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Domestic Violence as a Human Rights Violation

Paola Garcia Rey,
Counsel, Inter-American Human Rights System Project, Human Rights Institute, Columbia Law School
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March 14, 2011

This is a summary of Ms. Garcia Rey’s remarks from a panel discussion hosted by the ACLU Women’s Rights Project and Human Rights Program in conjunction with the 55th Session of the United Nations Commission on the Status of Women.

An alarming number of women in the United States experience grievous violence, and our government has failed to respond effectively to this crisis. The statistics speak for themselves: domestic violence is the leading cause of injury to U.S. women between the ages of 15 and 44; an estimated 1.3 million women are victims of physical assault by an intimate partner each year; and 1 in 4 American women are abused by their partners.

Domestic violence is a human rights violation. While domestic violence is often treated as a private matter, the human rights framework provides a tool to challenge this perception and reframe it as a collective problem that society as a whole must address.

The story of Jessica Lenahan, formerly Gonzales, demonstrates how international human rights systems can be utilized to promote justice where domestic channels fail. In June 1999, Jessica Gonzales’ estranged husband, Simon Gonzales, abducted her three daughters in violation of a domestic violence restraining order. Jessica called and met repeatedly with the Castle Rock, Colorado, state police to report the abduction and restraining order violation. Her pleas went unheeded. Police inaction led to the death of her three girls, and the circumstances of their deaths were never adequately investigated.

After all avenues of justice in the U.S. were closed to her, including the U.S. Supreme Court, Jessica brought her case, Jessica Gonzales v. United States, to the Inter-American Commission on Human Rights (IACHR) in 2005. Jessica was the first domestic violence survivor to initiate an international legal action against the United States for violating her and her three daughters’ human rights.

The international human rights protection systems offer alternative channels through which people may advocate for fundamental rights, social change and institutional reform. As a member of the Organization of American States, the United States is obligated under the American Declaration of the Rights and Duties of Man to act with “due diligence,” which requires authorities to adopt reasonable measures to recognize and prevent any action that poses a “real and immediate” risk to the personal security of an individual. When such a risk has been identified, whether posed by an individual or by the state itself, the state has an obligation to provide effective protection.

This obligation is heightened when the rights of vulnerable groups such as domestic violence victims are at issue. Finally, the “due diligence” standard requires the state to provide individuals with access to a court and to an adequate and effective remedy when their rights are violated. In the case of Jessica Lenahan, the United States failed to take reasonable measures, failed to effectively prevent domestic violence, failed to protect Jessica and her daughters, and failed to afford Jessica access to a court or any remedy.

The IACHR is expected to deliver a final decision on Jessica’s case this year. IACHR’s decisions can have a significant impact on public policy and institutional reforms. In the particular case of Jessica Lenahan, the litigation before the IACHR represented the first opportunity she had to tell her story to a decision-making body and in a public forum. The litigation also helped build a coalition of domestic violence advocates in the U.S. and abroad to expand the scope of their traditional advocacy and cast their work in human rights terms. Furthermore, by highlighting the gulf between U.S. and international legal standards on the government’s duty to protect individuals from violence, the case has spurred important law and policy developments at the state, federal, and international levels. But mainly, it allows us to bring domestic violence issues out in the open, where they can be publicly addressed on a global stage.

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