VAWA Applies to Same-Sex Couples, Says Acting Assistant AG

June 14, 2010
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The criminal provisions of the Violence Against Women Act (VAWA) also cover conduct when the offender and victim are the same sex. That was the conclusion reached in a memo issued in April by U.S. Acting Assistant Attorney General David Barron.

VAWA includes three criminal provisions—18 U.S.C. sections 2261, 2261A, and 2262—that were amended in 2006 to address certain specified types of domestic violence that can apply to either “a spouse, intimate partner, or dating partner.”

Barron’s memo pointed out that the courts have held that sections 2261A and 2262 apply when the offender and victim are the same sex (e.g., United States v. Nedd, 2001). “It is true that the statute is entitled the Violence Against Women Act, but other provisions of the Act make it clear it applies to conduct perpetrated against male, as well as female, victims,” the memo stated. “Although the definition of ‘intimate partner’ refers to the ‘type of relationship’ as one criterion for determining whether a ‘relationship is a social relationship of a romantic or intimate nature,’ there is no indication that Congress intended by that vague phrase to require such relationships to be heterosexual.”

VAWA’s eviction and antidiscrimination protection applies to public housing and Section 8 programs. Under VAWA, owners and managers of government-assisted housing:

  • Cannot deny applicants rental assistance solely because they were previously evicted from a government-assisted housing site for being victims of domestic violence;
  • Cannot deny applicants government rental assistance solely for criminal activity that was directly related to the domestic violence; and
  • Cannot evict residents solely because they were victims of domestic violence, in that being a victim of domestic violence does not qualify as a “serious or repeated violation of the lease” or “other good cause” for eviction. For example, if a resident/wife has filed in court for a restraining order and the domestic violence recurs, the owner may evict the resident/husband, but not the wife.

In 2009, HUD reissued Notice H08-07, which warns assisted housing site owners and managers that the VAWA is not gender specific and also applies to men. In several instances, the notice used “he/she” when referring to a tenant who is a victim of domestic violence, dating violence, or stalking. The assistant AG’s memo broadens the law to cover more residents. Assisted housing site owners and managers should consult with their attorneys.

PRACTICAL POINTER: HUD warns site owners and managers that the eviction or termination of any household member, even an abusive individual, must be accordance with federal, state, and local law. For more information, go to: HUD Issues Certification Form 91066 and Lease Addendum for VAWA.