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Abstract:
Feminist theory's insights into the ways in which domestic and sexual violence reflects and perpetuates sex-based inequality have been critical in advancing both domestic and international advocacy. This essay, part of a symposium on "The Global Impact of Feminist Legal Theory," explores the comparative roles those arguments have played. It first surveys the nature of recent reforms in the United States. Despite the fact that many reforms were grounded in arguments exposing domestic and sexual violence as a manifestation of historic sex-based discrimination, the current landscape of legal remedies and social services, with few exceptions, lack an express acknowledgment of domestic and sexual violence as a problem of sex discrimination. Yet the daily experience of domestic and sexual violence survivors continues to reflect sex discrimination's ongoing legacy.

International human rights law contrasts with that of the United States in that it explicitly defines violence against women as a problem of inequality. The essay investigates the impact of that express link by analyzing the steps countries have reported taking to comply with international human rights laws' express anti-discrimination mandates, through the reports of the Special Rapporteur on Violence Against Women. It concludes that international human rights frameworks' structural incorporation of a mandate to address the root causes of domestic and sexual violence holds the potential to ensure that states address prevention and social and cultural transformation in addition to improved social services and criminal interventions.

sex discrimination, violence against women, equality

Abstract:
The 1994 Violence Against Women Act (VAWA) was historic in many respects. Although federal legislation previously had addressed violence against women in a smattering of contexts, VAWA represented the first federal attempt comprehensively to address the myriad social and legal problems faced by victims of domestic and sexual violence. Perhaps the most controversial of VAWA's provisions was its civil rights remedy, which authorized a civil cause of action against the perpetrator modeled after other federal civil rights laws. The remedy sought both practical and aspirational goals: to afford a cause of action to victims who otherwise would be denied relief; and to transform the terms of debate in which domestic and sexual violence was framed.

The Supreme Court struck down the law as an unconstitutional exercise of Congressional power in United States v. Morrison, 529 U.S. 598 (2000). This article reviews and analyzes legal theories and strategies that remain available to those seeking redress for the civil rights violations violence against women produces. It briefly summarizes the civil rights remedy's history and reviews the analogous laws still available to victims. The article discusses new laws and legislative proposals modeled after the VAWA civil rights remedy but enacted by states and localities; state statutes that authorize civil recovery for bias-motivated violence, some of which have pre-dated VAWA; and both traditional and newly enacted laws prohibiting violent discrimination that interferes with victims' civil rights and prevents their economic independence and full civic participation.

gender, civil rights, equality

Abstract:
This Article evaluates the application of sex equality theory to the harms resulting from domestic and sexual violence. Sex equality theory and related antidiscrimination remedies widely have been heralded as holding the potential both to advance victims' economic recovery and to transform public understanding of the problem. Laws such as the civil rights remedy of the 1994 Violence Against Women Act struck by the U.S. Supreme Court in United States v. Morrison are rooted in this theory. Because Morrison rested on questions of federalism, the decision neither resolved nor addressed a large category of concerns that led to the enactment of that and similar laws.

To reinvigorate discussion of those important issues, this Article reconsiders the value of framing the harm that flows from domestic and sexual violence as a civil rights violation. I argue that civil rights remedies are important legal tools for victims of domestic and sexual violence. Nevertheless, their practical appeal necessarily will be bounded by realities inherent in the nature of the remedy and in the nature and experience of abuse. A variety of considerations, including survivors' rational reluctance to reengage with an abuser, will deter victims from invoking civil rights remedies. Civil rights remedies' transformative potential to produce either policy or other forms of social change will be limited unless their enactment and use are closely tied to grassroots organizing efforts. I advocate alternative and complementary approaches to the remedies' dual and laudable goals of expanding avenues for economic recovery and transforming the discriminatory attitudes that allow domestic and sexual violence to persist.

gender, gender violence, equality, civil rights, remedies

Abstract:
Workplace discrimination based on sex persists despite decades of anti-discrimination law. Domestic and sexual violence survivors' treatment at work often reflects a subtle form of sex discrimination that inevitably informs and distorts workplace decisions involving domestic and sexual violence victims, yet, in many cases, remains legally insignificant. This article proposes an approach that draws on the growing literature documenting cognitive bias. It argues that survivors' experiences at work should be recognized for the ways those experiences reflect subtle gender-based bias. The proposed approach would interrupt the operation of unconscious bias at the points where it most frequently operates and would require evaluation of the actual, rather than presumed, role of abuse. This approach would produce a fuller and more accurate account of discrimination while protecting employers' legitimate interests in both performance and safety.

gender, discrimination, domestic violence, sexual violence, workplace, equality

Abstract:
This article takes on the parallel processes of law reform and cultural transformation by comparing gender violence reform projects in the United States with those in South Africa. It does so by focusing on one strand of advocacy, that focusing on the economics of abuse. Since economic independence is central to women’s ability to navigate abuse, women’s ability to work in its aftermath is critical. This article compares each country’s current and potential reform projects to address the ways gender violence impacts survivors’ ability to get and keep their jobs.

Despite the stark contrasts between the countries’ respective legal and economic contexts, the challenges faced by advocates are different in degree rather than in kind. This article reviews the prevalence of gender violence in each country and the extent and nature of women’s workplace participation. It places reforms addressing the impact of abuse on employment in the broader context of each country’s domestic and sexual violence reform movements and describes employment-related projects, with a focus on those in South Africa.

The similarities and differences in economics, culture and law underscore several lessons about the possibility of achieving transformational change. The article identifies several theories under which South Africa’s progressive legal frameworks could afford recourse to survivors whose employment is adversely affected as a result of abuse. Nevertheless, the comparison highlights the inherent similarities of law reform projects that seek to transform historic biases and cultural norms. It underscores the importance of enforcement and implementation, of centering anti-subordination initiatives in the context of equality, and of maintaining the difficult and ongoing project of challenging bias in its many forms, in order to create both legal change and cultural transformation.

Abstract:
In this article, Professor Goldscheid explores the barriers to economic independence faced by victims of domestic and sexual violence by comparing the government programs for those victims with the federal September 11 Victim Compensation Fund created for victims of the 9/11 terror attacks, another group of victims systematically impacted by violence. Professor Goldscheid chronicles and compares the history, rationales and underlying theories that animate the programs. She argues that the programs contain different, but opposite, flaws. Neither is driven by a coherent theoretical foundation or a methodical analysis of victims' economic realities in the aftermath of the violence. She concludes that the tremendous differences in program approach are not warranted by the differences in program purpose or victims' experience.

Professor Goldscheid argues that future compensation programs for victims of domestic and sexual violence should maximize cost spreading and should redress the systemic unavailability of traditional systems of recovery. She proposes an approach that is grounded in empirical data describing the reality of victims' experiences and that eliminates vestiges of bias against victims of domestic and sexual violence. The approach would generally retain the modest award structure of the state programs, but would integrate the September 11 Fund's overall approach to victims, marked by meaningful efforts to address their resulting unmet practical needs, by extensive public education and outreach and by efforts to encourage participation and maximize program utilization. She cautions against the dangers of developing a two-tier track of crime victim compensation programs - one for victims of terrorism and one for victims of other acts of violence - and identifies risks that such a dual system would present.