Violence Against Women Act Meets Reality

Arnold Ahlert
November 23, 2010

The Violence Against Women Act (VAWA) was first passed in 1994. Its purpose was to create a response to “domestic violence, sexual assault, dating violence and stalking.” It engendered a coordinated effort by the federal government in cooperation with state officials, ranging from law enforcement officers and the judiciary, to healthcare professionals and victim advocates. It was reauthorized by Congress in 2000 and 2005 and is up for re-authorization again this year. And despite its overall efforts to combat sexual abuse, many problematic aspects of the bill, especially with respect to grant qualifications, remain in place.

Part of the VAWA deals specifically with doling out those grants. On the plus side, no matching grants are required. This is important. As Americans will eventually learn, the Obama administration’s stimulus package required matching grants from states for certain programs, often as much as fifty percent of the total outlay. When the stimulus funds are no longer available, states will have two choices: blowing holes in their already shaky budgets, or doing away with a program that may be popular. This way is cleaner: either a grant is available or it isn’t.

On the minus side, any federal funds received would “supplement,” not “supplant” non-federal funds available. In an age of runaway government spending, such a clause is troubling: if private or “non-federal” funds can be used to adequately address a problem, why must the feds spend money as well? Another clause rife with potential for abuse is the one titled “Innovation authority.” Two percent of each grant disseminated can be used for “pilot projects, demonstration projects and special initiatives” to improve “responses” to “domestic violence, dating violence, sexual assault and stalking, and related offenses,” as well as “training and dissemination” of the best practices arising from those projects. This has creative license written all over it. One can imagine a spate of “art” that may arise from such resources, all promoted under the banner of “raising awareness.”

Within the bill’s ten separate “titles” there are more dubious grant qualifications as well, many of which center around the idea that the evidentiary standards for making or determining sexual harassment ought to be lowered. To wit:

Section 102, “Grants to Encourage Arrest Policies and Enforce Protection Orders” calls for the development of “multidisciplinary high risk teams” focused on reducing sexual violence and homicides by developing “evidence-based indicators to assess the risk of homicide.” Oher than the ambiguous “evidence-based indicators,” there is no mention in the bill that a complaint by an alleged victim must be made before such assessments can take place. Absent a complaint, how does one justify government surveillance in order to gather “evidence”?

Another troubling clause concerns eligibility for grants in which the grantee, “with the exception of the courts,” must demonstrate that their ”laws, policies, or practices and their training programs discourage dual arrests of offender and victim” (italic mine). Offender and victim as defined by whom? Absent physical evidence, domestic violence cases are often he said-she said affairs. Dual arrests are often necessary in order to ferret out the truth, and this item would appear to inhibit that.

Section 103, “Legal Assistance for Victims” enables the Attorney General​ to award grants to increase the availability of legal assistance for victims of sexual violence. The problem? The funding may be used for both criminal and civil litigation, in order to provide legal assistance at “minimal or no cost” to the victims. And not just for seeking relief in legal matters “arising out of that abuse” but “relating to” it as well.

With respect to criminal litigation, providing free or low-cost assistance is understandable. But civil litigation? For matters related to abuse? Such ambiguity seemingly provides numerous possibilities for gaming the system. Perhaps such assistance might be feasible in cases where a criminal conviction has already occurred. But prior to establishment of guilt, litigation that can accrue enormous costs for one side with little or no costs for the other provides both an advantage to the latter and an incentive to sue. And once again, absent a conviction, it allows for the presumption that one entity is the victim and the other is the aggressor. This allows for the possibility that “guilt” and “innocence” may be inadvertently established by who gets funding and who does not.

Section 108, “Criminal Provision Related to Stalking, Including Cyberstalking” is yet another area where ambiguity allows for the possibility of abuse, especially with respect to cyberstalking. Part of what constitutes cyberstalking is that which “causes or attempts to cause or would reasonably expect to cause emotional distress to any person.” In a country where hypersensitivity has reached absurd levels, “emotional distress” is a troublingly elastic concept. One that can be exploited in the aforementioned civil litigation.

Section 109, “Outreach and Services to Underserved Population,” is problematic for the same reason: “underserved” is extremely elastic. Remote geography, low population or barriers caused by ethnic and cultural limitations seem like reasonable criteria. Sexual orientation, gender identity, or “alienage status” (as in illegal) do not, at least not without the former criteria of remoteness, etc., being part of the equation. The idea that the LBGT community or illegal aliens are underserved per se, is nothing more than government-endorsed political correctness.

Section 110, “Culturally Specific Service Grant,” is also a cause for concern. This clause essentially grants funds to those engaged in developing and providing culturally sensitive solutions to sexual abuse. The potential problem of such an approach is best illustrated by a recent court case. A New Jersey judge, before being over-ruled, refused to grant a restraining order to a Moroccan women abused by her husband because the husband claimed he had acted according to his Muslim beliefs. Perhaps culturally specific services should be limited to making people aware of American culture and American laws with respect to sexual abuse. No funds should be used to circumvent U.S. law in favor of more culturally sensitive “solutions” to legal disputes. Such solutions are the essence of holding jurisprudence hostage to political correctness.

Speaking of political correctness, Section 304, the “Campus SaVE Act,” requires each college, as a grant requirement, to collect, maintain and publish crime data that include “actual or perceived race, gender, religion, sexual orientation, gender identity, ethnicity, or disability of the victim that are reported to campus security authorities or local police agencies, which data shall be collected and reported according to category of prejudice.”

Why? To establish “hate crime” statistics. Again, hate crimes are often in the “eye of the beholder” and political correctness is often a mitigating factor. Perhaps nothing reflected the potential for abuse better than the case where University of Pennsylvania student Eden Jacobowitz was charged with a hate speech violation for calling five black sorority women “water buffaloes” when they interrupted his studying with a loud conversation. Penn eventually dropped its hate-speech code after being subjected to national ridicule. Yet as this grants reveals, the beat goes on for government bean-counters regardless.

One of the most contentious parts of the VAWA concerns disciplinary procedures in campus hearings for sexual assault. The DOJ required colleges to “apply the standard of proof recommended by the most recent Guidance issued by the Department of Education’s Office for Civil Rights.” The Foundation for Individual Rights in Education (FIRE) contended those guidelines required college students accused of sexual assault to be tried under the weak “preponderance of the evidence” standard of proof. That standard requires nothing more than a 51% “preponderance” of evidence instead of “clear and convincing” proof. Thankfully, it was dropped from the bill as a result of FIRE’s efforts.

Title VIII, “Protection of Battered Immigrants” contains another cause for concern. Section 804, “U-Visas,” allows for a visa to be granted to illegal alien crime victims who can prove they cooperated with authorities. The current draft of the bill doubles the number of U-Visas from 10,000 to 20,000 for a given fiscal year. This is based on the same rationale behind “sanctuary city” policies. Those are cities where police are forbidden to inquire about an individual’s immigration status even if that individual has committed a crime. Despite the fact that sanctuary cities violate federal immigration law, they get away with it by claiming that cooperation by illegals absent fear of deportation is the most effective way to combat crime. U-Visas apparently codify that contradiction and provide a further incentive in the system for abuse.

In addition to these dubious specifics, the overall efficacy of VAWA with respect to achieving the kind of justice its adherents envision remains questionable. A report, “Why Have Domestic Violence Programs Failed to Stop Partner Abuse?” produced by Respecting Accuracy in Domestic Abuse Reporting (RADAR), evaluates the effectiveness of the four major strategies promoted by VAWA: treatment services, restraining orders, mandatory arrests and no drop prosecution. It reveals some sobering realities that challenge the effectiveness of VAWA.

Treatment programs are often unavailable or ineffective for certain abusers because they are based on ideologically driven assumptions, inconsistent with good psychological practice. Restraining orders, in which half of those issued do not even allege physical violence, have been revealed to be generally ineffective as well, and may actually increase violence among unmarried partners. Why? The Independent Women’s Forum contends they may “lull women into a false sense of security.”

With respect to mandatory arrests, a Harvard study concluded that such programs increased subsequent partner homicides by 60 percent, likely due to the fact that they discourage reporting by victims who want police to stabilize a situation, without arresting their partner. No-drop prosecution, which does not allow a victim the option of dropping charges, may also exacerbate a potentially defuse-able incident for the same reason.

Yet VAWA is almost certain to be renewed. And like so many other government programs, the fact that it is a triumph of lowered standards, political correctness and good intentions–as opposed to genuinely equal protection under the law–will remain largely irrelevant.