Report No. 80 (2011) IACHR. Case No. 12.626 (Estados Unidos de America)

• Report Number: 80
• Case Number: 12.626
• Respondent State: United States
• Case Type: Merits
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Jessica Lenahan

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REPORT No. 80/11

CASE 12.626

MERITS

JESSICA LENAHAN (GONZALES) ET AL.

UNITED STATES (*)

July 21, 2011

1. SUMMARY

1. This report concerns a petition presented to the Inter-American Commission on Human Rights (hereinafter the “Commission” or “IACHR”) against the Government of the United States (hereinafter the “State” or the “United States”) on December 27, 2005, by Caroline Bettinger-Lopez, Emily J. Martin, Lenora Lapidus, Stephen Mcpherson Watt, and Ann Beeson, attorneys-at-law with the American Civil Liberties Union.¹ The petition was presented on behalf of Ms. Jessica Lenahan, formerly Jessica Gonzales,² and her deceased daughters Leslie (7), Katheryn (8) and Rebecca (10) Gonzales.

2. The claimants assert in their petition that the United States violated Articles I, II, V, VI, VII, IX, XVIII and XXIV of the American Declaration by failing to exercise due diligence to protect Jessica Lenahan and her daughters from acts of domestic violence perpetrated by the ex-husband of the former and the father of the latter, even though Ms. Lenahan held a restraining order against him. They specifically allege that the police failed to adequately respond to Jessica Lenahan’s repeated and urgent calls over several hours reporting that her estranged husband had taken their three minor daughters (ages 7, 8 and 10) in violation of the restraining order, and asking for help. The three girls were found shot to death in the back of their father’s truck after the exchange of gunfire that resulted in the death of their father. The petitioners further contend that the State never duly investigated and clarified the circumstances of the death of Jessica Lenahan’s daughters, and never provided her with an adequate remedy for the failures of the police. According to the petition, eleven years have passed and Jessica Lenahan still does not know the cause, time and place of her daughters’ death.

3. The United States recognizes that the murders of Jessica Lenahan’s daughters are “unmistakable tragedies.”³ The State, however, asserts that any petition must be assessed on its merits, based on the evidentiary record and a cognizable basis in the American Declaration. The State claims that its authorities responded as required by law, and that the facts alleged by the petitioners are not supported by the evidentiary record and the information available to the Castle Rock Police Department at the time the events occurred. The State moreover claims that the petitioners cite no provision of the American Declaration that imposes on the United States an affirmative duty, such as the exercise of due diligence, to prevent the commission of individual crimes by private actors, such as the tragic and criminal murders of Jessica Lenahan’s daughters.

4. In Report N° 52/07, adopted on July 24, 2007 during its 128th regular period of sessions, the Commission decided to admit the claims advanced by the petitioners under Articles I, II, V, VI, VII, XVIII and XXIV of the American Declaration, and to proceed with consideration of the merits of the petition. At the merits stage, the petitioners added to their allegations that the failures of the United States to conduct a thorough investigation into the circumstances surrounding Leslie, Katheryn and Rebecca’s deaths also breached Jessica Lenahan’s and her family’s right to truth in violation of Article IV of the American Declaration.

5. In the present report, having examined the evidence and arguments presented by the parties during the proceedings, the Commission concludes that the State failed to act with due diligence to protect Jessica Lenahan and Leslie, Katheryn and Rebecca Gonzales 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 protect the life of Leslie, Katheryn and Rebecca Gonzales 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 finds that the State violated the right to judicial protection of Jessica Lenahan and her next-of kin, under Article XVIII of the American Declaration. The Commission does not consider that it has sufficient information to find violations of articles V and VI of the American Declaration. As to Articles XXIV and IV of the American Declaration, it considers the claims related to these articles to have been addressed under Article XVIII of the American Declaration.

II. PROCEEDINGS SUBSEQUENT TO ADMISSIBILITY REPORT Nº 52/07

6. In Report No. 52/07, adopted on July 24, 2007, the Commission declared Ms. Lenahan’s petition admissible in respect to Articles I, II, V, VI, VII, XVIII and XXIV of the American Declaration and decided to proceed with the analysis of the merits of the case.

7. Report Nº 52/07 was forwarded to the State and to the Petitioners by notes dated October 4, 2007. In the note to the petitioners, the Commission requested that they provide any additional observations they had within a period of two months, in accordance with Article 38(1) of the Commission’s Rules of Procedure. In both notes, the Commission placed itself at the disposal of the parties with a view to reaching a friendly settlement of the matter in accordance with Article 38(4) of its Rules, and requested that the parties inform the Commission as soon as possible whether they were interested in this offer. In a communication dated October 12, 2007, the petitioners informed the Commission that they were amenable to engaging in friendly settlement discussions with the United States, which the Commission forwarded to the State on January 30, 2008. By letter dated October 15, 2007, Ms. Araceli Martínez-Olguin from the American Civil Liberties Union requested that all communications from the Commission pertaining to this matter be sent to her as well as to Mr. Watt and Ms. Bettinger-Lopez at their respective addresses.

8. In a communication dated March 24, 2008, the petitioners submitted to the Commission their final observations on the merits of the matter. The Commission forwarded to the State these observations by letter dated March 26, 2008, with a request pursuant to Article 38 (1) of its Rules to present any additional observations regarding the merits within two months. In a communication dated March 24, 2008, the petitioners also requested a merits hearing before the Commission during its 132º period of sessions. By letter dated August 4, 2008, the petitioners reiterated their request for a merits hearing during the 133º period of sessions, which was granted by the Commission on September 22, 2008. In a communication dated October 16, 2008, the State forwarded to the Commission its merits observations on this matter, which were transmitted to the petitioners on October 21, 2008.

9. The petitioners submitted additional observations and documentation to the Commission on October 21 and 22, 2008; March 12 and July 16, 2009; and January 11, February 20, and June 5, 2010; communications which were all duly forwarded to the State.

10. On August 3, 2009, the Commission requested the State to submit the complete investigation files and all related documentation in reference to the death of Simon Gonzales and of Leslie, Katheryn and Rebecca Gonzales, within a period of one month.

11. The State submitted additional observations to the Commission on April 9, 2010, which were duly forwarded to the petitioners.

12. The Commission convened a merits hearing pertaining to this case during its 133º ordinary period of sessions on October 22, 2008 with the presence of both parties.

13. During the processing of this case, the IACHR has received several amicus curiae briefs, which were all duly forwarded to the parties. In a communication dated July 6, 2007, Katherine Caldwell and Andrew Rhys Davies, attorneys for the firm Allen & Overy LLP, submitted an amici curiae brief, on behalf of several organizations, entities and international and national networks dedicated to the protection of the rights of women and children.⁴ In a communication dated January 4, 2008, Jennifer Brown and Maya Raghu from Legal Momentum; David S. Ettinger and Mary-Christine Sungalia from Horvitz & Levy LLP; and various local, national and international women’s rights and human rights organizations,⁵ presented an amicus curiae brief. On October 15, 2008, the Commission received a supplemental amicus curiae brief by Maya Raghu from Legal Momentum; David S. Ettinger and Mary-Christine Sungalia from...