1. Prepared by: Dr. Caroline (Kay) Picart
Violence Against Women: Representations of Fact and Fiction Based on a paper under review with Rhetoric and Public Affairs
Prepared by:
Dr. Caroline (Kay) Picart

2. Fictional Renditions: Questions
Identify any films you know that deal with rape.
Is there a common theme concerning victimhood and agency that emerges from these accounts?

3. Fictional Renditions: Examples
Sleeping with the Enemy (1991)
I Spit on Your Grave (1978)
Extremities (1986)
The Burning Bed (1984)
The Accused (1988)

4. A common thread Victim Passive Hystericized Sick An object of pity
Agent
Active
Rational/deliberate
Healthy
An object of admiration, however ambivalently

5. VAWA: Questions What is the Violence Against Women Act?
What us the VAWA civil rights remedy?

6. VAWA
The Violence Against Women Act’s (42 U.S.C ) civil rights remedy attempted to create a private right of action for victims of gender-motivated violence, based on the argument that discriminatory violence presents significant obstacles to women’s full participation in interstate commerce. That is, extensive evidence indicates that “almost 50% of rape victims lose their jobs or are forced to quit in the aftermath of the crime and that half of women in homeless shelters have fled violence in their homes.”[i] [i] “Federal Authority to Address Violence Against Women: BRZONKALA v. MORRISON, et. al., Nos & 99-5,” Highlights: U.S. Supreme Court, NOW Legal Defense Fund and Legal Education, , 4.

7. VAWA (2)
VAWA constituted the first federal legislation to address the problem of violence against women in a comprehensive, multi-pronged approach, plotting stalking, rape, domestic abuse, child molestation and the abuse of immigrant women along a continuum rather than as separate issues.[i] VAWA’s potential lay largely in its efforts to address the problem of the systematic and often invisible violence against women through a variety of mechanisms, including funding for women’s shelters, a national domestic abuse hotline, rape education and prevention programs, and training for federal and state judges.[ii]

8. VAWA (3)
It also included new remedies for battered immigrant women and other reforms,[iii] such as the criminal enforcement of interstate orders of protection[iv] and most controversially, the development of an innovative civil rights remedy for gender violence.[v] This civil rights remedy is the fulcrum of this article.

9. VAWA’s civil rights remedy (1)
The initial passage of VAWA’s civil rights provision is significant because it explicitly linked violence against women, as motivated by a “gender animus” to the issue of equality, and it made the argument by analogy to race-based discrimination. Even more significantly, the legislative history of the Act documented in great detail how gender violence curtails women’s freedom to work, travel, live freely, and make choices about their own lives, which in turn impacts the general economy, commerce, and travel.

10. VAWA’s civil rights remedy (2)
However, the civil rights provision was plagued by controversy concerning whether federal jurisdiction is appropriate for “domestic” matters; in addition, the particular meaning of the phrase “motivated by gender” was a subject of intense debate. On May 15, 2000, the United States Supreme Court in a 5-4 split decision,[i] written by Judge Rehnquist, decided against its constitutionality.[ii] [i] Judges Rehnquist, O’Connor, Scalia, Kennedy and Thomas formed the majority view; Judges Souter, Stevens, Ginsberg and Breyer dissented. “Supreme Court Strikes Down VAWA,” The Liberator,
[ii] “United States v. Antonio J. Morrison, et. al.; and Christy Brzonkala v. Antonio J. Morrison, et. al,” Nos and 99-29, Supreme Court of the United States, 529 U.S. 598; 120 S. Ct. 1740; 2000 U.S. LEXIS 3422; 146 L. Ed. 2d 658; 68 U.S.L.W. 4351; 82 Fair Empl. Prac. Cas. (BNA) 1313; 77 Empl. Prac. Dec. (CCH) P46,376; 2000 Cal. Daily Op. Service 3788; 2000 Daily Journal DAR 5061; 2000 Colo. J. C.A.R. 2583; 13 Fla. L. Weekly Fed. S 287, January 11, 2000, Argued, May 15, 2000, Decided. US Lexis Nexis Academic Universe Document.

11. VAWA’s civil rights remedy (3)
The decision, which affirmed the 1999 ruling of the U.S. Court of Appeals of the Fourth Circuit, was based on precedent: the Supreme Court set boundaries to Congress’ Commerce Clause authority in the wake of United States v. Lopez, 514 U.S. 549 (1995), which struck down the Gun Free School Zone Act on the argument that the proximity of guns near schools was “insufficiently connected with interstate commerce.”[iii]
[iii] “Federal Authority to Address Violence Against Women: BRZONKALA v. MORRISON, et. al., Nos & 99-5,” 4.

12. Aims:
Much that has been written about VAWA’s civil rights remedy revolves around whether or not it is constitutional. For the purpose of conciseness and in order to emphasize my rhetorical focus, I narrow this paper to an analysis of definitional strategies deployed mainly in legal documents (principally records of the cases) meant to address the abuse of women that were implied in the bill. Questions of what intimate violence is, or what a “battered woman’s” or “raped woman’s” experiences are, raise crucial issues of how theory and practice for work on the abuse of women are intrinsically connected.

13. Aims (2)
In specific, this paper focuses on the tensions in the definitional construction of the “raped woman” and “battered woman” simultaneously as suffering from illnesses that deserve medical treatment and as victims of abuses that deserve legal redress. Ultimately, the problems with these characterizations arise from the fact that current popular and legal interpretations of “agency” (labeled the “reasonable man” standard) and of “victimhood” leave battered women in a double bind: the burden of “rationally” proving that the battering relationship was sufficiently coercive or life-threatening is placed on their shoulders by asking why they never attempted to leave; and if they fail to fit the archetypal

14. Aims (3)
profile of the “true victim” by not being repentant or traumatized enough, or by being angry, then they are judged as not truly victims, and therefore do not merit legal redress.
Although VAWA goes a long way in addressing issues of violence against women, it, too, is plagued by these definitional problems, which ultimately strike at the heart of this particular issue: the legal constructions of strict dichotomies separating the the “autonomous” from the “victimized.”

15. Case Studies
To prove the centrality of this crucial dichotomy, I aim to examine the medicalized and legalized rhetorical tactics deployed in the cases of:
1.) Lorie Mattison v. Click Corporation
2.) Mary Y. Liu v. Giacomo Striuli and Providence College
3.) Christy Brzonkala v. Antonio Morrison, et. al.
4.) Christy Bergeron v. Paul Bergeron

16. Case 1: Lorie Mattison v. Click Corp.
What are the facts of the case, according to the court records?
What was the outcome of the case?

17. Mattison v. Click Corp. Sexual harrassment-rape case
The constitutionality of VAWA’s civil rights clause was upheld, and the defendant, John Imbesi’s motions to dismiss charges of assault and battery were denied

18. Questions Comment on depictions of agency and victimhood in the case.
Comment on depictions of race, class, gender and sexuality implied in the characterization of this case.

19. Victimhood and Agency in the Mattison v. Click Corp. Case
The legal rhetoric used, which is meant to empower her, tells the story of a woman reduced to an object without agency. Her falling ill with genital herpes completes the picture well because the story visualizes her as a body traumatized, penetrated and contaminated—the standard picture of the innocent victim. More importantly, she meets the “reasonable man” standard by making a clean break from her abuser after only two recorded attempts of getting away; this confirms one of the myths about victims of domestic violence, or of women who are caught in abusive relationships: that if they were only “in their right faculties,” it would be simple to resist and get away.

20. Case 2: Mary Y. Liu v. Giacomo Striuli and Providence College
What were the facts of this case, as presented by the court records?
How did the case turn out?

21. Liu v. Striuli, Providence College
Sexual harrassment-rape case of an international student
acknowledged that Liu had sufficient evidence to prove that a “crime of violence motivated by gender” had occurred and upheld the constitutionality of GMVA—Gender Motivated Violence Act, the civil remedies provision of VAWA

22. Question
What were the implicit characterizations of victimhood and agency in relation to depictions of race, gender, class, sexuality, in this case?

23. Agency and Victimhood
Once again, despite the favorable ruling for both Liu and the constitutionality of VAWA, it is interesting to note that the general rulings and even VAWA’s standards for liability still reify the same all-too-familiar stereotypes: that unless the victim has shown overwhelming evidence of protest against the abuse, then it must have been thoroughly “consensual”; and that in order legitimately to claim legal redress, the plaintiff has to prove that she had become purely an agentless victim, rather than a partial victim and partial agent.

24. Case 3: Christy Brzonkala v
Case 3: Christy Brzonkala v. Morrison, Crawford, Virginia Polytech Institute and State Univ.
What were the facts of this as presented by the court documents?
How was this case presented in the media?
What was the outcome of the case?

25. Brzonkala v. Morrison, et. al.
Campus rape case
Very high profile case
resulted in the Supreme Court’s decision that “Congress had no authority either under the Constitution’s Commerce Clause or Fourteenth Amendment to enact [a] federal civil remedy for victims of gender-motivated violence”

26. The Supreme Court Ruling
Essentially, the reasoning behind the decision is that though violence against women is a “sobering problem” that demonstrably takes a toll on the national economy, violence against women is not “economic” in nature, and the law does not require any interstate conduct. Though the case was eventually appealed at the level of the Supreme Court, its conclusion did not change. Chief Justice Rehnquist, joined by Justices O’Connor, Scalia, Kennedy and Thomas expressed the majority opinion that “gender-motivated violence were not—in any sense of the phrase—economic activity,” and added that the Constitution requires a “distinction” between what is “truly national” versus what is “truly local,” among other considerations.[i]

27. Supreme Court Ruling (2)
Source:
[i] “United States v. Antonio J. Morrison, et. al.; and Christy Brzonkala v. Antonio J. Morrison, et. al.,” Nos and 99-29, Supreme Court of the United States, 529 U.S. 598; 120 S. Ct. 1740; 2000 U.S. LEXIS 3422; 146 L. Ed. 2d 658; 68 U.S. L.W. 4351; 82 Fair Empl. Prac. Cas. (BNA) 1313; 77 Empl. Prac. Dec. (CCH) P46, 376; 2000 Cal. Daily Op. Service 3788; 2000 Daily Journal DAR 5061; 2000 Colo. J. C.A.R. 2538; 13 Fla.L. Weekly Fed. S 287, p. 2.

28. The Results
Ultimately, though the grounds of argumentation shift from the specifics of the rape to the generalities of constitutionality and what constitutes “economic” activity, it is clear that notions of “agency” and “victimhood” were still at the heart of the debate. In ruling that violent felonies against women were not “economic” in nature, the Supreme court was in effect ruling that these women, in spite of the abuses they suffered (or could potentially suffer) were still agents—that is, that they were still capable of making the “rational man” choices of being mobile and professionally adept to participate fully in the national economy.

29. The Results (2)
In addition, it is clear that Brzonkala had by then acquired a “celebrity” status of sorts, and had achieved a high profile as an activist.[i] Indeed, NOW later awarded her a 2000 “Woman of Courage Award” as an “antiviolence trailblazer”[ii] for her “courageous efforts in the struggle to end violence against women” and for having “valiantly faced harsh and biased courts and maintained a graceful poise in front of the media.”[iii] Her status as a poster girl for VAWA’s civil rights clause probably also contributed to the failure to present her as a “credible” victim.

30. Sources
[i] See, for example, Kathy Rodgers, President, NOW Legal Defense Fund and Education, “One Nation Indivisible: Are We Ready for States’ Rights?,” The Commonwealth Club of America, ; see also “Campus Safety Advocates to Support Brzonkala at Supreme Court,” Security on Campus, Inc., .
[ii] “Donna Brazile, Christy Brzonkala to Join Patricia Ireland for the 2000 National NOW Conference on Miami Beach,” .
[iii] “NOW National Conference 2000, Women of Courage,”

31. Case 4: Christina Bergeron v. Paul Bergeron
What were the facts of this case, as presented by the court records?
What was the outcome of the case?

32. Bergeron v. Bergeron Domestic abuse-rape case
resulted in the dismissal of Christy Bergeron’s charges against her former husband of simple battery, aggravated battery, attempted forcible rape, and aggravated assault by virtue of their being filed under section of VAWA

33. The Results
Christina Bergeron’s anonymity, as a faceless battered wife, as opposed to Brzonkala’s former-athlete-and-model-turned-poster-girl-for-campus-rape, probably also contributed to the case’s rapid closure; unlike the Brzonkala case that resulted in numerous press accounts, this case did not produce a single story in the popular press.

34. Conclusions
For all the good intentions that motivate VAWA, it still suffers from several structural flaws that promote stereotypic depictions of victimhood, and fail to “get at” the nuances of what being a victim entail. One salient criticism that is in line with the critical race theory critique of normative law is that VAWA, and especially its civil rights remedy, still envisaged all victims of domestic violence as essentially white and of the right class and education to be able to take advantage of the civil rights remedy.

35. Conclusions (2)
It is important to note that in three out of the four cases studied above, no mention of race is ever made; Liu’s Taiwanese racial identity is presented in a way that it is coincidental, rather than crucial, to how the events unfolded. In all four cases, class is rhetorically invisible, though it is implied that Mattison, as a professional woman, was probably more economically privileged and educated than Liu, the Taiwanese graduate student, and Brzonkala, the college student; Christina Bergeron, whose case has the least details, is not profiled in terms of her race or class.

36. Conclusions (3)
Thus, plaintiffs who fit an “intersectional” mode (i.e., whose race and class differentiate them from the presumed norm) experience discrimination and abuse not simply as women, but as women who belong to a certain race, class, sexuality, age, and level of able-bodiedness, among other factors. The case of Helen Brooms illustrates how a “single axis” approach to handling violence and discrimination against women, symptomatic of VAWA’s civil rights remedy, fails miserably.

37. The Brooms Case
Helen Brooms, a 36-year-old Black woman, was hired as an industrial nurse for the Regal Tube Company in During the 16 months she worked at Regal, Brooms’ supervisor made numerous explicit sexual and racist remarks directly addressed to her. On one such occasion, he showed her “a pornographic photograph depicting an interracial act of sodomy” and claimed that this photograph showed the ‘talent’ of a Black woman—and that was why she was hired. This escalated when he later showed her a “racist pornographic picture involving bestiality.”

38. The Brooms Case
He then grabbed her arm and threatened to kill her if she moved. Brooms fell down a flight of steps as she fled her assailant. Despite what seems an open and shut case for racial and sexual discrimination, the Brooms jury dismissed the racial harassment claim because it did not fit the profile of the paradigmatic case of race discrimination (which are usually targeted at men of color, and involve more than one individual—i.e., had elements of demonstrable conspiracy). As Sara Lesch observes: “the supervisor’s actions in Brooms provide an example of oppressive behavior that combines racist and sexist elements, while falling neatly into neither category.”[i]

39. Source
[i] Sara E. Lesch, “A Troubled Inheritance: An Examination of Title III of the Violence Against Women Act in Light of Current Critiques of Civil Rights Law [Part 2 of 5],” Columbia Journal of Gender and Law, 3 (1993): 542+,

40. Kimberle Crenshaw: Intersectionality
In a 48 Hours documentary, seven victims of domestic abuse were interviewed. The seventh interviewee, the non-white One, was the only one who was not “humanized” in any way, unlike the first six. She is first visualized with her face physically brutalized, and then later, technologically brutalized, when her face is altered to render her unrecognizable as she appears to testify, unwillingly, at a trial. Hers was the most graphically exploited—showing a bloodstained room, bloody pillows, and a close-up of her boyfriend’s bloody sneakers.

41. 48 Hours Documentary (2)
Yet her testimony was also the most severely curtailed: she is never given the chance to explain why she refused to cooperate with the authorities, and unlike the other six, is robbed of an epilogue. There is no feeling of sympathy or identification that is enabled by the way her story is rhetorically set up; she is simply an abject lesson in what could happen if a victim “chooses” to remain a victim, rather than move into the enlightened sphere of the “agent.” As Crenshaw writes: “While the fates of the other women are revealed at the end of the episode, we discover nothing about the black woman. She, like the Others she represents, is simply left to herself and soon forgotten.”[i]

42. VAWA and Radical Feminist Theory
To close, despite VAWA’s progressive aims and ambiguous gains, there is a sense in which it becomes a strange bedfellow of its same-other, radical feminist theory, as put forth by Catharine McKinnon and Andrea Dworkin. In brief, MacKinnon and Dworkin’s feminist legal theory as well, though ostensibly aimed at liberating women, indulges in the rhetoric and imagery of violence, to recreate/rally around female victimhood as an essentialist and totalizing identity.[ii]

43. VAWA, Agency, Victimhood (1)
Their battle cry ironically converts women’s weaknesses (constructed from a patriarchal point of view) into what makes women women — a step that replaces the reconstruction of virtue from vice with the even more fatal error of strengthening patriarchal constructions of sex and gender as inevitabilities. Though McKinnon and Dworkin’s politics ultimately reach different conclusions than VAWA (particularly the conclusion that all sex, no matter how “apparently” consensual, is ultimately rape, given the pervasiveness of patriarchy’s conflation of the erotic and the violent),

44. VAWA, Agency, Victimhood (2)
there is a sense in which the standards of victimhood and agency remain the same in both accounts.[iii] In both cases, women are either fully victims or fully agents—and there is no room for an account that tries to capture or even partially describe the chiaroscuro of agency and disempowerment women live from day to day. Neither does this type of totalizing language get at the practical and intersectional categorizations of race and class, among others, that enable these women to occupy and practice differential spheres of agency and victimhood.

45. Sources
[i] Kimberle Williams Crenshaw, “Mapping the Margins: Intersectionality, Identity, Politics, and Violence Against Women of Color,” in Critical Race Theory, eds. Kimberle Crenshaw, Neil Gotanda, Gary Peller, Kendall Thomas (New York: The New Press, 1995), 364.
[ii] See, for example, Andrea Dworkin, Intercourse (New York: Free Press Paperbacks, 1987); Andrea Dworkin, Life and Death: Unapologetic Writings on the Continuing War Against Women (New York: The Free Press, 1997); Catharine MacKinnon, Feminism Unmodified: Discourse on Life and Love (Cambridge: Harvard University Press, 1987); Catharine MacKinnon, Toward a Feminist Theory of the State (Cambridge: Harvard University Press, 1989); Catharine MacKinnon, Only Words (Cambridge: Harvard University Press, 1993).
[iii] For an analysis of how MacKinnon and Dworkin’s rhetorical strategies ultimately mime Nietzsche’s characterizations of ressentiment and slave morality, refer to: Caroline J.S. Picart, “Reifying a Cycle of Violence: Health, Disease and Resentment in MacKinnon and Dworkin’s Feminist Legal Theory,” in The Variables of Moral Capacity, ed., David Thomasma (Dordrecht, Netherlands: Kluwer Academic Press, forthcoming, 2002).