In defense of the civil rights remedy of the Violence Against Women Act.

• Author: Shargel, Johanna R.

Because of gender-based violence, American women and girls are

relegated to a form of second-class citizenship.... When half of our

citizens are not safe at home or on the streets because of their sex,

our entire society is diminished.

--Sally Goldfarb, NOW Legal Defense and Education Fund(1)

Violence currently poses the most significant threat to women's rights as equal citizens. The Senate Judiciary Committee, after reviewing a wide array of studies on violence against women in the United States, reported that "[v]iolence is the leading cause of injuries to women ages 15 to 44, more common than automobile accidents, muggings, and cancer deaths combined."(2) Violence against women occurs with disturbing frequency and results in severe, often fatal, injuries. A recent Department of Justice survey reported that, in total, women aged twelve and older annually sustain almost five million violent victimizations;(3) approximately five hundred thousand of these victimizations are rapes and sexual assaults.(4) Rape in America,(5) a comprehensive national study, found that one out of every eight adult women has been the victim of forcible rape at some point in her lifetime.(6)

Until recently, women victimized by the reality or threat of violence were left without an effective remedy, and therefore denied their right to full and equal citizenship. First, the disabling physical and psychological effects of violence have kept women from participating as commercial actors, and their absence from the nation's marketplace has had a substantial effect on interstate commerce. Women have, in Goldfarb's words, been "relegated to a form of second-class citizenship" because violence has prevented them from contributing to the national economy on an equal footing with men.(7) Women have also been "relegated to a form of second-class citizenship" because state criminal justice systems have frequently denied female victims of violence their right to equal protection of the laws.(8) Because both the restrictive letter and the biased implementation of state laws have failed to keep women "safe at home or on the streets," women continually have been deprived of their full citizenship rights.

In September 1994, Congress passed the Violence Against Women Act (VAWA),(9) drafted in response to what its chief legislative sponsor, Senator Joseph R. Biden, called a "national tragedy."(10) The law evolved gradually over a four-year period during which Congress heard testimony from women's rights and civil rights organizations, state attorneys general, law professors, law enforcement officials, physicians, and victims of violence. What emerged from this expert testimony is a comprehensive statute containing a wide range of provisions designed to address the pressing problem of violence against women.

For example, to improve overall safety for women, the VAWA increases penalties for federal rape convictions and provides state grants to support law enforcement and educational efforts aimed at reducing violent crime against women.(11) With respect to domestic violence, the Act criminalizes interstate domestic violence,(12) and ensures that a protective order issued in one state is given "full faith and credit" in all other states.(13) In an effort to achieve equal justice for women in the courts, the Act authorizes grants to improve the training of judges who deal with issues involving domestic violence and also encourages circuit judicial councils to conduct gender bias studies.(14)

Without question, the most controversial provision of the VAWA is the section entitled "Civil Rights for Women."(15) This provision establishes a federal civil rights cause of action for victims of violent crimes "motivated by gender."(16) The Civil Rights Remedy defines a violent crime as any act that would be a federal or state felony, whether or not the offense has actually resulted in criminal charges, prosecution, or conviction.(17) Under the statute, a person who commits a crime of gender-motivated violence, whether a public or private actor, is liable to the injured party and subject to compensatory and punitive damages, as well as injunctive and declaratory relief.(18)

The VAWA Civil Rights Remedy is based on two independent constitutional sources of legislative authority: the Commerce Clause and the Fourteenth Amendment's enforcement provision, Section Five. Since the Remedy was passed, two federal district courts have considered challenges to the constitutional validity of the statute, ruling in opposite directions. In Doe v. Doe,(19) a Connecticut district court upheld the Remedy, concluding that it constitutes a legitimate exercise of Congress's power to regulate interstate commerce.(20) Only one month later, in Brzonkala v. Virginia Polytechnic & State University,(21) a Virginia district court invalidated the VAWA civil rights law, holding that the enactment exceeds Congress's authority under both the Commerce Clause and Section Five of the Fourteenth Amendment."(22)

This Note defends the constitutionality of the VAWA Civil Rights Remedy, which is currently mired in controversy and doctrinal confusion. Part I examines the Commerce Clause ground of the Remedy, focusing on United States v. Lopez,(23) a postenactment Supreme Court decision that, in another context, narrowed Congress's commerce power, thereby raising questions about the constitutional legitimacy of the VAWA Remedy. Part II analyzes the Section Five basis for the Remedy, arguing against claims that the statute fails to meet the Fourteenth Amendment's state action requirement. Although the constitutional attacks on the VAWA civil rights law are formidable, particularly with respect to the Commerce Clause, this Note concludes that the case law interpreting both constitutional provisions largely supports the Remedy's legitimacy on both interstate commerce and equal protection grounds.

1. Surviving Lopez: The Substantial Effect of Gender-Motivated Violence on Interstate Commerce

   In 1994, when the Violence Against Women Act was passed, the Commerce Clause appeared to be a sound basis for congressional action.(24) The Supreme Court had not invalidated legislation relying on the Commerce Clause in nearly sixty years,(25) and case law consistently granted tremendous deference to congressional regulations designed to protect interstate commerce.(26) In 1995, however, the Lopez Court struck down a statute with a tenuous connection to interstate commerce, thereby redefining the scope of congressional power under the Commerce Clause.(27) Cautioning that Congress would no longer have free rein in the commerce arena, the Lopez Court ruled that unless the legislation pertained to the channels or instrumentalities of interstate commerce, Congress would only be permitted to regulate activities that substantially affect interstate commerce.(28) In addition, the Lopez Court frowned on the regulation of intrastate activity that lacks a concrete tie to interstate commerce; it also viewed with disapproval legislation that targets noncommercial activity. Lopez, however, is a deeply ambiguous opinion that has generated a considerable amount of doctrinal uncertainty both in lower courts and among academic commentators.

   This Part analyzes the impact of Lopez on Commerce Clause jurisprudence in general and on the constitutionality of the VAWA Civil Rights Remedy in particular. It concludes that although Lopez poses a number of troubling questions and casts some doubt on Congress's authority to enact the VAWA Remedy, the Remedy will most likely survive Lopez.(29) The first Section of this Part examines the damaging effect of gender-motivated violence on interstate commerce. The second Section analyzes the Lopez decision and its impact on the otherwise uniformly deferential Commerce Clause case law of the modern era and concludes that the VAWA Civil Rights Remedy remains well-grounded in the Commerce Clause.

   1. Violence Against Women: A Well-Documented and Substantial Threat to Interstate Commerce

      Voluminous testimony at the congressional hearings on the VAWA Civil Rights Remedy evidenced the tremendous strain that violence against women imposes on the nation's productive capacity, clearly demonstrating that gender-motivated violence has a substantial effect on interstate commerce. As the Senate Judiciary Committee summarized: "Gender-based crimes and the fear of gender-based crimes restrict movement, reduce employment opportunities, increase health expenditures, and reduce consumer spending, all of which affect interstate commerce and the national economy."(30) Extensive congressional findings and other studies demonstrate that gender-motivated violence has a detrimental effect on interstate commerce.

      First, gender-motivated violence severely limits women's contribution to the national economy. Over thirty years ago, when enacting Title VII of the 1964 Civil Rights Act, Congress sought to guarantee equal opportunity for women in employment.(31) Gender-motivated violence, however, defeats the purpose and benefit of Title VII; it physically prevents millions of American women from full participation in commercial activity. Domestic violence in particular significantly impairs job performance: Victims of domestic violence are often harassed by their batterers at work, prevented from arriving to work on time, and kept from attending work altogether because of serious injuries.(32) Moreover, the threat of violence affects women's employment decisions and conduct to a large extent: Fear of violence deters women from applying for or accepting job positions in unsafe neighborhoods, and it discourages women from working after dark or on weekends.(33) The fear and threat of violence affect every American woman and therefore have both an inevitable and an enormous impact on interstate commerce.

      Gender-motivated violence not only deprives women of employment opportunities, but also has a significant effect on business...