Document 14B: Prepared Statement of Sally Goldfarb, Senior Staff Attorney, NOW Legal Defense and Education Fund. 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.

PREPARED STATEMENT OF SALLY GOLDFARB, SENIOR STAFF
ATTORNEY, NOW LEGAL DEFENSE AND EDUCATION FUND

Mr. Chairman and members of the Subcommittee, thank you for the opportunity to appear before you to discuss the Violence Against Women Act, H.R. 1133. I am Sally Goldfarb, Senior Staff Attorney of the NOW Legal Defense and Education Fund (NOW LDEF). NOW LDEF is an independent, non-profit public interest legal organization dedicated to eliminating sex discrimination and securing equality for women and girls. Violence against women is one of NOW LDEF's chief concerns, and we have been working for several years to support the enactment of the Violence Against Women Act.

On behalf of NOW LDEF, I chair a national task force of almost one thousand organizations and individuals concerned about the epidemic of violence currently facing American women. The task force includes groups from the religious, labor, medical, mental health, aging, civil rights, women's, children's and victims' rights communities, all of which are united by a concern about the impact of violence on the ability of women and girls to participate as equals in our society. I am here today, however, to present the views of the NOW Legal Defense and Education Fund on this important legislation. NOW LDEF strongly endorses the Violence Against Women Act and urges you to support it. I will focus my remarks today on Title III of the Act, which we view as a major step forward for women's equality.

The Epidemic of Violent Crime Against Women

In America today, a woman faces a startling high likelihood of being the victim of a violent crime. Grim statistics reveal the thread of violence that runs through the lives of American women.

* Every 15 seconds, a woman is beaten by her husband or boyfriend.

* Every 6 minutes, a woman is forcibly raped.

* One fifth to one half of American women were sexually abused as children, most of them by an older male relative.

* One out of every eight adult women, or at least 12.1 million American women, has been the victim of forcible rape sometime in her lifetime.

Women in all walks of life are at risk.

* One of out every four female college students will be sexually attacked before graduating; one in seven will be raped.

* The murder rate for women aged 65 and older has climbed by 30 percent since 1974, while the murder rate for men in the same age group has dropped by 6 percent.

* African-American women are almost twice as likely to be raped as white women. Yet rapes of African-American women are less likely than rapes of white women to result in prosecution, conviction, and stern sentences.

* Domestic violence cuts across all racial, religious, ethnic, and socioeconomic lines.

Gender-Motivated Violence: An Assault on Women's Right to Equality

Women and girls are targets for many types of violence because of their sex. It is certainly true that many men are victims of crime, and this is a source of concern as well. However, women must fear not only the crimes that confront all members of our society, but also those that are inflicted exclusively or overwhelmingly on the female half of our population.

* During the past decade, rape rates have risen nearly 4 times as fast as the total crime rate.

* Since 1974, the rates for assault and many other violent crimes against women have increased dramatically, while the rates for the same crimes against men have actually declined.

* Girls are estimated to be two to ten times more likely to suffer childhood sexual abuse than boys.

When half the members of our society are at greater risk of terror, brutality, serious injury and even death just because they are female, that is a form of discrimination. Moreover, violent attacks reinforce and maintain the disadvantaged status of women as a group.

* Empirical studies of convicted rapists demonstrate that they hold extreme attitudes about men's right to dominate women and women's inherent inferiority.

* In December 1989, a man murdered fourteen female engineering students in Montreal after proclaiming his vicious hatred of all women and especially "feminists."

* Much like racial attacks, attacks on individual women create a climate of terror that makes all women afraid to step "out of line." Pervasive fear of sexual assault and other crimes forces women to take elaborate precautions that limit their options for education, employment, travel, and other activities.

In recent years, we have made dramatic progress toward legal equality for women. But existing laws against discrimination are worth little if women must jeopardize their physical safety to seek out the opportunities that have been opened to them at home, work, school, and in the community.

The Violence Against Women Act's Civil Rights Provision

The versions of the Violence Against Women Act that are under consideration in the House (H.R. 1133) and the Senate (S. 11) both contain a civil rights provision in Title III. Both would declare that crimes of violence motivated by gender are discriminatory and violate the victim's civil rights under federal law. Both provide a civil cause of action for deprivation of this right. A person who proves that a crime of violence was motivated by gender is eligible to receive compensatory damages, punitive damages, injunctive relief and declaratory relief.

However, there are differences between the two bills. In May of this year, the Senate bill was narrowed in several significant ways in an effort to clarify and limit the cause of action provided. These changes were adopted after extensive discussions with federal judges, civil liberties groups, and others concerned about the scope of the proposed civil rights remedy. As a result, Title III of the Senate bill now provides that only crimes against a person, and crimes against property that pose a risk of physical injury to a person, are covered; deletes a presumption that rape and sexual assault are motivated by gender; and adds a requirement that, in order to meet the definition of "crime of violence motivated by gender," the plaintiff must prove that the crime was due, at least in part, to an animus based on gender.

The NOW Legal Defense and Education Fund strongly supports Title III of H.R. 1133 in its present form. We feel that the definition of "crime of violence motivated by gender" furnished in the bill is clear, workable, and sound public policy. However, we have also endorsed the Senate bill, S. 11. Therefore, if it is necessary to modify the House bill along the lines already adopted in the Senate, NOW LDEF will continue to support the legislation. If the term "animus" is adopted, it would be helpful to clarify that the term means simply intent or purpose, as it was originally used in the case Griffin v. Breckenridge, 403 U.S. 88 (1971).

Several important limitations already appear in both H.R. 1133 and S. 11. Both bills contain an explicit statement that the Violence Against Women Act does not confer jurisdiction of federal courts to decide divorce or domestic relations cases. In addition, the civil rights remedy extends only to acts that would rise to the level of a felony under state or federal law. It does not cover random acts of violence unrelated to gender. Thus, is amply clear that not every crime against women would qualify. Indeed, the civil rights remedy is gender-neutral and is available to male or female victims of serious gender-motivated crimes.

The burden rests on the plaintiff to prove by a preponderance of the evidence that the crime was motivated by gender. Proving that a crime was gender-motivated under the new law will presumable by analogous to proving that a crime was racially motivated under existing laws. Evidence typically presented in civil rights cases alleging racial violence include: racially derogatory epithets used by the assailant, membership of the victim in a different racial group than the assailant, a history of similar attacks other members of the victim's racial group, a pattern of attacks against victims of a certain race in a certain neighborhood and time period, lack of provocation, use of force that is excessive in light of the absence of other motivations, etc. By substituting "gender" for "race" in the foregoing list, it becomes apparent that many--but not all--crimes against women will qualify as crimes of violence motivated by gender.

Recognizing the gender-discriminatory element in some violent crimes is not radical or unprecedented. Not only does federal law already contain civil remedies for racially-discriminatory violence, but the Hate Crimes Sentencing Enhancement Act of 1993 (H.R. 1152), which passed this House in September and is under consideration as part of the Senate crime bill, provides increased sentences for defendants convicted in federal court of having selected a victim because of gender. The Violence Against Women Act simply takes this principle and applies it to a civil, rather than criminal, remedy. Moreover, unlike the Hate Crimes Sentencing Enhancement Act, application of the Violence Against Women Act is not limited to crimes occurring on federal lands.

To the extent that questions remain about how this cause of action will work in practice, this is to be expected with any cutting-edge legislation. As Judge Stanley Marcus, chair of the U.S. Judicial Conference Ad Hoc Committee on Gender-Based Violence, has helpfully pointed out, it is inevitable that there are some questions about legislation that cannot be answered until cases are litigated and judges have the opportunity to apply the law to specific facts.

What Title III Will Accomplish

Because of gender-based violence, American women and girls are relegated to a form of second-class citizenship. Just as a democratic society cannot tolerate violence motivated by the victim's membership in a minority racial group, and must pass special laws to combat such oppression, so too we need effective federal laws to combat violent crimes motivated by the victim's gender.

The enactment of civil rights legislation would convey a powerful message: that violence motivated by gender is not merely an individual crime or a personal injury, but is a form of discrimination, an assault on a publicly-shared ideal of equality. When half of our citizens are not safe at home or on the streets because of their sex, our entire society is diminished.

The impact of the legislation would not be purely symbolic, however. Federal recognition that gender-based violence is a form of discrimination is likely to alter the way both men and women regard sexual assault and domestic violence. The impact of this attitudinal change will be felt in homes, streets, and workplaces. It will also be felt in courtrooms. Currently, jury studies and research on gender bias in the judiciary have shown that the "boys will be boys"/"she must have asked for it" mentality that prevails in most sectors of our society has a direct, measurable effect on the outcome of cases involving sexual assault, domestic violence, and a host of other issues where men's violence toward women is directly or tangentially involved. Thus, the educational power of the VAW Act is of immense practical importance to the development of American law.

In addition, many victims who are currently unable to succeed in state criminal and civil proceedings would, for the first time, have access to legal redress.

It is not true that all men who beat or rape women lack the resources to pay damages. In fact, violence against women is found at every socioeconomic level in America. For some victims, even a damages judgment that cannot be collected (or a judgment granting only declaratory or injunctive relief) will be soon seen as an immensely valuable vindication of their rights.

Enactment of the Violence Against Women Act will not eliminate rape, domestic violence, and other sex-based attacks on women, any more than passage of the civil rights legislation of the 19th century and the mid-20th century has eliminated racism. Nevertheless, the power of this proposed federal civil rights law to improve the prospects for social justice and equality are substantial.

State Criminal and Civil Laws Are Not Adequate
to Protect Victims of Gender-Motivated Crime

The existence of state criminal and tort laws covering rape and domestic violence does not do away with the need for a federal civil rights remedy. First, a federal civil rights law would redress a different injury than the injuries that are at issue in state criminal and tort proceedings.

In addition, gender-motivated crimes are currently not being adequately addressed in the state courts.

* A woman is forcibly raped by her husband. In over half the states, he is immune from prosecution under many or most circumstances--for example, if the couple is living together and no divorce or separation papers have been filed.

* A young woman is sexually assaulted by her boyfriend. Several states have statues exempting cohabitants and dating companions from sexual assault laws.

* A man brutally beats his wife, causing her severe injuries. Interspousal immunity doctrines in at least seven states prevent her from suing him to recover damages for her medical expenses and pain and suffering.

* A teenage girl is subjected to incestuous sexual abuse by her father. In some states, strict statutes of limitations require her to bring suit within a few years--which is virtually impossible for an emotionally and economically dependent young person--or else lose forever the chance to pursue a civil legal remedy.

* It was recently revealed that the Oakland, California, Police Department closed over 200 rape cases with little or no investigation in 1989 and 1990. The complaints involved rapes of prostitutes and drug users, as well as allegations of acquaintance rape.

* A recent Senate Judiciary Committee study showed that only one in 100 forcible rapes results in a sentence of more than one year in prison.

* State rape shield laws do not apply to civil cases. Thus, women bringing tort actions for sexual assault are routinely subjected to intrusive questions about consensual sexual activity unrelated to the attack.

The laws on the books are only part of the problem. In states throughout the country, prosecutors, juries, and judges routinely subject female victims of rape and domestic violence to a wide range of unfair and degrading treatment that contributes to the low rates of reporting and conviction that characterize these crimes. Although federal courts are not immune from these problems, the fact that federal judges are not elected, are subjected to a more rigorous selection process, and typically exercise greater control over courtroom procedures such as jury voir dire help to minimize these problems.

Federal civil rights laws passes since the mid-19th century have typically prohibited acts that were already illegal under state law. The reason for this is that federal remedies are needed to reinforce state remedies and to provide a "back-up" when the state justice system is unable to protect victims' rights adequately. In an eloquent testimony to the need for federal intervention, 41 state attorneys general have signed a letter to members of this House urging passage of the Violence Against Women Act.

The Violence Against Women Act Builds On
and Complements Existing Federal Civil Rights Laws

Currently, American women are being attacked and killed because they are women. Over 100 years ago, following the Civil War, Congress responded to an epidemic of race-based violence by passing a series of federal laws to provide remedies against private individuals who deprive citizens of their civil rights. Similar legislation is needed today to protect citizens from an epidemic of gender-based violence.

Title III of the Violence Against Women Act is modeled on well-established federal civil rights laws. For example, the key phrase "because of . . . gender or on the basis of gender," which describes crimes of violence that are covered, is modeled on language found in Title VII of the Civil Rights Act of 1964, which is the leading federal statute prohibiting discrimination in employment.

Similarly, the basic concept of Title III resembles that of the Reconstruction-era civil rights laws. Like those earlier laws (42 U.S.C. §§ 1981, 1982, 1983, and 1985 (3)), the Violence Against Women Act provides a federal civil remedy for deprivation of certain rights. The "animus" requirement, which has been added to S. 11, is derived from caselaw decided under 42 U.S.C. §1985 (3).

Title III is not identical to its predecessors, however. Each law has different technical legal requirements. For example, unlike §1983, Title III does not require that the challenged actions were taken "under color of state law," and unlike §1985 (3), it does not require more than one wrongdoer. While Title III is thus broader in some respects than other civil rights laws, it is far narrower in other respects: it protects only against gender-motivated crimes of violence that rise to the level of a felony, whereas 42 U.S.C. §§1983 and 1985 (3) protect disadvantaged groups from virtually any deprivations of rights, privileges and immunities.

The difference between Title III of the Violence Against Women Act and the nineteenth-century federal civil rights laws are necessary because gender-based violence typically differs from the types of racial violence directed against men. For instance, § 1985 (3) was drafted to combat the Ku Klux Klan and similar conspiracies. The dangers confronting women of all races are often quite different. Conspiratorial group attacks on women are not the primary cause of gender violence. In fact, women are six times more likely than men to suffer a crime at the hands of someone they know.

The Reconstruction-era civil rights laws were not designed with women in mind. For 120 years since they were passed, women of all races have lacked a meaningful civil rights remedy to protect them from pervasive anti-female violence. While §§ 1983 and 1985 (3) fall short of providing ideal protection against discrimination based on race, religion, or national origin, they at least provide a meaningful remedy for a significant percentage of such cases. The fact that these two statutes require the plaintiff to prove conspiracy or color of state law virtually eliminates the possibility that women of any race can redress what is arguably the most common and most damaging form of gender discrimination: acts of gender-motivated violence committed by private individuals.

This defect in existing civil rights laws has meant, among other things, that rape by individual white men acting in a private capacity, which has historically been a widespread form of oppression of African-American women, has never been actionable under the civil rights laws ostensibly designed to protect all African-Americans from racial terrorism. In short, most of the victimization that women experience because of their gender alone, or because of their gender in combination with their race, remains ignored by the federal civil rights laws currently on the books.

It should be noted that NOW LDEF would support broadening Title III of the Violence Against Women Act to provide the same civil remedy for victims of violent crime motivated by race, color, religion, national origin, ethnicity, and sexual orientation. However, if this is not feasible, we view the current focus on gender-motivated violence as appropriate. It would be a tragedy to delay this long-overdue response to a significant social problem because of concerns that it does not adequately address a host of other social problems that are beyond its scope.

A question has been raised as to whether the Violence Against Women Act will have a negative effect on enforcement of existing civil rights laws. This always been a primary consideration for the NOW Legal Defense and Education Fund. We have sought input from eminent scholars and civil rights experts throughout the country to ensure that this bill is drafted to create new rights without curtailing existing ones. No one has identified any way in which Title III of the Violence Against Women Act would have a damaging effect on the development of law under current civil rights statutes.

The Impact of Title III on the Courts

Some observers have suggested that lawsuits bought under the Violence Against Women Act will overwhelm the federal courts. In fact, the legislation will provide a significant new remedy without generating a large number of new cases.

For example, sexual assault is a tort in every state, but a study by Jury Verdict Research, Inc. found only 255 civil jury trials in sex assault cases over a ten-year period. The inhospitability of state courts to such claims (see above) is doubtless one reason why this figure is so low, but there are other reasons that would be equally applicable to cases brought under federal law. One fact that is not going to change is that rape and domestic violence are vastly underreported. The causes of this phenomenon are numerous and complex and include the severe stigma that still attaches to victims of these crimes. Women do not now, and will not in the future, rush to proclaim themselves as victims of sex crimes or of violence inflicted by family members.

Sexual harassment provides a useful analogy. A major study by the U.S. Merit Systems Protection Board found that 42% of women employed by the federal government had experienced sexual harassment, but despite the availability of legal remedies, only 5% of those who had been sexually harassed made any kind of formal complaint (including complaints in the workplace); and even smaller number actually filed a legal action.

Moreover, a certain number of potential VAW Act defendants (though by no means all) are indigent, and many women and their attorneys may be unwilling to bring suit if there is not hope of collecting damages. And of course, a large number of violent gender-motivated crimes are committed by assailants who are never caught. As Prof. Cass Sunstein has pointed out, the fact that few cases will probably be filed under Title III of the VAW Act does not detract from its importance as an addition to the civil rights legal arsenal.

The fact that a bill to enhance the rights of women is met with a concern for overloading the federal courts adds a disturbing note of sexism to the debate. In recent decades, when Congress was considering the Americans With Disabilities Act and other civil rights legislation that created private rights of action, this concern was heard only from staunch opponents of civil rights. In any event, the fact that violence against women is widespread would seem to argue in favor of, not against, passing legislation to remedy it.

The true burdens on the federal courts are a heavy criminal caseload, particularly drug-related cases, together with a large number of vacant judgeships. Keeping civil rights cases out of federal court will not solve these problems.

It should be noted that in March 1993, the U.S. Judicial Conference revoked its previous opposition to the Violence Against Women Act and specifically adopted a position of neutrality on this bill, with the exception that the organization now actively supports the portions of the bill regarding task forces on gender bias in the courts. The National Association of Women Judges also supports the principles of Title III. A recent Congressional Budget Office report estimates the cost of Title III to be far lower than previously projected.

Finally, it has been suggested that money saved by not having federal courts hear civil rights cases could be redirected to battered women's shelters, local police departments, or other programs that serve victims of violence. There is no realistic likelihood that funds not spent by the federal courts would wind up in the budgets of such unrelated entities. In any case, the Violence Against Women Act already contains grant programs designed to fund direct services. Furnishing civil rights redress for discrimination is a fundamentally different issue and should not be seen as a tradeoff against direct services to victims of violent crime.

Congress Has Constitutional Authority to Enact This Legislation

Federal legislation to remedy gender-based crime is amply justified by Congress's obligation to advance principles of equal rights under section 5 of the Fourteenth Amendment. Constitutional authority to enact this legislation is also conferred by the Commerce Clause, due to the damaging impact of gender-based crimes on the national economy.

* On a national level, domestic violence costs employers 3 to 5 billion dollars annually due to worker absenteeism.

* 30 percent of all women seeking treatment in hospital emergency rooms are victims of battering by a husband or boyfriend. Medical costs related to domestic abuse are estimated at $100 million a year.

* High rates of rape and other crimes deter women from taking many types of jobs, including high-paying night jobs that would require travel on unsafe streets and public transportation. For instance, one rape survivor reported in testimony to the U.S. Senate Judiciary Committee that she had to give up plans for a career in real estate sales because she was afraid to be alone in an empty house with a stranger.

* Homicide is the leading cause of death on the job for women. (For men, the leading cause is accidents.)

* More than half of all homeless women have lost their housing because they are fleeing domestic violence.

Leading scholars of constitutional law have testified in support of Congressional power to enact the Violence Against Women Act.

Conclusion

The Congress has a historic opportunity to play a crucial role in the effort to reduce crime and combat discrimination against women. This long overdue legislation will recognize that violence motivated by gender is a deprivation of civil rights. We urge you to support the Violence Against Women Act. Thank you.

 

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