarantee that officials routinely provide that enforcement. The sexist roots and recruitment in law enforcement must be eliminated. It’s equally urgent that we establish reliable legal rights and remedies for women when effective law enforcement response is denied, and that we create reliable mechanisms to hold officials to account when they refuse to act.

Women have succeeded in drafting modern violence-against-women laws. We’ve drawn up justice system protocols, and tirelessly provided rounds of violence-against-women training for justice officials. But as long as these officials are free to brush all this off as cynically and as blithely as they dispense with victims, we are caught in endlessly futile battles of trying to push an unwilling system to fly right in case after mishandled case.

The urgency to make these justice system changes is amplified by the synergy of multiple urgencies:

• One sexist official will likely do far more damage to women than any individual perpetrator. An unrestrained perpetrator of violence against women may victimize a dozen or so women over his lifetime. But one sexist law enforcement officer, over the course of his or her career, can easily foster the violence against literally hundreds of women.
  
  
• Getting free from violence against women depends on a chain of support that is only as strong as its weakest link. You can secure a woman’s housing, provide counseling, obtain protective orders, and, in short, you can social work these cases flawlessly. But if the criminal justice system doesn’t properly do its part and get the perpetrator under control, that perpetrator will likely just turn around, retaliate, and undo any stability you and the women have been able to establish.
  
  
• Obtaining justice in violence against women cases requires a chain of official response that is also only as strong as its weakest link. It only takes one sexist official in the chain to ditch the case, and the access to justice is blocked. Every official in the criminal justice chain, from responding officer to court prosecutor, must be pro-active on violence against women, or the whole system fails.
  
  
• Establishing women’s legal rights to protection and justice has been largely ignored by civil rights, social justice groups, legal reformers, and by women’s groups, too. All the while, the criminal justice system has succeeded in strengthening its own legal rights to ignore these crimes against women with impunity.
  
  
• The worldwide unchecked violence against women constricts all the other rights women have fought so hard to obtain. Freedom and full participation for women in society are impossible until this violence is stopped.
  
  
• There is no time! The solutions to so many of the world’s worst problems are entangled in the knot of women’s oppression. And so much of women’s oppression is enforced through the violence.

We hope this guide can map out some of the main obstacles, suggest strategies and solutions, and most of all, ignite your thinking and activism to the cause of securing reliable equal justice for all women and girls.

*Lonsway, K.A. & Archambault, J. (2009). THE ‘JUSTICE GAP’ FOR SEXUAL ASSAULT CASES: FUTURE DIRECTIONS FOR RESEARCH AND REFORM, Manuscript in press,
Journal of Violence Against Women.
For more information on this paper, please contact author Kim Lonsway at Kim@evawintl.org

** Garner, J. Prosecution and Conviction Rates for Intimate Partner Violence. Criminal Justice Review, Vol. 34, No. 1, 44-79 (2009).
See abstract here: http://cjr.sagepub.com/content/34/1/44.abstract