January 21, 2005

Issue 1 used to trump home violence charges

by Anthony Glassman
with wire reports

Cleveland--Predictions that Issue 1 may remove domestic violence protections for anyone outside of a heterosexual marriage might be coming true.

A law clerk with the Cuyahoga County Public Defender’s office, Jeff Lazarus, has created a boilerplate motion to dismiss domestic violence charges against defendants who are not legally married to their accusers.

He cites Issue 1, the amendment to Ohio’s constitution barring same-sex and unmarried opposite-sex couples from the rights and benefits of marriage. The measure was passed by voters on November 2 and took effect December 2.

“The thing is, you can only get a domestic-violence charge now if you are a wife beater, not a girlfriend beater,” Lazarus said.

The motion was filed in at least two cases, one of which will be heard by Judge Stuart Friedman of the Cuyahoga County Court of Common Pleas on January 27. Friedman said that it was a complex issue and that he did not want to rule on it without careful thought.

Ohio’s domestic violence statutes define the crime as one of a number of acts against “a family or household member,” which are defined as “a spouse, a person living as a spouse, or a former spouse of the respondent.”

According to Lazarus and some in the lesbian, gay, bisexual, transgender and progressive communities, Issue 1 forbids granting legal protections to “a person living as a spouse,” thus creating a conflict between domestic violence law and the amendment.

Phil Burress, the head of Citizens for Community Values and the Ohio Campaign to Protect Marriage, two commingled far-right organizations that worked to pass Issue 1, called that reading of the amendment “absurd” in comments to the Cleveland Plain Dealer.

However, foes of the amendment have repeatedly warned of such interpretations, especially given the vagueness and breadth of the measure’s second sentence.

Issue 1 reads, “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.”

Burress was not available for comment for this article. Repeated calls to CCV’s suburban Cincinnati office gave conflicting reports as to when he would return.

While most agree that it is a defense attorney’s duty to use any possible weapon at his or her disposal to get a client acquitted, there is disagreement on whether this tactic will work.

“It’s our position that Issue 1 does not, in fact, preclude domestic violence prosecutions,” said Jeff Gamso, the legal director of the American Civil Liberties Union of Ohio.

“First of all, we want to say that domestic violence, however you define it, and however you define the domestic pairings, is a crime,” he said. “There’s no questions it’s a crime. Whether it’s a crime under the domestic violence law or under assault, it is a crime in the state of Ohio, and that remains true.”

“The second thing is that the ACLU stands foursquare behind the ability to prosecute people who in fact commit domestic violence, however you define it and under whatever statute,” he continued.

“However it plays out, we will see to it,” he noted. “It is a certainty that the people of the state did not intend to encourage domestic violence by passing Issue 1. That was not something that most people who voted for Issue 1 had in mind.”

Gamso also believes that, even if Issue 1 and the domestic violence statutes were interpreted as being in conflict, it should not affect the civil part of the domestic violence law, which automatically allows someone filing domestic violence charges to get a protection order against the person they accuse.

“The restraining order part of the domestic violence statute does not deal with spouses,” he said. “The part that deals with spouses and people living as spouses is the criminal part.”

However, according to Gary Heath, the domestic violence coordinator of the Buckeye Region Anti-Violence Organization, it’s already happening.

“There actually was a municipal court judge in, I believe, New Philadelphia, and he was saying not to bring any petitions for protection orders to him if the couples weren’t married,” Heath noted.

“Will there be a judge here or there that says that?” asked Gamso. “There’s always going to be some goofy judge who buys some cockamamie argument. I think you will find judges saying just the opposite.”

“This is something that we were concerned about prior to passage of Issue 1, so these actions aren’t really surprising us,” said Gloria McCauley, executive director of BRAVO. “Distressing us, but not surprising us.”

Openly gay attorney Tim Downing, one of the organizers of Ohioans Protecting the Constitution, the group that fought against Issue 1, warned during the campaign that situations like this could come about if the amendment were passed.

“I’m not at all surprised that the public defender’s office has filed these motions,” Downing said. “We said all along and told people in every debate we ever had, every appearance we made, that this could be one of the ramifications of passage.”

“I don’t blame the public defender’s office for filing these motions because they have a responsibility to defend their clients,” Downing continued. “They had no choice but to file this, and now the courts will have to decide how this plays out.”

Unlike Gamso, Downing believes that Issue 1 will decimate domestic violence protections for unmarried couples.

“I think the prosecution is going to have a hard time arguing this. I don’t know how the state responds that this domestic violence statute trumps the Ohio constitution. Their only argument is that this wasn’t the intent of the amendment,” Downing said.

He continued, “This is pure speculation on my part, but I think there is a very good chance that these petitions will be granted. At least one of those judges that these are before will grant the motion, and the minute that happens, there will be an appeal. At that point in time, the constitutionality of Issue 1 will be ripe for adjudication and it will be for the Ohio Supreme Court to decide.”

Gamso added, “If the Ohio Supreme Court says yes, that we think this does make it impossible to prosecute domestic violence cases and issue protection orders when needed, I certainly am prepared to argue that Issue 1 is unconstitutional on its face.”

According to Lazarus’ comments to the Plain Dealer, that is one of the underlying reasons for the motions.

“Personally, when I was brainstorming this, it was with an eye toward, ‘How could we make this amendment look not so good?’ ” he said.

An attorney in Utah attempted to use a similar motion in early November, since Utah’s amendment is very similar to Ohio’s. However, the motion was filed before the amendment took effect.

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