Troubling Provisions Being Added to the Violence Against Women Act: Due Process Rights Threatened

Provisions are being added to the 1994 Violence Against Women Act that could undermine due process on campus and in criminal cases, as civil liberties groups like the Foundation for Individual Rights in Education (FIRE) and civil libertarians like former ACLU board member Wendy Kaminer have noted. The changes are contained in a reauthorization of the Act that is likely to pass the Senate over objections from some Republican senators like Charles Grassley of Iowa, who has also objected to the lack of safeguards against fraud in the law and the misuse of millions of dollars in taxpayer money. (Even if the Senate’s reauthorization does not pass the House, programs set up by the 1994 law will continue to operate.)

William Creeley of FIRE, and Wendy Kaminer, say that the Senate reauthorization would effectively result in a form of double jeopardy for accused students. Moreover, they point out, it could implicitly reinforce Education Department “guidance” demanding that colleges water down due process protections in campus disciplinary proceedings (a demand criticized by lawyers like Robert Smith, Jennifer Braceras, Ilya Shapiro, and Harvey Silverglate; leading law professor and former University of Chicago law dean Richard Epstein; the American Association of University Professors; and many civil libertarians and journalists. I am a former Education Department attorney who practiced education law for years, and I discussed why the Education Department’s guidance was legally unjustified under Title IX and federal court rulings here, here, here, here, here, and here).

One provision they do not address, but which Senator Grassley understandably objects to, is a provision in the VAWA reauthorization that would subject non-Indians to Indian tribal courts in domestic violence cases.  Historically, Indian tribal courts have only had criminal jurisdiction over members of their own tribe. Moreover, defendants in tribal courts are not constitutionally entitled to the protections of the Bill of Rights, unlike defendants in state or federal courts (see Santa Clara Pueblo v. Martinez ) — although tribal courts have, in theory, been subjected to some of the strictures of the Bill of Rights pursuant to the Indian Civil Rights Act. As lawyer John Hinderaker notes, courts have ruled “that tribal governments are not bound by the Constitution’s First, Fifth, or Fourteenth Amendments.” Federal judges have  lamented the bias shown by some Indian tribal courts against non-Indians, as in cases where Indian tribal courts imposed hundreds of millions of dollars in damages on railroads over personal injury cases resulting from railroad tracks running through reservations that ordinarily would lead to damages only in the low thousands, suggesting a flagrant violation of Supreme Court decisions like BMW v. Gore. (See Judge Andrew Kleinfeld’s dissent in Burlington Northern Railroad Co. v. Red Wolf, dealing with a $250 million judgment imposed on a railroad by a tribal court.) Given that courts sometimes issue unfounded domestic violence sanctions on people who don’t even live in their jurisdiction — as was illustrated by a New Mexico judge’s restraining order erroneously issued against David Letterman after a local woman falsely accused him of harassing her across the country through his TV show — giving a tribal court jurisdiction over outsiders raises serious questions of due process and jurisdictional overreaching.

Even the original 1994 version of the Violence Against Women Act had its problems, suggesting inadequate vetting. It contained a provision struck down by the Supreme Court in United States v. Morrison (2000), and declared unconstitutional because it exceeded Congress’s powers under the Fourteenth Amendment and the Interstate Commerce Clause. That invalid provision created a tort remedy for gender-motivated domestic violence that essentially duplicated state laws (all states ban domestic violence, and take such crimes seriously).

VAWA also contains another provision that appears to violate due process (see, e.g., 8 U.S.C. 1367(a)). It lets certain immigrants receive specified government benefits by making a “prima facie” allegation of domestic violence, an allegation that the accused is expressly forbidden to rebut; the Vermont immigration office reviews and approves all such applications for benefits, as long as the allegations are sufficiently specific as to constitute a “prima facie” case, which is the legal term for allegations, regardless of their truth or falsity, which are sufficiently detailed and internally consistent to adequately allege a legal violation (the “evidence” that demonstrates a prima facie case is generally just the complainant’s detailed allegation). As Natasha Spivak noted in Roll Call, under VAWA, the federal immigration agency “Citizenship and Immigration Services deems a person accused of domestic violence to be a ‘prohibited source.’ So the CIS, in Kafka-esque manner, refuses to accept any documentation that might reveal the immigrant to be a criminal, welfare cheat or perjurer.”

When such benefits are granted, the government can then proceed under other provisions of federal law to recover the cost of such benefits from the accused. But as cases like Sacharow v. Sacharow and Tyree v. Evans illustrate, the government cannot award benefits at the expense of a private party without giving that party a subsequent opportunity to defend himself.  In the Sacharow case, the New Jersey Supreme Court, which is perhaps the most sympathetic court in the nation to domestic violence complainants, nevertheless ruled that a father accused of domestic violence had a right to defend himself before his ex-wife was put into the Address Confidentiality Program, which would have made it more difficult for him to maintain his relationship with his child. In Tyree v. Evans, the D.C. Court of Appeals ruled that a man was entitled not only to the opportunity to defend himself against domestic violence charges before a year-long restraining order could be granted to his accuser, but also the ability to cross-examine her, before the court could impose a Civil Protection Order against him.

These flaws in the statute may reflect lawmakers’ reluctance to scrutinize its provisions due to its crowd-pleasing name (no one wants to be perceived as soft on criminals who commit “violence against women”). Many counterproductive laws come with appealing names that are designed to shut down debate and prevent careful evaluation of their provisions — like laws named after dead children. Veteran civil-liberties lawyer and former ACLU board member Harvey Silverglate says that “Any time you have a statute named after a victim, it’s not a good law.” “In order to get it passed, you have to depend on sympathy for somebody rather than seeking to remedy a real problem in the system.”

Some have argued that VAWA promotes inflexible mandatory arrest and prosecution policies that backfire on women by taking away their ability to obtain police assistance in situations where the victim does not want a formal prosecution because it could result in job losses or other economic injuries. Harvard University’s Radha Iyengar and Jeannie Suk have concluded that mandatory arrest and prosecution policies result in more deaths among women. One women’s group cites Harvard’s Iyengar for the proposition that “Intimate partner homicides increased by about 60% in states with mandatory arrest laws.” The group Stop Abusive and Violent Environments argues that mandatory arrest laws lead to higher fatalities here, citing a Harvard study that “found enactment of state mandatory arrest policies increased intimate partner homicides by 57%. ”

(If a wife fears calling the police for help in a domestic dispute because her husband, the family breadwinner, will automatically be arrested and prosecuted regardless of her wishes or the lack of physical injury, it may be that she will never call the cops, leading to domestic violence escalating over time. As Carol Iannone noted at National Review, a wife who understandably called police during a domestic dispute involving her husband, a deputy mayor, regretted doing so because police arrested him and caused him to lose his job, resulting in enormous embarrassment for her family. People like that may be less likely to seek police help in cooling down a domestic situation that might otherwise escalate if they fear they will lose all control of the consequences).