Secondary Readings on the VAWA Civil Rights Provision

VAWA Civil Rights Remedies

Greenhouse, Linda, "Justices Cool to Law Protecting Women," New York Times Jan. 12, 2000.

Mauro, Tony, "States' Rights Triumph in Supreme Court Kimel Decision, Oral VAWA Argument," Legal Intelligencer Jan. 12, 2000

National Public Radio, Transcript, "Supreme Court Reviews Congress' Rulings on Age Discrimination and States' Rights," All Things Considered Jan. 11, 2000.

NOW Legal Defense and Education Fund, "Proving 'Gender-motivation' in VAWA Civil Rights Remedy Cases," at (

VAWA Civil Rights Remedies

"…(V)iolence that primarily targets women has too often been dismissed without response…I've become convinced that the violence against women reflects as much a failure of our nation's collective moral imagination as it does a failure of our nations' laws and our nations' regulations. We are helpless to change the course of this violence…unless and until we achieve national consensus that it deserves our profound public outrage and laws that reflect that profound public outrage…The bill is the first comprehensive approach to fighting all forms of violence against women…But most important in my view, the VAWA creates for the first time a civil rights remedy for victims of crime motivated by gender" [emphasis added].

Senator Joseph Biden (D-De), one of the primary sponsors of the VAWA, Major Leader Special Transcript, Response to Release of "Response to Rape Report," Federal News Service, May 27, 1993.

The VAWA gives all persons the right to be free from gender-motivated violence. This civil rights provision is both the most important and the most controversial of the entire Act. The civil rights provision embodies the spirit of the VAWA.  It gives women who have been victims of gender-motivated violence the right to bring a private suit in federal court.  If successful, plaintiffs can recover compensatory and punitive damages and injunctive or declaratory relief.  The civil rights provision recognizes, for the first time, the right to be free from gender-motivated violence as a federal civil right.

In order to recover under §13981, a plaintiff must prove that she was the victim of a crime of violence and that the crime was committed because of gender or on the basis of gender and was due, at least in part, to a gender-based animus.   Random acts of violence are not covered; the court must determine, based on a “totality of the circumstances,” that the violence was not random but gender-motivated.  Please read over the statute, 42 USCA § 13981, and the brief summary authored by the NOW Legal Defense and Education Fund on proving gender-motivation (only the first 3 paragraphs are required; the case summaries are optional).

The right to be free from gender-motivated violence is intuitive at some level. Many women understand this as an important tool to fight male oppression. The civil rights provision seems less intuitive to many males--powerful males-- who have used their high offices to oppose it. Chief Justice Rehnquist, for example, has twice spoken out publicly against the civil rights provision (rare public commentary for a Chief Justice) and criticized it in his 1991 Year-End Report on the Federal Judiciary. The Fourth Circuit cited these objections with approval in holding the civil rights remedy unconstitutional in the Brzonkala case. The heart of the objection was that a federal civil right to be free from gender-motivated violence would intrude on areas of regulation traditionally allocated to the states. Yet, thirty-eight state attorneys general supported the VAWA Civil Rights remedy. These arguments are currently playing themselves out in the Supreme Court, which heard arguments on the constitutionality of the civil rights provision (only) on January 11, 2000. Please read any one of the following news accounts of the oral arguments which include excerpts from the arguments themselves.  

The first case brought under the statute involved a 19 year-old college freshman, Christy Brzonkala, who alleged she was raped by two college football players within days of starting school at Virginia Polytechnical Institute. She initially told no one about the attack, but after a failed suicide attempt, she reported the rapes to the school. The school brought charges against the men, eventually suspending one of them for a year and dismissing the charges against one for lack of evidence. However, the suspension was lifted by the school  and the defendant returned to school the next fall on full athletic scholarship. When Christy learned of this, she withdrew from school and initiated the civil rights suit.

The District Court found that Brzonkala's allegations would constitute a case for gender-based animus, but struck down the statute as an unconstitutional exercise of Congressional authority under the Commerce Clause. Some of the evidence that constituted gender-based animus was that among other things, defendant Antonio Morrison allegedly warned Brzonkala after the rape that she “better not have any fucking diseases” and announced in a dining hall that he “like[d] to get girls drunk and fuck the shit out of them.”

In 1997, a panel of 4th Circuit judges upheld the constitutionality of the VAWA Civil Rights Remedy (and held that Brzonkala had stated a valid claim). The 2-1 decision was authored by Judge Diana Motz. It went through the legislative record of the VAWA in great detail, concluding that violence against women had a substantial effect on interstate commerce, and thus was a constitutional exercise of Congressional authority. Judge Luddig dissented, assuring the public that his bretheren would likely reverse the decision when they reheard it en banc. Indeed, the first ruling was reversed on March 5, 1999 when, in a 7-4 en banc decision, the Fourth Circuit Court of Appeals held that Congress did not have the authority to create the Civil Rights Remedy.  Brzonkala v. Virginia Polytechnic, 169 F.3d 820 (4th Cir. 1999) (this full text version is optional; excerpts from the case are assigned below).  Please read these excerpts from the Circuit Court decision; as you read, please note that much of the argument references US v. Lopez, a Supreme Court case striking down Congressional legislation criminalizing gun possession near public schools.  U.S. v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L.Ed.2d 626 (1995).  The Court in Lopez held that legislation to be an unconstitutional assertion of Congressional power under the Commerce Clause (the same Clause at issue in Brzonkala). 

(For summaries of the various VAWA Civil Rights cases, please see the NOW LDEF here; this reading is not required). 

Many other courts across the country have upheld the constitutionality of the Civil Rights Remedy, and recognized the gender-based motivation of the various crimes of violence against women. The Supreme Court is expected to issue its decision in late spring or early summer.

Greenhouse, Linda, "Justices Cool to Law Protecting Women," New York Times Jan. 12, 2000.