Why Maryland Housing Law is Failing Domestic Violence Victims and How Other States May be the Solution. By: Ame Roberts

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1 Why Maryland Housing Law is Failing Domestic Violence Victims and How Other States May be the Solution By: Ame Roberts INTRODUCTION One in four women in the United States will experience domestic violence in her lifetime. 1 Abusers are often charismatic but unpredictable, and use these traits to achieve their goal of dominance and complete control. 2 Abuse increases the victim s 3 isolation and dependence, leaving her with few resources or viable housing options if she chooses to escape. 4 The ugly truth is that domestic violence shelters are filled to capacity, may be unwilling to take families, 1 Shannan Catalano, Intimate Partner Violence, , BUREAU OF JUSTICE STATISTICS (2012), available at According to the Bureau of Justice Statistics, about four in five of all domestic violence victims are women. Thus I have chosen she/her pronouns in this comment to simplify, not to diminish male victims. 2 Batterers can be quite charming and delightful when they want to be. This is how so many women get pulled into relationships with them. Initially, the batterer may seem loving and attentive; eventually, however, his behavior becomes abusive. K.J. WILSON, WHEN VIOLENCE BEGINS AT HOME: A COMPREHENSIVE GUIDE TO UNDERSTANDING AND ENDING DOMESTIC ABUSE 16 (2d ed. 2005). 3 There is a lot of controversy surrounding the proper terminology in the domestic violence context. For example, many believe that survivor is the best term for women because it is more empowering. See infra note 52, at 1. Others prefer victim or battered woman. While acknowledging this controversy, I ve chosen to use the words victim and abuser due to this article s legal nature. 4 Some abusers effectively alienate their victims from friends and family. In considering whether to leave their abusers, those isolated victims may feel that they cannot ask anyone for help. Eliza Hirst, The Housing Crisis for Victims of Domestic Violence: Disparate Impact Claims and Other Housing Protection for Victims of Domestic Violence, 10 GEO. J. ON POVERTY L. & POL Y 131, 134 (2003). See also Wilson, supra note 2, at 27 ( If the woman s support system is reduced or destroyed, her dependency on him increases. The more she is tied to him, the less likely she is to leave him [H]er leaving is one of his greatest fears. ). 1

2 and can only house victims for a short period of time. 5 Victims who leave their abusers must then face the immediate reality of finding housing for themselves and their children. 6 In addition to the trauma domestic violence victims suffer at the hands of their abusers, they may suffer discrimination at the hands of landlords and housing authorities. 7 Landlords often fear that they will be liable if the abuser enters the premises and creates safety concerns or damages property, or that the victim will be unable to pay her rent. 8 It is not uncommon for landlords to evict domestic violence victims for their involvement in a violent relationship, enforce a shared lease agreement, or deny housing applications to victims altogether. 9 In 2002, New York City conducted a study on housing discrimination against victims of domestic violence % of 5 Hirst, supra note 6, at 139; see also Alyse Faye Haugen, When it Rains it Pours: The Violence Against Women Act s Failure to Provide Shelter From the Storm of Domestic Violence, 14 SCHOLAR 1035, 1060 (2012) ( Yet, even if women do receive housing in either a battered women s or a homeless shelter, the three-month time limit precludes serious participation in programs and treatments that mitigate the cycle of abuse. ). 6 See Hirst, supra note 4, at See Kristen M. Ross, Eviction, Discrimination, and Domestic Violence: Unfair Housing Practices Against Domestic Violence Survivors, 18 HASTINGS WOMEN S L.J. 249 (2007) (holding that housing laws are predominantly in favor of landlords). 8 Id. at 251; see also Angela Littwin, Escaping Battered Credit: A Proposal for Repairing Credit Reports Damaged by Domestic Violence, 161 U. PA. L. REV. 363, 428 (2013). 9 Hannah Brenner, Transcending the Criminal Law s One Size Fits All Response to Domestic Violence, 19 WM. & MARY J. WOMEN & L. 301, (2013). 10 See Adding Insult to Injury: Housing Discrimination Against Victims of Domestic Violence, The Anti-Discrimination Center of Metro New York, Inc. (2005), [hereinafter Adding Insult to Injury. ]. 2

3 landlords refused to rent or failed to follow up when they learned that their apartment would be for a domestic violence victim. 11 In recent years the federal government, through the Violence Against Women Act, and some states began the process of statutorily prohibiting these practices. 12 Maryland has also taken steps to protect victims from housing discrimination. 13 But these protections are not enough. Section 8-5a of the Real Property Code permits victims to change locks and terminate their leases early, and forbids landlords from evicting victims based on the actions of their abuser. 14 However, there are no protections within the statute for women who are seeking or transferring housing. 15 This article proposes that section 8-5a should be amended to include an occupancy provision that prevents landlords from refusing women housing based on their status as a victim. Otherwise, victims may continue to face the choice of homelessness or returning to their abuser. 16 Part I will discuss the current housing protections for 11 Id. at See ARK. CODE ANN (b)(1) (West 2009); IND. CODE ANN (West 2007); N.C. GEN. STAT (2005); OR. REV. STAT (West 2012); WASH. REV. CODE (2) (West 2014); WIS. STAT. ANN (West 2009). 13 See MD. CODE ANN. REAL. PROP. 8-5A-01 to -06 (West 2014); see also Housing Protections for Victims of Domestic and Sexual Violence, LEGAL MOMENTUM (updated June 2013), 3.pdf [hereinafter Legal Momentum ], for a list of housing protections countrywide for victims a-02 to -03, -05 to See id. 3

4 domestic violence victims under the Violence Against Women Act and the Fair Housing Act. Part II will scrutinize the societal problems that this gap in Maryland housing law causes including homelessness, and interference with the education of children. Part III will propose an amendment to section 8-5a, influenced by similar legislation in other states. It will discuss potential goals in enacting this amendment including community outreach and education, and legal remedies to assuage landlords concerned with potential liability. I. THE DEVELOPMENT OF HOUSING LAW PROTECTIONS FOR DOMESTIC VIOLENCE VICTIMS a. Violence Against Women Act The Violence Against Women Act ( VAWA ), originally passed in 1994, comprised the first federal effort to intervene and protect women from domestic violence. 17 Creating safe homes for victims of domestic violence is one of VAWA s major goals. 18 VAWA s 2005 reauthorization expanded its protections for victims in public housing. 19 This reauthorization included protections in private 16 Domestic Violence and Homelessness, ACLU (last visited Mar. 8, 2015), (citing American Bar Association, Young Lawyers Division and Commission on Domestic Violence, Report to the House of Delegates, Feb., 2003) ( Until we stop asking women to choose between being beaten and being able to feed and shelter their children, we cannot expect to rid our society of domestic violence. )); see also Erica Franklin, When Domestic Violence and Sex-Based Discrimination Collide: Civil Rights Approaches to Combating Domestic Violence and its Aftermath, 4 DEPAUL J. FOR SOC. JUST. 335, 371 (2011) ( [H]omelessness, like other forms of economic instability, often forces domestic violence victims to return to their abusers. ). 17 Haugen, supra note 5, at See Violence Against Women Act of 2013, 42 U.S.C.A. 136 Subchapter III, Part M (West 2013). 19 VAWA 2013 Continues Vital Housing Protections for Victims and Provides New Safeguards, NATIONAL HOUSING LAW PROJECT 1 (Jan. 2014), 4

5 housing where landlords accept federal subsidies, such as section eight vouchers, section 202 housing for the elderly, or section 811 housing with disabilities. 20 Subsequent reauthorizations prohibited landlords from denying admission or assistance to domestic violence victims in public housing, and any criminal activity or protective orders related to the domestic violence may not be used as grounds to evict the victim. 21 To date, VAWA has been one of the primary safeguards for domestic violence victims seeking legal protection from housing discrimination. 22 Despite VAWA s efforts, there are critical gaps that leave abuse victims vulnerable. VAWA s provisions extend only to public housing or housing subsidized by the federal government; it does not include most private housing options. 23 If abuse victims need to transfer from public housing covered by VAWA to private housing, they could also be vulnerable. 24 Thus, many victims who are denied housing due to their status as victims need an alternative legal remedy to combat discrimination. b. Fair Housing Act [hereinafter VAWA 2013 ]. 20 Id. 21 Id. at Meris L. Bergquist, After the Violence: Using Fair Housing Laws to Keep Women and Children Safe at Home, 34-SPG VT. B.J. 46, 46 (2008). 23 Franklin, supra note 16 at The emergency model transfer plan is only for those under the covered housing program. Additionally, because the statute fails to explicitly require PHAs and owners to adopt the model plan, regulatory clarifications concerning this duty appear necessary. VAWA 2013, supra note 23, at

6 The Fair Housing Act ( FHA ) 25 is a much broader statute than VAWA, and arguably offers domestic violence victims more protection. 26 While VAWA extends only to public or federally subsidized housing, the FHA prohibits discrimination in all housing. 27 Housing discrimination is currently prohibited on the basis of race, color, national origin, religion, sex, family status, and handicap. 28 As domestic violence victims are not a protected class under the FHA, victims must file a complaint claiming sex discrimination under the FHA using the disparate impact theory. 29 Disparate impact discrimination occurs when neutral policies have a more negative effect on members of a specific class protected under the FHA. 30 In the domestic violence context, women are exceedingly more likely to suffer domestic violence than men. 31 Thus, housing policies may amount to sex discrimination if they have a far more negative effect on women. 32 As sex is a protected class under the FHA, U.S.C.A (2014). 26 Franklin, supra note 16, at See 42 U.S.C.A for a list of exemptions to the FHA. These exemptions have no bearing on this discussion See Smith v. City of Elyria, 857 F.Supp. 1203, 1212 (N.D. Ohio 1994) (holding that the court must determine whether there is evidence the policy had a disproportionately adverse impact on women, and if so, whether the adverse effect was motivated by an intent to discriminate against women. ). 30 Bergquist, supra note 22, at See Catalano, supra note Bergquist, supra note 22, at 47. 6

7 this allows women to use the FHA to bring a legal claim. 33 A plaintiff bringing a claim under the disparate impact theory is not required to show that the defendant had the intent to discriminate. 34 Rather, the defendant must prove that there was no alternative policy or action that they could have taken with less of a discriminatory effect. 35 One of the first women to use the disparate impact theory in the domestic violence context, Tiffani Alvera, was evicted from her apartment when she obtained a restraining order against her abusive husband. 36 Quinn Bouley also utilized the disparate impact theory when she faced eviction from her apartment complex after her husband assaulted her. 37 In both cases, the landlords were unable to demonstrate other pre-existing problems to justify eviction, aside from the act of violence committed against the victim. 38 Many landlords claim that taking such action protects the living environment of other tenants and maintains a peaceful atmosphere Pfaff v. U.S. Dept. of Housing and Urban Development, 88 F.3d 739 (1996) (holding that a finding of an intent to discriminate is not required to establish a prima facie case of disparate impact even if the defendant is a private landlord). 35 Tara Vrettos, Victimizing the Victim: Evicting Domestic Violence Victims From Public Housing Based on the Zero-Tolerance Policy, 9 CARDOZO WOMEN S L.J. 97, 124 (2002). 36 United States v. C.B.M. Group, Inc., No PA, 5-6 (D. Or., filed July 10, 2001). 37 Bouley v. Young Sabourin, 394 F. Supp. 2d 675, 677 (2005). 38 See id. at 678; Vrettos, supra note 35, at 101 ( However, despite accepting the terms of the consent decree, the defendants still denied that Ms. Alvera suffered any damages or that they committed any wrong against her. ). 39 Vrettos, supra note 35, at 99. 7

8 Both cases resulted in victory; Ms. Bouley received a judgment in her favor, and the property complex where Ms. Alvera lived now prohibits evicting domestic violence victims based on their status. 40 Despite the success that Alvera and Bouley achieved, there have been few challenges brought by domestic violence victims under the FHA. 41 The disparate impact theory still appears to be a remedy used primarily in eviction and lease renewal cases. 42 There is almost no precedent for victims who are discriminated against when seeking occupancy in a new rental home. 43 Ultimately, the disparate impact theory is an indirect method of providing relief to domestic violence victims. Victims must demonstrate discrimination based on their sex, which diminishes their status as a victim. 44 Recognizing a victim first and foremost as a survivor better promotes laws and policies that empower victims. 45 The disparate impact theory sidesteps recognition of this status, by placing the emphasis solely on sex. 40 Bouley, 394 F.Supp.2d at 677; Vrettos, supra note 35, at Franklin, supra note 16, at See Vrettos, supra note 35 at 131 (holding that Congress should adopt a totality of the circumstances approach when amending housing laws to take varying circumstances of domestic violence victims into account). 43 See Littwin, supra note 8 at 426 (holding that the use of the FHA is still novel and there is relatively little case law of claims under the FHA). 44 The disparate impact theory also blocks men from obtaining relief because domestic violence does not more negatively impact their sex. An amendment to section 8-5a is needed to protect male victims too. 45 See Domestic Violence & Sexual Assault in the United States: A Human Rights Based Approach & Practice Guide, ACLU WOMEN S RIGHTS PROJECT, 7 (2014) [hereinafter Practice Guide ]. 8

9 Due to the differing needs of victims in each state, the less expensive and faster moving state courts may be a more prudent choice for bringing an FHA claim than federal court. 46 Handling housing law protections at the federal level raise a number of concerns. 47 As a result, many states have begun passing their own housing laws to protect victims. 48 In Maryland, the legislature has already taken additional steps to protect domestic violence victims. 49 c. Section 8-5a The passage of section 8-5a in 2010 added new crucial protections for Maryland s domestic violence victims, by providing victims the opportunity to escape if they are trapped in a long-term housing situation with the abuser. 50 Section 8-5a-02 permits a victim to terminate her residential lease if she provides the landlord written notice of her intent to vacate, notice of her status as a victim of domestic violence, and vacates the premises within 30 days. 51 Section 46 Brenner, supra note 9, at 336. While these [VAWA] provisions are critical, they reach only a small number of battered women in very limited contexts. 47 Bergquist, supra note 22, at 47. Due to the prohibitive cost of litigating a federal housing case like Alvera or Bouley many female victims of domestic violence are unable to challenge unfair evictions and other housing denials. 48 See supra note 12 and accompanying text. 49 See MD. CODE ANN. REAL. PROP. 8-5a-01 to -06 (West 2014). 50 See Id. 51 Id. at 8-5a-02. Under the current stipulations of 8-5a-01 to -06, notice may include either a copy of a protective order (or a peace order, if she is a victim of sexual assault). To qualify as a victim of domestic violence, a person must have experienced serious bodily harm or a threat of serious bodily harm, assault, rape or any other sexual offense, false imprisonment or stalking as defined in section of the Family Law Code. MD. CODE ANN., FAM. LAW (West 2012). 9

10 8-5a-05 gives domestic violence victims a defense against eviction and 8-5a-06 allows victims to change the locks of their leased premises if they have a protection order. 52 The statute extends protections not only to the victim herself, but also to other cohabitants, dependents, or family who lived with the victim at least 90 days before the petition was filed. 53 This statute presents a number of possibilities for victims trying to protect themselves from their abuser or unfair action from a landlord or housing authority. 54 Section 8-5a is one of many countrywide statutes passed in the last decade to protect victims from eviction and expand their rights as lessees. 55 Despite section 8-5a s strengths, it does not provide comprehensive protection. While it significantly increased protections for victims who already have housing, the provisions do not protect women seeking occupancy in private housing. 56 The Maryland Fair Housing Act ( MD FHA ) does little better filling in the gaps a-05. Under section 8-5a-05(b)(1), a protection order raises a rebuttable presumption that the breach of the lease does not warrant an eviction. The protective order is not required, however, and section 8-5a- 05(2) gives the court discretion to render a judgment for the tenant without a protective order; see also id. at 8-5a MD Fisc. Note, 2010 Sess. H.B (Mar. 10, 2010). 54 See Brenner, supra note 9, at 333 ( By presenting a range of new options for victims, these steps suggest at least the tentative conclusion that state lawmakers have an increased understanding of the dynamics of domestic violence. ). 55 Id. at 337 ( [A] majority [of states] passed legislation the same year as or in a subsequent year to the reauthorization of the VAWA in 2005, suggesting that attention was paid to what was happening federally. ). 56 See Hirst, supra note 4, at 133. Because of this wide latitude to choose tenants, landlords may reject certain housing applicants by cloaking their discriminatory practices with legally permissible pre-textual justifications. 10

11 that are left in section 8-5a. 57 Like the FHA, the MD FHA does not include domestic violence victims as a protected class. 58 Thus, while women in public housing may turn to VAWA and section 8-5a for protection both obtaining and keeping housing, those who are applying for private housing have only the disparate impact theory in their legal arsenal. 59 The disparate impact theory continues to be underutilized, unknown, and draws attention away from a woman s status as a survivor. 60 Domestic violence victims in Maryland deserve a more direct and efficient solution to their struggle to obtain housing. The VAWA provides public housing protections for domestic violence victims, but does not extend the same protections to those in private housing. 61 The FHA encompasses all housing in Maryland, but victims are not a protected class, so women must use the less direct disparate impact theory to bring a case against their landlord or housing authority. 62 Furthermore, while section 8-5a provides more comprehensive assistance to women already in housing, those seeking housing remain vulnerable See MD. CODE ANN. STATE GOV T (West 2014). 58 See id. 59 See supra notes and accompanying text. See also Anique Drouin, Who Turned out the Lights? How Maryland Laws Fail to Protect Victims of Domestic Violence from Third-Party Abuse, 36 U. BALT. L. REV. 105, 118 (2006)(holding that Maryland needs to look at other states housing laws to create better legislation for putting a stop to housing discrimination). 60 See supra notes and accompanying text. 61 VAWA 2013, supra note 23, at See Bergquist, supra note 22, at See supra notes and accompanying text. 11

12 Maryland housing law needs occupancy protection to accommodate all victims, not just some victims. II. THE GAP IN HOUSING AND THE RESULTING STRUGGLE WITH HOMELESSNESS AND EDUCATIONAL INSTABILITY While the protections in place for victims must not be diminished, a crucial gap still exists for victims seeking occupancy. This gap places victims at risk for perpetuating the cycle of violence. 64 Until this occupancy gap is closed, victims will continue to face the choice between homelessness and educational instability for their children or returning to their abuser. 65 a. Homelessness Ninety-two percent of homeless women have experienced physical or sexual abuse at some point in their lives. 66 Additionally, over fifty percent of cities in the United States reported domestic violence as a primary cause of homelessness for women. 67 In 2013, various shelters or transitional housing in Maryland served over one thousand domestic 64 Gretchen Mullins, The Battered Woman and Homelessness, 3 J.L. & POL Y 237, 237 (1994) ( Until battered women s needs are treated as a priority, the existing funding problems will not change and battered women and their children will be forced to return to their batterers ); see also Haugen, supra note 5, at 1037 ( Women who are given a choice between homelessness and returning to their abuser s home most often choose to seek shelter at their abuser s home shelter in a violent and abusive environment. ). 65 Franklin, supra note 16, at Brenner, supra note 9, at Domestic Violence and Homelessness, ACLU: Women s Rights Project (last visited Jan. 3, 2015); see also Mullins, supra note 64, at 237 ( Fifty percent of the homeless women and children in this country are fleeing domestic violence. ). 12

13 violence victims in a single day alone. 68 For victims looking to escape an abusive relationship, accessing and maintaining affordable housing was one of their most significant concerns. 69 This concern is one not currently being met. 70 When women make the choice of leaving their abuser, they must obtain housing for themselves, which grows more complicated if victims flee with children as well. 71 Because many abusers isolate victims from family and friends, these women often have nowhere to turn except for emergency shelters within their communities. 72 Shelters provide women the opportunity to regain control of their lives and begin again, away from the abuse. 73 However, there are not enough shelters available for women who need them. 74 In 2013, eighty percent of the services offered to women 68 Twenty of the twenty-three local domestic violence programs in Maryland voluntarily participated in the 2013 National Census of Domestic Violence Services. The Census gathered information about the typical services provided to victims in a twenty-four hour period Domestic Violence Counts: A 24-Hour Census of Domestic Violence Shelters and Services, NATIONAL NETWORK TO END DOMESTIC VIOLENCE (2013), tesummary_md.pdf [hereinafter Domestic Violence Counts. ]. 69 Susan Reif & Lisa Krishner, Subsidized Housing and the Unique Needs of Domestic Violence Victims, 34 CLEARINGHOUSE REV. 20, 21 (2000). 70 See Id. 71 Id. 72 Id. See also Mullins, supra 64, at ( [Shelters] provide women with immediate safety for themselves and their children. Second, they often represent the only real means of escape for battered women. ). 73 Mullins, supra note 64, at Id. at (holding that women are increasingly turned away due to overcrowding in shelters). 13

14 on the day of the census were for emergency shelter. 75 Despite this need, over two hundred requests were not met; 42% of which were housing related. 76 Women with young children have an even more difficult time finding emergency shelter, and many are turned away despite having nowhere else to live. 77 For women lucky enough to obtain emergency shelter, there may be resources available to help with the search for long-term housing. 78 While permanent housing is not the only resource that helps victims successfully leave their abusers, it provides an important foundation for women as they begin the process of re-building their lives. 79 The system of emergency shelters in place to protect victims of abuse is not enough to combat homelessness. 80 Emergency shelters are often underfunded and crowded, and cannot permit women to stay for extended periods of time. 81 Women unable to obtain housing at a 75 Domestic Violence Counts, supra note Id. 77 Reif & Krishner, supra note 69, at 21 ([G]iven the shortage of affordable housing and the inability to turn to family or friends, the likelihood is high that victims will return to their abusers. ); Mullins, supra note 64, at (holding that the scarcity and overcrowding of shelter makes it more likely that battered women will return to their abusers). 78 See Haugen, supra note 5 at The goal of most shelters in providing case management services is to assist victims in preparing for their exit and planning for the future, including possible housing options. 79 See Reif & Krishner, supra note 69, at See Margaret Johnson, A Home with Dignity: Domestic Violence and Property Rights, BYU L. REV., April 2005, at Haugen, supra note 5, at Across Maryland, 5% of staff positions were eliminated in the year % of the unmet requests for help were due to a reduction in government funding and another 20% from private funding sources. Still another 15% reported a lack of staff. Domestic Violence Counts. 14

15 shelter, or who must leave before they are able to find long-term housing, are often back to square one: faced with the choice of homelessness or returning to their abuser once again. 82 Domestic violence victims need long-term solutions for obtaining and maintaining housing, not just temporary relief for a perpetual problem. 83 Making it easier for women to obtain housing for themselves and their children when they leave an abuser could help reduce homelessness. One of the most direct means of doing so is removing the barriers that still exist in private housing situations by adding protections in section 8-5a to make this process easier for victims. 84 Until then, however, homelessness remains a reality for many domestic violence victims. 85 Unfortunately, once a victim faces homelessness, this presents a host of other concerns, including the education of any children who fled with her. 86 b. Educational Instability for Children Studies show that the more children are connected to stable home and educational environments, the less likely that domestic violence 82 Reif & Krishner, supra note 69, at We shelter families up to 60 days, but few resources are available once they leave the shelter. Many get 30 more days of Emergency Services until they are homeless again. This is a recurring cycle of homelessness and domestic violence. 83 See Johnson, supra note 80, at See discussion infra Part III.b. 85 Mullins, supra note 64, at See Eric Tars, Separate & Unequal in the Same Classroom: Homeless Students in America s Public Schools, 14 PUB. INT. L. REP. 267, (2009). 15

16 negatively impacts them. 87 Children who become homeless due to this violence lose those stable environments. 88 The effects of homelessness on education can present a host of problems that are magnified if a child and their mother cannot secure a safe living situation away from the abuser. One major problem children face is a loss of time in the classroom. 89 When a victim flees her abuser, she may need to re-locate and pull her children from school. 90 Many children on the street or those residing at emergency shelters may be too far away from their school of origin for their regular bus to pick them up. 91 Because victims often leave with little money or resources, they are generally unable to provide personal transportation to get their children to school. 92 When the children eventually return to the classroom, they must cope with learning gaps and make up for time lost when they were not with their peers Judith Wolfer, Deena Hausner, & Sue Brown, The Kids Are Not All Right: What Happens When Children Witness Domestic Violence, 45-FEB MD. B.J. 4, 10 (2012). 88 See Courtney Anderson, Opening Doors: Preventing Youth Homelessness Through Housing and Education Collaboration, 11 SEATTLE J. FOR SOC. JUST. 457, (2013) (holding that an unstable home can negatively impact a child s selfawareness and development). 89 Wilson, supra note 2, at Anderson, supra note 88, at Deborah Thompson, Breaking the Cycle of Poverty: Models of Legal Advocacy to Implement the Educational Promise of the McKinney Act for Homeless Children and Youth, 31 CREIGHTON L. REV. 1209, 1219 (1998). 92 Id.; see also Wilson, supra note 2, at (identifying material resources, such as education, transportation, money, and housing, as critical parts of helping victims feel safe and start afresh). 93 Thompson, supra note 91 at

17 Children who must attend a new school then face a number of new problems including complications with residency requirements and documentation. 94 Many states have residency laws that prevent children from attending schools in their district unless they are permanent residents within that district. 95 Past court cases have held that schools must enroll children in a district where they reside in a shelter, but many victims are not lucky enough to find shelter for their children. 96 Documentation requirements can also place more power in the hands of the abuser, who may destroy school records and documents in an attempt to remain in control of his family. 97 Even if these records are not destroyed, victims sometimes flee their abusers without copies. 98 Additionally, obtaining copies of immunizations, birth certificates, and school grades can be incredibly difficult for a victim who has few resources and no way to pay the agencies for the records. 99 This can create further delay in enrolling children, which 94 See Wilson, supra note 2, at 34; Thompson, supra note 91, at Thompson, supra note 91, at Delgado v. Freeport Public School District, 131 Misc. 2d 102 (N.Y. Sup. Ct. 1986) (holding that children who lived in a shelter were entitled to education in that school district). 97 Wilson, supra note 2, at Id. 99 Thompson, supra note 91, at

18 contributes to the learning gaps they will face once they begin school again. 100 The passing of the McKinney-Vento Act in 1987 and its subsequent re-authorizations have contributed significantly to reducing many of these document and residency concerns. 101 School districts must now enroll homeless children, even without the required documentation, and bus children to their home schools if parents lack adequate transportation. 102 However, domestic violence may necessitate fleeing further away than what the McKinney Act covers. 103 Additionally, the Act does not address adequate solutions for families suffering from domestic violence. 104 Children who come from abusive families already face significant difficulties obtaining an education. 105 Until section 8-5a is amended to assist their mothers in obtaining stable housing, children will continue to be penalized through disruptions in their learning. 100 Id. at 1219, See Tars, supra note 86, at Thompson, supra note 91, at See Tars, supra note 86, at 271. The Act permits many homeless children to remain at their school of origin, or the school of their choice if it is in the child s best interest and the parent s wishes. However, if one of the parents is an abuser seeking control over his family, or the victim is forced to flee a two hour bus ride from her child s home school, this may not be possible. 104 See The McKinney-Vinto Act, 42 U.S.C.A (West 2002). 105 Students who come from abusive families often begin acting out and doing poorly in grade school. As the kids reach adolescence, they may begin cutting classes, drop out of school, and abuse alcohol and other substances. Wolfer, et. al. supra note 96, at See also Anderson, supra note 88 at (holding that violence and instability in the home can contribute to children developing mental health disorders, developmental delays, and stunted academic progress. ). 18

19 c. Landlord Concerns The concerns of landlords remain one of the greatest barriers for adding new protections to housing law in Maryland. 106 Unless these concerns are addressed, Maryland s housing law cannot be satisfactorily amended to protect victims. 107 The primary concerns that landlords have with renting to domestic violence victims are tenant safety, liability for property damage, and the fear of losing tenants and/or economic loss. 108 Private landlords hold a great deal of power when determining whether to rent property to a victim in Maryland. 109 Housing authority managers and landlords generally conduct background and other criminal record checks for individuals to whom they plan on renting. 110 In Maryland, these checks are easily accessible to anyone with the internet. While criminal record checks are an important protective measure for landlords, they can also be used to deny housing applications to domestic violence victims. 111 Landlords may also fear 106 See Ross, supra note 7, at See Maintaining Safe and Stable Housing for Domestic Violence Survivors: A Manual for Attorneys and Advocates, NATIONAL HOUSING LAW PROJECT 66 (2012), %202.pdf (asserting the necessity of collaborating with housing providers to implement protections for domestic violence victims). 108 See Ross, supra note 7, at Drouin, supra note 59, at 114 (holding that private landlords are allowed to determine who may live on their property as long as it doesn t violate the FHA). 110 Lenora Lapidus, Doubly Victimized: Housing Discrimination Against Victims of Domestic Violence, 11 A. U. J. GENDER SOC. POL Y & L. 377, 384 (2003). 111 Id. at Advocates have discovered that housing authority managers frequently reject rental applications from women who have been victims of 19

20 renting to women whose last known address is a domestic violence shelter or residence where the police were previously called. 112 Landlords also fear liability for negligence or breach of the covenant of quiet enjoyment when renting to domestic violence victims. 113 If the abuser remains on the premises, or returns to the premises and disturbs the peace or destroys property, this adversely impacts other tenants and places the landlord at risk for liability. 114 Additionally, many victims of domestic violence have poor credit and credit histories or coerced debt due to the economic control asserted by their partners. 115 Landlords may doubt that victims can pay their rent or suspect that a victim will unexpectedly break a lease and leave a vacant tenancy that the landlord is unable to fill. 116 These concerns could lead a landlord to deny housing to a victim. 117 Consequently, one of the crucial aspects of amending housing law in Maryland is facilitating cooperation between advocates, landlords, domestic violence as indicated by the complaining victim s name in the criminal record checks. 112 Brenner, supra note 9, at Ross, supra note 7, at 251. In Maryland, a landlord breaches the covenant of quiet enjoyment when their actions substantially interfere with the tenant s enjoyment of the premises. Legg v. Castruccio, 110 Md. App. 748, 777, 642 A.2d 906, 920 (1994). If the tenant vacates the premises due to this interference, the tenant has a case for constructive eviction. Id. If the abuser returns to the premises to attack the survivor, then the landlord may be liable to the victim or other tenants. 114 Ross, supra note 7, at See Littwin, supra note 8, at See Id. at Brenner, supra note 9, at

21 and legislators. 118 Landlords will be apprehensive about amendments to section 8-5a if approached by advocates and legislators with a condemning or accusatory attitude. 119 This makes legislators another crucial piece of the puzzle, as their sponsorship is necessary to pass any bill, and they serve as intermediaries between advocates, landlords, and other legislators whose support is required for amendment. 120 It is important that the victim s stories are heard, landlord s concerns are balanced, and legislators are informed so that a solution may be reached. 121 The solution lies with the careful selection of language in the provision. III. THE SOLUTION TO THE GAP IN HOUSING LAW: OCCUPANCY PROTECTION a. Anti-Discrimination Statutes in Other States Other states have already developed their own anti-discrimination statutes, which could serve as models for additions to 8-5a in Maryland. 122 Amending section 8-5a to include an anti-discrimination provision in the real property code would better protect the housing rights of domestic violence victims by affording them greater access 118 Telephone Interview with Kathy Howard, Attorney, Maryland Multi-Housing Association (Jan. 27, 2015) [hereinafter Howard Interview. ] 119 Id. 120 Symposium, Domestic Violence in Legal Education and Legal Practice: A Dialogue Between Professors and Practitioners, 11 J.L. & POL Y 409, 450 (2003) ([W]e are still challenged by the need to truly bring this knowledge home not just to the trenches where we lawyers work but beyond, to the policymakers, and ultimately to our legislators, who create the standards for civil behavior and remedies for their breach. ). 121 Howard Interview. 122 See Brenner, supra note 9, at

22 to housing. 123 Used in conjunction with existing protections in section 8-5a, the law would better protect ALL victims: those already in public and private housing, as well as those seeking housing. In 2004, Washington became the first state to pass an antidiscrimination statute for domestic violence victims. 124 It asserts that a landlord may not refuse to enter a rental agreement based on a tenant s status as a victim. 125 If the landlord refuses to enter the tenancy, then he or she subjects themselves to a civil suit for damages. 126 A year later, North Carolina followed with a similarly worded anti-discrimination statute. 127 Like Washington s statute, it forbids landlords from refusing to enter a rental agreement based on a person s status as a victim. 128 To pass the statute, Washington state advocates worked closely with private landlords to develop language that landlords approved of, and educated landlords on the housing struggle that domestic violence victims face. 129 Since the passing of the statute, advocates continue to work closely with landlords and educate victims of their rights 123 See discussion infra part III.b 124 See WASH. REV. CODE (West 2014). 125 Id. at (2). 126 Id. at (3). 127 See N.C. GEN. STAT (2005). 128 Id. Landlords may also be subject to civil action for the violation. Id. at Telephone Interview with Linda Olsen, Domestic Violence Housing First, Washington State Coalition Against Domestic Violence (Jan. 16, 2015). 22

23 under the law. 130 Advocates have seen overall positive results from these interactions, noting that the re-housing has increased safety and stability for survivors. 131 Many other states have followed suit in recent years, passing their own versions of anti-discrimination statutes. 132 b. Amending section 8-5a The new provision of section 8-5a should be entitled Occupancy Protections. Using similar language to that of Washington and North Carolina, the provision would state that: A landlord may not refuse to enter into or fail to renew a rental agreement, based on the applicant s status as a victim of domestic violence. 133 A domestic violence victim would qualify as any woman who has suffered serious bodily harm, is placed in imminent serious bodily harm, assault, rape or any other sexual offense, false imprisonment, or stalking. 134 This is the current definition under section 8-5a and would maintain uniformity throughout the statute. 135 To build a prima facie case, a victim would need to demonstrate: that a room, dwelling, or apartment was available to rent at the time 130 Id. 131 Id. 132 See statutes cited supra note See N.C. GEN. STAT (2005); WASH. REV. CODE (2) (West 2014) A-01(f)(1)-(2) (citing FAM. LAW 4-501). 135 Id. 23

24 that she applied; that she applied to the housing and was denied; the room remained available after she was turned down; and there was no other reasonable or credible basis for rejecting her application. 136 The burden of proof would fall primarily on the plaintiff, with the defendant landlord or housing authority given the opportunity to rebut the fourth prong of the prima facie case. 137 Notice of the occupant s status would include protective orders or peace orders as the statute currently requires, but would expand to include affidavits. 138 As a civil action, the available remedies would be damages and could also entail court costs and attorney s fees. 139 Additionally, other states have limited the liability of landlords for the actions of third parties, and including such a provision could ease landlord concerns with the amendment of the statute. 140 One of the critical necessities of enacting an occupancy provision to section 8-5a and ensuring that the law is properly utilized is the cooperation of victims, advocates, landlords, and legislators. 141 Education and community outreach would be one necessary part of the process, as well as creating limitations on landlord liability. 136 See Mobley v. Rossell, 297 F.Supp.2d 835, (D. Md. 2003). 137 Id. 138 See 8-5A-03 to See WASH. REV. CODE (3) (West 2014). 140 See IND. CODE ANN (West 2007). This chapter does not make a landlord or the agent of a landlord liable for the actions of a perpetrator of third party. 141 Supra notes and accompanying text. 24

25 c. Community Outreach Knowledge is empowering, and many domestic violence victims lack awareness of the options and resources in their communities to help them escape and find housing. 142 Additionally, many victims may be unaware that domestic violence is a criminal offense and that there are legal remedies at their disposal. 143 Some landlords may also be unaware of the protections available to victims, or of the farreaching damage that domestic violence has on families and communities. 144 This marked disconnect between the lawmakers and those whom the laws are trying to protect should make education on domestic violence and its impact on homelessness a priority. 145 This means lobbying legislators, educating them on domestic violence and how section 8-5a falls short, and finding sponsorship for an amendment. 146 Additionally, awareness through school programs, presentations at landlord and civic community meetings, and education campaigns are all 142 Sarah Buel, Fifty Obstacles to Leaving, A.K.A., Why Abuse Victims Stay, 28- OCT COLO. LAW. 19, 24 (1999). Victims with no knowledge of the options and resources logically assume that none exist it is no wonder that many victims are surprised to learn that help may be available. 143 Protective orders are just one legal remedy for domestic violence victims, but they are not often utilized. When they are, and the abuser violates it, there are not enough remedies available to the victim. Brenner, supra note 9, at Bergquist, supra note 22, at 46. See also Wolfer, et. al. supra note 96 for a discussion on the negative impacts of domestic violence on children and families. 145 Brenner, supra note 9, at See Catherine Klein & Leslye Orloff, Providing Legal Protection for Battered Women: An Analysis of State Statutes and Case Law, 21 HOFSTRA L. REV. 801, 810 (1993). 25

26 important steps to alerting the community to the housing problems that victims face. 147 Facilitating relationships between advocates, landlords, and victims and how their support can fuel legislators might create more cooperation and understanding so that an agreement can be reached sooner. d. Landlord Liability Another crucial part of the process is decreasing landlord liability for the actions of third parties in domestic violence situations. When renting to a victim of domestic violence, there may be the risk that the abuser could return and harm the victim or damage the landlord or housing authority s property. 148 One of the concerns addressed when originally passing section 8-5a, was that despite the victim s ability to now break a lease, there is a loss of rent for the landlord that needed to be paid. 149 The solution under the bill was to only make the victim liable for rent 30 days following the intent to vacate. 150 It not only protects the victim from being penalized for breaking the lease, it can protect the landlord from completely losing rent as they seek a new occupant. Solutions such as this could give landlords and housing authorities a better peace of mind about their property and residents, and help the occupancy provision gain better traction. Solutions to landlord concerns are attainable. When amending section 8-5a, a 147 Buel, supra note 142, at Ross, supra note 7, at 268; Brenner, supra note 9, at Howard Interview A-02(c). 26

27 landlord liability provision may be an important part of the negotiation. 151 CONCLUSION In one study in New York City alone, it was estimated that over 50% of domestic violence victims faced housing discrimination based on their status. 152 If a similar study were conducted in Maryland, what percentage of women would be turned down for private housing, due purely to their status? How many would report facing homelessness and educational instability for their children as their likely alternatives to remaining with an abuser? The best solution for domestic violence victims in Maryland is to amend section 8-5a and create an occupancy protection provision. In addition to the lease termination and lock changing policies protecting women already in housing and seeking public housing, the new provision would protect abuse victims seeking private housing. 153 Until that time, many victims and their children will continue to face homelessness and educational instability, and may find themselves with no choice but to return to their abuser. 154 It is crucial that victims are provided the same opportunity to find housing and re-start their lives as those who are not victims. To achieve this, Maryland needs to facilitate more community outreach to landlords and legislators, and advocates should work closely with victims and landlords to reach 151 See supra note 140 and accompanying text. 152 Adding Insult to Injury, supra note 10 at See MD. CODE ANN. REAL. PROP. 8-5a-01 to -06 (West 2014). 154 Supra notes

28 an agreement that fairly addresses landlord concerns while protecting victims. 155 By addressing this gap in Maryland housing, the state will have taken a big step in the direction of eliminating the cycle of domestic violence in our nation. 155 Supra notes and accompanying text. 28