New OLC Opinion: Violence Against Women Act Covers Same-Sex Violence

My past practice of covering the release of OLC opinons has fallen by the wayside because of the press of work here at my day job, so I never got to bore you with my thoughts on the application of the Emoluments Clause to President Obama’s receipt of the Nobel Peace Prize or on DOJ’s views on the proposed constitution for the US Virgin Islands.  For all of you who have been feeling a void in your life ever since, take heart, because I’m about to get my dull on and tell you about OLC’s latest goings and doings.

Yesterday, OLC released an opinion signed April 27 of this year concluding that the criminal provisions of the Violence Against Women Act apply to otherwise covered conduct when the offender and the victim are the same sex.  The three offenses in question, 18 U.S.C. 18 U.S.C. §§ 2261, 2261A, and 2262, prohibit interstate domestic violence, interstate stalking, and interstate violation of a protection order, respectively.

Sections 2261A and 2262 were easy, because both of those apply to whoever does a prohibited act with respect to “another person,” and as the opinion concludes (p.3), “[t]he plain meaning of the term [another person] encompasses individuals of both sexes, regardless of their relationship to the offender.”  Sure, the legislation was called the Violence Against Women Act, and if memory serves the particular subtitle was even called the “Safe Homes for Women Act,” but headings play a relatively modest role in statutory interpretation.

Section 2261, however, involves prohibited conduct with respect to “a spouse, intimate partner, or dating partner,” and the Defense of Marriage Act provides in relevant part that “[i]n determining the meaning of any Act of Congress . . . the word ‘spouse’ refers only to a person of the opposite sex who is a husband or wife.”  (Section 2261A also applies when an offender places the target of the stalking in reasonable fear of danger to the target’s “spouse or intimate partner”; sorry, dating partners, you are without federal protection here.)  While a “spouse” can’t include a same-sex victim, the definition of “intimate partner” (18 U.S.C. § 2266(7)), which includes “a person who shares a child in common” or “a person who is or has been in a social relationship of a romatic or intimate nature” with the person, was sufficiently general that OLC concluded it would cover same-sex victims, since “[t]wo individuals who are the same sex may . . . ‘shar[e] a child in common.”‘  Op. 4 (quoting Adar v. Smith, 597 F.3d 697 (5th Cir. 2010) and Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 1997)).  “Dating partner” is defined similarly generally (“a person who is or has been in a social relationship of a romantic or intimate nature with the abuser”).  The opinion finished up with the available “limited legislative history,” noting references to same-sex domestic violence.

It has frequently been remarked that the Solicitor General’s Office “buries the bodies” of its arguments in the footnotes of its briefs, and critics might say the same here.  In a footnote, OLC rejected the idea that the spellcheck-challenging canon of noscitur a sociis (simplified, “words of a feather flock together”) requires the inference that “spouse, intimate partner, or dating partner” be read to include only different-sex couples since that’s what DOMA requires for the lead-off term “spouse.”  OLC concluded, “[s]imply put, the terms ‘spouse’ and ‘intimate partner,’ despite their appearance together in the definitional section of VAWA, do not constitute the requisite sort of ‘gathering with a common feature’ to which the noscitur canon could apply.”  Op. 4-5 n.6.  That discussion might have gone on a little longer.  For example, OLC might have argued that the scope of 2261 should be read in pari materia with 2261A and 2262, which more clearly cover “partners” of either sex (among a great many other people).

Perhaps to offset repeated use of thoroughly modern locutions such as “intimate partner” and “dating partner,” the opinion exclusively used the old-fashioned term “sex,” rather than the au courant “gender” (which appears only twice in a quotation from a case).  For that reason alone, the opinion probably warrants some kind of good-legal-writing award, if only there were such a thing for OLC opinions.   And that is to say nothing of the thanks of a grateful nation.  See generally J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 157 n.1 (1994) (Scalia, J., dissenting).

Finally, it bears noting that OLC got this opinion published just over one month after it was signed—reasonably quickly by historical standards.  As an aside, it sounds like OLC has been doing lots of work on opinions, so I’m somewhat surprised that more new opinions haven’t been appearing on its website.  Maybe additional opinions remain unpublished, or maybe they will be forthcoming later.