[Congressional Record Volume 142, Number 114 (Tuesday, July 30, 1996)]
[Senate]
[Pages S9154-S9155]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             DECISION BY THE FIRST CIRCUIT COURT OF APPEALS

  Mr. BIDEN. Mr. President, I rise this evening to discuss a decision 
handed down by the First Circuit Court of Appeals, and I will be 
introducing a bill to correct what I think was a serious mistake the 
court made.
  Mr. President, let me briefly discuss the court's decision. A few 
months ago, the First Circuit Court of Appeals made, in my view, a 
serious mistake--a very big mistake. It said that the term ``serious 
bodily injury,'' a phrase used in one of our Federal statutes, does not 
include the crime of rape.
  Mr. President, let me tell you about this case. One night near 
midnight, a woman went to her car after work. While she was getting 
something out of the back seat of her car, a man came up behind her 
with a knife and forced her into the back seat of her own car. He drove 
her to a remote beach, ordered her to take off her clothes, made here 
squat down on her hands and knees, and he raped her. He raped her. 
After the rape, he drove off in her car, leaving her alone on the side 
of the road naked.
  This man was convicted under the Federal carjacking statute. That 
statute provides for an enhanced sentence of up to 25 years if the 
convicted person inflicts serious--the term of art--serious bodily 
injury.
  If he inflicts serious bodily injury in the course of the carjacking, 
the statute provides for an enhanced sentence, a longer sentence, of up 
to 25 years.
  When this case got to the sentencing phase, after the defendant had 
been convicted of raping the woman in the manner that I just pointed 
out, the prosecutor asked the court to enhance the sentence, because 
under the statute if serious bodily injury occurred, then an additional 
25 years was warranted. And the prosecutor reasoned, as I do, that rape 
constituted serious bodily injury.
  The trial judge agreed with the prosecutor and gave the defendant the 
statutory 25-year maximum, finding that rape constituted serious bodily 
injury. But when the case went up to the First Circuit Court of 
Appeals, that court said no. It said, if you can believe it, that rape 
is not serious bodily injury.
  Mr. President, I have spent the bulk of my professional career as a 
U.S. Senator and prior to that as a lawyer making the case that we do 
not take seriously enough in this country the crime of rape, and until 
we do we are not going to be the society we say we wish to be and we 
are not going to impact upon the injury inflicted on women in this 
society.
  But the Circuit Court of Appeals ruled that rape does not constitute 
serious bodily injury under our statute. To support its ruling--and I 
am now quoting the opinion of the First Circuit Court of Appeals--the 
court said: ``There is no evidence of any cuts or bruises in her 
vaginal area.''
  I apologize for being so graphic, but that is literally a quote from 
the court ruling. That, in my view, is absolutely outrageous.
  Senator Hatch and I and Congressman Conyers in the House are going to 
be offering a bill to set matters straight. Under the U.S. Criminal 
Code, serious bodily injury has several definitions. It includes a 
substantial risk of death, protracted and obvious disfigurement, 
protracted loss or impairment of a bodily part or mental faculty, and 
it also includes extreme physical pain. It takes no great leap of logic 
to see that a rape involves extreme physical pain. And I would go so 
far as to say that only a panel of male judges could fail to make that 
leap and even think, let alone rule, that rape does not involve extreme 
pain.
  Rape is one of the most brutal and serious crimes any woman can 
experience. It is a violation of the first order, but it has all too 
often been treated like a second-class crime. According to a report I 
issued a few years ago, a robber is 30 percent more likely to be 
convicted than a rapist. A rape prosecution is more than twice as 
likely as murder prosecutions to be dismissed. A convicted rapist--and 
I want to get this straight--is 50 percent more likely to receive 
probation than a convicted robber. And you tell me that we take this 
crime we say is one of the most heinous crimes that can be committed by 
one human being on another seriously?
  Look at those statistics. We treat robbery--robbery--more seriously 
than we do rape. No crime carries a perfect record of arrest, 
prosecution and incarceration, but the record for rape is especially 
wanting. The first circuit decision helped explain why, in my opinion. 
Too often our criminal justice system, as the phrase goes, just doesn't 
get it when it comes to crimes against women.
  I acknowledge men can and have been raped as well, and a similar 
infliction of pain occurs, but the fact is well over 95 percent of the 
rapes are rapes of women.

  If the first circuit decision stands, it would mean that a criminal 
would spend more time behind bars for breaking a man's arm than for 
raping a woman. If a carjacking occurred, and I was the man whose car 
was carjacked, and in the process of the carjacking my arm was severely 
broken, for that fellow who was convicted of raping the woman, had he 
broken my arm, there is no doubt the prosecution's request for an 
enhanced penalty of 25 years would have been upheld.
  Think of that. We have a statute on the books that says you can 
enhance a penalty to 25 years for carjacking and inflicting serious 
bodily harm. Had it been a man with a broken arm, that guy would have 
been in jail for 25 years. But this was a woman who was raped. The 
court said, no, it does not meet the statutory requirement of serious 
bodily injury.
  For 5 long years, Mr. President, I worked to pass a piece of 
legislation that I have cared about more than any other thing I have 
done in my entire Senate career and the thing of which I am most proud. 
That is the Violence Against Women Act. My staff and I wrote that from 
scratch. It took a long time to convince our colleagues and 
administrations, Democrat and Republican, that it was necessary. For 5 
long years we worked to pass that law.
  The act does a great many practical things. It funds more police and 
prosecutors specifically trained and devoted to combating rape and 
family violence. It trains police, prosecutors and judges in the ways 
of rape and family violence so that they can better understand, as, in 
my view, the first circuit did not understand, the nature of the 
problem and how to respond to the problem.
  The violence against women legislation provides shelter for more than 
60,000 battered women and their children. It provides extra lighting 
and emergency phones in subways, bus stops and parks because of the 
nature in which the work force has changed.
  The woman sitting behind me who helped author that legislation is 
here at 9:30 at night. In my mother's generation, there were not many 
women who left work at 9:30 or 10:30 at night.

[[Page S9155]]

 Today, there are millions and millions, like men, who do, and we 
recognize the need to protect them better than they have been by 
providing the most effective--the most effective--crime prevention tool 
there is: lighting. It provides for more rape crisis centers. It sets 
up a national hotline that battered women can call around the clock to 
get advice and counseling.
  I am working on the ability for them when they call to also be able 
to get a lawyer who will handle their case pro bono--for free--and help 
guide them through the system. They were getting rape education efforts 
going with our young people so we can break the cycle of violence that 
begets violence.

  I might note parenthetically, one of the reasons I wrote this 
legislation initially, the Violence Against Women Act, is that I came 
across an incredible study, a poll done in the State of Rhode Island, 
of, I think, seventh, eighth and ninth graders. I am not certain, to be 
honest. I think seventh, eighth and ninth graders.
  It asks, in the poll conducted, the survey, ``If a man spends $10 on 
a woman, is he entitled to force sex on her if she refuses?'' An 
astounding 30-some percent of the young men answering the question 
said, ``Yes.'' But do you know what astounded me more? Mr. President, 
25 percent of the young girls said ``yes'' as well. We have a cultural 
problem here that crosses lines of race, religion, ethnicity, and 
income. We just do not take seriously enough the battering of our 
women--our women, is the way our friends like to say it--of women in 
this country. This is especially true when it comes to victims who know 
their assailants. For too long we have been quick to call these private 
misfortunes rather than public disgraces.
  The Violence Against Women Act also meant to do something else beyond 
the concrete measures that I mentioned. It also sent a clarion call 
across the land that crimes against women will no longer be treated as 
second-class crimes. For too long the victims of these crimes have been 
seen, not as innocent targets of brutality, but as participants who 
somehow bear some shame or even some responsibility for the violence 
inflicted upon them.
  As I said, this is especially true when it comes to victims who know 
their assailants. For too long we have been quick to call theirs a 
private misfortune rather than a public disgrace. We viewed the crime 
as less than criminal, the abuser less than culpable, and the victim as 
less than worthy of justice.
  In my own State of Delaware, until recently, if a man raped a woman 
he did not know, he was eligible, if he brutally did it, to be 
convicted of first-degree rape. But do you know what? We had a 
provision in our law, and many States had similar provisions, that said 
if the woman knew the man, if the woman was the social companion of the 
man, then he could only be tried for second-degree rape, the inference 
being that somehow she must have invited something because she knew 
him, she went out with him.
  It seems to me we have to remain ever vigilant in our efforts to make 
our streets and our neighborhoods and our homes safer for all people, 
but in this case particularly for women. We need to make sure right now 
that no judge ever misreads the carjacking statute again and undermines 
the overwhelming purpose of my legislation in the first place, which 
was to change the psyche of this Nation about how we are to deal with 
the brutal act of rape. It is not a sex crime, it is an act of 
violence, a violent act.
  Now, one of the most respected courts in the Nation has come down and 
said it does not constitute serious bodily injury. So, Mr. President, 
we need to make sure right now that no judge ever misreads the 
carjacking statute again. We need to tell them what we intend, what we 
always intended, that the words ``serious bodily injury'' mean rape, no 
ifs, ands, or buts. The legislation, a bill to be introduced by myself 
and Senator Hatch and others, does just that. It says, and I will read 
from one section:

       Section 2119(2) of title 18, United States Code, is amended 
     by inserting ``, including any conduct that, if the conduct 
     occurred in the special maritime or territorial jurisdiction 
     of the United States, would violate section 2241 or 2242 of 
     this title'' after ``(as defined in section 1365 of this 
     title)''.

  Translated into everyday English it means, serious bodily injury 
means rape. No judge will be able to, no matter how--I should not 
editorialize. No judge in the future, once we pass this legislation, 
will be able ever again to say that serious bodily injury does not 
include rape.
  I thank Senator Hatch, and I would like to particularly thank Demetra 
Lambros, who is sitting behind me, a woman lawyer on my staff who 
worked with Representative Conyers' staff to write this legislation, 
for the effort she has made and for calling this to my attention. I 
also thank Senator Hatch, who has always been supportive and very 
involved in this, and his staff, and Congressman Conyers, the ranking 
member of the House Judiciary Committee.
  I am confident if every Member--this is presumptuous for me to say, 
Mr. President--but as every Member of the Senate becomes aware of what 
this does, I cannot imagine there is anyone here or anyone in the House 
who will not support it.
  I thank the Chair. I realize the hour is late. I thank the Chair for 
indulging me. Tomorrow, hopefully, we will be in a position to bring 
this legislation up and pass it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.

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