BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                        AB 830|
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                                    THIRD READING


          Bill No:  AB 830
          Author:   Eggman (D)
          Amended:  6/23/15 in Senate
          Vote:     21  

           SENATE JUDICIARY COMMITTEE:  6-1, 6/16/15
           AYES:  Jackson, Moorlach, Hertzberg, Leno, Monning, Wieckowski
           NOES:  Anderson

           ASSEMBLY FLOOR:  74-0, 5/14/15 - See last page for vote

           SUBJECT:   Civil actions:  gender violence


          SOURCE:    Conference of California Bar Associations

          DIGEST:   This bill applies existing law remedies for victims of  
          gender-related violence to victims of sexual orientation-based  
          violence and otherwise defines "gender" in accordance with the  
          Unruh Civil Rights Act, to include "gender expression" and  
          "gender identity."   

          ANALYSIS: 
          
          Existing law: 

            1)  Provides, under the Unruh Civil Rights Act, that all  
              persons in California are free and equal, and that  
              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  








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              business establishments.  

            2)  Defines "sex" for the above purposes to include, among  
              other things, a person's gender, and defines "gender" to  
              mean sex, and includes a person's gender identity and  
              "gender expression."  Existing law further defines "gender  
              expression" to mean person's gender-related appearance and  
              behavior whether or not stereotypically associated with the  
              person's assigned sex at birth.  

            3)  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.  

            4)  Prohibits, under the Ralph Civil Rights Act, 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.  

            5)  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  







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              ($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 those sections.  

            6)  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:

                   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.  

            1)  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. 

            2)  Authorizes, under the Tom Bane Civil Rights Act, 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.   








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            3)  Permits, under the Bane Act, 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.   

            4)  Creates, under Section 52.4, a statutory basis for civil  
              liability for acts of "gender violence," referred to as a  
              form of sex discrimination and defined as: 

                   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.  

            11) Further 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.  

            12) Further 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. 








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            13) 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.  

          This bill:

          1)Adds 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.  

          2)Adds a new section immediately following Section 52.4, to  
            extend the same existing law remedies that are available to  
            victims of gender-based violence to victims of  
            sexual-orientation based violence, as specified. 

          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.  


          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.  Also 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  







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          violence to recover damages for their abuse. 


          Both bills were 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 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.  As such, 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, 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 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  







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          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 now adds a definition of "gender" for these purposes  
          and conforms 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).  This bill also adds a new  
          section that will make available to victims of sexual  
          orientation-based violence the same Section 52.4 remedies  
          currently provided to victims of gender-related violence.  


          Comment 


          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  







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            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  
            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.


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified6/23/15)


          Conference of California Bar Associations (source)
          American Federation of State, County and Municipal Employees,  
          AFL-CIO
          Bay Area Lawyers for Individual Freedom
          California Communities United Institute
          California Women Lawyers







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          California Women's Law Center
          Consumer Attorneys of California
          Equality CA
          Equal Rights Advocate 
          Legal Aid Society
          National Association of Social Workers
          Transgender Law Center
          Women Lawyers Association of Los Angeles


          OPPOSITION:   (Verified6/23/15)


          None received


          ARGUMENTS IN SUPPORT:     The sponsor of this bill, the  
          Conference of California Bar Associations (CCBA) writes 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.







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            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."  


            AB 830 will provide transgender and other LGBT individuals  
            with an important tool to fight against violence.   

          ASSEMBLY FLOOR:  74-0, 5/14/15
          AYES:  Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,  
            Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chang, Chau,  
            Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly,  
            Dodd, Eggman, Frazier, Gallagher, Cristina Garcia, Eduardo  
            Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove,  
            Hadley, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer,  
            Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mayes,  
            McCarty, Medina, Mullin, Nazarian, Obernolte, O'Donnell,  
            Olsen, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas,  
            Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner,  
            Waldron, Weber, Wilk, Williams, Wood, Atkins
          NO VOTE RECORDED:  Brough, Beth Gaines, Harper, Mathis,  
            Melendez, Patterson

          Prepared by:Ronak Daylami / JUD. / (916) 651-4113 
          6/25/15 9:01:06
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