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Civil Rights Remedies for Battered Women: Axiomatic & (And) Ignored

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Civil Rights Remedies for Battered Women: Axiomatic & (And) Ignored Minnesota Journal of Law & Inequality Volume 11 Issue 1 Article 1 June 1993 Civil Rights Remedies for Battered Women: Axiomatic & (and) Ignored Andrea Brenneke Follow this and additional works at: https://lawandinequality.org/ Recommended Citation Andrea Brenneke, Civil Rights Remedies for Battered Women: Axiomatic & (and) Ignored, 11(1) LAW & INEQ. 1 (1993). Available at: https://scholarship.law.umn.edu/lawineq/vol11/iss1/1 Minnesota Journal of Law & Inequality is published by the University of Minnesota Libraries Publishing. Civil Rights Remedies for Battered Women: Axiomatic & Ignored Andrea Brenneke* ** I. Introduction: Civil Rights Remedies for Battered Women Axiomatic and Ignored ..................................... 3 II. Battering Deprives Women of Rights That Should Be Protected By Civil Rights Law ............................. 5 A. The Facts: BatteringDisproportionately Affects Women and Can Be Motivated By Gender........... 5 B. Situating Domestic Violence in a System of 'GenderedPower Relations':A FeministApproach 7 1. Gendered Power .................................. 8 2. Intersecting Continua of Violence Against Women and the Struggle For Power and Control 11 3. Establishing the Civil Rights Claim Supports a Survivor Theory .................................. 14 4. Listening and Challenging: Feminist Legal Theory, Subjectivity and Social Change .......... 16 C. Federal Remedies Are Appropriate to Protect the Civil Rights of Battered Women ..................... 18 * Andrea Brenneke is an attorney at the law firm of MacDonald, Hoague & Bayless in Seattle. Her practice is in general litigation with an emphasis in civil rights, personal injury and employment discrimination. In addition, Ms. Brenneke serves on the board of the Northwest Women's Law Center. Ms. Brenneke gradu- ated cum laude from Harvard Law School in 1992 where she was a member of the Harvard Legal Aid Bureau and an articles editor of the HarvardHuman Rights Journal. She received her B.A. with distinction in Political Science, cumn laude, from the University of Washington in 1988. ** I dedicate this article to the memory and spirit of Mary Joe Frug, whose scholarship and tragic murder forever will inspire my feminist commitment. I am indebted to my advisor, Elizabeth Schneider, for suggesting the topic of this article. I am forever enriched by the powerful community of battered women's advocates at Harvard Law School, my clinical supervisors, Lois Kanter and Lee Goldstein, and the battered women I worked with at the Harvard Legal Aid Bureau. I thank Sally Goldfarb at the NOW Legal Defense Fund, who generously provided information and insights. My friends and colleagues Julia Gordon, Kristin Lund, Marilynn Sager and my mother, Heida Brenneke, supported me with humor. Dan Clarkson deserves special acknowledgment for his conceptual and editing assistance on this paper. Finally, I thank the staff of Law and Inequality for mak- ing publication a reality. Law and Inequality [Vol. 11:1 1. Political/Philosophical Foundations .............. 18 2. Historical Legal Discrimination .................. 22 D. Existing Remedies Are Not Enough .................. 27 1. State Criminal Law ............................... 29 2. Abuse Prevention Orders ......................... 32 3. State Tort Law ................................... 34 4. State Civil Rights Statutes ........................ 36 E. Civil Rights Remedies - Appropriate and Helpful 43 IH. Existing Federal Civil Rights Remedies Fail to Protect the Rights of Battered Women ................................. 44 A. 42 U.S.C. §§ 1981 and 1982 ........................... 45 B. 42 U.S.C. § 1983 ....................................... 47 C. 42 U.S.C.. § 1985 (3) ................................... 48 D. Title VII-42 U.S.C. § 2000e et seq ................... 50 E. FederalHate Crime Statistics and Reporting Act .... 52 IV. Proposed Federal Legislation: Title M of the Violence Against Women Act ........................................ 53 A. VAWA. A FederalSubstantive Right to be Free From Gender-Motivated Crimes of Violence ............... 53 B. The VAWA Proposed Standards ...................... 54 1. The Federal Right and Cause of Action .......... 54 2. The Term "Crime of Violence" .................. 58 a. Definition of "Crime of Violence": 18 U.S.C. § 16 and Its Interpretation .................... 58 b. Unnecessary Limitations: The "Crime of Violence" Requirement ....................... 66 3. The Term "Motivated by Gender"................ 67 a. The Statutory Definition ...................... 67 b. Legislative History ............................ 68 c. Title VIL Guidance to Proof.................. 71 i. Disparate Treatment Claims .............. 73 ii. Disparate Impact Claims .................. 78 iii. Hostile Environment Claims and Sexual Harassment ............................... 80 C. VAWA: Anticipated Problems and Proposed Changes to Remedy the Deprivationof Women's Civil Rights by Battering .......................................... 83 1. Anticipating the Problems ........................ 83 a. The Term "Motivated by Gender"............. 83 b. Battering Cycles and the "Crime of Violence" 88 c. Evidentiary Issues ............................. 89 2. Alternatives: Radical Essentialization and Radical Subjectivity ............................... 94 1992] CIVIL RIGHTS REMEDIES V. Implications of a Civil Rights Remedy for the Battered Women's Movement ....................................... 97 A. Rights and Politics- Struggles for Dignity ......... 98 B. Essentialism and Legal Norms ....................... 106 1. Heterosexual Norms .............................. 107 2. Race Bias ......................................... 109 3. The "Perfect Case" .............................. 111 C. Civil Rights Remedies Should Be Used ............... 113 I. Introduction: Civil Rights Remedies For Battered Women - Axiomatic And Ignored In battering relationships, women are deprived of their per- sonal liberty and dignity through physical constraint, violence, in- jury or death. Often, they are deprived of their rights to travel, work, speak, associate with others, marry or divorce, have and raise children. To control these aspects of one's life is essential to the experi- ence of being an independent person, a "subject" engaged in life and society. Violent attacks on women impede this experience and spread the terror of coercive objectification. As targets of rage, battered women endure the dehumanizing violation of their physi- cal, mental and spiritual integrity. When attacks derive from a vi- olent husband, the very possibility of intimacy in a relationship can be severed forever. "In violent experiences," Susan Schechter writes, "victims have their control and dignity stripped from them. Assault makes people feel helpless, immobilized, and overwhelmed with feelings of vulnerability. The violation of one's body or physical space is enraging and depressing. As victims of violence, we suffer multi- ple losses.", It is axiomatic that one's bodily, psychological and spiritual integrity are at the essence of one's protected "rights," yet most federal civil rights laws do not make coercive violations of battered women's integrity by private actors legally actionable. Existing and pending civil rights legislation can serve some battered women in their efforts to obtain justice and promote a society in which all women are free from domestic violence. The pervasiveness of wife abuse requires recognition of the social, economic, legal and political context of male dominance in which "private violence" directed at battered women is just one el- l. SUsAN SCHEcHTER, WOMEN AND MALE VIOLENCE: THE VIsIONS AND STRuG- GLES OF THE BAT=ERED WOMEN's MovEMENT 18 (1982). Law and Inequality [Vol. 11:1 ement. This recognition must lead to the development of strate- gies to eliminate that violence. Although civil rights strategies against violent husbands largely have been ignored in battered wo- men's political and legal work, some battering behavior constitutes a deprivation of civil rights. Such behavior should be cognizable as a federal civil rights violation pursuant to Title III of the "Violence Against Women Act," hereinafter "VAWA," as introduced in the 103rd Congress.2 Civil rights remedies should be available for use by some battered women against their abusers. This article explores civil rights remedies for battered wo- men3 who suffer physically and emotionally from domestic vio- lence.4 In this article, the interchangeable terms "wife abuse," "battered wives," and "battered women" describe the repeated use of physical force or threats of physical force5 by a man against his intimate, cohabiting partner,6 regardless of actual legal marital status. Part II of this article begins with a discussion of the severity and pervasiveness of wife abuse and other forms of violence against women. It sets forth a feminist perspective that wife abuse occurs in the context of institutional and social structures of gen- der and power. It adopts the premise that wife abuse in heterosex- 2. See infra § IV. 3. For a thoughtful analysis of the definitions of "battered women," see Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Sep- aration, 90 MIcH. L. REV. 1, 24-34 (1991) (detailing two definitional approaches - the "incident" focus and the "power and control" focus - and suggesting that the struggle for power and control be brought into the definition of battering itself). The incident approach defines "battered woman" as a woman who
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