United States. Congress. House. Committee on the J.

Crimes of violence motivated by gender : hearing before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, House of Representatives, One Hundred Third Congress, first session, November 16, 1993 online

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CRIMES OF VIOLENCE MOTIVATED BY GENDER



HEARING

BEFORE THE

SUBCOMMITTEE ON
CML AND CONSTITUTIONAL RIGHTS

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRD CONGRESS

FIRST SESSION



NOVEMBER 16, 1993



Serial No. 51



HV
6625
.C86
1994




*rinted lor



Committee on the Judiciary



81-153 cc



U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1994



For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-046186-3




Y



u .s ^^/ i



I ■ /o:i /s



T" I



CRIMES OF VIOLENCE MOTIVATED BY GENDER



HEARING

BEFORE THE

SUBCOMMITTEE ON
CIVIL AND CONSTITUTIONAL RIGHTS

OF THE

COMMITTEE ON THE JUDICIAKY
HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRD CONGRESS

FIRST SESSION



NOVEMBER 16, 1993



Serial No. 51



HV

6625
.086
1994




Vinted tor



Committee on the Judiciary



81-153 cc



U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1994




For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-046186-3



COMMITTEE ON THE JUDICIARY

JACK BROOKS, Texas. Chairman
DON EDWARDS, California HAMILTON FISH, Jr., New York
JOHN CONYERS, Jr.. Michigan CARLOS J. MOORHEAD, California
ROMANO L. MAZZOLI, Kentucky HENRY J. HYDE, Illinois
WILLIAM J. HUGHF« ^'"- '"— • ^ iA».n.o ^„»,^„^rx,^^ ,, j^

MIKE SYNAR, O'
PATRICIA SCH'
DAN GLICKM/
BARNEY FRA>
CHARLES E. S
HOWARD L. B!
RICK BOUCHE
JOHN BRYANT
GEORGE E. Si^
CRAIG A. WAS
JACK REED, R
JERROLD NAD
ROBERT C. SC
DAVID MANN,
MELVIN L. WA
XAVIER BECEl



K\' 6625 .C86 1994
United States. Congress.

House. Cormittee on the
Crinies of violence motivated

by Qender

DATE DUE



PATRICIA SCH
BARNEY FRAN
CRAIG A. WAS!
JERROLD NAD



HAMPDEN LAW LIBRARY

50 State St, P.O. Box 559

Springfield, MA 01102-0559

(413) 748-7923



DEMCO



CONTENTS



HEARING DATE



Page

November 16, 1993 00

OPENING STATEMENT

Edwards, Hon. Don, a Representative in Congress from the State of Califor-
nia, and chairman. Subcommittee on Civil and Constitutional Rights 00

WITNESSES

Fein, Bruce, attorney at law, Great Falls, VA 26

Goldfarb, Sally, senior stafT attorney, NOW Legal Defense and Education

Fund 2

Ireland, Patricia, president, National Organization for Women 112

Smeal, Eleanor, president, Fund for the F'eminist Majority 114

Symonds, Elizabeth, legislative counsel, American Civil Liberties Union 17

Turner, James P., Acting Assistant Attorney General, Civil Rights Division,

U.S. Department of Justice 96

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Abrams, Robert, attorney general, State of New York: Prepared Statement ..... 34
Edwards, Hon. Don, a Representative in Congree from the State of California,

and chairman. Subcommittee on Civil and Constitutional Rights:

Letter dated November 16, 1993, to Chairman Edwards, from District
Judge Stanley Marcus, U.S. District Court, Southern District of Flor-
ida . 70

Letter dated November 16, 1993, to Chairman Edwards, from Lyle Reid,

Chief Justice of Tennessee, on behalf of Conference of Chief Justices 77

Opening statement 90

Goldfarb, Sally, senior staff attorney, NOW I^gal Defense and Education

Fund: Prepared statement 4

Hyde, Hon. Henry J. Hyde, a Representative in Congress from the State

of Illinois:

Opening statement 92

Prepared statement 89

National Association of Women Judges: Prepared statement 30

Neuborne, Burt, professor of law. New York University: Prepared statement .. 38
Schroeder, Patricia, a Representative in Congress from the State of Colorado:

Opening statement 94

Smeal, Eleanor, president. Fund for the Feminist Majority: Prepared state-
ment 116

Sunstein, Prof. Cass R., University of Chicago: Prepared statement 51

Symonds, Elizabeth, legislative counsel, American Civil Liberties Union: Pre-
pared statement 19

Turner, James P., Acting Attorney General, Civil Rights Division, U.S. De-
partment of Justice: Prepared statement 99



(III)



CRIMES OF VIOLENCE MOTIVATED BY

GENDER



TUESDAY, NOVEMBER 16, 1993

House of Representatives,
Subcommittee on Civil and Constitutional Rights,

Committee on the Judiciary,

Washington, DC.

The subcommittee met, pursuant to notice, at 1:35 p.m., in room
2237, Rayburn House Office Building, Hon. Don Edwards (chair-
man of the subcommittee) presiding.

Present: Representatives Don Edwards, Patricia Schroeder,
Barney Frank, Jerrold Nadler, Henry J. Hyde, Howard Coble, and
Charles T. Canady.

Also present: Catherine LeRoy, counsel, Virginia Sloan, assistant
counsel; James X. Dempsey, assistant counsel; and Kathryn
Hazeem, minority counsel.

OPENING STATEMENT OF CHAIRMAN EDWARDS

Mr. Edwards. This is an oversight hearing on crimes of violence
motivated by gender.

As you can see from the schedule, we had scheduled as our first
witness James Turner, Acting Assistant Attorney General of the
Civil Rights Division. He is en route.

In the meantime, will panel number one come to the witness
table— Sally Goldfarb, senior stafT attorney. National Organization
for Women, Legal Defense and Education Fund, from New York;
EHzabeth Symonds, legislative counsel, American Civil Liberties
Union, here in Washington, DC; Bruce Fein, attorney at law. Great
Falls, VA.

We welcome all of you. We have some time restraints, because
Mr. Schumer's Subcommittee on Crime and Criminal Justice will
meet within an hour and a half or so, and we have to adjourn for
the markup of some very important bills. So we're going to try to
limit you to around 5 or 6 minutes. We'll be as generous as we can
with the time. You'll see the little red light go on, which means you
can sort of wind up.

Ms. Goldfarb, you are welcome. Without objection, all three of
your statements will be made a part of the record in full. Ms. Gold-
farb, you may proceed.



(1)



STATEMENT OF SALLY GOLDFARB, SENIOR STAFF ATTORNEY,
NOW LEGAL DEFENSE AND EDUCATION FUND

Ms. GoLDFARB. Thank you, Mr, Chairman and members of the
subcommittee. I am Sally Goldfarb, senior staff attorney of the
NOW Legal Defense and Education Fund.

On behalf of the NOW Legal Defense and Education Fund, I
chair a national task force of hundreds of religious, labor, medical,
mental health, aging, civil rights, women's, children's and victims'
rights organizations, all of which are concerned about the impact
of violence on the lives of women and girls. NOW LDEF strongly
urges you to support the civil rights provision of the Violence
Against Women Act, which we view as a major step forward for
women's equality.

Currently, there is an epidemic of violent crime against women,
and women and girls are targets for many types of violence because
of their sex. It is certainly true that many men are victims of
crime, and this is a source of concern as well.

However, women must fear not only the crimes that confront all
members of society, but also those that are inflicted exclusively or
predominantly on the female half of our population. When half of
our society is at risk of terror, brutality, serious injury and
even death just because they are female, that is a form of
discrimination.

In recent years, we have made dramatic progress toward legal
equality for women. But existing laws are worth little if women
just jeopardize their physical safety to seek out the opportunities
that are open to them at home, work, school, and in the
community.

The Violence Against Women Act would declare that crimes of vi-
olence motivated by gender are discriminatory and violate the vic-
tim's civil rights under Federal law. It would provide a civil cause
of action for the deprivation of this right.

Both H.R. 1133 and S. 11, which are under consideration in the
Senate, contain several important limitations that curtail the scope
of this new Federal remedy. The bills do not confer jurisdiction on
Federal courts to decide divorce or domestic relations cases. Cases
filed in State court may not be removed to Federal court.

The civil rights remedy will cover only those acts that rise to the
level of a felony under State or Federal law, and the burden rests
on the plaintiff at all times to prove by a preponderance of the evi-
dence that the crime was motivated by gender. Thus, it's very clear
that not every crime against a woman would qualify for relief
under the bill.

However, there are also differences between the House and Sen-
ate bills. In May of this year, S. 11 was narrowed in several signifi-
cant ways in an effort to clarify the cause of action. As a result,
title III in the Senate bill now provides that only crimes against
a person and crimes against property that pose a risk of physical
injury to a person are covered.

The Senate bill has deleted the presumption that rape and sex-
ual assault are motivated by gender, and the Senate bill has added
a requirement that in order to meet the definition of crime of vio-
lence motivated by gender, the plaintiff must prove that the crime
was due at least in part to an animus based on gender.



All of these changes were adopted after extensive discussions
with Federal judges, civil liberties groups, and others concerned
about the scope of the proposed civil rights remedy.

NOW Legal Defense and Education Fund strongly supports title
III of H.R. 1133 in its present form. We feel that it is clear, work-
able, and sound public policy. However, we have also endorsed the
Senate bill, S. 11. Therefore, if it is necessary to modify the House
bill along the lines already adopted in the Senate, NOW LDEF will
continue to support this legislation.

Some have asked how the Violence Against Women Act's civil
rights remedy will apply in practice. A very good analogy is pro-
vided by looking at how people prove that a crime is racially moti-
vated under civil rights laws that exist today.

The evidence typically presented in those cases includes racially
derogatory remarks made by the assailant, membership of the vic-
tim in a different racial group than the assailant, a history of simi-
lar attacks by that assailant against other members of the victim's
racial group, a pattern of attacks in a certain neighborhood or time
period, lack of provocation, use of excessive force and so on. No one
of these elements is indispensable, and each case is judged on the
totality of its own facts.

Nevertheless, it's clear that if you substitute the word gender in
place of race in that list, many but not all crimes against women
will qualify as crimes of violence motivated by gender.

Enactment of title HI of the Violence Against Women Act would
convey a very powerful message that violence motivated by gender
is not just an individual crime or personal injury, but is a form of
discrimination. It's an assault on our publicly shared idea of
equality.

But the impact of this legislation will not be purely symbolic.
Many victims who are currently denied access to justice under
State criminal and civil laws would for the first time have the op-
portunity to seek legal redress.

The Congress has a historic opportunity to play a crucial role in
the effort both to combat crime and to redress discrimination
against women. We urge you to support the Violence Against
Women Act. Thank you.

I will be happy to answer any questions you might have.

Mr. Edwards. Thank you very much.

[The prepared statement of Ms. Goldfarb follows:]



Prepared Statement of Sally Goldfarb, Senior Staff
Attorney, NOW Legal Defense and Education Fund



Mr. Chairman and members of the Subcommittee, thank you for the
opportunity to appear before you to discuss the Violence Against
Women Act, H.R.1133. I am Sally Goldfarb, Senior Staff Attorney of
the NOW Legal Defense and Education Fund (NOW LDEF) . NOW LDEF is
an independent, non-profit public interest legal organization
dedicated to eliminating sex discrimination and securing equality
for women and girls. Violence against women is one of NOW LDEF' a
chief concerns, and we have been working for several years to
support the enactment of the Violence Against Women Act.

On behalf of NOW LDEF, I chair a national task force of almost one
thousand organizations and individuals concerned about the epidemic
of violence currently facing American women. The task force
includes groups from the religious, labor, medical, mental health,
aging, civil rights, women's, children's and victims' rights
communities, all of which are united by a concern about the impact
of violence on the ability of women and girls to participate as
equals in our society. I am here today, however, to present the
views of the NOW Legal Defense and Education Fund on this important
legislation. NOW LDEF strongly endorses the Violence Against Women
Act and urges you to support it. I will focus my remarks today on
Title III of the Act, which we view as a major step forward for
women's equality.

The Epidemic of Violent Crime Against Women

In America today, a woman faces a startlingly high likelihood of
being the victim of a violent crime. Grim statistics reveal the
thread of violence that runs through the lives of American women.

* Every 15 seconds, a woman is beaten by her husband or
boyfriend. '

* Every 6 minutes, a woman is forcibly raped.'

* One fifth tti one half of American women were sexually abused
as children, most of them by an older male relative.^

* One out of every eight adult women, or at least 12.1 million
American women, has been the victim of forcible rape sometice
in her lifetime.*

Women in all walks of life are at risk.

* One out of every four female college students will be sexually
attacked before graduating; one in seven will be raped.'

* The murder rate for women aged 65 and older has climbed by 30
percent since 1974, while the murder rate for men in the same
age group has dropped by 6 percent.'



* African-American women are almost twice as likely to be raped
as white women. Yet rapes of African-American women are less
likely than rapes of white women to result in prosecution,
conviction, and stern sentences.^

* Domestic violence cut's across all racial, religious, ethnic
and socioeconomic lines.'

Gender-Motivated Violence; An Assault on Women's Right to Equality

Women and girls are targets for many types of violence because of
their sex . It is certainly true that many men are victims of
crime, and this is a source of concern as well. However, women
must fear not only the crimes that confront all members of our
society, but also those that are inflicted exclusively or
overwhelmingly on the female half of our population.

* During the past decade, rape rates have risen nearly 4 times
as fast as the total crime rate.'

* Since 1974, the rates for assault and many other violent
crimes against women have increased dramatically, while the
rates for the same crimes against men have actually
declined. '"

* Girls are estimated to be two to ten times more likely to
suffer childhood sexual abuse than boys."

When half the members of our society are at greater risk of terror,
brutality, serious injury and even death just because they are
female, that is a form of discrimination. Moreover, violent
attacks reinforce and maintain the disadvantaged status of women as
a group.

* Empirical studies of convicted rapists demonstrate that they
hold extreme attitudes about men's right to dominate women and
women's inherent inferiority."

* In December 1989, a man murdered fourteen female engineering
students in Montreal after proclaiming his vicious hatred of
all women and especially of "feminists.""

* Much like racial attacks, attacks on individual women create
a climate of terror that makes all women afraid to step "out
of line." Pervasive fear of sexual assault and other crimes
forces woiuen to take elaborate precautions that limit their
options for education, employment, travel, and other
activities.

In recent years, we have made dramatic progress toward legal
equality for women. But existing laws against discrimination are
worth little if women must jeopardize their physical safety to seek



out the opportunities that have been opened to then at home, work,
school, and in the community.

The Violence Against Women Act^s Civil Rights Provision

The versions of the Violence Against Women Act that are under
consideration in the House (H.R. 1133) and the Senate (S. 11) both
contain a civil rights provision in Title III. Both would declare
that crimes of violence motivated by gender are discriminatory and
violate the victim's civil rights under federal law. Both provide
a civil cause of action for deprivation of this right. A person
who proves that a crime of violence was motivated by gender is
eligible to receive compensatory damages, punitive damages,
injunctive relief and declaratory relief.

However, there are differences between the two bills. In May of
this year, the Senate bill was narrowed in several significant ways
in an effort to clarify and limit the cause of action provided.
These changes were adopted after extensive discussions with federal
judges, civil liberties groups, and others concerned about the
scope of the proposed civil rights remedy. As a result. Title III
of the Senate bill now provides that only crimes against a person,
and crimes against property that pose a risk of physical injury to
a person, are covered; deletes a presumption that rape and sexual
assault are motivated by gender; and adds a requirement that, in
order to meet the definition of "crime of violence motivated by
gender," the plaintiff must prove that the crime was due, at least
in part, to an animus based on gender.

The NOW Legal Defense and Education Fund strongly supports Title
III of H.R. 1133 in its present form. We feel that the definition
of "crime of violence motivated by gender" furnished in the bill is
clear, workable, and sound public policy. However, we have also
endorsed the Senate bill, S. 11. Therefore, if it is necessary to
modify the House bill along the lines already adopted in the
Senate, NOW LDEF will continue to support the legislation. If the
term "animus" is adopted, it would be helpful to clarify that the
term means simply intent or purpose, as it was originally used in
the case Griffin v. Breckenridge . 403 U.S. 88 (1971).

Several important limitations already appear in both H.R. 1133 and
S. 11. Both bills contain an explicit statement that the Violence
Against Women Act does not confer jurisdiction on federal courts to
decide divorce or domestic relations cases. In addition, the civil
rights remedy extends only to acts that wo'>ld rise to the level of
a felony under state or federal law. It does not cover random acts
of violence unrelated to gender. Thus, it is amply clear that not
every crime against a woman would qualify. Indeed, the civil
rights remedy is gender-neutral and is available to male or female
victims of serious gender-motivated crimes.



The burden rests on the plaintiff to prove by a preponderance of
the evidence that the crime was motivated by gender. Proving that
a crime was gender-motivated under the new law will presumably be
analogous to proving that a crime was racially motivated under
existing laws. Evidence typically presented in civil rights cases
alleging racial violence include: racially derogatory epithets
used by the assailant, membership of the victim in a different
racial group than the assailant, a history of similar attacks by
the assailant against other members of the victim's racial group,
a pattern of attacks against victims of a certain race in a certain
neighborhood and time period, lack of provocation, use of force
that is excessive in light of the absence of other motivations,
etc." By substituting "gender" for "race" in the foregoing list,
it becomes apparent that many — but not all — crimes against
women will qualify as crimes of violence motivated by gender.

Recognizing the gender-discriminatory element in some violent
crimes is not radical or unprecedented. Not only does federal law
already contain civil remedies for racially-discriminatory
violence, but the Hate Crimes Sentencing Enhancement Act of 1993
(H.R. 1152), which passed this House in September and is under
consideration as part of the Senate crime bill, provides increased
sentences for defendants convicted in federal court of having
selected a victim because of gender. The Violence Against Women
Act simply takes this principle and applies it to a civil, rather
than criminal, remedy. Moreover, unlike the Hate Crimes Sentencing
Enhancement Act, application of the Violence Against Women Act is
not limited to crimes occurring on federal lands.

To the extent that questions remain about how this cause of action
will work in practice, this is to be expected with any cutting-edge
legislation. As Judge Stanley Marcus, chair of the U.S. Judicial
Conference Ad Hoc Committee on Gender-Based Violence, has helpfully
pointed out, it is inevitable that there are some questions about
legislation that cannot be answered until cases are litigated and
judges have the opportunity to apply the law to specific facts.

What Title III Will Accomplish

Because of gender-based violence, American women and girls are
relegated to a form of second-class citizenship. Just as a
democratic society cannot tolerate violence motivated by the
victim's membership in a minority racial group, and must pass
special laws to combat such oppression, so too we need effective
federal laws to combat "violent crimes motivated by the victim's
gender.

The enactment of civil rights legislation would convey a powerful
message: that violence motivated by gender is not merely an
individual crime or a personal injury, but is a form of
discrimination, an assault on a publicly-shared ideal of equality.
When half of our citizens are not safe at home or on the streets



8



because of their sex, our entire society is diminished.

The impact of the legislation would not be purely symbolic,
however. Federal recognition that gender-based violence is a form
of discrimination is likely to alter the way both men and women
regard sexual assault and domestic violence. The impact of this
attitudinal change will be felt in homes, streets, and workplaces.
It will also be felt in courtrooms. Currently, jury studies and
research on gender bias in the judiciary have shown that the "boys
will be boys"/"8he must have asked for it" mentality that prevails
in most sectors of our society has a direct, measurable effect on
the outcome of cases involving sexual assault, domestic violence,
and a host of other issues where men's violence toward women is
directly or tangentially involved.'* Thus, the educational power
of the VAH Act is of immense practical importance to the
development of American law.

In addition, many victims who are currently unable to succeed in
state criminal and civil proceedings would, for the first time,
have access to legal redress.

It is not true that all men who beat or rape women lack the
resources to pay damages. In fact, violence against women is found
at every socioeconomic level in America. For some victims, even a
damages judgment that cannot be collected (or a judgment granting
only declaratory or injunctive relief) will be seen as an immensely
valuable vindication of their rights.

Enactment of the Violence Against Women Act will not eliminate
rape, domestic violence, and other sex-based attacks on women, any
more than passage of the civil rights legislation of the 19th
century and the mid-20th centiary has eliminated racism.
Nevertheless, the power of this proposed federal civil rights law
to improve the prospects for social justice and equality are
substantial.

State Criminal and Civil Laws Are Not Adequate
to Protect Victims of Gender-Motivated Crime

The existence of state criminal and tort laws covering rape and
domestic violence does not do away with the need for a federal
civil rights remedy. First, a federal civil rights law would
redress a different injury than the injuries that are at issue in
state criminal and tort proceedings."

In addition, gender-motivated crimes are currently iiot being
adequately addressed in the state courts.

* A woman is forcibly raped by her husband. In over half the
states, he is immune from prosecution under many or most
circumstances — for example, if the couple is living together
and no divorce or separation papers have been filed."



* A young woman is sexually assaulted by her boyfriend. Several
states have statutes exempting cohabitants and dating


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Online LibraryUnited States. Congress. House. Committee on the JCrimes of violence motivated by gender : hearing before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, House of Representatives, One Hundred Third Congress, first session, November 16, 1993 → online text (page 1 of 11)