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Same-Sex Domestic Violence Court Win Has Unintended Problem

COLUMBIA, S.C. — A South Carolina Supreme Court ruling meant to give unmarried same-sex partners the same domestic violence protections as heterosexuals appears to have an unintended consequence: Now authorities might not be able to charge any unmarried person with beating their partner.

Attorney General Alan Wilson has joined with a gay woman who successfully sued the state to ask the justices to re-write their Wednesday ruling. Otherwise, they'll have to rely on the conservative Legislature to change the code, a solution the woman's lawyer, Bakari Sellers, said might get stuck in partisan bickering over the morality of same-sex relationships.

Image: Costa M. Pleicones
South Carolina Supreme Court Associate Justice Costa M. Pleicones. MARY ANN CHASTAIN / ASSOCIATED PRESS

The problem: As the gay rights movement gained national momentum, state lawmakers changed the domestic violence law in 1994 by adding "male" and "female" to the South Carolina code, which initially didn't mention gender. A decade later, they didn't remove the words when they significantly overhauled the law and increased penalties for domestic abuse in 2015.

"What we don't want to do is embarrass the state of South Carolina and have it devolve down into partisan politics," Sellers said.

The court unanimously struck down wording that applied the domestic violence law to households where a "male and female who are cohabiting or formerly have cohabited."

Related: Judge Orders Kentucky to Pay for Same-Sex Marriage Lawsuit Fees

With that phrase entirely eliminated, prosecutors and law enforcement officials worry that domestic violence charges can only apply to married people or direct relatives.

Wilson and Sellers want the court to instead accept a remedy offered by one justice in a concurring opinion: Rather than strike down the phrase about cohabitation, judges could be told to apply the existing law to same-sex couples.

"Because of the immediate and pressing need to protect all victims from domestic violence, we are united in our request to the court and optimistic that we can maintain the protections afforded by the act, and extend them to all victims," Wilson's office said in a statement.

Related: North Carolina Lawmakers Introduce Bill to Ban Same-Sex Marriage

Wilson agreed that it's too risky to ask the Legislature to act when lawmakers might not convene until January.

The Supreme Court had no immediate response.

Sellers emphasized that no one wants the justices to change the impact of Wednesday's ruling.

"This is still a victory for progress," Sellers said. "We just want to make sure things get clarified."

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