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An en banc panel of the United States Court of Appeals for the
Fourth Circuit recently struck down the Violence Against Women
Act ("VAWA"), a 1994 law giving victims of gender-based violence
the right to sue their victimizers in federal court. In a previous
issue of our firm newsletter, we reported on the powerful tools
and remedies available under this federal statute for victims
of gender-based violence. See "Gender-Based Violence Leads to
Powerful Federal Remedy", Shamberg, Johnson & Bergman Newsletter,
Spring, 1997, available at www.sjblaw.com.
The VAWA, 42 U.S.C. ¤ 13981, establishes a cause of action in
favor of women who are abused, attacked or raped by an assailant,
to collect unlimited compensatory and punitive damages, plus injunctive
and declaratory relief, for gender-based crimes.
Under the act a plaintiff must prove, by a preponderance of
the evidence, that an act or series of
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actsÑthat would constitute a felony (whether or not
charges were ever filed) against a person or property and which
posed a serious risk of physical injuryÑwas motivated by gender.
On March 4, 1999, the Fourth Circuit Court of Appeals
in Brzonkala v. Virginia Polytechnic Institute, #96-2316, held
that the civil rights remedy of the VAWA was unconstitutional.
The Fourth Circuit relied on the United States Supreme Court's
opinion in United States v. Lopez, 514 U.S. 549 which overturned
a law making it a federal crime to possess a gun within 1000 feet
of a school. In Lopez, the court held that Congress exceeded it's
power to regulate interstate commerce when it passed the gun law,
because having a gun near a school is neither a commercial activity
nor one connected with interstate commerce.
In Brzonkala, the Fourth Circuit, relying on Lopez,
concluded that
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laws enacted under the commerce clause are constitutional only
if they regulate strictly economic conduct or have a jurisdictional
element with a link to interstate commerce, which the Court found
the Brzonkala case did not. The Brzonkala ruling
was the first time an appellate court had addressed the constitutionality
of the VAWA. Many district courts have upheld the remedies under
the statute, and in March of 1999, the Supreme Court let stand
a ruling by the United States Court of Appeals for the Second
Circuit, rejecting a similar constitutional challenge to the VAWA.
The Fourth Circuit opinion calls into question the validity of
the VAWA, and the viability of the act ultimately rests in the
hands of the U.S. Supreme Court. We will continue to monitor and
report significant developments on this important subject.
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The Kansas Court of Appeals recently delivered a harsh blow to
Kansas children, ruling that claims for medical expenses incurred
on behalf of minors are vested solely in the parents, absent exceptional
circumstances. Wilson v Knight, No. 7886, Kan. Ct. App., June
25, 1999. The plaintiff, William Wilson, was 14 years old at the
time of the medical malpractice, and timely filed the case after
his 18th birthday. In Kansas there is a two year statute of limitations
on medical
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malpractice claims, but a minor has eight years, or one year
after reaching the age of majority, whichever is sooner, to file
the action. K.S.A. 60-515. Wilson's action included a claim for
approximately $86,000 of past medical expenses. The medical expense
claim was dismissed on summary judgment by the trial court on
the ground that it was vested exclusively in the parents, and
it was barred by the two year statute of limitations applicable
to their claims.
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The Court of Appeals cited the "general rule throughout the United
States that unless the child is emancipated, the parent rather
than the child is entitled to recover medical expenses that have
been incurred to provide care and treatment." Wilson also
cited "four circumstances which constitute exceptions to the general
rule," including: "(1) when the
Continued
on Page 6
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