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The case of Jessica Lenahan v. United States was a petition by Emily J. Martin, Lenora Lapidus, Caroline Bettinger-Lopez, Ann Beeson, Stephen Mcpherson Watt, and attorneys-at-law with the American Civil Liberties Union to the Inter-American Commission on Human Rights. The petitioners presented the petition on behalf of Jessica Lenahan. The petitioners were of the opinion that the United States violated Articles I, II, V, VI, VII, IX, XVIII, and XXIV of the American Declaration of Human Rights.
The bone of contention was that the United States failed to exercise due diligence to ensure that Lenahan was protected from acts of domestic violence from her husband Simon Gonzales. The perpetration of violence against her by her husband continued even when she had a restraining order. The United States failed in its duty to protect its citizen from acts of violence. The petition was declared admissible and the Commission went ahead to hear the petition. The basis of the allegations contained in the petition was weighed against article 43(1) of the Rules of Procedure.1
The Commission based its decision on the arguments and the evidence before the parties. The Commission took the first step of ascertaining that the facts were true. The first thing to note is that there was a restraining order issued against Gonzales. The restraining order required Gonzales to refrain from any form of harassment, whether physical or emotional harm. Any form of disturbance to Lenahan would be considered as a source of emotional upset, as well as disturbance of peace.
There was a reiterated restraining order giving the Colorado police authority to conduct an arrest on Gonzales if he violated any of the clauses of the restraining order. The restriction on Gonzales stipulated that he would get limited time with his daughters. The order restraining Gonzales from the custody of his daughters was to take effect from the moment it was issued.2 The case above forms the basis of this essay. Therefore, this essay will provide a critical comment analysis of the case of Jessica Lenahan v. United States.
Lenahan was working in a private cleaning business at the time of the restraining order and when the events of the disagreement between her and Gonzales occurred. She used to work in the evening without the knowledge of the whereabouts of her daughters. Lenahan used to call the CRPD to explain that she had restraining orders against Gonzales. She also used to state that she was not aware of the whereabouts of her daughters and she was afraid that they were with their father, who was not allowed to stay with them at that time.
The order allowed Lenahan’s husband to stay with the children during the dinner hour only. The quest for Lenahan to have the matter before the District Court was dismissed. Instead, the court held that the state was aware of the dangers facing the children in the free world. The court was also of the opinion that while the state acknowledged the problems that the children were going through, the problems were not caused by the state and should not have been blamed for the issues facing the children. Further, the court argued that there was no evidence to show that the state did anything to facilitate the vulnerability of the children. It was clear that the daughters of Lenahan were not in the custody of the state, but the father.
The position of the court was that Lenahan had not presented enough evidence before the court to show that the police had failed to take action as required by the restricting order.3 There was no conscience showing affirmative conduct to warrant any action for violation. The conduct by the law enforcing agent did not portray any indifference. The District Court further held that the existing substantive law did not show any violation. The regulatory language on the arrest of an individual did not impose a mandatory duty.
The police officers had the discretion to decide whether there was probable cause warranting arrest. In the claim of Lenahan, such an assertion did not meet the set threshold. The facts show that Lenahan did not have any property that ought to have been protected by the police. The Tenth Circuit Court of Appeal held to the ruling to some extent, but some portion of the earlier ruling was overturned. The challenge presented by Lenahan against the substantive due process of the state failed.4
The appeal court reached a different opinion in regard to Lenahan’s procedural process claim. The court observed that the statute requiring the police to conduct an arrest imposed a mandatory duty that should have been exercised without any form of delay or diversion. The use of the word “shall” was an indicator that the police could not later claim that they had the discretion to decide whether to arrest or not. Any officer with any information regarding any of the violations of the order was supposed to effect arrest with immediate effect.5
The appeal court held that the defendant did not use the reasonable means to enforce the restraining order against Gonzales. The panel of the judges stated that the police officers had information that Lenahan had a restraining order. They failed to act even upon being informed that Gonzales was about to violate the restraining order. Bearing in mind the foregoing reasons, the court observed that the claim by Lenahan was sufficient. The position was further reiterated during a rehearing that was conducted in the same court by different judges.
The court emphasized the fact that Lenahan was entitled to enforcement of the restraining order by the mere fact that she was a United States citizen. The irreparable injury that was caused due to the failure of the police to observe the restraining order was put into consideration by the court during the hearing. The court overstretched its mandate and weighed the magnitude of the legislations by the Colorado state to ensure that there was enforcement. Considering the new legislations, the court observed that the restraining order required prompt enforcement.6
The claim later reached the Supreme Court, whereby all the claims that Lenahan had put across were rejected vehemently. The 14th Amendment came into play during the court’s consideration in disallowing the claim of the due process presented before it. The Colorado state law that guides the enforcement of court orders also came into play in the due process. The Supreme Court observed that the discretion of the police when enforcing restraining orders was still applicable. This was against the backdrop of legislative commands that imposed mandatory provisions.
The issues that were raised by the claimant and rejected by the Supreme Court later surfaced during the Commission’s hearing. The information presented brought about the wider perspective of domestic violence in the United States. It was no longer a case of Lenahan anymore, but the Commission made sure that the wider perspective of the problem in the United States was brought out. The context of domestic violence in the United States was highlighted significantly.
Both parties took cognizance of the fact that the problem was prevailing in many states in the United States. In the present situation, the case of Lenahan was used by the Commission to address a general problem in the United States. The trends in cases of domestic violence were worrying during this time. It was indicated that nearly five million women in the United States suffered from non-fatal violence. It was also noted that the reports only captured a small portion of the real situation as much of the violence went unreported.
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The courts took time and examined the reports on cases of domestic violence. The examination showed that most of those who suffered from domestic abuse were women. The low income citizens and the Native Americans were the affected the most. The studies also revealed that children were also affected by domestic violence, although the percentage was not as high as that of women.7
The empirical studies submitted before the Commission revealed that the departing spouses would violently harm their spouses or children to exercise control. The control blows out of control in many cases, thereby re-establishing the batterer’s control of the children or the spouse. If the spouse subjected to violence leaves home, then the children are vulnerable and they are likely to be harmed if they are not accorded legal protection.
It is clear that domestic violence is still considered a crime.8 However, there are many cases that indicate the escalation of the violence. Police officers have contributed to the problem because they do not respond within an appropriate time whenever they are called upon. The officers are in a chronic habit of either delaying the process or choosing to avoid any form of confrontation. They merely try to separate the parties by mediating the conflict, but the situation becomes a time bomb.
The creation of the enforcing order has been considered a milestone, but it is losing its efficacy because the order is not being enforced in the appropriate situations. Thus, domestic violence is not being addressed with the seriousness it requires. The widespread reported cases of domestic violence are an indicator of the rise in domestic abuse. The standards that the Commission adopted were based on the fact that the constitutional and legal position of the law was in favor of ending domestic violence.9
The holding was close to the case of Atala Riffo and Daughters v Chile, where the commission held that the custody of the daughters should have been determined by having regard to their rights, while putting into consideration their previous suffering. However, in the case of Fernandez Ortega et al v. Mexico, the state was held directly liable for rape. The violence was experienced due to the presence of military in the country.
In Gonzalez et al. v. Mexico, the commission found the state internationally responsible for the torture, violence, and death of Mrs. Gonzalez. The above considerations formed a strong basis why the Commission came to various conclusions. The state came up with theories in trying to explain why it was important to protect Lenahan against any acts of domestic violence. The court held that the state had failed terribly in exercising due diligence in providing protection to Lenahan. The Commission used the reasonable standard test to reach its decision.10
It stated that the state had a duty of care to Lenahan, which was breached by its apparatus being poorly coordinated to meet the plight of the victims. The victims were exposed to violence by the state apparatus not being adequate in their organization to counter the domestic violence.11 The Commission particularly provided that the state apparatus had failed in protecting Lenahan and Rebecca against the actions of Gonzales. The standard used by the Commission showed that the domestic violence on Lenahan was a violation of Article II of the American Declaration of Human Rights.
These considerations formed the basis for the Commission to hold that the state was in breach of its duties to its citizens.12 Further, the Commission used the third standard to show that the actions of the law enforcement agencies were disproportionate to women and low income groups in America. The Commission further provided that it was a violation of the legal obligation of the States to protect women against all forms of discrimination.13
The states were supposed to ensure that the protection was applied effectively to avoid disproportionate protection. Such a holding was also witnessed in the case of Paulina Del Carmen v Mexico. The restraining orders are the only remedy that the violated parties rely on to ensure that they are guaranteed protection. Consequently, the restraining orders are ineffective if they are not enforced.14
The Commission cited Article I of the American Declaration of Human Rights, whereby it held that failure to protect Lenahan was a threat to her right to life. The states were not only supposed to protect, but also under an obligation to ensure that discrimination was not applied in enforcing the law. The states were supposed to ensure that none of their citizens was arbitrarily deprived the right to life. The state was supposed to observe the duty to organize its apparatus to ensure protection of its citizens.15 A threat to the girl-child was also witnessed in this case.
The due diligence required the state to act expeditiously in enforcing any order. If reports of a missing person are received by the authorities, like in the case of Lenahan, then the respective police officers are under a duty to act in an expedient manner. The state authorities in this case violated the rights of the daughters of Lenahan by not acting immediately when required to do so. The positive obligation required by the law was not exercised. The beneficiaries of the restraining order were left unprotected, thereby exposing them to a greater risk of harm.16
The provisions of the international mechanisms that recognize the connection between domestic violence and violence against children were also put into consideration. The police officers should have been trained to ensure that they understood the risk facing children who are victimized by parents; the police officers should have understood the greater risk that the children were subjected to. Therefore, they should have ensured that Gonzales was not allowed to get near the children as stated in the restraining order.17
The protocols to be followed by the police were disregarded because the officers should have made an immediate effort to rescue the children upon getting reports of missing persons. Moreover, the fact that there was a restraining order should have formed a solid basis that the police officers were supposed to act when required to do so.18 The response of the police at the time they were called proved highly uncoordinated, thus the police failed to ascertain whether there were violations of the order by Gonzales. The state should have come up with mechanisms to ensure that the order was enforced strictly.
It was further observed that restraining orders were likely to aggravate the situation if they were not enforced. The Commission observed that such risks were evident in the case of Lenahan. The order safeguards safety, but the state had failed to ensure it.19 The fact that Lenahan did not take any action knowing that the state would exercise diligence and protect them was one of the Commission’s considerations in reaching its conclusion. The comments made by some of the officers when Lenahan called to report about the missing children were held to be insensitive.20
The Commission was justified in holding that the state had breached its duties, which it was supposed to uphold. The fact that the law enforcing agents failed to act when they were required to do so was a reflection of the nature of the state’s response to the entire issue of domestic violence. The states seem unprepared and not up to task when the rise in domestic violence is alarming. Discrimination in justice institutions is bound to foster lawlessness.
The desired protection is supposed to be upheld at all times. The uncoordinated way in the response of the state can only be remedied by ensuring that the law punishes such cases.21 The prevalent nature of domestic violence cases in the United States was a key trigger that made the Commission to reverse the holding in the Supreme Court. The decision in the Supreme Court failed to analyze the need to protect the vulnerable persons in the society against acts of violence. The traditional discretion exercised by police officers should not be exercised at the expense of human rights violations as provided by different statutes.
The law enforcing officers’ duties should constitute fewer protocols to promote the desired protection. The previous considerations in the courts missed the important point on how the law enforcing agencies should conduct themselves in such situations.22 The cases before the court required a landmark decision that would form the basis for future precedents. The Commission’s decision was sufficient guidance to start providing protection against all forms of domestic violence. The officers in the state of Colorado failed to exercise due diligence even where it was clear that there was a restraining order requiring them to protect Lenahan and her daughters against Gonzales.23
The state’s failure to enforce the restraining order against Gonzales was a breach of Lenahan’s rights. The act was discriminatory and it aggravated the situation, thereby violating Lenahan’s rights further. The law enforcement officers should have ensured that the situation was brought under control by implementing the restraining order as stipulated. The reports of missing daughters were not acted upon expediently.
Failure to act on a valid order was a clear indication of the state of domestic violence and one of the reasons why it kept rising. The decisions in the lower courts and the Supreme Court showed how the entire justice system was discriminative. Surprisingly, the courts where Lenahan was supposed to get a remedy supported the existing protocols, which required a police officer to exercise discretion. The discretion was a protocol that facilitated more violations. Police officers should act expeditiously when they get reports of missing persons.
Meloy, Michelle L., and Susan L. Miller. 2011. The victimization of women law, policies, and politics. New York: Oxford University Press. Web.
Cook, Philip W. 2009. Abused men: the hidden side of domestic violence. Westport, Conn: Praeger.
Cook, Philip W. 2009. Abused men: the hidden side of domestic violence. Westport, Conn: Praeger. Top of Form.
Andrews, Penelope. From Cape Town to Kabul: Rethinking Strategies For Pursuing Women’s Human Rights. Farnham: Ashgate, 2012.
Ashton-Jones, Evelyn, Gary A. Olson, and Merry G. Perry. The Gender Reader. New York: Longman, 2000.
Brems, Eva. Diversity and European Human Rights: Rewriting Judgments of the ECHR. Cambridge: Cambridge University Press, 2013.
Cook, Philip W. Abused Men: The Hidden Side of Domestic Violence. Westport: Praeger, 2009.
Cook, Rebecca J., and Simone Cusack. Gender Stereotyping: Transnational Legal Perspectives. Philadelphia: University of Pennsylvania Press, 2010.
Council of Europe. Human Rights in International Law: Basic Texts. Strasbourg: Council of Europe Pub, 2007.
GudmundurAlfredsson. The Universal Declaration of Human Rights: A Common Standard of Achievement. The Hague: Nijhoff, 1999.
Hodgson, Douglas. Individual Duty within a Human Rights Discourse. Aldershot: England: Ashgate, 2003.
Inzlicht, Michael, and Toni Schmader. Stereotype Threat Theory, Process, and Application. New York: Oxford University Press, 2012.
Levinson, Justin D., and Robert J. Smith. Implicit Racial Bias across the Law. Cambridge: Cambridge University Press, 2012.
Lockhart, Lettie L., and Fran S. Danis. Domestic Violence: Intersectionality and Culturally Competent Practice. New York: Columbia University Press, 2010.
McCue, Margi Laird. Domestic Violence: A Reference Handbook. Santa Barbara: ABC-CLIOMoore, 2008.
Meloy, Michelle L., and Susan L. Miller. The Victimization of Women Law, Policies, and Politics. New York: Oxford University Press, 2011.
Nguyen, Tuyen D. Domestic Violence in Asian American Communities: A Cultural Overview. Lanham: Lexington Books, 2005.
Peterson, Marilyn Strachan, Michael Durfee, and Kevin Coulter. Child Abuse and Neglect: Guidelines for Identification, Assessment, and Case Management. Volcano: Volcano Press, 2003.
Pleck, Elizabeth Hafkin. Domestic Tyranny: The Making of American Social Policy against Family Violence from Colonial Times to the Present. Urbana: University of Illinois Press, 2004.
Robert Moore M. The Hidden America: Social Problems in Rural America for the Twenty-First Century. Selinsgrove: Susquehanna University Press, 2001.
Shrader, Elizabeth, and Montserrat Sagot. Domestic Violence Women’s Way Out. Washington, D.C.: Pan American Health Organization, 2000.
Wexler, Laura. Tender Violence: Domestic Visions in an Age of U.S. Imperialism. Chapel Hill: University of North Carolina Press, 2000.
When Violence Begins at Home: A Comprehensive Guide to Understanding and Ending Domestic Abuse. Alameda: Hunter House, 2005.
Wiener, Richard L., and Eve M. Brank. Problem Solving Courts Social Science and Legal Perspectives. New York: Springer, 2013.
- Ashton-Jones, Evelyn, Gary A. Olson, and Merry G. Perry, The Gender Reader (New York: Longman, 2000), p. 67.
- Brems, Eva, Diversity and European human rights: rewriting judgments of the ECHR (Cambridge: Cambridge University Press 2013), p. 76.
- Hodgson, Douglas, Individual Duty within a Human Rights Discourse (Aldershot: Ashgate, 2003), p. 62.
- Meloy, Michelle L., and Susan L. Miller, The Victimization of Women Law, Policies, and Politics (New York: Oxford University Press, 2011), p. 73.
- When Violence Begins at Home: a Comprehensive Guide to Understanding and Ending Domestic Abuse (Alameda: Hunter House, p. 2005), p. 93.
- Wiener, Richard L., and Eve M. Brank, Problem Solving Courts Social Science And Legal Perspectives (New York, NY: Springer, 2013) p. 65.
- Council of Europe, Human Rights in International Law: Basic Texts (Strasbourg: Council of Europe Pub. 2007), p. 72.
- Cook, Philip W, Abused Men: The Hidden Side of Domestic Violence (Westport: Praeger 2009), p. 67.
- Pleck, Elizabeth Hafkin, Domestic Tyranny: The Making of American Social Policy against Family Violence from Colonial Times to the Present (Urbana: University of Illinois Press 2004), p. 76.
- McCue, Margi Laird, Domestic Violence: a Reference Handbook (Santa Barbara: ABC-CLIO2008), p. 45.
- Moore, Robert M, The Hidden America: Social Problems in Rural America for the Twenty-First century (Selinsgrove: Susquehanna University Press 2001), p. 54.
- Wexler, Laura, Tender Violence: Domestic Visions in an Age of U.S. Imperialism (Chapel Hill: University of North Carolina Press, 2000), p. 38.
- Cook, Rebecca J., and Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives (Philadelphia: University of Pennsylvania Press 2010), p. 27.
- Nguyen, Tuyen D, Domestic Violence in Asian American Communities: a Cultural Overview (Lanham: Lexington Books 2005), p. 82
- Andrews, Penelope, From Cape Town to Kabul: Rethinking Strategies for Pursuing Women’s Human Rights, (Farnham: Ashgate 2012), p. 34.
- Rebecca J Cook and Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives (Philadelphia: University of Pennsylvania Press, 2010), p. 65.
- Peterson, Marilyn Strachan, Michael Durfee, and Kevin Coulter, Child Abuse and Neglect: Guidelines for Identification, Assessment, and Case Management (Volcano: Volcano Press 2003), p. 64.
- Shrader, Elizabeth, and Montserrat Sagot, Domestic Violence Women’s Way Out (Washington, D.C.: Pan American Health Organization 2000), p. 62.
- Inzlicht, Michael, and Toni Schmader, Stereotype Threat Theory, Process, and Application (New York: Oxford University Press 2012), p 86.
- Cook, Philip W., Abused Men: The Hidden Side of Domestic Violence (Westport: Praeger 2009), p. 98.
- Lockhart, Lettie L., and Fran S. Danis, Domestic Violence: Intersectionality and Culturally Competent Practic ( New York: Columbia University Press, 2010), p. 73.
- Levinson, Justin D., and Robert J. Smith, Implicit Racial Bias across the Law (Cambridge: Cambridge University Press 2012), p. 1.