Entrenching Privacy: A Critique of Civil Remedies for Gender-Motivated Violence

Abstract

In 2000, the Supreme Court in United States v. Morrison struck down a provision of the Violence Against Women Act (VAWA) that enabled victims of gender-motivated violence to bring civil suits against their attackers in federal court. In the wake of that decision, several states and localities have created similar remedies, and there has been a great deal of scholarly discussion of ways to craft a federal civil rights remedy that comports with the Constitution. The decision to create the federal provision stemmed from Congress’s recognition that violent crimes against women are systematically under-enforced or unenforced: presumably, the comparable state remedies were also intended to address this problem. Such remedies have received considerable scholarly support. In this Note, I argue that this continued emphasis on civil remedies for victims of gender violence is both pragmatically and normatively problematic. I argue that reliance on private civil remedies to address law enforcement failure reinforces the traditional separation of women from civil society and their relegation to the private sphere. This same relegation of women to the private sphere, I posit, also underlies the continued failure of the state to protect women from violent crime. As such, any serious efforts to address the continued prevalence of gender-motivated violence must focus not on private alternatives to inadequate law enforcement, but on changing the understanding of the relationship between women and the state that underlies the state’s continued failure to protect them.

Keywords: Violence against women, gender violence, feminist legal theory, civil remedies