South Carolina law banning same-sex couples from domestic violence relief tools has been declared unconstitutional — but it’s still on the books

Southeast Region

A petition for an order of protection

The following is part of a multi-week series on domestic violence in South Carolina.

HORRY COUNTY, S.C. (WBTW) – A 2017 legal case declared that South Carolina’s law barring same-sex couples from receiving domestic violence services – including an order of protection – is unconstitutional.

However, years after a judge made that ruling, the law remains on the books. 

“I bet you there are still clerks right now who will say, ‘It says male and female, so you can’t apply,’” said Colleen Condon, a family court attorney who focuses on LGBTQ cases. “I hope that’s not happening.”

Current state code defines the term “household member” in domestic violence legislation to encompass spouses, former spouses, people who have a child in common, and, specifically rewritten in 1994 in what Condon said was a move to exclude same-sex couples, “a male and female who are cohabitating or formerly have cohabitated.” 

The 2017 ruling arising from the Jane Doe vs. State case now means the existing law doesn’t have validity to it, and language has been gender-neutral on forms since 2019. But since that wording still exists, it can be confusing for people who don’t know if their relationships qualify.

“It is extremely reasonable for those people to believe they aren’t going to get a fair shake in court,” Condon said. 

She’s seen the law referenced as recently as two years ago in a case with two men in Horry County when the judge said that existing law couldn’t let him address the case. 

People who are LGBTQ are at a higher risk of being abused, especially by men, according to the 2010 National Intimate Partner and Sexual Violence Survey. 

Bisexual women have the highest rate, with one in 10 experiencing intimate partner violence. Those who are transgender have the second-highest risk, with 54% experiencing intimate partner violence. The results for the transgender population are not further broken down into gender identity.

Nationwide, there’s little official data on how many transgender women are murdered each year.

About 44% of lesbian women have been abused, compared to 35% of heterosexual women. The population with the lowest rate of experiencing abuse is gay men, at 26%. 

One in seven bisexual women, compared to one in 20 heterosexual women, reported that a partner had tried to get them pregnant when they didn’t want to be. Bisexual women are also more likely to have a partner who refuses to wear a condom. 

The survey identifies a “critical need” for services for people who are lesbian, gay, and bisexual and have been abused and stalked. It also said there is a need for laws that explicitly protect the LGBTQ community, and that gender-neutral language can make the final decision on if a judge grants an order of protection.

The 2015 U.S. Transgender Survey shows that the situation hasn’t improved. Of the 27,700 people who answered, half said they’d been sexually assaulted in their lifetime, 54% have experienced intimate partner violence and a quarter has experienced severe physical violence from an intimate partner.

There is an effort in the South Carolina General Assembly to change the legal language to be more inclusive. If passed, H. 3210, proposed by Rep. Beth Bernstein, D-Richland County, would amend the term “household member” in the Protection from Domestic Abuse Act to eliminate the male and female requirement and replace it with “persons who are cohabiting or formerly have cohabitated.” It would also add in people who are, or were, in a dating relationship.

Bernstein said the bill will codify what the court has already decided. While the change has “presented some problem for some people” due to eliminating the man and woman requirement, she said the state should want to protect everyone from domestic violence. 

While a lot of bills never leave a committee and make it to the floor for a vote, she’s optimistic this one will, but she doesn’t want it to get “sidetracked” by the definition of a “household member.”

If it passes, it’ll mean that people in all dating relationships, including teens, will have access to orders of protection.

“It would provide more protections, and access to those protections,” Bernstein said. 

Changing the law would also increase the potential penalties for offenders from simple assault charges, according to Sara Barber, the executive director of the South Carolina Coalition Against Domestic Violence and Sexual Assault, or SCCADVASA. 

“I think that is something we are missing,” she said. “It needs to be dating violence, across the board.”

Adding in dating relationships, she said, is important to provide help, especially because people are waiting longer to get married.

“A huge chunk of people are not included in domestic violence laws,” Barber said. 

While same-sex couples are protected under law, she said that it’s complicated.

Cleaning up that language, Condon said, can help with potential discrimination in the legal system. 

For LGBTQ people who are closeted, she said, it can be terrifying, and there’s no agency that specifically focuses on help for LGBTQ survivors of domestic violence. She said that victim advocates and other services are, however, well-trained about how to help the population. 

She points to the state constitution, which still says marriage is only valid between a man and a woman – despite gay marriage being legalized due to a lawsuit that her family filed.

“There are significant portions of the code of laws that have not been updated to show changes,” she said. “You can find all sorts of things that are not valid.”

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