Monday, March 17, 2014

Challenging the Notion of "Property" Interests in Civil Protection Order Enforcement

For those of us promoting a human rights perspective in United States cases involving domestic violence, we often revisit Jessica (Gonzales) Lenehan's cases against Castle Rock, Colorado and later against the United States.   For those unfamiliar with the facts of the case, Jessica, a resident of Castle Rock, obtained a protection order restraining her husband from any contact with her.  Jessica was awarded custody and the father had certain rights of visitation with the three young daughters.  In violation of the visitation schedule and other terms of the protection order, Simon Gonzales removed the three girls from their yard and during the following early morning he drove into the police station parking lot and began shooting at the police. The police officers responded in kind.  Simon was killed.  Immediately after the exchange of gunfire, the Castle Rock police found the bodies of the three girls in the truck.  Each was killed by gunshot.

During the ten or so hours that the children were missing, Jessica called the police numerous times.  The police did not take any meaningful measures to find Simon and the girls.  Jessica’s concerns were minimized.  At one point she was told that the children were with their father and would be safe. 

In re-reading the US Supreme Court decision, I was struck again with the odd language used in our US opinions when we discuss enforcement or entitlement to enforcement.  The court found that Jessica did not have a “property” interest in the civil protection order issued by the state of Colorado.  Because she lacked a property interest, Jessica had no right to expect enforcement despite the mandatory enforcement language of Colorado’s civil protection order statute

Property in this context is anathema to a human rights perspective.  Much of US legal culture revolves around the notion of “property."  The protection of land and money is embedded in our legal system.  In this instance, to reduce the concept of police protection where a valid court order has entered to a “property “ interest must seem odd to foreign observers. More accurate language is that the state made an agreement with Jessica. The agreement was made clear through the language of the enforcement statute.  That agreement demands mandatory arrest when a violation of a protection order is known to the police.  Even the language of a state "promise" on which the mother relied is more descriptive of the legal dilemma.

Keeping children and their mothers safe involves basic human rights.  Protection by the state and enforcement of orders intended to keep the protected parties safe, are fundamental human rights.   Women and children being viewed as “property” is a concept that US based domestic violence and child advocates have been confronting for well over a century and half.  The very language of child “custody” connotes parental ownership rights. 

It is difficult to eliminate the concept of ownership over women and children while our language continues to reflect jurisprudence based the “property“ interests of its citizens.  The language of the Inter-American Human Rights Commission report in addressing the traumatic events suffered by Jessica is focused on her needs as a human being, particularly as a parent.  By contrast the language of the Inter-American Commission shifts the  legal language from one of abstract and artificial constructs of “property interests” to human rights' language of restoring dignity and addressing the anguish of a mother who daily endures unspeakable pain.

 

 

 

https://lawprofessors.typepad.com/human_rights/2014/03/challenging-the-notion-of-property-in-civil-protection-order-cases.html

Children, Domestic Violence, Juveniles, Margaret Drew | Permalink

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