Excerpted From: Shirley LaVarco, Reimagining the Violence Against Women Act from a Transformative Justice Perspective: Decarceration and Financial Reparations for Criminalized Survivors of Sexual and Gender-based Violence, 98 New York University Law Review 912 (June, 2023) (287 Footnotes) (Full Document)


ShirleyLaVarcoAs feminists, we prize individual autonomy and condemn interpersonal violence, particularly violence understood to be rooted in patriarchy. We organize against sexual harassment in the workplace, protest rape on college campuses, and demand that perpetrators be held accountable for their actions. We renounce victim blaming and slut shaming. We teach our sisters and our daughters that their bodies are their own, not to be degraded by abusive bosses nor regulated by Republican legislators. We reject school dress codes and disrespectful dates, and denounce anti-abortion policies. We teach each other that domestic violence and sexual assault can happen to anyone and that the victim is never to blame. At the same time, liberal feminists--and particularly fellow white feminists--often turn the other way when it comes to violence inflicted on those in state custody.

The carceral state functions much like an abusive marriage, recreating the very harms that liberal feminists denounce in other contexts. Police, prosecutors, and prisons strip individuals of their autonomy; inflict physical, emotional, and sexual violence upon them; and punish them for speaking out and fighting back. People in prison are exploited for their labor, as well as for profit and political advantage, and permanently cast as sub-citizens. These abuses are suffered disproportionately by Black and Brown women; queer, trans, and gender-nonconforming (GNC) people of color; sex workers; drug users; poor, working class, disabled, homeless, and housing insecure people; migrants; and others who do not fit the perfect victim archetype that white feminism dictates.

Black and Brown women, as well as queer and GNC people, have long reckoned with the connection between state violence and interpersonal violence. They are the visionaries of transformative justice and abolition feminism, both of which seek to “reclaim[] ‘accountability’ from the carceral regime” and transform the conditions that make people vulnerable to violence in the first place. They have long struggled against what Beth E. Richie has described as “the buildup of a prison nation,” what Mimi E. Kim has called the “carceral creep,” and what Aya Gruber has dubbed “the feminist war on crime” in which white feminists played, and continue to play, a central role.

In this Note, I urge fellow feminists and anti-violence advocates, and particularly fellow white women, to follow the lead of abolition feminists and embrace a transformative justice approach to antiviolence work. I do so in three ways. First, through my own and others' stories, I illustrate how the criminal legal system not only fails to keep people safe from sexual and gender-based violence (S/GBV) but also actively exposes them to and inflicts upon them such violence. In so doing, I draw from the rich narrative traditions of critical race theory and critical legal studies, which have long recognized storytelling as a “powerful means for destroying mindset”--where “mindset” refers to the “presuppositions, received wisdoms, and shared understandings” by which “members of the dominant group justify the world as it is” to keep white supremacy and other social hierarchies intact. Second, I weave together knowledge produced by scholars across disciplines, as well as by transformative justice organizers and practitioners, to situate my illustrations in a historical landscape of carceral violence and resistance. Third, I build on the written work of those scholars, organizers, and practitioners to propose transformative justice approaches to S/GBV. Specifically, I propose that we use the Violence Against Women Act (VAWA) to decarcerate criminalized survivors of S/GBV and to pay them financial reparations for the violence the state has inflicted upon them. This Note is, in part, a response to Leigh Goodmark's proposal for an anti-carceral VAWA, as well as to the advocacy of groups like Survived and Punished, which have made urgent and persistent demands that all criminalized survivors be freed. I expand on this work by introducing several untold and undertold stories of criminalized S/GBV survivors into the scholarly landscape, which illustrate the imperative for both decarceration and reparations. I also offer VAWA as a practically and symbolically appropriate platform for decarceration and reparations.

The Note proceeds in five Parts. Part I provides an autoethnographic account of my own experience with childhood poverty and sexual abuse and explains how police intervention, in tandem with an inadequate social safety net, only made me and my family more vulnerable. Part II summarizes the literature on how carceral approaches to S/GBV came to dominate, driven largely by white women in the battered women's and anti-rape movements over the objections of Black feminists and other feminists of color who recognized policing and prisons as violent institutions of white supremacy. Part III details the stories of several criminalized survivors of S/GBV who have been prosecuted and punished for the conduct of their abusers or for fighting back against their abusers and assailants. These stories have received little or no attention in legal scholarship on S/GBV and little or no sympathetic coverage in mainstream media. Part IV draws an extended analogy to illustrate how prisons mirror the dynamics of an abusive relationship by subjecting individuals to rampant emotional, physical, and sexual violence. Part V proposes that we reimagine VAWA as a platform for transformative justice approaches to S/GBV, and specifically as a mechanism to decarcerate criminalized survivors and pay them financial reparations.

[. . .]

In this Note, I have illustrated how the carceral system not only fails to account for the needs of marginalized survivors of S/GBV, but also recreates the very same types of harms it purports to sanction. It does so by prosecuting and punishing multiply marginalized S/GBV survivors as well as by subjecting detained and incarcerated people to physical, emotional, and sexual abuse. What's more, it hoards valuable resources, siphoning off hundreds of billions of dollars each year that could otherwise be spent on the types of social and economic infrastructure and support that actually increase safety and autonomy among those most vulnerable to S/GBV. The effects fall disproportionately on Black and Brown women; queer, trans, and gender-nonconforming people of color; sex workers; drug users; poor, working class, disabled, homeless, and housing insecure people; migrants; and others who do not fit the perfect victim archetype that white feminism dictates. VAWA has been a key feature of this landscape, representing a massive financial and political investment in carceral feminist approaches to S/GBV. Accordingly, I have proposed that we begin to reshape VAWA from a transformative justice perspective, specifically as a means to facilitate the immediate release of incarcerated S/GBV survivors, as well as by reallocating VAWA funds towards financial reparations for criminalized survivors, including those who have endured S/GBV while incarcerated.

Of course, anti-violence work cannot stop there. We know that freedom from confinement and material resources are what many vulnerable people who experience S/GBV most need in order to survive. But we must also ask: What do survivors of S/GBV need to heal? Police, prosecutors, and courts do not often ask this question and when they do, they are ill-equipped and unmotivated to respond accordingly. Fortunately, many of those who do anti-violence work, particularly practitioners of transformative justice, have engaged deeply with survivors on this question. We should heed their wisdom and follow their example. One way to do so is by listening to the voices and acting on the stated needs of those survivors of S/GBV who the carceral system has abandoned and abused.

For example, Tomiekia Johnson, who readers will recall is currently serving a life sentence for fatally shooting her abusive husband in self-defense, told a reporter in 2020:

You need people to love you and care for you and show you the error of your ways to help you understand why you were in those positions in the first place--and not to be punished for actions that you may have taken to save your own life or save your loved one or save your child.

We owe Tomiekia Johnson her freedom and we owe her reparations. And we owe it to her and to ourselves to build a world where no one is punished for defending themselves against sexual or gender-based violence. More still, we must imagine and build a world where Johnson and other survivors of interpersonal and state violence can heal and thrive among loved ones in their homes and communities.

Shirley LaVarco. J.D., 2022, New York University School of Law; B.A., 2016, New York University.