Here’s one area where North Carolina stands alone: It’s the only state in the country that won’t let people in same-sex dating relationships get a domestic violence protective order.
Now, N.C. Attorney General Josh Stein is taking the rare step of calling the law unconstitutional in an effort to get it overturned in court. In an interview this week, he said he also plans to talk to state legislators about changing the law when they return to Raleigh later this month.
“It’s just nonsensical that on an issue where we work so hard to keep people safe so they don’t have to live in fear they’ll be assaulted or murdered, that we would deny that protection to people just because they’re gay,” Stein said.
In North Carolina, anyone who is a victim of domestic violence can file criminal charges against their abuser.
But a quicker option is a 50(B) protective order, commonly known as a restraining order. The orders, issued by a judge, can force alleged abusers to stay away from victims, lose custody of their children or give up their guns.
In many cases, gay people are legally barred from getting a restraining order in North Carolina — a prohibition that exists nowhere else in the country, according to Stein and others who advocate for changing the law.
The orders are a key part of the legal system’s fight against domestic violence. Judges issue them in civil court, where procedures can move significantly faster, in part because the accused have fewer rights than in a criminal trial.
Those who violate a protective order can then be convicted of a crime.
In North Carolina, there are multiple types of relationships that can qualify people for a protective order — for example, married or divorced couples, or children and their parents. Gay people are not barred from getting protective orders in those circumstances. But when it comes to those who are dating or living together, or who used to be, the law specifically applies only to relationships between “persons of the opposite sex.”
The issue came up last May, when a Wake County woman, identified only by her initials in court filings, asked a judge for a protective order against her ex-girlfriend.
A judge denied her request. When the woman tried again in June, she was again denied. She then took her case to the N.C. Court of Appeals, arguing that she was denied equal treatment under the law.
In a legal brief in her case filed Monday, Stein argued that the law is unconstitutional and should be overturned. Democratic Gov. Roy Cooper asked to join Stein’s argument on Wednesday. And in a separate brief, gay rights groups, including Equality NC, lent their support.
The ACLU of North Carolina is helping with the woman’s appeal. ACLU attorney Chris Brook said this is a law the group has wanted to challenge “for quite some time.”
“Folks who are in abusive relationships are in quite precarious situations,” Brook said in an interview. “And to seek protection and then be told you can’t get that protection, because of who you are, re-victimizes that person. That’s traumatic in and of itself.”
Stein, a Democrat, said that while some high-profile issues over gay rights have become political, he doesn’t think this push should be viewed politically. Until recently, he said, North Carolina was one of four states that denied gay people these types of protections. But the Republican-led legislatures of Montana and Louisiana changed their laws, he said, and then the Republican attorney general of South Carolina intervened to get that state’s law changed.
Stein said the blame for the North Carolina law lies with his own party, since it is several decades old.
“It wasn’t something the Republican-majority legislature did,” Stein said. “This was back in the Democratic-controlled days. And it was done at a time when people didn’t think that same-sex folks deserved equal protection.”
Stein has support from law enforcement, including the North Carolina Association of Chiefs of Police.
“The law needs to evolve,” said Garner Police Chief Brandon Zuidema, the association’s president.
Zuidema said police support is “essentially unanimous” and he views it as simply trying to cut down on violent crime.
“Particularly with domestic violence situations, we’re trying equally to address the issue at hand but also prevent future issues,” he said.
There are other types of restraining orders available under North Carolina law that are not necessarily related to intimate partner violence. For instance, the woman who took her case to the state Court of Appeals eventually got a 50(C) no-contact order, Brook said.
But that type of order does not allow a judge to revoke the alleged abuser’s right to buy or own guns. The woman’s ex-girlfriend’s threats of violence and access to guns were the main reason for the protective-order request in the first place, Brook said.
About 150,000 North Carolinians deal with domestic abuse each year, and about one in every five murder victims in the state is killed by a partner, Stein said.
“Domestic violence is a major social problem, and it’s a driver — a fundamental driver — of violent crime in our country,” Stein said.
Brook said domestic violence is believed to be about as prevalent in same-sex relationships as in opposite-sex relationships. Last year, according to the state courts system, there were more than 30,000 domestic violence cases filed across North Carolina, he said.
It’s impossible to say how many of those cases involved same-sex couples.
“We’re not talking a handful,” he said. “We’re talking hundreds of North Carolinians who are in same-sex relationships and have sought protective orders in any given year.”