Domestic Violence Law Applies To Gay Couples

May 18, 1998

Homosexuals in Ohio will now be afforded equal legal protection against repeated violence.

The idea of homosexual marriage has received much attention from the news media during the past few years. Most states, including Ohio, have refused to enact laws which would allow gay and lesbian couples to enter into same-sex marriages. But does that prevent a gay man from being convicted of domestic violence for assaulting his gay partner?

Ohio's domestic violence law states that "[n]o person shall cause or attempt to cause physical harm to a family or household member." In order to be a "family or household member," the victim must be legally related to the offender in some way, either by blood or by marriage, or the victim must be "living as a spouse" of the offender. But how can a victim be living as a spouse of his gay partner when homosexual marriages are not legally recognized?

That was the question presented to the Hamilton County Court of Appeals in State v. Yaden (March 5, 1997). In that case, the defendant and the victim were both adult males. They had previously lived together for four years, sharing expenses, attending social events together, and engaging in a sexual relationship. Even after they broke up, the defendant kept personal belongings at the victim's home and occasionally stayed there. During a particularly violent argument, the defendant threw a telephone at the victim, which struck the victim in the head; he then punched the victim in the stomach. The defendant was convicted of domestic violence, but on appeal, he argued that he could not be convicted of that offense because there was no possible way that he could ever have been "living as a spouse" of the victim.

The Ohio domestic violence law further defines "living as a spouse" as "cohabiting." In order to determine the meaning of "cohabitation," the Court of Appeals reviewed the case law in several states and in several Ohio judicial districts; it then decided that cohabitation had two specific parts: financial support (sharing living expenses) and consortium (a significant emotional or sexual relationship). Although most of the existing case law referred to a relationship between a man and a woman, the Court of Appeals upheld the defendant's conviction, stating:

"It is true that same-sex couples are not permitted to be 'spouses' of each other. But the definition of 'living as a spouse' includes a larger segment of couples - not only 'spouses' but also 'cohabitors.' Opposite-sex couples who 'cohabit' are protected. We see no tangible benefit to withholding the protection from same-sex couples."

Of course, an offender could always be charged with assault for physically attacking a gay or lesbian partner. But unlike domestic violence, Ohio's assault law does not allow a second offense to be charged as a felony. Therefore, homosexuals in Ohio will now be afforded equal legal protection against repeated violence.

Does this decision affect the validity of gay and lesbian marriages? No. However, one thing is now clear: homosexuals and heterosexuals are entitled to equal protection from violence committed by those that they trust the most!

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