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Awareness of the Criminalization of Survivors Is Increasing — Has It Entered the Courtroom?

US courts are still short on awareness when dealing with domestic violence survivors who defend themselves.

US courts are still short on awareness when dealing with domestic violence survivors who defend themselves. (Image: Jared Rodriguez / Truthout)

Marissa Alexander is now free, but countless other women and girls have survived violence from intimate partners and family members only to end up behind bars. On May 22, 2017, 15-year-old Bresha Meadows, accused of killing her abusive father, pled “true” (or the juvenile court equivalent of “guilty”). After spending nine months behind bars, she was sentenced to an additional 60 days in juvenile detention and six months in a mental health treatment facility for adolescents.

Alexander and Meadows are two criminalized abuse survivors, or survivor-defendants, whose cases have garnered an outpouring of support and media attention. However, many others languish behind bars with little to no support or recognition. The exact numbers of women imprisoned for defending themselves against domestic violence — or for abuse-related convictions — remain unknown. As reported previously on Truthout, no government agency tracks the number of abuse survivors behind bars.

In 1999, the US Department of Justice found that nearly half of all women in local jails and state prisons had experienced abuse before their arrests. That is the most recent nationwide data available. More recent smaller studies indicate that the prevalence of abuse has not abated—a 2012 study found that 90 percent of the 102 incarcerated women interviewed reported physical and sexual violence from their partners in the year before their incarceration.

The intersections of domestic violence and criminalization gained increased attention when Marissa Alexander, a Florida mother of three, was sentenced to 20 years after firing a warning shot to ward off her attacking husband. Since then, advocates have worked to raise awareness around these intersections and support abuse survivors who are either facing charges, such as Bresha Meadows, or fighting to overturn lengthy sentences, such as Kelly Savage.

But has this increased awareness made its way into the courtrooms?

“I Never Talked to a Survivor Who Didn’t Try Every Other Path Available First”

Rachel White-Domain is a Chicago-based attorney who often works with domestic violence survivors, including those imprisoned for self-defense. “I never talked to a survivor who killed her abusive partner who didn’t try every other path available first,” she told Truthout. She has heard numerous stories from survivors who called police only to have their complaints not taken seriously; in some instances, especially for Black women, the police label the victim as the aggressor. She’s also worked with abuse survivors who did not call the police because their partner was a police officer, because they were using substances or because, though they wanted the violence to stop, they did not want their partner to be arrested. Many tried to access shelters or other resources and, because of under-funding, were turned away. For abuse survivors who are also immigrants, fears of detention and deportation, particularly under the Trump administration, have stopped them from seeking assistance.

The National Network to End Domestic Violence found that, in a single day in 2016, nearly 73,000 abuse victims were served. However, nearly 12,000 others made requests for services, including emergency shelter, housing, transportation, child care and legal services, that could not be met because of agencies’ lack of resources.

When services come up short, the blame often falls on survivors. Sue Osthoff is the co-founder and director of the National Clearinghouse for the Defense of Battered Women, a 30-year-old organization that provides support to survivor-defendants. “However the system can blame women for her experiences, it will,” she told Truthout. The response from the legal system — from police to prosecutors to juries — is often, “Why didn’t she get help?” If a survivor did not tell someone about the abuse, the violence can be dismissed as “not that bad.” If she did, then the survivor is blamed for knowing that she should leave but failing to do so.

“I saw this happening before and I see this happening now,” Osthoff reflected. “The details may have changed, but the blaming continues.”

Abuse Survivors Continue to Face the Threat of Long Prison Sentences

Naomi Freeman is a Black mother in Illinois currently facing first-degree murder charges in her boyfriend’s death. As reported earlier in Truthout, Freeman, who was pregnant at the time of his death, spent over six months behind bars before organizers were able to raise the $35,000 necessary to bond her out. They succeeded and, in December 2015, Freeman was released in time to spend Christmas with her two children. A few months later, she gave birth to her third child without handcuffs, shackles or jail guards present. No trial date has been set yet.

White-Domain is currently representing Tewkunzi Green, another Black mother who was incarcerated for the death of her abusive ex-partner. In 2007, Green had an argument with her partner. She tried to leave the house with her seven-month-old son, but her partner physically blocked her way. He then backed her against the kitchen sink before beginning to strangle her. Terrified for both her own life and that of her baby, Green reached behind her and grabbed what turned out to be a knife. She stabbed him and, when he released his grip, fled. He later died and she was charged with first-degree murder.

At her 2009 trial, an expert testified about Battered Women’s Syndrome. Prosecutors, however, painted Green as the aggressor, pointing to a previous argument in which Green threatened to cut up her partner’s favorite pair of jeans with a knife. In response, he broke her coffee table. As the two struggled over the knife, his cousin attempted to intervene and, in the process, was cut in the hand. At trial, Green’s partner’s cousin testified against her. Green was convicted and sentenced to 34 years in prison.

“This is not a case that happened in 1962,” pointed out White-Domain. “This was 2009.” But, she notes, though services and resources for abuse survivors still fail to meet the demand, “many people believe we’ve fixed this problem.” This means that survivors who defend themselves must not only convince juries and judges that the abuse occurred, but that they were unable to access other pathways to escape or end the abuse.

Green was particularly vulnerable in the courtroom because she is Black, according to White-Domain. “I believe the prosecution’s strategy would not be successful if Green had been a white woman,” she reflected.

At the same time, Black women are disproportionately impacted by domestic violence. The Institute on Domestic Violence in the African American Community found that, while Black women comprise 8 percent of the country’s population, they are 22 percent of all intimate partner homicide victims and 29 percent of all female victims of domestic violence homicides. They are also four times more likely to be murdered by a partner than white women.

Anne Patterson is the division director of STEPS to End Family Violence, a New York City organization that works with abuse survivors facing prosecution and imprisonment. Each year, Patterson told Truthout, STEPS supports approximately 60 survivor-defendants facing felony charges within New York City’s five boroughs.

Many other abuse survivors are charged with misdemeanors, such as aggravated harassment, or making a threat via text, social media or another documented way. For abuse survivors, the aggravated harassment can be a message made in fear, anger or frustration, such as, “I don’t know what I’m going to do about this!” It can also be a threat made in the spur of the moment, such as, “If you come near me, I’m going to bust you upside the head.” These misdemeanor charges are often dismissed; if not, the survivor-defendant sometimes pleads guilty.

STEPS recently worked with one survivor-defendant charged with murder. Though the survivor’s attorney actively sought assistance from STEPS and from the National Clearinghouse for the Defense of Battered Women to show evidence of domestic violence, the woman was still convicted and received what Patterson characterized as a harsh sentence.

“There continues to be a failure to create court-wide procedures that address the needs of survivor-defendants,” stated Patterson.

However, New York state is currently considering a bill, the Domestic Violence Survivors Justice Act, that would do just that: It would allow judges to consider abuse when sentencing survivors who are convicted of acts that are directly related to abuse. The Act allows the judge to mete out a shorter sentence than the sentencing guidelines recommend — or to avoid imposing a prison sentence altogether by sending the survivor to an alternative-to-incarceration program. The bill passed in the state Assembly on May 8, but has yet to be voted on in the Senate.

In Illinois, the Corrections-Mitigating Factor law passed in 2016, allowing abuse survivors to petition for re-sentencing if evidence of abuse had not been presented during their initial sentencing. However, no cases have yet gotten to re-sentencing, according to Alexandra Roffman, who worked on the bill as a law student and, as an Equal Justice Works fellow at Chicago’s Cabrini Green Legal Aid, is now helping approximately 40 incarcerated survivors research and draft petitions for re-sentencing.

Increasing Visibility, Organizing and Support for Criminalized Survivors

The increased visibility around these intersections is due, in large part, to grassroots organizing. That organizing has been connecting survivors and advocates across the country through Survived & Punished, a coalition working to end the criminalization of those who have survived sexual and/or domestic violence. Organizing has mobilized people to support survivors like Alexander, Freeman and Meadows as they fight for their freedom.

Public campaigns can tip the balance away from decades in prison. For Marissa Alexander, initially sentenced to 20 years in prison, the outpouring of support not only bolstered her spirits while incarcerated, but also helped with legal expenses and the exorbitant costs of electronic monitoring. Bresha Meadows’ attorney Ian Friedman credits social media and the outpouring of support with shining a spotlight on the issues of domestic and family violence.

But, noted White-Domain who is working on Green’s post-conviction case and has worked with other abuse survivors behind bars through the Illinois Clemency Project for Battered Women, talking publicly about the facts of an individual case can be risky since they can be used against the survivor in court. This risk makes strategizing more challenging for support campaigns and defense committees.

Osthoff, who has been working with incarcerated survivors since 1984 and is thrilled that the movement to support them is growing, noted, “As a defense-based organization, we spend a lot of time talking with defense attorneys about the pros and cons of going public. From our point of view, it’s important to follow the lead of the defense attorneys. They’re the ones who understand the local legal culture and what might backfire. We have seen situations where public attention has worked against the survivor.”

Osthoff pointed out that support doesn’t necessarily need to be as public as a defense committee or support campaign. The National Clearinghouse, which has a staff of four, receives over 1000 letters from survivors in prison. “Some letters start with ‘I’m on my 35th year in prison,'” she said. But even decades after sentencing, their efforts might free someone from prison.

This happened with Ramona Brant, an abuse survivor sentenced to life in federal prison for drug conspiracy in 1995. The National Clearinghouse worked on her case for over 20 years. When the Clemency Project was announced in 2014, the Clearinghouse contacted Brant’s last attorney and asked if he would help her file for clemency. He did and, as a result, Brant was one of the 105 women who received clemency from Obama. Reflecting on Brant and the many other survivors that the Clearinghouse works with, Osthoff mused, “I would like to think some of our invisible work has been helpful over the years.”

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