Document 12: James P. Turner, "Prepared Statement of James P. Turner, Acting Assistant Attorney General, Civil Rights Division, U.S. Department of Justice," 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 12: James P. Turner, "Prepared Statement of James P. Turner, Acting Assistant Attorney General, Civil Rights Division, U.S. Department of Justice," 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.


       James P. Turner of the U.S. Department of Justice, Civil Rights Division, offered an informative analysis of the Title III provision of the VAWA. His statements directly rebutted those made by the ACLU in opposition to Title III (see Documents 11A and 11B). He addressed each of what the ACLU believed were ambiguities in the provision. Turner discussed the constitutionality of premising the bill on the foundation laid by existing civil rights laws and the power to regulate interstate commerce. He concluded that Title III was not only plausible, but necessary.


       Mr. Chairman and Members of the Subcommitte, it is a pleasure to be here today to discuss the civil rights title of the Violence Against Women Act of 1993. This legislation, which was recently passed the Senate, would create a federal civil remedy for crimes of violence motivated by gender. In recent years, our society has become increasingly aware of the distinct problems that violence poses for women and the difficulties that women face in obtaining justice after such violence occurs. While Congress has enacted numerous civil remedies for victims of discrimination in other contexts, there is no comparable federal civil remedy for victims of gender-motivated violence. We support the effort to create such a remedy and look forward to working with the House on this legislation.

       Violence motivated by gender presents our nation with an enormously serious and complex problem. As the record created in support of this legislation demonstrates, the justice systems of the states, from arrest through prosecution, have found that gender-motivated violence presents unique problems. As a result, all too often they have afforded victims of such violence unequal treatment.

       Congress has been equally perplexed as to how to treat such violence. For example, in enacting the Hate Crime Statistics Act, Congress mandated the collection of data on crimes motivated by race, religion, ethnicity, and sexual orientation, but not gender. The principal federal criminal statute prohibiting violent interference by private individuals with civil rights--18 U.S.C. 245--does not protect against violence based on gender. These omissions represent recognition that the problem of gender-motivated violence is complex. They manifest a concern that the federal government should not take to itself the task of prosecuting sexual violence and that these matters should be left largely to the states.

       This bill recognizes that many of these crimes manifest the same type of bias that has been addressed by previous federal civil rights laws. While incidents of sexual aggression or violence may be fueled by a jumble of factors that psychologists struggle to sort out, one of these factors can certainly be animus toward the opposite sex. This bill simply says that where that animus can be established, the civil rights of the victim have been violated. In doing so, it builds on the foundation laid by our existing civil rights laws.

       The legislation would create a federal, private civil cause of action that could be pursued in federal or state court by a victim of violence motivated by gender against the perpetrator of the violence. A victim would be entitled to recover compensatory and punitive damages, and would be entitled to an award of injunctive and declaratory relief. These are the remedies generally available in a civil rights suit brought by a private individual. Since the bill limits recovery to “the individual injured,” it is unclear whether there could be any recovery if the victim were killed. The Subcommitte may wish to clarify that point.

       A victim could sue to redress injury suffered as a result of any “a crime of violence motivated by gender,” which is defined as “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.” A “crime of violence” is further defined as conduct that would constitute a state or federal offense of the type described in 18 U.S.C. 16. There need not have been a criminal prosecution prior to the filing of a civil suite under this provision.

       One of the principal concerns regarding this legislation has been that it would unleash a flood of new complaints that would further inundate an already struggling federal judiciary. Yet, there are several elements of the bill that respond to this criticism. First, the crime must be committed because of the gender of the victim and the proof of that must include a showing that the crime was committed in part because of animus toward the gender of the victim. While the full extent of this requirement will have to be fleshed out through caselaw, it clearly means that it will not be sufficient to show simply that a crime was committed by a man against a woman or vice versa. There must have been a conscious selection of the victim because of her gender.

       In addition, the selection must have occurred at least in part because of animus toward the victim’s gender. Webster defines animus in part as “prejudiced and often spiteful or malevolent ill will.” Thus, there must be some showing of hostility toward the gender of the victim.

       This animus requirement establishes that the remedy is truly a civil rights remedy. It redresses conduct that is motivated by bias or hatred toward a class of individuals because of a defining characteristic--gender. As such, the remedy is similar to other civil rights remedies for violent conduct. Pursuant to 18 U.S.C. 245, for example, in proving that violence occurred because of race, the United States would generally offer evidence that the defendant acted because of hostility toward African Americans. That evidence might consist of the defendant’s use of racial epithets, membership in racist organizations, or past conduct indicating racial hatred. We would expect that the animus requirement of this bill would invite the introduction of similar evidence regarding gender and limit the occasions for recovery under the bill.

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       The bill’s reliance on criminal law to define civil liability might create an ambiguity regarding the burden of proof, which the Subcommitte may wish to address. Individuals are given the right to be free of crimes of violence motivated by gender. A crime of violence is defined as conduct “that would constitute a State or Federal offense .”* * * Conduct is not punishable as a crime unless the government can prove beyond a reasonable doubt that the defendant engaged in the prohibited activity. This bill, therefore, could be read as requiring that plaintiffs prove beyond a reasonable doubt that their attackers committed the elements constituting crimes of violence. While the bill states that the element of gender motivation need be proved only by a preponderance of the evidence, it does not address the standard of proof for the remaining elements of a crime of violence motivated by gender. Under these circumstances, it would be helpful if the legislation stated explicitly what standard of proof governs these remaining elements.

       Additionally, the bill’s reliance on state criminal law to define civil liability effectively allows states to amend the standard for establishing federal civil liability each time they amend their own criminal laws.

*       *       *

       If the bill is to produce a meaningful remedy, its broad scope is justified because gender-motivated violence can occur anywhere, regardless in what activity the victim is engaged. And, while those who commit racial attacks often act in concert with others, we suspect that it is far more common for women to be the objects of violence committed by a single individual. The bill does not require that whole classes of crimes--such as rape--be considered bias crimes in all cases. Rather, it takes the approach followed in other civil rights laws. If the victim can prove in a specific case that the defendant’s violent conduct was motivated by gender, then a civil rights remedy is appropriate.

The Constitutional Basis

       The bill is rightly premised on the power of Congress to enforce the Fourteenth Amendment and to regulate interstate commerce. The Fourteenth Amendment justification for the bill is laid out in findings in the bill that state and federal criminal laws do not protect adequately against the bias element of gender motivated crimes, nor do they provide victims of such crimes sufficient redress. These findings are supported by the strong record created by the Senate Judiciary Committee.

       One such finding notes that “existing bias and discrimination in the criminal justice system often deprives victims of gender-motivated crimes of equal protection of the laws and the redress to which they are entitled.” This finding states a classic denial of equal protection, which Congress is entitled to address pursuant to section 5 of the Fourteenth Amendment. The factual underpinnings of this finding have been developed in considerable depth by the Senate Judiciary Committee. The Committee’s report summarized its finding by stating: “[In] many States, rape survivors must overcome barriers of proof and local prejudice that other crime victims need not hurdle; they bear the burden of painful and prejudicial attacks on their credibility that other crime victims do not shoulder; they may be forced to expose their private life and intimate conduct to win damage award; and finally, in some cases, they may be barred from suit altogether by tort immunity doctrines or marital exemptions.” S. Rep. No. 103-138, 103d Cong., 1st Sess. 55 (1993). As a result, the Committee reported, over 60 percent of rape reports do not result in arrest and a rape case is more than twice as likely to be dismissed as a murder case. Less than half of those arrested for rape are convicted, compared with 69 percent of those arrested for murder. Id. at 42. I do not expect that every rape would qualify as gender-motivated violence sufficient to trigger a civil remedy under this legislation. Indeed, these statistics standing alone might be explained as showing something other than a failure of state and local enforcement efforts. The Committee, however, found that they are buttressed by strong anecdotal evidence of bias exhibited by prosecutors and judges. This record plainly is sufficient to enable Congress to conclude that state and local jurisdictions are failing to provide victims of gender-motivated violence with equal protection of the laws and to enact remedial legislation pursuant to section 5 of the Fourteenth Amendment.

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       I note that the House of Representatives recently passed the Hate Crimes Sentencing Enhancement Act, which increases penalties for crimes in which a victim is selected because of race, color, religion, national origin, ethnicity, gender, or sexual orienatation. That bill recognizes that the bias element of these crimes increases the harm that they inflict on society and warrants enhanced punishment. The Supreme Court has acknowledged the additional harm inflicted by bias crimes and has upheld state legislation resembling the Hate Crimes Sentencing Enhancement Act that increases punishment when a crime is motivated by bias. See Wisconsin v. Mitchell, 113 S. Ct. 2194 (1993). The bill is premised on similar recognition that violence motivated by bias stands apart and warrants a governmental response targeted at the specific problem of gender bias.

       The legislation is also grounded in the power of Congress to regulate interstate commerce. Congress has broad power to act pursuant to the Commerce Clause. It may regulate any activity that has an effect on interstate commerce, even if the activity involves purely local or intrastate conduct.

*       *       *

       There is no doubt that this standard is satisfied by a finding that violence motivated by gender affects interstate commerce. This type of violence--much like hate crimes based on race--sends a powerful message that areas of our nation and certain activities are off limits to women. Women who cannot traverse public streets without fear will also not use places of public accommodation, purchase goods, or conduct business in such areas. Fear of gender-motivated violence restricts the hours during which women can engage in a variety of activities seriously curtails their participation in the commerce of our nation.

       Some may argue that this interpretation of the commerce power would permit Congress to pass federal legislation prohibiting run-of -the-mill street crimes. Whether the power extends that far or not, there is a clear distinction between the conduct addressed by this bill and random street violence. Indeed, the bill states specifically that it does not apply to random acts of violence. Violence motivated by gender sends a message to women that they will be targeted for crime because they are women, just as racial assaults send a message to African Americans that they will be targets of violence because of race. Thus, women, as a group, are deterred from engaging in commerce. The deterrent message extends far beyond those touched immediately by crime to all women. It is the bias element that sets these crimes apart and strengthens the Commerce Clause rationale for reaching them.

       Mr. Chairman, that concludes my prepared remarks. I would be pleased to answer any questions that you or the Members of the Subcommittee may have.


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