2006 Ohio 2343 | Ohio Ct. App. | 2006
Lead Opinion
{¶ 2} On May 13, 2005, appellee was indicted by the Cuyahoga County Grand Jury on one count of domestic violence. The indictment alleged that appellee caused or attempted to cause physical harm to the alleged victim, "a family or household member." Appellee and the alleged victim of the offense were not married, but allegedly cohabited. Appellee filed a motion to dismiss, contending that R.C.
{¶ 3} Appellee's motion to dismiss was based upon the November 2004 approval of the Ohio constitutional amendment known as Issue 1. In particular, Issue 1 amended the Ohio Constitution by defining marriage as follows:
{¶ 4} "Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage." Section
{¶ 5} In a similar case where a defendant was indicted on a domestic violence charge against an alleged victim to whom he was not married, the same trial judge who presided over this case dismissed the charge as being unconstitutional in light of the passage of Issue 1. The state appealed and during the pendency of the within appeal this court ruled in that case, finding that "Ohio's domestic violence statute is neither incompatible with, nor unconstitutional in light of, Issue 1." State v. Burk,
Cuyahoga App. No. 86162,
{¶ 6} Thus, for the reasons explained in this court's opinion in Burk, we hold that Ohio's domestic violence statute is constitutional and coexists in harmony with Section
{¶ 7} We note, however, that recently the Second Appellate District, in State v. Ward, Greene App. No. 2005-CA-75,
{¶ 8} "Whether R.C.
{¶ 9} Accordingly, the trial court's judgment granting appellee's motion to dismiss is reversed, and the conflict is certified.
This cause is reversed and remanded, consistent with the opinion herein, and the conflict is certified to the Supreme Court of Ohio.
It is, therefore, ordered that appellant recover from appellee costs herein.
It is ordered that a special mandate be sent to the court of common pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Cooney, P.J., concurs. Karpinski, J., Dissents (See Dissenting Opinion).
Dissenting Opinion
{¶ 10} I dissent from the majority's conclusion that Ohio's domestic violence statute, R.C.
{¶ 11} The majority, in abbreviated fashion, reaches its conclusion that R.C.
{¶ 12} In determining whether R.C.
"an enactment of the General Assembly is presumed to be constitutional, and before a court may declare it unconstitutional it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible."
Burk, ¶ 16, citing Johns v. Univ. of Cincinnati Med. Assoc.,Inc.,
{¶ 13} While I agree with a presumption of statutory constitutionality, I do not agree that in determining whether the statute and the amendment conflict, the next step is "to give a reasonable construction * * * `so that both may stand.'" Burk,
¶ 17- ¶ 18, citing State ex rel. Smead v. Union Twp. (1858),
{¶ 14} The Ohio Supreme Court has provided the proper method of determining whether a state statute conflicts with a state constitutional provision:
It is not the province of a court to write constitutions or to give to the language used such forced construction as would warp the meaning to coincide with the court's notion of what should have been written therein. On the contrary, the language used must be given its usual and ordinary meaning.
In the case of Slingluff v. Weaver,
"The intent of the law-makers is to be sought first of all in the language employed, and if the words be free from ambiguityand doubt, and express plainly, clearly and distinctly, the sense of the law-making body, there is no occasion to resort toother means of interpretation. The question is not what did thegeneral assembly intend to enact, but what is the meaning of thatwhich it did enact. That body should be held to mean what it hasplainly expressed, and hence no room is left for construction."
This applies with equal force to the construction of a constitutional provision. If the result reached by the observance of this first and most important canon of construction falls short of the purpose and intent of the electors, the remedy is by amendment. (Emphasis added.)
Cleveland Tel. Co. v. Cleveland (1918),
{¶ 15} In the case at bar, the only term in the domestic violence statute this court is concerned with is "cohabiting."2 Though the term is not defined in the statute, it has been defined by the Ohio Supreme Court as follows: * * * the essential elements of "cohabitation" are (1) sharing of familial or financial responsibilities and (2) consortium. R.C.
State v. Williams,
{¶ 16} Williams underscores the purpose of most domestic violence statutes: to acknowledge that an assault on a family or household member is more serious than an assault on a stranger. By enacting domestic violence statutes, legislative bodies intend to protect persons who are in a certain type of "relationship" with one another rather than persons who are simply strangers.
{¶ 17} In prosecuting an offense under the statute, the state must prove the defendant caused or attempted to cause "physical harm to a family or household member." The statute defines "family or household member" as someone who is residing or has resided with the defendant and who is "[a] spouse, a person living as a spouse, or a former spouse of the offender." R.C.
{¶ 18} On this point, the language of the statute is unambiguous. The statute expressly protects people living together as if they were spouses, that is, as if they were legally married. I believe the statute's language "living as a spouse" is clear. Moreover, the Ohio Supreme Court in Williams expressly clarified what it means if a person is living as a spouse.
{¶ 19} As to "cohabitating," 71 A.L.R. 5th 285 is particularly helpful in understanding this word for purposes of domestic violence statutes. Consistent with the Williams requirement that the nature of the relationship be the primary indicia in determining whether persons have or are cohabiting, the majority of courts discussed in the A.L.R. article also place emphasis on the type of relationship that exists or existed between persons at the time of the domestic offense.
{¶ 20} The A.L.R. article cites, for example, the case ofState v. Yaden, (1997),
In Alabama, cohabitation means "some permanency of relationship coupled with more than occasional sexual activity between the cohabitants." In California, cohabitation means "an unrelated man and woman living together in a substantial relationship manifested principally by a permanence, or sexual, or amorous intimacy." In Delaware, the alimony statute defines cohabitation as "regularly residing with an adult of the same or opposite sex, if the parties hold themselves out as a couple, and regardless of whether the relationship confers a financial benefit." The Delaware Supreme Court has defined cohabitation as an "arrangement existing when two persons live together in a sexual relationship when not legally married." In New Jersey, cohabitation is "generally residing together in a common residence * * * where they generally engage in some, but not necessarily all of the following: meals taken together at the residence; departing from and returning to the residence of the other for employment and/or social purposes; maintaining clothing at the other's residence; sleeping together at the residence, or residence of the other; receiving telephone calls at the residence or residence of the other." The court also cited the following definitions: in Illinois, "living together as husband and wife"; in Iowa, "a significant live-together relationship"; in Kentucky, "the mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people including but not necessarily dependent on sexual relations"; in Maryland, "living together as husband and wife without a legal marriage having been performed"; in North Carolina, "living together as man and wife, though not necessarily implying sexual relations"; in South Carolina, "living together in the same house"; in Texas, "dwelling or living together; community of life," or "doing things ordinarily done by spouses"; and in Virginia, "living together permanently or for an indefinite period and assuming the duties and obligations normally attendant with a marital relationship."
Yaden, 414, quoted in 71 A.L.R.5th, *4.
{¶ 21} The A.L.R. article also discusses how the federal domestic violence statutes use the term "cohabitation."
When used as a preposition in statutes generally, and specifically as used in Violence Against Women Act (VAWA) provision defining "intimate partner" as a person who has cohabited with the abuser "as a spouse," the word "as" means in the role, capacity, or function of, and in a manner similar to, or like.
{¶ 22} Because of the magnitude of legal authority defining the term "cohabitation" for purposes of different domestic violence statutes, I must dissent from the majority opinion.
{¶ 23} As noted by Williams, cohabitation means the "sharing of familial or financial responsibilities and
consortium." Id., 465, emphasis added. When two unmarried people share financial responsibilities and engage in consortium with one another, what else have we done historically as a society other than to recognize that relationship as one that possesses the "design, qualities, significance or effect of marriage." See,State v. Ward, Green App. No. 2005-CA-75,
{¶ 24} When two unmarried people are deemed cohabitants under the domestic violence statute, they attain a legal status: each may prosecute the other person for an act of violence under the statute. It is a crime quite different from a general assault, precisely because of the special intimacy of the parties.
{¶ 25} For the foregoing reasons, I would find R.C.
(a) Offenses.
(1) Travel or conduct of offender. A person who travels in interstate or foreign commerce or enters or leaves Indian country or within the special maritime and territorial jurisdiction of the United States with the intent to kill, injure, harass, or intimidate a spouse, intimate partner, or dating partner, and who, in the course of or as a result of such travel, commits or attempts to commit a crime of violence against that spouse, intimate partner, or dating partner, shall be punished as provided in subsection (b).
(2) Causing travel of victim. A person who causes a spouse, intimate partner, or dating partner to travel in interstate or foreign commerce or to enter or leave Indian country by force, coercion, duress, or fraud, and who, in the course of, as a result of, or to facilitate such conduct or travel, commits or attempts to commit a crime of violence against that spouse, intimate partner, or dating partner * * *."
