National Indian Country Clearinghouse on Sexual Assault

One of the most important aspects of providing aid to victims of sexual assault is ensuring that they have a safe place to live.  Although this concept seems relatively simple, many landlords attempt to evict victims of sexual assault for disturbing the peace or for fostering violence in their own apartment buildings.  Luckily, there are several strategies to ensure that the victim has a safe place to live.


First, the Violence Against Women and Justice Department Reauthorization Act of 2005 (VAWA2005), prohibits certain public housing programs from evicting survivors of domestic violence, dating violence, or stalking from being evicted or denied assistance because of the crimes committed against them.VAWA 2005 protects survivors from being evicted or denied assistance from public housing programs: public housing, Section 8 voucher program, project-based Section 8 programs, and Section 202 and Section 811supportive housing programs. VAWA 2005 does not apply to Indian Housing programs. The law expressly extends to victims of sexual assault, but many sexual assaults may also be classified as domestic violence, dating violence, or stalking incidents.  It is important to remember that “domestic violence” is defined by either VAWA’s definition of domestic violence or the local State or Tribe’s family protection laws.  So, although both dating violence and domestic violence require proof of a preexisting romantic relationship, the definition of domestic violence can be quite broad.  VAWA 2005 is gender neutral, so both male and female survivors enjoy its protection.

 

Survivors of sexual assault may need to move to a different city, state, or reservation in order to ensure their future safety.  If the survivor is a recipient of Section 8 vouchers, then this is an easy task, because the vouchers are “portable,” meaning they are accepted everywhere.  If the survivor resides in public housing, this is a much more daunting task.  Transfers to other public housing units are not directly addressed in federal laws or regulations.  Instead, each Public Housing Authority has the discretion to decide the conditions for a transfer.  These conditions for transfer are located in each, individual Public Housing Authority’s Admissions and Continued Occupancy Policy.  Unfortunately, many Public Housing Authorities’ policies do not give transfer rights to sexual assault, domestic violence, or stalking survivors.  Further, at least one federal court has denied a domestic violence survivor the right to transfer to another public housing unit.

 

Survivors are further protected by VAWA 2005, because VAWA 2005 prohibits sex offenders – those who have lifetime registration requirements under the Sex Offender Registration and Notification Act – from residing in public housing or receiving federal housing assistance.  Unfortunately, because of an oversight in HUD’s drafting of the relevant federal regulations, there is no process for kicking out perpetrators residing in public housing or denying them housing assistance benefits if perpetrators are already receiving them.

 

Survivors receiving public assistance and those who rent a house or apartment from a landlord may also be afforded additional protection from eviction under the Fair Housing Act.  The Fair Housing Act prohibits discrimination based upon someone’s race, color, religion, sex, national origin, familial status, or disability.  

 

The Fair Housing Act does not apply to:

 

Apartment complexes with four or fewer units, when the owner is one of the occupants
A single family home, if the owner does not own three, similar rental properties
Housing run by private clubs for their members (i.e., sorority and fraternity houses)

Although the Fair Housing Act does not expressly address survivors of sexual assault, many advocates have been able to successfully prevent a survivor from being evicted based upon a “sex discrimination” argument.   According to this argument, women are disproportionately subject to sexual and domestic violence.  Thus, it would be “sex discrimination” to discriminate a female survivor of sexual assault or domestic violence, because the vast majority of sexual assault and domestic violence survivors are women. Significantly, unlike the VAWA 2005 housing protections, the Fair Housing Act argument is not gender neutral.  It can only be used for female survivors of sexual or domestic violence.

 

Furthermore, many states or tribes may have their own protection laws for survivors of sexual assault.

 

Also see:

State Housing

Federal Housing


National Indian Country Clearinghouse on Sexual Assault, a project by the Southwest Center for Law and Policy © 2013

This project was supported by  Grant No. 2011-TA-AX-K045 awarded by the Office on Violence Against Women. Points of view in this document are those of the author and do not necessary represent the official position of the U.S. Department of Justice. All rights reserved. | Privacy policy