A Thirteenth Amendment defense of the Violence Against Women Act.

• Author: Hearn, Marcellene Elizabeth

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.(1)

INTRODUCTION

In 1994, with bipartisan 2 support, Congress passed the Violence Against Women Act ("the VAWA").(3) The most controversial part of the VAWA is a new civil rights cause of action for women who have been the victims of gender-motivated violent crimes.(4) A woman who is a victim of a violent crime may now sue the person who battered, raped, or assaulted her for monetary damages, as well as for injunctive and declaratory relief.(5) Congress's authority to create the remedy has been challenged in six reported cases. Although Congress explicitly invoked its Fourteenth Amendment(7) and commerce(8) powers to enact the civil rights remedy, this Comment argues that Section 2 of the Thirteenth Amendment is an alternative source of Congress's power to create a cause of action for private discrimination.(9)

A Thirteenth Amendment theory is necessary because there arc powerful state action, privacy, and federalism arguments that Congress did not have the authority to enact the civil rights remedy under either the Commerce Clause or the Fourteenth Amendment.

The Fourteenth Amendment, for example, requires state action.(10) The line between state action and private action is, in turn, influenced by societal conceptions of the public and the private that have historically been used to deny women, and particularly married women, their legal rights.(11) The DeShaney case, in which the Supreme Court refused to extend Fourteenth Amendment substantive due process protection to a victim of child abuse because there was no affirmative state action,(12) is a recent example of how the Supreme Court declines to apply the Fourteenth Amendment in so-called "private" arenas. A Thirteenth Amendment theory for the VAWA answers Fourteenth Amendment objections to the statute based on both the historical idea of privacy and the alleged lack of state action, because the Thirteenth Amendment reaches private action.

The VAWA also has been plagued by objections based on federalism. Critics argue that the VAWA will cause "state-federal jurisdictional problems,"(13) and place an undue burden on an already overburdened federal judiciary.(14) Moreover, since the enactment of the VAWA, the legitimacy of broad congressional action under the Commerce Clause has been challenged in United States v. Lopez.(15) Although there is a growing consensus among the lower courts that Congress had the power to enact the VAWA under the Commerce Clause, the question of the VAWA's constitutionality is not yet settled.(16) Should the Supreme Court or an appellate court strike down the VAWA under Lopez, a Thirteenth Amendment theory may provide an alternative basis for upholding the civil rights remedy.(17) A Thirteenth Amendment theory answers federalism objections to the VAWA because the Thirteenth Amendment represented a reordering of state and federal relations.(18)

Although the traditional view is that the Thirteenth Amendment applies only to systems of labor which are analogous to chattel slavery and/or to racial discrimination,(19) this Comment follows the trend of more recent scholarship and argues that the Thirteenth Amendment should be viewed more comprehensively.(20) Slavery involved familial and private aspects of which Congress was well aware when it passed the Thirteenth Amendment.(21) If the Thirteenth Amendment is an abolition of slavery and involuntary servitude for all time, then it should abolish any form of servitude found in the twentieth century.(22) Congress has the authority to legislate against "badges and incidents" of slavery and involuntary servitude,(23) and this Comment will argue that violence against women is such an incident.

Part I discusses the VAWA civil rights remedy. It explains the significance of a civil rights remedy in Part I.A; the advantages of this remedy in Part I.B; the actual provisions of the VAWA civil rights remedy in Part I.C; parallels to Reconstruction-era civil rights statutes in Part I.D; and Congress's claims of authority to enact the remedy under the Fourteenth Amendment and the Commerce Clause in Part I.E.

Part II discusses arguments that have been or may be used against the civil rights remedy. Part II.A.1 details arguments grounded in the notion of state action; Part II.A.2 explains arguments grounded in privacy; Part II.A-3 addresses federalism arguments; and Part II.A.4 discusses Lopez Part 11.13 explains the federal court challenges to the VAWA-Part II.C concludes by arguing the need for an alternative constitutional basis for the civil rights remedy.

Part III begins with an explanation of the traditional interpretation of Congress's Thirteenth Amendment powers. Part III.B proposes a Thirteenth Amendment basis for the VAWA as an alternative to that interpretation. Part III.C presents a working definition of slavery that encompasses the differential experience of slave women--including gender-differentiated physical and sexual violence--and rejects the notion that the Thirteenth Amendment addresses only labor relations. Part III.D debunks the common wisdom that Congress never intended the Thirteenth Amendment to apply to women by demonstrating that contemporaneous political actors thought the Amendment had the potential to reorder familial relationships. Part III.E counters the argument that gender discrimination has been expressly removed from the Thirteenth Amendment's purview by the Supreme Court in Griffin v. Breckenridge and its progeny. Finally, Part III.F argues that Congress had the authority to enact the VAWA to address severe battering and child abuse, which are present-day forms of involuntary servitude, and Part III.G presents the proposition that violence against women today is an incident of both nineteenth-century slavery and marriage.

1. THE CIVIL RIGHTS REMEDY OF THE VAWA

   The VAWA(24) was passed in 1994 as part of the Violent Crime Control and Law Enforcement Act of 1994.(25) The statute includes a wide variety of measures intended to address violence against women. For example, it creates the federal criminal offenses of interstate domestic violence, interstate stalking, and interstate violation of a protective order.(26) It also provides mandatory restitution to victims of federal sex crimes;(27) legislates full faith and credit in each state for an order of protection issued in any other state;(28) creates a national domestic abuse hotline;(29) supplies grants for the coordination of domestic violence prevention programs among local government and community groups,(30) and provides for and funds education and training programs for judges regarding gender-motivated crimes.(31) In addition, the VAWA changed the citizenship petitioning procedure for battered aliens and their children.(32)

   The most controversial part of the VAWA and the subject of this Comment, however, is the civil rights remedy, which creates both a substantive right to be free from gender-motivated violence and a cause of action to enforce this right.(33)

   1. The VAWA Civil Rights Remedy Establishes That Crimes of Violence Motivated by Gender Are Civil Rights Violations

      Congress enacted the civil rights remedy of the VAWA to provide a new "[f]ederal civil rights cause of action for victims of crimes of violence motivated by gender."(34) A woman who can prove all of the elements of a crime of violence motivated by genders' may sue for compensatory and punitive damages, injunctive and declaratory relief."(36) The VAWA also covers deprivations occurring "under color" of state law.(37) Congress intended that the VAWA remedy would supplement the existing pantheon of federal civil rights causes of action,(38) specifically, 42 U.S.C. [subsections] 1981,(39) 1983,(40) and 1985(3).(41) Those sections do not cover private gender-discriminatory violence against women perpetrated by a single individual. Section 1983 requires state action;(42) [sections] 1985(3) requires a conspiracy of two or more persons;(43) and [sections] 1981 is limited to racial discrimination.(44)

      Although the language and purpose of the VAWA echo its Reconstruction predecessors, the VAWA civil rights remedy is distinct because it creates a new substantive right-the right to be free from "crimes of violence motivated by gender,"(45) and the vehicle for enforcement of this right-the civil rights remedy.(46) The VAWA civil rights remedy represents the first time Congress has declared that violence against women is gender discrimination.(47) The House Conference Report, for example, states that "Congress has found that crimes of violence motivated by gender constitute bias crimes in violation of the victim's right to be free from discrimination on the basis of gender."(48)

   2. The Civil Rights Remedy Provides Key Advantages over Existing State Laws

      In addition to serving the important societal function(49) of recognizing that violence against women is gender discrimination, the VAWA remedy has distinct advantages over existing state laws. First, the VAWA provides civil relief where the State refuses to prosecute criminally because of the relationship between the victim and the perpetrator.(50) For example, although nearly every state has abolished the complete marital rape exemption, many states still prosecute rape within marriage differently than rape outside marriage. Some states only prosecute when the couple has separated or has begun divorce proceedings;(51) other states criminalize only first-degree rape, or rape where force is used.(52) Some states even have extended the marital rape exemption to cover cohabitants.(53) Delaware has gone so far as to exempt voluntary social companions from prosecution for rape unless there is...