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SCOTUS Ruling on Homelessness May Further Endanger Domestic Violence Survivors

Criminalizing homelessness only enacts more barriers for survivors that often leave them with few viable options.

Homeless rights activists hold a rally outside of the U.S. Supreme Court on April 22, 2024, in Washington, D.C.

In a 6-3 decision, the Supreme Court has ruled in the case of Grants Pass, Oregon v. Gloria Johnson, to uphold a law enacted by a small Oregon town that bars those experiencing homelessness from using blankets, pillows and cardboard boxes while sleeping outdoors within city limits. Those who are found doing so can impose fines for camping in public on first-time offenders and up to 30 days of jail time for repeat offenders. It’s a case that has major implications for survivors of domestic violence, experts say.

Lawyers for the plaintiffs in this case have argued that barring camping on public property effectively criminalizes people for being unhoused. The case before the Supreme Court focused on the question whether the enforcement of the Grants Pass law constitutes cruel and unusual punishment.

Writing for the majority, Justice Neil Gorsuch said in his opinion, that the law in Grants Pass does not constitute “cruel and unusual punishment” because such laws “are not designed to ‘superad[d]’ ‘terror, pain, or disgrace’” and “because similarly limited fines and jail terms have been and remain among ‘the usual mode[s]” for punishing criminal offenses throughout the country.’”

Gorsuch continued in his opinion, “Grants Pass’s public-camping ordinances do not criminalize status. The public-camping laws prohibit actions undertaken by any person, regardless of status. It makes no difference whether the charged defendant is currently a person experiencing homelessness, a backpacker on vacation, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.”

The court in April heard oral arguments for the case, one of the most significant Supreme Court cases on the unhoused in over 40 years, as “camping ban” legislation exists not only in Grants Pass, but in municipalities nationwide. The ruling means that all jurisdictions with these laws are free to enforce them, and others looking to address the homelessness crisis in America through punitive measures now have a court-ordained model for doing so. According to the U.S. Department of Housing and Urban Development, more than 600,000 people in the United States were houseless on any given night in 2023.

But experts tell The 19th that the Grants Pass case, and today’s ruling, has implications beyond the criminalization of housing status and could further limit options for safety and security — and the possibility of stable housing — for survivors of domestic violence. Fifty-seven percent of unhoused women report domestic violence as their immediate cause of homelessness.

In her dissent, Justice Sonia Sotomayor cited this rationate, pointing to the “almost 60% of those experiencing homelessness [that] report that fleeing domestic violence was the ‘immediate cause.’” Justices Elena Kagan and Ketanji Brown Jackson joined Sotomayor in her dissent. “For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional. Punishing people for their status is “cruel and unusual” under the Eighth Amendment,” the dissent reads.

Kate Walz, a senior staff attorney at the National Housing Law Project (NHLP) and an expert on housing rights and domestic violence, told The 19th that throughout her 20 years as a Legal Aid attorney, she routinely saw situations where domestic abusers would try to make their victims homeless — “and they know how to manipulate systems to make that work.” They may call the police on their victim, or call the public housing authority and self-report that they are living in the home of their victim when they are not supposed to, even though they’re not — all to jeopardize a victim’s housing status.

“They will take steps to sabotage whatever minute stability a victim might have so that they’re homeless, because then they know there is an increased chance that the survivor will return to them.” Criminalizing being unhoused, Walz said, only serves to enact more barriers for survivors by creating a set of “impossible choices” that often lead them with few viable options for securing their and their family’s safety.

“If local governments are authorized to enact local policies that allow them to find and arrest people because they are living outside, they are really being complicit in the increase of gender-based violence against survivors without homes,” Walz said. “Maybe a park looks cleaner and safer to sleep in than a home that might increase the risk of violence to a person’s body. This law says that we as a society should accept a person having to accept the risk of violence.”

Keri Moran-Kuhn is the associate director of the Oregon Coalition Against Domestic Violence, which helps fund and manage a community-based, non-governmental domestic violence program in Grants Pass, including a family shelter there. “They’re always full,” she told The 19th. “It’s just the need. It’s as great there as it is across the country.”

Moran-Kuhn stressed that one of the key facets of domestic violence is isolation — and many survivors do not have family and friends or have been isolated from them and have no one to turn to for help. And for housing, “if they do not have a place to go, if their local domestic violence program has a full shelter or there is not another safe area to go, they will potentially become homeless.”

For many survivors, this looks like sleeping in your car, moving it nightly to avoid detection from an abuser. But in many parts of rural Oregon, and for those who may not have a vehicle, this looks like camping outside, Moran-Kuhn said. “Being fined, ticketed, arrested and punished for living outside when they have no other place to go, that’s just adding to the trauma that they’ve experienced and it’s also pushing them further into poverty.”

In Oregon, the situation is particularly acute right now, she said. “Our cities are struggling, our rural areas are struggling — in Oregon, we have a severe housing crisis. And what that looks like on the ground, both in our urban and rural areas in Oregon, is that there are not enough shelter beds,” Moran-Kuhn explained. “If there’s a waitlist and they can’t get in and they’re calling in the middle of the night when they’ve left with nothing but the clothing on their back and now there’s not a bed for them — where do they go?”

The domestic violence shelter in Grants Pass is small, housing a maximum of 15 families. She said that many people drive from more rural parts of the state, often for an hour and a half or two hours, to get to it because of a lack of shelter services where they are.

Homeless shelters, Moran-Kuhn explained, don’t provide the level of trauma-informed care that domestic violence survivors and their families need, particularly for children. “It can actually be more dangerous to go to a shelter depending on what type of shelter it is and what safety structures exist around them. Transition services are few and far between and permanent housing is at an all-time low in Oregon right now.”

Monica McLaughlin, the senior director of public policy at the National Network to End Domestic Violence, told The 19th that the Grants Pass case ignores what she describes as a “simple solution” to the situation in which so many survivors find themselves. “It’s housing. We need more housing stock to be created. We need more housing subsidies to be created. We need our housing protections for survivors to be strengthened and implemented.” She notes that there are many existing federal housing protections for survivors of domestic violence — and investment in strengthening and implementing those is especially critical right now.

McLaughlin points to a recent HUD rule her colleagues submitted comment on, to not deny people housing based on criminal records. “That’s a huge step from our perspective. Survivors of gender-based violence who have any sort of criminal record have a hard time accessing housing.” Criminalizing being unhoused only further perpetuates that cycle. “If we criminalize folks whose crime is living outdoors, then do they just not get any housing?”

In the meantime, she said, the Grants Pass ruling feels like a societal and cultural gesture of “throwing their hands up around domestic or sexual violence, like saying, ‘Well that’s just what’s going to happen,’ rather than having any solution for survivors of violence.”

Walz explained that the issue is even more critical for survivors who are also parents, whose housing status can trigger the involvement of child welfare services — and can result in a survivor losing custody of children. McLaughlin added that in understanding the stakes of the Grants Pass decision, it is critical to remember that moving to another town isn’t a simple option — especially for those who are parents and often trying to make decisions that allow their children to stay connected to their schools, trusted child care options, and neighborhood support systems while navigating how to survive and leave a violent situation.

Given the limited number of family shelter beds available, many survivors opt to sleep outside with their children in the hopes that this will keep them safe from the violence they are experiencing in their home.

McLaughlin adds that in a child welfare investigation, case workers look for a child having a habitable, comfortable and safe home to live in. A criminal record can preclude someone from accessing the kind of housing that would meet these kinds of standards. Without a shelter to go to and given the risks of taking children to sleep outdoors, many survivors are then forced to stay with or return to an abuser to guarantee the presentation of stable housing for their children.

Writing in her dissent, Sotomayor said, “Criminalizing homelessness can cause a destabilizing cascade of harm,” pointing specifically to the impact of a criminal record on being able to access government benefits, including housing.

Many people also become unhoused, Walz said, because of other forms of gender-based violence. In an amicus brief submitted to the Supreme Court by NHLP, the group tells the story of a woman who was sexually harassed for years by her landlord, who routinely demanded sex for rent. “She didn’t tell anybody, because she was finally in a home after years of being unhoused,” Walz said. “She didn’t feel safe enough that if she spoke up, there was a system that would hold the landlord accountable, protect her, and keep her housed somewhere else.”

Walz said that these are the kinds of choices survivors routinely face on a daily basis, weighing the risks of safe shelter that might expose them to violence against the risks of living outside, of going back to an abusive partner and being able to keep their children or facing the risk of arrest in sleeping outdoors and inviting the child welfare system into their lives. She said she also thinks about the level of economic abuse that many survivors experience. “It’s not just about being hit — it’s about power and control over a person’s finances. I think most people don’t understand how easy it is to be in a position where you cannot get rental housing, your credit’s been destroyed, you have an eviction history related to the violence and the economic abuse, you may have a criminal history related to the violence — and all of those things are on full display to prospective landlords.”

In sanctioning the law in Grants Pass, the Supreme Court has “increased the risk of continued violence against survivors in this country. This will give a crude weapon to harm-doers to further control them, because they have this power that if you are unhoused, you could go to jail,” Walz said.

But she stressed that the Supreme Court is not saying that a jurisdiction must do what Grants Pass has chosen to do in banning camping outside in public places, but rather that it is something they legally can do. For other municipalities watching today’s news, Walz said, “We would urge a different outcome, a different outlook, one with more compassion, more education, and more understanding.”

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