Freedom From Rape

Do women have a "civil right" not to be raped? It seems outrageous to even have to ask the question. What's even more outrageous is the answer, at least in the states of Maryland, North Carolina, South Carolina, Virginia, and West Virginia - "No." Women do not have a civil right to not be raped, according to the U.S. Court of Appeals, Fourth Circuit, one of the 11 U.S. Courts of Appeals that are the final authority for federal law in their respective jurisdictions, unless and until their decisions are overturned by the Supreme Court.

Reasonable women - and men - may wonder how we got to this point.

In 1994, Congress passed the Violence Against Women Act, (VAWA) which created a number of programs to combat violence against women. Subtitle C of that Act holds that women have a "civil right" not to be raped or otherwise assaulted because of their gender, and allows victims of gender-motivated violence to sue their attackers in federal court. This is the section under which Christy Brzonkala brought suit against Antonio Morrison, an athlete at Virginia Polytechnic (Virginia Tech), for allegedly raping her repeatedly in her dormitory in 1994. (For those unfamiliar with that case, a summary is available on the NOW Legal Defense and Education Fund's website.) In March of 1999, the Fourth Circuit Court of Appeals issued a ruling in that case that declared Subtitle C to be unconstitutional. That ruling has been appealed to the Supreme Court, which heard oral arguments in the case on January 11, 2000.

Congress based its authority to enact Subtitle C of the VAWA on two sections of the Constitution: Article 1, Section 8, which gives Congress the right to regulate interstate commerce, and Section 5 of the 14th Amendment, which gives Congress the authority to pass laws to enforce that Amendment's guarantee of "equal protection under the law" for all citizens of the United States. According to the U.S. Justice Department's Supplemental Brief to the Fourth Circuit, Congressional investigation estimated the economic impact of gender-motivated violence at between $5 and $10 billion per year for health care, criminal justice and other social costs. That brief also noted that Congress received testimony from representatives of 38 states which indicated that State justice systems did not prosecute gender-motivated violence on an equal footing with other forms of violence. Congress found that this constituted "unequal protection."

Historically, the Supreme Court has varied widely in its interpretation of Congressional authority under both the Comerce clause and Section 5 of the 14th Amendment. For the Commerce clause, interpretations have been as restrictive as including only activities in which money or goods actually cross state lines, to as broad as including any activity which has a significant economic impact on the "flow of commerce" among the states. Restrictive interpretations of Congressional authority under the 14th Amendment have limited Congress to acting only against a state which fails to provide "equal protection." Alternatively, Courts with a broad view of Section 5 have ruled that Congress is allowed both to define what rights should be included under the umbrella of "equal protection," and to permit individuals to bring suit in federal court against States, companies, or individuals which violate those rights. Like Subtitle C of the VAWA, most civil rights laws are based on recent precedents which interpret Congressional authority quite broadly in both areas.

Nonetheless, the U.S. Fourth Circuit Court of Appeals decided that Subtitle C of the VAWA was unconstitutional under both the Commerce clause of the Constitution, and Section 5 of the 14th Amendment. That Court's opinion presented the narrowly restrictive views that the Commerce clause only allows Congress to regulate commercial or economic interstate activities, and that, under the 14th Amendment, Congress could only provide a remedy against the States or their officers, not against private parties like individuals or companies.

Reverting to a more narrow view of Congressional authority under both the Commerce clause and the 14th Amendment would undoubtably affect most of the civil rights laws currently in force. That intention seems clearly indicated by statements in the published opinion: "...the apparent purpose of this provision is to create a minimum level of substantive protection-- [...] -- that is unaffected by individual variation among the criminal laws of the several States" (which seems like pretty good definition of "civil rights," to me) and the "criticism" that the statute "provides ... a remedy for violence that the States would leave unpunished, whether for reasons of state criminal-law policy, prosecutorial discretion, or state tort-law policy." (Which is a fairly accurate summary of why Congress felt it had to pass civil rights laws in the first place.)

The Supreme Court's decision is expected by June. Court-watchers have pointed out that a number of this Supreme Court's recent decisions have been strongly protective of State's rights, and have demonstrated a trend toward more narrowly interpreting Congressional authority. The most recent example is its ruling in Kimel v. Florida Board of Regents, that employees of State governments are not protected under federal age-discrimination laws. Justice O'Connor, writing the majority opinion, stated: "Older persons . . . unlike those who suffer discrimination on the basis of race or gender, have not been subjected to a history of purposeful unequal treatment," which seemed to indicate that race- and gender-based anti-discrimination laws were not threatened. However, a week later, the Court ordered lower courts to review equal pay cases in the light of the Kimel ruling. The following week, the Court agreed to hear another case involving States' rights, this time under the Americans With Disabilities Act.

So, if recent history is any indication, women in the remaining 45 states may soon hear the same answer that Christy Brzonkala and the women of Maryland, North Carolina, South Carolina, Virginia, and West Virginia heard from the Fourth Circuit U.S. Court of Appeals: Women do not have a civil right not to be raped.

I think that would be outrageous. Don't you? Email me with your opinion

Karen