Office of Legal Counsel: VAWA Applies to Same-sex Violence

On June 9th, the Office of Legal Councel (OLC) for the U.S. Department of Justice released an opinion (actually dated April 27th, 2010) asserting that the criminal provisions of the 1994 Violence Against Women Act (VAWA) apply to “otherwise covered conduct when the offender and the victim are the same sex.”

Constitutional Law Prof describes the opinion as “a largely textual analysis that “intimate partner,” “dating partner,” and other such non-marital relations include same-sex partners every bit as much as opposite-sex partners.”

The gender-neutral language of the law made it fairly easy to argue – in just 7 pages, the memorandum [PDF] looks at interstate domestic violence, interstate stalking, and interstate violation of a protection order. These criminal provisions use the words “spouse, intimate partner, or dating partner” and in the case of stalking, simply “another person.” Only the first word of these, “spouse,” could not be interpreted to mean an “individual who is the same sex as the target,” as the Defense of Marriage Act (DOMA), requires that word only be applied to heterosexual marriages – even if the same-sex couple is “married under state law.”

As the opinion notes, DOMA does not “address the additional term ‘intimate partner.’” The lawyers at the OLC then go on to conclude “there is no indication Congress intended by that vague phrase [‘social relationship of a romantic or intimate nature,’ the given definition of ‘intimate partner’] to require such relationships to be heterosexual.”

This opinion is extremely important in bringing issues of same-sex intimate partner violence (IPV) to the forefront. A recent study comparing police response to opposite-sex versus same-sex IPV makes it clear that the justice system is not acting in an unbiased manner with regard to same-sex IPV:

Existing biases against gay and lesbian lifestyles and the dominance of heterosexual attitudes within the police department and the courtroom have not created the same atmosphere of legal support and resolution that is offered to heterosexual victims of violence. To date, research has provided a discouraging account of the police response to same-sex domestic violence. This research has noted that police have minimized the potential seriousness of the incident, failed to arrest the perpetrators or even intervene and ignored standard domestic violence procedures concerning the identification and arrest of the ‘primary aggressor’ regardless of physicality.

Even putting aside personal biases that law enforcement officers may have, the legal language of many states’ existing laws make it difficult to obtain protection from abuse.  Ola Barnett, distinguished emerita professor of psychology at Pepperdine University in Malibu, observes in her book Family Violence Across the Lifespan:

Official reports of same-sex IPV are generally lacking because police and the FBI do not have categories suitable for classifying same-sex IPV. Instead, they place these offenders and victims into categories such as ‘friend’ or ‘acquaintance.’ Laws against IPV in some states do not even apply to gays and lesbians because gays and lesbians cannot be legally classified as intimate partners.

Many people think that violence doesn’t occur in same-sex relationships. This is simply not true. As the 1998 domestic violence report by the National Coalition of Anti-Violence Projects (NCAVP) points out, “at least one in four gay and lesbian partners will experience domestic violence in his or her lifetime.”

We applaud the OLC for clarifying this statute as it should be interpreted – protecting all citizens from intimate partner violence, not just those in heterosexual relationships.

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