What's Wrong With the Violence Against Women Act

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A bill that was designed to rectify gender discrimination tips the balance too far, putting accused men at an unfair disadvantage. 

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As Senate Republicans resist renewing the 1994 Violence Against Women Act (VAWA), raising questions about immigration fraud and Indian tribal courts, and Democrats indignantly declare their support of it, civil libertarians should take a hard look at some of the Act's deceptively innocuous provisions. Section 304, which governs the treatment of sexual violence charges on college and university campuses, requires that cases involving allegations of violence or stalking provide for "prompt and equitable investigation and resolution."

What's worrisome about this language? Will Creeley of the Foundation for Individual Rights in Education (FIRE) points out that "prompt and equitable" is a term of art under federal anti-discrimination law. It's construed by the Department of Education's Office for Civil Rights to require a low standard of proof ("preponderance of the evidence") in sexual misconduct cases.

This standard was explicitly mandated in an earlier version of the VAWA reauthorization bill, and it was adopted by the Department of Education in a controversial April 2011 directive. It is practically a presumption of guilt. As former DOE official Hans Bader has explained, it means that "if school thinks there is as little as a 50.001% chance that the accused is guilty, the accused must be disciplined." And, as I noted here, it means that the students may be suspended -- or expelled -- and exposed to civil and criminal liability on the basis of an inquiry that affords them little due process.

Moreover, if an accused student is not found guilty, even under this very low standard of proof, his or her accuser may be afforded a right to appeal (under section 304) exposing the accused to double jeopardy. Of course, campus disciplinary proceedings are not formal criminal trials governed by the 5th and 6th Amendments. But you'd have to regard the protection against double jeopardy as a mere constitutional technicality to believe that schools should dispense with it. Or you'd have to assume that, as a general rule, fairness requires convictions and provides multiple opportunities to obtain them.

These low standards of proof, together with the appeals provisions, reflect the tendency of victim advocates, including Obama Administration officials, to err on the side of presuming guilt in sexual misconduct cases. Some have unabashed contempt for the rights of the accused: Boston attorney Wendy Murphy writes disdainfully of "lawyers for men accused of rape (who) injected themselves into college disciplinary proceedings demanding 'due process' and arguing that accused students have a constitutional liberty interest at stake." The accused have no constitutional claim to due process, she writes approvingly, but "student victims of sexual assault" do, "because sexual assault is a form of gender discrimination."

Perhaps. But if violence against women is a form of gender discrimination, so is the systematic denial of due process to "men accused of rape." It is also a prescription for false convictions. 

Consider the case of University of North Dakota student Caleb Warner, suspended for three years and banned from campus after being convicted of sexual assault under the "preponderance of evidence" standard favored by the administration and arguably required under VAWA. Reviewing the same evidence, FIRE reports, North Dakota law enforcement concluded that the accuser was lying and charged her with with filing a false report (issuing a warrant for her arrest), but the university exonerated Warner only after a spate of bad publicity, including this Wall Street Journal op ed.

Should a few troubling provisions in VAWA governing campus disciplinary proceedings doom the bill in its entirety? Maybe not (though the provisions should surely be amended). VAWA is a lengthy, complex bill providing federal resources for victims of violence and domestic abuse and for anti-violence initiatives. 

I can and have argued for and against provisions of VAWA. (I was for the definition of sexual violence as a federal civil rights violation before I was against it.) In U.S. v Morrison, the Supreme Court struck down VAWA's extension of federal civil rights remedies to victims of gender-motivated violence. It ruled that neither the 14th Amendment nor the Commerce Clause empowered Congress to assume federal jurisdiction over sexual violence claims -- providing legal remedies to sexual violence should be the province of the states, and the federal government shouldn't be able to exercise un-enumerated and virtually unlimited power. At the risk of betraying my sex, I had to agree. The defense in a war on women should not be a war on liberty.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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