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WASHINGTON-For most people, defeat in the U.S. Supreme Court means the end of a long road. For Jessica Lenahan, whose personal tragedy drew no legal remedy from the high court, defeat drove her to seek justice before an international human rights commission with a complaint against her own country. The Inter-American Commission on Human Rights, an autonomous organ of the Organization of American States (OAS), recently held a hearing on Lenahan’s complaint-the first against the United States by a victim of domestic violence for international human rights violations. A decision is pending. Two years ago, a 7-2 Supreme Court held that Lenahan, then known as Jessica Gonzales, did not have a due process right to police enforcement of a restraining order against her estranged husband. The 10th U.S. Circuit Court of Appeals had held that she did have a colorable due process claim because a Colorado law established the state Legislature’s clear intent to mandate police enforcement of restraining orders. Lenahan’s estranged husband had abducted their three daughters in violation of the order in June 1999. Lenahan alleged that despite seven phone calls and two in-person visits to the police department that night, police failed to respond. Ten hours after her first call, her husband drove to the police station, opened fire and died in a shootout with police. The three girls were discovered dead in the back of his truck. Gender-based violence In her complaint to the Inter-American Commission, Lenahan, represented by lawyers for the American Civil Liberties Union (ACLU) and Columbia Law School’s Human Rights Clinic, contends that the United States violated her rights under the American Declaration of the Rights and Duties of Man, including the right to be free from gender-based and domestic violence. In a hearing on March 2, the ACLU’s Steven Macpherson Watt argued that the binding nature of the declaration on OAS members “has long been recognized.” The United States, he said, has an “affirmative obligation” to protect the rights guaranteed in the declaration and when, as here, law enforcement fails to act with due diligence, the “state” incurs liability. Lenahan, often struggling for emotional control, described the night her daughters were killed and her unsuccessful legal battle to get answers to questions surrounding the tragedy. “It’s too late for Katheryn, Rebecca and Leslie, but it’s not too late to create good law for others,” she said. “We need to hold the United States accountable for its nonaction.” But Kevin Baumert of the U.S. State Department’s Office of the Legal Adviser countered that the facts alleged by Lenahan “are not supported by the evidentiary record.” He said the declaration does not impose a legal duty on the United States to prevent individual crimes by private parties. And even if it did, he added, the police department “acted reasonably and in good faith on the information available.” The ACLU’s Watt said on March 12 that he and his colleagues plan to brief the Inter-American Commission in greater detail on domestic violence in the United States. “This case is very important to the commission,” he said. “The issue of domestic violence is a priority among American states right now and they’re interested in establishing standards and requirements for states. This case is one they could hang their hats on.” The State Department declined to comment on Lenahan’s case. International law scholar and former commission member Robert Goldman of American University Washington College of Law said the commission has had an enormous amount of credibility in the Americas over the last 40 years. “Its jurisdiction is the broadest of any human rights body in the world.” Although the United States has invoked what the commission has said and done over the years, its own compliance record is not good, he added, and it is facing an increasing number of complaints. “We hide behind federalism, in part,” Goldman said, adding that Lenahan’s complaint is not a futile exercise. “The commission articulates standards with respect to very important rights,” he said. ‘To the extent an authoritative body finds violations by the United States and it does not comply, it resonates.” The commission is expected to decide by fall whether it has jurisdiction over Lenahan’s complaint.

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