United States’ Compliance with the International Covenant on Civil and Political Rights

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Jessica Lenahan, the petitioner in Jessica Lenahan (Gonzales) v. United States (2011), a landmark case before the Inter-American Commission on Human Rights concerning the human rights of domestic violence survivors.

United States’ Compliance with the International Covenant on Civil and Political Rights (ICCPR)

Written Statement on Domestic Violence, Gun Violence, and “Stand Your Ground” Laws

Response to Questions 9(a) and 20 in the Human Rights Committee’s List of Issues

Submitted by The Advocates for Human Rights, a non-governmental organization in special consultative status, along with

University of Miami School of Law Human Rights Clinic, Legal Momentum, and Women Enabled

109th Session of the

United Nations

Human Rights Committee

13-31 October 2013

Reporting Organizations
The Advocates for Human Rights

Founded in 1983, The Advocates for Human Rights (The Advocates) is a volunteer-based non-governmental organization committed to the impartial promotion and protection of international human rights standards and the rule of law. The Advocates conducts a range of programs to promote human rights in the United States and around the world, including monitoring and fact finding, direct legal representation, education and training, and publications. The Advocates is committed to ensuring human rights protection for women around the world. The Advocates’ Women’s Human Rights Program has published 22 reports on violence against women as a human rights issue, frequently provides consultation and commentary on drafting laws on domestic violence, and trains lawyers, police, prosecutors, and judges to implement new and existing laws on domestic violence effectively. The Advocates was part of a coalition of NGOs and academic institutions who hosted the official visit to the United States of United Nations Special Rapporteur on Violence Against Women in 2011.

Human Rights Clinic, University of Miami School of Law

The Human Rights Clinic at the University of Miami School of Law (www.law.miami.edu/hrc) exposes students to the practice of law in the international and cross-cultural context of human rights litigation and advocacy at the local, national, and international levels. In the classroom, students critically engage with human rights law and contemporary social problems while honing their lawyering and advocacy skills. Outside the classroom, students gain hands-on experience working on cutting-edge human rights projects and cases before the United Nations, the Organization of American States, and other human rights bodies. The Clinic’s main regional focus is the United States and Latin America, and its principal thematic areas are violence against women, gender and race discrimination, and immigrants’ rights. The Clinic was part of a coalition of NGOs and academic institutions that hosted the official visit to the United States of United Nations Special Rapporteur on Violence Against Women in 2011, and is counsel on the case of Jessica Lenahan (Gonzales) vs. United States before the Inter-American Commission on Human Rights.

Legal Momentum

Legal Momentum (www.legalmomentum.org) is dedicated to advancing the rights of all women and girls. Founded in 1970 as NOW Legal Defense and Education Fund, Legal Momentum has a longstanding commitment to addressing violence against women and inequality and gender bias in state and federal judicial systems. Legal Momentum was instrumental in drafting and passing the Violence Against Women Act in 1994 and its subsequent reauthorizations in 2000, 2005, and 2013. The organization has served as counsel and joined amicus curiae in numerous cases to support the rights of victims of intimate partner violence, sexual assault and other forms of gender-motivated violence.  Legal Momentum, through its National Judicial Education Program (NJEP), and in cooperation with the National Association of Women Judges, has developed several award-winning judicial education curricula and training DVDs about sexual assault, including Understanding Sexual Violence: The Judicial Response to Stranger and Nonstranger Rape and Sexual Assault and Judges Tell: What I Wish I Had Known Before I Presided in an Adult Victim Sexual Assault Case, in use across the country since 1994. In 2009, Legal Momentum created and launched a Web course on the intersection of sexual abuse and domestic violence, Intimate Partner Sexual Abuse: Adjudicating this Hidden Dimension of Domestic Violence Cases.

Women Enabled, Inc.

Women Enabled, Inc. advocates and educates for the human rights of all women and girls, with an emphasis on women and girls with disabilities, and works tirelessly to include women and girls with disabilities in international and domestic resolutions, policies and programs addressing women's human rights and development, through collaborations with organizations of women with disabilities and women generally.  Women Enabled, Inc. co-authored a ground-breaking report on violence against women with disabilities:  Forgotten Sisters – A Report on Violence Against Women with Disabilities: An Overview of its Nature, Scope, Causes and Consequences (Aug. 21, 2012).

Table of Contents

  1. Executive Summary

  2. Introduction

  3. The U.S. Government’s Violations of Obligations Under the International

Covenant on Civil and Political Rights (ICCPR)

  1. Other United Nations Body Recommendations

  2. Manifestation of Violence Against Women and Girls

    1. Introduction

    2. The Violence Against Women Act (VAWA)

    3. Gun Violence and Domestic Violence

    4. African-American, Latina, and Minority Women Victims of Gun and Domestic Violence

    5. Other Groups of Marginalized Women: Native American/Alaska Native Women, Lesbian/Bisexual/Transgender Women, and Disabled Women

    6. The Failure of Law Enforcement to Protect Victims of Domestic Violence and Stalking

    7. U.S. Department of Justice Civil Rights Investigations and Local Domestic Violence Resolutions

    8. The Marissa Alexander Case: A Case Study of the Problems Posed by “Stand Your Ground” Laws in the Context of Domestic Violence and Race

  3. Recommendations

  4. Suggested Questions for the Government of the United States

  1. Executive Summary

  1. Violence Against Women. Violence against women involves “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.”1 All nations have a duty to exercise due diligence to protect women from gender-based violence, whether committed by private actors or state actors.  In the United States, nearly 1 in 5 women will be raped in her lifetime; 1 in 6 women will be stalked; more than 1 in 3 women will experience intimate partner harm, including rape, physical violence, and/or stalking.2  State actors also perpetrate and condone violence against women in custodial settings, schools, the military, and private spaces. Violence perpetrated against women because they are women violates not only equal protection and non-discrimination guarantees, but also jeopardizes women’s enjoyment of all other rights as well. 

  1. U.S. Government’s Violations Under the International Covenant on Civil and Political Rights (ICCPR). During the Human Rights Committee’s last review of the United States’ compliance with its obligations under the ICCPR in 2006, the Committee recommended that the “State party should take all steps necessary, including at state level, to ensure the equality of women before the law and equal protection of the law, as well as effective protection against discrimination on the ground of sex….”3

  1. Some of the specific articles of the ICCPR relevant to violence against women where the U.S. continues to violate its responsibilities include the following: Art. 2 (equal protection of rights), Art. 3 (equal rights of men and women), Art. 6 (life and security of person), Art. 7 (prohibition of torture), Art. 14 (administration of justice), Art. 23 (protection of the family, the right to marriage and the equality of the spouses), and Art. 26 (equality before the law).

  1. UN Body Recommendations. Other UN bodies and experts have also reviewed, with great concern, the United States’ compliance with international obligations related to violence against women. For a more detailed review of these UN bodies’ and experts’ recommendations, please see Section IV below.

  1. Violence Against Women Act. The Violence Against Women Act (VAWA) is a comprehensive legislative package first enacted in 1994.4 In September 2011, VAWA was left to expire for the first time in 18 years.5 It was eventually reauthorized on March 7, 2013.6 VAWA funds a wide variety of important programs and victims’ services aiming to address domestic violence in the United States.7 VAWA does not, however, address three critical issues: (1) VAWA does not provide a direct remedy for violations of victims’ rights by offenders or law enforcement officials; (2) it does not impose an obligation on all states to participate nor does it have a mechanism to evaluate states’ progress; and (3) it fails to provide victim services with the full and adequate funding they require.8

  1. Gun Violence and Domestic Violence. The United States has failed to adequately prevent women in abusive relationships, and their children, from being shot or otherwise harmed from gun violence. Despite federal law prohibiting the sale of guns to individuals with domestic violence protective orders, the transfer of guns is insufficiently regulated and the laws are inadequately enforced.9 First, many abusers who are the subject of temporary protective orders are able to legally obtain guns. Moreover, even after being ordered to surrender their guns in protective order proceedings, many abusers do not.10 Easy access to guns, coupled with insufficient enforcement of the law, results in women being injured or murdered by intimate partners and children being injured or murdered by their fathers or their mothers’ intimate partners.

  1. African-American, Latina and Minority Women Victims of Gun and Domestic Violence. African-Americans are subjected to gun violence at a significantly higher rate than any other racial group in the United States, especially in the category of fatal homicides.11 In addition, African-Americans and Latinos/as are the two racial groups that are at highest risk of non-fatal homicide. African-Americans also face particular discriminatory limitations when using guns in self-defense.12 More broadly, African-American, Latina, and other minority women experience a heightened risk of domestic abuse. The victimization of minority women is exacerbated by the institutionalized under-protection and discrimination by the police. Law enforcement’s failure to adequately investigate and respond to reports of violence – particularly domestic violence – involving minority and immigrant women is often influenced by racial and ethnic stereotypes. In addition, such stereotyping often results in underreporting of violence and in disproportionate arrests of female victims rather than, or in addition to, their perpetrators. African-American, Native American, Latina, and immigrant women experience under-enforcement of the law and under-protection by the law due to their socio-economic conditions and institutionalized discrimination.

  1. Town of Castle Rock, Colorado vs. Jessica Gonzales. This case from the U.S. Supreme Court (2005) serves as a touchstone for assessing the failures of the United States government to respond properly in the context of guns and domestic violence, as well as the heightened risks of domestic abuse faced by minority women. After repeated incidents of abuse, Colorado resident Jessica Gonzales, the mother of three children, obtained a restraining order against her husband, Simon Gonzales. The order required him to remain 100 yards away from her and their three children except for times in which he was allotted visitation rights with the children. When Mr. Gonzales violated his restraining order by taking the three children from the home outside of his scheduled visitation time, Jessica Gonzales’ requests for the Castle Rock Police Department (“CRPD”) to enforce her restraining order and arrest Mr. Gonzales were repeatedly denied. The events culminated in a fatal shoot-out between Mr. Gonzales and the CRPD, as well as the still-unexplained deaths of the children, Rebecca, Katheryn, and Leslie Gonzales, whose bodies were found in the back of Mr. Gonzales’ truck after the shoot-out. After the Supreme Court ruled that Jessica Gonzales had no right to have her restraining order enforced, Ms. Gonzales (who subsequently remarried and changed her name to Jessica Lenahan) brought her case to the Inter-American Commission on Human Rights (IACHR). In 2011, the IACHR decided in her favor, finding that the U.S. “failed to act with due diligence to protect Jessica Lenahan” and her daughters.13 The United States has not developed adequate policies or practices that will successfully prevent tragedies like Jessica Lenahan’s from occurring in the future.

  1. Implementation of Gonzales: U.S. Department of Justice Civil Rights Investigations: In the wake of the Jessica Lenahan (Gonzales) decision from the IACHR, efforts have been made at the national, state, and local government levels to recognize the importance of an adequate and effective government response.14 In 2011, the Department of Justice (DOJ) Civil Rights Division conducted comprehensive investigations of the New Orleans Police Department (NOPD) and the Puerto Rico Police Department (PRPD). The DOJ found the NOPD had engaged in a pattern or practice of unconstitutional gender-biased policing in failing to respond adequately to allegations of sexual assault and domestic violence. Similarly, the DOJ found that the PRPD has a “longstanding failure to effectively address domestic violence and rape,” which, along with its institutional deficiencies, “may rise to the level of a pattern and practice of violations of the Fourteenth Amendment and the Safe Streets Act.” This is the first time the DOJ has initiated an inquiry or investigation into discriminatory responses by law enforcement to sexual assault and domestic violence. The DOJ ultimately entered into historic “consent decrees” (formal agreements) with both police departments that require them to make broad changes in policies and practices to prevent discriminatory policing based on race, ethnicity, gender and sexual orientation. The DOJ and NGOs are closely monitoring the police departments’ compliance with these consent decrees.

  1. Implementation of Gonzales: Local Domestic Violence Resolutions. Also in the wake of the Gonzales case, jurisdictions throughout the United States have passed resolutions recognizing freedom from domestic violence as a fundamental human right.15 This principle has generally been codified in two distinct ways. First, certain resolutions recognize the responsibility of local governments to guarantee freedom from domestic violence for their residents.16 Second, local initiatives have also been used to advocate for change on the national level; for example, the Seattle Human Rights Commission called upon the U.S. House of Representatives to pass the Senate version of VAWA.17

  1. Stand Your Ground Laws and Domestic Violence. The rights to self-defense and protection from the State are fundamentally linked with race and gender in the United States.18 “Stand Your Ground” laws – which exist in dozens of U.S. states in some form – authorize the use of deadly force without necessarily imposing a duty to retreat (the historic common law formulation). The application of “Stand Your Ground” laws in domestic violence cases highlights racial and gender discrimination embedded within the criminal justice system. In the state of Florida, for example, the “Stand Your Ground” defense is allowed in those circumstances where “a person…is not engaged in an unlawful activity and…is attacked in any place where he or she has a right to be.”19 Two high-profile cases recently decided in Florida have involved the “Stand Your Ground” defense, with significantly different results. In the first case, Marissa Alexander, an African-American woman, was sentenced to 20 years in prison for shooting upwards into the wall during an altercation with her abusive husband. He was unharmed. In contrast, George Zimmerman, a white Hispanic man, was found not guilty of any criminal offense after using a gun to kill an unarmed African-American teenage boy, Trayvon Martin. These contrasting outcomes highlight how black women and other marginalized groups may be disproportionately criminalized, prosecuted, and incarcerated for acting in self-defense. “Stand Your Ground” laws must be reevaluated to ensure that their application does not perpetuate discrimination or re-victimize survivors of domestic violence.

  1. Introduction

  1. In 2008, in the United States, intimate partners committed approximately 552,000 violent crimes against women, including 35,690 rapes or sexual assaults, 38,820 robberies, 70,550 aggravated assaults, and 406,530 simple assaults.20 Notwithstanding the prevalence of domestic violence across demographic categories, it is overwhelmingly a crime perpetrated against women. Women are far more likely than men to be victims of domestic violence; the rate of intimate partner victimization per 1,000 persons is 4.3 for women compared with 0.8 for men.21

  1. Not only are women more likely than men to experience domestic violence generally, but they also represent an even greater percentage of victims in the most severe assaults caused by intimate partners.22 Women are killed by intimate partners at a rate twice that of men.23 In 2007, 64% of female homicides were perpetrated by a family member or an intimate partner.24 The percentage of female homicide victims who were killed by an intimate partner increased from 40% in 1993 to 45% in 2007.25 The total estimated number of intimate partner homicide victims in 2007 was 2,340, of which 1,640 were females.26 A U.S. Bureau of Justice Statistics report notes, “Females made up 70% of victims killed by an intimate partner in 2007, a proportion that has changed very little since 1993.”27

  1. Not all women in the United States experience domestic violence with the same frequency. The data suggests that although the domestic violence epidemic cuts across the lines of gender, race, and immigration status––affecting women and men, African-Americans, Latinas, Native Americans, Alaska Natives, and whites, as well as both immigrants and U.S. citizens––it has a particularly pernicious effect on groups that lie at the intersection of these categories: African-Americans, Latinas, and poor, ethnic and racial minorities; immigrants; and Native American and Alaska Native women.

  1. The Violence Against Women Act (VAWA) is a comprehensive legislative package first enacted in 1994.28 In September 2011, VAWA was left to expire for the first time in 18 years.29 It was reauthorized on March 7, 2013.30 VAWA funds a wide variety of important programs and victim services aiming to address domestic violence in the United States.31 VAWA fails, however, to address several critical issues, discussed in detail below.

  1. In spite of the passage of legislation such as VAWA, the domestic violence epidemic has continued to rage in the United States. A study by the Centers for Disease Control and Prevention (CDC) found that more than 1 in 3 women (35.6%) have been a victim of rape, physical violence, and/or stalking by an intimate partner at some point in their lives.32

  1. The detrimental impact of domestic violence extends to both adult victims and children alike. The negative impact on children of the incidental effects of domestic abuse is well documented.33 And domestic abuse perpetrators are more likely to physically abuse their children.34 In acknowledgement of these types of understandings of domestic violence, legislative bodies and professional organizations in the United States have taken action to discourage custody awards to violent parents.35 Currently, nearly all states in the United States require courts to consider domestic violence when making custody awards,36 and 22 states, plus the District of Columbia, have legislative presumptions against joint custody where domestic violence has occurred.37 Nevertheless, despite these legal requirements and extensive research on the detrimental effects of domestic violence on children, courts often award joint legal custody in cases where domestic violence has been present or even award sole physical custody to violent abusers.38 This same phenomenon has been observed in the context of child custody mediations, child custody evaluations, and visitation determinations.39 And a recent trend by state legislatures to adopt a presumption for joint physical custody elevates the rights of parents over the safety and well-being of children, and it creates additional obstacles to protecting victims and children from domestic violence.40

  1. The U.S. Government’s Violations of Obligations Under the International Covenant on Civil and Political Rights (ICCPR)

  1. During the last review of The United States’ compliance with the ICCPR, the Human Rights Committee recommended that “The State party should take all steps necessary, including at state level, to ensure the equality of women before the law and equal protection of the law, as well as effective protection against discrimination on the ground of sex, in particular in the area of employment.”41

  1. In its Fourth Periodic Report to the Human Rights Committee, the United States describes in detail the federal Violence Against Women Act (VAWA) and programs to provide improved response to crimes of domestic violence, as well as services for and advocacy on behalf of survivors.42 The report also describes expanded legal tools for addressing violence against women,43 as well as new guidelines and trainings for, as well as federal investigations of, police departments handling domestic violence claims.44 While these are positive developments, the United States fails to address the lack of any federal civil remedies to victims and survivors; a lack of oversight, monitoring, and accountability mechanisms for ensuring that state actors are exercising due diligence to prevent violence against women; the general state of insufficient funding for vital programs and services for survivors of gender-based, domestic, and sexual violence; and how a primarily criminal justice-based response to domestic violence has a disparate impact on those victims who are more likely to be arrested because of racial or other bias endemic in the criminal justice system. It also fails to support victims whose survival strategies are criminalized, making them vulnerable to arrest, prosecution, incarceration, and, if they are undocumented immigrants, possible deportation.45

  1. Domestic violence is an affront to human dignity that violates a woman’s rights to life, freedom from torture, equality before the courts, equal protection before the law, equality with men before the law and protection of the family, among others.46 The following articles of the International Covenant on Civil and Political Rights articulate a state’s duty to protect these fundamental human rights that are commonly violated in domestic violence.

  1. Guarantees of rights under the ICCPR (Article 2): The ICCPR imposes both positive and negative obligations on States to respect the rights therein. This obligation applies not only to all government agencies, but also to private actors. The Human Rights Committee noted in its General Comment No. 31 that “the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights….”47 This positive obligation requires States Parties to, in part, provide victims of violations with an effective remedy and reparations, as well as hold offenders accountable through their justice systems.48 Furthermore, a negative obligation requires States Parties to refrain from committing any such violation, and General Comment No. 31 further expounds that offenders may not be absolved from responsibility irrespective of their official position.49 To fully comply with the provisions of the ICCPR, States Parties must also take measures to transpose the ICCPR standards into domestic law and policy.

  1. Equality of rights between men and women (Article 3): In its General Comment No. 28, the Human Rights Committee explained that States Parties must undertake measures to guarantee equality of rights between women and men, including the elimination of barriers that impede women’s access to these rights, public education, and legal reform.50

  1. Right to life and security of person (Article 6): The right to life is shared by both men and women. However, violence directed against women by their intimate partners (current or former spouses, boyfriends, or dating partners) has devastating physical, emotional, financial and social effects on women and children.

  1. Prohibition of torture or cruel, inhumane or degrading treatment or punishment (Article 7): In its General Comment 2, the Committee against Torture acknowledged that domestic violence may constitute torture or ill treatment under the Convention Against Torture (CAT). Gender-based and domestic violence may constitute torture or ill-treatment under Article 7 of the ICCPR.51

  1. Administration of Justice (Article 14): When a state fails to ensure that its criminal and civil laws adequately protect women and consistently hold abusers accountable, or that its agents—such as police and prosecutors—implement the laws that protect victims of domestic violence, that state has not acted with due diligence to prevent, investigate and punish violations of women's rights.52

  1. Protection of the family, the right to marriage and equality of the spouses (Article 23): In its General Comment No. 19, the Human Rights Committee notes that the ICCPR protects the family and equality of the spouses. General Comments 18 and 19 both ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution.53

  1. Equality before the law (Article 26): States are required under international law to provide all citizens with equal protection of the law. If a state fails to provide individuals who are harmed by an intimate partner with the same protections it provides to those harmed by strangers, it has failed to live up to this obligation. For example, when judges impose higher sentences on those who assault strangers than those who assault their intimate partners, battered women have been denied equal protection.

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