Document Type
Article
Publication Date
2021
Publication
University of California Davis Law Review
Volume
55
Abbreviation
U.C. Davis L. Rev.
First Page
801
Abstract
Part I of this Article examines gender violence committed by the State. It does so within the context of recent initiatives to address abusive police practices to demonstrate that issues of gender violence have been omitted from reform efforts. To that end, it provides a critical review of anti-carceral campaigns, including recent challenges to “stop-andfrisk” practices. Litigation addressing abusive police conduct has failed to identify stop-and-frisk as a particular form of gender violence. Similarly, community campaigns to oversee police body-worn camera policies have overlooked the differential ways in which survivors of gender violence are impacted by these police devices. This Part demonstrates how issues of gender violence committed by state actors have been omitted from and thus have weakened anti-carceral efforts generally.
Part II examines the persisting exclusion of gender violence from criminal justice reform initiatives in the context of the State’s response to gender violence committed by an intimate partner. Recently, anticarceral social movements have launched reform initiatives designed to end pre-trial detention and challenge the State’s predilection for detention and incarceration. Other similar reform efforts have sought compassionate release of incarcerated persons from jails and prisons related to COVID-19. Gender violence-related crimes, however, have been categorically omitted from these initiatives. Certainly, crimes of domestic violence raise a different set of concerns than offenses committed by strangers. The dangers victims face are indeed significant and must be addressed. But detention and incarceration practices have failed to provide substantive mitigation from acts of violence. This Part argues that the exclusion of gender violence offenses from decarceration efforts ignores the destructive effects of the criminal legal system while failing to produce the social remedies desired.
Part III analyzes the structural framework of gender violence as a way to advocate for the inclusion of intimate partner violence within the parameters of progressive criminal legal reform initiatives. Anti-carceral reform advocates have demonstrated that criminal behavior is the product of socio-political economic environmental contingencies beyond the remedial capacities of the criminal legal system. To that end, this Part examines the relationship between poverty and inequality, on one hand, and criminal behavior, on the other, as outcomes of a State-sanctioned political economy. These are structural conditions, of course, but conditions which are commonly experienced as personal harms in the form of trauma associated with domestic violence. This Part argues that the structuralist paradigm that situates criminal behavior within a political economic framework must also include acts of gender violence. To exclude intimate partner violence from decarceration efforts is ill-informed and ill-conceived.
Part IV proposes a “politics of solidarity.” That is, a broad lens through which to address gender-based violence as a social problem conditioned by the failures of a political economy that acts to perpetuate inequality and racism. It reviews the ways that anti-carceral strategies that center gender violence may help to strengthen the demands for a more progressive political economy, which then mitigates the determinants of transgressive behaviors. It points to new ways of addressing gender violence that can contribute to anti-carceral and political economic-related organizing. These endeavors often emerge from the lived experiences of those who have suffered gender violence and who have been harmed by the criminal legal system.
This Article concludes by asserting that in this present “moment of agitation” in the United States, it is both timely and urgent that scholars and advocates contemplate strategies that incorporate gender violence issues within a progressive anti-carceral agenda, and also acknowledge the connection between harmful acts within personal relationships and the failure of the State. Drawing connections between the determinants of crime as a general category and domestic violence as a specific subset invites a deeper understanding of transgressive behavior and the need for structural changes to prevent and humanely intervene in such acts.