Federal judge rebuffs law aiding violence victims.

In one of the first litmus tests of the national Violence Against Women Act (VAWA), a federal judge in Virginia has ruled that thelaw is unconstitutional. U.S. District Court Judge Jackson Kiser dismissed a civil suit filed under the act, which allows women who are physically abused to sue their attackers for damages.

The suit, filed by Virginia Polytechnic Institute and State University student Christy Brzonkala, alleged that she was gang-raped by two of the school's football players in their dorm room in 1994. (Brzonkala v. Virginia Polytechnic Institute and State University, No. 95-1358-R (W.D. Va. July 26, 1996).)

Brzonkala's attack occurred only a few weeks after VAWA was passed. Her suit claimed that the rape was "motivated wholly by discriminatory animus toward her gender." Criminal charges were never brought in the case and are not a prerequisite to filing under VAWA.

The civil rights part of the law allows a cause of action for victims of gender-motivated violent crimes. Other parts of the act address sex crimes, rules of evidence in rape cases, and the award of grants aimed at preventing violence against women. (David Reed, Woman Challenges Rape Verdict, Associated Press, July 30, 1996.)

Brzonkala's attorney, Eileen Wagner of Richmond, tried the case along with the U.S. Justice Department and the National Organization for Women Legal Defense and Education FUnd. Wagner argued that VAWA fell under the Fourteenth Amendment's Equal Protection Clause, which requires states to provide equal protection to all citizens.

"Sexual assaults like Christy's are gender discrimination, pure and simple. They deprive women of their civil rights," Wagner said.

Brzonkala's argument paralleled that of VAWA's sponsors, who contended that allowing recovery of damages would help provide equal protection for women. (Michael D. Shear, Judge Rejects U.S. Law for Abuse Victims, Wash. Post, July 30, 1996, at A1.)

Briefs supporting Brzonkala's case also argued that sexual assaults hurt the victim's job performance and thus interfere with interstate commerce because many abused women travel across state lines to seek safety, medical care, and new employment.

Attorneys for the two football players argued that the law gave Congress police powers the U.S. Constitution did not intend. If VAWA were allowed to stand, Congress would be able to pass far-reaching laws subjecting virtually any criminal suspect--even pickpockets--to similar lawsuits in federal court, the lawyers said. (David Reed, Associated Press, Tech Rape Lawsuit Argued in Court, The Free Lance-Star (Fredericksburg, Va.), June 11, 1996, at B8.)

In his decision, Kiser cited a 1995 Supreme Court decision, United States v. Lopez. (115 S. Ct. 1624 (1995).) There, the Court found that Congress could not use the Commerce Clause to uphold gun-free school zones because the relationship to interstate commerce was too tenuous.

Kiser essentially came to the same conclusion in Brzonkala. He wrote, "The bottom line is that both Lopez and the case at hand involve regulated activity that is too remote from interstate commerce."

Kiser also said that Brzonkala--in reasserting Congress's position that violence against women has a major effect on the national economy was as wrong as the federal legislative body itself when it enacted VAWA. "Showing that something affects the national economy does not suffice to show that it has a sub he wrote.

Erwin Chemerinsky, a professor of law at the University of California Law Center in Los Angeles, disagreed. "The central question is, Does violence against women--when looked at cumulatively across the United States--have a substantial effect on interstate commerce?" Chemerinsky said. "In light of the enormous social costs of violence against women, there surely is a substantial effect on interstate commerce."

The U.S. Justice Department intervened as a plaintiff to defend the constitutionality of VAWA. Spokesman Gregory King said the solicitor general will review Kiser's decision before deciding whether to support an appeal.

Wagner said she is still considering an appeal in the case, which comes on the heels of the only other case believed to be filed under VAWA thus fir.

In that case, a federal judge upheld VAWA in a civil suit brought by a battered woman against her estranged husband. (Doe v. Doe, No. 3:95-CV 2722, 1996 WL 344026 (JBA), (D. Conn. June 19,1996).)