Across the internet, various groups are demanding justice for Daily Coleman, the 14-year-old girl who was allegedly raped by a popular high school football player from a well-connected family. But it’s unclear what that “justice” would actually look like. A special prosecutor has been appointed to the case, and I’m hopeful she’ll be able to shed light on all the facts. But were it not for conservative Supreme Court justices, Daisy could have had other options: She could have sued her alleged attacker under a federal cause of action established by the Violence Against Women Act. I’m writing about that in The Nation today:
Recognizing the widespread impact of gender-based violence on the lives of American women, Congress passed the Violence Against Women Act (VAWA) in 1994. It included a provision that allowed rape survivors (and other victims of gender-based violence) to sue their attackers in federal court. The logic was fairly simple: Violence against women costs the country billions of dollars in medical treatment, criminal justice and other associated costs, and prevents women from fully participating in the national economy; perpetrators of gender-based violence too often avoid criminal prosecution; and so a federal mechanism must exist for victims of gender-based crimes to get some sort of relief. VAWA meant that a victim if a gender-based crime could sue her attacker, even if a local prosecutor declined to bring criminal charges.
Even without VAWA, rape victims can sue their attackers in civil court. Tort actions are in theory decent avenues for violence survivors to pursue: you may not see your attacker go to jail, but you can be awarded damages for your ordeal. The burden of proof in civil cases is also lower, requiring a showing of fault “by the preponderance of the evidence” rather than beyond a reasonable doubt, making the kind of character assassination that rape victims often face in criminal trials a degree less influential. And while criminal cases require the state to prosecute the offender with the victim serving only as a witness, the victim is the plaintiff in civil suits, and so she has much more control in determining the course of litigation.
But winning a lawsuit against one’s attacker in civil court is a major challenge even with a criminal conviction and even harder without one, since acts of violence against women, including rape, are difficult to fit into traditional tort categories. VAWA remedied that problem by creating a specific cause of action for victims of gender-based violence.
The Supreme Court invalidated that provision in a 5-4 decision, with the conservative members of the court backing a majority opinion penned by Judge Rehnquist. The decision largely turned on the question of whether Congress had the power under the Commerce Clause of the U.S. Constitution to offer a federal civil remedy for victims of gender-based crimes. When looking at Commerce Clause cases, the court evaluates whether the activity being legislated by Congress “substantially affects interstate commerce.” That doesn’t mean that legislation has to directly impact selling goods across state lines; it just has to impact commercial activity between states. The Supreme Court has, for example, upheld federal laws regulating the meatpacking industry because even though the facilities were local, the activity impacted the “current of commerce.”
In drafting VAWA in 1994, Congress was careful to document and evaluate a series of commercial ties to the civil remedy offered to gendered violence victims. They emphasized the broad economic impact of that violence, and how systematic gender-based violence prevented enormous numbers of women from fully participating in the economy, whether that meant missing work because abuse landed them in the hospital or losing their jobs because of PTSD after a rape or simply being too afraid to go to a movie or out for a drink late at night.
The law was tested by Virginia Tech student Christy Brzonkala, who said she was raped by two classmates and pursued her claim with the university. One of the men faced no consequences. The other, who admitted he had sex with Brzonkala after she repeatedly told him “no,” was initially suspended before the administration decided suspension was too harsh a punishment. After a Grand Jury failed to find sufficient evidence to indict either man, Brzonkala sued her alleged attacker under VAWA.
The conservative members of the Supreme Court dismissed her suit. While claiming that the calculus was whether the activity regulated substantially influenced interstate commerce, which Congress clearly anticipated and detailed in the legislation, the court was instead rigidly formalistic: “Gender-motivated crimes of violence are not,” Rehnquist wrote for the majority, “in any sense of the phrase, economic activity.”
The full piece is here. Enjoy!