Reconceptualizing VAWA's 'animus' for rape in states' emerging post-VAWA civil rights legislation.

• Author: Bonner, J. Rebekka S.
• Position: Violence Against Women Act

If a man rapes a woman while telling her he loves her, that's a far cry from saying he hates her. A lust factor does not spring from animus.

--U.S. Senator Orrin Hatch (R-Utah), VAWA cosponsor (1)

Theoretically, I guess, a rape could take place that was not driven by gender animus.... But I can't think of what it would be.

--U.S. Senator Joseph R. Biden, Jr. (D-Del.), VAWA chief sponsor (2)

1. INTRODUCTION

   On September 13, 1994, President Clinton signed into law a major crime bill that included a powerful new federal weapon to combat civil rights abuses against women. This crime bill contained the Violence Against Women Act (VAWA), (3) a historic measure taken by Congress to address the national problem of violence against women. (4)

   The Act (5) created the first civil rights remedy aimed at violent gender-based discrimination against female citizens. (6) The provision permitted victims of gender-motivated violence to bring a civil rights suit in federal court for compensatory or punitive damages, declaratory or injunctive relief, and legal costs: Its aim was to replace a patchwork of inconsistent, inadequate, and underenforced state civil and criminal laws with a consistent and uniform national standard under which to evaluate and prosecute such civil rights violations. (7) Equally important was the symbolic value of recognizing the political aspects of gender-based crimes of violence: More than random violence, this type of bias crime served to reinforce discriminatory social hierarchies, thereby harming targeted citizens' civil rights. For the first time in our nation's history, victims of these crimes would not have to rely on local criminal prosecutions for relief; instead, they could sue and seek significant damages in federal court on their own behalf. (8)

   The VAWA civil rights remedy defined a "crime of violence motivated by gender" as a felony-grade "crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender." (9) The key animus requirement was added to satisfy early opponents of the bill, who feared that [section] 13981 might impinge on traditional areas of state legislative authority and might be used to provide relief in federal court for women who had been victims of mere "random acts of violence unrelated to gender" that did not manifest invidiously discriminatory intent. (10)

   In May 2000, the Supreme Court reviewed a challenge to VAWA's constitutional legitimacy and, in United States v. Morrison, struck down [section] 13981 as violative of the Constitution's federalism principles. (11) Yet soon after the Supreme Court's initial grant of certiorari in Morrison in 1999, a handful of individual states anticipated the Court's final decision and responded with the introduction of their own versions of VAWA civil rights legislation, closely tracking the language of the doomed federal VAWA. (12) After the grant of certiorari, the New York State Senate's Committee on Rules marked up a new civil rights law. (13) Current versions of this bill establish a cause of action covering acts committed "because of gender, or on the basis of gender, or on the basis of gender and due at least in part to an animus based on the victim's gender." (14) On February 4, 2000, the Illinois state legislature introduced the Gender Violence Act, which would provide a civil remedy for those who have suffered from "sex discrimination" in the form of gender-related violence. (15) On January 29, 2001, the Arizona state legislature introduced a bill creating a private cause of action for victims of "act[s] of violence motivated by gender" that were "due in whole or in any part to an animus based on the victim's gender." (16) Now that the federal VAWA civil rights remedy has been declared unconstitutional, it is likely that other states will join Arizona, Illinois, and New York in introducing similar legislation creating a state-based civil right to be free from gender-motivated violence. (17) Unfortunately, however, these states now find themselves caught in a political dilemma: The very ambiguity of an animus term, the inclusion of which makes passage of these state VAWAs possible, could eventually result in an interpretive struggle in the courts similar to the struggle in the federal courts after passage of the federal VAWA.

   The absence of federalism concerns at the state level would appear to make it easier for state legislators to add creative alternative definitions of animus to these statutes, or even to drop this difficult term from their drafts altogether. Yet political realities seem to dictate that animus be included in any successful state bill. Indeed, the Arizona and New York statutes are virtual clones of the federal VAWA, and these legislatures have embraced the coalition-building pragmatism in the federal VAWA's textual ambiguities to shelve political arguments concerning the bill's scope and legislative reach. (18) These bills are proceeding steadily through hearings and markups. (At the same time, Illinois's most current draft drops the original animus language of the federal VAWA and contains alternative language to broaden the scope of the bill. (19) These moves have led to political problems in getting the Illinois VAWA bill passed, and that legislation now appears to be stalled. (20)) The likely adoption of animus language in state-level VAWA statutes ensures that the struggle over the definition of animus has not ended with the death of the federal VAWA.

   This Note examines the constructions of animus available from existing jurisprudential and legislative sources in an effort to define an innovative legal meaning and role for this undefined statutory term within states' new VAWA legislation. The purpose of the Note is twofold: first, to analyze available sources of meanings to discover current constructions of the meaning of animus; and second, to engage in a reconstruction of these meanings in order to develop the proper future definition for this element within the context of the post-VAWA civil rights remedies now emerging in the wake of the federal remedy's demise.

   In Part II, I turn to the heated congressional debate over the federal VAWA in order to examine the competing notions of animus that vied for adoption in the new Act but that ultimately produced the politically necessary cloud of ambiguity surrounding this statutory requirement. Parts III-V examine the scope and limitations of current constructions of animus under three jurisprudential traditions--civil rights law, Title VII antidiscrimination case law, and hate crimes legislation--each intended by VAWA's drafters to be a source of guidance for federal courts' interpretations of VAWA's animus requirement. As we shall see, each of the existing legal categories had something to offer to (and something to take away from) the original goals and eventual scope of the federal VAWA civil rights remedy. In Part VI, I examine the body of available federal VAWA jurisprudence for additional insights into potential animus meanings.

   Finally, Part VII reconceptualizes the role of animus under the new state versions of VAWA, considering what would be the most appropriate meaning for this statutory term given political realities and the original vision of the law. Animus is the linchpin term that will determine the ultimate scope and effectiveness of the states' future VAWA remedies in realizing the federal law's promise for equal citizenship within a society free of gender-based violence. As seen at the federal level, unguided courts chose to read animus restrictively or inconsistently. Continuing ambiguity of animus promises to limit severely the scope and effectiveness of the state VAWA statutes.

   As courts applied the federal VAWA in individual cases, inconsistent jurisprudential treatment of rape claims resulted in some courts holding that some rapes satisfied the animus element while other rapes were denied relief. The Note reveals that this inconsistent jurisprudential treatment of rape claims at the federal level is not analytically defensible. All rapes necessarily contain an inherent gender animus; the minimum level of civil rights coverage for a truly transformative state VAWA statute therefore requires relief for all claims involving gender-motivated rape. To that end, I offer a definition of animus that would make these new state VAWAs responsive to all future claimants who have survived a rape. Although a few states do provide civil remedies for the specific crime of rape, these are often underenforced, in part due to their secondary status as the "damages counterpart law" to an existing and primary criminal rape statute. Even where these civil rape statutes are applied, they fail to capture fully the harm the victim experiences, and suffer from underinclusion in failing to address a broad range of nonrape violence that takes place due to victims' gender. Civil rape statutes fail to recognize the political harms caused by rape.

   For these reasons, states seeking to create societies marked by gender equality among their citizens must provide civil rights remedies that recognize that gender-motivated violence is a civil rights issue as well as a criminal one. By explicit legislative language or through judicially discoverable expressions of legislative intent, states should adopt a construction of animus as "[a]n attitude that informs one's actions" or one's "disposition" (21) in order to ensure that these fledgling civil rights remedies most effectively advance the goal of a society free from violent acts of discrimination within existing political realities.

2. LEGISLATIVE INTENT-BASED CONSTRUCTIONS OF ANIMUS UNDER VAWA

   VAWA took many different forms in both the House and the Senate: All tolled, there were at least fourteen versions of VAWA, with additional changes made during final consideration of the bill on the floor of the Senate. Senate Bill...