The Shriver Brief

Enforcement of Protective Orders is a Human Right

The summer was a season of triumphs for women around the world, whose fundamental human rights were upheld, sometimes for the first time, by the international human rights community. In July, the United Nations (UN) released Progress of the World’s Women: In Pursuit of Justice, a report that focused on the legal barriers women and girls face around the world and how advocates are working to break down these barriers. In early August, the UN ruled on its first maternal death case, establishing that governments have an obligation to guarantee all women access to adequate and timely maternal health care. Then, in mid August, the Inter-American Commission on Human Rights ruled on its first ever case brought by a domestic violence survivor against the United States. The decision established that governments have an obligation to enforce protective orders and that the failure to do so is a human rights violation. The progress around the world only highlights the work that must be done here in the United States to ensure that all women have equal rights and protections under the law and in practice, including the important right to the enforcement of protective orders.

Domestic Violence in the United States

The number of women in the U.S. who experience domestic violence is vast—it is truly a ubiquitous experience, affecting women of all ages, races, ethnicities, and sexual preferences. Indeed one in four women reports experiencing violence from a current or former partner or spouse. These women suffered in silence with little recognition from the legal world before the 1980s, when states began to criminalize domestic violence and establish protective orders. Finally, in 1994, the federal Violence Against Woman Act (VAWA) defined and federally criminalized domestic violence, dating violence, sexual assault, and stalking. Its passage signaled the United States’ refusal to continue silently to tolerate these crimes. Despite this progress, ignorance and prejudice continue to surround domestic violence survivors who face many barriers to justice and protection. Police can be slow to respond, believing domestic violence to be solely a private matter, and survivors’ credibility is often questioned in court. State and federal domestic violence acts have given women the opportunity to pursue legal protections, but without enforcement, legal protections in and of themselves are meaningless.

Jessica Lenahan’s Story

On June 23, 1999, Jessica Lenahan’s three children were discovered dead in the back seat of their father’s truck after he engaged the police in a shoot out that also resulted in his death. Ms. Lenahan’s estranged husband had abducted their children from outside her home, violating the restraining order she had obtained against him after he emotionally and physically abused her. Despite Ms. Lenahan’s many calls to the police station informing them of the restraining order and her husband’s actions, the police failed to even search for the children. Ms. Lenahan (formerly Ms. Gonzales) sued the township, claiming that her due process rights had been violated when the police failed to enforce her restraining order. Her case went all the way to the U.S. Supreme Court, which ruled in favor of the Township. The 2005 decision in Town of Castle Rock v. Jessica Gonzales established that survivors do not have a constitutional right to police enforcement of a restraining order because they do not have property rights to the order itself. In other words, the court determined that Ms. Lenahan did not have a right to due process, and thus did not look at whether or not due process was carried out. The decision, however, threatens the safety of domestic and sexual violence survivors around the country, who now have no legal recourse if their protective orders are not enforced.

The Inter-American Commission on Human Rights

With legal options in the United States exhausted, Ms. Lenahan took her case to the Inter-American Commission on Human Rights (IACHR). Established in 1959, IACHR is tasked with promoting and protecting human rights in the Americas by upholding the American Declaration of the Rights and Duties of Man. International human rights law guarantees certain substantive positive rights that the U.S. Constitution does not, rendering the property right concerns that were the focal point of the U.S. Supreme Court case moot. Thus, Jessica Gonzales v. U.S.A., centered on the claim that the United States violated Ms. Lenahan and her children’s human rights to life, equal protection before the law, and the right to protection of the law from abusive attacks. In its decision in favor of Ms. Lenahan, IACHR established that governments do have an obligation to enforce protective orders and that the U.S. had violated Ms. Lenahan’s human rights in failing to enforce her restraining order.

Applying a Human Rights Framework Domestically

Included in IACHR’s decision were a number of recommendations for the United States to more adequately address domestic violence. These recommendations, echoed by the recently released report from the United Nations Special Rapporteur on Violence Against Women (Report of the Special Rapporteur on violence against Women, its causes and consequences, Ms. Rashida Manjoo - Addendum - Mission to the United States of America, click “E”, page 27), include the creation of meaningful standards for the enforcement of protective orders. As a member of the Organization of American States (OAS), the United States is obligated to comply with the American Declaration of the Rights and Duties of Man and IACHR rulings, but it shouldn’t have to be forced into protecting women from violence. Instead, the United States should lead rather than follow in the fight to end domestic violence. 

For more information on using a human rights framework domestically, read the September-October 2011 special issue of the Clearinghouse Review, “Human Rights: A New (and Old) Way to Secure Justice.”

This blog was coauthored by Hannah Green.


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