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Human Rights at Home: Domestic Violence as a Human Rights Violation


Caroline Bettinger-Lopez


University of Miami - School of Law

December 2, 2008

Columbia Human Rights Law Review, Vol. 40, pp. 19-77, 2008

Abstract:     
In 2005, Jessica Lenahan (formerly Gonzales) initiated the first international legal action against the United States for violating the human rights of a domestic violence victim. Ms. Lenahan's petition to the Inter-American Commission on Human Rights, Jessica Gonzales v. United States, alleged that the Castle Rock, Colorado police failed to protect her from the violent acts of her estranged husband, despite the guarantees contained in her restraining order against him, and that the U.S. judicial system (including the U.S. Supreme Court, which rejected her 14th Amendment procedural due process claim in June 2005) denied her a remedy for law enforcement's failure to respond appropriately to her. Through these actions, she contended, the U.S. government was responsible for violations of the American Declaration on the Rights and Duties of Man - specifically the rights to life, security, family, due process, equality, truth, and freedom from torture and cruel, inhuman, and degrading treatment. The U.S. government, represented by the State Department, has vigorously defended itself in the case, which is now at the final stage - the merits stage. A decision is expected in mid-2009.

Jessica Gonzales v. United States marks the first time the Commission has been asked to consider the nature and extent of the U.S. Government's affirmative obligations to protect individuals from private acts of discriminatory violence. The case gives the Commission the opportunity to hold the United States to well-established international standards on state responsibility to exercise due diligence to prevent, investigate, and punish human rights violations and protect and compensate victims. The Gonzales case offers advocates the opportunity to contrast existing U.S. law and policy in the civil rights arena with international human rights principles. While the former provides only limited opportunities for private relief against governmental officers and has suffered a significant rollback in recent years, the latter holds federal, state, and local government actors to a higher and more expansive standard. Indeed, international human rights principles - in contrast to U.S. constitutional jurisprudence - make clear that the government has an affirmative obligation to protect individuals from private acts of violence, to investigate alleged violations and publicly report the results, and to provide an adequate and effective remedy when these duties are breached.

The Gonzales case has also facilitated the mobilization of new coalitions among women's rights and domestic violence advocacy groups. By framing domestic violence as a human rights violation, the case challenges advocates and policymakers to re-think the current approach to domestic violence in the U.S., and asks whether fundamental rights are being respected, protected, and fulfilled. This holistic approach has the potential to spur development of new legal theories of governmental accountability for failure to protect domestic violence victims. The human rights framework pushes us to consider whether our country's current response to domestic violence, based largely upon a criminal justice model, is really a one-size-fits-all solution for protecting victims, especially those from communities that have troubled histories with law enforcement.

This article tells the story of Jessica Gonzales's international quest for justice, her initiation of the first international legal action against the United States for violating the human rights of a domestic violence victim, and the impact of her journey on domestic violence and human rights advocacy in the United States and abroad. While her story could not have unfolded without Ms. Gonzales' very personal drive and commitment, it holds the potential to reshape domestic violence advocacy in the United States, and more broadly, the role of human rights standards in the domestic legal landscape.

Number of Pages in PDF File: 59

Keywords: domestic violence, human rights, international human rights, international law, violence against women, Inter-American Commission, affirmative obligations, positive obligations

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Date posted: December 4, 2008  

Suggested Citation

Bettinger-Lopez, Caroline, Human Rights at Home: Domestic Violence as a Human Rights Violation (December 2, 2008). Columbia Human Rights Law Review, Vol. 40, pp. 19-77, 2008. Available at SSRN: http://ssrn.com/abstract=1310316

Contact Information

Caroline Bettinger-Lopez (Contact Author)
University of Miami - School of Law ( email )
P.O. Box 248087
Coral Gables, FL 33146
United States
305-284-5923 (Phone)
HOME PAGE: http://www.law.miami.edu/facadmin/cbettinger-lopez.php
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