Wednesday, May 4, 2011

Domestic Violence Victims Seek Protection Using International Human Rights Law

During my law school tenure, a number of cases and decisions caused me great consternation. However, fewer, if any, caused greater gut-wrenching than Castle Rock v.Gonzales, 545 U.S. 748 (2005).

On June 22, 1999, after obtaining a restraining order against her estranged husband, Jessica Gonzales (now Lenahan) contacted Castle Rock (Colorado) police because her husband had taken her 3 little girls from in front of her home during the late afternoon, directly violating the order. At 7:30 PM, police arrived at the home and Ms. Gonzales showed them the restraining order, which read on the back:


Additionally, a further notice to law enforcements stated:


The police officers, having been shown the restraining order and informed that no previous visitation arrangements were made, told Ms. Gonzales to wait until 10:00 PM and if her daughters were not returned by then, to contact the police again. Near 8:30 PM, her husband phoned to tell her that he had taken the girls to an amusement park in Denver, Colorado. At 10:00 PM, the girls had not been returned, so Ms. Lenahan phoned the police. There was no response for 2 hours, so she went to the police station. At 3:10 AM, her husband showed up at the police station and opened fire. After an exchange of shots, the husband was killed and the truck that he arrived in contained the dead bodies of the 3 girls.

Ms. Gonzales sued the town of Castle Rock for violating her Fourteenth Amendment Due Process rights arguing that she had a property interest in having the restraining order enforced, and that the town’s police department did not take her interest seriously. The case reached the Supreme Court, where Justice Scalia delivered a majority opinion holding that Ms. Gonzales did not have such a property interest. Justice Scalia opined that deference should not be given to the Tenth Circuit’s determination that the restraining order was grounded in Colorado law because the order’s language was little more than contractual boilerplate language providing the police with relatively unfettered discretion on how to respond to situations involving restraining orders.

The Castle Rock decision stunned advocates working to eliminate domestic violence and brought into question the U.S.’ sincerity regarding women’s rights, particularly if the highest court of the land could render so callous a decision. 

As advocates searched for a solution, determined that the wrongful state action which blatantly disregarded the protection of women and children’s rights should be remedied, they were confounded by the proposition that the Supreme Court was the final arbiter in the Castle Rock matter. Nevertheless, Columbia Law School students and professors, recalling that “international law is part of our law,” found another avenue of justice for Ms. Lenahan, her children and other victims and survivors beyond the Supreme Court of the United States. Paquete Habana.

Discussed in a recent ABA International Human Rights Committee teleconference, “Domestic Violence as a Human Rights Violation,” link provided infra, while the U.S. may not have ratified Covenant on the Elimination of all forms of Discrimination against Women (CEDAW), the U.S. is nevertheless a Party to other international legal instruments, including, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). Thus, the U.S. has an obligation to ensure that the rights provided under these international instruments are protected, and that obligation not only extends to non-U.S. persons, but to U.S. persons as well.

Recognizing that international human rights doctrine provides a basis for remedies against state actors, in 2005, the Human Rights Law Clinic and the American Civil Liberties Union (ACLU) filed a petition on behalf of Ms. Lenahan with the Inter-American Commission of Human Rights, arguing that U.S. law enforcement has an obligation to respond to calls of domestic violence and the U.S. has a duty to hold law enforcement accountable. Specific to international human rights law are charges involving the rights of non-discrimination, family life/unity, Due Process, petition of government, personal security, and special protections for victims of domestic violence. The fundamental issue is whether a government has a duty to remedy the situation when it knows or should know that human rights violations are being committed.

In September 2008, the Commission agreed to hear Gonzales v. U.S. on the merits, and the hearing subsequently took place in October 2008.

Challenges with respect to Gonzales v. U.S. stem from the fact that international orders from the Commission and other international human rights judicial bodies are not technically enforceable. This has been a long-acknowledged disadvantage of international human rights law. However, if the Commission finds for Ms. Lenahan, the U.S. will be morally obligated to ensure its laws comport with international human rights laws that recognize the critical need for protecting the rights of women and children, particularly the abused and vulnerable.

The decision from the Inter-American Commission on Human Rights in Gonzales v. U.S. is pending, perhaps forthcoming this August (2011).

The ABA IHRC teleconference can be accessed through this link. Additional information and resources are available on the Human Rights Law Clinic of Columbia Law School’s web site and on the ACLU’s web site

Max Elliott, J.D.

1 comment:

  1. The US government should be in the forefront in helping the UN in fighting domestic violence and other human rights violations.The decision of the court did not set good precedent in the fight of domestic violence.Can the Inter-American Commission on Human Right uphold the fight? Our organization has always challenged any ruling of the court which does not uphold human rights.