Jessica Lenahan (Gonzalez) v. United States & Collective Entity Responsibility for Gender-Based Violence

Introduction 231I. State Responsibility 237II. School Responsibility 250III. Similarities Between the "State Responsibility" and "School Responsibility" Theories 266A. Inaction 266B. Equal Protection 278Conclusion 286"State inaction towards cases of violence against women fosters an environment of impunity and promotes the repetition of violence 'since society sees no evidence of willingness by the State, as the representative of the society, to take effective action to sanction such acts. ' " 1IntroductionWith its recent decision in Jessica Lenahan (Gonzales) v. United States, the Inter-American Commission on Human Rights further developed a theory of "collective entity responsibility" for violence against women and gender-based violence.2 In Lenahan, a domestic violence survivor, Jessica Lenahan (then Jessica Gonzales), held a civil protection order that directed police to arrest her husband if he violated its terms. When Mr. Gonzales kidnapped his three daughters one night, the police refused to enforce the civil protection order, despite Ms. Lenahan's frequent and increasingly urgent pleas for their help. Mr. Gonzales eventually opened fire on the police station and was shot and killed by police when they returned his fire. Ms. Lenahan's three daughters were later found shot to death in his truck and a variety of police actions and inactions surrounding the daughters' death cast suspicion on whether the daughters were shot by Mr. Gonzales or by police during the gunfight at the police station. Ms. Lenahan sued the police department for violations of her due process rights under the U.S. Constitution. Although the U.S. Supreme Court denied her claim, saying that she had no due process right to enforcement of a civil protection order, Ms. Lenahan prevailed in her complaint against the U.S. in front of the Inter-American Commission on Human Rights (Commission), which found the U.S. in violation of its international obligations under the American Declaration of the Rights and Duties of Man and the Charter of the Organization of American States.3 In deciding the case, the Commission used the theory of "State responsibility" for domestic violence, which had its origins in the Inter-American human rights system's requirement that States prevent, investigate, sanction, and provide remedies for violence against women.4Because, as the opening quote suggests, the State represents society, the State is a collective entity. Collective entities are entities that are treated like a single entity or actor by the law and are generally viewed as a unitary entity by actual individuals.5 Nevertheless, collective entities are not individual persons themselves-they are made up of and/or represent a group of individuals, although "representation" in this context does not have a specific definition.In addition, the opening quote also articulates that the State's actions and inactions are linked to the actions or inactions of individual actors. Because the State represents society, its actions and inactions are often assumed to express a society's normative views about a particular issue. The State's actions and inactions therefore send a message back to society as a whole about the "rightness" or "wrongness" of the actions or inactions of individual members of society. This message then encourages or discourages the individual actions or inactions that are addressed by that particular exercise of the State's expressive function. Because of this link between the State's normative powers and the actions or inactions of individuals, the theory goes, the State has a responsibility to act or not act in such a way that will encourage or discourage certain individual actions or inactions, including those affecting other individuals.Moreover, as the opening quote further indicates, with regard to violence against women, States tend to be inactive. …