How To Respond Properly To Domestic Violence

This month, we tackle a difficult problem—what to do if domestic violence affects your community. If you haven't already been confronted with this problem, it's likely that you will be because of the staggering number of domestic violence incidents that occur each year in the United States. As Attorney General Eric Holder recently observed, “We know domestic violence is an epidemic that affects communities across this country regardless of age, race, or socio-economic background.”

In recent decades, lawmakers have adopted various measures to protect victims and punish abusers through the criminal justice system. Increasingly, lawmakers have expanded the focus to address the ways in which housing policies and practices perpetuate domestic violence. In 2005, Congress cited the link between domestic violence and homelessness—and how the lack of affordable alternatives adds to the cycle of domestic abuse—to extend protections for domestic violence victims in public housing and Section 8 housing through the Violence Against Women Act (VAWA).

Increasingly, conventional housing communities are finding themselves subject to laws aimed at protecting domestic violence victims. The success of the VAWA has spurred state and local lawmakers to adopt similar measures for domestic violence victims living in private housing communities. And a handful of states have—or are considering—measures to add domestic violence victims to their lists of protected characteristics under fair housing law. Meanwhile, advocates have turned to the courts to pursue claims that discrimination against domestic violence victims amounts to unlawful sex discrimination in violation of federal fair housing law.

In this issue, we'll give you some background information on domestic violence and how federal, state, and local laws address domestic violence in rental housing. Then, we'll offer six rules to help you respond to domestic violence. Finally, you can take the COACH's Quiz to see how much you've learned.

WHAT DOES THE LAW SAY?

All rental housing communities, regardless of where they are located and whether they are publicly or privately financed, must comply with the federal Fair Housing Act (FHA), which prohibits discrimination in housing based on disability, race, color, religion, national origin, sex, and familial status. The FHA does not specifically list domestic violence victims among the protected classes, but some fair housing advocates have argued that domestic violence victims are protected under the FHA's ban on discrimination on the basis of sex (gender).

Example: In a first-of-its kind decision, a federal court in 2005 ruled that a conventional housing community owner in Vermont could be liable under the FHA for discrimination on the basis of sex for allegedly terminating the lease of a domestic violence victim.

The case involved a woman who was physically assaulted by her husband in the unit where the couple lived with their two children. She said that she called police, who arrested her husband, and she applied for a restraining order. (The husband eventually pleaded guilty to criminal charges, including assault, stemming from the incident.)

Three days after the incident, the woman said that the building's owner, who lived upstairs, came for a visit. The particulars of the conversation were in dispute, but later that day, the owner sent a letter saying that the visit convinced her that “the violence that has been happening in your unit would continue and that I must give you a 30-day notice to leave the premises.”

The woman sued the owner under the FHA for discrimination on the basis of sex, arguing that the owner unlawfully terminated her lease because she was the victim of domestic violence. Denying the owner's request to dismiss the case, the court ruled that her allegations, if proven, could constitute unlawful discrimination under the FHA. Quoting from another case, the court noted, “There is evidence in the record from which a jury could find the defendants' domestic disputes policy had a discriminatory impact and was motivated by intent to discriminate against women” [Bouley v. Young-Sabourin, 2005].

Since then, advocates for domestic violence victims have filed several lawsuits against both public and private housing communities for sex discrimination under the FHA. In general, communities have responded by arguing that they are enforcing lease provisions and gender-neutral rules to take action against those involved in disturbances or criminal activity on the property.

Nevertheless, advocates argue that community actions or policies to exclude or otherwise discriminate against domestic violence victims violate the FHA's ban on sex discrimination because they have a disparate impact—an unfair effect—on women, who are much more likely than men to be victims of domestic violence. In addition, they argue that, by taking action against domestic violence victims for the actions of their abusers, communities have engaged in unlawful gender stereotyping based on the assumption that victims are responsible for the actions of their batterers.

Example: The American Civil Liberties Union (ACLU) filed a lawsuit on behalf of a domestic violence victim who was allegedly evicted from her unit because of her abuser's behavior. The lawsuit charged that the Michigan community's policy of evicting domestic violence victims because of their abusers' actions amounted to sex discrimination in violation of the FHA and state civil rights law.

According to her complaint, the woman broke up with her boyfriend and later got a personal protection order when he began harassing and stalking her. She said that she informed the community of the order that prohibited the boyfriend from coming near her unit. A few months later, the woman said that she was not at home when the boyfriend broke the windows of her home and kicked in her door. She said she immediately reported the incident to the police as well as the property manager. The boyfriend was ultimately convicted of home invasion and ordered to pay restitution. Nevertheless, according to the woman, the community evicted her for violating lease provisions making her responsible for any damage resulting from “lack of proper supervision” of her “guests.”

Under the settlement, the community agreed to not evict or discriminate against residents because they have been the victims of domestic violence, dating violence, sexual assault, or stalking, regardless of whether the abuser is residing in the resident's household. The community also agreed to offer early lease termination and relocation to residents who had been the victims of such abuse and needed to leave their homes to ensure their safety [Lewis v. North End Village, February 2008].

The ACLU's Women's Project, which was involved in these and other cases, has suggested that advocates consider filing FHA sex discrimination claims on behalf of domestic violence survivors. Though the theory has not been fully tested in the courts, they suggest that fair housing claims could be helpful as part of an overall litigation strategy, even when other laws apply, because fair housing claims may provide a greater opportunity to pursue policy changes and allow for monetary damages (including punitive damages), as well as attorney's fees.

6 RULES FOR RESPONDING TO DOMESTIC VIOLENCE

Rule #1: Get the Facts

If you've never been exposed to domestic violence, it can be difficult to understand the seriousness of the problem, its cyclical nature, and how it may lead to seemingly inconsistent behavior by a victim—such as continuing a relationship with her abuser. To avoid potential legal problems, it's important for your employees—not only your leasing staff, but also maintenance and cleaning staff—to know what to do if they observe or hear about domestic violence problems.

For example, a new fact sheet funded by the U.S. Department of Justice's Office of Violence Against Women explains that domestic violence—sometimes known as “intimate partner violence—is a gender-based crime with women being more likely to experience domestic violence than men. Intimate partner violence occurs within opposite-sex relationships as well as same-sex relationships, and includes physical and sexual violence, verbal and emotional abuse, stalking, and economic abuse.

Each year, according to the Centers for Disease Control (CDC), women experience about 4.8 million intimate-partner-related physical assaults and rapes; men are victims of about 2.9 million intimate-partner-related physical assaults. The CDC says that the numbers underestimate the problem: Many domestic violence victims don't report incidents to police, friends, or family because they think others won't believe them and that police cannot help.

Domestic violence victims face many barriers when leaving abusive relationships, according to the fact sheet. These include fear of the abuser, believing the abuser will take their children, hoping the abuser will change, embarrassment, shame, and self-blame for the situation. In addition, domestic violence may include economic abuse in which the abuser maintains control over finances, withholds access to money, and makes the victim financially dependent.

Domestic violence victims often return to their abusers when a viable option for permanent housing cannot be found, according to the National Coalition Against Domestic Violence. Domestic violence survivors may have trouble finding other housing not only because of limited temporary or affordable housing alternatives, but also because their history of abuse may adversely affect their employment, credit, and rental history.

COACH'S TIP: There are many sources of free online information about domestic violence. Here are a few resources that offer fact sheets and other materials about domestic violence:

• The Facts About Domestic Violence, Violence Against Women Online Resources, August 2009, www.vaw.umn.edu/documents/inbriefs/domesticviolence/domesticviolence-bw.pdf.

• Fact Sheet: Understanding Intimate Partner Violence, 2009. Centers for Disease Control, www.cdc.gov/ViolencePrevention/intimatepartnerviolence/index.html.

• Intimate Partner Violence, U.S. Department of Justice, National Institute for Justice, www.ojp.usdoj.gov/nij/topics/crime/intimate-partner-violence/welcome.htm.

• A framework for understanding: The nature and dynamics of domestic violence, Missouri Coalition Against Domestic and Sexual Violence, September 2006, www.mocadsv.org/Resources/CMSResources/pdf/dv101.pdf.

Rule #2: Comply with VAWA, if Applicable

If your community is a federally funded public housing authority or participates in the Section 8 voucher and project-based programs, then you must comply with the federal Violence Against Women Act (VAWA).

The VAWA provides specific protections for victims of domestic violence, dating violence, and stalking in public housing and Section 8 voucher and project-based programs. In adopting the measure, Congress observed that women and families across the country are being discriminated against, denied access to, and even evicted from public and subsidized housing because of their status as victims of domestic violence.

To achieve the goal of “creating long-term housing solutions that develop communities and provide sustainable living solutions for victims of domestic violence, dating violence, sexual assault, and stalking,” the law bars public housing authorities and communities participating in the Section 8 voucher and project-based programs from:

• Denying admission based on an individual's status as a victim of domestic violence;

• Evicting a domestic violence victim based on an incident of actual or threatened violence; and

• Terminating a lease based on “criminal activity directly relating to domestic violence, dating violence, or stalking” unless the community can demonstrate “an actual and imminent threat to other tenants or those employed at or providing services to the property” if the lease was not terminated.

The VAWA requires those communities to honor abuse protection orders and other court orders (such as divorce decrees) that address access to or control of the unit. The law also requires communities to inform individuals of their rights under the VAWA and to include information about those rights in lease agreements. In addition, in cases where both the victim and the perpetrator are parties to the lease, the law permits the community to “bifurcate” the lease in order to evict the perpetrator and allow the victim to remain.

Communities subject to the VAWA should get legal advice before attempting to evict a resident for noisy disturbances or violent altercations that might be related to domestic disputes. The VAWA applies, even in situations where the resident claims to be the victim of domestic abuse, but continues a relationship with her alleged abuser.

Example: A New York court ruled that the VAWA prevented a community from evicting a Section 8 resident based on her allegedly illegal and violent behavior during domestic disputes with her estranged boyfriend. Allegedly, police were called after an incident in which the boyfriend claimed that the resident stabbed him. The woman asserted that she was the victim of domestic violence—not the aggressor—and prosecutors did not pursue criminal charges against her. She said that the boyfriend had been drunk when he forced his way into her unit and assaulted her—at one point cutting himself on broken glass when he threw her against a bathroom cabinet. She also presented evidence of three police complaints about the boyfriend, along with an order of protection she had obtained against him, all of which were from the year before the incident.

The community disputed whether she was a domestic violence victim, presenting evidence that even after getting the protection order, the resident continued to allow the boyfriend into the building, swore at security guards when they tried to block the boyfriend's access, and engaged in several instances of loud fighting, yelling, and screaming at the boyfriend.

Siding with the resident, the court ruled that she was a victim of domestic violence and therefore protected from eviction under the VAWA. The court said that her alleged inconsistent behavior—allowing him access to the building after getting the protection order—was a characteristic of a battered woman. The court recognized the “battered-woman syndrome” as a well-established concept in law and science, which explains the behavioral pattern of abused women and how the abuse affects their conduct [Metro North Owners, LLC v. Thorpe, December 2008].

Rule #3: Check Applicable State and Local Laws

Depending on where your community is located, you could be subject to various state, county, or local laws aimed at protecting domestic violence victims.

Currently, one state—Rhode Island—lists “status as a victim of domestic abuse” among the characteristics protected under its Fair Housing Practices Act, while other states—including North Carolina, Washington, and the District of Columbia—offer protection based on victim status in their landlord-tenant laws, according to a January 2009 report by a Vermont legislative study committee.

The report states that more than half of U.S. jurisdictions have measures to protect domestic violence victims through their landlord-tenant laws. The form and language used in such measures vary, but examples include:

• Allowing status as a domestic violence victim as a defense to an eviction proceeding;

• Prohibiting communities from denying housing based on status as a domestic violence victim;

• Banning communities from interfering with a resident's right to call law enforcement in response to domestic violence;

• Requiring lease protections such as the ability to bifurcate the lease (by removing the batterer from the lease) and early lease termination by a victim who needs to move for safety reasons; and

• Changing locks to protect a victim.

The measures mark a trend toward providing additional protections to domestic violence victims, according to the report. Five jurisdictions—Indiana, Oregon, Washington, Wisconsin, and the District of Columbia—added a number of those protections in 2007 and 2008.

Meanwhile, a number of states are in various stages of the legislative process to add fair housing protections for victims of domestic violence. The Wisconsin legislature recently passed a measure to ban housing discrimination based on an applicant's status as a victim of domestic abuse, sexual assault, or stalking, which—if approved by the governor—will become law. A similar measure is being considered in Massachusetts.

COACH'S TIP: For updated information about state laws that provide housing protections to domestic violence victims, visit the Web sites of Legal Momentum (www.legalmomentum.org/ehrvdv) and the National Law Center on Homelessness and Poverty (www.nlchp.org).

Rule #4: Review Policies to Prevent Discrimination Claims

Depending on applicable law, your community could face a discrimination claim if your policies or practices directly or indirectly exclude victims of domestic violence or otherwise treat them unfairly.

Out of safety concerns, for example, some communities have been reluctant to admit applicants who have a past history of domestic abuse. But if your community is subject to laws protecting domestic violence victims, you may not turn away applicants who have a protective order, a former address of a domestic violence shelter, or other indications of domestic violence.

By the same token, it may be wise to review your eviction policies—particularly “zero-tolerance” policies that require evictions for any type of criminal activity that has occurred on your property. Your community could run afoul of state or local law—or face a fair housing claim—if your policy automatically requires eviction of anyone involved in violent or criminal acts, including the victim of a domestic violence incident.

Even if you don't have a zero-tolerance policy, it's a good idea to get legal advice before initiating eviction proceedings for lease violations against a resident who may be a domestic violence victim. A number of states give domestic violence victims the right to defend eviction proceedings due to alleged criminal activity or other lease violations if they can prove that the incidents are related to domestic abuse. And fair housing advocates have met with some success in pursuing claims for unlawful sex discrimination under the FHA.

Rule #5: Address Domestic Violence Victims' Safety Concerns

There are a number of ways in which a potential domestic violence situation may come to your attention. You could observe disturbing behavior, receive noise complaints from neighbors, or have the police called to your community. Or a domestic violence victim may enlist your help to enforce a protective order or ask you to change the locks, transfer her to another unit, or let her out of her lease early.

The circumstances will dictate how you should respond, but much depends on the law in your state and local area. The law in some states governs whether you must help keep the perpetrator of domestic violence away from the victim—or allow a victim to move out before the end of a lease to escape an abuser.

In cases where a domestic violence victim calls on you to keep out an alleged abuser, a determining factor is whether the alleged abuser is a party to the lease. Let's say, for example, that a resident asks for your help to enforce a court order—sometimes referred to as an “order of protection” or “restraining order—requiring an abusive boyfriend to stay a certain distance away from her. If the boyfriend is not a party to the lease, then you may take steps to protect the resident, such as changing the locks or instructing security guards not to allow him access. If you don't, you could face potential liability if the resident is injured or killed as a result.

But you are in a difficult legal position if he is a party to the lease. In general, even court-issued protection or restraining orders do not terminate a resident's rights under the lease to continued access to the unit. Absent state law requiring you to do so, you could face potential liability for a lease violation if you change the locks and refuse to give the boyfriend a key or otherwise exclude him from the community.

When faced with such circumstances, your best bet is to contact your attorney to determine what may be required under state law. In some states, the law requires communities under such circumstances to change the locks—or to permit the resident to do so—when the resident can document domestic violence. And the law in a few states—like the VAWA—permits communities to bifurcate the lease, in effect allowing for eviction of only the abuser, not the entire household.

COACH'S TIP: Contact your attorney if a resident asks you to help her escape domestic abuse by letting her out of her lease early. In a number of states, the law allows domestic violence victims to terminate a lease agreement early if they have to move to protect their safety or that of their children. Most require documentation of the abuse, and specify notice requirements. Some also address what happens to the security deposit. In most cases, the laws require communities to act quickly, so such requests require priority review and decision making.

Rule #6: Document Efforts to Resolve Domestic Violence Problems

For a variety of complex reasons, domestic violence victims often stay in an abusive relationship or return a number of times before they are able to stop the cycle of domestic abuse. For that reason, you could face the challenge of addressing neighbors' complaints about noisy fights or repeated calls to the police related to ongoing domestic violence.

In general, all residents have a right to the peaceful enjoyment of their homes, so many communities have policies to ban residents from excessive noise or conduct that disturbs their neighbors. Many provide for warnings, fines, and ultimately eviction, for continued violation of these policies.

Instruct your staff to report any complaints or comments from neighbors about noisy fights or other indications of possible domestic violence. Keep track of the complaints, the steps you took to investigate, and attempts to resolve the problem. Keep good records and contact your attorney for advice, particularly if, despite your best efforts, the complaints continue and you have no choice but to initiate eviction proceedings.

• Fair Housing Act: 42 USC §3601 et seq.

• Violence Against Women Act: H.R. 3402, PL 109-162.

COACH Sources

Nadeen W. Green, Esq.: Senior counsel, For Rent Media Solutions, 294 Interstate N. Pkwy., Ste. 100, Atlanta, GA 30339; (770) 801-2406; nadeen.green@forrent.com.

Carl York: Vice President, Sentinel Real Estate Corp., 8495 Scenic View Dr., Ste. 106, Fishers, IN 46038; (317) 570-6724; York@sentinelcorp.com.