OHIO NEWS

OHIO SUPREME COURT RULES DOMESTIC VIOLENCE STATUTES ARE CONSTITUTIONAL! (Ohio v. Carswell)

The Ohio State Supreme Court ruled on July 25, 2007, in Ohio v. Carswell, that Ohio’s domestic violence statutes do not violate the Defense of Marriage Amendment. The decision by the Court reinforces that all domestic violence victims are entitled to lifesaving resources and protections promised by the domestic violence laws.

The ruling insures that specific benefits afforded to married couples, including access to the Domestic Relations Court and protection orders, are available to married and unmarried persons.

Ohio v. Carswell has been closely watched by domestic violence advocates and legal experts across the country. The question before the court was whether the definition of “person living as a spouse” under domestic violence law conflicts with Ohio’s Defense of Marriage Amendment. Passed by voters in 2004 as a means to ban same-sex marriage in Ohio, the Constitutional Amendment language included that the state “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.” Many defendants in domestic violence cases, including, Michael Carswell, filed appeals claiming the domestic violence statutes were unconstitutional because they created a legal relationship between unmarried individuals; and therefore, they could not be prosecuted for their crimes.

In its 6-1 ruling, the Ohio Supreme Court said that “the term ‘person living as a spouse’ as defined in R.C. 2919.25 merely identifies a particular class of persons for the purposes of the domestic-violence statutes. It does not create or recognize a legal relationship that approximates the design, qualities or significance of marriage as prohibited by Section 11, Article XV of the Ohio Constitution.”

PUBLIC POLICY UPDATE
By Nancy Neylon, Executive Director

• HB 247-Civil Protection Orders in Dating Relationships

  Introduced on May 30, 2007 by Rep. Edna Brown (D-48), the proposed legislation would expand the jurisdiction of the juvenile court to issue civil protection orders to a child who has or has had a dating relationship with another juvenile. Under ORC Section 2903.213 a juvenile may file for a protection order on their own behalf or an adult may file on their behalf. A dating relationship under the proposed legislation is defined as frequent, intimate association between two people, primarily characterized by the expectation of affectional involvement. The court shall consider the following factors when determining whether a dating relationship existed; the nature of the relationship, the length of the relationship, the frequency of interaction and the time since the termination of the relationship. A dating relationship does not include a casual relationship or an ordinary fraternization between two individuals in a social context. The bill provides additional grounds to seek a protection order for a juvenile that includes felonious assault, aggravated assault, menacing by stalking, aggravated trespass or substantially similar municipal ordinances and permits the filing of a motion for a protection order as a pre-trail condition of release of the alleged offender. The proposed legislation also expands the definition of family or household member to include foster parents. The bill has been assigned to the Juvenile and Family Law Committee and has had sponsor testimony and one proponent hearing.

• TANF Family Violence Option Adoption and Implementation

  The Ohio Department of Job and Family Services (ODJFS) has adopted the TANF Family Violence Option (FVO) for the Ohio Works First (OWF) program as an amendment to the budget bill (Sub HB 119) offered by Sen. Kirk Schuring (R-29). ORC Section 5107.71 requires county Departments of Job and Family Services (DJFS) to make a determination as to whether a waiver that exempts a victim of domestic violence from a requirement of the Ohio Works First Program is needed if requiring compliance would make it difficult to escape domestic violence or if domestic violence is a barrier to complying with OWF requirements. The legislation requires county DJFS to refer victims to counseling and supportive services and to maintain the confidentiality of information about the victim. When making a determination regarding a waiver, county DJFS may rely, where available, on the records of law enforcement, courts, domestic violence shelters, legal, medical, religious and other professionals from whom the victim sought assistance or on the victim’s statement that they are experiencing domestic violence. A victim may decline a waiver, terminate a waiver at any time, and may decline counseling and supportive services. If a county DJFS refuses to grant a waiver to a victim they must inform the victim in writing as to the reasons why, still protecting the victim’s confidentiality and the victim may appeal the decision. County DJFS shall provide non-identifying statistical information to the ODJFS and ODJFS shall monitor implementation of the FVO. The ODJFS Office of Family Stability and a committee of key stakeholders are meeting to discuss implementation of the Family Violence Option by January 1, 2008. The FVO does not require individualized assessment by someone trained in domestic violence and thus disallows Ohio from receiving penalty relief when they fail to meet work participation rates or fail to comply with the five year federal time limit by providing the FVO time waivers.

• SB 21 -Uniform Interstate Enforcement of Protection Orders Act

  Introduced on February 20, 2007 by Senator Kevin Coughlin (R-27), the legislation was drafted to adopt the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act and standardize implementation of full faith and credit.

• 2005 Violence Against Women Act (VAWA) Certifications

  The 2005 VAWA requires states to provide certification on two issues to preserve VAWA funding. The first issue requires that courts notify domestic violence offenders about federal firearms prohibitions affecting the respondent in protection orders and defendants in criminal domestic violence cases. Ohio is partially in compliance with this as the Supreme Court of Ohio has adopted protection order forms that warn defendants and respondents subject to such an order of their firearm prohibition. There is no mechanism for domestic violence defendants when a protection order is NOT issued. The plan is to have the Ohio General Assembly ask the Supreme Court of Ohio through legislation to adopt an additional form for these circumstances.

  The second issue requires the state to certify that the criminal justice system (law enforcement, prosecutors) not ask or require a victim of a sexual offense (regardless of age) to submit to a polygraph examination as a condition for investigating, charging or prosecuting such an offense. This will require a statutory change. ORC Section 2907.30 already provides some instruction regarding interview of a rape victim and it would not be a significant stretch to address this issue. The Family Violence Center of the Office of Criminal Justice Services (OCJS) is working with the OCJS legislative liaison on both issues. The certification for both issues must be complete by December 31, 2008.