A little while ago in this space I knocked Bill Pryor for his role as the only state Attorney General to file an amicus brief opposing Subtitle C of the Violence Against Women Act. Under VAWA rape survivors were empowered to sue their rapists for compensation in federal court even when the local and state criminal system has failed them. Unconscionably, the Supreme Court struck down Subtitle C in Brzonkala v. Virginia Polytechnic Institute, thus giving rapists a King’s X from the well-established power of Congress to federalize civil rights cases when state or local remedies cannot be trusted.
Of course, that raises the question: why can’t state and local remedies be trusted? Well, because of assholes like this guy:
During proceedings in the rape case Monday before the prosecutor and defense attorney, Stephenson looked at
a photograph of the battered victim and said,
Why would he want to rape her? She doesn’t look like a day at
the beach, according to a transcript reviewed by the Orlando
The victim was not in the courtroom at the time.
Stephenson, 70, said he didn’t remember making the comment, but he acknowledged the transcript and said he thinks he probably did utter those words.
The victim, a 57-year-old woman, was not present for the apology. On Wednesday, she said she was shocked by the judge’s remark.
— The Orlando Sentinel 1/29/2004: Judge Apologizes for Comments
Judge Stephenson apologized; but then rather than recusing himself, as he was asked, he went on to offer a plea bargain against the wishes of the prosecution and the woman he had recently insulted. It was a pretty burly plea bargain–21 years in prison, two years of house arrest, and 15 months of probation–but if the survivor wants the case to go to trial and to push for the maximum sentence, who the fuck is he to circumvent that? (This highlights, incidentally, another purpose of Subtitle C: to empower survivors to fight for their own restitution, rather than putting it in the hands of a bunch of indifferent, and mostly male, government agents.) More generally, given the incredible prevalence of rape myths like these throughout the populace–especially among men, and judges are still much more likely to be men these days than they are to be women–why in the world shouldn’t we take serious measures to stop misogynist judges from letting rapists continue their sexual terrorism with impunity?
Nevertheless, you may say, the Supreme Court’s decision may seem weird at first glance; but they’re not a bunch of chumps when it comes to constitutional law. What about the reasons they advanced for striking down Subtitle C? Of course, the Supreme Court was right to say that there was no feasible way for Subtitle C to be justified under the Interstate Commerce Clause (and it’s unfortunate that that claim was advanced). But it was wrong to argue that it can’t be justified under the Fourteenth Amendment, the first section of which reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
And which goes on to say, in Section 5:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
If that doesn’t give Congress the power to federalize civil rights claims where the states fail to protect them, then what on earth does it give Congress the power to do? What principled argument can be given that justifies the traditional use of the clause (to federally protect Blacks from the racial terrorism of Klansmen that white Southern judges and juries often allowed to continue with impunity) but not the use in VAWA to protect women from from the sexual terrorism of rapists that male judges and juries often allow to continue with impunity today?
You might also argue that whatever the merits of VAWA, it looks like a further wedge towards the complete centralization of the justice system in federal hands, and that centralization of State interventionist power in the hands of a centralized, top-down government is far more harmful to the protection of rights from the power of the State and from violence and terrorism committed against oppressed classes by the classes of people (men, whites, heterosexuals, bosses, &c.) allied with State power. That’s a line of argument I’m quite sympathetic to–on anarchist grounds, yes, but also (and directly relevant to this case) on radical feminist grounds: the case for decentralized, bottom-up justice applies especially to women’s ability to defend themselves against wife battery and sexual violence, as radical feminist scholar R. Amy Elman has shown in her
Sexual Subordination and State Intervention: Comparing Sweden and the United States. It’s not that I dismiss this argument–indeed, I emphatically endorse it. The problem, though, is that it is being misapplied in this case. What Subtitle C does is not to take over control of the local court system, but rather to create a competing jurisdiction in cases where the local court system is failing to protect its citizens rights. That’s not centralizing power; it is, rather, breaking up a state government monopoly (to a limited extent, yes, but to an extent) over the prosecution of a particular sort of case where it all too often fails. Better yet, it creates a competing civil jurisdiction to oppose failed criminal jurisdictions–that is, a jurisdiction in which more power is put in the hands of the survivor rather than in the hands of the government. (Again, this is a point borne out in radical feminist analysis; see, for example, Susan Brownmiller’s Against Our Will: Men, Women, and Rape, in which she givess a brief overview of how the medieval State first recognized a woman’s independent right to prosecute her rapist–and then, shortly thereafter, arrogated the power to prosecute into the safely male hands of the King. Anyone who knows how the prosecution of rape, and the defense of women’s rights generally, has fared in the modern age knows the consequences of this betrayal only too well.)
This is, it seems to me, an important test case where different sorts of
decentralists come apart. Those who support
decentralization out of the belief in the mystical humbug of state sovereignty will come out (and did come out) against VAWA, because it treads on an area where the state government is supposed to have carte blanche to rule as its (mostly male) rulers see fit. But that’s because they don’t actually support decentralization as such; they support a centralized, hierarchial system of power–they just disagree on where the pinnacle of the hierarchy ought to be. Those of us, on the other hand, who support decentralization because we believe that the only sovereignty is individual sovereignty, and a decentralized, anti-hierarchial system of justice is the system most likely to protect individual rights, ought to reject the Supreme Court’s reasoning and endorse Subtitle C.
For further reading: