In Baldwin v. TMPL Lexington LLC et al, 23 Civ. 9899 (PAE), 2024 WL 3862150 (S.D.N.Y. August 19, 2024), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claim under the Gender Motivated Violence Protection Act, N.Y.C. Admin. Code §§ 10-1101 et seq. (“GMVPA”).
The GMVPA creates a cause of action for “any person claiming to be injured by a party who commits, directs, enables, participates in, or conspires in the commission of a crime of violence motivated by gender.” N.Y.C. Admin. Code § 10-1104. The New York City Council passed the GMVPA in 2000 in response to the Supreme Court’s decision in United States v. Morrison, 529 U.S. 598 (2000), striking the federal civil rights remedy for gender-motivated crimes contained in the Violence Against Women Act (“VAWA”). The GMVPA defines “crime of violence motivated by gender” as “a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim’s gender.” Id. § 10-1103. It defines “crime of violence” as “an act or series of acts that would constitute a misdemeanor or felony against the person as defined in state or federal law or that would constitute a misdemeanor or felony against property as defined in state or federal law if the conduct presents a serious risk of physical injury to another, whether or not those acts have actually resulted in criminal charges, prosecution, or conviction.” Id. § 10-1103. These provisions of the GMVPA were “adopted verbatim from VAWA.” Breest v. Haggis, 115 N.Y.S.3d 322, 326 (1st Dep’t 2019).
The AC adequately pleads that Walsh committed a gender-motivated crime of violence. At the threshold, the Court begins by observing that Baldwin’s claim is that Walsh’s conduct constituted a “misdemeanor or felony against the person”—not a “misdemeanor or felony against property.” N.Y.C. Admin. Code § 10-1104. The latter category carries the additional requirement that the “conduct presents a serious risk of physical injury to another.” Id. But the former category—a misdemeanor or felony against the person—relied on by Baldwin does not. Accordingly, the Court rejects Walsh’s argument that his alleged conduct does not qualify as a crime of violence because his conduct did not, as pled, present a serious risk of physical injury to Baldwin.
To be sure, Walsh’s argument has a basis in caselaw.7 But it is unsupported by the GMVPA’s text. … Construing the text of the definition of a “crime of violence,” the “serious risk of physical injury” requirement applies only when a GMVPA claim is premised on a “misdemeanor or felony against property” not against “the person.” N.Y.C. Admin Code § 1103 (emphasis added). That is because the “serious risk of physical injury” requirement only modifies the category “misdemeanor or felony against property.” And the phrases “misdemeanor or felony against the person” and the phrase “misdemeanor or felony against property” are each introduced by the clause “that would constitute” and are separated by the word “or.” This construction suggests that among the two alternative categories of predicate offenses, the qualifying clause—beginning with “if”—that contains the requirement of a “serious risk of physical injury” and that appears after the second category modifies only that category. …
Accordingly, for Baldwin’s AC to state a claim under the GMVA based on a predicate crime against the person, it must plead that: (1) the alleged act constitutes a misdemeanor or felony against the person; (2) that was perpetrated because of plaintiff’s gender; (3) in part because of animus against plaintiff’s gender; and (4) resulted in injury. Walsh challenges the first and third of these elements. The Court finds both plausibly pled.
As to the first element, the AC plausibly alleges that Walsh’s conduct constitutes “forcible touching” which is a misdemeanor under New York state law. New York Penal Law § 130.52 provides that: “[a] person is guilty of forcible touching when such person intentionally, and for no legitimate purpose: (1) forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor’s sexual desire.” Id. “For the purposes of this section, forcible touching includes squeezing, grabbing or pinching.” Id.
The AC alleges that on the night of August 12, 2022, after Baldwin and Walsh had dinner, and they began watching a movie, Walsh inched closer to Baldwin, put his arms around her, began kissing her, reached his hands under her clothing and touched her breasts, and attempted to lower her pants, touching her vulva over her pants in the process, all without Baldwin’s consent. In People v. Guaman, 22 N.Y.3d 678 (2014), the New York Court of Appeals held that “forcible touching,” as distinct from “fleeting contact,” is “any bodily contact involving the application of some level of pressure to the victim’s sexual or intimate parts.” Id. at 684. It explained that the examples set out in the statute—“squeezing, grabbing or pinching”—were “intended by the legislature to signal a low threshold for the forcible component of this crime’s actus reus.” Id. Applying this “low threshold,” the Court of Appeals held that an allegation that the defendant “rubbed his groin and exposed penis against the victim’s buttocks” satisfactorily alleged “the kind or level of force required by Penal Law § 130.52.” Id. at 682; see, e.g., id. at 680, 684 (misdemeanor complaint’s allegations that defendant “rubbed his exposed penis against another man’s buttocks” at a subway station facially sufficient to support that defendant committed charged forcible touching offense); People v. Carollo, 197 N.Y.S.3d 423, 425 (Sup. Ct. 2022) (allegations that “defendant first physically contacted [the victim] through a hug, and then, once he was engaged in the embrace, slid his hands down the young girl’s back until he placed and rest[ed] them upon her buttocks” sufficient to support forcible touching conviction); People v. Gowdy, 967 N.Y.S.2d 869, 869 (App. Term, 1st Dep’t 2013) (upholding forcible touching conviction, as defendant’s reaching under victim’s clothing and “rubbing” his hand “up and down the split of her buttocks” was forcible within the meaning of the statute); People v. Valdivia, 980 N.Y.S.2d 278 (App. Term, 1st Dep’t 2013) (factual allegations that defendant “press[ed]” or “thrust” his exposed, erect penis against victim’s buttocks without consent sufficient for forcible touching charge). Likewise here, Walsh’s unconsented-to reaching under Baldwin’s clothing, touching her breasts, attempting to lower her pants, and touching her vulva over her pants pleads “forcible touching” under New York’s Penal Law § 130.52(1). Accordingly, the AC adequately pleads the first two elements: that Walsh committed the misdemeanor of forcibly touching Baldwin’s “sexual or other intimate parts” for “the purpose of gratifying [his] sexual desire.”
With respect to the third element, the court held that plaintiff’s complaint adequately pleads that Walsh’s conduct was motivated in part because of “animus based on the victim’s gender.”
On this point, the court relied on the New York Appellate Division’s decision in Breest v. Haggis, 115 N.Y.S.3d 322 (1st Dep’t 2019), which “clarified that allegations of rape and sexual assault state a claim under the GMVPA because malice or ill will based on gender is apparent from the alleged commission of the act itself.” [Internal quotation marks and bracketing omitted.]