Gender-violence ruling may undermine other rights

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NEW YORK–At a May 24 press briefing for the upcoming special session of the United Nations focusing on the progress of women worldwide, Betty E. King spoke briefly about the laws and policies U.S. women enjoy that women of other nations might urge their governments to emulate.

King, the U.S. representative to the U.N.’s economic and social council, cited one U.S. law in particular that she thought the women of the world would be most interested in: The Violence Against Women Act of 1994.

King did not mention, however, that just 11 days before, the U.S. Supreme Court voided a key provision of the law. Moreover, the opinion was the latest in a string of decisions that have raised profound concerns among a host of advocates ranging from civil rights activists to attorneys for the disabled about the future of a host of laws passed during the past 30 years.In a case that arose from an alleged rape of a college student by two football players, the court, by a 5 to 4 vote, ruled that victims of gender-based violence had no right to sue their attackers in federal court.

This ruling has ominous implications for women’s rights and civil rights in general, said Kathryn Rodgers, president of the NOW Legal Defense and Education Fund, which represented the plaintiff, Christy Brzonkala and served as Congress’s principal technical adviser. (NOW LDEF funds Women’s Enews.) Not only is much of civil rights law based on the Congressional power to regulate interstate commerce, but also the decision could have a chilling effect on the willingness of Congress to take action on women’s rights and civil rights, she said.

“Congress did its job,” Rodgers explained. “It identified a problem and amassed the evidence and created a very targeted and effective solution. This court has thrown us back to the 18th century and the notion that states have more power than the federal government.”

The feature of the law that gave women the right to sue their attackers in federal court had wide support among the states. Thirty-six states, as well as Puerto Rico, signed a brief in support of the VAWA, said Jennifer K. Brown, director of the Reproductive Rights Unit in the New York Attorney General’s Office, a coauthor of the brief. In addition, 21 states produced reports documenting that victims of gender-based violence faced widespread barriers in both criminal and civil state courts. These barriers included antiquated laws, reluctance on the part of police and prosecutors to arrest and prosecute and the tendency of judges and juries to give less credence to the testimony of women.

Congress claimed it had the right to permit access to the courts in cases involving gender-based violence under its power to regulate interstate commerce. As part of the legislative process before the law was passed, Congress amassed a large amount of data itemizing the huge economic costs of gender-based violence and estimated it to be more than $3 billion per year.

But the court rejected this claim, since the activity itself–in this case, rape–was not specifically economic, even though the victim dropped out of college and has not returned.

“Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity,” said Chief Justice William H. Rehnquist, in the majority opinion.

The court also rejected the argument that the law was permitted under the Fourteenth Amendment’s promise of equal protection to all citizens. Referring to a series of court decisions dating back to the post-Reconstruction Era in the 1870s – ones that severely limited the civil rights of newly freed slaves–the Court ruled that the private conduct of individuals–in this case, the alleged rapists–fell outside the scope of the Amendment.

Linda Hirshman, a lawyer and professor of philosophy and women’s studies at Brandeis University in Massachusetts, says the decision may mean that victims of gender-motivated violence could have no legal recourse if their local legal systems deny them equal protection.

“Most women’s issues are only remotely connected to the market,” Hirshman said. Furthermore, she added, women are usually victimized at the hands of private individuals– husbands, fathers, boyfriends and acquaintances. By narrowly defining the meaning of “commerce” and excluding acts by private individuals from the equal protection clause of the Fourteenth Amendment, Hirshman added, women suffering gender-based violence could end up with “nowhere to turn.”

Other legislation based on Congressional interstate commerce authority and the Fourteenth Amendment equal protection clause might be vulnerable, such as the 1994 Freedom of Access to Clinic Entrances Law, which bars protestors from blocking access to abortion clinics, said New York’s assistant attorney general Brown.

To date, the Rehnquist court, increasingly split 5 to 4 on civil rights issues, has ruled that the federal government has no authority to enforce federal laws barring states from age discrimination in the workplace. The same reasoning could be applied to the disabled, added Yale law professor Jack Belkin.

All four of the judges who voted with Rehnquist are Republican appointees. To Brandeis’s Hirshman, this underscores why women, before they go to the polls next November, need to remember that the next president will, in all likelihood, fill the next vacant seat on the Supreme Court.

“This is one of those rare occasions in which this election will determine the composition of the Supreme Court,” she said. “The real story is that this election is about nothing much except who gets to appointed to the Supreme Court of the United States.”

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