A Client's Crisis Becomes a Legal Crisis

A Domestic Violence Ruling Goes Global

CAROLINE BETTINGER-LOPEZ

Crisis lawyering is often associated with legal advocacy in the face of a natural disaster or an abrupt change in circumstances from the status quo.

Introduction

In 2005, the United States Supreme Court issued a vexing decision in Castle Rock v. Gonzales,¹ finding that a domestic violence victim had no property interest in the enforcement of her restraining order and that the police therefore had no constitutional duty to enforce the order under the Fourteenth Amendment. The case involved a tragic set of facts: six years earlier, Jessica Gonzales's three daugh­ters were killed after being abducted by their father, in violation of a domestic violence restraining order. Gonzales repeatedly called the police for help and showed them a restraining order against her estranged husband, but the police disregarded her entreaties and did virtually nothing. The Supreme Court's Castle Rock decision precipitated a legal crisis in the women's and anti-gender violence community. Advocates feared it would send a signal to police officers that restraining orders and mandatory arrest laws—which had been enacted in more than thirty states during the 1980s and 1990s specifically in response to police inaction in the domestic violence context—need not be enforced.

Gonzales demanded that action be taken to reverse the effects of the Su­preme Court's decision. She assembled a new legal team (which included my­self) that, working closely alongside our client, decided to shift tactics and fora. We ultimately filed the first international human rights case against the US government on behalf of a domestic violence victim. In August 2011, the Inter-American Commission on Human Rights (IACHR) issued a landmark decision, Lenahan v. United States, which found that the US government was responsible for human rights violations against Jessica Gonzales (who sub­sequently remarried and changed her last name to Lenahan) and her three deceased children. The case made international headlines and has been cited in judicial decisions and legislation around the world.²

In this chapter, I explore the strategy decisions that went into pursuing the case at the IACHR and my assessment of the outcome/results from those de­cisions. I will also discuss a new project I have undertaken, the Community Oriented and United Responses to Address Gender Violence and Equality (COURAGE) in Policing Project, as an outgrowth of Lenahan v. United States. Finally, I will explore the ways in which these issues play out today as the election of President Donald Trump, coupled with the rise of the #MeToo movement, have put these crises in sharp relief, particularly for domestic violence survivors who are women of color, immigrant women, and LGBTQI individuals.

Jessica Lenahan (Gonzales)'s Personal Tragedy and Prolonged Legal Battle

The story starts in 1999, when Jessica Gonzales's three young daughters— Rebecca, Katheryn, and Leslie Gonzales—were abducted on June 22 in Castle Rock, Colorado, by her abusive estranged husband (and the girls' father), Simon Gonzales, in violation of the terms of a judicial restraining order that, as part of a divorce proceeding, strictly limited his access to them.³ Colo­rado, like most states, had a “mandatory arrest” law in 1999 stating that “[a] peace officer shall use every reasonable means to enforce a restraining order” and attempt to arrest the restrained person upon finding probable cause of a violation.

On June 22, after she discovered the girls were missing, Jessica Gonzales repeatedly called the CRPD, reporting she feared for her daughters’ safety. The police repeatedly told her to wait for the return of her daughters, to call back later, or to wait for further police action that never materialized. When she was able to identify their location at Elitch Gardens, an amusement park in Denver, the CRPD said that it was outside their jurisdiction and that there was noth­ing they could do. Later in the evening, the police dispatcher who took her call chided her for being “a little ridiculous,” a sentiment subsequently echoed by the town’s police chief during an interview on a 60 Minutes television pro­gram. Jessica Gonzales was sent home when she showed up at the CRPD near midnight. At 3:30 a.m., nearly ten hours after the abduction, Simon Gonza­les, armed with a semiautomatic handgun purchased that evening, drove his truck to the CRPD and, standing beside his truck, opened fire at the police station. The police shot him dead and subsequently discovered the bodies of the three deceased children inside his bullet-ridden truck. Colorado au­thorities investigated the CRPD’s use of lethal force against Simon Gonzales but never conducted an investigation that squarely focused on the children’s deaths, resulting in uncertainty to this day about when, where, and how the children died.⁴ As described below, the state’s failure to investigate precipitated an added personal crisis for Jessica Gonzales involving her fundamental right to know the truth about the circumstances surrounding her daughters’ deaths.

The Gonzales tragedy made nationwide headlines, but most stories fo­cused on the family dynamics, not the police department’s response or re­sponsibility. One local newspaper headline following the tragedy read: “Man Dies in Shootout; Daughters Found Dead; Family Was Troubled, Friends Say.” As Jessica’s legal team later argued, these headlines reflected profound institu­tional and societal biases against domestic violence victims, the vast majority of whom are women. Why not focus instead on the profound failure of the justice system to protect this family?

Jessica Gonzales scoured the Yellow Pages to find an attorney, but no one wanted to touch the police. Finally, she found a commercial litigator, with no civil rights background, who took her case on a contingency-fee basis. She filed a lawsuit in federal district court in Colorado against the town of Castle Rock and three of its police officers under the federal civil rights statute, 42 U.S.C. §1983, alleging violations of the Fourteenth Amendment’s guarantee of due process of law. She argued that Castle Rock’s duty to enforce the restrain­ing order against her estranged husband created a property interest under Colorado law and that she was entitled, at the very least, to the town’s rea­soned consideration and an explanation for its inaction (i.e., a fair procedure) as a matter of procedural due process (PDP). She also argued that the police violated her and her children's substantive due process (SDP) rights when they failed to take reasonable steps to protect her children from the real and im­mediate risk posed by their father, whom the state itself had identified as a threat to them when it issued the restraining order.

On the government's motion, before even reaching the discovery phase of litigation, the district court dismissed both claims. On appeal, a panel of the Tenth Circuit Court of Appeals affirmed the district court's dismissal of the SDP claim but reversed the district court's ruling that Gonzales had failed to state a PDP claim.⁵ On rehearing en banc, the Tenth Circuit reached the same conclusion but ruled that the individual police officers were entitled to a defense of qualified immunity.

In rejecting the SDP claim, the Tenth Circuit relied on DeShaney v. Win­nebago Cty Dep’t of Soc. Serv., 489 U.S. 189 (1989), which holds that the sub­stantive guarantees of the Fourteenth Amendment's Due Process Clause do not generally require the government to protect an individual from third- party acts of violence, absent the rare circumstances when state actors either created or exacerbated the danger faced by an individual. Castle Rock ap­pealed, and the Supreme Court granted certiorari on the PDP claim.

The Supreme Court's decision to hear Castle Rock worried many women's and civil rights advocates in the United States. The Court rarely took on cases concerning private acts of violence—and when it did, it usually ruled against the victim. DeShaney, described above, involved the failure of child protective services to respond to calls from a mother expressing concern over potential abuse of her son Joshua by his father. Ultimately, the father inflicted grave in­jury upon Joshua. The Supreme Court found that “[w]hile the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulner­able to them” (DeShaney, 489 U.S. at 201). The Court found that the state of Wisconsin was immune from liability under the Due Process Clause because it had merely acquiesced in—but not contributed to—the victim's danger. Jus­tice Blackmun issued a famous dissent:

Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes... “dutifully recorded these incidents in [their] files.” It is a sad commentary upon Amer­ican life, and constitutional principles-so full of late of patriotic fervor and proud proclamations about “liberty and justice for all”-that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly re­tarded.

A decade later, in United States v. Morrison, 529 U.S. 598 (2000), the Court struck down as unconstitutional a private right of action for victims of gender-motivated crimes, such as domestic and sexual violence, against their abusers. Congress had created this private right of action under the 1994 Violence Against Women Act, in light of a massive effort in the 1990s to rec­ognize domestic violence as a civil rights violation that was of “national,” and not merely “local,” import.

Given this precedent, advocates worried that Castle Rock would become the third case in a trilogy of bad case law concerning private acts of violence impacting women and children. After a series of strategic planning calls with leading antiviolence, women’s rights, children’s rights, and civil/human rights organizations, among others, the ACLU Women’s Rights Project (WRP) offered to coordinate an amicus brief effort and assist with developing a communica­tions strategy. As a young attorney at ACLU WRP, I coordinated this effort.

Ultimately, more than 110 organizations and individuals filed nine amicus briefs in support of Jessica Gonzales. These included briefs from domestic vio­lence advocacy organizations about the history of domestic violence restraining orders and mandatory arrest laws; a brief from policing organizations on good practices in police response to domestic violence; a brief from international law scholars offering a human rights analysis of the case; briefs focusing on the children’s rights and elders’ rights dimensions of the case; and briefs offering a deeper legal analysis of the constitutional issues raised in the case.⁶

The case made national headlines and was featured on 60 Minutes, Good Morning America, Nancy Grace, and many other shows. To the shock of many, Castle Rock police chief Tony Lane pushed back on any notion of wrongdo­ing and, displaying a profound misunderstanding of the dynamics of family violence, remarked on 60 Minutes that no one has a crystal ball and even asked “[W]hat safer place could children be than with one of their parents, the mother or the father?” While the American public easily understood and supported Jessica Gonzales’s basic plea—that her “restraining order should be worth the piece of paper it’s printed on”—her lawyer’s efforts to persuade the Supreme Court proved far more daunting.

Castle Rock was one of the last decisions that the Supreme Court an­nounced during that term. As Justice Scalia began to read the opinion of the Court on June 27, 2005, he quipped: “I thought Castle Rock was a 1920s dance but it is also a Town in Colorado.”⁷ The decision that Justice Scalia proceeded to read brought Jessica Gonzales's personal crisis to a distinctly new level— and precipitated the next legal crisis for our movement.

Writing for a 7-2 majority, Justice Scalia reversed the Tenth Circuit's en banc decision and held that Gonzales had no personal entitlement under the Due Process Clause to police enforcement of her restraining order.⁸ Despite the Colorado legislature's repeated use of the word “shall” in the mandatory arrest law, the Court explained: “We do not believe that these protections of Colorado law truly made enforcement of restraining orders mandatory.” It was also unclear, the Court thought, whether the preprinted notice on the back of the restraining order required the police to arrest Simon Gonzales or enforce the order—further evidence of police discretion over enforcement. The Court also challenged the presumption that the statute was intended to give victims “a personal entitlement to something as vague and novel as en­forcement of restraining orders,” rather than simply protect the public interest in punishing criminal behavior. Finally, the Court reasoned that, even assum­ing Jessica Gonzales had overcome these obstacles, “it is by no means clear that an individual entitlement to enforcement of a restraining order could constitute a ‘property' interest for purposes of the Due Process Clause.” The Court concluded that third-party benefits from having someone else arrested for a crime are a matter of state common-law or statutory tort claims—not the Fourteenth Amendment's Due Process Clause.

In dissent, Justice Stevens, joined by Justice Ginsburg, chided the majority for ignoring the clear language and intent of the Colorado statute, which, like other domestic violence mandatory arrest statutes nationwide, was passed in response to a persistent pattern of nonenforcement of domestic violence laws. The express language of the statute, they asserted, was “unmistakabl[y]” intended to remove police discretion over whether to arrest perpetrators. “[T]he crucial point,” the dissent argued, “is that, under the statute, the police were required to provide enforcement; they lacked the discretion to do noth­ing.” The statute's mandate, the dissent concluded, “undeniably create[d] an entitlement to police enforcement of restraining orders.” The entitlement to have the restrained person arrested was clearly for the benefit of recipients of restraining orders—not for the benefit of the community at large as the majority had improperly concluded in its overly formalistic analysis. The en­titlement to police protection, Justices Stevens and Ginsburg found, was akin to entitlements to other government services that constituted “concrete” and “valuable” property under the Due Process Clause, such as public education and utility services.

A Legal Crisis and a Personal Crisis

The Supreme Court’s ruling precipitated a personal crisis for Jessica Lenahan. The Court’s decision, which arose from a Fed. R. Civ. P. 12(b)(6) motion to dismiss, abruptly ended the case, denying Jessica (still going by her married name Gonzales) the opportunity to engage in a meaningful discovery pro­cess. She never had the opportunity to collect evidence from Castle Rock, depose witnesses, or present evidence at trial. And no state court avenues were available to her because of the impossibly high threshold for overcoming the blanket of immunity extended to governmental actors under Colorado law. Gonzales stood in disbelief that she had no legal means to hold the indi­vidual officers and the CRPD accountable for grave missteps that profoundly changed the course of her life. Adding to her crisis of confidence in the US legal system was her own personal financial crisis: in the wake of the trag­edy, the primary source of family income and benefits (Simon Gonzales) was gone, and a woman who had offered Jessica Gonzales support ultimately swindled her savings and destroyed her credit.

Additionally, and crucially for Jessica Gonzales, the Court’s ruling meant that she might never uncover information pertaining to the circumstances surrounding her daughters’ deaths. Nearly everyone in the case—even Gon­zales’s attorney—had summarily concluded that the children had undoubt­edly been killed by their father. Indeed, Simon Gonzales had purchased a gun that evening from a private seller, thereby sidestepping the federal back­ground checks that should have prevented him from making such a pur­chase (due to the existence of the restraining order). Jessica Gonzales and her family, without challenging this conclusion, wanted definitive answers as to whether any of the police bullets that peppered Simon Gonzales’s truck en­tered the girls’ bodies. Despite extensive forensic analyses and autopsies of the girls that were performed, no definitive investigation ever matched the bullet holes in her daughters’ bodies with a specific gun. These forensic questions haunt her to this day.

The Supreme Court’s ruling in Castle Rock also precipitated a legal and policy crisis in the women’s and anti-gender violence community. Legal ex­perts expressed outrage that the Supreme Court would characterize a domes­tic violence victim’s entitlement to enforcement of her restraining order as “vague and novel,” considering the prevalence of legal protections for victims in the United States, and the express language of—and clear legislative his­tory behind—mandatory arrest laws, including in Colorado. Advocates feared that, after decades of (often successful) efforts to get law enforcement to take domestic violence seriously, the Castle Rock decision would send a signal to the police that they need not enforce restraining orders and would nourish an all-too-prevalent US culture of impunity for lazy, rogue, or misguided officers.

Meetings were scheduled to discuss legislative, litigation, and public policy strategies, as well as plans for engagement with state and local officials about Castle Rock’s implications. It was a critical moment for advocates to discuss how to best respond to the unmistakable message that the general public might take away from the case: that domestic violence restraining orders were not worth the paper they were printed on.

However, advocates generally agreed that, legally speaking, Castle Rock marked the end of the line for Jessica Gonzales. After a Supreme Court deci­sion rejecting her claims, what other remedy could she have? I remember calling Jessica Lenahan (formerly Gonzales—though I will hereinafter refer to her by her remarried name, Lenahan) and her mother, Tina Rivera, to dis­cuss the Supreme Court's devastating decision. While expressing profound disappointment, they quickly shifted their gaze forward. “What's next?” they asked. I remember being shocked that this family, who had already been through the unimaginable, had the fortitude and resilience to even imagine a “next.” I also had great anxiety about how I would break it to them that we had reached the end of the line in terms of legal recourse. When I began to say, with my US lawyer hat on, “There is no ‘next'; we've exhausted all rem­edies,” Lenahan responded, “Of course there is—everyone's got a boss! We can't just let this rest!”

Jessica Lenahan and Tina Rivera's persistence and vision ultimately spurred an inflection point in the case. They pushed me and the rest of the ACLU team (which at the time included the Human Rights Program's senior staff attorney, Steven Watt; and the Women's Rights Project's director, Lenora Lapidus, and deputy director, Emily Martin) to put our thinking caps on and, ultimately, to look to international human rights law as a potential site of justice. Although one amicus brief in the case had considered the chasm be­tween international human rights law and US constitutional law, I had never seriously considered bringing this quintessentially constitutional civil rights case before the international community.

Below I further describe how and why our team brought Lenahan's case to the Inter-American Commission on Human Rights. I will briefly note here that doing so marked a profound moment for me as a young lawyer in two respects: first, Lenahan v. United States of America (the case we filed before the IACHR) represented a real-life example of how human rights strategies could be employed as a last resort when domestic legal systems fail—even in the United States. This was a cornerstone principle of the “Bringing Human Rights Home” (BHRH) movement that was largely incubated in Columbia Law School’s Human Rights Institute during my time as a law student there, and especially following September 11, 2001. The BHRH movement, sup­ported by a network of more than 800 US lawyers (including legal aid, civil rights, and human rights attorneys), encourages US compliance with inter­national human rights law and the development of strategies to use human rights law in federal courts and domestic policy-making and debate.

Second, the Lenahan case taught me one of the most important lessons in my life, a point I emphasize to law students and lawyers: listen to your clients. They generally know better than anyone what’s best for themselves, and they can make critical contributions to legal or advocacy strategies and challenge lawyers to think outside the box. The innovative lawyering approach that my ACLU colleagues and I employed was available only because of our client’s demands and the space we made available to her (through many long phone calls and email correspondence) to articulate them to us.

International Human Rights Law: A Potential Avenue for Relief?

In fact, a little-known but promising legal avenue was available to Jessica Lena- han. The Washington, DC-based Inter-American Commission on Human Rights is an autonomous organ of the Organization of American States (OAS) created in 1959 “to promote the observance and defense of human rights” in OAS Member States, which include all thirty-five countries in North, South, and Central America and the Caribbean. Composed of seven independent human rights experts, the Inter-American Commission, along with the Inter­American Court of Human Rights (a panel of seven judges based in San Jose, Costa Rica), considers claims of human rights violations and issues written decisions on state responsibility. The IACHR and the court, which together form the “Inter-American system” for human rights, are largely unfamiliar to US lawyers and advocates. In other parts of the Western Hemisphere, how­ever, civil society and lawyers regularly use the system to hold governments accountable for corruption, abuse, negligence, and violence committed by state actors as well as private individuals. Having exhausted her domestic remedies, Lenahan could petition the IACHR for relief, claiming that the United States was responsible for human rights violations resulting from the CRPD’s inaction and the Supreme Court’s decision.

Because the US government has not ratified any Inter-American human rights treaties, human rights complaints against the United States are brought before the Commission under the American Declaration on the Rights and Duties of Man and the OAS Charter. Unlike contemporary human rights trea­ties, the American Declaration, drafted in 1948, does not contain a “general obligations” clause that requires states to respect, ensure, and promote guar­anteed rights and freedoms through the adoption of appropriate or necessary measures. However, signatories to the OAS Charter (including the United States) are legally bound by the American Declaration's provisions, and the Commission has consistently applied “general obligations” principles when interpreting the wide spectrum of rights set forth in the American Declara­tion. Moreover, Inter-American jurisprudence directs governments to pro­vide special protections to particularly vulnerable groups such as children, the mentally ill, undocumented migrant workers, indigenous communities, and domestic violence victims.

The IACHR is a victim-friendly forum that has produced groundbreak­ing human rights reports and recommendations and has made a signifi­cant impact in regard to on-the-ground change in many countries. When an aggrieved individual has exhausted her domestic legal remedies or has nowhere to turn for relief in her home country, she may submit a human rights petition to the IACHR. Ultimately, the Commission may hold hearings and issue a “merits decision” that analyzes the facts in light of international human rights law and include recommendations to the state. Although no enforcement mechanism exists to ensure state compliance with Commission decisions, these reports do carry significant moral and political weight and contribute to international standard-setting.

As I have discussed in my previous scholarship, Castle Rock had all the markings of a good IACHR test case: a horrific set of facts, a widely criti­cized US Supreme Court decision, an international human rights standard (described below) that directly conflicted with domestic precedent, a commu­nity of advocates and supporters asking “What can we do?,” and a petitioner who would not rest until justice was done. Alongside our client, the legal team weighed the possibilities and limitations of the IACHR as a forum for provid­ing Lenahan her day in court and for establishing international jurisprudence that directly contravened DeShaney.

But the Inter-American system had its drawbacks. The Commission is un­derfunded and prone to prolonged delays in its decision-making. The chances of getting a hearing at the IACHR are slim and unpredictable, and cases can drag on for years. Moreover, the US government, having declined to ratify the American Convention on Human Rights, routinely opposes IACHR cases brought against it on jurisdictional grounds. Although the Commission is an important institution in many parts of the Americas, its lack of recognition in the United States, coupled with enforcement limitations, make it a far less desirable avenue than a US court for pronouncing rights violations and pro­viding remedies, in the eyes of many US advocates.

When Jessica Lenahan learned of the Inter-American human rights sys­tem, she was hopeful that framing her case as a human rights violation could give her a forum to seek redress for her personal tragedy and initiate impor­tant legislative and policy reforms in the United States. Yet she and her law­yers, including myself, were wary of a system that has weaker “teeth” and far less credibility in the United States compared to a federal court.

After I painstakingly presented these pros and cons to Lenahan, she chose to move forward. She was inspired by the transnational nature of the IACHR, thought it could shame the United States into doing right by her and fu­ture victims, and felt that no other viable options were available. In 2005, my ACLU colleagues and I filed Lenahan v. United States before the IACHR, alleging violations of the American Declaration by the CRPD and the US courts.⁹ The petition shined a light on how out of touch the Supreme Court’s decisions in Castle Rock, DeShaney, and Morrison were. We sought to reframe domestic violence from a “private matter”—as depicted by that newspaper headline—and instead frame it as a societal epidemic that demands respon­siveness from government—local, state, and federal. We highlighted the gulf between DeShaney and the doctrine of affirmative obligations under interna­tional human rights law, which requires states to exercise “due diligence” and protect individuals known to be at risk from private or state-sponsored acts of violence.

Jessica Lenahan testified three times before the IACHR—an opportunity that was denied to her in the federal district court proceedings. She, her son Jessie, and her mother Tina submitted declarations that finally told the world their full version of their story.¹⁰ More than seventy individuals and organiza­tions submitted eight amicus briefs and two expert reports to the IACHR in support of Jessica Lenahan. Her case also caught the attention of other inter­national human rights bodies, including the United Nations Human Rights Committee, the United Nations Committee on the Elimination of Racial Dis­crimination, and the United Nations Special Rapporteur on Violence Against Women.

In 2011, the IACHR issued a landmark decision, finding the United States responsible for human rights violations against Lenahan and her children, specifically the rights to life, nondiscrimination, due process, and special pro­tections for children. The Commission found grave failures to protect the children’s lives and underscored that, when the government fails to protect women from domestic violence, it is a form of sex discrimination because domestic violence disproportionately affects women.

The IACHR concluded its decision with several recommendations to the United States. On the individual front, the Commission recommended that Jessica receive compensation and a thorough investigation into the policing failures in her case—a subject of recent heated conversations I have had with Colorado authorities. On the policy front, the Commission recommended that the US government improve its enforcement of restraining orders and “adopt public policies aimed at shattering stereotypes of domestic violence victims.”¹¹

Lenahan v. United States made history. It was the first time that an in­ternational tribunal found the United States responsible for human rights violations against a domestic violence victim. It created new channels for dip­lomatic and political pressure on the US State Department, and for dialogue with the US Department of Justice (DOJ) about implementing the Commis­sion's recommendations. In the years since, the Lenahan case has been cited in international and domestic case law and legislation throughout the world. It left Jessica Lenahan with a profound sense of vindication and pride even though she simultaneously remained uncertain as to the tangible results she would get from it all.

How Human Rights Strategies Can Make a Difference

The legal and personal crises precipitated by the CRPD's inaction and the Supreme Court's decision prompted Lenahan's legal team to pursue a shift in tactics and forum. As described above, the Inter-American system was a promising, albeit limited, venue for Lenahan. However, not every case is the right fit for review by the IACHR. So, when is the “right time” to look to international human rights law as a tool to supplement domestic-facing social justice struggles—particularly those in the United States?

In my previous scholarship/² I have identified five factors to consider when evaluating the potential efficacy of any given human rights-based approach— that is, why and when we should invoke human rights in a social justice cam­paign. The first factor, Survivor Dignity, addresses whether a human rights case/campaign reaffirms a victim's dignity by providing a forum for the in­dividual to mobilize change, feel empowered, and attain some closure in the wake of tragedy. The second factor, Coalition and Movement Building, probes whether the human rights approach provides a new space for synergies among groups who may operate in proverbial siloes, whose mandates may be narrow or locally focused, or whose grueling day-to-day work may impede big-picture aspirational thinking. The third factor, Normative Developments and Accountability Mechanisms, asks whether a given human rights case/cam- paign offers opportunities for normative developments that expand rights at the domestic or international levels, pushes beyond a cramped domestic legal framework, and/or holds rights violators accountable. The fourth factor, Po­litical Pressure, examines whether a human rights campaign can generate po­litical or diplomatic pressure on a country to fall in line with world opinion and practice. And the fifth factor, Public Opinion, concerns whether human rights messaging can influence public opinion and change hearts and minds, especially in areas—such as domestic violence—that have historically been understood, in law and in society, as “private matters.”

These five factors are the guideposts—and guardrails—of my international human rights law practice. Ideally, all five factors should be affirmatively pres­ent in a given human rights case or campaign; if they are not, I tell my clients, I teach my students, and I argue in my scholarship, then any lawyer should tread carefully before entering into the human rights space. The negative and unanticipated consequences of an overenthusiastic embrace of international human rights without a well-informed and locally grounded strategy are po­tentially significant: following such a path could raise unrealistic expectations of affected individuals and communities about the tangible outcomes from a human rights case or campaign, rendering them even more vulnerable, and could have long-term consequences for future advocacy.

So how do these factors play out in the case of Jessica Lenahan, and in light of the personal and legal crises that her case precipitated?

Factor One: Survivor Dignity—Lenahan describes the experi­ence of bringing a case before the IACHR as having her proverbial day in court, and reclaiming her dignity, through the ability to testify publicly and having an authoritative international human rights body declare that what happened to her was both legally and morally wrong. Her son Jessie and mother Tina also told their stories through declarations submitted to the IACHR—finding their voice recognized in the legal process for the first time. Lenahan has become an internationally recognized human rights champion and takes great comfort in this global solidarity, despite her continuing dis­appointment at the intransigence of Castle Rock and Colorado authorities, who have repeatedly refused to conduct the investigation into her daughters’ deaths that she continues to seek to this day. She recently completed a fellow­ship at Cornell Law School and is currently working as a spokesperson for the ERA Coalition to pass the Equal Rights Amendment, which is one state vote away from potential ratification.

Factor Two: Coalition and Movement Building—Lenahan’s voice has had special resonance in the United States, where advocates credit her for amplifying the importance of state accountability for fulfilling survi­vors’ human rights. The domestic violence and women’s rights advocacy com­munities galvanized around Lenahan’s IACHR case, inspired by the notion that “freedom from domestic violence is a fundamental human right.” This solidarity manifested itself through the significant number of US domestic violence and women's rights advocates who signed on as amici in support of Lenahan's case before the IACHR¹³—a forum previously unfamiliar to most of these advocates—as well as their support for HOME TRUTH, a documen­tary film about Lenahan's life and her case, which premiered at the Human Rights Watch Film Festival in 2017 and on PBS in 2018?⁴ The film has been featured at conferences and screened at universities across the United States and around the world; Jessica, the filmmakers, and I have spoken before thou­sands of people at post-showing “talk-backs.” A shorter, eight-minute video posted on YouTube titled “Domestic Violence & Human Rights: Lenahan v. USA” documents Jessica's case and the movement it represents?⁵

Factor Three: Normative Developments and Account­ability Mechanisms—Although the US government officially rejected the IACHR's decision on technical and jurisdictional grounds, the decision has had an undeniable effect on federal policy. Beginning in 2011, the US Department of Justice (DOJ) began stepping up its investigations into dis­criminatory law enforcement responses to domestic violence and sexual as­sault in several cities—the exact type of government action that the IACHR had called for?⁶ Then, in 2015 (while I was working as White House Advisor on Violence Against Women), United States Attorney General Loretta Lynch released official guidance on Identifying and Preventing Gender Bias in Law Enforcement Response to Sexual Assault and Domestic Violence (hereinafter “DOJ Guidance”)—a step originally proposed by myself and other advocates who supported Lenahan's lawsuit?⁷ A year later, the DOJ gave nearly $10 mil­lion in grants to police departments and experts in gender violence and polic­ing to implement the DOJ Guidance nationwide?⁸

From those grants, the International Association of Chiefs of Police devel­oped a national demonstration site initiative to strengthen law enforcement response to domestic and sexual violence, involving six police departments across the United States¹⁹; additionally, the Police Executive Research Forum, the Battered Women's Justice Project, and other organizations have developed reports and training and technical assistance programs to address gender bias in policing and improve the law enforcement response to domestic violence and sexual assault.²⁰

The Lenahan decision, as well as the increasing federal gaze on gender bias in institutional responses to domestic and sexual violence, have also had an effect at the local and state levels. Following the 2011 IACHR decision, more than thirty municipalities adopted resolutions and publications recognizing “freedom from domestic violence is a basic human right,” many of them cit­ing Lenahan’s case.²¹ These resolutions have been linked to concrete law and policy changes in Ithaca, New York; Austin, Texas; and Miami, Florida. In Illi­nois, the state legislature passed the Illinois Sexual Assault Incident Procedure Act, which addresses gender bias in law enforcement and medical responses to victims.

The Lenahan case has also had regional and global reverberations: it is taught in textbooks and law schools around the world, and it has been cited by a high court in Kenya,22 the European Court of Human Rights/³ and the International Criminal Court/⁴ A representative from the IACHR recently told Lenahan at an open forum that her case created groundbreaking inter­national jurisprudence and is invoked on a daily basis at the IACHR’s Rap­porteurship on Women.

factor four: political pressure—All of the above-described federal, state, and local policy developments undeniably emanated, at least in part, from the domestic outrage and international embarrassment created by the Supreme Court’s Castle Rock decision. (It was also essential, of course, that the DOJ under President Barack Obama was attuned to bias issues and was open to expanding its antibias work to focus on gender bias in policing.) In a powerful scene in HOME TRUTH, a DOJ representative approaches Jes­sica Lenahan after an IACHR hearing with tears in her eyes and says that, although they were sitting on opposite sides of the table, they are really on the same team. State Department representatives told me privately over the years that Castle Rock created diplomatic obstacles in US foreign policy work as the United States sought to hold foreign governments to higher accountability standards for protecting domestic violence victims than the standards created by our own Supreme Court.

Even back in 2007, Representative Jerry Nadler of New York sponsored an amendment to the Violence Against Women Act, called the Jessica Gonzales Victim Assistance Act, to commit $5 million to placing special victim assis­tants to act as liaisons between local law enforcement agencies and victims of domestic violence, dating violence, sexual assault, and stalking in order to improve the enforcement of protection orders. This act, Nadler emphasized, was created to “restore[] some of the effectiveness of restraining orders that the Supreme Court took away with its [Castle Rock] ruling.”²³ Prior to the IACHR decision, Nadler privately told Lenahan that he thought it would be an international embarrassment “for an international body to call the United States a violator of the rights of women and children.’^⁶

factor five: public opinion—As described above, Lenahan’s voice and case have reverberated throughout law and society, in the United States and globally. In addition to the legal and policy developments described above, Lenahans message has been captured through film (HOME TRUTH, described above), and the Castle Rock decision is spurned in the recent Broadway hit What the Constitution Means to Me. As described in a New Yorker article, the show's playwright and star, Heidi Schreck, “draws connec­tions: between her mother's abusive childhood and Castle Rock v. Gonzales; between her great-great-grandmother's ‘melancholia' and her own reproduc­tive freedom, protected by Roe v. Wade.” Schreck dedicated her June 20, 2019, show to Jessica Lenahan in commemoration of the twenty-year anniversary of Rebecca's, Katheryn's, and Leslie's deaths. Lenahan's friends, family, and sup­porters from around the country—even several generations of law students who worked on her case—attended the play and honored her afterward.²⁷ For Lenahan, these moments of public recognition and narrative change about domestic violence create a counterbalance to the ongoing impact of her per­sonal crisis.

Ongoing Struggles and Looking Forward

None of this is easy or clean. Jessica Lenahan still struggles with her tragedy every day of her life—especially with the pain of still not knowing the cir­cumstances surrounding her children's deaths. I sometimes struggle with a professional and ethical crisis of sorts, wondering whether I have effectively represented this survivor through my legal and nonlegal forms of advocacy and whether continuing to push for an investigation has antitherapeutic effects. In light of Colorado's recent “blue wave” in the 2018 elections, Lena- han felt strongly that we should try to make progress in our ongoing demands for an investigation into the children's deaths. After many phone calls and meetings, the town of Castle Rock committed in June 2019 to producing a report for Lenahan reviewing all evidence in their possession and providing an analysis of what is known regarding the circumstances of the girls' deaths in a report. But I constantly aim to manage my own and my client's expecta­tions: this is an uphill battle. All statutes of limitations have passed, legislation that provides individual remedies is not permitted under the Colorado Con­stitution, and there are many powerful forces in Colorado who are adamantly opposed to reopening this case.

I have learned from fifteen years of work on Lenahan's case that one must measure success on multiple scales—and that crisis can be both protracted and prolonged. There is the ongoing journey for “justice for Jessica,” and there is the ongoing effort to change law, policy, and hearts and minds on a broader scale. Recently, I have undertaken a new clinic project that builds directly on my experiences litigating the Lenahan case and working in the Obama

White House: the COURAGE (Community Oriented and United Responses to Address Gender Violence and Equality) in Policing Project, which aims to implement the 2015 DOJ Guidance by engaging marginalized commu­nity groups at the local, national, and global levels.²⁸ COURAGE works with community-based organizations, police departments, and national leaders on gender violence and policing to enhance law enforcement responses to do­mestic violence and sexual assault, with a particular focus on women of color, immigrant women, disabled women, indigenous women, LGBTQI individu­als, and other underserved populations.

Through the COURAGE Project, we are gathering data on the local level to replicate national data concerning police response to domestic and sexual violence. For instance, a 2015 survey of victims who called the National Do­mestic Violence Hotline revealed a strong reluctance on the part of many victims to turn to law enforcement for help, as well as significant barriers that many victims encounter when they do seek law enforcement assistance. We are working with police departments to emphasize the importance of improv­ing responses and recognizing and addressing bias. Indeed, while domestic and sexual violence calls represent the majority of 911 calls to many police departments, and are among the most dangerous assignments for respond­ing officers, improving the response to gender violence is often not a law en­forcement priority. Moreover, we are trying to change national conversations about bias in policing, which have tended to focus more on race and national origin than on sex or gender identity and often fail to address the intersection of these issues. These issues are especially important in the contemporary (Trumpian) crisis context for domestic violence survivors, especially women of color, immigrant women, and LGBTQI individuals.

I am also engaged on COURAGE themes in the international space. In 2018, the COURAGE team from the University of Miami School of Law Human Rights Clinic, joined by prominent national organizations focused on gender violence and policing, filed a third-party intervention brief before the European Court of Human Rights in a case concerning gender bias and officer-perpetrated domestic violence in the country Georgia. We argued for a heightened standard of state responsibility in cases of officer-perpetrated gen­der violence; if the European Court of Human Rights adopts this approach, it could set a new standard internationally and underscore the importance of creating cultures of accountability in the gender violence/law enforcement arena. As of November 2019, the case is still pending before the European Court.

As the author Joshua C. Wilson has emphasized, “at its core, cause lawyering is distinguished from traditional lawyering in that it is done in the service of a political or social cause that seeks to rearrange existing state or social power relations.”²⁹ Lenahans case is, in many ways, quintessential cause lawyering, in that it sought to address a gap in the law that reflected historic patriar­chal views about family violence and women's place in society. Yet her case is also a case study in client-centered lawyering: without her vision, persistence, and support, her lawyers would never have arrived at the inflection point in the case, where we identified the Inter-American human rights system as a forum for seeking justice for Lenahan or transformative change for the cause her case represented. Lenahan's personal crisis and legal crisis crisscrossed in curious ways over the years, ultimately resulting in transformative change for Lenahan and for the advocates who supported and represented her. She has also changed hearts and minds and challenged our country—indeed, our world—to recognize the human rights and dignity of survivors in a whole new way.

NOTES

1 Castle Rock v. Gonzales, 545 U.S. 748 (2005).

2 The formal name of the case is Jessica Lenahan (Gonzales) v. United States, but I will refer to it as Lenahan v. United States for the sake of simplicity.

3 The facts presented in this chapter reflect the factual findings of the Inter­American Commission on Human Rights in Lenahan v. United States, Case 12.626, Inter-Am. Comm'n. H.R., Report No. 80/11 (2011).

4 Caroline Bettinger-Lopez, Human Rights at Home: Domestic Violence as a Human Rights Violation, 40 Colum. Hum. Rts. L. Rev. 19 (2008).

5 Gonzales v. City of Castle Rock, 366 F.3d 1093, 1117 (10th Cir. 2004) (en banc).

6 See the following amicus curiae briefs filed in support of Jessica Gonzales: Brief of International Law Scholars et al.; Brief of the National Ass'n of Women Lawyers and the National Crime Victims Bar Ass'n; Brief of the American Civil Liberties Union et al.; Brief of National Black Police Ass'n et al.; Brief of National Network to End Domestic Violence et al.; Brief of AARP; Brief of the Family Violence Prevention Fund et al.; Brief of Peggy Kerns, Former Member of the House of Representatives of the State of Colorado, and the Texas Domestic Violence Direct Service Providers; Brief of National Coalition Against Domestic Violence and National Center for Victims of Crime.

7 Opinion Announcement, Castle Rock v. Gonzales, 545 U.S. 748 (2005) (No. 04-278), www.oyez.org.

8 Castle Rock v. Gonzales, 545 U.S. 748, 768 (2005).

9 Lenahan v. United States, Case 12.626, Inter-Am. Comm'n. H.R., Report No. 80/11 (2011).

See Declarations of Jessica Lenahan (2006), Jessie Rivera (2008), and Tina Rivera (2008), available at www.law.columbia.edu and www.aclu.org.

Lenahan v. United States, Case 12.626, Inter-Am. Comm’n. H.R., Report No. 80/11 (2011).

Bettinger-Lopez, Human Rights at Home.

The amicus briefs filed before the IACHR can be found at www.law.columbia.edu. For more information about Home Truth, see www.hometruthfilm.com.

See the video “Domestic Violence & Human Rights: Lenahan v. USA,” www. youtube.com/watch?v=UvPtMCrl4j4.

The DOJ initiated investigations into gender bias in police response to domestic violence and/or sexual assault in New Orleans, Puerto Rico, Missoula, Maricopa County, Newark, and Baltimore. See Identifying and Preventing Gender Bias in Law Enforcement Response to Sexual Assault and Domestic Violence, Resource Guide, www.justice.gov.

Identifying and Preventing Gender Bias in Law Enforcement Response to Sexual Assault and Domestic Violence, U.S. Dep’t of Justice (Dec. 2015).

Department of Justice Awards $9.85 Million to Identify and Prevent Gender Bias in Policing, U.S. Dep’t of Justice (Oct. 5, 2016).

See Identifying and Preventing Gender Bias, Int’l Ass’n of Chiefs of Police.

See, e.g., www.ncdsv.org.

See Freedom from Domestic Violence as a Fundamental Human Right Resolutions, Presidential Proclamations, and Other Statements of Principle, Cornell Law School. C.K. (A Child) & 11 Others v. Commissioner of Police/Inspector General of the National Police Service & 3 Others, Petition 8 of 2012, High Court of Meru (2013). Valiuliene v. Lithuania, Application no. 33234/07, European Court of Human Rights, Mar. 26, 2013.

The Prosecutor v. Jean-Pierre Bemba Gombo (re Situation in the Central African Republic), Int’l Criminal Court, Oct. 17, 2016.

Floor Statement on the Jessica Gonzales Victim Assistance Program, Congressman Jerry Nadler (July 25, 2007).

See Bettinger-Lopez, Human Rights at Home, 64.

Michael Schulman, Heidi Schreck Takes the Constitution to Broadway, The New Yorker (Feb. 11, 2019)

For more information on the COURAGE Project, see www.law.miami.edu. Joshua C. Wilson, It Takes All Kinds: Observations From an Event-Centered Approach to Cause Lawyering, 50 Stud. Law, Pol., & Soc’y 169, 170 (2009).