Does SC’s Domestic Violence Law Discriminate?

As we’ve written before, the state of South Carolina is currently at the top of the list of deadliest states for women at the hands of men. Now that this sad fact is being more widely reported, lawmakers have recently attempted to create new laws to protect our residents from domestic abuse. Just last year we saw new domestic violence reforms that increase penalties for both first-time abusers and frequent offenders. Now, it appears taking a closer look at these laws can uncover some unintended discrimination.

The South Carolina Supreme Court is now saying that a particular domestic violence law discriminates toward same-sex couples. According to the Post and Courier, “The chief justice of the S.C. Supreme Court told lawyers from the state Attorney General’s Office Wednesday that South Carolina’s domestic violence statute as applied to same-sex couples is unconstitutional, but the justices still struggled to determine the proper way to make the law workable.”

The hearing was requested in August by Attorneys Bakari Sellers and Alexandra Benevento. Their anonymous client was denied an order of protection in Richland County. According to The Post and Courier, she was hit and choked by her female ex-fiance.

The Post and Courier states, “Justices spent the bulk of the 30-minute hearing trying to determine the best way to afford protections to same-sex victims of domestic violence — but without being accused by the General Assembly of legislating from the bench.”

The attorneys involved in the case would like to see a new interpretation of the law rather than have it completely stricken. According to the Post and Courier, “Sellers and Smith said there is precedent that would allow the court to interpret “and” in the statute as “or.” Were they to do that, “male and female who are cohabiting or formerly cohabited” would be interpreted as “male or female,” which the attorneys said has been done in previous rulings made by the state Supreme Court.”

While it seems clear that all couples, regardless of gender, deserve protection from domestic violence, Chief Justice Pleicones seems to feel he is in a no win situation. He stated that striking the law will leave too many unprotected, but rewriting the law will draw criticism from the General Assembly.