Same sex marriage has been permitted in North Carolina for a couple of weeks. Shea blogged here about one potential criminal law implication: the possibility, discussed in a memorandum from the Administrative Office of the Courts, that magistrates could be charged criminally for refusing to marry same-sex couples. As noted in this recent news article, a number of magistrates have resigned as a result. But the issue I've been asked most about is how same-sex marriage relates to our domestic violence laws. Specifically, I have been asked how same-sex marriage relates to the 48-hour rule and to domestic violence protective orders issued under Chapter 50B. The 48-hour rule. Under G.S. 15A-534.1, only a judge may set bond in a domestic violence case within the first 48 hours after arrest. The statute applies mainly to certain crimes committed against a "spouse or former spouse or a person with whom the defendant lives or has lived as if married." I noted in this prior post the uncertainty about whether same-sex couples were covered by that language. I don't see any more uncertainty. A same-sex couple married in North Carolina or elsewhere are "spouse[s]," or if subsequently divorced, "former spouse[s]." Same-sex couples who are cohabiting are living together as if married. Chapter 50B orders. More complicated interpretive and legal issues arise in the context of Chapter 50B orders. G.S. 50B-1(b) lists the types of relationships that are eligible for DVPOs. The list includes "current or former spouses," and the new meaning of that term is [...]
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