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October 31, 2011


"We will not be satisfied until justice rolls down like waters..."--Martin Luther King, Jr.

At our most recent Move to End Violence convening, each of the cohort members engaged in an exercise in which we pared our political goals down to a one-word mantra, which we chanted and shouted, incorporated into the Tai Chi practice, and posted on the wall. Mine was “justice”—for me, both a goad and an aspiration. As I explained in my last blog, the denial of justice to rape victims in the mid 70’s catapulted me into this movement to end violence against girls and women and now more than three decades of feminist activism.

The denial of justice to another, perhaps unlikely, victim in the mid 80’s propelled me into law school.  In 1983 Vanessa Williams was crowned the first black Miss America. She received death threats and hate mail. Ten months later, an unscrupulous photographer began hawking to pornographers the nude, suggestive photographs he had persuaded her to pose for several years earlier. She had never signed a release for them and believed that they had been destroyed. Over her objections, Penthouse bought and published them, and she was forced to give up her crown. I was part of a group of feminists outraged at the humiliation of Vanessa Williams by the diverse group of men who set her up and sold her out--the Miss America pageant officials, the photographer who seduced her into posing, and Bob Guccione, who reaped a $14 million windfall from her exploitation. I was enraged that she had no legal recourse. I felt that I needed tools to change the system that left her, and so many women like her, at the mercy of predators. It came to me in a flash that maybe a law degree could help me make a difference. A year later I was in law school.

I wish I could say that my law degree accomplished what I had hoped for.

But what in fact it did was expose me to more forms of injustice and to a broader spectrum of victims. As a young Legal Aid lawyer representing criminal defendants in the South Bronx from 1988 to 1994, the height of New York City’s crack epidemic and Mayor Giuliani’s “quality of life” crackdown, I encountered cops, prosecutors, and judges who not infrequently abused their power over the mostly poor and minority community residents I served.  As I entered “the pens” each night to represent my largely African American and Latin clients, it was starkly evident that that criminal justice system was pervaded with race and class bias. To me the most egregious example of the system’s injustice, however, was its treatment of women arrested for prostitution. Disheveled, homeless, and often battered—victims by anyone’s definition—they were treated like garbage, even by my fellow Legal Aid lawyers, who referred to them contemptuously as “the pros cases,” often refused to accord them the dignity of an interview, and frequently arraigned them by lining them before the court like cattle at auction.

When I joined Sanctuary for Families in 1994, I expected a better response to my battered women clients from the justice system. I was sorely disappointed—dismayed by how dismissively and even hostilely they were often treated by law enforcement. When abused women called 911, the best response we could hope for then was an instruction to the abuser to “take a walk around the block.” Abused women were lambasted for wasting the officers’ time and too often bore witness to cops who bonded with their assailants. “Maybe if I beat my wife she’d act right too,” was one officer’s not atypical response.

All this began to change when New York City adopted a mandatory arrest policy and New York State followed suit. The arrest rates of batterers multiplied. Finally battered women began to be treated like other crime victims. I was amazed, though, at how swiftly their abusers tried to game the system, claiming the mantle of victim, a practice partially thwarted when New York State adopted a primary aggressor law.  My sister battered women’s advocates and I commenced on a two steps forward one step back journey to strengthen the justice system’s response to abused women that has continued to the present.

One case I handled almost a decade ago signaled to me the magnitude of the change. One of my clients, a young immigrant woman from Bangladesh, hid under the stairwell of her building after her husband, who had threatened to have her institutionalized, called the police. With the help of his family, he had effectively enslaved her, forcing her both to take over the housework of her large in-law household and to hand over her weekly earnings at a local coffee shop. When she resisted, she was beaten. The officer who found her cowering in terror saw bruises on her arms, marched upstairs, and arrested her husband. Increasingly we began to witness a shift in the system’s response to abused women.

The case of IMF chief Dominick Strauss-Kahn isn’t a domestic violence case, but it’s a barometer both of how far we’ve come and how far we need to go. The police response to the reported sexual assault on May 14th was stunningly swift and decisive. (Notably, it came on the heels of a meeting between Police Commissioner Ray Kelly and sexual assault providers highly critical of police response.) After the housekeeper at the Sofitel Hotel, an immigrant asylee from Guinea, reported that Strauss-Kahn had tried to rape her when she entered his room to clean it, the police deftly lured him off the airplane he had boarded and placed him in custody. Concerned that, like Roman Polanski, he would flee to the safety of his native France, they swiftly indicted him.  For once, the prosecutor accepted as wholly credible the word of the complainant, an account substantiated by “the DNA evidence” (a euphemism if there ever was one!) recovered on the front of her uniform, her undergarments, and the hotel room floor where the attack reportedly took place.

Ironically, it was the victim’s own lawyer who set in motion the chain of events that upended the prosecution and subverted justice when he reported to prosecutors that she had made material misrepresentations in her asylum case seven years earlier. (Sadly, had she received effective representation, she could have told the truth—that she had suffered FGM and her daughter was at risk—and likely prevailed in that case.) The prosecutors stepped up the investigation of their complainant and learned that she had a relationship with a man who had trafficked in counterfeit goods and was now in immigration detention.  A taped conversation between the victim and her friend contained statements the defense seized on to insinuate she had a financial motive in alleging a sexual assault. When the prosecutors confronted her with the damaging evidence, the victim broke down.  Lacking cultural competence and expertise in trauma, they were bewildered by her actions. Her civil attorney began to denounce the prosecutors and refused to let his client meet with them. Ginned up by leaks from the DA’s office and scurrilous statements from DSK’s lawyers, the tabloid media started to savage the victim’s reputation. The New York Post called her a “hooker” on its cover.  Apparently hoping to turn public opinion in favor of his client, the victim’s lawyer invited the media to interview her. Inevitably, her statements contradicted her grand jury testimony, further damaging her credibility. It was the perfect criminal justice storm, one that left advocates, myself included, stunned and outraged.

How, after decades of feminist advocacy, could a sexual assault survivor courageous enough to confront her assailant across a vast gulf of social, political, and economic power be so thoroughly abandoned by our criminal justice system? How could it be that a perpetrator, whose criminal acts were born out by the kind of smoking gun evidence rarely found in sexual assault cases, waltz out of jail and back into a life of unimaginable luxury with nothing worse than a sullied public image. Why in this case did justice, so tantalizingly close at the onset, vanish in a flash?

Our justice system, when it is working in accord with its constitutional mandates, is protective of defendants. Success for prosecutors requires proof beyond a reasonable doubt—a high bar to reach in any case. But when the complainant is a woman, the defendant a man, and the crime one of sexual violence, the bar is set even higher—not because of legal requirements but because of deep-seated gender bias. The ideas that women are sexually voracious but lie about their appetites, say no when they mean yes, readily trade sex for money, and make false accusations of rape to retaliate—pervade popular consciousness. As a result, the credibility of women in rape cases is easily undermined by defense counsel who pander to sexist stereotypes—the “gold-digging hooker,” “the conniving bitch,” “the woman scorned,” a tactic DSK’s attorneys, abetted by the tabloid media, exploited to full advantage.

The obstacles to justice confronted by Nafissatou Diallo loomed even larger because of her marginalized status as an immigrant woman with no education from a desperately poor and deeply patriarchal and authoritarian society, now living in the poorest urban county in the country. Is it any surprise that she would welcome unquestioningly offers of assistance in the close to impossible task of survival, whether they be lessons from a notorio on how to win an asylum case or support from a solicitous boyfriend engaged in a mysterious business. Tragically, it is those victims most vulnerable to predators and thus most desperately in need of the protection of our justice system who are least likely to qualify for it. The sobering truth is that credibility is far more accessible to the privileged than the oppressed.

So what do we do, those of us engaged in the struggle for justice for those least like likely to receive it? Do we conclude that it is futile, give up the effort to achieve it, and pursue something less than our goal?  One academic has proposed stepping away from the justice system in cases of domestic violence and replacing police and courts with “caring circles” in which victim and perpetrator share feelings and responsibility. Others have stated that there has been an “overreliance on the criminal justice system” and suggested that advocates move away from the work of the last three decades to improve the justice system’s response to gender violence. I confess that I find this perplexing. Does this mean that victims should not pursue protection from police, prosecutors, and the courts? But that would leave them at the mercy of their abusers whose violence escalates and too often is lethal. The critical importance of a rapid criminal justice response hit home for me as never before Memorial Day 2010 when my beloved client Massielle Abreu was shot to death in close proximity to her three small children. The police response was swift if seconds too late to save her life.

Victims of gender violence desperately need a strong and sensitive justice system because the violence of their abusers is curtailed only by real consequences —whether they take the form of arrest, jail, a final restraining order, or a criminal conviction. We see this clearly when we pursue asylum for immigrant battered women like Rodi Alverado Pena fleeing abusive partners in countries like her native Guatemala that provide no meaningful criminal justice protection to victims of domestic violence. We understand in this context that the denial of criminal justice protection to abused women is a severe manifestation of gender oppression and must be remedied. The same principal applies equally here in the United States.

Does “overreliance on the criminal justice system” mean that advocates should step away from or reduce our efforts to strengthen and sensitize the criminal justice system’s response to violence against women and focus instead on community organizing? This too seems to me ill conceived. Community organizing is a critical component of our movement, one that is essential to shifting social norms that tolerate gender violence and blame women for abuse. It cannot, however, be expected to offer the swift and immediate response that protects victims’ safety and saves lives. Nor does it create the kind of accountability that, at least in the short run, stops perpetrators in their tracks. The truth is that community organizing and advocacy to change systems, especially our criminal justice system, are both utterly essential to the work of our movement. Neither will succeed by itself in achieving our ultimate goal of ending violence against women.  And since most criminal justice responders are local, community organizing is one of the most powerful ways to hold them accountable to the victimized and oppressed.

No area of the criminal justice system is more in need of fundamental change than its response to prostitution and trafficking. Currently, in spite of progressive new legislation setting strong criminal penalties for human traffickers and providing resources for some victims, the criminal justice system’s response has been to continue to revictimize victims by arresting prostituted people while ignoring the real perpetrators, traffickers and prostitution buyers, who create the demand that drives the sex trafficking industry. Not only are criminal justice providers intensifying the harm through misguided policies but too often they are directly perpetrating harm through acts of corruption—buying sex, sexually assaulting prostituted people, and taking protection money from traffickers.

The truth is that the movement to end gender violence has no choice but to fiercely engage with our criminal justice system to demand that it protect victims, hold oppressors accountable, and empower survivors to right the wrongs they have sustained. This fierce engagement requires concerted social justice activism of every stripe—from community organizing to class action litigation, from protests and pickets to lobbying and editorial writing, from petition drives to civil disobedience. The alternative--to move away from advocacy to hold the criminal justice system accountable to survivors of gender violence--is to cede its control to the most reactionary, gender biased forces in our society.

Art by lizar_tistry