The Public Policy: Christy on the Brink
Rabkin, Jeremy
THE PUBLIC POLICY by Jeremy Rabkin Christy on the Brink E ditorial writers—and too many legal scholars —will salute a court ruling as a "landmark" whenever they agree with it. But a real landmark...
...In September of 1994, plaintiff Christy Brzonkala, a student at Virginia Tech, was out partying until very late...
...k The American Spectator • January 1997 61...
...He acknowledged that he said to Brzonkala, "You'd better f--- ing not have any diseases...
...Why suppose that federal courts would be any different...
...Judge Janet Arterton found such complaints well within the scope of VAWA, since the husband was also charged with "throwing [the wife] to the floor, kicking her...and destroying property belonging to [her]" and thus having "systematically...inflicted a violent pattern of physical and mental abuse" against her...
...They claimed, for example, that rape rates have been rising four times faster than other crimes in recent years, though the Bureau of Justice Statistics reports that rape rates have actually been declining since 1973...
...60 January 1997 The American Spectator post—Civil War statutes providing federal relief for deprivations of civil rights "under color of state law...
...No disciplinary measures of any kind were taken against the roommate who left early...
...The statute could not very well be defended on the basis of congressional power to regulate interstate commerce (though the Clinton Justice Department tried to do so...
...They knocked on the door and were admitted...
...But elementary distinctions do not seem to matter...
...It grandly guarantees to "all persons...the right to be free from crimes of violence motivated by gender"—and provides a new tort claim, with compensatory and punitive damages, for violations of this right...
...Now that is a landmark...
...I will enforce the Constitution...
...To the extent that it is not a mean-44 Brzonkala v. Virginia Polytechnic may mark the spot where the twisted impulses of feminist jurisprudence were finally restrained by the Constitution...
...rzonkala next turned for relief to B the federal courts, invoking the recently enacted Violence Against Women Act (VAWA), which had been bundled into President Clinton's 1994 crime package...
...To spare her sensibilities, Brzonkala was allowed to testify by telephone, and so avoid having to face the two men she was accusing of rape...
...Almost...
...But to reach this quite reasonable conclusion, that Congress lacks constitutional authority to enact a statute like VAWA, Judge Kiser had to look the feminist hysteria in the eye and say, "I will not be intimidated by the hype...
...It is not easy to see how his offense can be "due, at least in part, to an animus based on the victim's gender," since he seems so eager to meet and attract new women...
...two male students took turns raping her, the first roommate turning her over to the other on his way out...
...The states can deal with such matters...
...After all, the effect of muttered remarks—even very coarse and crude ones—on interstate commerce is, to say the least, rather indirect and remote...
...Still, Congress has never thought to enact a general federal provision to protest any and all violence "motivated by race...
...But this brings us to the most troubling point...
...One rarely hears of an interstate spree of violence motivated by gender...
...So here's to a forgotten case that may be a real landmark: the ruling last July by a federal district court in Brzonkala v. Virginia Polytechnic Institute...
...1 ingless bit of congressional showboating, the statute only seems to make sense as a subtle way of enlarging the definition of violence—or, rather, of endorsing the feminist doctrine that every affront to women is tantamount to rape...
...She claimed not to know who the perpetrators were until she recognized their pictures in a football program given to her the following spring...
...The Washington based Center for Individual Rights—fresh from its success in vindicating Don Silva, the New Hampshire writing instructor fired for using off-color metaphors in class ("sexual harassment") — did come to the defense of the black students...
...Violence" and "animus" are just abstractions, spun out by male-dominated legislators and jurists...
...At an administrative hearing before school authorities, Brzonkala was unable to recall much of anything about her assailants except that they were black...
...Crimes of violence" are, of course, already crimes under state law...
...In fact, proponents of the law did try to put over the notion that women were subject to massive unreported waves of violence...
...When the case was finally put to a grand jury, it refused to issue any indictments against the students...
...Brzonkala did not file charges (of any kind) until six months after the alleged event...
...Around z a.m., she and a female friend passed beneath the lighted windows of a dorm room shared by two male students...
...But even after proceeding this far with the strange logic of VAWA, Judge Kiser still held the statute unconstitutional...
...The premise of this statute seems to be that sexism is a more pervasive or systematic or nefarious spur to violence than racism...
...The point seems to be that men like the defendant are enemies of womankind and ought to be punished by federal courts on some basis or other, because the state courts are too bogged down in legal technicalities to do the job...
...Plainly, feminist advocates have a rather different notion of what counts as "rape" or "violence against women" than do the experts in the federal government...
...Is there really such a strong regional bias here, so that the states where women are free can send federal judges down to the states where the women are still required to wear veils...
...The foursome then got into a conversation about sex...
...Then there is the premise that violence against women is really different from violence against "ordinary human beings...
...On technical grounds, the argument for this holding is reasonably strong...
...In the meantime, the case certainly helps us chart our way through some of the deepest bogs of feminist confusion...
...In the Brzonkala case, District Judge Jackson L. Kiser dutifully recorded that the defendant had failed to use a condom and had afterwards said, "You better f—ing not have any diseases" and concluded that this was evidence that the alleged rape was motivated by "animus based on the victim's gender" and therefore constitutive of a separate offense...
...The South is a bit different, after all, than it was in Gregory Peck's day...
...In the utopian future when we have single-sex marriage, will we say that inter-spousal abuse should be covered by VAWA...
...In fact, the Virginia Tech hearing did not find either of the students guilty of rape...
...If the case looks like the latest feminist fashion, it might appear on another level, however, as a tale out of the Old South...
...Isn't this the point where Gregory Peck arrives on the scene to defend the black men...
...How do we distinguish violence "motivated by gender" from just plain old violence or generic violence against the weak...
...According to one of the men, his roommate also left—and then he had consensual sex with Christy Brzonkala...
...Did that young man pounce on the defenseless grandmother because she was female or because she was defenseless...
...A judge upholding the Constitution, rather than twisting it into the service of some politically correct advocacy group...
...The other was found guilty not of rape but of "sexual misconduct...
...By then, however, the issue was not exactly rape...
...The facts in the case were lurid enough for a tabloid...
...Experts trooped to House and Senate hearings, insisting that this new federal law was necessary to remedy the failure or refusal of states to deal with the vast tide of violence against women...
...Nor is it easy to defend the statute as an exercise of congressional power to ensure that the states do not deny "equal protection of the laws": VAWA does not regulate states but private individuals...
...t was too much to expect a federal I judge to take on all of the ideological baggage loaded onto VAWA in one case...
...Someone who is constantly dressing up to impress his numerous girlfriends and mistresses may be a cad—and certainly is a moral slug when he is already married and carries on this way in front of his wife...
...It may mark the spot where the twisted impulses of feminist jurisprudence were finally restrained by the Constitution...
...Proponents claimed that an American woman today has a onein-five chance of becoming a rape victim during her lifetime, though according to BJS statistics, this would be true only if the average American woman had a life expectancy of 250 years...
...But a real landmark tells something about the lay of the land ("After the bend in the river, the ground becomes marshy"), and it does so whether we like it or not...
...The women had never met the two men before, but they decided to pay them a visit...
...Did the husband beat his wife because she was female or because she was his wife...
...Violent mental abuse...
...If the Supreme Court finally agrees with Judge Kiser (when, as is likely, it gets this case on appeal next fall), Brzonkala will mark the spot where the feminist legal tide began to recede...
...But suppose the feminist version of reality is closer to the truth, and state governments really are shrugging off a vast tide of rape and violence against women...
...According to Brzonkala, the JEREMY RABKIN is a professor of government at Cornell University...
...Brzonkala charged that Virginia Tech was protecting the perpetrators because they were football players, and her attorney, a longtime feminist activist, filed for $8.3 million in damages—the exact amount Virginia Tech had earned in that year's Sugar Bowl game...
...There are also some federal statutes enacted to compensate for deliberate or systematic default by state governments, most notably the Let's hear it for a landmark ruling that restrains the feds...
...After a second hearing, this was cited as grounds for upholding the charge of "misconduct," for which the student was placed on probation for a year...
...The lawsuit also demanded an injunction "directing Virginia Tech to provide at least five hours of mandatory sexual assault awareness education to student athletes...and to bring nationally recognized speakers on sexual harassment and sexual assault issues to its university forum at least twice a year...
...In a Connecticut VAWA case, filed at the same time as a state divorce proceeding, the wife charged that the husband had forced her "to be a 'slave' and perform all manual labor, including maintaining and laying out his clothes for his numerous dates with his many girlfriends and mistresses...
...Congress has legislated measures to supplement state criminal law in other areas, but the usual reason—to catch activities that cross state lines—is not at issue here...
...We have been down this path before, and it gets sticky and putrid very quickly...
...The point is summed up in that last phrase —"violent pattern of physical and mental abuse...
...It is using a false landmark to say, for example, "The 'Castle Grande' sign marks the beginning of the really choice tracts...
...When the other woman decided it was time to leave, Brzonkala stayed...
...He found that Congress had no authority to enact a measure dealing with ordinary daily interactions, even when "violence" was charged...
Vol. 30 • January 1997 • No. 1
