Violence Against Women in the United States and the State’s Obligation to Protect Civil Society briefing papers on community, military and custody 2011 Violence Against Women in the United States and the State’s Obligation to Protect Civil Society briefing papers on community, military and custody submitted to the United Nations Special Rapporteur on Violence Against Women, Rashida Manjoo in advance of her Mission to the United States of America January 24 – February 7, 2011 Full document also available at: www.law.virginia.edu/vaw ACKNOWLEDGEMENTS The authors wish to acknowledge Rashida Manjoo, the U.N. Special Rapporteur on Violence Against Women, for her deep commitment to this work, her profound intellectual contributions, and generosity of time and spirit in meeting with civil society. Shirley Lanta Wang (Duke University School of Law JD‘11) for the cover and publication design and layout Katrina Anderson, Human Rights Counsel, US Legal Program Center for Reproductive Rights University of Virginia School of Law students: Adrienne Boone (JD ’10); Elisa Chen (JD ’13); Rebecca Dalton (JD ’13); Caitlin Gregg (JD ’11); Elizabeth Horner (JD ’11); Julia O’Halloran (JD ’13); Emily Ponder (JD ’14); Sarika Reuben (JD ’13); Marina Warner (JD ’11) With Great Appreciation for funding the publication of this compilation: University of Virginia Center for International Studies Dean Claudio Grossman and American University, Washington College of Law Allard K. Lowenstein International Human Rights Clinic, Yale Law School National Organization for Women Foundation University of Virginia School of Law Human Rights Clinic American Civil Liberties Union Women’s Rights Project University of Miami School of Law Human Rights Clinic Dean Louis Bilionis and the University of Cincinnati College of Law Clinical Program Indian Law Resource Center Center for Reproductive Rights Stephanie Ortoleva / Women Enabled ii CHAPTER AUTHORS The authors do not necessarily endorse all of the positions expressed in other chapters. DUE DILIGENCE OBLIGATIONS Director, International Women’s Human Rights Clinic, CUNY School of Law Calleigh McRaith (JD ‘12); Clare Boronow (JD ‘12); Suzanne Bradley (JD ‘11); Vivian Kim (JD ‘12) Cheryl Thomas, The Advocates for Human Rights Deena R. Hurwitz, Associate Professor of Law, Director, with the support of International Human Rights Law Clinic Sandra Jezierski, Nilan Johnson Lewis, P.A.; Casey R. University of Virginia School of Law Schultz, Volunteer Atty, Advocates for Human Rights Kirsten Matoy Carlson, Indian Law Resource Center; Assistant Professor of Law, Wayne State University Law ROLE OF GUNS School Christina M. Vogt, Ph.D., Global Feminist Strategies Task Force, National Organization for Women DOMESTIC VIOLENCE Supplement on Gun Violence Against Caroline Bettinger-Lopez, Assoc. Professor Clinical American Indian and Alaska Native Women Legal Education, Director, Human Rights Clinic, University of Miami School of Law Kirsten Matoy Carlson, Indian Law Resource Center; with the support of Assistant Professor of Law, Wayne State University Law Farrah Elchahal (JD ‘12); Ana Romes (JD ‘12); Miraisy School Rodriguez (JD ‘12); Monika Siwiec (JD ‘11) Clare Boronow (JD ‘12) Christina Brandt-Young, New York Legal Assistance University of Virginia School of Law Group Kirsten Matoy Carlson, Indian Law Resource Center; WOMEN IN THE MILITARY Assistant Professor of Law, Wayne State University Law School Rachel Natelson,, Legal Counsel and Board Member Brittany Stalsberg, Policy Associate Gabrielle Davis, Battered Women’s Justice Project Service Women’s Action Network Margaret Drew, Visiting Professor of Clinical Instruction; Acting Director, Domestic Violence Clinic, WOMEN IN DETENTION University of Alabama School of Law Deborah LaBelle, Esq. Rebecca Landy, John Jay College of Criminal Justice* *for identification purposes only Robin Levi, Justice Now with the support of with the support of Adam Dubin, Pace University School of Law (JD ‘12) Virginia Taylor, U.C. Hastings School of Law (JD ‘12) Rachel Natelson, Nat’l Law Center on Homelessness and Brenda V. Smith, Professor and Acting Director of the Poverty Clinical Program, Community and Economic Development Law Clinic, Director, Project on Addressing Sandra Park, ACLU Women’s Rights Project Prison Rape, American University, Washington College of Law Jessica Rubenstein, Center for Reproductive Rights with the support of (former legal intern), Legal Fellow, Law Students for Ashley Prather (JD ‘12); Jaime M. Yarussi, M.S. Reproductive Justice, NYU School of Law (JD ‘10) Danielle Lang (JD ‘12); Caitlin Mitchell (JD ‘12) Cynthia Soohoo, US Legal Program, Center for Hope Metcalf, Supervising Attorney, Allard K. Lowenstein Reproductive Rights (former director); Professor and International Human Rights Clinic at Yale Law School iii ORGANIZATIONAL CONTRIBUTORS Allard K. Lowenstein International Human Rights National Organization for Women Clinic 1100 H Street NW, 3rd floor Yale Law School Washington, DC 20005 P.O. Box 208215 202.628.8669 New Haven, CT 06520 www.now.org 203.432.9404 1 New York Legal Assistance Group 7 Hanover Square, 18th Floor American Civil Liberties Union New York, NY 10004 Women’s Rights Project 212.613.5086 125 Broad Street, 18th Floor www.nylag.org New York, NY 10004 212.519.7871 Service Women’s Action Network www.aclu.org/womensrights P.O. Box 1758 New York, NY 10156 American University, Washington College of Law 212.683.0015 Project on Addressing Prison Rape servicewomen.org 4801 Massachusetts Avenue, NW Room 442 Washington, DC 20016 The Advocates for Human Rights 202.274.4261 330 Second Avenue South, Suite 800 www.wcl.american.edu/nic Minneapolis, MN 55401 612.341.3302 Battered Women’s Justice Project www.theadvocatesforhumanrights.org 1801 Nicollet Ave South, Suite 102 Minneapolis, MN 55403 University of Cincinnati College of Law 800.903.0111 ext 1 / 612.824.8768 Domestic Violence and Civil Protection Order Clinic www.bwjp.org P.O. Box 210040 Cincinnati, OH 45221 Center for Reproductive Rights 513.556.1236 120 Wall Street, 14th Floor www.law.uc.edu/institutes-centers/rgsj/dvcpoc/about New York, NY 10005 917.637.3616 University of Miami School of Law www.reproductiverights.org Human Rights Clinic 1311 Miller Drive Indian Law Resource Center Coral Gables, FL 33146 602 North Ewing Street 305.284.5923 Helena, MT 59601 law.miami.edu/hrc 406.449.2006 www.indianlaw.org University of Virginia School of Law International Human Rights Law Clinic Justice Now 580 Massie Road 1322 Webster Street, Suite 210 Charlottesville, VA 22903 Oakland, CA 94612 434.924.4776 510.839.7654 www.law.virginia.edu/humanrights www.jnow.org National Law Center on Homelessness & Poverty 1411 K Street NW, Suite 1400 Washington, DC 20005 202.638.2535 www.nlchp.org iv Table of Contents TABLE OF CONTENTS ACKNOWLEDGEMENTS ii ACRONYMS ix INTRODUCTION 1 DUE DILIGENCE OBLIGATIONS OF THE UNITED STATES IN THE CASE OF VIOLENCE AGAINST WOMEN 9 I. INTRODUCTION 10 II. THE DUE DILIGENCE STANDARD FOR VIOLENCE AGAINST WOMEN 10 III. THE INCORPORATION OF INTERNATIONAL LAW AND STANDARDS INTO UNITED STATES LAW 11 A. Resistance to the harmonization of international and domestic law 11 B. Non-self-executing treaties and the federalist system 12 C. United States exceptionalism 14 IV. UNITED STATES CONSTITUTIONAL AND STATUTORY PROVISIONS AFFECTING VIOLENCE AGAINST WOMEN 16 A. Constitutional protections and limitations 16 B. Statutory protections and limitations: the Violence Against Women Act 18 V. REMEDIES AND REPARATIONS FOR VIOLENCE AGAINST WOMEN IN THE UNITED STATES 21 A. Remedies and reparations in the United States legal system 21 B. Remedies available for VAW in the United States 22 VI. THE UNITED STATES’ DUE DILIGENCE OBLIGATIONS FOR VIOLENCE AGAINST AMERICAN INDIAN AND ALASKA NATIVE WOMEN 30 A. The relationship between the United States government and American Indian and Alaska Native nations 30 B. International laws and standards that create due diligence obligations for the United States on behalf of American Indians and Alaska Natives 32 C. United States domestic legal obligations affecting violence against Indian women 34 VII. CONCLUSION 36 DOMESTIC VIOLENCE IN THE UNITED STATES 37 I. INTRODUCTION 38 II. FEDERAL LEGAL AND LEGISLATIVE DEVELOPMENTS 41 A. VAWA does not provide a federal court remedy for victims of gender-based violence 42 B. VAWA is non-binding on states and is primarily a source of grants 43 C. VAWA grants, while laudable, do not fulfill the critical needs of domestic violence victims 44 D. VAWA will be reauthorized in 2011 45 v Table of Contents III. DOMESTIC VIOLENCE AND THE CRIMINAL JUSTICE SYSTEM 46 A. Background 46 B. Prevalence, effects, and consequences 48 C. Law and policy problems 53 D. Recommendations 56 IV. DOMESTIC VIOLENCE, CHILD CUSTODY, AND ECONOMIC CONSIDERATIONS IN FAMILY LAW LITIGATION 57 A. Background and prevalence 57 B. Law and policy problems 58 C. Effects and consequences 60 D. Recommendations 62 V. DOMESTIC VIOLENCE, REPRODUCTIVE RIGHTS, & REPRODUCTIVE/ SEXUAL HEALTH 63 A. Background 63 B. Prevalence 64 C. Effects and consequences 65 D. Law and policy problems 67 E. Recommendations 69 VI. ECONOMIC (IN)SECURITY, EMPLOYMENT, AND HOUSING 70 A. Domestic violence and poverty 70 B. Domestic violence and employment 73 C. Domestic violence and housing 75 VII. VIOLENCE AGAINST AMERICAN INDIAN WOMEN 77 A. Background, prevalence, effects, and consequences 77 B. Law and policy problems 78 C. Recommendations 85 VIII. DOMESTIC VIOLENCE AND TRAFFICKING 86 A. Background 86 B. Prevalence 87 C. Effects and consequences 88 D. Law and policy problems 90 E. Recommendations 93 IX. CONCLUSION 94 THE ROLE OF GUNS IN PERPETRATING VIOLENCE AGAINST WOMEN IN THE UNITED STATES 95 I. INTRODUCTION 96 II. BACKGROUND 96 III. PREVALENCE 97 A. Gun violence is extremely prevalent in the United States, and women are more likely to be victims of gun violence than men 97 B. Familicide 98 C. Highway serial murders of women involve guns 99 D. The correlation between carrying concealed weapons and violence against women deserves heightened research 100 E. Effects and consequences 102 IV. LAW AND POLICY 103 A.