All survivors, not just students, need civil law options

Editor’s Note: This piece was co-written by Alexandra and Elizabeth Deutsch. Liz is a student at Yale Law School, where she works on antidiscrimination law and gender justice. She holds an MSc in Gender from the London School of Economics.

In 2015, let’s take the lessons we’ve learned from the movement against campus sexual assault and apply them to help survivors off campus, too. This should be the year of civil options.

We can no longer avoid the reality that victims of gender-based violence need options other than criminal law. A recent strand of argument, found in the New York Times’s opinion page and the Huffington Post’s comment sections alike, is that colleges’ widespread mishandling of rape reports proves that victims should call the cops instead of their deans. Yet this faith in policing and criminal courts ignores the voices of those with intimate knowledge of the problem (and is particularly tone-deaf in the aftermath of the failed indictments in Ferguson, Missouri, and Staten Island).

The lesson from student activism for better campus responses to sexual assault is that victims desperately need options outside the criminal justice system. Many survivors say that, had the school reporting option not been available (or had their schools, as some politicians have proposed, been forced to hand over the report to the police), they wouldn’t have told anyone at all. Students tell us they largely don’t trust the cops, and they recognize that the criminal justice system can’t provide the accommodations they seek in the wake of an assault: a new dorm room away from an assailant, access to mental health services, or an extension on a paper due the week after the assault. Many want to retain control over their cases but know that in a criminal trial it is the state, not the victim, who calls the shots. And some just don’t want to deal with a two-year trial — but they do want some small justice, and they do need services.

These voices shouldn’t only inform our policy debates about campus reform, however. They also suggest our laws should provide all survivors, whether or not they’re students, with the support and solutions they need outside of the criminal justice system. But 911 remains generally the only option for victims off campus; they cannot call up a trusted dean if they are assaulted or abused.

What would be the off-campus equivalent that would give non-criminal, agile options to victims across the country? A civil private right of action for all survivors. This right would mean victims of gender-based violence in any setting, not only schools and the workplace (which is covered by Title VII), could sue their assailant or a responsible third-party institution in civil court. While a trial looks very different than a campus disciplinary proceeding, civil law allows courts to provide nimble solutions, like those students demand on campus.

And, yes, a civil private right of action would also provide victims with the opportunity to sue for monetary damages. It may seem distasteful to assign a monetary value to rape. But sometimes what a survivors most needs is the cash to pay medical bills, gain financial independence from an abuser, or even just get up and move.

Here’s the tragic thing: this right used to exist. The original Violence Against Women Act (VAWA) included a private right of action to allow survivors of domestic violence or sexual assault to bring suit in federal court against the perpetrator and any enabling third-party institutions. VAWA thus provided an avenue for justice even when no criminal charges had been filed. The bill passed Congress with bipartisan support and was signed into law by President Clinton in 1994.

But survivors were stripped of their ability to sue in federal court fourteen years ago by the Supreme Court in a case called U.S. v. Morrison. The Constitution limits the federal government’s ability to take control of an issue — like violence against women — that is typically left to state authority. In Morrison, defenders of VAWA argued that this federal infringement on states’ rights was justified both by the Equal Protection Clause and the Interstate Commerce Clause. Chief Justice Rehnquist, writing for the majority, quickly dismissed the equality implications of violence against women. The Court then concluded that the federal civil remedy did not substantially affect interstate commerce (apparently women’s health and safety aren’t relevant to our economy) and so wasn’t permitted under the Commerce Clause.

So, after Morrison, survivors are left to rely on state law. But most of these remedies don’t address the full range of forms gender-based violence may take, have short statutes of limitations, and, perhaps most importantly, do not require a losing defendant to pay the victim’s attorney’s fees. That means the only compensation available is a percentage of any court-mandated award. So unless you’re independently wealthy, or the assailant is, you’ll be hard pressed to find a lawyer to take your case.

But there’s some good news. We can harness the lessons of campus activism to improve survivors’ options through state laws. While Morrison has been seen as the death knell for civil options for survivors, we should look closer to home for solutions. California has created a private cause of action that looks much like the original VAWA, with a broad definition of gender-based violence and provision for attorney’s fees to make these suits financially feasible. Other states should follow suit. If we can’t have a federal cause of action, let’s make a national law redundant.

Given the 2014 midterm elections, progressive advocates might be wise to turn their attention away from Washington and toward state legislatures. State lawmakers may be eager to act for victims given widespread constituent interest in rape after two years of headlines about campus violence. Thanks to student activism, new national concern for gender-based violence has emerged, thus far focused on college survivors. But it’s time to channel that energy and widen our scope. Victims of gender-based violence aren’t confined to campuses. Our solutions shouldn’t be either.