"Throughout the United States, there is growing social awareness that sexual violence and harassment are far too common occurrences within our various institutions. Occurrences often without any accountability.
As a result, the #MeToo Movement is upon us, and survivors everywhere are speaking out to demand change. Students have rallied against sexual assault on campus; service members have demanded Congress reform the military; and workers, ranging from Hollywood stars to janitorial staff, have called out sexual harassment in the workplace.
This is a tipping point. This is when a social movement can create lasting legal change - but only if we switch tactics. Instead of going institution by institution, fighting for reform, it’s time to go to the Constitution.
As it stands, the U.S. Constitutions denies fundamental protections to victims of gender violence, such as sexual assault, intimate partner violence, and stalking. Specifically, the 14th Amendment of the Constitution, which prohibits State governments from abusing its citizens, does not require State governments to intervene when private parties abuse its citizens. So what does that mean in real life?
It means that when a woman calls the police from her home, afraid that an intruder may attack her, she is not entitled to the State’s protection. Not only can the police fail to response, but she will be left without any legal remedy if preventable harm occurs as a result. How can this be?
This is because the State, theoretically, acts on behalf of all citizens, collectively, not any one citizen, individually. The resulting Constitutional flaw directly contradicts international law, which requires nation-states to intervene and protect citizens from gender violence by private party as a human right.
Instead of requiring intervention, our Constitution leaves discretion. Discretion that States have used to discriminate systemically to deny countless victims any remedy. Unlike what you may have seen on Law & Order SVU, justice is rare for victims of gender violence.
And even in those rare cases, when law enforcement has chosen to act, victims have no rights during the resulting criminal process. Victims are not parties in a criminal case, rather they are witnesses, their bodies evidence. The prosecution does not represented the interest of a victim, rather the prosecution represents the interests of the State. And the State has the discretion to dismiss criminal charges, enter lax plea deals, and otherwise remove a victim's voice from the process. This is because, again, the State acts on behalf of all citizens, collectively, not any one citizen, individually.
Despite this Constitutional flaw, some victims of gender violence have found protections under federal civil rights statutes, such as Title IX. Title IX is not just about sports, rather it prohibits all forms of sex discrimination, including sexual violence and harassment, within educational programs that accept federal funding. While initially targeting sex discrimination within admissions, Title IX has actually evolved over time to requires educational institutions to intervene and address gender violence when committed by certain parties, such as when teachers, students, and campus victims commit sexual assault or harassment.
This means, that through Title IX, those who seek access to education are protected against gender violence in a way that otherwise does not exist under the law. Title IX requires educational institutions to take reports of gender violence seriously, or to suffer liability. Furthermore, through campus level proceedings, Title IX also gives victims equitable rights to those accused during the campus process, which means that victims can represent their own interests rather than relying on the educational institution to do so. And this is important, because educational institutions have historically swept gender violence under the rug, much like our criminal justice system does today.
While civil rights protects some victims, we should want to protect all victims. Instead of going institution by institution - fighting for reform on campus, in the military, in the workplace - it's time to go to the Constitution and pass the Equal Rights Amendment.
Originally proposed in 1923, the Equal Rights Amendment would guarantee gender equality under the law. And much like Title IX on campus, this Constitutional Amendment could require States to intervene and address gender violence as a prohibited form of sex discrimination.
While the Equal Rights Amendment did not pass in the 1970s, it came within three states of doing so. And within the last year, one of those states has ratified the Amendment because we live in different political times. From the Women’s March to the #MeToo Movement, these are different political times. There is a growing political will amongst the people to creating lasting legal change.
So as a victim’s rights attorney, fighting to increase the prospect of justice for survivors across the country, and as a survivor myself, I'm not here to say #Time'sUp, I'm here to say it’s time. It’s time for accountability to become the norm after gender violence. It’s time to pass the Equal Rights Amendment so that our legal system can become a system of justice, and #MeToo can finally become #NoMore. Thank you."
Learn more via footnotes on this speech found here on go.ted.com/lauraldunn.