Feminism: Legal Aspects

If feminism has had a strong influence on criminal law statutes, doctrine, and scholarship, it has also spurred efforts to attack questions of inequalities by means of federal law. In 1994, the Congress passed and the president signed the Violence Against Women Act, a federal statute rendering changes in federal criminal law and creating a new "gender-motivated crime" subject to civil rights protection.

The Violence Against Women Act includes several kinds of provisions relevant to the criminal law. Some of its provisions specifically target existing federal criminal law and seek to encourage states to reform their criminal laws relating to rape and domestic violence. For example, the bill requires that states provide "full faith and credit" to other states' domestic violence orders; offers incentives to states to increase law enforcement; and authorizes programs to advance the treatment of women victimized by violence, ranging from rape education and prevention to training state and federal judges. In two respects, however, the act makes significant, and controversial, changes in federal and state criminal laws.

The act provides, for the first time, federal penalties and prosecution for "domestic violence" crimes. State law enforcement officials had complained to Congress that, in some situations, batterers avoided prosecution or apprehension by moving across state lines. In response to such complaints, the Congress created a federal criminal statute addressing battering. One provision of the act makes it unlawful to travel across a state line with the intent to injure a spouse or intimate partner and then to commit a crime of violence during or as a result of that travel. Another provision asserts federal jurisdiction over conduct involving interstate travel with the intent to violate a domestic violence protective order. Thus, assuming the requisite intent and resulting injury, a defendant who attacks his wife may be charged, under federal law, for battery, rape, homicide, or kidnapping, as long as there is the requisite interstate travel. The constitutionality of this provision has been upheld despite attack on the ground that, like most traditional criminal jurisdiction of the federal government, these provisions require interstate travel.

More importantly, and certainly more controversially, the Violence Against Women Act created the first civil rights remedy for victims of crimes "motivated by gender." This provision aimed at discriminatory violence, permitting women to sue for injuries inflicted by gendermotivated crimes. The congressional hearings leading to enactment of the Violence Against Women Act compiled a lengthy record of the failure of states, in law and in practice, to provide adequate legal remedies to women. These hearings also emphasized the ways in which rape and battering can be acts of sex discrimination.

In May of 2000, the Supreme Court of the United States struck down the civil rights portion of the Violence Against Women Act in United States v. Morrison (529 U.S. 598 (2000)). The court ruled on federalism grounds, holding that the federal government had no constitutional power to legislate a remedy aimed at discriminatory violence against women. The court rejected the argument that the federal government could act under the commerce clause, holding that Congress had no power to legislate under that clause unless economic activity was involved. The court also held the Fourteenth Amendment inapplicable because the remedy attacked private conduct rather than state-sponsored discrimination. Feminists decried this result, urging that the Supreme Court had misconstrued the remedy as a crime measure rather than an antidiscrimination statute. They also questioned whether the case was really about federalism, pointing out that many states had filed briefs supporting the constitutionality of the provision as consistent with states' rights.