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A R T I C L E S* &* S P E E C H E S

ENVISIONING EQUALITY

With Kaethe Morris Hoffer

Kaethe Morris Hoffer, a feminist attorney, explores equality, justice, and the complexities of living in a world in which power is abused and gendered.


The Gender Violence Act:
Towards the Eradication of Rape
©Kaethe Morris Hoffer, 2004

 I was only fifteen the first time a friend confided in me that she had been raped. She had been at a party. She had been drinking. He had seemed nice. But he wouldn't and didn't take no for an answer, and her efforts to stop him failed. She went home devastated and terrified. But she didn't call the police. She didn't tell her parents. She thought that she would be blamed. She didn't want to get in trouble for the drinking. She didn't want people to call her a liar and a whore. It was before the term "survivor" came into vogue, but she embodied turning victimization into survival, and I admired and loved her for her bravery and determination and compassion. Later, she even "outed" herself as a rape victim, in an educational video about date rape, in the hopes that it might help other girls like her.

I have long since lost touch with her, but I imagine that she is still working to make the world a better place for girls, and I imagine that she is strong and beautiful, and I hope that she is proud of who she is. But I imagine that she is still-in some small way, perhaps-working to heal and survive the damage done by sexual violence.

And what about him? About him I don't know what to imagine. Did he rape again? Does he still have sex while his "partner" is crying and trying to push him off? Does he still use alcohol as a weapon, to make it difficult or impossible for girls to stop him? Maybe he was wracked with guilt and horrified at what he'd done. Maybe he now takes care to never have sex that isn't mutual and consensual. That is certainly what I hope.

What I know is that he was never taken to task for the harm he caused my friend. What I know is that the vast majority of women who are raped -like my friend-never report their rapist to the criminal justice system. What I know, because of statistics and scientific evidence, as well as the too-many girls and women I care about who have become rape survivors in the decades since I was fifteen-is that even when rape is reported, and justice is sought, most rapes go unpunished. What I know is that in this world, for rape survivors, there is virtually no justice.

Unfortunately, it is not just victims who see that rapists are almost never held accountable for what they have done. While most men do not rape or batter women, male sexual force against women in our culture is very prevalent and, some would say, even celebrated and encouraged. This, in combination with the well-documented ineffectuality of our criminal laws against rape, powerfully convey to potential rapists that the risk of being accused of rape-let alone prosecuted for it-is miniscule.

Recently, however, two state legislatures stood in solidarity with rape survivors. Seeing that more could be done to hold rapists and batterers accountable for their crimes, and recognizing that civil law could give survivors legal tools that they could control and use to obtain justice, Illinois and California both enacted the Gender Violence Act (GVA). Modeled on the Federal Violence Against Women Act, the GVA is a revolutionary civil rights law that seriously endangers the financial well-being of anyone who engages in rape or other forms of sex-based violence.

While there are some differences between the two laws (the Illinois version has a stronger statute of limitations), both California and Illinois now define gender based violence-like sexual assault and domestic violence-as sex discrimination, actionable in state court as a violation of equality rights. Under the GVA, victims of rape and intimate battery can sue their perpetrators in state civil court, regardless of whether he was ever charged or prosecuted in criminal court. Under the GVA, survivors can be the boss of legal action against their perpetrator, and it is the wallets of rapists and batterers that will empty to pay the bills generated by their violence. And significantly, under the GVA, civil lawyers have financial incentives to represent sexual assault survivors-and to represent them effectively.

While rape and domestic violence are crimes, and should always be treated as such by the criminal justice system, the establishment of civil rights for survivors of gender based violence is critical because civil rights law is a powerful force for positive social change. Not only do civil rights laws express a community's values and aspirations, and hit wrongdoers where it hurts them (in their wallets), but they create opportunities for lawyers to make a living by representing people who for too long have not had powerful advocates on their side. Civil rights laws prohibiting sexual harassment in the workplace, for example, have brought justice to individual women through large financial awards, and simultaneously improved working conditions for other girls and women, by sending a strong public message that sexual abuse in the workplace will be punished severely.

With the GVA, girls and women finally have equality law on their side in the private sphere. At home, on dates, in all the places girls and women live and breathe outside of work, the GVA creates an independently enforceable right to be free from rape and battery. No longer will rapists and batterers be able to take comfort in the ineffectuality of the criminal justice system, or in the reluctance of rape victims to report the crimes against them to the police. From here on out, men who would rape and batter should be warned: the GVA gives girls and women time to heal, time to find a lawyer that will work for them, and a tool that they can use to hunt you down and haul you into court, and make you pay for the harm you caused.

It may be too late to obtain justice for my friend, or to make her rapist pay for what he did. But from now on, people living in Illinois and California have an enforceable right to be free from rape and sex-based violence, and rapists in these states will soon learn to fear the power of civil litigation. In the hands of girls and women, the GVA is a tool that will re-write the story of rape and justice. Beyond Illinois and California, in all the states of this nation, survivors of sexual assault deserve no less.


Kaethe Morris Hoffer
morrishoffer@ameritech.net

 

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Kaethe is an attorney from Evanston, Illinois. She served on the Governor's Commission on the Status of Women in Illinois from 1999 to 2003, where she chaired the Commission's Violence Reduction Working Group. She is co-author of the Gender Violence Act.

 

 

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