Violence Against Women Lacks Constitutional Remedy

Jurisprudence demonstrates dire need for Equal Rights Amendment.

| Winter 2014

  • Victims of gender-based violence have sought justice from the Constitution, basing their claims on the Equal Protection Clause, the Commerce Clause, and the Due Process Clause of the 14th Amendment, all ultimately to no avail.
    Photo by Flickr/Nan Palermo

Christy Brzonkala was a freshman at Virginia Polytechnic Institute in September 1994 when she met Antonio Morrison and James Crawford, both students on the varsity football team. Within 30 minutes of their meeting, according to Brzonkala, the two men pinned her down on a bed in a dorm room and raped her repeatedly. After the rape, Morrison told Brzonkala, “You better not have any fucking diseases,” and later announced in the dining room, “I like to get girls drunk and fuck the shit out of them.” In early 1995, Brzonkala filed a complaint against Morrison and Crawford with the university, under its Sexual Assault Policy. At the hearing Morrison admitted that he had had sexual contact with Brzonkala even though she had said “no” twice. The university found him guilty of sexual assault and suspended him for two semesters. It found there was insufficient evidence to take action against Crawford.

In July of that year, Brzonkala learned that Morrison was going to challenge his conviction under the Sexual Assault Policy and that another hearing would be required under the Abusive Conduct Policy, which had been in place before the Sexual Assault Policy. Even though the Sexual Assault Policy had been formally distributed before Brzonkala was assaulted, it had not been published in the student handbook, a fact that Morrison used to challenge his conviction. After the second hearing, Morrison was again convicted and sentenced to suspension for two semesters, but instead of “sexual assault,” his conduct was described as “using abusive language.” Morrison again appealed his conviction and in August his punishment was set aside as “excessive” compared to other convictions  under the Abusive Conduct Policy. The university did not inform Brzonkala that Morrison’s suspension had been lifted. When she learned from an article in the Washington Post that he would be back in school for the fall semester, on full athletic scholarship, Brzonkala dropped out. A state grand jury did not find sufficient evidence to charge Morrison with rape, even though he had admitted to nonconsensual sex. For a time, Brzonkala was suicidal.


In 1994, the same year Christy Brzonkala was raped on campus, Congress passed the Violence Against Women Act (VAWA) after concluding that bias in state criminal justice systems often deprived victims of gender-based violence of equal protection of the laws and that a uniform national approach to this problem was needed. VAWA was intended to strengthen the investigation and prosecution of rape and other gender-based violence, provide restitution for victims, and create a legal avenue of recourse in federal court when state law enforcement failed to prosecute these crimes. Through this avenue of recourse, known legally as a private right of action, VAWA allowed anyone victimized by gender-based violence to seek compensation, punitive damages, and other appropriate relief from the federal courts to protect his or her “right to be free from crimes of violence motivated by gender.”

Championed by then-Senator Joe Biden, the Violence Against Women Act was opposed by Chief Justice William Rehnquist and others in the judiciary who felt that remedies for violence against women had no place in federal jurisdiction and who, in particular, expressed concern that allowing victims of gender-based violence to bring legal action would flood the courts with claims. In hearings on the bill, Senator Biden defended the private right of action. “For too long,” he said, “we have ignored the right of women to be free from the fear of attacks based on their gender.” Citing the fact that women were the target of 97 percent of all sexual assaults, he recognized violence against women as a civil rights violation. Many states had started to organize task forces to inquire into gender bias in the judiciary. Evidence of this clear bias—such as a probation officer questioning whether a 9-year-old was a “real victim,” as he had heard she was a “tramp,” or a judge commenting from the bench that a domestic violence victim “probably should have been hit”—was used to support the bill. Following passage of the Violence Against Women Act, Senator Biden called it his “single most important legislative accomplishment.”

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