Op-Ed on Blumhorst Case Published

The Los Angeles and San Francisco Daily Journal, the biggest legal newspapers in California, just printed the following op ed which informs the legal community about the Blumhorst decision's denial of civil rights testers standing to sue and how this dealt a blow to male DV victims but is not the end of it.

Click "Read more..." for the rest of Marc's post and the op-ed.There are non "tester" victims coming forward, so this is just the beginning. As a side note, the Blumhorst case led to many victories in terms of media coverage of the issue. The oppression that the case addresses has thrived for decades on the media's failure to cover the issue (especially not with any degree of fairness) and the public's ongoing ignorance about it. The Blumhorst case got the issue into a major AP story that printed all over the nation, and the issue was covered by other major media outlets. Blumhorst has now been interviewed by two major local TV news stations, one of which is pending and the other of which aired in San Diego and will air again in a much more involved story to come. There's a long way to go for gender equity advocactes, but good things are happening. Much more to come. Please keep battling this evil in your respective fields and locations. And stay tuned for more.

Marc A.

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REJECTION OF TESTER STANDING DEALS ADDED BLOW TO BATTERED MEN

By Marc E. Angelucci

Los Angeles Daily Journal

San Francisco Daily Journal

May 26, 2005

In medieval France, if a man was assaulted by his wife, he was forced to ride a donkey backwards through the streets wearing an outlandish outfit while people threw trash at him.

Although things have somewhat changed, figuratively speaking, male victims of domestic violence are still riding their donkeys backwards. One need look no further than here in California, where Health & Safety Code §124250 defines "domestic violence" so that men cannot even be deemed victims, let alone receive the services therein.

The California Research Bureau reports that over 4,000 men seek domestic violence shelter every year. But the only shelter that takes men is the Valley Oasis shelter in Lancaster, which has sheltered men and women for over ten years with no problems, welcoming men who travel from hundreds of miles because nobody else would help them. Their former director, Patricia Overberg, calls this a major human rights violation and has long said that a lawsuit is needed.

In the recently published case of Blumhorst v. Jewish Family Services, Eldon Ray Blumhorst did just that.

About ten years ago, Blumhorst's wife hurled a large piece of furniture at him in one of her violent fits. He was knocked down, put in crutches and given a permanent limp. Then he was abused a second time by the system. When he called the suicide hotline and searched for available help, everything was for "battered women."

After getting his life back together, he remained deeply hurt by this experience. And every framing of the issue as "battered women," and men-as-batterers, only worsened his pain. He eventually found the Los Angeles chapter of the National Coalition of Free Men, a volunteer group that works with male victims and addresses their high frequency and public neglect. He also learned what the world's leading experts on domestic violence have said for years: that the research overwhelmingly shows women initiate domestic violence as often as men, that men do need outreach and shelter services, and that male victims have been swept under the rug for decades because they don't fit the feminist, man/bad woman/good model for domestic violence. (See Prof Linda Kelly, “Disabusing the Definition of Domestic Abuse: How Women Batter Men and the Role of the Feminist State,” 30 Fla. St. U. L. Rev 791 (2003).)

Blumhorst also learned that Government Code § 11135 forbids sex discrimination in state-funded programs and creates a private right of action for injunctive relief. At the time, among the male victims denied services that the Los Angeles chapter of the National Coalition of Free Men knew of, Blumhorst was also the only one willing to face the public humiliation of a lawsuit. But his statute of limitations had expired.

So instead, he tried another approach: civil rights testing. A civil rights tester is a person who requests services from an entity in order to uncover discrimination. Federal courts have repeatedly upheld tester standing to sue if the civil rights statute protects "all persons" and is preventative in nature, and the same courts found testers "frequently valuable, if not indispensable" to civil rights enforcement because barriers hinder victims from suing. (Kyles v. J.K. Guardian Sec. Services, Inc. (2000) 222 F.3d 289.)

Blumhorst, acting as a tester, requested services from ten state-funded shelter programs. When they denied him services - even a motel voucher – based on his gender, he sued for injunctive relief under Government Code §11135, relying on tester standing.

The trial court found the shelters exempt under Government Code § 11139, which exempts "lawful programs benefiting women" from the ban on discrimination (the court never addressed Blumhorst's equal protection challenge to the exemption). On appeal, the Second Appellate District said testers lack standing to sue under Government Code § 11135. The State Supreme Court denied review on April 27, 2005.

Had the courts followed federal jurisprudence, Blumhorst would have standing. Like the civil rights statutes in the federal cases, Government Code § 11135 protects all persons from discrimination and is preventative in nature. And, male victims who need state-funded services face major barriers to suing. They often don't recognize the discrimination. They don't know it's illegal. They rarely can afford counsel to sue for an injunction under a non fee-shifting statute. They are too preoccupied with escaping the violence to sue. And they don't want the public humiliation that comes with such a lawsuit.

Blumhorst was one of those men. And he is not alone. The Violence against Women Survey, sponsored by the U.S. Department of Justice, found "approximately 2.9 million intimate partner physical assaults are committed against U.S. men annually," which makes men at least 36% of the victims. (http://www.ncjrs.org/txtfiles1/nij/181867.txt) And the most comprehensive analysis of existing research (Archer, Psychological Bulletin, 11/02) conclusively shows that women initiate domestic violence at least as often as men, that men make 38% of injured victims, and that self defense does not explain the female-initiated violence. (See http://www.csulb.edu/~mfiebert/assault.htm.)

Of course, numbers shouldn’t matter. It's wrong to exclude the minority. Period. Even if there were only one male victim, he should be entitled to equal treatment.

Men pay at least half of the taxes that fund these programs. The programs should be need-based, not gender based. Denying services to men violates equal protection and is very dangerous public policy. When victims don’t seek help, the violence often escalates, and even minor violence is harmful when children witness it. Even if it were true (it is not) that state-funded shelters cannot accommodate both genders, they can create space for men as Valley Oasis did, and they can at least provide motel vouchers, which are a form of shelter services.

There are those who cheer the Blumhorst decision, as though it's a good thing that male victims can't receive state-funded services. As an activist for men, I disagree. But more importantly, Blumhorst only ruled that testers lack standing. So now, it will take a non-tester victim to sue if every victim is going to count. With over 4,000 men seeking shelter ever year, the problem isn't numbers, it's who will be willing to face the humiliation that Blumhorst courageously endured.

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Marc E. Angelucci is an attorney in Los Angeles who represented Eldon Ray Blumhorst pro bono in Blumhorst v. Jewish Family Services. He is also the president of the Los Angeles chapter of the National Coalition of Free Men, a non-profit organization that looks at how sex discrimination affects men and boys.

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