BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 830 (Eggman)
Version: May 7, 2015
Hearing Date: June 16, 2015
Fiscal: No
Urgency: No
RD
SUBJECT
Civil actions: gender violence
DESCRIPTION
Existing law provides a statutory private right of action for
injuries resulting from acts of gender-related violence, allows
plaintiffs to seek compensatory and punitive damages from the
defendant, and extends the statute of limitations for bringing
such a claim, as specified. This bill would expand these
remedies to victims of sexual orientation-based violence and
would otherwise define "gender" to include "gender expression"
and "gender identity."
BACKGROUND
In California, actions for violations of civil rights have been
founded on state statutory provisions, federal statutes, and
common-law principles. California's four primary civil rights
acts are the Unruh Civil Rights Act, the Fair Employment and
Housing Act, the Ralph Civil Rights Act, and the Tom Bane Civil
Rights Act. (12 Cal. Jur. Civil Rights Sec. 2; see also Civ.
Code Secs. 51, 51.7, 52, 52.1 and Gov. Code Sec. 12900 et seq.)
In 2002, the Legislature enacted AB 1928 (Jackson, Chapter 842,
Statutes of 2002) which created a statutory civil action for
injuries resulting from acts of gender-related violence and
allowed plaintiffs to seek compensatory and punitive damages
from the defendant. AB 1928 contained legislative findings that
acts of domestic violence and sexual abuse on the basis of
gender constitute a form of sexual discrimination. Additionally
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in 2002, the Legislature enacted AB 1933 (Reyes, Chapter 193,
Statutes of 2002) which created a statutory tort for injuries
resulting from victims of domestic violence. Prior to the
enactment of AB 1933 a victim of domestic violence would have
only been able to sue under the general assault and battery
statutes, which were subject to a one-year statute of
limitations, and did not authorize the recovery of attorney's
fees. AB 1928 and AB 1933, thus, filled a gap in law in order
to provide more tools for victims of gender and domestic
violence to recover damages for their abuse.
Both of those bills were, in fact, prompted by a U.S. Supreme
Court decision, U.S. v. Morrison (2000) 529 U.S. 598, that had
declared the federal civil remedy for gender-motivated violence
under the Violence Against Women Act (VAWA) invalid. VAWA, as
enacted in 1994, had asserted that violent crimes motivated by
the victim's gender are discriminatory and violate the victim's
civil rights under federal law and allowed victims of
gender-motivated violence to sue in federal court for
compensatory and punitive damages, injunctive relief, and
attorneys' fees. While acknowledging that "a voluminous
congressional record" supported the assertion that some state
justice systems exhibited a pervasive bias against victims of
sexual and domestic violence, the Court pointed out that the
Fourteenth Amendment permitted Congress to address only
state-sponsored violations of civil rights, not torts by persons
who are not acting under color of state authority. Accordingly,
the Morrison Court concluded that individual states were the
appropriate authorities to provide civil remedies for private
torts, including acts of sexual and domestic violence.
AB 1928 (Jackson, Ch. 842, Stats. 2002), of particular relevance
to this bill, thus incorporated language from the invalidated
VAWA provision into a state civil rights action for
gender-related violence under Section 52.4 of the Civil Code,
and set forth the following legislative findings: (1) existing
laws do not adequately prevent and remedy gender-related
violence which disproportionately occurs against women; (2)
sexual abuse harms many women, children, and families, and is
often not reported to the authorities or prosecuted; (3) that
acts of domestic violence and sexual abuse on the basis of
gender constitute a form of sexual discrimination; (4) all
persons within California have the right to be free from crimes
of violence motivated by gender; and (5) that the purpose of
this act is to protect the civil rights of victims of
gender-motivated violence and thereby to promote the public
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safety, health, and well-being of all persons within California.
Generally, Section 52.4 permits a person injured by a crime of
violence motivated by gender to bring a civil action for various
types of relief against the responsible party, as long as it is
brought within the later of the following possible statutes of
limitations: (1) three years of the act; (2) if the victim
was a minor when the act occurred, within eight years after the
date the plaintiff attains the age of majority; or (3) 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.
Gender violence for these purposes includes either an act 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 gender of the victim or a physical
intrusion or invasion of a sexual nature under coercive
conditions.
This bill would now add a definition of "gender" for these
purposes and conform it to the definition of that same term
under the Unruh Civil Rights Act (which defines the term to mean
sex and to include a person's gender identity and gender
expression, as those terms are further defined) and would also
expand the existing Section 52.4 remedies to victims of sexual
orientation-based violence.
CHANGES TO EXISTING LAW
Existing law , the Unruh Civil Rights Act, provides that all
persons in California are free and equal, and regardless of a
person's sex, race, color, religion, ancestry, national origin,
disability, medical condition, genetic information, marital
status, or sexual orientation, everyone is entitled to the full
and equal accommodations, advantages, facilities, privileges, or
services in all business establishments. (Civ. Code Sec. 51.)
Existing law defines "sex" for these purposes to include, among
other things, a person's gender. Existing law further defines
"gender" to mean sex, and includes a person's gender identity
and "gender expression," which means a person's gender-related
appearance and behavior whether or not stereotypically
associated with the person's assigned sex at birth. (Civ. Code
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Sec. 51(e)(5).)
Existing law more generally defines "sex, race, color, religion,
ancestry, national origin, disability, medical condition,
genetic information, marital status, or sexual orientation" to
include a perception that the person has any particular
characteristic or characteristics within the listed categories
or that the person is associated with a person who has, or is
perceived to have, any particular characteristic or
characteristics within the listed categories. (Civ. Code Sec.
51(e)(6).)
Existing law , the Ralph Civil Rights Act, prohibits any act of
violence, or intimidation by threat of violence, committed
against a person or the person's property because of the
person's race, color, religion, ancestry, national origin,
political affiliation, sex, sexual orientation, age, disability,
or position in a labor dispute, or because another person
perceives them to have one or more of those characteristics.
(Civ. Code Sec. 51.7.)
Existing law provides that whoever denies, aids or incites a
denial, or makes any discrimination or distinction contrary to
Section 51 (Unruh), 51.5 (the Civil Rights Act of 2005,
extending the prohibition against discrimination as provided in
the Unruh to a person who is perceived to have one or more of
the characteristics enumerated in the Act or because the person
is associated with a person who has or is perceived to have any
of those characteristics), or 51.6 (the Gender Tax Repeal Act
prohibiting discrimination, with respect to the price charged
for services of similar or like kind, against a person because
of the person's gender), is liable for each and every offense
for the actual damages, and any amount that may be determined by
a jury, or a court sitting without a jury, up to a maximum of
three times the amount of actual damage but in no case less than
four thousand dollars ($4,000), and any attorney's fees that may
be determined by the court in addition thereto, suffered by any
person denied the rights provided in Section 51 (Unruh), 51.5,
or 51.6. (Civ. Code Sec. 52(a).)
Existing law provides that whoever denies a right provided by
Section 51.7 (the Ralph Civil Rights Act) or 51.9 (pertaining to
sexual harassment), or aids, incites, or conspires in that
denial, is liable for each and every offense for the actual
damages suffered by any person denied that right and, in
addition, the following:
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an amount to be determined by a jury, or a court sitting
without a jury, for exemplary damages;
a civil penalty of twenty-five thousand dollars ($25,000) to
be awarded to the person denied the right provided by the
Section 51.7 (Ralph Civil Rights Act) in any action brought by
the person denied the right, or by the Attorney General, a
district attorney, or a city attorney. An action for that
penalty brought pursuant to the Section 51.7 (Ralph Civil
Rights Act) shall be commenced within three years of the
alleged practice; and
attorney's fees as may be determined by the court. (Civ. Code
Sec. 52(b)(1)-(3).)
Existing law provides that actions brought pursuant to the above
provisions are independent of any other actions, remedies, or
procedures that may be available to an aggrieved party pursuant
to any other law. (Civ. Code Sec. 52(e).)
Existing law , the Tom Bane Civil Rights Act, authorizes the
Attorney General, or any district attorney or city attorney, to
bring an action seeking injunctive and equitable relief in order
to protect the peaceable exercise or enjoyment by an individual
or individuals of rights secured by the Constitution or laws of
the United States or this state, whenever a person interferes by
threats, intimidation, or coercion, or attempts to interfere by
threats, intimidation, or coercion, with those rights. Existing
law permits the AG, district attorney or city attorney seeking
injunctive or equitable relief to protect the peaceable exercise
of a person's constitutional rights to also seek a civil penalty
of $25,000, to be awarded to the person whose rights were
violated, and to be assessed against each person who violated
those rights. (Civ. Code Sec. 52.1(a).)
Existing law , the Tom Bane Act, permits any individual whose
exercise or enjoyment of rights secured by the Constitution or
laws of the United States or this state has been interfered
with, or attempted to be interfered with, as described above, to
institute and prosecute in his or her own behalf a civil action
for damages, including, but not limited to, damages under
Section 52 (the Ralph Civil Rights Act), injunctive relief, and
other appropriate equitable relief to protect the peaceable
exercise or enjoyment of the right or rights secured. (Civ.
Code Sec. 52.1(b).)
Existing law provides a statutory basis for civil liability for
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acts of "gender violence," referred to as a form of sex
discrimination and defined as either of the following:
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
gender of the victim, whether or not those acts have resulted
in criminal complaints, charges, prosecution, or conviction;
or
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. (Civ. Code Sec. 52.4(c).)
Existing law provides that any person who has been subject to
gender violence may bring a civil action for damages under this
section against "any responsible party," and may sue for actual
damages, compensatory damages, punitive damages, injunctive
relief, any combination of those, or any other appropriate
relief. A prevailing plaintiff also may be awarded attorney's
fees and costs. (Civ. Code Sec. 52.4(a).)
Existing law provides that an action brought pursuant to this
section must be brought within three years of the act, or within
eight years after the victim reaches the age of majority (i.e.,
age 18), or within three years after the date the victim
discovers or reasonably should have discovered a psychological
injury or illness occurring after the age of majority that was
caused by the act, whichever occurs later. (Civ. Code Sec.
52.4(b).)
Existing law further provides that this section 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. (Civ. Code Sec. 52.4(d).)
This bill would add an express definition of "gender" to Section
52.4 (creating a cause of action for gender violence), above,
and, for purposes of that section, define it to have the same
meaning set forth in Unruh.
This bill would amend the definition of gender violence above to
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also include 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 sexual orientation of the victim, whether or not those
acts have resulted in criminal complaints, charges, prosecution,
or conviction.
COMMENT
1. Stated need for the bill
According to the author:
Civil Code [Sec.] 52.4 provides protection for victims of
gender violence by permitting a person who has been subjected
to gender violence to bring a civil action for damages against
any responsible party and defines gender violence for this
purpose as a crime of violence motivated by the gender of the
victim or a physical intrusion or invasion of a sexual nature,
as specified. "Gender" is not defined for purposes of the
section.
The Unruh Civil Rights Act (Civil Code [Sec.] 51) prohibits
discrimination based on a person's sex, race, religion, or
sexual orientation, among others, and specifies that sex
includes gender. In 2011, the Act - along with many other
statutory provisions (not including [Sec.] 52.4) was amended
to specify that "gender" includes a person's gender identity
and gender expression.
The Ralph Act (Civil Code [Secs.] 51.7 and 52) provides that
it is a civil right for a person to be free of violence or its
threat against the person or his or her property, because of a
person's race, color, religion, ancestry, national origin,
political affiliation, sex, sexual orientation, age or
disability or position in a labor dispute, or because a person
is perceived to have one or more of these characteristics.
"Sex" for purposes of the Ralph Act takes its definition from
reference to the Unruh Act, and therefore includes gender,
which includes a person's gender identity and gender
expression.
AB 830 would conform the definition of "gender" in the
anti-gender violence statute, Civil Code [Sec.] 52.4, to the
definition in the Unruh Act and numerous other places in
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statute, so that it, too, includes gender identity and gender
expression within the definition. This will clarify that the
act's provisions and remedies extend to transgender victims of
gender-motivated violence. The bill also would extend the
act's protections and remedies to victims of violence due to
their sexual orientation.
The sponsor of this bill, the Conference of California Bar
Associations (CCBA) adds that while AB 887 (Atkins, Chapter 719,
Statutes of 2011) refined the definition of "gender" to include
gender identity and gender expression in other sections, it did
not include Section 52.4 of the Civil Code among the provisions
that it updated. CCBA writes:
AB 830 will correct this oversight by specifying that "gender"
in Civil Code §52.4, has the same meaning as in the Unruh Act
and numerous other code sections. The bill also will extend
the protections of the section to the victims of violence
committed at least in part based on the sexual orientation of
the victim. In light of the violence and bullying inflicted
upon LGBT individuals, this additional protection is needed
and overdue.
Violence against members of the LGBT community - and
particularly the transgender members of that community -
continues at a frightening rate. According to the Human
Rights Campaign [HRC], "The level of violence targeting
transgender people, particularly transgender women of color,
is a national crisis that the LGBT movement has a
responsibility to confront." The HRC reports that at least 13
transgender women were murdered in 2014. At least another six
have been killed this year.
The National Center for Lesbian Rights (NCLR) reports that
"approximately 1 in 8 lesbian women and nearly half of
bisexual women experience rape in their lifetime, and
statistics likely increase when a broader definition of sexual
assault is used. Nearly half of bisexual men and four in ten
gay men have experienced sexual violence other than rape in
their lifetime, and though statistics regarding rape vary, it
is likely that the rate is higher or comparable to
heterosexual men. As with most hate-based violence,
transgender individuals are the most likely to be affected in
the LGBT community. A staggering 64 [percent] of transgender
people have experienced sexual assault in their lifetime."
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AB 830 will provide transgender and other LGBT individuals
with an important tool to fight against violence.
2. Bill expands current remedies for victims of gender-based
violence to victims of sexual orientation-based violence
As noted in the Background, in 2002, AB 1928 (Jackson, Ch. 842,
Stats. 2002) was enacted to create a statutory civil action for
injuries resulting from acts of gender-related violence and
allow plaintiffs to seek compensatory and punitive damages,
among other things, from the defendant. Under that law, Section
52.4 of the Civil Code, "gender violence" is specifically
defined as either of the following: (1) 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 gender of the victim, whether or not
those acts have resulted in criminal complaints, charges,
prosecution, or conviction; or (2) 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.
Additionally, while, prior to 2002, a victim of gender violence
traditionally might have had one year to bring their case
arising out of an assault or battery under general statutes of
limitations, today, a person may have a longer period to bring
their suit for injuries resulting from acts of gender related
violence pursuant to Section 52.4. Specifically, under existing
law, an action for gender violence may 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 plaintiff
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.
This bill would now extend those more extensive remedies and
extended statute of limitations to victims of gender violence
where that gender violence was committed at least in part based
on the sexual orientation of the victim. The National
Association of Social Workers writes in support that "violence
that is based on the sexual orientation of the victim cannot be
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permitted and victims should have the full protection of the law
in order to [obtain] civil damages for this type of violence.
Current law is insufficient to protect these victims and it is
critical that this oversight be corrected."
Staff notes that protection against sexual orientation violence
arguably exists under current civil rights statutes, but that
the remedies proposed by this bill for victims of such violence
would potentially be greater than those provided under existing
law, particularly in light of the gender violence statute's
extended statute of limitations period. It should also be noted
that while violence based upon the sexual orientation of the
victim is inexcusable, the language of the bill mixes two
related, but distinct, characteristics - gender and sexual
orientation. The following amendment is suggested to clarify
the language by separating the issues. Specifically, this
language would provide the same remedies and protections of the
gender violence statute for victims of sexual orientation-based
violence, but under a separate section.
Suggested amendment :
On page 2, lines 22-23, strike "or sexual orientation"
On page 2, after line 36, add a new section to immediately
follow Section 52.4 of the Civil Code, to read:
"(a) Any person who has been subjected to sexual orientation
violence may bring a civil action for damages against any
responsible party. The plaintiff may seek actual damages,
compensatory damages, punitive damages, injunctive relief, any
combination of those, or any other appropriate relief. A
prevailing plaintiff may also be awarded attorney's fees and
costs.
(b) An action brought pursuant to this 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 plaintiff 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.
(c) For purposes of this section, "sexual orientation
violence" means one or more acts that would constitute a
criminal offense under state law that has as an element the
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use, attempted use, or threatened use of physical force
against the person or property of another, committed at least
in part based on the sexual orientation of the victim, whether
or not those acts have resulted in criminal complaints,
charges, prosecution, or conviction.
(d) Notwithstanding any other laws that may establish the
liability of an employer for the acts of an employee, this
section 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 sexual orientation
violence."
3. Bill incorporates an existing law definition of gender into
the gender-violence statute
While it's unclear that AB 887's exclusion of Section 52.4 when
that bill amended various sections to clarify the definition of
gender in various other sections was, in fact, an oversight or
whether it was intentional given the history of that section to
enact an overruled federal VAWA provision into state law (see
Background), the addition of a definition of gender to conform
to Unruh would appear consistent with the use of that term in
other anti-discrimination and anti-hate crime civil rights based
statutes.
The California Women's Law Center (CWLC), supports both that the
bill expands the definition of the term gender to include
"gender identity" and "gender expression" by conforming to the
Unruh definition of the term, and that the bill would also
explicitly provide statutory protection against violence that is
motivated by a victim's sexual orientation. CWLC writes:
By extending the code's protections to cases of gender
identity, gender expression and sexual orientation, this bill
significantly increases the number of women who are protected
against gender violence.
Recent findings from the National Intimate Partner and Sexual
Violence Survey conducted by the Center for Disease Control
and Prevention (CDC) indicate that the proposed changes are
both important and necessary, as it extends protections to a
population that may be at a heightened risk for gender
violence. For example, the CDC survey found that individuals
who self-identify as lesbian, gay and bisexual have an equal
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or higher prevalence of experiencing intimate partner and
sexual violence compared to heterosexual individuals. In
fact, certain groups of women within this population, such as
bisexual women, report a much higher prevalence of rape,
physical violence, and/or stalking by an intimate partner
compared to their heterosexual counterparts (61.1 percent
compared to 35 percent, respectively).
Equality California also writes in support, noting that by
conforming the definition of gender to Unruh, this bill "will
make clear that Civil Code [Sec.] 52.4's provisions and remedies
extend to transgender victims of gender bias-motivated violence"
as well as to victims of violence that was based upon their
sexual orientation. AFSCME, also in support, adds that "[t]his
change is necessary to serve justice to those who commit gender
violence against members of the LGBT community, especially
transgender individuals. According to a 2014 report from the
National Coalition of Anti-Violence Programs, reports of hate
violence against transgender individuals increased by 13 percent
in 2013. Transgender women, and specifically, transgender women
of color, were more likely than their lesbian, gay, or bisexual
counterparts to experience violence based on their gender
identity or sexual orientation."
As a matter of public policy, given that the term "gender" has
clearly come to be recognized as a broader term than it was
traditionally understood to mean and given that this now 13 year
old statute does not incorporate any particular definition of
gender, by assigning the use of the term "gender" in the gender
violence statute a definition that aligns with existing law
(i.e. Unruh's definition of "gender"), the bill would arguably
provide added clarity and certainty for victims of various types
of gender violence who might seek to pursue available remedies
under California law.
Support : American Federation of State, County and Municipal
Employees, AFL-CIO; Bay Area Lawyers for Individual Freedom;
California Communities United Institute
California Women Lawyers; California Women's Law Center;
Consumer Attorneys of California; Equality CA; Equal Rights
Advocate; Legal Aid Society; National Association of Social
Workers
Opposition : None Known
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HISTORY
Source : Conference of California Bar Associations
Related Pending Legislation : None Known
Prior Legislation :
AB 887 (Atkins, Ch. 719, Stats. 2011) clarified the Fair
Employment and Housing Act, Unruh, and other anti-discrimination
laws' definition of "gender" by including "gender identity" and
"gender expression" as well as "sex." The bill further
specified that "gender expression" means "a person's
gender-related appearance and behavior whether or not
stereotypically associated with the person's assigned sex at
birth."
AB 2487 (Berg, 2004) would have further assisted victims of
gender and domestic violence by authorizing the referral of
judgments to the California Victim Compensation and Government
Claims Board and the Franchise Tax Board for collection on
behalf of the plaintiffs. This bill was placed on the Suspense
file and died in the Senate Appropriations Committee.
AB 1933 (Reyes, Ch. 193, Stats. 2002) created a statutory tort
for victims of domestic violence.
AB 1928 (Jackson, Ch. 842, Stats. 2002) See Background.
Prior Vote :
Assembly Floor (Ayes 74, Noes 0)
Assembly Judiciary Committee (Ayes 9, Noes 0)
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