The death knell for the Violence Against Women Act has been sounding for weeks. "The 112th Congress ended Thursday, and the Violence Against Women Act perished with it," Talking Points Memo wrote in early January.
In reality, the protections for victims under VAWA haven't completely gone away, but they are being threatened by ongoing legislative gridlock that the new Congress is now trying to overcome.
On paper, VAWA has been technically "dead" since September 2011, when Congress failed to reauthorize it. But the funding for VAWA's programs has kept going, because the budgeting process is separate from the reauthorization and Congress has continued to appropriate money for the relevant programs, which assist victims of domestic violence by strengthening federal law enforcement and social services.
"There is no immediate to threat [of] programs shutting down and not being funded," explains Sharon Stapel, executive director of the Anti-Violence Project. The administration hasn't changed the legal protections (pdf) set forth under VAWA since its last 2005 reauthorization, including the "rape shield law," which restricts the ability of a defendant to use an alleged rape victim's sexual history in court.
However, the last Congress' failure to reauthorize VAWA has made the future of the law uncertain. There are two ways in which the law's programs could dry up.
First, Congress could decide to stop funding VAWA's programs any time after March 27, when the current Continuing Resolution expires, and the expiration of VAWA's authorization could give fiscally conservative legislators a new rationale for making cuts. That's fueled significant uncertainty for domestic violence shelters and other groups that receive money from programs authorized by the law. Second, if the law is never reauthorized, a future White House could reverse its legal protections.
There's still strong bipartisan support for VAWA, but the reason that the law has languished is because Democrats want certain expanded protections for immigrant, LGBT, and Native American victims. The Senate successfully passed a bill with the new provisions in April, 68-31. House Republicans passed their own VAWA bill in May without the new provisions, which the White House then threatened to veto. And the two parties have been deadlocked since then, as neither side believes the other's legislation is acceptable.
Republicans have raised particularly strong objections to a provision in the Senate Democratic bill that would allow Native American tribal courts to prosecute non-native perpetrators, which they believe is unconstitutional. (The GOP version would allow Native Americans to apply for a protection order in US District Courts, even if the abuse happens on Native American land.)
Republicans have also objected to adding non-discrimination for LGBT victims receiving social services funded VAWA, arguing in 2012 that it was simply a "political statement" in an election year. Finally, they opposed the Senate Democrats' proposed increase in "U visas," which are granted to certain undocumented immigrant victims that give them legal status and work authorization. Supporters believe the visas are a valuable law enforcement tool to help prosecute perpetrators while protecting undocumented victims who may be afraid to speak out.
Hopes for VAWA's reauthorization have risen in the new Congress, as Democrats have made certain concessions to Republicans and the House GOP appears more open to considering an expanded version of the law. On Tuesday, Sen. Patrick Leahy (D-Vt.), chair of the Senate Judiciary Committee, and Sen. Mike Crapo (R-Idaho) reintroduced a new version of VAWA that removed the proposed increase in U visas. Democrats say they made the change for procedural reasons: The visas raise a small amount of revenue, and revenue-generating bills must originate in the House.
But it's really a major political concession, as no one expects that House Republicans will put the measure in their own version of the bill. Immigration advocates admit it's a setback, but they stress there are other new protections for immigrant victims in the new Senate VAWA bill, like new immigration protections for the children of undocumented victims and stronger enforcement against overseas marriage brokers of exploited "mail-order brides," explains Jeanne Smoot of the Tahirih Justice Center, who's part of a national task force to protect victims of domestic violence and sexual abuse. And they say Democrats have promised to include the increase in U visas in their push for a comprehensive immigration overhaul.
Meanwhile, since the beginning of the new Congress, the House GOP has begun opening its doors to more VAWA advocates, designating House GOP Conference Chair Rep. Cathy McMorris Rodgers as the point person. Deborah Parker, vice-chair of the Tulalip Tribes in Washington State, was among the tribal leaders to meet with Rodgers and other legislators this week, as the Huffington Post first reported. "She's ready to get a team together to further explore what type of language would fit, that Republicans would feel comfortable with," says Parker, who was the victim of domestic sexual assault as a young child.
Parker says she feels hopeful that legislators will ultimately be able to come to a compromise on the tribal provisions of VAWA, given epidemic of domestic violence among Native Americans, who the Justice Department says are 2.5 times more likely to be sexually assaulted than any other racial group. Perpetrators "can get away with so much here—have raped and abused and then fallen through the cracks [of the judicial system]," says Parker. "If it's on tribal land, our sheriff's department says 'Sorry we don't have jurisdiction.'"