This is twisted. From the Cleveland Plain Dealer:
Ohio’s quarter-century-old domestic-violence law gives special criminal status to an assault by a family or household member and establishes unique protections for the victim. Courts also have consistently applied it to homosexual couples.
It is one of only two criminal offenses – along with menacing by stalking – that automatically gives the victim access to a protective order to keep the defendant away, and police are obligated to enforce it. Further, a violation of the protective order, or any second offense, “accelerates” misdemeanor domestic-violence charges to a felony.
The law treats anyone “living as a spouse” the same as a spouse when it comes to domestic violence: It defines domestic violence as an attack, or attempted or threatened attack, against a household member, and includes unmarried couples – so-called cohabitants.
Therein lies the rub, the public defender’s office motions contend. The new amendment forbids any state or local law that would “create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design . . . of marriage.”
Yet, that is exactly what the domestic-violence law does for unmarried couples living together, says Lazarus, a third-year law student who drew up the boilerplate motion to dismiss. The law, he wrote, “clearly creates a legal relationship between unmarried individuals.”
So, that’s twisted.
And this is even more twisted: Lazarus is doing this because he’s a gay rights activist.
Yet the public defender’s tactic gives hope for opponents of Issue 1, which Ohio voters approved in November. Some lawyers who oppose the amendment say if a judge sides with the public defender’s reasoning, the court could declare the amendment a violation of the U.S. Constitution’s 14th Amendment guarantee of equal protection under the law. Specifically, a married victim of domestic violence would have more protection than an unmarried neighbor beaten by a live-in lover, and married and unmarried defendants would be treated differently as well.
Alexandria Ruden, a Legal Aid Society domestic-violence lawyer and battered-women’s advocate, said she hopes that instead of having the unintended consequence of undermining part of the domestic-violence law, Issue 1’s unintended consequence will be its own self-destruction.
“Hopefully, instead of the [domestic-violence] statute, it will blow out the constitutional amendment,” said Ruden, who co-authored a leading legal text on Ohio’s domestic-violence law.
That, Lazarus acknowledged, is exactly why he concocted the public defender’s line of attack.
“Personally, when I was brainstorming this, it was with an eye toward, ‘How could we make this amendment look not so good?’ ” he said Wednesday.
There’s very few actions I won’t support in favor of full equality for lesbians and gays. And I guess that Lazarus could claim that he’s not attacking victims of DV, he’s just making it explicit that measure 1 attacks victims of DV. I don’t want to rush to judgment about a plan that Ms Ruden, who sounds like a very substantive advocate of DV victims, doesn’t sound hell-bent against. Maybe learning more will make me change my mind on this one.
But that all tastes sourly of rationalization. Full marriage equality is an important goal, but it’s not the only important goal. Nor is this strategy the only way of fighting measure 1.
Domestic violence victims are not tools to be used instrumentally to advance other people’s rights, but that’s how Lazarus is treating them. To attack the legal rights of domestic violence victims for political purposes is disgusting, no matter what your political purpose is.
I’m so torn on this. I fully agree that this is unfair and dangerous for the victims of domestic violence. On the other hand, Lazarus is exactly right, the DV law in Ohio is inconsistent with measure one, so it’s entirely possible, and maybe even likely, that a case like this will eventually come up. In that case, it may be better that it comes up sooner rather than later.
Still, one might think there are ways of bringing this up without treading on the rights of DV victims, but then again, a court decision does a lot more to bring this to the forefront.
Truly a moral quandary.
But my fear is that without challenges like this, the protection of the law will be selectively held from victims of domestic violence in same-sex relationships. Tough call.
Good point Amanda. It’s possible that a significant portion of people who helped support this law won’t give a shit about gay victims of DV, but will about straight DV. Or not. Still, it’s not the fault of people who are less protected because of what’s going on here, and it’s entirely unfair to demand they sacrifice themselves, even if it’s for the greater good.
Yes, it is disgusting, however, you can bet that some non-politically motivated lawyer would be after this in no time flat. So while I might not have been the lawyer to propose this, youbetcha that some other lawyer would have figured this out within the week. By and large, the people who don’t care about gay DV also don’t care about unmarried het. DV, since they are likely to believe that these folks shouldn’t be living together without marriage.
I think “disgusting” is a little strong. He’s a defense attorney, representing indigent people accused of domestic violence. He has an OBLIGATION to make every argument he can think of to prevent his client from going to jail and becoming part of the criminal justice system, a system that is biased against the poor. That he found a problem in the law that is being used against his client is EXACTLY what he is supposed to be doing.
The fact that the tactic has the benefit of raising questions about an overly broad law and raising the specter of domestic violence victims not getting justice is just the icing on the cake.
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Wouldn’t someone acccused of assault be charged with a criminal act regardless of their relationship to their victim? I find it hard to believe that charging someone with domestic assault would be harsher than charging them with assault. I’m not a lawyer, but it seems silly to me to argue over the semantics of whether or not the attacker happens to be a live-in-partner.
As I was writing this it occurred to me that perhaps the victim would have certain rights based on whether their attacker was a live-in-partner. Anyone in the know care to comment?
The simple answer, of course, is to make domestic violence an offense equal to regular violence. Not in the way the calls are treated, of course, but in the substantive law itself. That way there’s no possibility of an equal protection violation on the basis of gender or sexual orientation or marital status – those things all being immaterial to the violence statute.
“Oh, you hit that person and then you kicked them..tsk, that’s going to be three years in pokey for you!” The nice thing is, it works for any value of “you”.
Jeremy wondered about rights specific to DV victims. As the article said,
And not all assaults are felonies.
I suppose we could extend the same general idea to victims of any violent crime, per Robert’s suggestion. I’m not sure if there’d be any unintended consequences from that.
I feel strange about what these public defenders are doing, but I think it is better than the alternatives. As others point out, they are advocates of the people they are defending and have to represent them zealously. But even if they were not, there’s a superficially plausible argument here. Would you rather that argument be first raised by a well-funded lawyer defending an unmarried, wealthy abuser?
I’ll add that as one of the anti-DV advocates pointed out in the article: “This is an excellent illustration of the law of unintended consequences”. The people of Ohio amended their constitution without thinking it through. Remember that the amendment was opposed (IIRC) on a bipartisan basis: both Republican senators were against it as well as many, many Democrats. And their biggest warning was about the unintended consequences of this poorly-drafted amendment. Their campaign focused on business competitiveness (since one potential unintended consequence was that it would become illegal for companies doing business in Ohio to offer domestic partner benefits), but this is another potential issue.
Now the warnings of the opponents of the amendment are coming true. Is this a good thing? Of course not. But the people of Ohio were warned, and refused to listen. If they don’t see the tangible consequences of what they have done, what is going to happen the next time a crazy amendment comes down the pike? This is a democracy and the only way it works over the long run is if people get the government and laws they voted for – whether they understood them or not.
As I recall (at least here in MO) first offense for Assault (that is, no use of a weapon, no premeditation) is $1000 fine.
and my further understanding is that DV assault convictions are rare, as the case ends up presented, much as most rape defenses are “he said she said.” I imagine that would result in drastically plummeting DV report rates.
Now, one could up the penalty all around for assault, where raising your hands in anger against a fellow human being is automatically a felony with at least one year in jail, but that sounds like it would have all sorts of unintended consequences.
a third option would be to define any act of assault as grounds for a restraining order, which may or may not be what Amp is describing. that sounds more nubulous for unintended consequences. I’m not sure what they might be, or even if they’re there.
Not all the consequences are unintended. Virginia’s law would seem to be totally unconstitutional, but its intent is clearly to eliminate homosexuals. See
http://www.waynebesen.com/columns/2005/01/virginia-on-move_17.html for a discussion.
The self appointed moralists in OH and other states don’t give a darn. My bet? They are perfectly happy to see unmarried straights lose protections as well. Anyone who is different is fair game,.
It’s like something from THE HANDMAID’S TALE. It’s terrifying.
You’re missing the distinction between what the law IS and what the law OUGHT TO BE.
As a matter of common sense, the public defender is right–that’s what the law passed by the Ohio electorate means.
That’s certainly not what the law ought to be, but you can’t prosecute [people for violating what the law ought to be.
I’m a good friend of Jeff’s. He’s a great guy, and he IS a supporter of gay rights (and all kinds of other hippie shit, like me). We’re in law school together, and, obviosly, live in Ohio. Ohioans voted overwhelmingly for Issue 1, which denied rights to all unmarried people (from what I understand – I don’t vote in OH). What he’s trying to prove, from what he’s explained to my sub-par legal mind, is that Ohio has already recognized marital rights for other unmarried couples. Now it wants to take away all recognition of unmarried couples. He’s using this to try to help get Issue 1 overturned. Anyway, I’m in awe that a mere law student came up with something that could get this stupid Amendment overturned, or thrown out, or whatever it will do. Which is, after all, a good thing.
Hi everyone, I knew my ears were burning. I would just like to say that I appreciate all the comments on my motion, and I can’t believe that people from all over the country are reading it. But I do need to say that this is not a political move, this is simply meant to benefit my clients. While a political bias may have allowed me to look at Issue 1 critically, this campaign is not meant to destroy Issue 1. I understand that the outcome of this may effect DV victims and homosexuals, but this is simply an attack on the state to vindicate the rights of my clients.
I welcome any emails, jefflazarus@hotmail.com
Jeff Lazarus