VAWA Provisions: Bye-Bye Due Process For Men
Hans Bader blogs at Open Market, "Troubling Provisions Being Added to the Violence Against Women Act: Due Process Rights Threatened":

Provisions are being added to the 1994 Violence Against Women Act that could undermine due process on campus and in criminal cases, as civil liberties groups like the Foundation for Individual Rights in Education (FIRE) and civil libertarians like former ACLU board member Wendy Kaminer have noted. The changes are contained in a reauthorization of the act that is likely to pass the Senate over objections from some Republican senators like Charles Grassley of Iowa, who has also objected to the lack of safeguards against fraud in the law and the misuse of millions of dollars in taxpayer money. (Even if the Senate's reauthorization does not pass the House, programs set up by the 1994 law will continue to operate.)

William Creeley of FIRE, and Wendy Kaminer, say that the Senate reauthorization would effectively result in a form of double jeopardy for accused students. Moreover, they point out, it would implicitly reinforce Education Department "guidance" demanding that colleges water down due process protections in campus disciplinary proceedings (a demand criticized by lawyers like Robert Smith, Jennifer Braceras, Ilya Shapiro, and Harvey Silverglate; leading law professor and former University of Chicago law dean Richard Epstein; the American Association of University Professors; and many civil libertarians and journalists. I am a former Education Department attorney who practiced education law for years, and I discussed why the Education Department's guidance was legally unjustified under Title IX and federal court rulings here, here, here, here, here, and here).

One provision they do not address, but which Senator Grassley understandably objects to, is a provision in the VAWA reauthorization that would subject non-Indians to Indian tribal courts in domestic violence cases. Historically, Indian tribal courts have only had jurisdiction over members of their own tribe. Moreover, defendants in tribal courts are not constitutionally entitled to the protections of the Bill of Rights, unlike state or federal courts (see Santa Clara Pueblo v. Martinez ) -- although tribal courts have, in theory, been subjected to some of the strictures of the Bill of Rights pursuant to the Indian Civil Rights Act. As lawyer John Hinderaker notes, courts have ruled "that tribal governments are not bound by the Constitution's First, Fifth, or Fourteenth Amendments."

Federal judges have lamented the bias shown by some Indian tribal courts against non-Indians, as in cases where Indian tribal courts imposed hundreds of millions of dollars in damages on railroads over personal injury cases resulting from railroad tracks running through reservations that ordinarily would lead to damages only in the low thousands, suggesting a flagrant violation of Supreme Court decisions like BMW v. Gore. (See Judge Andrew Kleinfeld's dissent in Burlington Northern Railroad Co. v. Red Wolf, dealing with a $250 million judgment imposed on a railroad by a tribal court.) Given that courts sometimes issue unfounded domestic violence sanctions on people who don't even live in their jurisdiction -- as was illustrated by a New Mexico judge's restraining order erroneously issued against David Letterman after a local woman falsely accused him of harassing her across the country through his TV show -- giving a tribal court jurisdiction over outsiders raises serious questions of due process and jurisdictional overreaching.

...These flaws in the statute may reflect lawmakers' reluctance to scrutinize its provisions due to its crowd-pleasing name (no one wants to be perceived as soft on criminals who commit "violence against women"). Many counterproductive laws come with appealing names that are designed to shut down debate and prevent careful evaluation of their provisions -- like laws named after dead children. Veteran civil-liberties lawyer and former ACLU board member Harvey Silverglate says that "Any time you have a statute named after a victim, it's not a good law." "In order to get it passed, you have to depend on sympathy for somebody rather than seeking to remedy a real problem in the system."

Some have argued that VAWA promotes inflexible mandatory arrest and prosecution policies that backfire on women by taking away their ability to obtain police assistance in situations where the victim does not want a formal prosecution because it could result in job losses or other economic injuries.

What about violence against men? (As I wrote in a column, "in 2005, 513 women in the U.S. were murdered by 'boyfriends' (men they were dating but not married to) and 164 men were murdered by 'girlfriends.' (And yes, men, too, are victims of domestic violence, much of which goes unreported.)"

What about shelters that allow men who are victims of domestic violence? Nevermind! Gotta see to it that men have their due process rights removed post-haste -- anything that serves that is good. Attorney Lisa Scott writes:

VAWA is not about stopping violence. It is about greedy special interests slopping at the federal trough, perpetuating gender supremacy for women. If proponents were truly concerned about helping victims, they would demand that all intervention and funding be gender neutral and gender inclusive.

The existence of male victims threatens gender feminists because it knocks the underpinnings out of their theory, that the "patriarchy" causes men to abuse women. The DV industry has succeeded in creating the "victimarchy." With VAWA in their corner, women win no matter what: victim or abuser, they can do no wrong.