ACLU Files First Domestic Violence Case Against the United States at the Inter-American Commission on Human Rights

by Peggy McGuinness

The ACLU announced yesterday that it has filed a petition against the United States at the Inter-American Commission on Human Rights on behalf of Jessica Gonzales, a Colorado woman and victim of domestic violence. She lost her claim in US federal courts, which she argued all the way to the US Supreme Court, that the failure of local police to enforce a restraining order against her estranged husband was a violation of her substantive and procedural due process rights and that the police were therefore liable under 42 USC 1983 (civil rights claims) for the husband’s murder of their three children. The US Supreme Court ruled against her 7-2 (Ginsberg and Stevens in the dissent), finding that she had no individual right to have the restraining order enforced.

As the ACLU explains:


Gonzales is a Colorado woman whose three children were brutally murdered by her estranged husband when local police refused to enforce her restraining order. She repeatedly called the police, telling them of her fears for the safety of her daughters and guiding them to the girls’ location. The police failed to respond and several hours later all three children were shot and killed by their father, the abductor, against whom Gonzales had a restraining order. The ACLU said that its concern is not limited to the specific Gonzales case. It extends more broadly to all victims of domestic violence who are not adequately protected by law enforcement. This case is the first individual complaint against the United States brought before any international human rights body for the violation of the rights of victims of domestic violence.

The petition (full text available here) to the IACHR:

seeks compensation for the violation of Gonzales’ rights, adoption by the United States of necessary measures to deter the commission of similar crimes, and an advisory opinion from the Inter-American Court of Human Rights on the obligations of the United States under international law to protect victims of
domestic violence.

This may prove an interesting case of human rights advocates using both national and international courts to establish a new cause of action. Those who have been following Medellin and subsequent cases brought under the the Vienna Convention on Consular Relations (see discussion here) may recall that the first international court decision finding that due process obligations can be read into the consular notification provisions of the VCCR was made in a 1999 advisory opinion of the IACHR. Unlike the US Supreme Court, the IACHR is empowered to issue advisory opinions.

Correction posted 1/2/2005: The US has not yet acceded to the CEDAW, despite playing a central role in its drafting. President Carter signed the treaty in 1980, and it was twice discussed and voted favorably out of the Senate Foreign Relations Committee (1994 and 2002). But it has to date not been sent to the Senate floor for a vote. The US is a signatory to the OAS Charter, but it is not a signatory to and has not accepted the jurisdiction of the IACHR. That means that a decision of the Court that would be binding on the US is not possible. But an advisory opinion (as happened in the VCCR case) is still possible based on the US membership in the OAS.

Because the US is not a signatory to CEDAW, any advisory opinion of the Court would have to draw on other sources of the right. The petition filed by the ACLU relies on the American Declaration on the RIghts and Duties of Man as the source of US obligation as a member of the OAS. And it relies on interpretations of other treaties, including CEDAW, to develop the argument about the contours of the right at issue.

The question of whether private acts — particularly domestic violence — can be considered acts of the state for the purposes of international human rights law has been addressed most extensively within the context of women’s rights. Female genital mutilation, for example, is mostly a private act. Domestic violence is committed by private actors. But the state has a responsibility to protect the human rights of all its citizens. The argument can thus be made that where a pattern of gender discrimination on the part of the state is established, international human rights obligations may be triggered. For a full discussion, see the CEDAW Committee General Recommendation No. 19, which concluded:

[D]iscrimination under the Convention is not restricted to action by or on behalf of Governments (see articles 2(e), 2(f) and 5). For example, under article 2(e) the Convention calls on States parties to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise. Under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.

The facts of this case are somewhat different from the scenario contemplated by the General Recommendation. The physical act was not done to the woman herself (though it is clear from the facts she suffered from a pattern of abuse) but to the children. It was a novel claim when it was brought in the federal courts and is, as far as I know, the first such claim to be brought internationally.

Note: The initial post incorrectly stated that the US had acceded to CEDAW and IACHR. The US has signed, but not ratified, CEDAW. It has not acceded to the jurisdiction of IACHR but is a member state of the OAS, which has adopted the American Declartion of the Rights and Duties of Man as a source of human rights obligations for its members. Apologies for any confusion.

http://opiniojuris.org/2005/12/30/aclu-files-first-domestic-violence-case-against-the-united-states-at-the-inter-american-commission-on-human-rights/

3 Responses

  1. Has the US ratified/acceded to the ACHR or CEDAW?

  2. The ACLU claims to defend civil liberties then works to take them away from people that have RO’s placed against them, for how else to guarantee “necessary measures to deter the commission of similar crimes” other than to lock away anyone that someone else may consider a threat?

  3. CHALL–
    You caught an important error, which I have now corrected. (Must have been too much holiday cheer!) The US has not yet acceded to the CEDAW, despite playaing a central role in its drafting. President Carter signed the treaty in 1980, and it was twice discussed and voted favorably out of the Senate Foreign Relations Committee (1994 and 2002). But it has to date not been sent to the Senate floor for a vote.

    The US is a signatory to the OAS Charter, but it has not a signatory to and therefore has not accepted the jurisdiction of the IACHR. That means that a decision of the Court that would be binding on the US is not possible. But an advisory opinion (as happened in the VCCR case) is still possible based on the US membership in the OAS.

    Thanks for the comments.

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