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Domestic violence after McGlothan

Although the domestic violence statute was initially aimed at spousal abuse, the frequency of other "living arrangements" has led to it being applied in a broad range of situations.  The statute prohibits violence against a "family or household member," and that's defined to include a "person living as a spouse," which is then defined to mean a person who is "cohabiting with the offender."  Back in 1997, in State v. Williams, the Supreme Court defined what cohabitation meant.  Last week, in State v. McGlothan, the court refined that definition further.  Spoiler alert:  the defendant loses both times.

Let's take a look.

In Williams, both the defendant and the victim testified that the two were not living together, although she frequently stayed at his house.  The 1st District reversed his domestic violence conviction, finding that "cohabitation" required the two to share the same residence.  Not so, said the Supreme Court, holding that "the offense of domestic violence arises out of the relationship itself, not the fact that the parties happen to share one address."  The court noted that the argument the precipitated the fight between the two had been over money problems they were having, and concluded that "the essential elements of 'cohabitation' are (1) sharing of familial or financial responsibilities and (2) consortium."

Fast forward fifteen years, and we come to McGlothan.  There, the two were living together, and had been for about a year.  They got into an argument over where McGlothan had been earlier that day, and one thing led to another, the brouhaha culminating with McGlothan grabbing the victim by the shirt; in doing so, "he detached a permanent tracheostomy tube."  Don't see this one providing script fodder for the Lifetime Movie Network.

The 8th District looked to Williams, and reversed in a split decision, finding that the State had presented "no testimony that the couple shared any living expenses, such as rent and utilities, which would demonstrate shared familial or financial responsibilities," as they believed Williams required.  That wasn't much of a stretch, since that was pretty much what Williams said.

But as you can see, there was a key difference between the two cases:  in Williams, the parties weren't living together, while in McGlothan they were.  That distinction becomes the focus of O'Donnell's opinion for the majority: 

Because the state demonstrated that the defendant was the victim's boyfriend and that they had lived together for about a year, the state had no obligation to demonstrate the sharing of familial or financial responsibilities and consortium to prove cohabitation in this case . . .

So, does that mean that where the victim and offender are living together, that's all the prosecution has to show to establish that the victim is a "household member" for purposes of the domestic violence statute?  The three dissenters don't think so.  Lanzinger argues that this does away with one of the Williams factors, and French, in a dissenting opinion joined in by O'Neill, agrees that the 8th interpreted the statute too narrowly, in requiring proof that the victim and offender shared living expenses, but contends that the first element of cohabitation requires a sharing of "familial or financial responsibilities," and finds that there was "was neither direct nor circumstantial proof that McGlothan shared in any of the familial or financial responsibilities of the household."  This causes O'Donnell to backtrack only slightly:

Even if the Williams factors did apply regarding the nonexhaustive list establishing shared familial or financial responsibilities, circumstantial evidence shows that McGlothan and Robinson, by sharing her apartment for about a year, did share shelter and utilities.  In addition, the trial court could have reasonably concluded that Robinson's testimony demonstrated factors establishing consortium, such as affection, society, and aid of each other.

But the alternative theory isn't really necessary:  as we learned before kindergarten, four is more than three, and the bottom line is that if a defendant's living with the alleged victim, it's going to be very difficult to argue that he's not a "household member."  In that situation, it's hard to read McGlothan as requiring proof of "shared familial or financial responsibilities."

The bigger concern is what happens in cases where the parties are in a relationship, but aren't living together.  Some of the language in McGlothan seems to substantially expand the definition of "shared familial or financial responsibilities," especially the former.  Divvying up household chores, like having the guy take out the garbage, might be sufficient.  And you can expect prosecutors to point to O'Donnell's language about "affection and society" being sufficient to establish consortium.  There's little question that Lanzinger's right in concluding that McGlothan broadens the reach of the domestic violence statute.


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