How domestic violence legislation has failed to keep women safe

DAN RICHARDS: A warning before we start. This episode contains discussion of physical and mental abuse and domestic violence. All right, on with the show. From the Watson Institute for International and Public Affairs at Brown University, this is Trending Globally. I'm Dan Richards. Caitlin Sadowski and Wendy Schiller have studied countless stories like Morgan and Leah Rogers. But it doesn't make them any less tragic. Here's Caitlin.

CAITLIN SADOWSKI: Leah and Morgan's story is a tough one.

DAN RICHARDS: It was Twenty Fifteen. Morgan lived with her infant daughter Leah in Virginia. They lived alone and were estranged from Leah's father and Morgan's ex-boyfriend, Stafford.

CAITLIN SADOWSKI: Morgan was a victim of domestic violence. She had been abused for quite a few years.

DAN RICHARDS: A fact that was well known by authorities. Her estranged ex, Stafford--

CAITLIN SADOWSKI: He'd been convicted of domestic violence beforehand.

DAN RICHARDS: Both against Morgan and a previous partner. And on May 29, Twenty Fifteen, Stafford showed up at Morgan and Leah's house.

CAITLIN SADOWSKI: He came into the home and shot and killed both of them. He then fled the scene--

DAN RICHARDS: Which led to a police chase,

CAITLIN SADOWSKI: --and got into an accident that killed himself and two more victims.

DAN RICHARDS: Morgan Rodgers was one of 55 people murdered in Twenty Fifteen by an intimate partner in Virginia alone. Leah, who was one-year-old at the time, was one of 17 children in the state killed by a caretaker that year. On this episode, you're going to hear from Caitlin and Wendy about how the government fails to protect countless people like Morgan and Leah from domestic violence.

Caitlin is a professor of Political Science at Coastal Carolina University. Wendy Schiller, who you've heard on the show before, is a political science professor and director of the Taubman Center for American Politics and Policy at the Watson Institute. And in their new book, Inequality Across State Lines, they don't just explain this policy failure. They also make vividly clear just how profound and wide ranging the effects are of this type of violence on American life. They also, thankfully, have some proposals about what might be done to address this crisis in a more meaningful way.

As scholars and political scientists, Kate and Wendy came to the topic of domestic violence through a desire to study gender inequality in America. Specifically, they wanted to look at how the interaction between state and federal government policies affect this issue.

CAITLIN SADOWSKI: And there's amazing scholarship on public policy and women's inequality, and a lot of it gears towards pay inequality, or reproductive rights, or health inequality.

DAN RICHARDS: But they noticed a set of issues that didn't receive as much attention.

CAITLIN SADOWSKI: And when we started to dig into it, we pretty quickly came across the questions of human security.

DAN RICHARDS: It's one of the most fundamental things that government should provide its citizens-- safety and security from other citizens. And we already know that women are less protected in this realm than men.

CAITLIN SADOWSKI: And we felt like there was a story to be told here about how women were treated differently depending simply on the state you lived in terms of violence, violence against them. We wanted to understand how women are treated differently across states, how the federal government does or in a lot of cases doesn't step in to ensure equality across the United States, and what that says about how women are treated just generally in terms of the political system?

DAN RICHARDS: As Wendy put it--

WENDY SCHILLER: In America, a woman should not be more or less safe from domestic violence injury or death depending on where she lives. This is a fundamental life, liberty, and the pursuit of happiness, a fundamental federal responsibility to set the standard.

DAN RICHARDS: So before we get into their findings of what state and federal laws have affected domestic violence and gender inequality, let's take a moment to acknowledge the scale of the problem.

CAITLIN SADOWSKI: So one statistic I always like to point to is that in 1 minute, 20 people in the United States are going to be a victim of domestic violence. Over an hour, 1,200 people are going to be victims. It adds up to like 10 million people in a year. And that burden is going to be particularly shouldered by women. And those are estimates because the vast majority of domestic violence is going to go unreported. So that's just what people are guessing at based upon what is reported.

DAN RICHARDS: And that's just a proven fact and based on the nature of domestic violence, that so much of it goes on unreported.

WENDY SCHILLER: Yeah. There are studies that range in and how much is unreported, but it's as high as 56%.

DAN RICHARDS: Underreporting of domestic violence happens for a number of reasons, like if a victim relies on their partner financially, or if the partner owns the house they both live in. Some people also don't report abuse because calling the cops on an abusive partner actually increases the risk that you might get arrested too.

WENDY SCHILLER: This happens disproportionately in African-American communities. Women will be arrested alongside their male abusers.

DAN RICHARDS: This is all on top of the more subtle but no less real reasons you might not report domestic violence-- shame, confusion, which all adds up to this reality. Domestic violence is incredibly prevalent in society, and we'll never even know its full reaches. But there's another reason this crisis is so troubling beyond its prevalence, and that's the massive ripple effects of domestic violence on children, on families, on communities. It disfigure us every part of our society. For example--

WENDY SCHILLER: The number of hours that are missed of work, the number of hours that women miss because their children have been abused and they have to take them to medical facilities, and the loss of school time. It's been calculated this amounts to billions of hours of lost time at work. The trauma that people endure affects their ability to perform in the workplace or in schools.

So there's this residual constant negative effect associated with domestic violence. Women cannot be full participants in society if they don't have security in their home. That their physical human security at home, their emotional security at home is something that gives them a launching pad. And if you don't have that, you underperform in every way, and you are not able to take advantage of all that society has to offer.

DAN RICHARDS: Remember Caitlin's statistic that in 1 minute, 20 people in America will be victims of domestic violence? It's been about 3 minutes since you heard that.

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Now, it's not like there are no policies working to address domestic violence, but they obviously have not done enough. So Wendy and Caitlin wanted to look at what has worked and what hasn't? They wanted to understand how federal legislation has affected the crisis nationwide, as well as how different states have handled the issue. So to do that, they looked at domestic violence statistics in America from Nineteen Ninety to Twenty Seventeen, and mapped that onto a timeline of all the domestic violence legislation that has been passed or revoked in that time. Now, why start at Nineteen Ninety, you might ask?

WENDY SCHILLER: There's a key timeline-- and I think a lot of people don't know this, that the Women's Movement and the women's rape movement in particular really picked up steam in the late nineteen-seventies. But up until Nineteen Seventy-Eight, there were no domestic violence shelters. In many states, rape within marriage was legal.

It was only until the nineteen-eighties that states began to really look at domestic violence and adopt state laws, and there was one bill that looked at family violence, but generally nothing else at the federal level. So we wanted to start somewhere after that momentum picked up, but before the key violence against Women Act was enacted in Nineteen Ninety-Four.

DAN RICHARDS: The Violence Against Women act being the first and most significant piece of federal legislation addressing gender based and domestic violence in America. It's often referred to by its acronym, VAWA. Here's Caitlin.

CAITLIN SADOWSKI: VAWA why does a lot of things, but one of the main things it did is it created the Office on Violence Against Women, which administers a ton of money for different grant programs across the United States that are for tribal governments, that are for states, that are for local governments, that are for non-governmental organizations like domestic violence coalitions. And they provide training to law enforcement, and to prosecutors, and to judges on how to handle domestic violence cases, and how to handle domestic violence victims.

They also target really specific populations that can be particularly vulnerable to domestic violence like people with disabilities, women of color, educating the youth, because the most likely victims of domestic violence are 18 to 24-year-olds. So hopefully, we can educate people when they're younger to look for the signs of domestic violence so you can potentially get out of an abusive relationship before it really gets going, or to help someone else.

DAN RICHARDS: The act was, to be fair, a momentous piece of legislation. And not just because of what it did, but because of what it said about the importance of the issue.

WENDY SCHILLER: Passing this legislation said the federal government now cares about the crime of domestic violence. Taking it out of the private sphere, the household, and firmly cementing it in the public sphere of the responsibility of government to keep women, mostly women, but all people safe from domestic violence, and to learn how to prosecute it effectively so that you don't have recidivism and you don't have repeat domestic violence.

Putting it in the Department of Justice was the biggest, strongest signal that this is now really a crime, and the federal government considers it a crime. Prior to that, most of the money that dealt with family violence was distributed by the Department of Health and Human Services as a public health issue, which we think it is as well. But shifting that focus and making the federal government a criminal justice partner, I think, really brought it out of the home and into the public sphere.

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DAN RICHARDS: So how did this shift that started around the nineteen-nineties actually affect domestic violence? The good news, by many measures, domestic violence has decreased in America over that time frame. That said, Caitlin and Wendy have also found plenty to be concerned about when it comes to policies that are meant to protect victims of domestic violence, which are mostly women and children. Here are three major issues they see.

The first, the Violence Against Women act left a lot of holes in its protections of victims. Second, state laws vary widely in how they work to fill in those holes, or even, I kid you not, make those holes bigger. Third, ones risk of domestic violence varies tremendously based on certain aspects of your identity, like race and immigration status. And our policies have done little to address this at state or federal levels. OK. Those were three big things, but we're going to get into all of them. So first, holes in the Violence Against Women act. One of the most notable holes--

WENDY SCHILLER: It's called the boyfriend loophole.

DAN RICHARDS: So the Violence Against Women act made it illegal for spouses and partners who had been accused of domestic violence from buying a firearm. This was a huge deal because--

CAITLIN SADOWSKI: The presence of a firearm in a domestic violence or having access to a firearm in a domestic violence situation increases the risk of female homicide by 1,000%. But the definition of partner in VAWA was limited to married spouse, a co-habitant, or co-parents of a child. In other words--

WENDY SCHILLER: If you're just a boyfriend, not a spouse in common law married or cohabitating, you are not subject to these restrictions on gun ownership and possession.

DAN RICHARDS: This made situations like Morgan Rodgers and her daughter Leah, significantly more dangerous.

CAITLIN SADOWSKI: All the way up until the time that Leah was born, Morgan didn't have any recourse to get the gun taken away from her abuser.

DAN RICHARDS: Now, once Leah was born, the father, Stafford, should have no longer fit through this boyfriend loophole.

CAITLIN SADOWSKI: The federal law had said that he couldn't have access to a gun because he had been convicted of domestic violence beforehand because he shared a child in common with Morgan.

DAN RICHARDS: That however didn't really stop him because--

CAITLIN SADOWSKI: The state of Virginia didn't have the same law. So essentially, Virginia did not enforce federal law and did not take the gun or access to the gun away from him. So even though they were protected federally, the state didn't enforce it, and nothing happens to states that don't enforce it. If the state doesn't enforce it, as far as we found in all the evidence we've looked at, there are no penalties for the state not following federal law.

DAN RICHARDS: Which brings us to issue number two. A lot of the actual enforcement of VAWA is left to states, and some states simply don't enforce it. Sometimes, they, in fact, try to weaken it.

CAITLIN SADOWSKI: And there's even some states that are passing laws to reinstate Second Amendment Rights for domestic violence misdemeanors. So it's something along the lines of if it was like a one time offense and it happened a certain number of years ago, a law is passed to allow the misdemeanor to expunge their record so that they can then go and get a firearm again. And then there's even some states that say, it is illegal for a law enforcement agent to actually implement federal law on anything related to gun control, including domestic violence firearm laws.

DAN RICHARDS: You might wonder, why on Earth would people want to make laws softer on domestic violence of all the contentious polarizing issues out there-- abortion, gay marriage. Hurting and killing women and children does not stand out as one of them. Well, a big part of the answer, which you've maybe already gleaned, is that a lot of domestic violence legislation in America is related to guns. And when guns enter the picture, well, you know how that goes. Here's Wendy.

WENDY SCHILLER: As we document in the book, the rise of the alliance between the National Rifle Association and the Republican Party starting about the same time as our time period starts, about Nineteen Ninety going all the way to today, that strengthening of that alliance has been the biggest obstacle at the state level in particular, certainly at the federal level but at state level from passing and enforcing gun removal, gun restrictions on domestic violence abusers.

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When these states actually do pass some gun restrictions, more conservative states, it's because the National Rifle Association has stepped back and said, well, in the light of a mass shooting-- then states are known to act. And that's where the NRA feels I think so much pressure that they back off. But we have documentation of state legislators literally saying, we have to negotiate with the National Rifle Association in order to keep women safer.

And this is the reality of our politics today, which is why this issue is emblematic of politics and polarization. I think very few people understand this really strong connection between these gun laws and Second Amendment preservation, and the risk to women and children that comes from domestic abusers having guns.

DAN RICHARDS: It's worth noting too that guns don't just make domestic violence more lethal for victims.

CAITLIN SADOWSKI: Domestic violence incidents are the most deadly situation a law enforcement person can respond to. Bar none. And. So domestic and foreign laws are not just protecting victims, they're also protecting law enforcement as well.

WENDY SCHILLER: Georgia State has a study that says, at least 25% of all injuries and deaths to law enforcement on a yearly basis are committed responding to or answering a domestic violence call or trying to retrieve a gun from somebody who shouldn't have one. And then, of course, there are now studies coming out about mass shootings, and the number of mass shooters who have some history of domestic violence or have been subject to it or committed it is about 68%. It's just a huge connection.

So there are a lot of negative externalities that come out of what is prior to now being viewed as a private matter or a public health matter, and we want people to pay attention to this as a political issue where they are empowered to go to their state legislatures and say, do more.

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DAN RICHARDS: The result of all this, depending on the state you live in, it might be much harder to protect yourself from an abusive partner. It might also be more likely that that abuse could turn lethal. For example, the rate of women who are murdered by family members was lower in the state of Rhode Island in Nineteen Ninety, pre all this legislation, than it was in the state of South Carolina in Twenty Seventeen.

States are not the only factor in discrepancies people face when it comes to their risk of domestic violence, which brings us to the third major source of inequality in this realm. Race, ethnicity, and immigration status also affect how well women are protected. One particularly disturbing example of this--

WENDY SCHILLER: There's no question that Native American Indigenous women are the most likely or frequent most frequent victims of domestic violence. And that's a whole other story we can tell on a different podcast, but I'll let my colleague Caitlin summarize that issue, which is very profoundly important across the country.

CAITLIN SADOWSKI: So a mixture of federal law as well as the Supreme Court case have made it so that Native American tribes cannot prosecute non-natives for crimes on their land. So that means that I could go onto a reservation and I could abuse my partner, and then I could leave, and the Tribal Law enforcement could do nothing about it. The only people who could do something about it is the federal government, a federal district attorney.

However, they often don't take on these cases. They often don't have-- the jurisdictions are confusing in terms of who actually responds, and then getting testimony. And it's just-- it makes for a very challenging and difficult way to address domestic violence, which leaves most Native American women as having no recourse for justice whatsoever.

And over 80% of victims say that their perpetrator was a non-Native American. So this is it's not Native Americans within their communities doing this to each other, it's coming from outside the community. Some reports put it at over 80% of Native American women will be victims of domestic violence at some point in their life.

DAN RICHARDS: When you hear statistics like that, the idea of addressing this crisis can seem totally hopeless. But there has been some progress, even on this particular aspect of domestic violence.

CAITLIN SADOWSKI: In Twenty Thirteen there was a reauthorization of VAWA that created something called special domestic violence criminal jurisdictions where tribal nations could apply, and through a series of changes to their laws, actually have the ability to try cases of non Native American domestic violence offenders against Native American women and men on their tribal lands.

DAN RICHARDS: The progress has been, as you'd expect, halting and smaller than advocates would like to see.

CAITLIN SADOWSKI: Unfortunately, only 31 tribal nations out of 576 have adopted this so far. Pretty much all of the tribal nations in Alaska were not eligible until just a few months ago for other more complicated reasons, but the vast majority have not done so. And so this is one of those problems that you see that they should be able to prosecute these crimes.

They shouldn't necessarily have to go through a bunch of hoops to try and get one of these jurisdictions to do so. But that's what is required as of now. It's been extended in the Twenty Twenty-Two VAWA reauthorization, and I think it is-- the federal government has taken a really hard look at the program to try and see how to best expand it and make it easier for tribal nations to do this.

DAN RICHARDS: Another bright or bright-ish spot, in Twenty Twenty-Two after the mass shooting in Uvalde, Texas, the US Congress passed its first bipartisan gun control legislation in 30 years. It was called the Bipartisan Safer Communities Act. And it, among other things, closed the boyfriend loophole. But as Wendy and Caitlin see it, there are policy steps that we can and should be taking right now that could have a large impact on the rates and severity of domestic violence. Some of which don't even require getting into the arena of gun control. One example would be to expand the definition of domestic violence in domestic violence legislation.

CAITLIN SADOWSKI: Including coercive control--

DAN RICHARDS: That's things like financial coercion, emotional manipulation, and threatening behavior.

CAITLIN SADOWSKI: I personally think that it is easier now to track something like coercive control because of the internet and because of phones. I mean, I think that it is much more easier to track someone saying something abusive in an email or in a text message or tracking your phone. I think coercive control is a really important expansion into domestic violence law that definitely needs to happen.

DAN RICHARDS: Another thing Wendy and Caitlin recommend is the widespread adoption of what are called lethality assessments.

CAITLIN SADOWSKI: Lethality assessments are a great tool to figure out how to catch the people who are going to be most likely to be victims of domestic violence firearm violence before it happens. They are an assessment that law enforcement use that asks a series of questions. And if you have a certain score and particularly if you answer certain questions in the affirmative, like strangulation is a really big hint that you are much more likely to be a victim of homicide in a domestic violence situation or if you were already threatened with a gun. Again, much more likely to therefore be a victim of domestic violence homicide. And you ask these questions of the victim, and then if they answer a certain number of questions in the affirmative, it opens up this huge network of services, and help, and just tracking of the victim to try and make sure that they understand that they are much more likely to die now, which maybe may make them a little bit more likely to pursue charges or to leave fully their abuser, and also giving them the support they need to do that.

WENDY SCHILLER: So the Maryland network against domestic violence originated the lethality assessment program some years ago, and they've really worked with a lot of police departments all over the country. And what they've seen is that when this is administered effectively, when a victim is connected with social services on the spot, then they save lives.

So this is where we argue the federal government could say, we give you block grant money for law enforcement, we give you money in every police Department in the country. So one simple requirement as a condition of receiving the money is that you train your law enforcement to administer these LAPs, and that you make it standard practice. It's a simple federal requirement that will definitely save lives.

CAITLIN SADOWSKI: And keeping in mind that when the federal government doesn't step in and when states don't also step in and leave it to local governments or local law enforcement to make the decisions, then it literally depends on whether or not that police precinct uses lethality assessments or not, and then the judge you go before. And so it's all just a roll of the dice, which is not how it should be. It should be equal, it should be-- you get the same treatment no matter about what law enforcement agent, or what Judge you're going before, or the color of your skin, or your immigration status. But that's not how it is right now.

DAN RICHARDS: There are lots of complex and important questions among policymakers and political scientists about the role of state versus federal legislation. But as Wendy and Caitlin argue, domestic violence is simply too fundamental an issue and too widespread a crisis to leave to states and municipalities to manage.

WENDY SCHILLER: We're not suggesting that the federal government should take it over part and parcel. What the federal government should do is ask states to meet basic standards, basic minimums in how they legally define domestic violence and how they legally protect people from domestic violence, particularly gun related injury and death. So that's what we're proposing. That the federal government can do more to demand that states have this basic standard across the board so no woman is left more or less protected at least in that way.

CAITLIN SADOWSKI: And I also think it's about how the federal government sets an example. I think it's set a very bad example that we can debate whether or not certain laws protect women and how well they protect women, instead of just, this is the way it should be and this is how we should treat people and over half of our population.

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DAN RICHARDS: When it comes to issues of equality and the role of the federal government, Wendy sees an analogy in recent history that might help us all better understand the importance of ending domestic violence in America.

WENDY SCHILLER: When we think about marriage, it has always been the purview of the states. And we've seen with freedom to marry and the same sex equality movement that the Supreme Court weighs in and says, no, this is a fundamental federal guarantee of equality that you should be able to marry whom you love. Then when you look at domestic violence and you look at security issues, what we're saying is, if you are going to bring the federal judiciary and the Constitution into equality, we think that the fundamental right to be secure in your own home should also raised to that level.

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DAN RICHARDS: Caitlin Sadowski, Wendy Schiller, thank you so much for talking with us on Trending Globally.

WENDY SCHILLER: Thank you.

CAITLIN SADOWSKI: Thank you.

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DAN RICHARDS: This episode was produced by me, Dan Richards, and Sam McKeever Holtzman. Our theme music is by Henry Bloomfield. Additional music by the Blue Dot Sessions. If you like this show, please subscribe to it wherever you listen to podcasts. And leave a rating and review on Apple or Spotify. It really helps others to find us.

If you have any feedback for us or questions or ideas for topics or guests for an upcoming episode of Trending Globally, send us an email at trendingglobally@brown.edu. Again, that's all one word, trendingglobally@brown.edu. We'll be back in two weeks with another episode of Trending Globally. Thanks.

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