Using Civil Rights to Combat Violence
Senator Joseph Biden introduced the “Violence Against Women Act” on June 19, 1990, followed by a one-day hearing. The proposed bill contained more than just the civil rights section that Nourse had pondered at the law library. The Violence Against Women Act—VAWA, as everyone came to call it—opened with Title I, “Safe Streets for Women.” It introduced numerous provisions to increase penalties for sexual assaults, and to require assailants to pay victims for losses such as medical costs and lost income. It also offered grants to states and cities to assist training police and others to prevent violence against women, and it provided funding to improve safety in public transit. Title II, “Safe Homes for Women,” focused on domestic violence and created a new federal criminal offense for batterers whose attacks involved crossing state lines.
Title III, “Civil Rights,” was both the shortest and the most ground-breaking of VAWA’s three sections. Nourse drew on past civil rights law, imbedding language such as the Fourteenth Amendment’s guarantee of privileges or immunities and the congressional discussion of discriminatory animus during passage of the Civil Rights Act of 1871. VAWA’s civil rights section sought to guarantee to women “equal protection of the laws” and “equal privileges and immunities under the laws” to be “free from crimes of violence motivated by the victim’s gender.” Such crimes were defined as “any rape, sexual assault, or abusive contact, motivated by gender-based animus.” For the victim of such gender-based crime, the civil rights section created a new right to bring a lawsuit in federal court—a right with century-old origins and a complicated history.
In the late nineteenth century, right after the Civil War, many states put laws on their books that promised equality of treatment for citizens; nonetheless, numerous states failed to give black citizens protection against attacks. Across wide regions of the South, violent gangs, often with names like the White Brotherhood and the Ku Klux Klan, began killing blacks and their white supporters in acts of race-motivated violence. The attackers sought, beyond mere terror, the destruction of northern efforts to give civil rights to southern blacks and the restoration to southern whites of what became known as “home rule.” Such attacks found their epitome in the late 1860s in Georgia when a gang of four hundred whites, including the local sheriff, fired guns into a group of blacks walking to a polling place to vote. When the blacks scattered, the whites pursued them, killing and wounding more than twenty.
To combat the violence, Congress passed the Civil Rights Act of 1871, which became widely known as the Ku Klux Klan Act. Legislating to enforce the Fourteenth Amendment’s promise of equal protection, Congress gave federal prosecutors the authority to arrest private individuals if they conspired to deprive anyone of the “equal protection of the laws.” Under the direction of a committed attorney general, the U.S. government by 1872 had indicted hundreds of Klansmen, put thousands to flight, and, according to Eric Foner in Reconstruction, his massive history of the years after the Civil War, broken the back of the Klan and reduced violence throughout the South. Along with its empowerment of federal prosecutors, the 1871 Civil Rights Act also empowered victims of race-motivated violence. It gave victims the power to sue their attackers in federal court if those attackers had conspired to deprive citizens of “the equal protection of the laws.”
In 1875, a new civil rights act responded to less dramatic but more pervasive deprivations of rights. It established legal penalties against “any person” who tried to deny to blacks a wide range of rights—including equal access to accommodation such as inns, to entertainment such as theaters, and to transportation such as trains. (In a compromise meant to make the bill easier to pass, an early revision stripped the bill of a clause that would have created multiracial schools and could have made unnecessary the legal battles that culminated in 1954 with Brown v. Board of Education and its condemnation of “separate but equal” public education.) Under the Civil Rights Act of 1875, blacks won the support of the federal government as they moved to desegregate such bastions as the Grand Opera House in New York and the Memphis & Charleston Railroad.
The great civil rights acts of the nineteenth century apparently arrived too soon. The 1871 Act went before the Supreme Court in 1883 when the federal government tried to bring to justice a white lynch mob led by a man known as R. G. Harris. The mob of twenty men had burst into a jail in Tennessee, pulled four blacks away from a deputy sheriff, and killed one. In response, in United States v. Harris, the Supreme Court in 1883 sided, in effect, with the lynch mob. The Court concluded that the Fourteenth Amendment did not empower Congress to resist discriminatory “action of private individuals.” Drawing on an earlier opinion by Justice Joseph P. Bradley—the justice who had invoked the “law of the Creator” in 1873 to explain why women could not practice law—the Court in Harris ruled that the Fourteenth Amendment authorizes Congress to create laws against “the exertion of arbitrary and tyrannical power on the part of the government and legislature of the State” but not laws against “the commission of individual offences.” Harris permitted federal prosecutors to combat only a lynch mob that received support from state officials—support from what the court called “state action.”
The Civil Rights Act of 1875 got less time to achieve its goals. Writing in what ironically became known as the Civil Rights Cases, also in 1883, Justice Joseph P. Bradley stopped cold the Act’s intent to open America’s hotels, theaters, and railway cars to blacks. Bradley delayed America’s movement toward civil rights by continuing his argument that the Fourteenth Amendment permitted the federal government to attack only state action. Bradley’s opinion for the Supreme Court meant that train conductors could expel blacks from trains cars of the Memphis & Charleston Railroad, for example, though Tennessee could not legislate the expulsion. It meant that a theater owner could refuse blacks a seat and a hotel owner refuse blacks a place to sleep, though no state could legislate such refusals.
In a lone dissent, Justice John Marshall Harlan attacked Bradley’s claim that Congress could not grant blacks the right to be free from race discrimination unless a state law assailed that right. Harlan also attacked other suggestions from Bradley, including that the former slave should cease to be the “special favorite of the laws” and that the Civil Rights Act of 1875 had sought to protect not civil rights but mere “social rights.”
The Supreme Court’s destruction in 1883 of the civil rights acts of 1871 and 1875 followed current events and Court decisions. In 1876, the Republican Party, after leading the struggle for emancipation of slaves, found itself unable or unwilling to resist attacks on black voters in the South during the presidential election of 1876. Losing southern states that he could have won, Republican Rutherford Hayes wound up with at best a one-vote victory in the electoral college. As he clung weakly to the presidency, Hayes yielded to the so-called Compromise of 1877, which permitted much-sought southern “home rule.” Withdrawing many federal troops from the South, the Hayes administration seemed desperate “to conciliate the white men of the South,” wrote one Kansas politician in February 1877, and to send others a message that included, as he put it, “Niggers take care of yourself.”
The triumph of home rule and states rights had already received aid from the Supreme Court. The Slaughter-House Cases of 1873, which had interpreted the Fourteenth Amendment so narrowly that it could not help Myra Bradwell win the right to practice law, had also defined the rights of blacks in narrow terms. By enumerating in the aftermath to Slaughter-House only such federal rights as running for federal office, traveling to seats of government, and entering navigable waterways, the Supreme Court offered little to just-freed slaves. It also offered little to a federal government that wished to defend blacks from attack by individual whites—unless those blacks were, for example, trying to enter a waterway.
The Supreme Court’s 1883 destruction of the civil rights acts of 1871 and 1875 rippled far into the twentieth century. The Court left Congress powerless, as argued by Professor Laurence Tribe of Harvard, “to prevent the emergence of ‘Jim Crow’ apartheid in the South.” Justice Bradley’s dismissal of blacks as “the special favorite of the laws,” as argued by Professor Jack Balkin of Yale, helped inform the infamous 1896 decision, Plessy v. Ferguson, in which the Supreme Court created the “doctrine of ‘separate but equal’ facilities that would be used to justify segregation for decades.” After the Court’s evisceration of the civil rights acts of the 1870s, no major civil rights legislation passed Congress for nearly a century. Even then, the so-called state-action requirement that was elaborated in 1883 to limit the federal government’s capacity to fight discrimination would weaken the grounding for the Civil Rights Act of 1964. It also had the potential to undercut an effort such as VAWA.
FORTUNATELY FOR VICTORIA NOURSE as she began drafting the civil rights section of the Violence Against Women Act for Senator Biden, she could rely on a provision of the 1871 Civil Rights Act that had survived: the right of citizens to bring a private lawsuit or civil action against individuals who have attacked them.
Drawing on the 1871 Act and Griffin v. Breckenridge of 1971, in which two white men who threatened to kill a group of black men in Mississippi were sued, Nourse worded VAWA to grant a woman attacked as a result of her sex the right to sue her attacker for gender-based deprivation of her civil rights. Nourse grounded VAWA’s challenge to gender-based violence, as Congress had grounded the 1871 law’s challenge to race-based violence, on the Fourteenth Amendment.
Though founded on the Constitution, Nourse’s civil rights section had the potential to attract political attack. Senator Biden’s staff decided to test it by having Nourse debate a staff member to see how it held up. The other staffer, a woman who had served as legal director, argued—not vociferously, as Nourse recalled—that the civil rights section could be dangerous politically. Nourse discussed legal wrongs. She focused on the problem of battering: assaults in the home were treated differently than assaults in the streets. She focused on inequities from state to state in the marital rape exemption: a man who raped a woman in Biden’s home state would face a reduced charge if she was a social companion. Nourse’s goal was to argue that many states were doing something wrong. She knew she had no weight on the staff, was a “nobody” in only her second meeting with Biden. But he was someone who believed in fighting, as she saw it, against “things that are wrong.” After the mock debate, Biden decided to commit to the civil rights section.
Once she had Biden’s go-ahead, Nourse began calling around Washington for input, but she found her greatest ally was in New York City: the NOW Legal Defense and Education Fund. “NOW Legal Defense,” as everyone called it, had been created by the National Organization for Women in 1970 as a separate advocacy organization. (In 2004, the organization changed its name to “Legal Momentum.”) Over the years, NOW Legal Defense had taken the lead in many women’s legal battles. Nourse’s call went to a 1982 graduate of Yale Law named Sally Goldfarb. Goldfarb had developed a specialty in working to expand and improve existing civil remedies for sexual abuse, such as easing the statute-of-limitations barriers that kept adults who had been abused as children from taking legal action against their abusers.
Nourse’s phone message reached Goldfarb when she was in Washington for a meeting of the so-called Feminist Legal Strategies Project, which gathered legal advocates from as far away as California. Soon Goldfarb was standing in Nourse’s office at the Senate Judiciary Committee. As Nourse described her concept of a civil rights law to oppose violence against women, Goldfarb’s response was amazement: she thought, she later recalled, “Wow—where did this woman come from?”
To Goldfarb, Nourse’s idea felt strikingly familiar. Goldfarb had traveled a different route to the same place. The valedictorian of her class at Princeton High School in New Jersey, she had gone to Yale College, where she majored in English and played viola in the Yale Symphony Orchestra. Graduating Phi Beta Kappa, she went on to Yale Law School. During her first year, in early 1980, she stepped into the first law course ever taught by Catharine A. MacKinnon, who was analyzing rape as a violation of the civil rights of women. “First time she taught,” Sally Goldfarb mused years afterward, smiling. “She later told me that she didn’t know what she was doing. Of course she transformed my life completely. After that, I knew I wanted to specialize in women’s rights.”
After Goldfarb graduated, she clerked for a federal judge in Wisconsin, held a fellowship at Georgetown University Law Center run by Susan Deller Ross (who years before had created the Pregnancy Discrimination Act in concert with Ruth Weyand, Wendy Williams, Ruth Ginsburg, and others), and then went back to Wisconsin as an assistant state attorney general. In 1985 she moved to New York to become staff attorney with NOW Legal Defense. After talking to Nourse, Goldfarb called MacKinnon, who said, as MacKinnon later recalled, “If Biden wants to do something for women, he should recognize rape and battering as federal sex-discrimination claims.”
THE COMBINATION OF SALLY GOLDFARB and NOW Legal Defense gave Victoria Nourse a crucial ally for the introduction of VAWA on June 19, 1990. Goldfarb drafted testimony to be delivered by her boss, Helen Neuborne. Nourse began preparing witnesses who could tell stories of having their lives altered by violence.
When Senator Biden convened the hearings in mid-June, he introduced VAWA’s civil rights section as perhaps the bill’s most important section. For too long, he said,
we have ignored the fight of women to be free from the fear of attacks based on their gender. For too long, we have kept silent about the obvious—97 percent of all sex assaults in this country are against women.
We know this; indeed, we assume it, but we ignore the implication: a rape or sex assault should be deemed a civil rights crime, just as “hate beatings” aimed at blacks or Asians are widely recognized as violations of their civil rights.
To capture how fear of sex-based violence alters women’s lives, Goldfarb’s language made the fundamental argument for VAWA:
Just as a democratic society cannot tolerate crimes motivated by the victim’s membership in a minority racial group and must pass special laws to combat such oppression, so too we must put into place effective laws to prevent and redress violent crime motivated by the victim’s sex.
She also made sure the argument remained grounded in women’s everyday lives. The testimony by Neuborne, speaking as executive director of NOW Legal Defense, opened with the story of a law professor at the University of Kentucky who began the discussion of rape in her criminal law class by asking each male student to tell the class what he does on a daily basis to protect himself from sexual assault. The men typically looked a bit blank. She then asked her female students, who filled in the blanks. One avoided a particular shopping mall because it lights its parking lot badly. One avoided the campus library at night when other students would be few. One locked all her windows shut at bedtime no matter how hot the weather. One, for fear of assault, carried a loaded gun.
In preparing the NOW Legal Defense testimony for her boss, Goldfarb was able to follow the lead, begun by Robin West and picked up by Nourse, of pointing to failures of justice that originated in state courts. Task forces on gender bias in the courts—like the one whose launching conference provided a forum for West to deliver her study on the enduring marital rape exemption—had originated in the work of NOW Legal Defense along with the National Association of Women Judges. Those task forces, operating in half the states, had encountered dramatic evidence of judicial mishandling of violence against women.
From a judge testifying to the New York task force about rape cases: “There are still all too many instances of the woman victim being put on trial with an underlying insensitivity permeating the courtroom.”
From a judge chairing the Minnesota task force: “ ‘Acquaintance rape’ promises to be one of the major upcoming issues with which the legal system must learn to deal effectively and with fairness to the victim.”
From a judge whose comments were reported by the Maryland task force: “I don’t believe that anything like this could happen to me,” said when explaining why he did not believe a woman’s claim that her husband held a gun to her head.
The hearings led to an outpouring of support, hundreds of letters and telephone calls from around the country, far more than Senator Biden’s office expected. With them came pressure to hold additional hearings on domestic violence and acquaintance rape. Nourse began to organize more hearings for late summer.
“DON’T YOU PEOPLE ALWAYS HAVE coalitions for everything?” Sally Goldfarb’s husband, Joe Straus, asked her that summer after the hearings. They were taking their usual vacation, hiking in the high peaks of the Adirondack mountains of New York. The hearings had left Goldfarb energized, telling her husband—a music professor whom she had met when they were both students at Yale—that the VAWA was the embodiment of the feminist vision. But she worried that, without wide support, it might go nowhere.
In Joe’s view, Sally always seemed to be heading off to multihour meetings with a coalition—on family leave, on childcare, and so on. One of her jokes was that in order to sit through all those coalition meetings, you had to have a strong bladder. So, asked Joe, why not create a new coalition? Yes, Sally thought, VAWA needed a coalition. But she told Joe she wasn’t sure anyone was committed enough to start one—except, perhaps she was. Would anyone join?
Once she had approval from her boss, Goldfarb sent a letter to organizations that NOW Legal Defense had worked with, inviting them to help create a “task force with committees to work on law and policy, and grassroots action.” The letter went out in late August. By the first week of September, Goldfarb was directing the task force’s first gathering. Those present at the cramped and file-filled headquarters of NOW Legal Defense in New York included, as noted by Sally in her minutes, representatives of the ACLU Women’s Rights Project; American Jewish Congress Committee for Women’s Equality; Center for Battered Women’s Legal Services Coalition Against Domestic Violence; National Center on Women and Family Law; National Council of Jewish Women; National Federation of Temple Sisterhoods; National Organization for Women; New York City Commission on the Status of Women; New York State Office for the Prevention of Domestic Violence; New York University Law School Criminal Defense Clinic; Pennsylvania Coalition Against Domestic Violence; and Women in Criminal Justice.
These potential task force members learned that twenty senators were already sponsoring VAWA and that thirty-eight congressmen, led by Barbara Boxer, were sponsoring a House version. In her minutes of the meeting, Goldfarb recorded many participants’ worries: Was Senator Biden “trustworthy”? Would he “sell out” civil liberties, perhaps even take steps toward restoring the death penalty for rape? Would civil rights groups not support VAWA because the civil rights section’s inclusion of women might dilute the civil rights of racial and religious groups? Could a “racist and sexist” criminal justice system be trusted to address issues of violence? The participants discussed what a task force should do if it chose to endorse VAWA. As Goldfarb could tell, she didn’t yet have a coalition. But she had a group that was ready to meet again and ready to agree that VAWA was a good idea.
The next three meetings, two in Washington and one in New York, brought in many new groups: the Anti-Defamation League; Center for Constitutional Rights; Center for Women Policy Studies; Coalition to Stop Gun Violence; Friends Committee on National Legislation; Kansas Coalition Against Sexual and Domestic Violence; Mennonite Coalition Committee; Mexican American Legal Defense and Education Fund; NAACP Legal Defense Fund; National Battered Women’s Law Project; National Education Association; National Federation of Temple Sisterhoods; National Women Abuse Prevention Project; National Women’s Law Center; Native American Rights Fund; New York City Task Force Against Sexual Assault; United Methodist Church; United States Student Association; Violence Against Women and Children Task Force; and Women of Reform Judaism.
Not every group had a participant at every meeting. Some attended one meeting and never returned. Many came again and again. Whether they came or not, Sally sent them meeting minutes, running often to ten typed pages, full of debate. By the November meeting, Goldfarb had a subcommittee able to agree that creation of a civil rights section for VAWA was worth considering. Goldfarb pushed for debate about what VAWA should cover, asking the group to discuss whether the civil rights section should reach the following crimes (as her minutes noted):
1) The homicide case in Canada in which a man separated the male and female students and killed only the women after announcing his hatred of women in a note and orally.
2) a domestic violence assault between adults in a home
3) stranger rape outside the home
4) Central Park Rape type crime—series of attacks by a group of men on both men and women, but the men are assaulted and robbed whereas the woman is far more severely beaten and is also raped.
Goldfarb was running a task force meeting as if it were a law school seminar, full of hypotheticals. The task force members dove into debates that would surface often: Were women attacked because they were small or because they were women? Did an attacker have to shout “bitch” to show bias? If an attacker said he hated blacks, hated gays, and loved women, and for those reasons attacked all three repeatedly, were women’s civil rights untroubled—since women faced not hate crimes but love crimes? Running her task force meetings, Goldfarb was not getting agreement on all issues. But by the end of 1990 she was getting a task force that had dozens of members ready to argue and organize about VAWA.
A BIG GAP REMAINED. Goldfarb and her boss, Neuborne, knew that Goldfarb was organized but no organizer. She knew law but not lawmakers. Who could help? Neuborne called Pat Reuss. Reuss was the longtime legislative director for the legendary Women’s Equity Action League, WEAL, the organization created by Bernice Sandler that in 1970 had discovered Executive Order 11246—the executive order that made law schools realize they could no longer have all-male faculties. Neuborne knew Reuss as one of the country’s great grassroots feminist organizers, somebody who built ties and then kept those ties, with people all over the country.
Also, Neuborne knew Reuss was running out of money. WEAL had folded. Then the Women’s Political Caucus, which hired Reuss as its legislative director, ran low on money and fired Reuss along with five other staffers. Reuss was suddenly an unemployed and divorced mother with three sons in college—“good kids,” she would say, willing to keep college cheap by sleeping on friends’ couches instead of sleeping in dorms. Organizing for women’s rights could be a bit like sleeping on couches: a life, not a living. Since NOW Legal Defense was also running low on money and had closed its offices in DC, hiring Washington-based Pat Reuss was a steal. For $1,600 a month, Neuborne could hire Reuss to work twelve-hour days for love of VAWA.
Reuss did love VAWA. The last fun for grassroots women, Reuss thought, was winning the vote in 1920. To Reuss, grassroots meant women all over the country—women who cared about issues and maybe even got organized into groups, but women who rarely came to Washington. The grassroots, Reuss thought, had been getting a few losses and a few victories but no fun. Losing the equal rights amendment after years of work was no fun. Losing legal cases like Geduldig v. Aiello meant losing pregnancy benefits, and that was no fun. But even the victories weren’t fun for the grassroots. Winning cases like Reed and Wiesenfeld was fun mostly for Ruth Ginsburg and her law students. Winning congressional passage of Title VII in 1964—partly thanks to the southern congressman who thought suggesting equality for women might kill the whole civil rights act—was fun mostly for a few smart congresswomen who beat him at his game. Unearthing Executive Order 11246 and getting women more places in universities was fun mostly for Bernice Sandler and WEAL. And now, from around the country, from the grassroots, Reuss was hearing that women hated violence against women and wanted VAWA and its civil rights section. You know why women are so excited about this? Reuss asked members of Goldfarb’s budding task force: It’s the first time since the equal rights amendment that they have the chance to work for a civil rights law that they perceive as their own.
So Goldfarb suddenly had an ally and a buddy. Montana-tawny in her skin and hair color, tending toward fuschia and lime in her clothing choices, Reuss teased Goldfarb relentlessly: Couldn’t Sally wear some color besides navy blue? Couldn’t Sally wear a little makeup on that porcelain skin? Couldn’t Sally attend a few more meetings? Reuss started dragging Goldfarb around Washington from eight o’clock in the morning to eight at night. When Goldfarb looked peaked, Reuss would pull a granola bar from her purse and tell her to “eat this” and keep working.
After Reuss joined the fight for VAWA in February of 1991, the coalition got bigger and bigger. Groups endorsing VAWA ran down the East Coast from Orono in Maine and Troy in New York to Wyncote in Pennsylvania and on to Columbia in South Carolina. They ran across the continent through Sutton in West Virginia, Saint Louis in Missouri, Eau Claire in Wisconsin, and on to Winona in New Mexico. They reached Seattle in Washington, Lake Oswego in Oregon, Culver City in California, and branched out to Juneau in Alaska and Hilo in Hawaii.
VAWA’s endorsers had names that could seem predictable, or not. Bronx Women Against Rape; Chicago Catholic Women; East Hawaii Alternatives to Violence; American Nurses Association; Maine Coalition for Family Crisis Services; No More Nice Girls; Pennsylvania Coalition Against Domestic Violence; Women in Film; Hispanic Health Council; Dominican Women’s Caucus; American Home Economics Association.
Groups were calling and writing their congressional representatives. They were requesting copies of Senate hearings from the Judiciary Committee. One day as copies of a new VAWA report headed off the shelves into the mails, the longtime staff member in charge of committee publications looked archly at Nourse and said, as she recalled, “Another one of your best-sellers, Victoria?”
Or, as Reuss liked to say, the grassroots were going berserk, and Congress got the message. By early 1992, VAWA’s list of cosponsors included 40 percent of the representatives and 50 percent of the senators.
To an extent, VAWA’s national support was perfectly matched to its national concerns. By the time Nourse began to produce the Senate’s report on VAWA in late October of 1991, she had received invaluable evidence from judicial gender-bias task force reports emerging all across America. She used the reports to remind her readers of the sort of legal treatment of women that had created the need for VAWA:
In Georgia, a judge reported that one of his colleagues, in a case of repeated domestic abuse, “mocked,” “humiliated,” and “ridiculed” the victim and “led the courtroom in laughter as the woman left. . . .” Subsequently, the woman was killed by her estranged husband.
In Vermont, a probation officer questioned whether a 9-year-old girl was a “real victim,” since he had heard she was a “tramp.”
In California, a judge commented at a hearing that a domestic violence victim “probably should have been hit.”
A Connecticut prosecutor badgered a 15-year-old: “Come on, you can tell me. You’re probably just worried that your boyfriend got you pregnant, right? Isn’t that why you’re saying he raped you?”
A Florida judge commented during sentencing that he felt sorry for a confessed rapist because his victim was such a “pathetic” woman.
This litany of judicial embarrassments had moved from presentations among judges, including the one in Florida, where Robin West proposed a federal law attacking the marital rape exemption, to the deliberations of the U.S. Congress. The work of one legal researcher in early 1990 had become, by late 1991, a broadly popular piece of legislation, supported by half the Senate, dozens of Congress members, and scores of grassroots women’s organizations from coast to coast. The prospects for VAWA seemed too good to be true.