Police lines are established outside the Nodaway County Court House in preparation for a “Justice for Daisy” rally in Maryville, Mo., Tuesday, October 22, 2013. (AP Photos/Orlin Wagner)

The latest rape case to capture national attention, this one out of Maryville, Missouri, leaves justice-seekers long on anger and short on options. With a prosecutor who dropped charges and sealed case files, the alleged victim’s last hope is in the hands of a special prosecutor, appointed after a media firestorm cast a harsh light on the town. While the prosecutor may not refile charges, her presence at least offers hope that the process will be a fair one. But recent history offers an interesting twist: If not for a single Supreme Court justice, the legal landscape in Maryville might look very different right now. If only one judge on the right-leaning Rehnquist Court had voted differently in a case decided in 2000, the girl who says she was raped—and Jane Does like her across the country—might have been able to pursue a claim against the young man she says attacked her, whether or not the criminal justice system had her back. But a the majority of Justices endorsed a conservative view of federal power, leaving rape survivors with few options outside of a criminal system notoriously unfriendly to victims of gender-based violence.

In Maryville, 14-year-old Daisy Coleman was allegedly assaulted by a popular high school senior while she was intoxicated and incoherent, before the young man left her on her front lawn in freezing weather. Her 13-year-old friend was allegedly assaulted as well, by another high school boy. An onlooker took a video that circulated in Coleman’s school. Prosecutors brought felony assault and misdemeanor endangerment charges against Coleman’s alleged rapist, Matthew Barnett, then dropped them—they say because there was a lack of evidence and Coleman refused to testify; the Colemans say that because Barnett comes from a well-connected family he is routinely afforded the privilege of authorities looking the other way. After The Kansas City Starbroke the story, it took off, in part because it sounded so similar to the Steubenville rape case, where the sexual assault of a teenager was captured on her peers’ smartphones. The Internet hacker collective Anonymous showed up in Steubenville, and now they’re targeting Maryville, threatening action if justice isn’t done. On Monday, a judge appointed a special prosecutor, Jean Peters Baker, to investigate the case, leaving open the possibility that charges could be refiled. But Peters Baker could also find no wrongdoing on the part of the initial prosecutor and declined to pursue the matter further. And then Coleman will have few legal options.

The Maryville case may seem like an extreme miscarriage of justice. But it’s not that unusual: most rape victims won’t even see their assailants arrested, let alone prosecuted. For every 100 rapes, fewer than half are reported to police. Five end in a conviction and only three conclude with a rapist spending a single day in prison. The overwhelming majority of rape victims never see their attacker punished.

Our criminal justice system, from the police on up through the courts, is skewed against women, and against rape victims in particular. After all, we live in a society where rape is poorly understood and where rape victims have long been thought to be partially responsible for the attack. It remains common for men running for office to opine about “legitimate” rape and offer other half-cocked theories about gendered violence. Our legal system is run by fallible human beings just as prone to misogyny as anyone in the general population, with jurors who often disbelieve complainants in rape cases. Prosecutors, especially those in small districts where decisions may be unilateral, have both tremendous power when it comes to determining which cases to pursue and electoral incentives to maintain high conviction rates. They also have a high legal bar to reach a conviction, as criminal cases must be proven “beyond a reasonable doubt.” An unsympathetic rape victim—a victim who had been drinking, a woman of color, a sex worker, someone who appeared insufficiently traumatized, a victim who knew her attacker—coupled with a small-minded prosecutor too often means the case is simply deemed impossible to win and not worth bringing.

Still, as flawed as it is, without the criminal justice system, rape victims are largely out of luck.

It didn’t have to be this way. Recognizing the widespread impact of gender-based violence on the lives of American women, Congress passed the Violence Against Women Act (VAWA) in 1994. It included a provision that allowed rape survivors (and other victims of gender-based violence) to sue their attackers in federal court. The logic was fairly simple: violence against women costs the country billions of dollars in medical treatment, criminal justice and other associated costs, and prevents women from fully participating in the national economy; perpetrators of gender-based violence too often avoid criminal prosecution; and so a federal mechanism must exist for victims of gender-based crimes to get some sort of relief. VAWA meant that a victim of a gender-based crime could sue her attacker, even if a local prosecutor declined to bring criminal charges.

Even without VAWA, rape victims can sue their attackers in civil court. Tort actions are in theory decent avenues for violence survivors to pursue: you may not see your attacker go to jail, but you can be awarded damages for your ordeal. The burden of proof in civil cases is also lower, requiring a showing of fault “by the preponderance of the evidence” rather than beyond a reasonable doubt, making the kind of character assassination that rape victims often face in criminal trials a degree less influential. And while criminal cases require the state to prosecute the offender, with the victim serving only as a witness, the victim is the plaintiff in civil suits, and so she has much more control in determining the course of litigation.

But winning a lawsuit against one’s attacker in civil court is a major challenge even with a criminal conviction and even harder without one, since acts of violence against women, including rape, are difficult to fit into traditional tort categories. VAWA remedied that problem by creating a specific cause of action for victims of gender-based violence.

The Supreme Court invalidated that provision in a 5-4 decision, with the conservative members of the court backing a majority opinion penned by Judge Rehnquist. The decision largely turned on the question of whether Congress had the power under the Commerce Clause of the US Constitution to offer a federal civil remedy for victims of gender-based crimes. When looking at Commerce Clause cases, the court evaluates whether the activity being legislated by Congress “substantially affects interstate commerce.” That doesn’t mean that legislation has to directly impact selling goods across state lines; it just has to impact commercial activity between states. The Supreme Court has, for example, upheld federal laws regulating the meatpacking industry because even though the facilities were local, the activity impacted the “current of commerce.”

In drafting VAWA in 1994, Congress was careful to document and evaluate a series of commercial ties to the civil remedy offered to gendered violence victims. They emphasized the broad economic impact of that violence, and how systematic gender-based violence prevented enormous numbers of women from fully participating in the economy, whether that meant missing work because abuse landed them in the hospital or losing their jobs because of PTSD after a rape or simply being too afraid to go to a movie or out for a drink late at night.

The law was tested by Virginia Tech student Christy Brzonkala, who said she was raped by two classmates and pursued her claim with the university. One of the men faced no consequences. The other, who admitted he had sex with Brzonkala after she repeatedly told him “no,” was initially suspended before the administration decided suspension was too harsh a punishment. After a Grand Jury failed to find sufficient evidence to indict either man, Brzonkala sued her alleged attacker under VAWA.

The conservative members of the Supreme Court dismissed her suit. While claiming that the calculus was whether the activity regulated substantially influenced interstate commerce, which Congress clearly anticipated and detailed in the legislation, the court was instead rigidly formalistic: “Gender-motivated crimes of violence are not,” Rehnquist wrote for the majority, “in any sense of the phrase, economic activity.”

In doing so, the court took a major step back in Commerce Clause jurisprudence. As Justice Souter noted in his dissent, nearly a century before, conservative justices had refused to apply the Commerce Clause to a range of activities Congress attempted to regulate, including child labor, mining, tort liability for interstate transportation companies and unfair labor practices. That shifted starting in 1937, and the Bad Old Days when the court refused to allow Congress to regulate some of the most pressing economic and moral issues of the day seemed to be fading in the rearview mirrow.

But the VAWA case, decided in 2000, signaled a startlingly rightward shift in line with the court’s increasing conservatism. While hostility to federal intervention is of course sometimes warranted, the post–Jim Crow American right has used “federalism” as code for letting states enact a series of discriminatory and regressive laws outside the reach of Congress. It’s a broader ethos that emphasizes state sovereignty too often as cover for allowing states to uphold existing power structures and legislate against equality. In his dissent, Souter wrote that the new formalistic interpretation of the Commerce Clause “is useful in serving a conception of federalism” that is “the instrument by which assertions of national power are to be limited in favor of preserving a supposedly discernible, proper sphere of state autonomy to legislate or refrain from legislating as the individual States see fit.”

The provision of VAWA allowing rape victims to sue their attackers is no longer a potential remedy for Daisy Coleman, or any other Jane Doe who comes after her. They’re stuck, instead, with a civil system ill-equipped to deal with rape cases, or hoping for the best out of a criminal system where positions of power are still largely held by older men, where juries are unsympathetic to many survivors and where prosecutors won’t take on an imperfect victim. Violence against women remains a significant social, moral and economic problem. While high-profile victims may see the system grind toward something resembling a fair process (if not actual justice) out of sheer face-saving necessity, average Janes are less likely to even see surface fairness.

Thanks to the resurgence of conservative legal theory and the highly effective Republican strategy of stacking courts with right-wing jurists, rape victims can’t fully advocate for their own right to be remedied for the violence they suffered. That’s not just a loss for federal power or an abstract legal theory; it’s a loss for basic justice.

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