VAWA @ 20: VAWA and Welfare Reform: Criminalizing the Most Marginalized Women
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VAWA @ 20: VAWA and Welfare Reform: Criminalizing the Most Marginalized Women
Ann Cammett 0
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Follow this and additional works at: http://academicworks.cuny.edu/clr Part of the Criminal Law Commons, and the Law and Gender Commons Recommended Citation Ann Cammett, VAWA @ 20: VAWA and Welfare Reform: Criminalizing the Most Marginalized Women, 18 CUNY L. Rev. (2014). Available at: http://academicworks.cuny.edu/clr/vol18/iss1/21
Ann Cammett, VAWA @ 20: VAWA and Welfare Reform: Criminalizing the Most
Marginalized Women, 18 CUNY L. REV. F. 67 (2014),
VAWA @ 20: VAWA AND WELFARE REFORM:
CRIMINALIZING THE MOST MARGINALIZED WOMEN
Ann Cammett, Professor, CUNY School of Law
The Violence Against Women Act (VAWA), originally passed by
Congress as part of the Violent Crime Control and Law Enforcement Act of
1994,1 was intended to provide federal intervention into the problem of
pervasive gender violence. Soon after VAWA’s enactment, however,
national welfare reform legislation, along with a skyrocketing rate of female
incarceration, served to undermine the aspirational goals of VAWA for the
most marginalized victims—poor women. Therefore, the enactment of
VAWA must be viewed in the political context of conservative
retrenchment into law and order policies and the elimination of the social
Before VAWA, feminist advocates in the 1970s developed a strategic
network of services for battered women to help them procure public
benefits in order to gain independence from intimate partners who often
blocked access to resources.2 This strategy was predicated on the common
sense notion that economic freedom was a critical element in rebuilding the
lives of victim/survivors and their children. Domestic violence was, and is,
a primary cause of homelessness.3 In addition to shelter arrangements, the
1 P.L. 103-322 (1994).
2 Christine George, Welfare Reform and the Safety Needs of Battered Women, in THE
PROMISE OF WELFARE REFORM: RHETORIC OR REALITY? 184 (K. M. Kilty & E. Segal, eds.,
3 ACLU Women’s Rights Project, Domestic Violence and Homelessness (2006),
provision of food stamps, Medicaid, and public assistance—then called Aid
to Families with Dependent Children or AFDC—were important
steppingstones toward financial independence for battered women. However, less
than two years after the original VAWA legislation President Bill Clinton
also signed into law the Personal Responsibility and Work Opportunity
Reconciliation Act (PRWORA),4 fulfilling his pledge to “end welfare as we
know it.”5 The new legislation abolished AFDC and replaced it with
Temporary Aid To Needy Families (TANF), a time-limited, discretionary
state block program that sharply curtailed or denied benefits to many
women, including noncitizens. Propelled by racialized rhetoric framing
welfare as a “culture of dependency” that discouraged work among poor
mothers, politicians successfully sought to stoke white resentment to shred
the social safety net.6 When the dust cleared, welfare was no longer an
entitlement and TANF did not guarantee enough income to keep families
out of dire poverty.7
The weakened social safety net had particularly dire consequences for
women attempting to separate from domestic violence situations. Apart
from an emphasis on work to the exclusion of nearly all other activities,
PRWORA institutionalized a reactionary vision of family construction.
Central to the logic of welfare reform is “marriage promotion”—the
preferred solution to poverty, which is clearly laid out in the legislation. In
fact, PRWORA itself exalts the heteronormative family as a policy
prerogative, as indicated in Congressional findings on the importance of
marriage and two-parent households.8 In the absence of reconstituting a
available at https://www.aclu.org/sites/default/files/pdfs/dvhomelessness032106.pdf.
4 P. L. 104–193 (1996).
5 William J. Clinton, Op-Ed., We Ended Welfare Together, N.Y. TIMES, Aug. 22, 2006,
available at http://www.nytimes.com/2006/08/22/opinion/22clinton.html.
6 I have developed this concept much more in a separate paper. See Ann Cammett,
Deadbeat Dads & Welfare Queens: How Metaphor Shapes Poverty Law, 34 B.C.J.L. &
SOC. JUST. 233 (2014), available at http://lawdigitalcommons.bc.edu/jlsj/vol34/iss2/3.
7 See Jason DeParle, Welfare Limits Left Poor Adrift as Recession Hit, N.Y. TIMES,
Apr. 7, 2012, available at
http://www.nytimes.com/2012/04/08/us/welfare-limits-left-pooradrift-as-recession-hit.html?pagewanted=all (The women that DeParle interviewed “have
sold food stamps, sold blood, skipped meals, shoplifted, doubled up with friends,
scavenged trash bins for bottles and cans and returned to relationships with violent
partners—all with children in tow.”)
8 Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L.
No. 104-193, § 101, 110 Stat. 2105 (1996). (“Findings:The Congress makes the following
(1) Marriage is the foundation of a successful society.
(2) Marriage is an essential institution of a successful society which promotes the
interests of children.
(3) Promotion of responsible fatherhood and motherhood is integral to successful
child rearing and the well-being of children.
two-parent household through marriage promotion, PRWORA requires
women to participate in paternity establishment and child support
enforcement in order to aggressively transfer the obligation of support for
very poor children from the state to “absent” parents, usually fathers.
In this gendered framework, it is easy to imagine why meeting enhanced
requirements for necessary benefits would be even more onerous for
women fleeing marriages or relationships plagued by intimate partner
violence. For example, these women often have difficulty fulfilling work
requirements given the other immediate priorities that dovetail with their
safety needs, including safe housing and the need to manage altered
childcare and school responsibilities. To this end advocates fought for, and
obtained, important exemptions and specialized services for victims of
domestic violence.9 Specifically, the Family Violence Option (FVO) gives
states the option to screen recipients for domestic violence and to grant
exemptions from work and paternity/child support enforcement.10 However,
while these provisions have mitigated the impact of PWRORA for many
women, their limited scope, haphazard application, local implementation
problems, and even caseworker hostility have left a weakened system of
support for many battered women.11 These problems undermine the intent
of VAWA, and put pressure on some women to return to dangerous and
unhealthy relationships, as they often are compelled to make choices
between survival and punitive state regulation.
THE CRIMINALIZATION OF POOR WOMEN
When welfare reform was signed into law there was vigorous debate
about the historic gutting of the longstanding entitlement program, but one
very significant portion of the legislation received far less attention at the
time: the felony drug ban on welfare benefits.12 While Congress did allow
(4) In 1992, only 54 percent of single-parent families with children had a child
support order established and, of that 54 percent, only about one-half received the full
amount due. Of the cases enforced through the public child support enforcement
system, only 18 percent of the caseload has a collection.
(5) The number of individuals receiving aid to families with dependent children
(in this section referred to as “AFDC”) has more than tripled since 1965. More than
two-thirds of these recipients are children. Eighty-nine percent of children receiving
AFDC benefits now live in homes in which no father is present.”);
See also Ann Cammett, Deadbeats, Deadbrokes, and Prisoners, 18 GEO. J. POVERTY
L. & POL’Y 127 (2011).
9 See George, Welfare Reform and the Safety Needs of Battered Women, supra note 2,
12 21 U.S.C.A. § 862(a).
for modification or opt-out for the states,13 PRWORA imposed a lifetime
denial of federal welfare benefits on people convicted of felony drug-related
crimes.14 This aspect of welfare reform serves as a significant barrier for
survivors of intimate partner violence because of the very strong correlation
between exposure to domestic and sexual violence, women’s criminality,
and the “war on drugs.”
The so-called war on drugs had a radical negative effect on communities
of color generally, but especially on women. The exponential growth of
women’s incarceration in the 1980s and 1990s15 is directly tied to
prosecutions for drug offenses, which are also linked to extremely high
percentages of co-recurring domestic violence. Researchers consistently
have found high levels of past and current physical and emotional abuse in
the lives of women drug abusers.16 For instance, by some accounts more
than seventy-five percent of incarcerated women report histories of severe
physical abuse by an intimate partner during adulthood, and eighty-two
percent suffered serious physical or sexual abuse as children prompting, for
many, illegal drug use as a form of self-medication.17 While VAWA
funding has encouraged efforts to recognize and address domestic violence,
the Correctional Association aptly notes that, “[t]he large numbers of
survivors in prison represents a failure of both the criminal justice and
social service systems.”18 Stated differently domestic violence serves as a
risk factor for women’s incarceration, which should be directly confronted
to alleviate unnecessary suffering.
As such, the felony drug ban has an outsized impact on poor women
who are recovering from both drug abuse and domestic violence. The
number of victims affected by the ban is substantial. According to the
Sentencing Project, the felony drug ban has likely affected hundreds of
thousands of women over the course of their lifetimes, well after most will
have completed serving their felony sentences.19 Moreover, the felony drug
ban operates in tandem with a host of other civil collateral consequences20
that women face after a criminal conviction, creating obstacles to both
freedom from abuse and successful reintegration.
While we celebrate the important successes of VAWA on its 20th
anniversary—especially the expansion of protections and resources to
underserved groups—we should undertake a critical assessment of how
welfare reform and the escalating criminalization of poor women limited
the contours of service delivery to some victims from the outset. The
prevalence of incarcerated survivors of violence demonstrate the importance
of acknowledging, prioritizing and providing responsive services to
survivors of domestic violence who also have criminal records related to
* * *
19 See Mauer & McCalmont, supra note 13, at 4.
20 COLGATE LOVE, MARGARET, JENNY ROBERTS & CECELIA KLINGELE, COLLATERAL
CONSEQUENCES OF CRIMINAL CONVICTIONS: LAW, POLICY AND PRACTICE § 9:10 (NACDL
Press & Thomson Reuters Westlaw 2013).
13 States can opt out of the complete lifetime ban, modify it, or adopt it in its entirety. To date nearly three quarters of states have adopted some form of restriction . See Marc Mauer & Virginia McCalmont , A Lifetime Of Punishment: The Impact Of The Felony Drug Ban On Welfare Benefits, THE SENTENCING PROJECT ( 2013 ), available at http://sentencingproject.org/doc/publications/cc_A%20Lifetime %20of%20Punishment.pdf.
15 The number of women in prison increased by 646% between 1980 and 2010 , rising from 15 ,118 to 112,797. See Paul Guerino, Paige M. Harrison & William J. Sabol , Bureau of Justice Statistics, Prisoners in 2010 ( 2011 ), available at http://www.bjs.gov/content/pub/pdf/p10.pdf.
16 See AM . CIVIL LIBERTIES UNION, BREAK THE CHAINS: COMMUNITIES OF COLOR AND THE WAR ON DRUGS, AND THE BRENNAN CENTER AT NYU SCHOOL OF LAW, CAUGHT IN THE NET: THE IMPACT OF DRUG POLICIES ON WOMEN AND FAMILIES 9 ( 2005 ).
17 See Correctional Association of New York, Survivors of Abuse and Incarceration http://www.correctionalassociation.org/issue/domestic-violence, last visited Nov 5 , 2014 .
18 “Some women are in prison for defending themselves against an abuser. Others are incarcerated because they engaged in criminal activity to survive or because they took action at the behest of an abuser out of fear and threat of harm .” Correctional Association of New York, Survivors of Abuse and Incarceration Fact Sheet (April 1 , 2009 ), http://www.correctionalassociation.org/resource/survivors -of-abuse-in-prison-fact-sheet.