Early leaders in the battered women’s movement consciously defined battering within a larger framework of gender subordination. Domestic violence and sexual assault were linked to discrimination against women in other contexts, including discrimination and harassment in the workplace, wage inequity, gender role stereotypes, and lack of social supports and respect for mothering and childcare. More generally, leaders articulated a “civil right” to be free from violence.
As a theoretical and political-organizing framework, this civil rights perspective has been extremely important, particularly in the early reforms of the 1960s and the 1970s. As a matter of actual legal remedies, on the other hand, litigants and advocates have had limited success in defining acts of domestic violence or sexual assault, and the response (or lack thereof) of the police to such violence, as a civil rights violation.
Civil rights may be considered in four different contexts: (1) the civil rights remedy passed in 1994 as part of the Violence Against Women Act ultimately held to be unconstitutional by the Supreme Court; (2) cases seeking to challenge inadequate response by the police to domestic violence as civil rights violations; (3) state and federal statutes protecting victims of domestic and sexual violence from discrimination in housing and employment; and (4) the intersectionality of violence against women with issues of race, disability, age, immigration status, and sexual orientation, and the need to ensure that supports and services for victims appropriately respond to the differing needs of these overlapping communities.
Civil Rights Remedy In The Violence Against Women Act And United States V. Morrison
The Violence Against Women Act (VAWA) passed in 1994 was the first federal attempt to address comprehensively the challenges faced by victims of domestic and sexual violence. VAWA addressed the problem of domestic violence and sexual assault from many perspectives, such as increasing funding available for services to survivors, improving law enforcement response to domestic and sexual violence, mandating research on violence against women, and facilitating nationwide enforcement of protective orders. VAWA also created a new legal right—the civil rights remedy— that permitted an individual victim of gender-based violence to sue the perpetrator of the violence in federal court. The civil rights remedy was modeled on other civil rights legislation, such as prohibitions on discrimination on the basis of race or sex in the employment and housing contexts.
The VAWA civil rights remedy gave important new legal rights to victims by permitting them to sue a perpetrator of gender-based violence for compensation. Victims could bring a case in civil court; they were not dependent on a criminal justice system that had often proved unresponsive to domestic violence and sexual assault. Since the injury was framed in a discrimination context, plaintiffs could present circumstantial evidence of discrimination (such as gender-based epithets or gender-based bias) to support their claim. This kind of evidence would likely have been ruled irrelevant in traditional personal injury claims. Additionally, the VAWA civil rights remedy was available even in states that still had prohibitions on marital rape prosecutions or on personal injury claims between spouses.
The civil rights remedy also had immense symbolic importance. It reframed gender-based violence as a public concern, implicating fundamental civil rights that the government had a duty to protect, rather than a private family matter into which government intrusion was inappropriate. It recognized that genderbased violence, like segregated schools, poll taxes, and employment discrimination, limited the ability of individuals to participate fully in the political process and our democracy. The civil rights remedy consciously fit into a tradition of civil rights laws that had been used to transform society’s understanding of systemic deprivations of individual rights.
When passed, the civil rights remedy was hailed as a significant advance of women’s rights. But defendants who were sued under VAWA soon challenged the civil rights remedy, claiming that Congress lacked authority to pass the legislation. The Supreme Court considered the constitutionality of the civil rights remedy in United States v. Morrison. In a 5–4 decision, the Court held that it was unconstitutional. The decision did not challenge the assertion that violence against women was a significant problem, but it held that it was a “local” problem that should be addressed by the states and local governments. California, Illinois, New York City, and Westchester County, New York, have since passed civil rights remedies modeled on the VAWA provisions.
Challenges To Inadequate Police Response To Domestic Violence
Victims of domestic violence have sought to frame inadequate police enforcement of protective orders or response to domestic violence complaints as civil rights violations. Recent decisions have made it difficult to win such claims.
Victims have argued that the police violate constitutional equal protection guarantees by treating domestic violence crimes differently from other crimes. To succeed in an equal protection claim, victims must establish that the police had a general policy or custom of providing less protection to victims of domestic violence than to victims of other comparable crimes. Most courts require evidence of statistical difference in addition to the plaintiff’s own experience. This kind of evidence can be difficult to obtain. Generally, a plaintiff also must present evidence that the police actually intended to discriminate. This can be very difficult to prove.
Victims have also argued that police inaction violates their right to “due process” under the law. However, in 1989, in De Shaney v. Winnebago County Department of Social Services, the Supreme Court ruled that the government does not have a general duty to protect citizens. Rather, to make out a claim, a victim must show that the police actually took actions that increased the danger to her. And in 2005, in Castle Rock v. Gonzales, the Supreme Court ruled that victims cannot sue the police for failing to enforce a protective order, even if the police failed to comply with a mandatory arrest law. After these holdings, advocates suggested a need to reform mandatory arrest laws, expand tort liability for such situations, and increase police training initiatives to better address victims’ needs.
Civil Rights Statutes Protecting Victims’ Rights In Employment And Housing
Victims of domestic violence or sexual assault often face discrimination in employment and housing. Advocates have sought to challenge discriminatory firing and evictions using federal and state civil rights laws that make it illegal to discriminate on the basis of sex, typically arguing that the laws should apply because the vast majority of victims are women or because the tendency to punish the victim of such crimes often comes from gender-based stereotypes. There have been some significant successes, mostly in the housing context.
Additionally, federal, state, and local legislatures have passed laws that explicitly protect victims of domestic violence (and in some cases sexual assault and stalking) from employment and housing discrimination. The 2005 reauthorization of VAWA includes specific protections making clear that it is illegal to discriminate against individuals living in public housing, using federally funded vouchers (“Section 8 vouchers”), or living in certain subsidized housing (“project-based Section 8”) because they are victims of domestic violence, dating violence, or stalking, or to evict them because of the criminal acts against them. Additionally, civil rights laws in a rapidly growing number of states and localities specifically protect victims from housing discrimination (e.g., Washington, Rhode Island, and North Carolina) or employment discrimination (e.g., Illinois, New York City). Other jurisdictions have narrower protections that make it illegal, for example, to evict a victim because she called the police or to fire a victim because she took time off to obtain a protective order. These laws help promote the economic security and independence of victims.
Intersectionality Of Violence Against Women And Other Civil Rights Issues
Domestic violence and sexual assault are primarily crimes against women, and the women’s movement has been active in defining such violence as part of a larger pattern of gender subordination. For individual women, however, the violence they experience may be shaped by other dimensions of their identity, such as race, class, sexual orientation, immigration status, age, or disability. In an influential article, Kimberle Crenshaw raised awareness of the necessity of considering these overlapping identities, a concept that she called intersectionality, by showing how traditional feminist and traditional antiracism discourses tended to marginalize the particular experiences of women of color.
Crenshaw’s article sparked a growing focus on ensuring that the antiviolence movement is responsive to these overlapping identities. For example, the battered women’s movement has traditionally sought to utilize the criminal justice system as a primary means of addressing domestic violence. Many victims, however, may be reluctant to seek refuge from the criminal justice system. Women of color might perceive it as a tool of racist oppression; undocumented persons might perceive it as jeopardizing their ability to remain in the country. Thus, programs and policies seeking to serve battered women must be sensitive to these concerns. The most recent reauthorization of VAWA requires that grantees providing victim services collaborate with representatives of racial, ethnic, and other underserved communities and that culturally specific community-based organizations are eligible to receive funding for providing victim services.
Bibliography:
- Crenshaw, K. (1991). Mapping the margins: Intersectionality, identity politics, and violence against women of color. Stanford Law Review, 43, 1241–1299.
- Goldscheid, J. (2005). The civil rights remedy of the 1994 Violence Against Women Act: Struck down but not ruled out. Family Law Quarterly, 39, 157–180.
- Legal Momentum. (2010). Employment and housing rights for victims of domestic violence. Retrieved from https://www.legalmomentum.org/sites/default/files/reports/employment-rights.pdf
- Martin, E. J., & Bettinger-Lopez, C. (2005, October–November). Castle Rock v. Gonzales and the future of police protection for victims of domestic violence. Domestic Violence Report, 11–15.
- Schneider, E. M. (2000). Battered women and feminist lawmaking. New Haven, CT: Yale University Press.
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