Violence Against Women Act: Recognizing A Federal Civil Right to be Free from Violence, The

Georgetown Law Journal, Feb 1998 by McTaggart, Kelli C

"Every six minutes, a woman is forcibly raped."1 - Sally Goldfarb

"We're not opening the federal doors to all gender-motivated crimes. Say you have a man who believes a woman is attractive. He feels encouraged by her and he's so motivated by that encouragement that he rips her clothes off and has sex with her against her will. Now let's say you have another man who grabs a woman off some lonely road and in the process of raping her says words like, `You're wearing a skirt! You're a woman! I hate women! I'm going to show you, you woman!' Now, the first one's terrible. But the other's much worse. 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." -Senator Orrin Hatch2

INTRODUCTION When Congress passed the Civil Rights Act of 1964,3 it was an historic action recognizing the federal civil rights of all citizens. Although driven primarily by concerns of race discrimination,4 Title VII, as it is also known, was also the first significant piece of federal legislation protecting women's civil rights. These Title VII protections were extended in following years, by Congress and the courts, to reach other areas of importance to women, including pregnancy discriminations and sexual harassment in the workplace.6

Thirty years later, Congress passed another historic civil rights law-the Violence Against Women Act (VAWA or the Act).7 The VAWA attempts to combat the tragic and widespread problem of violence against women in America.8 The Act came after years of congressional hearings, and the economic and societal impact of violence against women on this country is well documented in the congressional findings.9

Part of this legislation, however, is in danger of being struck down as unconstitutional. Specifically, the civil remedy provision of the VAWA,mO which provides that victims of gender-based violence may sue their attackers for damages, has been held by one court to be an unconstitutional exercise of Congress's Commerce Clause" power.l2 Like the 1964 Civil Rights Act, the VAWA was passed under the Commerce Clause power.l3 The reach of that power, however, is currently under debate after the Supreme Court's decision in United States v. Lopez.l4 Lopez was the first Supreme Court decision in almost sixty years to strike down a congressional act as exceeding the scope of Congress's Commerce Clause power.l5 Although the ultimate significance of Lopez has been extensively debated, and federal courts have generally been reluctant to use Lopez to strike down federal legislation,16 its holding is nonetheless significant and some district courts have relied on Lopez to strike down various federal statutes.17

This note examines the constitutionality of the civil remedy provision of the VAWA under the Commerce Clause.ls Part I introduces the VAWA and its various provisions, and will examine in detail the civil remedy provision of the VAWA. Part II analyzes the constitutional challenges under the Commerce Clause.'9 Part II also fleshes out the Lopez decision and examines how various district courts have interpreted Lopez to either uphold or strike down the VAWA.20 Although Lopez creates potential difficulties for statutes enacted pursuant to Congress's Commerce Clause power, this note argues that upholding the VAWA is consistent with the underlying rationale of Lopez and that the Court's Commerce Clause jurisprudence should continue to focus on the regulated activity's effects rather than its nature.

In addition to the constitutional hurdle, a separate but related barrier may hinder the VAWA's success. Part III addresses the resistance of the federal judiciary to hear claims related to family law, and argues that the VAWA is improperly considered a family law issue. Operating under this improper assumption, a court could strike the VAWA down for the wrong reasons. Part III goes on to argue that what the Commerce Clause and federalism debates are really about in the VAWA is the reinforcement of a public/private dichotomy and the relegation of "family law" issues to the private realm.21 Finally, Part IV briefly argues that, if courts analyze the VAWA and other federal statutes related to women's interests22 for their effect on commerce and not their relationshipreal or perceived-to family law, the debate over the family law issue can be avoided and the constitutionally correct result will be obtained. I. THE VIOLENCE AGAINST WOMEN ACT: FINDINGS AND PROVISIONS

In 1994, after four years of congressional hearings, Congress passed the Violence Against Women Act. The VAWA contains both a criminal and a civil provision.23 The criminal provision makes it a federal crime to cross state lines to commit an intentional crime of violence against a spouse or intimate partner.24 The criminal provision also makes it a federal crime to cross state lines and violate a protective order that involves protection against threats of violence, repeated harassment, or bodily injury.25 Federal courts have upheld the criminal provision as constitutional under the Commerce Clause.26 It is the civil remedy provision, however, that has been the source of considerable controversy. The civil remedy provision has been considered by several federal district courts, struck down by one, and may be the first federal statute invalidated by a federal court of appeals relying on Lopez.27 The civil remedy provision of the VAWA creates a civil right to "be free from crimes of violence motivated by gender"28 and provides a federal civil rights cause of action for victims of crimes of violence motivated by gender.29