six principal obstacles acting in combination that continue
to block progress toward a criminal justice system which
routinely responds effectively to violence against women.
It's crucial to understand the nature and magnitude of these
obstacles in order to develop advocacy strategies that are
sufficiently forceful to overcome the obstacles.
The six principle
obstacles to protection and justice for women in the criminal
justice system are:
1. A near
absolute police and prosecutorial discretion to pick and
choose which crimes the system will treat seriously and
which they will ignore, and to do so with impunity. The
exercise of this enormous discretionary power is virtually
outside the rule of law.
2. An intractable,
deep-rooted sexism and racism that remains institutionalized
throughout the criminal justice system. This sexism and
racism, combined with the system's absolute discretion
to ignore crimes whenever they wish, means that violence
against women cases are the cases most often ignored,
dumped, or given short shrift.
failure to answer the question of who polices the police,
and the failure to even ask the question in regard to
district attorneys, means the criminal justice system
is not only legally unaccountable when dumping cases of
violence against women. In addition, there is also virtually
no other viable social mechanism by which the public can
make the system implement its powers on behalf of victims
of violence against women.
4. The repression
of effective victim advocacy due to increasing criminal
justice system controls over the funding and functioning
of rape and domestic violence centers.
5. The invisibility
of denial of protection and justice to victims of violence
against women to the public, often to the victims themselves,
and even to the officer's supervisors who review the officers
6. The failure
to target the district attorneys. Advocacy groups, social
justice groups, and civil rights groups that aim to correct
abuses in the criminal justice system usually do so by
focusing on the police, while completely ignoring the
District Attorney. This is monumental and puzzling mistake,
since the District Attorney is the most powerful law enforcement
official in your community.
Here's a closer
look at each one of these obstacles in turn:
Near absolute police and prosecutor discretion.
Most people are completely unaware that a whole police force
and district attorney's office can stand around and watch
a rape occur in front of them, and if these officials feel
like it, they can simply fold their arms and walk away,
the whole lot of them. Criminal justice officials have absolutely
no legal obligation to act. They don't even have to write
a report if they don't feel like it. Or they can write a
report and fail to investigate, or do a half baked investigation,
and then decline to prosecute. No matter how much evidence
there is that the crime occurred, law enforcement can respond
to crimes at any which level of seriousness they wish. Law
enforcement officials have no legal obligation to act. And
the crime victim has virtually no legal means to hold the
officials accountable for refusing to act, or for refusing
to act properly.
This near absolute
discretion of criminal justice officials to pick and choose
which crimes they treat seriously and which crimes they
ignore is the key to understanding why, despite years of
legislation and policies mandating that the system deal
seriously with violence against women, law enforcement continues
to do whatever it feels like, and the violence against women
rages on. Law enforcement has no legal obligation to implement
the policies and laws. They don't have to do it if they
don't want to do it, and in far too many cases, they don't
want to do it. Protection and justice for victims of rape,
domestic violence, and child abuse depend entirely on the
arbitrary whims and biases of the officials who respond
to their case.
This right of
law enforcement to pick and choose the crimes in which they
implement or withhold their powers has in recent times been
driven deep into the heart of American law by the 1989 Supreme
Court decision of DeShaney vs. Winnebago County.
The 1989 Supreme
Court case of DeShaney vs. Winnebago County deals with a
child who was severely brain damaged by the father after
county agents returned the child to the father, a man already
known to the system to have been repeatedly violent to the
child. The child's relatives sued the county for denying
the child's constitutional 14th amendment rights to due
process. And in 1989, the US Supreme Court ruled against
With deadly clarity,
the Supreme Court decision in DeShaney states that "Law
enforcement has no affirmative obligation to act."
It's a decision that rules today and has thoroughly abandoned
victim's rights to protection and justice to the unchecked,
arbitrary whims of law enforcement. DeShaney slammed the
door on any justice or remedy for victims who are ignored
by law enforcement.
applies to all crime victims, including those crimes in
which the victims are male. But because of the intractable
sexism that permeates law enforcement and because of law
enforcement's strong distaste for working rape and domestic
violence cases, which crimes do you think law enforcement
most systematically chooses to ignore? Naturally law enforcement
uses its discretion to ignore those crimes they like least
to work with, and violence against women and children, as
we'll later show, are their least favorite crimes of all.
It is women and children who suffer the systematic denial
of justice permitted by DeShaney.
Justice Brennan, in writing the minority dissent on the
DeShaney case, spoke well to the gravity of the injustice
that would be perpetrated by the decision. "My disagreement
with the Court," Justice Brennan wrote, "arises
from its failure to see that inaction can be every bit as
abusive of power as action, that oppression can result when
a State undertakes a vital duty and then ignores it."
Not only has
DeShaney been used since 1989 to wholesale deny any legal
claim by battered women that law enforcement has denied
her right to due process as guaranteed by the 14th amendment.
But throughout the nation's federal courts, DeShaney has
also been used to knock down attempts by women to claim
that law enforcement is denying her rights to equal protection
as also guaranteed by the 14th amendment - however inappropriate
that application of DeShaney may be.
(For a look at
the Supreme Court's long and treacherous history of denying
women's 14th amendment rights see 14th
Amendment, for Women? )
current state of the law is devastating to women and children
who come to the criminal justice system primarily as victims.
It's true, there are more and more state laws that require
law enforcement to respond in this way or that to domestic
violence calls. But given the supremacy of Supreme Court
rulings, these state laws amount to little more than wishful
thinking. When police and prosecutors break these state
laws, for example, when police violate California state
law that requires officers to write a report on all domestic
violence calls, there is no viable legal means by which
victims can seek remedy. The Supreme Court ruling in DeShaney
that law enforcement doesn't have to act, trumps all.
There is one
federal case since DeShaney that has successfully challenged
law enforcement discretion to do nothing whenever it pleases,
and by the time you read this I hope there are many more.
In 2002, in the case of Macias vs. Sonoma County Sheriff's
Department, a federal district court ordered the Sheriff's
department to pay 1 million dollars to the children of domestic
homicide victim, Maria Teresa Macias.
In the year leading
up to her murder, Teresa had called the Sheriff on more
than 25 occasions seeking protection from her violent husband.
The Sheriff rebuffed her on every occasion until finally
Teresa's husband put the gun to her head and murdered her.
(For more extensive Macias case coverage and documents see
The Macias family
filed a 14th amendment federal civil rights lawsuit claiming
Sonoma County Sheriff's Department had denied Teresa's right
to equal protection, and had discriminated against her as
a woman, as a Latina, and as a victim of domestic violence.
By appealing to the equal protection clause of the 14th
amendment Macias aimed to make an end run around the locked
door on due process claims created by DeShaney.
the federal district court judge threw the case out of court,
agreeing with the Sheriff's attorneys that there was no
precedent for law enforcement responsibility in such cases.
The Macias family appealed that decision to the 9th Circuit
Court of Appeals, the court just below the Supreme Court.
In a landmark
July 2000 decision, the 9th Circuit ruled unanimously that
police cannot give inferior services to disfavored groups,
and that the Macias lawsuit against the Sheriff could proceed
back in federal district. As such, that 9th Circuit ruling
has created a constitutional cornerstone on women's rights
to equal protection from law enforcement. The Macias decision
now stands as law in the eleven western states of the 9th
The Macias case
did not, however, directly take on DeShaney and, as such,
Macias did not establish a due process right to police protection.
Nor does Macias establish an equal protection right nationwide.
What Macias did do was establish a constitutional equal
protection right for women in the eleven western states
of the 9th judicial district. But this decision is a long
way from establishing the needed framework of legal limits
on police and prosecutorial discretion that are so essential
to securing women's rights to protection and justice in
the criminal justice system. (For a more detailed look at
the Macias decision)
tragedy in all this is that, to our knowledge, there are
no women's organizations, nor any civil rights organization,
nor human rights organization, nor any social justice group
anywhere in the country that is working to establish these
vital legal limits on police and prosecutorial discretion
to ignore violence against women whenever they wish. The
reason I can state this with such certainty is that during
the six years Tanya Brannan and myself spent investigating
and advocating on the Macias case, we scoured the country
looking for exactly that kind of help. There wasn't then,
and to my knowledge, there isn't today, even one organization
working to establish women's legal rights to a proper law
enforcement response to violence against women.
In the last century,
women fought and won enormous battles to establish women's
equal rights to education, equal rights to vote, equal rights
to work, equal rights to own property. It's crucial if we
are going to end the free reign of violence against women,
and we must, that we launch a concerted and effective struggle
to establish our equal rights to justice and protection
from law enforcement? And to establish legal remedy for
women when law enforcement denies those rights.
No human right
can be secure when the protection of that right is left
to the arbitrary whims and discretion of those in power.
The second obstacle - the pervasive sexism and racism in
the criminal justice system - serves to magnify the problems
created by criminal justice system discretionary powers.
Added to the
fact that the criminal justice system doesn't have to deal
with violence against women, is the overwhelming reality
that, in general, the criminal justice system doesn't want
to deal with violence against women. Rape, domestic violence,
and child abuse are most law enforcement official's least
favorite crime to deal with.
powers of criminal justice officials give law enforcement
the right to ignore any crime, any time, with impunity.
So you might say, on one day they ignore drug crime, the
next they ignore the kidnapping of an executive, and the
next day they ignore domestic violence. So it all evens
Wrong! This would
only be true, of course, in a completely even- handed, unbiased,
system. The criminal justice system is anything but even-handed
and unbiased in applying and denying its powers.
justice system, in fact, lags far behind other social institutions
in correcting its deep sexist and racist biases. The immense
state powers given police and prosecutors remain overwhelmingly
concentrated in the hands of white males in institutional
structures that foster patriarchal attitudes and practices.
In 2003, police
agencies nationwide have not even hit the 15% mark in their
percentage of officers that are female. Furthermore, in
the nationwide average, women hold only four percent of
police command positions. What's most discouraging is that
even this insultingly low level of progress didn't come
about until police agencies, virtually one by one, were
forced by law suits and consent decrees to hire the women.
And even once the women are in, as study after study reveals,
the rates of sexual harassment and discrimination against
the female officers exists at double the rate of other occupations.
Clearly, the men of law enforcement haven't even yet learned
to work with women, let alone have they evolved to the point
of assuming their responsibilities of acting on women's
low percentage of women allowed into the law enforcement
profession is only one indicator of the pervasive sexism
behind the thick blue line. Another indicator is law enforcement's
frighteningly high tolerance of rapists and batterers within
their own ranks, a characteristic law enforcement shares
with the military. At this writing in the Spring of 2003,
there are three cases in the news which illustrate just
how systematic is the criminal justice system's tolerance
for rapists and batterers among themselves, and one emerging
scandal in the military.
* As part
of a lawsuit, internal Pennsylvania State Police documents
have been uncovered that show that there have been more
than 118 accusations of sexual misconduct against State
Troopers since 1995, that these accusations were ignored
by the agency, and, worse, that these cases of officer
sexual misconduct, ranging from rape to downloading pornography
on duty, have been virtually encouraged by Pennsylvania
State Police command staff.
* On April
26, 2003, Tacoma Police Chief David Brame shot and killed
his wife as the couple's two young children stood by.
Follow-up news stories so far have unfolded the following
revelations: that in 1981 as a recruit, Brame failed the
psychological admission exam (too antisocial) but was
hired anyway. A few years later Brame was accused of date
rape. The detective believed the victim but Brame's career
advanced anyway. And in the days before Brame murdered
his wife, when his wife had made formal complaints to
the police about her husband's violence, she was threatened
and intimidated by other command officers.
that it was the Tacoma PD under Brame's command that failed
to arrest Washington, DC sniper John Muhammad for domestic
violence crimes in which there was more than enough evidence
to do so.
* Bob Mullally,
an investigator on a civil lawsuit against Los Angeles
Police Department has just begun a jail sentence because
he turned over internal police documents to the press
in violation of a court order that the documents remain
sealed. The documents revealed that between 1990 and 1993
of the more than 70 Los Angeles police officers who been
investigated for rapes, domestic violence, and child abuse,
not one had been prosecuted. Mullally felt it would be
unconscionable to keep this information hidden from the
public. Unlike the officers who went unpunished for violently
violating women, Mullally has been sent to jail for violating
a court order protecting the officers' privacy.
* In a breaking
scandal of unpunished rapes of female cadets at the Air
Force Academy, it's been found that instead of investigating
and punishing the rapists, investigators turned on the
victims, investigated the victims for minor infractions,
and one way or another, driving the women out of the academy.
These are just
four current news stories in continuous flow of such stories
showing the high tolerance for violence against women perpetrators
within criminal justice ranks and the military.
In two multi
police agency studies conducted during the 1990's it was
found that police officers perpetrate at least double the
rate of family violence than does the population at large.
In both studies, 40% of police self reported that they had
used violence against a family member within the last year.
This one fact, by itself, means that when a woman calls
police for protection from a batterer there's a 40% chance
that it's a batterer who will responding to her call.
Not only is sexism
and racism institutionalized in law enforcement culture,
additional related characteristics of law enforcement culture
make it extremely difficult for anyone, either on the inside
or outside, to prompt the system to change. The paramilitary
structure, the rigid and biased recruitment and training
priorities, a pervasive us-them attitude toward any outsider,
the absence of external oversight, the strict codes of silence,
secrets, and cover-ups, the extreme insularity of law enforcement,
the honoring of exaggerated male ideals, and law enforcement's
immense powers to retaliate and make life hell for anyone
they wish to target; all these things make it extremely
difficult to root out the racism and sexism that pervade
justice system is so rigidly resistant to change that, more
than most any other social institution, it serves as an
impenetrable repository of virulent sexist and racist power
in our societies. This explains why, despite decades of
legislative efforts to end violence against women, so many
criminal justice officials remain openly hostile to applying
their exclusive powers on behalf of victims of rape and
domestic violence, especially on behalf of women of color.
that law enforcement can pick and choose which crimes it
will treat seriously and which it will ignore, combined
with the pervasive sexism and racism in law enforcement,
is a deadly combination for victims of violence against
women. Police and prosecutors throughout the nation are
fully aware that the Supreme Court has protected their discretion
to do nothing if they don't feel like it. They know they
can't be held liable for ignoring evidence, failing to write
reports, failing to do proper interviews, and rejecting
cases for prosecution.
That's why the
decades of public and legislative pressure, the proliferation
of shelters, pouring of funds into prevention campaigns,
the counseling programs, the support systems for victims,
have failed to make any significant dent in the numbers
of beatings, rapes, and homicides of women. The whole forward
momentum of all these efforts is snagged on criminal justice
system digging in powerful heels. It is impossible to stop
the violence against women if the system with the most power,
in fact, the system which holds the exclusive power to stop
the violence, withholds those powers from women.
Yes, there are
police and prosecutors who have moved forward. But the system
overall has not. It has responded to the public pressure
more by creating a camouflage of rhetoric, policies, and
committees behind which to hide their ongoing, systematic
denial of justice to women.
It's worth repeating
the point we made in the previous section. Until we establish
law enforcement obligation and accountability to provide
equal justice to women, we are doomed to depend entirely
on the whims of law enforcement - permeated as they are
with the dangerous racist and sexist tendencies to ignore
even the most violent violations of women's rights and liberty,
and to collaborate with the perpetrators.
Until we do,
you, the victim or victim advocate, are on your own to wrest
this justice from a dug-in criminal justice system with
whatever street tactics you can muster.
Perhaps the picture wouldn't be quite so bleak if it weren't
for a third obstacle - the lack of any effective societal
controls on criminal justice officials.
It is bad enough
that the highest law of the land gives law enforcement legal
carte blanche to turn their backs whenever they so choose.
But on top of that, unlike with the powers of other public
officials, there are virtually no other societal controls
on police and prosecutors. Societies everywhere have barely
begun to ask the question "Who polices the police?"
And in regard to the even greater powers wielded by district
attorneys, we haven't even begun to ask the question.
Even if a community
wants its law enforcement to deal seriously with violence
against women, as many do, there is virtually no institutional
mechanism through which the community can assert its will
or control over the criminal justice system, either on individual
cases or on the handling of cases overall. Legislation,
as we've already seen, doesn't work because implementation
of the laws depends on police and prosecutor discretion.
And criminal justice officials cannot be held legally accountable
for ignoring or failing to enforce the laws.
also attempted to assert their will with the formation of
committees, policies, and task forces on violence against
women. But these, too, are little more than wishful thinking
at best. They have no official powers. And sadly, the majority
of these bodies are all too often created to chump the public
into thinking that the issue is being taken seriously, to
soak up the dissent, and to issue a set of recommendations
which will never be carried out.
At least, when
criminal justice officials overstep their powers, for example
by use of excessive force on a suspect, or by overcharging
a case beyond the evidence, or by planting false evidence,
there are the defense attorneys with their own official
powers who provide some level of protection for defendant's
rights against the state's power. But when criminal justice
system officials withhold their powers, there is no check
on the denial of justice. And there is nowhere you can take
that complaint where it will be fairly investigated, adjudicated,
and remedied by an independent institution.
Police go to
great lengths to make the public believe that it is sufficient
to rely on police internal affairs for investigation of
police misconduct. But few in the public are fooled by the
idea that police policing themselves is any more reliable
than any other institution policing itself. Besides, there
is a long, ugly, and consistent history of police internal
affairs investigations being more a mechanism for packaging
police cover-ups than for protecting the public from police
abuse. It's increasingly recognized that there is a society-wide
need for independent mechanisms for investigation and control
In the last couple
decades, more and more communities around the country have
begun to establish police review boards where citizens can
theoretically bring their complaints about police misconduct.
But so far, only a few of these boards have been invested
with sufficient independence and with the subpoena and discipline
powers necessary to make a difference. Nor do we know of
any communities that have established review boards which
exercise power over the broader discretionary powers of
district attorneys. Nor, to our knowledge, have any of these
police review boards shown an interest in taking on questions
of law enforcement withholding of power as a crucial area
of misconduct. As with most police watchdogs, these boards
have narrowly limited their focus to police overstepping
rights groups which sometimes attempt to serve a function
of watchdogging criminal justice abuse have also been completely
remiss in speaking out against the systematic law enforcement
abuses suffered by women. It's worth repeating a point we
made before. Despite the scope of the injury and injustice
done to women when police and prosecutors withhold their
powers, we can't think of one civil rights or social justice
organization in the United States that is working to right
this particular wrong. Civil rights and social justice organizations
have failed to even acknowledge the oppression that occurs
when law enforcement systematically denies protection and
denies access to justice. This one-sided vision of civil
rights organizations is itself probably due to sexism, since
males are primarily the victims of police and prosecutors
overstepping their powers, while women and children are
the primary victims of police and prosecutors withholding
their powers. But the consequences to women are every bit
Some may point
to elections of district attorneys, sheriffs, and police
chiefs as a viable societal mechanism by which the public
can control its criminal justice officials. And certainly
such elections are better than nothing. The problem is that,
unlike the more interactive relationships between the public
and the legislative and executive arms of government, there
is very little public involvement in the day-to-day workings
of the criminal justice system. So when it comes to election
day, the public is unable to make truly educated choices
in elections of justice officials. Despite the fact that
criminal justice officials exercise more unchecked and more
undiluted power than other elected officials, many members
of the public don't even know the name of the district attorney
candidates. For the most part, elections of criminal justice
officials are black box elections that pivot on the public's
one shot impression of one or two high profile cases. Any
attempt to insert more complexities into the campaigns and
the public's eyes glaze over.
point to the city councils as a check on law enforcement,
and sometimes with the right mix of city council members
they can be. However, there is a long, sad, and undeniable
history showing that city councils have a deep vested interest
in covering for their police. The only time this bond is
broken and city councils pressure their police to make changes
is when cities have to write big checks to victims of police
abuse. And this doesn't occur with victims of rape and domestic
violence, of course, because when police ignore victims
of rape and domestic violence, the victims don't have a
general and viable legal means to hold police accountable.
At this point
in time, pretty much the only place victims can go to seek
remedy when they suffer abuse from the criminal justice
system is to you, the victim advocate. As a victim advocate
you don't have official powers in the criminal justice system.
But with your knowledge, your convictions, and a toolkit
of advocacy strategies which we'll outline later, you can
dramatically improve the criminal justice response for your
clients. The problem is that there is another obstacle in
the path to justice that affects you, the advocate, directly.
The criminal justice system has established increasingly tighter
controls over the funding and functioning of domestic violence
and rape crisis centers, and hence, over you, the advocate.
Throughout the US, this criminal justice system control of
advocates has succeeded in corralling crisis centers into
a narrow role of passive service providers while crushing
crisis centers' role as advocates and agents of social change.
the current violence against women movement has become increasingly
embedded in the criminal justice system. This creates a
profound and highly unethical conflict of interest for advocates,
and a dangerous void of advocacy for victims. Most advocates
in the US today are unable to act independently on behalf
of their clients in the criminal justice system, at exactly
that point at which vigorous advocacy for victims is most
It is bad enough
that rape and domestic violence victim advocates have no
official powers for advocating in a system which has more
unfettered power than any other government entity. At least
back in the early years of the violence against women movement,
advocates were independent agents. In the last ten years,
however, criminal justice officials have cunningly gotten
ever increasing control over advocates and their work.
Today, most core
funding for domestic violence and rape centers flows from
the federal government and is administered either by a state
criminal justice office or state health department. In order
to renew these grants every year, many states (including
California) require that the victim centers obtain the signatures
of their local law enforcement chiefs. This gives law enforcement
officials direct veto power over the core funding of victim
advocate centers. And whether you are aware of it or not,
law enforcement is using this power to control you one way
or the other.
for example, the State Office of Criminal Justice Planning
(OCJP) administers the violence against women funds. And
every year, as a condition of grant renewal, OCJP requires
all rape and domestic violence centers in the state to obtain
the signatures of every local police chief in the center's
area, the signature of the district attorney, and of other
law enforcement officials. Naturally, if law enforcement
officials feel that advocates are pushing them too hard
to deal more seriously with violence against women, all
law enforcement has to do is simply refuse to sign onto
the annual grant request, or threaten to refuse to sign.
This is not an
idle or theoretical threat. There are many cases around
the country where law enforcement has indeed withheld their
signatures from crisis center grant requests in order to
punish centers for their vigorous advocacy. What's much
more common, though, and in many ways more insidious, is
the quiet touch. It's carried out in a couple of ways. Law
enforcement officials may approach agency directors and
boards to lodge their protests about certain advocates.
Agency directors, knowing they need the official's signature,
simply reign in the advocate, fire the advocate, and/or
write policies into the agency rule books that prohibit
advocates from confronting law enforcement. Such repression
and firings of women's strongest advocates and ever more
restrictive internal good-girl policies have become commonplace
in rape and domestic violence centers around the country.
Nowadays, an ardent feminist doesn't even get hired in the
of counseling, social services, and accompaniment services
have won out over vigorous advocacy and social change. Feminist
analyses, activism, and strategies have been abandoned.
Advocacy has been whittled down to service providing. Social
change has become social work. And woe to the victim who
thinks she has a real advocate on her side who is free and
willing to stand up and fight for her rights.
law enforcement signatures for grant funds, by itself, puts
rape and domestic violence centers into a profound conflict
of interest to the great detriment of their clients. It's
a conflict of interest that has only worsened as the federal
violence against women moneys have increased.
But as detrimental as this veto power has been, there is
an even more crushing development that has been proliferating
in the last ten years. Rape crisis and domestic violence
centers across the country are increasingly entering into
highly stipulated joint contracts with law enforcement.
Many advocates now go to work and have their offices in
the police department or district attorney's office with
whom their agency is contracted. Women's advocates are increasingly
physically and financially embedded in law enforcement.
The fact that the advocate's paycheck is signed by the crisis
center is empty of independence since the flow of the paycheck
money is tightly bound by the terms of contracts with law
of contracts between law enforcement and women's advocacy
groups has for all intents and purposes spelled the end
of honest, effective advocacy. Advocates can no longer stand
up to law enforcement on the victim's behalf without the
advocate risking her job.
And in the last
few years it's gotten even worse. Many police agencies and
district attorney's offices around the country have now
established their own victim services units, and have cut
the women's centers out all together. In many jurisdictions,
law enforcement control over the violence against women's
movement is complete. In these jurisdictions, victims of
rape and domestic violence are being told they have advocates,
but in reality they are putting their lives in the hands
of pawns of the patriarchy.
come as any surprise that this has happened. It's consistent
with everything humans know about the exercise of power
through the ages. The criminal justice system so outsizes
the violence against women movement in power and money,
that, naturally, the system uses this power and money to
stop the feminists from making them do what they don't want
to do. The male dominated power structure, of which law
enforcement is the most potent and entrenched, always has
and always will use their unfair share of power and money
to repress any movement that threatens to put controls on
their use of that power and money.
What is so disheartening
is the extent to which women have so blindly walked into
the trap. One of the most urgent tasks on the to-do list
for ending violence against women, is the need for women's
advocates to reestablish their independence of the institutions
where we most need to fight for women's rights. As things
stand, in fact, it is highly unethical to tell a victim
that you're her advocate in the criminal justice process
when the criminal justice system in any way controls your
paycheck, your office space, or the policies of your place
Imagine you were
the victim of violence being ignored by police. How would
you feel if you found out the advocate you trusted to help
you was herself working for the cops?
control of law enforcement over rape and domestic violence
centers has strangled effective victim advocacy in a number
of ways. Here are just some of the effects that have taken
place in the last decade.
of Advocacy: "We let the police do their job and
we do our job," is the sorry refrain we hear on the
lips of far too many victim advocates who have swallowed
this repression hook, line, and sinker. "We want to
cooperate with law enforcement, not fight them," is
another version of this refrain. Indeed, cooperating with
law enforcement is admirable when the victim is being treated
properly. But when the victim is being denied her rights
to equal protection and justice, 'cooperating with law enforcement'
is a betrayal of the victim. It's serving as a pawn of the
patriarchy right at the point where the patriarchy most
powerfully perpetuates the violence against women.
says there's not enough evidence to prosecute the case.
Instead of assessing the validity of that prosecutor's statement,
the advocate turns to the victim and says, "I'm so
sorry, there's not enough evidence to prosecute. It's not
your fault. Let me help you with a safety plan. Have you
thought about leaving town?" One advocate who asked
for our advise as to how to help a victim who had been badly
mishandled by police, said it best. When we suggested she
might consider taking this particular case to the press,
the advocate responded without a blink, "Oh, I could
never do that. I have to remember who I work for."
Holding the woman's
hand while she gets shafted by the system is the antithesis
of advocacy. The patriarchy and all its violent perpetrators
and enforcers couldn't be happier than to see women's advocates
shrink into a counseling, hand-holding, social service mode.
Tragically, women who once fought ardently for women's rights
to justice now dutifully dedicate themselves to mopping
up the human debris left strewn in the patriarchy's wake.
This will not
lead to women's liberation from violence. In fact, this
erosion of advocacy into a nurse/doctor relationship with
law enforcement too often leads to dead women. In the course
of investigating the path leading up to domestic violence
homicides in our own and neighboring counties, we've frequently
exposed the law enforcement failures that paved the road
to the woman's murder. But it wasn't just law enforcement
failures we've found leading up to domestic violence homicides.
In many of these cases the murdered women had had advocates
along the way.
women had victim advocates who were present when the criminal
justice system was denying the women the protection and
justice they so desperately needed to save their lives.
And though our investigations revealed that advocates had
performed admirably as social workers, in helping the women
fill out restraining orders, in finding housing, obtaining
counseling, and providing other social services, we found
these advocates had done absolutely NOTHING to confront
or correct obvious failures of criminal justice system handling
of the victims' cases. These advocates bear responsibility.
In an earlier
section we recounted the travesty of the Philadelphia Police
dumping upwards of four hundred rape cases a year in the
late 1990's by filing those cases under a low priority code.
The question must be posed: How could this have possibly
gone on for so many years if advocates had been doing even
the most minimal oversight of law enforcement handling of
their rape cases? Certainly advocates in Philadelphia must
have been seeing a constant flow of rape victims who were
complaining about police mishandling of their cases. What
happened? Did they abandon these victims to the good-girl
altar of, "We do our job, and we let the police do
of advocacy is underway in most every rape and domestic
violence center in the country. So thoroughly has this erosion
of advocacy permeated the violence against women centers,
that the younger women coming onboard have little or no
concept of what advocacy is. They often respond to this
criticism by saying that indeed they do talk with police
or prosecutors about victim complaints, and maybe even talk
with the officer's boss. But mere verbal protesting is a
far cry from the full spectrum and time-honored tool kit
of activism and strategies that must be used to win women's
rights. The sad fact is, women's centers no longer teach
such tactics, and they certainly don't allow them to be
implemented. With rare exceptions, it's no longer about
women's lives; it's about keeping the grant money flowing.
Along with the repression of advocacy, the violence against
women movement, particularly in urban areas, has also become
increasingly bureaucratized. Victims rarely anymore have
one victim advocate who oversees her whole case. This is
especially true in the domestic violence arena. A victim
may start with a telephone advocate, then move on to a shelter
advocate, a restraining order advocate, a police advocate,
a district attorney/court advocate, a victim assistance
advocate and more.
of advocacy shatters the possibility of
victim-centered advocacy and leads to task-oriented services.
In addition, victims end up completely confused about who's
who on their case - and, for that matter, so do the advocates.
What this bureaucratizing does accomplish is heightened
control of the system over both victims and advocates, and
heightened assurance that the system can continue to dispose
of these cases as it wishes without any annoying backtalk
non-threatening analysis: There have never been more
studies, analysis, task forces, committees, death review
teams, discussions, and recommendations on violence against
women than at present. This barrage of attention, by itself,
has done much to lull the populace into complacency that
rape and domestic violence are being adequately dealt with.
And with few exceptions, lulling the populace - not stopping
violence against women - is often their first order of business.
Few question how much of this frenzy of activity is truly
targeted at ending violence against women, and how much
is dog and pony show designed to dazzle the eye, drown out
the rebellion, and draw more funds.
Look more closely
at all these studies, theories, and committees. Virtually
all of it avoids working with a gender-based, feminist analysis
like the plague. This doesn't necessarily mean that they
aren't touching on truths about violence against women.
But those truths are often so peripheral to the core dynamics
of violence against women as to be irrelevant to ending
the violence. By actively ignoring discussion, research,
and focus on the sexism that drives violence against women
we are avoiding an analysis that will lead to digging out
the root cause.
Suppose, as with
domestic violence, the people who claimed to want to stop
the lynching of blacks did study after study examining the
differences between those whites who lynch and those whites
who don't lynch. And suppose, like domestic violence researchers,
they focused their examination on emotional variables, alcohol
use, or family histories. In all likelihood, such studies
would reveal that, indeed, whites who lynched have more
emotional problems, use more alcohol, and have more traumatic
family histories than whites who don't lynch. You could
even do studies that would spotlight cases to show that,
are you ready, 'black people lynch too', because, in fact,
black people did, on occasion, lynch whites.
In fact, you
could do these red-herring studies ad nauseam, just as a
mountain of red-herring studies are being done on violence
against women. Not only that, but the findings would in
all likelihood be true. The problem, of course, is that
the findings would also to a great degree be irrelevant,
a great decoy to divert the eye from looking squarely at
the societal racism that drove lynching, and the institutionalized
racism that motivated southern law enforcement to fold their
arms and look the other way.
There is the
old joke. A person is looking for their car keys in their
front yard. A neighbor asks, "Where did you lose your
keys?" The person responds, "I lost them in the
back yard." So the neighbor asks the obvious, "But
if you lost your keys in the back yard, why are you looking
for them in the front yard?" Says the person who lost
their keys, "Because there's more light in the front
yard." Substitute money for light, and it should be
clear why violence against women research is looking everywhere
but at sexism to describe the dynamics of the violence against
The Invisibility of Law Enforcement Mishandling of Violence
Against Women - invisible even to the official's direct supervisors.
denial of protection and justice to women is so invisible
that unless specifically looked for through careful victim
interviews and examination of documents, even an official's
direct supervisor's will be unlikely to see it. Officer
mishandling of violence against women is usually invisible
to the public, invisible to an untrained advocate, often
invisible to the victim herself and, most disturbing, invisible
even to the officer's supervisor who reads the officer's
results from a number of factors. To begin with, it results
from the very simple fact that inaction is intrinsically
invisible. Inaction doesn't leave tracks. And one form of
inaction or another is the most common way law enforcement
mishandles violence against women.
even on the occasions that a victim recognizes her case
is being mishandled, victims rarely protest on their own
since they generally feel their safety has been severely
compromised by the inadequate law enforcement response.
Instead of protesting, victims usually withdraw from the
criminal case altogether.
also results from ever more sophisticated camouflage and
slight-of-hand used by the system to hide their incautious.
And invisibility is further exacerbated by advocates' increasing
unwillingness to confront the system, or even to watchdog
the criminal justice case.
Suppose an officer's
report leaves out the fact that the suspect threatened to
put a bullet between the victim's eyes and dump her body
where nobody would find it. The officer's supervisor would
have no way of knowing that a) the threat occurred, that
b) the officer never bothered to ask the victim about threats,
or that c) the victim did tell the officer about this threat
and the officer didn't bother to write it down. Inaction
is inherently invisible.
If the officer's
report doesn't record injuries, doesn't note the existence
of witnesses, doesn't take a full victim statement, doesn't
note the broken phone cord, doesn't carry out any of the
fundamental steps of domestic violence investigation, as
gross as these official violations of women's rights are,
they would be invisible even to the officer's supervisor.
Even if an officer's
immediate supervisor takes crimes of violence against women
seriously, and carefully reads the reports to assure that
the officers in their command act properly, officer mishandling
of domestic violence and rape is often impossible to detect
without the supervisor going back and talking directly with
the victim. Or, unless you, the advocate, do the same, and
bring this mishandling to the supervisor's attention.
is a case example from our current case load to show
you just how invisible even the most blatant officer misconduct
can be to their own supervisors. In fact, this one case
provides three distinct examples by three different officials
involved in the case.
A mother calls
911 pleading with police to please hurry because her husband
is beating her daughter "real ugly". The 13-year-old
daughter has bruises over the length of her arms and her
back, a bleeding and swollen cut lip, and a chipped tooth.
Girl and the mother show all of these injuries to the officer.
The girl had
been playing chess in her bedroom with a 19-year-old male
friend. The girl told the officer that when her father barged
into her room enraged at her having a boy in her room, he
began punching her around the room and beating the girl's
male friend. The girl's male friend corroborated the story
to the officer. The girl also told the officer that her
mother had given her permission to play chess in her room
with the male friend. And the mother confirmed this to the
The father, however,
told the officer the daughter's friend was on probation
for statutory rape. This wasn't true, and it was also something
the officer could have easily checked. And even if it were
true, it wouldn't justify what the officer did next. The
officer turned to the father, laughing and joking, and said,
"If it had been my daughter, I would have done the
When the officer
wrote the report, there wasn't a word in the report about
the girl's injuries. And only one sentence that said the
father "slapped" the girl. In fact, the report
had nothing to do with the father. The officer wrote up
the report as a violation of probation report against the
girl's male friend. This officer went beyond misconduct
to write a false police report.
Yet, the responding
officer's supervisor, no matter how vigilant, would have
no way of being alerted to his officer's crime simply by
reviewing the report. At best, the supervisor would have
noted that the male suspect was not, in fact, on probation,
and the supervisor likely would have chalked the whole thing
up to a father having been misinformed about the probation.
Even if the supervising officer had would have reviewed
the 911 tape or the CAD report, it's doubtful a supervising
officer would have caught the misconduct, because that supervising
officer would just assume that the mother's plea had to
do with the girl being "slapped" as the officer
had written in the report.
police department or district attorney office that is not
routinely surveying victims and, at the same time, claims
they are taking violence against women seriously, is engaging
in utter fantasy and fabrication. Police departments and
district attorney's offices have not a clue how their officers
are responding to rape and domestic violence - unless they
have an ongoing system of quality control based on regular
surveys of the victims themselves.
the victim advocate are in the bird's eye seat. But even
advocates will miss officer misconduct unless you also routinely
question victims directly about law enforcement handling
of their case, and check the relevant documents and reports.
And a final, special salute to your local County District
Attorney, the most formidable obstacle of all!
social justice groups, and civil rights groups that aim
to correct abuses in the criminal justice system usually
do so by focusing on the police, while completely ignoring
the District Attorney. This is a monumental and puzzling
mistake, since the District Attorney is the most powerful
law enforcement official in your community.
Attorney sits at the apex of the criminal justice system
and has unilateral, absolute, and unchecked power to reject
cases at will, or to reject whole categories of cases, no
matter what the evidence. And since every case generated
in the county passes through the district attorney's office,
the district attorney exerts absolute, all encompassing
control over which laws are enforced in your community,
and which laws are not.
district attorney power to single-handily nullify law at
will is the one great reservoir of institutionalized governmental
tyranny left in the US. It's a tyranny exercised outside
the rule of law, and solely according to the arbitrary,
individual whim of the district attorney.
violence against women and children are the primary and
systematic victims of this tyranny. Because these are uniformly
the cases district attorneys least like to do.
The awesome reach
of power exercised by district attorneys stems from a number
* The district
attorney sits at the apex of the criminal justice system.
With few exceptions, all criminal cases in a district
pass through the district attorney's hands. The district
attorney, and only the district attorney, decides which
laws will be enforced in a community and which laws will
not be enforced simply by deciding which crimes will be
filed for prosecution and which crimes will not. The district
attorney is the sole gatekeeper of which victims get justice
and which victims do not.
There is no appeal
process or formal remedy if the district attorney does not
prosecute a crime, or even a whole crime category, no matter
how much evidence that the crimes occurred. And there is
no alternative means of having a crime prosecuted if the
district attorney declines to prosecute. Theoretically the
state's attorney general can override the district attorney,
but that is so extremely rare as to be not worth the mention.
district attorney power to reject cases at will and by so
doing decide which laws will be enforced is called absolute
prosecutorial discretion. The district attorney is the criminal
justice system gatekeeper. If the district attorney won't
file on a case, that's the end of the case.
It's bad enough
if some or even most police officers in a community ignore
violence against women. At least when a police officer ignores
or mishandles a case of violence against women, the victim
has the option of seeking another officer to take the report,
or of going to the district attorney. But if the district
attorney cannot be pushed to file on a case, the book is
closed. And if the district attorney routinely refuses to
file, or refuses to file appropriately, on most rape and
domestic violence cases, it's as if the laws against raping
and beating women don't exist. And there is nothing any
other power can do about it. The district attorney power
to nullify law is unchecked.
This isn't an
abstract exercise. The wholesale and discriminatory dumping
of viable violence against women cases is easy to illustrate
in those counties where the district attorney assigns his
or her deputies to specific crime categories. In our county,
for example, only 6 out of our total 48 deputy district
attorneys are assigned to cover rape and domestic violence.
Since at least 25% of police calls are domestic violence
related - not counting rape - it's clear on the face of
it that victims of violence against women in our county
are being denied equal protection of the law.
the district attorney sits at the apex of law enforcement
power, the district attorney also controls to a very great
extent which crimes police investigate to begin with.
Clearly, if the district attorney doesn't file on
most rape cases, even the most diligent police officers
aren't going to waste their time putting in all the work
needed to investigate rape cases. Similarly, if the district
attorney decides to go aggressively after drug crimes,
then, naturally, police are going to go gung-ho on drug
crimes. It's human nature. Why put in the work if you
know ahead of time the district attorney's just going
to dump it in the garbage.
* Not only
does the district attorney exert formidable control over
which crimes police investigate, the district attorney
completely controls which cases judges hear in their courtrooms.
After all, if the district attorney rejects 90% of rape
cases, judges will end up thinking there's not much rape
happening in their town. Cases rejected by a district
attorney simply never make it into the courtroom. As such,
judges have no idea which crimes or which crime categories
are being ignored in their community. Any judges view
of crime patterns in their community is determined wholly
by the crimes the district attorney allows the judges
For the same
reason, probation officers, corrections officers, defense
attorneys, court clerks, and all the vast array of criminal
justice officials, aside from police, see only those crimes
which the district attorney allows them to see. None of
these officials come into play until the district attorney
files on a case. None of them see the pattern of crimes
the district attorney throws into the garbage. If the district
attorney doesn't file on most rape cases, judges, probation
officers, defense attorneys, county statisticians, etc.,
will all tell you in all sincerity, rape is not a problem.
It's worth repeating.
The district attorney single-handily serves as the sole
gatekeeper of which crimes are allowed into the system and
which crimes are not allowed into the system, which laws
are enforced and which are not, which victims are allowed
justice and which are not.
* The abuses
of district attorney power that occur when district attorneys
overstep their powers are often visible to the public.
The abuses of district attorney power that occur when
the district attorney withholds power are invisible.
overstep their powers by carrying out vindictive prosecutions,
or by using false evidence, or by withholding exculpatory
evidence, these abuses frequently become exposed in the
courtroom since defense attorneys are present to serve as
official watchdogs on exactly those kinds of abuses. But
when prosecutors abuse power by denying one group or another
access to justice, those abuses are completely invisible
to the courts because those cases, of course, never even
make it into the courts.
The swath of
invisibility on this aspect of district attorney power was
brought home to me when a friend visited from Chicago. She
had just retired from a life's career as a public defender
in the Cook County (Chicago) Public Defender's Office. She
had spent decades being vigilant to district attorney overaggressive
prosecution of defendants. But, she said, in all those years,
it had never occurred to her that there was another whole
constellation of prosecutorial abuses of power going on
behind the scenes through the pattern of crimes the district
attorney refused to prosecute. After all, those cases never
came before her eyes.
* Once a
district attorney is elected, there is no check on the
immense powers wielded by district attorneys in deciding
which crimes to take seriously and which to ignore.
This is unique among public powers in the United States,
since all other governmental powers are subject to checks
and balances. When a city council member is elected, for
example, the voting power of that city council member
is diluted and checked by the voting power of other city
council members. By contrast, once a district attorney
is elected, there is no other official who can vote against
a district attorney's decisions to reject cases. There
is no other official whom the district attorney must consult
in making those decisions. Nor can judges, police chiefs,
the president of the United States, nor any one alter
the decisions made by the district attorney to reject
a case, or reject a whole category of cases.
attorney's power to reject cases is absolute, unchecked,
and undiluted by any other official power. This enormous
power is exercised completely on the arbitrary whim of the
individual district attorney. And it's on the whim of that
one individual that women's access to protection and justice
* Even those
civil rights groups that focus on criminal justice system
abuses of power, for reasons that puzzle, neglect to aim
their sights on the district attorney. A prime example
of this can be seen in the Los Angeles' handling of the
ramparts scandal. Ramparts was a specialized enforcement
of the Los Angeles Police Department which was found to
be routinely planting false evidence, writing false reports,
making false arrests, stealing from citizens, murders,
massive cover-ups of these deeds by police command staff,
all resulting in the wrongful convictions of at least
a hundred persons.
community leaders turned to the Los Angeles District Attorney's
Office to investigate and remedy the problem. But isn't
it obvious on the face of it that the mountain of abuses
committed by the ramparts police unit could not have gone
on and led to convictions without the district attorney's
office being knowing and involved up to their neck?
Of all the increasing
number of municipalities that have formed police review
boards in an attempt to remedy police abuse of power, how
is it that not one has targeted the even greater abuses
of power perpetrated by district attorneys?
Above all, in
order to end the reign of violence against women, women
need protection and justice. And in order to secure protection
and justice, women cannot afford to ignore the one individual
who sits at the apex of the criminal justice system. Women
must establish controls over district attorney discretion.
Women's protection and justice from violence cannot be left
to the arbitrary whim of one person. And that's exactly
the situation we're in now.