Same Sex Domestic Abuse and Orders of Protection

Zach Kansler, Albany Government Law Review Member


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.

Domestic Abuse and the Homosexual Community

Domestic abuse is an issue that unequivocally impacts the homosexual community. [6] Numerous studies provide that domestic violence occurs at similar rates between homosexual and heterosexual couples.[7] Various studies cited by Joanna Bunker Rohrbaugh in “Domestic Violence in Same-Gender Relationships,” suggest that domestic abuse can be found within the range of 15-50% of all same sex couples, the same rate for heterosexual couples.[8] Additionally, the National Coalition of Anti-Violence Programs published research in 1997 finding that domestic abuse can be found in 25% to 33% of all same-sex intimate partnerships.[9] Further showing the degree of incidence of domestic abuse in same-sex relationships, Rohrbaugh stated that when asked about challenges to their relationships, 16% of same sex partners reported verbal abuse, and 7% of women and 11% of men in same sex relationships reported physical abuse.[10]

Domestic Violence Statutes, Orders of Protection, and Their Applicability to Homosexual Couples

Domestic violence victims often look to the government for protection from their battering partner, whether in the form of protective orders[11] or seeking arrest under state law[12] or federal law.[13] Before the violence rises to a level that demands criminal prosecution, or before the victim is ready to speak with the police or a prosecutor, civil orders of protection are a tool that empower the victim to keep an abusive partner away, ensuring safety and affording the victim some level of control.[14] However intuitive and fair it may be to assume all are afforded this protection, it is incorrect.

Homosexuals Need Not Apply

As stated, there are a few states, three to be exact, that explicitly and discriminatorily do not permit victims of SSDA to seek orders of protection from their abusive partners.  These states include Montana,[15] Louisiana[16] and South Carolina.[17]

In Montana, orders of protection can be sought where the parties to the abuse are partners or family members.[18] To be granted protection, victims of SSDA need to be considered partners, which is defined as “persons who have been or are currently in a dating or ongoing intimate relationship with a person of the opposite sex.”[19] This definition of partner bars victims of same-sex domestic abuse from receiving orders of protection, as the relationship must contain both a male and a female to be afforded protection.

As stated before, Louisiana does not permit victims of SSDA to obtain orders of protection.  The Louisiana act is prefaced by stating that its purpose is to address the needs and protection of victims of domestic violence.[20] The law then defines domestic abuse as acts by one family or household member against another.[21] The law defines a household member as “any person of the opposite sex presently or formerly living in the same residence with the defendant,” whether married or not.[22] Since the victim is not part of an opposite sex relationship, they are not in the protected class of individuals and are not considered victims of domestic abuse.[23]

The last among the states discussed that disallows SSDA orders of protection is South Carolina.  South Carolina law permits household members to petition for an order of protection.[24] A petition for an order of protection will be given to a household member where there is abuse and a need for protection.[25] Again, as was the case in the other states, the determinative factor in South Carolina is a definition, in this case, that of a household member.  This definition requires there be a male and a female who have or are currently cohabitating.[26] Thus victims of SSDA cannot be granted an order of protection, as they are not in a heterosexual relationship.

Orders of Protection Explicitly Allowed, Via the Judiciary

Although perhaps not the in the most preferable form, some states permit the granting of orders of protection to victims of SSDA through judicial interpretation of silent state statutes.[27] In these cases, where the statutory language was silent on the type of relationship required, the courts favored equality.  These states include Ohio,[28] Illinois,[29] Kentucky,[30] New Jersey,[31] Pennsylvania,[32] and Florida.[33] The following discussion will be a brief description of these landmark cases, with the purpose of showing what it took to afford definitive protection.

In 1991, the Court of Appeals of Ohio addressed whether the domestic violence statutes applied to same-sex couples in State v. Hadinger.[34] In this case, the court had to determine the meaning and scope of the definition of a family or household member.[35] The definition employed by the legislature in the since amended Section 2919.25(D)(2) of the Ohio Code covered cohabitating individuals, creating an availability to the homosexual community.[36] The court concluded “that the legislature intended that the domestic violence statute provide protection to persons who are cohabiting regardless of their sex.  We believe that to read the domestic violence statute otherwise would eviscerate the efforts of the legislature to safeguard, regardless of gender, the rights of victims of domestic violence.”[37] This landmark case indicated that courts will look to the intentions of the legislature, and not solely the text, and also that lack of a definitive language does not preclude inclusion.

Following Ohio, in 1993 the Illinois Court of Appeals directly addressed the issue of whether a victim of SSDA could be granted an order of protection against his or her abusive partner.[38] The operative Illinois statute allowed orders of protection to be granted where there was a showing that the parties lived in the same dwelling.[39] In determining the scope of this language, the court opted for a broad interpretation, finding no merit in the defendant’s assertion that the statute should be narrowly construed to include only those related by marriage or blood.[40] The court found that since the victim could prove that he and the abuser had shared a common household, he was able to obtain a protective order under Illinois law. [41]

Four years later, in 1997 the Court of Appeals of Kentucky dealt with this issue when it decided Ireland v. Davis.[42] The facts of this case indicated that the parties were cohabitating males in an abusive intimate relationship.[43] Following the issuance of an order of protection, a reviewing judge invalidated the order and threw out the domestic violence case since the men were of the same gender.[44] On appeal, the Kentucky Court of Appeals held that a victim of domestic violence in a same-sex relationship with his or her abuser is a member of an unmarried couple, fitting within the gender neutral definition, thus permitting an order of protection.[45]

In 1999, the Superior Court of Pennsylvania addressed victims of SSDA and orders of protection in D.H. v. B.O.,[46] where the plaintiff sought an order of protection against his former lover.[47] Although the court found the evidence was insufficient for an order of protection to be granted, the court did find that victims in same-sex couples could receive orders of protection since same sex couples could be sexual or intimate partners, which was the requirement.[48]

The New Jersey Superior Court in 2000 also began to support victims of SSDA in Storch v Sauerhoff, where the court had to determine if a step-daughter was an individual cover by the Domestic Violence Protection Act.[49] This determination was problematic because a victim of the abuse could be a household member, but the legislature did not define this term.[50] Despite the fact that this case did not concern same-sex domestic violence, the court stated the statute provided a definition of a victim of domestic violence that was very inclusive, even covering those who were “subjected to domestic violence by a person with whom the victim has had a dating relationship.”[51] Clarifying any uncertainty there may have been regarding same-sex couples, the court stated that, “[w]hile the prior law required that victim[s] be cohabitants of opposite sex, or, if not of the opposite sex, related by blood, the current Act protects unrelated, same sex persons living together . . . and any other present or former household member.”[52] Thus, while the case did not concern same-sex couples, the court clarified the law stating that victims of SSDA are covered and may receive orders of protection.[53] The court came to this determination by looking at the contemporary statutory construction and how it differed from the previous law.[54]

In 2003, Florida also began permitting inclusion through Peterman v. Meeker,[55] where the victim sought an injunction of protection against his same-sex intimate partner with whom he had been cohabitating for thirteen years, but the respondent countered by stating that since same sex couples cannot get married in Florida, the domestic violence statute does not apply to them.[56] The domestic violence statute explicitly stated that “[n]o person shall be precluded from seeking injunctive relief pursuant to this chapter solely on the basis that such a person is not a spouse.”[57] Based on this legislative intent, the court rejected the defendant’s argument and stated that injunctions of protection can be granted to same sex couples.[58]

The Norm: Silence in the Law

As the cases just discussed show, there was a degree of silence or ambiguity in the law that needed interpretation by the courts to determine the applicability of the respective domestic violence laws to the homosexual community.  The six discussed cases concerned language that afforded no clarity to those they are intended to protect, and are but the tip of the ice-burg when it comes to the norm in state law.

The vast majority of the states in America use such un-instructive language,[59] causing some difficulty in the interpretation of the respective laws’ scope.  This statutory language is enacted in a genderless fashion where it is silent as to the application of the law and its protections to victims of same-sex domestic violence.[60] In such cases, the victim may not know their legal rights and the abuser may not be deterred from committing abusive behavior, as they may not know that their actions are reprehensible.[61] In this vein, Greg Merrill, director of client services at Community United Against Violence in San Francisco stated, “‘[w]e don’t think about domestic violence in homosexual terms . . . People in our community feel immune.  So when someone pushes us down a flight of stairs, we know it’s wrong, but we don’t call it domestic violence.’”[62] It’s hard to believe that any system can be effective where the victim does not know their rights, and the abuser does not feel they can be punished.

Additionally, ambiguous or silent laws may afford judges and prosecutors discretion in applying the law to cover such homosexual individuals,[63] and may cause attorneys to believe that victims do not have certain legal options.  Law enforcement personal[64] may also allow personal feelings to mettle with their enforcement of a silent law, as “even where there is official recognition of same-sex domestic violence, both internalized homophobia and perceived homophobia on the part of service providers present significant obstacles that victims must overcome.”[65] These instances of institutionalized ill-will, official discretion, and lack of knowledge of rights or penalties show the inherent weaknesses in a silent system.

The Bright Star

The statutory language employed by the vast majority of states is inadequate.  Domestic violence laws have simply failed to keep up with the ever-present growth and evolution of society, which has changed the structure of the “modern family.”[66] The laws enacted by the majority of states are either blatantly discriminatory[67] or are silent and ambiguous,[68] affording uncertain protection to victims of same-sex domestic violence.  In order to remedy the harm imposed by certain statutes, new domestic abuse statutes should be constructed with sections that are inclusive and sympathetic to all forms of domestic relationships, including intimate partnerships between same-sex individuals, following the lead of Hawai’i.

Hawai’i is the only state to implement an inclusive model.[69] Under the Hawai’i Statutes, a family or household member of the abuser can petition for an order for protection.[70] A family or household member is defined as including reciprocal beneficiaries.[71] The statute states the classification reciprocal beneficiary was constructed with the purpose of affording certain rights and benefits to those who are not allowed to marry under law.[72] The Hawai’i reciprocal beneficiary law uses clear language of inclusion, stating that those who are not able to marry, such as “two individuals who are of the same gender,” should be given the same rights and benefits as those received by married couples.[73] In sum, the Hawai’i code unmistakably states that two individuals of the same gender are considered reciprocal beneficiaries,[74] and as such they are considered family and household members,[75] and may obtain protective orders.[76]


Domestic abuse is an issue that affects all segments of our population.  Studies show similar levels of domestic abuse incidence in same-sex intimate partner relationships and heterosexual intimate partnerships.  Despite this fact, some states explicitly deny domestic abuse protections to victims of SSDA.  Other states permit ambiguity in the law, characterized by silence and possible discretion or de facto discrimination.  These constructs should be cast aside for one that is similar to that provided by Hawai’i, which is accepting of our contemporary society and the changing dynamics of the modern family.  Only then will people be able to initiate protection to halt unwarranted violence from the person they trust.

[1] See Rohrbaugh, infra note 8.

[2] See Mont. Code Ann. §§ 40-15-102(1)(a), 45-5-206(2)(b) (2010).

[3] See Md. Code Ann., Fam. Law § 4-501(d) (West 2010).

[4] See Ireland v. Davis, 957 S.W.2d 310 (Ky. Ct. App. 1997).

[5] See Nancy E. Murphy, Queer Justice: Equal Protection for Victims of Same-Sex Domestic Violence, 30 Val. U. L. Rev. 335, 343 (1995) (“It is important to afford same-sex partners protection from abuse under domestic violence statutes because these statutes provide far more comprehensive legal protection and social services to victims than general criminal assault and battery statutes.” (internal citation omitted)).

[6] See Carla M. Da Luz, A Legal and Social Comparison of Heterosexual and Same-Sex Domestic Violence: Similar Inadequacies in Legal Recognition and Response, 4 S. Cal. Rev. L. & Women’s Stud. 251, 267–268 (1994) (stating partner abuse is the third largest health issue for gay men). See also Gregory L. Greenwood, Battering Victimization Among a Probability-Based Sample of Men Who Have Sex With Men, 92 Am. J. Pub. H. 12, 1964 (2002), available at

[7] Murphy, supra note 5, at 340, fn. 34 (“The prevalence of abuse between both same-sex and opposite-sex partners is estimated to be approximately 25 to 30 percent of all couples. Studies report: first, that 25 percent of lesbians and 27 percent of heterosexual women admit being physically abused by their partners in committed relationships; and second, that seven percent of lesbians and nine percent of heterosexual women report having been raped by dates.” (citing Claire M. Renzetti, Violent Betrayal: Partner Abuse in Lesbian Relationships, 18 (1992))).

[8] Joanna Bunker Rohrbaugh, Domestic Violence in Same-Gender Relationships, 44 Fam. Ct. Rev. 287, 287–288 (2006) (“Initial research suggests that violence occurs at the same rate (12–50%) in same-gender couples as it does in cross-gender couples, and the methods of conflict resolution are similar in both groups (Gardner, 1989; Elliott, 1996; Renzetti, 1992; Straus, 1978; Straus, Gelles & Steinmetz, 1980). The exact rate of violence reported varies according to: (a) the samples being studied and (b) the definitions and measures of domestic violence utilized.”).

[9] Id.

[10] Id. at 290.

[11] See Wash. Rev. Code Ann. § 26.50.030 (West 2010).

[12] See Mass. Gen. Stat. Ann. ch. 209A § 7 (West 2010).

[13] See 18 U.S.C. § 2261 (2010).

[14] Carolyn N. Ko, Civil Restraining Orders for Domestic Violence: The Unresolved Question of Efficacy, 11 S. Cal. Interdisc. L.J. 361, 371 (2002).

[15] Mont. Code Ann. §§ 40-15-101—40-15-408 (2010).

[16] La. Rev. Stat. Ann. §§ 46:2131—46:2143 (2010).

[17] S.C. Code Ann. §§ 20-4-10—20-4-160 (2010).

[18] Mont. Code Ann. § 40-15-102 (2010).

[19] Id. at §§ 45-15-102(1), 45-5-206(2)(b).

[20] La. Rev. Stat. Ann. § 46:2131 (2010).

[21] Id. at § 46:2132(3).

[22] Id. at § 46:2132(4).

[23] See Michelle Aulivola, Outing Domestic Violence: Affording Protections to Gay and Lesbian Victims, 42 Fam. Ct. Rev. 162, 169 (2004) (explaining that although victims of same-sex domestic violence are not protected under the Domestic Abuse Assistance statute, they may seek assistance through the Dating Violence statute, La. Rev. Stat. Ann. §§ 46:2151 (2010), such as seeking shelter or counseling).

[24] S.C. Code Ann. §§ 20-4-10—20-4-160 (2010).

[25] Id. at § 20-4-40.

[26] Id. at § 20-4-20.

[27] See State v. Hadinger, 573 N.E.2d 1191 (Ohio Ct. App. 1991).

[28] Id.

[29] Glater v. Fabianich, 625 N.E.2d 96 (Ill. App. Ct. 1993).

[30] Ireland v. Davis, 957 S.W.2d 310 (Ky. Ct. App. 1997).

[31] Storch v.Sauerhoff, 757 A.2d 836 (N.J. Super. Ct. Ch. Div. 2000).

[32] D.H. v. B.O., 734 A.2d 409 (Pa. 1999).

[33] Peterman v. Meeker, 855 So.2d 690 (Fla. Dist. Ct. App. 2003).

[34] State v. Hadinger, 573 N.E.2d 1191 (Ohio Ct. App. 1991).

[35] Id. at 822.

[36] Id.

[37] Id. at 823.

[38] Glater v. Fabianich, 625 N.E.2d 96 (Ill. App. Ct. 1993).

[39] 750 Ill. Con. Stat. 60/103(6) (West 2010) (at the time of litigation, Ill. Rev. Stat. 1991, ch. 40, ¶ 2311-3(5)).

[40] Glater, 625 N.E.2d at 99.

[41] Id.

[42] Ireland v. Davis, 957 S.W.2d 310 (Ky. Ct. App. 1997).

[43] Id. at 311.

[44] Id.

[45] Id. at 312.

[46] D.H. v. B.O., 734 A.2d 409 (Pa. 1999).

[47] Pa. Con. Stat. § 6102(a) (West 2010); Id. at 409.

[48] Id.

[49] Storch v.Sauerhoff, 757 A.2d 836, 840 (N.J. Super. Ct. Ch. Div. 2000).

[50] Id. at 838.

[51] Id.; N.J. Stat. Ann. § 2C:25-19(d) (West 2010).

[52] Storch, 757 A.2d at 839.

[53] Id.

[54] See N.J. Stat. Ann. § 2C:25-28 (West 2010).

[55] Peterman v. Meeker, 855 So.2d 690 (Fla. Dist. Ct. App. 2003).

[56] Id. at 610.

[57] Fla. Stat. Ann. § 741.30(1)(e) (West 2010); Peterman, 855 So.2d at 611.

[58] Peterman, 855 So. 2d at 611.

[59] See American Bar Association, Commission on Domestic Violence, Domestic Violence Civil Orders of Protection by State, (2009), available at; Aulivola, supra note 23, at 169,n.104.

[60] Aulivola, supra note 23, at 169 (“The majority of states’ statutes neither explicitly provide nor deny domestic violence protections to same-sex couples, but rather are open to interpretation.”); See, example, Iowa Code Ann. § 236(2)(e)(1) (West 2010) (“The assault is between persons who are in an intimate relationship or have been in an intimate relationship and have had contact within the past year of the assault.”) and D.C. Code § 16-1001(7) (2010) (defining “intimate partner violence” as “an act punishable as a criminal offense that is committed or threatened to be committed by an offender upon a person . . . [w]ith whom the offender is or was in a romantic, dating, or sexual relationship.”).

[61] Elaine Herscher, Gay Domestic Violence Mirrors Society at Large: Battering As Common Among Gays as Straights 1 in 3 Gay Couple Suffer Battering, Study Finds, San Francisco Chronicle, Oct. 6, 2007, available at

[62] Id.

[63] See Aulivola, supra note 23, at 169.

[64] Nancey J. Knauer, Same-Sex Domestic Violence: Claiming a Domestic Sphere While Risking Negative Stereotypes, 8 Temp. Pol. & Civ. Rts. L. Rev. 325, 328 (1999).

[65] Id. at 345; Aulivola, supra note 23, at 166–167 (discussing police and their lack of understanding, bias, harassment and homophobia).

[66] Aulivola, supra note 23, at 162.

[67] See Mont. Code Ann. §§ 40-15-102(1)(A), 45-5-206 (2010).

[68] See Md. Code Ann., Fam. Law § 4-501(d) (West 2010).

[69] See Haw. Rev. Stat. §§ 573C-2, 586-1, 586-3 (2010).

[70] Id. at § 586-3.

[71] Id. at § 586-1.

[72] Id. at § 572C-2.

[73] Id.

[74] Id.

[75] See Haw. Rev. Stat. § 586-1 (2010).

[76] Id. at § 586-3.

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