The Moral Monday protest tomorrow will highlight equality for people who are lesbian, gay, bisexual and transgender. While same-sex marriage is a high-profile issue in this debate, a lesser known but potentially lethal inequality exists for our LGBT community: North Carolina discriminates against LGBT victims of domestic violence, placing them in danger of re-victimization and even death.
Section 50(B) of the N.C. General Statutes authorizes domestic violence protective orders in cases of intimate partner violence but only in heterosexual relationships. Only two other states discriminate in this way: South Carolina and Montana.
This blatant discrimination violates the Equal Protection Clause of the 14th Amendment to the Constitution. That amendment requires states to provide equal protection of the law to individuals in the states.
Under current Supreme Court case law, unequal protection of LGBT individuals is allowed only if a state can show two things: the discrimination serves a legitimate state interest and the law is crafted to promote that interest.
Currently, victims in same-sex couples are entitled to protection only under Section 50(C), which provides for Civil No-Contact Orders. Those orders are designed for cases of stalking and sexual assault outside of a relationship. They are ill fit for domestic violence cases, resulting in dangerous discrimination against LGBT victims. Three examples make this clear:
1 Enforcement. DVPOs granted to heterosexual victims can be enforced more quickly and severely. Police can arrest an abuser for violating a DVPO. No arrest warrant is required. In addition, violating a DVPO twice is a felony. In contrast, violating a 50(C) order results only in contempt of court in a civil case, enforced by the possibility of a fine or time in jail, but neither is guaranteed.
2 Burden of proof. If an abuser later violates the 50(C) no-contact order, the LGBT victim carries the burden of proving it in court. Heterosexual victims, however, shoulder no burden of proof. Their cases are in the criminal courts. North Carolina prosecutors prove that a heterosexuals protective order was violated.
3 Lifesaving information. Finally, under 50(B), heterosexual victims must receive information about legal aid, home address confidentiality, victim compensation, domestic violence and sexual assault agencies, and victims rights. Section 50(C) does not require this information for LGBT victims.
What is North Carolinas legitimate state interest in refusing full DVPO protection to LGBT victims of violence? Admittedly, some residents in this state refuse to recognize same-sex marriage and related rights, arguing that only a man and a woman can be married. That is a separate issue. Protective orders under 50(B) do not extend the benefits of marriage, or any benefits, to same-sex couples. Quite the opposite, 50(B) orders would assist victims in staying away from their former partners.
What would happen if the legislature removed the heterosexual limitation from 50(B)? It would simply acknowledge, not condone, the existence of a relationship, violence in the relationship and the need for protection. This is no different from how 50(B) currently operates to protect unmarried heterosexuals. All victims deserve protection, regardless of sexual orientation.
Keep in mind, the danger to these LGBT individuals is not theoretical. They are already victims of violence and are deemed by a court to be in further danger. As a group, individuals who identify as LGBT are at equal and in many cases higher risk of domestic and sexual violence in intimate partner relationships. That fact was established by the federal Center for Disease Control and Preventions 2010 National Intimate Partner and Sexual Violence Survey, published in 2013. That survey examined, for the first time, the prevalence of victimization by sexual orientation.
Often, because of societal discrimination, LGBT victims have fewer family and community supports than heterosexual victims. They need full DVPO protection. The North Carolina legislatures discrimination places victimized LGBT individuals at greater risk of re-victimization and even death. Moreover, domestic violence does not stay neatly within the borders of relationships. When violence goes unchecked in our communities, we are all less safe.
All victims of intimate partner violence have a right to equal protection of the domestic violence law. North Carolinas legislature should move now to eliminate the heterosexual relationship requirement from 50(B).
Karen Kranbuehl, an attorney, is a volunteer at Interact of Wake County, the agency that serves victims of domestic violence and sexual assault.