Between my second and third years of law school, I served as an intern in a prosecuting attorney’s office in Michigan.  Since I was assigned to the district court, I handled misdemeanor cases – lots of them.  The same half-dozen misdemeanors repeat themselves endlessly in Michigan’s district courts: marijuana use, driving with a suspended license, and shoplifting (or “retail fraud”) top the list.  Close behind, however, are the number of folks charged in any given week with domestic violence.

“Domestic violence” is a crime in most U.S. localities (the city of Topeka, Kansas notwithstanding).  The wording of domestic violence statutes varies, but they generally define domestic violence as an assault committed by one person against another when both are in a relationship.  Current romantic or marital relations are nearly always included, as are assaults between parents and children, former spouses or dating partners, or one parent of a child against the other parent.  (“Assault” includes nearly any unwanted touching, even if it leaves no marks or permanent physical damage.  Grabbing, pushing, shaking, pinching, and even spitting may count as “assault.”)

One morning near the end of my internship, I talked to a woman who had been charged with her first-ever count of domestic violence.  We talked in the overcrowded holding cells in the basement of the courthouse, where she was without a lawyer and barely able to talk through her tears.  Apparently, she had been picked up after what sounded, in both the police report and her tearful testimony, like a mutual scuffle.  But the woman I was now talking to had been the one arrested, because her girlfriend had gotten the worst of it.

Yes, I said “girlfriend.”  The women were in a same-sex relationship.

Although this case was the only same-sex domestic violence case I handled that summer, domestic violence occurs among same-sex couples as well as among opposite-sex ones – and the damage can be just as devastating.  Even though Michigan banned same-sex marriage by constitutional amendment in 2006, Michigan’s domestic violence statutes don’t exclude violence between members of same-sex relationships.  Women who beat their girlfriends may be prosecuted in the same fashion as women who beat their boyfriends, and men who beat their boyfriends may face the same fate as men who beat their girlfriends.

Given that domestic violence statutes are about deterring and punishing violence that makes another person less safe in his or her own home and/or intimate relationships, creating and enforcing domestic violence statutes that are sexuality-blind makes sense.  One can be terrorized by one’s significant other no matter which genitalia the two of you have, right?

…Not so, say Montana and South Carolina.

Both states have not only banned same-sex marriage, they have also restricted their definitions of “domestic violence” so that the laws prohibiting and punishing domestic violence expressly do not apply to same-sex couples.

Montana’s statute states:

<blockquote>45-5-206. Partner or family member assault – penalty.

(1) A person commits the offense of partner or family member assault if the person:

(a) purposely or knowingly causes bodily injury to a partner or family member;

(b) negligently causes bodily injury to a partner or family member with a weapon; or

(c) purposely or knowingly causes reasonable apprehension of bodily injury in a partner or family member.

(2) For the purposes of Title 40, chapter 15, 45-5-231 through 45-5-23446-6-311, and this section, the following definitions apply:

(a) “Family member” means mothers, fathers, children, brothers, sisters, and other past or present family members of a household. These relationships include relationships created by adoption and remarriage, including stepchildren, stepparents, in-laws, and adoptive children and parents. These relationships continue regardless of the ages of the parties and whether the parties reside in the same household.

(b) “Partners” means spouses, former spouses, persons who have a child in common, and persons who have been or are currently in a dating or ongoing intimate relationship with a person of the opposite sex. </blockquote>

Meanwhile, in South Carolina:

<blockquote>SECTION 16-25-10. “Household member” defined.

As used in this article, “household member” means:

(1) a spouse;

(2) a former spouse;

(3) persons who have a child in common; or

(4) a male and female who are cohabiting or formerly have cohabited.

SECTION 16-25-20. Acts prohibited; penalties; criminal domestic violence conviction in another state as prior offense.

(A) It is unlawful to:

(1) cause physical harm or injury to a person’s own household member; or

(2) offer or attempt to cause physical harm or injury to a person’s own household member with apparent present ability under circumstances reasonably creating fear of imminent peril.</blockquote>

Since it’s not legally possible for two people of the same sex to be “spouses” in any of these states, that leaves “partner” in Montana and “cohabiting or formerly have cohabited” in South Carolina – except that the statutes also specify the pair must be “a male and female” or “persons of the opposite sex.”

Same-sex couples still have recourse in all three states to the basic “assault” statutes, which make non-deadly violence a misdemeanor (at least on the first offense) and violence that involves a weapon and/or that inflicts serious injuries or death a felony.  Delaware also specifically lists as a felony any assault on a pregnant woman that causes her to miscarry, which may apply to a pregnant woman in a same-sex relationship as well.

That assault laws protect people regardless of their sexual orientation, however, is not enough.  The purpose of domestic violence laws is to make clear that domestic assault – beating up on spouses, boyfriends, girlfriends, children, or other members of one’s household is qualitatively different than, say, punching a stranger who’s shooting his or her mouth off at the local bar.  In an ideal world, neither one happens: as <a href=”http://www.youtube.com/watch?v=cSvva3ZOlNg “>2008 presidential candidate Ralph Wiggum</a> put it, in an ideal world, “when we’re mad, we’ll just use our words.”

In this world, however, people punch each other.  And, in this world, we realize that there’s a difference between being punched by a drunk stranger while in a public place and being beaten by one’s own significant other, the one person whom we ought to be able to trust, in one’s own home, the one place we ought to be able to go in order to avoid being punched at all – or slapped, kicked, pinched, yanked, grabbed, shoved, elbowed, poked, or any of the other unwanted actions that fall under the definition of “assault.”

Domestic violence is not only specifically banned, separately from assault, in many states; it also comes with additional consequences.  In many states, including Montana and South Carolina, a first domestic violence charge is a misdemeanor.  Once a person is convicted of domestic violence once or twice, however, that person may be charged with felony domestic violence.  Simple assault, on the other hand, is always a misdemeanor.

This increase in penalties for domestic assault reflects a common social understanding: that domestic violence invades the safety, privacy, and intimate well-being of the victim in ways that simple assault does not.  These laws are the product of, if not direct malice, then an entrenched incredulity, a stubborn unwillingness to believe that a household that contains a same-sex couple is really a home at all – as if the best a same-sex couple can hope for is a perpetual jaunt in a personal hostel.  Maybe it is fun to stay at the YMCA, but not when it means a lifelong abuser will never receive more than a slap on the wrist – and only because the genitals of the abuser and the genitals of the abusee are more similar than different.

Since I was working for the prosecutor when I had that tearful conversation with the woman charged with beating her girlfriend back in 2007, there wasn’t much I could do on her behalf except ask the court to provide her with an attorney, which I did – when we talked, at least, she was in no fit emotional state to defend herself, and a pro se defense isn’t something I’d recommend any layperson do anyway.  Since she was one of my last cases, I do not know what happened to her.  I sincerely hope she and her girlfriend got the help they needed, individually or together, and that both found a safe place to live and safe people to care for and to be cared for by.

As a society, we still let same-sex couples – and a great many opposite-sex couples – down on the “safe home and family” front all too often.  We can do better.  We must do better, and reforming our domestic violence laws to treat people of all sexual orientations equally is a simple and sensible place to start.

~*~ Dani
(my apologies for not posting this last year. Sadly, it’s still relevant)