In Defense of the Civil Rights Remedy of the Violence against Women Act
Shargel, Johanna R., The Yale Law Journal
Because of gender-based violence, American women and girls are
relegated to a form of second-class citizenship.... When half of our
citizens are not safe at home or on the streets because of their sex,
our entire society is diminished.
--Sally Goldfarb, NOW Legal Defense and Education Fund(1)
Violence currently poses the most significant threat to women's rights as equal citizens. The Senate Judiciary Committee, after reviewing a wide array of studies on violence against women in the United States, reported that "[v]iolence is the leading cause of injuries to women ages 15 to 44, more common than automobile accidents, muggings, and cancer deaths combined."(2) Violence against women occurs with disturbing frequency and results in severe, often fatal, injuries. A recent Department of Justice survey reported that, in total, women aged twelve and older annually sustain almost five million violent victimizations;(3) approximately five hundred thousand of these victimizations are rapes and sexual assaults.(4) Rape in America,(5) a comprehensive national study, found that one out of every eight adult women has been the victim of forcible rape at some point in her lifetime.(6)
Until recently, women victimized by the reality or threat of violence were left without an effective remedy, and therefore denied their right to full and equal citizenship. First, the disabling physical and psychological effects of violence have kept women from participating as commercial actors, and their absence from the nation's marketplace has had a substantial effect on interstate commerce. Women have, in Goldfarb's words, been "relegated to a form of second-class citizenship" because violence has prevented them from contributing to the national economy on an equal footing with men.(7) Women have also been "relegated to a form of second-class citizenship" because state criminal justice systems have frequently denied female victims of violence their right to equal protection of the laws.(8) Because both the restrictive letter and the biased implementation of state laws have failed to keep women "safe at home or on the streets," women continually have been deprived of their full citizenship rights.
In September 1994, Congress passed the Violence Against Women Act (VAWA),(9) drafted in response to what its chief legislative sponsor, Senator Joseph R. Biden, called a "national tragedy."(10) The law evolved gradually over a four-year period during which Congress heard testimony from women's rights and civil rights organizations, state attorneys general, law professors, law enforcement officials, physicians, and victims of violence. What emerged from this expert testimony is a comprehensive statute containing a wide range of provisions designed to address the pressing problem of violence against women.
For example, to improve overall safety for women, the VAWA increases penalties for federal rape convictions and provides state grants to support law enforcement and educational efforts aimed at reducing violent crime against women.(11) With respect to domestic violence, the Act criminalizes interstate domestic violence,(12) and ensures that a protective order issued in one state is given "full faith and credit" in all other states.(13) In an effort to achieve equal justice for women in the courts, the Act authorizes grants to improve the training of judges who deal with issues involving domestic violence and also encourages circuit judicial councils to conduct gender bias studies.(14)
Without question, the most controversial provision of the VAWA is the section entitled "Civil Rights for Women."(15) This provision establishes a federal civil rights cause of action for victims of violent crimes "motivated by gender."(16) The Civil Rights Remedy defines a violent crime as any act that would be a federal or state felony, whether or not the offense has actually resulted in criminal charges, prosecution, or conviction. …