Domestic Violence Law Loophole

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Most states, 44 in all, have laws or amendments banning same sex-marriage, but legal analysts say Ohio's, approved last November, is one of the broadest - so broad that its now being used to get men accused of domestic violence off the hook.

Case Western Reserve University Law student Jeff Lazarus came up with the novel defense while working as a clerk in the local Public Defender's office. He noticed that the amendment - forbidding recognition of legal relationships between people who aren't married - contradicted the state's domestic violence laws that do recognize certain non-married relationships.

Jeff Lazarus: I pulled out the statute book and I said, you know, domestic violence itself is creating a relationship between unmarried individuals. It allows people to be living as a spouse without actually being married in order to create domestic violence, and the amendment clearly says that you can't do that anymore.

A few weeks ago, the public defender's office tried out the 25-year-old's defense and it worked: Cuyahoga County Common Pleas Judge Stuart Friedman ruled that Ohio's domestic abuse laws are in some respects unconstitutional in light of the new marriage amendment. Cuyahoga County 1st Assistant Prosecutor Bob Courey says his office is appealing that ruling.

Bob Courey: There is no evidence that suggests that the voters intended to strike down the domestic violence law when they passed Issue 1 and I think it's fair to say that there is no, there's no natural collision of the two meanings and as a result they can coexist and should coexist.

The prosecutor calls Lazarus's defense an attack on the constitutional amendment. Courey says it was an attempt to cast Issue 1 in an ill light and therefore should have been dismissed as frivolous.

Bob Courey: You're supposed to represent your client in his or her best interest, and not bring any other political agenda's into the litigation of any case.

But Case Western Reserve University Law Professor Lewis Katz sides with Lazarus.

Lewis Katz: I think that they're wrong, I think that they're being unfair, I think they're striking out. Obviously he was representing the public defender's client because the argument has worked in that case.

Phil Burress is with the Ohio Campaign to Protect Marriage, the group responsible for placing the amendment on the ballot. Burress says gay marriage advocates are just using the domestic violence issue to gain support to repeal an amendment they don't like.

Phil Burress: You know it's a pebble in the ocean, and the people who are opposed to Issue 1 are trying to make it into a big deal. Issue 1 is not causing any problems, people understand marriage is between one man and one woman.

But the women at one of Cleveland's domestic violence shelters say if the amendment continues to clash with domestic violence laws, it will cause big problems.

The city's unassuming safe haven is noisy today with Moms and their children coming and going. But the shelter offers respite to a woman from the area who says her live-in boyfriend tried to choke her to death five weeks ago. The black 61-year-old says with a weary smile that she never thought she'd be in a shelter at her age. Fearing retribution from her attacker, she spoke to NPR on the condition that it withhold her name. She worries that the legal discrepancy might make it impossible for her to get a restraining order, and could reduce jail time for her boyfriend if he's convicted, because assault charges aren't considered as serious as domestic violence charges.

Unidentified woman: It's sort of like... I see it as a way for him to get a little mercy where as I didn't. And especially when you're almost murdered, it just doesn't seem right. It's not right.

Cleveland's Domestic Violence Center Director Cathleen Alexander is among those calling on Ohio's politicians to fix the law before it's too late.

Cathleen Alexander: Our worst fear is that victims could be seriously injured or even killed, as we're figuring this out, because they won't have the protections afforded them by the domestic violence statute.

It's likely that the Ohio Supreme Court will end up deciding the issue, but abuse victim's stress that decision should come sooner rather than later. For NPR news, I'm Janet Babin, in Cleveland.

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