Sexual Congress

Feminists have long regarded rape as a hate crime, like lynching. The view of sexual violence as a particularly vicious form of bigotry and social control may oversimplify the dynamics of any given sex crime (and overlook the historic use of rape allegations to justify lynching), but it resonates with many women. Both self-identified and closeted feminists, who differ wildly about the nature of equality and the means of achieving it, often agree that rape is an act of misogyny.

So there is widespread feminist support for the Violence Against Women Act (VAWA), which essentially adopts this view of sexual violence as discriminatory. Enacted in 1994 as part of an omnibus federal crime bill (in the immediate aftermath of Nicole Simpson's murder), VAWA is a comprehensive law that includes provisions expanding federal criminal jurisdiction over domestic violence involving interstate travel, amending federal rules of evidence in rape cases, and allocating federal funds for local efforts to combat domestic violence. It also establishes a federal civil right to be free of gender-based violence.

The Violence Against Women Act declares that "[a]ll persons within the United States shall have the right to be free from crimes of violence motivated by gender... . " The victim (male or female) of a "crime of violence motivated by gender" may bring a civil action against his or her attacker in federal court, seeking damages or injunctive relief. This "civil rights remedy" is available regardless of whether the alleged attack was prosecuted, much less proven, in criminal court.

When it was enacted some six years ago, conservatives derided VAWA as feminist victimism. They questioned the extent of domestic violence and the claim that women (not men) were the primary victims of it. These attacks were easily dismissed; asserting that men were equally targeted by domestic violence was a bit like claiming that the earth revolves around the moon. But recently VAWA has encountered more serious and possibly terminal opposition: The U.S. Court of Appeals for the Fourth Circuit has struck down VAWA's civil rights remedy, holding that Congress had no constitutional authority to enact it. This decision, Brzonkala v. Morrison, is now being reviewed by the Supreme Court and seems likely to be upheld.

The facts of this case are compelling. In 1994, Christy Brzonkala, a student at Virginia Polytechnic Institute and State University (Virginia Tech), was allegedly raped by two members of the university football team. The encounter she describes was not ambiguous: She was pinned down, forcibly undressed, and sexually assaulted. She did not report being raped for several months. Instead, she sank into a depression, cut her hair, stopped attending classes, and attempted suicide. Eventually, some five months after the incident, Brzonkala identified her alleged assailants as Antonio Morrison and James Crawford, and subsequently filed a complaint under Virginia Tech's sexual assault policy. She did not pursue a criminal case, apparently because she had not preserved physical evidence, and the administration did not report the alleged attack. (All violent felonies except sexual assaults of females by males are automatically reported by Virginia Tech authorities to university or town police.)

At the university's administrative hearing, Morrison admitted to having intercourse with Brzonkala over her objections. There was also evidence that after assaulting her, Morrison declared publicly that he "liked to get girls drunk and fuck the shit out of them." Crawford testified that Morrison had engaged in "sexual contact" with Brzonkala, while denying his own participation in her alleged attack. No action was taken against Crawford. Morrison was found guilty of sexual assault and suspended for two semesters. But school authorities reconsidered (at the behest of the football coach, Brzonkala alleges); the finding was subsequently vacated, the suspension lifted, and Morrison returned to school on a full athletic scholarship. Brzonkala filed a civil action against Morrison and Crawford under the Violence Against Women Act.

Much is at stake in this case, not just for Christy Brzonkala, to whom the VAWA lawsuit must seem like a last chance for justice. The Brzonkala case tests the concept of sexual violence as a civil rights violation that Congress is empowered, if not obliged, to redress. Yet this is not simply a case about civil rights. It is a case about federal power, which can be used to extend or restrict the rights of individual citizens. The power of Congress to create civil remedies for sexual violence is the same power used to imprison people for growing marijuana, the same power that some would use to criminalize late-term abortions. Brzonkala tests the limits of congressional police power, which has been steadily expanding and creating what the founders never envisioned--a federal justice system that regulates local conduct, reaching local as well as national crimes and purported vices.

Which is more frightening--the persistence of sexual violence or the growing power of federal law enforcement? Before you answer this question, imagine yourself serving a long prison term for a minor drug offense, or imagine your family doctor in prison for performing an abortion. When VAWA was enacted, I welcomed its recognition that crimes "motivated by gender bias" were federal civil rights violations. But that was before I considered the jurisdictional basis for VAWA and the dangers of expanding federal power beyond its constitutional limits.

This case divides heart and mind. It's difficult to agree with the ultraconservative, often antilibertarian Fourth Circuit Court of Appeals, especially when it is opposed by liberal feminists' allies and when it denies vindication to the victim of an apparent, brutal rape. I'd like to see Christy Brzonkala get her day in court--but putting sentiment aside, I could not advocate for her. In Brzonkala, the court was right to strike down VAWA's civil rights remedy.

Supporters of the civil rights remedy argue that it is a legitimate exercise of congressional authority under the 14th Amendment and the Commerce Clause (which gives Congress regulatory power over interstate commerce). The 14th Amendment argument is easily dismissed: The constitutional guarantee of equality under law prohibits discriminatory actions by public entities--state and local governments--not private citizens; it does not give Congress the power to regulate the unauthorized conduct of individuals. (The disputed provision of the VAWA applies to private actions not condoned or supported by the state.) The Commerce Clause argument has more merit.

Congress has long invoked the Commerce Clause to regulate noncommercial or quasi-commercial activities that affect interstate commerce. The landmark Civil Rights Act of 1964, prohibiting racial discrimination in places of public accommodation and employment was based on the Commerce Clause; so was a 1994 federal law prohibiting blockades of abortion clinics--the Freedom of Access to Clinic Entrances Act (FACE). But the constitutional limits of congressional power are decided by the Supreme Court, and in a recent case, United States v. Lopez, the Court showed a new willingness to examine congressional use of its power to regulate interstate commerce.

Lopez struck down a federal penal statute establishing "gun-free school zones," pursuant to the Commerce Clause. The Court held that a prohibition on handgun possession in a school zone had no substantial relationship to interstate commerce. Liberals who favor gun control are apt to regard this decision as an unwelcome example of right-wing judicial activism. (Chief Justice William Rehnquist wrote the majority opinion.) Civil libertarians, however, may view Lopez as welcome restriction on congressional power in general and on the harsh, unnecessarily expansive federal penal code in particular. (It's not as if the states don't or can't criminalize possession of guns and other weapons in schools.)

You'd have to adopt an extremely broad notion of interstate commerce to uphold the gun-free school zone law at issue in Lopez. Consider the government's case. It argued that gun possession in schools causes violent crime, which carries economic costs, and that it threatens the "learning environment," which makes students less likely to mature into productive citizens, which in turn adversely affects the economy. As the Court noted (and the government acknowledged) in Lopez, given this reasoning, Congress could regulate "all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce." If Congress can regulate handgun possession under the Commerce Clause because of its potential, indirect impact on the economy, then what can't Congress regulate?

Does this seem like legalese? Try the common sense test: When you think of a rape in a college dormitory, do you think about interstate commerce? As the Fourth Circuit noted in Brzonkala, the relationship between sexual violence and interstate commerce is rather attenuated. Sexual violence does have a general connection to the economy. It affects women's employment decisions, spending habits, and mobility as well as the nation's health care expenses, as supporters of VAWA assert. But virtually all crimes and most conduct, within and outside the home, can be said to have economic impact. So what? Do you want Congress to enjoy unrestricted regulatory power over you? (Do you want your divorce in federal court? Do you want Congress making local zoning decisions for your town?) The Supreme Court in Lopez rightly held that the Commerce Clause is not a grant of general police power. It does not (and should not) bring "any activity by any individual" within reach of federal regulators because of its eventual, indirect impact on the economy. Congress may regulate noncommercial activities, under the commerce clause, only when they "substantially affect interstate commerce."

This standard does not unduly limit congressional power, including the power to prohibit discrimination. It does not invalidate the Civil Rights Act of 1964: Segregation in hotels and restaurants, on transportation systems, and in the workplace involved commercial activities with clear and substantial effects upon interstate commerce. The FACE act, prohibiting blockades of abortion clinics, has withstood challenges under Lopez. (In fact, FACE has recently been upheld by the Fourth Circuit.) Reproductive health services are quasi-commercial activities; cutting off access to them would incur substantial economic effects.

But if the civil rights remedy in VAWA is struck down by the Supreme Court, it's doubtful that anyone will notice an impact on interstate commerce. I'm not belittling the importance of policing sexual violence. I am suggesting that it should, in general, remain the province of the states, which have been paying more attention to it recently. (Christy Brzonkala could have pursued a criminal prosecution under state law but chose not to do so.) Congress can provide funding for innovative state programs and improved law enforcement, without using the problem of sexual violence to expand its own authority.

As the Fourth Circuit stressed in Brzonkala, the federal government is a government of enumerated powers. The price of upholding VAWA's civil rights remedy is an unconstitutional grant of unlimited power to Congress, power that will not always be used wisely or with regard to individual rights. We need to combat sexual violence without making a federal case of it. ยค