Its time for the law to protect victims of gender violence Laura L. Dunn
Throughout the United States,
there is growing social awareness
that sexual violence and harassment
are far too common occurrences
within our various institutions –
occurrences often
without any accountability.
As a result, the Me Too
movement is upon us,
and survivors everywhere
are speaking out to demand change.
Students have rallied against
sexual assault on campus.
Service members have demanded
Congress reform the military,
and workers ranging from
Hollywood stars to janitorial staff
have called out sexual harassment
in the workplace.
This is a tipping point.
This is when a social movement
can create lasting legal change.
But only if we switch tactics.
Instead of going institution
by institution, fighting for reform,
it’s time to go to the Constitution.
As it stands, the US Constitution
denies fundamental protections
to victims of gender violence
such as sexual assault,
intimate partner violence
and stalking.
Specifically, the Fourteenth Amendment
of the Constitution,
which prohibits state governments
from abusing its citizens,
does not require state
governments to intervene
when private parties abuse its citizens.
So what does that mean in real life?
That means that when a woman
calls the police from her home,
afraid that an intruder may attack her,
she is not entitled
to the state’s protection.
Not only can the police fail to respond,
but she will be left
without any legal remedy
if preventable harm occurs as a result.
How can this be?
It is because the state, theoretically,
acts on behalf of
all citizens collectively,
not any one citizen individually.
The resulting constitutional flaw
directly contradicts international law,
which requires nation-states to intervene
and protect citizens against
gender violence by private parties
as a human right.
Instead of requiring intervention,
our Constitution leaves discretion –
discretion that states have used
to discriminate systemically
to deny countless victims any remedy.
Unlike what you may have seen
on “Law & Order: SVU,”
justice is rare for victims
of gender violence.
And even in those rare cases
where law enforcement has chosen to act,
victims have no rights
during the resulting criminal process.
You see, victims are not parties
in a criminal case.
Rather, they are witnesses;
their bodies, evidence.
The prosecution does not represent
the interests of a victim.
Rather, the prosecution represents
the interests of the state.
And the state has the discretion
to dismiss criminal charges,
enter lax plea deals
and otherwise remove
a victim’s voice from the process,
because again,
a state theoretically represents
the interests of all citizens collectively
and not any one citizen individually.
Despite this constitutional flaw,
some victims of gender violence
have found protections
under federal Civil Rights statutes,
such as Title IX.
Title IX is not just about sports.
Rather, it prohibits all forms
of sex discrimination,
including sexual violence and harassment
within educational programs
that accept federal funding.
While initially targeting
sex discrimination within admissions,
Title IX has actually evolved over time
to require educational institutions
to intervene and address gender violence
when committed by certain parties,
such as when teachers, students
or campus visitors commit sexual assault
or harassment.
So what this means
is that through Title IX,
those who seek access to education
are protected against gender violence
in a way that otherwise
does not exist under the law.
It is Title IX that requires
educational institutions
to take reports
of gender violence seriously,
or to suffer liability.
And through campus-level proceedings,
Title IX goes so far as to give
victims equitable rights
during the campus process,
which means that victims can represent
their own interests during proceedings,
rather than relying on
educational institutions to do so.
And that’s really important,
because educational institutions have
historically swept gender violence
under the rug,
much like our criminal justice
system does today.
So while Civil Rights
protects some victims,
we should want to protect all victims.
Rather than going
institution by institution,
fighting for reform on campus,
in the military, in the workplace,
it’s time to go to the Constitution
and pass the Equal Rights Amendment.
Originally proposed in 1923,
the Equal Rights Amendment would guarantee
gender equality under the law,
and much like Title IX on campus,
that constitutional amendment could
require states to intervene
and address gender violence
as a prohibitive form
of sex discrimination.
While the Equal Rights Amendment
did not pass in the 1970s,
it actually came within
three states of doing so.
And within the last year,
at least one of those states
has ratified the amendment,
because we live
in different political times.
From the Women’s March
to the Me Too movement,
we have the growing
political will of the people
necessary to create lasting, legal change.
So as a victims' rights attorney
fighting to increase
the prospect of justice
for survivors across the country
and as a survivor myself,
I’m not here to say, “Time’s Up.”
I’m here to say, “It’s time.”
It’s time for accountability
to become the norm after gender violence.
It’s time to pass
the Equal Rights Amendment,
so that our legal system
can become a system of justice,
and #MeToo can finally become “no more.”
Thank you.
(Applause)