When The Criminal Legal System Doesn’t Believe ‘Imperfect Victims’

The justice system doesn’t protect survivors. Instead, it retraumatizes and penalizes them for the violence they endured.
Illustration: Jianan Liu/HuffPost

For centuries, survivors of sexual assault, domestic abuse and human trafficking have been punished by the very system that was created to protect them.

Rose Lucas called the cops one night in 1956 after her husband, a highway patrolman who had been physically abusing her for years, threatened to kill her. After a five minute investigation, the police left and the husband continued his threats. Rose loaded her husband’s revolver and shot him four times when he lunged at her. She was convicted of manslaughter.

Celia, an enslaved Black woman, killed her white master in 1855 with a stick when he tried to rape her. Four months later she was found guilty of first-degree murder and hanged.

Lena Baker was held captive in 1944 by her employer’s son and allegedly raped her repeatedly. When she attempted to escape, he tried to subdue her and she shot him. An all-white jury sentenced her to death by electric chair.

Bresha Meadows’ father started sexually abusing her when she was eight years old. The abuse only stopped when Bresha was 14, because she shot him while he was passed out drunk on the couch one evening in 2016. She was charged with aggravated murder, pled to involuntary manslaughter and sentenced to a year in juvenile detention.

These are just a few of the stories that spurred Leigh Goodmark to write her new book “Imperfect Victims: Criminalized Survivors and the Promise of Abolition Feminism.”

The stories span decades, and yet all of the victims of gender-based violence faced severe punishment because of the very violence perpetrated against them. Studies show that anywhere from 50 to 95% of incarcerated women have been raped, sexually assaulted or subjected to physical violence by intimate partners.

“I have yet to meet a woman in prison who has not experienced some form of gender-based trauma,” Goodmark said of her 25 years representing victims and incarcerated survivors abused by the state.

“I have yet to meet a woman in prison who has not experienced some form of gender-based trauma.”

- Leigh Goodmark

Goodmark, a law professor at the University of Maryland, argues that the criminal legal system ― law enforcement, prosecutors, judges, the prison industrial complex ― doesn’t protect survivors. Instead, it retraumatizes and penalizes them for the violence they endured, and particularly if they are not white or wealthy.

“‘Imperfect Victims’ tells the stories of criminalized survivors who interact with the criminal legal system ― the system that promises to protect them but that so often fails to make good on that promise,” she writes.

Abolition feminism is the only real solution to a problem so systemic, Goodmark argues ― a rejection of the carceral state across the board, but specifically when it’s used to address gender-based violence.

“It argues that law enforcement, police, prosecutors and quasi-carceral institutions will not bring us liberation and will not ever really protect the people who it claims to protect because what it exists to do is to control those people, particularly when they, again, fail to conform,” she added.

HuffPost spoke with Goodmark about the criminalization of survival and how the only way to address these pervasive failures is to dismantle the system completely.

A large reason you wrote this book is because of conversations you had with women at the Maryland Correctional Institute for Women. Can you talk to me about some of those conversations?

I was facilitating a group for lifers and we were looking for a new project when we came upon the idea of writing a book together. They would write their narratives, and I would give the structure, the social science and legal background ― and the Department of Public Safety and Correctional Services said, “No, you’re not going to do that.” And the women said, “Well, we want you to do it anyway.” And so many of the women included in the book are clients of mine.

We spent a lot of time talking about the violence that they experienced and how that violence affected the choices they made. Some of my clients fought back against an abusive partner. He pulled a gun and they struggled over it, or he was strangling her and she grabbed a knife. But some of them are people who were forced by their partners to participate in crimes that were committed by their partners or to clean up those crimes. Some of them committed crimes under duress, and some of them were convicted of crimes related to their own trafficking. For example, people who were being trafficked alongside younger women and tried to help them, held their money, helped them get their hair done, or were forced by their traffickers to be part of that trafficking organization. Even though they themselves were being trafficked, they were, nonetheless, punished for that.

“Studies show that anywhere from 50 to 95% of incarcerated women have been raped, sexually assaulted or subjected to physical violence by intimate partners.”

It’s not as though people were offering them all kinds of services and help to get out of these relationships. And so they thought about custody and they thought about housing and they thought about employment and they thought about money and they thought about love, which people don’t like to talk about at all. There were lots of things keeping them in these relationships and making it really difficult for people to see any other way.

Most of my clients are deeply remorseful. But they are also really clear that, in a perfect world where they were not in these relationships, they would not have been arrested for these things.

So, these are the “imperfect victims” who failed to conform to the narrow cultural stereotypes of what a “good” victim looks like. How would you define an “imperfect” victim?

An imperfect victim is not meek or weak or passive. An imperfect victim is not white. An imperfect victim may have a mental health challenge, may have a substance abuse challenge, may be angry or may have fought back against a partner. Anyone who transgresses the norms of victimization in any way is an imperfect victim, which is pretty much everybody.

You describe your clients as “criminalized survivors” ― a premise that’s really at the core of your work. What does it mean to be a criminalized survivor?

I take my definition of criminalized survivor from Survived & Punished. Criminalized survivors are people who have been punished by the criminal legal system for something related to their own victimization ― whether that’s intimate partner violence, rape or sexual assault, trafficking, or other forms of victimization. My definition includes both women and femme-identifying people, both cis and trans women and gender nonconforming people.

One could make an argument that everybody in prison is a criminalized survivor. Almost no one comes to violence for the first time as a perpetrator. Most people come to violence for the first time as a victim. But my work is specifically concerned with women and gender nonbinary folks.

And so those folks experience intimate partner violence, experience rape and sexual assault, experience trafficking for a variety of reasons. Some of it is cyclical and some of it is not… As [scholar and activist] Beth Richie said, she’s never met a Black woman in prison who isn’t a survivor of some form of gender-based trauma.

Many of these survivors who are criminalized after experiencing intimate partner violence or sexual assault are often Black or brown women. Why is that?

There’s a whole literature about how victimization is constructed through white women. It takes into account the enslavement of Black women and the marginalization of other women of color in various ways. When you are property, you can’t be a person and, therefore, you can’t be a victim. Looking, for example, at the history of slavery where Black women were regularly victimized by the people who owned them, but not acknowledged as victims in any way ― that legacy continues in our understanding of victimization today and in our stereotypes.

I was really interested in the chapter where you talk about the issue with calls for reform rather than calls to fully dismantle the criminal legal system. What do you say to people who call for reform in the face of these issues?

Reform will never end the criminalization of survival because reform accepts the legitimacy of the criminal legal system as a given. As long as there is a criminal legal system where actors within that system are empowered to deploy discretion, we will always have criminalized survivors.

Police will always find a way to say, “Well, yeah, we care about victims, but this person isn’t a victim because ...” And prosecutors will always find a reason to say, “But she was angry and not a victim. She was a violent person and not a victim. She had a foul mouth and was not a victim,” and the same with judges. So we see the ways that discretion plays out in this system now when people make really credible and strong claims of victimization and how those actors find ways to dismiss, discredit and disbelieve those survivors. There’s no reason to believe that reforms will make that any different.

“Criminalized survivors are people who have been punished by the criminal legal system for something related to their own victimization – whether that’s intimate partner violence, rape or sexual assault, trafficking, or other forms of victimization.”

- Leigh Goodmark

Reform, as you quote political activist Angela Davis in your book, often leads to “bigger, and what are considered, ‘better,’ prisons.” This leads me to my next question about the recent news that feminist activist Gloria Steinem is advocating to open a “feminist” or “gender responsive” jail in Harlem in New York City.

What are your thoughts on that? Do you think “gender responsive” prisons are feasible?

Gender-responsive prison [laughs]. It makes me crazy.

First of all, what does it mean to have a gender-responsive prison? Some prisons call themselves gender-responsive because they offer cosmetology licenses and cooking classes. Not that those aren’t valuable skills, but if what we want is gender stereotypes entrenched in prison settings, that’s what that is.

Some prisons call themselves gender-responsive because they allow you to be incarcerated with your child. And, again, while certainly nobody wants mothers and children to be separated, creating prisons for children, because incarceration is so important to us, seems deeply problematic from a gendered perspective.

Oftentimes, you’ll see “gender-responsive” and “trauma-informed” together. You can’t have a trauma-informed traumatic institution. Prisons are inherently trauma-inducing institutions. Even the best prisons are trauma-inducing institutions.

This also, again props up the legitimacy of the carceral system rather than saying this is a system that’s doing exactly what it was designed to do in policing the behavior of people who fail to conform to certain kinds of stereotypes, and the only way to improve it is for it to be gone.

The trauma-informed piece is especially ironic given the fact that so many women of color are criminalized for experiencing gender-based violence. Many of your clients, as you defined earlier, are imperfect victims ― they don’t fit into the narrow definition of what a good victim or survivor should look like.

Why do you think the definition of a “good victim” is so narrow?

The biggest answer is if we actually reckoned with how big a problem gender-based violence really is, we would be completely unable to do anything else. If we accepted the victimization that’s happening in all kinds of settings ― from the individual to the structural ― if we accepted the way the state victimizes people through law enforcement, through incarceration, through the family policing system and other quasi-carceral systems, everything would grind to a halt.

Aside from that, there are a couple of things. One is the way that we teach about gender-based violence. Particularly, the historical legacy of laws around intimate partner violence like VAWA (the Violence Against Women Act) and how these laws were sold to people in power. They were sold to the white people in power that domestic violence can happen to anybody ― by saying, “It could happen to your daughter or your mother or your sister.” It was sold to people as, “It looks like you.”

And so lots of actors within the system are still white people who think that it looks like them. But studies have repeatedly shown that women’s credibility is less than men’s, that women of color’s credibility is less than white women’s, that people of color’s credibility is lesser. Trans people are considered inherently deceptive because they’re “not who they say they are.” There are all these biases that attach to the groups of people who are most vulnerable when it comes to this kind of violence that makes it so that institutional actors don’t hear them.

What do you say to people who believe abolition isn’t realistic? How do you respond to those who use the argument of, “Who are you going to call when you need protection?”

Even if you’re not ready to ditch the criminal legal system tomorrow, there are so many things that we can do that are what critical resistance calls non-reformist reforms. Things that don’t shore up the legitimacy of the criminal legal system, but do make things better for the people who are currently entrapped in it.

Things like getting rid of mandatory minimum sentences, which have a huge impact on criminalized survivors who are convicted of murder and manslaughter. Get rid of mandatory arrest laws, which were created in the late ’70s, early ’80s, to deprive police of discretion because there was a perception that they weren’t acting in domestic violence cases, but which have had a disproportionately negative impact on women of color. Get rid of material witness warrants, which are used to force victims of violence to participate in prosecution. And we could get rid of the idea of gender-responsive and trauma-informed prisons and stop pretending that it actually works, which would make me very happy.

There are a bunch of steps that one could take along the way that don’t shore up the criminal system. Chief executives, governors and the president could use their commutation powers. Parole boards could use their parole powers. We could pass second chance legislation that allows people who’ve been incarcerated for significant periods of time to get a second look at their sentence. There’s no mechanism, for many people, to get back into court, and so creating mechanisms for people to get back into court is a really important thing as well.

Even if people aren’t ready to go all the way, there are definitely things we can do.

What do you want people to take away from your book?

I want them to be angry about the way we treat people who have already been victimized once. I want them to take away the knowledge that in our names ― in the name of the taxpayer and the citizen ― the state is punishing people who’ve already experienced significant victimization. I want them to think about whether that’s something that they want the state to do and, if they don’t, I want them to do something about it.

This interview has been condensed and lightly edited for clarity.

Need help? Visit RAINN’s National Sexual Assault Online Hotline or the National Sexual Violence Resource Center’s website. In the U.S., call 1-800-799-SAFE (7233) for the National Domestic Violence Hotline or call 1-866-331-9474 or text “loveis” to 22522 for the National Dating Abuse Helpline.

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