Caroline Bettinger-López is a Professor of Law and Director of the Human Rights Clinic. She also serves as an Adjunct Senior Fellow at the Council on Foreign Relations. From 2015 to 2017, Bettinger-López worked in the Obama Administration, where she served as the White House advisor on Violence Against Women, a Senior Advisor to Vice President Joe Biden, and was a member of the White House Council on Women and Girls. Her scholarship, practice, and teaching concern international human rights law and policy advocacy, violence against women, gender and race discrimination, immigrants' rights, and clinical legal education.
Written by: CAROLINE BETTINGER-LÓPEZ
Across the United States, 12 states have implemented anti-immigrant laws in recent years that force local law enforcement officials to engage in immigration enforcement and prohibit so-called "sanctuary policies" by municipalities to protect immigrants. These laws have a devastating effect at the community level and have an especially harmful impact on immigrant survivors of domestic abuse, sexual assault, and human trafficking (collectively, "gender-based violence").
Florida's Senate passed the anti-immigrant SB 168 law, originally drafted by the anti-immigrant hate groups, Floridians for Immigration Enforcement and the Federation for American Immigration Reform, according to a complaint filed in federal court by human and civil rights groups (including Miami Law's Immigration Clinic).
The law, which took effect on October 1, 2019, requires every county and municipality in Florida to expend "maximum local resources" and make "best efforts" to enforce federal immigration laws by cooperating with federal immigration authorities to arrest and detain individuals suspected of being illegal immigrants—actions over which the federal government has exclusive jurisdiction under the U.S. Constitution and the Immigration and Nationality Act. SB 168 comes into force in the midst of virulent anti-immigrant rhetoric from the Trump Administration, will likely result in the deportation of unprecedented numbers of immigrants (including many gender-based violence victims), and will have a devastating effect at the community level—tearing apart families, disrupting labor markets, impacting classrooms, and eroding public trust of law enforcement, which ultimately undermines public safety.
Our clinic has argued in federal court, before the United Nations, and through the media that SB 168 is particularly draconian and detrimental to gender-based violence (GBV) survivors. It traps immigrant victims in a Catch-22 situation: Ask for help and risk deportation, retaliation by an abuser, and separation from one's children; or stay with a violent partner/continue to endure abuse and risk one's life. Moreover, transfer into U.S. Immigration and Customs Enforcement (ICE) custody as a result of SB 168 will retraumatize immigrant victims as they wait to have their cases heard in inhumane detention centers where women are all-too-frequently abused and harassed by personnel. Additionally, SB 168 will lead to family separation, resulting in children being left with abusive parents or placed in the foster care system. A recent national survey by the Tahirih Justice Center supports our argument that immigrant victims of domestic violence, sexual assault, and trafficking are far less likely to contact police, pursue civil or criminal cases, or go to court for any reason when they fear serious immigration consequences for doing so.
SB 168 contains an "exception" that supposedly protects victims of domestic violence from being reported to ICE, but this protection is illusory. While the exception does not require state and local entities to ask about the victim's immigration status and provide this information to ICE, it still permits them to do so on their initiative. That gives SB 168 the distinction of being even more draconian than Texas' similar anti-immigrant law, which explicitly prohibits officers from inquiring about a victim's immigration status.
By chilling the reporting of family violence and other crimes, SB 168 also jeopardizes the safety of Florida communities more generally. The National Institute of Justice found that domestic violence-related police calls constitute the single largest category of reports received by police, accounting for 15 to more than 50 percent. Additionally, a report by Everytown for Gun Safety analyzing mass shootings in the U.S. between 2009 and 2016 shows a majority are related to domestic or family violence, and that these incidents were responsible for 86 percent of mass shooting child fatalities. Entire communities are at risk when domestic violence goes unreported.
Under international law, the U.S., including the State of Florida, has a clear obligation to respect the human rights and dignity of all individuals within its territory, no matter their immigration status. The law includes the responsibility to prevent gender-based violence, as well as to protect, support, and ensure access to justice and services for all victims, regardless of their immigration status. The responsibility applies whether the perpetrator is a state or non-state actor and whether an act is committed in an official or private capacity.
SB 168 and other anti-immigrant state laws violate U.S. obligations to immigrant survivors of gender-based violence under the international human rights treaties it has ratified—the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Convention on the Elimination of All Forms of Racial Discrimination—as well as other significant sources of human rights law, such as the Universal Declaration on Human Rights and the American Declaration on the Rights and Duties of Man. The treaties' legal requirements include the rights to life, equality and non-discrimination, liberty and security of person, freedom from torture and inhuman or degrading treatment, an effective remedy, and health; the obligation of non-refoulment; and the rights of persons deprived of liberty to be treated with humanity and respect. Importantly, survivors of gender-based violence from vulnerable, underserved, or marginalized communities—including immigrant women—may experience discrimination that stems from multiple and intersecting forms of oppression, further exacerbating the substantive human rights violations they experience.
There are some immediate and timely measures that we can adopt in Florida and at the national level that would help to remedy the human rights violations wrought by SB 168:
In September 2019, Florida State Representative Cindy Polo introduced a bill, HB 173, that would largely undo SB 168. Florida's lawmakers should pass HB 173 and repeal SB 168.
Additionally, Florida's law enforcement leaders and elected officials should stand up and speak out against SB 168 as a hateful law that places the lives of GBV victims at risk. They would be well-advised to develop trauma-informed, culturally-specific, and language-accessible policies and programs that conform to 2015 Guidance from the U.S. Department of Justice on Identifying and Preventing Gender Bias in Law Enforcement Response to Sexual Assault and Domestic Violence.
And in November 2019, U.S. Senator Dianne Feinstein introduced the Senate companion to the House-passed Violence Against Women Reauthorization Act (VAWA), a landmark law which, since its original passage in 1994, has marked a seismic shift in national, state, and local responses to victims of domestic violence, dating violence, sexual assault, and stalking in the U.S. Over the years, VAWA's immigration provisions have provided a life-saving safety net for foreign-born domestic violence victims, such as the ability to petition for immigration relief separate from their abusive partners. Florida's U.S. senators should support the reauthorization of Senator Feinstein's version of VAWA, which provides stronger protections than ever before.
Taking these steps would send a message to all survivors of domestic violence that they are welcome in our state and our country, and that we are committed to upholding their human rights and creating a safety net for them—regardless of their immigration status.
