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Monday, January 8, 2024


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Ninth Circuit Affirms Dismissal of Suit Claiming Discrimination Against Rape Victims


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals on Friday affirmed the dismissal with prejudice of an action by an El Monte woman who claimed that her right to equal protection was violated by officials in Contra Costa and Sonoma counties who failed to apply the same standards to an investigation of rape allegations that they would have utilized in response to reports of other crimes.

A woman, who was granted leave to sue pseudonymously as Jane Doe, alleges that a Sonoma law enforcement officer raped her “around ten times between 2013 and 2014” but that no action was taken against the man she accused.

She alleged in her civil rights complaint, filed by her in pro se in the U.S. District Court for the Northern District of California on April 9, 2020, that the defendants “practiced discriminatory under-policing and selective under-enforcement against rape victims, including Plaintiff,” adding:

“This action stems from law enforcement personnel’s response to a heinous crime—rape. This action is about the discriminatory practice and ill will of law enforcement personnel, their betrayal of public trust, and failure to protect residents from victimization by rapists. Our law enforcement’s response to rapes sends a catastrophic message to the whole of our society. To rape victims: bringing a complaint is useless. To rapists: you’re allowed to rape as many women as you want and there will be no consequence!”

No Plausible Claims

Judge James Donato on July 26, 2021 dismissed the first amended complaint with leave to amend, saying:

“Overall, Doe’s factual allegations do not plausibly allege that she was discriminated against in an ‘irrational and wholly arbitrary’ way.”

On March 13, 2020, the judge dismissed the federal claims in the second amended complaint (“SAC”) with prejudice and declined to retain supplemental jurisdiction over the state claim. He explained:

“The new allegations that Doe provided in the SAC simply underscored her inability to plead a plausible equal protection claim. In new paragraphs 141-147, Doe says that she was told her rape case would not be pursued because it was ‘six years old,’ despite the fact that ‘Andrea Constand was sexually assaulted by Bill Cosby in 2003 and Cosby was charged in 2015 and found guilty on April 26, 2018.’…Doe adds that ‘defendants would not use being old as a reason to drop homicide cases,’ stating that ‘Robert Alan Durst was brought to trial on March 2, 2020 for the death of Susan Berman who was killed in Los Angeles in 2000.’…Doe disputes ‘defendants’ assertion’ that her case could not be pursued because ‘there was no opportunity to interview any witnesses and talk to people in real time,’ when, ‘[f]or example the Cody Baca case’ was ‘recently prosecuted’ with ‘no eyewitness other than the male complaining witness.’…Doe further alleges elsewhere in the SAC that the Contra Costa District Attorney’s Office ‘filed charges against Cody Baca because the victim of sexual assault is male and male victims get better protection.’…

“Even construing the SAC generously in favor of a pro se plaintiff, none of this plausibly alleges an equal protection claim.”

Limited Remand

Doe appealed to the Ninth Circuit which issued an order for a limited remand to the District Court to determine if a frivolous appeal was being pursued and if the appellant should be permitted to continue in forma pauperis. Donato declared on May 13, 2022:

“Plaintiff’s action has no arguable basis in fact or law, and her in forma pauperis status is consequently revoked.”

The Ninth Circuit on Friday said in a memorandum opinion that Doe did not “plausibly allege an equal protection violation” because the facts set forth “do not show that Defendants treat investigations involving female sexual assault victims differently from all other criminal investigations, including those involving sexual assaults against males.” The panel continued:

“Defendants’ alleged lack of policies or training for sexual assaults and the statistical allegations do not differentiate between male and female victims, so no inference can be drawn from these allegations that female victims are treated differently from male victims. Defendants* remarks about the weakness of Plaintiff’s evidence and their decision not to pursue her case fail to show that the same or similar conduct would not occur in other criminal investigations presenting similar circumstances. While she points to one example in which Defendants pursued a sexual assault case involving a male victim. Plaintiff admits that case was different from hers because the male victim repotted the crime right after it occurred. Finally, the number of untested rape kits from women, by itself, does not raise an inference that Defendants treat female sexual assault victims differently from all other crime victims.”

Comprising the panel were Judges Bridget Shelton Bade, Mark J. Bennett, and Daniel P. Collins.

They remarked in a footnote that the court “reached a similar conclusion in a similar case filed by Plaintiff.” The opinion in that case, O. L. v. Jara, was filed on May 12, 2022, and affirmed an outcome in favor of the City of El Monte and other defendants.

Friday’s decision came in Doe v. City of Concord, 22-15384.


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