Duty to Ensure Human Rights and its Evolution in the Inter-American System: Comparing Maria de Pengha v. Brazil with Jessica Lenagan (Gonzales) v. United States

Introduction 437I. The Two Cases 439II. Procedural Obligations 442III. Theory of Foreseeable Risk 444IV. The Consequences of This Evolution 448Conclusion 452IntroductionThe possibility of holding a State responsible for acts of domestic violence has been recognized in the Inter-American system since the first decision of the Inter-American Court of Human Rights, VelasquezRodriguez v. Honduras} Velasquez-Rodriguez, as with most cases in the Inter-American system, concerned actions perpetrated by State agents. Nonetheless, since Velasquez-Rodriguez, the court has consistently held that States may be held responsible for acts perpetrated by private individuals when the State does not comply with its duty to ensure human rights.2 Regarding this duty, the court held that "[s]tates must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation."3 The court further affirmed that these obligations also apply to "illegal act[s] [that] violate human rights and [that are] initially not directly imputable to a State."4 Domestic violence, as an act that potentially violates the right to personal integrity and the right to life, under certain circumstances, falls within this category. Consequently, the State has international obligations associated with the occurrence of domestic violence within its borders; the duty to prevent, investigate, punish, and, when possible, repair the harm. All of these duties may be referred to as the general duty to ensure human rights.Unfortunately, State responsibility for failure to comply with the duty to ensure human rights is not clearly applied in many cases; one of the principal reasons for this is because few cases in the Inter-American system have concerned acts initially committed by private individuals. However, this is not the only reason. Even though the possibility of holding a State responsible for acts initially perpetrated by private individuals was alluded to in the first case ever decided by the court in Velâzquez-Rodriguez, a concrete case within the Inter-American jurisprudence has not applied the implications of the Velazquez-Rodriguez decision until recently.5 The best examples of this evolution are two cases of domestic violence: Maria da Penha Maia Fernandes v. Brazil and Jessica Lenahan (Gonzales) v. United States.6In both cases of domestic violence, the Inter-American Commission found the State responsible for violating human rights.7 Interestingly, the analysis utilized to attribute responsibility to the State for the private acts was completely different between both cases. In Maria da Penha, the Commission only explored how the lack of an official investigation violated the victim's right to judicial remedy and to a fair trial. In contrast, the Commission in Lenahan analyzed the State's obligation to prevent the severe domestic violence that was at issue and to investigate the facts; consequently, the Commission concluded that the State's failure to prevent and investigate violated the victim's right to life.9 The Commission's analysis in Lenahan regarding the duty to prevent also shows the evolution in case law regarding the standard used for the duty to prevent since it uses the theory of foreseeable risk.10 The objective of this Article is to analyze the different reasoning used in Maria da Penha and Lenahan, and explain the significance of this variance in an analysis for future cases of domestic violence within the Inter-American System. …