Seeking A New Ally to Curb Domestic Violence

Meghan Rhoad

The Supreme Court ruled that Jessica Gonzales did not have a constitutional right to enforcement of a restraining order against her abusive husband. What will the Inter-American Commission on Human Rights say?

Jessica Gonzales called the
police in Castle Rock, Colorado, seven times on the night in June 1999,
when her estranged husband abducted her three daughters, ages 7, 8 and
10. For seven hours after he took them, she pleaded with the police
to go after him, to enforce the restraining order she had against him. 

They ignored her appeals. 
Then, at 3:20 a.m., her husband drove up to the police station
in his pickup truck and began shooting. The police shot back, killing
him. They found the bodies of the three girls in the back of the truck,
slain by their father’s semi-automatic. 

On Wednesday, Jessica Gonzales
(now Jessica Lenahan) saw the United States called to account
for its inaction when her case came before the Inter-American Commission
on Human Rights. The hearing will determine whether the government’s
failure to enforce the restraining order violated Ms. Gonzales’ rights
under international human rights law. In turning to this body, she is
trying to help domestic violence survivors across the country, and indeed
throughout the hemisphere.

The commission, part of the
Organization of American States, has taken up the subject of domestic
violence before and ruled against Brazil in a similar case. But this
is the first time it has taken a case from the United States. A ruling
against the United States will place into sharp focus gaps in the protection
it offers its citizens.  

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If the Inter-American Commission
finds for Ms. Gonzales, it can order damages from the U.S. government, or
recommend structural recommendations to avoid similar situations arising the in
the future.  The Commission also generally engages in regular follow-up
conversations with the government in question–here the U.S. government–to make
sure its recommendations are duly considered and implemented.  In
addition, while the Commission’s decisions perhaps are not enforceable in the
way we are used to think of enforceability–with police orders or ultimately
jail–they carry significant moral weight.

Although the US has always
considered itself a human rights leader, it has been reluctant to take
part in some of the worldwide mechanisms promoting human rights. It
is not a party to a number of important international human rights
treaties, including the Convention on the Elimination of All Forms
of Discrimination against Women, the American Convention on Human Rights,
and the International Covenant on Economic, Social and Cultural Rights.    

But this case serves as a
reminder that the need for the US to engage  with human rights
is not an academic exercise.
The human rights framework offers hope to women in this country, and
indeed to everyone, that they have someplace to turn if
they are denied help in their own country and that they can send a message
to the government that it needs to do much more to protect basic human
rights.  

Ms. Gonzales first brought
her case in US courts, but the system did not offer a remedy for the
grievous harm she had suffered. Her case wound its way up to the Supreme
Court, which ruled in June 2005 that Ms. Gonzales did not have a constitutional
right to the enforcement of the restraining order against her husband.  

In contrast, under international
human rights law, governments have a responsibility to protect against
and provide a remedy for violence against women, as outlined in a friend-of-the-court
brief in this case filed by Human Rights Watch and numerous women’s
rights organizations. In finding this case admissible, the Inter-American
Commission effectively acknowledged that it is the duty of the government
to protect its citizens against domestic violence. Human Rights Watch
has urged the Commission to find that the United States
failed to fulfill that obligation when the police ignored Ms. Gonzales’
pleas for enforcement of the restraining order. 

Beyond the realm of domestic
violence, human rights law offers remedies and standards currently unavailable
under domestic law. For example, international human right law recognizes
a right to the highest attainable standard of health, which includes
access to good quality health care. While polls indicate most Americans
believe the government should guarantee health insurance, our legal
system does not recognize such a right and millions of uninsured Americans
go without care.  

Opponents of US involvement
in the international human rights mechanisms contend that the
advanced legal system in the US precludes the need for involvement in
international human rights treaties. They say that we should protect
our sovereignty and not let other nations dictate our laws.  

However, the failure of the
legal system to provide a remedy to Ms. Gonzales points clearly to
gaps in the US system, gaps that imperil women and indeed all of us.
Engaging with the international system on these issues neither denigrates
our system nor sacrifices our democratic process. On the contrary, 
when we withdraw from the international human rights framework and
decline to participate in the international conversation on these issues,
we are ceding opportunity to provide leadership and to assert our values.  

As a start, the United States
needs to ratify the international treaties it has thus far neglected
and take an active role in international deliberations on human rights. 
But the United States also has a responsibility at home to make certain
that our citizens have the basic rights and protections they need to
enjoy our freedoms.

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