Demagogue

When a state attempts to radically undermine the rights of same-sex couples-- casting the widest net possible-- it's inevitable that some straight people will get entangled as well. However in this case it's unwed victims of domestic violence who are being hung out to dry. From the Plain Dealer:

Ohio's new constitutional amendment aimed at denying special legal rights to gay and unmarried couples also may strip legal protections from thousands of unwed victims of domestic violence.

Legal and victim-advocacy circles are buzzing over motions from the Cuyahoga County public defender's office to dismiss domestic-violence charges against unmarried defendants.

The argument: that the charge violates the amendment to Ohio's Constitution known as Issue 1 by giving spouselike status and protection to victims who live with, but aren't married to, their accused attackers.

"The thing is, you can only get a domestic-violence charge now if you are a wife beater, not a girlfriend beater," said Jeff Lazarus, a law clerk for public defender Robert Tobik and chief architect of the motions to dismiss.

Issue 1 became law on Dec. 1, and none of the cases in Cleveland Municipal and Cuyahoga County Common Pleas courts has produced a judge's ruling yet. But the filings have stunned domestic-violence victims advocates, who expect that the office's novel tactic will start an avalanche of copycat pleadings across the state.

"It's a bad, bad thing," said Cathleen Alexander, director of the Domestic Violence Center in Cleveland. "We're very worried that some victims will not be granted the protection they need because they're not married. That could jeopardize people's lives.

"I think," she added, "that this is consistent with the law of unintended consequences."
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Ohio's quarter-century-old domestic-violence law gives special criminal status to an assault by a family or household member and establishes unique protections for the victim. Courts also have consistently applied it to homosexual couples.

It is one of only two criminal offenses - along with menacing by stalking - that automatically gives the victim access to a protective order to keep the defendant away, and police are obligated to enforce it. Further, a violation of the protective order, or any second offense, "accelerates" misdemeanor domestic-violence charges to a felony.

The law treats anyone "living as a spouse" the same as a spouse when it comes to domestic violence: It defines domestic violence as an attack, or attempted or threatened attack, against a household member, and includes unmarried couples - so-called cohabitants.

Therein lies the rub, the public defender's office motions contend. The new amendment forbids any state or local law that would "create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design . . . of marriage."

Yet, that is exactly what the domestic-violence law does for unmarried couples living together, says Lazarus, a third-year law student who drew up the boilerplate motion to dismiss. The law, he wrote, "clearly creates a legal relationship between unmarried individuals."

"The two just completely butt heads," he said in an interview this week.
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Legal scholars say thousands more could follow. According to the Ohio Domestic Violence Network in Columbus, more than 20,500 people were arrested for domestic violence in 2003 (the most recent year for which figures were available), and courts issued 16,219 protective orders. As many as one in five such cases involves unmarried partners, estimated Nancy Nealon, the network's executive director.

In any such case, defendants' lawyers now may be ethically and legally bound to file a motion to dismiss on the constitutionality grounds, said Tim Downing, a lawyer and gay-rights activist who opposed Issue 1. If the defense succeeds and a defense lawyer fails to use it, he or she could be accused of malpractice.

"It's one of the consequences of passing this amendment that we tried to warn people about," Downing said. "And for whatever reason, the majority of people in the state didn't listen."

What is that famous saying about the law being a big, blunt instrument? Sadly, in this case, it's a very blunt force indeed.