The First Department, in a full-fledged opinion by Justice Moulton, over a concurring opinion, determined that plaintiff’s complaint, alleging rape and sexual assault, stated a valid cause of action under New York City’s Victims of Gender-Motivated Violence Protection Law (VGM). The central question on appeal was the meaning of the term “animus.” Supreme Court held that allegations defendant had sexually assaulted other women were properly included in the complaint to demonstrate animus. The First Department held plaintiff’s allegations of rape and assault, without allegations involving other women, were sufficient:
… [P]laintiff’s claims in the amended complaint that she was raped and sexually assaulted are sufficient to allege animus on the basis of gender. She need not allege any further evidence of gender-based animus. Defendant has conceded that the allegations herein are sufficient to show that the acts alleged were “committed because of gender or on the basis of gender.” That the alleged rape and sexual assault was “due, at least in part, to an animus based on the victim’s gender” is sufficiently pleaded by the nature of the crimes alleged.
Rape and sexual assault are, by definition, actions taken against the victim without the victim’s consent … . Without consent, sexual acts such as those alleged in the complaint are a violation of the victim’s bodily autonomy and an expression of the perpetrator’s contempt for that autonomy. Coerced sexual activity is dehumanizing and fear-inducing. Malice or ill will based on gender is apparent from the alleged commission of the act itself. Animus inheres where consent is absent. Breest v Haggis, 2019 NY Slip Op 09398, First Dept 12-26-19