AMERICAN BAR ASSOCIATION COMMISSION ON DOMESTIC & SEXUAL VIOLENCE REPORT TO THE HOUSE OF DELEGATES RESOLUTION
RESOLVED, That the American Bar Association urges federal, state, territorial, local, and tribal governments to enact civil protection order statutes regarding domestic, intimate partner, sexual, dating, and stalking violence that extend protection to Lesbian, Gay, Bisexual, and Transgender individuals.
Domestic violence, sexual assault and stalking are epidemics in our society with dramatic, negative effects on individuals, families and communities. These crimes know no economic, racial, ethnic, religious, age, gender, sexual orientation or gender identity limits. By conservative estimates, nearly 7 million women in the United States are assaulted by their intimate partners every year.1 One in three women in this country will experience sexual violence in her lifetime;2 one in six women will be stalked.3 Over 5 million men are physically assaulted by an intimate partner annually in the United States,4 one in four victims of sexual violence are male,5 and one in nineteen men is stalked in his lifetime.6 The need for protection from violence cannot be underestimated.
Civil protection orders for victims of domestic or intimate partner violence7 are available in every state and the District of Columbia.8 A majority of states also provide protection for victims of sexual assault and rape, but only if the perpetrator is a current or former intimate partner or family member.9 Though states have begun to enact statutes specifically creating civil protection orders for victims of sexual assault and stalking, a minority of states have stalking civil protection orders and fewer still have civil protection orders available for victims of non-intimate partner sexual assault.
State or tribal civil courts typically issue civil protection orders using a two-prong approach, although the analysis varies among jurisdictions. First a court must determine if there is an eligible relationship before them, as determined by statute. Second, a court must find a showing of abuse or violence and/or the likelihood of imminent harm. A court’s order may include a variety of provisions that vary from jurisdiction to jurisdiction requiring, inter alia, that the perpetrator (1) stay a certain distance from the victim, (2) not assault or otherwise abuse the victim, and (3) refrain from direct or indirect contact with the victim. Civil protection orders vary in their duration (e.g., emergency, temporary or “permanent”), and in many jurisdictions may include remedies such as emergency monetary assistance, temporary child custody and support, and housing. Similarly, in every jurisdiction there is an enforcement mechanism whereby the victim may call upon law enforcement to enforce the provisions of the civil protection order when it is violated. In these ways, civil protection orders are intended to provide tangible, specific protection for victims that have experienced domestic violence, sexual assault or stalking.
Lesbian, gay, bisexual and/or transgender (LGBT) people experience domestic and intimate partner violence and sexual violence at rates similar to or higher than heterosexual and/or cisgender10 people.11 A ground-breaking National Center for Disease Control study from January of 2013 found that the lifetime prevalence of physical violence, rape, and/or stalking by an intimate partner was 61.1% for bisexual women, 43.8% for lesbian women, and 35.0% for heterosexual women.12 Additionally, 26.0% of gay men, 37.3% of bisexual men, and 29.0% of heterosexual men reported violence by an intimate partner.13 While there is a need for more in depth research on intimate partner violence against transgender people, studies confirm that significant numbers of transgender people are subjected to intimate partner violence. Assessments of transgender people in large cities reveal high percentages of reported violence in the home perpetrated by an intimate partner (56.3% of respondents in Philadelphia, 66% in Chicago).14 A staggering 64% of transgender people report experiencing sexual assault.15
The National Coalition of Anti-Violence Programs (NCAVP) promulgates annual reports on the rates of intimate partner violence and hate violence in LGBT communities across the United States. In 2013, NCAVP logged 2,697 reports of LGBT intimate partner violence (IPV).16 More than half of the IPV survivors who reported their race to NCAVP identified as people of color.17 NCAVP documented 21 intimate partner violence homicides in 2013, the highest recorded level for two years in a row.18 LGBT youth and young adults, people of color, gay men, bisexual survivors and transgender women were the most affected by intimate partner violence in 2013.19 Young LGBT survivors were 2.6 times more likely to experience sexual violence in IPV relationships.20 Transgender survivors were more likely to face physical violence and discrimination and were more likely to experience intimate partner violence in public spaces.21 Denial of LGBT Access to Civil Protection Orders by Law
Unfortunately, in a number of jurisdictions people who are abused by a partner of the same legal sex are unable to access vital legal protections.22 For example, South Carolina limits the application of civil protection orders to individuals related by blood, marriage, or male and female cohabitants.23 This means that same-sex partners who are dating or even cohabitating are not eligible for protection orders. Same-sex marriages were historically banned in South Carolina, making protection orders essentially impossible to obtain for same-sex couples. Although the marriage ban was ruled unconstitutional in 2014, South Carolina legislators are actively attempting to prevent even legally married same-sex couples from having access to these basic protections. A House Bill was introduced in March 2015, prohibiting the use of public funds to enforce any form of court order that requires recognition of a same-sex marriage license.24
The law is less clear in North Carolina, Virginia and Louisiana, and leaves the application of laws to LGBT victims in the discretion of judges. North Carolina allows for domestic violence protective orders between people who have a “personal relationship,” however it defines a personal relationship as being between married couples, people of the opposite sex who live together, blood relatives, persons with a child in common, current or former household members, and persons in an opposite-sex dating relationship.25 North Carolina does not allow for same-sex “dating partners” to be covered; however, victims with a “same-sex” abusive partner can obtain relief as a “current or former household member.”26 This protection for cohabitants was thrown into question after the passage of North Carolina Amendment 1 in 2012, which amended the North Carolina Constitution to define marriage as between “one man and one woman,” and banned any other type of "domestic legal union" such as civil unions and domestic partnerships.27 “Amendment 1” was struck down by General Synod of the United Church of Christ v. Resinger, which held that same-sex marriage bans violated the Due Process and Equal Protection Clauses.28General Synod is currently on appeal to the Fourth Circuit.29 Virginia is silent on whether LGBT victims are entitled to civil protection orders. Family Abuse protective orders are available only against a “family or household member,”30 which includes couples who have “cohabited” together within the past 12 months.31 The statute does not specifically define the word “cohabit,” but courts have generally interpreted it to apply to unmarried couples who live together in a romantic or intimate relationship. In 2006, the Office of the Attorney General of Virginia issued an opinion that, while discussing related matters, assumed that a court could consider same-sex couples to be “cohabiting” for purposes of the family abuse definition.32 This should mean that same-sex couples who have lived together within the last twelve months are eligible for protective orders if there has been an act of family abuse but anecdotal evidence has demonstrated that not all judges are granting same-sex domestic violence petitioners relief. The law does not explicitly address whether same-sex couples are included in this term, but it does not explicitly exclude them either, and with same-sex marriage rights in flux, it is unclear how the marriage definition applies.33 In Louisiana, only adults of the opposite sex who are living together may be seen as intimate partners.34 LGBT victims may still be able to obtain relief pursuant to Louisiana’s dating violence statute,35 however, due to the household members exception, this does not allow LGBT victims equal access to benefits that come from family civil protection orders that are up to judicial discretion, and dating violence may only qualify as a misdemeanor crime, not a felony. LGBT victims who live in New Orleans also are able to obtain relief under the municipal domestic violence definition, which is gender inclusive.36 Depending on the outcome of the federal marriage case, married LGBT people may become eligible for a Louisiana order of protection.
While most states use gender neutral language in their court protective order statutes, and in most of these states civil protection orders may be obtained against same-sex intimate partners, the lack of explicit protections can leave LGBT petitioners vulnerable to hostile court personnel or personnel requiring training on the dynamics of LGBT intimate partner violence.37 Importantly, depending on a person’s gender identity and legal sex, a transgender person may or may not be considered by the court to be in a “same-sex” relationship. Therefore some transgender individuals with opposite sex intimate partners may be able to access civil protection orders, while others may not, depending on how a state defines a person’s gender.38 Further, while all states allow for a married person to get a protective order against their spouse, marital status has been a contested category for same-sex couples with some states recognizing same-sex marriages and others not. In fact, many states have passed Defense of Marriage Acts (DOMA) to prevent their state from recognizing same-sex marriages from other jurisdictions. As of 2013, 36 States had passed DOMA laws that barred recognition of same-sex marriages, although many of these state laws have since been struck down,39 and there is a pending Supreme Court opinion in Obergefell v. Hodges that will address these DOMAs this term.40 The court will decide whether states must be required to license marriages between two people of the same-sex, and whether states shall be required to recognize legal same-sex marriages from other states.41Regardless of the outcome of that case, there may still remain barriers for people in same-sex non marital relationships that need protective orders.42 Anti-LGBT Animus Is Leading To A Denial Of Safety For Victims
In addition to the states above with restrictive civil protection order statutes, legislation across the country targeting the civil legal rights of LGBT people is aimed at new barriers to safety for victims. For example, House Bill 3022 introduced in South Carolina bars public funds to enforce court orders that involve recognizing same-sex marriage.43 This is just one of many state legislative efforts to fight back against the trend of court rulings for same-sex marriage. Texas44
and Oklahoma45 state legislatures have introduced similar bills to South Carolina’s House Bill 3022. Even with advancements in some jurisdictions for opening the civil institution of marriage to same-sex couples, the “backlash” to same-sex marriage equality has many serious consequences for LGBT victims of domestic violence.46 While the upcoming Obergefell Supreme Court ruling may open up same-sex marriage nationwide, recognition of other types of relationships is likely to remain complicated for years to come.
This uncertainty leaves some LGBT victims of intimate, domestic, sexual and/or stalking violence without legal remedies to keep themselves and their families safe, and to hold perpetrators of violence accountable. With the passage of the LGBT-inclusive Violence Against Women Reauthorization Act of 2013 on February 28, 2013,47 LGBT survivors in these jurisdictions are even more blatantly disenfranchised as organizations must provide them with comprehensive services, even though they may be denied legal protections otherwise available except that the victim in these situations was abused by a person of the same gender.
The ABA Opposes Anti-LGBT Animus
The ABA previously has taken a clear position against LGBT discrimination and harassment,48 and supported the rights of LGBT victims within the Violence Against Women Act.49 This Resolution is necessary to address the current trend by state legislatures and judges to eliminate access to legal remedies for victims of domestic, intimate partner, sexual, dating, and/or stalking violence on the basis of their sexual orientation or gender expression.
Access to justice is essential to ensuring that victims of domestic violence, sexual assault and stalking receive the protection and remedies necessary to prevent and minimize the lifelong, devastating effects of these crimes. The ABA has already ratified Standards of Practice for Lawyers Representing Victims of Domestic Violence, Sexual Assault and Stalking in Civil Protection Order Cases (adopted as ABA Policy, August 2007). The Standards recognize the importance of victims’ full access to the civil protection order remedies available to them. States cannot exclude LGBT victims of domestic, intimate partner, sexual, dating, and/or and stalking violence in their CPO laws, policies and practices.
Angela Vigil, Chair
ABA Commission on Domestic & Sexual Violence
GENERAL INFORMATION FORM Submitting Entity: Commission on Domestic & Sexual Violence
Submitted By: Angela Vigil, Chair
Summary of Resolution(s). The Resolution urges federal, state, territorial, local, and tribal governments to enact civil protection order statutes regarding domestic, intimate partner, sexual, dating, and stalking violence that extend protection to Lesbian, Gay, Bisexual, and Transgender individuals..
Approval by Submitting Entity. The Commission voted to support the resolution and report on May 4, 2015.
Has this or a similar resolution been submitted to the House or Board previously? No
What existing Association policies are relevant to this Resolution and how would they be affected by its adoption? The ABA previously has taken a clear position against LGBT discrimination and harassment, and supported the rights of LGBT victims within the Violence Against Women Act (2010 MY 115). The Association has extensive policy regarding domestic violence and its legal implications for victims. The Commission has cataloged these policies on its website at http://www.abanet.org/domviol/policy.html. None of these policies would be adversely affected by the adoption of the proposed policy.
If this is a late report, what urgency exists which requires action at this meeting of the House? n/a
Status of Legislation. (If applicable) n/a
Brief explanation regarding plans for implementation of the policy, if adopted by the House of Delegates. Upon adoption, the Commission on Domestic & Sexual Violence will work with the ABA Government Affairs office to ensure that no victim of domestic or dating violence, sexual assault or stalking is denied access to a civil protection order due to their sexual orientation or gender identity.
Cost to the Association. (Both direct and indirect costs) none
Disclosure of Interest. (If applicable) n/a
Referrals. Commission on Sexual Orientation and Gender Identity, Center on Human Rights, Individual Rights and Responsibilities, Commission on Youth at Risk, Commission on Women
Contact Name and Address Information. (Prior to the meeting. Please include name, address, telephone number and e-mail address) Vivian Huelgo, Chief Counsel, Commission on Domestic & Sexual Violence, 1150 Connecticut Avenue, NW, Suite 400, Washington, DC 20036, (202) 662-8637, email@example.com
Contact Name and Address Information. (Who will present the report to the House? Please include name, address, telephone number, cell phone number and e-mail address.) Angela C. Vigil, Esq., Baker & McKenzie, LLP, Sabadell Financial Center, 1111 Brickell Avenue, Suite 1700, Miami, FL 33131, 305-789-8904, firstname.lastname@example.org
Summary of the Resolution
The Resolution urges federal, state, territorial, local, and tribal governments to enact civil protection order statutes regarding domestic, intimate partner, sexual, dating, and stalking violence that extend protection to Lesbian, Gay, Bisexual, and Transgender individuals.
Summary of the Issue that the Resolution Addresses
Unfortunately, in a number of jurisdictions people who are abused by a partner of the same legal sex are unable to access vital legal protections. This means that same-sex partners who are dating or even cohabitating are not eligible for protection orders.
Please Explain How the Proposed Policy Position will address the issue
The proposed resolution will urge state, local, territorial and tribal governments to enact civil protection order statutes that extend protection to Lesbian, Gay, Bisexual, and/or Transgender individuals who are victims of domestic, intimate partner, sexual, dating, and/or stalking violence. The ABA previously has taken a clear position against LGBT discrimination and harassment, and supported the rights of LGBT victims within the Violence Against Women Act. This Resolution is necessary to address the current trend by state legislatures and judges to eliminate access to legal remedies for victims of domestic, intimate partner, sexual, dating, and/or stalking violence on the basis of their sexual orientation or gender expression.
Summary of Minority Views
1 Michele C. Black et al., National Center for Injury Prevention and Control, Centers for Disease Control and Prevention, The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Summary Report 38 (Nov. 2011), available at http://www.cdc.gov/ViolencePrevention/pdf/NISVS_Report2010-a.pdf (last visited April 29, 2015).
2Id. at 2.
4Id. at 38.
5Id. at 18-19.
6Id. at 2.
7 In this context, domestic violence and intimate partner violence are being used interchangeably.
8Ala. Code § 30-5-7 (2011); Alaska Stat. § 18.66.100 (2011); Ariz. Rev. Stat. Ann. § 13-3602 (2011); Ark. Code Ann. § 9-15-201 (2011); Cal. Fam. Code § 6300-6306 (2011); Colo. Rev. Stat. ann. § 13-14-102 (2010); Conn. Gen. Stat. Ann. § 46b-15 (2011); Del. Code Ann. § 1045(2011); D.C. Code §16-1003 (2011); Fla. Stat. Ann. § 741.28 (2011); Ga. Code Ann. § 19-13-4 (2011); Haw. Rev. Stat. § 586-3 (2011); Idaho Code Ann. § 36-6304 (2011); 750 Ill. Comp. Stat. Ann. § 60/201 (2011); Ind. Code Ann. § 34-26-5-2 (2011); Iowa Code ann. § 236.2 (2011); Kan. Stat. Ann. § 60-3102 (2011); KY. Rev. Stat. Ann. § 403.725 (2011); La. Rev. Stat. Ann. § 46:2134 (2011); Me. Rev. Stat. Ann. tit. 19-a, § 4002 (2011); Md. Code Ann., Fam. Law § 4-504 (2011); Mass. Gen. Laws. ch. 209a § 1 (2010); Mich. Comp. Laws Ann. § 600.2950 (2010); Minn. Stat. Ann. § 518b.01 (2011); Miss. Code Ann. § 93-21-7 (2011); Mo. Ann. Stat. § 455.010 (2011); Mont. Code Ann. § 40-15-102 (2011); Neb. Rev. Stat. § 42-903 (2011); Nev. Rev. Stat. Ann. § 33.018 (2011); N.H. Rev. Stat. Ann. § 173-b:1 (2011); N.J. Stat. Ann. § 2c:25-18 (2011); N.M. Stat. Ann. § 40-13-3 (2011); N.Y. Fam. Ct. Act § 842 (2011); N.C. Gen. Stat. ann. § 50b-1 (2011); N.D. Cent. Code § 14-07.1-02 (2011); Ohio Rev. Code Ann. § 3113.31 (2011); Okla. Stat. Ann. tit. 22, § 60.2 (2011); Or. Rev. Stat. Ann. § 107-705 (2011); 23 Pa. Stat. Ann. § 6102 (2011); r.I. Gen. Laws § 8-8.1-3 (2011); S.C. Code Ann. § 20-4-40 (2011); S.D. codified Laws § 25-10-3 (2011); Tenn. code Ann. § 36-3-605 (2011); Tex. Fam. Code ann. § 82.004 (2011); Utah Code ann. § 78b-1-101 (2011); Vt. Stat. Ann. tit. 15, § 1103 (2011); Va. Code ann. § 16.1-279.1 (2011); Wash. Rev. Code § 26.50.010 (2011); W. Va. Code § 48-27-501 (2011); Wis. Stat. § 813.12 (2011); Wyo. Stat. Ann. § 35-21-103 (2011).
9 All but 8 states have civil protection order statutes that explicitly cover sexual assault/rape in the context of an intimate partner or family relationship. Those 8 exceptions are (see code, above): Arizona, Arkansas, Colorado, Connecticut, Illinois, Iowa, Michigan, and South Dakota. Colorado (Colo. Rev. Stat. Ann. § 13-14-102 (2011)), Illinois (740 Ill. comp. Stat. Ann. 22/101 (2011)), and South Dakota (S.D. Codified Laws § 22-19a-8 (2011)), however, provide separate access to protection for victims of sexual assault and rape.
10 People who identify with the gender/sex assigned to them at birth: people who are not transgender. See FORGE, Transgender 101, http://forge-forward.org/wp-content/docs/T101_short_rev20101.pdf (last visited February 28, 2013).
11 Walters, M.L., Chen, J., and Breiding, M.J., The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Findings on Victimization by Sexual Orientation, National Center for Injury Prevention and Control, Centers for Disease Control and Prevention, Atlanta, Georgia, January 2013.
12Id. at 2.
14 Gretchen P. Kenagy, Transgender Health: Findings from Two Needs Assessment Studies in Philadelphia, 30 Health and Social Work 19, 23 (2005); Gretchen P. Kenagy & Wendy B. Bostwick, Health and Social Service Needs of Transgender People in Chicago, 8 International Journal of Transgenderism 57, 62 (2005). In an older study from San Francisco, 37% of transgender women reported physical abuse within the last year, 44% of them were abused by an intimate partner; among transgender men, 27% reported physical abuse within the past year, 30% of those men were abused by an intimate partner. San Francisco Department of Public Health, The Transgender Community Health Project 5, 9 (1999), available online at http://hivinsite.ucsf.edu/InSite?page=cftg-02-02 (last visited April 29, 2015). Other studies show similar rates of victimization. See, e.g., Diana Courvant & Loree Cook-Daniels, Trans and Intersex Survivors of Domestic Violence: Defining Terms, Barriers and Responsibilities 3 (1998), available online at http://www.survivorproject.org/defbarresp.html (50 % of respondents to Gender, Violence, and Resource Access Survey of transgender and intersex individuals reported having been raped or assaulted by intimate partner).
15 Jaime Grant, Lisa Mottet & Justin Tanis, Injustice at Every Turn, http://www.thetaskforce.org/static_html/downloads/reports/reports/ntds_full.pdf (last downloaded April 29, 2015).
16See generally “A Report from the National Coalitions of Anti-Violence Programs, Lesbian, Gay, Bisexual, Transgender, Queer, and HIV Affected in 2013, 2014 Release Date” http://avp.org/storage/documents/ncavp2013ipvreport_webfinal.pdf (last visited April 29, 2015). It is important to note that many victims of LGBT IPV, as well as non-IPV sexual and stalking violence, do not report these crimes to law enforcement or advocacy agencies. Therefore, these numbers are certainly lower than the actual number of LGBT people experiencing violence in the United States.
22 Montana only recently removed the prohibition on CPOs for people in same-sex relationships. In 2014, Montana’s definition of “partners” was revised to delete the phrase “with a person of the opposite sex.” Before then, to be granted protection, victims of same-sex intimate partner violence needed 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.” This definition of partner barred victims of same-sex domestic abuse from receiving orders of protection. See http://leg.mt.gov/bills/mca/45/5/45-5-206.htm (last visited April 29, 2015).
23S.C. CODE ANN. § 20-4-20(b) (2006).
24 South Carolina H.B. 3022, https://legiscan.com/SC/text/H3022/2015 (last visited April 29, 2015).
25 NCGS § 50B-1(b) (2015).
27See generally, North Carolina Same-Sex Marriage, Amendment 1 (May 2012) http://ballotpedia.org/North_Carolina_Same-Sex_Marriage,_Amendment_1_%28May_2012%29 (last visited May 1, 2015).
30 VA Code 16.1-228 (2015).
32 2006 Va. AG LEXIS 34 (September 14, 2006); 2006 WL 4286442 Opinion No. 06-00, September 14, 2006. Practice varies by jurisdiction.
33 In Bostic v. Schaefer,Virginia’s prohibition on marriage licenses for same-sex couples was ruled unconstitutional. 760 F.3d 352 (4th Cir. 2014). Even though this means that same-sex couples can be granted marriage licenses, the status of a same-sex partner’s eligibility for protective orders is still in development.
34 La. REV. STAT. ANN. § 46:2134 (2012).
35 La. REV. STAT. ANN. § 46:2151 (2012).
36 New Orleans, Louisiana, Code of Ordinances Chapter 54 ARTICLE VIII § 54-525.
37See supra,note 15.
38 For an example of how a state’s definition of gender affects a transgender person’s rights see Daniel Borunda, Woman Designated Male at Birth Allowed to Marry Woman in Texas, New York Lawyer, May 5, 2010 (describing how a transgender woman was permitted to marry her female partner because her birth certificate listed her as male).
39After DOMA, 36 States Will Have Little Choice On Gay Marriage, http://mic.com/articles/55071/after-doma-36-states-will-have-little-choice-on-gay-marriage (last visited April 29, 2015).
40Obergefell v. Hodges, Supreme Court Docket Number 14-556,SCOTUSBlog, http://www.scotusblog .com/case-files/cases/obergefell-v-hodges/ (last visited April 29, 2015).
43See generally,http://www.scstatehouse.gov/sess121_2015-2016/bills/3022.htm (last visited May 3, 2015).
44See generally,http://www.capitol.state.tx.us/tlodocs/84R/billtext/pdf/HB00623I.pdf (last visited May 3, 2015).
45See generally,http://oklegislature.gov/BillInfo.aspx?Bill=hb1599 (last visited May 3, 2015).
46See e.g., Human Rights Campaign “Marriage Center,”http://www.hrc.org/campaigns/marriage-center (last visited April 29, 2015).
47Pub.L. 113-4 VIOLENCE AGAINST WOMEN REAUTHORIZATION ACT OF 2013 (2013).
48 1989 MY 8 (Resolves that the American Bar Association urges the Federal government, the states and local governments to enact legislation prohibiting discrimination on the basis of sexual orientation in employment, housing and public accommodations), 1996 AM 10A (Recommends that state and local bar associations study bias in their community against gays and lesbians within the legal profession and justice system) and 2006 AM 122B (Urges federal, state, local, and territorial governments to enact legislation prohibiting discrimination on the basis of actual or perceived gender identity or expression, in employment, housing and public accommodations).