Magistrates and solicitors in York County are in open conflict about whether state law allows members of same-sex couples to bring criminal domestic violence charges against abusive partners.

County magistrates have dismissed at least five cases of domestic violence in the past year, including two in December, finding that state law doesn’t allow for the prosecution of same-sex unmarried domestic abusers, said 16th Circuit Assistant Solicitor Jenny Desch.

Desch’s office has been prosecuting instances of same-sex domestic violence since November 2017, when the state Supreme Court ruled in Doe v. State that the state’s domestic violence protection laws were unconstitutional because they precluded members of same-sex couples from obtaining civil protection orders against their partners.

State Attorney General Alan Wilson’s office issued an opinion in September stating that, based on the Supreme Court’s decision, “individuals in or formerly in a same-sex relationship not only may seek an Order of Protection against a same-sex partner, but that similarly situated individuals may pursue a criminal prosecution for acts of domestic violence.”

But magistrates in York County have interpreted the ruling more narrowly, finding that it did not apply to criminal same-sex domestic violence cases. Jeff Zuschke, assistant public defender for York County at 16th Circuit Public Defender’s Office, said that he has had two cases dismissed due to lack of standing since the Doe decision came out.

Because the case came to the Supreme Court from family court and the ruling held that the statute, which defines a couple as a “male and female who are cohabitating or formerly have cohabitated,” was unconstitutional as applied to Doe, Zuschke contended that the Attorney General’s and solicitors’ interpretations are incorrect.

“Our argument was that the Supreme Court wouldn’t and didn’t use the same remedy of changing the law for a criminal case, and even if they would, since they haven’t yet, no one’s on notice that the law has changed and you can’t, ipso facto [by that very fact], prosecute people,” Zuschke said.

Zuschke said that the Doe decision has to be applied “as written” until addressed in a criminal case. He said that at least two magistrates in the county have agreed with his reasoning so far and that he has spoken with solicitors elsewhere in the state who also agree.

Desch said that she has heard of no other counties where magistrates have interpreted the opinion the way they have in York County. 5th Circuit Solicitor Heather Weiss told Lawyers Weekly that her office also follows the Attorney General’s opinion and “its interpretation of the ruling and the law.”

“My overall concern, aside from treating people differently, is that if you dismiss a case inappropriately, then once it’s dismissed, the bond goes away, as do the protections that come with it,” Desch said.

Desch said that the solicitor’s office is also considering submitting the cases to a York County grand jury to get around the magistrates, but that lengthy delays are a problem, as they would be for pursuing an order of protection in family court.

“The magistrates I’ve dealt with say, ‘If you disagree with me, you can just present it to the grand jury,’” Desch said. “I understand that and we will ask for direct indictments when it is appropriate, but in this particular case, I have five weeks until the next grand jury. What if I need that protection for the victim?”

Zuschke said that he would file a motion to quash such an indictment and bring it to a general sessions judge, before whom it could be appealed.

Desch said that ultimately, the best fix to resolve the situation would be a change to the laws to reflect the ruling of the Supreme Court. But for now, her office believes the Supreme Court’s ruling speaks for itself.

“It’s an important issue to make sure to get right,” Desch said. “I’m going to encourage law enforcement to continue to follow the Supreme Court and make decisions in that way, and I hope it does get cleared up soon.”

Follow Matt Chaney on Twitter @SCLWChaney


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