Volume 60

The Need for Remedial Resentencing For Survivors Of Domestic Violence: A Trauma-Informed Assessment Of New York's Domestic Violence Survivors Justice Act

by Abigail Van Buren

This Essay will discuss the need for resentencing for incarcerated people who have experienced domestic violence and provide an assessment of the Domestic Violence Survivors Justice Act (“DVSJA”). Part I will briefly discuss the need and reasoning for resentencing for incarcerated survivors of domestic violence. Part II will provide a brief overview of the legislative history and elements of the DVSJA. Part III will examine § 60.12(1)(a), a requirement of the DVSJA which states, “at the time of the instant offense, the defendant was a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by a member of the same family or household as the defendant…” Although this Article will not exhaustively critique the DVSJA, § 60.12(1)(a) deserves discussion because it brings to light the many misunderstandings the legal system has about the nature of domestic violence. The central point of Part III is that courts should refuse to narrowly interpret § 60.12(1)(a) as requiring a temporal nexus between the abuse suffered and the instant offense. Instead, courts should embrace a liberal interpretation that focuses on the long-term effects of domestic violence and the impact of residual trauma on behavior. The text of the statute, legislative intent, statutory interpretation doctrine, and social science research support this progressive interpretation of § 60.12(1)(a). 

Refusing to impose a temporal nexus between the abuse suffered and the instant offense will allow for a broader application of the DVSJA as a remedial statute and better effectuate legislative intent. This Essay is not intended to diminish the laudable work of the New York state legislature in adopting the DVSJA but to provide a trauma-informed, survivor-centered perspective to assist legislators, judges, and lawyers in supporting survivors of domestic violence caught in the criminal legal system.

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