Julie Goldscheid [FNaa1], "Gender-Motivated Violence: Developing a Meaningful Paradigm for Civil Rights Enforcement," 22 Harv. Women's L.J. 123 (Spring 1999).

[I]s the crime of rape motivated by lust or hate? [FN1]
Law reform initiatives treating crimes such as rape and domestic violence as civil rights violations are forcing policy makers,
lawyers, judges and advocates to grapple with the extent to which these crimes are driven by personal motivations such as desire or
by discriminatory motivation, like other hate crimes. New laws treating these crimes as gender-based bias crimes
(Cite as: 22 Harv. Women's L.J. 123, *123)

parallel initiatives to ensure increased and improved services for battered women and survivors of rape and sexual assault. [FN2]
These civil *124
(Cite as: 22 Harv. Women's L.J. 123, *124)

rights laws reflect the growing recognition that rather than being random and private matters, domestic violence, rape, and sexual
assault are violent expressions of discrimination much like other bias-related crimes directed at individuals because of their race,
color, religion, national origin, sexual orientation, or disability. [FN3]
Two federal laws treating gender-based crimes as bias crimes are prompting policy-makers, courts, and advocates to identify the
existence of gender bias in violent crimes against women. In 1994, as part of the Violence Against Women Act ("VAWA"), Congress
enacted a Civil Rights Remedy that establishes a federal civil rights cause of action for gender-motivated violent crimes. [FN4] In a
related initiative, Congress recently debated the Hate Crimes Prevention Act ("HCPA"), which presents the analogous question of
whether the federal hate crimes statute, 18 U.S.C. § 245, should be amended to include gender, sexual orientation, and disability as
well as the existing protected groups of race, color, religion, and national origin. [FN5]
Enactment of the Civil Rights Remedy reflects increased acceptance of the feminist position that crimes such as rape and sexual
assault are bias crimes that violate women's civil rights. [FN6] Congress, in enacting the 1994 *125
(Cite as: 22 Harv. Women's L.J. 123, *125)

Violence Against Women Act, expressly recognized the connections among
(Cite as: 22 Harv. Women's L.J. 123, *125)

domestic violence, rape, and sexual assault and other hate crimes. [FN7] It reasoned:
Whether the attack is motivated by racial bias, ethnic bias, or gender bias, the results are often the same. The victims of such
violence are reduced to symbols of hatred; they are chosen not because of who they are as individuals but because of their class
status. The violence not only wounds physically, it degrades and terrorizes, instilling fear and inhibiting the lives of all those
similarly situated. [FN8]
The Civil Rights Remedy and the HCPA provide an opportunity to examine and bring to light the way in which persistent biases
against women are manifest through violence. [FN9] Although our country historically has treated these crimes as personal, family
law matters, [FN10] they inflict a harm much like other bias crimes. They affect women as a group, not just as individuals,
collectively influencing and limiting women's choices about everything from where to work or study to how and when to travel.
[FN11] The chill on women's life choices is palpable: violence fundamentally restricts women's sense of citizenship and freedom.
Progress in reconceptualizing crimes of violence against women as public civil rights rather than private family matters, tracks the
development *126
(Cite as: 22 Harv. Women's L.J. 123, *126 )

of other forms of sex discrimination law, most notably sexual harassment. Like the broader category of violence against women, of
(Cite as: 22 Harv. Women's L.J. 123, *126)

which sexual harassment is one type, sexual harassment was traditionally seen as a private matter that properly lay outside the
realm of anti-discrimination laws. [FN12] Yet the legal recognition that such conduct is a form of discrimination has greatly
contributed both to the development of employment policies prohibiting sexual harassment as well as to increased public
awareness that sexual harassment is prohibited conduct that should not be tolerated. [FN13] Analogous legal developments
treating violence against women as a civil rights violation can help transform public awareness of domestic violence and sexual
assault, as another tool toward eliminating this pernicious problem. [FN14]
Questions about the nature of gender bias in violent crimes against women animate the passage and implementation of these laws.
The prevalence of sexual assault and domestic violence and the extent to which violence against women is ingrained in our culture
have raised questions about how well the analogy to other bias crime law fits. For example, should every sexual assault, or every
act of domestic violence, be regarded as a bias crime and consequently be subject to additional criminal or civil penalties? How
could the federal law enforcement system handle the resulting burdens? If only some of these crimes reflect discriminatory bias,
how can we discern the ones that do from the ones that don't? Do non-gendered motivations such as desire or personality ever drive
these acts? And how fitting are analogies from other forms of bias
(Cite as: 22 Harv. Women's L.J. 123, *126)

crimes, in which, for example, we readily accept symbolic acts such as lynching or cross-burning as indicative of bias? [FN15]
*127
(Cite as: 22 Harv. Women's L.J. 123, *127)

In light of these background concerns, courts are beginning to analyze gender-motivation as a factor underlying violent acts as
women bring claims under the VAWA Civil Rights Remedy. Congress undoubtedly will address the same issues as it considers
authorizing federal criminal prosecutions for gender-based bias crimes. Notwithstanding questions that may loom about the true
nature of bias motivation, these new laws will spur the development of case law that describes gender-motivation under federal civil
rights laws.
This Article will elaborate an approach to assessing gender-motivation that can guide courts in determining when violent acts are
sufficiently gender biased to warrant federal civil rights intervention. Beginning with an overview of the federal legislative
initiatives, this Article addresses why adding gender to the protected groups covered by criminal and civil federal bias crime
remedies should be an unremarkable development. Through an in-depth analysis of the first cases litigated under the Civil Rights
Remedy, as well as an analysis of other bias crime case law, the Article shows how circumstantial evidence of bias readily identifies
bias motivation underlying violent crimes, regardless of whether the bias is based on race, color, religion, national origin, sexual
orientation, disability, or gender. Building on that basic framework, the Article will address some of the perceived limitations of the
analogies between
(Cite as: 22 Harv. Women's L.J. 123, *127)

gender-motivated and other types of bias crimes in offering directions for federal enforcement. The framework will provide a basis
for analyzing future VAWA Civil Rights Remedy cases and will help address concerns that may arise in the course of debates about
amending the federal hate crime law.
Part I of this Article presents the legislative overview. Part II provides a close analysis of existing bias crime precedent, including
Title VII law, the FBI guidelines for identifying hate crimes, and federal and state criminal and civil rights cases. Part III sets forth
the fundamental principles for applying bias crime case law to gender-motivated crimes. Part IV addresses the special issues that
arise in applying existing bias crime case law to gender-motivated bias crimes.
Federal civil rights treatment for gender-bias crimes is crucial for a number of reasons. Traditional civil and criminal recourse is
frequently unavailable. [FN16] Moreover, a civil rights approach more accurately frames *128
(Cite as: 22 Harv. Women's L.J. 123, *128)

the nature of the crimes to reflect the underlying gender bias. By requiring circumstantial evidence of bias as a prerequisite to
federal civil rights treatment, Congress charted a compromise between the view that all sexual assaults and acts of domestic
violence should be treated as bias crimes and the view that bias crime treatment is impossible because it would overwhelm federal
judicial resources. As the early experience with cases litigated under the Civil Rights Remedy shows, the federal judiciary has not
been overwhelmed, and
(Cite as: 22 Harv. Women's L.J. 123, *128)

courts are readily identifying the bias that underlies acts such as sexual assault and domestic violence. A proper inquiry into the
presence of circumstantial evidence will reveal the prevalence of bias underlying these crimes. Rather than justifying inaction, the
pervasiveness of the problem should instead provide a rallying cry for creative efforts to eliminate the roots of bias and all its
violent manifestations.

I. THE VIOLENCE AGAINST WOMEN ACT AND HATE CRIMES PREVENTION ACT: OVERVIEW OF
FEDERAL LEGISLATIVE INITIATIVES
In September 1994, Congress passed the first federal law recognizing and attempting to stop gender-motivated violence, the
Violence Against Women Act (VAWA). [FN17] VAWA contains an historic civil rights provision designed to address
gender-motivated violence. [FN18] That provision, called the Civil Rights Remedy, was enacted after four years of intensive
lobbying and a series of Congressional hearings. It declares for the first time that violent crimes motivated by the victim's gender
are discriminatory and violate the victim's federal civil rights. [FN19] It permits victims of gender-motivated violence to bring a
civil rights suit in federal court for compensatory or punitive damages, declaratory or injunctive relief, and attorney's fees. [FN20]
*129
(Cite as: 22 Harv. Women's L.J. 123, *129)

The law provides a remedy against the perpetrator of a gender-based crime and contains two basic elements of proof. First, a
plaintiff must
(Cite as: 22 Harv. Women's L.J. 123, *129)

establish that she [FN21] was the victim of a "crime of violence" of sufficient severity. [FN22] She need not, however, prove that
there was a previous criminal complaint, prosecution, or conviction. [FN23] Second, she must prove that the act was "motivated by
gender." [FN24] The Civil Rights Remedy also provides concurrent jurisdiction in federal or state court, [FN25] although once
commenced in state court, a Civil Rights Remedy claim cannot be removed to federal court. [FN26]
The "gender-motivation" element requires a plaintiff to prove the connection between the defendant's violent acts and the victim's
gender. The victim must prove that the violent act was committed: (1) "because of gender or on the basis of gender"; and (2) "due, at
least in part, to an animus based on the victim's gender." [FN27] While the statute enumerates that two-part analysis for proving
gender-motivation, the legislative history indicates that the statutory element was drafted with the singular goal of *130
(Cite as: 22 Harv. Women's L.J. 123, *130)

ensuring that only gender-motivated violent acts, rather than "random" acts of violence, form the basis for a VAWA recovery.
[FN28]
The Civil Rights Remedy's legislative history directs courts to analyze whether a violent act was gender-motivated in the same
manner that bias is assessed in other civil rights statutes: by evaluating the "totality of the circumstances" for such evidence as
epithets, patterns of behavior, statements evincing bias, and other circumstantial as well as direct evidence reflecting
(Cite as: 22 Harv. Women's L.J. 123, *130)

gender-based bias. [FN29] Congress specifically stated that the Reconstruction-era civil rights statutes, notably 42 U.S.C. §§ 1981,
1983, and 1985(3), as well as Title VII of the Civil Rights Act of 1964 ("Title VII"), would offer "substantial guidance" in assessing
gender- motivation. [FN30] Not coincidentally, the Civil Rights Remedy's wording directly tracks the statutory language of Title VII
[FN31] and incorporates some of the language used by courts in adjudicating claims brought under 42 U.S.C. § 1985(3). [FN32]
Although women have begun to use this new law, most decisions have focused on the law's constitutionality [FN33] and have not
yet generated substantial case law addressing the meaning of "gender- motivation." [FN34]
*131
(Cite as: 22 Harv. Women's L.J. 123, *131)

As the Civil Rights Remedy begins to be used, Congress is contemplating a criminal analog that would amend the federal hate crimes
law to permit federal criminal prosecution of bias crimes based on gender, sexual orientation or disability. Federal hate crime laws
currently authorize federal prosecution for bias crimes that are motivated by the victim's race, color, religion, or national origin,
provided that the crime is committed when the victim was engaged in one of several enumerated federally protected activities.
[FN35] In November 1997, an amendment to that law was introduced in Congress that would permit prosecution of certain bias
crimes based on gender, sexual orientation, or disability as well as bias crimes based on race,
(Cite as: 22 Harv. Women's L.J. 123, *131)

color, religion, or national origin, even absent a proven nexus with a federally protected activity. [FN36] As a Department of Justice
official testified in supporting the bill, the law would encourage federal and state cooperation in investigating and prosecuting
violent gender-based hate crimes and would limit federal prosecution to cases in which gender-based bias could be proved. [FN37]
In hearings addressing the scope of the acts that would be covered under this law, supporters explained that gender-motivation
could be assessed using the same type of inquiry employed in other discrimination and bias crime cases. [FN38] Some raised
categorical objections to anti-bias crime legislation. [FN39] However, the precise parameters of how to establish gender-motivation
remain to be elaborated.

*132
(Cite as: 22 Harv. Women's L.J. 123, *132)

II. ANALOGOUS CASE LAW--A GUIDE FOR ANALYZING BIAS MOTIVATION
Both federal and state courts routinely analyze cases involving harassment and violence, using circumstantial evidence to
determine whether they are motivated by bias. The circumstantial evidence that reflects bias is remarkably consistent, regardless of
whether courts are analyzing federal or state hate crime laws or sexual harassment laws. These cases make clear that courts can rely
on the same types of evidence to assess gender-motivation in analyzing the presence of bias underlying violent crimes committed
against women.

(Cite as: 22 Harv. Women's L.J. 123, *132)

A. Federal Bias Crimes Enforcement
The Civil Rights Remedy and the Hate Crimes Prevention Act proposal build on a long history of federal legislative interventions to
redress bias-motivated violence. Most of those laws target bias crimes based on race, color, religion, national origin, and ethnicity,
and some address crimes based on sexual orientation or disability, but most do not address gender. Specifically, aside from the
VAWA civil rights remedy, the only federal bias crime law to include gender is a provision of the Violent Crime and Law
Enforcement Act of 1994, which directs the United States Sentencing Commission to enhance sentences for bias-motivated crimes,
including those based on gender. [FN40] Unfortunately, while gender is enumerated in the statute, courts have not yet articulated
the standards under which gender-motivated bias crimes will be assessed. [FN41]
Other federal bias crime statutes provide useful analogies from which a framework for identifying gender-motivated crimes can be
developed. *133
(Cite as: 22 Harv. Women's L.J. 123, *133)

These laws include the Hate Crime Statistics Act, [FN42] a data collection tool that has resulted in the creation of FBI guidelines for
identifying bias crimes, as well as federal civil rights laws that provide civil and criminal penalties for bias crimes [FN43] and sexual
harassment laws, which also provide remedies for bias conduct that frequently turns to
(Cite as: 22 Harv. Women's L.J. 123, *133)

violence.

1. Hate Crimes Statistics Act and the FBI Guidelines
The Hate Crimes Statistics Act requires the Justice Department to acquire and publish data on bias crimes that "manifest prejudice
based on race, religion, sexual orientation or ethnicity." [FN44] Both because the law does not include gender-based crimes, and
because it does not document the standards under which states categorize violent crimes as bias crimes, it has little direct
applicability for the inquiry into the nature of gender-motivated crimes.
Nonetheless, in the course of training its staff to implement the Hate Crimes Statistics Act, the FBI developed guidelines for
identifying bias-motivated crimes. [FN45] These guidelines direct investigators to consider the following factors in assessing bias
motivation: whether the offender and victim were of different racial, religious, ethnic/national origin, or sexual orientation groups;
whether bias-related comments, written statements, or gestures indicating bias were made by the offender; whether bias-related
drawings, markings, symbols, or graffiti, (for example, a swastika) were left at the crime scene; whether objects, items, or things
indicating bias were used (e.g., wearing white sheets with hoods; burning a cross on the lawn); whether the victim was visiting a
neighborhood where previous hate crimes had
(Cite as: 22 Harv. Women's L.J. 123, *133)

been committed; whether other incidents occurred in the same locality; whether a substantial portion of the community perceives
that the incident was motivated by bias; whether the victim engaged in activities promoting his/her membership in a protected
class; whether the incident coincided with a holiday relating to significant date for protected groups (e.g., Martin Luther King, Jr.'s
birthday); whether the offender previously was involved in similar hate crimes or was a member of a hate group; whether there
were indications a hate *134
(Cite as: 22 Harv. Women's L.J. 123, *134)

group was involved (e.g., such a group claimed responsibility for the act); whether historically established animosity exists between
the victim's and the offender's group; and whether the victim was not a member of a protected class but was a member of an
advocacy group supporting the protected group. [FN46]
These guidelines are widely recognized as a useful source of guidance in assessing bias motivation, including gender bias
motivation. For example, in enacting the VAWA Civil Rights Remedy, Congress stated that "[g]enerally accepted guidelines for
identifying hate crimes may also be useful" in determining gender-motivation. [FN47] Following that direction, initial cases
interpreting the Civil Rights Remedy have relied on these guidelines in assessing gender-motivation. [FN48]

2. Civil and Criminal Federal Bias Crime Enforcement

(Cite as: 22 Harv. Women's L.J. 123, *134)

Cases litigated under 42 U.S.C. § 1985(3) ("Section 1985(3)") also assist in defining the contours of "gender-motivation" because that
law provides a remedy for violent acts motivated by bias-related "animus." [FN49] Courts analyzing these claims look to
circumstantial evidence of bias. [FN50] For example, in Griffin v. Breckenridge, [FN51] which interpreted racial animus under
Section 1985(3), and to which Congress specifically referred in VAWA's legislative history, [FN52] the Court inferred an intent to
discriminate on the basis of race from the fact that a group of whites violently attacked a group of African Americans and whites
believed to be civil rights workers. [FN53]
*135
(Cite as: 22 Harv. Women's L.J. 123, *135)

Very few cases have addressed the meaning of gender-motivated violence in the context of Section 1985(3) cases. In its sole
decision related to the subject, Bray v. Alexandria Women's Health Clinic, [FN54] the Supreme Court determined that anti-abortion
protests do not reflect gender- based bias. The Court reasoned that the anti-abortion protesters were motivated by an objection to
abortion, rather than discriminatory motivations towards women. [FN55] Nonetheless, the Court recognized that circumstantial
evidence of bias can reflect discriminatory motivation under the statute. For example, the Court offered the analogy that "[a] tax on
wearing yarmulkes is a tax on Jews." [FN56] Importantly, the Court specifically distinguished malicious from discriminatory
motivation, [FN57] making clear that one need not prove
(Cite as: 22 Harv. Women's L.J. 123, *135)

anything approximating "hatred" of all women, for example, to prevail in a claim that a violent act was motivated by "discriminatory
animus."
At least one court has picked up where Bray left off and has evaluated circumstantial evidence to find that conduct associated with
anti-abortion demonstrations at women's health clinics stated a claim of discriminatory gender-based animus. [FN58] That court
cited evidence that the protesters screamed discriminatory epithets to women attempting to enter the clinic, such as "lesbians,
killers ... lesbians can't have babies." [FN59] One of the defendants had testified that he believed that many pro-choice women were
"lesbians," "drug addicts" who "barbeque babies" in front of the clinics, "Satan worshipers," and "people who surround baby killers."
[FN60] Defendants also had testified that most women were ignorant about abortion and needed to be "protect[ed]" from their
decisions to have abortions. [FN61] In several other decisions, courts have recognized sexual harassment and discrimination at
work as gender-based conduct that could violate Section 1985(3). For example, trial courts have upheld Section 1985(3) claims
based on allegations of a pattern and practice of sexual harassment, [FN62] allegations of school officials' conspiratorial
discriminatory responses to a woman's allegations of sexual harassment, [FN63] and allegations *136
(Cite as: 22 Harv. Women's L.J. 123, *136 )

of an allegedly discriminatory job transfer. [FN64] Nonetheless, some allegations may not present sufficient evidence of
gender-motivation to
(Cite as: 22 Harv. Women's L.J. 123, *136)

satisfy Section 1985(3)'s requirements. [FN65]
Courts in other Section 1985(3) cases routinely use circumstantial evidence to infer bias-based motivation. For example, racial
slurs provided sufficient evidence of bias motivation underlying an assault in a case in which an African American man entering a
restaurant was subjected to racial slurs and then was attacked by white customers. [FN66] In another case, Native Americans
established racial motivation after proving that they were battered and assaulted while spear-fishing, and that the defendants
barraged them with racial epithets and taunted them with signs bearing racially offensive messages. [FN67] Other cases as well have
recognized bias motivation through the utterance of racial epithets and derogatory references. [FN68] Police officers' derogatory
references to African Americans, including the use of racial epithets, were found to be part of a bias-motivated conspiracy to cover
up their killing of a young African American man. [FN69] Symbolic conduct, such as allegations of a conspiracy to burn a cross on
the lawn of the home of an African American family [FN70] or evidence that an African American woman's home was firebombed by
a group of white men, also has established racial animus under *137
(Cite as: 22 Harv. Women's L.J. 123, *137)

Section 1985(3). [FN71] In another example, a court evaluated the totality of the evidence to conclude that town officials may have
engaged in a racially motivated conspiracy to keep a property management company from placing minorities in their
neighborhood. [FN72]

(Cite as: 22 Harv. Women's L.J. 123, *137)

On the other hand, courts have found that conclusory allegations, or allegations of a single statement with possible racial
connotations, were insufficient to establish class-based animus. [FN73] These cases, illustrating the ways courts balance
circumstantial evidence to determine whether there is sufficient evidence of bias, show that such an inquiry may be effective in
establishing which cases alleging bias-motivated violence warrant civil rights treatment.
Cases brought under the federal criminal civil rights statute, 18 U.S.C. § 245 ("Section 245"), support the same conclusion: that
analyzing circumstantial evidence permits courts to assess which violent crimes reflect bias. Like the Section 1985(3) cases, courts
cite such evidence as statements reflecting a defendant's prejudice against people of a particular race, [FN74] discriminatory
epithets, [FN75] a defendant's participation in a supremacist group, [FN76] or a pattern of committing bias crimes. [FN77] The
evidence in all these cases makes clear that the type of circumstantial evidence on which courts rely to infer discriminatory
motivation is the same whether the court is analyzing a civil rights case or a criminal civil rights prosecution. *138
(Cite as: 22 Harv. Women's L.J. 123, *138 )

The same evidence will reflect discriminatory motivation in cases of gender-motivated violence.

3. Title VII

(Cite as: 22 Harv. Women's L.J. 123, *138)

Title VII in general, [FN78] and sexual harassment cases in particular, provide useful examples of disparate treatment cases from
which to draw analogies about when violent acts are "gender-motivated." The Civil Rights Remedy's statutory language requiring
proof that the conduct was committed "because of gender or on the basis of gender" echoes Title VII's prohibition of discrimination
"because of sex." [FN79]
The Supreme Court's recent pronouncement on workplace sexual harassment confirms that courts can infer gender bias from
circumstantial evidence. In Oncale v. Sundowner Offshore Services, Inc., the Court considered claims by a male oil rig worker who
alleged he was sexually assaulted and harassed by other male crew members. [FN80] In its essential holding, the Court ruled that
the fact that the plaintiff and defendant were of the same sex would not bar a claim of sexual harassment under Title VII. [FN81] To
assess the viability of such a claim, the court reasoned that the essential question was ascertaining whether the conduct was
"discriminat[ion] ... because of ... sex," [FN82] which is virtually identical to the inquiry under the Civil Rights Remedy. The Court
enumerated particular types of circumstantial evidence that might permit an inference of discrimination, such as sex-specific and
derogatory language indicating hostility to women in the workplace. [FN83] The decision built on previous sexual harassment
decisions holding that whether a hostile environment is actionable depends on an analysis of the totality of
(Cite as: 22 Harv. Women's L.J. 123, *138)

the circumstances. [FN84] It ratified the principle, inscribed in existing case law, that circumstantial evidence reflected in the facts
of a particular case should be assessed for *139
(Cite as: 22 Harv. Women's L.J. 123, *139)

whether it reflects sufficient evidence of bias to conclude that the conduct was discriminatory.
Courts find gender bias self-evident and conclude that sexual harassment was "because of sex" when presented with evidence, for
example, of sexual assaults at work; [FN85] direct propositions for sexual favors at work; [FN86] repeated lewd or sexually
suggestive comments; [FN87] touching in a sexually suggestive manner; [FN88] derogatory epithets or nicknames; [FN89]
nonsexual physical conduct, when part of an overall pattern of differential treatment based on the plaintiff's sex; [FN90] comments
reflecting negative and stereotypical views of women; [FN91] or patterns of similar conduct directed toward other women. [FN92]
Courts should use the same type of evidence to infer discriminatory motivation in the context of acts of violence against women,
whether they occur in or outside of the workplace.

B. State Hate Crime Laws
State hate crime laws, both criminal and civil, provide further guidance on how to determine whether a violent crime has been
committed, at least in part, due to bias. As of 1998, forty states and the District of Columbia had enacted some form of bias crime
law, nineteen of which address gender-based bias
(Cite as: 22 Harv. Women's L.J. 123, *139)

crimes. [FN93] These cases confirm that in still another context, courts draw on the same type of evidence as that described in
federal bias crime cases, which can be readily applied to cases of gender-based violence to assess whether they were
bias-motivated.

*140
(Cite as: 22 Harv. Women's L.J. 123, *140)

1. Gender Cases
Despite the fact that nineteen states include gender in their bias crime laws, there is a notable lack of reported cases involving
gender-based bias crimes. In the cases that do involve gender, courts consistently have relied on the same sort of evidence used
successfully in federal bias crime cases. For example, in Massachusetts v. Aboulez, a Massachusetts court found ample evidence of
gender-motivation to issue an injunction under that state's anti-bias law. [FN94] While there was no written opinion in that case,
affidavits submitted by the defendant's wife and other former partners reflected a pattern of repeated violence committed against
them, combined with evidence of misogynistic epithets and other statements evincing stereotypical views of women. [FN95] In
another case, a California court denied a motion to dismiss a woman's claims of gender bias under the civil component of California's
hate crime law after finding that the defendant's conduct was a form of sexual harassment when she alleged that her apartment
building's resident manager made suggestive remarks and touched her breasts after she
(Cite as: 22 Harv. Women's L.J. 123, *140)

pushed him away. [FN96] The high court of Massachusetts similarly refused to dismiss a woman's sexual harassment claim under
that state's civil bias crime law where the harassment included threats, intimidation, and coercion. [FN97]

a. Non-Gender Cases
State courts have had many occasions to analyze the contours of racial or ethnic motivation under state criminal and civil bias laws.
By and large, they have relied on the same types of evidence as have federal courts. Circumstantial evidence such as epithets,
derogatory comments, *141
(Cite as: 22 Harv. Women's L.J. 123, *141)

and general patterns of behavior have led courts to recognize the bias-motivation underlying many of these acts. [FN98]
Derogatory epithets directed against individuals because of their race, religion, ethnicity, or sexual orientation reflect bias. [FN99]
As one court announced, "[a]ny racial epithets are circumstantial evidence that defendants' actions were motivated by racial
prejudice." [FN100] Courts similarly have inferred bias-motivation from derogatory comments based on class membership.
[FN101] Other decisions relied on statements or symbols indicating racial prejudice, such as cross burnings, swastikas, or
membership in skinhead organizations. [FN102] Consistent with the FBI's guidelines, judges often cite a lack of provocation or other
alternative motivation. [FN103] Of course, many successful cases
(Cite as: 22 Harv. Women's L.J. 123, *141)

involved *142
(Cite as: 22 Harv. Women's L.J. 123, *142 )

a combination of these various indicators of bias, [FN104] while some claims failed because of reasons unrelated to bias motivation.
[FN105]
It is immediately clear from these cases that exactly the same types of evidence lead fact finders to infer bias from violent acts,
regardless of whether the bias was based on race, color, religion, national origin, sexual orientation, or gender and regardless of the
precise formulation of the statutory element requiring bias motivation. Courts cite subjective and objective evidence, both direct
and circumstantial, to conclude that bias crime treatment is warranted. Extending that same analysis, cases of gender-based
violence that present circumstantial evidence of bias also should be recognized for the civil rights injuries they inflict.

III. GENDER-BASED BIAS CRIMES--A LOGICAL EXTENSION OF CIVIL RIGHTS CASE LAW
By enacting the Civil Rights Remedy, Congress recognized that many crimes of violence against women are gender-motivated,
although it did not enumerate precisely which of the multitude of acts of sexual assault, domestic violence and stalking, would
qualify for civil rights treatment. Since these crimes historically have not been treated as civil rights violations, neither social
science studies nor case law analyses have quantified or documented the extent to which domestic violence or sexual assault cases
contain
(Cite as: 22 Harv. Women's L.J. 123, *142)

circumstantial evidence of bias. Nonetheless, if the early VAWA Civil Rights Remedy cases are any indication, domestic violence
and sexual assault cases are likely to be rife with such evidence.
*143
(Cite as: 22 Harv. Women's L.J. 123, *143)

Following congressional direction, [FN106] courts analyzing the first VAWA civil rights remedy cases have begun to apply general
hate crime standards to identify evidence of bias in acts of violence against women. In the most detailed analysis to date, a panel of
the Fourth Circuit Court of Appeals concluded that a gang rape of a college student in a dorm was "gender- motivated." [FN107]
Although that decision was vacated pending hearing en banc on the question of the law's constitutionality, both the trial court and
the appellate panel concluded that the complaint alleged a gender-motivated crime. Presumably applying the "generally accepted
guidelines for identifying hate crimes" cited by Congress when it enacted the Remedy, the court analyzed the evidence before the
court. [FN108] Citing allegations that Ms. Brzonkala was raped three times by two virtual strangers within minutes of meeting them
and that the acts were committed without provocation, the court concluded that the "gang rape itself constitutes an attack of
significant 'severity."' [FN109] In addition, one of the assailants conceded during a college disciplinary hearing that Ms. Brzonkala
twice told him "no" before the alleged rape, and there was no other apparent motive, such as robbery or theft, for the act. [FN110]
The court also cited one of the defendants' comments during and
(Cite as: 22 Harv. Women's L.J. 123, *143)

after the rape as further evincing gender-motivation. Specifically, when he finished raping her for the second time, defendant
Morrison told Ms. Brzonkala: "[y]ou better not have any fucking diseases." [FN111] He later announced to the college dining room: "I
like to get girls drunk and fuck the shit out of them." [FN112] Based on that evidence, the court concluded that "[v]irtually all of the
earmarks of 'hate crimes' are asserted here," [FN113] and upheld her claim. While the court did not conduct a searching analysis of
the nature of gender-motivation, it had no trouble applying the standard guidelines *144
(Cite as: 22 Harv. Women's L.J. 123, *144)

for identifying bias crimes and recognizing that the circumstantial evidence in this case reflected acts that were gender- motivated.
Other courts, with less analysis, similarly have recognized the bias underlying sexual assaults. For example, allegations that a
woman's employer made inappropriate sexual advances, including fondling, attempting to remove her clothing, grabbing her
breasts, assaulting and attempting to rape her, and ultimately raping her, stated a claim of gender-motivation. [FN114] Another
court found allegations that a male supervisor called a female employee a "dumb bitch" and later shoved her to the ground would
allow a reasonable jury to infer gender-motivation. [FN115] Similarly, two different courts "had little doubt" that allegations of
sexual assault or sexual exploitation were "gender- motivated," although they both suggested that it might be difficult to
(Cite as: 22 Harv. Women's L.J. 123, *144)

determine whether other, unspecified crimes were committed "because of" or "on the basis of gender." [FN116]
Further demonstrating that courts can infer bias motivation from a particular constellation of facts, another court recognized the
"gender-motivation" in allegations of sexual assault and sexual harassment by a chiropractor for whom three women worked.
[FN117] Although the court rejected the women's claims on the basis that they failed to establish the "crime of violence" element of
the civil rights remedy, [FN118] it nonetheless went on to opine that the claims would satisfy the "gender-motivation" element,
stating that:
[t]he notion that non-consensual sexually-oriented conduct is actually amorous and therefore not invidiously discriminatory
toward the victimized class is clearly wrong .... In fact, the perception that a man is somehow less culpable in taking inappropriate
liberties with members of the female gender if his motivations are amorous, seems to be just the type of "animus" that is a focus of
concern in gender discrimination. Regardless of the amorous intentions of the perpetrator, non-consensual expressions of affection
that rise *145
(Cite as: 22 Harv. Women's L.J. 123, *145)

to the nature of those alleged in this action are laden with disrespect for women. [FN119]
In the first decision to elaborate on the meaning of gender-motivation in a domestic violence case, a federal court in Washington
looked to the totality of the circumstances and found ample evidence of gender bias. [FN120] In
(Cite as: 22 Harv. Women's L.J. 123, *145)

addition to evidence of rape, the court cited the following evidence: gender- specific epithets, acts that perpetuated stereotypes of
women's submissive roles, such as the defendant controlling all of the family's financial information and documents, holding all her
personal documents such as her passport, not placing her name on title documents, not disclosing insurance information to her,
and becoming angry if she questioned him about the family affairs. [FN121] Applying the standards for recognizing hate crimes
identified by Congress, [FN122] the court also relied on evidence of severe and excessive attacks on the plaintiff, especially during
her pregnancy, and that the alleged violence was often without provocation and specifically at times when the plaintiff asserted her
independence. [FN123] While recognizing that "there may be many causes of violence within a marital relationship," the court
nonetheless found that the alleged facts "present more than conclusory allegations" and supported an inference of
gender-motivation. [FN124] In contrast with these cases, a few courts have rejected women's claims, finding that they did not
contain allegations of gender-motivation. [FN125]
*146
(Cite as: 22 Harv. Women's L.J. 123, *146)

The Brzonkala trial court decision, while concluding that the facts of that case [FN126] reflected gender-motivation, adopted a
slightly different analysis that signals some of the potential difficulties in identifying gender-motivation. [FN127] In dicta, the court
suggested that
(Cite as: 22 Harv. Women's L.J. 123, *146)

acquaintance rapes might fare differently than the case of stranger rape before the court. Citing a concern that "date rape could
involve a misunderstanding and is often less violent than stranger rape," the court theorized that:
[d]ate rape could also involve a situation where a man's sexual passion provokes the rape by decreasing the man's control .... [D]ate
rape could involve in part disrespect for the victim as a person, not as a woman; in date rape the perpetrator knows the victim's
personality to some extent. [FN128]
This reasoning has been criticized by the one court to analyze it as making sweeping generalizations, contrary to Congress' direction
to analyze each case on a case-by-case basis. [FN129] In addition, the court missed the essential point that forced sexual contact in
the name of passion or personality may support rather than refute a claim of gender-motivation because it shows a disrespect for
women. [FN130] It also contradicts research indicating that acquaintance rapes frequently are premeditated and are predicated on
discriminatory biases about male entitlement to coerce sexual relations with women against their will. [FN131]
In addition to the workplace sexual assaults and the gang rapes analyzed in the first VAWA Civil Rights Remedy cases, sexual assault
and domestic violence situations may contain other evidence that reflects *147
(Cite as: 22 Harv. Women's L.J. 123, *147)

gender-motivation. A perpetrator may have uttered gender-derogatory epithets such as "bitch,"
(Cite as: 22 Harv. Women's L.J. 123, *147)

"slut," or "whore" in the course of committing a violent act. He may have made comments that reflect anti-female bias such as those
cited in the Brzonkala case. [FN132] A defendant may have made derogatory comments about a woman's physiology or may have
mutilated her genitals during an assault. In acquaintance rape cases, a defendant may have disregarded a woman's protests,
reflecting the stereotypical view that "no" means "yes" that underlies much violence against women. [FN133] Or a defendant may
have committed serial rapes or participated in gang rapes. [FN134]
Similar evidence reflects gender-bias in domestic violence cases. The coercion and control that typifies domestic violence
frequently reflects men's attempts to ensure that their partners conform to traditional women's roles, regardless of the women's
preferences. Male batterers go to great lengths to control all aspects of their partners' lives, through means that frequently involve
insisting on their partners' conformity to traditional gender roles. [FN135] They may insist that their partners stay home, control
their manner of dress, and limit their interactions with others. They may berate their partners if they depart from traditional
gender-specific roles such as cooking or cleaning. Batterers typically interfere with women's working lives, dramatically inhibiting
their independence and ensuring their conformity to traditional roles. [FN136] Similarly reflecting *148
(Cite as: 22 Harv. Women's L.J. 123, *148)

conduct that targets a woman's "femaleness," batterers may target a woman with violence when she is
(Cite as: 22 Harv. Women's L.J. 123, *148)

pregnant. [FN137]
In both sexual assault and domestic violence cases, defendants may have engaged in patterns of biased conduct similar to that
found in other bias crime prosecutions. [FN138] For example, in one case involving the prosecution of a serial batterer under
Massachusetts' hate crime law, affidavits submitted by several women the defendant had battered recounted the gendered epithets
and biased comments about the role the defendant believed women should assume. [FN139] Testimony from former wives,
girlfriends, partners, or family members of those individuals similarly may provide evidence of anti-female comments. In some
instances, a defendant may belong to a group that espouses anti-female or sex-stereotyped views.
These are but some examples of the types of conduct that might establish gender-motivation. Arguably, the VAWA Civil Rights
Remedy cases brought to date have not yet addressed some of the difficult questions, for example, when consent in an acquaintance
rape case is sharply contested, or when a batterer is equally violent toward both men and women. As the initial cases indicate,
courts will examine the extent to which bias underlies violent crimes committed against women by examining the circumstantial
evidence presented by each case. Bringing this evidence to light will reveal, acknowledge, and, hopefully, redress the gender-biased
nature of these crimes.

(Cite as: 22 Harv. Women's L.J. 123, *148)

IV. LIMITATIONS OF THE ANALOGY AND THE SPECIAL PROBLEMS OF GENDER
Enactment of the VAWA Civil Rights Remedy has established a threshold for how gender-based bias crimes will be assessed in the
context of federal civil remedies. While the requirement of circumstantial evidence may be imperfect because it may preclude
recovery if that evidence is not available in a particular case, it also imposes a limiting principle that addresses concerns about
overwhelming federal judicial resources. As the first cases litigated under that law indicate, a critical inquiry as to the presence of
circumstantial evidence of bias in sexual assault *149
(Cite as: 22 Harv. Women's L.J. 123, *149 )

and domestic violence cases may uncover the extent to which bias infuses those acts.
Nonetheless, questions about how to interpret the VAWA Civil Rights Remedy standard inevitably will be raised. For example,
courts will be called on to address the meaning of the statutory requirement of "animus" here, as opposed to other
anti-discrimination contexts. [FN140] In the case of domestic violence, suggestions have been made that there is a difference
between "ordinary" domestic violence and that which is motivated by gender. [FN141] Some argue that domestic violence cannot be
gender-motivated because of evidence that women batter men, [FN142] notwithstanding evidence that women's violence
frequently is committed in self-defense [FN143] and occurs disproportionately less frequently. [FN144] Critics argue that the fact
that violence occurs in lesbian and gay as well as heterosexual relationships
(Cite as: 22 Harv. Women's L.J. 123, *149)

compels the conclusion that gender-motivation never animates domestic violence cases, [FN145] although even the United States
Supreme Court has recognized that sexual harassment can be committed regardless of the respective genders of the harasser and
victim. [FN146] Similarly, some objections invoke the incidence of male rapes of other men as dispositive of the non-gendered
nature of all sexual assaults. [FN147] In addition, commentators have objected that hate crime laws recriminalize already illegal
conduct. [FN148] Finally, the Brzonkala trial court decision reflects the oft-cited perception that it is difficult to discern when
personality *150
(Cite as: 22 Harv. Women's L.J. 123, *150 )

rather than bias underlies unwanted sexual assault. [FN149] This section will address some of the issues underlying these
objections.

A. The Meaning of "Gender Animus"
The language of the VAWA Civil Rights Remedy has introduced a wrinkle to the debate on establishing gender-motivation: whether
use of the term "animus" differentiates the standard for proving gender-motivation from that used to establish discriminatory
motivation in other contexts. As discussed above, in order to establish the "gender-motivation" element the statute requires, a
plaintiff must prove both that the act was committed "because of gender or on the basis of gender," and that it was "due, at least in
part, to an animus based on the victim's gender." [FN150] Also as discussed
(Cite as: 22 Harv. Women's L.J. 123, *150)

previously, the legislative history shows that Congress intended the "animus" language to clarify that only gender-motivated crimes,
rather than all violent crimes committed against women, or "random" acts of violence committed against women, would be covered.
[FN151]
The inclusion of the term "animus" does not change the nature or quantum of evidence required to establish gender-motivation.
Congress used the term "animus" to mean "purpose," as in "an animating force," and it used the words "animus," "purpose," and
"motivation" interchangeably, dispelling any notion that disparate impact, i.e., proof that a violent act disproportionately affects
women, alone would be sufficient to merit recovery. [FN152] The first part of the gender-motivation definition arguably gives rise
to that concern. The language requiring that the underlying violent act was committed "because of gender or on the basis of gender"
tracks Title VII, which encompasses disparate impact as well as treatment cases. [FN153] The "animus" language eliminates any
question about whether disparate impact cases might be covered.
In the first cases interpreting the Remedy, courts have ruled consistently with Congress' direction and have treated the
gender-motivation element as a single inquiry, rather than two separate questions about animus and whether the act was
committed because of gender. [FN154] That approach also comports with other bias crime case law, which treats circumstantial
evidence the same
(Cite as: 22 Harv. Women's L.J. 123, *150)

way under a range of statutory formulations. For example, *151
(Cite as: 22 Harv. Women's L.J. 123, *151 )

cases litigated under 42 U.S.C. § 1985(3) require proof that the conduct was motivated by "racial, or perhaps otherwise class-based,
invidiously discriminatory animus" in order to prevail. [FN155] Yet even under that apparently higher standard, the previous
analysis of Section 1985(3) and other cases reveals that the same evidence establishes bias regardless of whether the standard for
assessing animus is articulated as "because of" a protected category, based on "animus" or driven by "invidiously discriminatory
animus."
As recounted above, the type of evidence used to show gender or other bias motivation does not vary, regardless of the particular
statutory formulation. In addition, other federal civil rights cases also confirm that even under Section 1985(3), gender-based
animus does not require proof of malice or hatred. [FN156] As with other discrimination and bias crime cases, the essential inquiry
is whether the crime was committed solely for random or non- discriminatory reasons. The use of the term "animus" in the Civil
Rights Remedy does not alter that essential inquiry for gender-based bias crime cases.

B. Addressing Concerns Unique to Gender: The Prevalence of Domestic Violence
and Sexual Assault and Their Purported "Neutral" Motivations
Perhaps the principal or underlying objection to treating domestic
(Cite as: 22 Harv. Women's L.J. 123, *151)

violence and sexual assaults as civil rights cases is the staggering number of those crimes committed each year. Yet it would be an
absurd perversion of our justice system if the prevalence of a problem became the justification for ignoring it. If the true problem is
a lack of sufficient resources to cover all the cases that should be treated as civil rights violations, resources should be provided.
Nonetheless, the Civil Rights Remedy's statutory requirements appear to be successfully limiting the number of cases actually
brought. [FN157]
In assessing whether violent acts are gender-motivated, courts inevitably will grapple with the question of whether an allegation of
domestic violence or sexual assault alone provides enough evidence from which to draw an inference of bias motivation. It is
difficult to imagine an act of rape, sexual assault, or domestic violence that is not in part fueled by the *152
(Cite as: 22 Harv. Women's L.J. 123, *152)

tradition of gender-motivated violence in this country. Given that history, perhaps acts of rape or domestic violence should be
analogized to lynching or cross-burning, and viewed as symbolic acts that alone reflect gender-motivated bias. [FN158] Indeed, any
reluctance to recognize sexual assault or domestic violence as inherently bias-driven stands in stark contrast to the ease with which
we recognize symbolic acts such as lynching or cross-burning as discriminatory.
Nonetheless, the Civil Rights Remedy's legislative history indicates that
(Cite as: 22 Harv. Women's L.J. 123, *152)

allegations of domestic violence, rape, or sexual assault may not presumably be considered to be gender-motivated for the purpose
of federal civil rights intervention. [FN159] In addition, social science data and some commentary reflect the view that not all acts
of rape, sexual assault, or domestic violence are driven by a discriminatory motivation. [FN160] In particular, discussions of the
gendered nature of rape and sexual assault inevitably address acquaintance rape, which many find presents the quagmire of
distinguishing those crimes based on "bias" from those based on "lust," [FN161] "passion," [FN162] or "personality." [FN163] Recent
scholarship and studies have begun to investigate a range of motivations that might drive rapists: some men rape because they want
to have sex; [FN164] others, to demonstrate their strength and masculinity; and still others, to establish their dominance over, or
distinction from, other men. [FN165] The assertion of power and *153
(Cite as: 22 Harv. Women's L.J. 123, *153)

anger also have been asserted to play a key role in rape. [FN166] Similarly, recent research indicates that there are different
motivations for domestic violence. [FN167]
These theories arguably could support a contention that "neutral" psychological factors rather than bias fuel acts of domestic
violence or sexual assault. However, the two should not be mutually exclusive because a particular act could be motivated by bias
as well as by "neutral" psychological factors. In the context of other bias crimes and in some areas of anti-discrimination
(Cite as: 22 Harv. Women's L.J. 123, *153)

law, courts do not inquire whether psychological factors neutralized a bias motivation. [FN168] To the contrary, psychology
undoubtedly plays a role in all actions, and psychological factors may drive violent perpetrators in other bias crime contexts as
well. [FN169] Whether a perpetrator's conduct was driven by psychological factors in addition to bias should not matter as long as
the statutory framework for establishing discriminatory conduct is satisfied. The same should be the case in assessing bias
motivation based on gender.
Cases involving same-sex sexual harassment raise an analogous question to the inquiry as to whether all acts of sexual assault or
domestic violence are gender-biased. In determining whether same-sex sexual harassment is actionable as a form of sex
discrimination, some courts have looked to evidence of gender bias to conclude that conduct was discriminatory and prohibited
under sexual harassment laws. [FN170] In allegations of gender-motivated violence, circumstantial evidence of gender-bias
similarly may resolve any doubt as to whether bias was at least a partially motivating factor to warrant civil rights remedies.
In practice, federal enforcement will be available only in cases in which the circumstantial evidence described above can be proved.
[FN171] That *154
(Cite as: 22 Harv. Women's L.J. 123, *154)

approach undoubtedly represents a compromise. It may preclude federal enforcement of sexual assaults or acts of domestic
violence that may in fact be
(Cite as: 22 Harv. Women's L.J. 123, *154)

rooted in bias, but which lack sufficient circumstantial evidence of bias beyond an allegation of domestic violence or sexual assault.
[FN172] Nonetheless, the approach preserves an important advance by creating federal civil rights recognition for
gender-motivated crimes. As a limitation that applies only to litigation, it in no way constrains complementary public education
campaigns that recognize and seek to reform the generally misogynistic roots of sexual assault and domestic violence.
This standard makes it incumbent on civil rights practitioners and prosecutors (assuming the HCPA is enacted) to probe the facts of
a particular case for evidence of gender bias. A case of domestic violence or rape that lacks additional circumstantial evidence of
bias may not be subject to federal remedies. [FN173] If it is true that some rapists are not acting out of a sexist motivation, but
rather are expressing generalized sexually violent conduct that they direct toward everyone, or if some cases of domestic violence
are not manifestations of gender-based bias, federal civil rights enforcement may be unavailable. Requiring circumstantial evidence
of bias would weed out any violent but "neutral" nondiscriminatory acts, whether committed by people of the same or different
genders.
Even if federal jurisdiction ultimately is not extended to each and every gender-motivated crime, the Civil Rights Remedy provides
a crucial remedy--for example, it may be the only avenue of redress in cases in which both formal and
(Cite as: 22 Harv. Women's L.J. 123, *154)

informal biases preclude or limit civil and criminal enforcement in state courts. [FN174] For example, marital rape exemptions
*155
(Cite as: 22 Harv. Women's L.J. 123, *155 )

may preclude or limit criminal prosecution for married or intimate partners. [FN175] Remnants of interspousal immunities may
limit civil recoveries as well. [FN176] Further, local law enforcement officials, in some instances, still fail to prosecute domestic
violence and rape cases, [FN177] and legal remedies for compelling enforcement may be limited. [FN178] In a small town, a
batterer may be friends or business associates with the police, who may decline to prosecute as a result. [FN179] Cases involving
police officers who have been alleged to be batterers, but who escape prosecution, highlight the need for federal prosecution as an
available option. [FN180]
Moreover federal prosecution of gender-based bias crimes and civil rights recovery for damages recognize the special nature of the
harm these bias crimes inflict. As the Supreme Court has acknowledged, bias crimes and other civil rights violations exact a special
toll and impose a particular harm, which is deserving of enhanced attention and consideration. [FN181] Current experience with the
Civil Rights Remedy indicates that *156
(Cite as: 22 Harv. Women's L.J. 123, *156)

fears that these new laws will flood the courts are unfounded. [FN182] Nonetheless, if numerous cases result, perhaps they will bring
greater attention to the issue and assist in making headway toward eradicating the problem.

(Cite as: 22 Harv. Women's L.J. 123, *156)

C. Purported Differences between Gender-Based and Other Bias Crimes:
Familiarity and Consent
Other arguments may be raised to distinguish gender-based bias crimes. For example, some argue that gender-based crimes are
different from other bias crimes because in many instances, particularly in cases of domestic violence, the victim knows her
attacker. [FN183] However, the notion that familiarity between victim and perpetrator means a crime is not bias-motivated is
inconsistent with other bias crime cases. Cross-burnings on *157
(Cite as: 22 Harv. Women's L.J. 123, *157)

a neighbor's lawn surely would qualify for hate crime prosecution even though the victim and perpetrator knew one another. An
attack accompanied by racial epithets also would qualify, whether or not the victim and perpetrator were strangers or long-time
acquaintances. Arguably, personality conflicts could fuel violence that transpired between two acquaintances who had a history of
racial or other class-based animosity between them, but an attack marked by epithets or other evidence of bias might be considered
bias-motivated all the same. The presence of non-bias-related evidence does not eviscerate evidence that bias also was a motivating
force. Mixed-motive paradigms for discrimination cases offer a ready analogy for analyzing civil claims when more than one factor
drives the conduct. [FN184] Although "lack of familiarity" may characterize many bias crimes, it is but one of many factors rather
than a requirement and should not be invoked as a bar to prosecution. Moreover,
(Cite as: 22 Harv. Women's L.J. 123, *157)

evidence indicates that victims of gender-based crimes may well be interchangeable, even when they have intimate relations with
the perpetrators. [FN185]
Similarly, the fact that the issue of consent may not arise in other bias crime contexts does not preclude the treatment of sexual
assault or domestic violence as a bias crime. Sexual harassment cases offer a useful analogy. In those cases, a plaintiff must establish
"unwelcomeness" as an element of her claim. [FN186] Provided she establishes unwelcomeness as well as the other required
elements, she can go on to prove that she suffered sexual harassment, a form of sex discrimination. Acquaintance rape is the
context in which the consent issue is most likely to arise. Similar to sexual harassment cases, once a woman establishes that she did
not consent there should be no bar to considering the attack a bias crime. As one court noted in discussing the Civil Rights Remedy:
"Rape is rape, and it is doubtful that a woman ... who had been violently invaded and attacked, would take comfort in the fact that it
was a date (or 'friend') who did it." [FN187]

*158
(Cite as: 22 Harv. Women's L.J. 123, *158)

CONCLUSION
New federal laws recognizing the civil rights implications of gender- based crimes represent an important development in efforts to
eliminate violence against women and other bias crimes generally. The prevalence and
(Cite as: 22 Harv. Women's L.J. 123, *158)

pervasiveness of crimes such as domestic violence and sexual assault, as well as biased attitudes surrounding those crimes, produce
questions about which of those crimes should be treated as acts of discrimination. In enacting the VAWA Civil Rights Remedy,
Congress charted a compromise under which it required some circumstantial evidence of gender bias as a prerequisite to federal
bias crime treatment. An analysis of cases of domestic violence and sexual assault, as well as an analysis of other bias crime cases,
reveals the circumstantial evidence of the bias that animates violent crimes committed against women just as it does in other types
of bias crime cases. Importing the analysis used in other bias crime cases, courts can identify which crimes of violence against
women should be treated as gender-based bias crimes under federal civil rights laws. In addition to providing needed remedies for
women, these laws, and the analysis of gender-motivation in which courts will engage as a result, should help advance our
understanding of the nature of gender-based violence. As one of a myriad of initiatives to address the problem, these civil rights
remedies should go a long way toward advancing our "publicly-shared ideal of equality." [FN188]

[FNa1]. Editors' Note: As this Article was going to press, the Fourth Circuit Court of Appeals, sitting en banc, issued a ruling
declaring the Civil Rights Remedy unconstitutional. The decision contrasts starkly with each of the
(Cite as: 22 Harv. Women's L.J. 123, *158)

11 other district courts to rule on this issue, each of which has upheld the law as constitutional. A petition for certiorari to the U.S.
Supreme Court would be due in June.

[FNaa1]. Senior Staff Attorney, NOW Legal Defense and Education Fund ("NOW LDEF"). I would like to thank my colleagues at NOW
LDEF, especially Martha F. Davis, Andrea Williams, Lynn Hecht Schafran, and Pat Reuss, as well as other colleagues, including Pam
Coukos, Rebecca Isaacs, Michael Lieberman, Chris Pratt, and Chai Feldblum, who have provided insightful comments on earlier
drafts and have helped in addressing some of the most difficult arguments. I would also like to thank the many NOW LDEF interns
who have assisted with background research. I particularly would like to thank Antonia Kirkland, a legal intern who provided
invaluable assistance with cite-checking footnotes. In addition, NOW LDEF legal assistant Taiwann Harrison's administrative
support was key to completing this project. I would also like to thank Sally Goldfarb, Michele Adams, Mary Anne Case, Sherry Colb,
Liz Cooper, Katherine Franke, Tracy Higgins, Linda McClain, Carlin Meyer, and Denise Morgan for their comments on an earlier
draft of this piece.

[FN1]. In response to Senator Paul Simon's inquiry about whether the FBI collected data on gender-based bias crimes, the FBI
Acting Assistant Director
(Cite as: 22 Harv. Women's L.J. 123, *158)

of the Criminal Justice Information Services Division raised the perceived difficulty in distinguishing lust from hatred as the reason
a "gender bias motivation would be very difficult to determine." Letter from C. David Evans, Acting Assistant Dir., Criminal Justice
Info. Servs. Div., Federal Bureau of Investigation, to Sen. Paul Simon at 4 (July 5, 1995) (on file with NOW LDEF).

[FN2]. For example, an array of programs were federally funded through the 1994 Violence Against Women Act. See 42 U.S.C. §§
3793(a)(19), 3796hh(a)- (b)(1) (1994) (authorizing funding for pro arrest programs); 42 U.S.C. § 3796gg (1994) (authorizing grants
to improve law enforcement, prosecution and victim services to address violent crimes against women); 42 U.S.C. §§ 10409(a),
10401 (1994) (authorizing funding for battered women's shelters); 42 U.S.C. § 10416(a)-(f) (1994) (authorizing funding for a national
domestic violence hotline); 42 U.S.C. § 10418(a)-(h) (1994) (authorizing funding for non-profit organizations to set up community
programs on domestic violence intervention and prevention). See also 42 U.S.C. § 13981 (1994) (establishing Civil Rights Remedy);
Hate Crimes Prevention Act of 1997, H.R. 3081, 105th Cong. (1997); Hate Crimes Prevention Act of 1998, S. 1529, 105th Cong.
(1997) (together, "HCPA"). These efforts followed years of grassroots organizing and advocacy efforts on behalf of battered women
and sexual assault survivors. See generally MARY P. KOSS ET AL., NO SAFE HAVEN:
(Cite as: 22 Harv. Women's L.J. 123, *158)

MALE VIOLENCE AGAINST WOMEN AT HOME, AT WORK AND IN THE COMMUNITY 100-04 (1994).

[FN3]. For a general discussion of hate crimes and the harm they inflict, see ANTI-DEFAMATION LEAGUE, 1999 HATE CRIMES
LAWS (1999) <http:// www.adl.org/frames/front_99hatecrime.html>; LOIS COPELAND & LESLIE R. WOLFE, CENTER FOR WOMEN
POLICY STUDIES, VIOLENCE AGAINST WOMEN AS A BIAS MOTIVATED HATE CRIME: DEFINING THE ISSUES (1991); VALERIE
JENNESS & KENDAL BROAD, HATE CRIMES: NEW SOCIAL MOVEMENTS AND THE POLITICS~ OF VIOLENCE (1997); LEADERSHIP
CONFERENCE EDUCATION FUND & LEADERSHIP CONFERENCE ON CIVIL RIGHTS, CAUSE FOR CONCERN: HATE CRIMES IN
AMERICA (1997); AMY STEPHSON, NORTHWEST WOMEN'S LAW CENTER, GENDER BIAS CRIMES--A LEGISLATIVE RESOURCE
MANUAL (1994); cf. Frederick M. Lawrence, The Punishment of Hate: Toward a Normative Theory of Bias- Motivated Crimes, 93
MICH. L. REV. 320 (1994); Mari J. Matsuda, Legal Storytelling: Public Response to Racist Speech: Considering the Victim's Stories,
87 MICH. L. REV. 2320, 2335-41 (1989) (detailing research on impact of hateful speech).

[FN4]. See 42 U.S.C. § 13981 (1998).

[FN5]. Hate Crimes Prevention Act of 1997, H.R. 3081, 105th Cong. (1997);
(Cite as: 22 Harv. Women's L.J. 123, *158)

Hate Crimes Prevention Act of 1998, S. 1529, 105th Cong. (1997) (together, "HCPA"). The HCPA also would remove the current
requirement that hate crimes based on race, color, religion, or national origin be committed in the course of interfering with a
federally protected activity. See id.

[FN6]. For articles addressing why crimes of violence against women should be treated like other forms of bias crimes, see, e.g.,
Susan L. Miller, Gender- Motivated Hate Crimes: A Question of Misogyny, in CONTEMPORARY PROBLEMS & PROSPECTS 229 (Daniel
J. Curran & Claire M. Renzetti eds., 1994); Brigit Schmidt am Busch, Domestic Violence and Title III of the Violence Against Women
Act of 1993: A Feminist Critique, 6 HASTINGS WOMEN'S L.J. 5-7 (1995); Marguerite Angelari, Hate Crime Statutes: A Promising
Tool for Fighting Violence Against Women, 2 AM. U. J. GENDER & L. 63 (1994); Andrea Brenneke, Civil Rights Remedies for Battered
Women: Axiomatic & Ignored, 11 LAW & INEQ. J. 1 (1992); David Frazee, An Imperfect Remedy for Imperfect Violence: The
Construction of Civil Rights in the Violence Against Women Act, 1 MICH. J. GENDER & L. 163, 181-84 (1993); Elizabeth A. Pendo,
Recognizing Violence Against Women: Gender and the Hate Crimes Statistics Act, 17 HARV. WOMEN'S L.J. 157 (1994); Eric
Rothschild, Recognizing Another Face of Hate Crimes: Rape as a Gender-Bias Crime, 4 MD. J. CONTEMP. LEGAL ISSUES 231 (1993);
Steven B. Weisburd & Brian Levin, "On the Basis of Sex": Recognizing Gender-Based Bias
(Cite as: 22 Harv. Women's L.J. 123, *158)

Crimes, 5 STAN. L. & POL'Y REV. 21 (1994); W.H. Hallock, The Violence Against Women Act: Civil Rights for Sexual Assault Victims,
68 IND. L.J. 577, 582-87 (1993); Brande Stellings, The Public Harm of Private Violence: Rape, Sex Discrimination and Citizenship,
28 HARV. C.R.-C.L. L. REV. 185, 209 (1993); Kristin L. Taylor, Treating Male Violence Against Women as a Bias Crime, 76 B.U. L.
REV. 575 (1996); Wendy R. Willis, The Gun is Always Pointed: Sexual Violence and Title III of The Violence Against Women Act, 80
GEO. L.J. 2197, 2198-2201 (1992). These articles, most of which were written before the Civil Rights Remedy was enacted, do not
detail the standard for establishing gender- motivation this Article addresses.

[FN7]. For example, the 1993 Senate Report supporting the Civil Rights Remedy stated that: "[p]lacing this violence in the context
of the civil rights laws recognizes it for what it is--a hate crime." S. REP. NO. 103-138, at 49 (1993).

[FN8]. Id.

[FN9]. See generally EVE S. BUZAWA & CARL G. BUZAWA, DOMESTIC VIOLENCE: THE CRIMINAL JUSTICE RESPONSE 22 (2d ed.
1996); JANESS & BROAD, supra note 3, at 25-26, 111-13; KOSS, supra note 2, at 3-18.

(Cite as: 22 Harv. Women's L.J. 123, *158)

[FN10]. See SUSAN SCHECHTER, WOMEN AND MALE VIOLENCE 158 (1982); Elizabeth M. Schneider, The Violence of Privacy, 23
CONN. L. REV. 973, 977 (1991); Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117
(1996).

[FN11]. See, e.g., Violence Against Women: Hearing Before the Subcommittee on Crime and Criminal Justice of the Committee on
the Judiciary, 101st Cong. 62-63 (June 20, 1990) (statement of Helen R. Neuborne, Executive Dir., NOW Legal Defense and
Education Fund).

[FN12]. See, e.g., Tomkins v. Public Serv. Elec. & Gas, Inc., 422 F. Supp. 553, 556-57 (D. N.J. 1976), rev'd 568 F.2d 1044 (3d Cir.
1977); Corne v. Bausch and Lomb, Inc., 390 F. Supp. 161, 163-64 (D. Ariz. 1975), vacated and remanded without reported opinion,
562 F.2d 55 (9th Cir. 1977); Barnes v. Train, No. 1828-73, 1974 U.S. Dist. LEXIS 7212, at *1 (D. D.C. Aug. 9, 1974), rev'd sub nom.
Barnes v. Costle, 561 F.2d 983, 990 (D.C. Cir. 1977); Miller v. Bank of America, 418 F. Supp. 233, 236 (N.D. Cal. 1965), rev'd 600
F.2d 211 (9th Cir. 1979); see generally Katherine M. Franke, What's Wrong With Sexual Harassment?, 49 STAN. L. REV. 691,
698-729 (1997).

(Cite as: 22 Harv. Women's L.J. 123, *158)

[FN13]. See Steven Greenhouse, Companies Set to Get Tough on Harassment, N.Y. TIMES, June 28, 1998, at A5 (citing employers'
immediate response to Supreme Court decisions clarifying liability standards for sexual harassment).

[FN14]. See generally Sally F. Goldfarb, Public Rights for "Private" Wrongs: Sexual Harassment and the Violence Against Women Act
(1998) (manuscript on file with NOW LDEF).

[FN15]. See infra Part IV. Controversy about the nature of gender-motivated crimes and the suitability of creating a federal civil
rights remedy surrounded enactment of the Civil Rights Remedy. For example, some argued that it should not be enacted because it
would overload the federal court system, see Sally F. Goldfarb, The Civil Rights Remedy of the VAWA: Legislative History, Policy
Implications and Litigation Strategy, 4 J.L. & POL'Y 391, 393 nn.12-13 (1996) (citing articles raising concern about flooding federal
courts), a concern that is moot now that the law has been enacted and has resulted in fewer than 25 published decisions in more
than four years. Others objected that it is patronizing to women. See id. at 393 n.14 (citing articles by "self- styled feminists"). Similar
objections have emerged as Congress considers whether to amend the HCPA to include gender. See John Leo, Punishing Hate
Crimes, U.S. NEWS & WORLD REPORT, Oct. 26, 1998, at 20 (arguing that adding
(Cite as: 22 Harv. Women's L.J. 123, *158)

gender to the HCPA "could make every rape and incident of domestic violence a federal hate crime"). For general objections to
amending the federal hate crime statute to include gender as well as sexual orientation and disability, see generally JAMES B.
JACOBS & KIMBERLY POTTER, HATE CRIMES: CRIMINAL LAW & IDENTITY POLITICS (1998); Cecil H. Ross, Words Didn't Kill
Matthew Shepard, WALL ST. J., Oct. 26, 1998, at A22; Daniel E. Troy, Hate Crime Laws Make Some More Equal Than Others, WALL
ST. J., Oct. 19, 1998, at A27.

[FN16]. For a discussion of the failure of state civil and criminal law enforcement systems to adequately address crimes such as
sexual assault and domestic violence, see infra notes 177-180.

[FN17]. See Pub. L. No. 103-322, 108 Stat. 1902-58.

[FN18]. 42 U.S.C. § 13981 (1998).

[FN19]. The Civil Rights Remedy states:
(b) All persons within the United States shall have the right to be free from violence motivated by gender ....
(c) A person (including a person who acts under color of any statute, ordinance, regulation, custom, or usage of any State) who
commits a crime of
(Cite as: 22 Harv. Women's L.J. 123, *158)

violence motivated by gender and thus deprives another of the right declared in subsection (b) of this section shall be liable to the
party injured, in an action for the recovery of compensatory and punitive damages, injunctive and declaratory relief, and such
other relief as a court may deem appropriate.
42 U.S.C. § 13981(b)-(c).

[FN20]. See id.

[FN21]. Although the law is drafted in gender-neutral language, this Article refers to Civil Rights Remedy plaintiffs as "she," reflecting
the fact that most gender-based violence is committed by men against women.

[FN22]. See 42 U.S.C. § 13981(d)(2). The statute contains a two-part definition of "crime of violence." First, the plaintiff must
establish that the "act or series of acts ... would constitute a felony against the person" or "against property if the conduct presents a
serious risk of physical injury to another." 42 U.S.C. § 13981(d)(2)(A). In addition, the act must come within the meaning of 18 U.S.C.
§ 16 (1994) ("Section 16"), a federal statute defining a "crime of violence" that has been used principally in the sentencing context.
The Section 16 definition bolsters the Civil Rights Remedy's requirement that only sufficiently violent acts will be covered, by
(Cite as: 22 Harv. Women's L.J. 123, *158)

providing that the predicate felony statute must either contain the use or threatened use of force as an element, or must present a
substantial risk that force will be used. See id. Courts have reached mixed results in assessing whether allegations of violence against
women satisfy this requirement. Compare, e.g., Lui v. Striuli, No. 96-0137L, 1999 U.S. Dist. LEXIS 448 (D. R.I. Jan. 19, 1999);
Zeigler v. Ziegler, 28 F. Supp.2d 601 (E.D. Wash. 1998); Kuhn v. Kuhn, No. 98 C 2395, 1998 WL 673629 (N.D. Ill. Sept. 16, 1998);
Timm v. DeLong, No. 8:98CV43 (D. Neb. June 22, 1998); Brzonkala v. Virginia Polytechnic & State Univ., 935 F. Supp. 779, 784
(W.D. Va. 1996), rev'd on other grounds, 132 F.3d 949 (4th Cir. 1997), vacated pending reh'g en banc on other grounds (4th Cir. Feb.
5, 1998); Anisimov v. Lake, 982 F. Supp. 531, 541 (N.D. Ill. 1997) (concluding that complaints satisfied crime of violence element),
with Doe v. Hartz, 134 F.3d 1339 (8th Cir. 1998); Palazzolo v. Russiano, 993 F. Supp. 45 (D. R.I. 1998); McCann v. Rosquist, 998 F.
Supp. 1246 (D. Utah 1998), appeal filed, No. 98-4049 (10th Cir. Mar. 25, 1998); Smathers v. Webb, No. 3:98-CV-124 (E.D. Tenn. May
12, 1998), appeal docketed, No. 98-5806 (6th Cir. June 18, 1998) (rejecting claims).

[FN23]. See 42 U.S.C. § 13981(e)(2) (1998).

(Cite as: 22 Harv. Women's L.J. 123, *158)

[FN24]. 42 U.S.C. § 13981(d)(1) (1998). In addition, the statute specifies that the law will not apply to "random acts of violence
unrelated to gender or [[to] acts that cannot be demonstrated, by a preponderance of the evidence, to be motivated by gender." 42
U.S.C. § 13981(e)(1) (1998).

[FN25]. See 42 U.S.C. § 13981(e)(3) (1998).

[FN26]. See Pub. L. No. 103-322, 108 Stat. 1942, Sec. 40302 (e)(5) (amending 28 U.S.C. § 1445(d) to prohibit removal of VAWA
Civil Rights Remedy claims).

[FN27]. 42 U.S.C. § 13981(d)(1) (1998).

[FN28]. For example, the 1993 Senate Report treats "proof of gender- motivation" as a single statutory element. See S. REP. NO.
103-138, at 52 (1993). For a discussion of the distinctions, or lack thereof, between gender- motivation and gender "animus," see
infra Part IV.A.

[FN29]. See S. REP. NO. 103-138, at 52.

[FN30]. See id. at 52-53, 64.

(Cite as: 22 Harv. Women's L.J. 123, *158)

[FN31]. Title VII prohibits discrimination "because of [an] individual's ... sex." 42 U.S.C. § 2000e-2.

[FN32]. See, e.g., Griffin v. Breckenridge, 403 U.S. 88 (1971).

[FN33]. Defendants responded to initial claims under the Civil Rights Remedy by bringing facial challenges to the law's
constitutionality, arguing that Congress lacked the authority to enact the law. With one exception, each court to address the issue
has upheld the law's constitutionality, ruling that Congress had the power to enact it either under the Commerce Clause or under
Section 5 of the Fourteenth Amendment. See Doe v. Mercer, No. 98-10649-RGS (D. Mass. Feb. 19, 1999); Liu v. Striuli, No. 96-0137
L, 1999 WL 24961 (D. R.I. Jan. 19, 1999); C.R.K. v. Martin, No. 96-1431-MLB (D. Kan. July 10, 1998); Timm v. Delong, No. 8:98CV43
(D. Neb. June 22, 1998); Mattison v. Click Corp., No. 97-CV-2736, 1998 U.S. Dist. LEXIS 720 (D. Pa. Jan. 27, 1998); Crisonino v.
New York City Housing Auth., 985 F. Supp. 385 (S.D. N.Y. 1997); Anisimov v. Lake, 982 F. Supp. 531 (N.D. Ill. 1997); Seaton v.
Seaton, 971 F. Supp. 1188 (D. Tenn. 1997); Doe v. Hartz, 970 F. Supp. 1375 (N.D. Iowa 1997), rev'd on other grounds, 134 F.3d 1339
(8th Cir. 1998); Doe v. Doe, 929 F. Supp. 608 (D. Conn. 1996). The sole decision finding the
(Cite as: 22 Harv. Women's L.J. 123, *158)

law unconstitutional was reversed on appeal and is now pending a ruling from the Fourth Circuit Court of Appeals sitting en banc.
See Brzonkala v. Virginia Polytechnic, 132 F.3d 949 (4th Cir. 1997), rev'g 935 F. Supp. 779 (W.D. Va. 1996), vacated pending reh'g
en banc (4th Cir. Feb. 5, 1998). Since these challenges address only the facial constitutionality of the law, they have no bearing on
the ways in which the law's substantive elements will be interpreted, provided the law's constitutionality continues to be upheld.

[FN34]. See infra Part III. As that section illustrates, early decisions under that law show that circumstantial evidence of gender bias
will guide courts in assessing the types of facts that present enough evidence of gender- motivation to sustain a VAWA Civil Rights
Remedy claim.

[FN35]. See 18 U.S.C. § 245 (1998). Under its current formulation, Section 245 prosecutions require evidence that the violent act
was committed with the intent to interfere with federally protected activities such as attending public school, participating in any
state program, employment, serving as a juror, traveling in interstate commerce, or enjoying any public accommodation. See 18
U.S.C. § 245(b)(2) (1998).

[FN36]. See Hate Crimes Prevention Act of 1997, H.R. 3081, 105th Cong.
(Cite as: 22 Harv. Women's L.J. 123, *158)

(1997); Hate Crimes Prevention Act of 1998, S. 1529, 105th Cong. (1997) (together, "HCPA").

[FN37]. See Hate Crimes Prevention Act of 1998: Hearings on S. 1529 Before the Senate Comm. on the Judiciary, 105th Cong., 1st
Sess. (July 8, 1998) (statement of Eric H. Holder, Jr., Deputy Atty. Gen.).

[FN38]. See Hate Crimes Prevention Act of 1997: Hearings on H.R. 3081 Before the House Comm. on the Judiciary, 105th Cong., 1st
Sess. (July 22, 1998) (statement of Kathryn J. Rodgers, Esq., Executive Dir., NOW LDEF). But see Hate Crimes Prevention Act of
1998: Hearings on S. 1529 Before the Senate Comm. on the Judiciary, 105th Cong., 1st Sess. (July 8, 1998) (statement of Prof. Larry
Alexander, Univ. San Diego) (finding legislation ambiguous as to whether it covers acts motivated by "animus" or defined by "victim
selection" based on group membership).

[FN39]. See, e.g., The Hate Crimes Provention Act of 1998: Hearings on S. 1529, Before the Senate Comm. on the Judiciary, 105th
Cong., 1st Sess. (1998) (statement of Prof. Larry Alexander, Univ. San Diego) (raising constitutional concerns); id. (statement of the
Honorable Richard J. Arcara on behalf of the Judicial Conference of the United States) (raising concerns about
(Cite as: 22 Harv. Women's L.J. 123, *158)

federal resources); JACOBS & POTTER, supra note 15, at 6, 121-28 (arguing that criminalizing hate crimes is duplicative and
unnecessary and implicating First Amendment concerns). Because this Article focuses on the unique issues presented by gender, it
will not focus on the generic objections.

[FN40]. See Pub. L. No. 103-322, 108 Stat. 2096, Sec. 280003(b) (pursuant to 28 U.S.C. § 994). This law applies to bias crimes based
on actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation. In May 1995, the
Sentencing Commission announced that a three-level sentencing guidelines increase for hate crimes would take effect on November
1, 1995. U.S. Sentencing Guidelines § 3A1.1 (1995).

[FN41]. The only reported decision which considered applying the guideline to a gender-related crime declined to do so and
analyzed gender-motivation in a manner contrary to United States Supreme Court precedent. In United States v. Boylan, 5 F. Supp.
2d 274 (D. N.J. 1998), a municipal court judge was alleged to have coached single, poor, Hispanic, or light-skinned black female
municipal court defendants charged with traffic violations to lie about their offenses in order to get reduced fines and penalties in
return for sexual favors. The court declined to treat his crime as a hate crime for sentencing
(Cite as: 22 Harv. Women's L.J. 123, *158)

purposes because it was not persuaded that "the primary motivation for the offense was a hatred of the municipal court defendants."
Id. at 283. That reasoning is incorrect, however, because the court did not analyze the role the municipal court defendants' race or
gender played in Boylan's actions; it merely concluded that the judge did not harbor "hatred" of the defendants, without making any
reference to their gender or racial identity. Moreover, the court erroneously confused "hatred" with the discriminatory motive
about which the sentencing guidelines are concerned. See, e.g., Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 269-70
(1993) (distinguishing maliciousness from bias or discriminatory motivation).

[FN42]. See Pub. L. No. 101-275, 104 Stat. 140 (pursuant to 28 U.S.C. § 534).

[FN43]. See, e.g., 18 U.S.C. §§ 241, 242, 245, 246 (1998); 42 U.S.C. §§ 1981, 1983, 1985 (1998).

[FN44]. 28 U.S.C. § 534n (1990). In 1994, the law was amended to include crimes based on disability as well. See Pub. L. No.
103-322, 108 Stat. 2131 (1994). Congress reauthorized the law in 1996. See Pub. L. No. 104-155, 110 Stat. 1394.

(Cite as: 22 Harv. Women's L.J. 123, *158)

[FN45]. The FBI established guidelines to assist in tracking and collecting data on bias crimes pursuant to the mandate of the Hate
Crimes Statistics Act of 1990 ("HCSA"). 28 U.S.C. § 534 (1998). The HCSA requires the Justice Department to acquire data on crimes
which "manifest prejudice based on race, religion, sexual orientation or ethnicity" from law enforcement agencies across the
country and to publish an annual summary of the findings. Id.

[FN46]. See U.S. DEP'T OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION, HATE CRIME DATA COLLECTION GUIDELINES 2-3.

[FN47]. S. REP. NO. 103-138, at 52 (1993); S. REP. NO. 102-197, at 50 n.72 (1992). Studies and reports by advocates similarly have
illustrated the ease with which these standards can be applied to gender-based crimes. See COPELAND & WOLFE, supra note 3;
LEADERSHIP CONFERENCE EDUCATION FUND & LEADERSHIP CONFERENCE ON CIVIL RIGHTS, supra note 3; AMY STEPHSON,
supra note 3; see generally ANTI-DEFAMATION LEAGUE, supra note 3.

[FN48]. See infra Part III, and cases cited within.

[FN49]. Section 1985(3) creates a civil remedy for conspiracies to
(Cite as: 22 Harv. Women's L.J. 123, *158)

deprive any person "of the equal protection of the laws." To meet this element of proof, the Supreme Court has required "some racial,
or perhaps otherwise class-based invidiously discriminatory animus" behind the action. Griffin v. Breckenridge, 403 U.S. 88, 102
(1971); see also Victoria F. Nourse, Where Violence, Relationship, and Equality Meet: The Violence Against Women Act's Civil
Rights Remedy, 11 WIS. WOMEN'S L.J., Summer 1996, at 1, 29-30 (documenting Congress' selection of statutory standard).

[FN50]. While Congress directed courts to look to §1985(3) in analyzing gender-motivation under the Remedy, the statutes differ in
that neither the Civil Rights Remedy nor the HCPA require proof of "invidious," i.e., conscious, discrimination, as is required under
Section 1985(3). Nonetheless, as this analysis reveals, the type of evidence that would satisfy either standard is virtually identical.

[FN51]. 403 U.S. 88, 103 (1971).

[FN52]. See, e.g., S. REP. NO. 103-138, at 51 n.59; S. REP. NO. 102-197, at 49 n.69.

[FN53]. See Griffin, 403 U.S. at 103.

(Cite as: 22 Harv. Women's L.J. 123, *158)

[FN54]. 506 U.S. 263 (1993).

[FN55]. See id. at 270.

[FN56]. Id.

[FN57]. See id.

[FN58]. See Libertad v. Welch, 53 F.3d 428 (1st Cir. 1995).

[FN59]. Id. at 449.

[FN60]. Id. Some of the evidence in this case may reflect sexual orientation-based bias as well as gender bias. See United States v.
Bledsoe, 728 F.2d 1094 (8th Cir. 1984) (recognizing race-based bias crime notwithstanding evidence of bias based on both race and
sexual orientation).

[FN61]. See Libertad, 53 F.3d at 449.

[FN62]. See Skadegaard v. Farrell, 578 F. Supp. 1209, 1220 (D. N.J.
(Cite as: 22 Harv. Women's L.J. 123, *158)

1984).

[FN63]. See Saville v. Houston County Healthcare Auth., 852 F. Supp. 1512, 1537-40 (M.D. Ala. 1994) (reaching only the issues that
the claim would not be barred by qualified immunity, that Section 1985(3) could encompass claims based on gender, as opposed to
racially motivated conspiracies, and that the plaintiffs' claim was not subject to an intracorporate conspiracy exception).

[FN64]. See Larson v. School Board of Pinellas County, 820 F. Supp. 596, 602 (M.D. Fla. 1993).

[FN65]. For example, in another of the few cases to address the issue, one district court rejected a woman's claims of a gender-based
conspiracy, notwithstanding allegations that a police officer had sexually assaulted her several times after he stopped her on the
suspicion that she was driving under the influence of alcohol. See Valanzuela v. Snider, 889 F. Supp. 1409 (D. Colo. 1995). The court
found no evidence of discriminatory animus because it found no evidence that the defendants had selected her because of the
"adverse effect" their actions would have on women. Id. at 1420. Yet that court apparently conducted no analysis of the ways
repeated unwanted sexual assault
(Cite as: 22 Harv. Women's L.J. 123, *158)

can reflect discriminatory bias. Moreover, by focusing on "adverse effects," it may well have employed an incorrect standard, since
it appears from that language to have imported a disparate impact analysis, without any precedent whatsoever in analogous case
law.

[FN66]. See Fisher v. Shamburg, 624 F.2d 156, 158 (10th Cir. 1980); see also Hawk v. Perillo, 642 F. Supp. 380, 392 (N.D. Ill. 1985)
(upholding Section 1985(3) claim based on evidence that white males yelled racial slurs at African Americanmen before physically
attacking them). In another case involving a racially motivated assault, evidence that the defendants attacked and stabbed an
African American man while saying "die, nigger" established racially discriminatory animus, although the plaintiff's Section 1985(3)
claim failed to allege that defendants intended to violate a particular constitutional right. See Spencer v. Casavilla, 839 F. Supp.
1014, 1016 (S.D. N.Y. 1993).

[FN67]. See Lac Du Flambeau v. Stop Treaty Abuse, 843 F. Supp. 1284, 1292-93 (W.D. Wis. 1994), aff'd, 41 F.3d 1190 (7th Cir. 1994).

[FN68]. See, e.g., Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987) (finding police officers' racial epithets directed
toward an African
(Cite as: 22 Harv. Women's L.J. 123, *158)

American man they had arrested probative of racial animus); Bell v. City of Milwaukee, 746 F.2d 1205, 1259 (7th Cir. 1984)
(recognizing police officers' derogatory references to African Americans, including racial epithets, as part of a bias-motivated
conspiracy to cover up the killing of a young African American man).

[FN69]. See Bell, 746 F.2d at 1259.

[FN70]. See Johnson v. Smith, 878 F. Supp. 1150, 1155 (N.D. Ill. 1995).

[FN71]. See Stirgus v. Benoit, 1990 WL 251790, at *2 (N.D. Ill. Dec. 26, 1990). The evidence of bias motivation was buttressed in
this case by one of the defendants' confession that he had selected the neighborhood because African American families were
moving there. See id.

[FN72]. See Pisello v. Brookhaven, 933 F. Supp. 202, 217 (E.D. N.Y. 1996); see also Bullock v. Dioguardi, 847 F. Supp. 553, 561-62
(N.D. Ill. 1993) (finding evidence of a racially motivated 42 U.S.C. § 1985(2) or (3) violation in police officers' reference to an African
American arrestee as a "black bastard," threatening his life and holding him at the police station "in order to build a case against
him").

(Cite as: 22 Harv. Women's L.J. 123, *158)

[FN73]. See, e.g., Haverstick Enterprises v. Financial Fed. Credit, 32 F.3d 989, 994 (6th Cir. 1994) (finding no evidence of bias
against handicapped alleged); Robert "Say" McIntosh v. Arkansas Republican Party--Frank White Election Comm., 766 F.2d 337
(8th Cir. 1985) (holding that there were no allegations that gubernatorial reelection committee's refund of plaintiff's ticket to
fundraiser was racially motivated); Robinson v. Town of Colonie, 878 F. Supp. 387 (N.D. N.Y. 1995) (rejecting claim by African
American shoppers whom police requested to leave the store, absent other indications of discriminatory animus); Thornton v.
Albany, 831 F. Supp. 970 (N.D. N.Y. 1993) (rejecting claim by surviving family after police shot an African American man who
approached the police with a knife when they entered his apartment following a neighbor's complaints, when the sole evidence of
racial animus was a police statement that the man "had a grin on his face" and "had a full set of teeth which could be weapons too");
Carter v. Cuyler, 415 F. Supp. 852 (E.D. Pa. 1976) (finding the alleged facts relating to racial motivation insufficient to support a
claim under Section 1985).

[FN74]. See, e.g., United States v. Dunnaway, 88 F.3d 617 (8th Cir. 1996); United States v. Ebens, 800 F.2d 1422 (6th Cir. 1986).

(Cite as: 22 Harv. Women's L.J. 123, *158)

[FN75]. See, e.g., United States v. Makowski, 120 F.3d 1078 (9th Cir. 1997).

[FN76]. See, e.g., Dunnaway, 88 F.3d at 618; United States v. Lane, 883 F.2d 1484 (10th Cir. 1989).

[FN77]. See, e.g., United States v. Woodlee, 136 F.3d 1399 (10th Cir. 1998); United States v. Franklin, 704 F.2d 1183 (10th Cir.
1983).

[FN78]. See 42 U.S.C. § 2000e-2.

[FN79]. Compare 42 U.S.C. § 13981(d)(1) (defining gender-motivation in the Civil Rights Remedy) with 42 U.S.C. § 2000e-2
(prohibiting discrimination "because of sex" under Title VII).

[FN80]. 118 S. Ct. 998, 1998 U.S. LEXIS 1599 (1998).

[FN81]. Id. at *7.

[FN82]. Id. at *8-*9.

(Cite as: 22 Harv. Women's L.J. 123, *158)

[FN83]. See id. at *10; see also, generally, Ruth Colker, Whores, Fags, Dumb Ass Women, Surly Blacks and Competent Heterosexual
White Men: The Sexual and Racial Morality Underlying Anti-Discrimination Doctrine, 7 YALE J.L. & FEMINISM 195 (1995); Vicki
Schultz, Reconceptualizing Sexual Harassment, 107 YALE L.J. 1683 (1998).

[FN84]. See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) (referencing factors including "the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether
it unreasonably interferes with an employee's work performance"). While this framework enumerates the standard for recovery in
sexual harassment cases, it also illustrates the type of circumstantial evidence that may reflect bias in Civil Rights Remedy cases
because both require proof of conduct committed "because of ... sex."

[FN85]. See, e.g., Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995); Brock v. United States, 64 F.3d 1421, 1423 (9th Cir.
1995); Yaba v. Roosevelt, 961 F. Supp. 611, 620 (S.D. N.Y. 1997); Al-Dabbagh v. Greenpeace, Inc., 873 F. Supp. 1105, 1110-11 (N.D.
Ill. 1994); Campbell v. Kansas State Univ., 780 F. Supp. 755, 762 (D. Kan. 1991).

(Cite as: 22 Harv. Women's L.J. 123, *158)

[FN86]. See, e.g., Meritor, 477 U.S. at 60; Barnes v. Costle, 561 F.2d 983, 985 (D.C. Cir. 1977).

[FN87]. See, e.g., Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1449-50 (7th Cir. 1994); EEOC v. Hacienda Hotel, 881 F.2d 1504,
1514-15 (9th Cir. 1989); Bundy v. Jackson, 641 F.2d 934, 944-45 (D.C. Cir. 1981).

[FN88]. See, e.g., Hutchison v. Amateur Elec. Supply, Inc., 42 F.3d 1037, 1042-43 (7th Cir. 1994); Paroline v. Unisys Corp., 879
F.2d 100, 103 (4th Cir. 1989), vacated in part on other grounds, 900 F.2d 27 (4th Cir. 1989).

[FN89]. See, e.g., Lipsett v. University of Puerto Rico, 864 F.2d 881, 905 (1st Cir. 1988); Hall v. Gus Constr. Co., 842 F.2d 1010,
1013-14 (8th Cir. 1988); EEOC v. A. Sam & Sons Produce Co., 872 F. Supp. 29, 34 (W.D. N.Y. 1994).

[FN90]. See, e.g., Beardsley v. Webb, 30 F.3d 524, 528 (4th Cir. 1994); Hall, 842 F.2d at 1012-14; Hicks v. Gates Rubber Co., 833
F.2d 1406, 1415 (10th Cir. 1987); see also King v. Hillen, 21 F.3d 1572, 1583 (Fed. Cir. 1994).

(Cite as: 22 Harv. Women's L.J. 123, *158)

[FN91]. See, e.g., Harris, 510 U.S. at 19 ("you're a woman, what do you know?"); Price Waterhouse v. Hopkins, 490 U.S. 228, 235-36,
250-51 (1989).

[FN92]. See, e.g., Andrews, 895 F.2d at 1482 n.3; Paroline, 879 F.2d at 103.

[FN93]. See ANTI-DEFAMATION LEAGUE, supra note 3.

[FN94]. See No. 94-0985H, at 1-2 (Mass. Super. Ct. Mar. 14, 1994) (issuing injunction prohibiting batterer from taking various
actions against "any ... woman who is a resident of or visitor to the Commonwealth") (pleadings on file with NOW LDEF).

[FN95]. See Aff. of Christine Aboulez, Massachusetts v. Aboulez, No. 94- 0985H, (Mass. Super. Ct. Feb. 23, 1994); Aff. of Suzanne
Askman, Massachusetts v. Aboulez, No. 94-0985H, (Mass. Super. Ct. Feb. 23, 1994); Aff. of Marguerite Elisii, Massachusetts v.
Aboulez, No. 94-0985H, (Mass. Super. Ct. Feb. 24, 1994); Aff. of Laura Innes, Massachusetts v. Aboulez, No. 94-0985H, (Mass.
Super. Ct. Feb. 24, 1994) (on file with NOW LDEF). Along with physical abuse, the complaint alleged that the defendant called the
women he was involved with and women in general "whores," "bitches," "sluts," and "no
(Cite as: 22 Harv. Women's L.J. 123, *158)

good," and said things such as "you're not as smart as me," and "you'll never be as smart as me." He told one of the women that she
was "just like all the rest of them, cheap ... easy" and said that women in general were weaker and not as smart as men. In several of
his relationships, he threatened to kill his partner if she ever left him, saw anyone else, or sought a restraining order against him. He
refused to allow the women to leave their apartments alone and dictated how they should dress. He stated that he had the right to
beat a woman because she was his wife. He regularly forced his partners to engage in sexual intercourse against their will. See
Compl., Massachusetts v. Aboulez, No. 94-0985H (Mass. Super. Ct. Feb. 25, 1994).

[FN96]. See Beliveau v. Caras, 873 F. Supp. 1393, 1401 (C.D. Cal. 1995).

[FN97]. See O'Connell v. Chasdi, 511 N.E. 2d 349, 353-54 (Mass. 1987).

[FN98]. See generally Lynn Parseghian et al., A Survey and Analysis of State Hate-Crime Statutes and the "Animus" or "Biased
Motivation" Requirement (1997) (manuscript on file with NOW LDEF).

[FN99]. See, e.g., In re People v. M.S., 896 P.2d 1365, 1369 (Cal. 1995) (finding bias when defendants physically attacked and
threatened two men in a
(Cite as: 22 Harv. Women's L.J. 123, *158)

predominantly gay neighborhood in San Francisco, screaming "[w]e are going to kill you, you are all going to die of AIDS" and "[w]e
are going to get you faggot"); People v. Davis, 674 N.E.2d 895, 898 (Ill. App. Ct. 1996) (upholding hate crime conviction when
defendant directed his assault and repeated racist epithets and comments at an African American, rather than his Caucasian
companion); In re S.M.J., 556 N.W.2d 4, 5 (Minn. Ct. App. 1996) (finding racial motivation when defendant called victim "nigger"
during assault and others testified he frequently had used such language). While epithets generally are considered probative of bias
motivation, a single epithet may not be enough. See State v. Colella, 690 A.2d 156, 157 (N.J. Super. App. Div. 1997) (upholding
conviction of a defendant who beat his victim in the Trenton train station, while saying "Nigger, get the fuck out of here," and other
similar epithets); Commonwealth v. Rink, 574 A.2d 1078 (Pa. Super. Ct. 1990), appeal denied, 586 A.2d 922 (Pa. 1991) (finding
"ethnic intimidation" based on white teenagers' vandalism of African American couple's home and utterance of racial and gendered
epithets); cf. Commonwealth v. Ferino, 640 A.2d 934 (Pa. Super. Ct. 1994), aff'd by an equally divided Court, 655 A.2d 506 (Pa.
1995) (finding attack on one white and one African American male while uttering a single racial word before firing the weapon not
racially motivated).

[FN100]. People v. Rivera, 545 N.Y.S.2d 252, 254 (N.Y. Crim. Ct. 1989).

(Cite as: 22 Harv. Women's L.J. 123, *158)

[FN101]. See, e.g., Dobbins v. State, 605 So.2d 922, 923 (Fla. Dist. Ct. App. 1994) (upholding enhanced sentence for members of
skinhead organization who badly beat a member on discovering his Jewish heritage, stating "Die Jew boy."); In re Vladimir P., 670
N.E.2d 839, 841 (Ill. App. 1996) (upholding hate crime conviction when two youths approached 13 year-old Orthodox Jewish boy
shouting "[f]uck you Jew, get out of here Jew, I am going to kill you Jew, fuck you Jew," and then threw a knife in victim's direction);
State v. Pollard, 906 P.2d 976, 977 (Wash. Ct. App. 1995) (finding racial harassment based on "virulent racial remarks"); State v.
Mitchell, 485 N.W.2d 807 (Wis. 1992) (concluding that single derogatory word may show racial motivation); Kinser v. State, 591
A.2d 894 (Md. Ct. Spec. App. 1991) (finding racial motivation based on defendant's racist remarks and crowd's shouts immediately
before, during, and after defendant's assault on an African American.

[FN102]. See, e.g., Johnson v. Smith, 878 F. Supp. 1150 (N.D. Ill. 1995) (cross burning showed ethnic intimidation under civil
element of Illinois hate crime statute); People v. Superior Court of San Diego County, 896 F.2d 1387, 1388 (Cal. 1995) (finding bias
motivation when defendant made derogatory ethnic comments and had "both a swastika and the words 'Thank God I'm White'
tattooed on his arms").

(Cite as: 22 Harv. Women's L.J. 123, *158)

[FN103]. See, e.g., People v. Johnston, 641 N.E.2d 898 (Ill. App. Ct. 1994) (upholding ethnic intimidation conviction when
defendant shouted racial epithets, chased the victim along with a crowd that eventually beat him, and admitted that the victim did
nothing to provoke the attack).

[FN104]. See, e.g., Johnson v. Hugo's Skateway, 974 F.2d 1408 (4th Cir. 1992) (finding racially motivated harassment and
intimidation at ice skating rink based on harassment of African American patron, who was the only black in an all-white
establishment; owner had made prior negative statements about interracial couples and had failed to post nondiscrimination signs
required by earlier consent decree); State v. Hart, 677 So.2d 385, 386 (Fla. Dist. Ct. App. 1996) (finding prejudice was a significant
factor when defendant shouted at African American police officer during roadside DUI breathalyzer, "I'm going to get you, nigger,"
and threatened to find out where he lived, hurt him and his family, and burn a cross on his lawn); Commonwealth v. Stephens, 515
N.E.2d 606, 607 (Mass. App. Ct. 1987) (finding defendant had called one of the victims a "fucking Cambodian" during a prior
incident, was associated with a white male gang that harassed Cambodians and vandalized Cambodians' homes); State v. Worl, 794
P.2d 31 (Wash. Ct. App. 1990) (upholding malicious harassment conviction based on comments about victim's race preceding
vicious
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attack and evidence of defendant's neo-Nazi philosophy), subsequent decision, 955 P.2d 814 (Wash. Ct. App. 1998); State v. J.A.,
No. 374681I, 1996 Wash. App. LEXIS 793, at *4 (Wash. App. Ct. Dec. 19, 1996) (finding racial harassment when defendant called
victim a "fucking East Indian" who should "go back to his country," and court found no other reason defendant would want to fight
victim).

[FN105]. See, e.g., State v. Talley, 858 P.2d 217, 231 (Wash. 1993) (overturning malicious harassment conviction when defendant
tried to prevent black couple from moving in next door, complained to bystanders using racial slurs and built and burned a cross in
his own yard, finding conduct not criminal).

[FN106]. See S. REP. NO. 103-138, at 52 (1993).

[FN107]. See Brzonkala, 132 F.3d at 963-64. In this case, which was the first sexual assault case to be litigated under the Civil Rights
Remedy, the district court upheld Ms. Brzonkala's claim that the alleged gang rape was gender-motivated, but dismissed the
complaint, ruling that the Civil Rights Remedy was unconstitutional. See Brzonkala v. Virginia Polytechnic & State Univ., 935 F.
Supp. 779 (W.D. Va. 1996). The appellate panel agreed that the
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complaint stated a claim of gender-motivation, and reversed the district court's ruling on the constitutional question. See
Brzonkala, 132 F.3d at 963-63, 966-74. Nonetheless, the Fourth Circuit Court of Appeals has reheard the case en banc, (reh'g en
banc granted Feb. 5, 1998), and has not issued a decision as of this writing.

[FN108]. Earlier in the opinion, the court cited the Senate Report that referenced "generally accepted guidelines" for identifying hate
crimes. Brzonkala, 132 F.3d at 963 (citing S. REP. NO. 103-138, at 52). Those guidelines include factors such as: "language used by
the perpetrator; the severity of the attack (including mutilation); the lack of provocation; previous history of similar incidents;
absence of any other apparent motive (battery without robbery, for example); common sense." S. REP. NO. 103-138, at 52 n.61.

[FN109]. Brzonkala, 132 F.3d at 964.

[FN110]. See id. at 963.

[FN111]. Id.

(Cite as: 22 Harv. Women's L.J. 123, *158)

[FN112]. Id.

[FN113]. Id.

[FN114]. See Anisimov v. Lake, 982 F. Supp. 531, 541 (N.D. Ill. 1997).

[FN115]. See Crisonino v. New York City Housing Auth., 985 F. Supp. 385, 391 (S.D. N.Y. 1997); accord Liu v. Striuli, No. 96-0137 L,
1999 WL 24961 (D. R.I. Jan. 19, 1999) (finding allegations of rapes of a graduate student by a professor, along with lewd comments,
threats of deporation, and the lack of any other motive, to be gender-motivated).

[FN116]. Doe v. Hartz, 970 F. Supp. 1375, 1405-06 (N.D. Iowa 1997) (denying motion to dismiss allegations of sexual assault by
priest of a parishioner), rev'd in part on other grounds, 134 F.3d 1339 (8th Cir. 1998) (holding that plaintiff had failed to prove a
crime of violence); see also Mattison v. Click Corp. of America, No. 97-CV-2736, 1998 U.S. Dist. LEXIS 720, at *23 (E.D. Pa. Jan. 27,
1998) (granting in part and denying in part motion to dismiss allegations of sexual assaults and harassment by supervisor) (quoting
Doe v. Hartz).

(Cite as: 22 Harv. Women's L.J. 123, *158)

[FN117]. See McCann v. Rosquist, 998 F. Supp. 1246, 1252-53 (D. Utah 1998).

[FN118]. See id. at 1252.

[FN119]. Id. at 1252-53.

[FN120]. See Ziegler v. Ziegler, No. CS-97-0467, 1998 U.S. Dist. LEXIS 18180, at *8 (E.D. Wash. Sept. 24, 1998); see also Kuhn v.
Kuhn, No. 98 C 2395, 1998 WL 673629 (N.D. Ill. Sept. 16, 1998) (finding allegations of marital rape to be gender-motivated).

[FN121]. See id. at *9-*10.

[FN122]. See id. at *10 (citing S. REP. NO. 102-197, at 50 n.72 (1991) (referencing generally accepted guidelines for identifying hate
crimes as useful in analyzing gender-motivation).

[FN123]. See id.

[FN124]. Id.

(Cite as: 22 Harv. Women's L.J. 123, *158)

[FN125]. Three courts have rejected claims based on an absence of any evidence of bias-motivation beyond allegations of an
assault. See, e.g., Dolin v. West, 22 F. Supp.2d 1343 (M.D. Fla. 1998); Glendora v. Pinkerton Security & Detective Servs., 25 F.
Supp.2d 447 (S.D. N.Y. 1998); Wesley v. Don Stein Buick, 985 F. Supp. 1288, 1300 (D. Kan. 1997). Another court rejected a claim of
same-sex assault that contained no other circumstantial evidence of gender-motivation. See Wilson v. Diocese of New York, 97 Civ.
2400 (JGK), 1998 U.S. Dist. LEXIS 2051, at *41 (S.D. N.Y. Feb. 23, 1998). The court rejected the claim based on plaintiff's failure to
produce any evidence that the assault was gender-related. See id. While that court offered virtually no analysis of its conclusion, the
decision can be interpreted as reflecting an unwillingness to infer bias motivation from allegations of same-sex assault absent any
circumstantial evidence of gender bias. That conclusion does not cast doubt on whether a court might be willing to infer gender bias
from a sexual assault committed by a male against a female. In a third decision, a district court rejected a Civil Rights Remedy claim
based on a sexual assault by a woman's supervisor. See Braden v. Piggly Wiggly, 4 F. Supp.2d 1357, 1361-62 (M.D. Ala. 1998). That
court seemingly accepted that allegations of sexual violence alone may be "itself indicative of gender animus" and would therefore
be "sufficient" to satisfy the Civil Rights Remedy's gender-
(Cite as: 22 Harv. Women's L.J. 123, *158)

motivation element. Id. at 1362. Nonetheless, the court rejected the claim because the predicate felony sexual offense did not itself
contain proof of gender animus as one of its elements. See id. In addition to lacking any legal support whatsoever, that analysis is
illogical since felony statutes do not generally require proof of gender-motivation.

[FN126]. See supra notes 107-113 and accompanying text.

[FN127]. See Brzonkala, 935 F. Supp. at 784-85.

[FN128]. Id. at 785.

[FN129]. See Anisimov, 982 F. Supp. at 541 (critiquing the Brzonkala trial court's "broad characterizations of rape").

[FN130]. See McCann, 998 F. Supp. at 1252-53:
[T]he perception that a man is somehow less culpable in taking inappropriate liberties with members of the female gender if his
motivations are amorous, seems to be just the type of "animus" that is a focus of concern in gender discrimination. Regardless of the
amorous intentions of the perpetrator, non-consensual expressions of affection that rise to the nature
(Cite as: 22 Harv. Women's L.J. 123, *158)

of those alleged in this action are laden with disrespect for women.

[FN131]. See, e.g., David Lisak, Ph.D., Assoc. Prof. Clinical Psych., U. Mass., Boston and Dir., Men's Sexual Trauma Research Proj.,
Interview with a Rapist: Transcript from a Study of Acquaintance Rapists, (U. Mass., Boston) (on file with NOW LDEF) (documenting
"techniques" used by "unincarcerated" rapists to target women for invitations to fraternity parties at which they would ply the
women with alcoholic beverages, take them to predesignated rooms, and have sexual relations notwithstanding women's
objections).

[FN132]. See Brzonkala, 132 F.3d at 953.

[FN133]. See, e.g., PEGGY R. SANDAY, A WOMAN SCORNED: ACQUAINTANCE RAPE ON TRIAL 82-99 (1996).

[FN134]. Cf. Anita Manning, Drugged and Defenseless: Date Rape Pills Rob Victims and Prosecutors of the Ability to Fight Back,
Memory Loss Makes Cases Tough to Prove, U.S.A. TODAY, Oct. 29, 1996, at 1D (documenting widespread use of Rohypnol and other
"date rape" drugs and the resulting difficulty of prosecutions).

(Cite as: 22 Harv. Women's L.J. 123, *158)

[FN135]. See, e.g., NEIL JACOBSON & JOHN GOTTMAN, WHEN MEN BATTER WOMEN: NEW INSIGHTS INTO ENDING ABUSIVE
RELATIONSHIPS (1998); Evan Stark, Re-Presenting Woman Battering: From Battered Woman Syndrome to Coercive Control, 58
ALB. L. REV. 973 (1995); Elizabeth M. Schneider, The Violence of Privacy, in THE PUBLIC NATURE OF PRIVATE VIOLENCE 36
(Martha A. Fineman & Roxanne Mykitiuk eds., 1994).

[FN136]. See, e.g., CATHERINE T. KENNEY & KAREN R. BROWN, REPORT FROM THE FRONT LINES: THE IMPACT OF VIOLENCE ON
POOR WOMEN (1996); Martha F. Davis & Susan J. Kraham, Protecting Women's Welfare in the Face of Violence, 22 FORDHAM URB.
L.J. 1141, 1151-52 & nn.60-75 (1995); Jody Raphael, Prisoners of Abuse: Policy Implications of the Relationship Between Domestic
Violence and Welfare Receipt, 30 CLEARINGHOUSE REV. 186 (1996); see also LOUISE LAURENCE & ROBERTA SPALTER-ROTH,
MEASURING THE COSTS OF DOMESTIC VIOLENCE AGAINST WOMEN AND THE COST-EFFECTIVENESS OF INTERVENTIONS 25
(1996) (showing that 60% of battered women reported lateness at work due to abuse); Melanie Shepard & Ellen Pence, The Effect of
Battering on the Employment Status of Women, 3 AFFILIA 55, 58 (1988) (showing that one-half of battered women reported
harassment at work by their abusers, and one quarter had lost a job due, at least in part, to the effects of domestic violence);
CONNIE STANLEY, DOMESTIC VIOLENCE: AN OCCUPATIONAL IMPACT STUDY 17 (Tulsa, Oklahoma, July 27, 1992) (showing that
50f
(Cite as: 22 Harv. Women's L.J. 123, *158)

battered women surveyed reported lost workdays, 60% had been reprimanded, and 70% reported difficulty in performing their job,
due to abuse).

[FN137]. An estimated 25 to 40% of battered women are assaulted by their batterers during pregnancy. See Patricia Horn, Beating
Back the Revolution: Domestic Violence's Economic Toll on Women, DOLLARS AND SENSE, Dec. 1992, at 12.

[FN138]. Courts have admitted prior conduct as permissible evidence of discriminatory motive under the Federal Rule of Evidence
404(b) in other bias crime cases. See, e.g., United States v. Woodlee, 136 F.3d 1399, 1410 (10th Cir. 1998); United States v. Franklin,
704 F.2d 1183, 1188 (10th Cir. 1983).

[FN139]. See Massachusetts v. Aboulez, No. 94-0985H (Mass. Super. Ct. Mar. 14, 1994), supra note 95 (recounting evidence of
bias).

[FN140]. See 42 U.S.C. § 13981(d)(1) (1998). The use of the term "animus" in the VAWA context arguably is different from its use in
the context of claims brought under 42 U.S.C. § 1985(3). See infra Part IV.A.

(Cite as: 22 Harv. Women's L.J. 123, *158)

[FN141]. See S. REP. NO. 102-197, at 69 (1991).

[FN142]. See, e.g., Amicus Brief for the Women's Freedom Network at 9, Brzonkala v. Virginia Polytechnic & State Univ., 132 F.3d
949 (4th Cir. 1997) (No. 96-1814, 96-2316) [hereinafter Women's Freedom Network Amicus Brf.].

[FN143]. See, e.g., JACOBSON & GOTTMAN, supra note 135, at 36; Russell P. Dobash et al., The Myth of Sexual Symmetry in Marital
Violence, 39 SOC. PROBS. 71, 81 (1992) (documenting that spouse-killings by wives, as opposed to by husbands, are motivated by
self-defense); Lynn Hecht Schafran, Why Empirical Data Must Inform Practice, in FRAZEE ET AL., VIOLENCE AGAINST WOMEN:
LAW AND LITIGATION 1-51, 1-51 to 1-55 & nn.1-15 (1997) (citing Neil S. Jacobson et al., Affect, Verbal Content, and
Psychophysiology in the Arguments of Couples With a Violent Husband, 62 J. CONSULTING & CLINICAL PSYCHOL. 982 (1994)
(documenting that women in violent marriages were violent only in reaction to their husbands' violence)).

[FN144]. As Schafran points out, statistical surveys document, for example, that 29% of female victims as compared to four percent
of male victims report violent victimization by an intimate; similarly 26% of female victims report rape by an intimate, as compared
to a statistically insignificant number of
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men. See Schafran, supra note 143, at 1-55, n.14 (citing BUREAU OF JUSTICE STATISTICS, DEP'T OF JUSTICE, VIOLENCE AGAINST
WOMEN: ESTIMATES FROM THE REDESIGNED SURVEY 3 (Aug. 1995)).

[FN145]. See Women's Freedom Network Amicus Brf., supra note 142 at 9.

[FN146]. See Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998 (1998).

[FN147]. See Women's Freedom Network Amicus Brf., supra note 142 at 7.

[FN148]. See, e.g., JACOBS & POTTER, supra note 15, at 6.

[FN149]. 935 F. Supp. at 779, 785 (W.D. Va. 1996), rev'd, 132 F.3d 949 (4th Cir. 1997).

[FN150]. 42 U.S.C. § 13981(d)(1) (1994).

[FN151]. See Victoria F. Nourse, Where Violence, Relationship, and Equality Meet: The Violence Against Women Act's Civil Rights
Remedy, 11 WIS. WOMEN'S L.J. Summer 1996, at 1, 30 (documenting legislative history).

(Cite as: 22 Harv. Women's L.J. 123, *158)

[FN152]. Id.

[FN153]. 42 U.S.C. § 2000e-2(k)(1)(A)(i) (1994).

[FN154]. See supra notes 41-53 and accompanying text.

[FN155]. Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).

[FN156]. See Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 269- 270 (1993).

[FN157]. For example, in order to prevail, a plaintiff must satisfy the "crime of violence" element as well as the "gender-motivation"
element. That first element ensures that only crimes of a sufficient level of violence will be covered. Specifically, the crime must be
serious enough to constitute a felony against a person and must present a serious risk of physical injury to another. See 42 U.S.C. §
13981(d)(2). In addition, as a practical matter, the law will likely be used principally against those individual defendants with
sufficient assets to warrant commencing a federal lawsuit. See also infra notes 171-172 and accompanying text.

(Cite as: 22 Harv. Women's L.J. 123, *158)

[FN158]. Following that analogy, one author suggested a legislative amendment to the Civil Rights Remedy that would apply a
rebuttable presumption in VAWA Civil Rights Remedy cases that all rapes are gender-motivated. See Jennifer Gaffney, Note:
Amending the Violence Against Women Act: Creating a Rebuttable Presumption of Gender Animus in Rape Cases, 6 J.L. & POL'Y 247
(1997). While such an approach might more accurately reflect the prevalence of gender bias that underlies rapes and sexual
assaults, proof of circumstantial evidence is required under the law's current construction.

[FN159]. See S. REP. NO. 102-197, at 69 (1991) (statement of Senator Biden that the law would not cover "everyday" domestic
violence); see also Nourse, supra note 151 (referencing earlier draft of the Civil Rights Remedy, S.15 § 301(d)(1), which defined a
"crime of violence motivated by gender" as "including rape, sexual assault, sexual abuse, abusive sexual contact, or any other crime
of violence committed because of gender or on the basis of gender"); accord Goldfarb, The Civil Rights Remedy, 4 J.L. & POL'Y 399
(recognizing that the Civil Rights Remedy's final version does not contain presumption that rape and sexual assault always are
gender-motivated).

[FN160]. See generally Katharine K. Baker, Once a Rapist? Motivational
(Cite as: 22 Harv. Women's L.J. 123, *158)

Evidence and Relevancy in Rape Law, 110 HARV. L. REV. 563, 599-612 (1997).

[FN161]. See Letter from C. David Evans, Acting Assistant Dir., Criminal Justice Info. Servs. Div., F.B.I., to Senator Paul Simon, U.S.
Senate at 4 (July 5, 1995) (on file with NOW LDEF).

[FN162]. See Brzonkala, 935 F. Supp. at 785.

[FN163]. See id.

[FN164]. See, e.g., Baker, supra note 160, at 599-610.

[FN165]. See, e.g., A. NICHOLAS GROTH & H. JEAN BIRNBAUM, MEN WHO RAPE: THE PSYCHOLOGY OF THE OFFENDER 116
(1979); NATHAN MCCALL, MAKES ME WANNA HOLLER 45- 47 (1994); Chris S. O'Sullivan, Acquaintance Gang Rape on Campus, in
ACQUAINTANCE RAPE: THE HIDDEN CRIME 140 (Andrea Parrot & Laurie Bechhofer eds., 1991); see generally Baker, supra note
160, at 606-08. Other research indicates that the single unifying characteristic of perpetrators of violence against women is that the
vast majority are male. See KOSS, supra note 2, at 19-34 (summarizing research).

(Cite as: 22 Harv. Women's L.J. 123, *158)

[FN166]. See, e.g., A. Nicholas Groth et al., Rape: Power, Anger, and Sexuality, 134 AM. J. PSYCHIATRY 1239, 1240 (1977).

[FN167]. See, e.g., BUZAWA & BUZAWA, supra note 9, at 13-16 (summarizing research on psychological roots of domestic
violence); JACOBSON & GOTTMAN, supra note 135 (documenting different psychological profiles of batterers).

[FN168]. See, e.g., Harris v. Forklift Sys., 510 U.S. 17, 19 (1993) (setting forth framework for inferring discriminatory motive in
hostile- environment sexual harassment cases); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986) (same); McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973) (setting forth framework under which courts infer discriminatory motive in
disparate treatment cases).

[FN169]. For a summary of common themes of bias crime motivation and a proposal for applying social cognition theory, see Lu-in
Wang, The Transforming Power of "Hate": Social Cognition Theory and the Harms of Bias-Related Crime, 71 CAL. L. REV. 47 (1997).

[FN170]. See, e.g., Quick v. Donaldson Co., 90 F.3d 1372 (8th Cir. 1996). The Supreme Court endorsed this approach in Oncale v.
Sundowner Offshore
(Cite as: 22 Harv. Women's L.J. 123, *158)

Services, 118 S. Ct. 998 (1998).

[FN171]. In the Civil Rights Remedy's legislative history, Senator Biden stated that the law would not cover "everyday domestic
violence cases, nor does it cover random muggings." S. REP. NO. 102-197, at 69. He also stated that it bars claims for crimes
"motivated by personal animosity." Id. Precisely what constitutes "everyday" domestic violence, as opposed to any other form of
domestic violence is difficult to imagine. However, the language may be interpreted to require that Congress intended to cover
crimes in which gender- motivation could be established through circumstantial evidence of gender bias.

[FN172]. Other substantive and procedural limitations restrict the cases that may be subject to either civil or criminal civil rights
enforcement. For example, VAWA Civil Rights Remedy plaintiffs must establish that the violent act was a crime of violence that
"would constitute a felony against the person or that would constitute a felony against property if the conduct presents a serious risk
of physical injury to another, and that would come within the meaning of State or Federal offenses described in Section 16 of Title
18." 42 U.S.C. § 13981(d)(2)(A) (1994). In the criminal context, Section 245 currently requires certification by the attorney general
or her designee as a prerequisite to prosecution. See 18 U.S.C. § 245(a)(1) (1994). In addition,
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the HCPA, as of this writing, would limit prosecutions based on gender, sexual orientation, and disability to those in which the facts
show that "in connection with the offense, the defendant or the victim travels in interstate or foreign commerce, uses a facility or
instrumentality of interstate or foreign commerce, or engages in any activity affecting interstate or foreign commerce"; or in which
"the offense is in or affects interstate or foreign commerce." S. 1529, 105th Cong. § 4(B)(2)(B) (1997); H.R. 3081, 105th Cong. §
4(2)(B) (1997). The combined impact of these various restrictions should limit the number of cases subject to federal civil rights
enforcement.

[FN173]. See supra note 159.

[FN174]. See, e.g., H.R. REP. NO. 103-711, at 385 (1994); S. REP. NO. 103- 138, at 42, 49 (1993); S. REP. NO. 102-197, at 39, 43-48
(1991); S. REP. NO. 101-545, at 33-34, 40-42 (1990); Crimes of Violence Motivated by Gender: Hearing on H.R. 1133 Before the
Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 103d Cong. 9 (1993) [hereinafter 1993 H. HG.]
(statement of Sally F. Goldfarb, Senior Staff Attorney, NOW LDEF) (generally recounting disparate treatment and under-prosecution
and sentencing of violent crimes against women as opposed to other crimes; citing procedural obstacles such as rape-shield laws
and statutes of limitations that bar
(Cite as: 22 Harv. Women's L.J. 123, *158)

prosecution of claims); see also S. REP. NO. 103-138, at 49; S. REP. NO. 102- 197, at 46-47, 49 (citing gender bias task force reports
documenting bias in administration of cases involving violence against women); Lynn Hecht Schafran, There's No Accounting for
Judges, 58 ALB. L. REV. 1063 (1995) (same).

[FN175]. See, e.g., S. REP. NO. 103-138, at 42; S. REP. NO. 102-197, at 45. Although many states have eliminated the marital rape
exemption, see, e.g., People v. Liberta, 64 N.Y.2d 152 (1984), some states still impose lesser penalties for marital as opposed to
non-marital rape, see, e.g., Ariz. Rev. Stat. Ann. § 13-1406.01(A) (West 1998); Conn. Gen. Stat. Ann. § 53a- 67(b) (West 1998); Tenn.
Code Ann. § 39-13-507 (1998); W. Va. Code § 61- 8B-6 (LEXIS 1998).

[FN176]. See, e.g., Clare Dalton, Domestic Violence, Domestic Torts and Divorce: Constraints and Possibilities, 31 NEW ENG. L. REV.
319, 324-25 (1997); see also S. REP. NO. 102-197, at 54; S. REP. NO. 101-545, at 41 n.78; 1993 H. HG. at 8-9.

[FN177]. Highlighting the difference between sexual assault and other crimes, one recent report noted the disproportionately small
decline in sexual
(Cite as: 22 Harv. Women's L.J. 123, *158)

assaults as compared with other violent crimes. See Kit R. Roane, Rape Resists Inroads of the City's War on Crime, N.Y. TIMES, Aug.
23, 1998, at A5.

[FN178]. In many of these cases, women and their families have brought suits against local law enforcement authorities for their
failure adequately to respond to domestic violence, with mixed results. See, e.g., Soto v. Flores, 103 F.3d 1056 (1st Cir. 1997) (in
which batterer killed his two children and then himself after police, who were his friends, refused to arrest him despite mandatory
arrest law), cert. denied, 118 S. Ct. 71 (1997); Navarro v. Block, 72 F.3d 712 (9th Cir. 1995) (where batterer killed his wife and four
others after police refused to respond to her call for help, even though she told dispatcher about restraining order and that he was
headed to house to kill her); Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995) (where batterer burned former girlfriend's house,
killing her three children, following battering incident, after which police assured her that he would be held in jail overnight but
released him instead); accord Eagleston v. Guido, 41 F.3d 865 (2d Cir. 1994); Ricketts v. City of Columbia, Mo., 36 F.3d 775 (8th Cir.
1994); Brown v. Grabowski, 922 F.2d 1097 (3d Cir. 1990); Raucci v. Town of Rotterdam, 902 F.2d 1050 (2d Cir. 1990); Balistreri v.
Pacifica Police Dep't, 901 F.2d 696 (9th Cir. 1988); McKee v. City of Rockwall, Tex., 877 F.2d 409 (5th Cir. 1989); Watson v. City of
Kansas City, Kan., 857 F.2d 690
(Cite as: 22 Harv. Women's L.J. 123, *158)

(10th Cir. 1988); Smith v. City of Elyria, 857 F. Supp. 1203 (N.D. Ohio 1994).

[FN179]. See, e.g., Soto 103 F.3d 1056; Freeman v. Ferguson, 911 F.2d 52 (8th Cir. 1990).

[FN180]. See, e.g., Garrett v. Gilless, No. 93-6197, 1995 WL 16810 (6th Cir. Jan. 17, 1995).

[FN181]. For example, in Wisconsin v. Mitchell, the Supreme Court upheld the constitutionality of Wisconsin's bias crime statute,
approving of the state's goal of imposing greater sanctions for bias-motivated conduct because it "inflict[s] greater individual and
societal harm." 508 U.S. 476, 487-88 (1993). Specifically, the Court recognized that these crimes are "more likely to provoke
retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest." Id.; cf. City of Riverside v.
Rivera, 477 U.S. 561, 574 (1986) (recognizing that civil rights plaintiffs "vindicate important civil and constitutional rights that
cannot be valued solely in monetary terms").

[FN182]. As of this writing, nearly four years after the Civil Rights
(Cite as: 22 Harv. Women's L.J. 123, *158)

Remedy's enactment, fewer than 25 decisions address the law's application. See Doe v. Mercer, No. 98-10649-RGS (D. Mass. Feb. 19,
1999); Liu v. Striuli, No. 96-0137 L, 1999 WL 24961 (D. R.I. Jan. 19, 1999); Doe v. Hartz, 134 F.3d 1339 (8th Cir. 1998); Brzonkala v.
Virginia Polytechnic Inst. & State Univ., 132 F.3d 949 (4th Cir. 1997), rev'g 935 F. Supp. 779 (W.D. Va. 1996), vacated pending reh'g
en banc (4th Cir. Feb. 5, 1998); Truong v. Smith, 28 F. Supp.2d 626 (E.D. La. 1998); Glendora v. Pinkerton Security & Detective
Svcs., 25 F. Supp.2d 447 (S.D. N.Y. 1998); Dolin v. West, 22 F. Supp.2d 1343 (M.D. Fla. 1998); Kuhn v. Kuhn, No. 28 C 2395, 1998
WL 673629 (N.D. Ill. Sept. 16, 1998); C.R.K. v. Martin, No. 96-1431 (D. Kan. July 10, 1998); Timm v. Delong, No. 8:98CV43 (D. Neb.
June 22, 1998); Bridges v. City of Dallas, No. 3:98-CV-0090-H, 1998 U.S. Dist. LEXIS 8925 (N.D. Tex. June 8, 1998); Braden v. Piggly
Wiggly, 4 F. Supp.2d 1357 (M.D. Ala. 1998); Finley v. Higbee Co., 1 F. Supp.2d 701 (N.D. Ohio 1997); McCann v. Rosquist, 998 F.
Supp. 1246 (D. Utah 1998), appeal filed (10th Cir. 1998); Wesley v. Don Stein Buick, Inc., 996 F. Supp. 1312 (D. Kan. 1998); Palazzolo
v. Ruggiano, 993 F. Supp. 45 (D. R.I. 1998); Wilson v. Diocese of New York, No. 96 Civ. 2400 (JGK), 1998 U.S. Dist. LEXIS 2051 (S.D.
N.Y. Feb. 26, 1998); Mattison v. Click Corp. of America, No. 97-CV-2736, 1998 U.S. Dist. LEXIS 720 (E.D. Pa. Jan. 27, 1998);
Crisonino v. New York City Housing Auth., 985 F. Supp. 385 (S.D. N.Y. 1997); Anisimov v. Lake, 982 F. Supp.
(Cite as: 22 Harv. Women's L.J. 123, *158)

531 (N.D. Ill. 1997); Seaton v. Seaton, 971 F. Supp. 1188 (E.D. Tenn. 1997); Newton v. Coca-Cola Bottling Co., Consol., 958 F. Supp.
248 (W.D. N.C. 1997); Doe v. Doe, 929 F. Supp. 608 (D. Conn. 1996).

[FN183]. For example, while the Anti-Defamation League currently endorses the inclusion of gender as one of the groups protected
by bias crime legislation, it formerly cited the familiarity of the victim and perpetrator among other reasons for its previous
objection to the law. Compare David Frazee, An Imperfect Remedy for Imperfect Violence: The Construction of Civil Rights in the
Violence Against Women Act, 1 MICH. J. GENDER & L. 163, 191 (1993) (citing 1990 ADL internal background memorandum
outlining objections to the bill) with ANTI-DEFAMATION LEAGUE, supra note 3 (describing ADL's 1996 decision to include gender
in model hate crimes legislation following its determination that "gender-based hate crimes could not be easily distinguished from
other forms of hate motivated violence").

[FN184]. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

[FN185]. Familiarity between victim and perpetrator may be thought to indicate that the victims are not interchangeable, which is
one of the cited indicators of a bias crime. See U.S. DEP'T OF JUSTICE, FEDERAL BUREAU OF
(Cite as: 22 Harv. Women's L.J. 123, *158)

INVESTIGATION, HATE CRIME DATA COLLECTION GUIDELINES 2-3. To the contrary, however, studies show that victims may in
fact be interchangeable, even in cases such as acquaintance rape. See, e.g., supra note 131. Domestic violence cases involving serial
batterers also suggest that victims may be interchangeable even where there is great intimacy between the victim and the
perpetrator. See supra notes 94-95, 138-139.

[FN186]. See, e.g., Burlington Indus. v. Ellerth, 118 S. Ct. 2257, 2262 (1998); Harris v. Forklift Sys., 510 U.S. 17, 19 (1993); Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986).

[FN187]. Braden, 4 F. Supp.2d at 1362; accord McCann, 998 F. Supp. at 1253 (noting that a defendant's persistence in disregarding a
woman's protests, or his insistence on pursuing "amorous" intentions against her will, can itself provide the requisite proof of bias
motivation needed to warrant civil rights prosecutions, whether civil or criminal).

[FN188]. Women and Violence: Hearing Before the H.R. Subcomm. on Crime and Criminal Justice of the Comm. on the Judiciary,
102d Cong. 69 (1992) (statement of Helen R. Neuborne, Executive Director, NOW Legal Defense and Education Fund).
END OF DOCUMENT
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