The Branch Chief
Regulations and Paperwork Management Branch
Support Services Division
U.S. Department of Agriculture
Re: Comments on the Rural Housing Service, USDA Proposed Rule 68 Fed. Reg. 3560 (June 2, 2003)
On behalf of the American Civil Liberties Union (ACLU), we respectfully submit the following comments on the Rural Housing Service proposed rule aimed at improving housing management, published at 68 Federal Register 32,872 (June 2, 2002). While our comments are primarily focused on the inclusion of domestic violence considerations in housing administration, we do not mean to imply that the proposed rule raises no other civil rights concerns.
We believe that the inclusion of domestic violence provisions is important and timely because of increased reports that survivors of domestic violence are experiencing housing discrimination, including evictions, across the country. The ACLU is a nationwide, non-partisan organization with nearly 400,000 members dedicated to protecting the individual liberties and freedoms guaranteed by the Constitution and laws of the United States. Through its Women's Rights Project, the ACLU has long focused on the needs of women, especially low-income women and women of color. As the vast majority of domestic survivors are women, we are particularly concerned that federal housing program operates fairly and does not infringe upon individuals' constitutional rights because of their victimization.
Domestic violence is a significant problem in our society. National estimates of the prevalence of domestic violence vary widely, from 840,000 to four million incidents annually, depending on who is gathering the data and how domestic violence is defined. Bureau of Justice Statistics, U.S. Dep't of Justice, Characteristics of Crime 1 (1999). While domestic violence affects both men and women, it is most prevalent among women, especially young women earning low incomes. See Ronet Bachman and Linda E. Saltzman, U.S. Dep't of Justice, Violence Against Women: Estimates from the Redesigned Survey 3 (1995).
Accessing and maintaining affordable housing is one of the most significant problems facing a domestic violence survivor[1] seeking to break out of an abusive relationship. The problem is particularly acute for the domestic violence survivor with a limited income. The ability to obtain and maintain housing is of significant importance for victims of domestic violence seeking to leave their abuser.
It is critical that the Rural Housing Services regulations address the issue of domestic violence in terms of civil rights and basic public policy in protecting borrowers who would otherwise inadvertently violate the law.[2] Congress has recognized that survivors of domestic violence need certain services to help them break the cycle of violence.[3] Congress, the Department of Justice (DOJ), the former Immigration and Naturalization Service (INS), the Department of Health and Human Services (HHS) and the Department of Housing and Urban Development each have promulgated laws, regulations or guidance providing direction as to how federal laws and agencies can best work to help deter domestic violence and provide critical life-saving assistance to survivors. Rural Housing Services should also issue regulations concerning the treatment of domestic violence victims as prospective and current tenants in order to ensure that domestic violence does not become a barrier to obtaining or retaining housing.
We recommend the following changes to the proposed regulations:
1. Section 3560.154 Tenant Selection (d) Selection of Eligible Applicants and (h) Notice of Ineligibility or Rejection.
The proposed regulation requires the Borrower to base decisions related to the approval or rejection of the application on ""selection criteria"" contained in the Agency-approved ""management plan."" However, the regulation gives insufficient guidance on the development of those selection criteria. We recommend that language be included in this section providing that the Borrower give ""due consideration to mitigating factors"" that might have led to a history of poor credit, and/or employment or housing problems. We suggest the following language:
""When tenants have had or presently have a period of hardship beyond their control, when they have had disputes with creditors, including landlords, or when they were having difficulty paying the rent as a result of domestic violence.""
Inclusion of this language is necessary to prevent the denial of an application of a survivor of domestic violence who may have experienced a period of homelessness or inability to pay rent due to her separation from the abuser or who may have been prevented from establishing credit or maintaining steady employment by the abuser.
2. Section 3560.2 Civil Rights and Nondiscrimination
We recommend that RHS include specific language that recognizes discriminatory housing practices against survivors of domestic violence as discrimination on the basis of sex in violation of the Fair Housing Act, 42 U.S.C. Section 3601-3610. Within this section, the regulations should include a definition of domestic violence incorporating a state law approach to defining relationships in order to ensure compliance with state protection order statutes. We recommend the following definition, taken from VAWA, 42 U.S.C. Section 3796gg-2, subsection. (1)
""Domestic violence includes felony or misdemeanor crimes of violence committed by:
A current or former spouse of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction?or by any other adult person against a victim who is protected from that person's acts under the domestic or family violence laws of the jurisdiction?""
We further recommend that language be included specifying the types of evidence that may be used to demonstrate that an applicant or tenant is a survivor of domestic violence:
""The types of evidence of domestic violence or abuse that may be used to demonstrate domestic violence include but are not limited to:
Reports and affidavits from police, judges and other court officials, medical personnel, school officials, clergy, social workers, workers at domestic violence shelters or other domestic violence advocates, and other social service agency personnel; protection orders against the abuser; participation in criminal prosecution or proof that other legal steps were taken to end abuse or evidence that the abuse survivor sought safe haven in a battered women's shelter or similar refuge.""
3. Section 3560.159 Terminations
We recommend that the following language be added:
""It is not the intent of these regulations that this provision of material lease violation be applied to innocent members of the tenant's household who are not engaged in the lease violating behavior, and are not responsible for control of another household member or guest. It is the intent of these regulations that such innocent parties be allowed to remain in the unit if an otherwise eligible household can be formed.""
""Borrowers may not seek to terminate a tenancy or evict a resident because she has been a victim of domestic violence or threatened with domestic abuse. A borrower must not seek to evict or terminate the tenancy of a domestic violence survivor because of the actions of the abuser. Therefore, if a resident of a household perpetrates domestic violence, and takes actions that constitute a proper ground for eviction, the borrower may seek to evict or remove the perpetrator of the domestic violence from the premises but should not seek to evict the victim of that violence. Similarly, if an abuser who is excluded by a protection order comes upon the property seeking entry, and damages project property, the victim should not be held accountable for this behavior. In this instance, the resident should not be liable for maintenance or damage charges arising out of the abuser's behavior, nor should she face termination and eviction as a result of this behavior.""
Where the abuser is a citizen or lawful permanent resident and the victim and the abuser are married or formerly married, an immigrant victim can qualify for immigration relief as a 'qualified alien' and eventually obtain legal permanent resident status (Battered Immigrant Women Protecting Act of 1999). Borrowers should ensure that battered immigrants who are in the process of obtaining qualified alien status are not required to leave RHS housing without sufficient time to pursue immigration status adjustment options.""
4. The management plan should include a policy on how to determine who will remain in the unit and/or receive the rental assistance in the event of a family break-up.
In many cases, domestic violence or abuse will lead to family break-up. Often the survivor of domestic violence may not have been listed on the lease as the head of household. Borrowers should be advised that when a family breaks up, the unit does not ""automatically"" go to the head of household. Instead, as has been done in the Section 8 Voucher program, Borrowers should establish family break-up policies.[4] As in the Section 8 Voucher program, these policies should include consideration of a number of circumstances, such as the interest of minor children or of ill, elderly, or disabled family members, and whether there is domestic violence or abuse. If there is a court determination of the family members' rights, the Borrowers should follow the court's decision. Such policies are not new--current regulations have given Borrowers authority to decide, in the case of lease violations (which would include family violence), to allow certain members of the household to remain on the condition that the wrongdoer is excluded.
We appreciate the Department of Agriculture's request for comments and encourage DOA to include domestic violence considerations in the Rural Housing Service rule as it will make a marked difference in the ability of domestic victims to secure and maintain housing. We urge you to use the recommendations outlined above to structure domestic violence provisions for the proposed rule.
Sincerely,
Laura W. Murphy, Director
Washington Legislative Office
LaShawn Y. Warren, Legislative Counsel
Washington Legislative Office
Lenora Lapidus
ACLU Women's Rights Project
[1]Throughout, we have used the term ""survivor"" rather than ""victim"" of domestic violence, as this is the currently preferred term and avoids certain stereotyping.
[2] A zero tolerance policy on criminal activity applied against survivors of domestic violence was recently determined to violate the Fair Housing Act, 42 U.S.C. Section 3601 et seq. (Title VIII) based upon gender. The application of the seemingly neutral policy had a disparate impact upon women, who are the majority of the victims of intimate partner violence or domestic assaults. See Alvera v. Creekside Village Apartments (HUD ALJ 10-99-0538-8) 2001 where a woman resident of Rural Housing Services (RHS) housing faced eviction by her landlord because she had suffered a domestic assault.
[3]See Pub. L. No. 103-322, Title IV, Violence Against Women Act of 1994, 108 Stat. 1913, as revised by Pub. L. No. 106-386, Division B, Violence Against Women Act of 2000, 114 Stat. 1464, at 1491-1539.
[4]See 24 C.F.R. ยงยง 982.54(d)(11), 982.315. As noted above, the family break-up policy should not only address tenancies, but also what to do with pending applications when there is a family break-up and an adult household member has identified issues of domestic violence.