The Politics of Rape

by Wendy McElroy

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 15^th 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 14^th 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 14^th 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.