Sunday, September 4, 2011

Inter-American ruling invites global rethink of state protection against domestic violence

(Delighted to welcome back alumna Caroline Bettinger-López, who contributes this guest post)

In a landmark decision, the Inter-American Commission on Human Rights has found the United States responsible for human rights violations suffered more than a decade ago by Jessica Lenahan (below right), our client here at the Human Rights Clinic at the University of Miami School of Law. (photo credit)
The August 17 decision in Jessica Lenahan (Gonzales) v. United States also recommended changes to domestic violence law and policy. It thus creates an opportunity for governments throughout the Americas – indeed, throughout the world – to conduct introspective re-evaluations of their own domestic violence laws and policies and to make necessary changes and improvements.
The Lenahan decision came as a cathartic end to a long legal battle that had begun with a tragedy.
In 1999, Jessica’s daughters – Rebecca, Katheryn, and Leslie – were abducted by her estranged husband, Simon Gonzales. Jessica repeatedly called police in Castle Rock, Colorado, for help. But they dismissed her calls, telling her to wait until the father brought the children home. At one point they even called her “ridiculous.”
In the same 10-hour period, the police responded to a fire-lane violation, looked for a lost dog, and took a 2-hour dinner break.
Then Simon Gonzales drove up to the police station and began shooting. Officers returned fire, killing him. Afterwards, they found the bodies of Jessica’s 3 girls, shot to death inside the truck. Local authorities’ failure fully to investigate the circumstances provoked questions – about the cause, time, and place of their deaths – that remain to this day.
Jessica filed a federal civil rights suit. In 2005, the U.S. Supreme Court (below left) struck a blow to Jessica’s cause, ruling in Castle Rock v. Gonzales that the Due Process Clause of the 14th Amendment to the U.S. Constitution did not require police to have enforced the restraining order Jessica had secured against her estranged husband. (photo credit)
Along with the decision in DeShaney v. Winnebago County (1989) – which effectively declared that the government typically has no duty to protect individuals from private acts of violence – the Supreme Court's decision in Gonzales denied important potential mechanisms for ensuring government accountability, and thus was detrimental to efforts to combat domestic violence.
Undeterred, Jessica then applied to the Inter-American Commission for relief. Representing her along with our clinic were the Columbia Law School Human Rights Clinic and the American Civil Liberties Union.
Welcoming the Commission’s August 17 decision, Jessica stated:

‘I have waited 12 years for justice, knowing in my heart that police inaction led to the tragic and untimely deaths of my three young daughters. Today’s decision tells the world that the government violated my human rights by failing to protect me and my children from domestic violence.’

The Commission’s determination that the United States failed to discharge a duty to protect its nationals from domestic violence has far-reaching implications.
After the decision issued, Rashida Manjoo, the U.N. Special Rapporteur on violence against women, said:

‘State inaction towards cases of violence against women fosters an environment of impunity and promotes the repetition of violence.’

In a visit to the United States earlier this year, Manjoo (prior IntLawGrrls posts) had declared:

‘In my discussions with government officials, victims, survivors, and advocates, including Jessica Lenahan, I found a lack of substantive protective legislation for domestic violence victims in the United States, as well as inadequate implementation of certain laws, policies and programs.’

The Commission’s decision called into question the domestic violence laws and policies of the United States, including the Supreme Court decisions mentioned above, for it:
► Made clear that many of the current laws and policies are inadequate to protect the human rights of domestic violence victims;
► Recognized that the United States has an affirmative obligation to protect individuals from discriminatory violence; and
► Urged comprehensive reform, at the local, state, and federal levels, in U.S. law and policy respecting violence against women.
As Manjoo said in her own 2011 report,

‘Violence against women is the most pervasive human rights violation which continues to challenge every country in the world, and the US is no exception.’

Especially when read in conjunction with the 2009 decision of the Inter-American Court of Human Rights in the Cotton Fields case (IntLawGrrls' prior posts here and here), the Commission’s ruling in Lenahan also sets forth a framework for other nations to follow.
The decision makes clear that domestic violence is a human rights violation, and brings this point into the international spotlight. It is our hope that the decision impacts the way people perceive domestic violence. What happened to Jessica was an unfathomable tragedy. Moving forward, we hope that the decision will aid advocates to push for reforms that call for law enforcement accountability. We are hopeful that it represents an important step toward creating a world where governments and their agents will know that turning a blind eye and a deaf ear to domestic violence is not an option.


(My deep thanks to Luis Ramos, my student in the Human Rights Clinic at University of Miami School of Law, who coauthored this post with me)


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