Frequently Asked Questions:
Virginia Domestic Violence Laws and the LGBTQ Community
Q: Are same-sex partners eligible for Family Abuse protective orders?
A: Yes, with some restrictions. Family Abuse protective orders (see VA Code 16.1-279.1*) are available only against a “family or household member” as that term is defined in VA Code 16.1-228, which includes couples who have “cohabited” together within the past 12 months. The statute does not specifically define the word “cohabit,” but courts have generally interpreted it to apply to unmarried couples who live together in a romantic or intimate relationship. The law does not explicitly address whether same-sex couples are included in this term, but it does not explicitly exclude them either.
In 2006, the Office of the Attorney General of Virginia issued an opinion that, while discussing related matters, assumed that a court could consider same-sex couples to be “cohabiting” for purposes of the family abuse definition. This implicitly overruled an earlier opinion by that office which had stated that same-sex couples could not “cohabit,” though without actually referring to the earlier opinion. The Supreme Court of Virginia then sent a memo to all of the judges in Virginia advising them of the new opinion. This probably means that same-sex couples who have lived together within the last twelve months are eligible for protective orders if there has been an act of family abuse.
Unfortunately, several victims of domestic violence who were in same-sex relationships with their abusers have reported that they were not able to obtain protective orders because of that relationship. Practice varies from jurisdiction to jurisdiction on this issue. However, protective orders are an important tool for your safety, so you should still try to obtain one. If you are turned away, you should consult an attorney. You can also download the Attorney General opinion and Supreme Court memo in the Resources section of this website so that you can print them off and give them to the Judge
Q: What if I am not living with my abusive partner?
- You may be eligible for a Stalking and Acts of Violence protective order (commonly called a “Stalking protective order”) if your abuser is being prosecuted either for stalking or for any crime that has resulted in serious bodily injury to you (see VA Code § 19.2-152.10) . In other words, your abuser does not have to be stalking you for you to be able to obtain this order, but if not, you must have incurred some kind of serious bodily injury.
There is no relationship requirement for this kind of order. Therefore, Stalking protective orders can be a good alternative if you and your abuser have not lived together within the past year or if the court refuses to grant you a Family Abuse protective order because you are LGBTQ.
However, Family Abuse protective orders are usually preferable if you have the choice. This is because the court has more flexibility in what it can order in a Family Abuse protective order than it does in a Stalking protective order. For example, in a Family Abuse protective order, in addition to ordering your abuser to stay away from you, a Judge can grant you exclusive possession of your home or car, among other things. In a Stalking protective order, the Judge can only order your abuser to stay away and not to commit certain crimes against you, plus whatever else the Judge thinks is necessary to prevent your abuser from doing those things.
Q: What should I do if a Judge, magistrate or Court Services Unit refuses to give me a protective order or refuses to allow me to file a petition?
A. First, make sure you are safe. One option is to contact your local domestic violence program for help with safety planning. If you’re concerned that your local program will not be LGBTQ-friendly or you don’t know what your local program is, you can call the Action Alliance hotline at 800-838-8238.
You can also contact the Anti-Violence Project at Equality Virginia, the statewide LGBTQ rights group, at (804) 643-4816. The Virginia Anti-Violence Project (AVP) is an Equality Virginia based program that works to address and end violence in the lives of lesbian, gay, bisexual, transgender, and queer (LGBTQ) people across the Commonwealth. At the same number, you can also alert Amendment Watch, an Equality Virginia program dedicated to monitoring and addressing the impact of the “marriage amendment” (see below), one reason why you may have been denied a protective order. These groups can offer advice and referrals and may be able to help you find an attorney.
Remember, with or without a protective order, if your abuser threatens you or makes you afraid in any way, you have the right to call 911.
You also have the right to appeal a Judge’s decision to the Circuit Court. However, if you decide to do that, you must appeal within ten days of the Judge’s decision. In order to start an appeal, ask the clerk’s office at the JDR court for a Notice of Appeal form. There is no charge to appeal the case, and you do not need an attorney to start the appeal. However, remember that you will not have a protective order in the meantime (while you are waiting for your court date in Circuit Court). This makes careful safety planning particularly important.
Q: What is domestic assault and battery? Does it apply to same-sex couples?
A: Domestic assault and battery, or “domestic assault,” is the common term for the crime of Assault and Battery Against a Family or Household Member (see VA Code § 18.2-57.2). The term “family or household member” is defined in the same way as it is for Family Abuse protective orders, so it includes couples who have “cohabited” together within the last 12 months. Again, the statute does not explicitly include or exclude same-sex couples.
It is important to remember that any assault against another person, whether that person is a family member or not, is a crime. If your partner is violent towards you, you have the right to call the police.
Q: What is the difference between domestic assault and battery and regular assault and battery?
A: Both domestic assault and battery and ordinary assault and battery (see VA Code § 18.2-57) criminalize the same violent behavior; the only difference is whether the victim falls into the category of “family or household member.” Both crimes are first degree misdemeanors with a possible sentence of up to 12 months in jail. However, when a person has been convicted twice before within the past 20 years of domestic assault and battery or one of a few other domestic violence crimes, the third conviction is a class 6 felony and carries a possible sentence of 1-5 years. A third conviction of ordinary assault and battery carries no such increase.
Q: Does Virginia have a mandatory arrest law? How does it affect same-sex couples?
A: Virginia law requires that if law enforcement have probable cause to believe that a domestic assault has occurred (this usually means they are able to see scratches, bruises, or other injuries with their own eyes), they must arrest the “predominant physical aggressor” unless special circumstances exist which would dictate some other course of action (see VA Code § 19.2-81.3). This kind of statute is known as “presumptive arrest,” which differs from mandatory arrest in that although there is a presumption that police will make an arrest, there are situations in which no arrest will be made.
Regardless of whether the police make an arrest or not, they must request an emergency protective order from the magistrate for the victim and provide information about legal and community resources available in the area. If the victim requests it, they must also provide transportation to a hospital, safe shelter, or magistrate.
In theory, this law applies to all domestic violence situations covered by the domestic assault statute, including same-sex couples who live together. However, as is the case for Family Abuse protective orders, actual practice varies from jurisdiction to jurisdiction across the state. Also, sometimes police do not automatically realize that the two same-sex individuals who have been fighting are not just roommates. There is no presumptive arrest law for ordinary assault and battery (police may make an arrest in those cases, but there is no presumption that they will).
Another way that the presumptive arrest law can affect same-sex couples is that police sometimes have difficulty assessing who is the “predominant physical aggressor,” especially if both you and your partner have visible injuries when law enforcement arrives. Police are trained to consider factors such as the nature of the injuries on each person, information about which party struck first, and which party seems to pose the most serious threat in terms of size, strength and/or inclination to harm.
Q: Will domestic violence affect my custody case? What if my partner is our child’s biological parent?
A. Custody cases are decided based on a list of factors that includes (but is not limited to) the age and physical and mental condition of the child and the parents, the relationship existing between each parent and the child, and any history of family abuse (see VA Code § 20-124.3). Family abuse has the same definition in this context as in the protective order context discussed above.
The question of who qualifies as a “parent” is much more problematic for same-sex couples. Virginia law defines a parent only as a biological parent or someone who has formally adopted the child (either in Virginia or elsewhere). For most same-sex couples, this means only one of you will be considered a parent. If your partner is the biological parent and never agreed in writing to give up some of his or her custody rights to you, you will not be considered a parent no matter how long you have been caring for the child.
When a parent is fighting a nonparent for custody, the court will award custody to the parent unless the parent is shown to be unfit. This is good news if you are the parent and your abuser is not, but very bad news if it is the other way around. As discussed above, any history of family abuse will be relevant in a custody case (especially if it occurred in front of the child), but the “unfitness” standard is a very difficult one to overcome. If you find yourself in this situation, you should seek the assistance of an attorney as soon as possible.
Q: What about child support?
A. Only parents are obligated to pay child support. Even if you and your partner have lived together for many years and helped to raise your child together, if your partner is not a biological or adoptive parent, the courts will not require him or her to pay you child support.
Q: My partner’s abuse has left me with injuries that have caused me to lose work and incur medical bills. Is there any way I can force my partner to compensate me?
A. If your partner is being charged with a crime for the abuse, you can apply to the Virginia Criminal Injuries Compensation Fund (CICF) for reimbursement of certain expenses that resulted from that crime, up to a total maximum of $25,000. There is no relationship requirement for this benefit: any victim of any crime can apply for these funds, as long as the victim reported the crime to law enforcement within 120 hours and cooperated with the prosecution. For more information, call CICF at 1-800-552-4007 or visit http://www.cicf.state.va.us.
Q: How does the “marriage amendment” affect all this?
A: In November 2006, the voters of Virginia approved an amendment to the state constitution that bans same-sex marriage and many other legal constructions that would allow the government to give certain rights to unmarried couples. One reason that the Action Alliance worked to educate people so they would vote against the amendment was a fear that courts would interpret it in a way that affected the definitions of “family abuse” and “family or household member” discussed above. In theory, such interpretations could lead courts to conclude that they could no longer grant protective orders to any unmarried couples (same-sex or otherwise), could prevent unmarried partners from being charged with domestic assault and battery, could prevent the application of the presumptive arrest law to unmarried couples, and could keep a court from having to consider a history of domestic violence in a custody case between unmarried parents.
This continues to be a concern for the future. The Action Alliance and other groups are monitoring the courts to see whether any of these feared consequences come up. However, so far, we have not heard of this happening. We are hopeful that Judges will protect the rights of LGBTQ victims of domestic violence by honoring the protective order statute and related laws and rejecting the strained argument that the marriage amendment somehow renders those laws unconstitutional. The marriage amendment should not be a reason for you to decide not to seek a protective order if you are afraid.
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This document contains general information about your rights, but if you have a specific question, consult your lawyer. If you can’t afford a lawyer, consult:
Rachel H. MacKnight, Esq., Legal Aid Society of Roanoke Valley 132 Campbell Ave. SW, Suite 200 , Roanoke, VA 24011-1206 . For an appointment, call (540) 344-2080.
For information on Virginia Law and court forms, check the web at www.VaLegalAid.org or call toll-free 1-866-534-5243.
This document was created by the domestic violence program of the Legal Aid Society of Roanoke Valley . This project is supported in whole or part by grant no. 07-B4866DV07 awarded through the Virginia Sexual and Domestic Violence Victims Fund by the Virginia Department of Criminal Justice Services. Opinions or points of view expressed do not necessarily represent those of DCJS.
If you are interested in receiving on-site training from the LGBTQ2 Task Force, please contact Sherrie Goggans at Membership@vsdvalliance.org or call 804.377.0335. (E-mail is not a secure form of communication. To ensure confidentiality please call the Family Violence & Sexual Assault Hotline at 800.838.8238 (V/TTY).
The LGBTQ2 Task Force welcomes any and all new voices to join in the dynamic work of this group, but consider yourself forewarned, a Task Force meeting is not just any ordinary meeting. We laugh, we cry, and we eat really good food... The group hosts it's three-hour meetings every other month, on Saturdays, and the meeting location alternates between Richmond and Charlottesville. Please join us; we'd love to meet you! If you are interested in participating please call 804.377.0335.