The second argument for the constitutionality of the VAWA was based on Section 5 of the 14th Amendment by which Congress may protect citizens against state violations of their rights. Brzonkala believed that the state courts had denied her due process because they were indifferent to violence against women. Indeed, Congress had originally passed the VAWA largely because of the flawed manner in which some states handled rape and domestic violence. Brzonkala wanted relief from the federal system. However, as the Supreme Court observed, the only proper defendant under the 14th Amendment would be the state (Virginia) and not a private individual (Morrison). Clearly, U.S. v. Morrison sought federal remedy against an individual, not a state.
Political observers might well be astonished to hear PC feminists appealing to a Constitution that they generally vilify as a "white male document" drafted by dead slave-owners. It was an argument of convenience and part of a well-established campaign to use civil litigation as a weapon for against 'gender-motivated' violence. The VAWA was an attempt to strengthened civil procedure as a gender weapon by allowing federal remedies should state ones prove unsatisfactory.
Civil courts afford at least two advantages. First, they allow feminists to address perceived abuses that fall outside criminal statute. Thus, 'abusive' men who are not criminals can be punished through monetary awards. For example, sexual harassment laws have their roots in Title VII, the fair employment provision of the Civil Rights Act of 1964, which provides civil penalties. In the early '80s, when radical feminists waged war on the porn industry, they did so through local ordinances that declared pornography to be a form of discrimination on the basis of sex. Women who had posed for periodicals like Playboy would have been able to sue in civil court for damages. They could claim that their civil rights had been violated, irrespective of whether they had fully and knowingly consented to participate in the pornography.
Civil courts offer the second advantage of being far less stringent than criminal ones. This is important for crimes such as rape, which are notoriously difficult to prove. In a criminal court, the alleged rape victim must sustain her case beyond a "reasonable doubt," which is often defined as 99 percent certainty. Civil court requires only a preponderance of the evidence, which can mean as little as 51 percent certainty. Moreover, in civil court, the rules of evidence are more relaxed and women are not subjected to severe cross-examination. Rape cases that have been dismissed by a criminal court may well succeed in a civil one.
In the instance of Brzonkala, the defendants did not even reach criminal court: a Grand Jury found insufficient evidence to indict. Nevertheless, the VAWA allowed her to bring civil suit against them. In short, the VAWA allows women to pursue cases that are too weak to be admitted into criminal court. The gender violence need not even be reported to the police in order to be pursued in federal court.
Ominously, the VAWA does not clearly delineate what constitutes "gender-motivated violence" thus allowing the term to cover conceivably any situation of abuse that involved gender hostility. This is promising for feminists who routinely consider even words and images to be a form of gender violence. Such arguments led Supreme Court Justice Sandra Day O'Connor to state, "Your approach ...would justify a federal remedy for alimony or child support." Arguably, that is precisely what radical feminists wanted and hoped to achieve through the VAWA.
Radical feminists want a war on "gender violence" similar to the "War on Drugs" – that is, zero tolerance backed by maximum force. To this end, the VAWA attempted to create a special class of crime defined by ideology. A major tenet of radical feminism is that violence against women is part of a political campaign that men as a class inflict upon women as a class. The fact that real violence against women – e.g. murder, battery, rape – has been steady and steeply declining since 1990 in no way impacts their passionate cry for harsher enforcement. Facts are often irrelevant to ideology.
The Supreme Court decision dealt an unexpected blow to this feminist agenda. Unexpected because, on mere statistical grounds, the Supreme Court tends to overturn rather than to uphold earlier rulings on the cases it hears. Moreover, Justice O'Connor has a strong track record of ruling in favor of 'women's rights,' yet she voted against the VAWA.
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