BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 830| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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 AB 830 Page 2 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 AB 830 Page 3 ($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. AB 830 Page 4 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. AB 830 Page 5 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 AB 830 Page 6 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 AB 830 Page 7 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 AB 830 Page 8 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 AB 830 Page 9 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. AB 830 Page 10 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 **** END ****