Why Are We Jailing Domestic Violence Victims?

Our legal system treats domestic violence victims like criminals.
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s.e. smith
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Our legal system treats domestic violence victims like criminals.

After a "domestic fight that went too far," Kristen Loupe was ordered to testify against her partner, David Adams — but somehow, she's the one who ended up in jail

If jailing the victims of domestic violence sounds completely bananas to you, you're in good company, but you might be surprised to find out that it happens on the regular across the United States. People who are already experiencing physical and emotional trauma as a result of violence in what should be a safe space are further traumatized by a legal system that at times seems stacked against them, highlighting the need for urgent criminal justice reform.

One in three women and one in four men in the United States experiences intimate partner violence at some point during their lives, and many of them experience long-term psychological issues, like PTSD, as a result. Those issues play a profound role in whether and how victims report to law enforcement, and tragically, they're sometimes weaponized against them. 

In Loupe's case, when the District Attorney pressed her on the stand and asked her multiple times if she'd been hit in the face, she refused to comment. In response, the DA insisted on arresting her for filing a false police report, even though her initial report said nothing about being hit in the face. She was carted off to jail, and conditions in her cell were so poor that she developed parathesia and the beginnings of frostbite. Her reward for approaching law enforcement for help was jail, paired with a potentially dangerous medical condition. 

This isn't at all uncommon. In Maine, two women were arrested for refusing to testify in 2013 and 2014. 

In a high profile Florida case, a judge rebuked a victim in the courtroom for refusing to take the stand and then jailed her when she didn't comply — later, the judge was ordered to accept a public reprimand for her actions. When asked why she was unwilling to testify, the woman said she was dealing with intense anxiety, and the judge responded: "You think you're going to have anxiety now? You haven't seen anxiety."

Many domestic violence victims don't want to testify after the initial crisis has passed — and sometimes even before, with some being reluctant to file a police report. There are a lot of reasons for that. In this case, the woman said that she was worried he'd lose his job and be unable to pay child support — she was worried about being homeless or experiencing other financial hardships. Other women are afraid of retribution, or convinced that they'll be able to work it out somehow if they try harder. Others are ashamed about being victims of domestic violence, and thus unwilling to speak openly about it on the record in a courtroom. 

Many are experiencing various forms of PTSD, or what some people have historically called "battered woman syndrome." While people associate PTSD with war, it actually applies to any kind of trauma, which has the potential to create stress and psychiatric effects like depression, hypervigilance, anxiety, flashbacks, difficulty sleeping, irritability, feelings of guilt or shame, or mood changes. Domestic violence often takes the form of systemic, chronic trauma, and the cumulative effect can be devastating for victims. 

When it builds to a head and law enforcement gets involved, some victims are eager to testify and play a highly collaborative role in the process of bringing their assailants to justice. Others are not, though, and penalizing them for being afraid or unwilling to testify doesn't accomplish anything — a growing number of states are actually changing their position on compelling victims to testify.

Some law enforcement officials, as well as some domestic violence advocates, argue that victims have an obligation to testify. Their rationale goes that forcing people to testify can prevent future incidents of domestic violence, and can help them get justice and move on with their lives. People apply the same logic to rape victims, insisting that they have an obligation to report and testify, as though they are somehow at fault if their rapists go on to attack someone else. 

The only people responsible for committing acts of domestic violence, though, are abusive people, just as the only people responsible for rape are rapists. Actions like these further add to the experience of shame and stress experienced by victims, as they come away thinking that they're to blame for their experiences, and that anything else that happens to them will be their fault. 

Fearing the consequences of reporting, people may endure domestic violence because they don't see an alternative — they don't want to be compelled to testify, they're afraid that they can't support themselves on their own, or their partners are threatening them, their children, or their pets if they attempt to leave. 

Those feelings of being trapped or hopeless in a high-stress situation can lead to fatal consequences. Some victims start fighting back, creating a horrific turn of legal events: Suddenly the victim is treated as the perpetrator in the eyes of the law, and she's arrested for defending herself. In some instances, violence escalates to the point where that defensive violence may include killing an abusive partner, but rather than being viewed as self defense, it's treated like murder.

In other instances, victims terrified to leave a violent relationship may find themselves in jail for failing to protect their children from fatal violence, in a form of dual punishment. Instead of being recognized as grieving parents who were trapped in an untenable situation, they're treated like criminals, regardless as to their psychological state or the complex factors that may have pressured them to stay in an abusive relationship. 

Loupe and women like her are part of a much larger legal framework in the United States that hasn't caught up to the latest science behind domestic violence and how victims respond to it. That framework is endangering victims and their families, and the sluggishness on criminal justice reform to adjust the way we view and handle domestic violence is a serious problem. When victims are brave enough to reach out for legal resources and support, they should be handled as they are: Victims of psychological and physical trauma that may have persisted for weeks, months, or years. 

They aren't criminals, and every time they're treated as such by the legal system, other victims take note and retreat, even more afraid of coming forward than they were before.

If you or someone you know is experiencing intimate partner violence, contact the National Domestic Violence Hotline at 800-799-7233 or 800-787-3224 (TTY).