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VAWA Critique
In Which a Little-Known Legal Brief Plows into Hallowed Terrain

Ever since the U.S. Violence Against Women Act (VAWA) was passed in 1994, women's advocates have rallied again and again to assure that VAWA stays authorized and funded. The steady torrent of threats against the act from antagonist men's groups has left advocates with little inclination to question whether VAWA is truly delivering what's needed to end the violence and secure justice for women. But a little-disseminated legal brief we came across recently rips along the fault lines and suggests that giving VAWA a thorough critique may be one of the most important steps we should be taking to advance the struggle.

The legal brief, signed by a dozen domestic violence scholars from around the country and submitted in 2007 to the Inter-American Human Rights Commission, emphatically makes the case that VAWA not only is failing to protect women, but that this failure is rooted in fundamental flaws in VAWA's structure and administration. "VAWA is a limited remedy," the document states, "That fails to protect women or to discharge the United State's obligations under international law." The U.S. obligations under a number of human rights treaties require that the U.S. (and other countries) prevent, investigate, prosecute, and punish gender based violence.

In summarizing their analysis, the brief states, "VAWA fails to accomplish four crucial things: 1) It does not provide any remedy when abuser's or police officer's violate victims' rights, 2) it does not require participation of all states or monitor their progress, 3) it does not fully or adequately fund all the services that are needed, 4) it does not require states to pass or strengthen legislation around civil protective orders or the housing rights of domestic violence victims."

(The full text of the brief can be seen here: http://www.law.columbia.edu/null/download?

VAWA: "primarily a source of grants" which has not reduced domestic violence

The brief goes on to characterize VAWA as "primarily a source of grants" with non-binding terms, voluntary participation, unmonitored compliance, and which mandates nothing. And the funding is paltry. According to the brief, in 2007, the median total of VAWA grants to individual states was 4.5 million dollars. That's less than the cost of one wing of a fighter jet allotted per state to combat violence against women.

If the core of this brief is accurate, despite the services VAWA has provided to tens of thousands of women, the message VAWA delivers to law enforcement and other public officials throughout America is disastrous. 'You can prevent, investigate, and punish violence against women - if you feel like it. But if you'd rather not, don't worry about it. VAWA doesn't mandate that you do anything. And if women are upset by that, rest assured, VAWA and the courts have also made sure there's not a darn thing women can do about it to hold you to account.'

Most troubling of all, the brief finds that in the time from VAWA's passage in 1994 to 2007 when the brief was filed, VAWA has not reduced domestic violence in the U.S., despite the U.S. government's claims to the contrary. As stated in the brief, "Since the passage of VAWA, domestic violence rates have not been reduced in proportion to other violent crimes."

Jessica Gonzales vs. the United States of America

This unflinching legal brief on VAWA was submitted to the International Human Rights Comission in support of the case of Jessica Ruth Gonzales vs. the United States of America. Gonzales had appealed to the international comission after the U.S. Supreme Court in 2005 denied Gonzales' right to sue Castle Rock, Colorado police for refusing to enforce violations of her restraining order by her abusive husband.

A day after police refused to respond to Gonzales' pleas for help, Gonzales' three children were found dead in the trunk of her husband's car. At the time, Colorado had a state law mandating that police make an arrest on domestic violence restraining order violations. Nonetheless, the US Supreme Court ruled that police have no obligation to protect, and that police discretion to handle these crimes as they see fit trumps state law. It's a devastating decision that has left Gonzales and all American women without remedy when law enforcement refuses to enforce violence against women laws.

Gonzales' historic appeal to the international comission is still undecided, and you can follow its progress here: http://www.law.columbia.edu/human-rights-institute/initiatives/interamerican/gonzales . It's the analysis of VAWA's failures, and the many questions this raises, that we focus on here.

Putting 'Move' Back in the Movement

The 1994 passage of the Violence Against Women Act was a landmark advance in the struggle to combat violence against women. It was the first time our country addressed the problem on a nationwide scale.

But that was a very long 18 years ago. To be sure, VAWA legislation has since been tweaked with some positive, albeit minor, changes. But the profound deficits of VAWA laid out in this brief remain uncorrected. VAWA still does not mandate that any official anywhere do anything to combat violence against women. VAWA does not provide any remedy for holding unresponsive officials to account, and as claimed by both this brief and by more recent analyses, VAWA has not reduced violence against women.

And perhaps worse, these fundamental flaws in VAWA are not even a matter of discussion, debate, or protest among frontline women's advocates. It's critical for progress in ending violence against women that that discussion begin.

There is one thing that VAWA does mandate that may explain in part why this picture is mired in such stagnation.

The Tie that Binds

VAWA requires that shelters and rape crisis centers that receive VAWA funding must demonstrate their cooperation with their local law enforcement agencies.

Individual states that administer the VAWA grants have implemented this requirement in various ways. But typically the shelters and crisis centers seeking VAWA grants must obtain signed operational agreements with their local law enforcement agencies. This has given law enforcement veto power over the survival of the violence against women centers, a controlling power law enforcement has not hesitated to use.

Sometimes quietly getting crisis center administrators to reign in or eliminate 'aggressive' advocates, or at other times abruptly refusing to sign onto the agreements altogether, police and prosecutors, with VAWA's blessing and instrumentation, have been able to mold the violence against movement to its liking. The once vibrant, activist violence-against-women movement has been morphed down to the muted task of providing services and to muting women's voices. It's an erosion over the last couple decades that has been noted by many observers of the movement, and VAWA may be one of the reasons why.

Brainstorming and Breakthrough

It really shouldn't come as any surprise that VAWA doesn't mandate that officials must act to prevent, investigate, or punish violence against women. If it had, if VAWA even mandated police training, for example, or mandated that police and prosecutors take action, or if even more boldly, VAWA created a remedy by which women could sue law enforcement for failures to act, it's not likely VAWA would have passed. The patriarchy isn't going to deliver to women the seeds of its demise.

It's also possible that VAWA's framers completely underestimated the patriarchal forces promoting gender based violence, and truly believed that officials would voluntarily comply.

What matters, is that VAWA now be understood as merely a first step, and not a panacea. From that understanding, three things seem essential:

  1. Open the debate and brainstorm solutions! Whether it's ultimately decided that VAWA itself should be fixed, or that new legislation should be put in place while leaving VAWA as a funding source, one thing seems clear. The movement will remain stagnant, and the rates of violence remain high, unless we actively seek solutions to VAWA's fundamental flaws.

  2. Create advocacy that is independent of law enforcement controls. As things stand now, women's advocates are the only force standing between victims whose rights to protection and justice are too often violated, and the officials who are ignoring them. For advocates' funding to be tied to law enforcement approval is an impossible conflict of interest. Eliminating the VAWA 'cooperation' requirement from grants may be one solution. Creating independent advocacy centers may be another.

  3. Bridge the gap between violence against women scholars and frontline advocates. It is tragic that this legal brief and other scholarly analyses of violence against women stays so hermetically sealed in the ivory tower, and that frontline experiences and frustrations don't feed back up the mill. We on the frontline don't have time to pour through the complexities of a legislative behemoth like VAWA. And the scholars don't seem to understand the urgency of broadcasting their findings so solutions can be found.

Women have pinned their hopes on VAWA for far too long. It's time we join forces, brainstorm solutions, and put the 'move' back into the movement.


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