HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN:

JESSICA LENAHAN (GONZALES) V. UNITED STATES

© CAROLINE BETTINGER-LOPEZ

Lenahan v USA

Advocacy Videohttp://www.youtube.com/watch?v=UvPtMCrl4J4

ALARMING STATISTICS

• DV is the leading cause of injury to U.S. women between the ages of 15-44; more than car accidents, muggings, and rapes combined.

• Each year, 1.3 million American women are physically assaulted by an intimate partner.

• 1 out of 4 American women are abused by their partners.

• 50% of all homeless women and children in the U.S. are fleeing domestic violence.

TRANSFORMING DV VIA THE HUMAN RIGHTS FRAMEWORK:

An Anonymous, Private Affair

A Systematic Societal Epidemic Demanding Government Accountability

Jessica Lenahan (Gonzales) v. United States

June 1999Simon Gonzales

abducts 3 daughtersPolice fail to respond

to Jessica’s callsShoot-out ensuesSimon shotDaughters found

dead in truck

Colorado Restraining Orders & Mandatory Arrest Law

“A peace officer shall use every reasonable means to enforce a restraining order.”

“A peace officer shall arrest, or, if an arrest would be impractical under the circumstances, seek a warrant for the arrest of [the] restrained person.”

-- Text on Jessica’s restraining order, quoting Colorado’s mandatory arrest law for violators

5:50PM - 3:25AM: Jessica makes contact with the police 9 times through phone calls and visits.

Insisting they couldn’t do anything to help the girls, the

police went to dinner, responded to a fire lane violation, did paperwork, and filed a missing dog

report.

Failing to Learn from Tragedy

After the fact, public attention focused on Jessica’s family dynamics and not on the police mishandling of the case.

Stereotypes and misunderstandings of family violence dynamics:

“What safer place could children be than with one of their parents, the mother or the father?”

-- Castle Rock Police Chief Tony Lane, interview for 60 Minutes

Robbed of Her Day in Court

“We do not believe that these

provisions of Colorado law truly made enforcement

of restraining orders mandatory.”

-- Justice Scalia, writing for the 7-2 majority opinion

Consequences of Supreme Court Decision

Outraged domestic violence and women’s rights advocates

Sent message that restraining orders do not have to be enforced

Fostered culture of impunity for rogue, lazy or misguided officers

Left Jessica deprived of a voice or her day in court

End to her quest for justice?

INTER-AMERICAN COMMISSION of HUMAN RIGHTS

7 human rights experts from the Americas who consider petitions charging that countries violated their human rights under international

treaties. Based in Washington D.C.

Jessica, her family, and legal team in front of the IACHR building

U.S. Law International Law

No government duty to protect individuals

from private violence, even where there is a clear and preventable

threat(DeShaney v. Winnebago

County, U.S. Sup. Ct 1989)

State responsibility ensues when the state:

1) knew or ought to have known of real and immediate risk to an identified individual by another person, and

2) fails to take reasonable steps to prevent the harm

(IACHR; European Court of Human Rights)

Comparing Domestic and International Legal Regimes

International Cases that go Beyond U.S. Law in Protecting Individuals & Holding States

Accountable:

International Cases that go Beyond U.S. Law in Protecting Individuals & Holding States

Accountable:

Jessica Lenahan (Gonzales) v. United StatesInter-American Commission on Human Rights

July 21, 2011

Violation of rights under the American Declaration on the Rights and Duties of Man:

Article I (Right to life and personal security)

Article II (Equal protection and non-discrimination)

Article VII (Special Protections for Children)

Article XVIII (Due process/Judicial Protection)

Jessica Lenahan (Gonzales) v. United States

July 21, 2011

Petitioners alleged failure of the US government to exercise due diligence because:

Failure to enforce Jessica’s restraining order

Failure to protect the lives of three daughters

Failure on a systemic level to protect from the domestic violence epidemic

Jessica Lenahan (Gonzales) v. United States

July 21, 2011

DUE DILIGENCE“[A] State may incur international responsibility for failing to act with due diligence to prevent, investigate, sanction and offer reparations for acts of violence against women; a duty which may apply to actions committed by private actors...” ¶ 126

Jessica Lenahan (Gonzales) v. United States

July 21, 2011

DUE DILIGENCE & DISCRIMINATION/INTERSECTIONALITY

“[A] State’s failure to act with due diligence to protect women from violence constitutes a form of discrimination, and denies women their right to equality before the law…” ¶ 111

“…certain groups of women … [are at] particular risk for acts of violence due to having been subjected to discrimination based on more than one factor, among these girl-children, and women pertaining to ethnic, racial, and minority groups...” ¶ 127

Jessica Lenahan (Gonzales) v. United States

July 21, 2011

ELIMINATE PREJUDICE & STEREOTYPES“States must adopt the required measures to modify the social and cultural patterns of conduct of men and women and to eliminate prejudices, customary practices …based on the idea of the inferiority or superiority of either of the sexes, and on stereotyped roles for men and women.” ¶ 126

Jessica Lenahan (Gonzales) v. United States

July 21, 2011

JUDICIAL REMEDIES“…link between the duty to act with due diligence and the obligation of States to guarantee access to adequate and effective judicial remedies for victims and their family members when they suffer acts of violence.” ¶ 127

IACHR Recommendations

3 Individual Remedies Investigation into daughters’

deaths Investigation into systemic

police failures Reparations

4 Policy Remedies Law/policy reform

Protection Orders must protect women from violence

Protection measures must protect children in the DV context.

Address stereotypes/discrimination re DV victims

Investigations into missing children in DV context

HOW to use International Law in Your Work:Bi-Directional Advocacy

Outward AdvocacyHow can we frame domestic social justice problems in international terms, before

international forums?

Inward Advocacy How can we use international law in domestic forums to address domestic

social justice problems?

Outwards Advocacy: Using the Human Rights Framework to Further Domestic

Social Justice

File cases in international forumsDraft amicus briefs in cases of interestSeek precautionary measures to prevent

irreparable harmRequest a thematic hearingEngage with U.N. Rapporteurs and

Solicit on site visits/reportSolicit advisory opinions from the IACHR

Bringing It Home: Using International Rights Law in Domestic Advocacy

Domestic Litigation (Amicus briefs, Footnotes, affidavits, expert reports)

Legislative/Policy Advocacy (federal/state, local human rights initiatives; testimony

Trainings (Police, judges, case workers, teachers)

Political PressurePublic Opinion, Education, and AdvocacyCoalition and Movement Building

DOJ InvestigationsFindings Announced in 2011

Puerto Rico, New Orleans, and Maricopa County Police Departments engaged in patterns or practices of

discriminatory and unconstitutional policing, including gender-biased policing in their response to domestic and

sexual violence.

DOJ Investigations

DOJ Conclusions (2011): The NOPD engaged in a “pattern and practice of

general discrimination in the Department’s under-enforcement and under-investigation of violence against women.”  

The PRPD failed “to adequately address sexual assault in Puerto Rico.”

The consent decree between DOJ and the PRPD requires the PRPD to “respond to and investigate reports of sexual assault and domestic violence professionally, effectively, and in a manner free of gender-based bias.”

DOJ Guidance

In 2012, advocates proposed DOJ guidance on law enforcement response to domestic and sexual violence that would describe the legal framework & fundamental components of constitutional policing and areas of police misconduct that may violate federal law.

DOJ Guidance for Law Enforcement Domestic and Sexual Violence Policies and Trainings Investigating Domestic and Sexual Violence Domestic and Sexual Violence Committed by Officers Law Enforcement Supervision and Accountability

Local Domestic Violence/Human Rights Resolutions

Language of Domestic Violence/Human Rights Resolutions

“Recognition of domestic violence as a human rights concern”

“Freedom from domestic violence is a fundamental human right”

Cites to Lenahan case, UN documents

Albany, NY (2013)Baltimore, MD (2012)Buffalo, NY (2012)Cincinnati, OH (2011)Miami-Dade, FL (2012)Miami Springs, FL

(2012)Montgomery County,

AL (2012)Seattle, WA (2012)

Miami-Dade County Resolution

“This Resolution shall serve as a charge to all local government agencies to incorporate these principles into their policies and practices.”

July 7, 2012

Domestic Violence & Human Rights Resolutions: Next Steps

How to increase teeth?Municipal levelState levelFederal level

Sense of Congress Sense of the Senate Executive Proclamation

Ideas for Implementation

Housing Extend VAWA’s housing

provisions (re, transfer, eviction, bifurcating lease, PHA emergency transfer plan) into state subsidized housing

Child Custody Judges must interpret

“shall consider” as “heavily weigh” domestic violence evidence when considering the best interests of the child in custody disputes