Violence Against Women in the Inter-American Human Rights System: A Case Study of Jessica Gonzales v. United States
In 1999, Jessica Gonzales’ three daughters were abducted by her estranged husband and killed after the Colorado police refused to enforce a restraining order against him. Caroline Bettinger-López and Jorge Contesse join us for a discussion that explores explores how the landmark legal case Gonzales brought before the Inter-American Commission on Human Rights, Jessica Lenahan (Gonzales) vs. United States, advanced women’s rights in the region and across the globe.
VOGELSTEIN: Welcome to the Council on Foreign Relations. My name is Rachel Vogelstein. I direct the Women in Foreign Policy Program here at CFR, which analyzes how elevating the status of women and girls advances U.S. foreign policy objectives.
Our discussion today is focused on “Violence Against Women in the Inter-American Human Rights system.” Our meeting takes place at a time of rising awareness and activism, focused on the global scourge of gender-based violence—an epidemic in homes, streets, and workplaces around the world, one that threatens not only human rights but also prosperity and stability.
This afternoon, we will examine the issue of violence against women in the Americas through the lens of a landmark legal case, Jessica Gonzales versus the United States, which was heard in the Inter-American Commission on Human Rights and has had reverberations in legal jurisdictions across the globe. We will explore not only the ways in which this precedent has shaped domestic, regional and international norms, but also how international human rights mechanisms can be used to amplify national reform efforts at this moment of global reckoning on the issue of violence against women.
And perhaps no one is better positioned to share insight into this topic than the speakers we are honored to have with us today. First, we are very fortunate to be joined by Carrie Bettinger-Lopez, who has recently joined CFR as a senior fellow in our Women in Foreign Program and also serves as the director of the Human Rights Clinic at the University of Miami School of Law. Carrie served as lead counsel in the Jessica Gonzales versus United States litigation. She regularly appears before the U.N. and the Inter-American Commission on Human Rights to advocate for the rights of women, immigrants, and ethnic minorities in the United States, Canada, Latin America, and the Caribbean. From 2015 to 2017, Carrie served as the White House advisor on violence against women, and as a senior advisor to Vice President Joe Biden. Carrie, thank you for being with us here today.
We are also privileged to welcome Jorge Contesse, assistant professor of law at Rutgers Law School and a permanent visiting professor at Diego Portales University School of Law in Santiago, Chile. His work is focused on the interaction between domestic constitutional actors and international and regional human rights regimes, particularly in the inter-American human rights system. He has held visiting positions at the University of Miami and the University of Texas and served as a fellow at Yale Law School’s Schell Center for International Human Rights. Jorge, welcome.
And I’m delighted that Rosa Celorio is also here with us today. Rosa has served as a senior attorney and principal human rights specialist for the Inter-American Commission on Human Rights for more than a decade. During her time at the commission, Celorio has profoundly shaped its human rights work, developing a successful gender mainstreaming strategy, and supervising the first group of cases on violence and discrimination against women. Rosa is currently an adjunct law professor at GW Law School and teaches courses on international human rights law and the human rights of women. So please join me in welcoming all of our speakers this afternoon. (Applause.)
We’ll begin with a few opening remarks from Carrie, who will offer background on the legal case that we’ll discuss today—Jessica Gonzales versus the United States. Carrie will also introduce two short film clips from a documentary on the case called “Home Truth,” which we will screen before then turning to our discussion. So, Carrie, without further ado, over to you.
BETTINGER-LOPEZ: Thank you, Rachel. It’s such a pleasure to be here. I feel like this is a bit of a family reunion for me on a personal level. (Laughter.) So it’s great to be back in D.C., and to be here, and of course to be a part of this incredible and dynamic program within CFR—the Women in Foreign Policy Program. So thanks for having me. And I also just want to thank in particular Rebecca Hughes for helping to put this entire roundtable together today. So thank you.
Great. So I just want to give you a couple of preliminary kind of comments and background so that the film clips you’re about to watch can be understood in a greater context. This—the film clips you’ll watch is from a new documentary called “Home Truth.” And this is a documentary about Jessica Lenahan, formerly Jessica Gonzales, who brought the first case before the Inter-American Commission on Human Rights against the United States that—where a domestic violence victim brought the first case against the United States before the Inter-American Commission. And I had the opportunity to represent Jessica, along with Lenora Lapidus who’s here, the director of the ACLU Women’s Rights Project, and was my boss over when did my Skadden fellowship and was a baby lawyer at the ACLU when the case was first going up to the Supreme Court.
So just to give you a little bit of background about the case, many of you know this already, but the case of Town of Castle Rock versus Jessica Gonzales went up to the U.S. Supreme Court in 2004. But the facts of the case actually originated in 1999, when Jessica Gonzales, who was a Latina and Native American woman from Castle Rock, Colorado. Received a restraining order from a judge to—which prohibited her husband—her estranged husband from having contact with her or their three daughters, other than prearranged dinner visits that were specified through the terms of the restraining order. And Jessica called the police one evening when her husband kidnapped the children in violation of the order. He drove around with the kids for nearly 10 hours. And she had nine points of contact with the police throughout the course of the evening. And throughout the course of the evening the police looked for a lost dog, responded to traffic lane violations, but never took her calls seriously.
And tragically, her husband, Simon, showed up at the police station at 3:00 in the morning, nearly 10 hours after her first call to the police, and opened fire with the gun that he purchased earlier that evening, falling through all the background checks that should have stopped from purchasing a gun, given that he had a restraining order against him, and the police shot and killed him and then, sadly, found the bodies of the girls dead inside his truck. And Jessica experienced, of course, as she talks about, a mother’s worst nightmare during that night. And ultimately she brought her case to the U.S. federal courts. She brought a case against the police. A Section 1983 lawsuit, for those lawyers in the room, civil rights lawsuit claiming that the police had a responsibility to enforce her order of protection, that she had a right to be protected by that order under the 14th Amendment of the U.S. Constitution.
And the case went up to the U.S. Supreme Court. And Lenora was—you know, she had the wisdom and the foresight to know that this was the next big case going up to the U.S. Supreme Court involving private forms of violence which, of course, have always been private—private from public scrutiny and hidden from public scrutiny, and not considered within our civil rights rubric, let alone an international human rights framework in the United States. And so we at the ACLU coordinated nine amicus briefs that went to the Supreme Court, representing 150 different individuals and organizations in support of Jessica.
And these briefs ranged from policing organizations, to organizations dealing with violence against women, or elder abuse, to one international human rights law brief that really compared the U.S. system and the U.S. legal standards, which really have, what we call, negative rights framework—that the state doesn’t have any affirmative duty to protect an individual from private acts of violence. And that brief really contrasted the U.S. civil rights jurisprudence with an international human rights framework, which really embodied this notion of affirmative rights. That if the government has noticed that a particular individual is at risk and fails to respond and protect that individual, then the government can be held accountable from an international human rights standard and framework.
And so after—unfortunately, Jessica lost her case a year later, in 2005, before the Supreme Court, when the Supreme Court found that she in fact had no constitutional right to have her restraining order enforced. Many women’s rights, and civil rights groups, and international human rights groups cried foul and said this does not represent our notion of justice, our notion of rights, or our notion of what our constitution should protect. And it was really, though, Jessica who said: Somebody’s got to hold this country to account. This is a moment—this was a critical moment when, with our lawyer hats on, we said: Geez, she’s reached the end of the line. But really, it was our client that drove us to think outside the box.
And so we looked at the international human right system and said, what potential remedies and legal frameworks could this provide? And so we talked with Jessica and talked about the costs and benefits of going to the inter-American system, particularly in taking a case against a government that had not ratified any of the major human rights treaties in the inter-American human rights system that we would theoretically want to rely upon in order to bring a case and make it, you know, justiciable in the inter-American system. And so we talked to her about what this meant. And we really came up with a series of reasons—again, driven by Jessica—for why we decided to move forward.
And this—and the last thing I’ll just mention is that this was really—this decision-making process and this advocacy strategy took place within a larger context. Some of you are familiar with the bring—what we call the Bring Human Rights Home movement here in the United States, which is a group of nearly 1,000 lawyers or so, at this point, who are focused on using international human rights strategies and applying them here at home in the United States, both in the context of holding the U.S. government accountable, but also in terms of reminding the U.S. of its position as an international actor on the foreign policy stage. And we thought that for a variety of reasons this could be a highly effective case for bringing before an international human rights body.
And I can talk a little bit more after the film clips about both, you know, our thinking that went into some of those reasons, as well as places that we had greater and lesser success. But we were really focused both on Jessica’s individual dignity on the one hand, and her real request that we find ways to hold the U.S. Supreme Court and the U.S. government accountable. And, on the other hand, to kind of move forward on our law and policy and social change front to offer a different framework for what it meant to claim rights and to claim the right to be free from violence.
So again, as I said, this became the first case ever against the United States that was filed on behalf of a domestic violence victim before an international human rights tribunal. And we’ve had an amazing odyssey ever since. And Jessica’s really led the charge and become a figure that I think people recognize in many cases all over the world. And we’ll talk a little bit more during the discussion about places where her case has been recognized and ways in which hopefully this case has pushed the needle forward.
So the clips that you’re about to see focus on kind of two different phases of her case. The first is of Jessica preparing for what’s called the merits hearing before the Inter-American Commission. Some of you practice before the commission every day, so you know, this well. Others of you are probably less familiar with the commission. So this is when Jessica actually really, in a sense, gets her day in court. And that is the thing that she so adamantly felt that she was denied through the U.S. justice system. So this was a moment when she finally got to speak and tell her story, which was incredibly powerful. And her mother, Tina, is with her. And then it pans to kind of her family debrief that night, to give you a little bit of a sense of just kind of what going before an international human rights tribunal means to a family.
And the second clip is a subsequent commission hearing. And kind of as you see the case evolve, and then ultimately you see Attorney General Loretta Lynch announce guidance on gender biased policing in the context of domestic violence and sexual assault, which is one of our policy asks that we have been really pushing for, for many years. And so it was a huge victory for Jessica and for the entire team to see this. And so we’ll talk more in the Q&A about kind of what that means, what that guidance means particularly today. So without further ado.
VOGELSTEIN: Carrie, thank you for introducing the film clips we just saw and for setting the table for our discussion, which will kick off from the background that you’ve provided. I’ll begin with just a few questions for each of our experts, and then turn it over to all of you, given the wealth of expertise we have here in the room.
Carrie, can you begin by just telling us a little bit more about the holding of the Inter-American Commission case, and the effect that this ruling has had on other jurisdictions around the world?
BETTINGER-LOPEZ: Sure. So I have here—I don’t know if possible to make it a full screen—but this is a couple of slides that really lay out some of the legal principles that the case rested upon in the international system, and then a couple—I have some excerpts from the commission’s decision to highlight for you. So remember that I mentioned that the case was brought on this very narrow argument before the—you know, before the U.S. courts, focused on whether she had really a procedural due process right to have her restraining order enforced by the police.
So that is legal mumbo-jumbo. Even the notion that this was about process rather than the inherent right to life was, you know, just a legal compromise that her lawyers felt needed to be made to bring this case through the U.S. court system. Contrast that with the international human rights system and with the inter-American human right system. But, by the way, those images that you saw of the commission are literally, like, one block away from here, right? (Laughter.) So if any of you don’t know about the commission, you should walk by. It’s on 19th and F. And is—holds hearings twice a year that are open hearings. And the rest will tell you more.
We brought this case originally under four different articles of the American declaration on the rights and duties of man. And those articles included the right to life and personal security, Article 1. Article 2, which involves equal protection and nondiscrimination, framing violence against women as a form of discrimination, which is something that is very well developed in the international context and much less developed in the U.S. legal context. Special protections for vulnerable groups including children, in the case of Article 7. And due process and judicial protection, the idea that our process needs to be fair and balanced and provide a reasonable outcome for an individual who seeks its assistance.
And so these were the principles upon which we filed our initial complaint. And if you can go to the next slide, we—this is key language from the commission’s decision. Look at this rich and powerful language. The commission talks about a state’s failure to act with due diligence to protect women from violence, that that constitutes a form of discrimination, that certain groups of women—this is intersectionality language—that certain groups of women are more vulnerable. And if you could go to the next slide, that the state must adopt required measures to modify the social and cultural practices—excuse me—patterns of conduct to eliminate prejudices, to address stereotyped roles for men and women.
This is extremely powerful language. And so we were able to really rely upon this, again, in kind of advancing our policy goals. The other places—Rachel indicated that this language became so powerful—and Jorge and Rose will talk more about this—this language really resonated with emerging norms in the inter-American system that were really being developed around the same time in some other parallel cases. And then they really had an international resonance as well. And so you see this language both in terms of rights and remedies reflected in foreign courts. The Kenyan Constitutional Court, for example, two years after this report came out from the commission, cited to the Lenahan case in a case involving police failure to respond to rape of young girls in Kenya. And so the ways in which these decisions can have an international impact at the domestic court level can be quite profound.
Also, of course, international courts speaking to one another, or international human rights bodies. And so the European Court of Human Rights—which arguably has the most teeth of all of the international human rights tribunals where there’s an actual implementation mechanism in the countries of Europe and actual enforcement mechanism—the European Court has cited to this case. The International Criminal Court has cited to this case. And so one of the things we think about as we think about the development—normative developments in any given international human rights system, and ways in which they can be transportable into other systems, be they domestic or global.
VOGELSTEIN: So really global ramifications coming out of this particular holding.
Jorge, I’d like to ask you to weigh in on the implications of this case. How did the ruling affect regional understandings related not only to violence against women, but on a broader set of gender considerations? What do you see as the long-lasting implications of the ruling?
CONTESSE: So I think what Carrie was just mentioning, the fact that if we go back to 10 years ago—which is, incidentally, the time I met Carrie, when I was— my entry point was in a different sort of research. And I found what Carrie was doing. And I thought it was fascinating to understand—trying to understand how issues of gender violence and violence against women were isolating my understanding from other types of human rights protections. Particularly, I was dealing with indigenous peoples’ rights issues. And so starting to realize how these different, yet related, set of issues could actually and should actually come together was personally a big realization in terms of an academic and intellectual exercise, but also as a matter of advocacy, trying to understand how international human rights law could bring these different issues together under the umbrella of the language of human rights.
So, as Carrie was saying, I think it’s particularly interesting to think around that time that the Jessica Gonzales-Lenahan case was— that the commission was dealing with this case, the commission was also dealing with other cases. And the inter-American system was dealing with different cases. I personally was co-litigating—was co-counselor with my colleague Macarena Saez on a case related to sexual orientation that made its way to the Inter-American Court. And the court had decided, just to— some years prior, the landmark case, the Cotton Field case, Campo Algoddonero, against Mexico, again, assessing and trying to bring some of the core test and understanding of human rights law, such as the due diligence standard, into the field of gender-based violence, discrimination against violence. So I think there was an interesting—and I’m not sure how conscious this effort—this collective effort was taking place. Different people were working in these different issues. And they were coming together. I would say not necessarily consciously, but these different things were happening and were affecting the understanding of international institutions—particularly, in this case, the Inter-American Commission.
I remember when we started litigating the Atala case on sexual orientation the commission’s understanding of those matters was dramatically different from the commissions understand just three, four years later, when it had been exposed to the Jessica Gonzales Lenahan case, when it had come to understand the depth of the issues that were implicated in case that was not just about discrimination, not just about violence, not just about gender identity or sexual orientation. So to me, I would say how are practitioners, academics, and particularly how officials working in those institutions were able to bring the different layers of analysis into single compact cases has had a major effect, and some of the things that we are witnessing today when it comes to gender identity cases, sexual orientation against, and certainly violence against women.
VOGELSTEIN: So it’s really had an effect well outside of even the context that it came up in.
Rosa, I’d love to pull in your expertise as well as a human rights specialist at the Inter-American Commission. Tell us why it’s important to understand the scourge of violence against women, not simply as a private crime but as a structural problem that demands government accountability. Tell us about the state’s responsibility to address violence against women.
CELORIO: Thank you, Rachel. And thank you for the invitation as well.
When we talk about domestic violence, we are talking about a very complex problem. And I do think it’s very appropriate to refer to it as a structural problem, and also as a systemic problem. And I think there’s a lot of elements and layers that actually drive that categorization or definition. We’re talking about a widespread problem. We’re talking about one of the most harmful human rights violations. We’re talking about a problem that affects every woman—women of every age, of ever ethnicity, of every sexual orientation, of every economic position. We are also talking about a problem that is harmful not only towards women’s life in the home, when we’re talking about domestic violence, but also their life outside of the home. This affects women’s ability to work. This affects their health—overall health in general. It affects their dignity. It affects their personal integrity. And it affects their life, as seen in the case of Jessica Lenahan.
But I think one aspect that’s very key to understand why we think of domestic violence as a structural issue is, first of all, it’s part of a large spectrum of gender-based violence in general, and many forms of violence that women and girls suffer on a daily basis in many different settings, not only the home. We’re talking about the employment setting, education setting. We’re talking about entertainment industry. We’re talking about religious institutions, academic institutions, et cetera. And we’re talking about norms, practices, stereotypes, a lot of what’s said in the Jessica Lenahan decision about cultural practices that promote this treatment of women that contradicts their autonomy, that contradicts their empowerment, that contradicts their leadership, right?
In terms of what international human rights law is today, it’s really interesting because international human rights law really starts piercing this veil of the family, or what we understand as this private setting, later on—much later on than its creation. It starts giving it a gender perspective. It starts delving into what we used to know as the private sphere, but that we know is definitely much beyond than a private sphere. And it really goes into the family because of the treatment women were receiving within the family—a treatment contradictory to all the principles that international human rights law has advanced in favor of many other persons and groups—like dignity, like personal integrity, like life, and so on.
In terms of the state of obligations today, it’s great to be sitting in a roundtable with so many activists and so many people that have really worked to shape the understanding of international human rights law today when it comes to violence against women and gender-based violence, to a point to say that at least we have a recognition—a formal recognition of the importance of this overarching obligation—the due diligence obligation that we have been discussing today. And for us, due diligence at the Inter-American Commission is also affirmative obligations.
It’s precisely what we were trying to do in the Jessica Lenahan report, to make sure that the United States government—and not only the United States government but the Americas in general—had clear that when we’re talking about due diligence we’re not talking about just one instrument that has been ratified, like the American Convention. But we’re talking about all the instruments that govern the work of the inter-American system. And we’re talking about prevention, investigation, sanctions, and reparations, even in countries that haven’t ratified the American Convention. It was the first time that we said that in a case on gender-based violence—in the case of Jessica Lenahan—I’m actually extremely grateful that you decided to bring this case before the system.
And I’m very happy, and I feel very honored, to have been able to be part of this process. Because it was a process. None of this happened automatically. This was something that was very well thought-out. There was a strategy and there was a lot that we wanted to say to the United States government. So it’s important to know that as well, and to countries in the Americas as well.
And two things I wanted to close with is that when we’re talking about state obligations and due diligence, I think one thing that really differentiated the Jessica Lenahan case in terms of standards was the protection order. The fact that this wasn’t a case of domestic violence that the government was not aware of. There’s a lot of domestic violence that’s completely underreported. Most of it is actually underreported. This is a case that Jessica Lenahan had gone to the authorities. She had obtained a protection order. The government had committed to protecting her through that protection order. There was an assessment of risk already from different authorities that drove the granting of that protection order. And that government did not meet those expectations, right, which created an insecurity risk for her and her girls as well.
So that’s one aspect that, for me, is a very important aspect to highlight. But the other aspect was the lack of coordination of the state apparatus. When we’re thinking the due diligence, we’re talking about an entire state apparatus including the executive, the legislative, and the justice system that should be working in coordination to protect, to prevent, and to respond. And in this case, this is a case that exemplified what a fragmented state response looks like, and the tragic consequences of that fragmented state response. So in my view, it’s a very important case. And I think it has driven the standards of the inter-American system in many ways. It’s an incredible contribution in terms of standards and I think also in terms of protection orders as well, because we haven’t necessarily had the opportunity to rule on so many cases on protection orders.
And I just wanted to say something about what Jorge said about the Karen Atala case and the sexual orientation and gender identity case. I was very lucky to be able to work on that case as well. And one thing that—there’s a lot that you can say about the inter-American system. We’re talking about a commission. We’re talking about the court. We’re talking about a system that has a lot of politics, is very complex. More often than not, it looks more Latin American, you know, than a U.S. system, or Canadian system, or English-speaking Caribbean system. But I have to say, one thing that I’ve been able to see—and I want to share that excitement with you because many of you are users, you know, and many of you may be potential users or are analyzing these decisions—is the ability to impact standards, the ability to shape standards.
When the Karen Atala case came to the commission, this was in 2004. And we had no idea what to do with it. It was a case about this judge that was—you know, that was—she lost the custody of her children because of her sexual orientation. And we really didn’t know what to do with it, because the international community wasn’t really talking about sexual orientation then. And now you have to see the seven commissioners. Everything is LGBTI rights. We have all these states talking about LGBTI rights. For me, I’m a little bit dumbfounded, I confess. And I always say that I think Jorge and Macarena should be very proud. And I think Carrie should be extremely proud of what she’s done with the Jessica Lenahan case as well. And I say that from the inside. (Laughter.) So thank you.
VOGELSTEIN: That’s great. So we’ve talked a little bit about the implications of the case, both as a precedent in and of itself and also the reverberations in other legal systems around the world. And I want to turn for a moment to the issue of implementation. And, Carrie, perhaps I can start with you. As important as this case is in terms of establishing legal precedent, how is it being implemented on the ground? Perhaps you can talk a little bit about the gender bias in policing regulations that came out of this process in the United States. Are they being implemented today? What do you think the prospects are for implementation, not only in the United States but in other jurisdictions?
BETTINGER-LOPEZ: Well, you know, throughout the series of conversations that we had, beginning really in around 2011 with the Department of Justice about the development of this guidance, we were also really pushing DOJ to incorporate a gender lens into its civil rights investigations. And it was interesting because, you know, it was a very unique moment at DOJ. And there were lots of people who were really looking to push the notion of an intersectional lens in a civil rights context. And so we began to see a series of investigations of police departments, beginning in around 2011, first in New Orleans, then in Puerto Rico, Missoula, Montana, Maricopa Country, Arizona, and subsequently Baltimore, where oftentimes the Department of Justice began an investigation into a police department for civil rights violations that were kind of the usual things that one would associate with a civil rights investigation—police brutality, excessive use of force, race discrimination.
And in the course of the investigation, it was uncovered that there was a systemic problem with responses to gender violence. And so that was one place where we really began to see things changing from kind of a civil rights investigation perspective. And I think that by DOJ engaging in those investigations, by developing concrete examples of what gender bias in policing looked like. It allowed DOJ to concretize the principles that we had been pushing for through the Lenahan case. And, again, you know, people at the civil rights division were thinking kind if in their own right about these ways—about these issues in very complex ways. But one can kind of—if one zooms out and takes a 30,000-foot view of all of this, you know, it’s interesting to kind of think about the interconnectedness of these issues and conversations, and to see how this guidance naturally developed.
And when you look at the guidance, you see that the DOJ is very specific. There are eight principles in the guidance. I have some flyers that I can pass around afterwards—and I’ll talk about this in a moment—but there’s eight principles in the guidance that incorporate everything for recognizing and addressing biases and stereotypes, to treating victims with respect and in a trauma-informed way, as Attorney General Lynch mentioned. To data collection, to thoroughly investigating reports. And so those types of principles, which seemed, you know, as one senior official mentioned in a roundtable that we had in planning for this, she mentioned these as kind of baseline principles, right? They seem like a floor rather than a ceiling. But sometimes it’s really important for standard-setting to set what the floor should be, as well as to create a vision for something grander. And so I feel like these principles, you know, that really set a baseline.
Now, the question becomes, what does that actually look like then in practice, right? So in some ways, this same question about implementation of standards and principles from the international to the domestic also takes place when we’re thinking about policymaking, right? How do we actually implement DOJ guidance at the 18,000 police department nationwide? And one very smart thing that DOJ did towards the end of the administration was to put $10 million towards grants to police departments and national technical assistance providers to actually do pilot and demonstration projects to figure out what this guidance looks like. And so currently, there are six police departments nationwide, mid-sized police departments, 500 or less officers, who are in a demonstration project to implement this guidance. And they’re working with the International Association of Chiefs of Police to conduct this demonstration project. And they’ll be concluding that in a little over a year from now.
At the same time, some of the major national organizations, like End Violence Against Women International, or Futures Without Violence, and other groups including the International Association of Chiefs of Police, are serving in this kind of technical advisor, technical assistance capacity, providing advice and developing materials and policies and practices that they hope can be—can serve as models to police departments. One thing that several of us in the room, including my student Claudia Ruiz and Rosie Hidalgo from Casa de Esperanza have been deeply involved with is thinking about what local implementation of these principles looks like from a community-up perspective.
And so we’ve been—we’ve initiated this project called the Courage in Policing Project, which really takes a community-up approach, works with groups that have traditionally focused on other issues in policing—like the Black Lives Matter movement or LGBTQ equality movement, the sanctuary cities movement, and is interested in engaging with those groups as well as these so-called usual suspects in the domestic violence and sexual assault arena—the shelters, the social service providers, the national—the state and local coalitions, and makes sure that these groups are kind of talking to one another and in conversation with local police to really kind of identify the most marginalized survivors, what their experiences are, and how those experiences can be addressed through local policies.
And so we’re in a process of finalizing a survey that we are planning to administer in Miami as kind of our own demonstration site. And then we’re working with a couple of cities throughout the country to think about how the Courage Project might be implemented in their site—again, kind in coalition with this more nationally funded, federally funded demonstration program that goes directly to police departments. So it’s kind of different ways of getting at the same issue. And you know, my dream is to kind of—once we develop some roots with the project and figure out where we’re landing and where communities are identifying the greatest need, to then potentially begin to work with international actors who, again, we know this issue—as Rosa was saying, as we know from all this international case law that I mentioned, we know that this is a global problem. And we know that gender bias in policing needs to be addressed, you know, at the community level throughout our world. And so to identify potential partners in other countries who might want to initiate different versions of this project and to become kind of an international network working on this.
VOGELSTEIN: So potentially more global implications even from the demonstration projects underway.
Well, I want to be sure to open the discussion to questions. So please raise your placard. State your name and affiliation. And we’ll get to as many questions as we can.
So while we’re waiting for folks to be bold and ask why don’t I jump in with—we have one right here. Go ahead, please. It’s on, just go ahead.
Q: Oh, and I think it’s—we can hear each other anyway.
So I’ve been teaching the Lenahan case in my U.S. family law class every year. And one of the things that it strikes me every year when I teach the decision is that when you compare the narrative of the Inter-American Commission’s recommendations with the U.S. Supreme Court decision, I think the police reaction to—responses to Jessica Lenahan look way more favorable in the Inter-American Commission’s recommendations, even though they then say, you know, it’s an obligation of the government to respond. So what I like about the commission’s recommendations is that they establish that no matter—whether it’s true that the police responded correctly or incorrectly, or did something to respond to the Lenahan case, that does not eliminate the problem of the structural issue of domestic violence, that it’s not been really addressed by the U.S. government as such.
But on the other hand, when you read the U.S. Supreme Court, what I find so horrible about it is that it—the narrative shows that the police didn’t do anything. And yet, the Supreme Court thinks that discretion for the police is important, to the extent that they didn’t do anything. So I wanted to see whether you had a—sort of like a similar reading, or if that’s in any way sort of, like, has had any reactions on you when you read the two decisions. Or maybe it’s not the same reaction that I had when I’m teaching the decision, but did anything—what are your—what were your reactions, when you compare those decisions to the two decisions, not in terms of the outcome but in terms of the reasoning of the Inter-American Commission with the U.S. Supreme Court? What do you think are the most important contrasts that you see in those two decisions?
VOGELSTEIN: Maybe just to broaden it even beyond that, you know, what do you do in a circumstance where this international ruling has one vantage point, and then in the local or national context there’s a completely different approach? Getting back to the implementation question.
BETTINGER-LOPEZ: And I’m happy to have you guys jump in too. I mean, it’s—yes, it’s—I think for us, the challenge was to really highlight this gulf. And in many ways, I think it created just a real groundswell of frustration and activism to look at kind of how these two—this factual—this fact pattern gets considered differently. I mean, I think in some ways you answered the question. It’s—I don’t know, it’s vexing to see kind of the difference in standards. I mean, what we were able to do really—and I recently wrote about this in an essay in Foreign Affairs Magazine for CFR—there’s a theory called the boomerang effect that political scientist Kathryn Sikkink has written about.
And the idea is that if you are seeking domestic recourse in your own country, and—you know, and you’re not able to achieve it, whether because of a legal obstacle or an administrative obstacle or a political obstacle, you know, you go outside of one’s own country, seek international recourse, and get some international ruling or international pronouncement that condemns your country’s practice and frames things differently, and then the boomerang comes back home. And then the boomerang comes back home. And then you have to figure out kind of how to take that principle that’s been announced at the international level and apply it at home.
Some call this kind of naming and shaming, right, which is a common tactic in the international human rights movement. But I think the boomerang analogy is a little bit more descriptive of the actual mechanism, because naming and shaming is important from an international human rights perspective, but without the actual implementation mechanism it’s—it can fall flat oftentimes, unless you have a strategy. So in terms of kind of the framing of the facts, we were really interested in making sure that the commission’s recommendations were specific enough that we were able to kind of use this international boomerang to effect domestic change.
I don’t know if others want to comment on that?
CONTESSE: I have thoughts, but I also would like other people to—
VOGELSTEIN: We’ll turn over here for another question.
Q: OK. I had a two-part question. One was, how much do you think that the case itself actually triggered the policy guidelines of DOJ? And maybe linked to that, like, when you’re implementing a decision, there might be different factors that come into play to make it more powerful. And there are other decisions of the Inter-American Commission against the U.S. that haven’t had that level of traction. So based on the case, what are some of the lessons that you have learned or, I don’t know, insights that you would like to share with all of us in terms of maximizing that boomerang effect?
BETTINGER-LOPEZ: OK, and I definitely want to give my co-panelists a chance to talk. (Laughter.) Why don’t I take on the first and leave it to others to chime in?
Just in terms of, you know, I mean, causation, right—we lawyers always, you know, are thinking about causation—I don’t think there is any direct way that you could say that this case caused DOJ to adopt that guidance. I think, like everything, kind of it’s complicated. It was the right political moment for this decision to come down. I mean, frankly, it was—when we were litigating this case before the commission, it was quite startling and disconcerting for me, as an advocate, to be appearing on the other side of the U.S. government. And, you know, as Macarena was kind of—indicated, like to hear their position—you saw it in the video—you know, to hear representatives from the State Department and Justice Department, you know, talking about the well-intentioned efforts of local police, it just seems like they were adopting a narrative that had been fed to them by the Castle Rock police, and all of a sudden, it seemed like we were in U.S. courts again.
And, you know—and so the government was getting to kind of the merits of the case in addition to creating all sorts of jurisdictional obstacles that they put forward. So I think, you know, the government kind of put on a standard show that we see the U.S. government putting on, you know, right now, as well as, you know, in the previous administration. And there’s a—as you very well know, there’s a certain set of jurisdictional arguments that the U.S. puts forward and, you know, and argues a lot, you know—heavily.
But at the end of the day, you know, I think that it’s largely about planting seeds and building a groundswell, and that international human rights—this case was highly effective from a movement and coalition-building perspective. We’re seeing that a lot in the current context of #MeToo how a framework shift can help to create a sea change in terms of, you know—of activism.
CONTESSE: So one thing—just to touch on this, take a little more general perspective— Carrie says we wanted the commission to be very specific and provide actual specific measures and remedies, and both the commission and the court are very well known for their very aggressive and creative approach to providing specific remedies when there are—comes to human rights violations.
But if you look at Paragraph 126 here, the way I read this particular part, this language resonates with—and it reflects Article 5 of the Convention of CEDAW, which comes from their declaration. To me this is just the beginning of something and more than— it’s kind of the problem in which states undertake to adopt measures to change cultural and social patterns. You know, if you think about it, to me that’s one of the most intriguing and fascinating provisions in international human rights law that states—undertakes an obligation to change the cultural patterns that underlie in society.
So when Carrie is talking about the current context of #MeToo, I cannot not think about what is happening in my home country. Last week 150,000 women and girls were demonstrating on the streets of Santiago— demonstrating against what they call the “rape culture,” the culture of abuse, triggered by one incident of sexual harassment, and now, today, a conservative administration is providing measures, is trying to adopt measures to come out with a gender agenda.
So the—what I think when I look at this conversation about the U.S. Supreme Court decision with all this technical trial language about due process of whether or not there’s a private action to enforce, the restraining order, and then the commission provides what Carrie wanted to be specific measures, and to me, these are not specific measures because it cannot be, and we come back to the issue of implementation. It opens up a new set of questions about how—in reality how you can actually change those, you know, embedded social and cultural patterns that allow for violence and discrimination.
And speaking as a man—maybe almost the only male in this room—it has been perplexing for us, for men, to start understanding a little bit of the scope and the magnitude of all these different instances of violence that women endure. So, I guess my point here is how this type of landmark decisions are just the beginning of a new set of fights that other people are now adopting and taking to the next step that— it goes beyond my competence to actually know what those fights are going to look like.
CELORIO: Well, I just wanted to say briefly, in response to Viviana’s comment, that from what we’ve seen, implementation is so, so, so driven by knowledge of the existence of the decision of the Inter-American system. And there is so much work that needs to be done to get the system more known in the United States, you know, to have policymakers know about it, to understand what it is. And I don’t mean only policymakers, but stakeholders in general. And I think buy-in, also, among different stakeholders of what the system is and what the value of this kind of decision is, and also the intricate relationship of the United States with international law. I mean, at the end of the day, this is a policy issue, we are at a foreign affairs setting, and it does drive whether these kinds of decisions have implementation or don’t have implementation. And I think it’s something to explore, and this costs more.
And I just wanted to say something briefly in response to what Macarena said, that when we were examining the Jessica Lenahan file, a lot of the pleadings were very comprehensive at explaining the U.S. Supreme Court decisions, not only the Jessica Lenahan decision, but the previous decisions on affirmative obligations—or lack of affirmative obligations of government authorities, you know, in cases where they don’t believe that they created the danger itself.
And a lot of what we were trying to do in the marriage report was actually respond to those decisions from an international human rights law standpoint. So we did take it into consideration, and I found fascinating what you brought up because I had never discussed how that was perceived now, especially after the marriage report had been issued because that was part of the strategy. There was a need to respond.
The U.S. Supreme Court is one of the best-known tribunals in the world, right? So when you are a supranational body and a supreme court issues a decision, it’s almost impossible not to take it into consideration in the way you couch a marriage report, in the way you couch your legal analysis. So it definitely shaped what was said in the marriage report.
VOGELSTEIN: Why don’t we come to Lenora and over here, quickly, for a final round of questions and concluding remarks?
Q: OK, thanks.
Actually, my comment now relates to those three responses that were just given in response to the last question, but I think this point of affirmative obligations—that was—and due diligence—that was really one of the major reasons why going to the Inter-American system was so much better than remaining in the U.S. system. And I’ve been thinking about accountability, which I think is really what that leads to, and in this current #MeToo, Time’s Up moment, I think this notion of accountability has risen in many contexts.
And I guess what I’d love to hear your thoughts on is what are some of the best ways that maybe we can bring in some of the learnings from the international human rights thinking and theories into context beyond domestic violence, to the sexual assault, to the employment discrimination context of assault, housing, sexual harassment, military sexual assault—I think there are so many different environments now where people are thinking about these issues but still in a very sort of isolated and siloed way, and it seems to me that we stand our best chance of bringing about real change if we can try to unify them all. And some of these principles, like accountability, coming from a government’s affirmative obligations and other actors’ obligations could be really helpful in those contexts, as well.
VOGELSTEIN: Thank you. Come over here, and then we’ll respond.
Q: Yes. It’s related to what Lenora was saying. I’m with Equality Now, and I’m working with regional part on Latin America and the Caribbean. But I’m also Puerto Rican.
And so my question is, we’ve been in Puerto Rico having trouble with—challenging with the turnovers of the police people, so I’m wondering if you are (challenging ?) that problem, too, in the application of the—of the program, and how—you know, how you are dealing with that situation specifically. Like, we can have very good trained policemen in the—in the domestic courts, and the domestic violence courts, but then when you see the general and the new people that’s coming on, it’s been—it’s very hard to continue the application of the policies.
Also if this program or the principles had a result or impact in other actors of U.S.? For example, training for judges or for the same prosecutors and—or other—you know, other actors in U.S.?
VOGELSTEIN: So why don’t we start with Carrie—training and what we can expect in this #MeToo moment. And we’ll go down the line and conclude. Please.
BETTINGER-LOPEZ: OK, I would say—these are great questions—in terms of thinking about accountability, I think it’s—you know, what international human rights can teach us is that there are many models of accountability that have kind of emerged from international human rights movements and moments. And so that ranges from calls for institutional or structural reform of various governmental or private entities, right, and for kind of entities to police themselves, as it were, right, create some sort of accountability mechanism within oneself.
I think there’s a lot of skepticism of that, and we’ve encountered that from many people with The Courage Project, many people who have given up on our systems and who are skeptical that those systems can ever create accountability mechanisms within themselves. So that’s one direction.
Another is to think about kind of outside entities that have been—have held, you know, different individuals or entities accountable, like truth and reconciliation commissions, right, and so as we begin to think about different models, we should certainly turn our gaze outward at other countries that have come to terms with grave human rights violations and different models that they’ve created, both within the internal apparatus of government and externally created. And we should be doing that in a community-driven way. That’s, for me, why the—the grounding principle of The Courage Project, starting with the most affected individuals and then working your way toward structural change.
In terms of kind of police trainings and other systems, I—that is absolutely an issue that, you know—that many advocates kind of brought to the fore with the DOJ guidance, and it can be extrapolated more broadly. So I think that, you know, you have to think strategically about kind of what you are trying to accomplish and objectives leading to a larger goal, and certainly—like in this particular case and project, the focus was on, most immediately, the police, but of course when we are thinking about systemic gender bias, we need to think about, you know, the police within the larger criminal justice system, the way those various entities interact. And so you have to kind of think about which particular set of actors in any given moment can be most effective at advancing a particular objective and goal. So it’s kind of this, you know, strategic, you know, momentary calculation that also is kind of taking place within the context of a larger and longer-term goal setting.
VOGELSTEIN: All right, final words?
CONTESSE: Thank you. So in just two minutes, I would say in the context of accountability—this is such a difficult question to start thinking about—and just to add something—I mean, I second what Carrie just said about the specific remedies, the specific ways in which you can try to effect institutional change. And Inter-American Human Rights is a great way to start, it’s a great place to start because of its very rich remedial jurisprudence.
But I think I would add to this that ultimately there’s an—the political economy of how we understand these issues, I think, can shape the more discrete remedies that we could think about in a given context. So what I mean by the political economy is what’s the underlying political narrative that sustains certain type of arrangements in one setting different from another, and how we shape how we frame these issues and how we think of the different positions and places that these actors that are implicated in these problems play.
So as we change the way we see issues of discrimination and violence, and what Rosa was saying, how we pierce the veil of the private — that’s a pretty recent development, that we went from understanding that the household was a sort of private sphere in which international human rights law has no—nothing to say to, as Rosa said piercing that and saying, no, this is a political thing.
So violence occurring in the context of the household or in labor relations in academic institutions, in settings in which traditionally the public has been sort of absent because we want to keep the margins, that is a change in the political economy and the political understanding of the spheres in which we interact and how the instances of violence play out. And I think that goes to the core issue of accountability.
VOGELSTEIN: Rosa, final words?
CELORIO: Thank you.
Lenora, I think the accountability component of due diligence is paramount, right? I mean, I don’t think we have due diligence or affirmative obligations that are comprehensive and exhaustive and full without accountability, and we are referring to it as access to justice.
I think we are in a moment, especially at supranational bodies, where we are studying the different models and the effects of the different models, and how this is working in terms of the victims. And I think—at the end of the day, when I think of the #MeToo movement, when I think of Time’s Up, when I think of #NiUnaMenos, you know, I’m thinking that one of the very positive things that have come out of those movements is that the women are talking. They are talking, they are involved, they are coming out with their stories, and they are letting us know what they want, right?
So I’m hoping that when we think of accountability and when we think of access to justice, especially in terms of setting international human rights law standards, the women that are affected by gender-based violence are really the leading—the center, you know, in the future in terms of defining which are the best models and which are the best routes internationally, but also nationally.
And Barbara, in terms of your point about police turnover, we are seeing that problem in a lot of the Americas—in Puerto Rico, of course, a very serious problem. And one thing that we’re noticing is every day it is reiterated the importance of protocols, of directives, of trainings, but institutionalized protocols, and directives, and trainings that stay there even when there is turnover.
Part of the problem in the Jessica Lenahan case is that there were no protocols, number one, and even these international guidelines on policing were not followed. You know, even the basic, even the bare basic wasn’t followed, right?
So at the end of the day, institutionalizing and designing protocols, directives, and having consistent training, sustainable training is definitely something worth trying to prevent these kinds of cases.
VOGELSTEIN: There is no doubt that there is a lot of work left to do to address this scourge of violence against women here and around the world, but there is also no doubt that this conversation enlightened all of us as to the path forward. So please join me in a round of applause for our speakers. (Applause.)
Thank you so much. Good afternoon.
This is an uncorrected transcript