Brett Kavanaugh and the Case of the Vanishing Rape Victim

Brett Kavanaugh and the Case of the Vanishing Rape Victim

Brett Kavanaugh and the Case of the Vanishing Rape Victim

Long before the recent charges against him, we already had evidence of Kavanaugh’s disturbing lack of empathy for rape victims.

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We all want more evidence of how Brett Kavanaugh behaved toward women as a student (was he a violent, binge-drinking predator, or just an entitled, binge-drinking lout?). Maybe we’ll get it, maybe not. But in the meantime, we have plenty of evidence of his adult judicial thinking about laws addressing violence against women—and of a disturbing willingness to erase rape victims from the record.

Specifically, we have Judge Kavanaugh’s praise for the late Chief Justice William Rehnquist’s ruling in United States v. Morrison. Though it got just passing mention in Kavanaugh’s first Judiciary Committee hearing, back in 2000 this was a massively consequential case: In a 5-4 ruling, the deeply divided justices, led by Rehnquist, gutted key sections of the 1994 Violence Against Women Act.

The case began with an incident that is eerily prophetic of the accusations now leveled against Kavanaugh. In the fall of 1994, Christy Brzonkala, a first-year student at Virginia Tech, accused Antonio Morrison and James Crawford—varsity football players, like Judge Kavanaugh in his prep-school years—of raping her three weeks after her arrival on campus. Morrison later boasted in the campus dining hall of how he liked to get women drunk to coerce sex.

When Virginia Tech dithered and ultimately let Morrison off with a wrist-slap, Brzonkala sued him under the then-brand-new federal Violence Against Women Act—championed by Senator Joe Biden and passed by Congress in 1994 in the long, anguished aftermath of the Hill-Thomas hearings. Specifically, she seized on the VAWA’s core provision, allowing federal civil-rights lawsuits on the basis of gender-based violence.

Up until then, rape and intimate-partner violence were entirely a matter for local cops and state courts. But then as now, local cops too often looked the other way, or failed to investigate, or disbelieved victims; local prosecutors and local courts too often treated sexual-assault survivors like exhibits. All in all, this discouraged women from coming forward, which is exactly why Christy Brzonkala filed a civil rather than a criminal case. As with other civil-rights offenses, states simply couldn’t be entrusted with the job of defending the rights of gender-violence victims.

Congress declared that these local failures amount to systematic denial of equal protection under the law, and, what’s more, that violence against women and its psychological aftermath was inhibiting the full participation of women in jobs, the economy, and the public life of the nation. Like lynching and other forms of racial violence, violence against women deserved a federal remedy.

The Virginia Tech case was the first brought under the new law, and it got to the Supreme Court in 2000—with accused rapist Antonio Morrison represented by the Center for Individual Rights, part of the menagerie of Washington conservative legal shops that also nurtured Judge Kavanaugh.

From today’s perspective, it is mind-boggling to read Chief Justice Rehnquist’s majority opinion. Rehnquist—who had already denounced the Violence Against Women Act in speeches as an unjustified expansion of federal power—expressed little support or sympathy for a young woman who said she had been raped by a classmate, and no word of outrage at the inability of a college to protect its students. Instead, he found that federalizing laws against gender violence was unconstitutional—amounting to, he said, Congress “appropriating state police powers.” And he blithely dismissed the ample record Congress had compiled on the economic and social impact of rape, calling the VAWA a violation of the Constitution’s Commerce Clause. Christy Brzonkala’s case was thrown out—and with it, the possibility of federal civil-rights suits by victims of gender violence.

This would all be an arcane historical discussion—but Judge Kavanaugh has had much to say about United States v. Morrison, some of it very recent. In a 2017 speech describing Rehnquist as his “judicial hero,” Kavanaugh singled out the Morrison opinion for special praise, calling it “critically important in putting the brakes on the Commerce Clause.”

Like his hero, in that speech—during the very month that #MeToo  first swept the country—Judge Kavanaugh offered no qualifying remarks about violence against women, or about the horrific acts alleged in Christy Brzonkala’s case. His speech does not even use the word “rape.” Judge Kavanaugh simply disappeared Brzonkala from the story.

Kavanaugh had an opportunity to correct that record during his confirmation hearings. In a written questionnaire, Senator Dianne Feinstein—one of the forces behind the original Violence Against Women Act—asked Kavanaugh, “Why was it ‘critically important’ for the Supreme Court to strike down the ability for victims of sexual violence to sue for civil damages in federal courts?” He could have said a lot of things, addressing the urgency of sexual-assault remedies or the disruption of survivors’ lives, even while supporting Rehnquist’s point. But Kavanaugh’s only answer was, “Please see my response to question 15.a.” Question 15.a was about gun restrictions. His only answer to that one: “this speech was intended to spell out the consequential impact of Chief Justice Rehnquist’s work.” 

Once again, Christy Brzonkala, and by implication sexual-assault victims, were nonpersons.

We may never know if Judge Kavanaugh was guilty of sexual assault. We do know that he is the latest in a line of ideologically driven, far-right judges who refuse to see sexual violence as a national problem, deserving federal civil-rights intervention. And we know that when it comes to discussing a real rape case involving a real woman, Judge Kavanaugh’s lack of empathy can fairly be described by one word: pathological.

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