Restraining Order Availability by State: 1997
from data provided in a October 6, 1998 report by the
National Coalition of Anti-Violence Programs
© 2002, Demian
The following state map and chart are part of an annual report on lesbian, gay, bisexual, and transgender domestic violence from the National Coalition of Anti-Violence Programs (NCAVP) for 1997. They provide an overview of the patchwork of laws across the United States as it relates to restraining orders protecting abused partners in same-sex relationships.
For complete analysis, please see the main document: Domestic Violence Report — 1997
Also see the NCAVP: Domestic Violence Report — 2000
States Which Have Violence Protective Orders Available
to Victims of Same-Sex Domestic Violence — October 1998
|
Affirmatively Available
· Specifically include same-sex relationships by statute or judicial interpretation.
· 4 States
|
Neutrally Available
· Laws are gender-neutral and do not specifically include or exclude same-sex relationships.
· 37 States and D.C.
|
Arguably Available
· Laws are unclear but arguably exclude victims of same-sex domestic violence.
· 3 States
|
Clearly Unavailable
· Laws exclude persons who are not legally married or who are not of “the opposite sex.”
· 7 States
|
Appendix B
Restraining Order Availability (by State)
for Victims of Same-Sex Domestic Violence
This chart indicates statutory availability of protective orders to victims of same-sex domestic violence according to whether domestic violence orders are Affirmatively Available (law is written or has been interpreted to provide protection for same-sex couples), Neutrally Available (laws are written in gender-neutral language, so orders should be available), Arguably Unavailable (laws or victims potentially affected by sex crime statutes), or Clearly Unavailable (laws which expressly exclude same-sex couples through hetero-centrist language), Even in states where a law is written in gender-neutral language, courts may not be willing to extend protection to lesbian, gay, bisexual or transgendered victims of domestic abuse, while courts in other states may issue protective orders despite apparently exclusive laws. As much information as possible has been provided so that advocates and victims may gets sense of how a particular state’s laws are written. However, the law may have recently changed, or other remedies not listed here may be available. This chart is designed to provide information only; please consult an attorney for legal advice and current, accurate interpretations of laws.
| State |
DV-Specific
Protection Orders |
Available to
SSDV Victims? |
Relevant Language
or Restrictions |
Other Statutory
Options |
Comments |
| Alabama |
Ala. Code § 30-5-1
et. seq |
Neutrally Available |
Protection available for “present or former household members” |
None found. |
|
| Alaska |
Alaska Stat. 18.66.100 et. seq |
Neutrally Available |
Protects household members, including “adults or minors who live together or who have lived together … who are dating or who have dated … who are engaged in or who have engaged in a sexual relationship.” |
None found. |
Redrafted in 1986 to remove personal pronouns. |
| Arizona |
Ariz. Rev. Stat. §§ 13-3602, § 13-3624 |
Clearly Unavailable |
Protection order availability requires marital, blood, or opposite-sex relationship. |
Injunctions Against Harassment available under § 12-1809 |
|
| Arkansas |
Ark. Code § 9-15-201 et. seq. |
Neutrally Available |
Must be or have been in the past residing or cohabitating (sic) together. But see Atty. Gen, Op. 97-392 (1998) (concluding that, in some circumstances, persons who have had sexual relationships, but who have not lived together, may be included). |
Protective Orders generally available for: Harassment § 5-71-208; Harassing Communications § 5-71-209; Stalking § 5-71-229; Terroristic (sic) Threatening § 5-13-301. |
|
| California |
Calif. Fam. Code §§ 6200 et. seq., 6300 et. seq |
Neutrally Available |
The law protects “a cohabitant or former cohabitant” and “a person with whom the respondent is having or has had a dating or engagement relationship.” Cohabitant is defined as “a person who regularly resides in the household.” But see O’Kane v. Irvine, 47 Cal. App. 4th 207, which held that sublessees (sic)are not cohabitants under the Act. |
Protection for stalking victims is available under Penal Code § 646.91 and a civil harassment restraining order may be petitioned for under the Code of Civ. Proc. § 527.6. |
|
| Colorado |
Colo. Rev. Stat. § 14-4-102 |
Neutrally Available |
Applies to parties who have been involved in an “intimate relationship” as well as to parties who live or have lived together. |
§ 18-1-1001 mandates a restraining order against defendants to prohibit harassment or intimidation of a victim or witness. |
“Intimate relationship” is not defined for purpose of restraining order; criminal statute definition applies to “unmarried couple” so applicability to same-sex abuse is unclear. |
| State |
DV-Specific
Protection Orders |
Available to
SSDV Victims? |
Relevant Language
or Restrictions |
Other Statutory
Options |
Comments |
| Connecticut |
Conn. Gen. Stat. §§ 46b-15, 46b-38c |
Neutrally Available |
Must be residing together or have resided together in past. |
Protection orders available for stalking victims available under § 54-1k. |
|
| Delaware |
10 Del. Code § 1045 |
Clearly Unavailable |
Protected classes include family (defined by blood and/or marriage) and former spouses, or man & woman cohabiting, or man and woman with child in common. |
None found. |
|
| District of Columbia |
D.C. Code § 16-1005 |
Neutrally Available |
Protects those who share or have shared a residence and persons who maintain or maintained a “romantic relationship not necessarily including a sexual relationships.” |
May be able to petition for a stay-away order if abuser violates Stalking Law, § 22-504. |
|
| Florida |
Fla. Stat. § 741.30 |
Arguably Unavailable |
The law protects “family or household members,” which includes persons who are presently residing together as if a family or who have resided together in the past as if a family. |
§ 914.24 creates a civil action to restrain harassment of a victim or witness. § 784-046 allows an action by a victim of repeat violence for a protective injunction. “repeat violence” is two or more incidents of assault, battery, sexual battery or stalking. Eligible victims may have fees waived. |
Florida criminalizes same-sex sexual activity and bans same-sex marriage; both laws support an argument that the state does not consider same-sex couples to be a “family.” |
| Georgia |
Ga. Code Ann. § 19-13-4 |
Neutrally Available |
Although protective orders are available to “persons living or formerly living in the same household,” some protections in the domestic violence order are granted explicitly to spouses while other provisions apply generally to the “parties.” |
§ 17-17-6 provides for orders prohibiting harassment of a victim or witness in a criminal case. § 16-5-94 allows any person who alleges stalking to seek a restraining order; court may restrain conduct of harassing party and may order either or all parties to receive psychiatric treatment. |
See also §19-13-20, which defines family or household members more restrictively for purposes of state-funded shelters. |
| Hawaii |
Hawaii Rev. Stat. §§ 586-3 et. seq. |
Affirmatively Available |
Family and household members are protected, including “Reciprocal Beneficiaries,” a legal relationship specifically available to same-sex partners. Persons residing or formerly residing in same dwelling unit are also covered. |
§ 604-10.5 gives district courts the power to enjoin, prohibit or temporarily restrain harassment; any person may petition court for order. |
Couples (residents only) must register for Reciprocal Beneficiary status, which gives them some of the privileges and protections generally reserved for married opposite-sex couples.
[Hawaii greated expanded registration benefits in January 2012
See: Civil Unions: The Hawaii Approach.]
|
| State |
DV-Specific
Protection Orders |
Available to
SSDV Victims? |
Relevant Language
or Restrictions |
Other Statutory
Options |
Comments |
| Idaho |
Idaho Code § 39-6304 et. seq. |
Neutrally Available |
Includes persons who reside or have resided together; § 39-6302 provides that law be “construed liberally.” |
Under § 18-920, a no-contact order may be issued when a person commits assault, battery, and other crimes. |
|
| Illinois |
725 Ill. Comp. Stat. 5/112A-14 |
Affirmatively Available |
Protects persons who live or lived together, persons who have or had a dating relationship, and persons with disabilities and their personal assistants. See also Glater v. Fablanich, 625 N.E.2d 96 (1993) (upholding one man’s protective order against another man). |
None found. |
|
| Indiana |
Ind. Code § 34-26-2.1 et. seq. |
Neutrally Available |
“A person may petition any court … for a protective order.” “Person” is defined at § 34-6-103 to include “individuals at least 18 years of age and emancipated minors.” |
Injunctions and Restraining Orders Generally § 34-26-1-1 |
|
| Iowa |
Iowa Code § 236.4 et. seq. |
Neutrally Available |
Protects “persons cohabiting” currently or within past year. Cohabiting is defined in State v. Kellogg, 542 N.W. 2d 514, by reference to six factors: sexual relationship between parties, sharing income and/or expenses, jointly owned property, holding selves out as husband and wife, continuity of relationship, and length of relationship. |
§ 91OA.11 allows court to issue temporary restraining order prohibiting harassment or intimidation of victim or witness. |
|
| Kansas |
Kan. Stat. Ann. § 60-3105 et. seq. |
Neutrally Available |
Protected persons must reside or have resided together. |
None found. |
In 1983, statute changed so that “persons” replaced “family or household members.” |
| Kentucky |
Ky. Rev. Stat. Ann. § 403.75 et. seq. |
Affirmatively Available |
Although the statute does not clearly include SSDV (it protects “unmarried couples who are living together or have formerly lived together”), the court in Ireland v. Davis, 957 S.W.2d 310 (1997), ruled that the laws “afford protection to same-sex couples just as they do to the others enumerated therein.” |
None found. |
Emergency Protective Services under Chapter 209 (Protection of Adults) are not available for victims of same-sex domestic violence, though they are available for battered spouses.
|
| State |
DV-Specific
Protection Orders |
Available to
SSDV Victims? |
Relevant Language
or Restrictions |
Other Statutory
Options |
Comments |
| Louisiana |
La. Rev. Stat. Ann. § 46:2131 et. seq. |
Clearly Unavailable |
Unmarried adults protected only if they reside together as spouses and if children also live with them. |
Disabled persons and adults older than 60 may be able to obtain restraining orders under § 14:403.2 |
|
| Maine |
Maine Rev. Stat. Ann. tit. 19-A § 4001 et. seq. |
Neutrally Available |
Individuals “presently or formerly living together and individuals who are or were sexual partners” are protected. |
Title 5 § 4651 et. seq. allows any person who has been a victim of harassment to file for a protection order, including an emergency order. |
Same-sex relationships are not included in the law regulating “Crimes between Family Members” (Title 15 § 321). |
| Maryland |
Md. Code Ann., Family Law § 4-501 et. seq. |
Arguably Unavailable |
Protects cohabitants, defined as “a person who has had a sexual relationship with the respondent and resided with the respondent in the home for a period of at least 90 days within one year before the filing of the petition.” But providing a sexual relationship may leave victim vulnerable to prosecution under state prohibition of “unnatural or perverted sex practices” (Art. 27, § 554). |
None found. |
|
| Massachusetts |
Mass. Gen. Laws ch. 209A § 3 |
Neutrally Available |
Protects persons who are or were residing together and persons who are or have been in a “substantive dating or engagement relationship” as judged by 4 factors (e.g., duration & type of relationship) |
None found. |
|
| Michigan |
Mich. Comp. Laws § 27A.2950 et. seq. |
Neutrally Available |
Protects persons who reside or resided together, or who have or have had a dating relationship. |
Stalking Law § 28.643(8) and (9) |
DV provided by DSS available only to opposite-sex partners. |
| Minnesota |
Minn. Stat. § 518B.01 |
Neutrally Available |
Protects persons who reside or resided together, or who are “involved in a significant romantic or sexual relationship.” |
None found. |
|
| State |
DV-Specific
Protection Orders |
Available to
SSDV Victims? |
Relevant Language
or Restrictions |
Other Statutory
Options |
Comments |
| Mississippi |
Miss. Code Ann. § 93-21-1 et. seq. |
Arguably Unavailable |
Protects “persons living as spouses.” |
None found. |
Probably difficult to prove that same-sex domestic partners “live as spouses” in a state with a sodomy law, a same-sex marriage ban, and no statewide civil rights protections for LGBT persons. |
| Missouri |
Mo. Rev. Stat. § 455.010 et. seq. |
Neutrally Available |
Includes adults who reside or have resided together. |
An “adult who has been the victim of stalking” may petition for a protection order under Chapter 455. |
|
| Montana |
Mont. Code Ann. § 40-15-102 |
Clearly Unavailable |
Under § 40-15-102, partners and family members of abusers may file for orders of protection. However, “partner” is defined only in the context of an opposite-sex relationship (see § 45-5-206). |
In addition to partners and family members, § 40-15-102 does provide access to protective orders for victims of the following crimes (regardless of relationship to perpetrator): stalking, incest, sexual assault, sexual intercourse without consent. |
Interestingly, § 49-1-101, entitled “Right of protection from personal injury,” states: “Besides the personal rights mentioned or recognized in other statutes and subject to the qualifications and restrictions provided by law, every person has the right of protection from bodily restraint or harm, personal insult, defamation, and injury to his personal relations.” |
| Nebraska |
Neb. Rev. Stat. § 42-924 |
Neutrally Available |
Includes persons who reside or resided together. |
Stalking (crime committed by “any person who willfully and maliciously harasses another person with the intent to terrify, threaten, or intimidate.”) § 28-311.03 Protection order is the same as domestic violence order. |
|
| Nevada |
Nev. Rev. Stat. § 33.017 et. sq. |
Neutrally Available |
Protects persons who are or were “actually residing” together or who are having or have had a dating relationship. Although abuser is always referred to with male pronouns, victim is also referred to with male pronouns, indicating generic use of gender-linked language. |
§ 200.591 allows any person who “reasonably believes” s/he is a victim of stalking or harassment to petition court for a protective order. § 33.015 provides for an injunction to restrain unlawful acts against witnesses or victims of a crime. |
|
| New Hampshire |
N.H. Rev. Stat. Ann. § 173-B:4 |
Neutrally Available |
Protects persons who cohabit or cohabited and persons who are or were involved in a romantic relationship. |
§ 633:3-a allows victims to obtain protective orders by proving stalking by a “preponderance of evidence” (a burden of proof less stringent than that required in a criminal case). |
|
| State |
DV-Specific
Protection Orders |
Available to
SSDV Victims? |
Relevant Language
or Restrictions |
Other Statutory
Options |
Comments |
| New Jersey |
N.J. Stat. Ann. § 2C:25-28 |
Neutrally Available |
Protects current or former household members and persons in “dating relationship” |
A Stalking conviction under § 2C:12-10 acts as an application for a permanent restraining order for the victim. |
|
| New Mexico |
N.M. Stat. Ann. § 40-13-5 |
Neutrally Available |
Protects persons with a “continuing personal relationship;” cohabitation expressly not required. |
None found. |
|
| New York |
N.Y. Fam. Ct. Act § 828 |
Clearly Unavailable |
Family Court Act § 812 gives the court jurisdiction, in “family offense proceedings,” over persons (a) related by consanguinity or affinity; (b) legally married; (c) formerly married or (d) who have a child in common. |
Victim my petition criminal court for protective order if abuser is charged with crime such as assault or harassment. |
|
| North Carolina |
N.C. Gen. Stat. § 5OB-2 |
Neutrally Available |
Prior to 1997, the domestic violence law protected persons of the opposite sex who live or lived together and persons of the opposite sex in dating relationships. In December 1997, the protected class of “former and current household members” was added, potentially broadening protections to include members of same-sex relationships who live together. But see Comments for interaction of domestic violence laws with sodomy laws. |
None found. |
§ 50B-8 specifically provides that any protection order granted under that statute will not serve as a defense to persons prosecuted for fornication, adultery, or with “crime against nature.” |
| North Dakota |
N.D. Cent. Code § 14-07.1-02 |
Neutrally Available |
Action for protection order may be brought by any “person if the court determines that the relationship between that person and the alleged abusing person is sufficient to warrant the issuance of a domestic violence protection order.” May also be brought by persons in a dating relationship or who live or lived together. |
§ 12.1-31.2-01 allows any person who is a victim of “disorderly conduct” (defined as intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person) to petition for a restraining order. |
Extremely liberal domestic violence law, but depends largely on the discretion of the judge. |
| Ohio |
Ohio Rev. Code Ann. §§ 2919.26 and 3113.31 |
Affirmatively Available |
Statute protects “person living as a spouse,” which is defined as a person who is cohabiting or has cohabited in the last five years with offender. At least three Ohio courts have held that this applies to two persons of same sex living together. |
Under § 2902.21.3, an Anti-Stalking protection order is available to victims not covered under the domestic violence law. |
Case law holding that same-sex couples are covered: State v. Hadlinger, 573 N.E.2d 1191 (1991); State v. Linner 665 N.E.2d 1180 (1996); State v. Yaden, No. C-960483, 1997 WL 106343.
|
| State |
DV-Specific
Protection Orders |
Available to
SSDV Victims? |
Relevant Language
or Restrictions |
Other Statutory
Options |
Comments |
| Oklahoma |
Okla. Stat. tit. 22 § 60.2 |
Neutrally Available |
Protection from “Domestic Abuse” available for family or household members or for persons who are or were in a dating relationship. |
Protective orders are also available under this law for any persons who are victims of Stalking or Harassment. |
|
| Oregon |
Ore. Rev. Stat. § 107.710 |
Neutrally Available |
Protects persons who have been in sexually intimate relationship with abuser. |
Stalking protection order available under §§ 30.866 and 163.738. |
|
| Pennsylvania |
23 Penn. Cons. Stat. § 6108 |
Neutrally Available |
Protects persons living as, or who lived as, spouses and current or former sexual or intimate partners. |
Title 18 § 4954 allows criminal court to grant protective orders for crime victims and witnesses. |
|
| Rhode Island |
R.I. Gen. Laws § 8-8.1-3 and 15-15-3 |
Neutrally Available |
§ 8-8.1-3 protects “persons who are or have been in a substantive dating … relationship within the past six months” and cohabitants (persons who reside or resided within the past three years together) § 15-15-3 protects “persons who are or have been in a substantive dating or engagement relationship within the past six months in which at least one of the persons is a minor” |
§ 12-28-3 sets forth the rights of crime victims, including the right to protection. |
Most victims of same-sex abuse should be able to file for protective orders under Title 8, Courts and Civil Procedure. The Domestic Relations Laws apparently apply to minor’s relationships. The primary difference between the two orders is that the Domestic Relations order provides for a temporary order of child custody and support. |
| South Carolina |
S.C. Code. Ann. § 16-25-50 |
Clearly Unavailable |
Protects household members, defined by blood and marital relationships, and as “a male and female” who cohabit. |
§ 16-3-1750 authorizes courts to issue restraining orders against persons engaged in harassment or stalking. |
1994 amendment added “male and female” language to the domestic violence law. |
| South Dakota |
S.D. Codified Laws § 25-10-3 |
Neutrally Available |
Protects “persons living in the same household” and “persons who have lived together” |
§ 22 19A-8 provides for a Stalking protection order |
|
| State |
DV-Specific
Protection Orders |
Available to
SSDV Victims? |
Relevant Language
or Restrictions |
Other Statutory
Options |
Comments |
| Tennessee |
Tenn. Code Ann. § 36-3-606 |
Neutrally Available |
“Victim” of domestic abuse includes member of following categories who is not the primary aggressor: adults or minors who live or lived together, or who are dating or have dated, or who have or had a sexual relationship. |
None found. |
|
| Texas |
Texas Fam. Code § 85.022 |
Neutrally Available |
Protects current and former household members; household defined as “a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other” |
The Code of Criminal Procedure § 17.292 allows issuance of protective order at request of stalking victim. |
|
| Utah |
Utah Code Ann. § 30-6-2 |
Neutrally Available |
“Cohabitant Abuse Act” § 30-6-l et. seq. protects persons 16 and older who were living as spouses or who reside or resided in same residence. |
None found. |
|
| Vermont |
Vt. Stat. Ann. tit. 15 § 1103 |
Neutrally Available |
Protects persons who “are living or have lived together, are sharing or have shared occupancy of a dwelling, are engaged in or have engaged in a sexual relationship, or minors who are dating or who have dated.” |
None found. |
|
| Virginia |
Va. Stat. Ann. §§ 16.1-253.1 et. seq. and 16.2-279.1 |
Clearly Unavailable |
Although protected household members include persons who cohabit or cohabited in last twelve months, a 1994 Attorney General Opinion defines “cohabit” as persons living together as husband & wife, specifically excluding roommates and LGBT relationships. 1994 V. Op. Att. Gen. 60 (July 22, 1994) |
§§ 19.2-152.8 et. seq. allow issuance of orders to protect any person from stalking. |
|
| Washington |
Wash. Rev. Code §§ 26.50.060, 26.50.070, 10.99.040, 10.99.050 |
Neutrally Available |
Protects adults who reside or resided together; persons over 16 who reside or resided together and have or had a dating relationship; persons 16 and over who have or had a dating relationship. Dating relationship is defined as “a social relationship of a romantic nature.” § 26.50.010 |
Civil Anti-harassment Protection Orders are available under § 10. 14.080 |
|
| State |
DV-Specific
Protection Orders |
Available to
SSDV Victims? |
Relevant Language
or Restrictions |
Other Statutory
Options |
Comments |
| West Virginia |
W.Va. Code § 48-2A.6 |
Neutrally Available |
Protects persons living as spouses or who formally resided together as spouses; current or former sexual or intimate partners; persons who are dating or who have dated; persons presently or formerly residing or cohabiting together. |
None found. |
|
| Wisconsin |
Wis. Stat. § 1 813.12 |
Neutrally Available |
Protects household members. Household member defined as “a person currently or formerly residing in a place of abode with another person.” |
Harassment restraining orders provided under § 813.125 |
|
| Wyoming |
Wyo. Stat. Ann. §§ 35-21-103 |
Neutrally Available |
Protects persons now or formerly living with each other as if married, and “other adults sharing common living quarters.” |
An order of protection for stalking victims is provided under § 7-3-509. § l-40-205 directs courts to take “appropriate measures” to protect victims and key witnesses. |
|
|
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