Human Rights at Home Blog

State Re-Traumatization

“Trauma is not random.  Its occurrence varies as a function of characteristics of the individual (e.g., racial/ethnic minority or LGBT status), peer relationships (e.g., intimate partner violence), community characteristics (e.g., poor neighborhoods), and socio-political factors (e.g., terrorism, war, and civil unrest).  Additionally, these characteristics influence trauma type (e.g., women are more likely than men to be victims of intimate partner violence and unwanted sex).  Outcomes of trauma are also not random, and are highly related to characteristics of the individual, peer group support, community, and socio-political factors." These are the findings of a 2014 study on the public health impact of trauma.

Despite living in an era of evidence based planning and decision making, many of our laws continue to employ standards that presume  those involved in the legal system are capable of linear, non-traumatized planning and reasoning.  Juvenile law is one example.  Often system actors approach prosecution and sentencing as if juveniles possessed adult thought capacities.  Evidence on juvenile brain development, as well as brain malfunctions following trauma, supports altered reasoning and impulsive actions by juveniles.  These conditions are enhanced when the juvenile has been abused. Trying a juvenile in adult court is a scientific absurdity, particularly when the process is applied to traumatized juveniles.  The status of the defendant's brain development  should drive any decision on prosecution charging and sentencing.  But our court systems often make the determination based on the outcome of the crime, not the capacity of the alleged offender. 

Similarly judgments are made regarding traumatized adults.  Those who have suffered intimate partner abuse frequently are unable to give linear testimony as a consequence of trauma.  Yet court actors continue to express frustration with adult witnesses who testify in what is to them an illogical order.  Both popular and academic literature describing PTSD is abundant thanks to the post-war difficulties experienced by returning war veterans.  The information is readily available to those within the legal system. Yet state actors still expect those who appear before them to behave in a manner that the actor determines conveys credibility, rather than accepting the witness as s/he appears on the trauma scale.

Human rights theories are difficult to argue successfully in these settings.  Triers of fact and others often disregard and disrespect traumatized individuals who appear before them.  Whether this behavior results from a lack of information or a disregard of literature is irrelevant.  The outcome  is the assignment of blame to those who have been victimized; and to declare a party not credible based upon the very indicators that prove traumatization.  Motivation is not important.   State actors cannot understand human rights based legal theories if fundamentally they are unwilling to accept empirical evidence on the impact of trauma.  State perpetration of re- traumatization is  a violation of fundamental human rights. And it is not random.

 

Depriving Children of Their Human Rights

Carrie Bettinger-Lopez sends this post written by student Kelsey Hayden.  In this two part post, Ms. Hayden addresses Florida's shocking disregard of the human rights of juveniles in the criminal justice system.

Kelsey Hayden writes:

Juveniles accused of crimes in the United States are sometimes stripped of the protections that they should be afforded at a time when they are most vulnerable. Florida is perhaps one of the worst offenders when it comes to the deprivation of children’s rights in the criminal justice system. While most U.S. states permit the transfer of juveniles alleged to have committed certain crimes to adult criminal court for prosecution, Florida transfers more children under 18 to adult court than any other state. In Florida alone, more than 12,000 children were transferred to adult courts between 2008 and 2012. Florida is one of only 15 states to allow for prosecutorial discretion—and 1 of only 3 states to remove the possibility of any judicial review upon transfer—for all kids aged 14 and up who have been charged with certain enumerated crimes. Prosecutorial direct file removes all judicial discretion and is not in compliance with the corpus juris on children’s rights which provides that when alleged to have violated the penal law, a child has the right to have any potential measures reviewed by an impartial authority or judicial body. Following the March 2014 review of the United States’ compliance with the International Covenant on Civil and Political Rights (“ICCPR”), the United Nations Human Rights Committee (“UNHRC”) recommended that the U.S. ensure that juveniles are not transferred to adult courts.

In Florida, one particularly troubling consequence of such transfers to the adult system is that juveniles who have been charged as adults are automatically detained pre-trial in adult county jails. As a result of a federal and state mandate that juveniles be held out of the sight and sound of adults, juveniles in adult facilities are sometimes held in administrative solitary confinement where they can languish for months, or longer. In the recent review of the United States’ compliance with the ICCPR, the UNHRC also expressed concern about the continued practice of holding juveniles in prolonged solitary confinement, including during pre-trial detention, and recommended that the United States impose “strict limits on the use of solitary confinement, both pretrial and following conviction . . . and abolish the practice in respect of anyone under the age of 18.”The use of solitary confinement on juveniles is a particularly critical concern in light of the mental harm that isolation causes to children. Some of the mental health consequences in juveniles include self-harm, suicidal thoughts/attempts, and hallucinations.

Ms. Hayden continues her discussion of this disregard of the right so juveniles in tomorrow's post.

 

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.