To mock a mockingbird

Human Events, Jan 28, 2000 by Coulter, Ann

Two black guys in the South accused of rape by a white woman are being railroaded through the justice system on account of a feminist lunacy known as the "Violence Against Women Act." The law was enacted by a Democratic Congress and signed into law by President Clinton during his second year in office.

"Railroaded" is not too strong a word. A grand jury-which, according to Sol Wachtler's famous adage, would indict a ham sandwich-refused to indict the accused black men, Antonio Morrison and James L. Crawford. But Bill Clinton and the Democrat Congress gave their accuser, Christy Brzonkala, another shot at holding the men liable for the rape she alleges, they deny, and a grand jury refused to indict them for (Remember that-- along with Lani Guinier,.the welfare bill, Sister Souljah, etc., etc., etc-the next time Al Gore drones on about Bill Clinton being better for African-Americans than any other President.)

The Violence Against Women Act (also known, discordantly, as "VAWA") provides civil remedies, with civil standards of proof, for an accusation of rape and other violent felonies as defined by state law. States already provide both criminal and civil causes of action for violent crimes, but VAWA incorporates criminal law elements, not state civil law elements, into its civil cause of action.

Tedious Formalities of a Trial

So the defendants in Brzonkala face the prospect of being labeled "rapists," without ever having been granted the tedious formalities of a criminal trial-such as the requirement of an indictment by a grand jury, a right to confront their accuser, or the right to be tried by a jury, and pronounced guilty only upon a finding of guilt beyond a reasonable doubt.

That's odd enough, but not even the oddest thing about VAWA. The truly peculiar aspect of the statute is that VAWA is a federal law.

When Christy Brzonkala and a female friend showed up at the defendants' Virginia Tech dorm room one night at 2 a.m. and began chatting with the two football players about sex, the young men certainly had no reason to think they were about to engage in interstate commerce. But six months later, Brzonkala claimed that, after her friend left the room that night, the two men raped her.

Morrison and Crawford admitted to having sex with Brzonkala, but said it was consensual. The grand jury believed them. Then Brzonkala sued under VAWA.

Lawyers for Morrison and Crawford were in the Supreme Court a week ago arguing that the federal law is unconstitutional. The court (technically, Justice Sandra Day O'Connor-the swing vote on "women's issues") will decide the law's fate this term. The basis for the defendants' constitutional challenge to VAWA is the fact that Congress does not have the power to pass such a law.

The federal tort remedy provided by VAWA applies only to a "crime of violence motivated by gender"-further defining this as "a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an ammus based on the victim's gender." (Though the popular name for the law is the "Violence Against Women Act," the law is gender-neutral-as is required by the Constitution. Of course, constitutional authority to pass the law is also required by the Constitution, but they ignored that.)

Admittedly, it's been awhile since Congress limited itself to the few and narrow powers the Constitution permits it, such as coining money, punishing piracies, and regulating trade with the Indians. But leaping into the traditional criminal law function of the states was virgin territory even for a power-hungry Congress.

You remember the states-those are the little organizations that retained all powers not ceded to the federal govemment back in 1787. The deep constitutional thinkers behind VAWA (Delaware's Democratic Sen. Joe Biden and Bill Clinton) theorized that they had constitutional authority to make rape a federal issue under either the Commerce Clause (which permits Congress to regulate interstate commerce) or Section 5 of the 14th Amendment (which precludes states from denying persons equal protection of the laws).

Beginning with the more risible of these theories, Congress tried to bring VAWA within its Commerce Clause powers by issuing a "finding" that: Fear of violence prevents women from traveling interstate. That is no joke. Even accepting the premise, presumably fear of all violence prevents women from traveling, not just violence motivated by gender animus. But that's not what the law addresses.

The law's purported purpose---to allow women to start traveling interstate again without fear of violence-is unrelated to the private acts it regulates-violence motivated by gender animus alone.

If Ted Bundy conspired with the Boston strangler to create a nationwide syndicate for committing violence against women--based on their gender--then the law would have at least one lone constitutional object, though that might be a bill of attainder, come to think of it. But the law is not limited to such an apocryphal misogynist syndicate. Rather, VAWA is directed at all interpersonal violence, including that conceived and executed within a single state.