Domestic Violence Protections at Risk With Amendment, Legal Experts Argue

There are 22,000 protective orders issued by the Virginia courts every year aimed at stemming domestic abuse and violence, and legal experts are concerned that if Question One on the Nov. 7 ballot, the so-called “Marriage Amendment,” passes, thousands of them may be denied in the coming period.

The vague language of the proposed Constitutional amendment, that extends beyond a ban of same-sex marriage to deny rights and legal recognition to all unmarried couples will, if passed, compel every defense attorney in the Commonwealth to seek the denial of protective orders by referral to the wording of the amendment.

So warned attorneys from both Virginia and Ohio, where a similar amendment passed in 2004, at a Richmond press conference yesterday.

Cleveland, Ohio, Legal Aid Society attorney Alexandria Ruden, who has represented victims since 1978 and helped write Ohio’s domestic violence laws, said that after the amendment passed in Ohio, at least two court jurisdictions in her state to abandon recognition of domestic violence laws to any all non-married couples.

She said that while nine court jurisdictions have ruled that the domestic violence laws still apply, the fact that two still haven’t after two years have left potentially thousands of victims, including children, without any protection from the state or law enforcement officials.

A similar situation is predicted to unfold in Virginia. While interpretations of the amendment may vary from one court jurisdiction to another, a final resolution may await a Virginia Supreme Court decision. That would take years to materialize.

In Ohio, a State Supreme Court decision on the same matter is expected in December. That will be more than two years since the passage of that state’s anti-same-sex marriage referendum.

 “We get over 4,000 calls a month to our domestic violence hotline,” stated Shani Cotton of the Virginia Sexual and Domestic Violence Action Alliance at yesterday’s press conference, “and 50% to 60% of the victims are not married.”

 “Many of these people are unaware of their legal options and have great difficultly navigating the legal system,” she said. “In so many cases, they have no regular access to a phone or to other people. They may live in rural areas and can’t leave their homes. They fear contacting law enforcement because of reprisals that can increase their risk of violence. Beyond that, there is the stigma and embarrassment associated with being a victim.”

She said it is “difficult enough already” to assess legal options even with the current laws in place, but if the amendment passes on Nov. 7, “We simply won’t be able to predict from locality to locality what the interpretation of that will be, either by the courts or the police.”

Virginia Attorney James Nachman, who works daily in the Juvenile and Domestic Relations Court in Richmond, warned of what he called “the significant impact of the amendment” if it passes. “Attorneys will be ethically required to bring the amendment as a defense against those accused of domestic violence,” he cautioned. Former U.S. Attorney and Senior Assistant Attorney General John B. Russell concurred. Lawyers, he said, “will have an obligation to use the amendment in defending someone.”

Both warned the matter will not be finally resolved until it comes before the Virginia Supreme Court. “There will be different results in different courts until then,” Russell said.

No one can predict a different scenario, Cotton added, noting that while State Attorney General Bob McDonnell opined that the amendment will not impact such things as existing domestic violence laws, over 200 other attorneys in Virginia have said it may well be otherwise. “At best, we will be in limbo for two or three years,” she said. “Who knows how many victims may be killed in the meantime?”