Legislative Memorandum 

Empire Justice Center Urges Governor to Sign Bill to Provide Private Right of Action

Provide a Private Right of Action to Victims of Gender-Bias Motivated Violence
A.529/S.5923

In 1994, the U.S. Congress enacted a civil remedy as part of the Violence Against Women Act.  This remedy, codified at 42 U.S.C. § 13981, provided victims of gender-bias motivated crimes with a private right of action to recover civil damages from their perpetrators in federal court.  It was enacted after four years of legislative debate whereby evidence demonstrated that victims of gender-bias motivated violence often faced indifference and hostility in the court system.  Unfortunately, the May 2000 United States Supreme Court case, United States v. Morrison [529 U.S. 598, 120 S. Ct. 1740 (2000)] struck down this provision as an unconstitutional exercise of Congress’s authority to legislate under the Commerce Clause.  Notably, the Supreme Court did not challenge the necessity of providing such a remedy to victims of gender-bias motivated violence.  To the contrary, the Court stressed the importance of states and localities providing such a civil remedy by stating it could “think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.” Morrison at 617.  

In light of the void left by the U.S. Supreme Court’s decision, local governments in Rockland County, Westchester County and New York City adopted their own civil remedy for gender-bias motivated violence.  For ten years, however, New Yorkers outside of these few jurisdictions were without similar remedy.  If signed by the Governor, this bill will provide victims throughout the state with an officially-sanctioned and legitimate civil cause of action to redress injuries sustained to both person and property.     

Further, by defining “gender” as a person’s “actual or perceived sex,” and explicitly including gender identity and expression in this legal definition, this bill also provides relief to New York’s transgender community whose gender identity, appearance, behavior and expression differs from their genetic or assigned birth sex.  Like the gay and lesbian community, New York’s transgender population has been disproportionately targeted for bias-motivated violence.  Given the current lack of state-wide protections for gender identity and gender expression-based hate crimes and discrimination, the significance of this bill to the transgender community cannot be overstated as a critical step forward.  While we do not yet have a full range of civil rights or dedicated hate crime legislation protecting transgender persons in our state, a civil remedy against violence and intimidation will provide an important avenue for obtaining injunctive relief, damages, and any other appropriate relief in law or equity against their victimizers. 

Similarly, this bill also extends this important relief to a broad range of other actual or perceived vulnerable communities who are specifically targeted for bias-related violence and intimidation, including based on race, color, religion, national origin, ancestry, religious practice, age, disability, or sexual orientation. 

Providing for reasonable attorneys fees for the prevailing plaintiff also helps insure that victims of these offenses will have meaningful access to counsel. 

Empire Justice Center strongly urges Governor Paterson sign A.529/S.5923 into law. 

06/23/10