Daily Archives: February 6, 2011

Same Sex Domestic Abuse and Orders of Protection

Zach Kansler, Albany Government Law Review Member

Introduction

No intimate relationship is immune from the danger of domestic abuse. Homosexual couples and heterosexual couples experience similar rates of harm inflected by domestic abuse. [1] Despite the similarities in rate of occurrence, and that humans should be treated equally and with dignity, some states expressly treat the personal safety of homosexuals as less valuable than that of heterosexuals.[2] This injustice is manifested in the express lack of availability of a basic legal tool of self-preservation, the order of protection.  Furthermore, where these orders are available to victims of same-sex domestic abuse (“SSDA”), it is not through clear and instructive language, but rather silence, [3] and in some instances, the fortuity of judicial interpretation.[4]

This practice of denying victims of SSDA the protection they deserve is a travesty[5] and should be eliminated.  States should take a proactive role in the protection of all their citizens, not just those who conform to the antiquated beliefs of their forefathers.  Even the states that allow for orders of protection in SSDA, the construct used may be inadequate, as they neglect to empower and inform the homosexual community of the rights they had been for so long denied.  These states proffer laws that afford protection through silence, failing to educate the homosexual community they are now empowered to petition for an end to the abuse.

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Filed under Constitutional Law, Criminal Law, Equal Protection