Instead of Protecting Women from Violence, We're Throwing Them in Jail
Domestic violence is more visible today than ever before, and, according to Department of Justice studies, far more infrequent than it was a decade or two ago. Between 1994 and 2010, the rate of domestic violence in the United State decreased by 64%. It is estimated that 1 in 4 women and 1 in 7 men will, at some point in their lives, experience domestic violence, which may be perpetrated by family members, intimate partners, or roommates.
At first glance, this looks like progress, and in some ways it is, the endgame of a hard-fought battle waged by feminists who, beginning in the 1970s, launched waves of campaigns to raise awareness about domestic violence and passed laws to correct rampant police negligence in handling such cases.
However, many initiatives that were proposed under the pretense of protecting mothers and their children or appearing tough on domestic abusers, have backfired onto victims.
Dual arrests codify a practice of arresting both people mired in the altercation, and have resulted in an uptick in victim arrests.
Mandatory arrests, now on the books in 23 states, provide an ironclad and violent state solution to problems that would better be solved with health care, financial resources, and other kinds of non-carceral counseling.
Background checks on domestic violence victims are also not unheard of, and mean that victims stand a chance of being hauled off to jail for previous charges, by police who are supposedly called upon to help them.
Fetal homicide laws, which criminalize women who don’t carry their fetuses to term, have become a signature, outrage-inducing liberal talking point. Little-acknowledged is that in creating these laws, many legislators believed they would lower instances of domestic violence. Addressing domestic violence is, of course, another popular liberal platform.
Fetal homicide laws originated in the Unborn Victims of Violence Act (UVVA), signed by President Bush in 2004. This law recognizes that fetuses can be legal victims of violent crimes, and was ratified under the pretense that it would protect domestic violence victims (pregnant women), and, to a lesser extent, drunk drivers. In the ensuing years it has been noted repeatedly that the UVVA has been misapplied and manipulated by right-wingers who want to outlaw or significantly curb abortion.
To boot, many women have fallen through the cracks when it coms to the implementation of these laws. Or else they have fallen instead on the double-edged sword of enforcement, which is that more women, than ever before, are being locked up for being tied to domestic violence situations, even in cases where they are not the perpetrators of that violence.
Women of color and transgender women are disproportionately represented among domestic abuse survivors. These are the same populations that bear the brunt of state violence against women across the board. According to the Sentencing Project, in 2010, black women were incarcerated at close to three times the rate of white women, and Hispanic women were incarcerated at 1.6 times the rate of white women.
Violence against women is a social sickness, but so is the state response. Jeanne Flavin in her 2008 book Our Bodies, Our Crimes puts it nicely, “At root, the answers to complex social problems will not be found in laws and court rulings alone but, rather, in broad-based measures that strengthen women’s economic status, education, choice-making, autonomy, sexual power, and health care.”
Between 1980 and 2012, the number of women in state and federal prison grew 646%, according to The Sentencing Project. Just how many women are incarcerated by domestic violence policing policies are unknown, because there has been no major study done on the subject to date. The statistics and stories documented so far are all we have to go on, and they’re plenty. Here are just a few stories of women who have been put behind bars due to over policing of domestic violence or misapplication of laws intended to protect domestic violence victims.
On March 30, Indiana resident Purvi Patel was sentenced to 20 years in prison for feticide and neglect of a dependent. According to the state, Patel had taken abortion pills and the fetus was born alive (some contradiction there, fellas?), though they presented no proof and Patel insists she miscarried. In other words, when all is said in done, Patel is being sent to jail for failing to give birth to a surviving child. Though many women have been arrested and charged with a crime for terminating her pregnancy, this case marks the first time a woman has been charged, convicted of feticide, and sentenced for attempting to terminate her pregnancy.
After Patel was found guilty Lynn Paltrow, president of National Advocates for Pregnant Women, an organization that has been watching the case closely and filed an amicus brief on Patel’s behalf, wrote for The Public Eye magazine, “To many observers, it was a shocking new application of Indiana’s feticide law, which was intended to criminalize ‘knowing or intentional termination of another’s pregnancy.’ Turning this law into one that can be used to punish a woman who herself has an abortion is an extraordinary expansion of the scope and intention of the state’s law.”
This shift in application of the law that Paltrow mentions is a nod to fetal homicide laws, originating from the UVVA.
As Flavin notes in her book, “Under the terms of the UVVA, if someone harms a pregnant woman and causes the death of her fetus while violating any of 68 existing federal criminal laws, he or she can be charged for causing the mother’s harm or death and face a second charge for killing the ‘unborn victim.” However, “It is unclear how fetal homicide laws are supposed to have a deterrent effect on domestic abusers, since one can’t hurt a fetus without also hurting a woman, and it’s already illegal to dot that.”
In the case of Patel, the state has employed this seemingly ineffectual law to destroy the life of a woman.
In 2012, Marissa Alexander, a black mother of three was found guilty on three counts of aggravated assault. Her sentence was 20 yeas in prison for firing a warning shot in the direction of her estranged ex-husband, Rico Gray, and his two children, in 2010. The special prosecutor for the case, Angela Corey, sought a 60-year minimum sentence for Alexander, and the 20-year sentence she was handed was already overblown by mandatory minimum laws. When the Florida mother argued self-defense under her state’s now infamous Stand Your Ground law, but the pretrial judge dismissed her claim, saying that she could have left her house, the one her ex-husband was assaulting her in.
Alexander was released on January 27 after three years in prison and is now serving two years of house arrest as part of a plea deal, which probably would never happened had the case not received such high-profile media coverage. As Victoria Law put it in The Nation, “The criminalization and continued prosecution of Marissa Alexander is the norm, not the exception, in how abuse survivors are treated. What’s exceptional is the amount of publicity—and ensuing outrage and organizing—Alexander’s case has engendered.”
In 2006, Arlena Lindley’s boyfriend, Alonzo Turner, murdered her 3-year-old son, Titches in a violent rage typical of the chronic abuser. Turner had been beating Lindley and her son for months before his outbursts became deadly.
Turner was sentenced to life in prison for the horrific crime, but he wasn’t the only one slammed with a sentence. Lindley got 45 years in prison for failing to protect her child from her murderous boyfriend, which the court said constituted abuse by “omission.”
Lindley’s brutal brush with the law was first reported by Buzzfeed’s Alex Campbell in a long investigative piece that turned up 28 cases across 11 states where mothers had been sentenced for at least 10 years for similar crimes of not being able to protect their children from their abusive partners.
On August 3, 1995, Kelly Savage was making plans to take herself and her two young children away from her abusive husband in California’s Central Valley the very next day. Today she’s in prison for life, and what transpired in between is a cruel and vicious story, versions of which occur again and again in America.
While Savage was out purchasing supplies she needed for her escape, her husband Mark called to say her three-year-old son Justin was not breathing. Mark had beaten the young boy to death, for which both Mark and Kelly were arrested, found guilty of his murder, and sentenced to life without parole. Kelly was 23 at the time of her arrest.
Savage’s story was originally reported by Victoria Law for Truthout and picked up months later by The Atlantic. According to the California Department of Corrections and Rehabilitation, 186 women were serving life without parole in California prisons in July 2013.
 Tsao, Alison. “Fetal Homicide Laws: Shield Against Domestic Violence Or Sword to Pierce Abortion Rights?” Hastings Constitutional Law Quarterly 25, no. 457 461.
 Flavin, Jeanne. Our Bodies, Our Crimes: The Policing of Women’s Reproduction in America. New York: New York University Press, 2008. 189
 Flavin, 99