Academic journal article Texas Journal of Women, Gender, and the Law

Domestic Violence Litigation in the Wake of Deshaney and Castle Rock

Academic journal article Texas Journal of Women, Gender, and the Law

Domestic Violence Litigation in the Wake of Deshaney and Castle Rock

Article excerpt

I. Introduction

In the last two decades, the United States Supreme Court has eviscerated federal remedies available to survivors of domestic violence when police officers refuse to enforce protective orders.1 DeShaney v. Winnebago County Department of Social Services2 (hereinafter "DeShaney") has essentially eliminated substantive due process as a viable remedy while City of Castle Rock v. Gonzalez3 (hereinafter "Castle Rock?) has done the same with procedural due process. The remaining equal protection claims are rarely a realistic remedy for survivors as the elements of a prima facie equal protection case require that the plaintiff-survivor prove an actual intent to discriminate.4

Survivors of domestic violence need legal remedies in order to encourage police officers to enforce their protective orders. Damages, like the two million dollars awarded to Dina Sorichetti and her mother when the New York Police Department (NYPD) failed to enforce their protective order,5 can (and will) motivate police departments to clarify and update their domestic violence policies. In the wake of this case, the NYPD rewrote its arrest policies to include mandatory arrests in domestic violence cases.6 As Professor Kristian Miccio noted, the change was not the result of lobbying, guilt, or good will; instead, the change was a direct result of the police department's liability for the two million dollar damage award.7 If police officers learn there are no legal consequences for failing to enforce protective orders, there will be little incentive for officers to enforce orders, particularly if "mandatory" no longer means "mandatory."8 If, on the other hand, survivors are able to hold state actors accountable for their actions, then police officers will be more willing to enforce protection orders rather than risk being sued.9

State courts must recognize remedies for survivors in order to provide victims with recourse now. Survivors in many states still need legislation that will provide them with the means to ensure police officers enforce domestic violence protective orders. At the same time, domestic violence victims cannot wait for legislators to recognize the need for remedies and then begin the long process of drafting and passing legislation.10 Until state legislators codify remedies, courts, particularly state courts, must find alternative means to ensure domestic violence victims are not left without remedies when their protective orders are not enforced. The state-created danger and special relationship doctrines are both viable legal doctrines that can provide survivors with recourse when municipalities and individual police officers fail to enforce protective orders.

II. Current Domestic Violence Remedies Are Inadequate for the Vast Majority of Domestic Violence Victims

Where state actors have investigated allegations of abuse and returned a child to a perpetrator of violence, substantive due process does not provide that child with an entitlement to state protection, even when state actors are aware of the dangers posed to the victim by the third party.11 In DeShaney, the citizen who was not entitled to state protection was four year-old Joshua DeShaney, whose father abused him so severely that he is now in a permanent, semi-vegetative state.12 The Winnebago County Department of Social Services investigated reports of child abuse committed against Joshua by his father for over two years.13 Despite multiple reports of abuse and medical evidence of Joshua's repeated injuries, Social Services allowed the young boy to remain in the care of his father.14 In the suit brought on Joshua's behalf against the Department of Social Services, the United States Supreme Court held that the department was not liable for the injuries to Joshua since social workers had not left him in a worse position than before the state's involvement.15 The Due Process Clause did not require Winnebago County Department of Social Services to protect Joshua from acts of violence committed by his father. …

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