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CDV in SC: Supreme Court Decides Not to Discriminate, After All

On Behalf of | Nov 20, 2017 | Criminal Defense News

The SC Supreme Court issued its second opinion in the case Doe v. State last Friday, this time holding that same-sex couples are covered under SC’s criminal domestic violence (CDV) and civil domestic violence laws.

The Court’s original decision, issued in July of this year, declared the definition of household member in SC’s domestic violence laws unconstitutional because it excludes same-sex couples. The Court’s holding would have removed all non-married couples without children from the definition of household member, to ensure that things were equal for both gay and non-gay DV victims.

The Court reverses itself in the new opinion, finding that, just maybe, including same-sex CDV victims might be a more equitable remedy than excluding another entire group of persons to make the laws “fair.”

Who Can be Charged with CDV in SC?

The definitions of household member in SC’s domestic violence laws determine who can be charged with CDV in SC and they also determine who can apply to the family court for a protective order based on domestic violence.

One of the categories of persons who were eligible for CDV charges was “a male and female who are cohabiting or formerly have cohabited.” This language excluded “a male and male” or “a female and female” who are cohabiting or formerly have cohabited. Last Friday’s opinion made it clear that the language “male and female,” as applied to a same-sex couple, is a violation of Equal Protection and must be interpreted to include persons of all sexual orientations.

The Court now defines “household member” for purposes of SC’s domestic violence laws as:

(1) a same-sex married or formerly married couple;

(2) a same-sex couple, either married or unmarried, who have a child in common;

(3) an opposite-sex married or formerly married couple;

(4) an opposite-sex couple, either married or unmarried, who have a child in common; and

(5) an unmarried opposite-sex couple who is living together or who has lived together.

Was the Law Discriminatory in the First Place?

It was.

Although Justice Few, in his dissent, claims that there was no issue because the CDV laws apply to same-sex couples, here are a few facts that illustrate the discriminatory intent and/or effect of the law:

  • In 1994, the legislature changed the definition of household member to exclude same-sex couples.
  • The “Doe” in Doe v. State sought an order of protection from the family court against her same-sex partner. The order was denied based on her sexual orientation.
  • The Supreme Court’s July Doe v. State opinion would have continued the discriminatory effect of SC’s CDV laws by excluding not only LGBT couples but also any unmarried couple without children from the definition of household member.

The Court changed its decision because both sides asked the Court to reconsider its holding. All parties agreed that the plain language of SC’s domestic violence laws was discriminatory.

Charged with CDV Domestic Violence in Myrtle Beach SC?

Axelrod and Associates has offices in Myrtle Beach, Little River, and Rock Hill, SC. If you have been charged with domestic violence (CDV) in SC, our CDV defense lawyers can help you to get your case dismissed, negotiate a favorable outcome, or take your case to trial.

Call us at 843-353-3449 or fill out our contact form today to schedule a free consultation to discuss your case.

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