On the latest episode of Looking Back, Moving Forward, the Georgetown Law professor and vice chair of the U.S. Commission on Civil Rights reflected on how VAWA has shifted culture when it comes to gender-based violence—and what tools activists can use now to continue the work.
In the early 1990s, Victoria Nourse became a key part of then-Sen. Joe Biden’s effort to craft the original Violence Against Women Act—which would become, in 1994, the first comprehensive federal law specifically addressing issues of gender-based violence and harassment. Nourse, after working as an attorney in Congress, the White House and the Department of Justice, is now the Ralph V. Whitworth professor in law at Georgetown Law and vice chair of the United States Commission on Civil Rights.
VAWA remains a critical tool in the struggle to end gender-based violence—and a lightning rod for controversy in a time of right-wing backlash against women’s rights.
As part of the fourth episode of the Ms. Studios podcast Looking Back, Moving Forward, I talked to Nourse about the power of policy change in the struggle to end gender-based violence, where she sees opportunities now to continue forward progress, and what the backlash facing survivors shows us about the urgency of ratifying the Equal Rights Amendment.
Nourse is joined in this episode by civil rights and employment law attorney Debra Katz, advocate and political scientist Vanessa Tyson, former Ms. writer and editor Ellen Sweet, and The Age of Sex Crime author Jane Caputi.
Together, we traced 50-plus years of feminist writing and advocacy confronting sexual harassment, rape culture and intimate partner violence—and outlined what it will take, in the courts, legislatures and our communities, to finally break the cycle.
This interview had been edited for clarity and length.
Carmen Rios: You played such a major role in the Violence Against Women Act. What leads you to that work, and what did that process look like?
Victoria Nourse: I was a very young lawyer in Washington, and I was standing in the Senate Judiciary Committee. I’d been hired to be an expert on something completely unrelated, habeas corpus. I came over from the Justice Department, where I was arguing appeals, and I happened to be the woman in the room when Joe Biden asked me to do something on women regarding the crime bill.
The crime bill was something of an axe around his shoulders. He did not really want to be pursuing all of it, but it was a defensive project. So, people wanted to lock up people, throw away the key, impose draconian death penalty provisions, etcetera. So, he decided to make lemonade out of lemons, and I was part of that project. He didn’t know it at the time. I just happened to be standing there.
There were women staffers on the judiciary committee, and he had always had women staffers, for a very long time—but there were only two women senators. A number of issues that you might have expected women to pursue just weren’t pursued, because there was no body of people who might have a special interest in it, and he had a lot of power. He was fairly young, at the time, 50 years old, a chairman of the Senate Judiciary Committee.
I’m a lawyer, and I did something that only a future law professor would do: I went to the library. I found a lot of things that I thought were obviously wrong with the law.
I was not trained as a feminist, in any way. I had one woman law professor. I wanted to be an antitrust lawyer at one point. But I found things that just didn’t make any common sense, that really deserved a change and had gone overlooked in the law, both with respect to sexual assault and battery.
We ripped the Band-Aid off and said: ‘No, this is a public policy matter. This is not something that’s in the private sphere.’
Victoria Nourse
I worked with Ron Klain, who was instrumental; he was then the chief lawyer for Biden. We worked to create a proposal called the original Violence Against Women Act, which was changed about 100,000 times more, after that—because you can draft a bill, you can propose policy ideas for a bill, but it really is a collective enterprise. One of the first things he did was ask [California Democratic Sen.] Barbara Boxer to work with him, and I remember going over to see her and working with her on the House side.
It wasn’t really an easy project. Seeing what I thought were just really completely unequal legal provisions, or things that just seemed unusual and inconsistent with our norms, was just the beginning of the project. Because, of course, you have to get 60 votes in the Senate, because of the filibuster, and then you have to get the majority in the House, and everybody’s got to agree to the same bill.
It was a long haul from that one day, May of 1990—I was maybe 30 years old—until about four years later, when it was finally passed in the middle of the night.
Rios: VAWA has become embattled. It sometimes becomes this lightning rod. It feels like it shouldn’t be divisive—it’s been a law for over 30 years—and yet, it still is. What was the reaction to VAWA when it was first introduced?
Nourse: It was controversial. It was controversial among women’s groups, actually—not all women’s groups, but some women’s groups. The ACU [Abilene Christian University] opposed it for three years. They later changed their mind, about a decade later.
The conservatives opposed lots of parts of it, originally, and then things appeared to change, electorally, during this period. In 1992, it was the year of the woman, where Patty Murray and others, who are now very senior members in the Senate, were elected. You had maybe, a handful of women, at least, in the Senate, and the first Black woman senator as well, Carol Moseley Braun. That changed it, because people suddenly woke up and said, ‘Well, women vote, and women may vote on women’s issues.’ It became a concern.
The Republicans opposed parts of it that would provide a civil rights remedy for women who were assaulted. It was a civil remedy, a money damages remedy. The idea was to provide a civil remedy, because, typically, if you’re assaulted, you can sue. Most people don’t, because the injuries aren’t that serious, but they do when they are super serious. Let’s say, you lost an arm or a leg or whatever, and the analog is clear. There’s a harm. The law always says you should be compensated for individual harms, if someone has done a wrong to you.
We proposed a civil rights remedy based on our idea that the law violated equal protection of women, and it did. To some extent, it may still, now, but that was controversial for Republicans. Many of them were very concerned about that piece of it.
It was hard. Democrats tend to fight among each other, so there were divisions there, and concerns on the Republican side about the civil rights remedy.
Seeing what I thought were just really completely unequal legal provisions, or things that just seemed unusual and inconsistent with our norms, was just the beginning of the project.
Victoria Nourse
Rios: We’ve seen all these expansions of VAWA, the expansions of its protections and the issues it covers. It’s remained this really important anchor for this work around gender-based violence. What roles do you feel like policies like VAWA play in this larger struggle to end violence and harassment?
Nourse: First of all, one of the things it does is create an office within the Justice Department to raise these issues. So, one of Biden’s ideas was to institutionalize this.
There is an Office on Violence Against Women in the Justice Department—otherwise, there would not be—and that has kept going with trying to pursue additional avenues of research, relief, grant funding.
It’s kept the issue with a hub in Washington so that it doesn’t disappear. It also has spread its money widely. States like the program because it’s less money for them to pay for better women’s shelters, to pay for sexual assault services. Without VAWA, you’d have a much greater patchwork of state interventions. Some states pay a lot for these things. Some states don’t.
And the other thing is, it was tied to VOCA money, which is to say the Victims of Crime Act, and that has provided a major resource for all of these programs that are currently funded by the federal government. It not only provides research and develops protocols for how to deal with different kinds of situations, whether it’s same-sex harassment, whether it’s Native American tribes, whether it’s the many different permutations in America where you could see gender violence, and that office has been doing that for a very long time.
Rios: Culturally, what do you think the impact is of a policy like VAWA?
Nourse: Over time, people have seen that no one wants gender violence. No Republican, no Democrat would say that.
Obviously, there are differences of opinions about how to handle this, whether this really does affect women’s equality. There are differences of opinions about how and what kind of remedies women should have when they are injured, and how it should play out on college campuses, how it should play out in various locations in the country. But culturally, I think it’s solidified opinion about the importance of this issue for women. It hasn’t gone away, sadly.
We never predicted this, but we made many more inroads on battering by changing the culture, by saying, ‘If you punch someone on the street, it’s really no different if you punch them in their living room,’ and I think that is well-accepted. Now, at a time when it was not well-accepted…
When we were working on this, there was one senator who said, ‘Battered women’s shelters, they’re indoctrination centers for runaway wives.’ That was a bit extreme, even at the time. Ronald Reagan was disputing various things about whether battering existed. People didn’t think it even existed.
The culture shift should not be diminished. It’s been tremendous, because people didn’t want to know. Because it’s a really intimate and hard issue—that the people you love are doing you damage, or claiming that they love you, claiming that they like you, are doing damage, that’s a very difficult thing to get your mind around. People didn’t want to look at it. We ripped the Band-Aid off and said, ‘No, this is a public policy matter.’ This is not something that’s in the private sphere.
That’s a huge move, because even prosecutors would say, ‘Oh, that’s for them to figure out in their family, it’s a family matter. And oftentimes, they blamed the victims, and that happened for a long time.
Now, a lot of that has changed, culturally, and that’s so much more important, frankly, than the law, or an office, or a policy, and money, because that can actually operate as a stronger retardant. We don’t have enough police, thankfully, to enforce all of our laws, all the time.
Changing social norms was the big goal; changing hearts and minds. If you go back and read Biden’s speeches, he was just appalled that people were denying that this was violence, that they were ignoring the impacts on people’s psyches. He was particularly incensed that they were blaming individuals, young women who were in college, at the time. That has pretty much changed, and that is a testament to all of the women who have continued to work on the bill. You can pass a bill like this and then legislators have to run the world and work on everything from nuclear Armageddon to foreign policy.
The bill actually was a coalescing point for that cultural change. You need to name something. Until you have a women’s center, you don’t really have a place where people can actually focus on women’s issues. It was really a concentrating point for that bigger and very important social movement.
We need to take a pause about grand schemes and recognize that change often comes from fixing nuts and bolts—and listening, of course, to survivors. It has to be an all of the above strategy.
Victoria Nourse
Rios: What does the legal landscape look like now, for survivors—some decades since VAWA, 200 or so days into this Trump administration? Are there things you see coming down the pike?
Nourse: I expect that there will be cuts in funding for the Violence Against Women office. A lot of funding for these shelters comes from VOCA, which is the Victims of Crime Act. When the federal government prosecutes rich criminals, who have extorted millions of dollars from consumers, or revealed private information, the Justice Department gets a settlement—and they’re often billions of dollars, these settlements, and a percentage of that goes into this Victims of Crime fund. It gives from the rich to give the victims, essentially, a better possible outcome. It doesn’t compensate them totally, by any means, but it does give them something, and that’s a good use of those dollars rather than to just go back into the general fund.
VOCA is a very popular law. On the other hand, if you don’t prosecute billionaires and millionaires, then there’s less funding, and this happened during the last Trump administration. The VOCA fund went precipitously down.
I don’t imagine that there’s going to be a federal remedy again. The Supreme Court struck this down. They said it was not a part of equal protection to have a civil remedy, and it couldn’t be passed under the commerce clause. That is now left to the states. It’s a little bit like Dobbs, but they did this in 2000.
I just wrote a law review article about why we still need to do work in the states, and I called on the states to do an audit of not only their statutes but their court decisions. The common law is something that courts build up over time. Legislatures don’t enact it, and it turns out that the common law of sexual assault has not rid itself of all of the things that we still think of as stereotypes, like blaming the victim.
If you go to civil court, there could be procedures that actually make it harder in the sexual assault case than they do in the assault case. This is why I think it’s a lack of equal protection. The fact that it’s sexual, in my view, makes it worse, but it’s not even getting even treatment with a punch in the face on the street, and it still isn’t.
States can act to do that, but they need to do further than look at their statutes. They have to look at the court cases, and that’s what I spent five years with my students, trying to unearth these things, and we’ve compiled a 50-state survey in the Iowa Law Review.
We have a problem because this administration is not known for its friendliness for gender policies. We can see this in places like the military. I expect that all of the military sexual assault programs will be under a significant attack or diminution. I don’t know for a fact, but I expect that. I mean, they’re taking women pilots off the website.
Some people are much more likely to take this opportunity of a far-right turn to actually return to some of these old stereotypes about blaming the victim. On the other hand, at least some courts have upheld challenges. Recently, in her civil case, an author won against the president, himself, and she proved that she had been raped, and the court of appeals just upheld that. The courts are holding strong.
I don’t expect that this administration is going to do anything positive for this issue, in large part because it’s just not part of the traditional agenda. They have a traditional agenda of family first. That was the Ronald Reagan agenda. [It] led many people to say, ‘This is a private affair, this is not something the government should take care of, or it should go back to the states.’ They would say, ‘It’s an awful crime, but it should go back to the states.
If you’re looking for activism, I think it’s truly a state game, right now—which is not to say that you shouldn’t keep voting for members of Congress and keep pushing members of Congress not to defund these programs, because that may have some impact, as well.
The remedies are not appropriate to actually deterring the behavior—and a lot of it is very much in the weeds, but it’s worth taking a go at that. Changing the rules can make a difference.
Victoria Nourse
Rios: You have talked about tying the Equal Rights Amendment to this struggle to end violence against women, to these laws around gender-based violence. What should folks with ERAs in their states be thinking about, as we enter into this new era?
Nourse: A few years ago, I testified before Congress about why we needed the Equal Rights Amendment. I insisted that, without regard to abortion—even however important that may be, and it is important—that folks should realize that something as basic as this kind of assault, which is disproportionately affecting women, to a high degree, it’s like 90 percent, is something that we need to treat through an equal protection lens.
That was the only way you were going to get Congress the power to pass remedies, to fill the gap that the Supreme Court opened up in United States v. Morrison in 2000, where they held that rape was inherently a crime, and therefore, because it was a crime, Congress couldn’t legislate, and then they went on to say it doesn’t follow the equal protection clause either.
The first part was wrong because it was a civil remedy, and most law professors, conservative and liberal, find this a very odd ruling, mostly because some of its implications have been reversed since then. VAWA is the only case, other than one other, which was previous to it, involving a law that was repassed. It was singled out—and that’s because judges are afraid of it, because judges don’t want these cases, because they think they’re too intimate and too difficult to do.
The equal protection component in the ERA is important because Congress could then have power to pass a federal remedy, so that it wouldn’t matter whether you’re in Alabama, Mississippi, New York, California, Montana—you could actually sue an attacker and obtain damages if you could prove it.
Right now, you notice that if you see some of these lawsuits involving criminal or civil action, oftentimes, they only can apply to a predator. It’s like the “more-than-one-rape” rule, which I find disgusting, but some of these high-profile cases are all about the multiple offender, particularly a high-profile multiple offender. There are sex trafficking laws that are constitutional because of the way they operate across state lines. If the ERA were to be passed, you could actually pass a national remedy, and the Supreme Court would not strike that down, in my opinion, in large part because its Morrison decision has not weathered time very well.
There’s just many, many reasons why ERA is something not to let go of. Until ERA is enshrined, there could be enormous amounts of backsliding. It’s not simply that you can move forward on things like transgender or same-sex [rights]. It’s that a constitutional amendment prevents you from backsliding from a normative base that is widely shared across the country.
That’s why we have to keep pushing in the states. If you’re in a state that has an ERA, great—and there’s a lot of push in other states to get ERAs. If you’re in a state that didn’t vote for it, you should try to get it ratified.
They never really say women are unequal. They believe women are equal, but they say, ‘Oh, but transgender,’ ‘Oh, but something else,’ and so, they divide us. It’s really important for all of us to be united because Congress can change the deadline. I firmly believe that, and I believe it would change the deadline if, in fact, there were more Democratic members of both bodies.
A good reason to get out to vote, a good reason to keep pushing—so that we don’t keep going backward. This court has a theory, called originalism, that unfortunately has a lot of backward-focusing elements. It will force, over time, a huge supermajority to fight back in the polls, but it’ll take a long time because of that court. The only other ways to do this are in the states or to amend the federal constitution.
If you’re looking for activism, I think it’s truly a state game right now.
Victoria Nourse
Rios: Are there any other state-level protections that you would recommend that maybe people be advocating for or pushing for in their states, or examples of state-level protections that you feel are really holding that line for gender-based violence?
Nourse: States could go a long way if they take a look at some of our recommendations that we made in this Iowa law journal article. It goes from everything from process-based, statutes of limitations issues, to defenses that are often raised that you can legislate against, like ‘She did it too,’ or you can define consent in particular ways.
There are some other common-law rules that they can prevent. There’s a rule that says that if you are injured, if you’re contributed to that in any way that reduces your recovery and in some cases prevents you from recovering at all, it’s your own fault—and unfortunately, some states still allow defendants to raise that.
This is a real case: She went to a deserted parking lot. She’s raped, but somehow, that was 5 percent of the reason, or even 30 percent. Most people think that’s blaming the victim today. You can get rid of these blaming the victim elements in the judicial system, and you could change evidentiary rules and things that are really in the weeds.
It’s like performing equal protection, because you don’t have the same rules in an ordinary assault. The idea is to get rid of the victim-blaming stereotyping things, just as we tried to do in the original VAWA. It’s still out there, but it’s embedded in places people can’t see if they’re not nerdy lawyers, like me. Advocates have to team up with lawyers who can investigate—and we provide a checklist for how these doctrines exist, when they do, and how to change them.
Rios: Are there any other major gaps you see? We’re in this moment where we’re really focused on holding onto everything that we have done in the last 50 to 250 years to create some progress for women and around issues of gender, but are there any major gaps you see persisting in the law, in policies around violence, as things we need to close those gaps in order to really make more change around these issues?
Nourse: Let’s say you try to propose a law about victim blaming. Let’s get that out of our civil law system, not our criminal law system.
Criminal law is always going to be difficult. You know why? It’s supposed to be. You don’t put people in jail unless you’re absolutely certain. And criminal law has been a very poor tool. It’s put Black men in jail who don’t deserve to be there. It’s a very aggressive remedy. We need to change our mindset about what the appropriate remedy is. Some people want to do peacemaking. That’s fine, as well.
All of the above, those remedies are so important to survivors, and we really have a patchwork system now. There are models in the states, and I know there are people who are working on this, but we need to match them up with the people who understand how the legal system and the civil system has failed.
If you could’ve told Harvey Weinstein he was going to lose his entire business, he would’ve stopped. And now, you can’t do that. Yes, there are sexual harassment laws on the books, but the remedies are not appropriate to actually deterring the behavior—and a lot of it is very much in the weeds, but it’s worth taking a go at that. Changing the rules can make a difference.
In this trial of E. Jean Carroll, we changed the federal evidentiary rules, and that actually was a real reason why she could bring in other witnesses. Before, she couldn’t bring in other witnesses. One of the lawyers in the case ran into me at a legal conference, and he said, ‘Bless you for that.’ And I said, well, no—it only levels the playing field. I’m not saying they have to believe any of these people, but it tends to be that if you’re given permission once, you do it more than once.
This is why we see a lot of predator behavior being in the legal system, and that’s definitely something we want to prevent, but that is also demonizing. One sexual assault should be enough—just like one punch in the face, should give rise to the same kind of claim, but it still doesn’t, in most states.
It’s in things like damages, it’s in things like statutes of limitations, in the weeds stuff—but so, so important.
No one would’ve thought someone like me would’ve been able to do the kinds of things I’ve done. My older sisters didn’t have the opportunities I have … but the world opened up. Things can change quite quickly in politics.
Victoria Nourse
Rios: This podcast is really grounded in exploring the 50-plus years of Ms., and the changes that we’ve seen happening through the stories in its pages. There’s been a lot of transformation. What changes do you believe or hope that we’ll see in the next 50 years around these issues?
Nourse: I think you are going to see change on these issues. These are doable in the legislatures, if people focus on the right things. This can be done. I don’t think the battle is over.
We see a lot of regressive forces, now, on gender, and this applies to the archetype of the perfect white woman, which is not anyone anymore—but that pushback is real. I was just listening to something at a conservative PAC, where the man was telling women to get an MRS degree. We have to understand that gender is something very visceral to people. It’s very hard for people to view it with some kind of equanimity. It’s very passionate and intimate.
We’re not going to see this stuff go away, but we will see slow progress on gender violence as we go forward. We’re going to see more effective remedies. We’re going to get rid of more of the criminal system, more of the predator stuff, shift it to a different, more adequate and a better approach. It won’t be easy, particularly not in the current environment. We need to maybe take a pause about grand schemes and recognize that change often comes from fixing nuts and bolts and listening, of course, to survivors.
It has to be an all of the above strategy. We need to have a big vision of equality at the top, the Equal Rights Amendment. We need to have people working on legal remedies, as well as taking care of survivors. I would prefer a system where we didn’t have to do that, but the state, right now, is taking care of survivors, and we’re spending a lot of money. If, at some point, people don’t want to spend that money, that could be a real problem.
I think it’s going to get better. I honestly do. I’m an optimist. No one would’ve thought someone like me would’ve been able to do the kinds of things I’ve done. I mean, my older sisters didn’t have the opportunities I have, and one’s eight and the other’s ten years older than I am—but the world opened up. Things can change quite quickly in politics.
At Georgetown, we say law is the means, justice is in the end. Justice is a hard road. You go forward, one step back, two steps, one step back, two steps… Biden always said it was like weeding your garden—you’re constantly going to have to keep going back and improving on what you’ve done.
There is no one magic solution to this. We’ve had sexual assault for millennia, and it’s still deployed in war. I think it’s important, though, that we recognize that we have made an enormous amount of change in the last 50 years.
Great Job Carmen Rios & the Team @ Ms. Magazine Source link for sharing this story.
