Why, when the issue is violence against women, do some people talk about sex? While some violence directed at women is sexualized, calling it "sex" softens the brutality, implicates the victim as possibly an inciter or a participant, and offers the perpetrator the justification of lust.
Think also about the phrase "domestic violence." True, a good deal of violence against women does occur inside houses, but the coziness assumed to reside within the "domestic" stands in contrast to the cruelty of violence imposed by someone so close.
Linking violence against women to sex and domestic life illustrates more than a problem of rhetoric; it demonstrates the ongoing effects of laws that have treated women unequally. For centuries, state laws wove notions of sex and domesticity into a fabric of toleration of violence against women. And now that federal law is trying to protect women from the residue of that discrimination, objectors are arguing that federal remedies are unconstitutional--because violence against women is about sex and the home, which they say are state, not federal, concerns.
Two centuries ago, husbands had the prerogative of beating their wives. One century ago, state courts constructed rules about the sanctity of the home, thereby justifying under a rubric of privacy a reluctance to interfere when men beat or raped their wives. Indeed, up until about 10 years ago, under the United States military code, a man could not be convicted of the rape of his wife because the code defined rape as "the act of sexual intercourse with a female not his wife, by force and without her permission."
In short, the law decided which harms against women were tolerable. And even when those exemptions no longer exist, police, prosecutors, juries, and judges continue to be influenced by the longstanding assumption that women do not have rights of bodily integrity equal to those of men.
But law is not static. Particularly when civil rights are at issue, Congress has often enabled groups that have suffered discrimination under state laws to turn to federal courts for protection.
Recall that after the Civil War, some states did not allow African Americans to marry. When Congress considered federal remedies, some opponents responded that marriage was a matter of "domestic relations"--outside the purview of Congress. Congress concluded otherwise; federal civil rights law guaranteed newly freed slaves the right to marry.
In the early part of the twentieth century, labor's opponents argued that employment relations were personal relations, a matter for state, not federal, governance; but Congress began to pass labor laws, including legislation protecting the right of workers to unionize.
These federal laws now seem unremarkable. Yet in a case currently before the U.S. Supreme Court, opponents of the Violence Against Women Act (VAWA), passed by Congress in 1994, are once again raising the familiar themes of personal relations and states' rights.
Congress enacted VAWA after four years of hearings and many revisions; it crafted a multifaceted statute that provides substantial funding to state, tribal, and local programs to combat violence against women. VAWA also authorizes federal criminal prosecutions in limited circumstances, for example, if a person crosses state lines to harm an intimate partner already protected by a permanent state court order. And VAWA includes a new civil rights remedy for victims of gender-based violence akin to the remedy already on the books for race discrimination: VAWA lets plaintiffs sue assailants for damages, in either state or federal court, upon proof that a crime of violence was motivated by "animus based on gender."
Now at issue before the Supreme Court is the constitutionality of this one aspect of VAWA, the civil remedy. Thus far, most of the federal judges who have considered it have upheld it. However, one federal appellate court, the Fourth Circuit, thought otherwise, holding that neither the Constitution's Commerce Clause nor the 14th Amendment enabled Congress to create federal court remedies for victims of gender-based violence. …