Barriers to Addressing Domestic Violence in Same-Sex Relationships
The domestic violence movement arose out of women’s struggle for equality, starting in the 60’s. Theories were developed about domestic violence, in particular one that held that men’s actions towards women in their relationships reflected the paternalistic nature of society- here was society writ small-the man is in control.
Whilst the paternalistic theory is useful, it started to be challenged because domestic violence was, it was soon discovered, not confined to heterosexual relationships where the man engages in domestic violence of the woman. It was soon seen that it occurs by some women towards their men, and also in both gay and lesbian relationships.
How does one assert that a gay man has been paternalistic towards his partner?
Or how does one assert that a lesbian has been paternalistic towards her partner?
For me, the real issue is about power and control- one partner, irrespective of their gender, controls the other, again irrespective of their gender, using whatever tools that come to hand- financial, social, physical or sexual.
There is nothing more stark than talking to a lesbian who is a lawyer who represents gays and lesbians who have been subject to domestic violence by their partners, who said that she was told by her local domestic violence taskforce that her gay clients were not real domestic violence victims, because they did not fit within the paternalistic framework, because they were men.
The other issue that stands out about same sex domestic violence, to this Brisbane domestic violence lawyer at least, is that because two boys or girls are engaged in domestic violence does not mean that BOTH are to blame, nor does it mean that stereotypes are accurate.
Recently I came across a student paper by Jaynacia Abraham in Texas talking about the barriers in recognising lesbian domestic violence there. The paper resonated with me about many of the issues…….
Thank you Jaynacia and her renowned professor, Professor Sarah Buel, for allowing it to be published.
Sarah BuelBarriers to Addressing Domestic Violence in Same-Sex Relationships
by Jaynacia L. Abraham
Directed Research
Prof. Sarah Buel
Spring 2008
Abstract:
The application of traditional feminist analyses of domestic violence has contributed to narrow conceptualizations of violent relationships.1 Lesbians do not fit within the traditional model of domestic violence that emphasize patriarchy and male-female power imbalance.2 As a result of these under-inclusive theoretical models, training, research, community practices, and the social and legal policies surrounding domestic violence also exclude the battered lesbians’ experience.3 This paper examines the legal and social barriers to effective intervention in lesbian battering relationships.
Introduction
The Heterosexual Model of Domestic Violence Obscures Lesbian Battered Women’s Experiences of Abuse
The Heterosexual Model of Domestic Violence
Problems Resulting from the Use of Gender Stereotypes in the Application of the Heterosexual Model of Abuse
The Male-as-Batterer Perspective and Victim Misidentification
The Illogical Presumption of Mutual Combatants
Mutual Restraining Orders and the Perception of Shared Responsibility
The Impact of Myths of Victims
The Impact of Stereotypes on Victims of Color
The Silence of the LGBT Community
Narrowly Tailored Services Needed Despite Similar Patterns of Violence in Same-Sex and Heterosexual Relationship
The Cycle of Violence: Honeymoon, Tension-Building, and Explosion
Special Need for Tailored Services
Homophobia Distinguishes Lesbian Battered Women’s Experiences of Domestic Violence
Homophobia and Social Isolation as a Weapon of the Abuser
Homophobia in the Legal Response
Homophobia in the Provision of Services
The Privilege of “Marriage-Like” Relationships: Statutory Failures in Protecting Victims in Same-Sex Relationships
Explicit Statutory Exclusion
Ambiguous Statutory Language and its Effects
Misconceptions About the Effects of Including Gays and Lesbians in Domestic Violence Statutes
Redefining Family and the Effects on the Institution of Marriage
Condoning Illegal Activity
Over-Inclusion
Review of Printed Material from Various Travis County Victim Services
The Basics: Non-Discrimination Statements and Gender-Neutral Language
Including the LGBT Community in Non-Discrimination Statements
Use of Gender Neutral Language
Beyond the Basics: Targeted Outreach in Print
Conclusion
Introduction
The application of traditional feminist analyses of domestic violence has contributed to narrow conceptualizations of violent relationships.4 Lesbians do not fit within the traditional theoretical models of domestic violence that emphasize patriarchy and male-female power imbalance.5 As a result of these under-inclusive theoretical models, training, research, community practices, and social and legal policies surrounding domestic violence also exclude the battered lesbians’ experience.6
There are very few agencies that include services specific to lesbian intimate partner violence.7 Lesbian victims that seek services from traditional domestic violence agencies may face ignorance, at best, or heterosexism, discrimination, or hostility towards their experience.8 Lacking adequate skills and knowledge of lesbian intimate partner violence, these victims may face danger where their partners are able, through deception, to gain access to services from the same agency. Understanding the special issues relating to their own safety, these victims may find their situations as hopeless and remain with batterers.
Homophobic and heterosexist attitudes further limit the legal response to battering in same-sex relationships. Police, for example, often minimize the danger of the lesbian victim. Victims report that in their response to battering lesbian relationships, law enforcement often behave in a physically intrusive manner, make homophobic comments, and fail to make referrals to helping networks.9 Even in the courtroom, in the absence of a visible perpetrator or at least one that fits into the mainstream conception of what a batterer looks like, judges often misinterpret and minimize the violence in lesbian relationships as mutual combat.10
Lesbian survivors report dissatisfaction with the available domestic violence services.11 Their widely documented frustration indicates that the services available are not truly accessible, open, or accepting of the lesbian victim.12 This paper will examine the legal and social barriers to effective intervention in lesbian battering relationships. Part II defines battering in lesbian relationships, its prevalence and characteristics and critiques the application of the heterosexual model of domestic violence to lesbian battering relationships. Part II establishes the need for services narrowly tailored to the needs of the LGBT community. Part IV explores the distinguishing characteristics of lesbian battering relationships. Part V examines the statutory failures in protecting lesbian victims of domestic violence. Finally, part VI reviews the literature produced by the Austin Police Department, Travis County Sheriff’s Department, Austin District Attorney’s Office, and local domestic violence agencies to gauge the outreach efforts for inclusion of lesbian victims of violence. The section concludes with recommendations for more effective intervention in lesbian domestic violence.
The Heterosexual Model of Domestic Violence Obscures Lesbian Battered Women’s Experiences of Abuse
The Heterosexual Model of Domestic Violence
Domestic violence is defined as the intentional, non-consensual pattern of harm by an intimate partner for the purpose of gaining and maintaining control.13 This expression of physical or psychological violence is characterized by a pattern of intimidation, coercion, terrorism, or violence.14 Considered from the traditional feminist perspective, domestic violence is the result of gender role inequality in heterosexual relationships.15 While feminists disagree as to the origins of the patriarchy and how it is perpetrated, they agree that this patriarchy serves as both the structural and ideological support for male violence against women.16
The paradigm of the heterosexual model of abuse is that men abuse women.17 The emphasis on patriarchy and male dominance in present feminist narratives identify male aggressors and female victims.18 The traditional narrative is neat and easily conceptualized. Indeed, our culture builds the narrative of dames in distress and male brutes (or heroes, never without power in either role) from childhood. Thus not only in theory but also in popular culture domestic violence has become viewed as a tool of male power and dominance over women.19 The distinction is important: the expectation of the identity of batterers is reflected in the services and aid available to the battered.
Cultural assumptions regarding the identity of aggressors and victims contribute to the failure to acknowledge lesbian battering. That women batter other women threatens the traditional analysis of domestic violence where gender inequality acts as the basis of male violence against women.20 The prevalence of same-sex domestic violence forces us to challenge the traditional, heterosexual model of abuse. Where women abuse other women, domestic violence cannot be simply about male dominance.21 The traditional paradigm, particularly its narrow focus on gendered power imbalance, should be expanded. Without consideration of issues including racism, heterosexism, social class, earning power, the traditional heterosexual model suffers credibility loss.22
Despite the convenience of gendered narratives, the traditional explanatory model of domestic violence must be reconceptualized. Female oppression exists outside of simple male dominance. Unlike heterosexual women, the battered lesbian’s experience must be understood absent the “endorsement of gender norms.”23 Battered lesbians’ credibility is lessened by the force of the traditional narrative. Where social and cultural norms define typical victims as the helpless, weak wives of stronger, aggressive husbands, same-sex domestic violence simply is not presumed true. The assumption is erroneous and compounds the danger for the lesbian victim.
Problems Resulting from the Use of Gender Stereotypes in the Application of the Heterosexual Model of Abuse
The reliance on gender stereotypes in the heterosexual model frustrates attempts at effective intervention in same-sex battering scenarios. The absence of cultural gender-markers for the roles of victim and aggressor in lesbian relationships leaves fact-finders unable to identify the offender.24 Unable to answer the question “who is the aggressor,” the traditional equivalent of the question “who is the man,” the application of the heterosexual model of abuse to homosexual relationships leads to (1) victim misidentification, (2) the arrest of both women as mutual combatants, and (3) the issuance of mutual restraining orders.25
The Male-As-Batterer Perspective and Victim Misidentification
Same-sex domestic violence challenges the existing theoretical work on domestic violence because it shows “women as batterers, men as victims, and gender as irrelevant.”26 In heterosexual relationships, most abusers are men and most victims are women.27 However, the overlay of gendered norms to homosexual relationships results in misidentification or the presumptive identification of butch lesbians as abusers.28 In particular, the heterosexist assumption that LGBT partners adopt masculine and feminine roles leads to misidentification. Where there is domestic violence, the bigger, stronger, or more masculine partner is likely presumed the abuser. This presumption fails to question the disposition of power outside of the traditional heteronormative framework.29
LGBT abusers are not always larger or more masculine than their partner.30 Individual abusers exploit whatever differences exist—even stereotypes of femininity.31 Feminine abusers may exploit heterosexist assumptions of femininity to veil their abuse. Those who actually are larger may rely on size however, those who are smaller may use their smaller size to get others to discount their partners disclosure of violence.32 Victims who are larger than their abuser may be afraid to fight back for fear of injuring their partner, fear of being seen as the initial aggressor, or may simply blame themselves for “allowing” themselves to be beaten.33 Because abuse in same-sex relationships does not fit heterosexual patterns of abuse, it is difficult for advocates to recognize partner abuse in same-sex relationships. When translated into same-sex relationships, traditional theories and assumptions lead to misidentification.
The Illogical Presumption of Mutual Combatants
The reliance on masculinity as the mark of the aggressor also leads fact-finders to identify both women as mutually combative. In instances where physical indicia or masculinity do not (incorrectly) imply guilt, the perceived difficulty in identifying the victim leads to the conclusion that the incident involved fair and mutual combat.34 The presumption of fairness in the fight is based on the shared gender of the abuser and victim.35
Lesbian partner violence loses significance under the familiar characterization as mere “cat fights.”36 The theory of mutual battery is that abusive relationships are characterized by reciprocal violence, meaning both partners are guilty of violence and culpable for the same.37 The presumption is illogical and assumes that all violence is the same. The chart below, “Distinguishing Victims from Abusers,” outlines possible distinguishing characteristics of victim and abuser behavior. It is important to note that in many relationships both partners use violence in fights but neither engages in the pattern of control and exploitation that characterize domestic violence. The factors discussed below are considered in the context of coercive, exploitive, and violent tactics that are used to maintain power, control, and dominance.
Chart. 1
Distinguishing Victims from Abusers
Markers of Victim Behavior Markers of Abuser Behavior
Recalls chronology of events in detail
Ashamed of victimization
Blames self
Feels remorse for fighting back or defending themselves
Fearful of partner
Protective of partner
Describes how life has narrowed during the course of the relationship
Has tried unsuccessfully to leave or repair relationship
Feels confused
Exaggerates own injuries & minimizes partners
Abuse in prior relationships and claims not to know why they ended
Feels victimized
Vague about events and omits details
Assertively claims to be a victim
Blames partner and minimizes own role
Claims the violence was a “two way street” or “just a fight”
There are important differences between the initiation of violence, self-defense, and retaliation against a violent partner.38 Even between members of the same sex, partners can be unequally matched for fighting ability due to ability, strength, and intent.39 Even further, the assumption that the abuse is mutual underestimates the role of other sources of power including, for example, money, education, community networks, and immigration status.
Mutual Restraining Orders and the Perception of Shared Responsibility
Lacking an understanding of same-sex domestic abuse, courts over-issue mutual restraining orders.40 Though mutual restraining orders are rarely issued in cases of heterosexual domestic violence,41 in cases involving same-sex partners, judges “routinely order mutual restraining orders without the required written findings of fact.”42 The consequences of issuing mutual restraining orders are significant. Their issuance creates the perception of shared responsibility.43 Accordingly, such orders, for example, may be used by the abuser to take out a criminal complaint against the victim, may result in the victims’ placement in a domestic violence registry, and even may be used against the victim in child custody hearings.44 Thus, the issuance of mutual protection orders, or more accurately the failure to investigate and identify the actual batterer, allows the batterer to continue her control and intimidation of the victim.45
The Impact of Myths on Victims
Heterosexist and racist stereotypes complicate the LGBT victims’ experience. Female abusers are hard to recognize, accounts of their violence are too easily discounted, and they have relatively easy access to domestic violence shelters.46 Male victims are not taken seriously as they are presumed capable of fighting back.47
The Impact of Stereotypes on Victims of Color
LGBT victims of color live with the possibility of violence both because of their race and sexual identity. These victims must navigate service providers and authorities that are potentially both racist and homophobic, may believe that it is normal for people of color to live with abuse, and have a well-documented history of hostile responses to both LGBT communities and communities of color.48 Victims of color are often seen as more aggressive and more likely to fight back than other victims.49 Thus, the victim in interracial relationships may be reluctant to contact authorities out of fear of misidentification. Conversely, white victims may be reluctant to report abusers of color out of recognition that the courts respond more strongly to violence by people of color than violence against them.50 Heterosexist and racist stereotypes exaggerate and minimize the roles of victims and abusers based on social cues instead of actual case-specific factors. Reliance on these uninformed assumptions reinforces the abuser’s power and isolates the victims from helpful and often life-saving services.
The Silence of the Gay and Lesbian Community
Seeking to promote a positive image of same-sex relationships or unwilling to accept the prevalence of a previously heterosexual problem, even the LGBT community has been slow to recognize same-sex partner abuse.51 Community members may be unwilling to acknowledge the prevalence of battering lesbian relationships out of fear that it may fuel society’s hatred and myths of the lesbian community.52 Additionally, the community may have their own myths contributing to their silence, including myths about utopian egalitarian lesbian relationships.53 Again, the traditional gendered narratives contribute to assumptions that women do not oppress or, more importantly, beat up other women.54
Narrowly Tailored Services Needed Despite Similar Patterns of Violence in Same-Sex and Heterosexual Relationships
The Cycle of Violence: Honeymoon, Tension-Building, and Explosion
Same-sex relationship violence occurs in a manner similar to that in heterosexual relationships.55 Despite the sexual identity of the batterer, domestic abuse is about control.56 Like that of heterosexual relationships, domestic violence in lesbian relationships involves patterns of physical, sexual, and emotional abuse.57 The violence is widely regarded as cyclical. The cycle begins with the honeymoon stage where all is good and is followed by a tension-building stage where the victim fears impending violence.58 What follows is an explosion of violence, eventually reset by the new honeymoon phase.59 With each cycle, the violence escalates.60 Lesbian violence is presumed as less violent than male-to-female violence however research indicates that the presumption is inaccurate.61 The application of this misconception to lesbian relationships again minimizes the battered lesbian’s experience.62
In a report by the National Coalition of Anti-Violence Programs (NCAVP) for 2006, they documented 3,534 reported incidents of violence affecting LGBT individuals.63 While limited research is available, it is now apparent that domestic violence in lesbian relationships occurs on a greater scale than society acknowledges.64 As evidenced by the very limited services and resources available even within the gay and lesbian community, even amongst community members battering relationships has gone widely unacknowledged.65 The silence may be the result of societal homophobia.66 This issue is discussed further in Part IV(B).
Special Need for Tailored Services
What is presently clear, however, is that survivors—regardless of their identities—need much help to negotiate the manipulation and abuse inflicted by abusive partners. Batterers often use racism, homophobia, classism, albeism, and any other tool of internal or external oppression to inflict harm. The use of such tactics compounds the harm and may decrease the victim’s willingness to reach to outside help. Even where these victims finally reach out, survivors from marginalized communities often do not receive services on par with that of mainstream communities.
This fact is especially true of the services offered LGBT communities. One size fits all models are a special disservice to LGBT communities. Treating all survivors “equally” is the practical equivalent of “color-blind” policies. Despite their sincerity, a claim to service all without regard to sexuality “misses the point that intimate partner violence occurs in a homophobic and heterosexist culture.”67 Early experiences of homophobic bias and hatred create unique opportunities for victimization of LGBT survivors. LGBT biases strongly affect the experiences of LGBT people across their lifespan.
Emphasis on experiences with hatred and violence is important: such emphasis helps to situate how many victims frame and remedy the violence in their lives. For example, the butch lesbian survivor may be reluctant to reach out to shelters for fear that she will be watched more closely than the more feminine heterosexual residents.68 Similarly, the transwoman survivor that was placed in a men’s jail cell along with her abusive boyfriend may be especially reluctant to contact help-seeking services. Without recognition of bias and its impact in the application of services in court systems, police departments, medical centers, and shelters, service providers may not effectively address domestic violence in same-sex relationships.
Homophobia Distinguishes Lesbian Battered Women’s Experiences of Domestic Violence
Effective intervention is premised on a nuanced understand of the role of bias and hatred in these victims lives. More than any other factor, homophobia distinguishes the battered lesbian’s experience.69 For these victims, homophobia not only shapes help-seeking experiences with law enforcement, the judiciary, shelters, and the community at large but also may be inflicted as a weapon of the abuser.
Homophobia and Social Isolation as a Weapon of the Abuser
An abuser may use homophobia as a weapon in several ways: (1) by threatening to “out” the victim to family, friends, or employers that may be hostile to her sexual orientation, (2) by focusing on societal homophobia to reinforce the victim’s fears that community members may be unwilling to help because of the victim’s sexual orientation, or (3) by exploiting her partner’s own internalized homophobia and inexperience in the lesbian community.70 Each is an attempt to socially isolate, manipulate, control, and oppress the victim.
First, under the threat of “outing,” the victim risks the loss of employment and personal support systems.71 Generally batterers inflict emotional abuse that involves cutting the victim off from friends and family.72 Particular to lesbian victims, however, is that homophobia compounds their isolation.73 This threat then is particularly acute to those victims that have not come out to friends and family and those victims that have been abandoned by friends and family because of their sexual orientation.74 The threat of exposure is used as a method of control.75
Second, the emphasis on societal homophobia reinforces the victim’s fears that people may be unwilling to help because of the victim’s sexual orientation.76 Abusers may try to convince their partner that no help is available because shelters only serve heterosexual women. They may emphasize how unlikely it is that same-sex victims will be believed. They may even invoke fears of worse consequences, like being the victim of a hate crime, to keep the victim from revealing the abuse to outsiders.
Finally, the batterer may also exploit victims’ own internalized homophobia. Internalized homophobia is the shame, self-hatred, and low self-esteem that results when members of a marginalized group share society’s hate and prejudice against them. The batterer in this instance may exploit the victims’ internalized homophobia and inexperience by convincing her victim that she deserved the abuse because she is a lesbian, by exploiting her low self-esteem related to other’s responses to her sexual orientation, or by blaming the violence on past or present oppression as an LGBT person.77 Thus, not only is the victim without recourse amongst family and friends, but, also homophobic rhetoric is used to assault the victims pride and identity.78 Each measure, the exploitation of internalized or societal homophobia, serves to deepen the victim’s isolation.
Homophobia in the Legal Response
Given the widespread charges of police harassment in the gay and lesbian community, lesbian and gay domestic violence is largely unreported.79 One victim reported that when she told police officers about her abuse, they “drooled” and “snickered” when they found out that she was a lesbian.80 Another reported that her own attorney seemed more interested in the details of the two women’s sexual relationship than in investigating the facts of her abuse.81 Still another reported that the responding officer referred to her as a “queer devil” deserving of the abuse because she was a lesbian.82 Same-sex domestic violence victims encounter police departments and personnel that are abusive or deliberately unhelpful.83 Furthermore, in the enforcement of heterosexist laws, police may charge perpetrators with battery instead of domestic violence or, worse, charge or ignore both women as mutual combatants.84 Chart 2 below compares the police and social services responses to heterosexual and LGBT victims of domestic violence.
Chart 2.
Distinguishing Responses to Heterosexual and LGBT Domestic Violence
Heterosexual Battered Women LGBT Victims
Police Response
Police are legally required to identify and arrest the primary aggressor under mandatory arrest laws.
Police are more likely to correctly identify and arrest batterer.
Police seen as potential helpers.
Police Response
Arrest is preferred when police have probable cause to believe a crime has been committed, but is no mandatory and often does not happen in LGBT DV incidents.
Police often arrest both people
Victims who fear being abused because of their sexual orientation or gender identity may not call police when needed.
Court and Social Services Response
Risk of losing kids if partner wins custody or kidnaps them.
Access to both Family Court and Criminal Courts; access to Family Court provides: (1) possibility of sealed records, (2) no arrest necessary, (3) court ordered restitution for damage, and (4) easier to obtain an order of protection which excludes abuser from the home.
Court and Social Services Response
Risk of losing kids because of both partners behavior and sexual orientation.
Access to Family Court only if they have a child in common (rare).
Use of Criminal Courts involves: (1) public records, (2) arrest of abuser, (3) restitution only if abuser is convicted, and (4) great difficulty in getting an exclusionary order of protection, so victim may have to risk trying to evict abuser themselves.
Misclassification, in particular, limits the victim’s access to available services for help.85 Charging batterers with domestic violence rather than simple battery exposes the batterer to enhanced criminal penalties. In the absence of these charges, the victim loses, for example, the protection of measures reserved for domestic violence including mandatory and warrantless arrests, mandatory arrests for restraining order violations, the requirement that spousal abuse be considered in custody determinations, mandatory police training, and mandatory statewide data collection.86
Homophobia in the Provision of Services
Homophobia also complicates or restricts the provision of services to abused gay and lesbians. For example, some states explicitly restrict funding to services for women who have been abused by men.87 Even though lesbians have access to women’s shelters, there is always potential that the shelters may be hostile towards women in same-sex relationships.88 Abused lesbians report feeling unwelcome, due in part to heterosexual residents expressed concerns regarding sharing sleeping space.89 Chart 3 below compares the experience of heterosexual and LGBT victims in shelters.
Chart 3.
Distinguishing Responses to Heterosexual and LGBT Domestic Violence
Heterosexual Victims LGBT Victims
Shelters
Available in most counties.
Other residents are mostly heterosexual women also.
Advocates language and analysis reflects residents’ experience.
Batterers barred from entering.
Shelters
Few shelters for gay men or transgender people.
Lesbians may feel invisible or unwelcome, or risk further abuse by other residents or staff.
Advocates may not understand their experience, or may be heterosexist, homophobic, or transphobic.
Lesbian batterers posing as victims may gain access to shelter.
Beyond homophobic attitudes, service providers are often additionally ill-trained and inadequately equipped to deal with lesbian battering relationships.90 Battered lesbians face unique safety issues in their dealings with shelters, authorities, their LGBT community, and even family and friends. While many shelters are, for example, well guarded from men, the female batterer has ample opportunity to gain access.91 A lesbian abuser may easily gain access by claiming to be a victim herself.92 Such access delegitimizes this safety-planning option for battered lesbians.93
Few shelters train their employees to handle issues specific to same-sex abuse.94 A study of the National Directory of Domestic Violence Programs confirms the limited resources available to lesbian victims of domestic violence.95 A survey of 566 domestic violence programs indicated that only 9.7% of the service providers reported outreach programs specifically targeting lesbian victims.96 The confluence of abuse-related isolation and the lack of social services and shelters available for lesbian victims reinforce the belief that they have nowhere to go.97
The Privilege of “Marriage-Like” Relationships: Statutory Failures in Protecting Victims in Same-Sex Relationships
Presently, all states prohibit domestic violence.98 However, severe disparities exist in the protection of homosexual and heterosexual victims of domestic violence. Largely because of vague or exclusionary statutes, many states exclude same-sex relationships from domestic violence statutes by limiting protection to married couples or using gendered language to include only male-female relationships.99 Present domestic violence law often lacks protection for abused gays and lesbians by protecting only those in marriage-like relationships.100
Explicit Statutory Exclusion
Five states (Delaware, Louisiana, Montana, North Carolina, and South Carolina) explicitly restrict domestic violence law to opposite-sex or married couples.101 Their statutes restrict protection in two ways: (1) by using gendered language to restrict coverage to only male-female relationships or (2) by limiting protection to married or formerly married couples.102 Montana’s statute, for example, does not restrict protection to opposite sex couples on its face.103 The statute purports protection of “partners.”104 Pursuant to a 1993 amendment, “partners,” however, is defined as spouses, former spouses, persons who have a child in common, and persons who have been or are currently in a dating or ongoing intimate relationship with a person of the opposite sex.105 Delaware, Louisiana, North Carolina, and South Carolina all similarly limit protection to victims of the opposite sex.106
Ambiguous Statutory Language and its Effects
Many state statutes refer to “partners,” “cohabitants,” or “household members” in their domestic violence statutes without explicit exclusion of same sex relationships.107 Broader language, however, does not guarantee protection. The application of laws that do not explicitly invite protection to gays and lesbians are inconsistent and vary depending on the attitudes of law enforcement and the judiciary.108
Ambiguous language allows judges and prosecutors to make facially legal decisions that disguise homophobic attitudes.109 This biased application is difficult to document. For example, prosecutorial abuse in the decision to pursue lesser charges in cases of same-sex domestic violence is largely undocumented.110 Similarly, it is difficult to document the dismissal of protective restraining orders for lesbian battered women because they do not fall within the explicit protection of the statute.111
Furthermore, ambiguous language leaves the safety of same-sex couples vulnerable to changes in the law regarding their partnership/marital status. Ohio is an example of shifting privileges and protections for same-sex couples. In 1991, in State v. Hadinger, the court stated that the exclusion of same-sex couples from the protection of domestic violence statutes would “eviscerate the efforts of the legislature to safeguard, regardless of gender, the rights of victims of domestic violence.”112 Subsequent decisions in State v. Yaden and State v. Linner affirmed the extension of domestic violence protection to same-sex relationships.113 Initially, Ohio courts recognized the extension of protection of domestic violence laws to same-sex couples. Their optimism was short-lived.
In December of 2004, Ohio passed an amendment banning same-sex marriages.114 The amendment brought into question whether the language in the marriage amendment precluded the application of domestic violence law to unmarried couples. Five courts considered the issue and reached conflicting decisions.
Most held that domestic violence laws were not in conflict with the Defense of Marriage Amendment.115 Some concluded that the amendment’s intent was to prohibit same-sex marriage and therefore did not apply to the domestic violence statute.116 Still others stated that the domestic violence statute did not violate the plain language of the amendment because it did not create a legal status for unmarried cohabiting individuals.117 A minority of courts held that the plain language of the Defense of Marriage Amendment rendered the domestic violence laws unconstitutional as applied to cohabitants.118 While the issue has since been settled by the Ohio Supreme Court, the conflicting interpretations preceding the Supreme Court’s determinations exemplify the vulnerability of protections for same-sex couples.119
Misconceptions About the Effects of Explicitly Including Gays and Lesbians in Domestic Violence Statutes
Ambiguous or vague laws create unpredictable and unjust results for victims of same-sex domestic violence. Developing on a marital model, or a model bestowing privileges primarily on marital or marriage-like relationships, the laws protecting victims and prosecuting perpetrators of domestic violence are under-inclusive.120 Arguments against explicitly including gays and lesbians in domestic law primarily concern (1) the effects on the institution of marriage, (2) the implications of condoning illegal activity, and (3) over-inclusion.
Redefining Family and the Effects on the Institution of Marriage
Noting the gender neutral language of the statute, in 1997 a Kentucky Court of Appeals found that orders of protection from domestic violence should be issued to same-sex couples.121 Before the case was decided, State Senator Tim Philpot proposed a revision to the law limiting the statute to individuals of the opposite sex.122 In a hearing on the proposal, Philpot stated: “I do not agree that gay couples fit the definition of family…[i]t hasn’t happened in the history of the world.” Arguing against a similar issue in Arizona, State Senator John Kaites also argued against the extension of domestic violence protection to gay and lesbian couples stating “if a man assaults another man, its assault whether they lived together or not…we should not create a special classification for homosexuals living together.”
Individuals that are most likely privileged with recourse from domestic violence include those that are in relationships that at least look traditional.123 Critics fear that the extension of domestic violence protection will erode of the traditional institution of marriage. They fear that gay and lesbian inclusion in domestic violence law would constitute an endorsement of the gay and lesbian lifestyle.124 Their fear is misplaced.
The recognition of domestic violence among gays and lesbians neither promotes nor proscribes gay and lesbian rights to marry.125 Their inclusion in domestic violence law no more affords these individuals the privileges of marriage than it does the non-married, cohabiting heterosexual couples that the law presently protects.126 Gay and lesbian protection under domestic violence law does not extend the insurance privileges, tax benefits, intestate succession rights, and other privileges reserved for married heterosexuals.127 Its premise, like that of the protections offered heterosexual victims, is simply protection from violence.
Classification as simply battery or assault is not enough. Beyond the enhanced criminal penalties for domestic violence offenders, classification as domestic violence affords victims access to shelters and treatment.128 Absent the classification and without the explicit extension of these laws to same sex couples, general assistance in some states are limited to women who have been abused by a man.129 In these states, shelters that provide services to lesbian victims must do so out of separate funding.130
Condoning Illegal Activity
A second argument against the extension of domestic violence law to same-sex relationships is the unintended endorsement of illegal activity. With sodomy laws on the books, the inclusion of gays and lesbians in domestic violence law was considered a legislative endorsement of illegal activity.131 Following the decision in Lawrence v. Texas declaring such laws constitutional, the point is moot.132
Over-Inclusion
Finally, opponents also assert that the inclusion of same-sex couples in domestic violence law would render the law overly broad and inappropriately encompass all roommate relationships.133 The concern appears disingenuous. Statutes excluding same-sex domestic violence often already include heterosexual roommates/cohabitants.134 Furthermore, overbreadth may be remedied by limiting protection to those persons who are in a dating or ongoing relationship.135
Review of Printed Material from Various Travis County Victim Services
Domestic violence literature from the following task forces were reviewed for sexuality-sensitive content: Austin Police Department, Travis County Sheriff’s Office, District Attorney’s Office, the Office of the Texas Attorney General, Texas Department of Human Services, and SafePlace. Public and private shelters and other service providers were additionally contacted. However, the vast majority of area shelters receive their literature from SafePlace. These materials were thus not reviewed in duplicate.
The Basics: Non-Discrimination Statements and Gender Neutral Language
At their best, the literature reviewed from government authorities and private domestic violence agencies uses gender-neutral language. Publications regarded as gender-neutral included language such as “the batterer,” “the abuser,” “the victim,” “he/she,” or “partner” instead of “husband,” “boyfriend,” or the like. The distaste for the use of neutral language may stem from a fear that its use may render the material cold and too broad to have value.
The fear of losing the intended audience is legitimate. Indeed, the premise of this entire discussion is that broad applications or “one-size-fits-all” theories are a disservice to the LGBT community. However, this paper calls not for an in depth analysis of LGBT domestic violence issues in all publications. This community can and should be more effectively targeted. In publications that do not seek to target a specific community but rather all victims, basic opportunities for inclusion are still being missed. These publications may be improved by the more consistent (1) inclusion of LGBT domestic violence in the form of a non-discrimination statement in each publication and (2) use of gender-neutral language.
Including the LGBT Community in Non-Discrimination Statements
The absence of a more inclusive non-discrimination statement is particularly egregious. At a minimum, all domestic violence publications should recognize that domestic violence is an issue that also affects the LGBT community. The mention of domestic violence as more than a straight issue is an attempt to re-educate the entire population and dispel popular myths. Solutions for reshaping social and cultural opinions regarding the LGBT community are beyond the scope of this paper. The call for recognition, respect, and tolerance especially in state published literature is not.
For example, the Texas Department of Health and Human Services publishes a pamphlet entitled “Family Violence and Addiction: Implications for Treatment.” The introduction defines family violence as “the physical assault of an adult woman by her male intimate partner.” The introduction goes on to include “other configurations of the victim-batterer relationship…include[e] violence among homosexual couples.” Considered alone, the definition of family violence is entirely exclusive of homosexual relationships. Arguably, however, even the clarification that follows does not save the introduction from bias. Special care is taken to exclude homosexual victims from the definition of family violence. By defining homosexual domestic violence outside of the definition of family violence, the state materials indicate a homophobic bias regardless of the later inclusion in the more general definition of violence.
The attempt to include the LGBT community through a second qualifying sentence is weak. Instead of indicating inclusion, the use of what amounts to no more than an afterthought conveys the very opposite. In order to be effective, at a minimum, any attempt to include the LGBT community must be facially genuine. Qualifiers, weak clarifications, and afterthoughts are counter-productive and must be eliminated in public outreach literature.
Use of Gender-Neutral Language
Of over thirty brochures reviewed for sexuality-sensitive materials, 41% were produced with gender and sexuality biased language. The Texas Department of Human Services, for example, sponsors a brochure entitled “When Love Hurts: Resources for Battered Women.” The introduction includes a narrative of an abused wife. While the use of the narrative is entirely appropriate, the literature that follows excludes (1) dating and homosexual relationships from the definition of family violence and (2) repeatedly describes the victims experience at the hands of a “husband.” The implied exclusion of dating relationships, include that of homosexual couples, is perhaps unintended but no less clear.
The danger lies not simply with careless language in one brochure. The danger lies in the replication of only the husband narrative. That story is important. There is value in seeing a brochure and seeing a story like your own: be it an African-American or Latina mother, a teen, or a lesbian abuse victim. Never seeing the depiction of a particular story reinforces traditional conceptions of domestic violence to both the victim and the community at large.
Beyond the Basics: Targeted Outreach in Print
Discussing these publications in terms of biased and unbiased language is misleading. More important than gender/sexuality-neutral or gender/sexuality-biased language is the fact that only two brochures reviewed explicitly included the GLBT community as at risk for domestic violence. Of the two, only one pamphlet included a phone number to a Lesbian Family Violence Task Force. Twenty-eight of the thirty brochures reviewed failed to include language such as “gay,” “lesbian,” “bisexual,” or “transgender” explicitly.
The limited materials and the failure to prove diversity on the materials that are produced implies a very limited commitment to LGBT domestic violence. The best of the materials reviewed were labeled “inclusive” having only an introductory non-discrimination statement that included language that domestic violence can occur “regardless of the gender and sexual orientation of both partners.” For the explicit mention of acceptance despite sexual orientation, this publication was regarded “inclusive” instead of neutral or exclusive. This characterization however is too generous.
Simple non-discrimination statements do not represent commitment to inclusion of the LGBT community in domestic violence issues. Despite the inclusion of non-discrimination statements, these publications fail to (1) discuss gender identity and sexual orientation for LGBT people of color as well as white people, (2) indicate collaboration with area LGBT affirmative resources, (3) indicate a commitment to the recruitment and promotion of LGBT staff, including people of color, (4) indicate shelter and service options for trans-victims, or (5) indicate the provision of LGBT affirming and victim sensitive interpreters for clients who do not speak English.136 This list is non-exhaustive but is intended to demonstrate that simply stating that an organization does not discriminate against the LGBT community is not the same as being committed to the resolution of LGBT domestic violence. Actual commitment requires much more.
LGBT victims who perceive advocates as insensitive will not use them as resources. Service providers’ beliefs are communicated even if not directly expressed. One-lined non-discrimination statements simply are not enough to convey actual commitment. Acknowledgment of the high percentage of female domestic victims does not justify the almost complete exclusion of male and GLBT victims.
Conclusion
Austin domestic violence service providers must more be more committed to working with the LGBT community. Areas for improvement include explicitly including LGBT in all agency publications and printed materials. Mere diversity statements are not enough. Print materials on LGBT issues must address the entire LGBT community, talk about gender identity as well as sexual orientation, and address LGBT people of color as well as white community members.
These service providers must also work to develop more comprehensive materials for LGBT clients. One page flyers simply are not enough. Homophobia complicates the LGBT victims’ experience. LGBT victims are often reluctant to air issues related to abuse for fear of triggering homophobic attacks on their communities or receiving ignorant or hostile responses from service providers. Given the present hostility towards same sex relationships that still pervades popular culture, these fears are legitimate. In response, service providers must work to appear more than merely tolerant of LGBT issues. Instead, they must be very clear in the messages they send to both straight and LGBT communities: that they have the knowledge and skills necessary to sensitively and effectively respond to LGBT domestic violence.
Stephen Page, Harrington Family Lawyers, Brisbane spage@harringtonfamilylawyers.com 61(7) 3221 9544
