The interaction transformed Goodmark’s outlook. She began to notice a chasm between what her clients needed—a stable income, a place to live, a safe way to co-parent, an apology, family therapy, substance-use treatment for their partner, health care, child care—and what the state was offering: arrest, prosecution, complete separation. The legal system was not only unhelpful; in many cases, it made her clients’ problems worse. They sometimes had to go to court over and over to get a simple order of protection. After a dozen appearances, some would give up, fearing that they would lose their jobs for so many absences. Some did lose their jobs, which was especially devastating when they were newly single parents. And the system was routinely demeaning and dismissive. Once, a judge told one of Goodmark’s clients that she was not a “real victim” because she had pushed her assailant back. Goodmark noticed that the further her clients seemed from the archetype of the frail, effete white woman, the less likely they were to be credited by judges.
Paging through her journal, Goodmark shared a fond recollection of every woman she had served (“Oh, yes, this client—I really cared about her”). She had no kind words for any of the men, not even those she represented in custody cases. She read me a journal entry describing a day when an opposing lawyer said to her, “You know, my client is not a monster,” to which she replied, “Our perceptions of your client are different.” I expected Goodmark to walk back that remark, but she didn’t. “He really was a monster,” she said casually. She leafed through the pages quietly for a few minutes and muttered, seemingly to herself, “These horrible men, horrible men.”
The thought of domestic abusers suffering behind bars did not keep her up at night. But, every time the legal system failed one of her clients, her faith in it was rattled. During her time in the D.C. courts, Goodmark met a battered mother who, after giving birth, had asked her abuser to bring her home from the hospital, having no one else to call. As a result, her three-day-old infant was removed from her care. Women who called in allegations of abuse to police were routinely separated from their children by protective services. They also risked being jailed themselves—for fighting back, for failing to protect their children, even, at times, for not testifying against their abusers. Goodmark gets worked up talking about this. “We would ask for child support, safe visitation, decent housing,” she said. “It was always ‘No, no, no.’ ”—only more punishment, never more help.
After practicing law for five years, Goodmark took a one-year position as a clinical professor at the Catholic University of America. Her inner theatre kid was satisfied by the performance in the classroom, and she felt less harried than she had in court. In 2003, she landed a permanent position at the University of Baltimore, teaching family law and running the family-law clinic, which she oriented toward domestic-violence cases. There, she realized that the system failed battered women in Baltimore just as it did in D.C. “Everyone thinks their jurisdiction is the most messed up,” she told me. But what if the system was failing women all over the country? The question arose at a moment when, for the first time since becoming a lawyer, Goodmark had time for research. The more she read, the more she started to question the evidence underlying the carceral approach to domestic violence.
She learned that much of the criminal domestic-violence apparatus dated to 1984, when the researchers Lawrence Sherman and Richard Berk published the results of a small, preliminary study, the Minneapolis Domestic Violence Experiment, which followed roughly thirty officers responding to domestive-violence calls. The study suggested that when police arrested an accused abuser, the abuser was less likely to commit another offense during the following six months. That same year, a woman in Torrington, Connecticut, won a multimillion-dollar lawsuit against her city after police failed to arrest her husband despite multiple reports of threats and violence. (He eventually went to the home where she was staying and assaulted her in front of her young son, leaving her partially paralyzed.) The court found that the local police department had “a pattern or practice of affording inadequate protection, or no protection at all, to women who have complained of having been abused by their husbands,” in violation of the equal-protection clause of the Fourteenth Amendment.
The ruling put police departments across the country on notice that they could be held liable for failing to arrest an accused assailant, and the study seemed to support a carceral approach. States and cities passed laws mandating arrest when domestic violence was alleged—even when the harm was so minor that an arrest would not otherwise have been permitted. Legislators increased sentences for domestic violence. Prosecutors implemented no-drop policies, meaning that charges, once entered, could not be withdrawn, even at the request of a victim. These measures severely restricted opportunities for discretion by police, prosecutors, and judges. Victims, too, suddenly had less agency. One 911 call alleging domestic violence could set in motion a process that was practically impossible to stop.
Between 2000 and 2010, VAWA devoted hundreds of millions of dollars to law-enforcement responses to allegations of domestic violence. Still, rates of violence essentially stagnated, even as the over-all rate of violent crime decreased significantly. Arrests shot up, especially for women. In California, after mandatory-arrest laws went into effect, arrests of men increased by sixty per cent; arrests of women increased by four hundred per cent. Follow-up studies to the Minneapolis Experiment did not replicate the initial findings, and some showed the opposite: arresting an alleged assailant increased the chances for violence, particularly in cases where the accused was Black or unemployed. They also showed, somewhat surprisingly, that women whose partners had been arrested had a sixty-four-per-cent higher premature-death rate than those whose partners had received only a warning. Among Black victims, arresting the partner increased premature mortality by ninety-eight per cent. The initial study’s authors changed their stance. “Mandatory arrest may make as much sense as fighting fire with gasoline,” one wrote.
The research also validated Goodmark’s inkling that the carceral approach was not race-neutral, and never had been. Allegations of gender violence were frequently weaponized during Reconstruction and Jim Crow to prevent Black men from gaining political power, and to keep them away from white women. In 1977, an A.C.L.U. attorney named Ruth Bader Ginsburg invoked that undercurrent of racism and eugenics when she wrote in an amicus brief to the Supreme Court that rape should not be punishable by the death penalty.
During the nineteen-seventies, many prominent Black feminists, including those of the Combahee River Collective, recognized the role of economic and racial inequality in causing domestic violence and proposed a welfare model, seeking to empower women through direct funding. As documented by the law professor Aya Gruber in her 2020 book, “The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration,” these feminists rejected the predominant “separation model” proposed by white feminists, aware that many Black women did not have the resources to leave abusive partners. They also understood that Black women could not turn their backs on Black men. “Our situation as Black people necessitates that we have solidarity around the fact of race, which white women of course do not need to have with white men,” a statement from the group said. But by the nineteen-eighties their voices had been drowned out by those of mainstream feminists, who were largely white, straight, and pro-police. They were not at imminent risk of arrest, deportation, or losing their children to the foster system. They did not bear the costs of criminalization.
It became clear to Goodmark that the carceral approach to gender violence was doing more harm than good, especially to Black victims. “I was, like, ‘Holy shit—I knew that was happening, but I didn’t have language for it,’ ” Goodmark told me. She was especially influenced by the sociologist Beth E. Richie’s 1996 book, “Compelled to Crime: The Gender Entrapment of Battered Black Women,” which discussed certain phenomena that Goodmark had noticed in her practice: how Black women experiencing abuse were often reticent to call 911, and how, when they did, they were routinely treated as criminals by law enforcement. “Those of us in the abolitionist movement, especially the Black-feminist abolitionist movement, have understood this for a long time,” Richie told me. Still, she said, “Goodmark has made an incredible contribution.”
Goodmark’s first book, “A Troubled Marriage,” published in 2012, heralded as a “victory” the existence of a legal remedy for domestic violence. But it challenged the dominant feminist belief that the only way to displace domestic male aggression is to bring the power of the state into the home. Goodmark noted that the most empowering resources offered to victims of domestic violence—safe housing, counselling, protection from deportation—were most easily accessed by women who trusted police, and who were willing to separate immediately and permanently from their partners. Women who didn’t feel safe coöperating with police, who wanted to reconcile with their partners, or who didn’t want to see them jailed, she argued, should not be left to fend for themselves. “The question of whose goals the legal system serves is a crucial one,” she writes. “Even those women who find a modicum of safety through the legal system may find that the pursuit of those remedies comes at a very real price.”
Moreover, Goodmark pointed out, the legal system is set up to prosecute discrete criminal acts, but domestic violence often plays out through months or years of coercion and control. She quotes the legal scholar Deborah Tuerkheimer, who suggested creating a new crime of battering, defined as a course of conduct intended to gain power and control over another. Goodmark worried that creating new crimes would expand the law’s reach into women’s lives, but she comforted herself with the thought that the justice system simply needed some guidance. Even after identifying the problems with mandatory arrest and no-drop prosecutions, she remained, on the whole, a supporter of laws like VAWA. “I thought, VAWA is a great thing, Biden is a great guy. They just need some help addressing why it’s not working how we wanted it to.” (In 2010, she was one of a group of advocates invited to the White House for an event celebrating the legislation. Scrolling back on her phone, she laughed in disbelief, saying, “I am beaming in all these pictures.”)
When the book came out, Goodmark was struck by how many people were offended by what she considered to be dry policy arguments. A local judge posted rants on Goodmark’s Facebook page, complaining that she, an ivory-tower academic, was leaving women to die. At Goodmark’s book-launch party, she told a colleague from the Women’s Law Center of Maryland, Tracy Brown, how shocked she was to receive that venom. But Brown offered no solace. “I told her, ‘Of course people are upset! I’m upset, too,’ ” Brown recalled. Brown was a former prosecutor who had founded the first domestic-violence unit at the Baltimore state’s attorney’s office; there, after years of work, she had persuaded her bosses to adopt a no-drop policy for domestic-violence cases. “I felt angry and betrayed,” Brown said. “The person I thought was on my team was challenging on such a deep level what I thought we’d been working on together.” (They remain friends, and Brown has since changed her views on the issues Goodmark raised, recognizing that the second-wave feminism that shaped her did not sufficiently account for systemic racism.)
