Rebecca Hughes, research associate in the women and foreign policy program, substantially contributed to the development of this blog post and the roundtable upon which it is based.
In late May, I had the honor of speaking at Council on Foreign Relations’ (CFR) roundtable, Violence Against Women in the Inter-American Human Rights System: A Case Study of Jessica Lenahan (Gonzales) v. United States. I spoke alongside Jorge Contesse, assistant professor of law at Rutgers Law School and a permanent visiting professor at Diego Portales University School of Law, and Rosa Celorio, associate dean of international and comparative law at George Washington University Law School. Together we explored how the landmark case, Jessica Lenahan (Gonzales) v. United States, advanced women’s rights at the regional and global levels and highlighted how international human rights mechanisms can be used to amplify national reform efforts.
Jessica Lenahan (Gonzales) v. United States
Lenahan v. United States was the first international human rights case brought by a victim of domestic violence against the United States. Lenahan’s three children were killed after her estranged husband kidnapped them, in violation of a restraining order. Over the course of ten hours Lenahan repeatedly called the police for help, but they chose not to enforce the restraining order. After their deaths, Lenahan filed a lawsuit against the local police. In 2005 the Supreme Court ruled that Lenahan had no constitutional right to have her restraining order enforced. Having exhausted her domestic remedies, Lenahan filed a petition with the Inter-American Commission on Human Rights (IACHR), an organ of the Organization of American States. She alleged that in failing to protect her and her daughters from acts of domestic violence, the U.S. criminal justice system violated her human rights under the American Declaration of the Rights and Duties of Man, which is a source of international obligations for the United States.
In 2011, the IACHR found the United States responsible for human rights violations against Lenahan and her children. The commission recommended that the United States investigate the systemic failures that took place, pass legislation to protect women and children from imminent acts of violence, and continue to adopt public policies aimed at shattering stereotypes of domestic violence victims.
Domestic Effects in the U.S.
In many respects, Lenahan’s story fits what Katheryn Sikkink and Margaret Keck dub “the boomerang effect” of human rights advocacy. As I discussed in a recent Foreign Affairs essay, the “boomerang” theory holds that when civil society groups and activists fail to persuade their government to take action or change its policy, they often find international allies who can exert external pressure and contribute to at least a partial victory.
Although the U.S. government officially rejected the IACHR’s decision on technical and jurisdictional grounds, it has had an undeniable effect on U.S. federal policy and law enforcement. Following the decision, over thirty municipalities have adopted resolutions and proclamations recognizing freedom from domestic violence as a basic human right. Beginning in 2011, the U.S. Department of Justice increased its civil rights investigations into discriminatory law enforcement responses to domestic violence and sexual assault — the exact type of government action that the IACHR had called for. Then, in 2015, U.S. Attorney General Loretta Lynch released official guidance to law enforcement agencies on how to prevent gender bias in their response to such crimes—a step proposed by advocates who supported Lenahan’s lawsuit. A year later, the Department of Justice established a nearly $10 million grant program to implement the guidance nationwide. I have now embarked on the COURAGE in Policing Project, to implement the Guidance through a community-oriented approach. The boomerang that Lenahan had tossed abroad has returned to the United States, even if the government does not explicitly acknowledge it.
Regional and Global Implications
The Lenahan case also had regional and global reverberations. As Celorio emphasized during the roundtable, domestic violence is a structural and systemic problem. Celorio noted that the Lenahan case demonstrated how a fragmented state response to gender-based violence can lead to tragic consequences. This prompted the IACHR to advance “due diligence standards” that require the entire governmental apparatus (including the police, the judiciary, and social services) to coordinate to protect against, prevent, and respond to gender-based violence. Celorio also underscored how the commission’s ruling was part of a broader trend in which principles of international human rights law are applied to what historically has been viewed as a “family” or “private” matter.
Contesse highlighted how the ruling called upon the United States to eliminate the cultural and social behaviors and prejudices that perpetuate violence against women, echoing and strengthening the obligation enshrined in Article 5 of the Convention to Eliminate Discrimination Against Women. Contesse also spoke to how the case shaped the commission’s understanding of how international law applied to other forms of human rights violations, such as sexual orientation and gender identity discrimination.
I spoke to the case’s global implications. Since 2011, courts in Kenya and Canada have cited the commission’s decision. Other international human rights bodies, including the European Court of Human Rights and the International Criminal Court, have also cited the decision.
Lenahan in Context
Lenahan’s is story is horrific, but not unique. The United Nations estimates that, worldwide, one in three women will experience sexual or physical violence in her lifetime. Violence against women threatens not only human rights, but also prosperity and stability. Nevertheless, justice systems often fail to protect victims and hold perpetrators accountable. Yet, when domestic institutions fail, international institutions can provide victims with justice and bolster efforts to reform laws and policy.
Lenahan v. United States demonstrates how domestic activists can leverage the expertise and influence of international institutions to shape understandings of the issues, strengthen international human rights norms, and advance meaningful reform at the domestic level.