Ann Cammett, "Queer Lockdown: Coming to Terms with the Ongoing Criminalization of LGBTQ Communities"
(page 9 of 9)

Another dubious outcome from criminal justice involvement in domestic violence cases is the routine criminal prosecution of domestic violence cases. All state courts have a parallel court system that allows victims to bring cases in civil court to obtain "orders of protection."[84] Generally, those petitioning for such relief can get a restraining order and ancillary support to assist them in transitioning from a household where they are confronted with intrafamily violence.[85] In such a case, the criminal justice system is typically not implicated unless a respondent violates the order of protection.

However, when an arrest is made, a prosecutor generally has the power not only to pursue a criminal conviction but also to determine the scope of the penalty. This is the case even when victims are not disposed to prosecute. For many women, civil restraining orders are adequate to protect their safety and other interests when confronting intrafamily violence. One concern often expressed by women faced with cooperating in a criminal prosecution is the effect of collateral sanctions, described earlier in this article. Employment, immigration, and other consequences that attach to the criminal defendant after a conviction might negatively affect a victim and her family. Although she might be in the best position to determine how to proceed without undermining her own safety, the decision not to prosecute may be out of her hands. On balance, this represents a shift of control from the victim to the government.[86] Such a paradigm runs counter to the goals of safety and independence that define the domestic violence movement.

Many advocates for survivors of violence recognize that the time has come to rethink the relationship between intimate partner violence and law enforcement. There are important lessons to be learned from the movement to combat violence against women. INCITE! notes that a tough law and order agenda can also lead to long punitive sentences for women convicted of killing their batterers. Moreover, as additional side effects, when public funding is channeled into policing and prisons, there are typically budget cuts for social programs—including women's shelters, welfare, and public housing. These cutbacks leave women less able to escape violent relationships.[87] In the end, over-reliance on law enforcement as the primary response to violence hinders the development of more community-based approaches.

In conclusion, low-income queer folks are being profoundly affected by our system of mass incarceration, and this problem deserves the attention of activists striving to build a stronger community. In securing more justice for all, do we need more punishment or less violence? Law enforcement cannot be the only or even first line of defense when addressing social problems. Solutions to crime, poverty, and violence should arise from the communities that experience them. My point is not that there is no role for law enforcement in community policing but rather that the carceral system has primary and unintended negative effects, many of which I have outlined here. Community groups and local governments are attempting to implement many forms of alternative dispute resolution, justice reinvestment, and organizing (such as a more thorough integration of men into the anti-violence movement). Those efforts should be supported and expanded. For our ultimate survival, advocates must recognize the limitations of the carceral state and begin to emphasize and develop approaches that lead to healthier, more involved, and more proactive communities.

This article was developed from the colloquium Towards a Vision of Sexual and Economic Justice (Barnard College, November 2007). I want to thank Marcia Gallo and my anonymous reviewers for their helpful comments, the William S. Boyd School of Law for support, and the Wiener-Rogers Law Library for research assistance.

Endnotes

1. In this article, I use the term queer as shorthand to capture the breadth of all the communities that are lesbian, gay, bisexual, transgender, intersex, two-spirit, or questioning. [Return to text]

2. Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color, 43 STAN. L. REV. 6 (1991). The theory of intersectionality was likely first coined, and certainly gained a foothold, with Crenshaw's groundbreaking article, where she detailed the ways women of color seeking relief from intimate partner violence were "sometimes erased within the political contestations between antiracism and racial hierarchy, and between feminism and patriarchy." She describes the failure of feminist domestic violence organizations to heed the particular needs of women of color. Simultaneously, she explains how antiracist organizations did not fully address the problem of domestic violence in an attempt to forestall racial stereotyping about violence in people of color communities. Crenshaw opines that, "these erasures are not always the direct or intended consequences of antiracism or feminism, but frequently the product of rhetorical and political strategies that fail to challenge race and gender hierarchies simultaneously." [Return to text]

3. "The Combahee River Collective Statement," in Home Girls: A Black Feminist Anthology 272 (Barbara Smith, ed. 1983). Intersectionality has historical links to the concepts advanced in 1977 by the Combahee River Collective, a group of black feminist activists who issued a statement that has become a key document in black feminism and the development of "identity politics," as used by political organizers and social theorists. Notably, they describe an active commitment to "struggling against racial, sexual, heterosexual and class oppression," and to their particular task of the "development of integrated analysis and practice based upon the fact that the major systems of oppression are interlocking." They conclude that, "[T]he synthesis of these oppressions creates the conditions of our lives. As Black women we see Black feminism as the logical political movement to combat the manifold and simultaneous oppressions that all women of color face." [Return to text]

4. There are some notable exceptions to this claim, including grassroots organizations such as Queers for Economic Justice, Critical Resistance, Sylvia Rivera Law Project, Audre Lorde Project, and FIERCE. These examples have a broad vision of social justice organizing across race, class, and sexual, and gender expression. (All sites last accessed on June 16, 2009.) [Return to text]

5. Office of Justice Programs, Bureau of Justice Statistics, U.S. Department of Justice, Prisoners in 2007 (2008) http://www.ojp.usdoj.gov/bjs/pub/press/p07ppuspr.htm. [Return to text]

6. See Marc Mauer, Race to Incarcerate (2nd ed., 2006) (examining three decades of prison expansion and the impact of the drug war on the African American community); see generally Bruce Western, Punishment and Inequality in America (2006) (arguing that the dramatic expansion of the prison population has deepened racial and class inequality); see also Becky Pettit and Bruce Western, Mass Imprisonment And The Life Course: Race And Class Inequality In U.S. Incarceration, 69 AM. SOC. REV. 151 (2004) (describing racial inequalities in imprisonment). [Return to text]

7. Pettit and Western, Life Course supra note 6, at 151; see also Christian Parenti, Lockdown America: Police and Prisons in the Age of Crisis (2000): 57-58 (documents the advent of militarized policing, the war on drugs, and the growth of the prison population). [Return to text]

8. See Ruth Wilson Gilmore, "Globalisation and U.S. Prison Growth: From Military Keynesianism to Post-Keynesian Militarism," 40. Race & Class (1998/99): 171, 178; see also Parenti, supra note 7, at 214. [Return to text]

9. Angela Y. Davis, Are Prisons Obsolete? (2003): 22-24. [Return to text]

10. Id. at 84. See generally Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California (2007) (providing explanation for prison buildup by looking at how political and economic forces, ranging from global to local, conjoined to produce the prison boom). [Return to text]

11. Davis, supra note 9, at 85. State governments have had financial difficulty maintaining the prison population. Recently, a federal three-judge panel ordered the California prison system to reduce overcrowding by as many as 55,000 inmates in order to provide a constitutional level of medical and mental health care. See Solomon Moore, "Court Orders California to Cut Prison Population," N.Y. Times, February 10, 2009 http://www.nytimes.com/2009/02/10/us/10prison.html. [Return to text]

12. Davis, supra note 9, at 88. [Return to text]

13. Jeremy Travis, et. al., From Prison to Home: The Dimensions and Consequences of Prisoner Reentry, (2001): 25, 31, and 35 http://www.urban.org/UploadedPDF/from_prison_to_home.pdf. [Return to text]

14. See generally, e.g., "Report of the Re-Entry Policy Council: Charting the Safe and Successful Return of Prisoners to the Community" (2003) www.reentrypolicy.org. [Return to text]

15. See generally Marc Mauer and Meda Chesney-Lind, eds., Invisible Punishment: The Collateral Consequences of Mass Imprisonment (2002) (an early compilation of essays of collateral consequences); see also Michael Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues faced by Formerly Incarcerated Individuals, 86 B.U. L. REV. 623 (2006) (proposing an approach that fully integrates collateral consequences and reentry). [Return to text]

16. See generally Nora V. Demleitmer, Collateral Damage: No Reentry for Drug Offenders, 47 VILL. L. REV. 1027 (2002); Expanding Collateral Sanctions: The Hidden Costs of Child Support Enforcement Against Incarcerated Parents, 13 GEO. J. ON POVERTY L. & POL'Y 313, 315-319 (2006) (prisoner's child support arrears constitute an additional barrier to reentry) [Hereinafter Cammett, Costs]. [Return to text]

17. See e.g. Christopher Uggen & Jeff Manza, Democratic Contraction? Political Consequences of Felon Disenfranchisement in the United States, 67 AM. SOC. REV. 777 (2002). An estimated 5.3 million Americans are currently denied the right to vote because some laws prohibit voting by people with felony convictions. This obstacle to participation in democratic life is exacerbated by racial disparities in the criminal justice system, resulting in an estimated 13% of black men unable to vote. [Return to text]

18. Some examples are Margaret Colgate Love, Relief from the Collateral Consequences of a Criminal Conviction: A State-by-State Resource Guide (2004) (addressing an array of sanctions in a state-by-by state survey) http://www.lac.org/roadblocks-to-reentry (last accessed on June 16, 2009); National H.I.R.E. Network http://www.hirenetwork.org (providing employment resources for people with criminal convictions) (last accessed on June 16, 2009); Center for Constitutional Rights, The Campaign for Telephone Justice (grassroots organizing to challenge excessive phone surcharges on family members receiving calls from N.Y. state prisons) http://ccrjustice.org/ (last accessed on June 16, 2009). Legal services offices are also integrating holistic services into criminal defense practice, e.g., Bronx Defenders http://bronxdefenders.org/?page=content¶m=our_practice (last accessed on June 16, 2009); Neighborhood Defender Service of Harlem http://www.ndsny.org/programs.htm (last accessed on June 18, 2009); The Public Defender Service for the District of Columbia http://www.pdsdc.org/PDS/CivilLegalServices.aspx (last accessed on June 16, 2009). [Return to text]

19. Cammett, Costs, supra note 11, at 318; see also Rachel L. McLEan and Michael D. Thompson, Repaying Depts, Council of State Governments Justice Center (2007), http://tools.reentrypolicy.org/repaying_debts. [Return to text]

20. Travis et al., supra note 13, at 1. [Return to text]

21. Id. at 9; In 1999, public defenders handled 82% of the 4.2 million cases in the largest 100 counties in the U.S. See Office of Justice Programs, Bureau of Justice Statistics, U.S. Department of Justice, Indigent Defense Statistics, http://www.ojp.gov/bjs/id.htm#findings. [Return to text]

22. Travis et al., supra note 13, at 9. [Return to text]

23. But see e.g. Richard Delgado, Prosecuting Violence: A Colloquy on Race, Community, and Justice, 52 STAN. L. REV. 751 (2000) (comparative analysis of restorative justice principles and the traditional criminal justice system that includes critiques of both). "Restorative Justice advocates argue that incarceration offers little in the way of rehabilitative opportunities for offenders. Many emerge from prison more hardened and angry than when they entered, setting up a cycle of recidivism that serves neither them nor society. Moreover, although the victims' rights movement has begun to clamor for restitution as a part of court-ordered sentencing, relatively few victims receive compensation for their injuries, and fewer still receive anything resembling an apology from the perpetrator." [Return to text]

24. See e.g. Todd R. Clear, Backfire: How Mass Incarceration Makes Disadvantages Communities Worse (2007); see also Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African American Communities, 56 STAN. L. REV. 1271, 1281 (2004) (examining theories of community harm and evidence of mounting harm to African American communities due to incarceration). [Return to text]

25. A total of $73 million was spent on the battle over Proposition 8 in California. Randal C. Archibold & Abby Goodnough, California voters Ban Gay Marriage, N.Y. Times, November 5, 2008 http://www.nytimes.com. See also Richard Kim, "California Supreme Court Upholds Prop 8," The Nation Magazine, May 26, 2009, http://www.thenation.com/blogs/notion/438620 (questioning the wisdom of committing massive resources toward an initiative to reverse Prop 8 in 2010 rather than other movement goals). [Return to text]

26. N. Ray, National Gay and Lesbian Task Force, Lesbian, Gay, Bisexual and Transgender Youth: An Epidemic of Homelessness (2006) [hereinafter Ray, Homeless Youth] http://www.thetaskforce.org/downloads/HomelessYouth.pdf. [Return to text]

27. Id. at 13. [Return to text]

28. Id. at 2. See also Human Rights Watch, "Hatred in the Hallways: Violence and Discrimination Against Lesbian, Gay, Bisexual and Transgender Students in U.S. Schools" (2001) http://www.hrw.org/legacy/reports/2001/uslgbt/toc.htm. [Return to text]

29. Ray, Homeless Youth, supra note 26, at 70. [Return to text]

30. Id. at 22, 40. [Return to text]

31. See Corinne Mufioz-Plaza, et. al, Lesbian, Gay, Bisexual and Transgender Students: Perceived Social Support in the High School Environment (2002): 56. [Return to text]

32. Lisa Mottet and John M. Ohle, Transitioning Our Shelters: A Guide to Making Homeless Shelters Safe for Transgender People (2003): 3-4. [Return to text]

33. Amnesty International U.S.A., Stonewalled: Police Abuse and Misconduct Against Lesbian, Gay, Bisexual and Transgender People in the U.S. (2006) http://www.amnestyusa.org/outfront/stonewalled/report.pdf. [Return to text]

34. Pettit and Western, Life Course, supra note 6, at 151-2. [Return to text]

35. K. Clements-Nolle, et al., "HIV Prevalence, Risk Behaviors, Health Care Use, and Mental Health Status of Transgender Persons in San Francisco: Implications for Public Health Intervention," 91, American Journal of Public Health (2001): 915; see also Tali Woodward, "Life in Hell," San Francisco Bay Guardian, March 15, 2005 http://www.sfbg.com/40/24/cover_life.html. [Return to text]

36. Joanne Mariner, Human Rights Watch, "No Escape: Male Rape in U.S. Prisons" (2001) http://news.lp.findlaw.com/hdocs/docs/hrw/hrwmalerape0401.pdf. [Return to text]

37. Id. The group's findings are based on correspondence with more than 200 prisoners spread among thirty-four states, inmate interviews, and a comprehensive survey of state correctional authorities. [Return to text]

38. Id. "Rape is in no way an inevitable consequence of incarceration," notes Joanne Mariner, the author of the report. "But it is a predictable one if prison and prosecutorial authorities do little to prevent and punish it." See also e.g. Stop Prisoner Rape & ACLU National Prison Project, Still in Danger: The Ongoing Threat of Sexual Violence Against Transgender Prisoners (2005) (noting that sexual violence in detention is still an alarming reality for transgender individuals throughout the U.S., despite the Prisoner Rape Elimination Act). [Return to text]

39. Mariner, supra note 36, at 11. The effectiveness of the PRISONER RAPE ELIMINATION ACT (PREA), P.L. 108-79 (2003) has yet to be determined. The act aimed to curb prison rape through a "zero-tolerance" policy, as well as through research and information gathering. It called for developing national standards to prevent and detect incidents of sexual violence in prison, making data on prison rape more available to prison administrators and corrections facilities more accountable for incidents of prison rape. It does not create a new course of action for prisoners seeking legal redress. [Return to text]

40. D. Morgan Bassichis, "It's War in Here: A Report on the Treatment of Transgender and Intersex People in New York State Men's Prisons" (2007). [Return to text]

41. Id. at 11-15. See also, Alexander L. Lee, "Nowhere to Go But Out: The Collision Between Transgender & Gender-Variant Prisoners and the Gender Binary in America's Prisons," UNPUBLISHED JD THESIS, U. OF CAL., BERKELEY (2003) (on file with the author). [Return to text]

42. Adam Liptak, Ex-Inmate's Suit Offers View into Sexual Slavery in Prisons, N.Y. Times, http://www.nytimes.com/2004/10/16/national/16rape.html. [Return to text]

43. Id. [Return to text]

44. Farmer v. Brennan, 511 U.S. 825 (1994). In Farmer, the Supreme Court held that prisoner rape is constitutionally unacceptable. However, the court's ruling has proved troubling over the years. Some interpretations have shielded corrections officials from liability in all but the most extreme cases of deliberate indifference to threats of sexual violence. See Still In Danger, supra note 38, at 1; see infra, note 46. [Return to text]

45. Angela K. Brown, "Jurors reject Texas Prison Rape Lawsuit," Associated Press, October 18, 2005 (noting jurors' criticism of Johnson for failure to introduce a rape test). [Return to text]

46. The "deliberate indifference" standard requires that an official "knows of and disregards an excessive risk to prisoner health and safety; the official must be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists. And he must also draw the inference" (Farmer 273 and 288). Advocates have asserted that the rules create perverse incentives for the authorities to ignore the problem of abuse, leaving the prisoner to accomplish the difficult task of proving the subjective knowledge of the staff members. Still In Danger, supra note 38, at 4. [Return to text]

47. Bassichis, supra note 39, at 17. [Return to text]

48. Id. at 18. [Return to text]

49. Id. [Return to text]

50. Emily Alpert, "Gender Outlaws," interview with Judy Greenspan, co-founder, Trans/Gender Variant in Prison Committee (TIP), InTheFray Magazine, November 20, 2005 http://inthefray.org/content/view/1381/39/. [Return to text]

51. Bassichis, supra note 39, at 18-19. [Return to text]

52. Amnesty International, Not Part of Her Sentence: Violation of the Human Rights of Women in Custody: Sexual Abuse and Women in Prison (1999), summary of report available at http://www.amnesty.org. [Return to text]

53. Id. [Return to text]

54. Estelle Friedman, "The Prison Lesbian: Race, Class, and the Construction of the Aggressive Female Homosexual, 1915-1965," Feminist Studies Vol. 22 (1996) (detailing the historical emergence of the "predatory prison lesbian" stereotype). [Return to text]

55. See Amnesty International, Crimes of Hate, Conspiracy of Silence (2001): 30 http://www.amnesty.org/en/library/asset/ACT40/016/2001/en/cd954618-d961-11dd-a057-592cb671dd8b/act400162001ar.pdf. [Return to text]

56. Jeff Seidel, "Jury awarded $15.4 million to inmates," Detroit Free Press, January 7, 2009 http://www.freep.com/article/20090107/NEWS06/901070395. A juror took the unusual step of making this statement: "We the members of the jury," she began, "as representatives of the citizens of Michigan, would like to express our extreme regret and apologies for what you have been through." [Return to text]

57. Cf. William N. Eskridge, Jr., Gaylaw: Challenging the Apartheid of the Closet (1999): 88 (noting that poor and nonwhite gays have always fared worse than middle-class white gays in the criminal justice system). [Return to text]

58. Michael Shortnacy, Sexual Minorities, Criminal Justice, and the Death Penalty, 32 FORDHAM URBAN L. J. 231 (2005) (noting instances of systematic bias against queers in the legal system). [Return to text]

59. Id. at 232. [Return to text]

60. Judicial Council of Cal. Sexual Orientation Fairness in the California Courts: Final Report of the Judicial Council's Access and Fairness Advisory Committee (2001): 6-7 http://www.courtinfo.ca.gov/programs/access/documents/report.pdf [Return to text]

61. State Bar of Ariz. Gay and Lesbian Task Force, Report to the Board of Governors (April 1999), summary of findings available at http://www.myazbar.org/Content/SecComm/Committees/SOGI/summary.html. [Return to text]

62. Id. [Return to text]

63. See Victor L. Streib, Death Penalty for Lesbians, 1 NAT'L L.J. SEX. ORIENTATION L. 105 (1994) http://www.ibiblio.org/gaylaw/issue1/streib.html (noting lesbians may be "defeminized" by prosecutors by using their sexual orientation and then dehumanized for the crime, leaving a jury with a gender-neutral monster deserving of little or no human compassion) [hereinafter Streib, Death Penalty]; see also Richard Goldstein, "Queer on Death Row: In Murder Cases Being Gay can Seal a Defendant's Fate," Village Voice, March 13, 2001, at 38 http://www.villagevoice.com/2001-03-13/news/queer-on-death-row/, [hereinafter Goldstein, Queer on Death Row]. [Return to text]

64. Streib, Death Penalty, supra note 62, at 109-110. [Return to text]

65. Goldstein, Queer on Death Row, supra note 62, at 38; Streib, Death Penalty, supra note 62, at 110-111; see also Tracy Baim, "Death Penalty Shocker," Windy City Times, January 15, 2003 (noting that the prosecution biased the jury with homophobia by repeatedly used Mata's lesbianism as her motive for killing a man, calling her a "Hard Core Lesbian" and "Man-hating Lesbian") http://www.windycitymediagroup.com. [Return to text]

66. DecisionQuest/National Law Journal: 2000 Annual Juror Outlook (2000) http://dqadmin.com/2000%20AJOS_web1.pdf (finding that twelve percent of jurors said they could not be fair to a lesbian or homosexual party in a case). [Return to text]

67. Goldstein, Queer on Death Row, supra note 62, at 38. See also American Civil Liberties Union and American Friends Service Committee, The Forgotten Population: A Look at Death Row in the United States Through the Experiences of Women (2004): 8 (noting that in several cases, prosecutors appeared to use the woman's sexual orientation to prejudice the jury against her, and that bias may have made a difference in the outcome). [Return to text]

68. Michael B. Shortnacy, Guilty and Gay, A Recipe for Execution in American Courtrooms: Sexual Orientation as a Tool for Prosecutorial Misconduct in Death Penalty Cases, 51 AM. U. L. REV. (2001): 309, 301-344 (Noting that the court concluded that, given the circumstances of the crime, the probative value of the character evidence "was not substantially outweighed by its prejudicial effect.") [Return to text]

69. Abbe Smith, The "Monster" in All of Us: When Victims Become Perpetrators, 38 SUFFOLK U. L. REV. (2005): 367, 378. Wournos was the subject of the major motion picture, Monster (2003). Actress Charlize Theron received numerous awards, including the Academy Award, for her portrayal of Wournos. [Return to text]

70. Id. at 379. "She was also diagnosed by both defense and state mental health experts as suffering from an emotional and/or mental disturbance at the time of the offenses and having an impaired ability to conform her conduct to the requirements of law. Both of these, as well as her history of physical and sexual abuse and alcoholism, could have been considered mitigating circumstances for sentencing purposes." [Return to text]

71. Id. at 383. Smith notes that by comparison, the jury for Ted Bundy, tried in Florida for having killed more than twenty women, took seven hours to find him guilty and seven and a half more hours to sentence him to death. [Return to text]

72. Id. at 382. [Return to text]

73. Id. at 394. In her critique pointing out the lack of response to the case, Smith asks, "Why did feminists, battered women's advocates, or sexual assault victims rights advocates not get involved in the Wournos case? Why did they not help her to obtain counsel, raise money for expert testimony, visit her in jail, attend her trial, and, especially, protest her execution? Why did they not at least write an op-ed piece?" [Return to text]

74. Lawrence v. Texas, 539 U.S. 558 (2003). In Lawrence, the Supreme Court, in a 6-3 decision, declared unconstitutional a Texas law that prohibited sexual acts between same sex couples. Justice Anthony Kennedy, writing for the majority, held that the right to privacy protects a right for adults to engage in private, consensual homosexual activity. [Return to text]

75. Audre Lorde, "Age, Race, Class and Sex," Sister Outsider: Essays and Speeches (1984): 116. Lorde opines that, "Somewhere on the edge of consciousness, there is what I call a 'mythical norm,' which each one of us knows 'that is not me.' In [A]merica this norm is usually defined as white, thin, male, young, heterosexual, Christian, and financially secure. It is within this mythical norm that the trappings of power lie within this society. Those of us who stand outside that power often identify one way in which we are different, and we assume that to be the primary cause of all oppression, forgetting other distortions around difference, some of which we ourselves may be practicing." [Return to text]

76. See Anannya Bhattacharjee, American Friends Service Committee and the Committee on Women, Population and the Environment, Whose Safety? Women of Color and the Violence of Law Enforcement (2001): 51 http://safetyandjustice.org/info/nation/story/474. [Return to text]

77. Organizers also critiqued the "professionalization" of anti-violence movement that some said was a barrier to women organizing to create more appropriate methods for dealing with violence. [Return to text]

78. INCITE! Women of Color Against Violence is a "national activist organization of radical feminists of color advancing a movement to end violence against women of color and our communities through direct action, critical dialogue and grassroots organizing," http://www.incite-national.org/index.php?s=35 (last accessed on June 16, 2009). See generally The Color of Violence: The Incite! Anthology (2006 Paperback). [Return to text]

79. INCITE! Women of Color Against Violence and Critical Resistance: Statement on Gender Violence and the Prison Industrial Complex [hereinafter INCITE! Statement] http://www.incite-national.org/media/docs/5848_incite-cr-statement.pdf. [Return to text]

80. Id. [Return to text]

81. American Bar Association Commission on Domestic Violence, Mandatory Arrest Policies By State (2007) http://www.abanet.org (PDF). [Return to text]

82. Sharon Stapel, Civil Legal Remedies for Domestic Violence in the Lesbian, Gay, Bisexual and Transgender Communities (2008). Stapel, Executive Director of the New York City Gay and Lesbian Anti-Violence Project (AVP), notes that "[a]ssuming that the more 'butch' or masculine-acting (or identifying) partner in a lesbian relationship is an abuser, or assuming that the more effeminate-acting (or identifying) partner in a gay male relationship is the victim, creates not only a barrier to talking with clients, but also a potential erroneous analysis of who is the victim and who is the perpetrator in the relationship." Available at http://www.abanet.org (PDF). [Return to text]

83. See e.g. David Hirschel, et al., "Domestic violence and mandatory arrest laws: to what extent do they influence police arrest decisions?" Journal of Criminal Law and Criminology (2007) (Research suggests that the increased arrest rate is in part attributable to a disproportionate increase in arrests for females either as a single offender or as part of what is known as a "dual arrest," the situation that occurs when the police arrest both parties involved in an incident for offenses committed against each other.); see also Lenore Simon, et al., Unintended Consequences of Mandatory Arrest Policies: Assessing the Wisdom of the Criminalization of Domestic Violence, paper presented at the annual meeting of the American Society of Criminology, November 14, 2007 (exploring the wisdom of criminalization trend in domestic violence). [Return to text]

84. See generally American Bar Association, Standards of Practice for Lawyers Representing Victims of Domestic Violence, Sexual Violence and Stalking in Civil Protection Order Cases (2007) http://www.abanet.org (PDF). [Return to text]

85. Id. Although allowable relief varies greatly from jurisdiction to jurisdiction, it typically includes an order not to assault or contact the victim, temporary custody and child support for children, and other emergency support. [Return to text]

86. It should be noted that the failure of a victim to testify against a defendant can—even in a misdemeanor domestic violence case—result in a finding contempt of court against that witness. [Return to text]

87. INCITE! Statement, supra note 79. [Return to text]

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