June 01, 2010
Why Don’t More Women Sue Their Rapists?
In a recent article on Slate.com, Claire Bushey examines the practice, or lack thereof, of women who sue their rapists. She explains that ten years ago, the Supreme Court struck down a vital component of the Violence Against Women Act (VAWA) that allowed individuals to sue their rapists in federal court based on violation of civil rights claims. In 1994, Christy Brzonkala, a student at Virginia Tech, sued two football players for raping her. She sued both the players and the school under the VAWA’s civil rights policy. Yet, in United States v. Morrison, the Supreme Court ruled that “Congress had overstepped its constitutional authority by creating a federal remedy in the criminal-justice realm that usually falls to the states” and that Brzonkala’s case could only be heard by state, not federal courts.
This ruling has drastically affected the number of women suing their rapists, Bushey explains. While there has been a sharp rise in women filing lawsuits following a rape, the ruling makes it extremely difficult to obtain representation or compensation when suing a rapist. Even when the plaintiff wins (which is common), the rapists are often incapable of paying even the lawyer’s fees. In turn, few lawyers will take these types of cases. Instead, rape lawsuits generally go after third-party defendants, those who have money. These defendants are often employers, such as rent-a-cops or nursing homes, that don’t effectively screen their employees.
In contrast, the VAWA’s civil rights clause encouraged courts to award attorney’s fees to successful plantiffs, making it easier for women to obtain representation and thus sue their individual rapists. The clause also extended the statute of limitations to four years, enabling victims more time to deal with the devastating impacts of a rape and mount a case. But when the Supreme Court struck down these clauses, they did away with these measures and in turn made it increasingly difficult for women to sue their attackers.
Bushey argues that the ability to sue one’s rapist is particularly critical because of the failure of criminal courts to effectively prosecute rapists. She writes:
“Victims need the weapon of a lawsuit because the criminal courts don't always serve their interests. A 2004 study of sex crimes in Philadelphia and Kansas City, Mo., found that only half of the cases that resulted in an arrest were prosecuted. When prosecutors who doubt a victim's story are unwilling to press criminal charges, a civil suit allows the victim a different measure of justice. Juries determine guilt using a lower burden of proof; instead of deciding whether a defendant is guilty ‘beyond a reasonable doubt,’ a plaintiff need only demonstrate that ‘a preponderance of the evidence’ points to guilt, making it easier for victims to prevail. Victims don't send their rapists to prison by suing them, but the damages they can win are another form of punishment. Damages can also help replace a rape victim's lost income and pay for counseling. ‘The criminal case is about paying your debt to society,’ Dion says. ‘The civil case is about [perpetrators] paying their debt to the victim.’
Along with its practical importance for victims, VAWA promised a more abstract kind of benefit that was lost when the Supreme Court struck down the relevant portion of the law. Introducing the legislation in 1990, then-Sen. Joe Biden pointed out that more than 90 percent of sex crimes are committed against women. And yet, he argued, ‘we ignore the implication: a rape or sex assault should be deemed a civil rights crimes, just as 'hate beatings' aimed at blacks or Asians are widely recognized as violations of their civil rights.’ Even when states address rape victims' practical concerns by extending the time they have to sue or encouraging courts to award attorney's fees, they don't challenge the public to rethink rape as an attack on women because they are women—in other words, as a form of discrimination.”
Indeed, in order to successfully sue rapists, the essential components of the VAWA struck down by the Supreme Court must be reinstated. Rape is a civil rights crime and a discriminatory attack against women and must be understood as such. All legislation should accurately reflect this understanding if we are to successfully work to prevent violence against women.
http://legalmomentum.typepad.com/blog/2010/06/why-dont-more-women-sue-their-rapists-.html