Domestic Violence During the Pandemic: How to Ensure Safe Housing at Your Site

For victims of domestic violence, staying at home during the pandemic may not be the safest option.

One effect of the stay-at-home orders during the COVID crisis has been an increase of domestic violence reports. In New York State, Governor Andrew Cuomo announced that reports of domestic violence rose during March and April. Calls to the state’s domestic violence hotline were up 30 percent in April compared to last year, and calls increased 18 percent from February to March 2020. Experts say the added stress, economic anxiety, and social isolation at this time raises the risk of domestic violence.

Being told to stay at home, for victims and survivors of domestic violence, including children exposed to it, may not be a safe option. Before the pandemic, a survivor or victim might flee a violent situation by staying with a family member, going to a shelter, or filing a protective order with the police. Now, for many, such options might not be easily available.

Considering the added risk factors for domestic violence during this crisis, ensuring safe housing for your residents is even more important. In a recent update to HUD’s Multifamily COVID-19 FAQs, HUD emphasized that there are federal protections for victims of domestic violence, stalking, and other harassment at HUD-assisted sites. We’ll go over the federal protections and housing rights of domestic violence survivors in federal housing programs during COVID-19.

Scope of Eviction Moratoriums

Due to the COVID-19 outbreak, numerous cities and states have established eviction moratoriums or pauses on eviction filings. A number of these eviction moratoriums, however, still allow for evictions based on criminal activity and other lease violations.

Historically, domestic violence survivors have been evicted for “criminal activity,” damage to the unit, or other issues directly related to abuse. Evicting a survivor for issues related to domestic violence abuse committed against her can violate the Fair Housing Act’s prohibition on sex discrimination. In addition, your state or city may have other prohibitions against evicting someone because she’s a survivor of domestic violence or other crimes, or for calling 911. In addition, for federal housing program sites, the Violence Against Women Act (VAWA) protects survivors from being evicted due to the violence committed against them.

At the federal level, the enacted Coronavirus Aid, Relief, and Economic Security Act (CARES Act), signed into law on March 27, 2020, provided a temporary moratorium on evictions for most affordable housing residents until July 24, 2020. Specifically, it mandates a 120-day eviction moratorium for tenants living at covered sites. Section 4024(a) of the CARES Act applies the moratorium to sites either with a federally backed mortgage loan or that “participate in” a “covered housing program” as defined in the Violence Against Women Act (VAWA).

Federally backed mortgage. Federally backed mortgage loans are those made, insured, guaranteed, supplemented, or assisted in any way by any officer or agency of the federal government, or purchased or securitized by the Federal Home Loan Mortgage Corporation (Freddie Mac) or the Federal National Mortgage Association (Fannie Mae).

VAWA programs. Under VAWA, covered programs include:

• Public housing;
• Section 8 Housing Choice Voucher program;
• Project-based Section 8 housing;
• Section 202 supportive housing for the elderly;
• Section 811 supportive housing for persons with disabilities;
• Section 236 multifamily rental housing;
• Section 221(d)(3) Below Market Interest Rate housing;
• HOME Investment Partnerships;
• Housing Opportunities for Persons with AIDS;
• McKinney-Vento Act programs;
• USDA Rural Development; and
• Low-Income Tax Credit housing.

It’s important to note that the CARES Act’s 120-day eviction moratorium applies only to nonpayment of rent and prohibits “charg[ing] fees, penalties, or other charges to the tenant related to such nonpayment of rent” [Sec. 4024(b)]. The CARES Act eviction moratorium doesn’t impact lease violations related to domestic violence, stalking, and other harassment covered by VAWA.

VAWA Protections

VAWA offers housing protections for survivors of domestic violence, dating violence, sexual assault, and stalking. The current version of VAWA came about in 2013 when Congress expanded the scope of its housing protections to additional housing programs. Despite the name of the law, VAWA protections apply to survivors regardless of gender.

The following VAWA protections remain in effect during the COVID-19 pandemic. VAWA’s housing protections include:

• A prohibition on being evicted from or denied participation in a federal housing program for being a domestic violence survivor;
• Allowing housing providers to “bifurcate” or split a tenancy so that the abuser is removed from the household, without evicting or penalizing the survivor. In removing the abuser from the household, you must follow federal, state, and local eviction procedures;
• Confidentiality requirements for housing providers, such as prohibiting placing information about a survivor’s domestic violence, dating violence, sexual assault, or stalking in a shared database;
• The ability to request an emergency transfer to another safe and available federal housing program unit; and
• Requiring receipt of a written notice of rights under VAWA upon admission, denial of housing, or notice of eviction/subsidy termination–including notification in non-English languages.

HUD-Issued VAWA Forms

In December 2016, HUD issued four forms and advised that form HUD-91067 (Lease Addendum) should continue to be used. HUD advised that owners and management companies could customize these forms for their sites as long as they contain the same information and language. These forms can be found at www.hud.gov/program_offices/housing/mfh/violence_against_women_act.

HUD-5380: VAWA Notice. HUD-5380 provides information to the household of their rights under VAWA. The Notice of Occupancy Rights document consists of eight pages explaining that VAWA provides protections for tenants of HUD-assisted housing programs and for people applying for housing assistance who are victims of domestic violence, dating violence, sexual assault, or stalking. Applicants for assistance can’t be denied admission or assistance, and existing tenants cannot be denied assistance, be terminated, or be evicted because they are or have been victims.

The Notice of Occupancy Rights also makes clear that if a person or an “affiliated individual,” such as a spouse, parent, or sibling, is or has been victimized by a member of the household or a guest, the victim may not be denied rental assistance or occupancy solely on the basis of criminal activity directly related to that domestic violence. A housing provider may divide a lease in order to evict or terminate the assistance of someone who engaged in criminal activity directly related to domestic violence, while enabling the victim and others in the household to remain.

HUD-5381: Model Emergency Transfer Plan. The model Emergency Transfer Plan explains that a victim of domestic violence, dating violence, sexual assault, or stalking may request an emergency transfer to another unit. Someone is eligible for an emergency transfer if she reasonably believes that there’s a threat of imminent harm from further violence. Also, if a tenant is a victim of sexual assault, the tenant may be eligible to transfer if the sexual assault occurred on the premises within the 90-calendar-day period prior to a request for an emergency transfer.

This form is not provided to residents. Owners are encouraged to post their plan and must make the emergency transfer plan available upon request.

HUD-5383: Emergency Transfer Request. The HUD-5383 form should be completed by any household member who’s seeking an emergency transfer while residing at your site. HUD says the owner may require tenants to provide a written emergency transfer request. In other words, owners may also accept other written or oral requests for a transfer.

In addition, owners may require third-party documentation; the form lists a variety of acceptable documentation. But the form advises the tenant that she needs to provide documentation only if it’s safe for her to do so.

HUD-5382: VAWA Certification. HUD’s implementation of VAWA establishes a low-barrier certification process. HUD has made it clear that under most circumstances, a survivor need only to self-certify in order to exercise her rights under VAWA, ensuring third-party documentation doesn’t cause a barrier to a survivor in expressing her rights and receiving the protections needed to keep herself safe.

This self-certification option is especially important at this time during stay-at-home orders in place across the country, because it means that the survivor can assert VAWA protections in a streamlined fashion without obtaining a police report or restraining order.

Our Model Form: Use Form to Certify Victim Status, Assert VAWA Protections, below, is based on the HUD-5382 form. It asks the person completing the form to: (1) state that an applicant or tenant is a victim of domestic violence, dating violence, sexual assault, or stalking; (2) state that the incident that’s the ground for protection meets the requirements under the statute; and (3) include the name of perpetrator, if the name is known and safe to provide.

Also, under the current law, instead of the certification form, the applicant or tenant may provide:

• Documentation signed by the victim and a victim service provider, an attorney, a medical professional, or a mental health professional in which the professional attests under penalty of perjury to his or her belief that the victim has experienced an incident of domestic violence, dating violence, sexual assault, or stalking that meets the grounds for protection under the statute;
• A federal, state, tribal, territorial, or local law enforcement, court, or administrative record; or
• At the discretion of the owner, a statement or other evidence provided by the applicant or tenant.

If the survivor chooses to submit the self-certification form, no certification beyond this form may be required unless there is conflicting information. For example, if you receive proof from the abuser claiming that he is the victim, then you may require submission of additional proof to show that the survivor is the victim

With any assertion of VAWA rights, you need to be mindful of confidentiality requirements. Owners can share the information provided in the form only under limited circumstances. Generally, you can’t give the information provided about the abuse to others. The information may be shared only if the survivor agrees in writing, if it’s needed to evict the abuser from the housing, or if the disclosure is required by law.

Along with VAWA protections, you may need to comply with protections imposed by your state or city. VAWA is a federal law. But it doesn’t impact state or local laws that provide more protections for victims of abuse. Additional protection may include lock change laws for survivors or liability on the abuser for damages to the unit or other housing costs related to the violence. Consult your site attorney to understand how these protections may apply in a particular situation.

TAKEAWAYS

• Added stress, economic anxiety, and social isolation raises the risk of domestic violence.
• The Violence Against Women Act offers housing protections for survivors of domestic violence, dating violence, sexual assault, and stalking.
• Eviction moratoriums such as the CARES Act still allow for evictions based on criminal activity.
• A self-certification form allows survivors to assert federal protections in a streamlined fashion.