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iconEqualLawiconLibertyiconRightToLifeJessica Lenahan Gonzales and Others v. United States of America (2011): the American Declaration on the Rights and Duties of Man is a binding instrument guaranteeing women the equal enjoyment of their human rights and fundamental freedoms
Domestic violence
Inter-American Commission on Human rights

 

Protection orders are one of the key tools used to prevent women from suffering further violence or threats of violence. However, these orders are only successful if they are enforced effectively. This requires the existence of a trained police force that promptly investigates violations of the protective order when it is reported, and takes all appropriate steps to enforce the safety of the people protected by the order. Without adequate enforcement, the mechanisms that exist to protect women cannot effectively deter perpetrators from committing acts of VAW nor can they break the cycle of gender-based discrimination that drives it.

What happened? | What was the decision? | Commission recommendations
Learning from other institutions | Significance

 

What happened?

Jessica Lenahan’s three daughters – Leslie (age 7), Katheryn (age 8) and Rebecca (age 10) – were abducted by her estranged husband, Simon Gonzales (S.G.) in June 1999. Fearing for their safety, Jessica repeatedly contacted the police asking for help finding the girls and to enforce the protection order she had against S.G. The police insufficiently responded to Jessica’s calls, failing to develop a coherent response to her concerns despite the existence of the protection order. During one call, Jessica begged for a missing children alert to be issued or for the department to contact the Denver police (where S.G. had taken the girls), to which the officer on the other line advised her to contact the Court about S.G.’s violation of their divorce decree and ended their conversation with, ”at least you know where the kids are right now.” Another time, she spoke with a dispatcher who told her, “I don’t know what else to say, I mean…. I wish you guys uh, I wish you would have asked or had made some sort of arrangements. I mean that’s a little ridiculous making us freak out and thinking the kids are gone…”

At 3:25 am, S.G. drove to the police department and opened fire. In the shootout that ensued with police, S.G. was shot and killed by the police. Leslie, Katheryn and Rebecca’s bodies were found in the back of S.G.’s truck with multiple gunshot wounds and were reportedly dead at the time they were discovered.

When Jessica heard about the shooting from S.G.’s girlfriend, she drove to the police station. Jessica reported that on her arrival she could not get any information on whether her daughters were alive or not, and her requests to see the girls and identify them were ignored for around 12 hours. Despite continual requests for information on the time, place and cause of Leslie, Katheryn and Rebecca’s deaths, neither Jessica nor her family were ever given information indicating a proper investigation had been carried out by police.

What was the decision?

“The principle of non-discrimination is the backbone of the universal and regional systems for the protection of human rights… As with all fundamental rights and freedoms, the Commission has observed that States are not only obligated to provide for equal protection of the law. They must also adopt the legislative, policy and other measures necessary to guarantee the effective enjoyment of the rights protected under Article II of the American Declaration.” (para. 107 – 108)

Through its analysis, the Commission decided that the USA was responsible for violating Jessica and her daughters’ human rights, specifically:

  • American Declaration on the Rights and Duties of Man
    • Article 1: Right to life, liberty and security of person
    • Article 2: Right to equal protection under the law without discrimination
    • Article 7: Right to special protection for mothers and children
    • Article 18: Right to judicial protection

This is because the Commission recognised gender-based violence as one of the “…most extreme and pervasive forms of discrimination, severely impairing and nullifying the enforcement of women’s rights” (para. 110). Whether this violence is committed by a public official or private actor, states have a responsibility to act with due diligence to ensure women are secure in the enjoyment of their rights. When a state does not fulfil these responsibilities, it is a failure that constitutes a form of gender-based discrimination that denies women their right to equality before the law. And, when such failures contribute to the escalation of VAW that ends with the death of a woman or girl, the state can be held accountable for violating her right to life.

There was an obvious systemic failure by the USA to exercise due diligence in responding to acts of gender-based violence and eliminate discrimination against women, as indicated by the circumstances leading to the tragic loss of Leslie, Katheryn and Rebecca. This failure was evidenced by, but not limited to: the USA’s historical problem with enforcement of protection orders; the uncoordinated police response to the increased risk of violence faced by the girls; and the insensitive response of police dispatchers to Jessica’s calls for help, which “… results in a mistrust that the State structure can really protect women and girl-children from harm, which reproduces the social tolerance toward these acts” (para. 167). In light of these facts (among others), the Commission concluded that the USA’s ineffective response was an act of discrimination that violated Jessica, Leslie, Katheryn and Rebecca’s right to equal protection under the law (Article 2).

The Commission also recognised that certain groups of women face multiple and intersecting forms of discrimination throughout their lifetime. Age, race, ethnic origin, among other factors, increase the risk of violence women face. As young girls, Leslie, Katheryn and Rebecca faced a greater risk of violence due to their sex and age. Knowing about the increased risk the girls faced, special protection measures should have been undertaken by American police. Given that these special protection measures were not taken, the USA’s failure constituted a violation of their rights under Article 1 (specifically the right to life) and Article 7 of the American Declaration.

Finally, without launching a “prompt, thorough, exhaustive and impartial investigation” into each individual deaths of Leslie, Katheryn and Rebecca, or launching an investigation into the systemic failures that lead to the non-enforcement of Jessica’s protection order, the Commission concluded that the USA had violated Jessica and her family’s rights under Article 18 of the American Declaration on two accounts.


Commission recommendations

 
For these reasons the Commission recommended that the USA:

  • Undertake a serious, impartial and exhaustive investigation to ascertain the cause, time and place of the deaths of Leslie, Katheryn and Rebecca Gonzales, and to update their family on the course of the investigation
  • Conduct a serious, impartial and exhaustive investigation into the systemic failures that lead to the non-enforcement of Jessica Lenahan’s protection order
  • Offer full reparations to Jessica and her family, with consideration of their perspective and specific needs
  • Adopt and/or reform legislation at the federal and state levels, to make mandatory the enforcement of protection orders and other precautionary measures to protect women from violence and ensure these measures are effectively implemented. Protection orders and other precautionary measures should be accompanied by:
    • Adequate resources destined to foster their implementation
    • Regulations to ensure their enforcement
    • Training programs for the law enforcement and justice system officials who will participate in their execution
    • The design of model protocols and directives that can be followed by police departments throughout the country
  • Adopt and/or reform legislation at the federal and state levels, including protection measures for children in the context of domestic violence. These measures should be accompanied by:
    • Adequate resources destined to foster their implementation
    • Regulations to ensure their enforcement
    • Training programs for the law enforcement and justice system officials who will participate in their execution
    • The design of model protocols and directives that can be followed by police departments throughout the country.
  • Continue adopting public policies and institutional programs aimed at restructuring the stereotypes attributed to survivors of domestic violence, and to promote the eradication of discriminatory socio-cultural patterns that impede women and children’s full protection from domestic violence acts, including programs to train public officials in all branches of the administration of justice and police, and comprehensive prevention programs
  • Design protocols at the federal and state levels specifying the proper components of the proper components of the investigation by law enforcement officials of a report of missing children in the context of a report of a restraining order violation

 


Learning from other institutions

Throughout the text of the case document, Jessica and her daughter’s stories were supported by what other institutions and authorities had said about violence against women, gender-based discrimination and human rights, which reinforces the legal value of the rule about gender-based violence under international customary law. Some of the references to these institutions and authorities included (numbers correspond to paragraphs within the case document):

Significance

Jessica Lenahan Gonzales and Others v. United States of America (2011) was the first domestic violence case to be brought against the USA before an international body. In this case, the Commission treated the American Declaration as a binding human rights instrument and referred to their status within the OAS Charter to rule that Jessica’s case was admissible. Specifically, in its admissibility decision (para. 37) and in the final decision on the merits of the case, the Commission asserted:

“[115] …according to the well-established and long-standing jurisprudence and practice of the inter-American human rights system, the American Declaration is recognized as constituting a source of legal obligation for OAS member states, including those States that are not parties to the American Convention on Human Rights. These obligations are considered to flow from the human rights obligations of Member States under the OAS Charter.  Member States have agreed that the content of the general principles of the OAS Charter is contained in and defined by the American Declaration, as well as the customary legal status of the rights protected under many of the Declaration’s core provisions.”

Through the Commission’s decision, the American Declaration was interpreted through a gendered lens – highlighting the obligation of all states (regardless of the ratification of the American Convention on Human Rights) to tackle acts of violence against women under articles 1, 2, 7 and 18 of the American Declaration.

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