[ Page 1360 ]
Filling the Gap of Domestic Violence Protection: Returning Human Rights to U.S. Victims
Melanie Kalmanson*
Abstract
The prevalence of domestic violence in the United States indicates a need for increased governmental protection. The current, state-based system inadequately serves victims of domestic violence, and previous U.S. Supreme Court rulings indicate that the U.S. Constitution leaves the federal government in an impotent position for providing any form of protection for domestic violence victims. Pursuant to the American Declaration on the Rights and Duties of Man, domestic violence violates one’s human rights, or those fundamental to personhood. By ratifying the American Declaration through the Charter of the Organization of the American States, the United States established its responsibility for protecting U.S. citizens from this human rights violation. Thus, this Note contends that a federal statute creating federal liability against a state for failing to protect domestic violence victims should be enacted in accordance with the United States’ responsibility under the American Declaration.
| I. Introduction | 1360 |
| II. Why the Current State-Based System Is Inadequate | 1363 |
| A. History of Domestic Violence Regulation | 1363 |
| B. Where the States Fall Short of Protecting | 1365 |
| III. Why the U.S. Constitution Alone Is Insufficient for Protection | 1372 |
| A. Denied Constitutional Protection Under the Fourteenth Amendment | 1372 |
| 1. Substantive Due Process—No Federal Protection from Non-Governmental Actors | 1373 |
| 2. Procedural Due Process—No Property Right in Protection | 1376 |
| B. Federal Statute—Domestic Violence Not a Matter of Interstate Commerce | 1378 |
| 1. An Attempt at Federal Statutory Protection: The Violence Against Women Act | 1379 |
| 2. U.S. Supreme Court’s Decision in United States v. Morrison | 1383 |
| C. Alternative Constitutional Routes to Protection | 1384 |
| D. Remaining Obstacles in the Courts | 1385 |
| IV. International Solution: Codifying the Protections of the American Declaration on the Rights and Duties of Man | 1387 |
| A. The American Declaration, as It Currently Stands | 1388 |
| 1. The Rights It Grants, the Duties It Imposes, and Its Relation to Domestic Violence | 1389 |
| 2. Is the American Declaration Binding, Persuasive, or Moot? | 1391 |
| B. Why the Federal Statutory Solution Is Possible | 1393 |
| 1. Proposed Statutory Language | 1394 |
| 2. Framework Allowing This Solution: Constitutional and Common Law | 1396 |
| (a). Effectuating International Authority That Has Been Adopted by the United States | 1397 |
| (b). Fourteenth Amendment | 1397 |
| (c). Concerns of States’ Rights | 1399 |
| 3. Enforcement | 1403 |
| C. Addressing Criticism That This Is the Incorrect Authority Under Which to Seek Protection | 1405 |
| V. Conclusion | 1407 |
* Thank you to Professor Mary Ziegler for seeing my vision, agreeing to supervise the writing process, and contributing invaluable insight and guidance to this piece. It has been amazing to work with you throughout law school, and you have come to be my greatest inspiration in academia. Thank you to my Mom for her insight in forming this project’s topic. And, thank you to the donor of the Tiffanie Suzanne Perry Scholarship for valuing my vision; it was an honor to receive your award for this project. Also, thank you to the Florida State University Law Review, specifically Elisa and Sarah, for their enthusiasm in publishing this piece.
[ Page 1361 ]
I. Introduction
From the United States’ inception, its three branches of government were intended to cooperatively provide a system that protects citizens’ well-being and inalienable rights.1 The legislative branch forms statutes, which are enforced by the executive branch, and the judicial branch interprets and validates those statutes upon challenge. But, what happens when the legislative branch has not made any protective statutes;2 the executive branch fails to protect, despite statutes requiring them to act; and, the judiciary formally excuses the executive for such protective failure?
In 2005, Jessica Lenahan found herself confronting such a governmental shortfall at the U.S. Supreme Court after her ex-husband, against whom she and her daughters held a domestic violence restraining order, murdered their three daughters.3 Before the girls’ deaths, Lenahan desperately sought help from state police to save her daughters, who had been abducted by their father.4 After being essentially ignored and denied any assistance, despite the restraining order, Lenahan learned that her daughters were found dead in the back of their father’s pick-up truck.5 Already failed by the state’s executive branch, Lenahan sought relief from the federal judiciary.6 The courts denied her relief, reasoning that an absence of binding legislation excused the executive for failing to protect Lenahan’s daughters.7 Ultimately, despite a subsequent finding from an international tribunal that the United States violated Lenahan’s and her daughters’ human rights with their lack of action, Lenahan found no recourse.8
Domestic violence (DV), as defined by the U.S. Department of Justice, is “a pattern of abusive behavior in any relationship that is used by one partner
1. The Declaration of Independence para. 2 (U.S. 1776) (“[A]ll men . . . are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted . . . . That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” (emphasis added)).
2. Or, the ones that have been struck down. See infra discussion in Sections III.A-B.
3. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 748 (2005).
4. Gonzales v. City of Castle Rock, 366 F.3d 1093, 1098 (10th Cir. 2004) (en banc).
6. See infra discussion in Section III.A.2.
7. See infra notes 155-60 and accompanying text (discussing the U.S. Supreme Court decision in Gonzales, 545 U.S. 748).
8. See infra notes 238-40 and accompanying text (discussing the decision of the Inter-American Commission on Human Rights on Jessica Lenahan’s appeal from the U.S. Supreme Court’s decision under the American Declaration on the Rights and Duties of Man).