Emancipatory Education

Emancipatory Education

by Rashaad Thomas – Arizona State University

 

Amendment XIII

Section 1.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

During Arizona State University’s (“ASU”) Fall Semester 2014, I was enrolled in a course held at the Sandra Day O’Connor College of Law (“SDOCCL”). The first day of the semester, I took a free moment to tour the beautiful, yet unfamiliar building. During my tour, I noticed that there were only two other people who looked like me out of the large number of people present. The only two people were faces of color on a faculty profile photo poster.

While reflecting on the poster of faculty it was clear, there is a lack of representation of Black faces at ASU’s college of law. As a person of color, this lack of representation can be interpreted as a form of symbolic violence that has gone unchallenged since the establishment of the law school in1964—ironically, the same year the Civil Rights Act (Pub.L. 88-352, enacted July 2, 1964) was passed. Sociologist, Pierre Bourdieu defines symbolic violence as shared cultural practices exercised by a social agent with his or her complicity. It therefore relates to the imposition of power and control of people within an institution that results in relationships in which the dominated are treated inferior, denied access to resources, and limited in social mobility and personal aspirations. (Webb et al. 2002). I walked out contemplating, “Are people like me welcomed at the SDOCCL? If, SDOCCL is a representative of ASU, am I safe on its campus?”

Many think that racial issues were solved when Brown vs. Topeka’s Board of Education deemed segregation illegal or that racial issues no longer exist because President Barack Obama was elected the First Black President in 2008. However, evidence suggests that the unresolved issues of race continue and can be found in between the lines of the Emancipation Proclamation and the United States Constitution’s Amendment XIII.

Contrary to popular belief, the Emancipation Proclamation and Amendment XIII were not documents created or passed to end slavery. President Abraham Lincoln signed the Emancipation Proclamation to gain favor from Congress, end the Civil War, and secure his re-election as President of the United States of America. It declared, “all persons held as slaves within any State, or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then thence forward, and forever free.” (Emancipation Proclamation 1863). The Emancipation Proclamation’s promise of liberty was undercut by President Lincoln’s approval of a Joint Resolution of Congress, which sent Amendment XIII to the state legislatures for ratification with the intent that slavery and/or involuntary servitude be permitted as punishment for a crime. Amendment XIII was finally passed by the Senate in February 1, 1865. (The House Joint Resolution 1865).

Today’s alarming data on incarceration displays how, through its institutions, the United States dispossess and disenfranchises people of color and the poor by investing large sums of capital in support of federal, state, and private prisons. (The Sentencing Project 2014).   The data indicates that prisons have replaced plantations and slaves have evolved into prisoners: Blacks, Latinos, homeless, disabled, military veterans, and the poor. In her book, “The New Jim Crow: Mass Incarceration in the Age of Colorblindness” Ohio State University law professor and civil rights advocate, Michelle Alexander, states, “more African-American adults are under correctional control today – in prison or jail, on probation or parole – than were enslaved in 1850, a decade before the Civil War began.” (Alexander 2012). It is my argument that predominantly white institutions, including institutions of higher education, are advocates of discrimination against people of color and the poor by failing to rectify and thereby ignoring the barriers that challenge their existence and their success.

Malcolm X once stated, “When you live in a poor neighborhood, you are living in an area where you have to have poor schools.  When you have poor schools, you have poor teachers.  When you have poor teachers, you get a poor education.  When you get a poor education, you are destined to be a poor man and a poor woman the rest of your life.” (Beito 2010). The following statistics support this proposition:

  • Black students accounted for 18 percent of the country’s pre-K enrollment, but made up 48 percent of preschoolers with multiple out-of-school suspensions. (U.S. Department of Education Office for Civil Rights 2014).
  • Black students were expelled at three times the rate of white students. (Hsieh 2014).
  • Prisons consist of 38% Black men while Black men only make up 6% of the US population. (The Sentencing Project 2014).
  • The national unemployment rate is 5.6% but the Black unemployment rate is 11.4%. (Bureau of Labor Statistics 2015)
  • Black Americans make up 12% of the US population, but 26% of the poverty rate.       (Macartney, Bishaw & Fontenot 2013).

Amendment XIII has resulted in a systemic civil war against people of color and the poor by building a society around legal dehumanization and enslavement that predominantly affects persons in lower social classes and even more predominantly those of color. I remember reading in the Autobiography of Malcolm X that he once aspired to be a lawyer. However, his eighth grade teacher Mr. Ostrowski thought differently about his goal saying, “Malcolm, one of life’s first needs is to be realistic. Don’t misunderstand me, now. We all here like you, you know that. But you’ve got to be realistic about being a nigger. A lawyer – that’s not [a] realistic goal for a nigger. You need to think about something you can be.” (Hayley 1965). I left ASU’s SDOCCL asking, “Is the lack of faces of color at ASU’s SDOCCL implicitly echoing the voice of Malcolm X’s eighth grade teacher suggesting Black folks need not apply?”

References

Alexander, Michelle. (2012). The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York. The New Press.

Angulo, Carlos and Weich, Ronald H. (1997). Justice on Trial: Racial Disparities in the American Criminal Justice System. Retrieved from http://www.civilrights.org/publications/justice-on-trial/juvenile.html

Beito, David T. (27 April, 2010). Malcolm X Defends the Second Amendment. Retrieved Video from http://historynewsnetwork.org/blog/126022

Bureau of Labor Statistics. (2015). Economic News Release: Employment Situation Summary. Retrieved from http://www.bls.gov/news.release/empsit.nr0.htm

Carson, E Ann, Ph.D. (2014). Prisoners in 2013. Retrieved from

http://www.bjs.gov/content/pub/pdf/p13.pdf

Emancipation Proclamation, January 1, 1863; Presidential Proclamations, 1791-1991; Record Group 11; General Records of the United States Government; National Archives. Retrieved from http://www.ourdocuments.gov/doc.php?flash=true&doc=34

Hayley, Alex. (1965). The Autobiography of Malcolm X: As Told To Alex Haley. New York. The Random House Publishing Group.

Hsieh, Steven. (21 March, 2014). 14 Disturbing Stats About Racial Inequality in American Public Schools. The Nation. Retrieved from

http://www.thenation.com/blog/178958/14-disturbing-stats-about-racial-inequality-american-public-schools#

Macartney, Suaznne, Bishaw, A., & Fontenot, K. (2013). Poverty Rates for Selected Detailed Race and Hispanic Groups by State and Place: 2007-2011. Retrieved from

http://www.census.gov/prod/2013pubs/acsbr11-17.pdf

National Association For the Advancement of Colored People. (2009). Criminal Justice Fact Sheet. Retrieved from http://www.naacp.org/pages/criminal-justice-fact-sheet

The House Joint Resolution proposing the 13th amendment to the Constitution, January 31, 1865; Enrolled Acts and Resolutions of Congress, 1789-1999; General Records of the United States Government; Record Group 11; National Archives. Retrieved from http://www.ourdocuments.gov/doc.php?flash=true&doc=40

The Sentencing Project. (2014). Facts About Prisons and People In Prison.

Retrieved from http://sentencingproject.org/doc/publications/inc_Facts%20About%20Prisons.pdf

The Sentencing Project. (2014). Felony Disenfranchisement Laws In the United States. Retrieved from http://sentencingproject.org/doc/publications/fd_Felony%20Disenfranchisement%20Laws%20in%20the%20US.pdf

U.S. Department of Education Office for Civil Rights. (2014). Civil Rights Data Collection Data Snapshots: School Discipline. Retrieved from
http://www2.ed.gov/about/offices/list/ocr/docs/crdc-discipline-snapshot.pdf

Webb J, Scirato T, Danaher G. 2002. Understanding Bourdieu. London: Sage.

http://sentencingproject.org/doc/publications/inc_Trends_in_Corrections_Fact_sheet.pdf

Home for a Victim

Home for a Victim

Andrew Orozco, Arizona State University – Sandra Day O’Connor College of Law

Sex trafficking. Few crimes match its level of depravity and violation of human dignity. So many people fall victim to it. Women, children, and even men are all potential targets. Young people from troubled backgrounds in particular, are vulnerable[1]. Predators come into their lives; lure them in with incentives such as wealth, romance, and others[2]. Once they have their victims where they want them, they utilize various methods to keep hold of them. It is not just through physical abuse. Methods such as psychological pressure, bondage debt, and fraud to name a few are utilized as well[3]. The victims that are lucky enough to survive this ordeal still have another challenge ahead. The victims have to begin the long process of recovering from the trauma experienced from it. For some, the ordeal goes on to last the rest of their lives. Roughly 100,000 to 300,000 American youth alone are at risk of sexual exploitation every year[4].
No one would deny that not a single person should go through such an experience. The lives involved, the moral imperative, and America’s social identity to be against it demand justice. Because of this, it is important society support these victims just as much as it is willing to put the monsters responsible behind bars. Unfortunately, that is not always the case. About 82% of sex trafficking victims on probation in Maricopa County alone are addicted to drugs or alcohol[5]. We see instances where victims who are rescued, end up going back to the same lifestyle out of necessity or other reasons[6]. Food, shelter, opportunity, and intangible support needed to get through this experience are all needed.

Helpful ways to ensure that these resources are going to their needed destination include sufficient supply to meet the particular population as well as to institute the procedures to lead these victims to these resources. As the VERA institute helps show, identifying these victims is not easy and requires certain approaches[7].

While resource scarcity will always be an issue society faces, it must not forget to stand by those that we in good conscience cannot abandon.

[1] http://www.endsextrafficking.az.gov/about-human-trafficking.html

[2] http://www.polarisproject.org/human-trafficking/sex-trafficking-in-the-us

[3] http://www.polarisproject.org/human-trafficking/sex-trafficking-in-the-us

[4] http://www.endsextrafficking.az.gov/about-human-trafficking.html

[5] http://www.endsextrafficking.az.gov/about-human-trafficking.html

[6] See Sherri L. Zack & Ruben Perez, Challenges in Federal Sex Trafficking Prosecution, Hous. Law., September/October 2012, at 18, 19.

[7] Vera Institute of Justice. Guidelines for Administering Trafficking Victim Identification Tool. Page 3. http://www.vera.org/sites/default/files/resources/downloads/human-trafficking-identification-tool-and-user-guidelines.pdf

Gun Control and Prevention of Violence in Schools

Carolyn Camplain – Sandra Day O’Connor College of Law, Arizona State University

Even though violence in primary and secondary schools (kindergarten to twelfth grade) is extremely prevalent (about 1,466,00[1]), every year only about two percent of youth homicides occur at school.[2] About 11% of schools experience at least one threat of a physical attack with a weapon per year.[3] According to the Center for Disease Control and Prevention (CDC), 5.4% of students reported carrying a weapon on school property and 7.4% of students reported being threatened or injured with a weapon (gun, knife, club) on school property.[4]

From late in the 1980’s to around 1993, schools in the United States saw a severe increase in gun violence.[5] At this time, 15% of students reported carrying a handgun and 4% said they carried that weapon to school.[6] During the 1992-1993 school year there were 44 homicides and 55 deaths resulting from school shootings in the United States.[7] This was the deadliest school year in the past 25 years in the United States.

The media has become prevalent in our society and for this reason the public generally believes that school shootings have increased. This is not the case.

Even though the media has exaggerated school shootings from the recent past to the present, since 1993 school there has been a significant decline in deaths on school property from violent acts.[8] School violence and shootings dates back to the 1760’s[9] where Enoch Brown and 10 of his 11 students were shot and scalped by three member of the Conestoga tribe.[10] School shootings became much more prevalent and constant starting in the 1850’s and continues to present day.

Even though these homicide and death numbers are low compared to other aspects of a person’s life is there a way to reduce these numbers to hopefully one day zero? Could gun control limit people gaining guns unlawfully or who are possibly threats to the public? By looking at the recent history of gun control and the research, this article attempts to determine if gun control works in reducing school violence.

Gun control is defined as laws or policies that restrict or regulate the manufacture, sale, transfer, possession, modification and use of firearms through licensing, registration, or identification requirements.[11] In order to establish gun control there are laws that require background checks, limit high-capacity magazines, ban assault weapons and armor-piercing bullets, enforce registration, make lock-up laws, and makes safety standards for schools.

A hot debate across the United States is one that involves the Second Amendment’s right to bear arms. The Second Amendment of the United States Constitution states “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”[12] There has been debate about the exact meaning of the language of the Second Amendment throughout the history of it. Typically there has been two ways to read the language: (1) gives an individual right, even non-militia personnel, to have guns and allows for the use of guns for nonmilitary purposes such as self-defense and hunting; or (2) it gives a right that is limited to military purposes, held by the people collectively in connection within the scope of military purposes. With the second view, civilians do not have a right to have guns for self-defense or hunting. In recent history, the Supreme Court of the United States (SCOTUS) finally ruled on the meaning of the Second Amendment for federal government and two years later applied it to the states through the 14th Amendment.

In 2008, SCOTUS began to parcel out the meaning and to define the terms of the Second Amendment. In the case of District of Columbia v. Heller[13], SCOTUS held that the Second Amendment protects an individual’s right to possess a firearm for traditionally lawful purposes such as self-defense and hunting. Two years later in 2010 the Supreme Court case of McDonald v. Chicago[14] cleared up some of the loose ends of D.C. v. Heller including the incorporation through the 14th Amendment.

The decision by the Supreme Court was a 5-4 split. The opinion gave some views about what limits the Second Amendment gives the people of the United States. The court may have held that owning handguns for self-defense is constitutional but weapons that are used in the military are able to be restricted. Other means of regulation are also admissible but D.C. v. Heller did not spell out a test.

The Gun Free School Zones Act[15] was an attempt by Congress to help create safer schools and areas around schools by prohibiting any individual from knowingly possessing a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.

The Gun Free School Zones Act of 1990 was found unconstitutional in the case of United States v. Lopez.[16] Lopez argued that the Gun Free School Zones Act was unconstitutional because it exceeded Congress’ power to legislate under the Commerce Clause and SCOTUS agreed.

SCOTUS stated that the Act was a criminal statute and by its terms had nothing to do with commerce and the argument provided by the government that the Gun Free School Zones Act was within Congress’ power was too broad. By allowing this to be considered commerce, this Act could have negative implications for Congress by expanding their power to practically anything because of the many inferences that were taken into consideration. Almost any activity could be looked at as commercial. They also stated that criminal laws were enumerated to the states. The federal government has no right to enforce an Act that deals with criminal behavior.

After the ruling in Lopez, in 1995 Congress amended the act by adding in language that states it must have to deal with interstate commerce to be enforced under the act. The new Act has been challenged 12 times and upheld all 12 times but has not reached the Supreme Court.

Even with all of these cases and acts being ratified are they really working? There are many different views on gun control and what works and what doesn’t. Typically conservatives and gun enthusiasts are on the side that gun control does not work. They take the stance that it would only restrict law abiding citizens the ability to protect themselves from others who gained access to firearms illegally. More liberal states and states that have had some sort of mass shooting tragedy take a different stance. These states are attempting to tighten gun laws so those who are mentally ill (like many who commit these mass shootings) or have prior history within the judicial system.

The Cato Institute[17], a public policy research organization “dedicated to the principles of individual liberty, limited government, free markets and peace” has looked at gun control and attempted to decipher between myth and reality. Using the tragedy at Columbine High School involving Eric Harris and Dylan Klebold as a background, the Institute’s research states that the deficits of gun control laws had nothing to do with the shootings at Columbine High School. They violated about 20 firearm policies while gathering their weapons and committing the crimes. Because of this information, The Cato Institute states that increasing gun control laws will be unable to help prevent these types of tragedies.

The Institute also takes the stance that states that have laws that allow registered citizens to carry concealed weapons have lower crime rates than the states that do not allow this. “States that have “shall issue” laws allowing private citizens to carry concealed weapons have, on average, a 24 percent lower violent crime rate, a 19 percent lower murder rate and a 39 percent lower robbery rate than states that forbid concealed weapons.”[18]

Finally, the Cato Institute argues that the lower murder rates in foreign countries do not prove gun control policies work. Even though they do not point to specifics, they state that there is no correlation between gun control laws and murder across different nations. They argue that the gun control movement about easy access to guns causes higher crime does not follow the facts or the patterns. By limiting access to guns and making it more difficult to get access does not necessarily mean that it will become a safer society.

The National Rifle Association (NRA) sees gun control as unconstitutional and ineffective. They have spent much of their efforts, energy, and resources on fighting against gun control laws across the country. The NRA believes that making more strict rules about gaining access to firearms will only prevent the law abiding citizens from gaining access to protection for themselves and their families.[19] Criminals have many other ways to obtain weapons and firearms than legally.

Large magazines and assault weapons are two other issues that the NRA is fighting. They do not want restrictions because the research shows that most criminals do not even use large magazines. According to studies done, revolvers were used more often in criminal injuries and that smaller magazines would not make a difference in school shootings.[20] They also state that assault weapon sales are going up but crime is going down. Also, most individuals who utilize assault weapons use them for sports and hunting.[21]

Recently, the NRA is being challenged by Mayor Michael Bloomberg on gun control, background checks, high-capacity magazines, and other gun related issues.[22] There are many groups that are up for the challenge of gun control and using it to make safer cities and towns across the United States. These groups are going to target the states that are more gun friendly in attempt to improve gun control.

Not only is Mayor Bloomberg going against the large groups that are anti gun control but also other groups and states are attempting to make stricter gun control laws. There is more evidence and research that shows background checks really help. Johns Hopkins Center for Gun Policy and Research looked at Missouri’s murder rates before and after the repeal in 2007 of a state law that required background checks to purchase a handgun.[23] The murder rate jumped 16 percent per year after the repeal. Even though the federal laws mandate background checks by licensed dealers, only 14 states make private dealers require a background check. The research done by Johns Hopkins is suggestive because it is only one state but it also shows that background checks are possibly a good way to help prevent firearm violence.

Federal law says it is illegal for someone convicted of a felony, a fugitive, a user of controlled substance, people who are mentally defective or has been committed to any mental institution, illegal aliens, someone dishonorably discharged from the military, or someone convicted of domestic violence to own or possess a firearm.[24] In the ten year period from 1998 to 2008, only about one percent of people seeking a background check for gun ownership were denied.[25]

Does gun control work to help decrease school shootings and violence? The jury is still out on this topic. The research is not conclusive and not enough research is being done. There are opposing groups trying to prove their point and get their agenda filled. In order to evaluate gun control laws systematic reviews and research needs to be afforded and funded. Even though this article focused on gun control, there are many other areas that need to be considered for safer schools and less violence. These include increased security and mental health legislation. In order to provide safer schools and possibly no unnecessary deaths in school because of guns and violence there needs to be a balance of security to allow the students to believe they are safe and to actually keep them safe. Mental health legislation, finally, could possibly prevent firearms from getting into the wrong hands better than gun control.

[1] http://nces.ed.gov/pubs2004/2004314.pdf Pg. 6

[2] http://www.cdc.gov/ViolencePrevention/pdf/SchoolViolence_FactSheet-a.pdf

[3] http://nces.ed.gov/pubs2004/2004314.pdf

[4] http://www.cdc.gov/ViolencePrevention/pdf/SchoolViolence_FactSheet-a.pdf

[5] http://www.k12academics.com/school-shootings/history-school-shootings-united-states#.U1OFeOZdU3M

[6] Id.

[7] Id.

[8] http://www.k12academics.com/school-shootings/history-school-shootings-united-states#.U1OFeOZdU3M

[9] http://pabook.libraries.psu.edu/palitmap/Enoch.html Megan D. Strait, Fall 2010 Pennsylvania Center for the Book at the Library of Congress at Penn State University

[10] Id.

[11] http://definitions.uslegal.com/g/gun-control/

[12] U.S. Const. amend. II.

[13] D.C. v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 1171 L. Ed. 2d 637 (2008)

[14] McDonald v. City of Chicago, Ill., 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010)

[15]18 U.S.C.A. § 922(q)

[16] United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995)

[17] http://www.cato.org/publications/commentary/gun-control-myths-realities David Lampo May 13, 2000

[18] Id.

[19] http://www.nraila.org/news-issues/fact-sheets/2014/2014-nra-ila-firearms-fact-card.aspx?s=&st=&ps=

[20] Id.

[21] Id.

[22] http://www.foxnews.com/politics/2014/04/16/bloomberg-to-spend-50m-on-new-gun-control-effort-in-challenge-to-nra/

[23] http://www.newrepublic.com/article/116657/johns-hopkins-gun-control-study-background-checks-really-work

[24] http://www.justfacts.com/guncontrol.asp#general

[25] Id.

Barriers to Re-entry: Housing

Barriers to Re-entry: Housing

Haley Schmidt, Sandra Day O’Connor College of Law, Arizona State University

According to the Bureau of Justice Statistics, in 2009 the number of prisoners released exceeded the number of people incarcerated for the first time in 31 years.[i] This trend has continued with 637,411 prisoners being released in 2012.[ii] Approximately 48.7% of all individuals currently incarcerated are serving time for drug related offenses.[iii] Felons with drug convictions face a unique set of barriers to re-entry. Housing and employment are often two of the biggest hurdles. This blog will focus on the barriers to obtaining housing.

The federal government administers several housing assistance programs in the United States. Most notable are the Section 8 project-based rental assistance program, the Section 8 Housing Choice Voucher program, and the public housing program. These programs are administered by the Department of Housing and Urban Development federally, but are administered locally in various ways.

Both Section 8 voucher programs and public housing programs are administered by public housing authorities and federally funded. Section 8 project-based assistance is also federally funded, but administered by private property owners. Income qualifications, as well as rent and subsidy determinations are set forth at the federal level. Policies regarding tenant screening and program suitability are left to the public housing authorities and private landowners.

Persons convicted of manufacturing methamphetamines are denied admission to public housing programs and section 8 voucher programs; however, this denial does not apply to Section 8 project-based programs[iv]. For all three programs persons evicted from federal housing for drug-related criminal activity are ineligible for federal housing assistance for three years following the eviction. Furthermore, denials of housing assistance are made for any household with a member reasonably believed to be illegally using a controlled substance. Denials may also be made for anyone who has previously been engaged in drug-related criminal activity. These determinations are up to the property owners of public housing authority depending on the type of assistance sought.

In all three programs statutory regulations require certain criminal activities to be grounds for termination of currently active assistance, but not require such termination. Criminal activity that threatens the health, safety, or right to peaceful enjoyment of other tenant, or any drug related criminal activity on the premises, engaged in by the tenant, member of the tenant’s household, or guest or other person under the tenant’s control is cause for termination, generally. Each program adds one or two key words that cay their potential enforcement drastically. In public housing the criminal activity may be on or off the premises. Section 8 voucher programs allow for drug-related or violent criminal activity on or near the premises. Section 8 project-based programs allow for termination when criminal activity is on or near the premises. Furthermore, public housing authorities began instituting so-called “one strike” eviction policies under HUD’s guidance in the late 1990s. These policies allow for households to be evicted based on the activities of a guest, even if they took place outside of the house. The Supreme Court has upheld this policy although it does not require the tenant to have any knowledge of the guest’s drug related activity.

A key element to the success of any post-conviction release is finding and maintaining housing. A so-called “feedback loop” is created whereby it becomes difficult to keep stable employment when one is homeless and difficult to keep a stable home if one is unemployed.[v] An often overlooked additional hurdle created by homelessness is that potential employers have no way to contact the potential employee and many of the jobs that are available are shift work with hours that occur after many shelter’s curfew.[vi]

[i] http://www.bjs.gov/content/pub/pdf/p12tar9112.pdf

[ii] http://www.bjs.gov/content/pub/pdf/p12tar9112.pdf

[iii] http://www.bop.gov/about/statistics/statistics_inmate_offenses.jsp

[iv] Shnny.org/uploads/Taking_Stock.pdf

[v] http://www.ncsociology.org/sociationtoday/v91/reentry.htm

[vi] http://www.ncsociology.org/sociationtoday/v91/reentry.htm

Intimate Partner Violence

Intimate Partner Violence
Erin Iungerich

With the recent review by the Inter-American Commission on Human Rights review of Castle Rock v. Gonzales, and public debate regarding intimate partner violence (IPV) as it relates to the National Football League (not to mention review of disciplinary procedures), the issue of IPV has been particularly salient as of late. Certainly, the issue has been given attention by drafters of state statutes, thanks in no small part to a generation of vocal, and effective, advocates. However, as demonstrated by Castle Rock, there remain gaps in domestic legislation which leave victims of IPV unprotected. This blog suggests solutions to those statutory gaps, using international human rights concepts to shift how IPV is approached by the justice community. Those solutions are: 1) acceptance of the R2P theory, which emphasizes a state’s responsibility to protect its citizens from future violence; and 2) a dignity-based legislative regime based on principles of bodily integrity, freedom from inhumane treatment, and right to an effective remedy.
The Responsibility to Protect (R2P) doctrine came most directly from a desire in the international community to not allow the atrocities of Rwanda in 1994 to repeat themselves. The debate about a state’s responsibilities was furthered by both the NATO intervention in Bosnia and civil war in Libya (again, with NATO intervention). The genocide in Rwanda was undoubtedly a human tragedy on a horrendous scale. In 100 days, 800,000 Rwandans were killed by other Rwandans, almost exclusively along ethnic lines. Just one year later, during the conflict in Bosnia, another act of genocide occurred within the confines of Europe. At the town of Srebrenica, about 600 Dutch troops sought to create a safe zone inside which Muslim Bosnian refugees could shelter from encroaching Bosnian Serb forces. After Dutch forces were overrun by the Serb army, the Serbs separated men from women and children. The Serbs then expelled the women and children, then began killing unarmed Muslim men. An estimated total of about 7,000 Muslim men were killed by Serb forces.
Out of the events of Rwanda and Bosnia, as evidenced in the Security Council action against Libya, came the concept of Responsibility to Protect. The R2P idea has three components: 1) a state must protect its own people; 2) other states in the international community must help a state which is unable to prevent human rights violations against its own people; and 3) as a last step, other states must use all means allowable under the U.N. Charter to assist states where violations are occurring. The focus of R2P, then, shifts as conditions cannot be met: first, the state must in effect “earn” its sovereignty by preemptively protecting its population from genocide, crimes against humanity, and other serious human rights violations; second, the state and international community act together to prevent violations from occurring; last, after the state and international community have failed to prevent violence, the international community may intervene to stop violence with methods up to and including use of force.
The European Convention on Human Rights gives additional backdrop to the human rights story vis a vis domestic violence through its Article 2 (Right to Life) and Article 3 (Prohibition of Torture). In its decision Opuz v. Turkey, the Court concluded a state has a positive obligation to protect its citizens, and that law enforcement mechanisms must be in place to enforce protective laws, including mechanisms to prevent future loss of life. Further, legislatures must give police the power to proactively stop threats of intimate partner violence, and the police must use such power when they are aware of a potentially dangerous situation. Finally, because IPV victims are particularly vulnerable to future violence, authorities are under an obligation to take “all reasonable measures” to protect the plaintiff from future violence. The Court noted that both physical violence and “psychological pressure” both entered into the calculus of determining whether the authorities had acted to stop violence perpetrated by the defendant.
Over their lifetime, approximately 1 out of every 5 women in the United States is assaulted by an intimate partner, as well as 1 out of every 14 men. Around 1.3 million women and 835,000 men are assaulted every year in intimate partner violence. Rape by intimate partners averages approximately 322,230 per year for women. In 2000, 1,247 women and 440 men were killed by intimate partners. Although a mere statistical comparison of violence rates in Rwanda and Bosnia with IPV violence rates in the U.S. does not in any way paint a full picture of the horrors of events in any instance, the U.S. IPV figures do show that the sheer scale of violence occurring on an annual basis in the country is staggering. Extrapolated to Arizona specifically, the state would average approximately 44,304 people assaulted in IPV incidents every year, 3,351 incidents of women raped by their intimate partner, and 35 deaths per year due to IPV. Intimate Partner Violence in the United States also shares characteristics with the legal definition of a crime against humanity. The Rome Statute, which formed the International Criminal Court, includes in its definition of crimes against humanity the following actions: murder; rape; and “[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”
Currently, Arizona has both a preventative statutory measure for IPV, in the form of orders for protection, and a punitive measure for repeat IPV offenders, in the form of an aggravated domestic violence statute. There are also legal provisions for confiscating firearms if they are used in an incidence of IPV, and federal law which disallows access to firearms for a convicted abuser. However, as the Opuz case highlights, there are shortcomings even with a seemingly well-written and well-intentioned legislative regime. One suggestion for dealing with a lack of prosecutorial action under available domestic violence legislation is “no-drop” enforcement, or mandatory prosecution for IPV offences. No-drop legislation can lead to seemingly perverse results, such as victims being subpoenaed for refusal to testify, and even being imprisoned for attempting to protect themselves from a vengeful abuser. Because a person’s cooperation with the justice system is largely based on how fair she or he feels the system is, using the state mechanism to force victim cooperation with no-drop legislation is ill-advised. Using human rights language in legislation, rather than an inflexible no-drop approach, can lead to better results both for IPV victims, and can help change how the purpose of the criminal code is viewed.
The advantage of developing human-rights based IPV legislation, versus strict no-drop approaches, are three-fold: 1) Dignity-based language allows a victim greater input than mandatory prosecution; 2) A focus on the individual victim’s rights and status changes norms within the legal system; and 3) Accepting a responsibility to protect citizens from threat of future violence changes the law from reactive to proactive thinking. Instead of legislation which is used to coerce victims into testifying against their abuser, and potentially putting their future safety at risk, legislation should acknowledge as much as possible a victim’s value as a person who can decide for themselves the best course of action to take regarding an IPV incident. That is not to say a victim should be completely free to decide whether to prosecute severe IPV. Society does maintain an interest in ensuring violent offenders are prevented from doing further harm.
However, emphasizing each individual’s worth as a person can lead to a shift from viewing victims as a tool to be used by the judicial system to obtain a conviction, to putting the focus on what is best for the victim balanced with what is in the state’s best interest. Legislation should make it clear that when prosecuting IPV, the victim should never be exposed to outright control and punishment by the state. In order to obtain the best results for victims, the victim should be removed as much as possible from the very behavior she or he is trying to escape: manipulation by those with power over them.
Legislation which explicitly confirms the state’s responsibility to protect its citizens from violence changes how the justice system views its role. Rather than taking a retributive or reformative, the roll of prosecutors and judges becomes stopping future violence, not addressing past discrete incidences of violence.
Lastly, Arizona must create an integrated IPV database, available across counties and agencies. In the Opuz case, authorities were aware of past incidences of IPV, but did not act sufficiently to stop it. However, in Arizona, it is possible for police to be engaged in protecting citizens from IPV, but not know of prior acts which occurred in a different city or county. Such a situation places both victims and police in danger for future violence. Police are unable to check in with partners of repeat offenders, while police themselves may unexpectedly encounter situations which have intensified in violence over time.