Gender-Related Violence

• Author: Kevin R. Culhane
• Pages: 931-963

33-931

Chapter 33

Gender-Related Violence

§3300 Introduction

§3310 Elements of Plaintiff’s Gender-Related Violence Cause of Action

§3320 Information Regarding the Parties

§3330 Acts Constituting Gender-Related Violence – Plaintiff to Defendant

§3340 Acts Constituting Gender-Related Violence – Defendant to Plaintiff

§3350 Defenses in Gender-Related Violence Cases – Plaintiff to Defendant

§3360 Defenses in Gender-Related Violence Cases – Defendant to Plaintiff

§3370 Damages in Gender-Related Violence Cases-Plaintiff to Defendant

§3380 Damages in Gender-Related Violence Cases-Plaintiff to Defendant

§3390 Investigatory Interrogatories

§3300 Introduction

§3310 Elements of Plaintiff’s Gender-Related Violence Cause of Action

§3311 Affirmative Defenses to Plaintiff’s Gender-Related Violence Cause of Action

§3312 Definitions

§3320 Information Regarding the Parties

§3321 Information Regarding Defendant

§3321.1 Identification of Defendant

§3321.2 Personal Data Regarding Defendant

§3321.3 Similar Claims and Legal Proceedings

§3322 Information Regarding the Plaintiff

§3322.1 Personal Information Regarding the Plaintiff

§3322.2 Similar Claims and Legal Proceedings

§3330 Acts Constituting Gender-Related Violence – Plaintiff to Defendant

§3331 Conduct Constituting a Criminal Offense that Has as an Element the Use, Attempted Use, or

Threatened Use of Physical Force Against the Person or Property of Another

§3332 Conduct Constituting a Criminal Offense that Has as an Element the Use of Physical Force

Against the Person

§3333 Conduct Constituting a Criminal Offense that Has as an Element the Attempted Use of Physical

Force Against the Person

§3334 Conduct Constituting a Criminal Offense that Has as an Element the Threatened Use of Physical

Force Against the Person

§3335 Conduct Constituting a Criminal Offense that Has as an Element the Use, Attempted Use or

Threatened Use of Physical Force Against Property

§3336 Conduct Committed at Least in Part Based Upon the Gender of the Victim

§3337 Conduct Constituting a Physical Invasion of a Sexual Nature under Coercive Conditions

§3337.1 Sexual Assault

Model InterrogatorIes 33-932

§3340 Acts Constituting Gender-Related Violence – Defendant to Plaintiff

§3341 Conduct Constituting a Criminal Offense that Has as an Element the Use, Attempted Use, or

Threatened Use of Physical Force Against the Person or Property of Another

§3342 Conduct Constituting a Criminal Offense that Has as an Element the Use of Physical Force

Against the Person

§3343 Conduct Constituting a Criminal Offense that Has as an Element theAttempted Use of Physical

Force Against the Person

§3344 Conduct Constituting a Criminal Offense that Has as an Element the Threatened Use of Physical

Force Against the Person

§3345 Conduct Constituting a Criminal Offense that Has as an Element the Use, Attempted Use or

Threatened Use of Physical Force Against Property

§3346 Conduct Committed at Least in Part Based Upon the Gender of the Victim

§3347 Conduct Constituting a Physical Invasion of a Sexual Nature under Coercive Conditions

§3347.1 Sexual Assault

§3350 Defenses in Gender-Related Violence Cases – Plaintiff to Defendant

§3351 Consent by Plaintiff

§3352 Self-Defense

§3353 Defense of Third Person

§3354 Defense of Property

§3355 Recapture of Property

§3360 Defenses in Gender-Related Violence Cases – Defendant to Plaintiff

§3361 Consent by Plaintiff

§3362 Self-Defense

§3363 Defense of Third Person

§3364 Defense of Property

§3365 Recapture of Property

§3370 Damages in Gender-Related Violence Cases-Plaintiff to Defendant

§3371 Special Damages (Economic Losses)

§3372 General Damages (Non-Economic Losses)

§3373 Plaintiff’s Failure to Mitigate

§3374 Punitive Damages

§3374.1 Malice

§3374.2 Oppression

§3380 Damages in Gender-Related Violence Cases-Defendant to Plaintiff

§3381 Special Damages (Economic Losses)

§3382 General Damages (Non-Economic Losses)

§3383 Plaintiff’s Failure to Mitigate

§3384 Punitive Damages

§3384.1 Malice

§3384.2 Oppression

§3390 Investigatory Interrogatories

§3391 Witnesses

§3392 Opposing Party’s Surveillance

§3393 Insurance

§3394 Due Diligence in Preparation of Response

33-933 gender-related VIolence §3310

§3300 Introduction

Over 20 years ago it was recognized that gender-related crimes had reached epidemic proportions in the United

States, with studies showing that approximately 1.9 million women were victims of sexual assault annually. (Cal.

Assembly Judiciary Comm. Analysis of AB1928, (April 9, 2002).) Indeed, during the early 1990’s it was estimated that

the United States spent between five and ten billion dollars annually on health care and criminal justice costs related

to gender-based violence. (Id., See also Review of Selected 2002 California Legislation, 34 McGeorge L. Rev 333.)

In response to this pervasive social problem, Congress enacted the Violence Against Women Act of 1994

(“VAWA”), which provided a federal civil remedy for victims of gender-motivated violence. However, the United

States Supreme Court subsequently invalidated that statute, holding that federal power to legislate in this area could

not be found in either the Commerce Clause or the Fourteenth Amendment. (United States v. Morrison (2000) 529 U.

S. 598, 627.) As a result of Morrison, the question of how the civil justice system should respond to injuries caused

by gender-related violence was left to determination by the several states.

In response to the decision in Morrison, the California Legislature enacted Civil Code section 52.4, which is mod-

eled after the federal Violence Against Women Act (“VAWA”) and provides similar remedies. In enacting the statute

the legislature specifically found that existing state and federal laws did not adequately remedy gender-related vio-

lence, that such violence disproportionately occurred against women, and that violence based on gender constituted

a form of prohibited discrimination. (Stats 2002 Chap. 842 Section 1.) These findings reflected a growing consensus

identifying gender-related violence as a form of sex discrimination. (See, e.g., What is Gender‑Based Violence?

European Institute for Gender Equality (7/05/2014).)

Under statutes such as California’s, the tort of gender-related violence involves (1) specifically defined conduct

involving the attempted use or threatened use of physical force against another that is (2) committed at least in part

based upon the gender of the victim that causes (3) damages that are recoverable under the statutory framework. (See

Cal. Civ. Code section 52.4.) These necessary elements are the subject of the sections that follow.

It should be noted that the tort of gender-related violence is similar to but analytically distinct from the tort of

domestic violence that is separately treated in Chapter 32. Although the two torts may overlap in many instances, the

tort of domestic violence is defined to include any form of violence that is directed against persons with whom the

defendant has or had a specifically defined relationship. (See Chapter 32, Domestic Violence at §3210.) Conversely,

gender-related violence consists of violence directed against any person (regardless of any pre-existing relationship

with defendant), provided that the violence is committed at least in part based upon the gender of the victim. (Cal.

Civ. Code section 52.4 (c) (1).) Accordingly this chapter addresses cases in which plaintiff seeks to recover under the

statutory provisions providing remedies for gender-related violence.

Editor’s Note: While the California gender-related violence statute is the template for the analysis that follows,

the applicable law in other states may vary. Accordingly, this chapter provides a starting point for the practitioner’s

research regarding the elements required under a given state’s statutory equivalent.

§3310 Elements of Plaintiff’s Gender-Related Violence Cause of Action

A plaintiff who seeks to recover under California’s gender-related violence law is required to prove injury result-

ing from gender-based violence. The statute in turn defines actionable gender-based violence to include either (1) an

act that constitutes a criminal offense under state law that has as an element the use, attempted use, or threatened use

of physical force against the person or property of another, when the act is committed at least in part based upon the

gender of the victim, or (2) a physical intrusion or physical invasion of a sexual nature under coercive conditions.

(See Cal. Civ. Code section 52.4 (c) (1) and (c) (2).)

In cases in which the plaintiff establishes the foregoing elements, he or she is entitled to the full range of tort rem-

edies, including compensatory general and special damages, as well as punitive damages in an appropriate case. In

addition, a plaintiff who establishes the foregoing elements is in an appropriate case entitled to additional remedies,

including injunctive relief, attorneys’ fees and costs.