109C

AMERICAN BAR ASSOCIATION

ADOPTED BY THE HOUSE OF DELEGATES

AUGUST 3-4, 2015

RESOLUTION

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109C

RESOLVED, That the American Bar Association recognizes freedom from domestic, dating and sexual violence and stalking and all other forms of gender-based violence as a fundamental human right.

FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial, local, and tribal governments to recognize freedom from domestic, dating and sexual violence and stalking, and all other forms of gender violence, as a fundamental human right, and to enact and adopt resolutions affirming the right of all women, men and children to live free from domestic, dating and sexual violence and stalking.

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109C

REPORT

Introduction

The American Bar Association (“ABA”) has a long history of national and international leadership in the evolution of the legal profession and advocacy for the protection of universal liberty and justice. In the area of domestic and sexual violence, the American Bar Association Commission on Domestic & Sexual Violence (“Commission”) is at the forefront of national-level legislation and policy decisions that affect the safety and security of survivors and strive for perpetrator accountability. With support from the ABA House of Delegates, the Commission has sponsored wide-reaching resolutions, from recommending the implementation of Violence Against Women Act provisions to urging the adoption by private industry of employer policies and procedures to address domestic and sexual violence experienced by employees.[1]

Despite progress, the pervasiveness of gender-based violence, and in particular domestic, dating and sexual violence and stalking, warrants further action by local, state, national and international entities to affirmatively protect women, men and children from these forms of violence and play an active role in domestic, dating and sexual violence and stalking prevention and response. To that end, the Commission urges the ABA to adopt this resolution, declaring freedom from domestic, dating and sexual violence and stalking as a fundamental human right, and encouraging localities and states to enact resolutions affirming the same.

The Current Landscape: Domestic and Sexual Violence in the United States

Despite decades of advocacy by women’s rights and battered women’s movements, domestic, dating and sexual violence remain pervasive, in the United States and abroad. Roughly one-third of women worldwide experience violence, with intimate partner violence the most common,[2] and each year there are an estimated 12 million victims of domestic and sexual violence and stalking in the United States.[3] The Centers for Disease Control and Prevention report that 1 in 4 women and 1 in 7 men have experienced severe physical intimate partner abuse; 1 in 6 women and 1 in 19 men have experienced stalking; and 1 in 5 women and 1 in 59 men have experienced rape over the course of their lifetime.[4] As a public health issue, interpersonal violence carries grave implications for society, including: physical and mental health complications; intergenerational consequences and perpetration of cycles of violence; economic ramifications in lost productivity both within in the workforce and at home; and premature mortality.[5] The American Psychological Association estimates that on average, three women are killed each day by a husband or intimate partner.[6] An untold number of victims of domestic violence might also be victims of human trafficking – involuntary servitude in marriage, forced prostitution and sex work, or other forced labor.[7]

Within marginalized and minority communities, rates of domestic, dating and sexual violence and stalking are equivalent to or higher than national-level prevalence data suggests. For instance, Native American women experience rates of sexual violence victimization nearly double that of women across all racial groups.[8] Additionally, survey data indicates that the perpetrators of rape and sexual violence against Native American women are overwhelmingly non-Native men, which further complicates accountability and rates of prosecution for sexual violence among Native Americans.[9] African-American women and men experience higher rates of intimate partner violence and sexual violence, as compared to their white or Hispanic counterparts,[10] and coupled with a history of racism, sexism and institutional oppression, face greater barriers to seeking and receiving law enforcement and other support.[11]

Immigrant women are also particularly vulnerable to domestic and sexual violence in the United States. A New York City Department of Health and Mental Hygiene study concluded that 51 percent of intimate partner homicide victims were foreign-born.[12] Abusers may use a victim’s immigration status as a means to maintain power and control, and immigrant victims often struggle to access resources due to language, cultural or legal barriers.[13] High rates of victimization persist among women living with disabilities, who similarly face barriers to accessing protection and support yet experience a 40 percent greater risk of intimate partner violence as compared to women without disabilities.[14] Additionally, individuals who identify as lesbian, gay, bisexual or transgender (“LGBT”) represent another subset of victims who experience equivalent or higher rates of victimization.[15] For instance, the National Intimate Partner and Sexual Violence Survey, conducted by the Centers for Disease Control and Prevention, concluded that bisexual men and women report higher rates of intimate partner violence, including rape, physical violence and stalking, than their heterosexual counterparts.[16] Similarly, the National Coalition of Anti-Violence Programs, in their nationwide 2014 report, found that transgender victims were nearly twice as likely to experience physical violence and nearly four times more likely to experience discrimination within the confines of an abusive intimate partner relationship than their non-transgender counterparts.[17]

Finally, rape and other sexual coercion and harassment of male and female soldiers by other military personnel occur at a rate higher than the general population. The Department of Defense reported that for 2012 of those surveyed 6.1% of female active duty soldiers and 1.2% of male soldiers reported having been sexually assaulted. These statistics are considered low, but even at the reported rates, the number of soldiers reporting sexual assault is 26,000.[18]

Human Rights Protections

The modern-day codification of international human rights law began with the ratification by the United Nations of the Universal Declaration of Human Rights (“Declaration”), in 1948. Drafted primarily as a response to the atrocities committed during World War II, the Declaration is a testament to the notion that there exist basic, inalienable rights and fundamental freedoms that belong to and should be freely enjoyed by all human beings. Regardless of nationality, residence, gender, ethnicity, religion, race or color, language, sexual orientation or any other status, all persons are deserving of dignity and justice.[19] In the years since the Declaration was ratified, there have emerged numerous international treaties that further enumerate and expound upon the fundamental rights and freedoms of all people.

Recognizing the fundamental right of all persons to live free from violence and abuse, including sexual and intimate partner violence, has long been enshrined in international human rights law. Under Article 3 of the Universal Declaration of Human Rights (“UDHR”), all persons have the right to “life, liberty and security of person.”[20] This inalienable right is founded in numerous international covenants and treaties pertaining to international human rights norms, including the International Covenant on Civil and Political Rights (“ICCPR”),[21] Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”),[22] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”),[23] Convention on the Elimination of All Forms of Racial Discrimination (“CERD”),[24] and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (“Convention of Belem do Para”),[25] among other regional human rights instruments.[26] While the articulation of a fundamental right does not alone ensure that all people will live free from violence, recognizing the grave implications that domestic and sexual violence have on the lives of victims paves the way for establishing greater accountability for perpetrators, enhanced protection for victims, and societal intolerance of gender-based violence.

In fact, domestic and sexual violence affect more than just the health or well-being of a single survivor. While the mental and physical effects are profound, so too is the impact on subsequent generations,[27] the reduction in worker productivity and subsequent economic costs,[28] and the degradation of the fabric of our communities. As a means to improving state and governmental response to domestic and sexual violence, adopting a human rights-based approach to responding to incidents of domestic and sexual violence can yield improved results in violence reduction and victim support and protection. In fact, the international community has explicitly called for member states and governments to take concrete measures to eliminate domestic and sexual violence committed against women and men around the globe.[29]

Embracing a “human rights-based approach” to the issue of gender-based violence, domestic violence and sexual assault requires local, state and national governments to adopt policies that focus on ensuring access to and protection of fundamental rights. This can include everything from public education and awareness-building campaigns to improving police and law enforcement practices, encouraging broad legal remedies and guaranteeing access to social services. Additionally, by incorporating human rights principles into domestic law, governments assume partial responsibility for ending gender-based violence, rather than focusing exclusively on the conduct of individual perpetrators or victims. Finally, adopting a human rights perspective at the governmental level can initiate and even shape public norms-shifting, so that gender-based violence ceases to be legitimized and perpetuated by certain sectors of society.

Domestic and Sexual Violence Law and Human Rights in the United States

All jurisdictions in the United States contemplate both criminal and civil legal options for domestic violence and sexual assault survivors, though the scope and consequence of those options may vary. In most jurisdictions, whether or not criminal charges are pursued in a case depends upon the state prosecutor, but a victim and his or her advocate may also encourage prosecution by actively participating in any criminal investigation and subsequent legal case. Additionally, specific crimes of domestic violence and sexual assault may vary between states, particularly as to how criminal acts are defined and what constitute aggravating circumstances.

Civil remedies are much broader, and range from civil protection orders to torts actions. While protection orders are, as the name suggests, focused on protecting victims and preventing further acts of violence, torts claims provide an avenue for financial redress to victims of crimes of violence. As with criminal law, the precise scope of civil protection orders – as to which victims they protect and the remedies available – vary state by state. Some states offer broad protections to youth, LGBT and sexual assault victims, while other states prescribe that protection orders are only available to married heterosexual adult victims who have experienced violence.[30]

Civil protection orders, as civil injunctions, are only as successful as the mechanisms in place to enforce compliance with the orders. Thus, for civil protection orders to fulfill their intended function of protection and deterrence, police and law enforcement must act to enforce protection orders by arresting perpetrators in violation of those orders, and prosecutors and the court system must subsequently hold perpetrators accountable by imposing criminal sanctions for violations. Civil protection orders can only function as a deterrent to future violence and abuse if the localities and officials obligated to enforce them actually do so.

However, despite the critical importance of police enforcement of civil protection orders in protecting victims of domestic and sexual violence and their families, jurisdictions across the United States are not consistent in ensuring access to police protection and enforcement. In the city of Castle Rock, Colorado, Jessica Lenahan (formerly Gonzales) obtained a restraining order against her estranged husband, Simon Gonzales. While the order protected Ms. Lenahan and her children, it also permitted Mr. Gonzales to have visitation with the three girls. However, in 1999, Mr. Gonzales abducted the girls from Lenahan’s yard, failing to respond to her calls to him for her children to be returned. Ms. Lenahan repeatedly called the police, imploring them to enforce the restraining order and locate her husband and children, but they demurred, insisting that the children were “probably safe” because they were with their father. In the early morning hours of June 23, 1999, Mr. Gonzales pulled up to the Castle Rock Police Department, opened fire, and was subsequently shot and killed by the police. Ms. Lenahan’s three girls were found dead in the back of the truck.[31]

Ms. Lenahan brought Fourteenth Amendment due process claims against the town of Castle Rock, alleging that police department failure to enforce her restraining order violated her right to due process. In 2005, in Town of Castle Rock v. Jessica Gonzales, the U.S. Supreme Court held that the police have no constitutionally-mandated duty to enforce restraining and protection orders, as protection orders are procedural remedies that do not create property rights.[32] In 2011, Ms. Lenahan filed a complaint before the Inter-American Commission on Human Rights (“Inter-American Commission”), alleging human rights violations by the local Castle Rock police, who failed to protect her and her children, and by U.S. courts, which collectively failed to provide her with a remedy.[33]

The Inter-American Commission has established that violence against women, including domestic violence, is a form of discrimination against women. States therefore bear the burden of “due diligence” in responding to and preventing acts of violence.[34] Under this standard, states must be held accountable where they “knew or should have known of real and immediate risks to an individual by another person” and the state “failed to take reasonable steps to prevent that harm.”[35] Accordingly, in Gonzales v. United States, the Inter-American Commission held that the Castle Rock Police Department failed to act with due diligence in enforcing Ms. Lenahan’s restraining order.[36] The Inter-American Commission noted that the Castle Rock Police Department was aware that the restraining order existed, and thus should have reasonably been expected to have investigated an allegation of a violation of the order, and acted appropriately. The Inter-American Commission concluded:

[T]he State failed to act with due diligence to protect Jessica Lenahan and [children] from domestic violence, which violated the State’s obligation not to discriminate and to provide for equal protection before the law under Article II of the American Declaration. The State also failed to undertake reasonable measures to prevent the death[s] of [the Gonzales children] in violation of their right to life under Article I of the American Declaration, in conjunction with their right to special protection as girl-children under Article VII of the American Declaration. Finally, the Commission concludes that the State violated the right to judicial protection of Jessica Lenahan and her next-of kin under Article XVIII of the American Declaration.[37]