Are all men rapists? - problems with the Violence Against Women Act of 1993

National Review, August 23, 1993 by Stephanie Gutmann

The new Violence Against Women Act is sexual politics with a vengeance.

One day this January, Joe Biden had a revelation to share with his fellow members of the Senate Judiciary Committee. "Our idea of crime," he intoned, "has left no room for violence against women." The "surging epidemic" of rape and domestic violence he saw engulfing the nation was "doubly dangerous" because it is "as invisible to policymakers as it is terrifying to its victims." The solution? An omnibus bill he had been shepherding for several years, now titled "The Violence Against Women Act of 1993." Not until the proposed legislation is passed, he told them, "can we as a nation inscribe this violence with a name so that it will never be mistaken or dismissed as anything other than brutally wrong."

Unless you had spent the last ten years in one of Catharine MacKinnon's law seminars, you should have been jolted from your post-lunch nap when the statement "our idea of crime has left no room for violence against women" went by. Even in the rhetoricbesotted Senate a few cries of "Huh?" or "Say what?" should have rung out. But the concepts of "silent data," the "invisible" epidemic, and the collusive, practically conspiratorial legal system seem to have gone down without a hiccup. Apparently, the senators have been absorbing their lessons well.

And the senator from Delaware knew his audience: a bunch of guys with woman problems. Thus, with the support of fellow survivors of the Clarence Thomas hearings (Orrin Hatch is now the bill's chief co-sponsor), and the signature of guys with other types of woman problems (Ted Kennedy), the Violence Against Women Act was voted out of the Senate Judiciary Committee unanimously. After collecting sponsoring names outside the committee from more guys with woman problems (Bob Packwood, Daniel Inouye) and a coterie of those who usually subscribe to such endeavors (Barbara Boxer, Barbara Mikulski, Chris Dodd), the bill accumulated a total of 62 cosponsors and is headed for debate on the Senate floor sometime this term. Given the rote way many of the cosponsors seem to be thinking about it (Senator DeConcini, for instance, explained the bill to his constituents with a one-page handout written by an intern and entitled "Violence Against Women: A Violation of Society"), it will probably pass. Who would want to go on record as having voted against the solution to "Violence against women"?

A Smorgasbord of Remedies

So what is the Violence Against Women Act? VAWA, for short - like the name of an avenging female demigod - is a smorgasbord, "a broad array of remedies" organized under six categories: "Safe Streets for Women"; "Safe Homes for Women"; "Civil Rights for Women"; "Safe Campuses for Women"; "Equal Rights for Women"; and "Violence Against Women Improvements." VAWA's underlying premise - threaded through the 65-page committee report - is that life is pretty much unremitting torture for women. As a staff report accompanying an earlier version of the bill put it, "At one point [women's] fears were confined to dark, secluded alleys. Now women must worry about crowded offices, local restaurants, and comfortable homes. For women, there is no longer any place they can. call |secure.'"

Most of VAWA is mere largessestrewing - much of it to programs that are not needed and potentially destructive. There's $65 million for "rape education" (what would this look like exactly?) in junior highs; millions more for colleges to "fund rape education and prevention programs." Some provisions seem like good ideas - i.e., grants for better lighting and cameras in parks and subway stations (though why should the Federal Government be getting involved?), and legal changes like the one requiring all states "to enforce any |stay away' order [directed at abusive spouses], regardless of which state issues it."

A New Civil Right

But the heart of VAWA, what Biden has called "the most innovative part," is Title III - "Civil Rights for Women" - which, according to his committee's summary, would "make gender-based assaults a violation of federal civil-rights laws" and allow victims of all felonies motivated by an animus against the victims' gender to bring civil-rights suits against their assailants.

On the face of it, the civil-rights remedy wouldn't seem likely to encourage lots more litigation from people with cases too weak for criminal court. State courts have all along permitted civil suits - where the standard of proof is "a preponderance of the evidence," rather than guilt "beyond a reasonable doubt" - for rape and domestic violence, and there haven't been floods of women bringing such suits. The usual deterrents to suing come into play - and also the usual deterrents to bringing rape charges. Particularly in cases of "acquaintance rape," we're talking a messy matter of her word against his" in a context where consent is, let's face it, plausible. The process - rightly or wrongly - is not imbued with heroism. Unless you have a feminist lawyer whispering in your ear, "You're doing this for All Women," it's just bare facts, and very graphic and intimate facts they must necessarily be.