Why the Legal System Is Not the Answer for Many Survivors: A Conversation With Nikki Engel

Nikki Engel is the policy and legal systems program manager for Violence Free Minnesota (VFMN). She was hired in 2019 to explore how domestic violence victims are using — and not using — the legal system, and how to improve legal system response. In her graduate work, and a previous role with Outfront Minnesota, she focused on the impact of gender-based violence on marginalized communities, and the legal system response to it.

“We have been able to see over and over again the ways the legal system is failing all kinds of people,” she says. “It isn’t doing a great job for heterosexual white women [dealing with domestic violence and its aftermath], and it is really not doing a good job for anyone else.”

We talked with her about the weak spots and solutions that VFMN is exploring.

How often do victims not turn to the legal system?

In the 1970s and 1980s, advocates involved in eliminating domestic violence — the DV movement — were bringing into focus the violence women were experiencing in their homes and how it was not treated as seriously as other forms of violence. The criminal legal system, families, communities, and religious institutions largely considered DV to be a private matter.

Over time, energy became focused on reforming how the legal system handles DV. This was in spite of many women of color advocates and survivors of violence saying, “Can we put the brakes on this? Focusing all of our investment in the criminal legal system might not be in all of our communities’ best interest.”

Four decades in, we now have more information about how investment in the legal system has and has not been working for victims. VFMN has been in conversation with advocates, survivors, and community partners for a decade to take stock of what that investment has gotten us.

For more than 30 years, VFMN’s Homicide Report: Relationship Abuse in Minnesota has compiled data from our statewide coalition of over 90 member programs working to end relationship abuse. One of the things we track is whether a homicide victim had any connection with the legal system. For example, was there an order for protection in place? Was there anything in public records of a divorce that mentioned domestic violence? Any Child Protective Services connection that mentions DV?

We have found that, on average, 50 percent of all women who are killed in Minnesota by their intimate partners never went to the legal system for help with the abuse they were experiencing. We think that is very telling, and it is in line with what we know from national studies, in spite of the work that has been done to improve system response.

VFMN has focused on how we can improve Minnesota’s legal system so that victims can be safe, find validation, and get the assistance they need. That will continue to be an aspect of our work for as long as it needs to be. We realize that hard work and funding to transform the legal system to be more trauma informed, more friendly to victims, and less patriarchal have made important changes. But we also realize that we have not made enough change, for enough people, to justify that level of continued investment going forward.

In general, people see DV primarily as a crime that requires a criminal legal system response. At VFMN, we think that narrowing has been a critical mistake, and we have been making that argument at the legislature for the past few years.

We don’t want to eliminate the criminal legal system response, but all of our investment has gone into this one bucket. Victims need and deserve more options.

What are other solutions you want to see funded?

We are expanding the coalition’s work in housing and economic justice. Survivors have for years been telling us that lack of housing is the number one barrier to their safety. VFMN now has two full-time staff members whose work is in housing and economic justice. We are raising questions:

Where is the money for domestic abuse prevention?

Where is the state investment in transforming the behavior of those who abuse?

How can we prevent this kind of abuse from happening in the first place, instead of relying on a reactive response?

Could there be a response akin to what is starting to happen with a mental health crisis? [A call to 911 now leads to a more nuanced process of deciding who should respond for a mental health issue.] If there is active violence or a hostage situation, law enforcement would go. However, if the abuser has already left the scene, or there is no active violence, is that person looking for support and assistance that could be better provided by a team of advocates?

We have received grant funding that is enabling us to sit down with different stakeholders in Minnesota and discuss alternatives, such as restorative justice models.

Many advocates say the survivor does not want the legal system involved, but they need a safe place to live. They want the ex-partner to pay for the car windows he busted. They want an apology. This is a restorative process.

One of the reasons alternatives haven’t been developed is because those responses haven’t been funded in the same ways the criminal legal response has.

All of these questions, and possible solutions, are being actively grappled with right now in Minnesota, and to a different degree, across the country.

Tell us about the criminalization of victims and mandatory arrest laws.

Years ago, the DV movement encouraged mandatory arrest in instances of domestic abuse. We were trying to end discretionary practices where maybe law enforcement would come to the scene and judge it to be “just a private family matter.” They sometimes asked an offender to simply walk around the block and cool down. We also heard from survivors about the negative impact of asking in front of the offender if she wanted him arrested, because then she is in a position that could lead to later retaliation. Mandatory arrest laws started with good intentions.

Unfortunately, research is showing that disproportionately higher numbers of Black and brown victims are arrested because they are perceived as aggressive or violent.

The same kinds of racial biases that lead law enforcement to see Black men as more aggressive and threatening are also applicable to women of color. Some officers might be less likely to see a Black, Native American, or Latine woman as a victim. Black feminists like Kimberlé Crenshaw and Beth Ritchie have been raising concerns like this in the movement for years. This issue has become a priority for VFMN over the past two years.

We had a grant from the Minnesota Department of Corrections that allowed us to focus on learning more with Native American women, who are grossly overrepresented in Minnesota prisons and also overrepresented as victims of violence. Native Americans make up only about 1 percent of Minnesota’s population. On any given day, Native men make up about nine percent of the male prison population in Minnesota, but 20 percent of the women at Shakopee prison are Native.

VFMN, Minnesota Indian Women’s Sexual Assault Coalition, and Northwest Indian Community Development Center interviewed 62 Native American women who had been incarcerated in Minnesota’s women’s prison. All but one of those women disclosed histories of domestic abuse and sexual assault prior to incarceration; most women had multiple experiences of violence and abuse in their past.

Gun and drug charges were sometimes the result of threats made by an abusive partner. Assault convictions resulted from fighting back. Young girls who were victimized began to run away from home. Substance use was a form of self- medication for traumatic histories and survival on the streets.

Minnesotans need to understand the negative impact the criminal legal system has on survivors. We are hoping to see more support for the Survivors Justice Act this year. This bill would require judges to take experiences of domestic violence, sexual abuse, or sex trafficking into account when sentencing for a crime. It was introduced in the Minnesota House in 2022 last session but was not heard in the Senate.

Related Resources

A strong investigative podcast by Reveal about how sex assault victims become criminalized

Documentary “Victim/Suspect” coming May 23

vfmn.org/reports

For more on the history of mandatory arrest: womenspress.com/when-violence-was-considered-a-private-matter

Related conversation with police chief Kelly McCarthy