Storms Law Office

October 4, 2011

VICTIM PROTECTIVE ORDERS:  The most dangerous time for a victim of domestic violence is during their initial separation from their batterer.  Many victims obtain a Victim Protective Order (VPO) from their local court to keep their tormentors away.  VPOs make it a crime for batterers to stalk, harass, or come within a certain distance of their victim.  Violating a VPO can mean criminal charges however, this is not enough to deter some batterers.  When a batterer refuses to obey the VPO, victims rely on law enforcement to enforce the order.

WHEN THE SYSTEM FAILS: For Jessica Lenahan (formerly Jessica Gonzales) a VPO was neither a deterrent to her abuser nor was it enforced by local authorities.  Jessica Lenahan married Simon Gonzales and the couple had three daughters together.  During their marriage, Simon attempted to hang himself in front of the three girls, emotionally and physically abused Jessica, was arrested for reckless driving while the children were not wearing seatbelts, and behaved erratically.

Jessica separated from Simon and as part of their divorce proceeding, she obtained a VPO against him on June 4, 1999 in a Colorado court.  The VPO directed Simon “not to molest or disturb the peace of the other party or any child;” and ordered him to remain at least 100 yards away from the family home.

On June 22, 2009 Jessica could not find her daughters and, fearing that their father abducted them, she quickly notified the local authorities at the Castle Rock police station (the CRPD).  Two police officers, one half of the officers then on duty, arrived at her home.  These officers determined that Simon showed no violent tendencies and that his actions were not in violation of the VPO against him.

Jessica met with and called the police department a total of eight times from June 22^nd to the 23^rd and each time she informed the CRPD that she held a VPO against Simon for her and her daughters.  During this time she ascertained the location of Simon and her three daughters and informed the police.  Even though Colorado state law mandates that police “use every reasonable means to enforce a protection order” and arrest any person violating a protective order, these officers insisted that they could do nothing.

On June 23, 1999, at approximately 3:25 a.m., ten hours after Jesssica’s first call to the CRPD, Simon drove his vehicle to the police station and opened fire, starting a shootout that may have been part of a suicide attempt.  Simon suffered a fatal wound and while officers inspected his vehicle, they discovered the dead bodies of Jessica’s three daughters, Leslie, 7, Katheryn, 8, and Rebecca, 10.

SEEKING JUSTICE FOR JESSICA:  After the accident, CRPD issued two reports on the matter.  The first report contained no conclusion as to whose bullets struck the three girls.  The second report concluded that the three girls were “shot at extremely close range and were not struck by any rounds fired by the officers.”  Neither report actually to identified whose bullets struck the three girls, nor was their time and place of death established.

Jessica sought a VPO with the belief that it would serve as a safeguard against Simon however, the police failed to enforce the order.  This situation raises the question, “what legal duty does a state owe a victim of domestic violence?”

Jessica Lenahan brought a claim to the Colorado District Court, Tenth Circuit Court of Appeals, and finally the Supreme Court of the United States, claiming that the officers violated her constitutional rights under the 14th Amendment’s Due Process Clause, whose text states “nor shall any State deprive any person of life, liberty, or property, without due process of law.”

All three courts rejected Jessica’s claims, weighing heavily in favor of officer discretion.  The Supreme Court ruled the police enforcement of the Order did not give her a property interest in the enforcement of the restraining order against her former husband.  If this is so, what purpose does a VPO serve, or any order of the court?

After losing her appeal at the U.S. Supreme Court, Jessica appealed to the Inter-American Commission on Human Rights (the Commission).  For the first time in its history, U.S. attorneys sought protection for domestic violence victims and their children using international human rights law.

On August 17, 2011, in a landmark decision, the Commission ruled in Jessica Lenahan’s favor, finding that the officers did not properly investigate Jessica’s complaints of Simon’s abduction and determining that the state failed to properly investigate the deaths of the girls once their bodies were found.

Historically domestic violence is a private matter, unworthy of proper police protection.  In fact, police are more likely to respond to a call within 5 minutes if an offender is a stranger than if an offender is known to a female victim. (Ronet Bachman, Ph.D. “Violence Against Women: A National Crime Victimization Survey Report.” U.S. Department of Justice Bureau of Justice and Statistics. January 1994, p. 9.)

Since the Commission found the police and the United States responsible for their inexcusable lack of action in Jessica Lenahan’s case, it is now critical for local officials to appropriately respond to domestic violence cases. In the Report, the Commission included recommendations for state and local officials to properly handle domestic violence cases in the future.  For the official report of the Inter-American Commission on Human Rights see http://www.aclu.org/womens-rights/jessica-gonzales-v-usa-iachr-final-report.