On November 7, 2023, the U.S. Supreme Court will hear oral arguments in United States v. Rahimi. At issue is whether or not 18 U.S.C. 922(g)(8), a federal law that prohibits those who are actively subject to a domestic violence civil restraining order from possessing firearms, is constitutional under the Second Amendment. Domestic violence is “pervasive, deadly, and inextricably linked with firearms.” Therefore, the justices will not just decide on another case on gun safety, but whether or not survivors of domestic violence will have one less avenue for protection from their abusers. In turn, Rahimi has renewed discussions on effective accountability and the complex safety needs of domestic violence survivors, particularly those from communities of color.
Notably, the lawyers of the defendant in this case—an alleged abuser—as well as conservative appellate judges and gun rights advocates, have argued that 18 U.S.C. 922(g)(8) can be found unconstitutional without mitigating survivor safety because the criminal legal system will fill that gap, arguing that “abusers must be detained, punished, and incarcerated.” However, this position completely ignores two crucial facts. First, the criminal legal system has historically failed to provide swift accountability and protection for survivors in the form of the arrest and incarceration of their abusers. Second, survivor– and advocate-led movements have shifted away from relying exclusively on a punitive, abuser-oriented framework, instead shifting toward nonpunitive, survivor-oriented frameworks that are accountable to the multifaceted needs of survivors and their families.
As the increasingly extreme and activist Supreme Court majority weighs the expansion of the Second Amendment against the safety needs of domestic violence survivors, it is now more imperative than ever that U.S. laws ensure accountability to the complex needs of survivors and that 18 U.S.C. 922(g)(8) remain constitutional to protect all survivors.
Defining domestic violence
Domestic violence encompasses a broad range of behaviors, relationships, and situations, and it affects approximately 10 million people in the United States every year. The United Nations defines domestic violence as “a pattern of behavior in any relationship that is used to gain or maintain power and control” over another.
Furthermore, abusive behavior is broadly understood as physical, sexual, emotional, economic, psychological, or technological actions or threats of actions that influence another person. This includes any behaviors that frighten, intimidate, terrorize, manipulate, hurt, humiliate, blame, injure, or wound someone. For domestic abuse of children or the elderly, behaviors include neglect or an intentional act by a caregiver that causes or creates a risk of harm.
Accountability and survivors’ safety must go beyond the criminal legal system
Survivors are a diverse population with a multiplicity of experiences and needs, and they need effective public policy that provides access to a wide range of care, supports, and resources—and that protects them from violence in the first place. However, the criminal legal system has long been one of the few options available to resolve short- and long-term survivor needs, and it has often proved ineffective.
Underlying the almost exclusive focus on the criminal legal system is the misconception that the system can provide swift accountability, which is necessary to protect survivors, or that it is equipped to address their urgent and wide-ranging needs. Research from the past decade has shown the exact opposite: Despite the fact that 1 in 3 women have experienced domestic violence, rates of arrest, prosecution, and conviction remain consistently low. Furthermore, even when an abuser is arrested and prosecuted, it can take years to reach a conviction and for a jail sentence to be issued. These statistics highlight a harsh reality: Even survivors who contact law enforcement or seek protection and accountability through the criminal legal system are unlikely to see their abuser separated from them. This is particularly concerning because the period immediately following a survivor leaving their abuser is the most dangerous, as abusers often escalate their abuse once they find out they are losing control.
The criminal legal system has also failed to provide the services survivors need to ensure their safety and protection. Only an estimated 20 percent of crime survivors have received any kind of services from the criminal legal system, and only 1 in 4 crime survivors found the criminal legal system helpful in providing information about recovering from crime or referrals for support services.
Furthermore, to stay alive and ultimately leave an abusive situation, survivors need support navigating the complex decisions they have to consider—something the criminal legal system alone fails to provide. For example, leaving an abusive situation can be a financial hurdle. Many survivors face financial abuse—they have not had access to family finances—have been prohibited from working, or have had their credit scores destroyed by their partner in order to maintain undisputed financial power and control. The loss of secure housing upon leaving an abuser exacerbates this financial insecurity. In fact, domestic violence is one of the leading causes of homelessness for women and their children. Additionally, in cases in which survivors have children with their abusers or in which children have reported on household members, a call to criminal and civil enforcement systems automatically triggers the involvement of child protective services, which can potentially result in children entering foster care and being separated from the survivor for the short or long term.
Moreover, research demonstrates that time and again, survivors face negative experiences at every step of the criminal legal response to domestic violence, from initial contact with law enforcement to corrections. Decades of research shows that the few survivors who do involve law enforcement report having dehumanizing experiences, including discrimination and biased police misconduct, dismissive responses, and the perpetuation of myths about domestic violence. A nationwide survey conducted in 2015 of respondents’ answers regarding police-related encounters with survivors of domestic violence found that 88 percent of respondents were concerned about police inaction, hostility, and dismissiveness.
Survivors face negative experiences at every step of the criminal legal response to domestic violence, from initial contact with law enforcement to corrections.
Furthermore, survivors disproportionately experience secondary victimization compared with other populations that have interfaced with the criminal legal system. Secondary victimization is defined as “insensitive, victim-blaming treatment, and negative victim experiences at various stages of the legal process that often result in greater feelings of trauma.” Its effects are well documented: Many survivors report that they regret seeking help after the fact not only because of the legal system’s initial response, but also the subsequent effects of secondary victimization, also known as collateral consequences. The same 2015 study found that 89 percent of respondents were concerned about collateral consequences—specifically contact with law enforcement that results in calls to child protective services. Involving law enforcement in domestic violence incidents where children are present can also lead to victim blaming, wherein survivors are vulnerable to failure-to-protect charges. These types of policies magnify consequences for women and their families. Moreover, research suggests that some survivors may be less likely to call the police the next time they need help, ultimately demonstrating futility in the legal system’s response and ability to deter future acts of violence.
Additionally, addressing the needs of all survivors requires understanding that for survivors from communities of color, the prospect of arrest, prosecution, and incarceration significantly affects their decision-making process. For example, survivors’ ability to safely access the help they need is complicated by the frequent criminalization of the very behaviors and strategies they use to survive violent relationships. All survivors—particularly those from communities of color—may risk arrest or incarceration for a variety of reasons related to trauma and abuse, such as acts of self-defense against perpetrators or being forced to engage in illegal activities to survive, such as prostitution, shoplifting, and low-level drug offenses. For example, a study of incarcerated women in New York City jail systems found that the majority of women engaged in illegal activity in response to the experiences of abuse, threat of violence, or coercion by male abusers. Lastly, immigrant survivors—particularly those with a civil or criminal legal record—may face surveillance, legal proceedings, and potential deportation for anyone in their household who is an immigrant.
Percentage reduction in firearm intimate partner homicides among states that restrict people with active domestic violence restraining orders from accessing a firearm
The criminalization of behavior that survivors undertake as a result of an abusive situation only makes it harder for them to access the services they desperately need. For example, many shelters or safe houses do not accept survivors with criminal histories, despite the fact that housing is a critical short-term service needed to ensure a survivor’s safety.
Ultimately, the reliance on the criminal legal system as the only right way to secure justice for survivors disbars other approaches from gaining headway and legitimacy, and it also works to ostracize survivors who may seek a different path to safety, justice, accountability, and healing. Failure to consider other approaches will result in survivors’ continued trauma, victimization, and revictimization at the behest of ineffective public policy and a system hungry for punishment and retribution.
Shots do not have to be fired for firearms to endanger survivors
The defendant’s lawyers in Rahimi have argued that 18 USC 922(g)(8) violates the Second Amendment because it deprives individuals of their ability to keep firearms at home. However, even when they are not used to kill, firearms remain powerful weapons of coercive control. Coercive control is a pattern of behavior or actions used by a perpetrator to frighten, threaten, oppress, and undermine the autonomy of a survivor. In the heat of an argument, a partner or family member “methodically and openly cleaning their gun can deter resistance just as effectively as firing a shot.” Notably,“using a gun as a tool of coercive control is almost exclusively male intimate partner behavior.” Numerous studies have confirmed the same.
Keeping firearms out of the home, which is exactly what 18 U.S.C. 922(g)(8) intends to do, is essential to protecting survivors. States that restrict access to guns by people subject to active domestic violence restraining orders have seen a 13 percent reduction in intimate partner homicides involving firearms.
Improving accountability to survivors
Without effective avenues for survivor safety, traditional public safety procedures are failing survivors.
Research shows that many survivors prioritize rehabilitation over punishment. A national survey of survivors of violent crime found that they preferred rehabilitation over punishment, as well as investments in mental health and violence prevention to improve public safety. Some underutilized approaches to ensuring accountability for survivors include the restorative justice model and the transformative justice framework. Both of these tools acknowledge that there are unique factors that influence if, how, and when a survivor may seek justice and what their “preferred justice response” is. Research shows that race, age, and gender all play into how a survivor prioritizes their needs and engages with systems.
With roots in Indigenous communities and peacemaking practices, restorative justice focuses on “repairing harm by centering the survivors’ needs and holding the abusive partner accountable.” It may involve formal or informal systems as well as the traditional criminal legal intervention. However, the focus is geared toward the survivor’s immediate and future needs, stopping and repairing harm for survivors who want to stay with their partners, and accountability for the abusive partner, rather than a punitive response.
Restorative justice practices have long been used with youth and in juvenile justice spaces to repair harm and set youth on a positive trajectory. These programs have shown promise and have effectively reduced recidivism among youth. While restorative justice is not new, there has been a renewed interest and burgeoning pool of research on the impact and effectiveness of these types of programs in recent years. While that research is mixed, the evidence suggests that these programs can help reduce subsequent offenses by 14 percent, and nearly 85 percent of survivors have been satisfied with the outcomes.
Restorative justice also provides “an alternative to the unilateral notion that a woman in an abusive relationship should always leave her partner,” moving away from the harmful hierarchy of victimhood and recognizing the differing experiences and needs of survivors.
Transformative justice “positions restorative principles outside the justice system, to hold communities accountable for their role in violence and transform the conditions that facilitate abuse.” At its core, a transformative response aims not to respond to violence with violence and instead looks outside of harmful systems for rehabilitation and accountability. Transformative justice locates accountability and change in community and in the collective, rather than carceral institutions. It is an abolitionist framework that aims to eliminate violence by individual people and systems alike.
As uplifted by activist and writer Adrienne Maree Brown, restorative justice is a step in the right direction to restore a survivor, and transformative justice moves the needle forward to address the conditions that allowed that harm to occur in the first place.
Transformative justice programs that are making a difference
The Supreme Court must not limit its understanding of safety—for either domestic violence survivors or gun violence prevention laws—to the predominant, narrow focus on the formal criminal legal system as the main arbiter of justice for survivors or in holding abusers accountable. The criminal legal system has failed to provide protection and accountability for survivors while also failing to address the complex service needs of survivors. As a result, all paths to safety, justice, accountability, and healing must be heard.