Why, when the issue is violence against women, do some people talk about sex? While some violence directed at women is sexualized, calling it "sex" softens the brutality, implicates the victim as possibly an inciter or a participant, and offers the perpetrator the justification of lust.
Think also about the phrase "domestic violence." True, a good deal of violence against women does occur inside houses, but the coziness assumed to reside within the "domestic" stands in contrast to the cruelty of violence imposed by someone so close.
Linking violence against women to sex and domestic life illustrates more than a problem of rhetoric; it demonstrates the ongoing effects of laws that have treated women unequally. For centuries, state laws wove notions of sex and domesticity into a fabric of toleration of violence against women. And now that federal law is trying to protect women from the residue of that discrimination, objectors are arguing that federal remedies are unconstitutional--because violence against women is about sex and the home, which they say are state, not federal, concerns.
Two centuries ago, husbands had the prerogative of beat-ing their wives. One century ago, state courts constructed rules about the sanctity of the home, thereby justifying under a rubric of privacy a reluctance to interfere when men beat or raped their wives. Indeed, up until about 10 years ago, under the United States military code, a man could not be convicted of the rape of his wife because the code defined rape as "the act of sexual intercourse with a female not his wife, by force and without her permission."
In short, the law decided which harms against women were tolerable. And even when those exemptions no longer exist, police, prosecutors, juries, and judges continue to be influenced by the longstanding assumption that women do not have rights of bodily integrity equal to those of men.
But law is not static. Particularly when civil rights are at issue, Congress has often enabled groups that have suffered discrimination under state laws to turn to federal courts for protection.
Recall that after the Civil War, some states did not allow African Americans to marry. When Congress considered federal remedies, some opponents responded that marriage was a matter of "domestic relations"-- outside the purview of Congress. Congress concluded otherwise; federal civil rights law guaranteed newly freed slaves the right to marry.
In the early part of the twentieth century, labor's opponents argued that employment relations were personal relations, a matter for state, not federal, governance; but Congress began to pass labor laws, including legislation protecting the right of workers to unionize.
These federal laws now seem unremarkable. Yet in a case currently before the U.S. Supreme Court, opponents of the Violence Against Women Act (VAWA), passed by Congress in 1994, are once again raising the familiar themes of personal relations and states' rights.
Congress enacted VAWA after four years of hearings and many revisions; it crafted a multifaceted statute that provides substantial funding to state, tribal, and local programs to combat violence against women. VAWA also authorizes federal criminal prosecutions in limited circumstances, for example, if a person crosses state lines to harm an intimate partner already protected by a permanent state court order. And VAWA includes a new civil rights remedy for victims of gender-based violence akin to the remedy already on the books for race discrimination: VAWA lets plaintiffs sue assailants for damages, in either state or federal court, upon proof that a crime of violence was motivated by "animus based on gender."
Now at issue before the Supreme Court is the constitutionality of this one aspect of VAWA, the civil remedy. Thus far, most of the federal judges who have considered it have upheld it. However, one federal appellate court, the Fourth Circuit, thought otherwise, holding that neither the Constitution's Commerce Clause nor the 14th Amendment enabled Congress to create federal court remedies for victims of gender-based violence. In these pages, Wendy Kaminer has taken a similar position [see "Sexual Congress," TAP, February 14, 2000].
The Fourth Circuit's view that VAWA harms states' rights is not shared by many representatives of state government. When the legislation was pending, the attorneys general of 38 states told Congress that VAWA's civil rights provisions would be a useful supplement to--not a displacement of--state remedies. At the time, few laws in the United States still expressly exculpated men who had attacked their wives. But many prosecutors worried that the residue of both legal and social attitudes about violence against women results in systematically less protection for women victims of violence than for men.
States did more than worry. In the 1980s and 1990s, the chief justices of more than half the states commissioned task forces to explore the treatment of women in their courts. What they learned was powerful and disheartening. Connecticut's task force concluded, for example, that "women are treated differently from men in the justice system, and because of it, many suffer from unfairness." From states as different as California, Georgia, Maryland, Minnesota, and Kentucky, reports came that women victims of violence faced special hurdles--their claims of injury were often discounted, their testimony often disbelieved.
The record of systemic discrimination was before Congress when it enacted VAWA. And that record explains why, in 1999, the National Association of Attorneys General supported the reauthorization of VAWA and 36 states signed onto a brief filed in the current Supreme Court case, urging that the civil rights remedy be upheld. (Only one state--Alabama--argued for invalidation.)
Power is surely at stake here, but not only how to allocate it between state and federal governments. Also at issue is the Supreme Court's ability to override congressional enactments. Will the Court now ignore congressional fact-finding and substitute its own? Will it change its current interpretation of the Commerce Clause and cut back on Congress's power to legislate in this sphere?
To understand why the Court should not, first focus on the Fourth Circuit's argument that violence against women is about sex, crimes, family life, and the home, and that states have exclusive dominion here. That claim is untrue, and as policy it would be unwise.
Federal law oversees state criminal law and family law in a variety of contexts. States cannot, for example, enforce criminal laws discriminatorily, nor can they forbid interracial marriage. Outside the domain of civil rights, many other federal laws define and structure relations that could be termed "domestic"--like welfare law (requiring beneficiaries to work, so that children need to be in child care programs), the Equal Retirement Income Security Act (creating marital property rights in pensions), or tax law (defining economic obligations by reference to marital status).
The point is not that Congress has taken over state law, but rather that state and federal governance--overlapping, often cooperative--is the norm in virtually all fields of human endeavor in the United States, family life and criminal law included.
Second, focus on Congress's powers over interstate commerce. Since the 1930s, the Constitution has been understood as permitting Congress to regulate not only commercial transactions themselves but activities substantially related to commerce. Since the 1960s, the Constitution has been understood as permitting Congress to remove obstacles to engaging in commerce--especially discriminatory obstacles. Before enacting VAWA, Congress heard testimony from both business executives and individuals detailing not only that violence has an economic effect on the GDP, but that violence against women limits women's full participation as economic actors. Congress learned both that women were beaten to prevent them from going to work and that the threat of violence restricted women's employment options.
At the time, VAWA's opponents predicted its civil rights remedy would open the floodgates to lawsuits having little or nothing to do with commerce. Yet to date, only about 50 decisions have been reported under the civil rights remedy, and of those, more than 40 percent involved allegations of attacks in commercial or educational settings. Indeed, the case before the Supreme Court involves a young woman allegedly raped by two students at her college, one of whom explained publicly that he liked to "get girls drunk and fuck the shit out of them."
Third, consider Congress's power to enforce the 14th Amendment, forbidding states to deny equal protection of the laws. Opponents of VAWA argue that violence inflicted by individuals is a private act, not state action. But state laws have failed to protect women's physical security equally with men's. State prosecutors have told Congress that inequality continues. Congress can therefore fashion proportionate remedies, as it has done before to protect blacks from racially motivated violence.
VAWA, in other words, is an ordinary exercise of congressional powers, executed in a "federalism-friendly" fashion to provide complementary means of rights enforcement. Its opponents want to identify women with the home, focus on violence in bedrooms, and confine a woman's remedies to whatever is available in the locality in which she finds herself. What they fail to understand is that the federal government has an obligation to secure women's physical safety and to protect women's rights to participate in the national economy free from the threat of targeted violence. VAWA is not about sex, and it is not about a family any of us would want to be in; citizenship in the nation is what is at stake. ¤
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