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THE RULE OF LAW:
Crime, the Constitution And the 'Weaker' Sex
By Cathy Young ©1998
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Bob Dole touts it as evidence of his support for women's issues. The National Organization for Women's president calls it "the most important advancement of women's civil rights since the 1964 Civil Rights Act." This summer one federal judge upheld it; another found it unconstitutional. The Violence Against Women Act is in for a lengthy legal battle likely to go all the way to the Supreme Court. The act, passed as part of the 1994 Crime Bill, includes many non controversial items such as a national domestic violence hot line and funds for better lighting in parking lots. But it also has a controversial civil rights provision allowing victims of "gender-motivated violence" to sue their attackers in federal court. This statute was struck down last month by Judge Jackson Kiser in Brzonkala v. Virginia Polytechnic Institute when he dismissed VPI student Christy Brzonkala's federal suit based on an alleged sexual assault by two members of the college's football team. Just a few weeks earlier in Connecticut, Judge Janet Arterton came to the opposite conclusion in Jane Doe v. John Doe, in which the plaintiff claims that her husband, whom she is divorcing, beat her and treated her like a slave throughout 17 years of marriage. Judge Kiser found that Congress had exceeded its authority in passing the Violence Against Women Act, since there is no basis for the federal judiciary to have jurisdiction over sexual assault and spousal abuse, crimes that properly belong in the state courts. According to Judge Arterton, however, the law was "a proper exercise of congressional power under the Commerce Clause" because "crimes of violence motivated by gender" adversely affect interstate commerce through the victims' medical costs, diminished productivity, and even the fear that deters potential victims from taking certain jobs and traveling on business. In fact, the language of the law is extremely vague as to what constitutes "gender-based violence"--"a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender." In Brzonkala, the "evidence" of the misogynistic bias of one of the defendants is that after the alleged attack he told the young woman, "you'd better not have any f---ing diseases" and that on another occasion he reportedly made a crude remark expressing a preference for sex with intoxicated women. What is it, then, that supposedly makes rape and domestic abuse different from any other violent offenses? The Violence Against Women Act is based on the premise that these crimes are often rooted in antifemale bias, take such a toll on women as to effectively rob them of equal rights, and are not taken seriously by state courts and law enforcement agencies because of sexism. The first of these notions belongs in the realm of ideology, reflecting the radical feminist theory that rape and battering are part of a terrorist campaign by men against women. The other two are based on distorted statistics, cited in abundance in the congressional findings that accompany the act and, more recently, in Judge Arterton's ruling. Take the findings' assertion that "violence is the leading cause of injury to women ages 15-44, more common than automobile accidents, muggings, and cancer deaths combined." The 15 to 44 figure is from a study of emergency room patients in a high-crime inner-city area--hardly representative of the population at large. The comparison to auto accidents, muggings and cancer deaths, as Newhouse News Service reporter Joe Hallinan demonstrated in a 1994 story, was made up out of thin air by feminist "advocacy researchers." Another factoid from the congressional findings--"About 35% of women visiting hospital emergency rooms are [there] due to injuries sustained as a result of domestic violence"--also belongs in the Phony Statistics Hall of Fame. A 1995 Denver study found that of 648 women surveyed in emergency departments, 11--fewer than 2%--were seeking treatment for a beating by a male partner. Besides, if being a victim of a violent crime constitutes civil rights deprivation, then men, who make up three-quarters of homicide victims and two-thirds of victims of robbery and aggravated assaults, should be the sex in need of federal protection. Nor is it true, at least today, that crimes that predominantly affect women are treated as "second-class crimes." When feminist criminologist Kathleen Ferraro analyzed 1987-88 data from one Arizona county, she found, contrary to her expectations, that men who assaulted their wives or girlfriends were treated no more leniently than those who attacked anyone else. Numerous other studies confirm this pattern. There is clearly no constitutional basis for creating a special class of crimes defined by nebulous ideological criteria. Yet some defenders of the Violence Against Women Act are candid about their indifference to constitutional niceties. "We can look at it as lawyers and consider the fine points of the law," Ms. Brzonkala's lawyer, Eileen Wagner, declared on TV , "but we can look at it from the point of view of the women of this country." Actually, there is no evidence that many women will benefit from the civil rights statute of the act. For most victims of rape or domestic violence, civil litigation makes little sense since most of the perpetrators have no assets to go after. Norman Pattis, the attorney for the defendant in the Connecticut case, argues that the law is "a litigation weapon for upper middle class and wealthy women in divorce cases"--a way to bring a divorce case before a jury instead of simply a judge and put pressure on the husband to offer a more favorable settlement. In cases such as Brzonkala, the Violence Against Women Act is being used for political symbolism and publicity. In her brief, Ms. Wagner cites the media coverage the case has received and asserts that the plaintiff's goal is nothing less than to initiate "a wide national debate about why the 'no means yes' myth still persists." Of course this very same case was too weak to get to first base in the criminal justice system; a Virginia grand jury refused to indict the alleged assailants. In the legal battle to come, defenders of the act are heartened by the fact that Judge Kiser is the same judge who has just been overruled by the Supreme Court on the issue of opening the Virginia Military Institute to women. Whatever one thinks of the VMI case, this one is fundamentally different: It is not about equal treatment but about special privilege for female victims of certain crimes. Justice Ruth Bader Ginsburg, who played a key role in the VMI decision, has been often described as a feminist of the old "equality" school who reportedly dislikes the newer brand of protectionist "victim feminism." Before long, we may get a chance to see just how she will apply these principles to the Violence Against Women Act. Note: Ms. Young is vice president of the Washington-based |
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