Lenahan (Gonzales) v. United States & Collective Entity Responsibility for Gender-Based Violence
Nancy Chi Cantalupo
Georgetown University Law Center; Victim Rights Law Center
21 AM. U.J. GENDER SOC. POL'Y & L. 231 (2013)
This article explores the implications of Lenahan (Gonzales) v. United States of America (“Lenahan”) in the context of a broader project considering how theories of “collective entity responsibility” for gender-based violence might be used to improve legal responses to and prevention of such violence. “Collective entities” are defined as institutional, legal entities that represent and have substantial control over the environment of a community of people, and collective entity responsibility theories hold such entities legally responsible for discriminatory violence occurring between members of their communities.
Both the international law theory of state responsibility for gender-based violence by non-state actors used in Lenahan and the domestic law theory of “hostile environment” sexual harassment are collective entity responsibility theories. The “state responsibility” theory represented by Lenahan holds governments accountable for gender-based violence committed by non-state actors when they fail to “prevent, investigate, prosecute, punish and provide compensation” for such violence in sex discriminatory ways. Similarly, hostile environment sexual harassment theory holds employers and schools responsible for sex discrimination when they fail to respond adequately to gender-based violence among their employees or students. Moreover, emerging sociological theories about gender-based violence suggest that gender-based violence is surrounded and enabled by the many “silent bystanders” who are aware of the violence but do not report, intervene or otherwise seek to stop it, and that collective entity silent bystanders have particular power to encourage violence or to prevent it. Thus, the state responsibility theory in Lenahan and hostile environment sexual harassment theory show how a theory of collective entity responsibility for gender-based violence could prompt bystander action to address and prevent this violence.
In comparing these international law and U.S. domestic law theories, this article demonstrates the commonalities between these international and domestic laws. Therefore, it suggests that Lenahan and the state responsibility theory are more in harmony with existing U.S. domestic law than is often acknowledged, and sees these commonalities as increasing Lenahan’s impact on U.S. domestic law.
Number of Pages in PDF File: 57
Keywords: sexual harassment, domestic violence, sexual violence, gender-based violence, violence against women, international law, education, education law, international women's rights, women's rightsAccepted Paper Series
Date posted: August 26, 2013
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