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June 27, 2011 Articles

LGBT Litigators Confront Violence in the Heartland

By J. Kendall Seal

The experiences of intimate violence among people of different cultures, races, and sexual orientations raise questions not only whether domestic violence is a matter of gender or power, but even more fundamentally whether comprehensive theories can explain the phenomena of battering.

—Nancy Levit and Robert R.M. Verchick, Feminist Legal Theory 195 (New York Univ. Press 2006)

Parker Fernandez is like a lot of guys in his twenties. He attends college at the public university in a rural community near the town where he grew up. He works a 40-hour-plus job. He runs and lifts weights to stay in shape. Parker also happens to be gay. He has been dating a bisexual man, Mark Stevens, who is about 10 years older than he is. Mark has access to considerable financial resources and has relationships with powerful political figures in the community, or so he tells Parker.

Mark monitors Parker's Facebook page and text messages, accuses him of infidelity, and attempts to limit Parker's contact with his once-close friends. Parker's family of origin rejected him when he came out as gay; however, when Parker found Mark, he thought he could create a family with him. Parker was wrong. Mark used several manipulative tactics to control Parker. For example, Mark would misrepresent Parker to potential employers in an effort to sabotage his chances at a new job that might offer Parker a chance to make more money. Parker attempted to leave the relationship, but Mark threatened to kill himself and Parker if he attempted to leave because Mark "could not live without him." One day, Mark opened multiple credit-card accounts in Parker's name and charged them to the maximum amount in an effort to keep Parker trapped in debt and dependent on him. When Parker discovered this, he confronted his boyfriend.

Mark cornered Parker in the kitchen of their home and repeatedly threatened to destroy Parker's reputation, cut Parker's throat, and tell people he was HIV positive, which wasn't true. Parker did not know where to go for help. Who would believe a gay man could be a victim of domestic violence in this rural community? What would happen if Parker's employer found out he is gay? Where would he go for protection and safety?

Before Parker could find out the answer to these questions, his boyfriend cut his throat and then killed himself. When the news landed in the local paper, the police reported that the killing was the result of a disagreement between "two roommates."

Separating Myth from Fact
Narratives are important tools that help raise community consciousness about the plight of lesbian, gay, bisexual, and transgender (LGBT) Americans in rural America. For LGBT litigators, they help provide perspective on how to better understand LGBT violence, their clients, and possibly their own relationships or those of family and friends. Limited research has been conducted on same-sex domestic violence; however, the research we do have provides some valuable insights into the challenges faced by LGBT victims of domestic violence, sexual assault, and stalking. The American Bar Association's Section on Individual Rights and Responsibilities, Commission on Domestic Violence, and Criminal Justice Section, in collaboration with the National LGBT Bar Association, released a Tool for Attorneys Working with LGBT Survivors of Domestic Violence, which include some of the myths and facts that every LGBT litigator should know. They include the following:

Myth: Women can't be abusers, and when lesbian couples fight, it is just a "catfight," not domestic violence. Men are too tough to be abused, and when men fight, it is simply "boys being boys."
Fact: Domestic violence is about power and control. Statistically, LGBT individuals experience domestic violence at the same rate as heterosexual women.

Myth: The bigger, more masculine, or stronger partner is always the abuser in LGBT relationships.
Fact: People of all shapes, sizes, sexual orientations, and gender identities can be abusers or survivors in LGBT relationships. Focusing simply on physical attributes ignores the nonphysical ways abusers assert power and control, including emotionally, verbally, psychologically, and financially, as well as the very real physical abuse that can come from a smaller partner.

Myth: Most abuse that occurs in LGBT relations is mutual.
Fact: No evidence indicates LGBT people are more involved in "mutual abuse" than heterosexuals are. While survivors of all genders and sexual orientations might use physical force to defend themselves, this is not mutual domestic violence. In domestic violence, one partner uses a pattern of power and control over the other partner.

Myth: The dynamics of domestic violence in LGBT relationships are identical to the dynamics of domestic violence in heterosexual relationships; there is nothing more I need to know.
Fact: While the dynamics of power and control might be the same, abusers of LGBT people have different tools at their disposal, and LGBT survivors face different realities when seeking help. LGBT people also face a different legal landscape in many jurisdictions. Morgan Lynn, Tools for Attorneys Working with Lesbian, Gay, Bisexual, and Transgender (LGBT) Survivors of Violence (Am. Bar Ass'n 2010).

The Tool for Attorneys Working with LGBT Survivors of Domestic Violence also raises an important issue for litigators: "What is different about providing legal assistance to LGBT victims of domestic violence?" The resource highlights outing, systematic oppression, exclusion from services, children of same-sex or transgender clients, and geographic challenges presented by small communities. The small size of gay and lesbian communities and the lack of visible resources, especially in smaller towns and rural areas, can make it difficult for the abused partner to seek help. Missouri Coalition Against Domestic and Sexual Violence, "The Technical Assistance Basics" June 2011, Intimate Partner Violence in Lesbian, Gay, Bisexual and Transgender Relationships 3–4 (2011).

Relationship Recognition and the Right to Be Safe
In Missouri, some jurists have attempted to limit access to adult abuse orders of protection. In Rogers v. McGuire, 288 S.W.3d 328 (Mo. Ct. App. 2009), the Missouri Court of Appeals for the Southern District limited stepparents from filing adult abuse orders of protection against one another, while at the same time suggesting that same-sex couples lack standing to seek an adult abuse order of protection. Family law attorneys discussed how this decision reflects the court's concern for judicial economy and efficiency with some attorneys implying that LGBT families were merely collateral damage. The reality is that the language in the decision limits access instead of increasing access to justice and safety for LGBT Missourians.

Notably, the decision suggests who some Missouri jurists believe have a right to be safe: "When we read the entire definitional clause so as to give effect to all of the words used, we conclude that it only applies to a man and woman who are the biological or adoptive parents of a child." The court states, "In Missouri, a marriage can exist only between a man and a woman. Mo. Const. art. I, § 33; § 451.022." Id. at 330. Recent actions by the Missouri General Assembly to clarify Missouri's domestic-violence laws on this issue await the signature of the governor. Mo. S. Newsroom, Priority Legislation Passed by Senate Awaits Governor's Action, (Capitol Briefing Week of May 23, 2011). Other states have tackled alleged conflicts between their anti-gay marriage amendments and their domestic violence laws, such as Ohio. In State v. Carswell, 114 Ohio St. 3d 210, 2007-Ohio-3723, 871 N.E.2d 547, the Ohio Supreme Court stated that the state's domestic-violence laws "do not create or recognize a legal relationship that approximates the designs, qualities, or significance of marriage . . . ." The states are not alone in wrestling with the legal hurdles for LGBT victims of domestic violence.

On April 27, 2010, the Department of Justice, under the leadership of Attorney General Eric Holder, weighed in on protecting LGBT Americans from domestic violence with a memorandum opinion for the acting deputy attorney general of the United States that addresses whether "the criminal provisions of the Violence Against Women Act apply to otherwise covered conduct when the offender and victim are the same sex." According to the memorandum opinion, the answer is yes, the criminal provisions of the Violence Against Women Act apply to otherwise covered conduct when the offender and victim are the same sex. This includes interstate domestic violence, interstate stalking, and interstate violation of a protection order.

In short, LGBT litigators must understand that their LGBT clients who are victims of domestic violence, sexual assault, or stalking face a multitude of cultural and legal hurdles to protecting themselves and their families. As in many legal practice areas, competent knowledge of the law is essential, but it's only one piece of the puzzle in a litigation strategy. LGBT litigators can benefit from using the aforementioned resource for working with LGBT victims of domestic violence and applying the American Bar Association's Commission on Domestic Violence's Standards of Practice for Lawyers Representing Victims of Domestic Violence, Sexual Assault and Stalking in Civil Protection Order Cases.

A Rural Response
Launched in 2004, Legal Services of Southern Missouri's (LSSM) Domestic and Sexual Violence Unit provides services to adult and child victims of abuse, sexual assault, stalking, and human trafficking in a 19-county rural region of southern Missouri. Its primary focus is safety planning, securing orders of protection, and victim-witness representation, and its mission is to help families and individuals rebuild their lives and become self-sustaining, contributing members of the community.

LSSM's practice has led to collaborations that support victim safety and violence prevention. For example, it works with local mechanics who inspect stalking victims' vehicles for GPS tracking devices, and it has an agreement with local veterinarians to provide temporary shelter to victims' pets while they are at local shelters. These collaborations have provided opportunities for education and outreach with members of the community that may not have been attuned to the issues surrounding domestic violence, sexual assault, stalking, or human trafficking. By focusing on education and outreach, LSSM increases awareness of best practices and violence prevention.

Through partnerships with state and federal law enforcement, prosecutors, and victim advocates across the region, LSSM works to increase the coordination of efforts to stop violence directed at its clients. Victims receive a lethality assessment, a list of community resources, and a legal needs assessment, which frequently leads to further civil legal assistance.

Keywords: litigation, LGBT, domestic violence, same-sex marriage

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