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

Georgetown Law Journal, Feb 1998 by McTaggart, Kelli C

The congressional findings document the pervasiveness and seriousness of the problem of gender-based violence. The Senate found that "[v]iolence is the leading cause of injuries to women ages fifteen to forty-four, more common than automobile accidents, muggings, and cancer deaths combined."30 At least 1.1 million reported assaults, including murders, were committed against women in their homes in 1991, and the estimate of unreported crimes of this type is up to three times that amount.31 Although the Act applies to both men and women, the House of Representatives found that ninety-five percent of all domestic violence victims are women.32

The legislative history also documents the effects that such gender-based violence has on interstate commerce. The Senate found that "[g]ender-based crimes and fear of gender-based crimes restricts movement, reduces employment opportunities, increases health expenditures, and reduces consumer spending, all of which affect interstate commerce and the national economy."33 The House found that:

crimes of violence motivated by gender have a substantial adverse effect on interstate commerce, by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved, in interstate commerce .. violence motivated by gender. . . diminish[es] national productivity, increas[es] medical and other costs, and decreas[es] the supply of and demand for interstate products ....34

Given the substantial impact of violence against women on the national economy, federal legislation is both necessary and appropriate to combat the problem.35

In order to state a claim under the VAWA, the victim must show that the act: ( was a crime motivated by gender, and (2) was a crime motivated by gender, and (2) was a crime of violence.36 "Motivated by gender" is defined as "because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender ...."37 A "crime of violence" is defined as "an act or series of acts that would constitute a felony . . . whether or not those acts have actually resulted in criminal charges, prosecution, or conviction ....

The scope of the VAWA is purposely limited. First, it specifically states that its provisions shall not include "random acts of violence unrelated to gender."39 Second, it states that the Act shall not be construed to confer federal jurisdiction over claims regarding divorce, alimony, equitable distribution of marital property, or child custody decrees.40 This latter limitation addressed critics' concerns that the Act could "cause major state-federal jurisdictional problems and disruptions in the processing of domestic relations cases in state courts."4l

The congressional hearings also contained testimony that the VAWA was constitutional under the Commerce Clause, as well as other constitutional provisions.42 Professor Cass Sunstein, when comparing the VAWA to the 1964 Civil Rights Act, stated that it was "probably more plausible to say that sex-related violence, as a class, affects interstate commerce than it is to say that nonviolent sex-related acts of discrimination, as a class, affect interstate commerce-and under Heart of Atlanta Motel, broad congressional power can be found under the latter rationale."43