Violence Against Women Lacks Constitutional Remedy

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Photo by Flickr/Nan Palermo
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.

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.”

In December 1995, using the new federal law, Brzonkala sued her two attackers, Morrison and Crawford, as well as Virginia Tech for its handling of her complaint against them. The district court in Virginia dismissed the case, finding that the private right of action under which Christy brought her case was unconstitutional because Congress lacked the authority to create a private right of action for victims of violence against women. Every other district court to consider this question had upheld the constitutionality of the VAWA right of action (in Rhode Island, Washington, New York, Illinois, Tennessee, Iowa, Connecticut, Nebraska, and Pennsylvania), and the Fourth Circuit Court of Appeals initially reversed the district court’s decision by a 2–1 vote of a three-judge panel. However, the case was then reheard by the entire court of appeals, which reinstated the district court’s decision to dismiss the case. Citing the “crude and derogatory” remarks made by Morrison as evidence of his “gender animus,” the Fourth Circuit court recognized that Christy’s claim fell within the scope of the new law. However, the court held that this part of the new law was unconstitutional because there was no basis of authority for it in the Constitution.

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. The obvious place to look for authority in the Constitution to justify the right of a sexual assault victim to legal recourse would be the Equal Protection Clause. However, there is a long history of jurisprudence limiting the 14th Amendment to state action and excluding action by private individuals from the scope of its protection.

Known as the Enforcement Act, the Civil Rights Act of 1875 was intended to enforce the 14th Amendment promise that no person should be denied equal protection of the laws. However, in these early cases, the groundwork was laid for a narrow vision of the 14th Amendment, and the idea that equal protection of the laws should be related to the realization of meaningful equality was rejected. The substantive goal of the 13th and 14th Amendments, taken together, was interpreted to be ending slavery, not ending discrimination and promoting equality.

In striking down the requirement in the Civil Rights Act of 1875 that all persons enjoy equal access to places of public accommodation, the Supreme Court noted that while private action was not subject to federal law under the Equal Protection Clause of the 14th Amendment, it might be subject to federal law under the Commerce Clause. The court declined, however, to address this possibility. Article I of the Constitution gives Congress the power to regulate interstate commerce, and going forward it became a primary constitutional foundation for laws relating to discrimination. It was under this clause that the Civil Rights Act of 1964 was passed, and interstate commerce remains the central battleground for the assertion of federal jurisdiction over private acts of discrimination.

In passing the Violence Against Women Act in 1994, Congress relied as much, if not more, on the Commerce Clause as on the 14th Amendment to provide a constitutional foundation for the legislation. The Congressional Record took note of the effect of gender-based violence on the national economy and interstate commerce, including increased health expenditure, reduced employment opportunity, and consumer spending.Every year four million American women were battered by their husbands or partners, more than 1 million so severely that they sought medical help for resulting injuries.

Absenteeism from work due to domestic violence alone cost an estimated $3 billion to $5 billion every year, with an additional $5 billion to $10 billion spent every year on health care, criminal justice, and other costs related to domestic violence.

In the first court cases brought under the Violence Against Women Act, the private right of action was upheld largely, if not exclusively, under the Commerce Clause. In striking down this provision of VAWA in Brzonkala’s case, the courts also focused largely on the Commerce Clause. The Fourth Circuit Court of Appeals recited the long-standing view that the 14th Amendment was not intended to address private conduct, and suggested that to uphold the VAWA provision would extend its reach “beyond a point ever contemplated by the Supreme Court since that Amendment’s ratification.” The Fourth Circuit court rejected the argument that violence against women was a widespread social problem that had an impact on the national economy and should therefore be within the constitutional authority of Congress to address under the Commerce Clause of the Constitution. It also rejected the argument that gender bias in state criminal justice systems often denied women justice and that this denial by state actors violated the Equal Protection Clause of the 14th Amendment.

The Commerce Clause of the Constitution has been broadly interpreted to uphold federal legislation on matters substantially affecting interstate commerce covering a wide range of activities. However, in a 5–4 decision, the Supreme Court affirmed the decision of the Fourth Circuit court that the VAWA private right of action was unconstitutional. The court’s decision effectively dismissed the congressional finding that violence against women substantially affected interstate commerce. In a prior decision in 1995, the Supreme Court had struck down a federal law criminalizing possession of a gun within a thousand feet of any school on the grounds that this crime was “in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.” Having drawn the line in this case by rejecting arguments that the costs of crime and its impact on national productivity bore a substantial relation to interstate commerce, the court held that “gender-motivated crimes of violence are not, in any sense of the phrase, economic activity.”

Violence against women was not an issue highlighted in the ERA campaign of the 1970s, and it is only more recently that it has come to be understood, in the United States and around the world, as a manifestation of sex discrimination and a violation of human rights. Both in law and practice, violence against women has been treated with greater lenience than other violent crimes. Historically, domestic violence and marital rape have not been recognized as criminal conduct, and even to this day distinctions in the law remain as vestiges of the deference given to men in the privacy of their homes, enabling them to perpetrate violence against women with impunity. Gender bias in the response of police, prosecutors, and judges has been increasingly highlighted as a form of state action, giving new life to claims made under the 14th Amendment by victims of gender-based violence for equal protection of the laws.

In Brzonkala’s case, the Supreme Court acknowledged the evidence underlying the congressional conclusion that pervasive bias in state courts results in “insufficient investigation and prosecution of gender-motivated crime, inappropriate focus on the behavior and credibility of the victims of that crime, and unacceptably lenient punishments for those who are actually convicted of gender-motivated violence.” However, the court reaffirmed that only state action is governed by the 14th Amendment, citing the Harris and Civil Rights Cases of the 1880s, as well as Shelley v. Kraemer, a precedent from 1948 reaffirming that the 14th Amendment “erects no shield against merely private conduct, however discriminatory or wrongful.” In that case, an African American family had purchased a house that had a racially restrictive covenant barring them from occupying it. While holding that the restrictive covenant was not itself invalid under the 14th Amendment because it was an agreement between private parties, the Supreme Court held that enforcing the covenant through judicial action would constitute state action. Because there was no state action in Brzonkala’s case, the court held that it was not for the federal government to provide her with a remedy.

Writing for the majority in Brzonkala’s case—known as the Morrison case— Chief Justice Rehnquist extensively discussed the 19th-century cases that struck down congressional efforts to address lynching and the exclusion of black men and women from public places. He rejected the argument that VAWA, unlike these precedents, was a response to gender-based discrimination by state authorities and therefore involved state action. The chief justice presented evidence that VAWA was like these earlier precedents and that they too had been addressing the biased implementation of the law. He recited excerpts from the legislative history of the civil rights legislation of the 1870s. Representative James Garfield had said in defense of the Civil Rights Act:

[T]he chief complaint is not that the laws of the State are unequal, but that even where the laws are just and equal on their face, yet, by a systematic maladministration of them, or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them.

In addition to the length of time the old cases had been on the books, their doctrinal force was credited by the chief justice to the “insight attributable to the Members of the Court at that time” as they had all had “intimate knowledge and familiarity with the events surrounding the adoption of the Fourteenth Amendment.” Dismissing the view that these early cases had been wrongly decided, a view that had been expressed by Justice Tom Clark and Justice William J. Brennan, Justice Rehnquist reaffirmed in the Morrison case the “enduring vitality of the Civil Rights Cases and Harris.”

Two dissenting opinions were filed in the Morrison case, only one of which—authored by Justice Stephen Breyer—even mentioned the 14th Amendment. Like the majority of the court, the dissenting justices saw the case as being primarily about the Commerce Clause and the proper division of authority between the federal government and the states. In the context of the concern over federal encroachment of state power, Justice Breyer noted that 38 state attorneys general, representing the “overwhelming majority” of states, had supported the Violence Against Women Act in a joint letter to Congress expressing their belief that “the problem of violence against women is a national one, requiring federal attention, federal leadership, and federal funds.” Justice Breyer mentioned the 14th Amendment only at the end of his dissenting opinion, and he was joined in this brief section of his opinion by only one of the three justices who joined him in the Commerce Clause section of his opinion. He suggested that the failure of states to provide adequate remedies for gender-based violence, presumably thinking this might constitute state action, could provide a basis under the Equal Protection Clause for the constitutionality of the VAWA private right of action. However, he declined to address the question definitively, preferring to support VAWA as an exercise of congressional power under the Commerce Clause.

The United Nations special rapporteur on violence against women, Rashida Manjoo, visited the United States in 2011. In her report on the visit, she highlighted a number of efforts that had been undertaken to address violence against women but also observed “a lack of legally binding federal provisions providing substantive protection against or prevention of acts of violence against women,” resulting in “the continued prevalence of violence against women and discriminatory treatment of victims, with a particularly detrimental impact on poor, minority and immigrant women.” She mentioned the Violence Against Women Act, noting that its intentions were laudable, but expressed concern over the Supreme Court jurisprudence, citing Morrison and other cases. “The effect of these cases,” Manjoo wrote, “is that even where local and state police are grossly negligent in their duties to protect women’s right to physical security, and even where they fail to respond to an urgent call, there is no federal level constitutional or statutory remedy.”

In the early days of the 14th Amendment, Justice John Marshall Harlan had foreseen the need for legislation “of a primary direct character,” such as the Civil Rights Act of 1875, to implement the new constitutional right to be free from discrimination. Congress had the right, he contended, to “enforce and protect any right derived from or created by the national Constitution.” He criticized the majority decision as “too narrow and artificial,” and he wisely suggested, “It is not the words of the law, but the internal sense of it that makes the law; the letter of the law is the body; the sense and reason of the law is the soul.”

At a press conference a few days before the oral argument in her VAWA case at the Supreme Court, Christy Brzonkala declined to recount the details of her rape. “I don’t want to keep reliving it,” she said. “But I can tell you this: Rape is like having your soul torn out.”Brzonkala told the press, “Women are raped because they are women.” Although by 2005 all states and the U.S. military finally eliminated the exemption from penalty for rape in marriage, 26 states still have lesser protection for victims, including lesser penalties and shorter reporting periods for sexual and violent crimes that occur in marriage. Denying women effective protection of the law in cases of rape and domestic violence, because these crimes are not taken as seriously as other violent crimes, is a form of discrimination against women. The Supreme Court has said clearly and repeatedly that this form of discrimination is without constitutional remedy.

As the jurisprudence demonstrates, victims of gender-based violence have made every effort to find effective recourse within the existing legal framework. Their quest for justice has been denied under the Equal Protection Clause of the 14th Amendment on the grounds that only state action is covered. It has been denied under the Commerce Clause on the grounds that violence against women is unrelated to interstate commerce. It has been denied under the Due Process Clause of the 14th Amendment on the grounds that police protection is not a “property interest” worthy of due process rights. Violence against women is widely recognized as a form of sex discrimination. The Equal Rights Amendment would provide a proper constitutional foundation for effective action to end this discrimination, which deprives women of their most fundamental right.

Jessica Neuwirth, former director of the New York Office of the UN High Commissioner for Human Rights, is the founder of the new ERA Coalition, the international women’s rights organization Equality Now, and of Donor Direct Action. Copyright © 2015 by Jessica Neuwirth.  This excerpt originally appeared in Equal Means Equal: Why the Time for an Equal Rights Amendment Is Now, published by The New Press and reprinted here with permission.

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