a. Introduction
This cause of action allows a victim to bring a civil suit for acts that were motivated by gender and constitute a criminal offense involving force or threat of force, regardless of whether the offense resulted in prosecution or conviction. The victim can seek actual damages, compensatory damages, punitive damages, and injunctive relief. This is a relatively new law (enacted in 2002) and has only been cited in eleven opinions to date. Because the nature of the intimate images will almost certainly be tied to the victim’s gender, this statute may be useful to victims who have been harmed by the publication of images that portray acts they engaged in because of the use or threat of force or coercion.
b. Text of the Statute
The statute defines gender violence as either:
“(1) one or more acts that would constitute a criminal offense under state law and that have 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.”1
c. Cases
Research is ongoing.
d. Practice Pointers
- Under this statute a victim can seek actual damages, compensatory damages, punitive damages and injunctive relief (or any combination of those remedies).
- None of the available opinions explore the meaning of “committed at least in part based on the gender of the victim,” but the legislative history suggests that one purpose of this statute was to lessen the burden on the plaintiff and require only proof that gender bias was “merely one of the motivating factors for the prohibited act, not the sole or predominant factor.”2
- The gender violence statute has been cited in only eleven opinions since it was enacted in 2002. The majority of these cases only mention that gender violence was one among many claims without providing any analysis of the gender violence claim. In all of these cases, the offending acts underlying the lawsuits included some kind of actual physical force, although some included threats of physical force along with the actual use of force.
- In Greenwald v. Bohemian Club, Inc., the court did analyze the plaintiff’s gender violence claims and granted the defendant’s motion to dismiss.3 Most of the acts were dismissed because they were time-barred, including (1) a sexual assault and (2) battery involving a serving cart.4 The plaintiff also used a threat to support her claim—a comment made by a supervisor that he would overload her schedule so that she would be likely to suffer a physical injury—but that was not allowed to be the basis of the gender violence claim because the comment did not involve a threat of physical violence against the plaintiff by the supervisor.5
- Many of the gender violence cases to date involve an act that occurred in the workplace or between coworkers, and the cases clearly find that employers cannot be held liable for acts of gender violence unless the employer personally perpetrates the violence.6 And second, victims are unlikely to be forced to arbitrate their gender violence claims.7
- According to legislative reports, the gender violence statute was enacted to counter the U.S. Supreme Court’s holding in United States v. Morrison, which invalidated the portion of the federal Violence Against Women Act, that provided a civil remedy for victims of domestic violence. 8 The legislative findings that supported this bill were: “(1) that existing laws do not adequately prevent and remedy gender-related violence, (2) that acts of domestic violence and sexual abuse on the basis or gender constitute a form of sexual discrimination; and (3) that the purpose of this act is to protect the civil rights of victims of gender-motivated crimes.”9
- 1. Cal. Civ. Code § 52.4 (West 2011).
- 2. See Senate Judiciary Committee, Committee Analysis of A.B. 1928 (June 25, 2002).
- 3. Greenwald v. Bohemian Club, Inc., No. C 07-05261 WHA, 2008 WL 2331947, *7 (N.D. Cal. 2008).
- 4. Id.
- 5. Id.
- 6. See, e.g. Jones v. Kern High School Dist., No. CV-F-07-1628 OWW/TAG, 2008 WL 3850802, *29 (E.D. Cal. Aug. 14, 2008); and Doe v. Starbucks, Inc., No. SACV 08-582 AG (CWx), 2009 WL 5183773, *10-11 (C.D. Cal. Dec. 18, 2009).
- 7. See Abou-Khalil v. Miles, No. G037752, 2007 WL 1589456, *6-7 (Cal. Ct. App. June 4, 2007); and RN Solution, Inc. v. Catholic Healthcare West, 81 Cal. Rptr. 3d 892, 902-903 (Cal. Ct. App. 2008).
- 8. United States v. Morrison, 529 U.S. 598 (2000).
- 9. See Senate Judiciary Committee, Committee Analysis of A.B. 1928 (June 25, 2002).