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For Immediate Release
April 26, 2012

Support for Alternative VAWA Bill

 Prepared Floor Statement of Senator Chuck Grassley
Ranking Member, Senate Judiciary Committee
The Hutchison-Grassley substitute to S.1925, Violence Against Women Act
Thursday, April 26, 2012

Mr. President, I wish to commend my colleague from Texas, Senator Hutchison, for offering her substitute amendment to the Violence Against Women Act Reauthorization bill.  I am pleased to co-sponsor her amendment.  

This amendment is vitally needed.  

The Violence Against Women Act has always been reauthorized in the past on a bipartisan, consensus basis.  It would have been so easy to do so again.  All of us who support the amendment of the Senator from Texas are in agreement with 80 percent of the bill that is before us.  But the majority has decided to place a higher priority on scoring political points than on passing another consensus reauthorization of the law.  

Recently, Vice President Biden asked what kind of message it would send to women if VAWA were allowed to expire.  He implied that a crisis would be at hand that must be avoided at all costs.  But the actual answer to his question is clear.

The majority party has already allowed VAWA to expire.  VAWA’s reauthorization expired last October.  There has been no crisis of any kind because the appropriations for VAWA programs have kept flowing.  It is the majority, not us, that is responsible for the lapse in VAWA’s authorization.  

The way that the Judiciary Committee handled reauthorization this time has been very disappointing.  The majority insisted on including – and retaining – provisions that appear designed to provoke partisan opposition.  

For instance, the majority insisted on giving Indian tribal courts criminal jurisdiction over non-Indian Americans for the first time in our country’s history.  The committee held one hearing on reauthorizing this bill and it devoted no attention to exploring how this provision would operate.  As a result, the committee described this provision in only four sentences in its report on the legislation.  We all recognize that domestic violence rates in Indian country are too high.  Both the Committee reported bill and the Hutchison-Grassley substitute contain provisions to address the problem.  

But the majority cannot explain why expanding the power of tribal courts would be effective or how this would work.  Do the tribes have the resources and expertise and resources to comply with the Constitution?   How would the federal courts’ caseload be affected by all the new habeas petitions that would necessarily be filed if this became law?  What changes would occur in the existing relationships between federal, state, and tribal law enforcement?  

The majority has no idea whether this provision would help matters or not because it simply did not give this issue any careful attention.  Moreover, the Congressional Research Service has raised several constitutional issues that would be posed by this provision as it was reported from the Committee.  These include due process, equal protection, Fifth Amendment grand jury and double jeopardy issues, as well as Sixth Amendment rights to counsel and a jury trial by one’s peers.  

At the eleventh hour before floor consideration, the majority has recognized the serious constitutional issues that were raised by the Committee language.  It has changed the language in an effort to respond to the constitutional questions it had denied existed.  

If we had had a hearing on these questions, matters could have proceeded differently.

These changes do not address the constitutional questions CRS posed about Congressional power to recognize the inherent power of tribes to prosecute non-Indians.    Nor do they affect the inability of a defendant to appeal his conviction.  And, of course, they do not address the practical concerns that I have raised all along.

CRS also raises constitutional due process concerns regarding another section in the bill that would give tribal courts the authority to enforce protective orders.  That section remains unchanged.

Ironically, the constitutional concerns about the criminal provisions are made more severe because the majority refused to eliminate language we asked them to omit.  Constitutional problems are made worse because the bill tribes criminal jurisdiction as part of their claimed inherent sovereignty.  Our substitute strikes the provisions.  

Mr. President, I ask to include the relevant portions of the CRS analysis in the record.  

But to address the real problems of domestic violence among Native Americans, our substitute would permit tribes to petition for protective orders against non-Indians in federal court.
    
The committee-reported bill did not respect due process in the area of accusations against college students.  Of course, allegations of sexual assault on campus should be taken as seriously as anywhere else.  But reputations can be ruined by false charges, so it is important that fairness in adjudications occur.  As a practical matter, the Committee reported bill imposed on these campus proceedings the standards of proof issued in a controversial proposed regulation by the Department of Education.  They were very weak and unfair.  

Additionally, under the committee reported bill, if the campus disciplinary authority exonerated the innocent even under the weak standard of proof, the accuser could appeal for another round of proceedings.  That just is not fair.  

At the last minute, the majority has changed the first but not the second of these provisions.  Now, the investigation must be fair and impartial.  That is progress.  This change should have been made much earlier.  But the bill still allows a person who has been found innocent after a fair investigation to be pursued again at the victim’s request.  Our substitute eliminates that unfairness.
    The committee bill also mishandles immigration issues.  The one hearing the Judiciary Committee held presented testimony that fraud exists in the VAWA-self petitioning process.  We heard from victims who fell in love with foreign nationals, sponsored them for residency in the United States, only to be accused of abuse so that the foreign national could get a green card.  

The Chairman promised at the hearing to include language in the bill that would address this immigration fraud.  But his bill fails to include anything of the sort.  Our substitute contains language that will reduce fraud and abuse by requiring an in person interview whenever possible with the applicant who alleges abuse.  We cannot allow people to misuse the VAWA self-petitioning process to obtain a green card.

The committee reported bill also expands the number of U visas by tens of thousands without changing the rules by which they are issued.  Under current law, an individual may be eligible for a U visa if he or she has been or is likely to be helpful to the investigation or prosecution of a crime.  However, the requirements for a U visa are generous.  

There is no requirement that an investigation be commenced as a result of the alien reporting the crime; there is no time period within which an alien has to report the crime; the crime could have occurred years before it is reported and there could be no way to identify the perpetrator; the alien seeking the “U” visa could even have a criminal record of their own.  Our substitute includes common sense, best practices to ensure that U visas are truly used as a tool to fight crime.  

    The Hutchison-Grassley substitute amendment will better protect victims of domestic violence than does the underlying bill.  Hundreds of millions of dollars in grant money for domestic violence programs are distributed every year.  For that money to be effective, it must actually reach victims.  But too much of the money does not reach victims.  Excess amounts are spent on administrative expenses, conferences, and lobbying.  And some is lost to waste, fraud, and abuse.  
For example, since 1998, the Inspector General has audited 22 individual VAWA grantees.  In those random audits, 21 were found to have unallowable costs, unsupported expenditures, or other serious deficiencies in how they expended taxpayer dollars.  That is millions of dollars that could have helped an untold number of victims, but instead was lost. Although some good accountability measures were included in the Committee reported bill, more are necessary.  

The substitute amendment requires audits and includes mandatory exclusions for those who are found to have violated program rules.  It limits conference expenditures at the Justice Department and Health and Human Services Department unless there is proper oversight.  It prohibits lobbying by grantees, and it limits administrative expenses in the Government’s management of the grants.  

Our substitute directs more money to victims of the most serious crimes than the Committee bill by requiring 30 percent -- not 20 percent -- of the funds go toward sexual assault.  
It directs that 70 percent of the funds for reducing rape kit backlogs actually be used for that purpose, not the mere 40 percent in the committee-reported bill.  

The substitute protects victims in other ways that are not contained in the underlying bill.  

It contains a 10 year mandatory minimum sentence for aggravated sexual abuse.  

It imposes a mandatory minimum sentence of one year for possession of child pornography where the child depicted is under 12.  That does not go far enough, but it is a step in the right direction.  It is a consensus item that has passed the Judiciary Committee in the past with a strong bipartisan vote.
 
The alternative also creates a mandatory minimum sentence of 15 years for interstate domestic violence that results in death.  There are opponents of mandatory minimum sentences.  The leniency-industrial complex is active in this area as in others.  

But we should not take too seriously the claims of opponents of the mandatory minimums that they take away judicial discretion.  They think that judges should be able to give any sentence they want on these crimes, even potentially no jail time at all. Contrary to victims’ groups, they fear that any requirement of jail time for these crimes will be counter-productive and lead to lower sentences.  

But those same opponents support the grants for arrest in the committee reported bill. Unlike sentences, mandatory arrest policies tie the hands of law enforcement to take action against people who have not been convicted of anything.  They may reduce the likelihood that the police may be called in actual cases of domestic violence.  They may result in calls to the police by one person for leverage against another.  They may cause other negative unintended consequences as well.
    
Our substitute also gives the Marshals Service administrative subpoena authority to pursue unregistered sex offenders.  These are individuals who are required by law to register as sex offenders but fail to comply.  This is another provision that has enjoyed wide bipartisan support in the Judiciary Committee.  

Victims will also be helped by the substitute’s requirement of an audit of the Justice Department’s use of the Crime Victims Fund.  When criminals are convicted and made to pay fines, these fines are placed in a fund for the sole purpose of assisting victims.  However, there are questions whether the Justice Department is spending these funds only for their one permitted use.  

An audit is in order.  

And the bill also includes a bipartisan provision to enable victims to receive restitution that is owed to them but has not been paid.  The IRS would be permitted to deduct the money from payments it would otherwise make to the perpetrator.  

Mr. President, there is broad bipartisan support for reauthorizing the Violence Against Women Act.  The Hutchison-Grassley substitute would reauthorize the 80 percent of the underlying bill that enjoys that consensus.  It eliminates provisions that are not consensus and would not pass the other body and become law.  And it adds other provisions that are widely supported and would provide real benefits to victims of domestic violence.  

I urge my colleagues to support it.