Reconceptualizing VAWA's "Animus" for Rape in States' Emerging Post-VAWA Civil Rights Legislation

Bonner, J. Rebekka S., The Yale Law Journal

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.

--U.S. Senator Orrin Hatch (R-Utah), VAWA cosponsor (1)

Theoretically, I guess, a rape could take place that was not driven by gender animus.... But I can't think of what it would be.

--U.S. Senator Joseph R. Biden, Jr. (D-Del.), VAWA chief sponsor (2)

I. INTRODUCTION

On September 13, 1994, President Clinton signed into law a major crime bill that included a powerful new federal weapon to combat civil rights abuses against women. This crime bill contained the Violence Against Women Act (VAWA), (3) a historic measure taken by Congress to address the national problem of violence against women. (4)

The Act (5) created the first civil rights remedy aimed at violent gender-based discrimination against female citizens. (6) The provision permitted victims of gender-motivated violence to bring a civil rights suit in federal court for compensatory or punitive damages, declaratory or injunctive relief, and legal costs: Its aim was to replace a patchwork of inconsistent, inadequate, and underenforced state civil and criminal laws with a consistent and uniform national standard under which to evaluate and prosecute such civil rights violations. (7) Equally important was the symbolic value of recognizing the political aspects of gender-based crimes of violence: More than random violence, this type of bias crime served to reinforce discriminatory social hierarchies, thereby harming targeted citizens' civil rights. For the first time in our nation's history, victims of these crimes would not have to rely on local criminal prosecutions for relief; instead, they could sue and seek significant damages in federal court on their own behalf. (8)

The VAWA civil rights remedy defined a "crime of violence motivated by gender" as a felony-grade "crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender." (9) The key animus requirement was added to satisfy early opponents of the bill, who feared that [section] 13981 might impinge on traditional areas of state legislative authority and might be used to provide relief in federal court for women who had been victims of mere "random acts of violence unrelated to gender" that did not manifest invidiously discriminatory intent. (10)

In May 2000, the Supreme Court reviewed a challenge to VAWA's constitutional legitimacy and, in United States v. Morrison, struck down [section] 13981 as violative of the Constitution's federalism principles. (11) Yet soon after the Supreme Court's initial grant of certiorari in Morrison in 1999, a handful of individual states anticipated the Court's final decision and responded with the introduction of their own versions of VAWA civil rights legislation, closely tracking the language of the doomed federal VAWA. (12) After the grant of certiorari, the New York State Senate's Committee on Rules marked up a new civil rights law. (13) Current versions of this bill establish a cause of action covering acts committed "because of gender, or on the basis of gender, or on the basis of gender and due at least in part to an animus based on the victim's gender." (14) On February 4, 2000, the Illinois state legislature introduced the Gender Violence Act, which would provide a civil remedy for those who have suffered from "sex discrimination" in the form of gender-related violence. (15) On January 29, 2001, the Arizona state legislature introduced a bill creating a private cause of action for victims of "act[s] of violence motivated by gender" that were "due in whole or in any part to an animus based on the victim's gender." (16) Now that the federal VAWA civil rights remedy has been declared unconstitutional, it is likely that other states will join Arizona, Illinois, and New York in introducing similar legislation creating a state-based civil right to be free from gender-motivated violence. (17) Unfortunately, however, these states now find themselves caught in a political dilemma: The very ambiguity of an animus term, the inclusion of which makes passage of these state VAWAs possible, could eventually result in an interpretive struggle in the courts similar to the struggle in the federal courts after passage of the federal VAWA.

The absence of federalism concerns at the state level would appear to make it easier for state legislators to add creative alternative definitions of animus to these statutes, or even to drop this difficult term from their drafts altogether. Yet political realities seem to dictate that animus be included in any successful state bill. Indeed, the Arizona and New York statutes are virtual clones of the federal VAWA, and these legislatures have embraced the coalition-building pragmatism in the federal VAWA's textual ambiguities to shelve political arguments concerning the bill's scope and legislative reach. (18) These bills are proceeding steadily through hearings and markups. (At the same time, Illinois's most current draft drops the original animus language of the federal VAWA and contains alternative language to broaden the scope of the bill. (19) These moves have led to political problems in getting the Illinois VAWA bill passed, and that legislation now appears to be stalled. (20)) The likely adoption of animus language in state-level VAWA statutes ensures that the struggle over the definition of animus has not ended with the death of the federal VAWA.

This Note examines the constructions of animus available from existing jurisprudential and legislative sources in an effort to define an innovative legal meaning and role for this undefined statutory term within states' new VAWA legislation. The purpose of the Note is twofold: first, to analyze available sources of meanings to discover current constructions of the meaning of animus; and second, to engage in a reconstruction of these meanings in order to develop the proper future definition for this element within the context of the post-VAWA civil rights remedies now emerging in the wake of the federal remedy's demise.

In Part II, I turn to the heated congressional debate over the federal VAWA in order to examine the competing notions of animus that vied for adoption in the new Act but that ultimately produced the politically necessary cloud of ambiguity surrounding this statutory requirement. Parts III-V examine the scope and limitations of current constructions of animus under three jurisprudential traditions--civil rights law, Title VII antidiscrimination case law, and hate crimes legislation--each intended by VAWA's drafters to be a source of guidance for federal courts' interpretations of VAWA's animus requirement. As we shall see, each of the existing legal categories had something to offer to (and something to take away from) the original goals and eventual scope of the federal VAWA civil rights remedy. In Part VI, I examine the body of available federal VAWA jurisprudence for additional insights into potential animus meanings.

Finally, Part VII reconceptualizes the role of animus under the new state versions of VAWA, considering what would be the most appropriate meaning for this statutory term given political realities and the original vision of the law. Animus is the linchpin term that will determine the ultimate scope and effectiveness of the states' future VAWA remedies in realizing the federal law's promise for equal citizenship within a society free of gender-based violence. As seen at the federal level, unguided courts chose to read animus restrictively or inconsistently. Continuing ambiguity of animus promises to limit severely the scope and effectiveness of the state VAWA statutes.

As courts applied the federal VAWA in individual cases, inconsistent jurisprudential treatment of rape claims resulted in some courts holding that some rapes satisfied the animus element while other rapes were denied relief. The Note reveals that this inconsistent jurisprudential treatment of rape claims at the federal level is not analytically defensible. All rapes necessarily contain an inherent gender animus; the minimum level of civil rights coverage for a truly transformative state VAWA statute therefore requires relief for all claims involving gender-motivated rape. To that end, I offer a definition of animus that would make these new state VAWAs responsive to all future claimants who have survived a rape. Although a few states do provide civil remedies for the specific crime of rape, these are often underenforced, in part due to their secondary status as the "damages counterpart law" to an existing and primary criminal rape statute. Even where these civil rape statutes are applied, they fail to capture fully the harm the victim experiences, and suffer from underinclusion in failing to address a broad range of nonrape violence that takes place due to victims' gender. Civil rape statutes fail to recognize the political harms caused by rape.

For these reasons, states seeking to create societies marked by gender equality among their citizens must provide civil rights remedies that recognize that gender-motivated violence is a civil rights issue as well as a criminal one. By explicit legislative language or through judicially discoverable expressions of legislative intent, states should adopt a construction of animus as "[a]n attitude that informs one's actions" or one's "disposition" (21) in order to ensure that these fledgling civil rights remedies most effectively advance the goal of a society free from violent acts of discrimination within existing political realities.

II. LEGISLATIVE INTENT-BASED CONSTRUCTIONS OF ANIMUS UNDER VAWA

VAWA took many different forms in both the House and the Senate: All tolled, there were at least fourteen versions of VAWA, with additional changes made during final consideration of the bill on the floor of the Senate. Senate Bill 2754, the first version of VAWA, was introduced in the Senate by Senator Joseph Biden on June 19, 1990. As originally drafted, Title III of Senate Bill 2754 created a new private cause of action for individual victims of gender-motivated violence, with a "crime of violence motivated by the victim's gender" defined as "any rape, sexual assault, or abusive sexual contact motivated by gender-based animus." (22) At first, Title III covered only sex-related crimes; however, new language incorporated before markup broadened the remedy to include all crimes of violence motivated by gender, not just an enumerated list of sex-related violence. (23) This version no longer included an "animus" requirement. The new VAWA, Senate Bill 15, was reintroduced in 1991. (24)

Soon, however, opposition to the newly expanded VAWA civil rights remedy began to grow. On January 31, 1991, two weeks after the bill was introduced in the 102d Congress, the Conference of Chief Justices of State Supreme Courts voted to oppose Senate Bill 15's civil rights remedy. (25) Two months later, Chief Justice Rehnquist warned that "the bill's new private fight of action ... could involve the federal courts in a whole host of domestic relations disputes" and flood the already overburdened federal judiciary with new claims. (26)

In May 1993, Senator Orrin Hatch (R-Utah), then the ranking minority member of the Judiciary Committee, agreed with the then-Chairman of the Judiciary Committee, Senator Joseph Biden (D-Del.), to address these and other concerns of VAWA's opponents by negotiating a mutually acceptable draft VAWA legislation. At the time of the agreement, there also remained a significant risk that the bill would be stalled if it were turned into a legislative vehicle for unrelated, deeply controversial "poison pill" amendments. (27) Anticipating that bipartisan support would forestall attachment of hostile floor amendments, Senators Biden and Hatch agreed to draft new compromise VAWA language based on Biden's original and on several provisions of Senate Bill 8, Hatch's domestic violence bill. (28)

Still, opponents remained concerned that without further clarifying language, courts and activist judges would construe the remedy broadly to the point that "every crime against a woman" would be considered a "civil rights violation." (29) As drafted in Senate Bill 11 and the final Senate Bill 15, the substitute language required that the crime be sufficiently substantial to be eligible for federal felony-level prosecution. In addition, Biden and Hatch's agreement led to compromise language that would both clarify the kind of proof required and address critics' arguments that every crime against a woman would become a civil rights violation. The new language in Senate Bill 11 and Senate Bill 15 required that the acts be "committed because of gender or on the basis of gender" but added the requirement that the acts must be "due, at least in part, to an animus based on the victim's gender." (30)

This political compromise among members of the judiciary, as well as between Democrats and Republicans in Congress, on VAWA's statutory animus language did not appear to be significantly different from that contained in the original 1990 Senate draft, Senate Bill 2354, which had originally required that the crime be "motivated by gender-based animus." In fact, however, the reformulation marked the culmination of a four-year tug of war--a middle-ground position between two very different definitions and standards of animus proof that previously had been espoused by the two political parties.

A. Conservatives: Animus as "Malice" or "Hatred"

The first position, favored by Republicans, was the "malice/animosity" standard. (31) Under this approach, VAWA would have contained a standard of animus proof requiring that the defendant "hated" all members of the opposite gender or consciously intended to use violence as an expression and message of gender hatred. Had this standard prevailed, it would have created a higher burden on VAWA plaintiffs than that required of plaintiffs in other civil rights or hate crimes litigation: Section 1985(3) does not require a showing of "malicious," rather than benign, discrimination; Title VII does not require the plaintiff to prove that the defendant "hated" all women to show that the defendant sexually harassed an individual plaintiff; and hate crime laws do not require a showing of hatred of all members of the victim class. (32) Indeed, the conservatives' proposed definition for VAWA's animus requirement threatened to impose the most onerous and restrictive standard of proof in all of civil rights law.

B. Liberals: Animus as Reflected in "Disparate Impact"

The second position, enjoying informal liberal support, was the "disparate impact" standard embodied in Title VII law, which the drafters had indicated should be one source of interpretive guidance for courts evaluating future VAWA claims. (33) Under such a standard, a VAWA plaintiff would only need to show that the particular act of violence had resulted in a disproportionately greater impact on the plaintiff's gender class, with no inquiry into the motivation of the defendant. Opponents of the bill seized the possibility of this interpretation to charge that the scope of [section] 13981 would become too broad, (34) covering all kinds of violence as long as it had a disparate impact on women. However, the drafters of the VAWA civil rights remedy had long appeared to intend an additional requirement--inquiry into the defendant's motivation--that would have seemed to preclude use of the animus term as a proxy for deployment of a statistics-based disproportionate impact standard. (35)

C. Political Compromise: Animus as "Purpose" or "Animating Force"

The compromise meaning given to the animus element of the federal VAWA ultimately settled around a definition akin to "purpose" or "animating force." Under these interpretations, animus would still focus the inquiry on the defendant's decision to commit the crime. But while the standard raised the burden of proof above a showing of disparate impact, it defined that standard well below terms of "hatred" or "malice."

It is worth noting that with this new intermediate animus standard, the possibility still existed that a VAWA defendant need not have been conscious of the motive of bias in committing the violence: The civil rights remedy could have been read to permit the use of circumstantial evidence of implicit bias motivation rather than requiring explicit indicia of intent. Under this potential interpretation, a VAWA plaintiff might only have to show that the crime or the victim was purposely chosen because of the victim's gender. This would therefore seem to provide redress for any violent act used to enforce gender roles and that would prevent (or sanction) the victim's exercise of her civil rights and liberties. Indeed, all rapes may be seen as a weapon of degradation and subjugation, and the new state-based VAWA remedies now have an opportunity to select an animus meaning commensurate with the recognition of the political ends effectuated by means of rape. However, in the absence of clear legislative intent, interpretive language, and political consensus as to the meaning of animus, such an expansive view of animus would not likely be adopted widely in the federal courts.

D. The Resulting Ambiguity of Animus

As noted previously, VAWA's requirement of animus was necessary to respond to federalism concerns that the new federal legislation not preempt, but merely supplement, the traditionally recognized prerogative of individual states to legislate within the areas of tort and criminal law. (36) The animus element operated to ensure that random acts of violence could not satisfy the gender-motive requirement and therefore would not support a successful civil cause of action under the statute. (37) By adding the requirement that the violence be motivated by discriminatory "animus based, in part, on the victim's gender," Senators Biden and Hatch sought to reassure opponents that [section] 13981 would only reach violent discriminatory conduct that transcended state tort and criminal law. (38)

Yet the limits imposed by the filter term were left vague by VAWA's pragmatic proponents, who had little incentive to clarify the meaning of animus in the extremely contentious political climate surrounding the legislative debate. Intentionally patterned after language used in prior civil rights legislation, (39) this language allowed for the political compromises necessary to pass the bill. At the same time, however, the indeterminate and amorphous concept of gender animus ensured that there would be future difficulty in determining the meaning of this element of VAWA's civil rights remedy. (40) The lack of concrete meaning left little guidance for the federal courts, which struggled mightily, both as a semantic matter and in the face of perceived Commerce Clause problems, to apply the ambiguous concept of animus with only a handful of VAWA [section] 13981 precedents and imperfectly analogous civil fights laws to guide them.

In short, the compromise's drafters agreed to imbue …

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Publication information: Article title: Reconceptualizing VAWA's "Animus" for Rape in States' Emerging Post-VAWA Civil Rights Legislation. Contributors: Bonner, J. Rebekka S. - Author. Journal title: The Yale Law Journal. Volume: 111. Issue: 6 Publication date: April 2002. Page number: 1417+. © 2009 Yale University, School of Law. COPYRIGHT 2002 Gale Group.

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