The Defund Movement Aims to Change the Policing and Prosecution of Domestic Violence

On the morning of May 28, 2014, around 8:20 a.m., uniformed police bashed down Sheila Kimball’s door in Kennebec County, Maine, and arrested her. Sheila was barefoot and in pink fuzzy pajamas. She wasn’t able to brush her hair or put on shoes. The police handcuffed her. “You’ll be fine,” she recalled one officer barking when she said the cuffs were too tight. They took her to court where she sat in the hallway, still cuffed.

But Sheila wasn’t accused of a crime. She was arrested to compel her testimony against her husband, Richard Kimball, who was on trial for a 2013 incident during which, Sheila said, he banged her head against the floor.

Sheila locked Richard out of the house that evening and called 911, telling the dispatcher, “He beat me to a bloody pulp.” The police came and found Richard on the front steps, barefoot, smoking a cigarette, and with swollen knuckles on his right hand. Sheila was inside the house with a black eye, bruising around her neck, and visible bumps on her head.

Her sister took her to the hospital, where the staff examined her injuries and completed a rape kit. Richard was arrested and held without bail at the Kennebec County Jail because of his criminal history.

Eight months later, when it came time for trial, Sheila had already decided not to testify against Richard and was not planning to go to court. Sheila said that she did not trust the police based on previous domestic violence calls where, in her view, they had not treated her with respect.

She said in an interview that she wasn’t sure she could afford to drive to Augusta for the trial. She told a friend via text that she was angry about how the police had treated her in the past and refused to go to court. She didn’t want to participate. She said she believed this was her prerogative as a victim.

But the county prosecutor felt otherwise. Sheila, still in her pajamas, was placed on the stand. She refused to answer questions aside from her name. “I thought I had the right not to testify,” she said. “I felt really stupid.” The judge held Sheila in contempt and ordered her to spend 24 hours in jail.

Richard pleaded not guilty but was convicted and given a two-year suspended sentence and 44 days in jail as time served. During the sentencing hearing, the judge said that Sheila herself “may be part of the problem.”

The notion that victims have a responsibility to help prosecute their abusers is deeply entrenched in the legal system’s approach to domestic violence. Even as community members, advocates, and local elected leaders across the country debate the merits and feasibility of defunding police departments, support for domestic violence arrests remains relatively high, the product of a long war fought by feminists and tough-on-crime types alike. This has included the arrest and jailing of domestic violence survivors, like Sheila, if they are deemed an obstacle to prosecution.

But, increasingly, victims and advocates are arguing that police and prosecutors often don’t help in domestic violence situations and, instead, often hurt. Their voices have been amplified in recent weeks as a push to defund the police sweeps the nation.

“Intimate partner violence is often used as a justification for maintaining the current structure of policing, but that argument is unsupported by the social science evidence,” Leigh Goodmark, a professor of law at the University of Maryland and co-director of a clinic that represents abuse victims, said over email. She pointed to studies that show survivors of domestic violence are less likely to report abuse when they think that will lead to an arrest and research showing that police are often unsympathetic to victims.

Other studies have found that police themselves are often the perpetrators of domestic and sexual violence, rendering them undesirable as a source of help, particularly for women of color who experience much greater rates of violence, including sexual violence, from police. Interactions with the police can also exacerbate existing conditions, like economic instability or trauma.

Sheila, who told The Appeal and Type Investigations that she suffers from chronic pain, depression, and anxiety, said those conditions were made worse by her arrest. “I was treated like a criminal,” she said in an interview. “I never thought a victim would be treated this way.”

The history of the criminalization of domestic violence is fraught. For a long time, domestic violence wasn’t a crime at all. Police rarely intervened. In 1976 12 victims brought a lawsuit against the NYPD alleging that police were routinely ignoring domestic violence calls. One woman testified that a law enforcement officer told her, “There is nothing we can do. Our hands are tied. The police can’t act without an order of protection. Even if you had an order of protection, if your husband harassed you and you called the police, he would be arrested and released the next day. This would probably provoke your husband and put you in more danger.”

But now domestic violence calls are one of the few areas of police involvement where an arrest isn’t just encouraged, it’s often mandatory. Domestic violence calls “have been found to constitute the single largest category of calls received by police,” according to a 2009 Department of Justice report. In some places, like Maine, where Sheila was arrested as a victim, a substantial number of homicides are related to domestic violence.

As the feminist movement aligned with the victims’ rights movement, advocates pushed for tougher and harsher domestic violence penalties, and messaging parallels emerged between right-wing conservatives and left-leaning feminists. For example in 1983, Jeanine Pirro, who helped establish one of the first domestic violence prosecution bureaus in the United States, testified in front of the U.S. Attorney General’s Task Force on Domestic Violence, saying, “We believe [domestic violence] is a criminal problem and the way to handle it is with criminal justice intervention.” (Pirro would later become a judge and a pro-Trump commentator on Fox News.)

The concern then—as it is for some people now—was that police were not enforcing the law enough. As a result, counties and states began to pass mandatory arrest laws, which require officers to make at least one arrest in response to any credible allegation of domestic violence, even if the alleged crime is a misdemeanor. Further, prosecutors implemented “no drop” policies, requiring that every domestic violence charge end in a trial or a plea deal, even if the witness recants. Goodmark, who has studied the issue, estimated that today there are about 40 counties with no-drop policies in place.

Aya Gruber, a law professor at the University of Colorado, Boulder and the author of a recent book about the intersection of policing and feminism, says these policies ignore the fact that victims may be making a rational choice when they decline to testify against their abusers. “Domestic violence prosecutions have little benefit to women and in fact can harm them,” she explained, “but the prosecutors are very convinced they are saving women’s lives.”

By the 21st century, an increasing number of domestic violence arrests were of women, many of whom were victims themselves. Forced to comply with mandatory arrest laws, police arrested women who were acting in self-defense, or sometimes arrested both parties, a practice that is still common. There were even accusations that newly liberated women were now “acting out” against their abusers. A 2001 scholarly article about domestic violence encapsulated this idea by saying, “Not all victims are totally innocent or without culpability.”

Around the same time, prosecutors and judges began to use subpoenas, arrest warrants, and material witness warrants to force victims to testify against their will. At least one legal advocate even suggested using guardianship laws to force women to comply with criminal prosecutions because such women lacked “independent judgment,” adding “a battered woman is so controlled that she has lost her autonomy.”

Such attitudes about domestic violence victims were mired in assumptions about race and class. Black women—who are disproportionately victims of police violence against women—are often reluctant to be involved in the policing and prosecution of domestic violence. Women of color and those living in poverty are also more likely to experience the effects of mandatory arrest policies.

A 2015 survey by the ACLU shows deep concerns about bias and police treatment of victims from women of color. And advocates like Mariame Kaba and Andrea Ritchie have long called for social systems that help survivors without subjecting women of color to the trauma of police intervention.

Even today, there is a tension between the public’s desire to increase punishment for domestic violence—like enhanced criminal penalties for choking—and the idea of empowering women to make such decisions for themselves. Though most contemporary feminists probably wouldn’t blame women for their own abuse, they may see women who do not want to participate in the criminal legal system as irrational or in the thrall of their abusers.

Meanwhile, prosecutors have an incentive to close domestic violence cases, which, along with sexual assaults, are notoriously hard to prosecute and win. In New Orleans, for example, 83 percent of domestic violence misdemeanors were dismissed. In training materials distributed by Louisiana district attorneys, prosecutors were encouraged to keep track of their witnesses. The materials referred to recanting witnesses as “traitors” who “betray” prosecutors.

It’s an attitude that was summed up by New Orleans District Attorney Leon Cannizzaro, when he was quoted by a local television news station about a 2017 Court Watch NOLA report that documented victims of rape and domestic violence whom he had arrested as material witnesses: “Is it more important for this witness to be inconvenienced for a very short period of time or is it better for the community to get the violent offender off the streets and keep him off the streets?”

In Sheila Kimball’s case, prosecutor Maeghan Maloney acknowledged in an interview that she takes a hard line on domestic violence. Going against a victim’s wishes isn’t her preference, she said, but it’s sometimes necessary. “This is a process of last resort.”

Maloney declined to comment on Sheila’s case specifically, but in remarks to the press at the time, she said: “The reason [for arresting victims] is the prosecution is not just for her but for the community. With domestic violence, she’s not likely to be his one and only victim. I cannot leave it in her hands whether or not we prosecute.”

Though there are no exact numbers on how many victims are jailed or threatened with jail—let alone those who are threatened with child protective services investigations or criminal prosecution for unrelated offenses—there is enough to suggest a pattern across the country of using arrest and jail to enforce domestic violence laws.

The Louisiana District Attorneys Association estimated that from 2012 to 2017, 150 material witness warrants were granted among 750,000 cases, including some victims of sexual assault or domestic violence. Old arrest warrants are still being used to jail victims even years after the primary case has been dismissed.

In Washington County, Tennessee, which has fewer than 150,000 people, roughly one domestic violence victim a month was held under material witness warrants until a local news station broadcast a report exposing the practice.

Yet, there’s not a lot of evidence that using police and prosecution helps decrease the prevalence of domestic violence. After a 1984 study in Minneapolis found that arrests and prosecution had a substantial deterrent effect, one of the authors questioned the original findings after further research, saying in 1992, “Mandatory arrest may make as much sense as fighting fire with gasoline.”

Advocates point out that often a police-led approach comes at the expense of other solutions, like funding shelters and services. The Violence Against Women Act, for instance, part of the 1994 crime bill, provides ample funding for criminal arrests and prosecution, but a smaller share to services. Initially, just 15 percent of  Violence Against Women Act funds went to social services for survivors, and the number remains similar today.

The use of arrests to secure victims as witnesses appears to be particularly common when the victims are extremely vulnerable, either because of their profession, drug use, or socioeconomic status, which exacerbates the concern that the very people being overpoliced are the same ones being arrested as victims.

Beginning in the 1990s and continuing into the next millennium, Las Vegas police were told to arrest sex workers, especially minors, to secure their cooperation in the prosecution of their pimps. Euphemistically called “courtesy holds,” these arrests and indefinite detentions, according to Geneva Brown, a legal scholar and activist, amounted to “exploitation and victimization,” particularly when considering that these were teenagers, often from abusive homes, who were being asked to provide information to police about the sex industry.

In recent years, there has been growing concern over these policies, and a measured, sporadic push to alter the laws to prohibit the jailing of victims. In Harris County, Texas, a rape victim was arrested and held in the Harris County Jail for 27 days, accidentally categorized as a sex offender, and denied treatment and medication. In response, both the county’s district attorney and sheriff were voted out of office, and, in 2018, Texas passed a law that forbids the jailing of rape victims.

Many states have already moved to limit the use of material witness warrants in some way. In the 1990s, New Jersey state legislators amended the law to prevent witnesses from being held in jail. Some states restrict the length of the holds; in Arizona, for instance, seven days is the limit.

But the reforms themselves often fall short. In New Orleans, several plaintiffs filed a lawsuit, which is still pending, against the district attorney’s office for regularly arresting and threatening witnesses and victims. Even when the city’s elected officials demanded that these arrests stop, a report released by Court Watch NOLA in June showed that in 2019, prosecutors tried to arrest at least a handful of victims for failure to testify or appear, almost all of whom were Black women.

For a long time, those working with domestic violence survivors have pointed out the dangers for victims who choose to pursue a criminal response to their situation, explaining that their choice not to testify is often a rational one. “We know that batterers retaliate against domestic violence victims who seek to hold them accountable via the criminal justice system,” said Allison Smith-Burk, director of public policy for the Georgia Coalition Against Domestic Violence. “They certainly should not be jailed or otherwise penalized for making this decision.”

There are reasons beyond a fear of retaliation. In some cases, victims may need their partners around for financial or childcare reasons. Other victims love their partners or want to keep them out of the criminal legal system. In some cases, a victim might not want to testify against their abuser if either person could face deportation.

But beyond disapproving of policies that jail victims, the current movement has pushed feminist scholars and advocates to question the utility of the criminal legal system as a solution to domestic violence. Just because police have been the only response does not mean they are the best one, Goodmark, the Maryland law professor, said.

“Recognizing just how toxic criminal system intervention can be, the harm it can do to victims, and how little it does to ensure safety, there is no justification for maintaining the current law enforcement structure and much to suggest that a ‘defund the police’ world would yield better results for victims of violence,” she wrote in email. “What we need to do is to determine exactly what it is we want from police in the context of intimate partner violence (a first responder, for example), and find less harmful, more effective substitutes.”

Activists in Minneapolis, where the City Council has called for disbanding the police department completely in the wake of George Floyd’s death, have suggested a combination of mobile crisis units, victims’ services, and de-escalation. Their action plan places the needs of the victims front and center: “People experiencing domestic violence need to establish personal safety for themselves and other family members affected by the violence.”

Both Goodmark and Gruber, the Colorado law professor, see investing in services as a way to prevent violence, highlighting programs like the Minnesota Family Investment Program, which provides basic assistance to working families.

Gruber points out that to truly move away from policing, domestic violence advocates and victims will need to face some truths about the roots of interpersonal violence. “Some people want [their abuser] to rot in jail,” she said. “You have to say that there are costs to any program, and one cost of de-policing is the cost to some victims’ sense of closure.”

Yet, for now, many services for victims of domestic violence remain dependent upon victims cooperating with the prosecution and incarceration of their assailants. In Honolulu in 2016, the chief prosecutor’s office opened a women’s shelter where admission required that women agree to testify against their abusers. The local domestic violence group backed away, saying that it did not support this decision. The shelter was slated to be closed last year, and the City Council voted to repurpose the space for those who need shelter.

For Sheila, the consequences of the trial and arrest are more traumatizing than the domestic violence she suffered. “My whole life is turned upside down because of this. He’s going to be fine,” she said. But “it took me awhile to not be afraid of people knocking on my door.”

No one offered to fix her door. She said the local domestic violence advocacy group in her community has told her to move and change her address, but she has family in the area and doesn’t want to go.

“I don’t believe I’ll ever be the same person,” she said, reflecting on her arrest. “I’m not the one who did it. I’ll never forget how those people treated me.”