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Defining personhood under the Illinois Gender Violence Act: A summary of the Illinois Gender Violence Act and whether its applicability extends to entities, corporations and municipalities
The acclaimed film The Accused contains one of the most horrific depictions of gender violence ever portrayed on screen.1 The audience watches as a young woman, Sarah Tobias, played by Jodie Foster, entrapped in a back room of a small town bar, suffers a brutal gang rape by a group of men.2 Onlookers jeer on the rapists, while neither the bar staff nor onlookers come to Sarah’s aid.3 After much struggle, Sarah manages to escape from her rapists and stumbles into the street outside the bar barely clothed and alone.4 The film’s plot centers around Sarah’s fight for justice pursuing criminal charges against not only her attackers but also against the onlookers who utterly failed to come to her aid during the rape.5
In 2003, the Illinois General Assembly passed House Bill 436, which permits victims of gender violence, like Sarah Tobias, to seek civil redress against both their attackers and those who perpetuated the violence. In passing House Bill 436, the General Assembly noted that “at the essence of the gender violence Bill is that it would give not only criminal relief, which we have in the current [criminal] statute, but civil relief to people that have been harmed as a result of their particular gender.”6 Upon its passage, House Bill 436 was titled the Illinois Gender Violence Act (“the Act”).7
The Act is modeled after the Violence Against Women Act of 1994 (“VAWA”), a federal law which allowed civil redress for claims involving gender violence.8 In 2000, the United States Supreme Court struck down the VAWA provision permitting victims of gender violence to sue their offenders in federal court as an intrusion of states’ rights under the Commerce Clause.9
In response, the General Assembly created the Act so the intent of VAWA would be available to the victims of gender violence in Illinois. In doing so, the General Assembly stated that “[VAWA] ultimately was overturned and it was the belief that this is something we ought to do at the state level…So not only do we have criminal remedies, we would now under this Bill have civil…remedies and the statute of limitations is a lot longer under this Bill…it’s a remedy that many women in this state…will be available to them if they are harmed by spouses, boyfriends, or whomever.”10
Under the Act:
Any person who has been subjected to gender-related violence…may bring a civil action for damages, injunctive relief, or other appropriate relief against a person or persons perpetrating that gender-related violence. For purposes of this Section, “perpetrating” means either personally committing the gender-related violence or personally encouraging or assisting the act or acts of gender-related violence.11
In drafting the Act, the General Assembly either neglected or elected against defining the words “person” and “personally.” Further, there was no discussion in the legislative sessions regarding the intended meaning of “person” and “personally.” As a result, the Act is unclear as to whether the relief provided to victims includes bringing suit against corporate entities such as the bar in The Accused. For practitioners seeking to file claims on behalf of plaintiffs under the Act, the ambiguity of its definition of personhood creates a troubling problem that, in fact, may hinder the very purpose for which the Act was designed.
Statutory Construction of the Act
The primary rule of statutory construction is to ascertain and give effect to the true intent of the legislature.12 The Illinois Statute on Statutes provides rules of statutory construction that “shall be observed, unless such construction would be inconsistent with the manifest intent of the General Assembly or repugnant to the context of the statute.”13 One of those rules provides that “‘[p]erson’ or ‘persons’ as well as all words referring to or importing persons, may extend and be applied to bodies politic and corporate as well as individuals.”14 When the word “person” is used in a statute, it is construed as applying to corporations and bodies politic as well unless the context, language or legislative history indicates otherwise.”15
Here, the legislative history is silent on whether the General Assembly intended for the Act to apply to natural persons only. “[T]he available legislative history does not speak to the question [whether the Act extends to corporations]. The debates (to the extent one can call them that, given the bill passed unanimously in both chambers of the General Assembly) reveal only a general intention to…provide ‘civil relief to people that have been harmed as a result of their particular gender.’”16 Rather, the Act uses the term “person” without distinction or limitation as to corporations. “The legislative history is silent, and thus does not remove the presumption that the term ‘person’ applies to corporations.”17 As such, an argument can be made that based upon a plain reading of the Act the word “person” includes corporations.
To date, no Illinois court has ruled that liability under the Act is limited to natural persons. As a result, courts are tasked to consider the statutory language of the Act and whether it may be inclusive of corporate defendants. Plaintiffs can argue that, under a plain reading of the Act and through statutory construction, its ramifications extend to corporations as well as to natural persons. Defendants, of course, can argue the opposite. Plaintiff’s attorneys filing a claim under the Act should expect a dispositive motion from the defense seeking to bar any relief against corporate defendants arguing that the words “person” and “personally” as used in the Act do not include corporate entities. However, there are equally sound arguments on the plaintiff’s side to justify extending liability under the Act to corporate defendants.
Dismissed on the Pleadings: Perspectives from State and Federal Courts
Illinois Appellate Courts have not yet examined whether the words “person” and “personally” include corporations. On review, courts reviewing the Act have managed to circumvent an express ruling on the question of corporate liability by resting decisions on procedural and pleading deficiencies.
In Watkins v. Steiner, the Fifth District Appellate Court ultimately dismissed claims filed against a municipality for violations of the Act.18 However, the appellate court did not dismiss the claims under the theory that the Act failed to create a cause of action against municipalities. Rather, the claims were dismissed because plaintiff failed to plead sufficient facts to establish that the township personally committed or encouraged the sexual violence. In other words, the claims may have proceeded against the municipality had plaintiff pled sufficient facts in her complaint.
In Stanfield v. Dart, the court was asked to consider on summary judgment whether the Act extended to two individuals who allegedly perpetuated acts of gender violence against the plaintiff.19 In reaching its decision, Stanfield discussed Doe v. PSI Upsilon, an Illinois appellate court decision which held that the plaintiff failed to adequately allege that the national chapter of the fraternity could be liable under the “encouraging or assisting” provision of the Act.20 In reaching its decision, Doe contrasted the allegations against the national chapter with the allegations against the local chapter.21 Doe implied, in dicta, that the allegations that were insufficient to state a claim under the Act against the national chapter, could be sufficient to state a claim against the local chapter.22 Stanfield went onto say that: “If this implication is correct, the scope of liability under the Act is broader than what is normally covered under a theory of aider and abettor liability.”23
The Northern District’s Perspective on Defining Personhood Under the Act
While the Illinois Appellate Courts have not yet opined whether the Act applies to corporations, the Northern District of Illinois has issued multiple written decisions on the meaning of the words “person” and “personally.”
In Flood v. Wash. Square Restaurant, Inc., plaintiff sued her former employer for violations of the Act.24 On a motion to dismiss, the court considered whether the Act applied to corporations. Flood held that the Act’s use of the term “person” did not preclude liability for corporations. Flood also found that the term “person” can have a different meaning in different parts of the statute.
In looking at the word “personally” as used in the Act, Flood stated that “the term ‘personally,’ however, has no meaning when applied to a corporation.” Specifically:
It is true that the [Illinois] Statute on Statutes leaves open the possibility of applying a word like “personally” to corporations, for it states that “all words referring to or importing persons” may apply to corporations….In this case, however, the court cannot conceive of how a corporation could “personally” perpetrate an act of gender-related violence. Corporations act only through their agents, so it is impossible for a corporation to “personally” do anything.25
In Flood, plaintiff limited her pleading and her response brief to the motion to dismiss, by only arguing that the corporate defendant was directly liable for its actions under the Act. Plaintiff did not argue that the corporate defendant was liable under the Act for the conduct of its agents, which can “personally” act, under a theory of respondeat superior. The court, recognizing this distinction, stated:
At no point prior to the single brief paragraph in the supplemental briefing did [plaintiff] raise the argument that the [defendant] is liable under respondeat superior principles for [individual employee] actions. Moreover, the brief paragraph is too short to properly raise the argument. Accordingly, that argument is waived, and the court declines to address it.26
In Fayfar v. CF Mgmt., LLC, plaintiffs, personal trainers, sued defendant, a health club, for sexual harassment and violations of the Act.27 Defendant moved to dismiss and argued that the Act does not create a cause of action against corporations. While the court in Fayfar ultimately sided with defendant, its decision making in doing so is readily distinguishable.
Fayfar fails to follow proper Illinois procedure of statutory construction. Fayfar does not mention at any point in its opinion that the Illinois Statute on Statutes governing the definition of the word “person” and any words referring to or importing persons, such as “personally,” may be extended to corporate defendants.28 Rather than relying on the Illinois Statute on Statutes or case law where the word “person” has been extended to corporations in civil matters, Fayfar relies upon a criminal case, namely People v. Christopherson, where the Illinois Supreme Court considered whether the word “person” as used in a criminal statute applied to minor persons as well as adult persons.29 The context of Christopherson is inapplicable to violations of the Act, which provides for civil redress. A criminal statute can only apply to natural persons in any circumstance.
Fayfar’s discussion regarding the Illinois Consumer Fraud Act’s specific definition of the word “person” to include corporate defendants is certainly more persuasive than its rationale under Christopherson but even this part of its opinion fall short. There are other statutes in Illinois where a cause of action against corporations has been allowed even where the word “person” has not been defined by the General Assembly to include corporate entities.30
Fayfar also provides that the words “person” and “personally” cannot apply to corporate defendants because only a natural “person” can sue under the Act. The court’s rationale that using “the term ‘person’ to describe both those who can sue and those who can be sued…further indicates that only individuals can be sued under the statute.”31 This conclusion is seemingly inapposite to Illinois law in that the word “person” can have different meanings within the same statute.
In Doe v. Sobeck, plaintiff, a developmentally disabled adult female, was raped by another disabled adult at defendant’s facility, a training center for disabled persons.32 Plaintiff filed a complaint against defendant for violations of the Act. Defendant moved to dismiss and argued that the Act does not create a cause of action against corporate entities.
Doe does a thorough job of applying Illinois rules of statutory construction to the language of the Act. Doe also criticizes Fayfar for reaching the conclusion that “person” cannot apply to corporations as permitted by the Illinois Statute on Statutes.33 Doe goes on to agree with the rationale set forth in Flood and determines that a corporation cannot “personally” do anything without acting through its agents. Like Flood, Doe refuses to find “that a corporation cannot be held vicariously liable for its employees’ violations [of the Act] committed within the scope of their employment.”34
While the preceding case law may favor a defense argument (depending on the distinctions set forth above), Cruz v. Primary Staffing, Inc. and Smith v. Rosebud Farmstand, et al. support a plaintiff’s position that a claim may be filed against corporations for violations of the Act.35
In Cruz, plaintiff filed a lawsuit against her former employer for violations of the Act. In short, plaintiff was sexually harassed by her supervisor, Ramon Acosta, at work. In her complaint, the Cruz plaintiff alleged that “through Acosta, who was working as [defendant’s] agent and in the scope and course of his employment, [defendant] subjected [plaintiff] to acts of gender-related violence.”36 The court provided:
While Cruz’s complaint could be more detailed, she has pleaded facts that lead to an inference that [defendant] had received many complaints of sexual harassment or assault by Acosta and that it took no action against Acosta as a result of the complaints, choosing to punish [plaintiff] instead. These allegations are enough to state a claim against [defendant] for encouraging or assisting Acosta’s acts of gender-related violence.37
In Smith, plaintiff filed a lawsuit against his former employer for violations of the Act arising from sexual harassment he experienced during his employment. Defendant moved to dismiss. The court ruled in favor of the plaintiff finding that:
Plaintiff has pleaded facts that lead to an inference that [defendant] (via its managers and supervisors) received plaintiff’s complaints of sexual harassment or assault by its managers and employees and that it took no action against these managers and employees as a result of the complaints, choosing to punish plaintiff instead.38
Both Cruz and Smith provide for the possibility that the Act allows corporate liability against those entities that fail to act in the face of gender-related violence.
Conclusion
As the Illinois Gender Violence Act stands today, it is truly a statute that looks good on its face – but really provides very little relief to the victims it seeks to protect. While it undeniably creates a cause of action against individuals who commit gender violence crimes – it fails to clarify whether that cause of action may be extended against corporate entities that perpetuate that violence, either in the work place, or like in the case of Sarah Tobias, by turning the other cheek when an act of sexual violence is being committed. Until the Illinois General Assembly or Appellate Courts undertake the task of fully interpreting the breadth of personhood under the Illinois Gender Violence Act, victims of gender-related violence, like Sarah Tobias, remain enveloped in ambiguity as to the question of liability for the atrocities suffered. ■
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