Anti Gay Rights v Domestic Violence laws

Great Debates
1

As has been noted in the Pit, Ohio’s anti-gay rights state constitutional amendment enacted last November has recently been used in a domestic violence criminal case in Cleveland (specifically, in the Cuyahoga County Court of Common Pleas) to overturn Ohio’s domestic violence’s statute.

I don’t want to debate the amendment. I want to discuss the legal argument that says the statute violates the amendment because I don’t see it that way.

The statute is Ohio Revised Code § 2919.25, Domestic violence, which says in applicable part:

(A) No person shall knowingly cause or attempt to cause physical harm to a family or household member. …
(D) (1) Whoever violates this section is guilty of domestic violence.
(2) Except as otherwise provided in division (D)(3) or (4) of this section, a violation of division © of this section is a misdemeanor of the fourth degree, and a violation of division (A) or (B) of this section is a misdemeanor of the first degree. …
(F) As used in this section …of the Revised Code:
(1) “Family or household member” means any of the following:
(a) Any of the following who is residing or has resided with the offender:
(i) A spouse, a person living as a spouse, or a former spouse of the offender;
(ii) A parent or a child of the offender, or another person related by consanguinity or affinity to the offender;
(iii) A parent or a child of a spouse, person living as a spouse, or former spouse of the offender, or another person related by consanguinity or affinity to a spouse, person living as a spouse, or former spouse of the offender.
(b) The natural parent of any child of whom the offender is the other natural parent or is the putative other natural parent.
(2) “Person living as a spouse” means a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within five years prior to the date of the alleged commission of the act in question.
Most recent version effective 1-8-04.

Ohio Constitution Section 11 of Article XV states:
Section 11. Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.
To me, saying that being protected under the shield of a domestic violence statute because one “is otherwise cohabitating with the offender” equates to being in a status approximating “the design, qualities, significance or effect of marriage” is a stretch, to say the least. But what do you guys think? Remember, I don’t care what you think of the pros or cons of Ohio’s Constitutional Amendment (well, to put it more kindly, I know what the majority of this board thinks because the topic of gay rights has been ground down near to dust on this board and doesn’t need to be repeated here) what I want to know is what are the merits of the legal argument that the amendment strikes down the statute.

FYI, I am a lawyer but I don’t have a dog in this fight.

2

I think it’s a very creative argument.

I haven’t read the decision, but it seems that it has to hinge on creating a protected class for an unrelated person who lives with the abuser in a relationship that approximates marriage, as compared to an unrelated person who lives with the abuser in a “roommate” type situation.

If the Constitutional Amendment means that no special legal status can be created for a relationship that approximates marriage, then I think the decision correctly struck down the part of the DV law that provides a greater level of protection to a person in a marriage-like relationship than to one in a roommate-like situation.

3

The phrase “shall not create or recognize a legal status for relationships of unmarried individuals ,” certainly seems to exclude any recognition of such as “family or household members” that are covered by the domestic violence law. Note that the definition of “family members” that you cited is restricted to Parent/child/spouse/relative of spouse. And the following is clearly in conflict with the recent anti-gay amemndment:

4

I suspect it is the reverse. Domestic violence laws often have lower penalties than just beating up some stranger in your home.

5

“Well, ma’am, if you’re his wife, we can only lock him up overnight. But if you don’t know him, he’ll do 2 years.”

“I’ve never seen him before in my life, officer!”

6

A common scenario is that the wife, afraid that her husband will be locked up for a long time, will protect him legally because she is dependent on the income from his job, etc. To me, the idea of any differential penalties is legally stupid. Why if a married couple has a woman visiting their home should the guy do greater or lesser time if he beat up his wife, or alternately the female visitor?

7

You can argue that the harm to society is greater when a spouse batters a spouse, as compared to when one person assaults another (consider, for example, how often the police are called out on DV as compared to simple assault). You can also argue that there’s a fiduciary/trust relationship between spouses that makes battery more heinous.

8

I’d think the former wouldn’t be much of an issue if DV was treated legally the same as beating up a stranger. And I’d consider either equally heinous. I’m not sure about the details of Ohio law, but the quoted statute here makes DV just a misdemeanor.

9

Assault is apparently just a misdemeanor (first degree) whether it’s your spouse-like cohabitator or a stranger. See Ohio Rev. Code 2903.13(C).

DV calls are more frequent are more dangerous than regular assault calls for police officers, so I could see granting special status to those crimes because they consume more societal resources than stranger-assault. But having looked at the regular assault statute, I’m now curious why Ohio has a DV statute if it’s treating assault the same as DV, and why the fact that the constitutional amendment voided part of that statute is important.

Curious, but not motivated to research it.

10

Forgive me, but when I quoted the statute in the OP in the interest of brevity I deleted the statutory provisions that make subsequent offenses felonies. That is, the first DV offense is a first degree misdemeanor, the second offense is a felony of the fouth degree, and the 3rd is a felony of the third degree. See Ohio Revised Code Section 2919.25(D).

11

ISTM that the court is saying that any recognition of cohabitation as anything more than platonic roommate status (which is not protected under domestic violence statutes) is prohibited by the language of that amendment. And IMO they’re accurate. The amendment is explicit that marriage is marriage, and delimited to a heterosexual monogamous union that has been formally created in accordance with state marriage statutes, and that nothing else is to be regarded as “like” it in any way. Anything else is judicial activism, which has been decried around here; you don’t get to construe constitutional provisions to mean what you want them to mean; they say what they say in explicit language. If they were written too broadly to accomplish what the intent was in the opinions of some, that’s unfortunate but not the judge’s prerogative to reinterpret to suit himself or others.

12

I completely disagree. RC 2919.25 (F)(2) expands the definition of family so that it includes people who merely “cohabitate” with no requirement that it be a sexual relationship, and so it presumably includes platonic heterosexual roommates. Providing mere platonic roomies the protection of the DV statute doesn’t equate to granting them marital rights and so the statute does not violate the constitutional provision.

13

Does Ohio law define the word “cohabit” or “cohabitation”? And if so, can you substantiate platonic roommate status as being cohabitation under it? And why is a platonic roommate entitled to special rights not accorded other citizens who don’t happen to live with their assaulter?

14

Oops, I forgot to include this link in my previous post. See ACLU’s brief which supports upholding the statute.

e http://www.acluohio.org/Issue1/CuyCtymemo012705.pdf.

15

But, zamboniracer, § 2919.25 F (2) defines a “person living as a spouse.” While platonic relationships could certainly be covered under this old domestic violence law, I don’t understand how you can argue that this doesn’t clash with the newer legislation, which forbids any legal recognition of non-marital relationships. If the courts recognize the relationship between two platonic roommates, aren’t they giving it special legal status? By stating explicitly that a person “living as a spouse” may also include platonic relationships, the implication is that, in some ways, such relationships approach “the design, qualities, significance or effect of marriage.”

I agree with Polycarp, who points out that it does not simply define “cohabitation.” If the law said “cohabitating person” instead of “person living as a spouse,” I would agree with you.