This was the allegation, and an ugly one it was: On the night of Sept. 21, 1994, two football players at Virginia Polytechnic Institute repeatedly raped young Christy Brzonkala. They had met her less than half an hour earlier. It was a degrading attack.
In February 1995, she recognized Antonio J. Morrison and James Crawford as her assailants. Because the crime had occurred in a student dormitory, she complained to the VPI judicial committee. The committee acquitted Crawford but suspended Morrison for two semesters. On appeal, VPI found Morrison guilty only of "abusive conduct" and reinstated him for the fall semester. Because she feared for her personal safety if Morrison would be present on the campus, Brzonkala withdrew from the university.Question: Was this brutal incident an act substantially affecting interstate commerce?
The question arises under the Violence Against Women Act of 1994. This is not a criminal statute. The act is predicated on the power delegated to Congress to regulate commerce among the states. Its purpose is to protect the civil rights of women who are victims of gender-motivated violence. Under the act, women may sue their assailants for both compensatory and punitive damages.
That is what Brzonkala did in the VPI case. Last March, she sued Morrison, Crawford and VPI in U.S. District Court in Roanoke. The defendants filed a motion to dismiss. They argued that the congressional act goes beyond the power vested in Congress by the commerce clause.
On July 26, Chief Judge Jackson L. Kiser granted the motion and held the act unconstitutional. He dismissed the suit. The government has appealed to the U.S. Court of Appeals for the 4th Circuit, where the case is now pending for oral argument.
While all this was going on in Virginia, Jane Doe in Connecticut sued her anonymous husband John Doe. She alleged that over a period of 17 years, he had systematically inflicted upon her "a violent pattern of physical and moral abuse and cruelty." He had compelled her even to lay out his clothes "for his numerous dates with his many girlfriends and mistresses."
The husband moved to dismiss on the same grounds advanced in Virginia - that the act of Congress violates the Constitution. This time, the outcome was dramatically different: U.S. District Judge Janet Arterton, a newcomer to the federal bench, held on June 19 that the act is constitutional.
"A rational basis exists for concluding that gender-based violence is a national problem with substantial impact on interstate commerce," Judge Arterton said. She quoted congressional findings that such violence restricts travel and employment opportunities for women, increases health expenditures, reduces consumer spending, diminishes national productivity and bars women from full participation in the national economy.
Every week, Judge Arterton noted, 2,000 women are raped; every year, 4 million women are battered by husbands or partners. An individual act may not affect interstate commerce; cumulatively, the assaults create a national problem subject to federal legislation.
Before Jane Doe's suit could go to trial, the case was settled out of court.
What about it? Both Judge Kiser in Virginia and Judge Arterton in Connecticut worked from the same materials. Both judges studied the congressional reports. Both judges reviewed the Supreme Court's opinion in the landmark Lopez case of 1995, in which the top court ruled that the Gun-Free-Zone Act of 1990 carried the commerce clause out of bounds and was hence unconstitutional.
Both judges went back to the 1942 case of an Ohio farmer, Roscoe Filburn, who raised 23 acres of wheat on his own land using his own seed and consumed all but a small part of the harvest at home. The Supreme Court held that his operation was a part of interstate commerce.
Judge Arterton thought the Filburn case bolstered her reasoning. Judge Kiser had the better view. Wheat is a commodity. Violence is not. The impact of 100,000 Roscoe Filburns could have a measurable effect on the wheat market. The rape of Christy Brzonkala was a terrible thing, but the economic consequences of even 100,000 such assaults are wholly conjectural. The relationship between gender-motivated violence and interstate commerce, said Judge Kiser, is "too tenuous" to pass the constitutional test.
The Virginia jurist advanced the better reasoning. As the Lopez case made clear, the regulation of interstate commerce has its limits. The Violence Against Women Act goes beyond them into a realm beyond the reach of Congress. I hope the 4th Circuit sees it that way.