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Do Domestic Violence Victims Need Protection Under a Federal Civil Rights Statute?

Several blog posts have been written here by my colleagues with regard to the subject of domestic violence and the application of New Jersey’s Prevention of Domestic Violence Act to protect victims of domestic violence in New Jersey.  There are, however, other laws that attempt to protect victims of domestic violence.  For instance, in certain instances, not only may a domestic violence restraining order be obtained under the Prevention of Domestic Violence Act, but there are criminal laws in place that protect victims from violent activity such as assault, terroristic threats, harassment, et cetera.   What about federal protections?

In 1994, then Senator Joseph Biden was an original sponsor of the Violence Against Women Act of 1994 [42 U.S.C. § sec. 13701 et seq.], which was signed by President William Clinton in September, 1994 after passing through both houses of Congress with a fair amount of bipartisan support.  For years, Congress had been pressured to enact a law to protect victims of domestic and/or sexual violence.   This statute, however, was considered a federal civil rights statute, and sought to protect the civil rights of victims of gender motivated violence by creating a civil remedy to victims of gender motivated violence.  The legislative history behind the statute indicated that gender motivated violence has a deleterious effect on interstate commerce.  Additionally, the legislative history indicated that there was a pervasive bias in various state justice systems  against victims of gender motivated crimes, which resulted in insufficient investigation and prosecution of such crimes, inappropriate focus on the victims’ behavior,  and lenient punishments for those convicted of such crimes.  The statute’s focus was on a coordinated response to domestic violence and sexual assault.   The VAWA established the Office on Violence Against Women in the U.S. Department of Justice. [Though called the Violence Against Women Act, the statute’s language is gender neutral]

A portion of the Violence Against Women Act of 1994, was, however, struck down as unconstitutional by the United States Supreme Court in the case of United States v. Morrison, 529 U.S. 598 (2000) based on concerns about federalism an interference with states’ rights.  In Morrison, a college student alleged that she was raped by several students at Virginia Polytechnic Institute, and that as such her civil rights were violated by the Violence Against Women Act, 42 U.S.C. § 13981 (VAWA).  The respondents sought to dismiss the VAWA claim on the grounds that the complaint failed to state a claim and that VAWA’s civil remedy was unconstitutional.  The United States government intervened to defend the Constitutionality of the VAWA.   Congressional authority to act under the U.S. Constitution is limited; there are areas of law making that are solely the responsibility of the individual states.  Therefore, for Congress to Act, they must Act within the defined sources of authority.   The  U.S. Supreme Court  in 2000 held that the VAWA was an unconstitutional exercise of Congressional authority.  The Supreme Court relied on its 1995 decision in the case of United States v. Lopez, 514 U.S. 549 (1995).   In Lopez, the Supreme Court struck down the Gun Free School Zones Act of 1990, which made it a federal crime to knowingly possess a firearm in a school zone, finding that the statute was an unconstitutional use of the Commerce Clause in the Constitution.  The Commerce Clause allows Congress to regulate the use of channels of interstate commerce, regulate and protect the instrumentalities of interstate commerce or persons/things in interstate commerce, or to regulate activities having a substantial relation to interstate commerce or activities that substantially affect interstate commerce. Morrison, 529 U.S. at 608-09; Lopez, 514 U.S. at 558-59.   In Lopez, the Supreme Court reasoned that the Gun Free School Zones Act was a criminal statute having nothing to do with commerce and that there was “no express jurisdictional element” that showed an explicit connection with or effect on interstate commerce.  Lopez, 514 U.S. at 560.   The Supreme Court felt that the link between gun connection in school zones and interstate commerce was weak, and the legislative history did not establish an economic connection between guns in school zones and and interstate commerce.    In Morrison, the Supreme Court noted that there were legislative findings about the serious impact  that gender motivated violence has on victims and their families. Morrison, 529 U.S.   at  614.  However, the Supreme Court stated that because legislative findings concluded that activity has an effect on interstate commerce, does not mean that it does.   The Supreme Court was vigilant to protect States’ rights, and that Congress cannot “allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit or consumption.”    Id. at 615.    The Court wanted to prevent not only the federal government from enacting laws that interfered with State criminal laws, but the Court also did not want Congress to enact laws that interfered with family law, which is the province of the individual states.  Id.   The Supreme Court also felt that VAWA would not correct any bias in state judicial systems against investigating and prosecuting cases of gender motivated violence because it is not directed at the states’ behavior, but individual defendants’ behavior.

Thus the civil rights remedies were considered unconstitutional, but not the portions related to funding programs that assist victims of domestic violence.    The statute was reauthorized in 2000 and in 2005.  When the VAWA expired in 2011, there was dispute in Congress over the application of the statute to same-sex couples, undocumented immigrants and Native Americans.   In March, 2013 President Barack Obama signed the Violence Against Women Reauthorization Act of 2013, stating “No one should have to live in fear of violence, especially in her home, and VAWA affirms that belief. Today’s signing ensures that victims and survivors can continue to be provided the vital resources they deserve. Our country is better off for it.”   The statute in its current form is inclusive of same sex couples, undocumented immigrants and Native Americans.

The end result is that there remains a dispute over whether the VAWA has actually resulted in a decline in domestic violence nationwide, without the civil rights protections it intended in its original form.    It remains the obligation of the individual states to ensure that they are doing, without bias, what Congress in enacting the VAWA believed the states were not doing.  The states need to individually create laws to protect victims of domestic violence, sexual violence and/or gender motivated violence, but must also ensure that such crimes are investigated and prosecuted, the punishments to perpetrators are meaningful, and that victims of gender motivated violence, domestic violence and sexual violence (regardless of gender) are given maximum protection under the law.  We are fortunate that New Jersey is such a state that has such laws and has a Legislature that has recognize the pervasive and devastating impact of domestic violence on families and on society.