No gender discrimination in programs, deputy AG argues

By Lawrence Smith | Aug 6, 2009


CHARLESTON - The state Department of Health and Human Resources is asking that lawsuit filed against its domestic violence licensure arm be dismissed on the grounds that the children's advocacy group that filed it has never attempted to obtain any form of certification, and they've provided no proof that men are victims of discrimination in receiving domestic violence services.

Last June, the Vienna-based Men and Woman Against Discrimination filed suit in Kanawha Circuit Court against the Family Protection Services Board. In its suit, MAWAD sought an injunction to prohibit the Board from dispensing any funds for the 2008-09 fiscal year.

MAWAD alleges the Board violated the Equal Protection clause of the state Constitution by delegating domestic violence advocate and shelter licensure to the Elkview-based West Virginia Coalition Against Domestic Violence which provides services to only women and children.

In arguing the Board's motion to dismiss filed on June 5, Deputy Attorney General Charlene A. Vaughan wrote that MAWAD is a political, and not a social services agency. Since it, or any of its members, has not sought licensure as either an advocate or shelter, MAWAD lacks standing to challenge the constitutionality of the Board's regulations.

"Plaintiff has made no allegations that it or any of its members have tried to become a certified domestic violence advocate," Vaughan said.

"Being an 'advocate against the incidence of domestic violence' does not give Plaintiff standing to 'assure that program funded by the state of West Virginia receives fair allocations of funds.'"

If there was any real harm, Vaughan added, MAWAD would have filed sought a temporary restraining order or injunction, instead of filing injunctive relief.

Also, Vaughn wrote that MAWAD's gender discrimination claims also fail because "it has presented no allegation that any male victim of domestic violence has ever been denied services by the Coalition or under challenged statutes or regulations." However, Vaughan admitted that the Board has delegated authority to WVCADV to certify domestic violence advocates, and the training manual used for certification is being changed to become more gender neutral.

Furthermore, Vaughan also admitted to differences in the way shelter services where provided to men as opposed to women. However, she wrote that because men and women are "not similarly situated" in shelters does not mean a constitutional violation occurred.

Vaughan referenced a 2000 study published by the U.S. Department of Justice regarding intimate partner violence. According the study, of 1 million violent crimes sampled in 1998, over 85 percent where men-on-women.

Because West Virginia reflects the trend nationally in that the greater number of domestic violence victims are women, Vaughan argues that the Board is fulfilling its mission by responding to a "major societal problem."

"All of these adequately accepted statistics show that men do not experience domestic violence at a rate anywhere near that of women," Vaughan wrote. "In spite of the foregoing, the West Virginia statute and regulations remain gender neutral regarding the provision of services for domestic violence victims, and Defendants have not permitted any discrimination in its oversight of domestic violence programs."

In addition to seeking a dismissal, Vaughan asked that, in the alternative, the Board be granted summary judgment.

Should Judge James C. Stucky deny the Board's motion, the case is slated for mediation on Sept. 9, and later for trial on Sept. 14.

Kanawha Circuit Court Case No. 08-C-1056

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