Editorial: States must pick up the Violence Against Women Act
Where Congress cannot step to safeguard the peoples' rights, the states sometimes can and must. This is true for the Violence Against Women Act passed by Congress but struck down by the Fourth U.S. Circuit Court of Appeals.
The Violence Against Women Act contained several important protections for female victims of violence, such as allowing them to sue their attackers in federal court for damages. Without this act, there is no separate cause of action under which women may sue their attackers. Their only resort is filing a suit under general tort law. Since tort law is general, it can be difficult to tailor a claim under tort law to a situation involving violence against women. A separate law allowing female victims of this type of violence is needed
The Fourth U.S. Circuit Court of Appeals struck down the law, arguing Congress had stepped outside of its authority in passing it. Proponents of the Act argued that Congress was authorized to pass this law under the "Commerce Clause" of the Constitution, which allows Congress "to regulate Commerce...among the several states." This made no sense to the Court and likely makes no sense to the average citizen, so legally the Court, also relying on a 1995 U.S. Supreme Court decision in U.S. v. Loper, may well be right.
What remains are the practical problems posed by the decision to women. Here is where the states should step in.
The correct response for the states now is to pass their own versions of the Violence Against Women Act. Victims of violence do not need to bring their claims in federal court; they can obtain remedies just as easily in state court. We have an excellent state court system here in Arizona, there is no reason why it should not be the proper forum for victims of violence.
Proponents of the original act went to the wrong legislative body. The bill should have been passed by the state legislatures, not the federal Congress. State legislatures are less restricted than the federal government in passing farther-reaching laws for their citizenry and legislators may be able to find the power to pass this needed act under Arizona a law or the Arizona Constitution.
The potential is clearly out of the federal arena now and it is up to the states to take up the cause of women who are victims of violence.