Fall 2011 Newsletter - Page 3

International Commission finds US in violation of human rights law for failing to protect victims of domestic violence.

By Stephine Bowman, KCSDV Protection Order Attorney

Recently, the Inter-American Commission on Human Rights (IACHR) issued a report (Lenahan v. United States, Case No. 12.626, Inter-Am. C.H.R., Report No. 80/11 (2011)) finding the United States in violation of international human rights law for failing to protect Jessica Lenahan (Gonzalez) and her daughters, Leslie, Katheryn and Rebecca Gonzales from domestic violence despite acknowledging their safety risks by issuing an order of protection.  The IACHR’s holding was contrary to the previous 2005 Supreme Court case, Town of Castle Rock, CO v. Gonzales, 545 U.S. 748 (2005), which found no violation of Ms. Lenahan’s constitutional right to due process. This holding neither creates binding legal precedent nor overturns the 2005 ruling of the Supreme Court. It does, however, highlight the need for not only creating legislation, procedures and protocols aimed at protecting victims of domestic violence but also implementing and enforcing these laws, procedures and protocols and holding those who fail to do so accountable.

According to the IACHR Report, Jessica Lenahan (Gonzales) had received a protection order against Simon Gonzales, giving her sole physical custody of their three daughters, allowing him one weekly dinner visit with the children to be arranged by the two parents. On June 22, 1999, however, Simon Gonzales abducted his three children from the front yard in violation of the protection order. Jessica Lenahan repeatedly sought the help of the Castle Rock Police Department to find her children and enforce her protection order. Despite her eight calls to the Police, no significant action was taken to locate Simon Gonzales or the children. During this time, Mr. Gonzales purchased a hand gun and ammunition from a licensed seller, passing an FBI background check.  At 3 am the following day, Simon Gonzales arrived at the Castle Rock Police Station and opened fire. Law enforcement returned fire, killing Simon Gonzales. The bodies of Leslie, Katheryn and Rebecca Gonzales were found in the bed of their father’s truck. Though they had suffered multiple gun shots, no thorough investigation into the actual deaths of these girls was conducted.

In Gonzales, the Supreme Court of the United States held that Castle Rock did not violate the procedural due process rights of Jessica Gonzales (Lenahan) by not enforcing her order of protection. The court reasoned that law enforcement has discretion in deciding who to arrest even under the domestic violence mandatory arrest statutes enacted in many jurisdictions throughout the United States. The Court found that the unfortunate circumstances of this case were the actions of a private individual, Simon Gonzales, and the state held no responsibility for failing to perform any duty owed to Ms. Gonzales.

The IACHR, however, determined that the actions of the United States violated Ms. Lenahan’s international human rights by failing to protect her by not enforcing her protection order. Specifically the commission held “that the systemic failure of the United States to offer a coordinated and effective response to protect Jessica Lenahan and her daughters from domestic violence, constituted an act of discrimination, a breach of their [the state’s] obligation not to discriminate and a violation of their [Jessica Lenahan and her daughter’s] right to equality before the law” under international human rights treaties. (¶ 170). The IACHR held the “State’s duties to protect and guarantee the rights of domestic violence victims must also be implemented in practice . . . restraining orders are critical in the guarantee of the due diligence obligation in cases of domestic violence. They are often the only remedy available to women victims and their children to protect them from imminent harm. They [protection orders] are only effective, however, if they are diligently enforced.” (¶ 163). In the present case, the United States had failed to protect this family after acknowledging the need to do so by issuing the protection order. The facts of the case showed a lack of understanding by the local law enforcement of domestic violence and the serious risk facing these children. Even the federal government cleared Simon Gonzales for the purchase of a firearm despite such being contrary to federal laws intended to protect victims of domestic violence. Finally, the IACHR recognized a failure by the government to sufficiently investigate the deaths of these children and the local law enforcement’s lack of response to prevent it.  The IACHR notes that the United States, by not enforcing its own domestic violence laws “fosters an environment of impunity and promotes the repetition of violence” as the state does not consider taking effective action against domestic violence a priority. (¶168).

Though the IACHR report provides no binding authority in the United States, these findings provide a moral victory for advocates against domestic violence, adds weight to the reasoning of the dissenting Justices of the Supreme Court, and continues a conversation on an international level about the rights and needs of survivors.

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