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Civil Suit Provision of Violence Against Women Act Found Unconstitutional by Fourth Circuit

Civil Rights Practice Group Newsletter - Volume 3, Issue 1, Spring 1999

May 1, 1999

Donald J. Kochan

An en banc panel of the U.S. Court of Appeals for the Fourth Circuit declared the civil suit provisions of the Violence Against Women Act ("VAWA") unconstitutional, in a 6-4 vote. Brzolkala v. Virginia Polytechnic Institute and State University, 1999 WL 111891 (4th Cir., March 5, 1999). Christy Brzonkala brought suit againwo fellow students at Virginia Polytechnic, alleging rape in violation of section 13981 of the VAWA. Section 13981 creates a federal right and a private cause of action against any person who commits a gender-motivated crime of violence.

Judge Luttig's thorough opinion for the majority held this section unconstitutional, in light of United States v. Lopez, because it regulates non-economic activities that do not substantially affect interstate commerce. It did not include a jurisdictional requirement limiting its application. Congress's limited and rather conclusory findings were insufficient to establish a constitutionally significant, non-attenuated nexus between the effects of gender-related violence and interstate commerce. Moreover, regardless of Congress's findings, to uphold the provision would eliminate all limits on federal power and intrude on traditional areas of state concern. The majority also found no authority in Section 5 of the Fourteenth Amendment for the civil suit provision, because the provision purports to regulate purely private action. In a separate concurrence, Judge Wilkinson defended these conclusions as acts of constitutional interpretation rather than judicial activism.

The debate on the constitutionality of this and other provisions of the VAWA continues throughout the circuits, with varying results. Some legal experts believe this decision and emerging splits will set the stage for the Supreme Court to reevaluate the dictates of Lopez.


Donald Kochan is a law clerk to Judge Richard Suhrheinrich on the U.S. Court of Appeals for the Sixth Circuit.


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