Whether The Criminal Provisions of The Violence Against Women Act Apply To Otherwise Covered Conduct When The Offender and Victim Are The Same Sex
| Decision Date | 27 April 2010 |
| Docket Number | 10-4 |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
| Parties | WHETHER THE CRIMINAL PROVISIONS OF THE VIOLENCE AGAINST WOMEN ACT APPLY TO OTHERWISE COVERED CONDUCT WHEN THE OFFENDER AND VICTIM ARE THE SAME SEX |
DAVID J. BARRON, Acting Assistant Attorney General
WHETHER THE CRIMINAL PROVISIONS OF THE VIOLENCE AGAINST WOMEN ACT APPLY TO OTHERWISE COVERED CONDUCT WHEN THE OFFENDER AND VICTIM ARE THE SAME SEX
The criminal provisions of the Violence Against Women Act apply to otherwise covered conduct when the offender and victim are the same sex.
You have asked us whether the criminal provisions of the Violence Against Women Act (“VAWA”) apply to otherwise covered conduct when the offender and victim are the same sex. VAWA includes three criminal provisions: 18 U.S.C. § 2261 (2006), addressing interstate domestic violence; 18 U.S.C. § 2261A (2006), addressing interstate stalking; and 18 U.S.C. § 2262 (2006), addressing the interstate violation of a protection order. Consistent with the views we received, we conclude that each of these provisions applies when the offender and the victim are the same sex.[1]
I.
The first of VAWA's three criminal provisions, section 2261 addresses certain specified types of interstate domestic violence. Subsection (a)(1) makes it a federal crime to travel in interstate or foreign commerce, to enter or leave Indian country, or to travel within the special maritime or territorial jurisdiction of the United States “with the intent to kill, injure, harass, or intimidate a spouse intimate partner, or dating partner” if, in the course of or as a result of such travel, the offender “commits or attempts to commit a crime of violence against that spouse, intimate partner, or dating partner.” 18 U.S.C. § 2261(a)(1) (emphases added). Subsection (a)(2) makes it a federal crime to “cause[] a spouse, intimate partner, or dating partner to travel in interstate or foreign commerce or to enter or leave Indian country by force, coercion, duress, or fraud” and, during, as a result of, or to facilitate such conduct or travel, to “commit[] or attempt[] to commit a crime of violence against that spouse, intimate partner, or dating partner.” Id. § 2261(a)(2) (emphases added). Section 2261 was part of VAWA as originally enacted in 1994, but at that time it covered only victims who were a “spouse or intimate partner” of the [ 2] offender. 18 U.S.C. § 2261 (2000). The 2006 VAWA amendments added the term “dating partner” to both subsections described above. See Pub. L. No 109-162, tit. I, § 116, 119 Stat. 2988 (2006).
Second section 2261A addresses interstate stalking. Subsection (1) makes it a federal crime to travel in interstate or foreign commerce, to enter or leave Indian country, or to travel within the special maritime or territorial jurisdiction of the United States “with the intent to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate another person” if, in the course of or as a result of such travel, the offender “places that person in reasonable fear of the death of, or serious bodily injury to, or causes substantial emotional distress to that person, a member of the immediate family (as defined in section 115)[2] of that person, or the spouse or intimate partner of that person.” 18 U.S.C. § 2261A(1) (emphases added). Subsection (2) makes it a federal crime to, with certain specified intent, “use[] the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress to” “a person in another State or tribal jurisdiction or within the special maritime and territorial jurisdiction of the United States, ” or to place “that person in reasonable fear of the death of, or serious bodily injury to, ” “that person, ” “a member of the immediate family (as defined in section 115) of that person, ” or “a spouse or intimate partner of that person.” Id. § 2261A(2) (emphases added). When first enacted in the 1996 amendments to VAWA, section 2261A covered only the target of the stalking and that person's immediate family members. See Pub. L. No. 104-201, div. A, tit. X, § 1069, 110 Stat. 2655 (1996). The 2000 VAWA amendments added subsection (2) and the phrase “spouse or intimate partner” after “immediate family” in subsection (1). See Pub. L. No. 106-386, div. B, tit. I, § 1107(b)(1), 114 Stat. 1498 (2000).
Finally, section 2262 addresses the interstate violation of a protection order.[3] Subsection (a)(1) makes it a federal crime to travel in interstate or foreign commerce, to enter or leave Indian country, or to travel within the special maritime and territorial jurisdiction of the United States “with the intent to engage in conduct that violates the portion of a protection order that prohibits or provides protection against violence, threats, or harassment against, contact or communication with, or physical proximity to, another person, or that would violate such a portion of a protection order in the jurisdiction in which the order was issued, ” and to subsequently engage in such conduct. 18 U.S.C. § 2262(a)(1) (emphasis added). Subsection (a)(2) makes it a federal crime to “cause[] another person to travel in interstate or foreign commerce or to enter or leave Indian country by force, coercion, duress, or fraud” if, in the course of, as a result of, or to facilitate such conduct or travel, the offender engages in conduct described in subsection (a)(1). Id. § 2262(a)(2) (emphasis added). Section 2262 was part of VAWA as originally enacted in 1994, but subsection (a)(2) applied at that time only to “a spouse or intimate partner” of the offender. 18 U.S.C. § 2262 (1994). The 2000 amendments to VAWA substituted “another person” for “a spouse or intimate partner.” Pub. L. No. 106-386, div. B, tit. I, § 1107(c), 114 Stat. 1498-99. These amendments also changed the wording of subsection (a)(1) [ 3] to refer to “another person” rather than to “the person or persons for whom the protection order was issued.” Id.
II.
We begin with an analysis of similar language that is used in sections 2261A and 2262, which cover interstate stalking and the interstate violation of a protection order, to define the class of victims to which they apply. Each provision applies to covered acts committed by an offender against “another person, ” although 2261A also applies in some circumstances to acts that affect a “spouse or intimate partner of that person, ” a point that we discuss further below.
With respect to the meaning of “another person, ” the analysis is straightforward. The plain meaning of the term encompasses individuals of both sexes, regardless of their relationship to the offender, and nothing in the text or the structure or purpose of VAWA indicates that a departure from plain meaning would be appropriate. It is true that the statute is entitled the Violence Against Women Act, but other provisions of the Act make clear it applies to conduct perpetrated against male, as well as female, victims, see, e.g., 42 U.S.C. § 13925(b)(8) (2006) (providing, with respect to VAWA's grant conditions, that “[n]othing in this subchapter shall be construed to prohibit male victims of domestic violence, dating violence, sexual assault, and stalking from receiving benefits and services under this subchapter”), and courts have so held, see, e.g., United States v. Bell, 303 F.3d 1187 (9th Cir. 2002) (); see also United States v. Page, 167 F.3d 325, 326 (6th Cir. 1999) (Moore, J., concurring) (). Courts have also held that sections 2261A and 2262 apply when the offender and victim are the same sex, see, e.g., Bell, 303 F.3d at 1189 (); United States v. Wills, 346 F.3d 476 (4th Cir. 2003) (man convicted of stalking man who was a government witness against him); United States v. Nedd, 262 F.3d 85 (1st Cir. 2001) (), and regardless of whether the offender and victim are involved in a romantic relationship, see, e.g., United States v. Fullmer, 584 F.3d 132 (3d Cir. 2009) (). We thus conclude that, in referring to “another person, ” sections 2261A and 2262 apply to otherwise covered conduct when the offender and victim are the same sex, and irrespective of the relationship between the offender and victim.
Section 2261A also applies when an offender places the target of the stalking in “reasonable fear of the death of, or serious bodily injury to, ” the target's “spouse or intimate partner” or “causes substantial emotional distress” to the target's “spouse or intimate partner.” For purposes of VAWA, the term “spouse” cannot be read to cover an individual who is the same sex as the target of the stalking, even if they are married under state law, because the Defense of Marriage Act (“DOMA”) provides that “[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and [ 4] agencies of the United States, . . . the word ‘spouse' refers only to a person of the opposite sex who is a husband or a wife.” 1 U.S.C. § 7 (2006).[4]
DOMA does not, however, address the additional term “intimate partner, ” which, for purposes of ...
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