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Thread: Is it "domestic violence" if the couple isn't married?

  1. #1
    MarsArmyGirl RosieRed's Avatar
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    Is it "domestic violence" if the couple isn't married?

    Ohio's gay wedding ban tested

    By M.R. Kropko
    Associated Press

    CLEVELAND -- Darnell Forte is accused of slapping a woman he lived with.

    To try to get a domestic violence charged overturned, his lawyer has raised a wider issue, claiming a conflict between Ohio's new constitutional amendment defining marriage and the state's domestic violence law.

    Opponents of the amendment banning gay marriage, among the nation's broadest, feared the measure would be used to try to curtail all sorts of rights for unmarried people, and they say the domestic violence case in Cleveland is one such attempt.

    "What's at stake goes beyond the issue of gay marriage, it's whether or not a state constitutional amendment can strip Ohio people of basic protections," said Heather Sawyer, senior counsel in Chicago for Lambda Legal, a national gay rights organization.

    The case is being watched nationally because of the precedent that could be set if the domestic violence charges are thrown out. Forte's lawyer argues his client cannot be charged with the felony because domestic violence charges should be reserved for married couples under the state's law defining marriage, which won 62 percent of the vote in November.

    A ruling expected Feb. 18 in the Forte case would be the first for the issue that is the subject of at least 11 similar motions in the Cleveland area.

    The American Civil Liberties Union of Ohio and the Ohio Domestic Violence Network, a statewide coalition of service providers for domestic violence victims, say the domestic violence law helps victims get quick protective orders that may not be possible if a person is charged with assault.

    The domestic violence law "is not creating a marriage. It is creating safety and justice for victims of domestic violence," said Nancy Neylon, executive director of the Domestic Violence Network.

    The ACLU filed a brief against Forte's charges being overturned.

    Forte's lawyer, assistant public defender David Magee, claims in the motion filed in Cuyahoga County Common Pleas Court that applying the domestic violence law to unmarried people conflicts with the marriage amendment's wording.

    The amendment prohibits any state or local law that would "create or recognize a legal status for relationships of unmarried individuals." Ohio's 25-year-old domestic violence law is not limited to married people.

    At least one similar legal issue arose in Utah, which has a new marriage amendment similar to Ohio's.

    The Third Judicial District Court in Salt Lake City in January denied a motion attempting to drop domestic violence charges in a case involving an unmarried couple based Utah's marriage definition.

    John Martin, appeals supervisor in the Cuyahoga public defender's office, said the motions seeking to overturn the domestic violence charges are a specific defense strategy, not an attempt to diminish Ohio's constitutional amendment.

    But Licking County Domestic Relations Judge Russell Steiner said the potential conflict between the amendment and the statute has already caught the attention of judges across the state.

    "I think it will make its way up to a (state) court of appeals, but whether or not it gets to the (Ohio) Supreme Court is hard to say. It has to start at the trial court level, so what is happening in Cuyahoga County appears to be a first step in that regard," Steiner said.

    Christi Goodman, an attorney at the Denver-based National Conference of State Legislatures, said she is skeptical other states would take note of the case unless it reaches the Ohio Supreme Court.

    However, the Cuyahoga case has potential to alert defense lawyers outside of Ohio to look for a similar strategy, said Alexandria Ruden, a family law expert with the Cleveland Legal Aid Society. Ruden helped write Ohio's domestic violence statute.

    The motion "seems to me to be a terrible stretch of the law," she said. "The claim is that you cannot as an unmarried individual have a protection order, because that is what married people are allowed to have."

    Phil Burress, president of Cincinnati-based Citizens for Community Values, a public policy organization that was a major proponent of Ohio's gay marriage ban, said the amendment only defines marriage and was never intended to change the state's domestic violence law.

    If courts agree to drop domestic violence charges, Burress said his organization would lobby Ohio lawmakers to change the domestic violence statute.

    "We would fix the law and make sure the penalty for domestic violence is the same against everyone. It's a crime. Physical abuse is illegal, period. I don't see how you can beat up someone living with you and get away with it," Burress said.

    Gay rights groups campaigned against the marriage amendment, saying it could unintentionally harm unmarried people's rights or benefits in other areas such as inheritances, hospital visitation and property ownership.

    The groups have said they hope the domestic violence case may lead to the entire amendment being challenged in court.

    Seventeen states have constitutional language defining marriage as between a man and a woman.

    Ohio's bans civil unions and legal status to all unmarried couples in addition to gay marriages.

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  3. #2
    Member TeamCasey's Avatar
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    Re: Is it "domestic violence" if the couple isn't married?

    Wow! I would have never thought domestic violence had anything to do with if people were married or not. Don't these people watch COPS?

    I just thought it meant violence within the home. (Be it siblings, couples, etc.)

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    Dunnilicious creek14's Avatar
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    Re: Is it "domestic violence" if the couple isn't married?

    Quote Originally Posted by TeamCasey
    I just thought it meant violence within the home. (Be it siblings, couples, etc.)
    It does. But if you are such a small person you have to hit a person then you would be small enough to try to find a sleazy way to worm out of the charges.

    Oh, and Rosie, I like plain. You can bring them to ST.
    Will trade this space for a #1 starter.

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    Member Red Heeler's Avatar
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    Re: Is it "domestic violence" if the couple isn't married?

    Let me start by saying that I detest domestic violence. A man who would beat up a woman or child is among the lowest forms of life on the planet.

    However, it looks like the lawyers are right in this case. The following are the Ohio contitutional amendment and part of the domestic violence law.

    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.
    (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.
    The bolded part of the domestic violence law does appear to violate the constitutional line "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."

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    Re: Is it "domestic violence" if the couple isn't married?

    So if it not "domestic violence" its still "aggravated assault". Whatever you call it the perp should be getting to know the inside of a jail cell.

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    Member Marty and Joe's Avatar
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    Re: Is it "domestic violence" if the couple isn't married?

    Quote Originally Posted by Phoenix
    .... Whatever you call it the perp should be getting to know the inside of a jail cell.
    Exactly. I'm tired of lawyers looking for loopholes around right and wrong.

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    Hey Cubs Fans RFS62's Avatar
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    Re: Is it "domestic violence" if the couple isn't married?

    Quote Originally Posted by Marty and Joe
    Exactly. I'm tired of lawyers looking for loopholes around right and wrong.

    Right and wrong get lost in the shuffle these days. Win or lose has taken their place.
    "Twenty years from now you will be more disappointed by the things that you didn't do than by the ones you did do. So throw off the bowlines. Sail away from safe harbor. Catch the trade winds in your sails. Explore. Dream. Discover."
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    Puffy 3:16 Puffy's Avatar
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    Re: Is it "domestic violence" if the couple isn't married?

    Quote Originally Posted by Phoenix
    So if it not "domestic violence" its still "aggravated assault". Whatever you call it the perp should be getting to know the inside of a jail cell.
    Wrong.

    During an aggravated assault a person is arrested and then has a first appearance and then usually released on bail.

    Domestic Violence injunctions mean that a person cannot go within 500 feet of the individual without threat of being arrested. Aggravated assault carries no such stipulation once released on bail while awaiting trial.

    Further, domestic violence is sooooooooooooo much more than hitting a spouse or a living companion. Its verbal abuse, its threats, its anything which puts a person in fear of imminent bodily harm. This case threatens whether a woman can extend an injuntion behind the temporary stage and is worse than so many of you are realizing.

    And by the way, I only represent victims of domestic violence in injunction hearings - but we have represented gay people and unmarried people of all ilk. And it would be foolish if those people could not get injunctions just because they don't have a piece of paper which says they are married.
    "I came here to kick ass and chew bubble gum... and I'm all out of bubble gum."
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    Member Red Heeler's Avatar
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    Re: Is it "domestic violence" if the couple isn't married?

    Quote Originally Posted by Puffy
    And it would be foolish if those people could not get injunctions just because they don't have a piece of paper which says they are married.
    I could not agree more. There is a poetic and bitter irony in the fact that a hateful law winds up helping those who have committed a far worse act than those which the law was supposed to "protect" against.

    Quote Originally Posted by Marty and Joe
    Exactly. I'm tired of lawyers looking for loopholes around right and wrong.
    A defense lawyer's job is to provide legal counsil to their client. In this case, the law under which the client was charged is (potentially) unconstitutional.

    Was it right to pass a constitutional amendment which took away citizens rights in the first place?

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    Re: Is it "domestic violence" if the couple isn't married?

    Does anyone think there is much of a difference when its violence? If you're doing the beating you should get a jail cell...domestic violence, assault, whatever. No one should be the victim of violence, whether its a stranger on the street or someone in their own home. You commit violence on another you get a jail cell.

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    Hey Cubs Fans RFS62's Avatar
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    Re: Is it "domestic violence" if the couple isn't married?

    Quote Originally Posted by Phoenix
    Does anyone think there is much of a difference when its violence? If you're doing the beating you should get a jail cell...domestic violence, assault, whatever. No one should be the victim of violence, whether its a stranger on the street or someone in their own home. You commit violence on another you get a jail cell.


    There's a lot more too it than that in domestic violence. If a stranger assualts you, you're not likely to let it slide.

    If your partner does, it often goes unreported. The dynamics are totally different.

    We're evolving as humans, but the idea that women are the possessions of men goes back to cave man times, and we've still got a lot of neanderthals around.

    I guess you could make the point that sleazy legal manuvers like this one expose the fallacies of the laws they twist, and in the long run it's for the best.
    "Twenty years from now you will be more disappointed by the things that you didn't do than by the ones you did do. So throw off the bowlines. Sail away from safe harbor. Catch the trade winds in your sails. Explore. Dream. Discover."
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    Re: Is it "domestic violence" if the couple isn't married?

    Quote Originally Posted by Puffy
    Wrong.

    .

    Help me understand. You don't think a perp should see the inside of a jail cell or is it not assualt?

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    Re: Is it "domestic violence" if the couple isn't married?

    Quote Originally Posted by Phoenix
    Help me understand. You don't think a perp should see the inside of a jail cell or is it not assualt?
    That isn't what he said.

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    Member Red Heeler's Avatar
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    Re: Is it "domestic violence" if the couple isn't married?

    Quote Originally Posted by Phoenix
    Help me understand. You don't think a perp should see the inside of a jail cell or is it not assualt?
    Domestic violence laws provide more protection for the victim than assault laws. Yes, the perpetrator should see the inside of a jail cell no matter what you call it. However, the victim is much better off if it can get classified as a domestic violence. What Puffy is trying to say is that it is a big deal from the victim's standpoint which way the perpetrator gets charged.

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    Re: Is it "domestic violence" if the couple isn't married?

    Isn't there an old saw that goes something like: when your client is innocent, argue the case; when your client is guilty, agrue the law?

    Rem


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