Susanne M. Browne*, "Due Process and Equal Protection Challenges to the Inadequate Response of the Police in Domestic Violence Situations," 68 S. Cal. L. Rev. 1295 (1995).

* Class of 1995, University of Southern California Law Center; B.A. 1991, University of California, Santa Barbara. I would like to thank Erwin
Chemerinsky for all of his time, ideas, and encouragement.

[Numbers in brackets refer to page numbers of original text.]

[*1295]

I. INTRODUCTION


[Battered women] are run over by cars and trucks. They have their teeth knocked out with hammers. They are raped with hot curling irons and
large objects. They are stabbed with screw drivers, ice picks and knives. They are beaten, choked and strangled. They are beaten in public in
the streets. They are beaten in the privacy of their own homes, often in front of their children. And they are tied up and forced to watch the
torture and sexual molestation of their own children.... I am describing the atrocities that constitute domestic violence as it occurs across the
country and, indeed, around the world. n1

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n1. Sarah M. Buel, The Dynamics of Domestic Violence Cases in the United States: An Overview, in Defending Battered Women in Criminal Cases
A, at 1(ABA Section of Criminal Justice and the Division for Professional Education eds., 1993).

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Domestic violence usually begins with a slap or a shove, which the victim tells herself is aberrant behavior. As the violence grows more severe
over time, it becomes too dangerous for the victim to [*1296] contradict the batterer's assertions that the violence was unintentional. The
victim believes that denial is the only way to protect herself and her children. n2 Most domestic violence victims have low self-esteem and view
themselves as failures as wives, mothers, and women because they do not know how to stop or avoid the abuse. The victim often feels
responsible for the abuse and therefore thinks that she must remain with the batterer in order to repair the situation. After being violent, the
batterer typically behaves lovingly, apologizes, and promises that it will never happen again. This reinforces the victim's hopes that the beatings
will stop. n3

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n2. Buel, supra note 1, at 3.

n3. Id.

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Men who batter their wives or girlfriends generally are not seen as abusive individuals by those outside the family. Usually, the batterer
maintains a public image as a friendly and caring individual who is a devoted family man. n4 Over time, the batterer destroys the victim's
friendships and family ties so that the victim is isolated. Because most people feel uncomfortable around the abuse, those aware of it avoid
contact with the victim. Others avoid contact with the victim because they do not want to admit that the violence occurs. This isolation leaves
the victim psychologically dependent on the batterer. n5 The victim fears retaliation by the batterer for calling the police, going to court, or
leaving. Most battered women are aware that the police are unresponsive to their calls for help. Prior lack of effective intervention by friends,
the police, and the courts leads the victim to believe that no one will treat the abuse seriously. n6

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n4. National Clearinghouse for the Defense of Battered Women, Statistics Packet 43 (1990) (unpublished manuscript on file with author)
[hereinafter Statistics] (citing David Adams, Identifying the Assaultive Husband in Court: You Be the Judge, 33 Boston B. J. 23 (1989)).

n5. Buel, supra note 1, at 3.

n6. Id. at 4.

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A battered woman has financial considerations as well. Typically a battered woman is dependent upon her batterer financially, and if she has a
child this dependency is magnified. If the victim flees, public assistance provides inadequate benefits and creates shame for battered women
who already have low self-esteem. Furthermore, there is a lack of resources. Although there are 1200 battered women's shelters across the
country, there are over 3200 animal protection shelters. Most abuse victims have no access to trained advocates or attorneys, and thus no
access to the civil and criminal courts. n7 Over [*1297] fifty percent of battered women who flee are harassed and attacked by their
batterers and forced to return. Fleeing the batterer is the most dangerous time for a battered woman. More battered women are killed as they
try to escape than at any other time. Therefore, fleeing increases danger and often results in homelessness or poverty. n8

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n7. Id. at 4.

n8. Id. at 2.

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Domestic violence is more widespread than most people realize - one out of every two women in this country will be involved in a violent
relationship at some point in her lifetime. Much of this violence will result in death. n9 In 1988 thirty-one percent of reported female homicide
victims for whom a cause of death was known were killed by a male partner. n10 One of the main reasons that domestic violence occurs so
frequently is that the police response is totally inadequate. Police responses towards battered women include: failure to respond to their calls,
refusal to arrest batterers, failure to file reports on domestic disputes, and general harassment of victims of domestic violence. The
unresponsive and hostile attitudes of police towards battered women cannot be tolerated any longer. Battered women need a legal remedy to
challenge the inadequate police protection they receive.

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n9. Id. at 1.

n10. Statistics, supra note 4, at 10 (citing Samme Chittum et al., No Way Out, Ladies' Home J., Apr. 1990, at 128).

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This Note will examine the legal remedies available to battered women who are harmed as a result of inadequate police protection in domestic
violence situations. Part II discusses the frequency of domestic violence and the inadequate response of police in such situations. Part III
examines the Due Process Clause as a remedy for battered women and specifically looks at the effects of DeShaney v. Winnebago, n11 which
severely limited battered women's due process claims. Finally, Part IV examines the Equal Protection Clause as a legal remedy for victims of
domestic violence.

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n11. 489 U.S. 189 (1989).

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II. THE FREQUENCY OF DOMESTIC VIOLENCE AND THE POLICE RESPONSE

In the United States, every 7.4 seconds a woman is battered by her husband, n12 and it is estimated that every year three to four million
[*1298] women are physically beaten in intimate relationships. n13 Because proof of the frequency of battering is buried in divorce, assault,
and homicide statistics; diffused among police, court, and hospital records; and often unreported by the battered woman for fear of retaliation
by her batterer, the problems of domestic violence may be even more severe than estimated.

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n12. Statistics, supra note 4, at 18 (citing Sue McLeer, Slides from Dr. Sue McLeer (Philadelphia, PA, Mar. 1989) (unpublished)).

n13. Statistics, supra note 4, at 20 (citing Fern Maria Eckman, Battered Women, McCall's, Nov. 1987, at 159).

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Police policy towards domestic violence ranges from an outright refusal to recognize domestic violence as a criminal matter to a practice of
giving domestic violence calls a lower priority than nondomestic disputes. Domestic violence calls have been labeled the "common cold" of police
work. Such calls constitute the single largest type of calls received by the police every year. n14 The wholly inadequate response to such calls
contributes to the occurrence of domestic violence.

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n14. Statistics, supra note 4, at 20 (citing Helen J. Mederer & Richard J. Gelles, Compassion or Control: Intervention in Cases of Wife Abuse, 3 J.
of Interpersonal Violence 25 (1989)).

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In a study of 2096 battered women in Texas, police failed to respond to calls from battered women in one out of three cases. n15 The police
rarely file reports on domestic violence and even more rarely arrest the batterers. During a nine-month period, Cleveland police received more
than 15,000 domestic violence calls. They filed reports in only 700 of the cases and made arrests in only 460 cases, or one out of every
thirty-two calls. n16 Although studies have shown that arresting the batterer reduces the chance that he will abuse his wife or girlfriend again,
only twelve states have mandatory arrest policies in domestic violence situations. n17

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n15. Statistics, supra note 4, at 67 (citing Cynthia Gillespie, Justifiable Homicide: Battered Women, Self-Defense, and the Law 136 (1989)).

n16. Statistics, supra note 4, at 69 (citing Att'y Gen. of Ohio, The Ohio Report on Domestic Violence, 7 Response to Violence in the Family and
Sexual Assault 2 (1989)).

n17. Statistics, supra note 4, at 69 (citing Chittum et al., supra note 10, at 128).

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A 1984 survey of big city police departments revealed that only ten percent of the departments encouraged officers to make arrests in
domestic violence situations, forty percent encouraged mediation, and fifty percent had no policy at all. n18 The federal government's Final
Report of the Attorney General's Task Force on Family Violence [*1299] identified the failure of police to make arrests as one of the most
serious aspects of domestic violence. n19

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n18. Statistics, supra note 4, at 72 (citing Lawrence Sherman, U.S. Dep't. of Justice, National Institute of Justice Crime File Study Guide:
Domestic Violence 13 (1985)).

n19. Statistics, supra note 4, at 69 (citing Gillespie, supra note 15, at 137).

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Knowledge of these statistics that illustrate the inadequate response of police leads victims of domestic violence to assume that no one will
treat their abuse seriously. Victims are understandably reluctant to continue calling the police because of the lack of serious, consistent
intervention in the past. n20 Police attitudes actually encourage domestic violence because once the police have left and the batterer realizes
that nothing will be done to punish his behavior, he will continue the abuse, often with a renewed violence. n21

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n20. Buel, supra note 1, at 4.

n21. Statistics, supra note 4, at 69-70 (citing Lenore Walker, Terrifying Love: Why Battered Women Kill and How Society Responds 63 (1989)).

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The unresponsive and hostile attitudes of the police towards victims of domestic violence are well illustrated by Balistreri v. Pacifica Police
Department. n22 On February 13, 1982, Jena Balistreri was severely beaten by her husband. Jena had injuries to her nose, mouth, eyes, teeth,
and abdomen, and was in severe need of medical attention. The Pacifica police officers who responded to her call did not offer her any medical
assistance and refused to arrest her husband. One of the officers even told her that she deserved the beating. After the incident, a Pacifica
police officer pressured Jena into not pressing charges against her husband. n23

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n22. 901 F.2d 696 (9th Cir. 1990).

n23. Id. at 698.

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After continual harassment by her former husband (now estranged), Jena obtained a restraining order. Yet when her ex-husband crashed his car
into her garage, the police refused to arrest him or investigate despite the restraining order. When Jena reported that she received harassing
phone calls from her ex-husband, the police ridiculed her and denied the existence of her restraining order. On March 27, 1983, Mr. Balistreri
threw a firebomb into the window of Jena's home, causing severe fire damage to the home and a great deal of emotional distress to Jena. The
police took forty-five minutes to respond to Jena's 911 call. n24 She finally brought suit against the Pacifica Police Department for their
unresponsiveness.

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n24. Id.

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Jena Balistreri was actually lucky because in many domestic violence situations police unresponsiveness ultimately results in the murder of the
victim by her batterer. Thirty-one percent of all female homicide victims for whom a cause of death is known are murdered by male partners.
Deaths and the most serious injuries often occur when a battered woman attempts to flee. n25 Studies in Detroit and Kansas revealed that
police had been called at least once before in eighty-five percent of spouse assault and homicide cases. In fifty percent of these cases, police
had responded five times to domestic violence incidents prior to the homicide. n26 It is intolerable for police to continue to treat victims of
domestic violence as if the abuse they suffer is not a crime.

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n25. Statistics, supra note 4, at 10 (citing Chittum et al., supra note 10, at 128).

n26. Statistics, supra note 4, at 12 (citing The Police Foundation, Nat'l Inst. of Justice, Domestic Violence and the Police: Studies in Detroit and
Kansas City (1977)).

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III. THE DUE PROCESS CLAUSE AS A LEGAL REMEDY FOR VICTIMS OF DOMESTIC VIOLENCE CHALLENGING INADEQUATE POLICE PROTECTION

The Due Process Clause of the Fourteenth Amendment states: "no state shall ... deprive any person of life, liberty, or property, without due
process of law." n27 Battered women may bring substantive due process claims under 42 U.S.C. 1983, which provides private citizens with a
federal remedy when state officers deprive individuals of their constitutional rights. Battered women's section 1983 claims typically allege that
the failure of the police to intervene in domestic violence situations resulted in a liberty deprivation. In order to establish a section 1983 claim,
"a plaintiff must show (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct
deprived the plaintiff of a constitutional right." n28 The actions of police officers clearly constitute state action, and therefore the first
requirement for a section 1983 suit is satisfied. Thus, battered women's section 1983 claims usually hinge on the second element - proving the
deprivation of a constitutional right.

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n27. U.S. Const. amend. XIV, 1.

n28. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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A. Pre-DeShaney Analysis

Prior to DeShaney v. Winnebago, n29 there was a lack of uniformity among the federal courts as to when the state had a duty to protect
private individuals. There was no general duty to protect private citizens from harm and courts were unclear as to when such an affirmative
obligation by the state might arise under the Due Process Clause. Generally, in battery cases courts looked to whether there was a special
relationship between the plaintiff and the state, or between the batterer and the state, that created an affirmative duty on the part of the
state to protect the victim. Courts considered the following factors as indicative of such a relationship: (1) a protective restraining order; (2)
whether the state was aware of the danger faced by the victim (for example, through continual phone calls to the police or some other means
of communication); (3) whether the batterer was in custody immediately prior to or at the time of his attack on the victim; and (4) whether the
police affirmatively told the victim that she could rely on them for support. n30 The use of these factors in determining whether a special
relationship existed is illustrated by pre-DeShaney cases.

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n29. 489 U.S. 189 (1989).

n30. Jensen v. Conrad, 747 F.2d 185, 195 n.11 (4th Cir. 1984).

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In Balistreri v. Pacifica Police Department, the original pre-DeShaney opinion held that the state's awareness that Jena Balistreri was in danger,
along with the state's affirmative commitment to protect her by its issuance of a restraining order, satisfied the requirements for a special
relationship. n31 However, after DeShaney the case was retried and reversed. n32 The court held that after DeShaney, an affirmative duty to
protect Jena did not arise merely because the police were aware that she was in danger and because she had a restraining order.

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n31. 855 F.2d 1421 (9th Cir. 1988), amended and superseded by 901 F.2d 696 (9th Cir. 1990).

n32. Balistreri, 901 F.2d at 700 (holding that in light of DeShaney v. Winnebago, there was no special relationship between Jena Balistreri and
the state).

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In Ketchum v. County of Alameda, n33 Cynthia Ketchum brought suit against Alameda County and county officers for gross negligence in failing
to maintain security at an Alameda rehabilitation center. James Hampton escaped from the Santa Rita Rehabilitation Center in Alameda County
and two months later raped and assaulted Cynthia [*1302] in her home. n34 The appellate court affirmed the district court's grant of summary
judgment to the defendants because no special relationship was found to exist between Cynthia and the state, or between Hampton and the
state. The court held that no special relationship existed because over two months had elapsed from the time of the escape until Cynthia was
assaulted, and because the defendants had no knowledge that Cynthia was in any danger from Hampton that distinguished her from the public
at large. n35

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n33. 811 F.2d 1243 (9th Cir. 1987).

n34. Id. at 1244.

n35. Id.

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Another pre-DeShaney case is Jensen v. Conrad. n36 The estates of six battered children brought suit against the Commissioner of the South
Carolina Department of Social Services, alleging that the state, through its employees, violated the Fourteenth Amendment rights of the abused
children by failing to intervene and protect them from child abuse. The court held that the state and county employees were entitled to good
faith immunity from civil rights claims because at the time of the alleged violation the constitutional right of affirmative protection was not
clearly established. There were no clear guidelines as to what constituted a special relationship, and, therefore, the state could not be held
liable. n37

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n36. 747 F.2d 185 (4th Cir. 1984).

n37. Id. at 194.

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As these cases illustrate, prior to DeShaney courts lacked uniformity as to what constituted a special relationship that would trigger the right to
affirmative protection by the state. Courts considered a variety of factors in making this determination, but they applied and interpreted them
differently. Nevertheless, it was by no means easy for a battered woman or an abused child to establish a Due Process Clause cause of action.
The various special relationship tests used by the courts made it difficult to establish an affirmative government duty to protect. DeShaney
provided courts with clearer guidelines in defining special relationships, but it also made it even more difficult for a plaintiff to establish a liberty
deprivation.

B. DeShaney v. Winnebago County Department of Social Services n38

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n38. 489 U.S. 189 (1989).

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The Winnebago County authorities first learned that Joshua DeShaney was a victim of child abuse when his father's second wife [*1303]
complained to the police. The Winnebago County Department of Social Services ("DSS") interviewed Joshua's father, but he denied the
accusations, and the allegations of child abuse were not further pursued by DSS. In 1983, Joshua was admitted to the hospital with multiple
bruises and abrasions. The doctor who examined him suspected child abuse and obtained a court order placing Joshua in temporary custody of
the hospital. An ad hoc Child Protection Team meeting concluded that the evidence of child abuse was insufficient and Joshua was returned to
his father's custody. n39

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n39. Id. at 192.

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One month later Joshua was back in the hospital. Based on suspicions of child abuse, a caseworker visited Joshua at home, but then failed to
pursue the matter any further. In March 1984 Joshua was beaten so severely by his father that he fell into a life-threatening coma. Emergency
brain surgery revealed that Joshua had a number of hemorrhages caused by injuries to his head. He suffered severe brain damage and was
expected to spend the rest of his life confined to an institution. n40 Joshua's father was finally convicted of child abuse. His mother brought suit
against DSS under 42 U.S.C. 1983, claiming that Joshua was denied liberty without due process of law because DSS failed to intervene and
protect him from his father's abuse. n41

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n40. Id. at 193.

n41. Id.

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The Supreme Court held that the defendant's failure to adequately protect Joshua from his father's abuse did not violate Joshua's rights under
the Due Process Clause. n42 The Court distinguished between negative and positive rights. The Court classified the Due Process Clause as a
negative right, meaning that the Due Process Clause forbids the state itself from depriving individuals of life, liberty, or property without due
process of law, but does not impose an affirmative obligation on the state to ensure that those interests are not harmed through other means.
In contrast, if the Due Process Clause were a positive right, the state would have an affirmative obligation to guarantee certain minimal levels of
safety and security; the state would be required to protect the life, liberty, and property of its citizens against invasion by private actors as
well as by its own actions. n43 The Court held that the Due Process Clause is a limitation upon state power, not a guarantee of minimal safety
or protection from private [*1304] individuals. "Nothing in the language of the Due Process Clause itself requires the State to protect the life,
liberty, and property of its citizens against invasion by private actors." n44

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n42. Id. at 203.

n43. Id. at 195.

n44. Id.

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The Court rejected the plaintiff's argument that an affirmative duty to protect Joshua arose out of a special relationship created or assumed by
the state because of its awareness that Joshua was in danger. No special relationship existed, according to the Court, because although the
state was aware of the dangers that Joshua faced, it played no part in increasing his danger or acting in any way to render Joshua more
vulnerable. The Court also focused upon the fact that the state placed Joshua in no worse a position than if the state had not acted at all. n45
"The State does not become the permanent guarantor of an individual's safety by having once offered him shelter." n46

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n45. Id. at 201.

n46. Id.

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However, the Court did not go so far as to say that the Due Process Clause never imposes a duty upon the state to protect individuals. "It is
true that in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to
particular individuals." n47 The Court explained that the state is required, for example, to provide adequate medical care to incarcerated
prisoners because a prisoner is unable, by deprivation of his liberty, to care for himself. When the state holds a person in custody against his or
her will, the Constitution imposes a duty to assume responsibility for the person's safety and general well-being. n48 "Had the State by the
affirmative exercise of its power removed Joshua [DeShaney] ... and placed him in a foster home[,] ... we might have a situation sufficiently
analogous to incarceration ... to give rise to an affirmative duty to protect." n49

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n47. Id. at 198.

n48. Id. at 199-200.

n49. Id. at 201 n.9.

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The Court hinted that there are also some noncustodial situations in which an affirmative duty to protect may still arise. "It is the state's
affirmative act of restraining the individual's freedom to act on his own behalf - through incarceration, institutionalization, or other similar
restraint of personal liberty - which is the "deprivation of liberty' triggering the protections of the Due Process Clause ...." n50 The Court further
hinted that an affirmative duty to protect an individual [*1305] may arise in situations in which the state's behavior increases the level of
danger faced by the victim. "While the State may have been aware of the dangers that Joshua faced[,] ... it played no part in their creation,
nor did it do anything to render him more vulnerable to them." n51 "It placed him in no worse position than that in which he would have been
had it not acted at all." n52

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n50. Id. at 200 (emphasis added).

n51. See supra note 45 and accompanying text.

n52. Id. at 201.

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C. What DeShaney Means for Due Process Claims by Victims of Domestic Violence

DeShaney severely limited the situations in which a battered woman can claim that she experienced a liberty deprivation as a result of
inadequate police protection. Police awareness that a victim of domestic violence faces danger is no longer enough to trigger an affirmative
duty to protect. After DeShaney, there are only two situations in which a battered woman can bring a due process claim against the police.
First, if the police in some way create or increase the danger faced by the victim, they could be held liable for breach of an affirmative duty to
protect. Second, if the state were to restrain the personal liberty of a victim of domestic violence by taking her into custody, this too would
require the state to provide protection because the state's actions would inhibit the victim's ability to protect herself. These appear to be the
only situations in which the state would be required to affirmatively protect private individuals after DeShaney.

Two post-DeShaney cases illustrate the narrowing effects of DeShaney upon successful due process claims by victims of domestic violence. In
Balistreri v. Pacifica Police Department, the court initially held that the police had an affirmative duty to protect Jena Balistreri from her
ex-husband. n53 However, after DeShaney, Balistreri was amended and the court dismissed Jena's due process claim. The court held that
although the police were aware of the danger Jena faced, and despite the fact that she had a restraining order against her ex-husband, the
state's knowledge of her plight and its intent to help her were no stronger than the state's knowledge and intent to protect Joshua DeShaney.
n54

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n53. Balistreri v. Pacifica Police Dep't, 855 F.2d 1421 (9th Cir. 1988), amended and superseded by 901 F.2d 696 (9th Cir. 1990).

n54. Balistreri, 901 F.2d at 700.

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In Salas v. Carpenter, n55 Juanita Hermosillo had complained to the police and the district attorney that her estranged husband, Manuel
Cabano, was harassing her and molesting her two daughters. Juanita, in fear of harm by Cabano, stayed with a friend and did not go to work for
a week. Juanita returned to work when she was told to do so by a Justice of the Peace. The day that Juanita returned to work, Cabano entered
her workplace, took Juanita hostage, and then shot and killed both Juanita and himself. n56 Juanita's estate brought suit against the sheriff
under the Due Process Clause. The court held that there was no liberty deprivation because Juanita was not held in state custody nor
prevented from caring for herself. Furthermore, the court held that the state did not increase the level of danger faced by Juanita. According to
the court, the state's failure to save Juanita when Cabano took her hostage was merely a failed rescue effort, and not a failure to provide
protection. n57

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n55. 980 F.2d 299 (5th Cir. 1992).

n56. Id. at 302-03.

n57. Id. at 309.

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After DeShaney it is extremely difficult for victims of abuse to succeed under the Due Process Clause. The holding of DeShaney seems so unjust
because it allows the state to stand back and let its citizens be harmed or killed when the state is aware of the danger and could easily bring
an end to it. DeShaney offends basic expectations of governmental protection.

Beyond the fact that the holding of DeShaney seems to result in intuitively unjust outcomes, a great deal of the reasoning in the opinion is
faulty.

The assumption that the government can deprive individuals of protected rights only by its actions does not take into account government's
pervasive influence through regulatory action and inaction, its displacement of private remedies, and, indeed, its monopolies over some avenues
of relief.... In short, [the government] can harm by its ostensible omissions, as seriously as, and often more efficiently than, by its direct,
tangible actions. n58

It is absurd for the government to claim that unless its actions increase the level of danger faced by a victim of domestic violence, it is not
liable for inadequate protection. It is the government's decision not to act in the first place that has caused the danger that battered women
face. In domestic violence situations, a batterer, aware that he [*1307] will not be reprimanded by the police for his actions, often feels that
the state condones his behavior. The government, by its active decision not to remove the batterer, is therefore responsible for the danger.
The state, to a large extent, has a monopoly over police protection and its decision not to act can cause as much harm, if not more, than a
decision to act.

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n58. Susan Bandes, The Negative Constitution: A Critique, 88 Mich. L. Rev. 2271, 2283-84 (1990) (footnote omitted).

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Two major problems arise from the DeShaney requirement that the state's actions must place the plaintiff in a worse-off position in order to
require the state to provide affirmative protection. First, measurement is difficult, and the question of whether the government has exacerbated
the situation cannot be answered without a baseline for comparison and a method for quantification. n59 For example, in order to determine if
Joshua was made worse off by the state's conduct, the notion of "worse" is meaningless without knowing to what point in time Joshua's current
situation is being compared. Is the comparison being made to a situation in which the Department of Social Services did not exist, or in which
the Department of Social Services had not released Joshua back into his father's custody, or to some other point in time? In the domestic
violence context, the same questions arise. Must the actions of the police place a victim of domestic violence in a worse position than if the
police had never been called, if the police had not ignored a restraining order, or if the police did not exist at all?

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n59. Id. at 2292.

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The second major problem with DeShaney is that the "worse off" requirement insulates the government from responsibility for its complicity in or
contribution to constitutional injury. "State and private forces may act symbiotically. In such cases, a test focused on sole or immediate cause
is misleading. By focusing on immediate, physical causes, the Court deflects attention from its complicity in the plight of the powerless." n60 In
the domestic violence context, the state's action combined with private forces may collectively place a battered woman in a worse-off position,
which would not be recognized if the focus was solely upon the state's actions. For example, when the police are called and they refuse to
arrest a batterer, this act by itself might not enhance the danger faced by a victim of domestic violence. However, the result of this state
action is that the batterer, a private force, becomes even more violent, believing that the state condones his actions. The state should be
liable for its actions not only when they are [*1308] the immediate cause of danger, but also when they act with private forces to create or
increase the level of danger faced by a victim.

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n60. Id. at 2293 (footnote omitted).

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The Court's focus on whether a plaintiff is rendered worse off than if the government had provided no services also misapprehends the nature of
modern government. Since the New Deal, government regulation and provision of services, rather than inaction, have been the norm. "In light of
pervasive government regulation and services, the baseline of governmental inaction has not described the status quo in at least half a
century." n61 Neither the language of the Constitution nor its history prohibits establishing affirmative governmental duties. n62 The Supreme
Court has avoided the Due Process Clause guarantee of protection from the arbitrary use of government power

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n61. Id. at 2292.

n62. Id. at 2313.

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by reliance on a series of bright lines: only intentional, direct, and coercive acts may cause deprivations. Application of these bright lines has
led to unjust results because they are too coarse to capture the complex ways in which government can abuse power. The Court never
explained why the state's disastrous incompetence in DeShaney did not offend deeply held notions about governmental obligations toward
defenseless children which ought to be imbedded in the Constitution. n63

Similarly, the courts in Balistreri and Salas never explained why ignoring the needs of battered women did not offend notions about minimal levels
of protection that the government should provide to its citizens. However, although DeShaney does not paint a promising picture for due
process claims by victims of domestic violence, there are a few situations in which a battered woman's due process claim should still be able to
prevail.

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n63. Id. at 2346.

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D. Situations in Which Victims of Domestic Violence Can Still Prevail With Due Process Claims After DeShaney

Although the Balistreri and Salas courts were not receptive to due process claims, other courts have remained open to the possibility that the
Due Process Clause is still a viable remedy for victims of domestic violence who seek redress for inadequate police protection. After DeShaney,
battered women are still owed an affirmative duty of protection by the police under the Due Process Clause if the state acts [*1309] to
create or enhance the danger faced by a victim, or if a battered woman is in the custody of the state.

The state does in fact create or enhance the level of danger faced by battered women in a number of situations. First, when the police are
phoned by a victim of domestic violence and they fail to question or arrest the batterer, a battered woman is placed in an increased level of
danger because the police have validated her batterer's actions. Now the batterer not only will continue the battering, but is likely to do so with
an increased vengeance because he is aware that he will not be held liable for his actions. n64 Second, when the police assure a battered
woman that her batterer is in custody and will not be released, an affirmative requirement of protection can be placed on the state because the
battered woman may change her course of action based on the state's reassurances. For example, a woman may return to work, which will
place her in increased danger if the police release the batterer, as they often do. n65 False assurances by the police may also increase the
level of danger to a battered woman because she may forgo alternative types of protection, such as staying with friends. Finally, the state
enhances the level of danger faced by a battered woman when it grants her a protective order upon which she relies and which the state fails
to enforce. Case law demonstrates each of these situations.

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n64. See Statistics, supra note 4, at 69-70 (citing Walker, supra note 21, at 63).

n65. Pinder v. Commissioners of Cambridge, 821 F. Supp. 376, 396 (D. Md. 1993).

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On March 18, 1989, Carol Pinder, the plaintiff in Pinder v. Commissioners of Cambridge, n66 left work and went home in response to a phone call
informing her that an old boyfriend, Don Pittman, had broken into her house. When Carol arrived, Pittman physically attacked her and threatened
to kill her and her children. When the Cambridge police arrived, Carol told Officer Johnson what had taken place and explained that Pittman had
previously broken into her home and tried to burn it down. Johnson arrested Pittman and Carol specifically asked Johnson if she should return to
work. Johnson advised Carol to return to work because he would keep Pittman in custody. Pittman was released one hour later, without any
warning to Carol or any effort to monitor Pittman's activities upon release. Pittman walked straight from the police station to Carol's home and
set it on fire. All [*1310] three of Carol's children died from smoke inhalation. n67 Carol brought suit under the Due Process and Equal
Protection Clauses.

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n66. 821 F. Supp. 376.

n67. Id. at 381.

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The court in Pinder recognized that even after DeShaney there are noncustodial situations in which the state has an affirmative duty to provide
protection. "While the custodial context magnifies the government's responsibility to act, ... it does not present an exclusive set of
circumstances under which a government may act arbitrarily. Nor, therefore, should the right to due process be arbitrarily limited to protecting
only those in custody." n68 The court focused upon what the state did to create or enhance the risk faced by the plaintiff. The court
analogized DeShaney to the common law torts distinction between misfeasance and nonfeasance. Tort law recognizes no duty to go to the
assistance of an individual in peril, yet there exists a duty to avoid affirmative acts that worsen an individual's situation. The voluntary
assumption of duty by affirmative conduct to come to the aid of another may create a duty of protection as well. n69 This common law
distinction mirrors DeShaney's emphasis on government actions that create or enhance the danger a victim faces.

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n68. Id. at 391.

n69. Id. at 395.

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Officer Johnson's assurances to Carol that Pittman would remain in custody created an affirmative requirement of protection upon the state
because Carol changed her course of action and returned to work, relying on Johnson's assurances. n70 Johnson's statements deprived Carol of
the chance to obtain additional help, to stay at home with her children, or to take them elsewhere. The court held that Carol's detrimental
reliance on the government's assurances may serve as a basis for asserting a due process claim, and therefore the defendant's motion to
dismiss was denied. n71 Recall that in Salas v. Carpenter, n72 a Justice of the Peace told Juanita to return to work, although she feared her
batterer. In reliance upon this advice, Juanita went back to work that day, and was taken hostage and murdered by her batterer. In contrast to
the court in Pinder, the court in Salas held that there was no liberty deprivation because, according to DeShaney, the state did not act to
increase the level of danger that Juanita faced. n73 The court's reasoning in Salas was flawed; the state did in fact [*1311] increase the level
of danger faced by Juanita because she was murdered when she returned to work in reliance upon the advice of the Justice of the Peace.
Those assurances created an affirmative requirement of protection upon the state because Juanita changed her course of action and returned
to work when it would have been safer for her to remain at her friend's house.

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n70. Id. at 396.

n71. Id. at 397.

n72. 980 F.2d 299 (5th Cir. 1992).

n73. Id. at 309.

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A second case law example of due process claims by victims of domestic violence after DeShaney is Freeman v. Ferguson. n74 In Freeman,
Geraldine Downen and Valerie Downen were killed by Geraldine's estranged husband, Norman Downen, Jr. At the time of their deaths, Geraldine
had a restraining order against Norman. The police had continually and intentionally ignored and failed to take seriously Geraldine's pleas for help
and requests to enforce her restraining order. n75 Geraldine and Valerie Downen's estates brought suit prior to DeShaney, but the court thought
that even after DeShaney the plaintiffs still had a valid due process claim. Thus, the court granted plaintiffs the right to amend their complaint
according to the more stringent due process pleadings required by DeShaney. n76

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n74. 911 F.2d 52 (8th Cir. 1990).

n75. Id. at 55.

n76. Id.

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The court stated that

this analysis establishes the possibility that a constitutional duty to protect an individual against private violence may exist in a non-custodial
setting if the state has taken affirmative action which increases the individual's danger of, or vulnerability to, such violence beyond the level it
would have been at absent state action. n77

The plaintiffs' allegations that the state had failed to enforce Geraldine's restraining order, which she relied on for her protection, indicated to
the court that the state may have increased the level of danger faced by Geraldine and Valerie.

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n77. Id. at 53-54.

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Wood v. Ostrander, n78 although not a domestic violence case, is an extreme example of the state creating the danger faced by a victim. Linda
Wood was a passenger in a car that was pulled over by the police at 2:30 A.M. The driver, Robert Bell, was intoxicated and placed under arrest.
Trooper Ostrander, who had pulled the car over, called for a tow truck to have the car impounded and told Linda to get out of the car.
Ostrander then got into his patrol car and drove away with Bell. Linda was left stranded on the freeway, in a high crime area, at [*1312] 2:30
A.M. Initially Linda turned down rides offered by strangers, but she eventually accepted one. The driver of this car took Linda to a secluded
area and raped her. n79

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n78. 879 F.2d 583 (9th Cir. 1989), cert. denied, 498 U.S. 938 (1990).

n79. Id. at 586.

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According to the court, Ostrander's actions of arresting Bell, impounding the car, and leaving Linda on the side of the road at night in a high
crime area were assertions of government power that showed such disregard for Linda's safety as to amount to deliberate indifference.
"Although Ostrander did not himself assault Wood, he allegedly acted in callous disregard for Wood's physical security, a liberty interest
protected by the Constitution." n80 A reasonable police officer should have understood that his actions violated Linda's liberty interest to be
free from an unjustified intrusion into her personal security, protected by the Fourteenth Amendment. n81

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n80. Id. at 589.

n81. Id. at 596.

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Linda's position is similar to that faced by many victims of domestic violence. Although the police do not themselves batter the victims, as
Ostrander did not himself assault Linda, the police in domestic violence situations so callously disregard the safety of battered women that they
ensure that the abuse will continue. Nonarrest of batterers, unwillingness to get involved in domestic violence, and weak enforcement of
protective orders create an atmosphere that is very favorable to batterers and that allows the abuse to continue unpunished.

A final way in which victims of domestic violence can distinguish their situation from DeShaney and prevail on a due process claim of inadequate
police protection revolves around protective orders. When a court issues an order of protection, it signifies that the state will provide for the
woman's safety for the period of time covered by the order, and therefore that the state has an affirmative responsibility to provide protection.
A battered woman will rely on the protective order for her safety, and if it is not enforced by the police, she is placed in a worse position than if
no protective order had been issued.

Caitlin E. Borgmann argues that an order of protection creates a substantive right enforceable under the Constitution. n82 According to
Borgmann, the state owes protection to women with protective orders [*1313] for two alternative reasons. First, battered women with
protective orders are in the "custody" of the state as defined by the Court in DeShaney. n83 A battered woman is in custody in the sense that
she has restraints placed upon her personal liberty when she receives an order of protection. At a minimum, she must remain in the jurisdiction
in which the protective order was granted. At a maximum, the protective order may require the woman to stay within designated areas that are
regarded as safe. Therefore, Borgmann claims that this satisfies DeShaney's requirement to provide affirmative protection when the state
restrains one's personal liberty. n84 Certainly, a protective order that stringently restricts a battered woman's movements will more severely
restrain her personal liberty than will a protective order that only requires her to remain in the jurisdiction. Yet the Court in DeShaney seemed to
have in mind more of a restraint on personal liberty than that which arises from a protective order. DeShaney focused upon a severe restraint of
personal liberty, such as physical custody, which would prevent a person from protecting himself or herself. Therefore, protective orders
probably cannot support a due process claim based on restraint of personal liberty.

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n82. Caitlin E. Borgmann, Note, Battered Women's Substantive Due Process Claims: Can Orders of Protection Deflect DeShaney?, 65 N.Y.U. L.
Rev. 1280, 1290 (1990).

n83. Id. at 1304.

n84. Id. at 1305-06.

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Borgmann's second, and stronger, argument is that the state owes women with protective orders an affirmative duty of protection because the
duty and causation requirements of DeShaney are met. A protective order lulls a battered woman into a false sense of security that she can
rely on the protective order for her safety, and thus dissuades her from seeking out self-help remedies or other assistance. n85 Therefore, if
protective orders are not enforced by the police, as they often are not, battered women are placed in greater danger by the state's actions.
Furthermore, the order normally entails the woman leaving the batterer, which enrages the batterer and therefore places the woman in
heightened danger. When battered women try to flee their batterers, they typically experience the most violent beatings, many of which result
in death. n86

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n85. Id. at 1308.

n86. Id. at 1313.

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Borgmann's argument works well within the constraints of DeShaney. However, the problem is that most battered women are not even able to
get protective orders because courts, as well as police, are unresponsive to their needs. Therefore, Borgmann's analysis will [*1314] leave
many victims of domestic violence without any legal remedy at all. This illustrates that the Due Process Clause is no longer a sufficient tool with
which to challenge the inadequate police response in domestic violence situations. An examination of the Equal Protection Clause reveals that it
may be the broader legal remedy needed by victims of domestic violence in order to challenge the unresponsiveness of police. In fact, the Court
in DeShaney recognized the Equal Protection Clause as a viable alternative for those seeking redress based upon a lack of protective services:
"The state may not, of course, selectively deny its protective services to certain disfavored minorities without violating the Equal Protection
Clause." n87

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n87. DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 197 n.3 (1989).

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IV. THE EQUAL PROTECTION CLAUSE AS A REMEDY FOR VICTIMS OF DOMESTIC VIOLENCE CHALLENGING INADEQUATE POLICE PROTECTION

The Equal Protection Clause of the Fourteenth Amendment states that "no State shall ... deny to any person within its jurisdiction the equal
protection of the laws." n88

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n88. U.S. Const. amend. XIV, 1.

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Feminist scholars have persuasively argued that woman battering is not merely the violent behavior of a few mentally disturbed individual men,
but is a graphic and explicit demonstration of men's domination over women. Woman battering is a violent manifestation of the patriarchal beliefs
that men have the right to dominate, control, and rule over women, particularly when those women are, as wives or girlfriends, the "property" or
"possession" of men. n89

The patriarchal belief that women are the possessions of their boyfriends and husbands is reflected in the attitude of police towards victims of
domestic violence. The Equal Protection Clause is a viable alternative for victims of domestic violence who bring suit based upon inadequate
police protection because victims of domestic violence are afforded a much lower level of protection than are other battery victims.

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n89. Amy Eppler, Note, Battered Women and the Equal Protection Clause: Will the Constitution Help Them When the Police Won't?, 95 Yale L.J.
788, 790 n.14 (1986).

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In order for a battered woman to bring an equal protection claim, two things must be proven. First, police unresponsiveness towards victims of
domestic violence must constitute gender discrimination. [*1315] Second, discriminatory intent on the part of the police must be proven.
Police unresponsiveness towards victims of domestic violence does constitute gender discrimination because women comprise virtually the entire
class of people who are harmed by a policy of affording less protection to victims of domestic violence. Discriminatory intent on the part of the
police can be established in three ways. First, the enforcement of a facially neutral policy that results in extreme discriminatory effects upon a
particular class of people implies discriminatory purpose. Second, police unresponsiveness to domestic violence disputes is based upon archaic,
stereotypical notions of gender roles. Third, discriminatory intent can be proven by looking at an untraditional notion of intent - unconscious
sexism.

A. Police Unresponsiveness to Victims of Domestic Violence Is a Form of Gender Discrimination

There are two types of gender discrimination, overt and covert. Overt gender discrimination occurs when a law or policy discriminates against
women on its face, explicitly by its terms. With such a policy, discriminatory intent and discriminatory impact need not be proven. The policy is
automatically subjected to intermediate scrutiny. In order to maintain the challenged policy, the government must show that the policy is
substantially related to an important government interest. n90

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n90. See Craig v. Boren, 429 U.S. 190 (1976); Frontiero v. Richardson, 411 U.S. 677 (1973).

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Overt discrimination is generally not at issue with lawsuits against the police in domestic violence situations because most police departments
do not have an overt policy of providing less protection to victims of domestic violence. Inadequate protection is more likely the result of
unspoken police policy and attitudes.

Covert gender discrimination occurs when a law or policy, although neutral on its face, is administered in a manner that disproportionately
discriminates against women. Such policies are not subjected to intermediate scrutiny unless the plaintiff can prove discriminatory purpose or
intent on the part of the government. If the plaintiff is unable to prove discriminatory intent, the policy is subjected to the rational basis test
which places a very small burden of justification upon the government. The government need only show [*1316] that the policy is rationally
related to a legitimate government interest. n91 Covert discrimination is usually the type of discrimination at issue with equal protection
challenges to police unresponsiveness by battered women.

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n91. Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 274 (1979); Washington v. Davis, 426 U.S. 229, 246 (1976).

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In an equal protection challenge, the first step is to compare the two groups that are being treated unequally. There are three possible groups
to compare in the domestic violence context. First, one could try to compare the treatment of battered women by police to the treatment of
battered men by police. However, this comparison is meaningless because battered men are a virtually nonexistent category. Second, one could
try to compare the treatment by police of spouse abuse victims to the treatment by police of other battery victims. However, this comparison is
insufficient because it results not in a claim of gender discrimination, but in a marital status comparison. The comparison becomes one of marital
status because the focus is on the marital relationship between the batterer and the victim, instead of on the gender of the victim. This
comparison is underinclusive because it fails to include victims of domestic violence who are not married to their batterers. Finally, one could
compare the treatment by police of victims of domestic violence to the treatment by police of other battery victims. This is the best
classification scheme for an equal protection claim because it properly defines the problem - that only women, whether single or married, are
the victims of domestic violence, and that they are afforded less protection by police than are all other battery victims.

However, in order to make out a valid equal protection claim, the comparison groups must satisfy the classification scheme requirements of
Geduldig v. Aiello, Personnel Administrator of Massachusetts v. Feeney, and Bray v. Alexandria Women's Health Clinic. This line of cases holds
that an equal protection claim is not valid when members of the class discriminated against are also members of the class to which it is being
compared. An analysis of the case law will help to define this requirement and illustrate why it creates a potential problem for battered women
who bring equal protection suits against the police.

In Geduldig v. Aiello, n92 the plaintiff brought suit under the Equal Protection Clause, challenging the California Disability Insurance Program for
refusing to pay insurance benefits for the disability that [*1317] accompanies normal pregnancy and childbirth. n93 The Court held that this
claim of gender discrimination was invalid because there was a lack of identity between the excluded disability and gender. "The program divides
potential recipients into two groups - pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes
members of both sexes. The fiscal and actuarial benefits of the program thus accrue to members of both sexes." n94 The Court stated that
while only women can become pregnant, it does not follow that every legislative classification based on pregnancy is a sex-based classification.

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n92. 417 U.S. 484 (1974).

n93. Id. at 492.

n94. Id. at 497 n.20.

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Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of
one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any
reasonable basis, just as with respect to any other physical condition. n95

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n95. Id.

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The Court in Geduldig upheld the California disability insurance policy under the rational basis test because the benefits of the program were
rationally related to the following legitimate government interests: maintaining the self-supporting nature of the program, keeping contribution
rates of participating employees at a level that would not unduly burden them, and distributing the resources to cover a smaller number of
disabilities sufficiently rather than to cover all disabilities inadequately. n96 Geduldig presents a problem for victims of domestic violence who
bring equal protection challenges against the police. Under the Geduldig rationale, the category "victims of domestic violence" is arguably not a
pretext for gender discrimination because not all women are battered women. In other words, the treatment by police of battered women is
compared to the treatment by police of battery victims in general. And because women are present in both comparison groups, there is no
gender discrimination.

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n96. Id. at 496.

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The Court reaffirmed its holding in Geduldig with Personnel Administrator of Massachusetts v. Feeney. n97 In this case, the plaintiff, a female
nonveteran, brought an equal protection challenge to a Massachusetts statute that explicitly preferred veterans, as opposed to nonveterans,
for civil service jobs. The preference operated [*1318] overwhelmingly to the advantage of males. When the case was brought, over
ninety-eight percent of the veterans in Massachusetts were male. The plaintiff claimed that this statute denied women equal protection of the
law. n98 The Court held that

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n97. 442 U.S. 256 (1979).

n98. Id. at 270-71.

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this is not a law that can plausibly be explained only as a gender-based classification.... Veteran status is not uniquely male. Although few
women benefit from the preference, the nonveteran class is not substantially all female. To the contrary, significant numbers of nonveterans are
men, and all nonveterans - male as well as female - are placed at a disadvantage. n99

This case, like Geduldig, limits equal protection claims by victims of domestic violence because the class of "general battery victims," to which
victims of domestic violence are being compared, is composed of both men and women.

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n99. Id. at 275.

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Bray v. Alexandria Women's Health Clinic n100 is the final case in this series. The plaintiffs in Bray, abortion clinics and pro-choice organizations,
brought suit against Operation Rescue to prevent its members from trespassing, obstructing access to abortion clinics, and performing
demonstrations at abortion clinics in Washington, D.C. The plaintiffs argued that the defendants' actions were a form of gender discrimination
directed towards all women, not just women seeking abortions, because only females get abortions. n101 The Court applied Geduldig and stated
that the defendants were not engaged in gender discrimination because opposition to voluntary abortion cannot possibly be considered
opposition to women.

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n100. 113 S. Ct. 753 (1993).

n101. Id. at 758-59.

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Whatever one thinks of abortion, it cannot be denied that there are common and respectable reasons for opposing it, other than the hatred of
... women as a class - as is evident from the fact that men and women are on both sides of the issue, just as men and women are on both
sides of petitioners' unlawful demonstrations. n102

The Court held that discriminatory purpose could not be proven because women were present in both the class of people who get abortions and
the class of people who do not.

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n102. Id. at 760.

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At first glance, Geduldig, Feeney, and Bray seem to suggest that battered women cannot sue the police under the Equal Protection Clause
because women are present in both the categories of "victims [*1319] of domestic violence" and "other battery victims," and therefore
discriminatory purpose cannot be proven. However, I have two responses to this. First, Geduldig, Feeney, and Bray are completely illogical and
should be overruled. Second, Geduldig's application has been very limited, almost solely to issues of pregnancy, and therefore may not be
applicable in the domestic violence context.

First, these cases are based on flawed logic and should be overruled. If only women can become pregnant, then how is it possible that
categories based upon pregnancy are not pretexts for gender discrimination? It should make absolutely no difference that some women do not
become pregnant. Pregnancy is a classification that is one hundred percent female. Laws that specifically exclude pregnant persons from
receiving benefits only affect women, and thus discriminate against women. Justice Brennan's dissent in Geduldig illustrates this point:

By singling out for less favorable treatment a gender-linked disability peculiar to women, the State has created a double standard for disability
compensation: a limitation is imposed upon the disabilities for which women workers may recover, while men receive full compensation for all
disabilities suffered, including those that affect only or primarily their sex, such as prostatectomies, circumcision, hemophilia, and gout. In
effect, one set of rules is applied to females and another to males. Such dissimilar treatment of men and women, on the basis of physical
characteristics, inextricably linked to one sex, inevitably constitutes sex discrimination. n103

Justice Stevens' dissent in Bray makes a similar point. "The Court offers no justification for its newly crafted suggestion that deliberately
imposing a burden on an activity exclusively performed by women is not class-based discrimination unless opposition to the activity is also
irrational." n104 Justice Stevens argues that the Court's analysis in Bray only makes sense if every member of a protected class chooses to
exercise all of his or her constitutional rights. The fact that many women do not obtain abortions, or that many women oppose abortion, does
not mean that those who violently prevent the exercise of that right by other women are somehow cleansed of their discriminatory purpose.
n105

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n103. 417 U.S. 484, 501 (1974) (Brennan, J., dissenting).

n104. Bray, 113 S. Ct. at 788 (Stevens, J., dissenting).

n105. Id. at 788-89.

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Feeney is similarly illogical. If a law is passed that facially prefers veterans, and ninety-eight percent of veterans are male, the law [*1320]
clearly disproportionately disadvantages women and therefore discriminates against them. It should be irrelevant that some men are
nonveterans as well.

The nightmare of domestic violence is one that women alone face. The fact that the category of "victims of domestic violence" is composed
solely of women should be sufficient for an equal protection claim. Geduldig's focus on the fact that women are also present in the comparison
group of "battery victims" should be irrelevant. If a police policy discriminates against victims of domestic violence by providing them lower levels
of protection than other battery victims, and if victims of domestic violence are always women, then the police policy is a pretext for gender
discrimination.

My second response to the Geduldig line of cases is that Geduldig's application has been very limited and may not apply in gender discrimination
claims that focus on the treatment of battered women. In fact, Geduldig may only be relevant in the context of gender discrimination claims
based upon pregnancy. The only recent case that has relied upon Geduldig for authority is Bray v. Alexandria Women's Health Clinic. Both
Geduldig and Bray dealt with issues of pregnancy and reproductive rights. The notion that Geduldig does not apply in the domestic violence
context is further reinforced by the fact that Geduldig was not mentioned as an obstacle in any of the equal protection cases involving battered
women that I discuss in this Note. Thus, Geduldig may have been limited to situations involving reproductive rights, and in its practical
application does not impose an obstacle to battered women's equal protection claims against the police for inadequate protection.

Case law has recognized that the unresponsive attitudes of police towards battered women can constitute gender discrimination. In Balistreri v.
Pacifica Police Department, the plaintiff brought an equal protection claim against the police. n106 Although the Ninth Circuit affirmed the
district court's dismissal of Jena Balistreri's due process claim, it also held that the district court erred in refusing to allow Jena to amend her
equal protection claim:

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n106. Balistreri v. Pacifica Police Dep't, 901 F.2d 696 (9th Cir. 1990). For a discussion of Jena Balistreri's due process claim, see supra part III.C.

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Not only can we "conceive of facts" that would constitute an equal protection cause of action, Balistreri's Complaint and Opposition to
[*1321] Motion to Dismiss allege facts which, if true, may be a proper subject for relief.... Balistreri's complaint alleges that an officer
responding ... to her complaint allegedly stated that he "did not blame plaintiff's husband for hitting her, because of the way she was "carrying
on.' " Such remarks strongly suggest an intention to treat domestic cases less seriously than other assaults, as well as an animus against
abused women. n107

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n107. Balistreri, 901 F.2d at 701.

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Carol Pinder, in Pinder v. Commissioners of Cambridge, brought an equal protection challenge to the inadequate protection provided by the
police, in addition to her due process claim. n108 Carol argued that the police maintain a policy or custom of taking domestic violence against
women less seriously than other assault cases and that the police treat male offenders in incidents of domestic violence more leniently than
offenders in other assault cases. The court recognized the validity of Carol's equal protection claim and denied the defendant's motion to
dismiss this cause of action. n109

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n108. 821 F. Supp. 376 (D. Md. 1993). For a discussion of Carol Pinder's due process claim, see supra part III.D.

n109. Pinder, 821 F. Supp at 386.

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Thurman v. Torrington n110 also recognized that the inadequate police protection afforded to victims of domestic violence is a form of gender
discrimination. Between October 1982 and June 1983, Tracey Thurman notified the police of repeated threats made on her life and her child's life
by her estranged husband, Charles Thurman. Tracey's attempts to file complaints against Charles in response to his threats were ignored by the
police. In October 1982, Charles attacked Tracey while she was at the home of Judy Bentley. Bentley made a complaint to the police and asked
the police to keep Charles off her property. On November 5, 1982, Charles returned to Bentley's home and had to be physically removed. After
this incident, Bentley and the plaintiff went to the police department to file a complaint, but the police refused to accept a complaint for any
charge, including one for trespassing. n111

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n110. 595 F. Supp. 1521 (D. Conn. 1984).

n111. Id. at 1524.

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On November 9, 1982, Charles screamed threats at the plaintiff, who was sitting in her car, while a police officer stood nearby and did nothing.
When Charles broke the windshield of Tracey's car, the officer finally arrested Charles, who later was convicted of breach of the peace. Charles
was given a six-month suspended sentence and told to [*1322] stay away from Tracey and Judy Bentley. On December 31, 1982, Charles
returned to Bentley's home and threatened Tracey. Tracey phoned the police and informed them of Charles' violation of his conditional
discharge, but the police made no attempt to find or arrest him. Between January 1983 and May 1983, Tracey made continual complaints to the
police about Charles' threats of violence. On May 6, the plaintiff filed for and was granted a restraining order against Charles. Charles was
informed of the restraining order. On May 27, Tracey requested a warrant for Charles' arrest and was told she would have to wait until after the
Memorial Day holiday weekend. On May 31, she returned to the police station and was told that the only officer who could help her was on
vacation. n112

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n112. Id. at 1524-25.

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Tracey's brother-in-law called the police to complain about their lack of action and they informed him that Charles would be arrested. He never
was. On June 10, Charles showed up at Bentley's home and demanded to speak with Tracey. Tracey called the police and then went outside to
speak with Charles in an attempt to persuade him not to hurt their son. Charles then stabbed Tracey repeatedly in the chest, neck, and throat.
Twenty-five minutes later, one police officer arrived and Charles ran into the house. He wandered about, continuing to threaten Tracey, before
the police arrested him. n113

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n113. Id. at 1525-26.

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Tracey Thurman brought suit and argued that police protection in the City of Torrington is fully provided to those in non-domestic disputes, but
that the police consistently afford a lesser level of protection when the victim is a woman who is abused or assaulted by a spouse or boyfriend.
n114 The court denied the defendant's motion to dismiss the complaint because the plaintiff sufficiently alleged a denial of her constitutional
rights under the Equal Protection Clause. Over the course of eight months the defendants failed to protect Tracey from Charles' threats. "Any
notion that defendants' practice can be justified as a means of promoting domestic harmony by refraining from interference in marital disputes,
has no place in the case at hand." n115

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n114. Id. at 1527.

n115. Id. at 1529.

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As the above cases illustrate, unresponsive police attitudes towards victims of domestic violence constitute gender discrimination [*1323]
when compared to the level of police protection afforded to other battery victims. Yet, in order to make out a covert discrimination claim, this is
not enough. Discriminatory intent on the part of the police must also be proven.

B. Establishing Discriminatory Intent on the Part
of the Police

Balistreri, Pinder, and Thurman illustrate that police attitudes towards victims of domestic violence can constitute gender discrimination.
However, in order to make out a successful equal protection claim, battered women must also prove discriminatory intent on the part of the
police.

I propose three ways in which discriminatory intent can be established in domestic violence cases. First, according to Yick Wo v. Hopkins n116
and its progeny, the enforcement of a facially neutral policy that results in extreme discriminatory effects can imply discriminatory intent.
Second, police unresponsiveness to domestic violence disputes is based on archaic, stereotypical notions of gender roles, and this proves
discriminatory intent. Third, discriminatory intent on the part of the police is based to a great extent on unconscious sexism, and therefore
other factors beyond traditional notions of intent must be examined.

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n116. 118 U.S. 356 (1886).

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1. Facially Neutral Policies with Extreme Discriminatory Effects

First, extreme discriminatory effects of a facially neutral policy can imply discriminatory purpose on the part of the sponsoring agency. This
doctrine was first developed in Yick Wo v. Hopkins. n117 This case involved a challenge to a San Francisco ordinance that barred the operation
of hand laundries in wooden buildings unless the operators received a permit from the Board of Supervisors. The Board of Supervisors granted
permits to all but one of the non-Chinese applicants and denied permits to all of the 200 Chinese applicants. n118

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n117. Id.

n118. Id. at 359.

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The Court stated that although the ordinance was neutral on its face, it was administered in such a discriminatory manner that discriminatory
intent on the part of the Board of Supervisors could be inferred. Therefore, the Court held that the ordinance violated the Equal Protection
Clause. The Court stated that the power granted to the Board of Supervisors was used arbitrarily and without guidance or restraint.

The facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the
conclusion, that, whatever may have been the intent of the ordinances as adopted, they are applied ... with a mind so unequal and oppressive
as to amount to a practical denial by the State of that equal protection of the laws which is secured ... by the ... Fourteenth Amendment. n119

A law that is impartial on its face, though applied with "an evil eye and an unequal hand ... to make unjust and illegal discriminations" n120
implies discriminatory intent and is therefore prohibited by the Equal Protection Clause.

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n119. Id. at 373.

n120. Id. at 373-74.

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The doctrine that extreme discriminatory effects can imply a discriminatory purpose was reaffirmed in Gomillion v. Lightfoot. n121 The plaintiffs
in Gomillion, African-American citizens of Alabama, challenged an ordinance that redefined the boundaries of the city of Tuskegee from a square
to a twenty-eight-sided figure. The effect of the redefinition was that it removed from the city all but five of its four hundred African-American
voters, while it did not remove a single white voter. n122 The defendants argued that they could redefine the city boundaries because the
state had unrestricted power to establish, destroy, or reorganize its political subdivisions and cities.

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n121. 364 U.S. 339 (1960).

n122. Id. at 340-41.

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The Court held that states do not have the power to act as they wish without regard to the consequences. A state's actions must conform to
relevant limitations imposed by the Constitution. The ordinance in this case was struck down as an impermissible voting restriction under the
Fifteenth Amendment. A state's insulation from federal judicial review does not extend to situations in which state power is used as an
instrument for circumventing a federally protected [*1325] right. n123 Gomillion demonstrates that the discriminatory administration of a
facially neutral policy can imply discriminatory intent and therefore violate the Constitution. Justice Whittaker, in his concurring opinion, argued
that the case should have been decided on the basis of the Equal Protection Clause. n124

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n123. Id. at 345-47.

n124. Id. at 349 (Whittaker, J., concurring).

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A recent case that held that discriminatory effect implies discriminatory intent is Shaw v. Reno. n125 The plaintiffs, North Carolina citizens,
claimed that the state made an unconstitutional gerrymander that violated the Fourteenth Amendment. The General Assembly enacted a
reapportionment plan that created a district that was 160 miles long and no wider than the I-85 highway corridor. The district wound like a
snake and purposefully created a district with a majority of African-American voters. n126 The Court held that district lines drawn so obviously
to benefit one group implied discriminatory intent on the part of the General Assembly. n127 When a facially neutral policy, such as an
apportionment plan, is administered in such a way that it severely discriminates against a particular group of people, discriminatory purpose can
be implied and the policy can be interpreted to violate the Equal Protection Clause of the Fourteenth Amendment.

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n125. 113 S. Ct. 2816 (1993).

n126. Id. at 2820-21.

n127. Id. at 2826.

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Discriminatory intent on the part of the police towards victims of domestic violence can be implied by the fact that their policy of affording
victims of domestic violence less protection than other battery victims results in extreme discriminatory effects on women. Although this police
policy is neutral on its face, it severely discriminates against victims of domestic violence, a class composed entirely of women. Similar to the
broad grant of power to the Board of Supervisors to issue permits in Yick Wo, the police are given a great deal of power in determining how to
provide protection to the public. However, the Board of Supervisors in Yick Wo was constrained by the Constitution, and so are the police. The
police cannot administer a policy of affording protection with an "evil eye or unequal hand" that results in discriminatory effects to a protected
class of people. If the police do, then discriminatory intent can be inferred, and the policy is invalid because it violates the Constitution.
[*1326]

The police policy of providing less protection to battered women than that provided to other battery victims is evidenced by: (1) a failure to
respond to their calls, often arriving only after a substantial period of time has passed; (2) a refusal to arrest batterers; (3) a failure to file
reports on domestic disputes; (4) poor enforcement of restraining orders; and (5) a general harassment of battered women through tactics such
as encouraging them not to press charges. These policies imply a discriminatory intent on the part of the police towards women and constitute
gender discrimination in violation of the Equal Protection Clause of the Constitution.

2. Stereotypical Notions of Gender Roles

A second way of establishing discriminatory intent on the part of the police towards victims of domestic violence is to focus on the archaic,
stereotypical notions behind police policies of providing less protection to battered women. Because such police policies are based upon
outdated stereotypes that are extremely derogatory and condescending towards women, they establish the basis for discriminatory purpose.
The Court in Mississippi University for Women v. Hogan explained:

Although the test for determining the validity of a gender-based classification is straightforward, it must be applied free of fixed notions
concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective [or policy] itself
reflects archaic and stereotypic notions. Thus, if the statutory objective is to exclude or "protect" members of one gender because they are
presumed to ... be innately inferior, the objective itself is illegitimate. n128

In Hogan, the plaintiff brought suit against Mississippi University for Women ("MUW") because he was denied admission to its School of Nursing
based upon his sex. Hogan argued that the single-sex admissions policy of MUW violated the Equal Protection Clause. n129

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n128. Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724-25 (1982).

n129. Id. at 720-21.

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The Court held that MUW's policy of excluding men from admission to its School of Nursing perpetuated the stereotypical view that nursing was
an exclusively female job. Because the state failed to establish that the alleged objective, affirmative action for women, was the actual purpose
underlying the discriminatory classification, the [*1327] policy was held invalid. n130 The Court held that the classification was based upon
archaic and stereotypical notions of gender roles and that classifications based upon such notions are impermissible.

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n130. Id. at 730.

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Hogan was based on a facial, or overt, gender classification, while police policies towards battered women are based on covert classifications.
However, the recognition that policies based upon outdated stereotypes are discriminatory, and therefore invalid, should also be sufficient to
prove discriminatory intent in covert gender discrimination cases. In fact, maintenance of policies based upon inaccurate, derogatory
stereotypes of gender roles implies discriminatory intent because such stereotypes come from a discriminatory animus towards women. An
examination of the typical reasons provided by the police to justify their unresponsive attitudes towards domestic violence illustrates that police
policies are based on outdated stereotypes that imply discriminatory intent.

Woman-battering and nonintervention by the police in domestic violence disputes is a violent manifestation of the archaic patriarchal belief that
men have the right to dominate, control, and rule over women. n131 The police policy of nonintervention is most often justified by the belief
that the police and the state should respect family privacy and refrain from intervening in domestic matters. n132 This justification is rooted in
common law history. At common law, the husband was regarded as the ruler of the home who made all of the decisions for the family. A woman
relinquished her legal autonomy upon marriage and her husband was given the right to beat her in chastisement. n133 "Although the courts no
longer grant men the right to batter their wives, current police policies implicitly condone behavior once explicitly condoned at common law. The
police's non-interference policy, justified by ... family privacy ... empowers men to batter women." n134 The police justification of family privacy
is based upon outdated law and discriminatory stereotypes of women. Therefore, it implies discriminatory intent on the part of the police when
affording battered women a lesser level of protection than other battery victims.

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n131. Eppler, supra note 89, at 790-91 n.14.

n132. Id. at 791.

n133. Id. at 792.

n134. Id. at 792-93.

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A second justification offered by the police regarding the inadequate level of protection provided to victims of domestic violence is [*1328]
that the police want to prevent the breakup of the marriage and the family. n135 This justification, too, is based upon outdated common law
notions that a woman is the property of her husband and that the family should be kept together at all costs. It assumes that a woman should
be forced to remain in a violent relationship for the sake of maintaining the relationship. This justification is absurd because if a husband is
battering his wife, the violence has almost certainly destroyed their marriage and already torn apart the family. At this point, the police should
not be concerned with preventing the dissolution of the marriage, but rather with preventing the batterer from killing his wife or girlfriend.
Moreover, it is not for the police to decide whether a marriage is worth preserving. The consistent intervention of police in such situations would
make it safer for a battered woman to flee her batterer because she could be confident that her batterer was in police custody and would not
harm her any longer.

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n135. Jeffrey Shapiro, Note, The Inadequate Police Protection of Battered Wives: Can a City and Its Police Be Held Liable Under the Equal
Protection Clause?, 14 Fordham Urb. L.J. 417, 438 (1985-86).

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A third justification offered by the police is that they must maintain the efficient administration of the state's law enforcement agencies by
regarding domestic violence as a minor crime; therefore, the arrest of batterers is a low priority. n136 This justification is based on the
stereotypical notion that somehow it is not really a "crime," or it is less of a crime, for a man to beat his wife as compared to other batteries
because a woman is the property of her husband. In personal conversations that I have had with the police, I have asked them why they afford
such a low priority to domestic violence calls and why they refuse to arrest batterers. Every police officer to whom I have posed this question
has responded with the same answer - "It's not a police problem." I find it mind-boggling that merely because the batterer and the victim are
married or romantically involved, the police no longer recognize that an assault and battery has taken place - a crime to which the police are
supposed to respond. It is absurd to think that merely because a battery has taken place between a husband and wife, it is somehow a minor
crime as compared to other batteries.

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n136. Id. at 435.

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A fourth police justification for nonintervention is that the police must avoid arresting the batterer because the family might not be able to
withstand the economic impact of the husband's lost time at work due to the arrest. n137 This is based on the archaic stereotype that men
[*1329] work and support the family while women stay at home. Today, most women work and are substantial contributors to a family's
income. Furthermore, this justification implies that it is better for a woman to be beaten, and possibly murdered, by her husband, than to arrest
the batterer, free the woman from his abuse, and take the risk that she might encounter some economic difficulties. I think that most women
would choose economic difficulties over physical abuse, rape, and possible death. Most importantly, it should be the woman's choice, and not
the choice of the police, to decide which she would prefer.

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n137. Id.

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A final justification offered by the police is that they do not arrest the batterer because the victim might have wanted merely to frighten him, to
temporarily remove him from the home, or to be taken to the hospital. n138 This justification is also based on an archaic, derogatory stereotype
that a woman is indecisive and incapable of knowing what she really wants, and therefore needs someone to decide for her. If a woman asks
the police to arrest her batterer, they should not second-guess her and try to decide what she "really" wants. Can you imagine a battery
between strangers in which an officer looked at the victim and said, "Now, are you really sure you want us to arrest this person? Don't you just
want to be taken to the hospital?" If all a battered woman wants is to be taken to the hospital, she is perfectly capable of saying just that.
Women must be regarded as autonomous individuals capable of making decisions for themselves.

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n138. Id.

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As the above discussion illustrates, police justifications for nonintervention are based on offensive, sexist stereotypes regarding women. This
alone should prove discriminatory intent on the part of the police. Policies based upon such archaic notions of gender relations cannot be
tolerated any longer. Battered women have as much of a right to police protection as any other battery victim. It constitutes gender
discrimination to provide them with less protection based upon such outdated ideas.

3. Unconscious Sexism

A third way in which discriminatory intent on the part of the police towards victims of domestic violence can be proven is to examine [*1330]
an untraditional notion of intent - unconscious sexism. n139 This approach is an expansion upon, and a practical application of, my second
approach to proving discriminatory intent discussed above. This third theory of intent is based upon an unconscious racism argument made by
Charles Lawrence. Because discrimination of any kind takes place largely on an unconscious level, Lawrence's theory is equally applicable to
gender discrimination.

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n139. My unconscious sexism argument is based upon a theory of unconscious racism from Charles R. Lawrence III, The Id, the Ego, and Equal
Protection: Reckoning With Unconscious Racism, 39 Stan. L. Rev. 317 (1987).

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Traditional notions of intent do not reflect the fact that most decisions regarding gender or race are greatly influenced by factors that are
neither intentional, such that certain outcomes are consciously intended, nor unintentional, such that the outcomes are random and
uninfluenced by the decisionmaker's beliefs. Americans share a common historical and cultural heritage in which sexism and racism have played a
large role. Because of this shared heritage, Americans also share many negative ideas and beliefs regarding women and minorities. In the
context of race discrimination, Lawrence explains:

To the extent that this cultural belief system has influenced all of us, we are all racists. At the same time, most of us are unaware of our
racism. We do not recognize the ways in which our cultural experience has influenced our beliefs about race or the occasions on which those
beliefs affect our actions. In other words, a large part of the behavior that produces racial discrimination is influenced by unconscious racial
motivation. n140

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n140. Id. at 322.

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Lawrence's arguments are equally powerful in the gender discrimination context. Our cultural belief system has influenced our beliefs about
women and these beliefs unconsciously affect our actions. For example, the police are very possibly unaware that their reluctance to intervene
in domestic violence situations is based upon unconscious sexist notions that the man is the patriarch in a relationship and has the right to
"control" his wife or girlfriend.

There are two explanations for the unconscious nature of our sexist beliefs. First, Freud argued that the human mind defends itself against
feeling guilty by refusing to recognize ideas, wishes, and beliefs that are in conflict with what we have learned is good or right. Historically,
sexism has been an integral part of our culture, but at the same time, society has rejected sexism as being immoral. When an [*1331]
individual is in conflict between sexist ideas and the societal ideal that condemns those ideas, the mind excludes sexism from consciousness.
n141 Therefore, individuals often act in a sexist manner when making decisions, yet their minds on a conscious level refuse to acknowledge that
sexism has played a part in their decisionmaking process.

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n141. Id. at 322-23 (citing Sigmund Freud, The Ego and the Id, in 19 The Standard Edition of the Complete Psychological Works of Sigmund
Freud 3 (J. St. Rainey ed., 1951)).

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A second explanation for the unconscious nature of sexist beliefs is based upon cognitive psychology. The idea is that culture transmits
particular beliefs and preferences to people through such avenues as the media, parental influence, and one's peers. Because these beliefs are
so imbedded in our culture, they are not experienced as explicit lessons. Instead, they are part of one's rational ordering of perceptions about
the world. n142 An individual, such as a police officer, is therefore unaware that the presence of a cultural stereotype has influenced the
officer's perception that it is not as serious a crime for a man to beat his wife or girlfriend as it is for one stranger to beat another. Many of
these lessons are learned by watching the behavior of others. Because of the unconscious nature of sexism, proving discriminatory intent on the
part of the police towards victims of domestic violence may be a futile effort. If the police are unaware that they are making decisions regarding
the nonarrest of batterers and poor enforcement of protective orders based upon sexist stereotypes, then it is impossible to prove their
discriminatory intent. Therefore, nontraditional methods of intent analysis must be examined so that unconscious discriminatory purpose can be
proven.

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n142. Id. at 323 (citing M. Goodman, Race Awareness in Young Children (1952); G. Saenger, The Social Psychology of Prejudice (1953); Nisbett
& Wilson, Telling More than We Can Know: Verbal Reports on Mental Processes, 84 Psychol. Rev. 231 (1977); Snyder, On the Self-Perpetuating
Nature of Social Stereotypes, in Cognitive Processing in Stereotyping and the Intergroup Behavior 183 (D. Hamilton ed., 1981); Tajfel, Cognitive
Aspects of Prejudice, 25:4 J. Soc. Issues 79 (1969)).

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"In short, requiring proof of conscious or intentional motivation as a prerequisite to constitutional recognition that a decision is race-dependent
ignores much of what we understand about how the human mind works." n143 Courts must find a way to address and recognize that much of
discrimination is unconscious. Lawrence proposes a test to trigger judicial recognition of unconscious racist behavior by evaluating governmental
conduct in order to determine whether it conveys a symbolic message to which the culture attaches racial significance. [*1332] Lawrence's
test works equally well in the context of gender discrimination by looking to whether the governmental conduct conveys a symbolic message to
which the culture attaches gender significance. Lawrence does not propose to completely abandon the search for unconstitutional motives, nor
does he argue that all governmental policies with discriminatory impact should be strictly scrutinized. His focus is instead on a more complete
understanding of the nature of the human mind. n144

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n143. Id. at 323 (footnote omitted).

n144. Id. at 324.

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The test that Lawrence proposes is the Cultural Meaning Test. Lawrence argues that courts, in deciding an equal protection claim, should look
to the "cultural meaning" of an allegedly discriminatory act as the best analogue for evidence of unconscious racism (or sexism) which cannot be
directly observed. n145 The Cultural Meaning Test evaluates governmental conduct to determine if it conveys a symbolic message to which the
culture attaches racial significance, or for gender claims, gender significance. Courts would act much as cultural anthropologists do, by looking
to the historical and social context in which the decision was made and effectuated. If a court decided that a significant part of the population
thinks of a policy in racial or gender terms, then the court would conclude that unconscious racist or sexist attitudes influenced the
decisionmakers. As a result, heightened scrutiny would be applied to the policy. n146

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n145. Id. at 355.

n146. Id. at 356.

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Courts are competent to apply a test that requires them to interpret the meaning of human behavior. In fact, courts often interpret the
meaning of social phenomena. For example, in Establishment Clause cases, courts determine whether a governmental practice advances or
inhibits religion by inquiring into the meaning the culture gives that practice. n147 In determining the scope of the Fourteenth Amendment's
zones of privacy, the Supreme Court has interpreted the concept of the family by referring to the meaning that the history [*1333] and
traditions of our culture have given it. n148 The Court has also examined the scope of the Fourth Amendment's protection against warrantless
searches and seizures by asking whether an individual has a reasonable expectation of privacy in the premises searched. n149

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n147. Id. at 359 (citing Lynch v. Donnelly, 465 U.S. 668 (1984) (inquiring whether a municipality's inclusion of a creche in its annual Christmas
display will be interpreted as a symbol of the city's support for Christian beliefs or as a display merely depicting the historical origins of a national
holiday); Stone v. Graham, 449 U.S. 39 (1980) (evaluating the constitutionality of a statute requiring posting of the Ten Commandments on
public school classroom walls); School Dist. v. Schempp, 374 U.S. 203 (1963) (evaluating the constitutionality of Bible reading as opposed to
Bible study)).

n148. Id. (citing Moore v. City of East Cleveland, 431 U.S. 494 (1977) (finding that a municipal housing ordinance that limits the number of
people in a dwelling based upon categories of family members intruded upon personal choice in matters of family life)).

n149. Id. (citing Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring); California v. Carney, 471 U.S. 386 (1985) (inquiring
into whether a mini-motorhome is a vehicle or a home)).

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Lawrence's Cultural Meaning Test provides a solution to the problem of proving discriminatory intent by examining intent in a manner that more
accurately reflects how the mind processes prejudices and beliefs. Such a test would make it much easier to prove discriminatory intent by the
police towards victims of domestic violence. Many of the beliefs held by police officers regarding gender relationships are socialized beliefs, and
on a conscious level police officers are therefore unaware of why they are providing inadequate protection to battered women. Because a great
deal of sexism on the part of the police takes place unconsciously, proving discriminatory purpose according to traditional notions of intent is
difficult. If courts were to look to whether the behavior of the police conveyed a symbolic message to which the culture attaches gender
significance, as the Cultural Meaning Test prescribes, battered women's equal protection claims would be decided in a manner that is much more
just. Courts could look to the historical and social context in which police decisions regarding battered women are made in determining whether
or not there was a discriminatory purpose. Historical and social factors, such as traditional patriarchal notions that a woman is the property of
her husband or boyfriend, would be key elements in a court's determination that the actions of the police convey a symbolic message of sexist
significance. With the Cultural Meaning Test, courts may find that a significant portion of the population thinks of police policies towards
battered women in gender terms. Therefore courts would be able to conclude that unconscious sexist attitudes played a part in the police
policy, and heightened scrutiny would be applied.

V. CONCLUSION

Domestic violence must be recognized as a serious crime, as are all other batteries. It is horrifying to think that men get away with the beating,
torture, and murder of their partners merely because police [*1334] do not take domestic violence seriously. Consistent and adequate
intervention by police in domestic violence situations would greatly reduce the occurrence of domestic violence because it would send a
message to batterers that their actions will no longer be tolerated.

After DeShaney, the Due Process Clause is no longer an adequate remedy for battered women who bring suit based upon inadequate police
protection. However, the Equal Protection Clause is a viable remedy. The police policy of affording battered women less protection than other
battery victims harms only women and therefore constitutes gender discrimination. The Geduldig line of cases, holding that an equal protection
claim is not valid when members of the class discriminated against are also members of the class to which it is being compared, is based on
flawed logic and should be overruled. Moreover, Geduldig has been very limited in its application and may not apply to battered women's equal
protection claims.

Discriminatory intent on the part of the police can be established in three ways. First, the enforcement of a facially neutral policy that severely
discriminates against a particular class of people can imply discriminatory purpose. Police policies of affording battered women less protection
than other battery victims result in extreme discriminatory effects to women because women comprise the entire class of people who are
harmed. The result is that domestic violence is very common and severe, and often results in death. Second, discriminatory intent can be
proven by analyzing the archaic, stereotypical notions behind police policies of providing less protection to battered women. Such police policies
are based on outdated patriarchal notions. They are derogatory and condescending towards women and establish the basis for discriminatory
purpose. Third, discriminatory purpose can be established by examining unconscious sexism and the "cultural meaning" behind police policies.

Women have a right to equal protection by the police. When a battery occurs between two people who are intimately involved, it does not
change the fact that a crime has occurred, the victim has been harmed, and the batterer should be arrested and held accountable for his
actions. Until the police take crimes against battered women seriously, domestic violence will continue to exist, and sexist, patriarchal notions
regarding gender relations will remain a part of our society.