Context for the Recent Ohio Court Decision Invalidating its Domestic Assault Statute in regard to the Unmarried

March 25, 2005

As a service to those understandably aghast at a recent Ohio state court decision that Ohio’s recent constitutional amendment against gay marriage means unmarried persons cannot be considered victims under Ohio’s domestic violence statute, here’s some resources and context.

First, for those of you who don’t know what I’m talking about, here’s a good short Associated Press item: "Judge: Ohio Gay Marriage Ban Affects Law".  Also, one can find further discussion on the blogs Feministing and Matthew Yglesias.

Second, for those of you who wish to go straight to the source, the judge’s decision is available here.

State of Ohio v. Frederick Burk, Court of Common Pleas, Cuyahoga County, Case CR462510

Third, for those of you who don’t want to peruse the whole decision, I think the following excerpt accurately depicts the judge’s tremendous unhappiness with the decision he felt it necessary to render:

{¶23} This Court is fully aware that judicial restraint compels it to avoid deciding constitutional issues “unless absolutely necessary.” … Consistent with that principle, the Court has sought to find a way that the definition of “family or household member” set forth in R. C. §2919.25 [i.e., Ohio’s domestic violence statute], and refined through a quarter-century of case law, could be reconciled with the equally explicit language of Art. XV, §11, of the Ohio Constitution [i.e., Ohio’s recent constitutional amendment regarding the definition of marriage].  It is, therefore, with the greatest reluctance that this Court must find that the two simply cannot be rendered compatible without distorting the plain meaning and clear intent of one or the other.

Fourth, for those of you who believe this case marks a new low in despicable criminal defenses and one that could only have been conceived by a "lower-than-low lawyer" (to use Jessica’s favored phrasing at Feministing), the following bit of context should be noted.  According to ¶25 of the judge’s decision, the Ohio state prosecutors explicitly argued that the instigator of the defense strategy to invoke Ohio’s new constitutional amendment defining marriage was a law student who desired to discredit this amendment.  Of course, y’all are free to consider this law student and the defense lawyers who took the suggestion as "lower-than-low" for their willingness to use a battered woman as a prop to score political points.  I only add this context to make the point that the defense team’s besetting sin likely wasn’t any stereotypical obsession with winning cases, no matter the means or the cost. 

Fifth, for those of you worried that it will now be impossible to prosecute repeat acts of domestic violence falling below the standard of aggravated assault as felonies, worry not.   It is quite likely that the law will be changed—not the amendment that has so strictly defined marriage, alas—but rather the domestic violence statute.   See this Associated Press article: "Changes Expected for Domestic Violence Law, Not Gay Marriage Ban".

Sixth and finally, for those wondering about the extent of domestic violence in the US, my quick perusal of the research literature leads me to conclude that the most extensive attempt to conduct a survey to estimate the extent of domestic violence remains the 1995-1996 National Violence Against Women Survey (NVAWS).   For example, the 2003 Centers for Disease Control report Costs of Intimate Partner Violence Against Women in the United States depends critically on this 1995-1996 data, stating "this report reflects the most appropriate, reliable data currently available about the costs associated with I[ntimate] P[artner] V[iolence]" (bottom of page 15). The main points of the NVAWS in regard to prevalance according to this Centers for Disease Control Study are:

  • " Of the female NVAWS respondents, 7.7% had been raped by an intimate partner at some point in their lifetimes; 0.2% reported intimate partner rape in the past 12 months."
  • " The NVAWS found that 22.1% of women had been physically assaulted by an intimate partner at some time in their lives, and 1.3% reported such an event in the 12 months preceding the survey. … Women who were physically assaulted by an intimate partner in the previous 12 months experienced an average of 3.4 separate assaults."

[Personal note: I wrote a couple weeks ago that I wasn’t blogging much of late due to a battle with laziness.   I’m happy to say that battle’s been largely won.   Alas, the battle with being so digusted by current events—more specifically, the battle to formulate a response better than "You gotta be f$#%ing kidding me!"—has not yet been won.   I was simply compelled to post on this issue since I loathe men who hit women.]


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