When politicians pass laws to please their bases, we often forget the costs inherent in these acts. “In every age it has been the tyrant who has wrapped himself in the cloak of patriotism, or religion, or both,” Eugene V. Debs, prominent labor activist, remarked in a 1918 speech.
Debs invoked the profound irony through which humans often lose their liberties to thunderous applause. We’re currently facing another potential loss of due process rights for poor Americans if politicians get their way.
Both the government-insulating 1798 Alien and Sedition Acts, and, more recently, the supposedly anti-terrorism 2001 PATRIOT Act stripped Americans of fundamental rights under the guise of a sympathetic cause. Now it’s happening again, as the modified version of the Violence Against Women Act (VAWA) is on its way to a Senate vote.
The History of the Act
Originally passed in 1994, the VAWA funded the investigation and prosecution of violent crimes against women, and included several other measures aimed at curbing domestic violence. The act contains a sunset provision and was reauthorized in 2000, 2005, and 2013, never expiring until the government shutdown of 2018-19. The act hadn’t changed much since 1994, except for adding protections for same-sex couples and victims who were unlawful immigrants. Now, though, it’s a different story.
Not everyone is happy with this latest version. The National Rifle Association (NRA) opposes the reauthorization, and has recently taken a considerable amount of heat for doing so. Critics are painting them as heartless for their opposition to a law that ostensibly protects victims. Of course, the NRA being on the receiving end of progressive rage is nothing new, but this time the pro-gun organization is quite right. The new bill contains sweeping changes that would eliminate the fundamental rights of many Americans, disregarding due process.
Three changes stand out as particularly alarming: The elimination of a hearing requirement before civil rights are suspended as a result of a restraining order, the new definition of “intimate partner,” and an expansion into misdemeanor crimes of “stalking.”
Many states will grant a restraining order with little evidence. There are sometimes good reasons for this. Sometimes it might be clear enough that someone is in danger for the state to intervene before anyone is hurt, but revoking someone’s civil rights is a serious—and dangerous—solution, one not to be used lightly.
Restraining Orders Don’t Allow for Due Process
The VAWA previously struck a balance here by only removing the gun rights of a person subject to a restraining order if the person was actually notified of a hearing, and had an opportunity to participate in it. This means before a person’s rights were taken, he or she was able to present his or her side of the story—a crucial hallmark of due process. The new version all but eliminates the hearing requirement, expressly contemplating ex parte restraining orders (where the subject person never appears) as automatically removing someone’s rights.
The restraining order problem is compounded by the new definition of “intimate partner,” as the law only to handles situations involving “intimate partners.” The previous definition was pretty logical. It included one’s spouse, former spouse, the parent of one’s child, and cohabiting partners. The new, nearly 200-word definition includes “dating partners” and “former dating partners”—definitions so vague one might wonder if it includes the dog walker.
This is what lawmakers are calling “closing the boyfriend loophole.” This isn’t actually a loophole. The law was intended to address situations where the victim and abuser are in close proximity, where the risk of a repeated attack is high, and thus the severe measures made more sense to protect the purported victim.
This change seriously expands the reach of the provision, far beyond the scope of its original intention. With these two changes, someone’s ex could get a restraining order, and the ex would know nothing about it until receiving notice that his or her rights have been stripped. This result is unacceptable.
Stalker Expansion Could Also Spell Trouble
The “stalking” expansion is another modification that seems good at first, but fails a closer reading. Previously, the VAWA prevented anyone who had ever been convicted of crimes of domestic violence from buying or owning a gun, but this now includes misdemeanor crimes of “stalking.” Now, one might agree that there are reasons to keep guns out of the hands of convicted “stalkers,” but there’s a lot more to this change than first meets the eye.
“Stalking” is loosely defined in the law. It includes any crime that “would reasonably be expected to cause emotional distress” to a “domestic partner.” Of course, I probably wouldn’t want to go camping with a convicted “stalker” of any definition, but a misdemeanor conviction under these grounds is a massive departure from crimes of “domestic violence.”
The fact that these are misdemeanor charges is more than a technical distinction. People facing misdemeanor charges are often given less serious treatment, both by disinterested public defenders and fast-and-loose prosecutors more interested in pursuing a conviction than they are the truth. This is especially concerning given the fact that many people facing misdemeanor charges are financially disadvantaged, often unable to afford a good defense. They’re left susceptible to the efforts of slick prosecutors who coerce guilty pleas, even when the state lacked a strong case against them to begin with.
When we think of an appropriate punishment for a misdemeanor offense, we think of jail time under a year and fines—not a permanent deprivation of fundamental rights. That’s a serious punishment. This means that someone convicted of a misdemeanor charge of “stalking” (which, as defined, could include excessive phone calls) at 18, could spend the rest of his or her life volunteering for a battered women’s shelter, helping old ladies cross the street, and feeding unwanted kittens—without ever restoring his or her civil rights. Should that really be part of a misdemeanor conviction?
Expansive Changes Should Concern Everyone
Whether you agree with the provisions or not, the fact is that these are significant changes touching many Americans, many of whom may have been convicted years ago and since reformed. Don’t be fooled by attempts to frame gun rights supporters as anti-victim. What these changes do instead is create a new class of victims—poor Americans, who are significantly more likely to face criminal accusation and prosecution without competent legal counsel.
Telling people that they have no right to defend themselves for the rest of their lives sends the message that their lives are worthless. There were reasons to pass the VAWA, and there are still reasons to maintain it. But we must remember what Debs pointed out over a century ago: we can’t let ideologically motivated politicians sneak serious due process violations into popular laws just because the label sounds compelling.