III. THE DISTRICT COURT DECISION IN THIS CASE DENIES EQUAL PROTECTION OF THE LAWS TO WOMEN THREATENED WITH SEXUAL VIOLENCE.

The Fourteenth Amendment requires the laws to protect all persons equally. U.S. Const., Amend. XIV §1. Laws designed for public security may not be differentially enforced: "Though the law itself be fair on its face...yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically [to discriminate], the denial of equal justice is still within the prohibition of the Constitution." Yick Wo v. Hopkins, 118 U.S. 356, 373-374 (1886)(emphasis added). It is axiomatic that crimes against some may not systematically go unpunished while crimes against others are punished.

After the Civil War, the law notoriously refused to protect African Americans from random and organized violence, much of it private. Some Blacks were horribly maimed and killed, and the community lived under intimidation and threats of physical violence because of a condition of birth. Whippings and lynchings went unredressed, C. Woodson and C. Wesley, The Negro in Our History 394 (1922), as white perpetrators had "little to fear from those who administered the southern legal system." M. Belknap, Federal Law and the Southern Order 8-9 (1987). "Combinations, darker than the night that hides them...have gone unwhipped of justice. Immunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress." Monroe v. Pape, 365 U.S. 167, 175 (1961) (Douglas,J.)(quoting Mr. Lowe of Kansas). This violated Black citizens equality rights.

Faced with waves of private violence, some law enforcement agencies could not cope; others did not try; some participated in the violence. Laws to protect the civil rights of Black people from private violence were judicially nullified by excessively narrow interpretation. See, e.g., Collins v. Hardyman, 341 U.S. 651 (1951). See also U.S. v. Cruikshank, 92 U.S. 542 (1875); U.S. v. Harris, 106 U.S. 629 (1882) In the result, violence against African Americans was effectively sanctioned by law. Not until Screws v. U.S., 325 U.S. 91 (1945) did courts slowly begin to dismantle the barriers they had created to the federal criminal prosecution of private citizens and state officials charged with violating the civil rights of Blacks for acts that should have been prosecuted under existing criminal laws in the first place.

A similarly aggressive indifference, differently institutionalized, has traditionally characterized the administration of the laws against violence against women. Victims of rape have too often been treated as deserving what they got. Susan Estrich, "Rape," 95 Yale L. J. 1087, 1092-93 (1986). The English common law defined type, severity, and timing of permissible wife-beating. B. Finesmith, "Police Response to Battered Women: Critique and Proposals for Reform," 14 Seton Hall L. Rev. 74, 79 (1983) "[I]n reality, wife beating is still condoned, if not approved, by some of those charged with protecting its victims." Bruno v. Codd, 396 N.Y.S. 2d 974, 975-976, 90 Misc. 2d 1047 (1977).

Women, the data reveal, live under seige, with aggression, including sexual aggression, expectable from strangers and intimates alike. Senate Judiciary Committee, Hearings on Legislation to Reduce the Growing Problem of Violent Crime Against Women, August 29 and December 11, 1990 (USGPO, 1991). Women, on the basis of a condition of birth, are maimed and killed, raped and threatened, and many live in terror. Id. Government is overwhelmed, looks the other way, or sometimes participates. Mary M. v. City of Los Angeles, 814 P.2d 1341 (Cal.1991)(woman raped by police); White v. County of Orange, 166 Cal. App. 3d 566, 212 Cal. Rptr. 493 (1985)(woman detained for hours by deputy sheriff who repeatedly threatened to rape and kill her); York v. Story, 324 F.2d 450(9th Cir.), cert. denied 376 U.S. 939 (1964)(police photograph and circulate nude pictures"in indecent positions" of woman assault victim made to undress under protest, held to violate Fourteenth Amendment due process).

Courts in our time have begun to recognize that women's rights are denied not only by facial discrimination, Reed v. Reed, 404 U.S. 71 (1971), which is comparatively rare and directly affects few, but by operation of law, which is ubiquitous and widely damaging. Statutes have been invalidated that withhold access to justice for rape in marriage, People v.Liberta, 64 N.Y. 2d 152, 474 N.E.2d 567 (1984),and administrative practices have been enjoined that withhold police and court protection from women because their assaults are domestic, Bruno, 396 N.Y.S.2d 1974. At the same time, existing civil rights laws against sex discrimination have been expanded by courts to provide remedies for private sexual aggression. Meritor Savings Bank v. Vinson, 477 U.S. 57(1986)(sexual harassment recognized as sex discrimination under Title VII). And judicial interpretations of the constitutional sex equality mandate have begun to address the legal system's active collaboration in men's violence against women. In Thurman v. City of Torrington, 595 F. Supp. 1521 (D. Conn. l984), for example, police protection was found differentially withheld from women victims assaulted by male intimates, denying such women equal protection of the laws on the basis of gender. Thurman, 595 F. Supp., at 1528 n. 1. The District Court decision below is out of step with these developments.

The 1994 passage of the Violence Against Women Act, 108 Stat. 1796 (1994), is a sign of progress: sex-based violence such as rape and domestic battering is legislatively recognized as sex-based discrimination and considered serious enough to be granted federal jurisdiction. It is also a sign of despair: the criminal justice system has so abdicated women that a new legal remedy in their own hands was systemically required. If existing criminal laws had protected victims of crime equally, this new provision, like so many civil rights laws passed by Congresses before it, would not have been necessary.

Overwhelmingly, it is women who, because they are women, are subjected to sexual threats and threats through pornography. It therefore endangers women, because they are women, to rule--as the District Court below in effect ruled--that because threats are sexual, they cannot be prosecuted as threats. If the law of threat can be interpreted so as, in practice and as applied, not to cover sexual threats, that law discriminates against women just as surely as if it excluded their injuries on its face. Judicially interpreting a criminal law so that it cannot work for crimes against one gender group, so that the law is blind to harms to which one gender group is differentially subject, institutionalizes second class citizenship, violating the Fourteenth Amendment as clearly as if the same result were legislated.

The First Amendment has permitted threats against men to be criminalized even if "subtle," Gilbert, 884 F.2d at 457, "gibberish," Kerna, 1994 U.S. App. LEXIS 17078, *13, "ludicrous and made in jest," Mitchell, 812 F.2d at 1256, or "outlandish, illogical," Kerna, 1994 U.S. App. LEXIS 17078, *15. Yet the District Court in Baker would hold that the same First Amendment prohibits criminalizing threats against women when they are sexual or pornographic. If the sexual threat made against a man in Shoulberg, "If he is fucking I got a trick for his ass," 895 F.2d at 882, "implied he would use violence" 895 F.2d at 886, and can be prosecuted as a threat, so can the transmissions at bar. If they cannot, a double standard is at work. If "threats or veiled threats" on signs in a political protest can be prosecuted consistent with the First Amendment, Madsen, 114 S. Ct. at 2516, threats through pornography directed at named individual women can go to a jury. A contrary result is inegalitarian.

Treating threats of sexual violence against women differently, and less seriously, than other threats patently treats women less favorably than other citizens. To render 18 U.S.C. §875(c) incapable of criminalizing the threats at bar denies women threatened with sexual crime equal access to the protections of the criminal justice system. This the Fourteenth Amendment prohibits. Such a sex-based discrimination is not substantially related to any important governmental objective, Craig v. Boren, 429 U.S. 190 (1976). Indeed, it undermines the government's pursuit of public safety and crime prevention, state interests of paramount importance, and its pursuit of sex equality, a goal which raises "compelling state interests." Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984).

The City of Torrington was notified of the "repeated threats of violence," Thurman, 595 F. Supp. at 1525, threats of death and maiming, made against Tracy Thurman by her husband Charles. The City did nothing. Then he nearly killed her by stabbing her with a knife and left her a paraplegic for life. The City was found guilty of violating her rights to equal protection of the laws and she was awarded 2.3 million dollars. If, prior to the attempted murder, Charles Thurman had been arrested for his threats, would the Baker court's First Amendment stand against it? If so, what can stop him before he tries to kill her? If he had threatened to rape her, should the legal result be different?

In Baker, the federal government was notified of the threats of death and maiming against Jane Doe. If the government did nothing, and Jake Baker did what he said, would the government be exposed? This time, the federal prosecutors acted, where so many have not. They applied existing legal standards that fit the facts as if women count as citizens, without stereotyping them as sex objects freely available for threat of violation--threats that the perpetrators also sexually enjoyed. The United States proceeded as if a threat of injury to a woman, albeit sexual, is every bit as threatening as a threat of injury to a man, even if that man is the President of the United States. This Court should not permit effective nullification for women only of the law of threat by countenancing the result and decision below, in which an "an evil eye and an unequal hand," Yick Wo, 118 U.S. at 373-374 are evident.

For the foregoing reasons, the decision of the District Court granting defendant's motion to quash the indictment against Jake Baker should be reversed, and the case remanded for trial before a jury on all counts.

Dated: November 29, 1995

Respectfully submitted,

(signed)
CATHARINE A. MacKINNON
[Address and Phone removed]
ATTORNEY FOR AMICI CURIAE

It is hereby certified that, on November 29,1995, service of the Brief Amicus Curiae for the Victim Jane Doe and The National Coalition of Sexual Assault in Support of the United States was made by sending five copies of this Brief, with Appendices, together with Motion to File Brief Amicus Curiae and Motion to File Out of Time and supporting Affidavit, to the Sixth Circuit Court of Appeals by Federal Express, to arrive the following day.

Service of the same was made upon opposing counsel by hand delivery of one copy thereof on November 29, 1995, and one copy deposited in an envelope in the United States first class mail to:

Douglas R. Mullkoff,Esq.
[Address removed]

Service of the same was made upon the United States Attorney by depositing one copy thereof in an envelope and placing it in the United States first class mail, to:

Saul A. Green, U.S. Attorney
Christopher P. Yates, Assistant U.S. Attorney
[Address removed]

(signed)
RITA RENDELL, Secretary
Office of Catharine A. MacKinnon