On November 7, 2023, the U.S. Supreme Court will hear oral arguments in United States v. Rahimi. The case will determine whether 18 U.S.C. 922(g)(8), a federal law prohibiting individuals subject to domestic violence restraining orders from possessing firearms, is constitutional under the Second Amendment. This decision could impact the protection available to domestic violence survivors.
Lawyers for the defendant, along with conservative appellate judges and gun rights advocates, argue that 18 U.S.C. 922(g)(8) can be found unconstitutional without compromising survivor safety by relying on the criminal legal system to detain and punish abusers. However, critics highlight two issues: historically, the criminal legal system has not provided swift accountability or protection for survivors; and there is a shift towards nonpunitive frameworks focused on survivor needs rather than punitive measures against abusers.
As the Supreme Court considers expanding Second Amendment rights against domestic violence survivor safety needs, it is crucial that laws like 18 U.S.C. 922(g)(8) remain intact to protect all survivors.
Survivors require effective public policy that provides comprehensive care and resources while protecting them from violence. However, reliance on the criminal legal system has often proved ineffective in providing timely accountability or addressing their multifaceted needs. Research indicates low rates of arrest, prosecution, and conviction for domestic violence cases despite high prevalence rates.
The period immediately following a survivor leaving an abuser is particularly dangerous as abusers may escalate their behavior when losing control. The criminal legal system also fails to provide necessary services such as financial support or secure housing, exacerbating survivors' challenges.
Survivors frequently face negative experiences within the criminal legal system including discrimination and biased police misconduct. A nationwide survey found that 88 percent of respondents were concerned about police inaction and dismissiveness towards domestic violence cases.
Secondary victimization—insensitive treatment resulting in greater trauma—is common among survivors interacting with the legal process. Many regret seeking help due to negative initial responses and subsequent collateral consequences such as child protective services involvement.
For survivors from communities of color or immigrant backgrounds, fears of arrest or deportation complicate their ability to seek help safely. Criminalizing behaviors stemming from abuse further hinders access to essential services like shelters which often do not accept individuals with criminal histories.
Research shows many survivors prioritize rehabilitation over punishment with preferences for mental health investments and violence prevention initiatives over traditional punitive measures. Restorative justice models focus on repairing harm by centering survivor needs while holding abusive partners accountable without necessarily involving formal systems.
Transformative justice aims to address underlying conditions facilitating abuse by promoting community accountability outside carceral institutions focusing on collective rehabilitation rather than punitive responses.
The Supreme Court must consider broader approaches beyond traditional criminal justice mechanisms when deliberating on laws affecting domestic violence survivors’ safety and gun control measures ensuring all paths to safety are recognized.
