Karen Gould's Editorial on the Supremes' recent refusal to recognize the right of women to be free from rape is included below. Even are highest court acknowledges that the treatment of rape victims by the states is deplorably biased and unfair, but refuses to help. Please pass this on and encourage others to make this a men's issue as well as a women's issue. Without the support, demand, and protection of good men, the lives of your wives, mothers, sisters and daughters are at risk. - Laura

Court: Federal Rape Law Unconstitutional
Federal Rape Law Unconstitutional
Dateline: 5/15/00

Opinion

The Supremes have spoken. Women do not have a civil right not to be raped. Upholding the decision of the Fourth Circuit U.S. Court of Appeals, the Court ruled 5-4 that Subtitle C of the Violence Against Women Act of 1994 unconstitutionally infringed on state's rights. This section of the VAWA allows rape victims to sue their attackers in Federal courts for violating their civil rights. (See my original article on the case, "Freedom From Rape" for more detail about Subtitle C, the Fourth Circuit Court's decision, and this case.)

In the majority opinion, written by Chief Justice Rehnquist, the Court first took aim at the "Commerce Clause" justification of the statute, stating that allowing Congress to provide a Federal civil rights claim against rapists would:

..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... Indeed, if Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence.

[...] We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. Although the statute in question in this case concerned civil remedies, the opinion issued by Rehnquist continually references criminal activities. The VAWA also has criminal provisions, which were not under review in this case because the suit wasn't filed on the basis of those provisions. But the constant reference to criminal conduct in Rehnquist's opinion would seem to some (to me, in particular) to be an invitation to state's rights advocates to file challenges to the criminal penalties in the VAWA and other civil rights laws as well. It is also important to note that most civil rights laws are based on this Commerce clause standard of "aggregated impact" on interstate commerce activities.

However, as serious as this ruling is in terms of federal powers related to interstate commerce, I believe its rejection of the 14th Amendment justification for the law to be equally important - perhaps even more important.

In his concluding paragraph, Chief Justice Rehnquist wrote:

"Petitioner Brzonkala's complaint alleges that she was the victim of a brutal assault. ... If the allegations here are true, no civilized system of justice could fail to provide her a remedy (Well, duh.)

... But under our federal system that remedy must be provided by the commonwealth of Virginia, and not by the United States." The problem was that the Virginia system did not provide a remedy, which is why she filed suit under the federal statute. In addressing the 14th Amendment justification for the VAWA statute, the Chief Justice noted the argument that state justice systems often fail to provide such remedies, seems to concede the point, but then proceeds to reject the argument, stating:

Specifically, Congress received evidence that many participants in state justice systems are perpetuating an array of erroneous stereotypes and assumptions. Congress concluded that these discriminatory stereotypes often result in insufficient investigation and prosecution of gender-motivated crime, inappropriate focus on the behavior and credibility of the victims of that crime, and unacceptably lenient punishments for those who are actually convicted of gender-motivated violence. [...] Petitioners contend that this bias denies victims of gender-motivated violence the equal protection of the laws and that Congress therefore acted appropriately in enacting a private civil remedy against the perpetrators of gender-motivated violence to both remedy the States' bias and deter future instances of discrimination in the state courts.

Petitioners' assertion that there is pervasive bias in various state justice systems against victims of gender-motivated violence is supported by a voluminous congressional record. However, the Fourteenth Amendment places limitations on the manner in which Congress may attack discriminatory conduct. Foremost among them is the principle that the Amendment prohibits only state action, not private conduct.

A federal law to prohibit states from violating the right to "equal protection under the law" might seem a reasonable alternative, were it not for the fact that the Court recently held, in Kimel v. Florida Board of Regents that state governments are shielded against federal age-bias claims by the doctrine of Sovereign Immunity. The following week, the Court ordered lower courts to review equal pay cases in terms of the Kimel ruling, thereby signalling that this "sovereign immunity shield from federal laws" is intended to be the new "standard" by which civil rights claims against states are to be reviewed.

If I read this right, according to the Rehnquist Court, federal law can only prohibit state officials from violating a citizen's civil rights, but... here's the catch... state officials are shielded against civil rights claims brought under federal laws by the doctrine of sovereign immunity. So if the state violates a person's 14th Amendment guarantee of "equal protection of the laws" by not prosecuting a crime against that person - whether that's due to "bias" or "stereotypes" or simply due to lack of interest - the state can't be sued for not prosecuting the claim.

If Congress can't pass laws to give victims access to "equal protection" in federal courts when the states don't provide it, and it can't pass laws to force states to give victims access to equal protection in state courts, the 14th Amendment is dead. Might as well just say so, instead of pretending there's such a thing as "equal protection under the law."

Think I'm over-reacting? Well, let's see what we have here: The federal government can't prosecute the criminal on it's own; we can't sue the criminal in federal court; we can't sue the State for not prosecuting the criminal. What's left? Grin and bear it? Karen