VAWA is valid and needed

BY ANDREW G. CELLI JR. AND JENNIFER K. BROWN, SPECIAL TO THE NATIONAL LAW JOURNAL; Mr. Celli is chief of the Civil Rights Bureau, and Ms. Brown is director of the Reproductive Rights Unit, of the Office of the New York State Attorney General.

Christy Brzonkala's story is a horrific one: repeatedly raped by two college football players during her first semester at Virginia Tech; verbally menaced by one attacker and stigmatized by crude campus gossip; driven, ultimately, to a suicide attempt that mercifully failed.

The university's "response" to her assault? It voted to defer her primary attacker's suspension until after his graduation, and to maintain his full athletic scholarship in the meantime.

Devastated by her experience, denied even a semblance of institutional justice, Ms. Brzonkala left Virginia Tech.

In 1995, she filed a federal civil rights case against the two rapists. Her primary claim arose under the 1994 Violence Against Women Act, which permits victims of gender-motivated violence to sue their attackers civilly for compensatory and punitive damages, as well as for declaratory and injunctive relief. The federal cause of action -- one element of a statutory framework aimed at curbing gender-based violence -- does not require that the conduct underlying the claim be tied directly to interstate commerce.

As the Supreme Court prepares to hear argument in the case, the central question is whether the commerce clause empowers Congress to create a civil remedy for victims of gender-motivated violence. In a 7-4 en banc decision that begins, extravagantly, with the phrase "We, the people," the U.S. Court of Appeals for the 4th Circuit struck down the law's civil rights remedy, holding that it violates principles of state sovereignty and limited federal power.

In an amicus brief filed last month, a bipartisan coalition of 37 state and territorial attorneys general disagreed, urging the Supreme Court to uphold the act as a proper exercise of congressional power.

The Violence Against Women Act's civil remedy is civil rights legislation of the classic sort: motivated, at its core, by documented bias and discrimination; justified, in whole, by the impact such discrimination has on interstate commerce and the national economy; and reflective of the reality that access to the federal courts can provide a measure of justice where, in the past, there was none.

Long-standing failure

Congress enacted the law in part to respond to a well-documented failure on the part of many state justice systems to treat victims of rape, domestic abuse and other gender-motivated violence fairly and with dignity. State task force reports from around the nation arrived at the conclusion that state justice systems regularly treat victims of gender-based violence with a lethal admixture of indifference, suspicion and hostility.

In some parts of the country, it was documented that police officers -- imbued with the notion that domestic violence is a "family matter" rather than a crime -- refused to arrest domestic batterers. Elsewhere, "blame-the-victim" stereotyping -- such as the pernicious belief that rape victims provoke their attackers by wearing revealing clothes -- formed the basis for judicial decision-making. Discriminatory procedural and evidentiary rules -- such as interspousal immunity in rape cases -- remained on the books.

The need for federal intervention was clear. The question became whether the federal government had the power. After four years of investigation and public hearings, Congress identified the undeniable impact that gender-motivated violence has on interstate commerce and the national economy.

In a society in which women are half the adult population and more than 50% of the work force, the victimization of women deals a severe blow to the nation's economic health. Violence and the well-founded fear of violence limit women's education and job opportunities and restrict their travel and personal choices, curtailing their participation in economic life. Employers pay for increased absenteeism, lost productivity and higher turnover, while police, social services and health care agencies -- all of which must respond to the violence -- bear the brunt of billions in costs.

Given suchsupport for the law from the majority of state attorneys general, the notion that federal courts must protect states from congressional encroachment is ironic at best.

The Violence Against Women Act is that rare case in which, instead of competing for credit or blaming one another, the states and the federal government have joined hands to identify, understand and begin to address a truly national problem. Our hope is that the Supreme Court sees it the same way.