Citation

Matsumura U. Kwansei Gakuin Univ. J. Law Polit. 2005; 56(1): 202-139.

Copyright

(Copyright © 2005, Kwansei Gakuin University)

DOI

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PMID

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Abstract

United States Code Title 42, Section 1983 provides citizens with a federal remedy when state officials acting "under color of state law" deprive individuals of their constitutional rights. Section 1983 provides a federal forum for civil rights claims, and thus enabled plaintiffs to bypass state courts. Federal remedy may take the form of damage awards or equitable relief. In the domestic violence cases prior to DeShaney, battered women tended to be more successful in asserting equal protection than due process claims under the U.S. Constitution. For example, in Thurman case, a battered woman won her section 1983 lawsuit against police officers based on an equal protection claim. The plaintiff alleged "police officers and the city use an administrative classification that manifests itself in discriminatory treatment violation the equal protection clause." While police provided full protection to non-domestic abuse victims, the plaintiff argued that the police observed "a pattern or practice" which "consistently afforded lesser protection" to domestic abuse victims. The Thurman court found that "such an ongoing pattern of deliberate indifference raises an inference of custom or policy on the part of the municipality." Further, the court took implicit judicial notice that the challenged domestic violence/ non-domestic violence policy classification constituted explicit gender discrimination. Given the Thurman court's acceptance of the domestic assault/ non-domestic assault classification as gender-based discrimination, Thurman was a seminal case with potentially monumental impact. These cases suggested that an equal protection claim, although burdensome in requiring evidence of discriminatory intent, may provide a more promising legal avenue for redress than a due process claim. Specifically, uncertainties surrounding the special relationship doctrine and the extent of a state's affirmative duty to protect individuals from domestic violence led to inconsistent result in the courts' analysis of substantive due process claims. The DeShaney Court addressed the question of whether a state has an affirmative constitutional duty under the Due Process Clause to protect a citizen from private violence. A state's failure to protect the citizen would render it liable under section 1983. The DeShaney Court held that "a state's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." Further the Court denied the existence of a special relationship triggering the state's affirmative duty to protect because the child victim was not in the state's custody when his father abused him. However, the Court signaled the viability of equal protection claims: "The State may not, of course, selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause". Various factors have changed the police and city's policy and custom. On of factors is the lawsuit by battered women and others are the experience at Minneapolis, changing the way to broadcast about domestic violence by mass media and other media. Almost the state has some kind of act about against domestic violence and policy which police officer arrests with no discretion when she/ he thinks that there is a probable cause to arrest because the victim has abused at that time. It is said that these changing policy of State and police are efficient because those have decreased the number of fatal case of domestic violence. On the other hand, in Japan, various means are taken for domestic violence and stalker case. For example, the Congress passed the Domestic Violence Prevention Act and Anti-Stalking Act. These acts were legislated after Okegawa case. In Okegawa case, a woman killed. It is found that the murder was asked to kill her by ex-boyfriend. In spite of the victim requested to the police to restrict his act or warn him, the police had no response for her claims. Accordingly, plaintiff, victim's parent filed the suit against the police and Saitama prefecture for failure to intervene. Domestic Violence Prevention Act of 2001 has narrow definition rather than Domestic Violence Act in the United States. Only the spouse and ex-spouse (including actual marital couple) can use protection order system, and it is required that physical abuse has done. So, domestic violence victims who have no marital status with the abuser have to use Anti-Stalking Act when they want to be protected by police.