A recent post reminds readers that the 2000 decision in U.S. v. Morrison, in which the Supreme Court struck the 1994 civil rights remedy enacted as part of the first Violence Against Women Act, eliminated a valuable remedy that held promise for survivors of gender violence. The post is correct that the civil rights remedy might have provided a remedy for the survivor in a recent rape case out of Maryville, Missouri, in which the prosecutors dropped charges. Indeed, while the civil rights remedy was in effect, it afforded relief for numerous survivors, in cases involving both domestic violence and sexual assault. A number of states laws still afford similar relief, some through laws providing civil remedies for survivors of gender violence that were enacted in response to the Morrison decision. These laws should be used whenever possible to provide compensation to survivors and to help shift enduring notions about “legitimate” rape, ideas that victims ask for abuse and lie about complaints, and other antiquated and discredited but nevertheless enduring stereotypes.
The loss of the civil rights remedy in Morrison need not mean the loss of civil rights advocacy for survivors of gender violence. Instead, we might think expansively about how to use existing remedies and how to develop new arguments and strategies. For example, recent efforts leverage civil rights laws to challenge law enforcement’s under-responsiveness as well as over-responsiveness to gender violence claims.
Civil rights campaigns should be conceived broadly; although the 1994 civil rights remedy took the form of a private right of action, civil rights strategies can address a range of inequities. The case of Marissa Alexander, comes to mind. She was convicted in Florida of aggravated assault with a deadly weapon, for firing what she described as a warning shot intended to make her husband, who had a documented history of violence, stop his threats and abuse. In stark contrast to George Zimmerman, she was not afforded immunity under Florida’s “stand your ground” law. The case was appealed, and the appellate court ordered a retrial, based on its conclusion that the trial court’s jury instructions on self-defense were erroneous (the court rejected her arguments that she should receive immunity under the “stand your ground” law). Advocates are calling on the prosecution, to drop the charges entirely.
Civil rights violations take a range of forms and require a range of responses. A combination of legal advocacy and grassroots organizing, even in the face of setbacks, holds the potential to advance the promise the 1994 civil rights remedy held, and to promote justice for survivors.