As New York drives towards criminal justice reform, there is debate over whether offenses like sexual and domestic violence should be exempt from these critically needed changes. But legislation to reform New York’s bail and discovery laws will protect victims of violence—particularly when they become defendants.
Criminalization has been the primary policy response to domestic violence in the United States for the last forty years. But criminalization has a number of unintended consequences. For example, research shows that under- and unemployed men are more likely to commit domestic violence—and men are more likely to be unemployed when they interact with the criminal legal system. In this way, criminalization can exacerbate harms that contribute to intimate partner violence and strip survivors – many of whom do not want their partners incarcerated – of their agency. Bail reform that reduces pretrial incarceration could address this harm.
But “survived and punished” victims will benefit most from these reforms. A serious unintended consequence of criminalization has been the increase in the arrest and prosecution of victims of violence. Some surveys show that one in four victims are arrested or threatened with arrest after reporting to police—even when those victims are injured. People of color, low-income people, and LBGTQ people are disproportionately affected by these policies. The arrest and pretrial detention of victims of violence is a serious injustice and can lead to unemployment, loss of housing, and increased trauma. For undocumented victims, arrest can result in deportation.
Opponents of the reform bills have failed to acknowledge how criminalization has harmed victims of violence and how these bills could alleviate those harms. Low-income women are significantly more likely to become victims of violence—and to struggle to come up with monetary bail, leading to extended pretrial incarceration. Because of New York’s regressive discovery laws, victims who are arrested do not receive information from prosecutors until shortly before trial, making it impossible to make crucial decisions about their cases. Requiring that prosecutors turn over information early in a case can give victims the ability to prepare a defense that explains their histories of victimization or negotiate with prosecutors who might drop a case if they understand the context.
The legislation currently proposed in Albany contains safeguards for victims of violence. The Discovery for Justice Reform Act allows judges to grant protective orders when they have good cause to believe release of information could put a witness or victim at risk. In cases involving domestic violence and acquaintance sexual assault, confidential information may already be available to the defendant. Defendants and victims in these cases know each other, and information like addresses may already have been disclosed in other venues, like civil protection order hearings. But where information is confidential—when a victim relocates because of violence or in the case of a stranger-perpetrated sexual assault—the judge has the discretion to keep information confidential. The discovery bill properly places responsibility for that determination with a neutral judge, rather than allowing prosecutors, who have an interest in withholding information, to make those decisions. Similarly, the bail bill proposed in the Senate puts strict limits on pretrial incarceration, but allows a judge to consider violation of a domestic violence restraining order in determining whether to hold a defendant before trial.
The easy part of criminal justice reform focuses on victimless crimes like drug use. The more difficult work is confronting how we handle allegations of violence. We will not achieve meaningful criminal justice reform unless we commit to protecting due process and the presumption of innocence for all people regardless of charge. Domestic and sexual violence must be part of that conversation. By enacting criminal justice reform, New York has the opportunity to remedy the injustices faced by all defendants—including those who have survived violence and been caught in the justice system.
Leigh Goodmark is Director of the Gender Violence Clinic and a Professor of Law at the University of Maryland Francis King Carey School of Law. She is the author of Decriminalizing Domestic Violence: A Balanced Policy Approach to Intimate Partner Violence. She has represented victims of violence for twenty-five years.