In a recent article on Slate.com, Claire Bushey examines the
practice, or lack thereof, of women who sue their rapists. She explains that ten
years ago, the Supreme Court struck down a vital component of the Violence Against
Women Act (VAWA) that allowed individuals to sue their rapists in federal court based on violation of civil rights claims. In 1994, Christy Brzonkala, a student at Virginia Tech, sued two
football players for raping her. She sued both the players and the school under
the VAWA’s civil rights policy. Yet, in United
States v. Morrison, the Supreme Court ruled
that “Congress had overstepped its constitutional authority by creating a
federal remedy in the criminal-justice realm that usually falls to the states”
and that Brzonkala’s case could only be heard by state, not federal courts.
This ruling has drastically affected the number of women
suing their rapists, Bushey explains. While there has been a sharp rise in
women filing lawsuits following a rape, the ruling makes it extremely difficult
to obtain representation or compensation when suing a rapist. Even when the
plaintiff wins (which is common), the rapists are often incapable of paying
even the lawyer’s fees. In turn, few lawyers will take these types of cases.
Instead, rape lawsuits generally go after third-party defendants, those who
have money. These defendants are often employers, such as rent-a-cops or
nursing homes, that don’t effectively screen their employees.
In contrast, the VAWA’s civil rights clause encouraged courts to
award attorney’s fees to successful plantiffs, making it easier for women to
obtain representation and thus sue their individual rapists. The clause also
extended the statute of limitations to four years, enabling victims more time
to deal with the devastating impacts of a rape and mount a case. But when the
Supreme Court struck down these clauses, they did away with these measures and
in turn made it increasingly difficult for women to sue their attackers.
Bushey argues that the ability to sue one’s rapist is particularly
critical because of the failure of criminal courts to effectively prosecute
rapists. She writes:
“Victims need the weapon of a lawsuit because the criminal
courts don't always serve their interests. A 2004 study
of sex crimes in Philadelphia and Kansas
City, Mo., found that only half
of the cases that resulted in an arrest were prosecuted. When prosecutors who
doubt a victim's story are unwilling to press criminal charges, a civil suit
allows the victim a different measure of justice. Juries determine guilt using
a lower burden of proof; instead of deciding whether a defendant is guilty
‘beyond a reasonable doubt,’ a plaintiff need only demonstrate that ‘a
preponderance of the evidence’ points to guilt, making it easier for victims to
prevail. Victims don't send their rapists to prison by suing them, but the
damages they can win are another form of punishment. Damages can also help
replace a rape victim's lost income and pay for counseling. ‘The criminal case
is about paying your debt to society,’ Dion says. ‘The civil case is about
[perpetrators] paying their debt to the victim.’
Along with its practical importance for victims, VAWA promised a more
abstract kind of benefit that was lost when the Supreme Court struck down the
relevant portion of the law. Introducing the legislation in 1990, then-Sen. Joe
Biden pointed out that more than 90 percent of sex crimes are committed against
women. And yet, he argued, ‘we ignore the implication: a rape or sex assault
should be deemed a civil rights crimes, just as 'hate beatings' aimed at blacks
or Asians are widely recognized as violations of their civil rights.’ Even when
states address rape victims' practical concerns by extending the time they have
to sue or encouraging courts to award attorney's fees, they don't challenge the
public to rethink rape as an attack on women because they are women—in other
words, as a form of discrimination.”
Indeed, in order to successfully sue rapists, the essential
components of the VAWA struck down by the Supreme Court must be reinstated. Rape
is a civil rights crime and a discriminatory attack against women and must be
understood as such. All legislation should accurately reflect this understanding
if we are to successfully work to prevent violence against women.
For Claire Bushey's article on Slate.com, click here.
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