Issues of effective responses to domestic violence have been in the news these past few weeks. Gov. Ralph Northam recently vetoed two bills that supported mandatory minimum sentencing for crimes. One of those bills would have created a 60-day mandatory minimum sentence for a second conviction of assault and battery against a family or household member occurring within a 10-year period.
As Virginia’s leading voice on sexual and domestic violence for more than 30 years, the Action Alliance represents the diverse perspectives of advocates who provide crisis response and systems advocacy to survivors and their families; local domestic violence agencies that work with community partners to build a coordinated response to violence; survivors who, in an effort to protect their family, might choose to fight back; and judges who don’t want to put a survivor of domestic violence in jail but might be forced to follow sentencing guidelines handed down by the legislature.
We know that mandatory minimums are not a real solution to domestic violence. Rather, they are a costly and simplistic tool that removes judicial discretion while disproportionately impacting low-income communities and communities of color. The Action Alliance has opposed mandatory minimum sentencing since the mid-1990s.
The belief then and now is that judges always have the option of imposing a jail sentence if there is risk to future safety—but when we remove discretion to determine what swift and proportional sentencing might look like, there are several unintended consequences for survivors.
One possibility is that for those who do choose to fight back, mandatory minimum sentences land them in jail. The charge of assault and battery against a family or household member doesn’t capture patterns of ongoing behavior and/or the range of domestic violence offenses designed to exert power and control over another.
When a survivor fights back and is charged with assault and battery—which happens far more often than we care to admit—mandatory minimums not only force a judge to hand down jail time, but they also serve to reinforce the control of the abuser.
Many judges who understand this craft solutions to hold a survivor accountable for the crime of assault and battery while addressing the broader circumstances that lead to that violence—such as referring a survivor, who has committed violence in an act of self-defense, to a domestic violence program. Likewise, for abusers who are appropriately charged with assault and battery, judges can recognize the risk of escalating and potentially lethal violence to determine appropriate sentences that might include jail time.
We also know that survivors of color are more likely to be criminalized for their survival strategies. Stories like those of Bresha Meadows, Marissa Alexander and Cece McDonald illustrate the disproportionate rate at which survivors of color are convicted and sentenced to lengthy prison terms for fighting back against their abusers. Recent studies that document trauma histories of incarcerated women found that between 40% and 93% experienced domestic violence just prior to incarceration. Virginia is no exception. According to Virginia’s Office for the Chief Medical Examiner, black women have been victims of intimate partner homicide at rates almost three times as high as white women.
We can change this by choosing to undo much of our thinking around the role of the criminal justice systems in delivering justice to all survivors of violence. We can choose to examine policies like mandatory minimums and see how these operate in tandem with police and prosecutorial practices that contribute significantly to the criminalization of survivors of color.
The reality is that a one-size-fits-all approach to an issue as complex as domestic violence leaves many survivors with even fewer pathways to safety and justice. If Virginia’s policy leaders want to curb the epidemic of domestic violence in our communities, we must shift our focus to changing practices at the community level.