ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Tuesday, July 30, 1996 TAG: 9607300100
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
NOTE: Lede
A law that allows victims of rape and domestic violence to sue in federal court is unconstitutional, a judge in Roanoke has ruled in dismissing a lawsuit that accused two Virginia Tech football players of rape.
Declaring the Violence Against Women Act "an unconstitutional exercise of Congress' power," Chief U.S. District Judge Jackson Kiser wrote in a 41-page opinion that lawmakers overstepped their authority when they passed the law. The 1994 law makes gender-motivated crimes civil rights violations and allows victims to sue their attackers for damages.
Christy Brzonkala, a former Tech student who claims she was raped by football players Tony Morrison and James Crawford in a dormitory room, was one of the first plaintiffs to sue under the law. Her case drew national attention.
Brzonkala's lawyer said she will appeal Kiser's ruling, and legal observers said a final ruling on the Violence Against Women Act is a long way off.
"I have said from the beginning that I thought this case would go to the U.S. Supreme Court, because of the bigger picture of what's involved here," said David Paxton, a Roanoke lawyer who represents Morrison.
Paxton had argued that while the act was passed with good intentions, it improperly gave federal courts jurisdiction over matters that belong in state courts.
Kiser agreed, writing: "Without a doubt violence against women is a pervasive and troublesome aspect of American life which needs thoughtful attention. But Congress is not invested with the authority to cure all the ills of mankind.
"Its authority to act is limited by the Constitution, and the constitutional limits must be respected if our federal system is to survive."
Kiser based his ruling in large part on a 1995 Supreme Court decision that struck down a federal law that made it illegal to posses a firearm in a school zone. Both that law and the Violence Against Women Act, Kiser wrote, dealt with state issues that Congress improperly sought to regulate.
"This is another example of Congress sticking its nose into this, that and the other thing - places where it clearly has no constitutional authority to exercise its power," said Michael Greve, executive director of Center for Individual Rights in Washington. Greve also represents Morrison.
But supporters of the Violence Against Women Act predicted that it will be upheld on appeal, noting that a federal judge in Connecticut ruled last month that the law was constitutional. "We think [the Connecticut decision] was a very well-reasoned opinion," said Martha Davis, legal director of the National Organization for Women Legal Defense and Educational Fund.
"We don't have any reason to believe that Judge Kiser's view of this is going to carry the day in the end," Davis said .
So far, Kiser and the Connecticut judge are the only federal judges in the country who have decided cases challenging the constitutionality of the Violence Against Women Act. Their decisions will not carry widespread precedent; that will be left for the appellate courts.
In the nearly two years since Brzonkala claims she was raped by Morrison and Crawford, legal arguments in the case have had little to do with what actually happened in the dorm room the night of Sept. 22, 1994.
Instead, Kiser has considered the role Congress played in passing the Violence Against Women Act, assuming for the sake of the constitutional argument that Brzonkala's allegations are true - although Brown and Crawford are sure to dispute that if the case actually goes to trial.
The issue that Kiser decided Monday boiled down to two points: Could Brzonkala reasonably claim that her attack was motivated by gender - a hate crime against women - and if so, was the law she based her allegations on constitutional?
On the first question, Kiser ruled that Morrison's alleged actions showed "gender animus more than in many, if not most, situations of rape."
The judge said two statements that Morrison is accused of making - telling Brzonkala after the act that she "better not have any fdiseases," and later boasting that he enjoyed having sex with drunken women - indicate a "disrespect for women in general."
But on the second and overriding issue, Kiser struck down the law that Brzonkala would have used to claim she was the victim of a hate crime. For the Violence Against Woman Act to pass constitutional muster, Congress must have based it either on the commerce clause or the enforcement clause of the 14th Amendment.
Kiser ruled that it was based on neither.
Under the commerce clause argument, Brzonkala's attorneys and the U.S. Justice Department argued that rape and domestic abuse affect interstate commerce in a number of ways: women avoid working in certain locations and at certain hours because of fear of crime; fear of violence might deter them from traveling across state lines on business; and woman frequently leave jobs after being raped or sexually abused.
But Kiser ruled that violence against women does not have a significant enough effect on interstate commerce to bring it under the provisions of the commerce clause. Taking Brzonkala's argument to an extreme, he said, even insomnia could be argued to have an effect on interstate commerce and thus would fall under the purview of Congress.
Kiser was no more impressed with a second argument advanced by Brzonkala's attorneys: That Congress acted under the enforcement clause of the 14th Amendment, passing the Violence Against Women Act to make up for the failure of state courts to protect victims of gender-motivated crime.
Under that argument, passage of the act was similar to what happened during the civil rights movement 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.
But for that argument to succeed, Kiser wrote, Brzonkala would have to prove that she was harmed by the actions of the state - something that had not been shown. "Certainly the state is not responsible in any relevant sense for individuals who commit violent crimes against women," Kiser wrote.
Eileen Wagner of Richmond, who represents Brzonkala, said she was not surprised by the ruling. "The court made it very clear from the beginning that it had no interest in trying this case," she said.
In May, Kiser dismissed Tech as a defendant in the lawsuit. Brzonkala had accused the university of acting with an "anti-female" bias in the way it handled her complaints against the players.
Brzonkala never sought criminal charges but made a complaint through Tech's internal justice system in the spring of 1995. No action was taken against Crawford, but Morrison was found guilty of sexual assault. He was granted a second hearing last summer and was found guilty of the lesser offense of using abusive language.
Both times, Morrison was suspended for two semesters, a punishment upheld by the school's appeals officer after the first hearing.
But after the second hearing, Tech's provost overturned his punishment, saying it was too harsh.
Earlier this month, Wagner revived the allegations against Tech and the players in two separate lawsuits filed in state courts. Brzonkala intends to pursue those cases while appealing Kiser's decision, Wagner said.
"Her position is what happened to her is a consummate injustice, and she's going to make sure it doesn't happen to other people," Wagner said. "She's going to use every legal avenue that's available in order to get justice for herself, and to point out to other people that they don't have to take it."
But Joseph Painter of Blacksburg, who represents Crawford, argued that his client has already been cleared in two campus judicial hearings and by a grand jury in Montgomery County that declined to bring charges after hearing the results of a state police investigation into Brzonkala's allegations.
"How many more times does he have to be exonerated?" Painter asked.
The full text of Judge Kiser's opinion is available on The Roanoke Time's Internet homepage at www://infi.net/roatimes.
LENGTH: Long : 140 lines ILLUSTRATION: PHOTO: FILE/1995. 1. Former Virginia Tech student Christyby CNBBrzonkala was one of the
first plaintiffs to sue under the Violence Against Women Act. color.
2. Eileen Wagner. GRAPHIC: The Brzonkala case at a glance. KEYWORDS: MGR