Parkhurst v. Tabor, No. 08-2610, 2009 WL 1794691 (8th Cir. June 25, 2009)

The Parkhursts, adoptive father and biological mother of H.P., a minor child, brought a § 1983 action on behalf of their daughter against two Arkansas state prosecutors, and Sebastian County, Arkansas. The Parkhursts alleged that H.P.’s right to equal protection under the Fourteenth Amendment had been violated by an office policy of avoiding the prosecution of incestual sexual assault cases, and, in particular, that the prosecutors’ decision to forego prosecution of H.P.’s biological father for the felony sexual assault of his daughter amounted to discrimination against H.P. as a member of a disfavored class, defined by the Parkhursts as victims of incestuous sexual abuse. The Parkhursts sought damages, an injunction requiring the reinstatement of the charges, and a declaratory judgment that the challenged prosecutorial policy violated the equal protection clause by failing to provide to victims of incest the same protection offered to other victims of sexual assault. The prosecutors and county filed a motion to dismiss for failure to state a claim, which the trial court granted. The court explained that prosecutorial conduct may only be subjected to such review by those with a constitutional right to the nondiscriminatory prosecution of crime, and that such a right rests with defendants subjected to discriminatory prosecution but does not accrue to the victims of crime. The Parkhursts appealed, arguing that the Fourteenth Amendment guarantees to crime victims the nondiscriminatory prosecution of crime. The Eighth Circuit of the United States Court of Appeals affirmed. In reaching its decision, the court noted that the United States Supreme Court has consistently held that “a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.” The court held that because the Parkhursts were “neither prosecuted nor threatened with prosecution,” they had not suffered injury in fact, as defined by the Supreme Court, and thus lacked standing to bring their claim against the prosecutors and the county.