A Lincoln County District Court judge has agreed with a lower court’s decision that Montana’s partner family member assault statute discriminates against heterosexuals.

Judge James Wheelis ruled Oct. 24 that the law does preclude homosexuals from being charged with PFMA because it includes language that precludes homosexuals from being defined as an “intimate partner” and applies only to heterosexuals.

In his ruling Wheelis said, “The statute plainly excludes homosexual partners from its application by explicitly including only heterosexual partners.”

However, Wheelis dismissed the Lincoln County Justice Court ruling and returned the case to the lower court stating that the case go to trial while striking from the law the language “with a person of the opposite sex” as defining those who are considered a partner.

Under state statute, PFMA applies to a person who commits assault of a family member or partner meaning spouses, former spouses, persons who have a child in common, and persons who have been or are currently in a dating or ongoing intimate relationship with a person of the opposite sex.

Dale James Miller was arrested and charged with PFMA in Lincoln County Justice Court. The charge stems from a May 12 incident in which Miller is alleged to have slapped his girlfriend twice, poked her and tried to choke her to the point that she nearly passed out.

Kalispell attorney Tim Baldwin represents Miller in the case and argued the charge unconstitutional before Justice Court. Judge Stormy Langston in August agreed stating that the law classifies partners to only include those in heterosexual relationships.

Langston dismissed the case and the state appealed to District Court.

Baldwin argues that based on the interpretation of the charge, a homosexual person could not be charged with PFMA. Rather, they would be charged with assault.

PFMA carries a more severe penalty than an assault charge, Baldwin argued. The charge carries a fine of up to $1,000 and up to one year in county jail. A third conviction of PFMA can be a felony and carries a fine of up to $50,000 and up to five years in prison.

A charge of assault carries a fine not to exceed $500 and up to six months in county jail.

Baldwin cited the 14th Amendment and Montana’s equal protection provisions in his argument.

Wheelis agreed that the law fails both federal and state standards of equal protection and “it is not rational for the State to decline coverage of same-sex relationships under the PFMA.”

Lincoln County Deputy County Attorney Joseph Cik argued the state’s case. In court documents, Cik argues that the defendant can’t avoid criminal liability on equal protection grounds simply because the state Legislature could have chosen to define the crime more broadly.

The state asked the court to consider if the law is related to a legitimate government interest. It points out that the evidence before the Legislature in creating the law has shown that the prime source of abuse in domestic situations stems from male violence toward female partners.

Wheelis stated that the majority of partner abuse may be between heterosexual partners, “But that is hardly a reason to invite abuse by one homosexual partner toward another.”

The state requested that if Wheelis found the PFMA law unconstitutional as written that he’d consider whether the language could be removed from the law thus making it enforceable.

Referencing case law, Wheelis agreed that the unconstitutional section of “with a person of the opposite sex” could be removed because the law is still complete without the phrase and removal does not disrupt the integrity of the law, which was to punish domestic abuse.

“This court can find no evidence that the Legislature intended this statue as a license or an encouragement for homosexual partners to abuse each other,” Wheelis wrote in his decision. “This court puts the inclusion of the prepositional phrase ‘of the opposite sex’ down to the drafter’s cultural inhibitions or squeamishness, although its source is irrelevant.”