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Immigration Law Associates, PC

Violence Against Women Act (VAWA) Reauthorized but the Debate over Immigration Reform and Same Sex Marriage is Far from Over

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MAR. 8 – The Violence Against Women Act (VAWA), drafted by then Senator Joe Biden with Senator Orrin Hatch (R., Utah) passed last Thursday in Congress following a 2012 stalemate on reauthorization. Although focused on domestic violence, VAWA will likely spark further debates on same sex marriage and immigration reform.

Three main provisions at issue were domestic violence on tribal lands, protection extended to LGBTQ abuse victims, and providing temporary visas to undocumented battered women.

There is currently a gap between federal law and Indian law which VAWA hopes to bridge. Namely, prior to the reauthorization, a Native woman facing domestic violence by a non-Native man, had no remedy against him since Indian law only carried jurisdiction over Indian men in domestic violence cases. However, the new VAWA provisions implement concurrent jurisdiction.

According to the National Task Force to End Sexual and Domestic Violence Against Women, Tribal courts will now have jurisdiction over non-Indian defendants with “sufficient ties to the Indian tribe.” This means that if the victim of domestic violence resides on Indian land, works for the Indian country, or is the spouse or intimate partner of an Indian, that tribe has jurisdiction to prosecute domestic and dating violence.

The second issue which VAWA faced in Congress is the provision extending protection to LGBTQ abuse victims. As the previous Act stipulated, VAWA was intended to protect women, and opponents contended that by stretching VAWA to include the LGBTQ community, already vulnerable shelters working on shoestring budgets open themselves up to litigation and the government to further debate on same-sex issues.

Something is to be said for broadening definitions to reach across and protect others that were not within VAWA as it stood previously. True, VAWA was intended to protect women against abuse, but what of a gay man abused by his partner and shows up at the door of a women’s shelter rather than a men’s shelter where he feels unsafe (and rightly so after a violent experience with a man) invoking the protection of VAWA? Or a woman in an ongoing emotionally abusive relationship that wants justice as per the new definition of abuse? Or as the ACLU initially pointed out, what of harsh sentences, including mandatory HIV testing of men charged, but not convicted, under the Act?

These were expected to be a major issue of opposition for Conservatives who opposed VAWA in 2012. Surprisingly, VAWA passed despite Conservative opposition in the run up to the upcoming seminal same sex Supreme Court case on the Defense of Marriage Act (DOMA).
“Today is about all the Americans who face discrimination based on sexual orientation and gender identity when they seek help,” President Obama said to a cheering crowd at the signing.

It’s hard to say whether this will impact the way that Americans view sexual identity and same sex marriage – but there’s no denying the present shift in US opinion – or perhaps the present shift in US political opinion surrounding sexuality.

The issue of immigration however, seems much more layered and multifaceted in comparison. Not only dealing with the issue of violence against undocumented women, but the immigration debate, including accountability of employers, employment exploitation, and sexual exploitation.
On the one hand, you have a situation where women are not legally allowed to be here in the first place – thus flouting US law. On the other hand, the injustices of ongoing abuse arguably outweigh her legal status to reside and work here.

Although VAWA won’t be able to please both sides of this heated debate, as with any legislation, it needs to cater to the evolution of an ever-changing society while still within Constitutional bounds.

“Today’s signing of the Violence Against Women Act reauthorization into law gives women and all victims of domestic violence across America the peace of mind that their government will not abandon them in their time of need,” said one of the original authors of the bill, Rep. Louise Slaughter (D., NY).

However, one can’t deny how contradictory the Violence Against Women Act affords umbrella protections to both marginalized men and women, but fails to recognize these individuals and families under the color of law. LGBTQ couples are protected from violence even though federal law fails to recognize their relationships, and illegal immigrants can in theory voice their victimization from abusers, yet continue to be rounded up and ripped from their families for crossing the wrong border at the wrong time. Whether Congress intended to lay the foundations for support of immigration reform and same sex marriage or not, it seems that VAWA may be the gateway to both.

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