The Violence Against Women Act: Does It Threaten Due Process?

As Inkwell readers are probably well aware, the Violence Against Women Act is up for reauthorization. Not surprisingly, we’re hearing that old mantra that people who oppose it are against women.

But Wendy Kaminer, a former ACLU board member, recently had a piece in The Atlantic magazine arguing that VAWA should not be reauthorized as is. Kaminer said that a law designed to right gender discrimination has tipped the scales and is unfair to men. A big problem is that standards of proof are lower in VAWA cases:

These low standards of proof, together with the appeals provisions, reflect the tendency of victim advocates, including Obama Administration officials, to err on the side of presuming guilt in sexual misconduct cases. Some have unabashed contempt for the rights of the accused: Boston attorney Wendy Murphy writes disdainfully of "lawyers for men accused of rape (who) injected themselves into college disciplinary proceedings demanding 'due process' and arguing that accused students have a constitutional liberty interest at stake." The accused have no constitutional claim to due process, she writes approvingly, but "student victims of sexual assault" do, "because sexual assault is a form of gender discrimination."

Perhaps. But if violence against women is a form of gender discrimination, so is the systematic denial of due process to "men accused of rape." It is also a prescription for false convictions. 

Meanwhile, Hans Bader, an expert on civil rights and the First Amendment over at the Competitive Enterprise Institute, is, like Kaminer, concerned about the threat to due process posed by VAWA. He also worries that VAWA contains inflexible policies that may actually have made women who don’t want to see their spouses arrested reluctant to report abuse.  

While these are disturbing enough, Bader cites some newly-added provisions that make VAWA even worse. One would amount to an expansion of tribal courts. If VAWA is reauthorized, the new version will hand over to a tribal courts somebody is not ordinarily subject to a tribal court but has been accused of abuse on tribal land:

Historically, Indian tribal courts have only had criminal jurisdiction over members of their own tribe. Moreover, defendants in tribal courts are not constitutionally entitled to the protections of the Bill of Rights, unlike defendants in state or federal courts (see Santa Clara Pueblo v. Martinez ) — although tribal courts have, in theory, been subjected to some of the strictures of the Bill of Rights pursuant to the Indian Civil Rights Act. As lawyer John Hinderaker notes, courts have ruled “that tribal governments are not bound by the Constitution’s First, Fifth, or Fourteenth Amendments.”

Federal judges have  lamented the bias shown by some Indian tribal courts against non-Indians, as in cases where Indian tribal courts imposed hundreds of millions of dollars in damages on railroads over personal injury cases resulting from railroad tracks running through reservations that ordinarily would lead to damages only in the low thousands, suggesting a flagrant violation of Supreme Court decisions like BMW v. Gore.   

Now, you may believe that the role of tribal courts should be expanded—but that should not be decided under the rubric of violence against women. It should be considered as something separate, not as something tucked into VAWA.