Civil courts afford at least two advantages. First, they allow feminists to address perceived abuses that fall outside criminal statute. Thus, 'abusive' men who are not criminals can be punished through monetary awards. For example, sexual harassment laws have their roots in Title VII, the fair employment provision of the Civil Rights Act of 1964, which provides civil penalties. In the early '80s, when radical feminists waged war on the porn industry, they did so through local ordinances that declared pornography to be a form of discrimination on the basis of sex. Women who had posed for periodicals like Playboy would have been able to sue in civil court for damages. They could claim that their civil rights had been violated, irrespective of whether they had fully and knowingly consented to participate in the pornography.
Civil courts offer the second advantage of being far less stringent than criminal ones. This is important for crimes such as rape, which are notoriously difficult to prove. In a criminal court, the alleged rape victim must sustain her case beyond a "reasonable doubt," which is often defined as 99 percent certainty. Civil court requires only a preponderance of the evidence, which can mean as little as 51 percent certainty. Moreover, in civil court, the rules of evidence are more relaxed and women are not subjected to severe cross-examination. Rape cases that have been dismissed by a criminal court may well succeed in a civil one.
In the instance of Brzonkala, the defendants did not even reach criminal court: a Grand Jury found insufficient evidence to indict. Nevertheless, the VAWA allowed her to bring civil suit against them. In short, the VAWA allows women to pursue cases that are too weak to be admitted into criminal court. The gender violence need not even be reported to the police in order to be pursued in federal court.
Ominously, the VAWA does not clearly delineate what constitutes "gender-motivated violence" thus allowing the term to cover conceivably any situation of abuse that involved gender hostility. This is promising for feminists who routinely consider even words and images to be a form of gender violence. Such arguments led Supreme Court Justice Sandra Day O'Connor to state, "Your approach ...would justify a federal remedy for alimony or child support." Arguably, that is precisely what radical feminists wanted and hoped to achieve through the VAWA.
Radical feminists want a war on "gender violence" similar to the "War on Drugs" – that is, zero tolerance backed by maximum force. To this end, the VAWA attempted to create a special class of crime defined by ideology. A major tenet of radical feminism is that violence against women is part of a political campaign that men as a class inflict upon women as a class. The fact that real violence against women – e.g. murder, battery, rape – has been steady and steeply declining since 1990 in no way impacts their passionate cry for harsher enforcement. Facts are often irrelevant to ideology.
The Supreme Court decision dealt an unexpected blow to this feminist agenda. Unexpected because, on mere statistical grounds, the Supreme Court tends to overturn rather than to uphold earlier rulings on the cases it hears. Moreover, Justice O'Connor has a strong track record of ruling in favor of 'women's rights,' yet she voted against the VAWA.
No wonder NOW President Patricia Ireland felt betrayed. She declared, "The Supreme Court has said not JUST that women's right to be free from violence is not protected by the U.S. Constitution but that the Constitution actually prohibits Congress from providing such protection. I've never seen a more compelling argument for a constitutional amendment guaranteeing women's equality."
NOW further proclaimed, "The Rehnquist Court's ruling in U.S. v. Morrison is a setback for women's rights and a triumph for those that seek to roll back 30 years of federal civil rights law under the guise of states' rights.... For them, ending violence against women takes a back seat to preserving states' rights to deal with violence – or not deal with it at all."
The case was a victory for those who wish to limit federal power. In rejecting the VAWA, the U.S. Court of Appeals for the Fourth Circuit stated, "Such a statute...cannot be reconciled with the principles of limited federal government upon which this nation is founded." It objected to turning local offenses into federal crimes. As such, U.S. v. Morrison constitutes a stop sign in the recent political drive toward nationalizing certain selected crimes. U.S. v. Morrison is a return to fundamental Constitutional considerations and to the rule of law. William Mellor, president of the Institute for Justice, explained that the decision addressed "whether or not the Congress operates under enumerated and, therefore, limited powers; or whether it has authority to basically regulate any activity it sees fit."
U.S. v. Morrison is also a red flag for the importance of the upcoming elections. The 5 to 4 Supreme Court vote was typical of many recent decisions: that is, the ruling had the narrowest of majorities. Conceivably, the next president could appoint as many as three new Supreme Court justices. Will be appointments be made by Gore or Bush?
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