BAR JOURNAL

OF THE CLEVELAND METROPOLITAN BAR ASSOCIATION

VOL. 2 NO. 9 | APRIL 2010

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 BAR JOURNAL
OF THE CLEVELAND METROPOLITAN BAR ASSOCIATION
VOL. 2 NO. 9 | APRIL 2010

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Last month, Jessica Tanay Andrews was found
slain in her Bedford Heights apartment and
her ex-boyfriend, John McGraw, now stands
accused of her murder. McGraw had been
ordered to stay away from Andrews after she
brought domestic violence charges against
him. The Plain Dealer’s online article was inun-
dated with angry Clevelanders demanding an
answer to a common question – “What good is
a protection order anyway?”
Just ten days later, a bill empowering juvenile
court judges and magistrates to issue protec-
tion orders for teenagers was sailed toward
Governor Strickland’s desk. Naysayers have
wasted no time opining that these protec-
tion orders for teens will be “just another
piece of paper.”
What may surprise observers in Cleveland,
however, is that this issue goes far beyond our
city, our state, and even our nation.
A Tragic Example
On June 4, 1999, Simon Gonzales received a
protection order prohibiting him from molest-
ing or disturbing his wife, Jessica Gonzales,
and their three daughters. It warned that he
would be arrested if he violated its terms.
The document also contained the following
instructions to law enforcement officials:
You shall use every reasonable means
to enforce this restraining order. You
shall arrest, or, if an arrest would
be impractical under the circum-
stances, seek a warrant for the arrest of
the restrained person when you have
information amounting to probable
cause that the restrained person has
violated or attempted to violate this
order…1
36 | CLEVELAND METROPOLITAN BAR JOURNAL
A corresponding Colorado statute directed
law enforcement officials to arrest, or seek to
arrest, protection order violators.2
Simon violated the order by abducting his
daughters in May.3 Given the clear language
of the restraining order, Jessica expected the
police to arrest Simon and bring her daugh-
ters home, so she called them. Although she
produced a copy of the order, the responding
officers repeatedly denounced their responsi-
bility to enforce it. Jessica called the police sev-
eral more times throughout the night and was
rebuffed each time. Meanwhile, police filed an
incident report and went out for dinner.4
At 3:25 the following morning, Simon came to
the police station with a loaded semi-automat-
ic.5 After he was fatally shot in the parking lot,
the three little girls were finally found – they
were dead in the back of Simon’s truck.6
Jessica Gonzales sued the City of Castle Rock
and its police officers based on the theory that
the protection order created an entitlement,
which the police arbitrarily revoked without
due process when they failed to enforce the
protection order. The U.S. Supreme Court,
however, ruled that the restraining order and
corresponding statute did not create a property
entitlement to enforcement.7 Although both
the order and statute used mandatory language
– “shall,” the Court found that a tradition of
police discretion runs concurrently with that
language. When the government has discre-
tion over whether to enforce the order, there is
no entitlement to rely on the order.8
Given that outcome, it is no surprise that
people are wondering “what good is a protec-
tion order anyway?”
APRIL 2010
!"#$%&'()*%"+,"+*)-.%"
International Human Rights Law Promises
Due Diligence
Although domestic violence is com-
mon and widespread, it has tradi-
tionally been perceived as a private,
family problem, beyond the scope of
state responsibility … Only gradually
changing social attitudes and increased
reporting has propelled the problem
into the public eye. And as the nature
and severity of violence in the home
has become evident, so has the respon-
sibility of governments to prosecute
such abuse as they would any other
violent crime.9
Those words were written in reference to
domestic violence in Brazil, but they are
equally applicable to the United States. Indeed,
they describe the dynamic between women
and their governments all around the world.
The tradition of viewing “women’s issues”
as private and then relegating them as being
matters beyond the reach of public regulation
is referred to by scholars as the “public/private
dichotomy.”10 In the past, it has been especially
problematic when it comes to enforcing human
rights for women precisely because women are
typically associated with the private realm of
the home and family. Matters of home and
family were viewed as domestic issues. Such
issues were thought to be strictly within the
purview of each sovereign nation. Therefore,
the first international human rights treaties,
even those specifically dealing with the rights
of women, noticeably failed to address domes-
tic violence. The public/private dichotomy in
this context, however, is now being chipped
away through emerging trends in international
human rights law.
WWW.CLEMETROBAR.ORG
The most significant change to date started in
the Inter-American Court of Human Rights
when it issued the landmark decision in
Velásquez Rodriguez v. Honduras.11 After Man-
fredo Velásquez was disappeared by “agents
who acted under cover of public authority,”12
the Honduran government did nothing to
investigate and its judicial system did not
respond to writs demanding disclosure of his
location and justification for his disappear-
ance. The Inter-American Court held that State
obligations were not limited to abstaining from
violations of human rights, but also included
an affirmative duty to prevent, investigate,
punish, and provide remedies when human
rights are violated. The Court stated:

An illegal act which violates human

rights and which is initially not directly
imputable to a State (for example,
because it is the act of a private person
or because the person responsible has
not been identified) can lead to inter-
national responsibility of the State, not
because of the act itself, but because of
the lack of due diligence to prevent the
violation or to respond to it as required
by the Convention.13

Continued on page 38

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 The Organization of American States (OAS),
the regional body that established the Inter-
American Court and Commission, adopted
the Convention on the Prevention, Punish-
ment and Eradication of Violence against
Women (Convention of Belém do Para) only
one year after the Declaration.14 Its language
also includes the duty of each State to exercise
due diligence in the prevention of human
rights violations against women and providing
remedies when violations occur.15

The Convention of Belém do Para’s provision

of due diligence has been used as an effective
tool to persuade government to intrude upon
the privacy of the home to stop domestic
violence. María da Penha Maia Fernandes
successfully sued Brazil for failure to prosecute
and punish her husband, Marco Antônio He-
redia Viveiros.16 Viveiros had been tyrannizing
his wife and three daughters for years and had
tried to kill Fernandes by first shooting her in
her sleep17 and then, after she returned home
from the hospital, by attempting to electrocute
her while bathing.18 The Brazilian justice sys-
tem stalled the case for over 15 years without
handing down a final ruling.19 As the statute
of limitations was nearing, the Inter-American
Commission on Human Rights (Commission)
found that “ongoing violation of the right to
effective legal procedures” implies a tolerance
of violence against women.20 This failure
to live up to the promise of due diligence to
prevent, prosecute and punish perpetrators
of domestic violence disregarded Fernandes’s
human rights.21

Although the United States is a member of

OAS, it has not signed the Convention of
Belém do Para.22 Therefore, the U.S. is under
explicit obligation to exercise this due dili-
gence to prevent violence against women. So
the question again must be asked – what good
is a protection order anyway?

In her 2006 report to the U.N. Commission on

Human Rights, Yakin Ertürk, the Special Rap-
porteur on Violence against Women observed
that the promise of due diligence was helping
to challenge the public/private dichotomy at
the international level.23 After recounting the
decisions of regional human rights bodies to
impose due diligence requirements even where
no treaty explicitly requires it, Ertürk stated,
“[o]n the basis of practice and opinio juris…,
there is a rule of customary international law
that obliges States to prevent and respond obligations expressly made by treaty. Custom- is rendered obligatory by the existence of a
to acts of violence against women with ary international law is formed through the rule of law requiring it.”25 The promise of due
due diligence.”24 consistent acts of States in conformity with diligence may be international law because it is
international norms, “carried out in such a now customary within the international com-
International law is not limited to the way as to evidence a belief that this practice munity, as suggested by Ertürk. But has it been

38 | CLEVELAND METROPOLITAN BAR JOURNAL APRIL 2010 WWW.CLEMETROBAR.ORG

practiced long enough to have established
actual law?

Jessica Gonzales is seeking an answer to

precisely that question by taking her case to
the Inter-American Commission.26 Because
drafters of international human rights treaties
have moved to begin including the affirmative
promise of due diligence and human rights
bodies have strengthened this through their
jurisprudence, there is much to persuade the
Commission to agree with this theory. The fact
that the Inter-American human rights system,
both its Court and the Commission, has been
at the forefront of this trend makes it highly
likely that the Commission will rule favorably
for Gonzales on this point.

The Commission heard arguments for Gonza-

les v. U.S. on March 2, 2007 and decided that
her case was admissible for further consider-
ation. On October 22, 2008, the Commission
heard arguments on the merits and a ruling is
anticipated this year. Although the outcome
will not likely yield any real monetary recovery
for Jessica Gonzales, the case represents an
opportunity to pressure the U.S. to reach
beyond also present an opportunity to further
erode traditional attitudes that the domestic
affairs of a State are outside the concern of
the international community, and the use of
that proposition to excuse turning a blind eye
on the abuse of women by intimate partners.
The Inter-American Commission on Human
Rights may be the promise-keeper for women
abroad, and even in our own community. •

Stephanie L. Lingle graduated from Case

Western Reserve University School of Law in
2008. She studied at Oxford University in 2006
through the International Human Rights Law
Programme. She currently operates a part-time
solo practice in Cleveland. She can be contacted
via email at linglelaw16@yahoo.com.

1 20
Gonzales v. City of Castle Rock, 366 F.3d 1093, app. at 1143 (10th Feminist Approaches to International Law, 85 Am. J. Int’l L. Id. at ¶ 52.
21
Cir. 2004) (en banc). 613 (1991). Id. at ¶ 60.4.
2 11 22
Colo. Rev. Stat. § 18-6-803.5(3) (2005). Inter-Am. Ct. H.R. (ser. C) No. 4 (July 29, 1988). A list of OAS Members who have signed, ratified, and
3 12
Castle Rock, 307 F.3d 1258, 1261 (10th Circ. 2002). Id. deposited their ratifications is available at http://www.oas.org/
4 13
Castle Rock, 366 F.3d at 1098. Id. juridico/english/sigs/a-61.html.
5 14 23
Interview by Mike Wallace with Jessica Gonzales, CBS televi- Inter-American Convention on the Prevention, Punishment Id. at ¶ 61.
24
sion broadcast (Mar. 20, 2005), available at http://www.cb- and Eradication of Violence against Women (Convention of Id. at ¶ 29.
25
snews.com/stories/2005/03/17/60minutes/main681416.shtml Belém do Para), 33 I.L.M 1532 (1994). North Sea Continental Shelf Cases, Judgment, 1969 I.C.J. 2
15
(explaining the events of the evening and following morning). Id. art. 7(b). (Feb. 20, 1969) ¶ 77.
6 16 26
Castle Rock, 366 F. 3d at 1098. María da Penha Maia Fernandes v. Brazil, Case 12.051, Inter- Observations Concerning the September 22, 2006 Response
7
Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748 (2005). Am. C.H.R., Report No. 54/01, OEA/Ser.L./V/II.111, doc. 20 of the United States Government (hereinafter “Observations”)
8
Id. at 760-764. rev. at 704 (2000). at 68-74, Jessica Ruth Gonzales v. The United States of America,
9 17
Women’s Rights Project, Criminal Injustice: Violence Against Id. at ¶ 8. Inter-Am. C.H.R. (Dec. 11, 2006) (Petition No. P-1490-05).
18
women in Brazil 12 (Human Rights Watch, 1991). Id. at ¶ 9.
10 19
Hilary Charlesworth, Christine Chinkin & Shelly Wright, Id. at ¶ 19.

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