Document 11A: Statement of Elizabeth Symonds, Legislative Counsel, American Civil Liberties Union and Women's Rights Project, ACLU. Senate Hearing 103-51, 16 November 1993. Hearing before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary House of Representatives. Serial No. 51.

Introduction

        Title III of the 1994 VAWA Act was the most controversial component of the legislation. Title III gave victims of domestic violence access to federal courts on the grounds that their civil rights had been violated. Different women's and civil rights organizations held different views of the constitutionality and importance of this provision. At the Senate hearings Elizabeth Symonds represented the legislative counsel of the American Civil Liberties Union and the Women's Rights Project of the ACLU. She testified that the ACLU did not support Title III, believing that the provision would create confusion for litigants and judges due to the difficulty in determining if a violent crime was motivated by gender (see also Document 11B, Symond's prepared statement).

STATEMENT OF ELIZABETH SYMONDS, LEGISLATIVE
COUNSEL, AMERICAN CIVIL LIBERTIES UNION

       Ms. SYMONDS. Good afternoon.

       My name is Elizabeth Symonds, and I'm legislative counsel with the American Civil Liberties Union, also representing today the Women's Rights Project of the ACLU.

       I am very much appreciate the opportunity to testify before you on the Violence Against Women Act, and on its title III provision.

       The ACLU, of course, completely concurs that violence against women is an extraordinarily serious problem facing our society today, and that we need new and creative solutions to solve it. In fact, many of those solutions are presented in this legislation, and are solutions that we endorse.

       However, title III that creates a new Federal right to be free from crimes motivated by gender raises a lot of questions for us which at this time prevents us from supporting that portion of the bill. Title III does not in our minds make clear the requisite intent needed by a plaintiff trying to prove this cause of action.

       What does a crime motivated by gender due at least in part to animus based on the victim's gender really mean? That's the question that we've been asking ourselves for many months. What kinds of cases are actionable under this proposed law?

       We're afraid that the vagueness of this standard will create confusion for litigants, for judges and for the poor juries who are going to need some guidance as to what this standard is really about. We've tried to ask ourselves a number of hypotheticals to determine what we think would actually be operative actions that would create a cause of action and civil liability.

        So for instance, we have asked, is rape per se actionable? Or, if a man is convicted of raping a woman, goes to jail and rapes a male cellmate, is the second crime actionable under this measure? Should the first crime therefore have been actionable?

       Or, if a woman knifes another woman because the second woman was sleeping with the first woman's husband, is that a crime of violence motivated by gender?

        Obviously, juries make tough calls and tough decisions all the time. We all know that. Obviously, new statutes are always further refined by subsequent case law. Nonetheless, we fear that this threshold standard that's presented by the bill creates many more questions than it actually answers.

       We're also not completely convinced that title III will be an effective mechanism for reducing violent crime. I think that's what all of us here want. I think that we're in agreement that the goal of this bill is laudatory. We want to stop violent crime in America.

       But will this effectively do so? Again, we posed to ourselves a number of questions. Will this civil cause of action deter perpetrators? Will defendants, many or most of whom are indigent, have the financial resources to actually pay damages or awards? Can the defendants be identified in most cases?

        When we compare this set of questions to the title VII context, we believe that in title VII most of these questions are answered in the affirmative. We're not as sure in this title III context. Of course, the ACLU treasures our existing Federal civil rights laws, and we utilize them all the time. We litigate daily under those laws. We would frankly be troubled if title III were relegated to a symbolic means of fighting discrimination.

       Finally, title III raises the fundamental question of whether a new Federal civil rights action should be provided for women, but not for individuals victimized because of their race, their ethnicity, their religion or their sexual orientation.

        In this city alone, as all of you know, hundreds of young black men are being harmed by violent crime at very alarming rates. Should they have the right to try to prove that in some instances, even if it's only a few instances, that they were the victims of racial bias?

       We understand well the need for an incremental legislative approach in many areas. But we don't comprehend the reason for insisting upon it here.

       In conclusion, we're convinced that this is certainly a well-intentioned attempt to rectify the horrible, the frightening issue of violent crime against women. Nonetheless, we ask you to consider the many questions we pose today. Those of you who cherish our civil rights laws and consider them a real essential tool of social justice simply can't settle for a new statute that might provide little redress.

        Thank you very much.

       Mr. EDWARDS. Thanks very much, Ms. Symonds. [The prepared statement of Ms. Symonds follows:]

 

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