We want justice for the FBI’s mishandling of the Nassar investigation.
Simone Biles, Ali Raisman, and several other Olympic gymnasts tearfully explained how the FBI had closed their reports of sexual abuse by Dr. Larry Nassar ignored it during the Senate Judiciary Committee hearing last week. In addition to the pain of not being believed, the gymnasts made it clear that the FBI’s inaction led to further abuse of young athletes.
During the hearing, several senators expressed outrage and focused their future actions on the FBI’s failure. Senator Patrick Leahy even backed Turner’s demands to prosecute FBI agents who are accused of mishandling the case. But the senators bypass the fundamental legal problem at the center of the investigation: the 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 the Olympians’ allegations because federal agents had legal justification for not pursuing their claims. Nassar could not be charged with a federal offense because of his attacks. That’s right – even if it sounds perverse. (His final federal conviction was possession of child porn, not hundreds of assaults). And so the Indianapolis agents claimed they had no “federal jurisdiction” to take the case.
Put simply, the US Olympic Committee had knocked on the wrong prosecutor. The survivors should have gone to another Michigan state attorney’s office, according to the FBI agents.
Unfortunately, state criminal justice systems have routinely abandoned survivors of sexual assault. About 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 the utmost indifference to their abuse. The first law on violence against women emerged from these hearings. For the first time in American history, in 1994 the federal government funded states to change their laws and practices to treat domestic violence and sexual assault as less serious than other crimes. The law included a provision to address routine abuse of sexual assault cases by the state judicial system and to place responsibility in the hands of survivors by allowing them to seek redress on their own. The law made it a federal citizen right to be free from gender-based violence.
For six years, this law allowed individuals to sue their attackers and provided lawyers with an incentive to take the cases by allowing them to charge fees if successful. The theory was like any other civil rights lawsuit: the plaintiff is acting as a “private attorney general” who represents values shared by all that are under-enforced by traditional law enforcement. College students sued professors for molesting them, young men sued priests for molesting them, and children sued fathers for beating and killing their mothers. Although opponents of the law claimed it covered trivial matters and confused federal courts with divorce, the number of lawsuits was modest and the abuse severe. State officials were abusers in a not inconsiderable number of cases.
This law no longer exists. The Supreme Court is to blame. In 2000, the court ruled the civil rights remedy of the Violence Against Women Act unconstitutional precisely because it was a sexual abuse offense. Despite the fact that the law allowed private survivors to seek damages, the court ignored the civil nature of the appeal, stating that the underlying fact of sexual abuse should be viewed as a crime. In United States v. Morrison wrote to Chief Justice Rehnquist that crime should best be left to the states. The judges reacted almost hysterically to the danger: If the federal government could regulate sexual abuse, they would “abolish” the distinction between the federal government and the states. (No state government disappeared when the VAWA Civil Rights Aid was alive from 1994-2000).
Morrison’s decision has borne badly over the years. Chief Justice Rehnquist, who wrote the report, had campaigned openly and publicly against the law, which is viewed with more ethical skepticism today than then. The decision was supposed to be about federalism, but it did not lead to a legal revolution. In fact, five years later, the court ruled another Gonzales v Raich case, allowing the federal government to regulate marijuana possession, even though that also included “crime,” based on the theory that there was a commercial market for marijuana. Many law professors believe Gonzales silently overruled Morrison and given the federal government the power to regulate all kinds of crimes except sexual assault.
The case of the Olympians shows how the message of the court can be read by American women that their claims are not important enough to federal law. When the law was passed in 1994, opponents said 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 difficulty women have with lawsuits and the need to be accountable. The #MeToo movement has shown that the problem of harassment and abuse is widespread and that state legal reform has not stopped the tide.
The Morrison panel suggested how federal protection can be restored to sexual assault survivors. The civil rights remedy could be reformulated to fit the constitutional model: require a link with interstate trade. The truth is that the federal government regulates a lot of regular crime that involves more than one state, or goods in transit like guns or marijuana. The Constitution gives Congress significant powers to regulate “trade”. As the Morrison Dissent said, sexual assault and harassment certainly affect women’s ability to participate in the economy, whether that economy is movies or sports.
If the law were still in place today, it would have allowed Olympic Games survivors to sue anyone responsible for their abuse without the permission of the prosecutor. It would have enabled Harvey Weinstein’s victims or Jeffrey Epstein’s victims to sue them for therapy costs, lost jobs, and other damage. More importantly, it would have given survivors a measure of accountability when state criminal justice systems fail.
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It is long time Congress passed a reformulated civil remedy with the Violence Against Women Act. Disbelief about survivors’ depictions of violence is widespread. Deborah Türkheimer calls this phenomenon the “credibility discount” in her new book Credible: Why We Doubt Accusers and Protect Abusers. If the massive numbers of #MeToo (19 million tweets from women who did not believe when alleging harassment or assault) tell us anything, there is massive disbelief that includes total disregard for victims’ suffering.
Congress must do more than prosecute an FBI agent for what happened in the case of the Olympians. You need to go beyond providing money to states and NGOs to stop sexual violence, which essentially happens under current law. You have to stand your ground in the Supreme Court and say that women deserve better than law enforcement officers who keep ignoring them and not believing them.
At least give survivors and private lawyers back the power to justify themselves when law enforcement fails. And give them the power to find accountability, the sheer power of faith that the Olympians so desperately need.