But in his lengthy résumé, there is one policy that Biden and his supporters tout as a nearly unimpeachable feminist success: the Violence Against Women Act. Biden, who wrote the landmark 1994 bill, calls it his proudest legislative achievement.
From the very beginning, VAWA’s goal was to improve how police and prosecutors responded to the insidious problem of domestic violence, moving it out of the realm of private family matter and into the criminal justice system.
And it did, according to Biden’s frequent boasts.
Annual rates of domestic violence have dropped by 63 percent since VAWA’s enactment, even though experts say it’s unclear if the law is directly responsible for the decrease.
But 25 years after its passage, some advocates and scholars question whether VAWA’s steadfast emphasis on law enforcement to solve domestic abuse was indeed the right call. In particular, they point to how the law resulted in some battered women being sent to prison, alongside their abusers.
On Thursday the House voted to reauthorize VAWA, though it faces opposition in the Senate where Republicans are protesting new gun safety provisions. And with Biden widely expected to run for president in 2020, HuffPost is examining the law’s track record.
A Man With A Plan
Years before the passing of VAWA, arrests were rarely made in cases of domestic violence. Fights between husband and wife, girlfriend and boyfriend — domestic abuse, back then, was almost always categorized as male vs. female — were not taken seriously by law enforcement. In fact, many departments had policies specifically discouraging arrest in domestic violence cases.
“The laws at the time, which should have sought to protect the most vulnerable, were furthering the horrific abuse women were experiencing,” Biden wrote to HuffPost in an email.
He wanted to fix that, and VAWA included a novel idea.
The bill incentivized collaboration between victim services organizations and criminal justice agencies, offering them grants if they partnered up. Cops weren’t making necessary arrests, and advocates complained criminal justice enforcers didn’t understand domestic violence. VAWA brought both sides together, creating an uneasy and sometimes uncomfortable alliance.
“We wanted the advocates to educate police officers and prosecutors,” said Victoria Nourse, then a staffer at the Senate Judiciary Committee who helped Biden author the bill. A grant from VAWA would force them to work side by side, she said in an interview with HuffPost.
The legislation encouraged states to adopt mandatory arrest policies, which required police officers responding to domestic violence calls to arrest someone at the scene. At the time, some advocates welcomed the provision. Federal law couldn’t tell a jurisdiction to have a policy or not, but it could dangle a carrot. Having a robust arrest policy on the books allowed for local agencies to apply for grants.
After much debate, VAWA passed as part of the now-controversial Violent Crime Control and Law Enforcement Act of 1994. Since then, it has been reauthorized three times ― in 2000, 2005 and 2013. A reauthorization bill passed the House on Thursday over the opposition of the National Rifle Association.
While Biden consistently credits VAWA with reducing domestic violence, others are more skeptical.
Leigh Goodmark, a law professor at the University of Maryland, notes that the reduction in domestic violence rates from 1994 to 2000 simply mirrored the overall crime rate decrease. Between 2000 and 2010, domestic violence rates dropped even less than the overall crime rate did.
“No reliable social science data ties the drop in the rates of intimate partner violence to criminalization or to increases in [VAWA] funding,” Goodmark wrote in her book Decriminalizing Domestic Violence. “Crime has declined and the funding to address intimate partner violence has increased, but the problem persists.”
When HuffPost asked Biden about this, he said that tens of thousands of women have reaped the benefits of VAWA, and noted that victims who have access to advocates and legal help are more likely to find safety. VAWA created the National Domestic Violence Hotline, a toll-free number anyone across the country can call for confidential help, he said, and funds shelters, programs on campus assault, and education for judges and prosecutors.
The law saves money too, he said, pointing to a 2002 study which found that VAWA averted an estimated $12.6 billion in social costs in its first six years alone.
“We ripped the Band-Aid off a shameful secret and exposed the ugly truth of domestic violence to the public eye,” he said. “It helped change America.”
While VAWA was being drafted, a number of advocates — mostly women of color — warned that the bill’s reliance on the criminal justice system could backfire. They said the bill funneled millions of dollars into the criminal justice system at the expense of meeting urgent victim needs. And they worried that more policing could be especially harmful for marginalized communities.
“Any time we are looking at criminalization as a solution to problems, we know that men of color and communities of color are going to be disproportionately represented in the system,” said Nan Stoops, the executive director of the Washington State Coalition Against Domestic Violence, who recalled advocates voicing similar concerns at the time.
Those mandatory arrest policies had the potential for negative consequences. And that’s exactly what happened. While some states adopted mandatory arrest policies before VAWA’s passage, the law encouraged others to follow suit. Nowadays, the majority of states have mandatory policies on the books. And in the years since, arrest rates have risen as intended. But there is compelling research to suggest that a significant part of the increase is due to battered women being arrested alongside their abusive partners.
It turned out that when police can’t easily discern who is the primary aggressor, they end up putting female victims in handcuffs.
For abused women struggling to survive a violent relationship, an arrest can have disastrous effects. They may lose jobs and housing, and face issues when it comes to custody hearings. Not surprisingly, victims who’ve been arrested tend to avoid calling the cops in the future. There’s also research showing that mandatory arrest policies discourage victims from reporting abuse in the first place, rendering them even more isolated and alone.
At the time of VAWA’s passage, some feminists raised the alarm about the anti-violence movement teaming up with a historically racist criminal justice system.
Writing in Ms. Magazine in 1994, Mari Matsuda, professor at Georgetown Law at the time, lamented the decision to include VAWA in the crime bill, which imposed tougher prison sentences, expanded the number of death penalty offenses, provided money for new prisons and put more cops on the street.
“We know that the police are a source of violence in our communities, not just a deterrent to it,” she wrote. “We also know that violence against women is endemic and that the police don’t come when a woman from the ‘wrong’ part of town dials 911.”
Brenda Smith, a law professor at American University’s Washington College of Law, said she expressed concerns with VAWA while it was being drafted because it did not allow funds to be used for women who were incarcerated.
Back then, Smith was working closely with victims who were involved in the criminal justice system, and she knew many of them had histories of domestic or sexual abuse, either as children or adults.
“The legislation cut out a very significant group of women who had been underrepresented in the discourse,” Smith said.
Follow The Money
Biden said at the time he wrote the law, he was aware of the limitations of the justice system to address the root problem.
In the years since its passage, he explained to HuffPost, he’d heard feedback from women and community leaders that the response had to expand to address other victim needs. Later reauthorizations of VAWA added programs for training for health care providers and civil legal assistance to survivors who need representation in family courts and housing, he said.
“I’ve met women who told me they slept in their car when they first escaped, if they had a car at all,” he said. “In 2005 and again in 2013, we created and then strengthened new protections for victims in subsidized housing so that women would not lose their homes as a result of the violence.”
But according to research by Jill Messing, a social work professor at Arizona State University, over time, more and more money has been allocated to the criminal side of things.
When VAWA was first enacted, the bill appropriated 62 percent of funds for criminal justice and 38 percent for social services, Messing found. But by 2013, only 15 percent of funds were left going to social services.
A 2017 report conducted by the National Network to End Domestic Violence found that victims were not receiving enough resources for emergency shelter, transitional housing, transportation and legal help.
Critics of VAWA’s criminal focus believe that increased investment in victim services may actually be a more effective intervention than pumping money into law enforcement.
“We’re continuing to fund courts, cops and prosecutors and community-based agencies and it’s hard for me to know exactly what that money is doing,” Goodmark, the author, said in an interview with HuffPost. “If it’s supposed to be for training, one would think that 25 years of funding would have given people the training they need.”
A Complicated Legacy
Some advocates interviewed by HuffPost were hesitant to criticize VAWA — especially now as it is seeking reauthorization. (For the first time ever, the National Rifle Association is opposing the bill due to gun provisions.) Some said they did not want to give any ammunition to its detractors. For Smith, the law professor, that line of reasoning reminds her what she faced when she raised issues about VAWA all those years ago.
“Obviously I support addressing violence against women,” she said. “But we have to talk about all of the women, not just the women who fit the narrative of the story you’re trying to tell.”
Advocates interviewed by HuffPost stressed that VAWA has accomplished a herculean amount over the years and is still a crucial piece of legislation, despite its shortcomings.
“This is not a VAWA is good or VAWA is bad — it is not that simple,” said Stoops, the director of a domestic violence coalition. “VAWA has provided many benefits for many survivors. But we’ve got to look way beyond the criminal legal system if we actually want to bring an end to the problem.”
Nourse, who drafted VAWA with Biden, refuted the characterization of the law as overly focused on criminalization.
“What are you going to do?” Nourse said. “I don’t think you can social services your way out of it.”
Goodmark didn’t entirely agree.
She said VAWA’s criminal focus “isn’t working” and makes it impossible to try other, more novel approaches.
“It’s only by taking a step away from the [criminal justice system] that we’re going to be able to experiment,” she said.
“My goal isn’t to trash VAWA,” she added. “It’s to note that we could be using this desperately needed funding in ways that are more likely to prevent violence.”