Missed opportunity: Congress's attempted response to the world's demand for the Violence Against women Act.

• Author: Culpepper, Brenton T.

ABSTRACT

The Supreme Court's decision in U.S. v. Morrison struck down, as a violation of the Commerce Clause, [section] 13,981 of the Violence Against Women Act, that provided a private right of action for victims of gender-motivated violence to assert against their abusers. However, [section] 13,981 should have been affirmed as implementing legislation designed to fulfill U.S. obligations under the International Covenant on Civil and Political Rights and customary international law. Recognizing [section] 13,981 as implementing legislation serves as a foundation for the United States to restore itself as a legitimate human rights leader capable of both appreciating its own international obligations and pressuring other nations to come into compliance with international human rights obligations. Furthermore, only through setting a precedent recognizing broad Congressional authority to pass implementing legislation would there be a structure in place for Congress to devote itself to domesticating the legal obligations present in non-self-executing human rights treaties.

TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND: EXPLORING THE HISTORICAL CONTEXT A. The History of United States v. Antonio J. Morrison B. Congress's Constitutional Mandate to Implement Treaties 1. Congressional Authority Arising from Constitutional Treaty Powers 2. Congressional Authority Arising out of Customary International Law III. IMPLICATIONS AND ANALYSIS: RESTORING U.S. HUMAN RIGHTS CREDIBILITY ON GENDER ISSUES AND ENSURING THE CONTINUING GROWTH OF THE INTERNATIONAL HUMAN RIGHTS REGIME A. The Changing International Perception B. A Renewed Congressional Commitment to Human Rights Treaties IV. PROPOSAL: RETHINKING THE SOLICITOR GENERAL'S STRATEGY AND UNDERSTANDING THE [section] 13,981 PRIVATE RIGHT OF ACTION IN LIGHT OF INTERNATIONAL OBLIGATIONS A. VA WA as Implementing Legislation for the International Covenant on Civil and Political Rights B. VAWA as a Response to U.S. Obligations under Customary International Law C. Realizing the Chilling Effect of the Supreme Court's Striking Down of [section] 13,981 V. CONCLUSION I. INTRODUCTION

Vice President Joseph R. Biden once described the Violence Against Women Act (VAWA) as a necessary prerequisite to breaking "down the barriers that continue to exist in the unequal application of the law." (1) Certainly, few can disagree that the VAWA serves a noble, if not moral, purpose in providing legal protection for victims of domestic and gender-motivated (2) violence. Indeed, the international community, as well as many members of Congress, heralded the progressive legislation as a standard-bearer, ensuring human rights regardless of sex and gender. (3)

However, the bill's advocates felt a stunning disappointment on May 15, 2000, when the United States Supreme Court announced its landmark decision striking down the VAWA's prize possession, the private right of action. (4) This private right of action, found in [section] 13,981, allowed victims of gender-motivated violence to bypass the difficulty of achieving a criminal conviction and to seek civil damages directly from their abusers. (5) The Morrison Court refused to uphold [section] 13,981 on either Commerce Clause or Equal Protection grounds. (6) However, a justification exists for upholding [section] 13,981 that was not raised by the Solicitor General before the Court.

This Note advocates the proposition that the Supreme Court should have upheld the private right of action contained in [section] 13,981 as proper implementing legislation for U.S. obligations under both the International Covenant on Civil and Political Rights (ICCPR) and customary international law (CIL). Both the ICCPR and CIL recognize gender-motivated violence as a human rights violation and encourage nations to implement strategies capable of redressing such violence. (7) The private right of action serves as a concrete domestic codification of U.S. international obligations. (8)

Congress possesses wide discretion when entering into treaties and imposing the statutory guidelines necessary to enforce the mandates of those treaties. (9) Moreover, the Supreme Court has recognized previously that the United States is subject to jus cogens norms, citing the Constitution's language regarding the binding nature of the law of nations. (10) Congress thus deserved significant deference from the federal judiciary when enacting legislation creating the private right of action because of its intersection with international legal obligations.

The credibility of the United States' commitment to human rights has suffered since the dawning of the war on terror. The Court's recognition of the VAWA as a centerpiece of the U.S. strategy for adhering to international gender violence norms would have symbolized a recommitment to human rights, particularly human rights treaties. "[A] fuller, more complete conception of law demands that American law be pictured alongside international law," and only through moves such as recognizing the international legitimacy of the VAWA can that be accomplished. (11)

This Note offers an understanding of the intersection between [section] 13,981, international legal obligations, and the effect of a strong treaty power doctrine on U.S. human rights credibility and the international human rights regime. Part II outlines the history of the Morrison decision and Congressional treaty implementing powers. Part III examines the negative effects the Supreme Court's ruling in Morrison inflicted on U.S. human rights credibility. Furthering this discussion, Part IV analyzes how [section] 13,981 implements the ICCPR and satisfies customary law obligations requiring legislative action. Finally, Part IV discusses the chilling effect of the Supreme Court's decision on international relations, the future of implementing legislation, and Congress's willingness to engage international human rights treaties.

2. BACKGROUND: EXPLORING THE HISTORICAL CONTEXT

   1. The History of United States v. Antonio J. Morrison

      The Supreme Court's decision in U.S. v. Morrison determined that neither the Commerce Clause nor the Fourteenth Amendment Equal Protection Clause could serve as a basis for Congressional authority to enact the private right of action contained in [section] 13,981 of the VAWA. (12) The U.S. Solicitor General made the tactical decision to put before the Court only issues pertaining to the extent of Commerce Clause authority and the limitation of the Fourteenth Amendment's State Action Doctrine. (13)

      The particular facts of the Morrison decision prove useful as an illustration of how [section] 13,981 functions. In the fall of 1994, Christy Brzonkala was sexually assaulted and raped by Antonio Morrison and James Crawford. Brzonkala was in her first year at Virginia Polytechnical Institute and State University (Virginia Tech) and Morrison and Crawford were members of the Virginia Tech football team. (14) During the Virginia Tech hearing, Morrison conceded that he continued to have sex with Brzonkala despite being verbally told "no" twice. (15) Virginia Tech punished Morrison with a suspension. (16) No sanctions were issued against Crawford. (17) The Virginia grand jury failed to indict either Morrison or Crawford due to an alleged lack of sufficient evidence. (18)

      Brzonkala then took advantage of the recently enacted civil remedy provided by VAWA's [section] 13,981.19 Brzonkala's VAWA suit served as the initial constitutional test for the private right of action's civil remedy when the District Court for the Western District of Virginia held that Congress did not have the necessary authority to enact [section] 13,981.

      The Morrison decision's greatest constitutional impact is the extension of the Rehnquist Court's federalism revolution. The federalism revolution finds its roots in the Court's infamous Guns Free School Zone Act decision in United States v. Lopez. (20) The Morrison Court found that violence against women was non-economic activity. (21) Moreover, the Morrison majority rejected the argument "that Congress may regulate non-economic, violent criminal conduct based solely on the conduct's aggregate effect on interstate commerce." (22) The Morrison Court's primary concern was that if the court upheld [section] 13,981's civil remedy, functionally, Congress could regulate all violent crimes.23 The Court came to this conclusion despite significant evidence in the record that violence against women substantially impacts commerce by affecting a woman's ability to work and engage in the marketplace. (24) This evidence laid the foundation for Justice Souter's strong dissent. (25)

      The Morrison Court discounted evidence that showed a low success rate for domestic violence prosecutions and that victims often experienced prosecutorial discrimination in violation of the Equal Protection Clause. (26) Brzonkala argued that state-level bias resulted in "insufficient investigation and prosecution of gender-motivated crime, inappropriate focus on the behavior and credibility of the victims of that crime, and unacceptably lenient punishments for those who are actually convicted of gender-motivated violence." (27)

      The foundation for the Court's rejection of this equal protection argument is the State Action Doctrine established in the Supreme Court's decision in United States v. Cruikshank. (28) The essential premise of this doctrine is that both the Due Process Clause and the Equal Protection Clause only constrain state actors and cannot be used as a basis for rulings regarding the actions of private individuals. (29) The Morrison majority held that even if the petitioner proved gender-based disparate treatment by the state in the instant case, [section] 13,981 is still invalid because it is aimed at private individuals who committed acts of gender-motivated violence. (30)

   2. Congress's Constitutional Mandate to Implement Treaties

      The Supreme Court has long recognized Congress's...