Thursday, October 2, 2008

The Violence Against Women Act

With all the talk about Palin's new Couric videos, we're all overlooking something else: what Joe Biden said. I thought Biden's discussion of Roe v. Wade was decent, but I particularly liked his discussion of US v. Morrison, where the Supreme Court struck down the Violence Against Women Act, put forth by Biden himself. His description of the case is a good distillation. Here's the video: (Treat yourself, don't even watch the Palin part.)

The Morrison decision was in 2000, and I thought it might be a good time to talk a little bit about it. The VAWA was written by Biden and aimed at giving women who were the victims of violence a forum to bring a civil suit against their attackers. The case in Morrison was brought by a Virginia Tech freshman who charged two football players with rape. Even though one admitted to having sex after she'd said no, the school did nothing to punish them and a grand jury did not bring charges. This was exactly the kind of case VAWA was created for, when the system at large had failed women.

Morrison struck down The Violence Against Women Act (or VAWA) based on the Commerce Clause. Generally, the powers of the federal government and congress are limited to those enumerated in the Constitution, with the remaining powers left to the states. VAWA relied on the Commerce Clause to gain federal traction, which may sound a little crazy. But Biden had mountains of hours of testimony on the effects of sexual assault on interstate commerce. This was very important. Two previous Supreme Court decisions came into play. One said aggregate effects could be considered to qualify for the Commerce Clause. The second, decided only a few years before Morrison, gave a balancing test with four factors. Two of those four were addressed in VAWA: congressional findings of an economic link, and the strength of the link itself. While the Court recognized that congressional hearings took place, they hardly gave it any weight and instead gave their emphasis to the other factors.

VAWA still exists in a changed form. The federal court remedy is gone, but VAWA still provides funding to fight crime against women. The Morrison case is a staple of Constitutional Law classes all over the country. A lot of people think the Court got it right, that if you can link rape to commerce you can link anything to commerce. Others think that it shows the weaknesses of a Court that uses balancing tests where you weigh different factors. A lot of people thought the test established previously should have made VAWA a close call, but it also gives the ability to pick which ever factors you think are more relevant and ignore others. One notable thing: 36 states filed amicus briefs in support of VAWA. While Morrison struck down VAWA as taking power away from the states, the states themselves acknowledged that they wanted the help.

I know Sarah Palin has got all the women in the world talking. But Biden's sure done his part, and I love that VAWA is still on the top of his mind.


FeministGal said...

I apologize in advance for not having something of substance to add here but i do want to say what the f is a "culture of life?" I think life is pretty cool... i don't go around killing things... (she does though, remember, she HUNTS!!! and tells you about it every chance she gets...) can i join her "culture of life" club? Oh, guess not... b/c i believe life should be lived with choices. She infuriates me. I can't wait for the debates tonight!

Habladora said...

First off - great post. I'm glad to hear that Biden has been such an advocate, and I appreciate your lawyer-view into the Violence Against Women Act.

Second - there is a troll comment hanging out in moderation that might be an interesting study in intellectual dishonesty and denialism tactics. It is really quite a bit of work - it includes hysterical emotional appeals, character assignations, a 'what about the menz?!' argument, reference to 2 major anti-feminist organizations, and it even rails against all restraining orders as unconstitutional.

Now, I have a pretty strict 'don't feed the trolls' policy, which I know I'm breaking right now. Yet, this is such a gem of a view into troll/denialist thinking - its a classic. So, what's a blogger to do? I might do a whole post on it, but that's a mighty hearty meal for a troll...

I'm in the process of deciding, and I welcome input. In the meantime, here is a good refutation to the 'what about the menz' nonsense, and here is a great look into a variety of denialist tactics.

OK - now back to discussing Biden and the the Violence Against Women Act!

Maggie said...

My response to the what-about-men argument? Do you really think Biden could have logged hundreds of hours of testimony on violence by women against men? Really?

It's not that this kind of violence doesn't exist. But it doesn't have the astronomical effect on society that violence against women does. Personally, I think we need to make sure that men who have been victimized by women or sexually assaulted by women or men feel comfortable standing up for themselves and their rights. Just because it's a minority of sex crimes doesn't mean they shouldn't be treated just the same. The problem is that the men trying to push this argument aren't victims in any real way and aren't concerned about real victimization.

I think women are happy to stand next to and support men who have been the kind of victims that women have been for centuries. But that doesn't mean every white guy on the block should raise his hand and say "me too!"