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Part I

Mapping the Obstacles to Criminal Justice for Women

Six Principal Obstacles to Equal Protection and Justice for Women

There are 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.

3. Society's 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 reports.

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:

1. 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 the child.

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.

Clearly DeShaney 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.

Supreme Court 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? )

Clearly this 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 this.)

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.

As expected, 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 judicial district.

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)

The unbelievable 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.

2. 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.

The discretionary 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 out. Right?

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.

The criminal 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 behalf.

The pathetically 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.

Remember, also, 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 the system.

The criminal 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.

This combination, 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.

3. 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.

Communities have 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 of police.

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 their powers.

Community civil 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 as oppressive.

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.

Others would 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.

4. 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.

In short, 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 needed.

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.

In California, 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 first place.

The predominance 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.

Dependence on 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 enforcement.

This proliferation 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.

It shouldn't 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 of work.

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?

The increased 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.

The Repression 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.

The prosecutor 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.

The murdered 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 their job?"

Similar abdication 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.

Bureaucratization: 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.

This fragmentation 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 from women.

Backwater, 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 women.

5. The Invisibility of Law Enforcement Mishandling of Violence Against Women - invisible even to the official's direct supervisors.

Law enforcement 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 report.

This invisibility 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.

In addition, 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.

Invisibility 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.

The following 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 officer.

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 same thing."

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.

Clearly, any 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.

Clearly, you 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.

6. And a final, special salute to your local County District Attorney, the most formidable obstacle of all!

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 a monumental and puzzling mistake, since the District Attorney is the most powerful law enforcement official in your community.

The District 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.

This unchecked 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.

Victims of 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 of sources:

* 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.

This unilateral 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.

* Because 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 to see.

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.

When prosecutors 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.

The district 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 depends.

* 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.

Astoundingly, 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.


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


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