ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, March 24, 1996 TAG: 9603250072
SECTION: VIRGINIA PAGE: A1 EDITION: METRO
SOURCE: JAN VERTEFEUILLE STAFF WRITER
note: above
PRESIDENT Clinton signed the Violence Against Women Act into law Sept. 13, 1994. Nine days later, Christy Brzonkala says she was raped in a dorm room at Virginia Tech.
Brzonkala is one of the first women in the country to use the law, which allows crime victims targeted because of their gender to sue their attackers for violating their civil rights.
As her case begins its path through federal court, one of the football players she's suing is challenging not just her story but the law. Tony Morrison is asking a judge to declare the Violence Against Women Act unconstitutional.
To win her case, Brzonkala will have to prove not only that she was raped by Morrison and his roommate, James Crawford, but that she was more than a random target of violence. She must prove that the rape occurred because she is a woman and that it was motivated at least in part by hostility toward women.
Rape is "absolutely gender-motivated," said Eileen Wagner of Richmond, Brzonkala's attorney. "Because you pick the least able to cry out, the one most likely to be blamed for reporting it."
But one opponent of the law says its emphasis on gender is wrongheaded.
"It trivializes the victim and the offense and the offender because they all become a metaphor for the gender war - because they're all individuals in their own right," said Michael Greve, executive director of the Center for Individual Rights in Washington . "Feminists want to transform every single random act of meanness into ... a federal class-based hate crime."
Brzonkala's case has attracted widespread attention, and national groups concerned about the new law's application in civil cases are watching it closely.
As part of the omnibus crime bill of 1994, the Violence Against Women Act made gender-motivated crime a civil-rights violation. Laws already existed against gender-based crimes committed in the workplace - such as sexual harassment - but not for such crimes committed in the home or on the street.
No new criminal penalties were created, but the law allows victims - male or female - to sue their attackers if they can prove they were not random targets, but were chosen because of their gender. The attack against them also must be a felony, whether felony charges are actually filed or not.
The creation of new civil rights was just a small part of a wide-ranging bill that won bipartisan, almost-unanimous support in both houses of Congress. It authorized $1.6 billion for law enforcement, public safety improvements and rape-education programs. Virginia received $426,000 last year for training police and prosecutors, and "far more money" will be appropriated this year, a Justice Department spokesman said.
But Roanoke lawyer David Paxton, who represents Morrison, argues that Congress exceeded its authority when it granted civil-rights remedies to victims of gender-motivated crimes. He wants U.S. District Judge Jackson Kiser to declare that part of the law unconstitutional and dismiss the suit against Morrison.
And even if Kiser does not find the law unconstitutional, Brzonkala's alleged rape would not qualify under it, Paxton said.
"These kinds of claims were simply not envisioned by Congress when they passed this statute," Paxton told Kiser at a hearing this month. "The Violence Against Women Act doesn't provide remedy for every rape or assault."
Brzonkala charges that Morrison and his roommate, James Crawford, raped her in their dorm room when she and a friend visited them after a party. She also is suing Tech, over its handling of the players' disciplinary proceedings, and another football player, Cornell Brown, who she claims helped cover up the crime by providing Crawford an alibi.
At the heart of this dispute is this question: Is rape - whose victims are almost exclusively women - inherently a crime motivated by gender and animosity toward women?
In his motion to dismiss Brzonkala's case, Paxton cites an abortion case decided by the U.S. Supreme Court in 1993. The court said that although women are the only ones who get pregnant and are therefore the targets of abortion protests, "it does not automatically follow that the protesters were singling the patrons of the abortion clinic out for action because of their gender," his brief says.
Paxton applies that reasoning to argue that simply proving a rape occurred isn't enough to sue under the law. Rather, there must be specific allegations that the attackers were motivated by a hatred of women.
Supporters of the Violence Against Women Act agree that more than rape has to be proved. Brzonkala will have to show that her rights were violated and that her freedoms were curtailed, and she has to make the case that the crime was committed because she's a woman, said Leslie Wolfe, president of the Center for Women Policy Studies in Washington, D.C.
Wolfe doesn't think that will be hard to prove in most rape cases. She and other women's rights advocates believe most - but not necessarily all - rape cases are motivated by gender bias.
"There might be a rapist who rapes men, women, dogs, and simply is a horrible, vicious assaulter," Pat Reuss of the National Organization for Women said. "There might be that person. So you can't say all rapes are gender-based."
But the Violence Against Women Act is based on the idea "that rape is a crime of hate, not a crime of overzealous lust," said Reuss, a senior policy analyst at NOW's Legal and Educational Defense Fund. Reuss was an early lobbyist for the bill.
She said a study found that nearly one out of every three women who dropped out of college their freshman year left after being raped.
"What's facing young men in their freshman year like that?'' Reuss asked. "That's why I maintain it's a hate crime."
Her group recently asked Kiser for permission to file a friend-of-the-court brief defending the law. Such briefs are usually filed at the appeals level rather than the trial court level, but a NOW attorney said the organization wanted to get involved early because this is "very novel litigation and, of course, is of incredible importance."
The Department of Justice - where the legislation created a Violence Against Women policy office - also is reviewing the case to decide whether to become involved, a spokesman said.
On the other side, The Center for Individual Rights, a Washington public-interest law firm, is representing Morrison along with Paxton. That group represented the student who sued the University of Virginia for not funding his Christian magazine with student-activity fees. Last year, he won a major victory when the Supreme Court ruled that UVa violated his free-speech rights.
Greve, the executive director, said the firm opposes special civil-rights laws for gender-motivated crime and for blacks and other groups who seek protection from so-called hate crimes. Such laws neglect the seriousness of the crime by concentrating on the motive or the "disapproved thoughts" that prompted it, he said.
"The danger is not that a rapist is punished too harshly - that I'm not concerned about," he said. "I'm concerned about the trivialization of [the crime]. What it says is we're not interested in this particular individual's conduct ... what's more important is, he represents men."
But men raping men, as in prison rapes, is not gender-motivated, he said. "It makes no sense to me that rape is motivated by hostility toward women as a class. It's a violent crime and a very bad one, for which people should be spending much more time in prison than they are."
Greve's group also argues the law is unconstitutional because it addresses conduct by private citizens, rather than official government conduct, and because it doesn't affect interstate commerce - an area over which Congress has power to legislate.
But NOW argues that the Violence Against Women Act was properly passed under the commerce clause, because gender-based violence has a significant impact on interstate commerce and the national economy. Many women avoid working in particular locations and at certain hours because of fear of crime; fear of violence may deter them from traveling across state lines on business; and women frequently leave their jobs after being victimized, NOW said. When it passed the law, Congress found that nearly half of rape victims either lose their jobs or are forced to quit after the crime.
Brzonkala's attorney, Eileen Wagner, said the offices of Sens. Joe Biden, D-Del., and Orrin Hatch, R-Utah, are following the case. Both senators supported the bill. Hatch, chairman of the Senate Judiciary Committee, plans to hold hearings this spring to see how the law has been implemented, his press secretary said.
Congress passed the law in part to make up for the failure of the criminal justice system to protect victims of gender-motivated crime.
It's similar to what happened when state courts in the South failed to protect the rights of victims of racial discrimination, forcing Congress and the federal courts to get involved, Wolfe says.
Congressional reports detailing the legislative history of the act show that both the House and the Senate agreed "there is a need for a strong and clear federal response to violence against women, particularly with respect to the crime of rape." Congress found that the criminal justice system in the states "further victimized" women who had been raped and that the crime consequently was "severely under-reported."
But Greve said giving victims the right to sue their attackers in no way encourages more reporting of rapes.
Reuss said the biggest opponents of the Violence Against Women Act before it was passed were federal judges.
"Because there are millions of rapes, they were afraid every woman who was raped would run to federal court and file suit," she said.
Wolfe recalls the argument: ```This crime - everybody does it, so do we have to make such a big deal about it?' I find that an appalling position."
Supporters insisted that the courts would not be flooded with cases because few rape victims would want to relive their experiences in federal court.
Brzonkala's case is the first known rape suit brought in the 18 months the law has been on the books. In one of the other two civil cases brought under the law, a Connecticut woman is suing her husband, saying he beat her for 20 years.
Besides creating civil-rights protection in gender-bias cases and providing funding for law enforcement, public safety improvements and rape-education programs, the Violence Against Women Act makes crossing a state line to assault a spouse or domestic partner a federal offense.
The first person prosecuted under the law was a West Virginia man who beat his wife and threw her in the trunk of his car. He drove around two states drunk while she lapsed into a permanent coma. He was sentenced to life in prison.
Those parts of the law Paxton does not take issue with. He is only asking Kiser to find the civil-rights remedy unconstitutional.
Although the Republican Congress left the act's funding almost 90 percent intact this year, Reuss said, there were two areas that got no funding: programs to educate judges on gender bias and the effects of rape on victims; and a study of campus sexual assaults and how they're handled by college administrators.
LENGTH: Long : 191 lines ILLUSTRATION: PHOTO: headshot Christy Brzonkala Suing Virginia Tech colorby CNB