Unintended Consequences

Wired News among others reports that a ruling has been handed down on a domestic violence case that could affect Ohio Issue 1.

Issue 1 was touted as a way to “protect the sanctity of marriage” and was supposedly designed to ban gay marriage. It was widely believed to be the broadest of the amendments passed in November. Issue 1 says:

Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

Ohio’s domestic violence law is found in ORC §2919.25, which says in part:

(A) No person shall knowingly cause or attempt to cause physical harm to a family or household member.
(B) No person shall recklessly cause serious physical harm to a family or household member.
(C) No person, by threat of force, shall knowingly cause a family or household member to believe that the offender will cause imminent physical harm to the family or household member.

The problem arose from the definition of “family or household member:”

(F) As used in this section and sections 2919.251 [2919.25.1] and 2919.26 of the Revised Code:
(1) “Family or household member” means any of the following:

(a) Any of the following who is residing or has resided with the offender:
(i) A spouse, a person living as a spouse, or a former spouse of the offender;
(ii) A parent or a child of the offender, or another person related by consanguinity or affinity to the offender;
(iii) A parent or a child of a spouse, person living as a spouse, or former spouse of the offender, or another person related by consanguinity or affinity to a spouse, person living as a spouse, or former spouse of the offender.
(b) The natural parent of any child of whom the offender is the other natural parent or is the putative other natural parent.

(2) “Person living as a spouse” means a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within five years prior to the date of the alleged commission of the act in question.

42-year-old Frederick Burk is accused of hitting his live-in girlfriend during an argument over a pack of cigarettes. Because this was his second DV charge, it became a felony. His defense attorney argued that the domestic violence law was now unconstitutional after Issue 1 passed in November 2004, saying that the statue created “a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage,” which Issue 1 prohibited. The judge in the case yesterday reduced the charge from felony DV to simple assault, reducing the potential sentence from 18 months in state prison to 6 months in county jail.

Prosecutors in the case are arguing that “Issue 1 was not intended to negate the statute, and that the domestic violence law does not create any new legal status for unmarried persons,” according to a Cleveland Plain Dealer article. But it does. The ORC defines “Person living as a spouse,” which is direct conflict with the amendment, in that it does “create…a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.”

As a Christian, I have certain feelings about gay marriage, But I and several other Christian friends voted against Issue 1, because we felt the language went too far, and could be used in ways other than the legislature intended. Sometimes I hate being right.