Some people like to embellish their credentials by writing about what they think are new ideas.  They want to be known as “thought leaders” and creative or courageous. However, often what they are saying is the establishment stew warmed over and if they knew history and people, they would realize their ideas are simply paper-thin patina covering something very old i.e. subordination of women. Such is the case with the idea pedaled by two law professors that arrests for domestic violence are the reason for mass incarceration, and therefore we should remove all laws that make it a crime to beat women – a centuries old idea.

Two recent books that deserve no publicity are pedaling this idea. Telling the truth about women’s lives is a radical act. Susan Faludi, Pulitzer Prize-winning journalist, wrote the book Backlash: The Undeclared War Against American Womenin 1991 about what happened when women told the truth.  The introduction is entitled, “Blame it on Feminism” which is what is happening here.

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Shere Hite had to move to Europe after she told the truth about women’s lives in The Hite Report in 1976 because of relentless attacks. Like physics, for every action, there is an equal and opposite reaction. The reaction against women telling the truth about their lives, seeking equality and structural change in the world is always strong, mostly violent, and often lead by other captured women.

One book is wrong on the theory of crime and punishment, wrong on the history of the early movement fighting violence against women, wrong on factual statements, and wrong on the cause of mass incarceration. It is littered with uncited allegations, anecdotes used as data, and correlations suggested as causations. It is full of contradictions and lapses of logic as well as contaminated with logical fallacies.

We do agree that the criminal justice system is criminal but is not justice. Some say it is working exactly how it was intended to work – as protection of the property of rich, white men and as a method of control for everyone else. The police started out as slave patrols to capture the escaping “property” of plantation owners. It should be no surprise that the ranks of the police are full of KKK members – then and now. In the north, police were Pinkerton guards hired by rich corporations to beat back working people trying to get a decent wage and working conditions. That is why the calls of “defund the police” ring so true. We need a different system; the structure as designed must be demolished. The Kerner Commission laid out a completely different way to look at crime in 1968 after the summer of riots but the suggestions were never implemented.

Much of the argument is built on a completely false premise that advocates for battered women only looked to the criminal justice system for solutions. From the beginning, the movement worked on a multifaceted campaign all at the same time. I started working in the violence against women movement in 1975, and we worked from local to national; from young to old; in every cultural and ethnic group; and in every institution – schools, public health, law enforcement, academia, housing, welfare, politics, religion, finance, and government. We knew that arrest didn’t stop the violence. It only gave the victim enough time to escape. We knew punishment didn’t change the attitude of the abuser – we hoped it would change the attitude of society.

In spite of the passage of 45 years, many problems remain and the number of women abused by a current or previous partner is still very high, survivors are stigmatized and shamed, and fewer than 18% of victims report the crimes or seek help. One in five adolescent girls aged 15 to 19 has already experienced intimate partner violence in the previous 12 months. Currently, many women are required by law to obey their husbands (in 19 countries), and marital rape is often not explicitly criminalized (in 111 countries).

When I moved to Russia in 1998, domestic violence was not a crime there unless the woman spent more than three days in the hospital from her injuries. With a population of 150 million, estimates were that 14,000 women a year were murdered in domestic violence incidents. That was thought to be an underestimate because such figures were not widely available. In comparison, the U.S. had 300 million people with an average of 3,000 women murdered a year in domestic violence incidents. Decriminalization most certainly did not make Russian women safer. Nor will it here.

MASS INCARCARATION STEMS FROM RACISM

Mass incarceration is indeed a problem in the United States.  Primarily that incarceration has focused on men of color. But contrary to all logic and common sense, the argument is made that it’s not racism that causes incarceration. It’s not violent or lying police who frame defendants. It’s not prosecutors who overcharge or judges or juries who throw the book. It’s not schools that punish and expel students of color at astronomical rates starting the school to prison pipeline or prison officials who discipline Black inmates more to keep them longer. It’s not drugs or over policing, or guns or racial profiling. It’s not sentencing disparities like the difference between crack and powder cocaine. No. None of this is the reason for mass incarceration. The reason is battered women.

This argument is so ludicrous it’s hard to believe a publisher would put it on paper. Though Americans of African descent have been telling us for 400 years that racism is the problem, we still refuse to listen. Book after book, from Alexander’s The New Jim Crowto Blackmon’s Slavery By Another Name, and study after study identifies racism as the culprit and yet somehow the blame is not laid at the feet of the power structure that maintains racism, no it’s laid at the feet of another vulnerable group –  battered women.

Even Harvard most recently could not figure out the cause of overrepresentation of African Americans in prison. So they studied it – again. And they found it was not Black-on-Black crime, or video games or rap songs. It was not poverty or single parent homes or laziness. No, it was what it’s always been – racism. (Bishop et al, 2020)

The modern war on drugs started under Richard Nixon in the late 1970s. It is acknowledged as one of the prime drivers of incarceration. Racism motivated the actions and stopped any reforms. (Osler, 2020)   In another very recent study in the Southwest, researchers found that African and Native Americans were far more likely to be booked into jail as opposed to cited and released. They concluded that overrepresentation of racial/ethnic minorities in the criminal justice system cannot be attributed to greater use of drugs and alcohol in general. (Camplain et al, 2020)  Racism, classism, and the war on drugs drove – and drive –  mass incarceration. (Henwood, 2020)

Over and over the facts show that few people who are victims turn to law enforcement and that Internal Personal Violence (IPV) is chronically underreported. Therefore, the supposition that IPV causes mass incarceration is impossible. The U.S. Department of Justice (Reaves, 2017) found that an average of 1.3 million nonfatal domestic violence victimizations occurred annually in the United States during the 10-year aggregate period from 2006 to 2015. Police were notified of more than half (56%) of these victimizations. When police responded to the scene, they took a report 78% of the time. A victim or other household member signed a criminal complaint against the offender in about half (48%) of victimizations reported to police. The offender was arrested or charges were laid in 39% of reported victimizations, either during the initial response or during the follow-up period. So half were reported, half of those signed a complaint, and less than half of those were charged – that comes out to about 10%. Evan Stark in Coercive Control, breaks down the data scientifically showing what proportion of cases actually result in men going to prison. It is miniscule.

The police were more likely to arrest if the abuser was a female and the victim was male – no surprise there.  When domestic violence victimization involved a female victim, the offender was arrested during the initial police response only 32% of the time when the victim was seriously injured, compared to 16% of the time when the victim was uninjured. When the victimization involved a male victim, the offender was arrested during the initial police response 44% of the time when the victim was seriously injured, compared to 16% of the time when the victim was uninjured.   The discrimination against women and failure of the law is clearly evident.

The authors try to cover their misogyny by claiming they are trying to protect women of color.  However, women of color were as likely or more likely to call the police for IPV than white woman. In FBI statistics, it shows that of all victimizations, whites were reported at 55%, Blacks at 59%,  Hispanics at 64%. All three groups were equally likely to have signed a complaint (49%).

In the Berzofsky report,a greater percentage of victimizations against white non-Hispanics (54%) than Black non-Hispanics (46%) went unreported to police. White women were more likely not to report than Black women. Whites reported in 46% of the cases, Hispanics in 49%, Blacks in 51% and Indian/Alaskan at 61%.  This suggests that victims of color are in fact using the system for protection rather than eschewing it.  So while the authors claim to be concerned about Black women, the data shows that is who the policies would hurt most.

Over 20% of unreported violent victimizations against persons living in urban areas were not reported because the victim believed the police would not or could not help. It’s the failure of police to help, not police intervening that is causing victims not to report. That failure to help is the problem we should concern ourselves with, not punishing the victims of IPV even further. When asked about police being biased or causing the respondent more trouble or the offender was himself a police officer, only 2% said that was true. So in fact the argument that victims of color are not calling because of fear of the officers is not supported by the data.

A greater percentage of violent victimizations against persons in households with an income of $50,000 or more (56%) went unreported, compared to households with an income of less than $25,000 (50%). So contrary to the author’s lament that violence is worse among the poor, it is simply less reported as the movement has said from the outset.

Inexplicably, while arguing for decriminalization, one author admits that arrests works, …”criminalization increases accountability, at least when police make arrests.”  In fact, the criminal justice system response has been sabotaged from the beginning so the question of whether it could have or would be an effective tool is not known. But we do know that it is dangerous to suggest that decriminalizing IPV will help women of color.

To decriminalize makes violence the woman’s personal problem. The personal is political as NOW made clear more than forty years ago. The need for structural change is precisely because violence in the home is not our personal problem. Rape is not our personal problem. Both are profoundly part of public policy and part of the structure of patriarchy that keeps women locked into inequality.

While suggesting the “community” should deal with abusers, one author refers to former sports doctor Larry Nassar where 150 women testified about the abuse he had done to them. Yet the “community” including parents, teachers, coaches, school administrators, and law enforcement protected him for more than 23 years while at least 250 girls were abused. If anything, the community protects the abuser, not the victim. The worldwide, decades long scandal involving priests (and nuns) in the Catholic Church sexually and physically abusing children is another example. The Boy Scout bankruptcy with over 95,000 men filing sex abuse claims is showing that even the Scouts secret lists of men they knew were abusers was woefully out of touch with reality and the “community.”

THE BLAME GAME

 

Early warriors knew that men would not give up power easily. Frederick Douglas was clear when he said “…Power concedes nothing without a demand. It never did and it never will.” (Douglas, 2000) Human right struggles take decades if not centuries. Women claiming their right to vote took over 70 years. The Equal Rights Amendment struggle is at 97 years. The civil rights struggle from the 1960s has gone over 65 years. Lynching was just made a federal crime in 2020 though Ida B. Wells started that campaign in 1892 – 128 years ago. 

Yet because the battered women’s movement has not been a complete success in the last forty years, the premise is that we should abandon it. This is not only foolish and dangerous; it is historically ignorant. Every vulnerable and oppressed group loses over and over and over again. But we cannot give up. We come up with new strategies. We fight harder. We fight smarter. We change the frame. We develop new tools. But we never say – give up.

As organizers have known for a long time, law doesn’t create change. People make change by movements, by organization,  by education, by sustained protest. We can look to abolition, women’s right to vote, union organizing, the civil rights movements for Blacks, women, gays, and the people with disabilities community. The legislatures and courts did not just wake up one day and say – let’s do this. A change in culture created the shift and the law was forced to follow.

But the backlash is fierce and our opponents don’t give up either. Donating money and coopting the movement is often the first attack. Another strategy is to use the vulnerable group against itself.  When you are going to attack women, it is always beneficial to find a woman to do it. That’s why rapists often have women defense attorneys and large corporations hire women attorneys for their Title VII cases. Male politicians can then wring their hands and say well women say yes and women say no so I just don’t know what to do. By using women, it shields the real actors and real motives.

A third strategy of attack is to pit one vulnerable group against another; as these arguments have done by pitting Black men against battered women. That is one of the saddest aspects of this particular backlash. Pitting Black men against white women was used in the fight for the 15th amendment after the Civil War when the word “male” was put into the Constitution for the first time over the vociferous objection of the suffragists. It was done in Illinois in 1981 when a group of Black male legislators withheld their votes to kill the ERA. Now it’s happening again by claiming that women are the cause of Black men being in prison. The proponents are pitting vulnerable groups against each other to create more racial tension among vulnerable groups who need to be allies not enemies. We should not allow ourselves to be divided and conquered.

As Aceil Rashid said (Rashid, 2020) abuse of women is ingrained in our cultural fabric as deeply as the American Dream and racism and it is long past time men spoke out. The CDC now calls domestic violence a public health hazard experienced by one in three women and one in ten men. Rashid says that parents and peers socialize men to uphold toxic masculine norms. Cultural leaders pile on from the military and faith-based institutions. It’s men who have to change their behavior. It’s women we have to keep safe.

The second law professor exhibits equal opportunity by attacking First Wave, Second Wave, and Millennial women. The First Wave feminists are attacked for their racism and much of society’s ills though they were not then nor are we now in power. They got no credit for what they did achieve that we now take for granted – voting and running for office, riding a bicycle, wearing bloomers, going to college.

The book’s thesis does what she accuses others of doing – reducing complex issues to simple slogans. Of course mistakes were made, name a movement in which they weren’t. But many of the same problems continue today – girls are forced to marry at 12-years-old in Colorado City; Latinx women are sterilized without their knowledge or consent in ICE facilities; the “sex-wars” continue with the pro-and anti-prostitution camps. It’s all about men’s entitlement and money. Much of the book’s arguments are made up of misattribution and the blame game. Women have been blamed for everything since Eve.

The Second Wave feminists (into which category I fit) were attacked for the battles lost and not given any credit for the battles won. I’m pretty sure the professor wasn’t born then and seems to be looking at a world that I certainly never saw though I was there. Like every other movement, we made mistakes and 20/20 hindsight is great but it’s called hindsight for a reason. You don’t know what you don’t know. Even today white people are learning to understand the privilege we have and what to do about it. Second wave feminists also get no credit for what is taken for granted today like women in sports, getting a credit card, having a career, keeping their own name, and a choice about how and when to have children.

Strangely enough the professor admits that the vicious backlash against women after the 1960s started by Nixon’s administration and continuing with Reagan in the 1980s doomed our work. She mentions drivers of mass incarceration such as Reagan President’s Task Force on Victims of Crime in 1982 and his “war on drugs,” and the Attorney General’s Task Force on Family Violence in 1984 naming attorney generals John Ashcroft and Jeff Sessions and the Concerned Women of America. That backlash continues today with the current president (as of 12/29/20) and Supreme Court newly appointed members. None of them were or are feminists.

The movement against violence against women started out radical and anti-authoritarian to its core. It was grass roots activists that built it; we were against the police and taking government money. Some of us still are. But like every movement, its early leaders get removed, the sharp edges get filed down, concern for money takes over, compromises are made. The issue is power and patriarchy.  No one denied that battering was rooted in economic, psychological, or cultural conditions precisely because we knew it was rooted in sexism i.e. patriarchy. We never proposed a simple solution to battering – lock them up. That is an absolutely false rewriting of history and an erasure of women’s heritage.

Not to be left out, millennials are attacked too. Allegedly the campus rape explosion was just another panic and a horror of mass incarceration. Far more sympathy is expressed for the accused males than for the female victims who might, after all, be making false allegations. False allegations are also made of murder, robbery, car theft, fraud, burglary, and even car accidents. No one suggests we should decriminalize them.

Allegedly this argument is about concern for women of color though the #metoo movement was founded by Tarana Burke, a Black woman. Still it’s called carceral and punitive in spite of the fact that most of the abusers who have been removed from power have been wealthy, white men and they have for the most part not gone to prison at all.

The #metoo movement gave a legal name and definition about the treatment of women that allowed it to be shown as structural inequality. Things have to be named before we take action. Sexual harassment at work and stalking are two such examples. Before they were named, there were no Title VII discrimination lawsuits for sexual harassment; there were no criminal cases against abusers for stalking their ex-wives.  Keeping the abuse private as these two professors urge is exactly the wrong move.

Studies have shown that in elementary school classrooms, teachers tend to call on boys far more than girls. The teachers, mostly women, didn’t believe they were doing it but the videos proved otherwise. A procedure was worked out to ensure that boys and girls were called on equally.

The boys then complained, saying they were being ignored. The problem was, when the boys had been used to getting all the attention, equality felt oppressive. Likewise in the #metoo movement, men cry that they are denied due process. Women have never gotten due process. What about those 250 girls that Larry Nassar abused over 30 years? What about the thousands of children abused by priests and nuns and Scout leaders around the world for centuries? What about their due process?

If I call the police and report my car stolen, I’m the victim. If I walk into the police station because I’ve been mugged, I’m the victim. But if I report that I have been raped or sexually assaulted, I’m no longer the victim, now I’m the accuser. While sexual assault laws have been modified in most places to no longer require proof of physical violence and that I fought back as hard as I could, they still require that I show lack of consent. If I, as the victim, have to show “lack of consent,” then consent was assumed. It is assumed that any sexual encounter with a male is consented to by a female.

But I don’t have to prove that I didn’t loan my car or give away my wallet or my watch. Police believe me that it was stolen. But if I complain that my sexual autonomy was taken, they don’t believe me – being born a female means I have consented to whatever sexual use men want to make of my body – I have to prove that I didn’t want it. This is a problem of embedded systems of bias, conscious and unconscious. It illustrates that structural inequality is the problem not individual relationships. It is a societal problem not a personal one. It needs a societal solution.

Rape is trivialized by this professor especially with suggestions that date rape is not “real rape,” and there is such a thing as “noninjurious rapes.” Having been raped myself, I have no idea what that would be. The now thoroughly disgraced Freudian idea that women fantasize rape is mentioned as is that “rape culture” is a figment of feminist imagination. Child abuse is minimized though statistics show that one in three girls and one in four boys are sexually abused. Child sexual abuse is labeled a “moral panic” claiming it’s not widespread. Larry Nassar and the Catholic Church and Jeffrey Epstein and the Boy Scouts are never mentioned. These are dangerous falsehoods.

While blaming feminists, even the professor has to admit it was changes in sentencing that kept incarceration rates sky high. Cynthia Thomas (Thomas, 2020) reports that over the past thirty years the number of women and girls involved in the criminal justice system has skyrocketed. Thomas attributes it to a more expansive law enforcement “war on drugs” that impacts women uniquely. “Yet it has been changes in our laws – particularly the dramatic increases in the length of prison sentence – that have been responsible for the growth of our prison system, not increases in crime. One study suggests that the entireincrease in the prison population from 1980 to 2001 can be explained by sentencing policy changes.” (Alexander, 2012) In a study of the federal system, the researchers conclude the entire sentencing disparity can be explained by the initial charging decision of the prosecutor – using crimes with mandatory minimums for Blacks and not for whites. (Rehavi & Star, 2012)

As Bryan Stevenson (Stevenson, 2014) pointed out, in 1980, there were 41,000 people in prison for drugs. In 2014, that number was 500,000. In 1980, prisons spent $6.9 billion; today they spend $80 billion. The real reason for mass incarceration is racism that has resulted in policies such as three strikes, truth in sentencing, war on drugs, mandatory minimums, transfer youth to adult court, and the school to prison pipeline. All of these are policies and laws passed by state legislatures and administrations that were not feminist and did not have an equal representation of women in decision making positions.

In a new study, (Baughman & Wright, 2021) the authors say in the introduction, “It has long been postulated that America’s mass incarceration phenomenon is driven by increased drug arrests, draconian sentencing, and the growth of a prison industry. Yet among the major players— legislators, judges, police, and prosecutors—one of these is shrouded in mystery.” They go on to outline their extensive study of prosecutorial behavior. They found that while arrests went down; prosecutions went up. They conclude that, “Prosecutors unknowingly contribute to mass incarceration through individual charging decisions.” Prosecutors are not a profession filled with feminists – 75% of them are male while over 90% of them are white. Unfortunately, Maricopa county lost an opportunity to address this problem in the last election.  Pima county seems to be moving ahead – as usual.

Patriarchy is the underlying circumstance that allows racism, sexism, poverty, and discrimination to flourish. These women who think they are coming up with a new idea, that was in fact the law for centuries, are claiming that the amorphous “community” should be responsible – like communism.  I lived in an apartment building in Moscow for two years where “everyone” was responsible for maintenance and cleaning of the lobby, stairs, and elevator – so no one did it.  The elevator never worked and human and dog wastes was frequently found in the lobby and on the always dark stairs.

Backlash is what happens when women tell the truth about their lives. As Carrie N. Bakerdirector of the Program for the Study of Women and Gender and a co-founder and former co-director of the Five College Certificate in Reproductive Health, Rights and Justicesaid on October 16, 2020, “Patriarchy likes to get women to do their dirty work.”

We have a president who daily shows his complete disdain for women and brags about his violence toward us. We have a Handmaid on the Supreme Court who says our husbands speak for us and we cannot control our own bodies. It would be incredibly ignorant and dangerous to argue to decriminalize violence against women. While patriarchy uses women for the attack, it’s all about keeping men’s power and if you don’t know that, then you are a fool.  “Women who carry water for the patriarchy just so they can have a slightly longer leash and stand a few rungs up in oppression from other women, particularly marginalized women, make me a special kind of angry. Being a master’s favorite dog is still having a master and being a dog.”  (Floyd, 2020)

 

 

 

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