Anti-Anti Violence Against Women? Why Some GOPers Voted “No” on VAWA.

Todd Panciera, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Todd Panciera, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

By Todd Panciera, Junior Editor

The Senate finally passed the reauthorization[1] of the Violence Against Women Act (VAWA), and some Republicans are taking heat for the delay.  Liberal blog site thinkprogress.org has gone as far as publishing photos of each of the 22 Senate Republicans that opposed the bill, here.Even GOP rising star Senator Marco Rubio (R-Fla.) (who delivered the Party’s response to the State of the Union) appears to be on the short list. But the Whitehouse saysthat reauthorizing VAWA is “more essential than ever.”[2]

The Violence Against Women Act was authored in 1994 by then-Senator Joe Biden.  VAWA represents a non-partisan solution to an obvious problem; we expect Congress to be fundamentally split over issues like healthcare and guns, but not over curbing domestic abuse.  That said, are we really just “rubber-stamping a politically attractive law,” as Christina Villegas suggests?  Villegas, a visiting fellow with the Independent Women’s Forum who is writing her PhD dissertation on VAWA, alleges (here) that VAWA is replete with bloat and waste and has not been credibly proven to reduce violence.  However legitimate their arguments, VAWA’s opponents risk their political caché by fighting legislation that — at least facially — is a comprehensive effort at a time when gender-based violence is getting renewed international attention.[3]Are deal-breaking concerns really being brushed aside by most of Congress so that it can avoid appearing to “wage a war on women?”

VAWA’s Effectiveness

According the Department of Justice, the rate of intimate-partner homicides has been trending downward since the passage of VAWA: the overall rate of occurrence has dropped more than 60% between 1994 and 2010, according to this DOJ Special Report.  Critics like Villegas, however, quickly point to the rest of this report, which notes similar rates of decline in all violent crime.  Further, post-2005 figures indicate that violent crime rates have continued this downward trend.  Compare that to intimate partner violence decline, which has leveled some.  Many, many scholarly works have attempted to compile these numbers into meaningful analysis, attacking or defending VAWA’s basic assumptions, the wisdom of its particular provisions, and even its constitutionality.  To borrow a wry phrase from one critic, VAWA “has proven to be a federal response to the problem of journal topic selection for American law students.”[4]

Congressional Points of Dissent

            Obviously, Congressional beef with VAWA doesn’t encompass the whole of VAWA scholarship.  Given historical precedent,as well as political limitations (namely, that any full scale assault on the idea of VAWA would surely be political suicide), congressional opponents are more likely to focus on a particular area of concern.  Representative of this approach are the comments of Senator Richard Shelby (R-Ala.): “I like the idea [of reauthorization].  There is too much violence against women and children in this country, a lot of it left unanswered.”[5]  Below, I focus on two of the most controversial areas.

I. Tribal Lands Provision

One of the primary points of contention is the amendment that would give tribal courts jurisdiction to prosecute non-Native American men who abuse Native American women on tribal lands.[6] In a position statement, Senator Rubio stated conclusively: “I have concerns regarding the conferring of criminal jurisdiction to some Indian tribal governments over all persons in Indian country, including non-Indians.”  Senator Chuck Grassley (R-Iowa) has been a more vocal opponent, arguing that because on tribal lands Native Americans would necessarily make up a trial court’s jury, such a jury wouldn’t be an accurate cross-section of the community, an essential guarantee of the Sixth Amendment.[7] The concern isn’t only for the rights of alleged abusers, either.  Senator John Cornyn (R-Texas) warns that VAWA could be put in jeopardy if a court were to find a constitutional problem.  Republican supporters have tried to shed light on the constitutionality of this provision, however, noting that jurisdiction is not being removed from courts of the United States, but would be concurrent with the very limited jurisdiction the amendment would confer to tribal courts.  Further, they note that tribal courts are subject to the same constitutional constrictions as other U.S. courts.[8] Republican opponents like Grassley were at least partially successful in modifying the tribal provision to bolster constitutional guarantees, ensuring that the accused may elect to transfer venue to a non-Native court.

II. Immigration Provision

            Opponents claim that the immigration amendment allows illegal aliens to remain in the United States simply by alleging domestic abuse, due to a broadening of the provisions of the Immigration and Nationality Act.  Essentially, VAWA modifies the INA by allowing aliens to obtain visas by “self-petitioning” under certain circumstances.[9]  These so-called “U visas” are given to victims of violent crimes in exchange for cooperation with law enforcement.  Under the current law, 10,000 U visas are given out each year — the immigration provision proposes to expand that number to 15,000, and some Senate opponents see a potential for abuse.  They claim that growing the cap on U visas encourages illegals to make false reports; one critic notes that an immigrant can even apply for a U visa as a “last-ditch Hail-Mary pass to avoid being sent home” after being ordered deported.  On the ground, though, initial skeptics like San Francisco Police officer Tony Flores have noted being surprised by a lack of false reports.  Others have seen more questionable U visa petitions, such as one submitted after a woman’s teenage son slapped her when she told him to get off the computer.  What is most notable, however, is that whether the cap is 10,000 or 15,000, the amendment makes clear that a person must show “substantial harm,” and acceptance of a petition is discretionary.

Ultimately, Congress is getting closer to reauthorizing VAWA after more than a two-year lapse.  Even among its most prominent critics, VAWA generally is recognized as a positive advancement for the protection of domestic violence and sexual assault victims.  Congressional dissenters afford due credit for its role in “reducing the incidence of domestic violence by more than 50 percent, among other successes.”[10] Contrary to one of Villegas’s more superficial concerns, VAWA is still aptly named; studies makes clear that most victims are women,[11] and being so-named does not preclude men from its protections.  Ultimately, like any good bill, its shortcomings are outweighed by positives and after all, as Senator Bob Corker wisely quipped: “Up here, you can’t vote for part of a bill.” The House is expected to vote on the bill as early as next week.[12]

 

 


[1]Here’s a rundown of the salient points, according the Whitehouse: http://www.whitehouse.gov/sites/default/files/docs/vawa_factsheet.pdf.  The full text of the bill (S.47) can be found here: http://thomas.loc.gov/cgi-bin/query/z?c113:S.47:

[2] The Whitehouse adds the claim that the 1994 version of VAWA has caused the incidence of domestic violence to drop more than 50%.

[3] Recently gender-motivated crimes have received much global attention, prodded by recent exposés of India’s “rape crisis”: http://www.cnn.com/2012/12/21/world/asia/india-rape-danger

[4] Christopher James Regan, A Whole Lot of Nothing Going On: The Civil Rights “Remedy” of the Violence Against Women Act, 74 Notre Dame L. Rev. 797 (1999).

[5] Emphasis mine

[6] For an excellent discussion about the merits of this provision, see DJ Harris, Native American Sexual Assault: Amendments to the Violence Against Women’s Act, Ala. Civ. Rights Blog (Sep. 5, 2012), https://alabamacivilrights.wordpress.com/2012/09/05/native-american-sexual-assault-amendments-to-the-violence-against-womens-act/

[7] While not entitled to a jury that mirrors the community as a whole, a criminal defendant is entitled to a jury pool of persons constituting a fair cross-section of the community.  See Taylor v. Louisiana, 419 U.S. 522 (1975).

[8] The Act specifically mentions jury selection in Section 904(f)(1)(H)(3).

[11] According to the report, 4 out of 5 victims of intimate-partner abuse are female.

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