Joseph R. Biden Jr. was vice president of the United States from 2009 to 2017.
Last month, we heard more than 100 brave sexual assault survivors, current and former members of the U.S. national gymnastics team, confront their abuser as he was sentenced in a Michigan courtroom. This month, shocking allegations of domestic abuse from two former wives led to the resignation of a top White House aide. The courage these women showed as they shared their accounts of all they had endured was stunning.
Every day, the American public hears new stories of sexual assault and other forms of violence against women, some detailing decades of threats and abuse. How many more women must come forward before this country gets serious about this problem?
Things can be different. I have seen the possibilities. More than 25 years ago, I wrote a bill called the Violence Against Women Act. The law accomplished many good things: a national hotline for battered women; money for local shelters; new programs on campus assault; temporary housing for survivors; more education for victim advocates, judges and prosecutors. Remedies created by the Violence Against Women Act have saved lives and saved billions of taxpayer dollars. It helped to change America.
But often people forget that the law originally included more: a revolutionary civil rights remedy that gave victims the power, on their own, to sue wrongdoers for violations of the act.
State criminal-justice systems had failed these women: Police threw out rape kits, juries refused to believe women who wore short skirts and judges displayed bias. Because state criminal- justice systems had failed, I proposed a federal civil rights remedy as a supplement to state remedies.
I wanted to empower women to stand up for themselves no matter where they lived. Congress needed to open the elite federal courts and give women the control they deserved to get their truth heard. When police and prosecutors fell down on the job, a woman and her lawyer could step in; she could sue in federal as well as state court for damages for her injuries or to vindicate her name. Attorneys had incentives to bring such cases, because if the woman won, they could recover the costs of their time and the suit.
In 1994, Congress passed that civil rights remedy. But six years later, the Supreme Court killed it. In a 5-to-4 vote, the court struck down the civil rights remedy on the basis of the strange argument that adding a federal option usurped the role of the states. Then-Chief Justice William H. Rehnquist, who wrote the opinion, had lobbied against the law in Congress, demeaned it in speeches as a pointless “symbolic” effort, and implied that women would use the new law to extort money in divorces. Think about that: The idea was that women would make up stories about being violated to fatten their bank accounts.
I said it then, and it is still true now: The Supreme Court’s decision was legally wrong and tone deaf about women’s reality. Despite the fact that the Violence Against Women Act in no way displaced state authority but just supplemented it, the court viewed Congress as having used its power over commerce and the economy to strip the states of their prerogatives. And despite a mountain of evidence Congress had uncovered proving workplace injury to women who had suffered violent attacks, the court found that Congress had failed to write the law to show a clear connection between sexual assault and women’s economic prospects.
But Congress can redraft the law to fix that. If Congress can regulate cars and stock certificates even when they don’t cross state lines, if it can regulate local workplace conditions, surely it can regulate something that deprives women of education and jobs across the nation.
The federal civil rights remedy was never a complete solution, but it stood for a vital principle about women’s equal rights. If that remedy existed today, sexual assault survivors could sue in federal court to defend their names, receive lost wages or recover damages. Certainly, Title VII and Title IX, which prohibit workplaces and educational institutions from discriminating on the basis of gender, provide important protections. But those laws also leave significant gaps.
We know from the first six years it existed that the civil rights remedy helped fill those gaps, mostly in cases of physical assault. Survivors in offices or on college campuses could bypass hostile prosecutors, disbelieving juries or angry employers. But because the Supreme Court struck it down, we will never know its full potential.
While there is no one solution to the problem of sexual assault, the Violence Against Women Act’s civil rights remedy can offer survivors a way to take back at least some of what they have lost. They deserve more — but certainly no less.
Congress should return to the federal civil rights remedy, improve and expand it if necessary, and fill the gaps the court found fatal last time around.