Published April, 2010

Whether the Criminal Provisions of the Violence Against Women Act Apply to Otherwise Covered Conduct When the Offender and Victim Are the Same Sex, Memorandum Opinion for the Acting Deputy Attorney General (April 2010)

This memo, from the Acting Deputy Attorney General, David Barron, of the U.S. Department of Justice's Office of Legal Counsel specifically addresses the amendments made to the Violence Against Women Act ("VAWA") in 2006 and clarifies the full range of circumstances under which survivors of violence are protected by the VAWA. The memo maintains that the VAWA protects the victims of stalking and domestic violence regardless of gender or sexual orientation through the VAWA 2006 amendments, recent case law, and legislative history. This memo has been sent as guidance to federal prosecutors around the country.

Initially, Congress intended the VAWA to strengthen the health care system's response to the disproportionate domestic violence against women in heterosexual relationships. The amendments addressed in this memo are a result of Congress' recognition that any victim of domestic violence is in need of VAWA's protection, including men and individuals in same-sex relationships.

The language used in the amendments include the addition of gender neutral phrases such as "intimate partner," "dating partner," and "persons who are or have been in a social relationship of a romantic or intimate nature." The legislative history notes statistics based on evidence of same sex relationships, Pub. L. No. 109-162, § 501(1)-(2), that support VAWA application to men and survivors who are the same sex as their attacker. The memo also highlights numerous federal cases which held that VAWA applies to both women and men and situations where victim and offender are the same sex.

This memo may have significant implications on the legal status of same sex relationships because it recognizes these relationships under federal law. The use of gender neutral language in VAWA's 2006 amendments has been employed as a potential method of circumventing the limitations set by the Defense of Marriage Act ("DOMA") which states that the word "spouse" used in federal legislation "refers only to a person of the opposite sex who is husband and wife." 1 U.S.C. § 7 (2006).