Simone Biles, Ali Raisman and several other Olympic gymnasts tearfully explained how the FBI ignored their accounts of sexual abuse by Dr. Larry Nassar during the Senate Judiciary Committee hearing last week. In addition to the pain of not being believed, the gymnasts made clear that the FBI’s failure to act led to further abuse of young athletes.
During the hearing, several senators expressed their outrage, focusing their future actions on the FBI’s failures. Senator Patrick Leahy even supported the gymnasts’ calls for prosecuting the FBI agents accused of mishandling the case. But the Senators are avoiding the fundamental legal problem at the heart of the investigation: federal law did not cover Nassar’s abuse.
The Office of Inspector General’s report found that FBI agents did nothing when first confronted with Olympians’ accusations because the federal agents had a legal rationale for not pursuing their claims. Nassar could not be charged with a federal offense based on his assaults. That’s accurate—even if it sounds perverse. (His ultimate federal conviction was for possessing kiddie porn, not hundreds of assaults). And it is why the Indianapolis agents claimed that they did not have “federal jurisdiction” to take the case.
To put it simply: The US Olympic Committee had knocked on the wrong prosecutorial door. The survivors should have gone to a different set of Michigan state prosecutors, according to the FBI agents.
Unfortunately, state criminal justice systems have routinely failed survivors of sexual assault. Roughly three decades before Biles, Raisman, Makayla Maroney, and Maggie Nichols testified in Congress, dozens of women appeared before Joe Biden’s Senate Judiciary Committee to tell similar stories of supreme indifference to their abuse. From those hearings came the first Violence Against Women Act. For the first time in American history, in 1994, the federal government funded states to change their laws and practices that treated domestic violence and sexual assault as less serious than other offenses. The law included a provision to address state justice system’s routine mishandling of sexual assault cases, putting accountability in the hands of survivors by enabling them to seek redress themselves. The law declared it a federal “civil right” to be free from gender-based violence.
For six years, that law allowed individuals to sue their assailants, and provided attorneys with the incentive to take the cases by allowing them to collect fees if successful. The theory was like any other civil rights action: the plaintiff acts as a “private attorney general” suing to pursue values shared by all that are under-enforced by traditional law enforcement. College students sued professors who abused them, young men sued priests who harassed them, children sued fathers who had beaten and killed their mothers. Although the law’s opponents claimed it would cover trivial matters and end up miring federal courts in divorce, the number of claims were modest in scope and the abuse serious. In a not insignificant number of cases, state officials were perpetrators of abuse.
That law no longer exists. Blame the Supreme Court. In 2000, the Court declared the Violence Against Women Acts’s civil rights remedy unconstitutional precisely because it dealt with sexual abuse crimes. Despite the fact that the law allowed private survivors to seek damages, the court ignored the civil nature of the remedy and declared the underlying fact of sexual abuse had to be considered a crime. In United States v. Morrison, Chief Justice Rehnquist wrote that crime was something best left to the states to handle. The justices were almost hysterical about the danger: If the federal government could regulate sexual abuse, they said it would “obliterate” the distinction between the federal and state governments. (No state governments disappeared when VAWA’s civil rights remedy was alive from 1994-2000).
The Morrison decision has worn poorly over the years. Chief Justice Rehnquist, who wrote the opinion, had lobbied openly and publicly against the law, something that today would be considered with more ethical skepticism than at the time. The decision was supposed to be about federalism, but it led to no legal revolution. In fact, five years later, the Court decided another case, Gonzales v. Raich, allowing the federal government to regulate an individual’s marjuana possession, even though that too involved “crime,” on the theory that there was a commercial market for marijuana. Many law professors think Gonzales silently overruled Morrison, giving the federal government the power to regulate all sorts of crime, just not sexual assault.
The Olympians’ case shows just how the court’s message could be read, by American women, that their claims are not important enough for federal law. In 1994, when the law was enacted, opponents said that the law would do nothing because sexual assault was just a “fad” that would go away. But high profile cases involving Jeffrey Epstein and Harvey Weinstein and many other celebrities have shown the difficulties women face in suing and the need for accountability. The #MeToo movement revealed that the problem of harassment and abuse was widespread, and state legal reform has not stemmed the tide.
The Morrison panel hinted at how to restore federal protections for sexual assault survivors. The civil rights remedy might be redrafted to pass constitutional muster: require a connection to interstate commerce. The truth is that the federal government regulates a lot of regular crime involving more than one state or goods in transit, like guns or marijuana. The constitution provides significant authority for Congress to regulate “commerce.” Surely, as the dissent in Morrison said, sexual assault and harassment impairs women’s ability to participate in the economy, whether that economy is about movies or sports.
Today, if the law was still in effect, it would have allowed the Olympic survivors to sue anyone responsible for their abuse, without prosecutors’ permission. It would have allowed Harvey Weinstein’s victims or Jeffrey Epstein’s victims to sue them for the costs of therapy, lost jobs and other damages. More importantly, it would have given survivors some measure of accountability when state criminal justice systems fail.
It is long past time for Congress to pass a redrafted civil remedy in the Violence Against Women Act. Disbelief of survivor’s accounts of violence is widespread. Deborah Tuerkheimer calls this phenomenon the “credibility discount,” in her new book, entitled, Credible: Why We Doubt Accusers and Protect Abusers. If #MeToo’s enormous numbers (19 million tweets from women who had not believed when they claimed harassment or assault) tell us anything, disbelief, which encompasses utter disregard for the suffering of victims, exists on a massive scale.
The Congress needs to do more than just prosecute an FBI agent for what happened in the Olympians case. They need to move beyond giving money to states and NGOs to stop sexual violence, which is essentially what happens under current law. They need to stand up to the Supreme Court and say that women deserve better than law enforcement officials who continue to ignore and disbelieve them.
At the very least, give the power back to survivors and private lawyers to seek their own vindication when law enforcement fails them. And give them the power to find accountability, the sheer power of belief, that the Olympians so desperately want.