The Court struck portions of South Carolina’s domestic violence statutes as unconstitutional because they violate the Equal Protection Clause as to same sex couples. The Court’s decision as it stands will continue to deny protection to same sex couples at the expense of denying protection to all unmarried couples who do not have a child in common.
Do Domestic Violence Laws Protect Me if I am Not Married?
South Carolina’s criminal domestic violence (CDV) statute and a companion domestic violence statute that allows family court judges to issue protection orders protect “household members.” Each statute defines household member as persons who are married, persons who used to be married, persons who have a child together, or male and female couples who either live together or formerly lived together.
The definition excludes same sex couples who are not married, and this is why the Court has declared that it violates the Equal Protection Clause. Under the current law, you can seek a protective order or you could be charged with CDV even if you are not married if you live together or used to live together. Unless you are a same sex couple.
Last week’s decision by the Supreme Court would “throw out the baby with the bath water” by denying protection to all unmarried couples who do not have a child together. It effectively denies protection to unmarried same sex couples by denying protection to all unmarried couples equally.
South Carolina’s CDV Laws Discriminate Against Same Sex Couples
Domestic Violence is almost always framed as violence against women. Specifically, heterosexual women who are terrorized by their heterosexual male partners. The laws are designed to protect this specific subgroup, and CDV advocates such as Kristen Rand of the Violence Policy Center have also framed CDV as violence against women. For example, in 2015, Rand stated that South Carolina needs to do more “at the federal and state levels to protect women from abuse and prevent future tragedies.”
Prior to 1994, South Carolina’s CDV statutes defined household member as “persons cohabiting or formerly cohabiting.” The legislature amended the definition in 1994 to exclude same sex couples by changing the word “persons” to “male and female” cohabiting or formerly cohabiting. Because same sex marriage was illegal at the time, this effectively excluded all same sex couples from the protections of South Carolina’s CDV statutes.
Last week’s Supreme Court decision continues South Carolina’s history of discrimination against same sex couples. If this decision stands, same sex couples are still excluded from protection against domestic violence at the expense of also excluding all other unmarried couples from protection.
Can I Get My CDV Case Dismissed Based on Doe v. State?
Not yet. The Supreme Court issued an Order staying their decision until they have heard a motion to reconsider that was filed. The Court basically had three options:
- They could strike the unconstitutional portion of the statute which would result in the dismissal of all pending criminal CDV cases based on cohabitation and would prohibit any person from seeking an Order of Protection based on cohabitation alone.
- They could declare the statute unconstitutional as applied to the plaintiff in this case. This was the solution that Chief Justice Beatty recommended in a separate opinion. It would preserve all pending CDV cases and it would leave no question that same sex couples are entitled to ask for protective orders in the family court.
- They could do nothing. Justice Few, in a dissenting opinion, declared that the statute is not unconstitutional because it does not exclude same sex couples from its definition. Of course, this ignores the fact that the lawsuit was filed because a family court judge denied the plaintiff’s request for a protective order because she was in a same sex relationship.
What Will Happen Now?
If the Court does not reconsider and amend their decision, we will gladly move to dismiss all our pending CDV cases that are based on cohabitation. As a matter of policy, however, it makes more sense for the Court to reconsider and extend domestic violence protections to same sex couples instead of denying domestic violence protections to even more people.
If you are facing CDV charges in the Myrtle Beach, Conway, Charleston, or Columbia areas, we are here to help. Schedule a free consultation to discuss the facts of your case by calling (843) 488-5000 or filling out our online form.
