South Carolina’s attorney general said he will ask the state’s highest court to reconsider its ruling which struck down parts of a domestic violence law as unconstitutional, arguing the court’s action means unmarried victims of domestic violence can no longer seek orders of protection from abusive partners.
Attorney General Alan Wilson made the comments after the South Carolina Supreme Court ruled parts of the state’s domestic violence law violate the U.S. Constitution’s “Equal Protection” clause. The court focused on a state law which dictates any unmarried victim who once shared a home with their batterer can only seek an order of protection if that batterer is of the opposite sex. The court ruled the language violates the rights of unmarried same-sex victims.
However, the Supreme Court justices disagreed in a remedy. Ultimately, the lead opinion by former Chief Justice Costa Pleicones specified the court’s decision would only invalidate language about cohabiting couples. “The remainder of each Act—providing domestic violence protection to ‘Household member[s]’ defined as a spouse, former spouse, or persons who have a child in common—remain in effect,” he said.
Wilson said the decision means only spouses, ex-spouses or those sharing a child with their abuser can now seek an order of protection. “Instead of extending the protections of South Carolina’s domestic violence laws to a larger group of couples, the effect of this decision will limit those protections to a much smaller group of people,” Wilson said in a statement. “Under this current ruling the only people we can now protect are spouses, former spouses and people who have a child in common.”
Those concerns were echoed by dissenting Chief Justice Donald Beatty and Associate Justice John Few. Beatty said the court should have instead ruled the old definition of “household members” unconstitutional rather than strike specific language from the domestic violence law. “Protection afforded by the Acts (under this ruling)… would no longer be available to opposite-sex couples who are cohabiting or formerly have cohabited. Yet, it would be available to unmarried persons such as former spouses — same-sex or not — and persons — same-sex or not — with a child in common,” Beatty wrote.
Few argued the law could be interpreted as already protecting unmarred same-sex victims, since he said there was no evidence legislators intended to exclude those victims when they reformed the law in 2015. Associate Justice Kay Hearn sided with Pleicones, while Justice John Kittredge said he agreed with the result only, not the former Chief Justice’s reasoning.
But the attorney for the victim, whose January 2016 lawsuit led to the ruling, argued the blame for any gap in the law lies with state lawmakers, not the Supreme Court.
“The legislature has had 18 months to address the issue while the Court was waiting to rule and they did not,” attorney Bakari Sellers said. “So the Court has finally said… these laws are unconstitutional. It’s the legislature’s responsibility to make sure we have that clarity necessary and make sure everybody’s protected under the law.”
Sellers said “other remedies” are still available for unmarried victims to seek state help, even after the ruling.
A 2015 domestic violence reform law created tougher penalties for abusive partners when their victims apply for orders of protection against them. For example, the accused batterer would no longer be able to buy a gun once the protection order is in effect. It allowed “household members” to get the protection orders, but used an older 1994 law’s definition of “household member” to be current or former spouses, those who share a child or were at some point in a cohabitating relationship between a man and woman.
Sellers’ client “Jane Doe” filed the lawsuit after a Richland County court would not grant her an emergency order of protection when she was assaulted and choked by her lesbian ex-fiancé. The State Attorney General’s Office argued last year the law was not meant to discriminate and asked the court to interpret it as already protecting unmarried, same-sex partners.