The Domestic Violence Debate on Amendment One – You be the judge

Some say there are two sides to every debate.  There may be at least four sides to the debate about whether domestic violence protections will be impacted by Amendment One.

Tonight there was an Amendment One forum at Spirit Square in Charlotte sponsored by the Foundation for the Carolinas.

Believe it or not, it was a civil discussion.

One of the presenters, Mecklenburg County Chief District Court Judge Lisa Bell, presented one side, with an excellent overview of the domestic violence issues relating to Amendment One.  She explained the NC law of domestic violence, and how the focus is on personal relationships, rather than marital relationships.

Judge Bell also discussed the Ohio experience with domestic violence after Ohio adopted a marriage amendment, including the number of Judges who ruled that domestic violence statutes were unconstitutional after the amendment was adopted and how the issue wasn’t resolved for three years until the Supreme Court of Ohio said otherwise.  She explained that the language of Amendment One would require interpretation by judges across the state.  Some could rule one way.  Some could rule the other.  No one knows what the outcome will be in particular cases in the trial courts or on appeal.

Yesterday, the group promoting Amendment One, presented another side, when it took an adamant stand that clarity exists on this issue, based on the opinions of some district attorneys, lawyers and sheriffs in the state.

Here is how Tami Fitzgerald, head of the group that likes to call this amendment a vote for marriage, presented the issue.

From: Info@VoteFORMarriageNC.com Sent: 5/1/2012 6:18:33 P.M. Eastern Daylight Time Subj: Domestic Violence Claims: REFUTED

Dear Marriage Supporter,

This morning, a group of District Attorneys, law professionals, and law enforcement officers joined forces to squash the lies circulating from those in opposition to the Marriage Protection Amendment. They stoutly rebutted the claims of our opposition and made it clear –  the amendment will not impact domestic violence protections for North      Carolina citizens.

The leader of the press conference, Rockingham County District Attorney Phil Berger, Jr., said, “[R]eason and common sense seems to be lost in this debate.” Berger described the oppositions’ falsehoods  as “a parade of horribles.” The legal professionals attending the press conference affirmed the truths of North Carolina State Law 50b and 50c.  Phil Berger, jr., summed it up by saying, “[T]his Amendment will have no impact on domestic violence prosecution.”

Jeff Hunt, a District Attorney from Henderson,  Polk, and TransylvaniaCounties said,  “I urge the public to take a look at this. Do not fall for false analyses. I am amazed that these claims are even being made by lawyers,  but I can assure you that the Amendment does not weaken our protections of children. It does not weaken the 50b and 50c protections. It does not  weaken domestic violence protections in any way.”

The following legal professionals have signed on to a joint statement affirming the truths behind the Marriage Protection Amendment:

Phil Berger Jr – DA, Prosecutorial District #17A   (RockinghamCounty)  Locke Bell – DA, Prosecutorial District #27A (Gaston County)  Wallace Bradsher – DA, Prosecutorial District #09A  (Caswell and PersonCounties)  Raven Byrne – Family Law Attorney (Wake County Garry Frank – DA, Prosecutorial District #22B (Davidson and DavieCounties)     Jay Gaither – DA, Prosecutorial District #25 (Burke, Caldwell and Catawba Counties)       Jeff Hunt – DA, Prosecutorial District #29B (Henderson, Polk, and Transylvania Counties), Sheriff  Terry Johnson – Alamance County  Tom Keith – Fmr. DA, Prosecutorial District #21 (Forsyth County),  John Snyder – Fmr. DA, Prosecutorial District #20B (Union County)  Jerry Wilson – DA, Prosecutorial District #24 (Avery, Madison, Mitchell, Watauga, and Yancey Counties) Sheriff  Carey Winders – Wayne County  Paul Wright – Fmr. Superior Court Judge

Thank you for continuing the fight for the truth behind this Amendment.  We need strength and courage now more than ever. Thank  you to the above signers for leading that charge so successfully.

Sincerely,

Tami Fitzgerald, Chairwoman       Vote FOR Marriage NC

Transition now to a third side of this debate, where an article was posted on the website that opposes Amendment One.

The Protect ALL NC Families coalition has released their third ad opposing the amendment that would add the following language to the North Carolina constitution:

Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.

It revisits and reinforces the message the first ad unveiled a week ago. In that ad a survivor of domestic violence discussed her fear of the Consequences Amendment One’s passage may have on her safety and that of her daughter.

Proponents of the bill continue to call the danger to domestic violence laws “lies” but thus far no one other than their three paid hired legal guns-for-hire “experts” seems to be agreeing with them. Their “experts” practice in the areas of international law, military litigation, free speech, church and state issues. None of them appear to have any experience in family, criminal litigation, or constitutional law.

Featured in the newest ad is Assistant District Attorney Amily McCool, who can rightfully be described as an “expert” on this subject, having handled hundreds and hundreds of cases of domestic violence prosecutions for Wake County, North Carolina.

In particular, McCool often relies on domestic violence law N.C. Gen. Stat. 50B-1 (2009). That statute reads:

For purposes of this section, the term “personal relationship” means a relationship wherein the parties involved: (1) Are current or former spouses; (2) Are persons of opposite sex who live together or have lived together; (3) Are related as parents and children, including others acting in loco parentis to a minor child, or as grandparents and grandchildren; (4) Have a child in common; (5) Are current or former household members; (6) Are persons of the opposite sex who are in a dating relationship or have been in a dating relationship.

At issue: will defense attorneys be able to argue the state cannot “recognize” many of these relationships for the purposes of prosecuting crimes? No one knows. Every law professor in North Carolina says it’s possible. Roy Cooper, NC’s Attorney General called the law“unclear, unwise and unnecessary” and said it “will also result in a significant amount of litigation on many issues which will be decided by courts for years to come.”

We do know the state of Ohio spent several years arguing about this very issue while 27 men were able to get their charges overturned or dismissed.

If anyone is an “expert” on domestic violence law, I would think it would be McCool who works with these laws day in and day out.

Another expert is Elizabeth Froehling, executive director of North Carolina Coalition Against Domestic Violence. Froehling wrote in Durham, NC’s Herald-Sun: “Amendment One: A real danger to domestic violence victims.”A sad, and (to me) surprisingly high statistic is that 50,000 North Carolinians seek domestic violence services each year.

In Virginia, where a similar amendment was considered and subsequently passed, domestic violence programs frantically tried to come up with ways to get more victims into shelters because victims could no longer access protective orders that kept them safe in their own homes. Our state will see the same problem. An increase in the need for shelter by unmarried victims of domestic violence means more money spent on sheltering while abusers are allowed to stay in their homes. It also means that already strained shelter programs may have to turn away victims fleeing abuse.Proponents of the amendment say its passage won’t negatively impact domestic violence victims. But we know the far-reaching harmful consequences are a real possibility. In Ohio, after the passage of an amendment less restrictive than the one being considered in North Carolina, defense attorneys successfully argued that domestic violence laws did not apply for unmarried people because the state’s Constitution didn’t recognize a special status for unmarried people in a marriage-like relationship.

It’s striking that proponents of the bill seem so blithely unconcerned about 50,000 families who need the protection of the state from their abusive, but unmarried, partners.

McCool previously framed this topic with a very sharp point:

Amily McCool, Asst DA of Wake Co: #Amendment1 would mean victims of domestic violence would have to marry their attacker for protection

Now let’s pick up with the fourth side of this debate, with a recent article by Suzanne Reynolds, a family law professor at Wake Forest Law School.

Amendment One and the Law of Domestic Violence

On Tuesday, May 1, a dozen current or former district attorneys, judges, lawyers, or law enforcement personnel issued a statement about Amendment One, claiming that if it passed, it would have no impact on the law of domestic violence.   At the press conference on the statement, the spokesperson referred to “false and misleading” claims about the Amendment and the law of domestic violence.   Since I have spoken and written about Amendment One and its potential impact on domestic violence, I’d like to explain why I conclude that the threat is real.

The statement issued on May 1 correctly points out that the law of domestic violence currently protects both married and unmarried couples who live in the same household.  Pointing out what the law does now, however, completely misses the point.  What I am afraid of occurs only if Amendment One passes.

Unlike other law protecting us from criminal conduct, domestic violence law requires that the victim and batterer have a “personal relationship.”  We learned by tragic experience in this country and state that the more general law of assault and battery simply is inadequate to address the very different threat of violence in the home.  Before someone is entitled to the extraordinary relief that the law of domestic violence provides, however, the victim must have a “personal relationship” with the batterer.  Currently in North Carolina, a victim may invoke the law of domestic violence for her protection even if that “personal relationship” is an unmarried relationship – between persons of the same or different sexes.

But if Amendment One passes, the state constitution ties the state’s hands:  the state will be constitutionally forbidden from recognizing an unmarried relationship as a valid “domestic legal union.”   If a batterer lives with his victim – of the same or different sex – he will surely argue that the victim lives in a domestic union that the state constitution declares is no longer legal.  Consequently, she must rely on the law of assault and battery – law that we already know is inadequate to the special vulnerability of someone who is battered in the home.

Why am I so certain that batterers will raise these arguments?  Because in states with marriage-related amendments, they already have.    The domestic violence laws of these other states, like the current domestic violence law of North Carolina, protected persons who were unmarried.  But after the state passed a marriage-related amendment, batterers argued that the amendment restricted domestic violence protection to married victims and batterers.

Eventually the appellate courts of both states concluded that the wording of the constitutional amendments did not prevent the state from continuing to use domestic violence law to protect victims in unmarried relationships.  But, both of those amendments were much narrower than the breathtakingly broad Amendment One.  In both states, the marriage-related amendments restricted the state only from creating a status that approximated marriage.

That is not what Amendment One does.  Amendment One tells the state of North Carolina that no domestic union except marriage is legal or valid.  Perhaps the leadership of Amendment One wishes that it had not proposed an amendment with such far-reaching potential consequences.   But that’s the Amendment on the ballot.

If the group that spoke on May 1 thinks that the claim I just described is false, let me explain that family law professors at every law school in the state agree with me.  I respect the group who spoke on May 1, but their job is different from the job of a family law professor.  The job of family law professors includes speaking up when laws pose unintended harm to the family.  And for family law professors, no matter how a person’s family came into being, all members of that family deserve the most effective law the state can provide to keep them from being beaten.

In the experience of other states, eventually the appellate courts determined that the marriage-related amendment allowed the state to continue to use its law of domestic violence for victims in unmarried relationships.  If Amendment One forces the issue, I will certainly argue that our much broader amendment nevertheless allows the state to continue to recognize unmarried relationships as “valid” for purposes of domestic violence protection.  But I don’t know if that argument will prevail, and with all due respect, neither does the group that appeared on May 1.

At a minimum, we can expect that the law will be unclear for a period of time, a period of time during which victims of domestic violence will be at greater risk.  I’m not willing to tolerate that risk, and I hope a majority of the voters of North Carolina aren’t either.

Suzanne Reynolds

So, after hearing all four sides of this discussion, the answer to this riddle should be as clear as the proverbial bell, right?

Well, no.  Judge Bell didn’t issue a ruling on the question.  And while Vote For said there will be no effect, Vote Against said there will be a problem.  And the law professor said there might be an issue, and she is awfully concerned.

All of which gets us back to where we started.

This issue would not exist if the legislature had kept the focus on “marriage”, rather than on the term”domestic legal union”.  If they had done so, the “against” side would have no argument on this issue, and the “for” side would be voting on what it claims to be voting on now, marriage.

Just to be clear, what I mean is that if the legislature had gone with the House Bill, saying that marriage between one man and one woman shall be the only “marriage” recognized in the state, then other domestic legal unions would not be subject to attack.

I have no idea how this issue will be sorted out in the Courts, but as the Ohio experience shows, it could take a while.

So you be the judge. But when you have ruled, keep in mind that we won’t know whether you are right, at least for several years to come.

All of which presents the possibility for problems along the way.  One way to be certain that problems won’t occur is to make the legislature bring us a better law to vote on.

One way to do that is to Vote No on the one they just brought us.

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5 Responses to The Domestic Violence Debate on Amendment One – You be the judge

  1. In the Army we call this particular condition “Clear as mud”. Usually when something important is Clear as Mud, it has the disproportionate ability to be manipulated by the majority or the creator of the situation. That should never be the case when it comes to the constitution, state or federal. Law in and of itself is always going to be subject to interpretation based on wording and current leanings from a constitutional perspective, but laws are easier to overturn or adjust than is a constitutional amendment. They should never be vague or interpretational. This is not the 18th century, we should have learned by now that leaving anything up for interpretation, especially from a constitutional perspective is no good. We can speak plainly and clearly leaving no room for the interpretation of a politically motivated judge. The highest court in the land, the final say for constitutional issues, tries to interpret the intent of men who died close to 200 years ago and quite frankly they are split upon party lines rather than the impartial group they should be. My point, if the best we can do years down the road is to hope we can correctly interpret the intent of legal and constitutional frameworks, then we have faile as a state and nation.

    Mark

  2. Melissa says:

    I’m no lawyer, and I am firmly against Amendment One, but I believe there is a major flaw in the reasoning that Amendment One will remove domestic violence protections from unmarried couples. While I do see the potential that a judge might try and say that anything other than marriage is an illegal domestic union, the problem is that NC law does not appear to restrict domestic violence to just those living together “as if married”. It also applies to “current or former household members” and “persons of the opposite sex who are in a dating relationship or have been in a dating relationship”, which is not the case in Ohio or Virginia. So, anyone living together, whether as a couple or as roommates, and any opposite sex couple, even if just dating (and thus not in any sort of domestic union, legal or otherwise) would still be covered.
    Like I said, I’m not a lawyer, so there may be case law that contradicts my reasoning, but if so, I would very much appreciate someone sharing that info. Because if not, then we give the “pro” crowd credibility in saying that the arguments against the amendment are false. If they can show that “we” are distorting the truth or being deceptive, even for just 1 argument, then it can call into question the validity of the rest of our reasons in the minds of those who may still be undecided.

    • Melissa: Your analysis is a good one, which is why I have not said in my posts on the domestic violence issue that the amendment definitely will invalidate domestic violence laws in the end (who knows how each of our over 250 district court judges will rule along the way). If I were taking the case as a lawyer, the better argument is in my opinion that amendment one should not effect domestic violence protections. My point has been that the issue didn’t even need to be one to be concerned about if the language had stayed focused on marriage, rather than domestic legal unions. Given your analysis, you might think about law school.

  3. Queermaster says:

    woah woah woah. did you just list “felon” and “adulterer” alongside “athiest” and “agnostic?”

    • Didn’t do it with the thought it may suggest. Already commented to another reader on how I should have worded it instead. That is, you don’t have to be religious to get married and you can get married if you are a felon, etc. Obviously, one’s religious preference or lack thereof is unrelated to whether someone is a good citizen. Thanks for pointing it out.

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