The Violence Against Women Act: Where Are We Now?

The 115^th Congress may claim to have an uptick in productivity, but a landmark piece of legislation seems to be falling to the wayside.[1] The Violence Against Women Act (VAWA), which was set to expire in September 2018, will expire on December 21.[2]  VAWA, through the Department of Justice and the Department of Health and Human Services, authorizes and administers grant programs to state and local governments to address domestic violence and child abuse, to train victim advocates, to provide funds for shelters, and to support rape education and prevention programs. Past reauthorizations have expanded these programs to include Native American communities, immigrants and asylum seekers, and LGBTQ+ survivors.[3] If the Act expires, dozens of VAWA-funded programs will be left vulnerable to future appropriations.[4]

VAWA’s history is rooted in international mandates. In 1993, The World Conference on Human Rights in Vienna and the newly-adopted Declaration on the Elimination of Violence Against Women acknowledged that domestic violence is a public health and human rights issue.[5]  In the 1970s through the early 1980s, activists advocated for the need to change attitudes among both the public and the law enforcement community concerning violence against women.[6] In 1984, Congress enacted the Family Violence Prevention and Services Act (FVPSA), which provided limited assistance to states in enacting preventative measures against “family violence.”[7] FVPSA also authorized programs to provide shelter to victims of family violence and their dependents.[8]

Nevertheless, a growing body of research recognized the need for a much broader law than the FVPSA.[9] Senator Joe Biden (D-DE) led the effort to draft VAWA in 1993 as an answer to the growing public concern.[10] The Act as introduced had two : to enhance investigations and prosecutions of sex offenses and to establish grant programs that would address gender-based violence.[11] The bill passed in the House by a vote of 235–195 and the Senate by a vote of 61–38 in 1994.[12] Despite its bipartisan approval, House Republicans attempted to cut funding to the grant programs the following year, but they were ultimately unsuccessful after receiving pushback from Republicans in the Senate and Democrats in both chambers.[13]

VAWA has received bipartisan support for over two decades of reauthorizations.[14] It has also expanded to include more intersectional and inclusive coverage.[15] However, the current iteration of VAWA’s reauthorization faces an uphill battle. When Representative Shelia Jackson Lee (D-TX) introduced her VAWA reauthorization bill to the House in July 2018, it had 104 co-sponsors, none of whom were Republicans.[16] Rep. Jackson Lee’s bill is a comprehensive measure that codifies provisions to invest in prevention, remove barriers to remedy and care, and expand access to include more protections for victims.[17] In September 2018, Representative Elise Stefanik (R-NY) introduced a bill to renew the current VAWA legislation for six months to provide Congress an additional extension on its negotiation.[18] Neither bill went to a vote prior to the stop-gap spending deal, which extended the current VAWA provisions until December 7.[19] A second stop-gap spending bill extended the VAWA to December 21.[20]

VAWA’s inclusive reauthorization will face substantial hurdles due to current political realities surrounding sexual assault, gender identity, and race.  The country is currently grappling with the #MeToo movement, which has ousted elected officials from both political parties.[21] Justice Brett Kavanaugh’s Supreme Court nomination sparked a contentious national debate about allegations of sexual assault and our treatment of survivors of assault.[22] Education Secretary Betsy DeVos’ proposed Title IX rules and rescission of prior Obama era guidance are reigniting conversations about administrative due process and where the focus should lie in dealing with school responses to sexual assault and harassment.[23] The Department of Health and Human Services is considering narrowing protections for the LGBTQ+ community.[24] The Department of Justice and former U.S. Attorney General Jeff Sessions restricted assistance and safeties offered to asylum seekers who have been previously protected by VAWA.[25] The divide between Democrats and Republicans is continuing to deepen “on fundamental political values – on government, race, immigration, national security, environmental protection, and other areas,” which is making it more difficult to cultivate middle ground policy initiatives.[26] The suggested causes of the growing divide vary, from limited interactions with opposing views to geographic isolation to differing opinions on compromise.[27] Regardless of the cause, VAWA intersects with several of these polarized issues and has been swept into the partisan rift.

With the Democratic Party gaining control of the House in the incoming 116^th Congress, Rep. Jackson Lee’s proposal, should she reintroduce it, will likely gain traction and pass in the House. Whether the Republican-controlled Senate will offer up its own version is yet to be seen. A portion of the GOP has historically opposed VAWA, but key opponents, such as Sen. Orrin Hatch (R-UT), will be leaving office.[28] A Senate proposal will most likely need to have more conservative and stripped-down provisions to have any hope of moving past the floor. The tension between the two branches of Congress is not new, but in the current hyper-partisan setting, it has the potential to escalate quickly and severely impact a landmark piece of legislation and the people dependent upon its protections.

[1] Glenn Kessler, The House Republicans’ claim they have ‘passed more bills’ than recent first-year presidencies, Wash. Post (Sept. 12, 2017), https://www.washingtonpost.com/news/fact-checker/wp/2017/09/12/the-house-republican-claim-they-have-passed-more-bills-than-recent-first-year-presidencies/?noredirect=on&utm_term=.cf532c4cc3ff.

[2] Making further continuing appropriations for fiscal year 2019, and for other purposes, H.R.J. Res. 143, 115^th Cong. (2018).

[3] OVW Grants and Programs, U.S. Dep’t. of Justice, (July 16, 2018), https://www.justice.gov/ovw/grant-programs.

[4] Colby Itkowitz, The Health 202: In #MeToo era, Congress isn’t prioritizing Violence Against Women programs, Wash. Post (Sept. 21, 2018), https://www.washingtonpost.com/news/powerpost/paloma/the-health-202/2018/09/21/the-health-202-in-metoo-era-congress-isn-t-prioritizing-violence-against-women-programs/5ba3e43e1b326b7c8a8d1587/?utm_term=.9a3e2eda2200.

[5]  World Conference on Human Rights, June 14-25, 1993, Vienna, Austria, United Nations Office of the High Comm’r for Human Rights, https://www.ohchr.org/en/aboutus/pages/viennawc.aspx (last visited Dec. 1, 2018).

[6] Kimberley D. Bailey, Lost in Translation: Domestic Violence, ‘the Personal is Political’, and the Criminal Justice System, 100 J. Crim. L. & Criminology 1255, 1257-1300 (2010).

[7] Family Violence Prevention and Services Act, 42 U.S.C. §§ 10401-10421 (1984).

[8] Family Violence Prevention and Services Program, Family and Youth Services Bureau, https://www.acf.hhs.gov/fysb/programs/family-violence-prevention-services/about (last visited Oct. 10, 2018).

[9] Bailey, supra note 6, at 1257-1300.

[10] Joe Biden, 20 Years of Change: Joe Biden on the Violence Against Women Act, Time (Sept. 10, 2014), http://time.com/3319325/joe-biden-violence-against-women/.

[11] Violence Against Women Act of 1994, H.R. 3355, 103^rd Cong. (1994).

[12] 140 Cong. Rec. S12487-562 (daily ed. Aug. 25, 1994); 140 Cong. Rec. H8968-9005 (daily ed. Aug. 21, 1994)

[13] Kenneth J. Cooper, House GOP Budget Cutters Try to Limit Domestic Violence Programs, Wash. Post (Jul. 15, 1995), https://www.washingtonpost.com/archive/politics/1995/07/15/house-gop-budget-cutters-try-to-limit-domestic-violence-programs/b823092c-17a6-4c8c-9b4c-eb16433682bb/?noredirect=on&utm_term=.5ece205279b5.

[14] Lisa N. Sacco, Cong. Research Serv., R42499, The Violence Against Women Act: Overview, Legislation, and Federal Funding 9-10 (2015).

[15] Id., at 9-16.

[16] Violence Against Women Reauthorization Act of 2018, H.R. 6545, 115^th Cong. (2018).

[17] Id.

[18] Violence Against Women Extension Act of 2018, H.R. 6796, 115^th Cong. (2018).

[19] Katherine Tully-McManus & Jennifer Shutt, Violence Against Women Act Extension Included in Stopgap Spending Deal, Roll Call (Sept. 14, 2018), https://www.rollcall.com/news/politics/violence-women-act-extension-included-stopgap-spending-deal.

[20] H.R.J. Res. 143.

[21] Ann Gerhart & Danielle Rindler, How #MeToo Has Changed the D.C. Power Structure – So Far, Wash. Post (Sept. 26, 2018), https://www.washingtonpost.com/graphics/2018/politics/how-metoo-has-changed-the-dc-power-structure/?utm_term=.fa1081f42950.

[22] Id.

[23] Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 83 Fed. Reg. 61462, 61462-61499 (proposed Nov. 29, 2018) (to be codified at 34 C.F.R. § 106).

[24] Erica L. Green, Katie Benner & Robert Pear, ‘Transgender’ Could Be Defined Out of Existence Under Trump Administration, N.Y. Times, (Oct. 21, 2018), https://www.nytimes.com/2018/10/21/us/politics/transgender-trump-administration-sex-definition.html.

[25] Nermeen Arastu, Janet Calvo & Julie Goldscheid, What Jeff Sessions’ Efforts to Deny Asylum to Domestic Violence Victims Look Like on the Ground, Slate, (July 16, 2018), https://slate.com/news-and-politics/2018/07/what-jeff-sessions-efforts-to-deny-asylum-to-domestic-violence-victims-look-like.html.

[26] Pew Research Center The Partisan Divide on Political Values Grows Even Wider, (Oct. 5, 2017), http://www.people-press.org/2017/10/05/the-partisan-divide-on-political-values-grows-even-wider/.

[27] Id.

[28] J.K. Trotter, Here’s Who Voted Against the Violence Against Women Act, The Atl. (Feb. 12, 2013), https://www.theatlantic.com/politics/archive/2013/02/heres-who-voted-against-violence-against-women-act/317872/.