Application of the Violence Against Women Act When the Offender and Victim Are the Same Sex

Application of the Violence Against Women Act 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.
April 27, 2010
MEMORANDUM OPINION FOR THE
ACTING DEPUTY ATTORNEY GENERAL
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 of the same sex. VAWA includes three
criminal provisions: 18 U.S.C. § 2261 (2006), addressing interstate do-
mestic 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)
1 We received views from the Criminal and Civil Rights Divisions, the Office on Vio-
lence Against Women, and the Executive Office for United States Attorneys. See E-mail
for Jeannie S. Rhee, Deputy Assistant Attorney General, Office of Legal Counsel, from
Mythili Raman, Principal Deputy Assistant Attorney General, Criminal Division (Feb. 23,
2010) (attaching Memorandum for Lanny A. Breuer, Assistant Attorney General, Crimi-
nal Division, from P. Kevin Carwile, Chief, Gang Unit, and Michael S. Warbel, Trial
Attorney, Criminal Division, Re: Criminal Prosecution of Same-Sex Partners Under the
Violence Against Women Act (Feb. 19, 2010)); E-mail for David J. Barron, Acting Assis-
tant Attorney General, Office of Legal Counsel, from Samuel Bagenstos, Principal Dep-
uty Assistant Attorney General, Civil Rights Division (Apr. 8, 2010); Memorandum for
Jeannie S. Rhee, Deputy Assistant Attorney General, Office of Legal Counsel, from
Jennifer E. Kaplan, Attorney Advisor, Office on Violence Against Women, Re: Applica-
tion of the Violence Against Women Act to Same-Sex Dating Violence (Mar. 24, 2010);
E-mail for Jeannie S. Rhee, Deputy Assistant Attorney General, Office of Legal Counsel,
from Margaret S. Groban, Assistant United States Attorney, Office of Legal Programs and
Policy, Executive Office for United States Attorneys (Feb. 10, 2010).
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34 Op. O.L.C. 147 (2010)
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 at-
tempts to commit a crime of violence against that spouse, intimate part-
ner, or dating partner.” 18 U.S.C. § 2261(a)(1) (emphases added). Sub-
section (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
offender. The 2006 VAWA amendments added the term “dating partner”
to both paragraphs described above. Violence Against Women and De-
partment of Justice Reauthorization Act of 2005, Pub. L. No. 109-162,
§ 116(a), 119 Stat. 2960, 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
2 Section 115 defines “immediate family member” as an individual’s “spouse, parent,
brother or sister, child or person to whom he stands in loco parentis” or “any other person
living in his household and related to him by blood or marriage.” 18 U.S.C. § 115 (2006).
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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 VA-
WA, section 2261A covered only the target of the stalking and that per-
son’s immediate family members. National Defense Authorization Act for
Fiscal Year 1997, Pub. L. No. 104-201, § 1069, 110 Stat. 2422, 2655
(1996). The 2000 VAWA amendments added subsection (2) and the
phrase “spouse or intimate partner” after “immediate family” in subsec-
tion (1). Victims of Trafficking and Violence Protection Act of 2000, Pub.
L. No. 106-386, § 1107(b)(1), 114 Stat. 1464, 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 harass-
ment 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). Sub-
section (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 de-
scribed 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. The 2000 amendments to VAWA substituted “another person”
for “a spouse or intimate partner.” Pub. L. No. 106-386, § 1107(c), 114
Stat. at 1498–99. These amendments also changed the wording of subsec-
tion (a)(1) to refer to “another person” rather than to “the person or per-
sons for whom the protection order was issued.” Id.
3 For purposes of VAWA, “protection order” is defined in 18 U.S.C. § 2266(5) (2006).
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34 Op. O.L.C. 147 (2010)
II.
We begin with an analysis of similar language that is used in sections
2261A and 2262, which cover interstate stalking and the interstate viola-
tion 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 circum-
stances 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 subchap-
ter 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) (male victims of interstate
stalking); see also United States v. Page, 167 F.3d 325, 326 (6th Cir.
1999) (Moore, J., concurring) (“While Congress was particularly con-
cerned with those crimes that ‘disproportionately burden women,’ S. Rep.
No. 103-138, at 37 [(1993)], [VAWA’s] criminal provisions are gender-
neutral, and enforcement has been gender-neutral as well.”). 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 (man convicted
of stalking several men believed to have been government agents); 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) (man convicted of violating protection order
covering an unrequited love interest and her father), 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) (animal
rights activists convicted of stalking individuals associated with a compa-
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ny that conducted animal testing). 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
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 part-
ner,” which, for purposes of section 2261A, is defined in 18 U.S.C.
§ 2266(7) (2006). That section provides that the composite phrase “spouse
or intimate partner” means “a spouse or former spouse of the target of the
stalking, a person who shares a child in common with the target of the
stalking, and a person who cohabits or has cohabited as a spouse with the
target of the stalking”; “a person who is or has been in a social relation-
ship of a romantic or intimate nature with the target of the stalking, as
determined by the length of the relationship, the type of relationship, and
the frequency of interaction between the persons involved in the relation-
ship”; or “any other person similarly situated to a spouse who is protected
4 Section 2261A also applies when an offender places the target of the stalking in rea-
sonable fear of the death of, or serious bodily injury to, or causes substantial emotional
distress to a member of the target’s “immediate family,” which, as defined in 18 U.S.C.
§ 115, includes a spouse. See supra note 2. This section thus applies to the target’s spouse
through two separate references—“immediate family” and “spouse or intimate partner”—
a redundancy that is explained, at least in part, by the fact that section 115’s definition is
not specific to VAWA and that the term “spouse or intimate partner,” added to section
2261A as an amendment after its original enactment, occurs throughout VAWA and is
defined as a composite phrase. See 18 U.S.C. § 2266(7) (2006). DOMA’s limitation on
the term “spouse” applies to section 115 as well as to the phrase “spouse or intimate
partner.”
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34 Op. O.L.C. 147 (2010)
by the domestic or family violence laws of the State or tribal jurisdiction
in which the injury occurred or where the victim resides.” 5 Two parts of
this composite definition—namely, “a person who shares a child in com-
mon with the target of the stalking” and “a person who is or has been in a
social relationship of a romantic or intimate nature with the target of the
stalking”—refer to a “person” without any kind of spousal relationship to
the target of the stalking and thus provide content to what it means to be
an “intimate partner.” The unqualified use of the term “person” is signifi-
cant, as its plain meaning, for the reasons set forth above, is best read to
be encompassing. And there is nothing else in section 2266(7) that pro-
vides a basis for reading the term “person” more narrowly in this context
to exclude an individual who is the same sex as the target of the stalking.
Two individuals who are the same sex may, for example, “shar[e] a child
in common,” see, e.g., Adar v. Smith, 597 F.3d 697 (5th Cir. 2010);
Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007), or be involved in a
“social relationship of a romantic or intimate nature” for purposes of that
subsection, see, e.g., Lawrence v. Texas, 539 U.S. 558 (2003); Baker v.
State, 744 A.2d 864 (Vt. 1999). And although the definition of “intimate
partner” refers to the “type of relationship” as one criterion for determin-
ing whether a relationship is a “social relationship of a romantic or inti-
mate nature,” there is no indication Congress intended by that vague
phrase to require such relationships to be heterosexual. Indeed, the phrase
is most naturally read to refer to indicia that the relationship is or was
“romantic or intimate,” as the statute prescribes. 6 Thus, based on the
5 The 2006 VAWA amendments added the reference to individuals in social relation-
ships of a romantic or intimate nature. Pub. L. No. 109-162, § 106(d), 119 Stat. at 2982.
6 Although “a word may be known by the company it keeps,” Graham County Soil &
Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 287 (2010)
(internal quotation marks omitted), the fact that VAWA joins the term “spouse” with the
term “intimate partner” in one combined definition is not a ground for concluding that
DOMA’s restriction on the former term should be applied to the latter term so as to
preclude an “intimate partner” from being the same sex as the offender. The noscitur a
sociis canon applies when a potentially broad term appears as part of “some sort of
gathering with a common feature to extrapolate” in order to give consistent meaning to
the statutory terms that are so gathered. S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547
U.S. 370, 379–80 (2006); see also Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 226
(2008); Gutierrez v. Ada, 528 U.S. 250, 254–58 (2000) (applying the canon to limit the
phrase “any election” to gubernatorial elections when the phrase was surrounded by six
specific references to gubernatorial elections). Simply put, the terms “spouse” and
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statutory definition, a person who is the same sex as the target of the
stalking may be an “intimate partner” of the target for purposes of section
2261A.
The last of VAWA’s criminal provisions, section 2261, is limited in
reach to those victims who are the “spouse, intimate partner, or dating
partner” of the offender. Despite this difference from sections 2261A and
2262, we conclude that section 2261, too, applies when the victim and the
offender are the same sex. The analysis that leads us to this conclusion is
essentially the same as that set forth above.
The term “spouse” may not be read to include an individual who is the
same sex as the offender because of DOMA, but 18 U.S.C. § 2266(7)
defines the phrase “spouse or intimate partner” 7 for purposes of section
2261 in materially identical terms to the definition that governs section
2261A. An “intimate partner” of the offender thus includes “a person who
shares a child in common with the abuser” and “a person who is or has
been in a social relationship of a romantic or intimate nature with the
abuser, as determined by the length of the relationship, the type of rela-
tionship, and the frequency of interaction between the persons involved in
the relationship.” Because, as we have noted, persons who are the same
sex may share a child in common or be in a social relationship of a ro-
mantic or intimate nature, the term “intimate partner” in section 2261
includes a victim who is the same sex as the abuser.
With respect to section 2261, therefore, that leaves only the term “da-
ting partner” to be examined. The term is defined in 18 U.S.C. § 2266(10)
similarly to one portion of section 2266(7)’s definition of “spouse or
intimate partner.” Section 2266(10) provides that a “dating partner” is “a
“intimate partner,” despite their appearance together in the definitional section of VAWA,
do not constitute the requisite sort of “gathering with a common feature” to which the
noscitur canon could apply. See, e.g., Graham County, 559 U.S. at 288–89 (declining to
apply the canon to the adjectives “congressional, administrative, or Government Account-
ing Office” in order to limit the middle term to federal, rather than all governmental,
administrative reports).
7 Section 2261, as originally enacted, included the exact phrase “spouse or intimate
partner,” but the 2006 VAWA amendments replaced that phrase with “spouse, intimate
partner, or dating partner.” Despite the fact that the terms “spouse” and “intimate partner”
are now separated by a comma rather than by the word “or” in section 2261, it is clear
that the definition in section 2266(7) (“spouse or intimate partner”) continues to govern
the meaning of the two terms.
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34 Op. O.L.C. 147 (2010)
person who is or has been in a social relationship of a romantic or inti-
mate nature with the abuser,” and it specifies that “[t]he existence of such
a relationship is based on a consideration of” “the length of the relation-
ship,” “the type of relationship,” and “the frequency of interaction be-
tween the persons involved in the relationship.” 8 As we have explained,
materially identical language supports the conclusion that an “intimate
partner” may be the same sex as the abuser, and we see no reason for
reaching a different conclusion as to this language when it defines the
term “dating partner.” In both cases, the relevant definitions contained in
section 2266 state that the terms “intimate partner” and “dating partner” in
section 2261 refer to a “person” with a particular sort of relationship to
the abuser. They do not further suggest any limitation based on the sex of
either the abuser or the victim or any requirement that the abuser and the
victim not be the same sex.
The limited legislative history that bears on the pertinent VAWA provi-
sions is consistent with our reading of the terms “intimate partner” and
“dating partner.” The 2006 VAWA amendments added the definition of
“dating partner” and amended the definition of “spouse or intimate part-
ner” for purposes of VAWA’s criminal provisions. Those amendments
also sought to strengthen the health care system’s response to domestic
violence, dating violence, sexual assault, and stalking. A finding pertain-
ing to these latter changes discusses the “health-related costs of intimate
partner violence” and notes that “[t]hirty-seven percent of all women who
sought care in hospital emergency rooms for violence-related injuries
were injured by a current or former spouse, boyfriend, or girlfriend.”
Pub. L. No. 109-162, § 501(1)–(2), 119 Stat. at 3023 (emphases added).
This finding’s reference to “intimate partner” violence between women
and their girlfriends comports with our conclusion that two individuals
8 The 2006 VAWA amendments introduced the term “dating partner” and this at-
tendant definition, Pub. L. No. 109-162, § 116(b), 119 Stat. at 2989, although the 2000
amendments had previously used the term “dating violence” in several of VAWA’s non-
criminal provisions and had defined that term in nearly identical language, see, e.g., Pub.
L. No. 106-386, § 1108, 114 Stat. at 1500 (“[T]he term ‘dating violence’ means violence
committed by a person—(A) who is or has been in a social relationship of a romantic or
intimate nature with the victim; and (B) where the existence of such a relationship shall
be determined based on a consideration of the following factors: (i) the length of the
relationship; (ii) the type of relationship; and (iii) the frequency of interaction between the
persons involved in the relationship.”).
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who are the same sex may be considered “intimate partner[s]” for purpos-
es of VAWA.
Similarly, H.R. 1248, 106th Cong. (1999), which became Public Law
106-386, initially defined “domestic violence” for purposes of VAWA’s
grant programs as including “acts or threats of violence, not including acts
of self-defense, committed . . . by a person who is or has been in a contin-
uing social relationship of a romantic or intimate nature with the victim.”
H.R. 1248, § 2. During Committee markups, a manager’s amendment
changed the definition to exclude the reference to those persons in roman-
tic or intimate relationships. Instead, a separate definition of “dating
violence” was added to select VAWA programs. That definition tracks the
definition of “dating partner” in the 2006 amendments, covering violence
committed by a person “who is or has been in a social relationship of a
romantic or intimate nature” as determined by the length of relationship,
type of relationship, and frequency of interaction between the persons.
See supra note 8. In published additional views, sixteen members of
Congress expressed concern that dating violence had not been included in
all of VAWA’s grant programs. In doing so, those members stated that
dating violence encompassed violence in same-sex relationships. See
H.R. Rep. No. 106-891, pt. 1, at 85 (2000) (Additional Views) (“One of
the most serious concerns we have with the committee-passed bill is its
failure to expand the scope of VAWA funding to include programs de-
signed to combat dating violence, including violence in same-sex relation-
ships. As introduced, H.R. 1248 would have amended VAWA so that the
term ‘domestic violence’ would have included dating violence, and vio-
lence between same-sex couples, a position which is strongly supported
by all of the major domestic violence and sexual assault groups, the
Department of Justice, the National Association of Attorneys General, and
the U.S. Conference of Mayors.” (footnotes omitted)). In other words, the
additional views endorsed the position that a “social relationship of a
romantic or intimate nature” includes such a relationship between two
individuals who are the same sex. Nothing elsewhere in the House Report
calls this reading into question. Subsequently, in the 2006 VAWA
amendments Congress added the “social relationship of a romantic or
intimate nature” language to VAWA’s criminal provisions, defining both
“intimate partner” and “dating partner” in terms of such relationships. The
legislative history of this phrase in the 2000 House Report is thus con-
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34 Op. O.L.C. 147 (2010)
sistent with reading the terms “intimate partner[s]” and “dating partner[s]”
for purposes of section 2261, as amended, to include two individuals who
are the same sex.
III.
The text, relevant case law, and legislative history all support the con-
clusion that VAWA’s three criminal provisions, 18 U.S.C. §§ 2261,
2261A, and 2262, apply to otherwise-covered conduct when the offender
and victim are the same sex. And the views we have received reach the
same conclusion. Thus, for the reasons set forth above, we conclude that
each of these provisions apply when the offender and the victim are the
same sex.
DAVID J. BARRON
Acting Assistant Attorney General
Office of Legal Counsel
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