The Violence against Women Act
A key provision in the Violence against Women Act, the civil rights provisions of Title III, declared that violent crimes against women motivated by gender violate victims' federal civil rights—giving victims access to federal courts for redress for the first time. In testifying in favor of the passage of the act, Sally Goldfarb, an attorney for the National Organization for Women (NOW), told Senate members, "The enactment of civil rights legislation would convey a powerful message: that violence motivated by gender is not merely an individual crime or a personal injury, but is a form of discrimination, an assault on a publicly shared ideal of equality. When half of our citizens are not safe at home or on the streets because of their sex, our entire society is diminished" (Prepared Statement of Sally Goldfarb, Senior Staff Attorney, NOW Legal Defense and Education Fund. Senate Hearing 103-51, November 16, 1993. Hearing before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary House of Representatives. Serial No. 51). When the Violence against Women Act was passed into law, the text of the civil rights provision was:
Federal civil rights action as specified in this section is necessary to guarantee equal protection of the laws and to reduce the substantial adverse effects on interstate commerce caused by crimes of violence motivated by gender; and the victims of crimes of violence motivated by gender have a right to equal protection of the laws, including a system of justice that is unaffected by bias or discrimination and that, at every relevant stage, treats such crimes as seriously as other violent crimes.
In 1999, the civil rights section of the act was tested in the U.S. Supreme Court. Christy Brzonkala, an eighteen-year-old freshman at Virginia Polytechnic Institute, was violently attacked and raped by two men, Antonio Morrison and James Crawford, on September 21, 1994. Brzonkala did not immediately report the rape, and no physical evidence of the rapes was preserved. Two months later, she filed a complaint with the school; after learning that the college took limited action against the two men, she withdrew from the school and sued her assailants for damages in federal court.
Brzonkala's case reached the Supreme Court in 1999. Briefs in favor of giving victims of gender-based violence access to federal courts were filed by dozens of groups—the American Medical Women's Association, the National Association of Human Rights Workers, the National Coalition against Domestic Violence, and the National Women's Health Network among them—as well as the briefs filed by law scholars and human rights experts. But the majority of the Supreme Court (five to four) decided that Congress could not enact a law giving victims of gender-motivated violence access to federal civil rights remedies. The majority opinion emphasized that "the Constitution requires a distinction between what is truly national and what is truly local"—and they ruled that the violent assault of Christy Brzonkala was local (United States, Petitioner v. Antonio J. Morrison et al. [no. 99-5], Christy Brzonkala, Petitioner v. Antontio J. Morrison et al. [no. 99-29]. Argued January 11, 2000. Decided May 15, 2000. United States Supreme Court Reports, Lawyer's Edition. Volume 146 L Ed. 2d, No. 6).
In October 2000, Congress responded to the Supreme Court decision by passing new legislation, the Victims of Trafficking and Violence Protection Act of 2000. The new statute included these titles: Strengthening Law Enforcement to Reduce Violence against Women, Strengthening Services to Victims of Violence, Limiting the Effects of Violence on Children, and Strengthening Education and Training to Combat Violence against Women. The act allocated $3.3 billion over five years to fund traditional support services along with prevention and education about dating violence, rape, and stalking via the Internet, as well as new programs for transitional housing and expanded protection for immigrant women. The new act did not mention women's civil rights.
Other Federal Laws and Public Policies
The following are among other federal laws and public policies aimed at addressing violent crimes against women:
- The Family Violence Prevention and Services Act of 1992 supported the development and expansion of shelters and other services for victims of domestic violence as well as programs to prevent family violence.
- The Hillory J. Farias and Samantha Reid Date Rape Drug Prohibition Act of 2000 made it illegal to manufacture, distribute, or dispense gamma hydroxybutyric acid (GHB, also known as "Liquid Ecstasy") and created a special unit to evaluate abuse and trafficking of GHB and other drugs associated with instances of sexual assault.
- The Social Security Administration in 1998 changed its rules governing new social security numbers. Previously, women needed to provide evidence that an abuser was using a social security number to locate her or evidence that the violence was life-threatening. With the new law, women need only to provide written corroboration of domestic violence from a third party, such as a doctor, lawyer, clergy member, or even a family member or friend, in order to obtain a new number.
- A Postal Service Release of Information Final Rule was published January 25, 2000, and became effective February 24, 2000. If an individual postal customer presents the U.S. Postal Service with a court order of protection, then the postal service may not disclose identifying information such as address, location, or post office box, unless ordered by the court.
- A Final Rule on Documentation of Immigrants and Nonimmigrants—Visa Classification Symbols was published on June 18, 2001. This rule amended PL 106-386 to create new nonimmigrant categories for victims of trafficking for illicit sexual purposes and slavery and those who have suffered abuse, such as battering, and other forms of violence.
TABLE 8.1
| Reasons for rejections of firearm transfer applications, 1999 | |||||||||
| FBI | State and local agencies | ||||||||
| Reason for rejection | 2003 | 1999–2003 | 2003 | 2002 | 2001 | 2000 | 1999 | 1999–2003 | |
| — Not available or not applicable. | |||||||||
| 1Includes multiple DUI's, non-NCIC warrants, and other unspecified criminal history disqualifiers. | |||||||||
| 2FBI denies on State prohibitors but does not separate them out under this category. | |||||||||
| 3Includes persons dishonorably discharged from the Armed Services, persons who have renounced their U.S. citizenship, and other >unspecified persons. | |||||||||
| SOURCE:"Table 5. Reasons for Rejection of Firearm Transfer Applications, 1999–2003," in Background Checks for Firearm Transfers, 2003, U.S. Department of Justice, Bureau of Justice Statistics, NCJ 204428, September 2004, http://www.ojp.usdoj.gov/bjs/pub/pdf/bcft03.pdf (accessed October 22, 2004) | |||||||||
| Total | 100% | 100% | 100% | 100% | 100% | 100% | 100% | 100% | |
| Felony indictment/conviction | 38.6 | 54.5 | 44.8 | 51.8 | 57.7 | 57.6 | 72.5 | 58.1 | |
| Other criminal history1 | 24.3 | 15.0 | — | — | — | — | — | — | |
| Domestic violence | |||||||||
| Misdemeanor conviction | 12.2 | 13.3 | 11.7 | 10.4 | 10.6 | 8.9 | 9.0 | 10.0 | |
| Restraining order | 5.0 | 4.4 | 3.8 | 3.5 | 3.7 | 3.3 | 2.1 | 3.2 | |
| State law prohibition2 | — | — | 10.4 | 9.9 | 7.0 | 4.7 | 3.5 | 6.7 | |
| Fugitive | 4.7 | 3.3 | 7.8 | 8.0 | 5.8 | 4.3 | 5.0 | 5.9 | |
| Illegal alien | 2.4 | 1.1 | 1.1 | 0.8 | 0.4 | 0.2 | 0.2 | 0.5 | |
| Mental illness or disability | 0.5 | 0.4 | 2.4 | 1.4 | 1.2 | 1.0 | 0.5 | 1.2 | |
| Drug addiction | 8.0 | 5.8 | 1.8 | 1.3 | 1.0 | 0.7 | 1.0 | 1.1 | |
| Local law prohibition | — | — | 1.2 | 0.9 | 0.5 | 0.2 | 0.2 | 0.6 | |
| Other3 | 4.3 | 2.1 | 14.9 | 12.0 | 12.1 | 19.2 | 6.0 | 12.8 | |
In addition, on January 26, 2001, the U.S. Sentencing Commission published the Sentencing Guidelines for United States Courts, which increased the base sentencing levels for offenses and required stricter sentences for stalking, domestic violence, and cases involving the use of GHB.
Domestic Violence Gun Ban
The Omnibus Consolidated Appropriations Act of 1997 included a domestic violence gun ban. The law prohibits batterers convicted of domestic violence crimes or those with domestic violence protection orders filed against them from owning or carrying guns. During 1997, background checks of potential handgun buyers prevented an estimated sixty-nine thousand purchases. Most of those rejected (62 %) had been convicted of a felony or were under felony indictment. Domestic violence misdemeanor convictions represented nearly 10% of the rejections, while domestic violence restraining orders accounted for 2%.
On November 30, 1998, the permanent provisions of an even tighter handgun ban, the Brady Handgun Prevention Act, went into effect. These provisions require background checks for anyone seeking to transfer ownership of a gun, which includes pawnshop transactions as well as purchases from retail gun shops.
From the inception of the Brady Act on March 1, 1994, through December 31, 2003, more than 53 million applications for firearm permits or transfers were subjected to background investigations. Of these applications, about 1,102,000 were rejected, according to Background Checks for Firearm Transfers, 2003 (Washington, DC: Bureau of Justice Statistics, NCJ 204428, September 2004). In 2003, about 17% of those rejected were rejected because the Federal Bureau of Investigation or state or local police agencies found that applicants had been either convicted of a domestic violence misdemeanor or had a protective order issued against them. (See Table 8.1.) After prior felony convictions, domestic violence was the second leading reason for rejecting applicants' gun permit requests.
RESPONSES TO THE BAN. The passage of the domestic violence gun ban was a victory for the battered women's movement but generated an outcry in the law enforcement community. Because the ban applied retroactively, anyone, including police officers, convicted of domestic violence before passage of the law on September 30, 1996, lost the right to possess and carry firearms.
The law has been hotly debated. Some people feel that law enforcement officers and military personnel who use firearms in their professional duties should be exempt from the prohibition. Others want to apply the ban only to those convicted of domestic violence after the date when the gun ban was enacted. Still others maintain that all persons convicted of such offenses should be prohibited from carrying firearms. Legislation has been introduced that would apply the ban only to those convicted after September 30, 1996, and that would exempt government employees, such as military and police.
After the domestic violence gun ban passed, John W. Magaw of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives advised police officers to turn over their firearms to a third party if they had ever been convicted of a domestic violence misdemeanor. Most police groups claimed that the law unfairly punished officers who committed domestic violence offenses in the past, and requested that exceptions be made for police officers who would be unable to conduct their law enforcement duties without firearms. However, in 1999 the Supreme Court rejected a policeman's argument that he had the right to carry a gun even though he had pleaded guilty to domestic violence (Gillespie v. City of Indianapolis, 1999 U.S. App. Lexis 15117).
In 1998, at the request of the U.S. Department of Justice, the International Association of Chiefs of Police drafted the Model Policy on Police Officer Domestic Violence. In an attempt to address the domestic violence problem before it cost an officer his or her job, the policy took a "continuum" approach, including these increasing levels of intervention:
- prevention, education, and training
- early warning and intervention
- incident response protocols
- victim safety and protection
- administrative and prosecutorial actions after an incident
Although the policy focuses on early prevention and intervention strategies, it also states that officers convicted of domestic abuse will be removed from their enforcement positions and either terminated or reassigned. It calls on police departments to screen recruits for any indications of violent or abusive tendencies and to conduct background checks for histories of domestic violence or abuse.
Despite the increased restrictions mandated by the Brady Act, convicted batterers and those subject to an order of protection can still buy guns. Loopholes in state and federal laws allow batterers to purchase guns. In many states, private gun owners can sell their firearms without background checks. In addition, many states keep incomplete records of domestic violence offenders and orders of protection. The Bureau of Justice Statistics has made recommendations to address these holes in domestic violence record keeping in its report Background Checks for Firearm Transfers, 2003 (Washington, DC: Bureau of Justice Statistics, NCJ 204428, September 2004). Still other evidence suggests that some gun dealers knowingly allow people who are not legally eligible to purchase firearms to buy them through a third party.
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