Jessica Gonzales v. United States

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Jessica Gonzales poses with a portrait of her three daughters, from left, Katheryn, Rebecca and Leslie.Image: Craig F. Walker / The Denver Post

WASHINGTON

The Inter-American Commission on Human Rights has agreed to decide whether the United States violated the rights of a domestic violence victim whose three children were killed when local police failed to enforce a restraining order against her former husband. The complaint by Jessica Lenahan (formerly Jessica Gonzales) is the first brought by a domestic violence victim against the United States for international human rights violations.

For those of you who have been following the case of Jessica Gonzales v. United States, before the Inter-American Commission on Human Rights, I am pleased to inform you that we received a favorable decision on Friday, October 5 declaring Jessica Lenahan's (formerly Gonzales) case admissible. This is the best decision we could have hoped for.

The decision says that Ms. Lenahan (Gonzales) exhausted all domestic remedies (i.e. that she pursued every potential legal avenue available to her but had those doors closed to her).

The decision also indicates that countries in the Americas, including the U.S., are responsible under the American Declaration on the Rights and Duties of Man for protecting victims of domestic violence from private acts of violence.

This is the first time that the Commission has ever made such a pronouncement. This admissibility decision is the first phase of a two-step process before the Commission. The next step is the merits phase, where the Commission will decide whether the US and the Castle Rock Police Department/Colorado violated Ms. Lenahan (Gonzales') and her children's human rights.

(Specifically, the rights to life, non-discrimination, family life/unity, due process, petition the government, and the rights of domestic violence victims and their children to special protections ).

On Oct. 4, the commission ruled her complaint "admissible," which is akin to finding jurisdiction, after rejecting arguments by the U.S. Department of State, including that Lenahan had not exhausted available remedies, and, significantly, that the American Declaration on the Rights and Duties of Man imposes no affirmative duty on states to actually prevent the crimes committed by Lenahan's former husband.

Officials at the State Department were unavailable to comment because of the Oct. 8 federal holiday.

Lenahan's legal odyssey began in 1999 when she filed a lawsuit against the Castle Rock, Colo., police department seeking to hold it liable for failing to respond to her repeated calls and appearances for help after her husband abducted her children. Her daughters were found dead in their father's pickup truck after he was killed in a shootout with police at police headquarters hours after their mother sought police assistance.

A landmark case Her lawsuit attracted national and international attention when it was reviewed by the U.S. Supreme Court, which held in June 2005 that she had no constitutional right to police enforcement of her restraining order. That December, Lenahan filed her petition with the Inter-American Commission, charging that police inaction and the Supreme Court decision violated her human rights.

"This case is not just about Jessica Gonzales, although it clearly is very important for her," said Caroline Bettinger-Lopez of Columbia Law School's Human Rights Clinic, who, along with the American Civil Liberties Union, represents Lenahan.

It is important for victims of domestic violence and intimate-partner violence in the United States and throughout the world, she said, adding, "We've gotten calls from the United Nations and organizations around world who see this case as a landmark one on the duty of states to protect victims of domestic violence."

The admissibility decision itself has "immediate importance," according to Bettinger-Lopez, because it is the first time the commission has recognized that the American Declaration on the Rights and Duties of Man imposes affirmative obligations by countries in the Americas to protect individuals from private acts of violence.

The commission was created in 1959 and is expressly authorized to investigate allegations of human rights violations by members of the Organization of American States (OAS), which includes the United States.

'Compulsory jurisdiction'

The commission has jurisdiction to receive complaints against any OAS member state where it is upholding the rights set forth in the 1948 American declaration, said international law scholar Robert Goldman of American University Washington College of Law.

"The commission is the only organization in the world that has compulsory jurisdiction over the United States," he said. "The only way to escape jurisdiction is to denounce the OAS charter."

Having survived the "admissibility" phase, Lenahan's case moves into the merits phase, in which there will be additional briefing and possibly another hearing. The commission may attempt a "friendly settlement," noted Goldman, a former commission member.

The United States does not have a good record of compliance with commission recommendations, said Goldman. But if Lenahan prevails, he added, it will not be a Pyrrhic victory.

"The commission articulates standards with respect to very important rights," Goldman said. "What you'll find is a state that can't comply for a variety of reasons now might comply in the future."

It also puts the United States, he added, in a very uncomfortable position. Congress mandates an annual human rights report that often points the finger at other countries' practices.

"To the extent an authoritative body finds violations by the United States and it does not comply, it resonates," Goldman said.

But for now, Bettinger-Lopez said, a "new legal avenue" has been established. "It opens a door for domestic violence victims in search of vindication, whose legal options have recently been limited by harsh court rulings in the United States."

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id91834195781

CASE SUMMARY

In June 1999, Jessica Gonzales' estranged husband abducted her three daughters, in violation of a domestic violence restraining order. Ms. Gonzales called and met with the police repeatedly to report the abduction and restraining order violation. Unfortunately, her calls went unheeded.

Ten hours after her first call to the police, Ms. Gonzales' estranged husband arrived at the police station and opened fire. The police immediately shot and killed Mr. Gonzales, and then discovered the bodies of the Gonzales children Leslie, 7, Katheryn, 8, and Rebecca, 10 in the back of his pickup truck.

Ms. Gonzales filed a lawsuit against the police, but in June 2005, the Supreme Court found that she had no constitutional right to police enforcement of her restraining order. In December 2005, Ms. Gonzales filed a petition with the Inter-American Commission on Human Rights, alleging that the police actions and the Supreme Court decision violated her human rights.

This was the first individual complaint brought by a victim of domestic violence against the United States for human rights violations.

On March 2, 2007, the Inter-American Commission on Human Rights heard the case of Jessica Gonzales v. United States . Jessica Lenahan (formerly Gonzales) provided testimony. This was the first time that she was afforded an opportunity to tell her story to a tribunal.

On March 2, 2007, the Inter-American Commission on Human Rights heard the case of Jessica Gonzales v. United States . Jessica Lenahan (formerly Gonzales) provided testimony. This was the first time that she was afforded an opportunity to tell her story to a tribunal.

For more information on the Gonzales case, please contact Carrie Bettinger-Lopez, Human Rights Institute Fellow & Human Rights Clinic Supervising Attorney, at cbetti1@law.columbia.edu or 212-854-8364.

To view or listen to the hearing, download the video or audio webcast at: http://www.oas.org/OASpage/videosondemand/home_eng/videos_query.asp?sCodigo-0041 (video) or http://www.cidh.org/Audiencias/Audios%20hearings%20127%20PS.htm (audio, 4th entry under March 2).

Jessica Lenahan's statement (which she read at the hearing) can be found at: http://www.law.columbia.edu/null/Jessica+Statement+-+IACHR+hrg?exclusive=filemgr.download&file_id91&showthumb=0 or http://www.aclu.org/womensrights/violence/29338res20070302.html.

More information on the Gonzales case (including the Petition submitted to the Inter-American Commission and additional briefing and exhibits) can be found at: http://www.law.columbia.edu/focusareas/clinics/humanrights#97614 or http://www.aclu.org/womensrights/violence/gonzalesvusa.html

For more information on the Gonzales case, and to view the Commission's admissibility decision, go to http://www.cidh.org/annualrep/2007eng/USA1490.05eng.htm

(Spanish version forthcoming).

The decision is also available at https://www.law.columbia.edu/focusareas/clinics/humanrights#97614

or http://www.aclu.org/womensrights/violence/32105lgl20071005.html.

To view Ms. Gonzales' testimony before the Inter-American Commission in March 2007, see http://www.oas.org/OASpage/videosondemand/home_eng/videos_query.asp?sCodigo-0041or http://www.aclu.org/womensrights/violence/gonzalesvusa.html.

Below is an article that came out today in the National Law Journal about the decision. Also, here is a link to a Channel 4 newscast from last night featuring Jessica. http://cbs4denver.com/topstories/local_story_281095916.html

Several amicus briefs are currently being drafted on the following topics: the children's rights dimension of the case; the protections and limitations of VAWA and obstacles that DV survivors still face in obtaining government assistance and support; framing domestic violence as a form of torture. Please contact me and Araceli Martínez-Olguín (amartinez-olguin@aclu.org) if you or your organization are interested in signing on to those briefs.

Further information on the case is below.

Thanks for all your support.

All best,

Carrie (on behalf of Jessica's legal team)

Caroline Bettinger-López Human Rights Fellow & AttorneyColumbia Law School Human Rights Institute & Human Rights Clinic 435 W. 116th Street, Box C-16 New York, NY 10027Phone: (212) 854-8364 Fax: (212) 854-3554 Email: c.lopez@law.columbia.edu

My two cents--

Good for her -- it's a disgrace that most real survivors of domestic violence get ignored.

Looks like I have a lot of reading and studying to do, apparently I can not get the police or the District Attorney's in TWO counties to take my and my children's human rights seriously either!