Lenahan v USA Advocacy Video http://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 1999 Simon Gonzales abducts 3 daughters Police fail to respond to Jessicas calls Shoot-out ensues Simon shot Daughters 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 Jessicas restraining order, quoting Colorados mandatory arrest law for violators
5:50PM - 3:25AM: Jessica makes contact with the police 9 times through phone calls and visits. Insisting they couldnt 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 Jessicas 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 womens 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:
Jessica Lenahan (Gonzales) v. United States Inter-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 Jessicas 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] States 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. A ddress stereotypes/discrimination re DV victims Investigations into missing children in DV context
HOW to use International Law in Your Work: Bi-Directional Advocacy Outward Advocacy How 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 forums Draft amicus briefs in cases of interest Seek precautionary measures to prevent irreparable harm Request a thematic hearing Engage with U.N. Rapporteurs and Solicit on site visits/report Solicit 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 Pressure Public Opinion, Education, and Advocacy Coalition and Movement Building
DOJ Investigations Findings 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 Departments 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 level State level Federal level Sense of Congress Sense of the Senate Executive Proclamation
Ideas for Implementation Housing Extend VAWAs 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