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Most Wanted: Meaningful Enforcement in the War Against Domestic Abuse

by Madeline Lee Bryer


September 1, 2011

The war against domestic violence is heating up. In a decision released publicly on August 17, 2011, an international human rights tribunal has determined that the U.S. authorities paid insufficient attention to domestic violence and violence against women in violation of the nation's human rights obligations. This ruling, the first ruling from an international tribunal on a U.S. domestic violence case, comes only days before an important domestic violence case is heard by New York State's highest court.

The decision from the Inter-American Commission on Human Rights (IACHR) reviewed the 2005 U.S. Supreme Court decision of Castle Rock v. Gonzales.

The Supreme Court held that Jessica Gonzales, a domestic violence victim who had an order of protection against her husband, had no constitutional right to police protection or enforcement of her order of protection. Gonzales had sued Castle Rock, Colorado, claiming that the police department ignored her pleas to arrest her husband for violating an order of protection. The police did nothing until her husband stormed the police station with a shotgun and started shooting. The police killed the husband. Unfortunately, he had already murdered their three daughters and their bodies were found in his truck.

After the Supreme Court ruled against Gonzales, advocates brought the case before the Inter-American Commission. Its just-released report found that “the State failed to act with due diligence to protect Jessica Lenahan [formerly Gonzales] 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." The ruling gives specific recommendations for changes in U.S. law and policy, including an investigation in systemic failures and legislative changes.

These findings, while not binding on U.S. courts, underscore the central issues in a similar case, Valdez v. City of New York, scheduled for a hearing on September 7, 2011 in New York's highest court. In this case, Carmen Valdez, a woman living in the Bronx, called the domestic violence detective of the New York City Police Department on July 19, 1996 to tell him that she was going to her grandmother's apartment with her two five-year old twin sons because her former boyfriend, Felix Perez, had threatened to kill her. The detective told her to stay in her apartment and that the police were going to immediately arrest the boyfriend for violating her order of protection. Valdez followed the detective's direction and stayed in the apartment. The police, however, took no action. The next morning, as she took out the garbage, the boyfriend shot her three times in her face and arms before killing himself. This all took place in front of her two children. Valdez survived, but required extensive surgeries. She was left with permanent disabilities, and both she and the children to suffer ongoing psychological injuries.

Valdez and her children sued the City of New York, arguing that they were injured because they relied on the detective's assurances. After a trial and jury award of damages to Valdez and her children, the city appealed. The first reviewing court ruled for the city and dismissed the case, stating that Valdez was not justified in relying on the detective's promises because she had neither observed nor seen any evidence that the detective had taken action.

Ironically, while the New York appellate courts are deciding what liability, if any, the police have for failing to enforce orders of protection, other New York courts are issuing orders of protection in increasing numbers. According to the New York State Office of the Prevention of Domestic Violence, New York courts issued more than 200,000 orders of protection in 2009 and 2010 – significantly more than prior years. Victims are advised to notify the police if the order is violated. Victims are not told that they should not rely on what the police tell them or that they should not follow the directions that the police give them.

The use of orders of protection was studied by the U.S. Department of Justice Office for Victims of Crime, which reported in January 2002 that inconsistent enforcement gives victims a false sense of security and increases the safety risk for them.

Increasing a victim's risk is costly. Domestic violence has economic, as well as human, costs. Intimate partner violence costs society approximately $5.8 billion a year, according to the Centers for Disease Control. Between 1976 and 2005 intimate partner homicides accounted for 11 percent of all homicides in this country and 30 percent of all homicides of women. Sixty percent of incidents occur in the victim's home.

According to the New York State Office of Prevention of Domestic Violence, aside from orders of protection, the other primary weapon in the war against domestic violence is to secure homes to keep abusers out. But in a little-known decision in 1989, Tarter v Schildraut, a New York appellate court held that tenants who are attacked by a domestic violence abuser or stalker do not have the right to hold their landlords liable for failing to provide a working lock on the front door of their building or other reasonable security, even though landlords might be liable in other situations. The court decided that, given the motivation of the domestic violence abuser to harm the tenant, it was unreasonable to hold the landlord liable for failing to lock the front door. The result is that landlords are relieved of liability for failing to provide security for the very population that needs that security the most.

Stopping this war of abuse against intimate partners requires new attention and new action, as the Inter-American Court noted. In hearing the Valdez case, New York's highest court should take heed.

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Madeline Lee Bryer, Esq. is a feminist attorney whose 25-year law practice has focused on representing crime victims in civil suits. She left her certified social worker career to go back to law school after she was sexually assaulted in her apartment. She is a member of the domestic violence committee of the New York City Bar Association and former board member of the New York City Alliance Against Rape. Her website: www.victimrights.net.

Also see "All Wars Are Intimate Wars" by Merle Hoffman in this edition of On The Issues Magazine.

See “Violence Against Women Surges When War Is ‘Done'" by Yifat Susskind in this edition of On The Issues Magazine.


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