The Politics of Rape

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The prototypical radical feminist Catherine MacKinnon referred to
the court cases U.S. v. Morrison and Brzonkala v. Morrison as “our
civil war” and she declared that feminists would win. They
lost. In a May 15th ruling on the cases, the United States
Supreme Court struck down a key section of the 1994 Violence Against
Women Act (VAWA). The section allowed an alleged rape victim to
sue her alleged attacker for damages in federal court for violating
her civil rights. By a vote of 5-4, this aspect of the VAWA was
deemed unconstitutional.

Why was U.S. v. Morrison important enough to be called the feminists’
“civil war” and what are the implications of the Supreme
Court ruling?

Background
of U.S. v. Morrison

Congress passed the VAWA as part of the 1994 Omnibus Crime Bill.
It established both a federal right to be “free from crimes
of violence motivated by gender” and a federal remedy for violating
that right: namely, a new tort claim that included both compensatory
and punitive damages. The federal claim was not meant to replace
punishment by state criminal statutes, but to be a supplement.

In 1995, Christy Brzonkala became the first person to sue federally
under the VAWA over an alleged rape that occurred while she was
a student at Virginia Polytechnic Institute. The men accused —
two black football players James Crawford and Tony Morrison — had
been cleared by both a university judicial committee and a criminal
grand jury. Nevertheless, Brzonkala attempted to ‘win’ against them
in federal court. In 1999, the U.S. Court of Appeals for the Fourth
Circuit ruled against her, saying that Congress had exceeded its
constitutional authority in passing the VAWA.

The matter was appealed to the Supreme Court where the National
Organization for Women (NOW) argued on behalf of Brzonkala and the
VAWA. The Supreme Court decision stated the issue under consideration
as being “Did Congress exceed its powers when it gave victims
of sex crimes the right to file civil lawsuits against their attackers?”
Ultimately, the issue under legal debate hinged on the constitutionality
of the VAWA.

Constitutionality

Basically, the NOW Legal Defense and Education Fund made two constitutional
arguments before the Supreme Court in support of the VAWA. The first:
violence against women interferes with interstate trade and, thus,
violates the Commerce Clause by which Congress may regulate commerce
to ensure the free flow of goods and services. The onus of proof
rested on the NOW attorneys to show how gender-motivated violence
interfered with the interstate flow of goods.

Their argument echoed the one used to pass the VAWA. During lengthy
congressional hearings, advocates of the measure had attempted to
quantify the economic damage caused by the violence against women.
The cost inflicted by women’s reduced productivity and mobility
had been estimated at between $5 billion and $10 billion.

In 1999, the Fourth Circuit Appeal had rejected this line of reasoning
on the grounds that extending the Commerce Clause “beyond the
context of statutes regulating economic activities and uphold a
statute regulating noneconomic activity merely because that activity,
in the aggregate, has an attenuated, though real, effect on the
economy, and therefore presumably on interstate commerce, would
be effectively to remove all limits on federal authority, and to
render unto Congress a police power impermissible under our Constitution.”
The Supreme Court agreed.

The second argument for the constitutionality of the VAWA was based
on Section 5 of the 14th Amendment by which Congress
may protect citizens against state violations of their rights. Brzonkala
believed that the state courts had denied her due process because
they were indifferent to violence against women. Indeed, Congress
had originally passed the VAWA largely because of the flawed manner
in which some states handled rape and domestic violence. Brzonkala
wanted relief from the federal system. However, as the Supreme Court
observed, the only proper defendant under the 14th Amendment
would be the state (Virginia) and not a private individual (Morrison).
Clearly, U.S. v. Morrison sought federal remedy against an individual,
not a state.

The
FEMINIST AGENDA

Political observers might well be astonished to hear PC feminists
appealing to a Constitution that they generally vilify as a “white
male document” drafted by dead slave-owners. It was an argument
of convenience and part of a well-established campaign to use civil
litigation as a weapon for against ‘gender-motivated’ violence.
The VAWA was an attempt to strengthened civil procedure as a gender
weapon by allowing federal remedies should state ones prove unsatisfactory.

Civil courts afford at least two advantages. First, they allow feminists
to address perceived abuses that fall outside criminal statute.
Thus, ‘abusive’ men who are not criminals can be punished through
monetary awards. For example, sexual harassment laws have their
roots in Title VII, the fair employment provision of the Civil Rights
Act of 1964, which provides civil penalties. In the early ’80s,
when radical feminists waged war on the porn industry, they did
so through local ordinances that declared pornography to be a form
of discrimination on the basis of sex. Women who had posed for periodicals
like Playboy would have been able to sue in civil court for damages.
They could claim that their civil rights had been violated, irrespective
of whether they had fully and knowingly consented to participate
in the pornography.

Civil courts offer the second advantage of being far less stringent
than criminal ones. This is important for crimes such as rape, which
are notoriously difficult to prove. In a criminal court, the alleged
rape victim must sustain her case beyond a “reasonable doubt,”
which is often defined as 99 percent certainty. Civil court requires
only a preponderance of the evidence, which can mean as little as
51 percent certainty. Moreover, in civil court, the rules of evidence
are more relaxed and women are not subjected to severe cross-examination.
Rape cases that have been dismissed by a criminal court may well
succeed in a civil one.

In the instance of Brzonkala, the defendants did not even reach
criminal court: a Grand Jury found insufficient evidence to indict.
Nevertheless, the VAWA allowed her to bring civil suit against them.
In short, the VAWA allows women to pursue cases that are too weak
to be admitted into criminal court. The gender violence need not
even be reported to the police in order to be pursued in federal
court.

Ominously, the VAWA does not clearly delineate what constitutes
“gender-motivated violence” thus allowing the term to
cover conceivably any situation of abuse that involved gender hostility.
This is promising for feminists who routinely consider even words
and images to be a form of gender violence. Such arguments led Supreme
Court Justice Sandra Day O’Connor to state, “Your approach
…would justify a federal remedy for alimony or child support.”
Arguably, that is precisely what radical feminists wanted and hoped
to achieve through the VAWA.

Radical feminists want a war on “gender violence” similar
to the “War on Drugs” — that is, zero tolerance backed by
maximum force. To this end, the VAWA attempted to create a special
class of crime defined by ideology. A major tenet of radical feminism
is that violence against women is part of a political campaign that
men as a class inflict upon women as a class. The fact that real
violence against women — e.g. murder, battery, rape — has been steady
and steeply declining since 1990 in no way impacts their passionate
cry for harsher enforcement. Facts are often irrelevant to ideology.

The Supreme Court decision dealt an unexpected blow to this feminist
agenda. Unexpected because, on mere statistical grounds, the Supreme
Court tends to overturn rather than to uphold earlier rulings on
the cases it hears. Moreover, Justice O’Connor has a strong track
record of ruling in favor of ‘women’s rights,’ yet she voted against
the VAWA.

No wonder NOW President Patricia Ireland felt betrayed. She declared,
“The Supreme Court has said not JUST that women’s right to
be free from violence is not protected by the U.S. Constitution
but that the Constitution actually prohibits Congress from providing
such protection. I’ve never seen a more compelling argument for
a constitutional amendment guaranteeing women’s equality.”

NOW further proclaimed, “The Rehnquist Court’s ruling in U.S.
v. Morrison is a setback for women’s rights and a triumph for those
that seek to roll back 30 years of federal civil rights law under
the guise of states’ rights…. For them, ending violence against
women takes a back seat to preserving states’ rights to deal with
violence — or not deal with it at all.”

Impact
of U.S. v. Morrison

The case was a victory for those who wish to limit federal power.
In rejecting the VAWA, the U.S. Court of Appeals for the Fourth
Circuit stated, “Such a statute…cannot be reconciled with
the principles of limited federal government upon which this nation
is founded.” It objected to turning local offenses into federal
crimes. As such, U.S. v. Morrison constitutes a stop sign in the
recent political drive toward nationalizing certain selected crimes.
U.S. v. Morrison is a return to fundamental Constitutional considerations
and to the rule of law. William Mellor, president of the Institute
for Justice, explained that the decision addressed “whether
or not the Congress operates under enumerated and, therefore, limited
powers; or whether it has authority to basically regulate any activity
it sees fit.”

U.S. v. Morrison is also a red flag for the importance of the upcoming
elections. The 5 to 4 Supreme Court vote was typical of many recent
decisions: that is, the ruling had the narrowest of majorities.
Conceivably, the next president could appoint as many as three new
Supreme Court justices. Will be appointments be made by Gore or
Bush?

But the question that will be most loudly debated is the impact
of the decision upon women. Some have argued that the VAWA’s civil-rights
remedy would not have benefited many women anyway. In cases of rape,
for instance, the perpetrator rarely has real assets that can be
attached in a judgement. Arguably, the real benefactors of the VAWA
would have been those women who are able to bring ‘deep pocket’
defendants to court: for example, well-to-do women in divorce proceedings
who use the VAWA as leverage, or women who have complaints against
entities such as universities.

Unless the application of the VAWA were to be massively expanded
to include such issues as child support and alimony — an expansion
that may well have been envisioned by its advocates — the VAWA’s greatest
victory may be as an ideological symbol. It symbolized and institutionalized
the political belief that women must receive special protection
from men. When confronted with violence and its redress, the VAWA
said that women are not to be treated as individuals but to be accorded
privileges as the members of a class. Curt Levey, an attorney for
the Center for Individual Rights which provided legal representation
for Anthony Morrison, commented, “although today’s decision
will be viewed as a historic setback for feminist advocacy groups,
it is a victory for American women, whose safety is best preserved
by strengthening local law enforcement, rather than by relying on
federal bureaucrats.”

The Supreme Court’s decision is not a blow to women’s equality and
safety. It is a rout of radical feminism, which promotes neither.

May
25, 2000

Wendy
McElroy is author of The
Reasonable Woman
.

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