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Download Printable File Petition No. P-1490-05 Before the INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, ORGANIZATION OF AMERICAN STATES JESSICA RUTH GONZALES vs. THE UNITED STATES OF AMERICA SUPPLEMENTAL AMICI CURIAE BRIEF IN SUPPORT OF PETITIONER Presented by Legal Momentum, Asociacion para el Desarrollo Integral de Personas Violadas (ADIVAC), Break the Cycle, Harriett Buhai Center for Family Law, California Women’s Law Center, Center for Gender & Refugee Studies, Central American Resource Center, Professor John Cerone, Monica Ghosh Driggers, Esq., Honorable Marjory D. Fields, The Feminist Majority Foundation, Harvard Law School Gender Violence Clinic, Professor Dina Francesca Haynes, Human Rights Watch, The Immigration Law Clinic at the University of Detroit Mercy, The International Women’s Human Rights Clinic, The International Committee of the National Lawyers Guild, The Leitner Center for International Law and Justice at Fordham Law School, The Walter Leitner International Human Rights Clinic, Los Angeles Chapter of the National Lawyers Guild, The Allard K. Lowenstein International Human Rights Clinic, National Center for Women & Policing, The National Congress of Black Women, Inc., National Organization for Women Foundation, Inc., National Women's Law Center, Professor Sarah Paoletti, Professor Susan Deller Ross, Seton Hall University School of Law Center for Social Justice, Professor Deborah M. Weissman, Women Lawyers Association of Los Angeles, and World Organization for Human Rights USA HORVITZ & LEVY LLP LEGAL MOMENTUM David S. Ettinger Maya Raghu Mary-Christine Sungaila 395 Hudson Street, 5th Floor 15760 Ventura Boulevard, 18th Floor New York, New York USA 10014-3669 Encino, California USA 91436-3000 (212) 413-7516 • Fax: (212) 226-1066 (818) 995-0800 • Fax: (818) 995-3157 [email protected] [email protected] [email protected] ATTORNEYS FOR AMICI CURIAE TABLE OF CONTENTS Page INTEREST OF AMICI ........................................1 INTRODUCTION AND SUMMARY OF ARGUMENT ...........1 STATEMENT OF THE CASE .................................2 ARGUMENT ...............................................4 I. UNDER INTERNATIONAL HUMAN RIGHTS LAW, NATION STATES HAVE A DUTY TO PROTECT WOMEN AND CHILDREN FROM, AND PROVIDE AN EFFECTIVE REMEDY FOR, GENDER-BASED VIOLENCE, INCLUDING EXERCISING DUE DILIGENCE TO ENSURE THAT DOMESTIC VIOLENCE LAWS ARE EFFECTIVELY IMPLEMENTED AND ENFORCED ..........................................4 A. In this Hemisphere, the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women Requires States to “Prevent, Punish, and Eradicate” Gender-based Violence, Including Domestic Violence ..............4 B. Treaties and Other Authoritative Documents Beyond the Inter-american Convention Demonstrate an International Consensus Recognizing States’ Obligations to Protect Against Domestic Violence and to Provide Effective Remedies for its Victims ..........................8 1. Broad human rights documents ..............8 2. Documents specifically relating to women’s and children’s rights .......................16 3. Regional treaties and declarations ...........23 i C. International Human Rights Courts and Commissions Have Held Nations to Be in Violation of Treaty Obligations by Failing to Protect Women from Gender-based Violence .....................28 II. CONTRARY TO INTERNATIONAL LAW, DOMESTIC VIOLENCE HAS BEEN AND CONTINUES TO BE TREATED AS A PRIVATE FAMILY MATTER IN WHICH THE POLICE AND THE COURTS SHOULD NOT INTERVENE. A FAVORABLE RULING IN THIS CASE WOULD SEND A POWERFUL MESSAGE THAT, TO COMPLY WITH THEIR INTERNATIONAL OBLIGATIONS, AND PROVIDE WOMEN AND CHILDREN WITH EFFECTIVE PROTECTION FROM GENDER-BASED VIOLENCE, STATES MUST BOTH ENACT AND ENFORCE DOMESTIC VIOLENCE LEGISLATION ......................................34 A. State Authorities’ Longstanding Treatment of Domestic Violence as a Private Family Matter Remains One of the Chief Obstacles to Enforcing International Human Rights Norms and Protecting Women from Violence ..........................34 B. The Historical Treatment of, and Continued Police Indifference to, Domestic Violence in the United States .........................................37 C. Despite the Mandate of International Human Rights Instruments, Police in Other Countries Continue to Treat Domestic Violence as a Private Matter that Does not Merit Intervention ......................50 CONCLUSION ............................................60 INTEREST OF AMICI CURIAE .................... Appendix - 1 LEGAL MOMENTUM ...................... Appendix - 1 ASOCIACION PARA EL DESARROLO INTEGRAL DE PERSONAS VIOLADAS (ADIVAC) ....... Appendix - 2 ii BREAK THE CYCLE ........................ Appendix - 2 HARRIETT BUHAI CENTER FOR FAMILY LAW .......................................... Appendix - 3 CALIFORNIA WOMEN’S LAW CENTER ..... Appendix - 4 CENTER FOR GENDER & REFUGEE STUDIES Appendix - 5 CENTRAL AMERICAN RESOURCE CENTER . Appendix - 6 PROFESSOR JOHN CERONE ................ Appendix - 7 MONICA GHOSH DRIGGERS .............. Appendix - 7 HONORABLE MARJORY D. FIELDS ......... Appendix - 7 THE FEMINIST MAJORITY FOUNDATION ... Appendix - 9 HARVARD LAW SCHOOL GENDER VIOLENCE CLINIC ....................... Appendix - 10 PROFESSOR DINA FRANCESCA HAYNES .. Appendix - 11 HUMAN RIGHTS WATCH ................ Appendix - 11 THE IMMIGRATION LAW CLINIC AT THE UNIVERSITY OF DETROIT MERCY . Appendix - 11 THE INTERNATIONAL WOMEN'S HUMAN RIGHTS CLINIC .......................... Appendix - 12 INTERNATIONAL COMMITTEE OF THE NATIONAL LAWYERS GUILD ............. Appendix - 13 THE LEITNER CENTER FOR INTERNATIONAL LAW AND JUSTICE AT FORDHAM LAW SCHOOL ................................ Appendix - 14 THE WALTER LEITNER INTERNATIONAL HUMAN RIGHTS CLINIC .................. Appendix - 14 iii LOS ANGELES CHAPTER OF THE NATIONAL LAWYERS GUILD ......................... Appendix - 15 THE ALLARD K. LOWENSTEIN INTERNATIONAL HUMAN RIGHTS CLINIC .................. Appendix - 16 NATIONAL CENTER FOR WOMEN & POLICING ................................ Appendix - 16 THE NATIONAL CONGRESS OF BLACK WOMEN, INC. ..................................... Appendix - 17 NATIONAL ORGANIZATION FOR WOMEN FOUNDATION, INC . ...................... Appendix - 18 NATIONAL WOMEN’S LAW CENTER ...... Appendix - 18 PROFESSOR SARAH PAOLETTI ............ Appendix - 19 PROFESSOR SUSAN DELLER ROSS ......... Appendix - 19 SETON HALL UNIVERSITY SCHOOL OF LAW CENTER FOR SOCIAL JUSTICE ............. Appendix - 20 PROFESSOR DEBORAH M. WEISSMAN ..... Appendix - 21 WOMEN LAWYERS ASSOCIATION OF LOS ANGELES ............................... Appendix - 22 WORLD ORGANIZATION FOR HUMAN RIGHTS USA ..................................... Appendix - 22 iv TABLE OF AUTHORITIES Page CASES UNITED STATES OF AMERICA Bradley v. State 1 Miss. 156, 1824 WL 631 (1824) ........................39 Fernandez v. Wilkinson 505 F. Supp. 787 (D. Kan. 1980) ..........................8 Filartiga v. Pena-Irala 630 F.2d 876 (2d Cir. 1980) ...........................9, 10 Joyner v. Joyner 59 N.C. 322, 1862 WL. 892 (1862) .......................39 Skinner v. Skinner 5 Wis. 449, 1856 WL 3888 (1856) ........................39 State v. Oliver 70 N.C. 60, 1874 WL 2346 (1874) ........................40 State v. Rhodes 61 N.C. 453, 1868 WL 1278 (1868) .......................40 Thurman v. City of Torrington 595 F. Supp. 1521 (D. Conn. 1984) .......................40 United States v. Harrison 461 F.2d 1209 (Ct. App. D.C. 1972) ......................46 United States v. Yousef 327 F.3d 56 (2d Cir. 2003) ..............................20 v MISCELLANEOUS CASES Airey v. Ireland 32 Eur. Ct. H.R. (ser. A) (1979) ..........................32 A.T. v. Hungary Communication No. 2/2003, doc. A/60/38 (Part 1) ¶ 9.61(b) (2005) ...............................32 Bevacqua and S. v. Bulgaria 2008-V Eur. Ct. H.R. ..................................32 Case of E. and Others v. United Kingdom 2002-II Eur. Ct. H.R. 763 (2003) .........................32 Jessica Gonzales v. United States Petition No. 1490-05, Inter-Am. C.H.R., Report No. 52/07, OEA/SER.L./V/II.128, doc. 19 (2007) ................6 M.C. v. Bulgaria 2003-I Eur. Ct. H.R. 646 (2004) ....................31, 32, 36 Maria da Penha Maia Fernandes v. Brazil Case 12.051, Inter-Am. C.H.R., Report No. 54/01, OEA/Ser./L/V/II.111, doc. 20 rev. (2000) ...............29, 35 MZ v. Bolivia Case 12.350, Inter-Am. C.H.R., OEA/Ser./L/V/II.114, doc. 5 rev. (2001) .....................................29 Osman v. The United Kingdom 1998-VIII Eur. Ct. H.R. ................................36 R. v. Ewanchuk [1999] 1 S.C.R. 330 (Can.) ..............................28 State v. Baloyi 2000 (2) SA 425 (cc); 2000 (1) BCLR 86 (cc) (S. Afr. 1999) ...28 Vishaka v. State of Rajasthan A.I.R. 1997 S.C. 3011 (India) ............................28 vi CONSTITUTIONS United States Constitution, art. VI, cl. 2 .......................11 STATUTES UNITED STATES OF AMERICA 138 Cong. Rec. S4781-01 (daily ed. Apr. 2, 1992) ................15 Exec. Order No. 13,107 61 Fed. Reg. 68, 991 (Dec. 10, 1998) ......................13 D.C. Code §§ 16-1001 to 16-1005 .............................46 INTERNATIONAL Lei No. 11.340, de 7 de agosto de 2006, Col. Leis Rep. Fed. Brasil, __(34, t_):__, dez. 2007, translated in Maria da Penha Law: Law No 340 of Aug. 7, 2006 ...........................31 INTERNATIONAL DOCUMENTS CEDAW, General Recommendation 19: Violence Against Women (11th Sess. 1992) U.N. Doc. A/47/38 (1993) ...............21 CEDAW, art. 2 Dec. 18, 1979, G.A. Res. 34/180, U.N. GAOR, 34th
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