BILL ANALYSIS
AB 1928
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1928 (Jackson)
As Amended June 29, 2002
Majority vote
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|ASSEMBLY: |45-6 |(April 25, |SENATE: |24-12|(August 21, |
| | |2002) | | |2002) |
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Original Committee Reference: JUD .
SUMMARY : Creates a new civil cause of action for gender
violence. Specifically, this bill :
1)Makes legislative findings regarding the inadequacy of
existing remedies for gender related violence, and the need to
protect the civil rights of the victims of such violence.
2)States that any person who has been subjected to gender
violence may bring a civil action against any responsible
party, and may seek actual damages, compensatory damages,
punitive damages, injunctive relief, any combination of those,
and other appropriate relief.
3)Provides that a prevailing plaintiff in an action based on
gender violence may be awarded attorney's fees and costs.
4)States that an action brought under the new section shall be
commenced within three years of the act or, if the victim was
a minor when the act occurred, within eight years after the
date the victim attains the age of majority or within three
years after the date the plaintiff discovers or reasonably
should have discovered the psychological injury or illness
occurring after the age of majority that was caused by the
act, whichever date occurs later.
5)Defines gender violence as a form of sex discrimination
meaning any of the following:
a) One or more acts that would constitute a criminal
offense under state law that has as an element the use,
attempted use, or threatened use of physical force against
the person or property of another, committed at least in
part based on the victim's gender, whether or not the acts
have resulted in criminal complaints, charges, prosecution
AB 1928
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or conviction; or,
b) A physical intrusion or physical invasion of a sexual
nature under coercive conditions, whether or not those acts
have resulted in criminal complaints, charges, prosecution
or conviction
6)Provides that notwithstanding any other laws that may
establish the liability of an employer for the acts of an
employee, this bill does not establish any civil liability of
a person because of his or her status as an employer, unless
the employer personally committed an act of gender violence.
The Senate amendments :
1)Create a shorter time for commencement for an action under
this bill, from 10 years after the act to three years after
the act, or from 10 years after the victim attains the age of
majority to eight years after the victim attains the age of
majority or within three years after the date the plaintiff
discovers or reasonably should have discovered the
psychological injury or illness occurring after the age of
majority that was caused by the act.
2)Limit the definition of gender violence to apply only in cases
where the act is committed based on the gender of the victim,
and not where it is based on the sex or sexuality of the
victim.
3)Remove threats from the definition of gender violence.
4) Clarify that this bill is not intended to affect other laws
that establish employer liability for the acts of employees.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
but somewhat broader. This bill as passed by the Assembly had a
longer statute of limitations for the newly created cause of
action, applied to acts based on the sex or sexuality of the
victim, and included threats in the definition of gender
violence.
FISCAL EFFECT : None
COMMENTS : This bill, sponsored by the California National
Organization for Women, seeks to ensure that the victims of
gender-motivated violence are able to recover from the
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perpetrators of such violence.
This bill is modeled after a civil remedy provision, creating a
cause of action for those harmed by gender-motivated violence
that was included in the federal Violence Against Women Act.
(42 U.S.C. Section 13981.) The federal provisions were struck
down by the United States Supreme Court in U.S. v. Morrison
(2000) 529 U.S. 598 as being beyond the authority of Congress to
enact under the Commerce Clause or the Fourteenth Amendment.
This bill creates a broad cause of action for gender violence,
and defines gender violence (see Summary #5 above). It is a
strong statement that California will not tolerate
gender-motivated violence of any kind.
Many of the plaintiffs who could assert the cause of action
newly created under this bill would already have a cause of
action under existing law, such as an action for assault,
battery, sexual battery, or an action under the Fair Employment
and Housing Act or the Unruh Civil Rights Act for sexual
harassment.
This bill offers additional assistance to the victims of gender
violence who might recover under these other provisions in three
ways. First, it offers a clear statement of the state's intent
to provide broad and comprehensive relief to the victims of
gender violence. Second, this bill provides a three year
statute of limitations in such cases, or eight years beyond when
the victim attains the age of majority, for acts which might
otherwise fall under the one year statute of limitations for
cases of assault and battery. Finally, this bill allows a
plaintiff to recover attorney's fees, a remedy not available in
most tort actions. (Attorney's fees are available in sexual
harassment cases under the Fair Employment and Housing Act and
the Unruh Civil Rights Act.)
Analysis Prepared by : Kathy Sher / JUD. / (916) 319-2334FN:
0005776