Document 11B: Prepared Statement of Elizabeth Symonds, Legislative Counsel, American Civil Liberties Union and Women's Rights Project, ACLU. Senate Hearing 103-51, 16 November 1993. Hearing before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary House of Representatives. Serial No. 51.

Document 11B: Prepared Statement of Elizabeth Symonds, Legislative Counsel, American Civil Liberties Union and Women's Rights Project, ACLU. Senate Hearing 103-51, 16 November 1993. Hearing before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary House of Representatives. Serial No. 51.


        The American Civil Liberties Union is pleased to have the opportunity to present testimony of H.R. 1133, The Violence Against Women Act. My name is Elizabeth Symonds, and I serve as a legislative counsel for the ACLU.

       The ACLU wholeheartedly concurs with proponents of this legislation that violence against women is a critical problem facing our nation, and that Congress must devise new, creative solutions to reduce this type of crime. Indeed, we believe that many aspects of the bill--including grants to train police and prosecutors to identify and respond more effectively to this type of violence, grants for rape prevention programs, education and training for judge and court personnel in state and federal courts--provide innovative mechanisms for addressing this issue.

        However, we believe that Title III of the bill, which creates a new federal right to be free from crimes of violence motivated by gender, raises a number of legal and policy questions, which prevents us from supporting this aspect of legislation. Our testimony today will outline the issues that we have identified as we have analyzed this new civil rights proposal.

        Before proceeding with our analysis of Title III, we would like to point out that while we neither support nor oppose that provision, we unequivocally oppose the numerous criminal justice provisions that appear in the Senate (or potentially) House versions of this legislation. These include increased sentences for repeat offenders, the expansion of pretrial detention, and a section that provides grants to governments that utilize mandatory arrest policies.

        Turning now to Title III, the standard set forth in the bill ("a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender") does not make clear the requisite intent or motive that the perpetrator must have had when committing the crime (in order for the victim to succeed at his or her civil suit). Thus, although Title III is not intended to cover every act of violence committed against a woman, the standard does little to assist in determining which kinds of cases are in fact actionable. For example, the bill does not make clear whether all sexual assault crimes are considered to be per se "motivated by gender." Because the standard is vague, we fear that it will simply create massive confusion for litigants, judges and juries involved in these lawsuits.

        This lack of clarity, particularly regarding how a plaintiff must prove the motive or intent of her assailant, may have troubling repercussions for other types of civil rights cases. We are concerned that rigid intent requirements applied to Title III cases might in some instances be adopted by judges construing other statutes. Of course, the question of a defendant's intent is often central to civil rights litigation, and permeates the case law in the areas of voting rights, employment discrimination, and in interpretations of statutes such as 42 U.S.C. section 1985(3).

        As currently written, the Title III standard raises more questions then it answers. What type of proof must a plaintiff present to win his or her case? Is rape, pre se, a crime of violence committed because of gender? If a murderer separates male and female victims and kills only the females, did he commit his crime because of gender? What if the murderer in the preceding example is female? Is homosexual rape actionable? If a man is arrested, tried, and acquitted of killing three men and raping and killing two women during the course of a single incident, would there be a cause of action under Title III? If a husband becomes furious with his wife because she crashed his car, and he proceeds to beat her, are his actions committed because of gender and due to animus based on her gender?

        Although civil juries must commonly make some very difficult decisions, it appears that in these types of actions they would have to decide whether a woman was attacked primarily because she was a woman (which would be actionable), because her attacker knew her and was angry at her (which might defeat the lawsuit), or because she appeared to be a vulnerable victim who the perpetrator could assault successfully. In the latter case, how will a jury determine whether the defendant's view of his victim's susceptibility was based on the mere fact that she was a woman (perhaps leading to a verdict that the crime was motivated by gender) or the fact that her individual physical characteristics (such as short stature) convinced him that he could physically overwhelm her?

        Of course, all new civil rights laws will raise some questions of interpretation, which will in time be answered by a body of relevant case law. However, we believe that Title III offers startling little guidance to litigants, judges and juries who will participate in these lawsuits, and will be more effective if it can be written in a manner that will easily facilitate the ability to answer the question outlined above.

        If the committee does not approve this measure, we believe that it is especially critical that the legislative history make clear the committee's intended definition of the word "animus" in this context. There appears to be a divergence of opinion on whether this word simply means "purpose" or whether it creates a standard requiring "hostility." Without this clarification there will undoubtedly be protracted litigation over the meaning of this term.

        Title III might also adversely affect other civil rights lawsuits (including statutory claims and constitutional challenges) because of its impact on the federal courts. By creating a new federal civil cause of action, it will generate a series of new cases for the federal courts whose dockets are already swelled by the increase in criminal (mostly drug-related) matters.

        The Administrative Office of the U.S. Courts has estimated that Title III could generate 13,450 federal civil tort cases, which "represents about two-tenths of 1 percent of the annual number of violent victimizations of women." These caseload estimates were limited to the crimes of rape and sexual assault.

        Furthermore, we are not convinced that this federal claim presents an effective mechanism for reducing violent crimes against women. Many practical questions remain unanswered: Will potential perpetrators actually be deterred by concern for civil liability? Will defendants have the financial resources to pay damages awards. The ACLU cherishes the civil rights laws that Congress has enacted, actively litigates cases utilizing these claims, and views them as an enormously effective, practical arsenal for eradicating injustice in our society. We would be troubled if the new civil rights claim embodied in Title III was regulated to only symbolic means of fighting discrimination because practical considerations render it ineffective for broadbased litigation purposes.

        In addition, the potentially vast fiscal resources that the federal courts would require if Title III were enacted might be better spent on other programs that might more directly reduce violent crime. Before approving this measure, shouldn't Congress consider whether funds would be better spent on alternatives such as additional police training or battered women's shelters, which might provide more direct benefits in this area?

        Moreover, individuals who are the victims of violent crimes may bring civil tort actions in state courts against their attackers. Are civil lawsuits at the state level a sufficient remedy that dispels the need for additional federal claim? Are data available that demonstrates what percentages of victims bring such suits, and the average amount of a damages award? If state remedies are insufficient (because of spousal immunity laws or other barriers) can the federal government encourage states to rectify these problems?

        Finally, Title III raises the fundamental question of whether it is appropriate to create a federal civil rights statute solely to provide a remedy for gender-based attacks by private individuals, and not to provide the same remedy for violence committed by private individuals against other victims based on race, ethnicity, religion or sexual orientation. Violent crime is a serious issue facing all members of our society. Further discussion is needed to explore whether. if a new federal civil remedy is created for the female crime victims; it should be expanded to include other types of victims as well.

        In conclusion, we are convinced that the Violence Against Women Act is a well-intentioned attempt to rectify the very troubling problem of violent crime in our country. Nonetheless, we ask the committee to consider the many questions we have posed in our testimony today, and find satisfactory answers to them before approving the Title III section of the bill. Those of us who treasure our civil rights laws and view them as essential tools of social justice cannot settle for a new statute that might provide little real redress.

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