VIOLENCE AGAINST WOMEN ACT 108 Stat. 1903 (1994)

The Violence Against Women Act (VAWA) is a federal law passed by Congress in 1994 that allows people who have been subjected to acts of violence because of their sex to sue their victimizers in federal court for sex discrimination. It provides that "a person (including a person who acts under color of any statute, ordinance, regulation, custom, or usage of any State) who commits a crime of violence motivated by gender and thus deprives another of the right [to be free from crimes of violence motivated by gender] shall be liable to the party injured [in a civil action for relief]."

The basic idea is to place the power to sue and hold perpetrators accountable for sex-discriminatory acts of violence, such as rape and battery, in the hands of the survivors. This civil rights remedy, in addition to empowering survivors of these abuses concretely to act on their own behalf, exposes the commonness and pervasiveness of these acts, puts them in context by connecting them with discrimination across society, dignifies the survivors of violent sex discrimination as bearers of civil rights, and states authoritatively that perpetrators are bigots as well as criminals.

The VAWA raises some old constitutional debates that, once resolved, open new constitutional possibilities.

The VAWA was passed because states, which enforce most criminal laws, were documented to have failed in protecting women from sexual and other physical violence on a large scale. By declaring a policy of zero tolerance for such abuse, and by conceiving gender-based violence to be a civil rights violation, Congress raised a new constitutional question: Is freedom from sexual assault a sex equality right? If so, should it be guaranteed under the Constitution's fourteenth amendment as well as by a statute? Have state instrumentalities that failed to give women equal protection of the criminal laws been violating the Constitution all this time in a way that needs new legal scrutiny? Cases permitting suit against officials for sexual harassment, of men by men as well as of women by men, provide supportive precedents.

Congress predicated its power to pass the VAWA both on the commerce clause and on the fourteenth amendment, section 5, rekindling the old legal debates about the proper constitutional foundation and reach of federal civil rights laws. Early legal challenges to the VAWA have argued that men's violence against women is private, not public; reserved for states, not the federal government; criminal, not civil; and that it does not implicate interstate commerce. Responses to these arguments have documented the substantial impact of violence against women on women's participation in economic life. Advocates for the law have argued that sex-based violence is a form of sex discrimination against which Congress is permitted to legislate. The states' abdication of, and bias in, enforcing laws against violence against women is hardly a private act. It is hardly private in the sense of being unique, personal, protectable, or exclusively individual. Nothing in the Constitution says it cannot be addressed civilly as well as criminally. They have also argued that the remedy supplements, rather than supplants, state criminal laws.

Assuming the law is found constitutional, concerns for its effectiveness arising from its language, passed as a compromise to restrict the number of cases brought, may arise. For example, the definition of "gender-motivated" is "because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender." One benefit of this language is that it clearly permits combined race-and-sex-based claims. One potential problem is that "animus," which requires some proof of perpetrator mental state, is often inaccessible to the victim other than through the act itself. Perpetrator mental state may also be beside the point of the injury to the victim. Future legislation and litigation under the VAWA will have to confront this and other barriers to effective recovery, and to the social change—equality of the sexes—that the VAWA was passed to promote.

Catharine A. Mac k innon
(2000)

Bibliography

Frazee, David;N oel, Ann M.; and Brenneke, Andrea 1997 Violence Against Women: Law and Litigation. Deerfield, Ill.: Clark, Boardman, Callaghan.

Nourse, Victoria F. 1996 Where Violence Relationship and Equality Meet: The Violence Against Women Act's Rights Remedy. Wisconsin Women's Law Journal 11:1–36.

Senate Judiciary Committee 1992 Violence Against Women: A Week in the Life of America: A Majority Staff Report. Washington, D.C.: United States Government Printing Office.