In The Death Penalty: Vol. 1, Jacque Derrida attributes the origins of penal law to commercial law: “it is the law of commerce, debt, the market, the exchange between things, bodies and monetary signs, with their general equivalent and their surplus value, their interest.” A relationship, Judith Butler explains, that “establish[es] the principle of equivalence according to which a relation is set up ‘between the crime and the punishment, between the injury and the price to be paid.’” A paradigm of criminal justice thus modeled on a creditor-debtor relationship early established itself as the enduring logic through which to approach crime, and inevitably when transacted through the criminal legal system, precludes the possibility of repayment of debt.
Efforts to reform if not abolish the carceral state and attempts to mitigate Derrida’s version of a perpetual debtor-creditor relationship have increased. Community campaigns, legislative initiatives, litigation, and policy proposals have sought to challenge stop-and-frisk practices, monitor police abuses, limit pre-trial detention, and obtain compassionate release related to COVID-19. In this essay, I argue that efforts at mitigation often fail to include problem of gender violence within the scope of these reform initiatives. The practiced carceral responses to domestic violence pass largely uncontested. Proposals that challenge punishment as the dominant remedy to social problems fail to address the criminal law responses that govern gender-based violence. This net effect is to condemn the person who committed this type of harm to a permanent state of the criminal debtor. No less important, it may also deny the person who was harmed the opportunity of a fair accounting of her needs rarely met by the criminal legal system.
Consider the matter of unlawful stop-and-frisk practices, for example, encounters often experienced as sexual assault, particularly by Black, brown, and LGBTQ persons. Andrea Ritchie has criticized police sexual abuse practices, including forced, traumatic vaginal searches that often take place in plain view of passersby. Yet women frequently have been excluded from the dominant narrative about stop-and-frisk and the harms it causes. Their complaints were not included in the several well-known civil rights lawsuits filed on behalf Black and brown persons who suffered harassment, unlawful stops and searches in New York. Nor did mainstream domestic violence agencies with historic ties to law enforcement join the Communities United for Police Reform (CUPR), the city-wide coalition formed to end stop-and-frisk practices and policies. The failure to include the gendered nature of abusive police practices from the litigation and the absence of anti-domestic violence and sexual assault agencies from CUPR has complicated efforts to settle the suit which devolved into a focus on body cameras as a means to reform police behavior. Body cameras have been largely rejected as meaningful reform. No less important, however, body cameras are inimical to the personal agency and privacy interests of survivors of gender-based violence. Yet debates about the settlement proceedings did not analyze the impact on survivors of gender violence-related crimes.
The failure to include gender violence offenses within progressive reform initiatives not only diminishes the lived experiences of survivors of such types of harm, but it often serves to categorize those who have engaged in such harm as unworthy of the benefits of reform. For example, in recent years, citizens in several states voted in favor of bail-reform measures. Yet individuals charged with gender violence-related crimes are often excluded from these reform efforts. They may be disqualified either explicitly or because the acts they committed are categorized as violent crimes, whether charged as felonies or low-level misdemeanors. Similarly, coalitions of advocacy groups offering COVID-related recommendations to Congress, most notably proposals to reduce incarceration, have excluded individuals charged with offenses that “involve[s] a specific allegation of intentional use of force to cause serious bodily injury against the person of another”—a category most likely to implicate crimes of domestic violence. Calls to end probation violations also omit domestic violence related offenses. “Progressive prosecutors” examining ways to reduce rates of incarceration have created categories of criminals who will not benefit from their efforts—categories within which domestic violence perpetrators are likely to fit. State ACLU chapters effectively removed domestic violence crimes in their COVID-19-related recommendations, urging police to “cease arrests for low-level offenses and issue citations or desk-tickets in lieu of other arrests so that people can return home.” In some instances, persons accused or convicted of crimes of domestic violence are specifically excluded from COVID-related release. One important exception are a few groups that have demanded the release of all women prisoners, including women who have been convicted of domestic violence offenses.
It is reasonable to assume demands to release persons incarcerated, advocates may choose to be as politically opportunistic as necessary to secure decarceration. Just as importantly, gender violence—and especially domestic violence—is indeed a different type of violent crime. Violence in the home—in the multiple forms domestic violence may take—undermines one’s core sense of safety and security. The emotional and material attachment between the person who has harmed and the person harmed stand apart from other types of relationships involving criminal behavior. Survivors of domestic violence often need and desire protection from further harm; however, as study after study demonstrate, carceral responses fail to meet the needs of survivors of gender-based violence. Accountability efforts are best addressed within restorative and transformative systems outside of the criminal legal system.
Projects to bring gender-based violence within the realm of abolitionist reforms are not without challenge. Gender-based violence often serves as the stalking horse for those who make their case in opposition to abolishing the police. The failure to include gender-violence crimes within progressive initiatives contributes to problematic narratives that view these types of offenses—and specifically domestic violence—as behavior perpetrated by deviant individuals without attention to the determinants of such behavior. Poverty, economic disparity, and downward mobility contribute to a broad range of social harms—from human rights violations to public health crises—apply no less to domestic violence offenses. As with other forms of violence, domestic violence cannot be ascribed simply to matters of individual pathology or personal characteristics. Individual behaviors are contingent and conditioned by social circumstances. They possess sociology.
Ruth Wilson Gilmore has long addressed the moral and practical dangers of deeming individuals as worthy—or unworthy—of abolitionist efforts. She correctly observes that we may attach ourselves to false narratives about violence and the pernicious effects of responding to violence with the state violence, that is, the criminal legal system. Abolitionist principles commit to thinking “outside the criminal punishment system for what accountability and healing from harm could look like” and “condemn[s] the prosecution of anyone.” Social justice movements continue to work towards building community-based means of providing protection and addressing the harms caused by gender-based violence without resorting to the criminal legal system. As Mariame Kaba has observed, there should be no exceptions neither prerequisites for seeking an end to carceral practices.