Unborn Victims of Violence Act of 2004 - Part VI

Part VI

UNBORN VICTIMS OF VIOLENCE ACT OF 2004

As chairman of the Subcommittee on Employment, Safety, and Training, I am compelled to discuss the implications of such an unprecedented and misguided expansion of current law.

Let me begin by saying I share Senator Murray's concern about domestic violence. Domestic violence shatters families and with it the very foundation of our society. My opposition to the amendment is not based on a lack of concern for victims of domestic violence. A good title does not make a good amendment. I am opposing this amendment because it is an unprecedented expansion of workplace laws without any consideration for the committee of jurisdiction.
This amendment greatly expands workplace laws without any hearings or Committee consideration. The amendment creates a new set of laws requiring businesses-including small businesses-to provide employees with additional leave and special accommodation. However, the amendment has not been reviewed by the Committee of jurisdiction. It creates new workplace requirements without considering the impact of its implementation or its relation with existing laws. The process is flawed and irresponsible.

The amendment creates broad, vague workplace requirements that conflict with existing law and invite litigation. It creates new rights to leave and prohibitions against employment discrimination against domestic violence victims that are inconsistent with current employment laws, including the Family and Medical Leave Act (the FMLA), the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and the Civil Rights Act of 1991. The nondiscrimination provisions extend to "perceived" victims of domestic violence who have never been subjected to domestic violence. The Murray amendment defines a victim of domestic or sexual violence to include family members of domestic or sexual violence victims. Under this definition, abusers such as parents who molested their own children would be protected under the Murray Amendment.

This amendment creates unprecedented Federal workplace regulation on small business. Congress has recognized the burden of workplace regulation on small businesses with limited resources. The FMLA exempts businesses with fewer than 50 employees from coverage. The Murray amendment would cover all employers with 15 or more employees.
The lack of administrative alternatives increases litigation and burdens courts. Unlike existing federal anti-discrimination laws, the Murray amendment allows claimants to bypass the Equal Employment Opportunity Commission, EEOC, and file a private suit directly in court. This undermines the efficacy of the EEOC and this amendment.

These are unlimited damages for employment discrimination caused by someone else. Unlike existing Federal laws which cap damages for employment discrimination, the Murray Amendment allows unlimited compensatory damages, and punitive damages of up to 300 percent of actual damages. Why should a victim of domestic violence discrimination be able to recover greater damages than a victim of race or disability discrimination?

The amendment imposes an unfunded Federal mandate on State unemployment compensation. The Murray Amendment imposes a Federal Mandate to cover domestic violence under state unemployment compensation programs. This requires states to pay the tab, but gives them no voice in whether or now to do so. Employers in States that fail to comply must pay huge penalties in the form of higher Federal Unemployment tax. Unemployment compensation is-and should remain-a state issue.
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With vague, broad language that conflicts with current employment law, lawyers-not domestic violence victims-will be the biggest winners under the Murray amendment.

The Senator from Washington is the ranking Member of the Subcommittee on Employment, Safety, and Training. Many of the provisions in this amendment fall within that subcommittee's jurisdiction. The rest of them fall under the jurisdiction of the Senator from Utah, who chairs the Judiciary Committee, who just spoke from that perspective.
The first time we are considering this major expansion of Federal employment law is on the Senate floor on a bill totally unrelated to employment and, I have to add, unamendable. There is an agreement between the two sides there would be two amendments today, and those amendments would not be amendable, nor would there be allowed any intervening action. What we have is what we get. I have to say, no one is going to want to get that.

The overly broad and vague provisions of this amendment conflict with and undermine existing employment laws. The committee process is so important because that is where we carefully evaluate in a much less formal situation the impact of pending legislation and its relation with current law.

Let me explain a little bit more how that committee process works. Besides the hearing part where we get to bring panels of experts before us and ask them extensive questions so we have a better understanding of what is going on and to give them an opportunity to speak on the provisions that are before us, we also have what we call a committee markup.

The committee markup is where most of the work for this Chamber is done. It is a much smaller group; it is a much more informal group. People turn in their amendments ahead of time so that they can be reviewed by all. Even on the day of the markup people can get together and work on amendments to get agreement. It is fairly successful. The amendment process usually results in a bill coming from committee with about 80-percent agreement.

The unfortunate thing for this country is that the bill comes to the floor, and what we usually debate is the 20 percent we do not agree on. That is not the case on this particular item. This has not even been discussed in committee, so the 80-percent agreement is not there. The ability to work out issues with some flexibility is not there. I am sure there are provisions in this bill that are written in a way that the author probably wishes were different. I certainly wish they were different.

The first bill I ever did in the Wyoming legislature was only a three-sentence bill when I took it to the legislature. In committee, it got two amendments. On the floor, it got three amendments. When it went to the Senate side, it did not get any in committee but it got one on the floor. What I learned through that process was that every step of that made an important difference. It turned out to be a far better bill because all of the opinions of all of the people serving in that body were injected and they could see a lot more different directions than any one member of that body.

That is how we work it here. We work it so that the 100 Senators have an opportunity to take something as complicated as this and make changes to it. Then the House looks at the same thing. Again, there are a lot more opinions that get into the bill.

The committee process is so important because that is when we carefully evaluate the impact of pending legislation and its relationship to current law. We did not do that here. What we have here is a 158-page proposal which is not related to the underlying bill, and that proposal rewrites employment law without the benefit of hearings or committee consideration. That process is flawed and irresponsible.

So, more specifically, what will this amendment do? It creates a new Federal law that mandates employers, including small employers, to give up to 30 days of leave to an employee to address domestic or sexual violence. However, this proposal ignores important requirements that Congress applied to leave taken under the Family and Medical Leave Act, FMLA.

Let me highlight a few of the differences between FMLA and the Murray amendment.

The Family and Medical Leave Act applies to employers with 50 or more employees. The Murray amendment applies to employers with 15-that is 15, instead of 50-employees. Most small businesses do not have the processes or personnel necessary to begin complying with this new leave requirement.

In the past, Congress has recognized the burden of workplace regulations on small businesses. However, this amendment would impose workplace regulations on small businesses never before covered by Federal employment laws. This amendment would undermine the small business exemption Congress included in the Family and Medical Leave Act.

The Family and Medical Leave Act imposes a length-of-service requirement for employees to be eligible for leave. The Murray amendment has no service requirement for an employee to be eligible. Under this amendment, a worker is presumably eligible for leave on the first day of work.

Under the Family and Medical Leave Act, employers can require a health provider to certify the need for leave. This amendment invites misuse and abuse because there is no third-party verification-no third-party veri fica tion-for the leave to be required. So if a person says they were abused, that is good enough to take time off.

The Murray amendment does not amend the Family and Medical Leave Act itself; instead, it gives more capability to someone, under this amendment, than they would get under the regular law. It is a backdoor effort to expand Federal leave law at the expense of equity and clarity.

This amendment prohibits employers from discriminating against an individual who is "perceived" to be a victim-that is interesting wording, "perceived" to be a victim-of domestic or sexual violence. Individuals with absolutely no legitimate claims of domestic or sexual violence would have a cause of action under this vague and broad standard.

How are employers and courts to determine who a "perceived" victim is? Whatever the intent of this legislation, the result will be excessive confusion and, worse yet, excessive litigation. The amendment defines a "victim of domestic or sexual violence" to include-and I am sure the Senator from Alabama, who is on this committee that has not had a hearing on it yet, who is on the floor, will make some comments on this-an "individual whose family or household member has been a victim of domestic or sexual violence."

Under this definition, family-member abusers-such as parents who molested their own children-would be protected under this poorly drafted legislation. People could get time off for bad behavior.

There is a good reason for this process we have of hearings, committee markup, debate on the floor, with amendments, and then the discussion between the two bodies.

The problems with the amendment extend beyond poor drafting. This amendment is inconsistent with the remedy and enforcement provisions of existing employment discrimination laws. Under title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, Congress gave the Equal Employment Opportunity Commission the role of investigating and enforcing complaints of employment discrimination. These existing laws require a claimant to first file a complaint with the Equal Employment Opportunity Commission before being able to file a private suit in court.

The Equal Employment Opportunity Commission plays a vital role in employment nondiscrimination laws. The Commission's mediation activities expedite resolution of cases and reduce the backlog of employment cases in our courts. This amendment would allow victims of domestic violence discrimination to bypass the administrative process and file suit in court. Allowing claimants to bypass the Equal Employment Opportunity Commission undermines the efficiency of the agency and the legislation.
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This amendment disregards the remedy structure of other Federal employment discrimination laws. Existing laws limit available damages. For example, consequential and punitive damages for claims under title VII of the Americans with Disabilities Act are progressive with the size of the employer and capped at $300,000. This amendment provides unlimited compensatory damages and punitive damages up to three times the amount of the actual damages.

Why should a victim of domestic violence discrimination be able to circumvent the complaint process that victims of race or disability discrimination must follow? Why should a victim of domestic violence discrimination be able to recover greater damages than victims of race or disability discrimination? There is no justification for this unequal treatment. We must guard against enacting legislation that, in an effort to protect individuals from one type of discrimination, creates inequities for those who have been subjected to another type of discrimination.

I find the leave and discrimination provisions of this amendment very troubling. I find the unemployment compensation provisions to be misguided as well. The amendment requires States to provide unemployment compensation benefits to individuals who are separated from employment as a result of domestic violence. That has always been and is a State decision. Under the amendment, that is taken away from the States. States can decide and, in many instances, have decided. Individuals would receive unemployment compensation if they leave employment because of a reasonable fear of domestic violence, a desire to relocate to avoid domestic violence, or to obtain physical or psychological treatment.

Eligibility for unemployment compensation is and should continue to be a State-not a Federal-decision. The terms of unemployment compensation are decided on a State-by-State basis. States have the authority to extend unemployment compensation to victims of domestic violence. A number of States have already done so. This amendment imposes a Federal mandate and higher costs on State unemployment compensation programs. The Federal mandate will impose huge penalties on employers in States that fail to comply. It is estimated that the Federal unemployment tax on all employers in the State will be increased from $56 per worker to $434 per worker. How many jobs will that cost?

A Federal mandate to cover domestic violence under State unemployment compensation programs requires States to pay the tab. However, we give the States no voice in whether or how to do so. It is unfair and irresponsible for Washington to impose this burden-and, in fact, against the law-on already burdened State unemployment programs and employers.

Domestic violence is a serious problem that devastates lives and shatters families. However, we cannot allow a misguided attempt-with no hearings-to address this problem and create new problems that will impose unfair burdens on States and employers, particularly small businesses.

When I am back in Wyoming, I like to hold town meetings so I can find out what is on the minds of my constituents. At each town meeting, there is usually someone in attendance who is quite concerned about Government regulations. I am often told to rein big government in, keep the rules and regulations simple and responsive, and make sure they make sense.

This amendment takes the opposite approach. It is a classic example of one size fits all that doesn't fit outside the beltway.

The amendment ignores the careful consideration Congress has given to existing employment laws with vague and broad language that conflicts with current Federal employment law. Lawyers, not domestic violence victims, will be the big winners in this one.

I will close by sharing a letter from a survivor of domestic violence who divorced her first husband in 1978 because of abuse and, in addition, is an employment attorney with 23 years of experience specializing in employment law.

I ask unanimous consent to print the letter in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

OVERLAND PARK, KS,
March 22, 2204.
Re Murray amendment S.A. 2859 (Domestic Violence Prevention Act) to H.R. 1997 (Unborn Victims of Violence Act of 2004).

Senator SAM BROWNBACK,
Hart Senate Office Building,
Washington, DC.

DEAR SENATOR BROWNBACK: I am writing to ask that you oppose S.A. 2859 (Domestic Violence Prevention Act), proposed by Senator Murray as an amendment to H.R. 1997.

I have reviewed the Murray Amendment from what I believe is a rather unique perspective. I am a survivor of domestic violence and divorced my first husband in 1978 because of the abuse. I have also served on the Board of Directors for two organizations devoted to the prevention of domestic violence (see attached Exhibit "A" for more information). In addition, I am an employment attorney with almost 23 years of experience specializing in employment law.

As a result of my background and experiences, I am sensitive to the victims' perspective, but also sensitive to the employers' perspective. To say the least, the path from victim status to survivor status is not easy, and it is beneficial for victims to have resources available to help them. At the same time, I am aware of the challenges faced by employers in complying with new employment laws, especially laws with good intent but which are poorly written and which have not been given proper thought.

Although I very much appreciate the intent of the Murray Amendment, I cannot support it, particularly Subtitle A (Entitlement to Emergency Leave for Addressing Domestic and Sexual Violence). Its intent may be laudable, but it will have unintended consequences that could easily be avoided if a more thoughtful approach to such a law were to be taken.

I have a number of concerns about Subtitle A of the Murray Amendment. I have summarized my primary concerns below (with a more detailed explanation attached as Exhibit "B"):
1. Potential for Misuse and Manipulation. Subtitle A has many loopholes that will allow it to be misused and manipulated by employees and their abusers. I have identified five different ways that Subtitle A can be easily misused or manipulated (see Exhibit "B"). The potential for misuse and manipulation is directly related to the fact that an employee merely has to sign a self-serving certification stating that he/she is a victim of domestic violence. No verification is required, nor are any mechanisms included in Subtitle A to enable an employer to question the veracity of the certification or to prevent fraud.
2. Perpetuation of Domestic Violence. One of the outcomes of Subtitle A will be the perpetuation of domestic violence in some situations. This can occur in two ways. First, an abuser will be able to force a victim, under threat of violence, to take domestic violence leave from work whenever the abuser wants the victim to take time off from work for reasons unrelated to the proposed law's stated purposes. Second, a victim who is not making any effort to remove himself/herself from a domestic violence situation can simply take time off work after suffering abuse to "recover" from injuries, even if he/she seeks no medical or other help. In either situation, domestic violence leave will become a method of merely "managing" or "tolerating" abuse and threats of abuse. It will enable abuse instead of helping a victim become a survivor.
3. Adequate Time Off From Work Already Available. I seriously question the necessity of this law. I believe that most employees already have adequate time off work programs available to them in the event they need domestic violence leave. Those time off programs include family and medical leave under the Family and Medical Leave Act (FMLA) and its state counterparts, leave of absence or other accommodations under the Americans with Disabilities Act (ADA) and its state counterparts, employers' existing vacation and sick day policies, and employers' existing attendance policies. The proponents of Subtitle A have not provided any data to verify that employers' existing time off programs are inadequate.
4. Lack of Due Process for Employers. Considering that Subtitle A requires employers to provide a new benefit to employees, I find it appalling that employers have had no opportunity to provide input or be heard on this proposed law. Basic principles of fairness would seem to suggest that employers be given due process (rather than be dictated to) on an issue of this importance. I have no doubt that employers could provide very useful comments and suggestions.

Subtitle A of the Murray Amendment raises many questions that obviously have not been given much, if any, thought.

This letter is by no means to be read as including all of my concerns about Subtitle A. I have others, but have tried to focus on the major ones in this letter.

For the sake of sound policy for victims of domestic violence like myself, for other employees who will have to absorb their workload when they are absent due to domestic violence issues, and for employers who will have to comply with this proposed law, I urge you to oppose Senator Murray's Amendment S.A. 2859. Thank you for your thoughtful consideration of my comments.
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Sincerely,

SUE KENNEDY WILLMAN.

Mr. ENZI. She writes:
Although I very much appreciate the intent of the Murray amendment, I cannot support it.

She gives an explanation and lists four very specific reasons: One, the potential for misuse and manipulation; two, the perpetuation of domestic violence; three, adequate time off from work already available; and four, the lack of due process for employers.

This is a person who has been there. This is a person who has been abused. She did find a way out. And incidentally, in her credentials, she has devoted most of her life to helping battered women in the Kansas City metro area and has an astounding record of doing that and is very concerned about us going this way.

Again, without a hearing, I am concerned, too. I urge my colleagues to oppose this amendment, and I yield the floor.

The PRESIDING OFFICER. The Senator from Washington.

Mrs. MURRAY. Mr. President, I listened carefully to the Senators from Ohio and Utah and Wyoming express their concerns about the amendment as we have written it. I know the underlying bill was not marked up in committee either, so I find that argument hard to believe.

I hear their argument. I understand they are going to defeat this amendment. I want to move forward on the issue of domestic violence. It is extremely important that when we are talking about the abuse of women, that we do something to prevent it. I want to make sure we do take a step forward.

Therefore, I ask unanimous consent to send a modified amendment to the desk.

Mr. DeWINE. I object.

The PRESIDING OFFICER. Objection is heard.

Mrs. MURRAY. Mr. President, that is frustrating. I listened to the Senators from the other side say they want to do something about prevention. I hear them saying they have objection to specific concerns. I am willing to make a modification to my amendment to move it forward. It is fairly clear the Republican leadership simply doesn't want to engage in a serious debate to address the cycle of violence. That is unfortunate. We could take steps forward to change lives for women who have been victims of abuse.

I yield 15 minutes to the Senator from Louisiana, and I ask unanimous consent that she be listed as a cosponsor of the amendment.

The PRESIDING OFFICER. Without objection, it is so ordered.

The Senator from Louisiana is recognized for 15 minutes.

Ms. LANDRIEU. Mr. President, I come to the floor to support my colleague from the State of Washington and her comprehensive amendment on this important bill and discussion this afternoon. I thank her for the extraordinary work she has done in the area of domestic violence, not just this year but in every year she has been a Member of this body, over a long period of time, her intense interest and advocacy for women and for children and for families and for communities which her effort shows today.

I have a great deal of respect for the Senator from Ohio. He and I usually don't find ourselves on opposite sides, so it is unusual that I would be here supporting an amendment and the Senator from Ohio, Mr. DeWine, would be opposing it. I understand there are a few-not many-good reasons that people could raise today against this amendment. But I will tell you what one of the reasons is not that I have heard in this Chamber and I have seen sent out by such groups as the U.S. Chamber of Commerce and the U.S. Right to Life organization, two organizations that oppose Senator Murray's amendment. They have some legitimate arguments in this document about some of the details of the amendment, but they also go so far as to say that one of the reasons we should not support this amendment is because it is irrelevant to the underlying subject.

Irrelevant? Domestic violence is irrelevant to the deaths of pregnant women, when experts across the board, Republican and Democratic, people who have been prosecutors before-go look at any study-will tell you the majority of women who are killed in the latter terms of their pregnancies are killed not by strangers, not by people who just happen on to their house, but they are killed by the hands of their husbands or the fathers of their children?

I have to sit here and read a vote alert from the Chamber of Commerce, supposedly representing women who own businesses, supposedly representing women, many of whom are business owners, who perhaps have been victims of domestic violence, and not a word in this memo about "so sorry that you were beaten so badly that you and your unborn died," nothing. They go on to say this is an inappropriate vehicle for this amendment because the issues involved are "completely unrelated."

I hope my Chamber of Commerce in Louisiana did not approve this document because I don't believe businesses in Louisiana think these subjects are unrelated, since one of the recent things that just happened in my State was a woman shows up to go to work about 2 years ago in Jefferson Parish, gets out of her car, and in front of about 50 people, going through the revolving doors to get into her place of business, her husband comes up to her, takes out a revolver, sticks it in her face and blows her head off. Whether she was pregnant or not, I can't recall. But to say that it is irrelevant to the subject that we are debating is an insult to many people.

Let me clarify one other point. People come to this floor and act like the Senator from Washington and the cosponsor, who was Senator Wellstone, before his death-he did a magnificent job on this subject the years he represented his State in the Senate. In his memory, I will say this: He worked like a Trojan on this subject. This bill was introduced in the 106th Congress, the 107th Congress, and the 108th Congress. But this bill, although there has been one hearing, pushed mostly by Democrats, has never received a markup, not in the 106th, 107th, and not in the 108th. Evidently, there is not enough Republican leadership thought that this is an important subject to discuss.

Those of us who came to the floor today to debate this issue to try to protect people from murder-women and, yes, their unborn children-wonder what we have actually accomplished today because with the underlying bill, the only way you can prosecute people is if the murder actually occurs on Federal property.

The bill we are going to pass today is not nearly as good as the 21 or 31 statutes that are already on the books that are legitimate and genuine efforts. When we asked to have some help for the victims of domestic violence, who are women and their children, we get all kinds of "can't do it," "too complicated," "too expensive." Then I have to read the Chamber of Commerce business alert that says the whole subject is not relevant.

I want to read from ABCNEWS.com for the RECORD, "Expectant Victim," April 25.

On Monday, police found the remains of 20-year-old April Renee Greer, whose dismembered body was found in a trash can that had washed into a farmer's field. She was 8½ months pregnant when she was reported missing on March 8.

Experts and women's advocates are not surprised to find that pregnant women are especially prone to violent deaths. In many cases, pregnant women are killed by their husbands or significant others.

"Most pregnant women are killed by people they know, like husbands or boy friends". . . .

Think of that. It is one thing to get attacked in a dark alley by somebody you don't know; you are coming home later than you should be. It is another thing to be beaten to death by someone who is supposed to love you. It is very terrible for a child to sit there and watch their father, in many cases, beat up their mother in front of them. It breaks more than their spirit. It crushes their heart and destroys their life.

You would think that somebody on the other side of the aisle would think this was significant and relevant and would want to do something about it and put some money in this bill to do something about it. But, no, we don't have time for it, we can't have a hearing on it, and it is too complicated for anybody to understand.
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I don't think this is complicated. Let me go on to read this:

"Sometimes it depends on how far along the woman is in the pregnancy," she said.

This is Pat Brown, a criminal profiler and CEO of the Sexual Homicide Exchange. I am sorry, I don't know what State.

"Sometimes it depends on how far along the woman is in the pregnancy," she said. "If it's a serial killer, they normally go after women who may be three months pregnant and are not showing very much. With serial killers, the women are tiny, easy to handle, not too big-someone they can easily overcome. They go after a 'neat package,' something that is desirable where they could get something big.

"With husbands or boyfriends, women tend to be eight months pregnant-they're there and the baby is coming," Brown continued. "They can see the woman and unborn child as something that is in the way, keeps them from living the lifestyle they want."

And we come to the floor and ask for a little help for domestic or sexual violence, maybe a little time off of work to get her situation in order because her husband is working and he also happens to be the one beating her. She needs 30 days to get a job. They say: No, we cannot give you 30 days. We ask for 30 days of unpaid leave, and the Chamber of Commerce goes wild saying they can't afford it-and they don't have to pay for it.

We talk about increasing grants to local communities to help them provide shelters, since we have not seen a significant increase in shelters, but that is too complicated.

So I ask, What have we done today? Are we going to save any lives, whether it is the life of the unborn, or whether it is the life of a woman? No, because there is no money in this for prevention. We, obviously, want to just prosecute people in a very small place, on Federal land, maybe just to make a point. I came to the Senate to do more than just make a point, and I think the Senator from Washington came here to make more than a point. We came here to make a difference. This afternoon, there is no difference being made and it is a shame.

In conclusion, I want to say something about the Right to Life Association. I have worked with them on cloning. I don't support human cloning. Some people do; I don't. I have worked with them. When they came to my office yesterday to tell me they were sorry that they could not support the Murray amendment because it would "mess up the bill"-and they need a clean bill-I would like to think they need an effective bill. But they just need a clean bill. For what, I am not sure. Maybe for television commercials.

I think we need an effective bill. I would like to prevent these deaths of unborn children, of women, give prevention on the front end, and then go ahead and prosecute people. In my State, that is what we do because we already have a law on the books. So I am happy that Louisiana is already there. The Right to Life Association said they could not support help for domestic violence victims because they, again, agreed with the Chamber of Commerce that it is not relevant.

I hope people who support the Right to Life Association might write them an e-mail or something today and explain to them that regardless of how you feel, whether you are pro-choice or pro-life, clearly, this is relevant to the underlying bill.

With that, I yield the floor. I support the Murray amendment.

The PRESIDING OFFICER. The Senator from Ohio is recognized.

Mr. DeWINE. Mr. President, before I yield to my friend and colleague from Alabama, let me say that I understand what my colleague from Louisiana has said and what my colleague from Washington State has said. I will reiterate what I said a few minutes ago.

The reality of the way this place works, the way the House works, is that whatever the merits of this amendment, the passage of this amendment will effectively mean, that the underlying bill will simply die. The only thing to prevent the underlying bill from going to the White House and being signed by the President of the United States is the Murray amendment. That is what the facts are.

If the Murray amendment is attached to this bill, we can kiss this bill goodbye. That is a fact. I yield to my colleague from Alabama.

The PRESIDING OFFICER. The Senator from Alabama is recognized.

Mr. SESSIONS. Mr. President, I thank the Senator from Ohio for his leadership on this issue. He has taken the issue and considered it thoughtfully and prepared a seven-page piece of legislation that I believe, as a former prosecutor, stands the test of careful draftsmanship and is worthy of passage. I believe we have a majority in the Senate prepared to pass this legislation. But it is threatened by this amendment. The Senator is correct that if this amendment passes, this bill will not become law. So a vote for this amendment is a vote against the underlying legislation.

I further say the amendment-the 158-page amendment-is not so carefully drafted, has quite a number of problems, and does not deal effectively with the issue that the Senator seeks to promote.

The day before yesterday, in my office, I met with a group of people from one of America's great corporations, an international corporation. I asked the human resources officer-and I asked them all-how things were going out there and what can we do to help, what problems do they have. The human resources officer said: The one thing causing us the most grief is the Family Leave Act. For a lot of different reasons, complex reasons, this act is subject to abuse. We certainly believe and support a mother being home with a young child. We support the purposes of the act, but there are problems with it. We would like for you to look at it and see.

That was shared with me the other day. It was totally unrelated to this 158-page amendment that has not undergone careful scrutiny, and I believe goes much further and provides benefits that far exceed what is under the current Family Leave Act, which has problems with it.

We need to, as Members, be careful what we pass, what we mandate on private entities, and what we tell them they must do. We should do so in a way that furthers the public policy we want to further, which is to help families who need leave for family emergencies. We want to do that, and the act does it in many different ways. But it is not perfect. This amendment is even less perfect.

Let me show you a couple things we discovered in a brief reading of the Murray amendment. It says:

The term "victim of domestic or sexual violence" includes an individual whose family or household member has been a victim of domestic or sexual violence.

Clearly, I think I can say, as a former prosecutor, that would include the perpetrator. That would include the wrongdoer. So now is the wrongdoer going to be able to ask for time off? The law would mandate it, I suspect. Some say that would not happen. But I am telling you, people use the law as it is written to further their agendas when they want to.

Maybe he had to go to court to defend himself, and he is going to claim time off for that. I bet you his lawyer would say he is entitled to time off.

Here is another one:
The term "employee" means any person employed by an employer on a full or part-time basis, for a fixed time period, on a temporary basis, pursuant to a detail, or as an independent contractor.

That is not even in the current Federal Leave Act. So we have added this statement. So the businessperson has to take care and provide leave or suffer. I think that is a step to which we ought to give a lot of thought before we put it into law.

Another thing that hit me in talking with this lady the day before yesterday, and talking about problems with the act, is the difficulty of a business in having any proof to ascertain that the person really does need leave. Under the act, after you get one approval, say, for a child's asthma, you never have to present proof again, or even just make a statement that it is so and the businesses are bound by it.

A lot of businesses on a manufacturing basis try to do things well. They have a team that produces a product. When one member of that team unexpectedly or routinely misses, it makes it difficult for them. If they have a legitimate excuse, OK. This says:

An employee may satisfy the certification requirement of paragraph (1) by providing to the employer . . . a sworn statement of the employee.
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That automatically takes care of it-no proof of a doctor's certificate, a lawyer's statement, or anything else. I just point that out.

The hour is late. As a member of the Health, Education, Labor, and Pensions Committee, as Senator Enzi said so eloquently and in detail, these issues need to be given careful thought. Let's don't kill this underlying bill Senator DeWine worked so hard on and has dealt with so many Members of this body to refine language so everybody can agree to it and it will have a majority vote.

Let's don't kill this legislation that is important to protecting those unborn victims of violence in America by tacking on an amendment that is not ready, that has problems with it, on which we have not had hearings and should not be added to this bill, anyway. If it is added to the bill, the bill will be in trouble.

I thank the Chair. I thank Senator DeWine for his leadership. I yield the floor.

Mr. COLEMAN. Mr. President, I had a chance to hear my colleague from Ohio speak in humble terms about the work he did, the commitment he made when he was working in Ohio at the State level and now in the Senate regarding issues of domestic abuse and sexual violence.

I don't know if there is a stronger champion in the Senate than my colleague from Ohio, Senator DeWine, on these issues. I know where his heart is. I know where his passion is.

When I look at the Murray amendment, there are provisions in this amendment I would like to support. There are principles in this amendment on which I would like to work with her and I would like to see happen. I believe-I know my colleague from Ohio feels the same way, and we have to be very candid, we have to be very blunt-that the reality is that the effect of the Murray amendment, if it were to pass, would simply kill the underlying bill.

We have an opportunity to do something today for unborn victims of violence. We have an opportunity to do something. Or we can do what I see going on far too often in this Chamber, and that is to-I don't know whether it is political gamesmanship, I don't know if it is "gotcha" policy, I don't know what it is, but it is not about getting something done. We can get something done today. We can pass a clean Unborn Victims of Violence Act. For those of us who would like to work with my colleague from Washington on some of these important principles, who really want to get something done, let's be honest and let's do it in a form and manner in which we know something will happen.
If this amendment is attached to this bill, this bill dies. Some of the principles I may believe in and want to work on that are in the Murray amendment will go nowhere, and we all know that.

I did not come here to play a game, to participate in endless debates for the sake of debating, to cast votes to be measured on "you are for sexual violence or you are against." That is not what this is about. I got elected on a belief that we could get some things done, and that is hard in this body because it is so easy to kill a bill. It is so easy to tack on an amendment that is so hard to vote against because we are afraid of being accused of being against domestic violence.

I am passionate about dealing with domestic violence. I was a prosecutor in the State of Minnesota and prosecuted some of the early child abuse cases. I was mayor of the city of St. Paul. I thought we did cutting edge things to deal with domestic and sexual violence. I want to do more about domestic and sexual violence while I am here in the Senate, but we are not going to do more about it by voting for the Murray amendment today.

I am going to cast my vote against the Murray amendment, even though I share a belief in some of the principles the good Senator from Washington is trying to raise. I am going to vote against it because I want to get something done, and the one opportunity we have today, I say to my colleagues, to get something done is to pass out of this body a clean Unborn Victims of Violence Act. If we pass this bill and it is signed into law, we have provided protection on the Federal level-by the way, it is similar to what many States do and what we do in the State of Minnesota-for a mom and an unborn baby, such as the Laci and Conner Peterson case. We all know many cases like that.

Again, I appreciate the principles my colleague from Washington is attempting to raise, but I think it is time to be very blunt and very honest. If you want to do something about that issue, this bill is not the place to do it. It will not go forward. It will not further the ends about which we are talking.

We have an opportunity to do something today, and that is to pass the Unborn Victims of Violence Act. I support this bill in a clean manner. Tomorrow I will work with my colleague from Washington and my colleague from Ohio and do what needs to be done to further some of the very laudable goals she desires.

Mr. President, I yield the floor.

Mr. GRAHAM of South Carolina. Mr. President, I thank Senator DeWine for yielding. I will be brief.

We just rejected the idea Roe v. Wade rights should be used by criminals to avoid prosecution for their criminal activity that results in the mother being denied to have a child. Roe v. Wade is an honest, genuine debate that exists in this land. Eighty percent of Americans, when polled, believe if a criminal takes the right to have a child away from a mother, they ought to be prosecuted to the fullest extent of the law for what has happened to that family-damage to the mother and damage to the unborn baby.

Professor Walter Dellinger, a former adviser to President Clinton, said:

. . . although he is a strong advocate for a woman's right to choose abortion, he sees no major problem with fetal-homicide laws. "I don't think they undermine Roe v. Wade," he said. "The legislatures can decide that fetuses are deserving of protection without having to make any judgment that the entity being protected has freestanding constitutional rights. I just think that proposals like this ought to be considered on their own merit."

That is all we are asking. Senator Murray has a very long and complicated amendment that deals with domestic violence, family leave, and other issues. South Carolina, to its shame, for lack of a better word, has one of the leading number of domestic violence cases against women. Our legislature is dealing with that. We can do more here. But this should stand on its own.

Just as we said no to Roe v. Wade being an impediment to prosecuting a criminal who attacks a mother who chooses to have a child, we will not let the criminal benefit from Roe v. Wade, nor should we allow an amendment to destroy a bill whose purpose is to put people in jail who attack pregnant women and do damage to the mother and the child.

No good purpose is served by destroying this bill, even though the underlying problem is very real. This bill should stand on its merits. There are more cases such as this than we would all like to admit. We have a chance to do something about it today. Please vote against Senator Murray's amendment.

MURRAY AMENDMENT TO THE UNBORN VICTIMS OF VIOLENCE ACT

Mr. KENNEDY. Mr. President, I support Senator Murray's amendment, and I want my colleagues to support it too. Violence against women-especially those who are pregnant-is a tragic example of violence in our society, and we need to do all we can to prevent it. Congress is right to address this issue and do more to protect women. But if the administration and Congress are serious about addressing the issue of domestic violence, let us do it effectively, and not turn it into yet another battleground in the debate over abortion.

As domestic violence experts and advocates make clear, the Unborn Victims of Violence Act will do nothing to provide the protection that battered women need to be safe. Instead of protecting women, the bill focuses solely on the fetus and what happens after the crime.

It does nothing to prevent domestic violence, and it punishes only one of the many possible consequences of such violence.
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The harm to women at the hands of their abusers and attackers is not addressed anywhere in this bill. The support and services they need to avoid violence in their homes or escape from it are not addressed. It offers no financial safety net for women who move away from their homes to escape from abusers. It does not address children affected by the abuse. It offers no health care assistance for abused women.

The real purpose of this bill is obviously not to protect and support women who are victims of abuse. Its real purpose is to give new legal rights to the fetus, in a blatant effort to undermine women's rights under the Constitution and Roe v. Wade. In other words, this bill is a threat to women, not a protection for them.

Proponents of this measure also call it the Laci Peterson Act, but this bill would have done nothing to prevent that tragedy. Federal criminal jurisdiction over violent crimes is very limited. The bill would apply only to federal and military crimes. It would have no bearing on the law of California or any other State. Today, 95 percent of all criminal prosecutions, like the prosecution of Laci Peterson's murderer, take place at the State or local level.

A majority of States already have laws that enable prosecutors to file fetal homicide charges. In Massachusetts, the courts have treated the fetus as a separate victim of crime if the developing fetus has reached the stage of viability. That view is consistent with the careful balance between women's rights and fetal rights established by the Supreme Court in Roe v. Wade and reaffirmed in Planned Parenthood v. Casey. This bill completely ignores the Supreme Court's viability standard.

In cases where federal law or military law applies, prosecutors and judges already have ample discretion to impose longer sentences for flagrant crimes committed against vulnerable victims. Courts have regularly held that the Federal Sentencing Guidelines provide for a sentencing enhancement based on the victim's pregnancy or injury to a fetus. The military also makes clear that the pregnancy of the victim can lead to a harsher sentence.

The administration says it wants to prevent violence against women and children. But that priority is not reflected in the budget. The President's budget is cutting or starving key violence-prevention programs.

If Congress genuinely intends to do more to prevent such tragedies, we should be discussing ways to strengthen the
Violence Against Women Act and its funding.

Since its enactment in 1994, violence against women has been reduced by 21 percent, so we are clearly making progress. We are on the right track, and there's no excuse for making a u-turn.

The most urgent priority is the need for additional funds. The services available today to victims of domestic violence come nowhere close to meeting the obvious need. The New England Learning Center for Women in Transition in Greenfield, MA, has to turn away ten families from its shelter for each family it is able to serve. Life-saving services such as hotlines and emergency shelters for battered women are funded $48 million below the level authorized by Congress. Women across the country are not obtaining the help they need when they face these dangers or suffer from them. We can do far more than we are doing to see that women do not suffer from domestic violence.

Senator Murray's amendment will do that. Unlike the underlying bill, her proposal will genuinely help to combat the serious problem of domestic violence in our country.

Incredible as it seems, nearly one-third of all American women report being physically or sexually abused by their husbands or boyfriends at some time in their lives. A shocking 25 percent to 40 percent of all women who are battered are battered when they are pregnant. One study found that 37 percent of all women who visited a hospital emergency room for violence-related injuries were injured by a current or former husband or boyfriend. According to a study published in the Journal of the American Medical Association, murder is actually the leading cause of death among pregnant women.

Over 3 million children are exposed to parental violence in the United States every year. According to a report of the American Psychological Association, a young boy who sees his father abusing his mother is the strongest risk factor for future violent behavior by that child.

Far from preventing such violence, the so-called Unborn Victims of Violence Act will actually prevent victims of abuse from seeking help. Juley Fulcher, Public Policy Director of the National Coalition Against Domestic Violence, testified before the House Subcommittee on the Constitution last July. She said that if a battered woman is financially or emotionally dependent on her batterer, she is less likely to seek medical assistance if she thinks it may result in the criminal prosecution of her batterer.

The underlying bill contains none of these urgently needed protections for battered women. The Murray amendment will give them the security and support they need to leave an abusive relationship before it's too late.

According to a GAO report in 1998, between a quarter and a half of domestic violence victims report that they lost their job at least partly because of domestic violence. A victim who was forced to change her name and Social Security number in order to escape her abuser testified before the Massachusetts Commission on Domestic Violence. She said that when she met with the human resources officers at her workplace to explain why she needed help, she lost her job because they thought her abuser might attack her in the office and be a safety threat to her co-workers too. Victims of domestic violence need job stability. They need economic independence in order to leave their abuser.

Without a viable source of income, victims to often have no way to escape from their abusive relationship.

Senator Murray's amendment helps these victims by guaranteeing them access to emergency leave to obtain medical attention, counseling or other services without fear of losing their job. It provides unemployment compensation. It supports the specific training for medical providers to recognize the signs of abuse, so that frightened women who arrive in the emergency room with tell-tale bruises will know that help is available and will be more likely to reveal and seek the further support they recall is available.

It will ensure that children who witness violence in the home will receive the help they need in order to break the tragic cycle of violence before it consumes the next generation in their families too.

We need laws that genuinely protect women in all of these ways, as Senator Murray's amendment will do. And it does so without undermining a woman's fundamental right to choose.

The Murray amendment provides long and overdue support to victims, employers, public health professionals and families to combat violence against women, and I urge my colleagues to support it.

The PRESIDING OFFICER (Mr. CORNYN). The Senator from Ohio.

Mr. DeWINE. I think we are about ready to close this out.

The PRESIDING OFFICER. The Senator from Washington.

Mrs. MURRAY. Mr. President, if my colleagues on the other side are going to yield back, I will take a couple of minutes to wrap up. I know my colleagues want to get to the vote and final passage, so I will take only a few minutes to end the debate on this amendment.

I have listened carefully to the other side. They raised concerns about the tax credit side of it, and the budget point of order. I asked unanimous consent to send an amendment to the desk to at least move the other parts of the bill forward without the objectionable part and they refused. That says to me that, despite the rhetoric we have heard from the other side, they are not very willing to do something truly about preventing domestic violence.

I have heard my colleagues on the other side of the aisle say the reality of this place is that if this amendment gets added that it will kill the bill. I have been in the Senate almost 12 years and I know the reality of this place is when Members believe in something and want to solve a problem we can move mountains to get it done.

To the millions of women across this country who have been victims of domestic violence, what they are going to see on the Senate floor today is Senators being allowed the opportunity to say whether they are actually going to do something to prevent domestic violence or if Senators are only willing to deal with domestic violence after the woman has died.
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I believe we have the responsibility to do everything we can to prevent domestic violence. I hope the bill Senators are putting forward today never has to be used because we have prevented violence, but the fact is they are going to prevent us today from offering an amendment that would preclude the underlying bill from ever having to be used. I think that is a tragedy. I think it is a tragedy for the Senate. I think it is a tragedy for the country. I certainly think it is a tragedy for women who face abuse every single day.

Two million women are assaulted every year. I introduced this bill with my colleague Senator Paul Wellstone 3 years ago. We introduced it in three consecutive Congresses and the other side has not allowed us to bring it forward. I keep hearing that we have not had hearings on it. Well, we would love to have hearings on it. We would love to move forward, but it is always said that the time is never right. That is certainly something victims of abuse hear far too often.

This bill simply allows women the time to be able to go to court to get a court order to prevent their abuser from tracking them down and killing them. It allows them the ability to make sure that children who have seen domestic violence get the kind of help they need so they do not create a cycle of violence in their lives, which we know happens too often. It makes sure we offer health care to victims of domestic violence. These are victims who are still alive and need help. It makes sure our health care providers screen for domestic violence so we do not end up with murdered victims every single day. Not relevant? The Chamber of Commerce says this is unrelated? How can anyone look in the eye a woman who has been abused by a batterer and tell her we are not going to help you until you are gone, until you die? I think that is a real tragedy. I am sorry my colleagues on the other side see it that way. I don't.

I have heard rhetoric out here from some of my colleagues-and I do want to commend the Senator from Ohio. He has worked on this issue. I do want to work with you. But I find it a tragedy today that, again, the time is not right. That is what women who are victims of domestic violence hear every single day: The time is not right. We can't help you today. That is what we are doing today. I find that a tragedy.

I am going to continue to work on this issue. I know my colleagues on the other side are going to defeat it today. I know they are going to move on. They have other issues they are going to deal with. But this issue is critical. I have been to the shelters; I have looked the women in the eyes; I have promised them I will not forget, and I will not.

This amendment is named after Senator Paul Wellstone. Every one of us here know he and Sheila cared and were adamant that we provide victims of abuse with the ability to get out of their abusive situation. I hope my colleagues will continue to work with us and that the rhetoric we have heard on the other side about working with us is not forgotten when this bill is gone.

The PRESIDING OFFICER. The Senator from Ohio.

Mr. DeWINE. I commend my colleague again for her dedication to this issue, and her passion. But the fact is, as I have said, this bill cannot pass through this method. It will have the unintended effect of killing the underlying bill. That is why I must come to the floor and oppose it.

Let me yield the remainder of my time to my colleague from Oklahoma.

Mr. NICKLES. Mr. President, this bill has a big tax provision that is estimated to cost $18.4 billion. Therefore, a budget point of order does lie against this amendment.

Mr. President, I yield the remainder of our time.

Mr. NICKLES. Mr. President, the pending amendment offered by our colleague from Washington, Mrs. Murray, decreases revenues and if adopted would cause an increase in the deficit in excess of the levels permitted in the most recent budget resolution. Therefore, I raise a point of order against the amendment pursuant to section 505 of House current resolution on the budget for fiscal year 2004.

Mrs. MURRAY. Mr. President, pursuant to section 505(b) of H. Con. Res. 95 of the 108th Congress, I move to waive the Budget Act.

I ask for the yeas and nays.

The PRESIDING OFFICER. On this question, the yeas are 46, the nays are 53. Three-fifths of the Senators duly chosen and sworn not having voted in the affirmative, the motion is rejected. The point of order is sustained and the amendment falls.