By Emily Yates
Imagine the following scenario: A woman, we’ll call her M.E., attempts to break up with her boyfriend, T.J.. After hearing that M.E. no longer wants to be with him, T.J. becomes physically aggressive. He gets in M.E.’s face, screaming at her and threatening physical violence. Somehow, M.E. manages to get T.J. out of her house and calls 9-1-1. Police respond to the scene but cannot find T.J. anywhere. They assume he left and that the danger has dissipated, so the police leave. But when M.E. goes outside to lock her gate, she finds that T.J. has been hiding in the bushes this whole time. He runs after her, yelling, and attempts to force his way into her house. The police are called and escort T.J. from the property. M.E. is understandably afraid for her safety, particularly because T.J. is her coworker whom she knows has access to firearms. On a regular basis, T.J. shows up uninvited at M.E.’s home and the homes of her friends. Two days after the incident M.E. goes to court and is granted an emergency ex parte domestic violence protective order without issue.
These facts are taken directly from the Plaintiff’s complaint in the matter of M.E. v. T.J., currently pending before the North Carolina Court of Appeals.[1] The only fact that was changed in this recitation of the facts was the gender of the parties. In real life both M.E. and T.J. are women. Because M.E. sought a domestic violence protective order against an ex-girlfriend with whom she had never lived, her request was denied at the trial court level.[2] Had M.E. sought a protective order against an ex-boyfriend with whom she had never lived, the order would have been granted.[3]
M.E., represented by the ACLU and Amily McCool of the Scharff Law Firm, has taken her fight for a domestic violence protective order to the North Carolina Court of Appeals.[4] Pursuant to a scheduling order of August 19, 2019, oral arguments on this matter were heard on September 17, 2019.[5] The panel hearing oral arguments in the matter of M.E. v. T.J. consisted of Chief Judge Linda M. McGee, Judge Wanda Bryant, and Judge John M. Tyson.[6] While the LGBTQ+ and domestic violence advocacy communities anxiously await a published opinion on this matter, it is important to consider the significance of this decision and the protections it may extend to a community frequently shunned by North Carolina lawmakers.[7]
In North Carolina, domestic violence protective orders are granted pursuant to the definition of domestic violence established in Chapter 50B.[8] Acts that constitute domestic violence include “[a]ttempting to cause bodily injury, or intentionally causing bodily injury,”[9] or placing the victim “in fear of serious bodily injury or continued harassment. . . that rises to such a level as to inflict substantial emotional distress.”[10]
Additionally, the aggrieved party must have had a qualifying “personal relationship” with the person against whom a protective order is being sought.[11] The statutory definition of “personal relationship” includes “persons of the opposite sex who live together or have lived together”[12] as well as “persons of the opposite sex who are in a dating relationship or have been in a dating relationship.”[13] What the statute omits is protection for domestic violence survivors who were, or are, in same sex dating relationships, but never lived with their abuser.
In fact, the trial court judge who denied M.E.’s first request for a Chapter 50B domestic violence protective order found that M.E. was “terrified,” and that T.J. had “caused [her] to suffer substantial emotional distress by placing her in fear of bodily injury and continued torment[.]”[14] The trial court noted that it rejected M.E.’s request exclusively because the parties did not meet the statutory criteria of a personal relationship.[15]
However, there are other protective orders that can be sought by victims of domestic violence who do not meet Chapter 50B’s statutory criteria. In M.E.’s case, she opted to take out a Chapter 50C civil no-contact order while her case is pending before the North Carolina Court of Appeals.[16] However, a Chapter 50C civil no-contact order is far from an adequate substitute for Chapter 50B domestic violence protective order. Chapter 50C civil no-contact orders are typically used as an added layer of protection for victims of stalking or sexual abuse who have no pre-existing personal relationship to their abuser.[17] A Chapter 50C civil no-contact order does not permit the court to confiscate the abuser’s firearms, nor is failure to comply with a Chapter 50C civil no-contact order an arrestable offense.[18] Particularly in cases such as M.E.’s where access to firearms are a legitimate concern and source of fear, a Chapter 50C civil no-contact order is a woefully inadequate substitute. It is impossible to know how many LGBTQ+ victim-survivors of domestic violence choose to stay silent and live in fear rather than come forward and be re-victimized by a system that refuses to adequately protect them.[19]
Intimate partner violence is a prevalent and critical problem within the LGBTQ+ community, and victim-survivors must have access to the tools necessary to protect themselves. The National Intimate Partner and Sexual Violence Survey conducted by the Center for Disease Control found that LGBTQ+ men and women experience intimate partner violence at rates higher than their heterosexual counterparts.[20] These statistics demonstrate that domestic violence against LGBTQ+ individuals is a critical problem that must be addressed by North Carolina’s legal system.
Despite the staggering prevalence of domestic violence against LGBTQ+ individuals, North Carolina is the last state to deny domestic violence protective orders to LGBTQ+ survivors.[21] In recent years, Montana, Louisiana, and South Carolina have all granted domestic violence protective orders for LGBTQ+ individuals.[22]
In South Carolina, a state with a similar political makeup to North Carolina[23], its Supreme Court recently found that the state’s denial of domestic violence protective orders to same-sex couples violated the Equal Protection Clause of both the state and federal constitutions.[24] Similar to M.E., Jane Doe appealed her case to expand domestic violence protections to individuals who had been victimized by a same-sex sex partner.[25] Unfortunately, even after the Supreme Court of South Carolina found the statutory provision denying same-sex domestic violence protective orders unconstitutional, the state legislature still refused to modify its statutory language.[26] This signals an unwillingness of conservative legislatures to provide domestic violence protections for the LGBTQ+ community, making the judiciary the final hope for LGBTQ+ survivors of domestic violence.
As the LGBTQ+ community
anxiously awaits an opinion from the Court of Appeals in the matter of M.E. v.
T.J., one thing can be known for certain: LGBTQ+ North Carolinians deserve
better. Like LGBTQ+ individuals in all
49 other states, victims of intimate partner violence—regardless of the sex or
gender of that intimate partner—deserve the greatest protections afforded under
the law.
[1] Brief for Plaintiff-Appellant at 5, M.E. v. T.J., (No. COA 18-1045).
[2] Id. at 6.
[3] Id.
[4] Chris Brook, In North Carolina, Domestic Violence Laws Still Discriminate Against LGBT People, ACLU (Jan. 15 2019, 1:15 PM), https://www.aclu.org/blog/lgbt-rights/lgbt-relationships/north-carolina-domestic-violence-laws-still-discriminate-against.
[5] Docket Sheet: M.E. v. T.J., North Carolina Court of Appeals, 7 (2019), https://appellate.nccourts.org/dockets.php?court=2&docket=2-2018-1045-001&pdf=1&a=0&dev=1.
[6] Id.
[7] LGBTQ Equality, ACLU, https://www.acluofnorthcarolina.org/en/issues/lgbtq-equality.
[8] N.C.G.S. § 50B-1.
[9] N.C.G.S. § 50B-1(a)(1).
[10] N.C.G.S. 50B-1(a)(2).
[11] N.C.G.S. 50B-1(a).
[12] N.C.G.S. 50B-1(b)(2).
[13] N.C.G.S. 50B-1(b)(6).
[14] Brief for Plaintiff-Appellant at 7, M.E. v. T.J., (No. COA 18-1045).
[15] Id.
[16] Id.
[17] Restraining Orders, National Network to End Domestic Violence, https://www.womenslaw.org/laws/nc/restraining-orders/civil-no-contact-order-50c-orders.
[18] N.C.G.S. § 50C-5.
[19] Will Doran, Gay people can’t get restraining orders against their partners in NC. But that may change. News & Observer (Jan. 10, 2019, 10:08 AM), https://www.newsobserver.com/news/politics-government/politics-columns-blogs/under-the-dome/article224041515.html.
[20] M.L. Walters et al. The National Intimate Partner and Sexual Violence Survey: 2010 Findings on Victimization by Sexual Orientation 2 (2010).
[21] Brook, supra note 4.
[22] Doran, supra note 17.
[23] Party affiliation among adults in South Carolina by political ideology, Pew Research Center, https://www.pewforum.org/religious-landscape-study/compare/party-affiliation/by/political-ideology/among/state/south-carolina/; Party affiliation among adults in North Carolina, Pew Research Center, https://www.pewforum.org/religious-landscape-study/state/north-carolina/party-affiliation/.
[24] Doe v. State, 808 S.E.2d 807, 816 (S.C. 2017).
[25] Id.
[26] Phillip Sylvester, Arming America’s Most Dangerous Abusers: How Domestic Violence Laws Have Failed the LGBTQIA Community, 11 Drexel L. Rev. 783, 802 (2019) (citing S.B. 778 (2017), 122b Gen. Assemb., 2d Reg. Sess. (SC. 2017).).
