Mon, 12/30/2019
On Dec. 27, the First Department of New York’s Appellate Division issued a ruling in Breest v. Haggis, providing a landmark interpretation of the New York City Victims of Gender-Motivated Violence Protection Law (“VGM”). This interpretation allows broader protections for survivors of gender-motivated violence and sets an example of what civil remedies might be crafted and utilized for workers in other jurisdictions.
In 2000, the U.S. Supreme Court struck down portions of the federal Violence Against Women Act (“VAWA”) — which would have allowed for legal claims of gender-motivated violence — in the case of United States v. Morrison, 529 U.S. 598 (2000). The New York City Council enacted the VGM in order to address some of the gaps in Morrison’s wake.
The VGM law in New York City provides a 7-year statute of limitations, compared to much shorter timelines for torts (personal harm and injury laws) and employment laws. It also allows for the recovery of punitive damages, the recovery of attorneys’ fees and costs for the victims, and allows the survivor to sue an individual, not just the employer. These are stronger remedies for victims than are provided under Title VII federal anti-sexual harassment provisions or that can be obtained under tort laws for sexual assault.
One unsettled aspect of the law was what a plaintiff had to show to establish that violence committed against them (the law protects violence based on any gender) was motivated by gender. Some courts had held that to prove that violence was motivated by gender, a plaintiff had to show “animus,” which included alleging facts other than rape or sexual assault that showed malice or ill will was based on someone’s gender. Courts had struggled to determine what type of evidence was necessary to meet this standard. Some courts held that despite graphic violence with respect to rape and sexual violence, plaintiffs could not show their attackers had animosity for their gender. For instance, there could have been evidence of a defendant’s verbal abuse, violent behavior, and workplace discrimination, in addition to his rape of the plaintiff, and this may be insufficient to meet the prior standard that the defendant was acting with animosity toward women.[1]
The First Department has changed the standard, finding that rape and sexual assault are, by definition, actions taken against the victim without the victim’s consent. And, without consent, “sexual acts such as those alleged in the [case] are a violation of the victim’s bodily autonomy and an expression of the perpetrator’s contempt for that autonomy. Coerced sexual activity is dehumanizing and fear-inducing. Malice or ill will based on gender is apparent from the alleged commission of the act itself. Animus inheres where consent is absent.”
Under this ruling, at least in New York City, survivors of gender-based violence will not have to meet such a difficult standard as in the past to plead that the violence they endured was gender-motivated. Acts of sexual violence are enough to show that motivations were based on animosity toward someone’s gender. Not only will this allow more survivors to bring forth VGM claims (along with Title VII claims, if violence occurred in the workplace), but the First Department’s interpretation casts sexual violence squarely as a civil rights issue—not just a matter of private concern for the criminal justice system to handle.
Asserting these important civil rights developments is an additional tool that litigants may wield against injustice. It is just one reason why many of the attorneys at MSE are active members of the Legal Network for Gender Equity, so that they may engage advocacy to push for better protections like that coming out of Breest v. Haggis.
[1] Hughes v. Twenty First Century Fox, Inc., 304 F. Supp. 3d 429 (S.D.N.Y. 2018).
