Vawa: a Civil Rights Tool for Victims of Gender-motivated Violence

• Publication year: 1999
• Pages: 77
• Citation: Vol. 28 No. 9 Pg. 77

28 Colo.Law. 77 Colorado Lawyer 1999.

1999, September, Pg. 77. VAWA: A Civil Rights Tool for Victims of Gender-Motivated Violence

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77

Vol. 28, No. 9, Pg. 77

The Colorado Lawyer
September 1999
Vol. 28, No. 9 [Page 77]

Specialty Law Columns
The Civil Litigator
VAWA: A Civil Rights Tool for Victims of Gender-Motivated Violence
by Darold W. Killmer, Mari Newman

On September 13, 1994, President Clinton signed into law a major crime bill that, at the time, garnered significant media attention due to the inclusion of such measures as a ban on assault weapons. In the same legislation, however Congress included the civil remedies provision of the Violence Against Women Act ("VAWA") as a new federal weapon to combat gender-based violence.1 This important new civil rights remedy has been overlooked even by most civil rights attorneys, however, in part because it was overshadowed by the sexual-history protections of the amended Federal Rule of Evidence 412, which was passed in the same legislation

As VAWA has attracted the increasing attention of civil rights attorneys, it has come under strenuous attack by the defense bar. Despite a successful constitutional challenge to VAWA in the Fourth Circuit, however, VAWA has held its ground in nearly every other federal court that has considered its validity. Ultimately, the rich and well-documented legislative record supporting the enactment of the VAWA should allow this important protection of civil rights for women and protection against gender-motivated violence to survive judicial scrutiny

Scope of Problem/Congressional Findings

Congressional enactment of VAWA was based on four years of hearings regarding both the extent of violence faced by women and the specific impacts of that violence on interstate commerce. As quoted by the U.S. District Court for the Southern District of New York in Ericson v. Syracuse University:

Gender-motivated violence against women is rampant throughout the United States. See, e.g., S. Rep. No. 103-138, at 38 (1993) ("Violence is the leading cause of injuries to women ages 15 to 44, more common than automobile accidents, muggings, and cancer deaths combined. As many as 4 million women a year are the victims of domestic violence. Three out of four women will be the victim of a violent crime sometime during their life."); H.R. Rep. No. 103-395, at 26 (1993) ("Since 1988, the rate of incidence of rape has risen four and a half times as fast as the total crime rate.").

Such violence substantially impacts the ability of women to function in interstate commercial activities. See, e.g., S. Rep. No. 103-138 at 41 ("Gender-based violence bars its most likely targets - women - from full [participation] in the national economy. For example, studies report that almost 50 percent of rape victims lose their jobs or are forced to quit in the aftermath of the crime."); id. at 54 n.70 ("Women often refuse higher paying night jobs in service/retail industries because of the fear of attack.").2

Moreover, the reports on which Congress relied in enacting VAWA revealed that "we spend $5 to $10 billion a year on health care, criminal justice and other social costs of domestic violence";3 "as many as 50 percent of homeless women and children are fleeing domestic violence";4 and the fear of gender-motivated violence deters women from using public transportation and, thus, "acts as a barrier to mobility, particularly for those women who have no alternative to public transportation because of economic constraints."5

Basic Cause of Action

In order to address this profound societal problem, VAWA provides that a person (whether acting under color of law or not) who commits a crime of violence motivated by gender,6 and thus deprives another of the right to be free from such gender-motivated crime of violence, is liable to the party injured in an action to recover compensatory and punitive damages, injunctive and declaratory relief, and any other relief the court deems appropriate.7

VAWA is specifically enumerated in Title 42, U.S.C. § 1988(b), as one of the civil rights statutes, making attorney fees part of the costs of the action. Thus, a prevailing plaintiff in a VAWA action is entitled to recover attorney fees as well as the other remedies set out in the statute.

Elements of the Claim

The essential elements of a VAWA claim are: (1) the defendant committed a "crime of violence"; (2) that crime of violence was "motivated by gender"; and (3) commission of the crime deprived the victim of the right to be free from crimes of violence motivated by gender.8 An offense is a "crime of violence" within the meaning of the statute if it is (or would be, but for the relationship between the defendant and the victim9):

either a felony against the person of the victim, or a felony against property that presents a serious risk of physical injury to another; and

comes within the meaning of state or federal offenses described in 18 U.S.C. § 16, whether or not those acts have actually resulted in criminal charges, prosecution, or conviction.

The incorporation of the established section of the federal criminal code within the definition of "crime of violence" is beneficial to the plaintiff because of the rather permissive and broadly interpreted case law under 18 U.S.C. § 16.10 In order to further federal uniformity, the Tenth Circuit has determined whether a particular act is a "crime of violence" within the meaning of § 16 through use of the "categorical" approach set out by the U.S. Supreme Court in Taylor v. United States,11 in which certain crimes are placed in the same category and are so evaluated, regardless of the definitions adopted by the state of origin.12

A growing body of case law establishes that certain offenses - including many sex-related offenses - are per se violent, even in the absence of physical force, because the risk of physical force is inherent in the offense.13 Accordingly, conduct that had previously been subject to redress but subject to only limited remedies, such as sexual harassment in the workplace, is now possibly actionable under VAWA.

The second element of a cause of action under VAWA, namely that the defendant's offense be "motivated by gender," is established under VAWA if the offense is both:

committed "because of" or "on the basis of" the victim's gender; and

due, at least in part, to an animus based on the victim's gender.14

Courts will likely make reference to the established body of civil rights case law in the area of employment discrimination in determining what types of conduct are "because of" or "on the basis of" the victim's gender.15 Relying on the U.S. Supreme Court decision in Oncale v. Sundownder Offshore Services, Inc.,16 the U.S. District Court for the District of Colorado recently held that "sexual harassment of any kind will meet the statutory requirements."17

The third element of a cause of action under VAWA - that the commission of the crime deprived the victim of the right to be free from crimes of violence motivated by gender - might initially appear tautologous: if an individual commits a crime of violence (element one) that is motivated by gender (element two), he or she has necessarily deprived another of the right to be free from crimes of violence motivated by gender (element three). As the district court in Doe v Hartz18 found, however, it is precisely this third element that makes clear that it is not an essential element of the cause of action that the plaintiff suffer damage. Instead, the statute provides that deprivation of the right is sufficient injury to sustain...