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Civil and Criminal Justice Remedies for Intimate Partner Violence
Demetrice M. Lopez and Anika Ramos
Intimate partner violence (IPV) is a persistent public health problem that impacts the physical and mental health of millions of people each year. The United States has historically relied on the legal system as the primary means of addressing IPV as a criminal or civil infraction. This chapter begins with a review of the history of IPV in the context of the legal system. It then considers the dynamics of IPV and its influence on the legal response. The chapter then looks at the broader impact of IPV and remedies for survivors in the justice system. Finally, it considers the interaction between the health and justice systems in the context of IPV.
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Why Domestic Violence Offenders Don't Give Up Their Guns
Natalie Nanasi
Perpetrators of intimate partner violence are barred by federal law and many states' laws from possessing firearms. While such prohibitions enjoy popular support, they are sporadically and inconsistently enforced, placing the lives of survivors at risk when offenders do not voluntarily comply. Many experts, including this author, have offered legal and policy solutions to increase the likelihood that perpetrators of domestic violence will either willingly relinquish their guns or otherwise be dispossessed of them. But these proposals may have been premature.
This Article is the first to take a step back and inquire why offenders do not surrender their firearms as ordered and what might incentivize them to do so. Understanding the worldviews and lived experiences of those subject to domestic violence gun prohibitions is a critical, and to-date ignored, first step to formulating viable solutions.
The Article is based on original empirical research conducted with perpetrators of intimate partner violence enrolled in a Batterer Intervention Program in Texas. The research reveals a range of novel findings based on both survey responses and in-depth interviews. The data show that most men subject to domestic violence firearm regulations are aware that they are prohibited possessors. They are reluctant to comply with the law, however, due to the atypically high levels of violence-including gun violence-they have experienced in their lifetimes, which has led them to conclude that firearms are necessary to protect themselves and their loved ones from harm. Respondents also identify closely with a stereotypically masculine identity that leads them to associate gun ownership with power and control; have strong (but not necessarily accurate) opinions about the Second Amendment; and are enmeshed in cultures where gun-carrying is the norm.
These insights about the men who are impacted by domestic violence gun regulations can help us promulgate laws and policies that offenders will be more inclined to comply with and are more likely to be enforced and enforceable. And importantly, successfully removing firearms from the hands of abusers can bring us one step closer to ending the epidemic of intimate partner violence gun fatalities in the United States.
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Reconciling Domestic Violence Protections and the Second Amendment
Natalie Nanasi
In March of 2023, the Fifth Circuit Court of Appeals held that individuals subject to domestic violence protective orders could not be required to give up their guns. The decision was the first of a federal court to overturn a firearm regulation pursuant to New York State Rifle & Pistol Association v. Bruen, a 2022 Supreme Court opinion that created a new standard for determining the constitutionality of gun restrictions. After Bruen, only laws that are “consistent with this Nation’s historical tradition of firearm regulation” pass constitutional muster.
The Fifth’s Circuit decision in U.S. v. Rahimi, which the Supreme Court will review in the 2023-24 term, highlights the unworkability of the Bruen test. Women’s rights were virtually nonexistent when the Second Amendment was ratified. Domestic violence was tolerated, and it was not until nearly 200 years later that protective order statutes were enacted across the United States. Looking to the past to justify modern-day gun safety laws gravely threatens women’s rights and safety.
But Bruen does not require such a narrow reading. Significant historical and legal precedent exists for disarming dangerous persons, and those who have had protective orders entered against them undoubtedly fall into that category. This article’s feminist critique of Bruen demonstrates why its holding is deeply problematic, but it also shows that it is possible to both hew to Second Amendment jurisprudence and protect survivors of intimate partner violence. -
Can Criminal Defense Attorneys Be Victim-Centered?
Natalie Nanasi and Demetrice Lopez-Loftis
Attorneys defending those accused of intimate partner violence, like all lawyers, owe duties of zealous advocacy and confidentiality to their clients. But is there a place within these ethical obligations for them to also consider the safety of the victim? Defense counsel are often uniquely situated—by virtue of their relationships with their clients and victims—to help mitigate potentially serious harm. This article explores the spaces where defending an accused perpetrator of domestic violence and taking actions to limit further harm to a survivor are compatible. It also identifies areas where defense attorneys can obtain additional resources and data to inform their decision-making when considering lawful exceptions to the ethical requirements of zealous advocacy and confidentiality. Lastly, it considers policy proposals, such as providing attorneys for survivors in the criminal process and revisions to the ethics rules, to address potential areas of conflict.
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New Approaches to Disarming Domestic Abusers
Natalie Nanasi
Laws prohibiting perpetrators of intimate partner violence from possessing firearms have long been on the books. But the failure to enforce them, thus allowing abusers to keep their weapons, has led to deadly consequences. While the criminal justice system has in recent years increased efforts to disarm domestic abusers, they have yielded minimal success.
It should be unsurprising that threatening criminal consequences for illegally possessing firearms has not been an effective strategy. Perpetrators knew they were breaking the law when they assaulted their partners, but did so anyway. And the calculated risk they take by not relinquishing guns often pays off due to a lack of coordination between the agencies tasked to verify compliance, as well as low prosecution rates.
Because criminal justice approaches have proven ineffective in dispossessing domestic violence offenders of firearms, alternative approaches are necessary. This Article, drawing from the fields of public health, international human rights, and anti-carceral feminism, explores such alternatives. It analyzes these theoretical areas to draw out commonalities— including a move away from exclusively carceral approaches, a focus on prevention, and an emphasis on community-based solutions—that can inform efforts to remove guns from the hands of domestic violence offenders. -
Patriarchy’s Link to Intimate Partner Violence: Applications to Survivors’ Asylum Claims
Daniel G. Saunders, Tina Jiwatram-Negrón, Natalie Nanasi, and Iris Cardenas
Eligibility for asylum for survivors of intimate partner violence (IPV) has recently been contested. We summarize social science evidence to show how such survivors generally meet asylum criteria. Studies consistently show a relationship between patriarchal factors and IPV, thereby establishing a key asylum criterion that women are being persecuted because of their status as women. Empirical support is also provided for other asylum criteria, specifically: patriarchal norms contribute to state actors’ unwillingness to protect survivors, and survivors’ political opinions are linked to an escalation of perpetrators’ violence. The findings have implications for policy reform and supporting individual asylum-seekers.
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Death of the Particular Social Group
Natalie Nanasi
Applicants seeking asylum in the United States must demonstrate that they fear persecution on account of one of five protected grounds—race, religion, national origin, political opinion, or membership in a particular social group (PSG). The PSG ground has long been the most complex and challenging avenue for relief, and in the Trump era, already precarious protections for vulnerable people such as survivors of intimate partner and gang violence were further impaired.
The Board of Immigration Appeals’ first, and longstanding, definition of a PSG in Matter of Acosta required members to possess “common immutable characteristics,” those that, like the other statutory grounds, either could not be changed or were so fundamental that one should not be required to change them. This Article reveals that since the Board imposed two additional requirements— that PSGs possess social distinction and particularity—over a decade ago, the Board has recognized only two new particular social groups. Both of those groups, one protecting survivors of domestic violence and the other family membership, were invalidated by Trump administration attorneys general. Thus, when examining BIA jurisprudence, it appears that the particular social group is dead.
This Article discusses the evolution of the particular social group ground in both domestic and international law and reviews the disparate treatment of PSGs by the Board of Immigration Appeals and federal circuit courts. It then makes recommendations—including legislation, reconsideration of the attorney general’s broad authority to overrule cases using the power of self-referral, and consideration of whether Chevron deference remains appropriate for PSG jurisprudence—for a return to the more equitable, and legally sound, Acosta immutability test.
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A Look at Legal Representation for Survivors
Natalie Nanasi
Professor Natalie Nanasi joined Bianca Jackson, of the anti-trafficking nonprofit New Friends New Life, on the organization’s weekly “Trafficking Tuesday” podcast. She discussed the work of the Hunter Legal Center for Victims of Crimes Against Women in seeking post-conviction relief for survivors and recent legislation impacting the lives of those who have experienced human trafficking.
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Disarming Domestic Abusers
Natalie Nanasi
Guns and domestic violence are a deadly combination. Every sixteen hours, a woman is fatally shot by her intimate partner in the United States; the mere presence of a gun in a domestic violence situation increases the risk of homicide for women by 500 percent.
Recognizing these risks, federal law and some states prohibit domestic abusers from possessing firearms. But these laws are not being enforced. Perpetrators of domestic violence are rarely ordered to surrender firearms, and even when they are, there are often no mechanisms to ensure that weapons are safely relinquished.
This Article proposes strategies to disarm domestic abusers, proceeding in three parts. First, it describes legislation that would prohibit perpetrators of intimate partner violence from owning or possessing firearms. Next, it explains the mechanisms required to implement that legislation. Finally, it recommends litigation strategies to ensure meaningful enforcement. Only all three, working in together, have the potential to prevent the gun-related deaths of intimate partners. -
Flawed Design: How the U Visa Is Revictimizing the People It Was Created to Help
Natalie Nanasi, Roslyn Dubberstein, Tamara Hyndman, Landon Mignardi, Kelsey Vanderbilt, and Kali Cohn
Since the U visa was created, advocates have raised concerns about requiring survivors to interact with the criminal justice system. Many have issued thoughtful critiques of the U visa’s law enforcement certification requirement. But particularly in this moment—where this nation has been called, yet again, to come to terms with its persecution, exploitation, and dehumanization of Black people, Indigenous people, and people of color—it would be irresponsible not to shine a light on the ways that the U visa reinforces an unequal system.
Although this Report addresses the damaging effects of both design flaws, it focuses on the 10,000 annual cap’s effects on survivors and the attorneys who represent them. The Report relies on semi-structured interviews with U visa applicants, stories shared by immigration attorneys, and survey data from nearly 150 immigration attorneys all across the country. The research clearly demonstrates that the flawed U visa system re-victimizes the already-vulnerable people it was intended to help.
As the Report illustrates, there are many problems with the system, but the answer is fairly straightforward: Congress must raise or eliminate the 10,000 annual cap on U visas and eliminate the U visa’s mandated interactions with law enforcement. In the meantime, the U.S. Citizenship and Immigration Services (USCIS), the agency that reviews U visa petitions, has the power to ease some of the challenges of the backlog created by the U visa cap. Until then, Congress’s intention that this “humanitarian” visa will ”offer protection to victims of” domestic violence, sexual assault, trafficking of aliens, and other crimes” will go unfulfilled.
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Are Domestic Abusers Terrorists: Rhetoric, Reality, and Asylum Law
Natalie Nanasi
The terms terrorism and terrorist are highly charged but all too often imprecisely utilized in legal, media, and political arenas. The terminology has even entered the field of intimate partner violence, where the phrases terrorism in the home or intimate terrorism have been used to describe domestic abuse. This language has proliferated not only due to identified commonalities between intimate partner abuse and terroristic behaviors but also because of the rhetorical impact of the words in highlighting the gravity of domestic violence. However, expanding the legal framework of terrorism into new areas has potentially serious and far-reaching consequences. It is therefore critical to carefully analyze the impact of reconceptualizing intimate partner abuse as a form of terrorism.
This Article undertakes such an analysis with a focus on asylum law. It ultimately concludes that even though reconceptualizing intimate partner abuse as terrorism in the home may accurately describe the political and societal implications of domestic abuse (as well as the state's complicity in perpetuating it) and has the potential to expand access to asylum for survivors, the terrorist label should be applied with caution. The decision to designate a violent act a terrorist act is often political in nature, and race and religious affiliation are frequently decisive factors in assigning the label. Moreover, significant criminal and immigration consequences exist for those who are branded terrorists and those who harbor or materially support terrorists, potentially including survivors themselves. Recognizing these drawbacks, this Article calls for selective and limited use of the intimate terrorism framework-effectively defining the phenomenon without utilizing the label-in the asylum law system.
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No-Fault Divorce: The Case Against Repeal
Joanna L. Grossman and Elicia Grilley Green
The Texas Legislature has recently been presented with House Bill 93 (“HB 93”), which aims to eliminate no-fault divorce for individuals seeking a divorce without the consent of both parties.
This paper refutes every argument made by supporters of the bill, showing why no-fault divorce is an appropriate and necessary option for the dissolution of an unsustainable marriage. The best argument against HB 93 is the history of fault-based divorce itself, which demonstrates the bill’s flaws in spades. Fault-based divorce neither lowers the divorce rate, nor alleviates the effects of divorce on children. There is no contractual or constitutional right to stay married over the objections of one’s unhappy spouse, nor any “due process” right to defend oneself against the claim that the marriage has failed. Moreover, the legal and constitutional objections to fault-based divorce have no basis in law, policy, or logic. In fact, the proposed change to no-fault divorce raises more concerns than it addresses.
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Repealing No-Fault Divorce Would Harm Survivors of Domestic Violence in Texas
Judge Elmo B. Hunter Legal Center for Victims of Crimes Against Women
For the past two legislative sessions, the Texas Legislature has explored the repeal of no-fault divorce in the state. This paper explains why such action would be detrimental to the more than five million survivors of domestic violence in Texas. Briefly stated, requiring proof of fault in order to obtain a divorce imposes financial burdens that trap victims in abusive relationships and increases the risk of harm and lethality.
The economic impacts of repealing unilateral no-fault divorce will adversely affect not only victims of domestic violence but also the State of Texas itself. By its nature, fault-based divorce is significantly more expensive than no-fault divorce. The high costs associated with proving a fault ground will become a barrier to divorce for survivors of domestic violence, particularly the 94 to 99 percent of victims who experience economic abuse along with physical violence and therefore lack access to financial resources. Furthermore, the under-resourced family court system will face mounting burdens as fault-based divorces alleging domestic violence are more likely to be contested. These contested fault-based divorces not only clog the dockets of judges but also impose significant demands on court personnel who must guide and advise pro se litigants (who comprise the majority of litigants in family court) through complex divorce proceedings. Lastly, if fault-based divorce is cost-prohibitive for survivors and they are trapped in abusive relationships, the costs of domestic violence to the State of Texas – such as medical and mental healthcare and shelter stays – will increase as well.
Finally, the repeal of no-fault divorce will also increase the risk of lethality and psychological harm to domestic violence victims and their loved ones. In 2016, 40 percent of women murdered in Texas were attempting to leave their relationships. The data suggest that in a fault-only system, a victim may be deterred or prevented from getting a divorce, forcing her to remain in an abusive relationship due to a fear of retaliation coupled with the lack of sufficient evidence necessary to prove fault. Furthermore, the requirements of the fault-based system re-victimize survivors of domestic violence by compelling them to re-live their traumatic experiences in the courtroom and allowing their abuser to use the justice system to perpetuate a cycle of power and control. Finally, a fault-based regime that prevents women from escaping abuse also traps their children in hostile environments where they may be subjected to physical violence or develop health and behavioral issues due to the stress of living in an abusive home.
In consideration of the significant hardships to both victims of domestic abuse and the State of Texas that would result from a repeal of no-fault divorce, any bills proposing repeal should not be enacted into law.
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The U Visa's Failed Promise for Survivors of Domestic Violence
Natalie Nanasi
Recognizing the unique vulnerabilities of immigrants who become victims of crime in the United States, Congress enacted the U visa, a form of immigration relief that provides victims, including survivors of domestic violence, a path to legal status. Along with this humanitarian aim, the U visa was intended to aid law enforcement in efforts to investigate and prosecute crime, based on the notion that victims without legal status might otherwise be too fearful to “come out of the shadows” by reporting offenses to the police. Although these two goals were purportedly coequal, in practice, by requiring survivors to cooperate with law enforcement in order to obtain U nonimmigrant status, the benefits to police and prosecutors are achieved at the expense of the victims Congress sought to protect, exacerbating the very vulnerabilities the U visa was intended to address.
This article posits that this marginalization of immigrant victims’ interest should have been foreseen, as U visa requirements are analogous to other mandatory interventions in cases of domestic violence that have disempowered and destabilized survivors, particularly poor women of color. In tracing the history of the public response to domestic violence, from the time when spousal abuse was ignored or condoned to the overcorrection that has led to compulsory state involvement in women’s lives, it becomes clear that the U visa has perpetuated the swing of the pendulum away from victim autonomy and toward an aggressive criminal justice response to domestic violence. This article details why such a shift is particularly damaging for immigrant survivors – due to language barriers, complicated relationships with police, familial ties and economic constraints – and proposes novel solutions that mitigate the harmful effects of the U visa certification requirement and break away from ineffective conventions surrounding assistance for survivors of domestic violence.
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Taking Aim at Family Violence: A Report on the Dallas County Gun Surrender Program
Laura Choi, Rachel Elkin, Monica Harasim, and Natalie Nanasi
The Dallas County Gun Surrender Program (“the program”) provides domestic violence offenders who are legally barred from possessing firearms a safe and secure way to surrender any guns they own. Existing state and federal laws prohibit offenders from possessing firearms for a statutorily-specified period of time; offenders who violate the law by possessing guns also expose themselves to criminal penalties. However, prior to the launch of the Program, offenders in Dallas County had few ways to comply with these laws or were unaware that they were required to surrender their firearms. As a result, many offenders continued to possess firearms illegally. This report unequivocally concludes that the Program is a vital part of county-wide efforts to protect domestic violence survivors from gun violence. However, the Program is dramatically underutilized. Only a handful of judges refer guns to the Program. Key stakeholders are not collaborating to expand the Program’s operation or to hold noncompliant offenders accountable. The Program is struggling to develop an independent identity apart from the misdemeanor family violence courts, and is hampered by insufficient communication between the many law enforcement agencies, prosecutors, city attorneys, and judges in the county who are tasked with protecting survivors from abuse.
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Domestic Violence Asylum and the Perpetuation of the Victimization Narrative
Natalie Nanasi
Pitiful. Helpless. Powerless. The words often used to describe survivors of domestic violence conjure a vivid and specific image of a woman lacking both strength and agency. These (mis)conceptions stem from the theories of “Battered Woman Syndrome” and “learned helplessness,” developed in 1979 by psychologist Lenore Walker, who hypothesized that intimate partner abuse ultimately causes a woman to resign herself to her fate and cease efforts to free herself from violence or dangerous situations.
Although widely criticized, learned helplessness has permeated the legal establishment, for example, serving as the foundation for mandatory arrest and “no drop” policies in the criminal sphere of domestic violence law. Legal scholars have examined the problematic impacts of both the theory of learned helplessness itself and its effect on survivors in the criminal and civil justice systems. This article adds to that important conversation by exploring the previously unexamined area of learned helplessness’ impact on immigration, specifically asylum, law.
Through a series of cases from 1996 to 2014, it is now established that a woman may receive asylum protection if she can establish that she is “unable to leave” a violent domestic relationship. This formulation fits squarely within Walker’s framework, as it requires a victim to advance a narrative of helplessness if she is to obtain refuge in the United States. Furtherance of the notion of Battered Woman Syndrome in asylum law is troubling for a number of reasons, namely, as this piece details, in the harms that can result when survivors of domestic violence are required to conform to a specific “stock story” (including injury to both those who fit the stereotype and those who do not). Additionally, continued adherence to and reliance on learned helplessness poses challenges for client-centered lawyering, perpetuates the tendency of victim-blaming, ignores the realities of the dangers of separation violence, and furthers the damaging dichotomy of “worthy” and “unworthy” immigrants.
By identifying these concerns and proposing alternative bases for protection that would encompass not just pitiable and vulnerable victims of domestic violence, but strong, empowered and capable fighters against domestic abuse, this article seeks to critique, rebut and prevent the infiltration of static and stereotypical images of battered women in the realm of immigration law.
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