Ilann M. Maazel

42 U.S.C. §1983 was passed in 1871. There it remained, virtually unknown and unused, until 1961, when some enterprising lawyers read the U.S. Code and brought a §1983 claim that went all the way to the U.S. Supreme Court. Today, §1983 is perhaps the single most important and cited civil rights statute in the country.

Here in New York City, we have another statute, virtually unknown and unused. It is the New York City Victims of Gender-Motivated Violence Protection Act (for present purposes, “the Act”). In the #MeToo era, every civil rights lawyer in New York City should know, and where appropriate, use, the Act.

The Genesis of the Act

In 1994, Congress passed the Violence Against Women Act (VAWA) (42 U.S.C. §13981). But the Supreme Court in United States v. Morrison, 529 U.S. 598 (2000) struck down VAWA private right of action, holding that Congress lacked the authority under the Commerce Clause and the Fourteenth Amendment to enact the law. The Supreme Court instead urged local governments to provide a remedy to victims of gender-motivated violence, as “no civilized system of justice could fail to provide [such] a remedy.” Id. at 627.

Later in 2000, the New York City Council passed and the mayor signed the Act, “[i]n light of the void left by the Supreme Court's decision.” N.Y.C. Admin. Code §8-902. The City Council recognized that “gender-motivated violence is widespread throughout the United States,” “three out of four women will be the victim of a violent crime sometime during their lives,” and “victims of gender-motivated violence frequently face a climate of condescension, indifference and hostility in the court system.” Id. The Act sought “to resolve the difficulty that victims face in seeking court remedies by providing an officially sanctioned and legitimate cause of action for seeking redress for injuries resulting from gender-motivated violence.” Id.

What Does the Act Do?

The Act provides a cause of action for “any person claiming to be injured by an individual who commits a crime of violence motivated by gender.” New York City Administrative Code §8-904. Note how broad this statute is. It is not limited to the employment context, the housing context, or any context. Anyone, anywhere in New York City who commits a crime of violence motivated by gender is personally liable. The relief is also broad: compensatory and punitive damages, injunctive and declaratory relief, and fee-shifting, i.e., attorney fees and costs for a victorious plaintiff. Id. The statute of limitations for this claim is seven years, far longer than for, say, sexual discrimination in employment under New York City, New York state, or federal law. New York City Administrative Code §8-905(a).

'Crime of Violence'

The claim has two basic elements: The act must be a “crime of violence,” and it must be “motivated by gender.” “Crime of violence” means “an act or series of acts that would constitute a misdemeanor or felony against the person as defined in state or federal law … if the conduct presents a serious risk of physical injury to another, whether or not those acts have actually resulted in criminal charges, prosecution, or conviction.” New York City Administrative Code §8-903(a).

Two basic points: First, it is not necessary that anyone bring an actual criminal charge. “Nothing” in the Act “requires a prior criminal complaint, prosecution or conviction to establish the elements of a cause of action.” New York City Administrative Code §8-905(c). The Act's reference to the penal law is merely definitional. Second, low-level sexual harassment, in the form of derogatory comments, sharing of pornography, and the like, is not covered by the Act. On the other hand, forcible sexual contact usually is. For example, forcing someone to have sexual intercourse against her will constitutes rape in the first degree, a class B felony and a violation of N.Y. Penal Law §130.35. Forcibly inserting a finger into someone's vagina constitutes aggravated sexual abuse in the first degree, another class B felony and a violation of N.Y. Penal Law §130.70. Forcing someone to give oral sex constitutes a criminal sexual act in the third degree, a class E felony, in violation of N.Y. Penal Law §130.40. All of these are “crime[s] of violence” within the Act.

Is Sexual Assault Always 'Motivated by Gender'?

The second element—“motivated by gender”—is more interesting. It requires a crime of violence “committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender.” New York City Administrative Code §8-903(b).

Many violent crimes are not gender-motivated, for example, a violent robbery where the perpetrator happens to be male and the victim happens to be female. “[N]othing” in the Act “entitles a person to a cause of action for random acts of violence unrelated to gender.” New York City Administrative Code §8-905(b).

But what if the crime is rape or sexual assault—are those crimes per se “motivated by gender”? Under VAWA, the answer was yes. “[A]lmost all courts evaluating whether rape or sexual assault were 'gender-motivated' under the VAWA Civil Rights Remedy reasoned that sexual assault or other unwanted sexual conduct reflected gender-motivation … apparently deeming it self-evident that such crimes are inherently gender-motivated.” Julie Goldscheid & Risa E. Kaufman, Seeking Redress for Gender-Based Bias Crimes-Charting New Ground in Familiar Legal Territory, 6 Mich. J. Race & L. 265, 276 (2001). “[I]f an attack is emotionally motivated—as are all rapes and sexual assaults—it is necessarily animated by gender-animus.” Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000). “The fact that … the alleged crime was a sexual assault is sufficient in and of itself to support the existence of gender-based animus.” “[R]ape by definition occurs at least in part because of gender-based animus.” Id. at 1203. Or as another case put it: “Although there might be some difficulty in determining whether other crimes, even crimes against the person, were 'because of' or 'on the basis of' the victim's gender, the court has little doubt that allegations of sexual assault or sexual exploitation crimes are allegations of crimes committed 'because of' or 'on the basis of' the victim's gender.” Mattison v. Click Corp. of Am., Civ. A. No. 97-CV-2736, 1998 WL 32597, at *6-7 (E.D. Pa. Jan. 27, 1998).

The Act uses the identical definition of “gender-motivated crime of violence” as VAWA. It was created “[i]n light of the void left by the Supreme Court's decision” striking down VAWA. Other courts have looked to VAWA case law in interpreting local gender-motivated crime legislation similar to the Act. See, e.g., Roe v. California Dep't of Developmental Servs., No. 16-CV-03745-WHO, 2017 WL 2311303, at *10 (N.D. Cal. May 26, 2017) (analyzing VAWA case law to interpret California's Ralph Act). VAWA case law is therefore highly relevant when interpreting the Act. It should follow that sexual assaults are, under the Act (as in VAWA), per se motivated by gender.

As courts have held, the claim that sexual assault is not motivated by gender relies on the outdated idea that some rapists might be motivated by love and therefore lack the required “gender-motivated” animus to be held liable. That “is clearly wrong … In fact, the perception that a man is somehow less culpable in taking inappropriate liberties with members of the female gender if his motivations are amorous, seems to be just the type of 'animus' that is a focus of concern in gender discrimination. Regardless of the amorous intentions of the perpetrator, non-consensual expressions of affection that rise to the nature of those alleged in this action are laden with disrespect for women.” McCann v. Bryon L. Rosquist, D.C., P.C., 998 F. Supp. 1246, 1252-53 (D. Utah 1998), rev'd, 185 F.3d 1113 (10th Cir. 1999), cert. granted, judgment vacated, 529 U.S. 1126 (2000).

In addition, “[i]t would be both an impossible and an unnecessary task to fashion a judicial test to determine whether particular rapes are due in part to gender-based animus. With respect to rape and attempted rape, at least, the nature of the crime dictates a uniform, affirmative answer to the inquiry.” Schwenk, 204 F.3d at 1203.

There is, however, an outlier case: Gottwald v. Sebert, No. 653118/2014, 2016 WL 1365969, *21 (Sup. Ct. N.Y. Cty. 2016); see also Cordero v. Epstein, 22 Misc. 3d 161, 164 (Sup. Ct. N.Y. Cty. 2008). Gottwald involved a contractual dispute between a singer and a music producer, Sony Music, and other music production companies. The plaintiff apparently only raised allegations of sexual assault after she had been sued for breach of contract, and the complaint failed to “allege that [the music producer] harbored animus toward women or was motivated by gender animus when he allegedly behaved violently toward [her].” Id. at *21. The court held that “[e]very rape is not a gender-motivated hate crime.” Id. Given the history and purpose of the Act, the unusual facts in Gottwald, and the great weight of other precedent, it is hard to believe that Gottwald will withstand the test of time.

How Else to Plead and Prove Gender Motivation?

The fact of a sexual assault is not the only way to plead and prove gender motivation. “Whether a particular act of violence is gender-motivated and thus falls within the Act's scope is determined in light of the 'totality of the circumstances.'” Schwenk, 204 F.3d at 1198.

For example, sexist comments before, during, or after the assault are also evidence of gender motivation. “Verbal expression of bias by an attacker is certainly not mandatory to prove gender bias,” but it is helpful. Brzonkala v. Virginia Polytechnic Inst. & State Univ. 132 F.3d 949, 964 (4th Cir. 1997), reh'g en banc granted, opinion vacated on other grounds (Feb. 5, 1998), on reh'g en banc, 169 F.3d 820 (4th Cir. 1999), aff'd sub nom. United States v. Morrison, 529 U.S. 598 (2000).

For example, in the recent case Breest v. Haggis¸ 2018 WL 4698660 (Sup. Ct. N.Y. Cty. Aug. 15, 2018), Justice Reed held that alleged comments by defendant such as “You're tight,” “You're scared of me,” and “Don't fucking act like an 18-year-old” create a “factual interpretation to be presented before the jury.” Denying a motion to dismiss on the question of gender motivation, the court held that “[t]here is language that … indicates a disrespect for women. There's language here that indicates an enjoyment of some level of violence as against women.” Id. at *23. (Note: the undersigned represents Ms. Breest, the case is ongoing, and no factfinder has yet ruled on the claim.) Similarly, defendant's alleged statements in Brzonkala—“You better not have any fucking diseases” and “I like to get girls drunk and fuck the shit out of them”—were evidence of gender motivation. 132 F.3d at 964.

A pattern of prior sexual misconduct versus other women is also evidence that the sexual assault at issue was also gender motivated. “The fact that all previous victims of Defendant's unwanted sexual advances were women underscores Plaintiff's claim that Defendant was motivated by a gender animus towards women.” Jugmohan v. Zola, No. 98-CV-1509, 2000 WL 222186, at *4 (S.D.N.Y., Feb. 25, 2000); see also Brzonkala, 132 F.3d at 964 (allegations that defendant had “a history of taking pleasure from having intercourse with women without their sober consent” showed gender-motivation); Breest, 2018 WL 4698660 at *24 (“It is also the case here … that there are allegations of a pattern and practice of activity that the plaintiff claims indicates an animus towards women by virtue of Jane Doe allegations of similar acts of alleged violence against women.”)

Prior acts by the defendant involving other women are thus directly relevant to prove the underlying claim.

Conclusion

The Act is a powerful tool to fight gender-motivated violence. The Act is hiding in plain sight, and has hardly been used. Use it.

Ilann M. Maazel is a partner at Emery Celli Brinckerhoff & Abady.