The unfortunate saga has played out one too many times. A young woman, fearing for her life at the hands of a spouse or live-in companion, seeks protection from law enforcement officials by obtaining an order of protection. However, the restraining order is not enforced and those intended for protection meet with a tragic end. What then is the appropriate course of action? What duty does the government have to protect individuals, and to what extent, against private acts of violence? This is the dilemma facing Jessica Gonzales.
Jessica Gonzales is a domestic violence survivor from Colorado. Her three daughters were killed after local police failed to enforce a restraining order against her estranged husband. Ms. Gonzales filed a petition with the Inter-American Commission on Human Rights, an international human rights tribunal that is part of the organization of American States (OAS) with headquarters in Washington, D.C. Its mandate is to promote human rights in the Americas and the Caribbean.
In 2007, the Commission declared that it had competence to examine the human rights claims of Ms. Gonzales. When Ms. Gonzales testified in March 2007, it was the first time that a domestic violence victim from the U.S. testified before the Commission.
So why go before the Commission? Recently I attended a panel discussion hosted by the Women of Color Policy Network. The keynote speaker was Carrie Bettingger-Lopez, Deputy Director of the Human Rights Clinic at Columbia Law School, whose mission is to analyze just how the Gonzales case can be used in domestic violence advocacy. According to Ms. Bettingger-Lopez, the fact that Ms. Gonzales had to seek redress with the commission shows how "the United States, as a whole, fails to address the problem of systemic violence against women... Studies show that 1 in 4 women in the United States experiences domestic violence at some point."
In 1999, Jessica Gonzales made repeated calls to the Castle Rock Police Department in Colorado to report that Simon, her estranged husband, had kidnapped their three daughters. Ten hours after Ms. Gonzales placed her first call to the police, her husband died in a shootout with the police; her daughters' bodies were discovered lined up directly behind him in the back of his truck. To date, it remains unclear whether the three daughters were killed earlier in the day by their father or if they perished in the gunfire unleashed by the police.
In 2000, Ms. Gonzales filed suit against the Castle Rock Police Department, alleging violation of her civil rights. The case made its way up to the Supreme Court. In 2005, the U.S. Supreme Court rejected Jessica Gonzales' (now Jessica Lenahan) case, finding that she had no constitutional due process right to enforcement of her restraining order. After the Supreme Court rejected her claims, what options remained?
According to data compiled by the Center for Disease Control, domestic violence is among the most dangerous and common forms of gender-based violence in the United States. Yet the conventional response has been to treat domestic violence as a private matter. The human rights framework offers an alternative approach, with the focus on law enforcement.
Under the human rights framework, the issue now becomes what role does the state play in perpetuating violence against women when it fails to respond appropriately. The hurdles faced by this human rights approach can only be fully appreciated when you bear in mind that the United States has declined to ratify most international human rights treaties, including the Convention on the Elimination of All Forms of Discrimination against Women, commonly referred to as CEDAW.
Although the Commission has no enforcement authority, its decisions carry significant political weight. It can also be influential in setting standards in the international arena. The merits decision anticipated this year will determine whether the U.S. violated the human rights of Jessica Gonzales and her children.