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Violence Against Women in US Law: Morrison, Castle Rock, and Gendered Sovereignty

by Raya Koreh | Summer 2017

Gender-based violence, in particular violence against women, is pervasive in the US. However, the Supreme Court resists acknowledging the seriousness of this crime, striking down provisions that would give survivors of gender-based assault the remedial powers of the federal courts and the protection of law enforcement officials. Characterized as “family law,” to be dealt with “privately,” and on a local level, violence against women is taken less seriously than comparable crimes. This essay will address two such cases, US v. Morrison and Town of Castle Rock v. Gonzales, in order to uncover patterns in the justice system’s (mis)handling of cases involving violence against women, suggest the inadequacy of US law to address violence against women, and to propose remedies. Part I of this essay justifies the selection of these two Supreme Court cases. Part II introduces the feminist and sociological framework used to challenge the Court’s decisions. Part III applies these frameworks to Morrison and Castle Rock and argues that these decisions reinforce harmful notions of a private/public divide, operate under assumptions of women’s subordinate worth, and implicitly sanction men’s power and sovereignty through law. Part IV analyzes the revaluation of Castle Rock by the Inter-American Commission on Human Rights (IACHR) in Jessica Lenahan (Gonzales) v. United States. Part V addresses lessons learned from the failure of US law to protect women, the potential benefit of international legal processes, and recommendations for future action.

1. Jennifer L. Truman and Lynn Langton, Criminal Victimization, 2014, Department of Justice, Bureau of Justice Statistics, https://www.bjs.gov/content/pub/pdf/cv14.pdf; “97 of Every 100 Rapists Receive No Punishment,” RAINN, https://www.rainn.org/news/97-every-100-rapists-receive-no-punishment-rainn-analysis-shows.

3. Lorenne Clark and Debra Lewis, Rape: The Price of Coercive Sexuality (Toronto: Women’s Press, 1977).

5. Ibid. 42-43.

7. Anthony Giddens, The Constitution of Society: Outline of the Theory of Structuration (Cambridge: Polity Press, 1984), 25.

9. Giddens, The Constitution of Society, 31-2.

11. Ibid. 261.

13. Ibid.

15. Catharine A. MacKinnon, Toward a Feminist Theory of the State (Cambridge: Harvard University Press, 1989), xiii.

17. Ibid

19. For VAWA’s legislative history, see Victoria F. Nourse, “Where Violence, Relationship, and Equality Meet: The Violence Against Women Act’s Civil Rights Remedy,” Wisconsin Women’s Law Journal 15, no. 1 (2000): 257–92.

21. Ibid. 1.

23. MacKinnon, Women’s Lives, Men’s Laws, 215.

25. MacKinnon, Women’s Lives, Men’s Laws, 215

27. Ibid. 217.

29. MacKinnon, Women’s Lives, Men’s Laws, 231.

31. Ibid. 233.

33. MacKinnon, Women’s Lives, Men’s Laws, 234; Morrison, 529 U.S. 598, 623 (majority opinion), citing United States v. Guest, 383 U.S. 745, 756 (1966).

35. Ibid. 234.

37. Ibid. 232.

39. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 1765 (Souter, J., dissenting).

41. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 1760 (Souter J., dissenting).

43. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 1751 (majority opinion).

45. MacKinnon, Women’s Lives, Men’s Laws, 213-214; Wickard v. Filburn, 317 U.S. 111, 128-129 (1942).

47. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 1764 (Souter J., dissenting).

49. Martha Chamallas, “The Architecture of Bias: Deep Structures in Tort Law,” University of Pennsylvania Law Review 146 (1998): 464.

51. Lopez, 514 U.S. 549, 561 (majority opinion).

53. Ibid., 34.

55. Ibid.

57. Jeffrey Allan Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (New York: Cambridge University Press, 2002), 92-97. The attitudinal model melds together key concepts from legal realism, political science, psychology, and economics, resulting in resolutions of disputes in light of the facts vis-a-vis the ideological attitudes and values of the justices.

59. Ibid. 237.

61. Ibid., 238. In fact, Chief Justice Rehnquist claimed that cases like Morrison wasted the “scare resources” of the federal courts. See William H. Rehnquist, “The 1991 Year-End Report on the Federal Judiciary,” The Third Branch 24 (1992): 4. Also see Jason Mazzone and Carl Emery Woock, “Federalism as Docket Control: Federalism as Docket Control,” North Carolina Law Review 94 (2015): 54, 94.

63. Castle Rock v. Gonzales, 545 U.S. 748, 125 S.Ct. 2796, 2801(2005).

65. Ibid. 2802.

67. Ibid.

69. Ibid. 2808-10. The statute did not explicitly state that she was a “protected person” specifically entitled to enforcement of restraining orders.

71. Castle Rock, 545 U.S. 748, 125 S.Ct. 2796, 2799.

73. Vu, “Town of Castle Rock v. Gonzales,” 95; Machaela M. Hoctor, “Domestic Violence as a Crime Against the State: The Need for Mandatory Arrest in California,” 85 California Law Review 643, 649 (1997).

75. Gonzales v. City of Castle Rock, 366 F.3d 1093, 1109 (10th Cir. Colo., 2004); DeShaney v. Winnebago, 489 U.S. 189 (1989).

77. Castle Rock, 545 U.S. 748, 125 S.Ct. 2796, 2799.

79. Castle Rock, 545 U.S. 748, 125 S.Ct. 2796, 2806 (majority opinion).

81. Castle Rock, 545 U.S. 748, 125 S.Ct. 2796, 2822, (Stevens, J., dissenting).

83. Castle Rock, 545 U.S. 748, 125 S.Ct. 2796, 2803, citing Chicago v. Morales, 527 U.S. 41 (1999).

85. Lenahan, Case 12.626, Inter-Am. Comm'n H.R., 170-177. The Report recommended that the US pass “multifaceted legislation” to improve enforcement of mandatory orders and pay Ms. Lenahan and her family “full reparations.”

87. Critics may suggest that international law can also function as “storage” for men’s dominance. However, precedent demonstrates that, at least in some cases, international courts have managed to resist men’s dominance through law and better address violence against women than national legal systems. See Alice Edwards, Violence against Women under International Human Rights Law (New York: Cambridge University Press, 2011).

89. Giddens, The Constitution of Society,16.

91. MacKinnon, Are Women Human, 33.

93. Martha Finnemore and Kathryn Sikkink, “International Norm Dynamics and Political Change,” International Organization 52, no. 4 (1998): 893; Margaret E. Keck and Kathryn Sikkink, Activists beyond Borders: Advocacy Networks in International Politics (Ithaca, N.Y.: Cornell University Press, 1998).

95. Finnemore and Sikkink, “International Norm Dynamics and Political Change,” 891–892.

97. Giddens, The Constitution of Society, 26.


A significant difference between US v. Morrison and Town of Castle Rock v. Gonzales is the crime involved. Morrison is the case of Christy Brzonkala, a freshman at the Virginia Polytechnic and State University, who was gang raped by two members of the football team. Castle Rock concerned the Castle Rock Police Department’s non-enforcement of a restraining order placed on Simon Gonzales—a domestic violence offender—which resulted in Gonzales murdering his three daughters. The basis for comparison of these cases is they are each recent examples of the courts’ resistance to treating violence against women as a serious crime, worthy of federal remediation. Analyzed together, these cases demonstrate a pattern of refusal to recognize violence against women as a pervasive problem of men’s dominance. Specifically, the decisions represent a central obstacle against addressing each crime: Morrison’s rejection of a rape victims’ right to a federal cause of action served to further undermine the notion that rapists can or will ever be brought to justice. Indeed, only one-third of sexual assaults are reported, and only three percent of rapists spend one day in jail.  Similarly, despite the availability of civil protective orders for victims of domestic violence, a leading cause of continued violence is the police’s hands-off attitude to enforcement, the constitutionality of which is upheld in Castle Rock.  Moreover, the majority opinions of the two cases overlook the harmful precedent these Supreme Court decisions sanction for women’s lives.

Rape and domestic violence are discussed in this essay collectively as “violence against women.” This categorization is often utilized as a strategy for redressing feminist concerns through law. Feminists scholars—such as Lorenne Clark and Debra Lewis—theorize that women who are raped would not be treated fairly by the criminal justice system as long as the sexual connotations of rape were prioritized over the crime’s inherent violence.   For this reason, rape is commonly framed within the wider context of violence against women. However, I recognize that by using this categorization, there is a potential for eliding distinctions between different modes of oppression.  Catharine A. MacKinnon, whose theory is essential to this analysis, is weary of the usage of “violence against women” as a category itself. MacKinnon warns that collapsing rape into broader “abuses of violence” excludes precisely what is so problematic about rape—an issue inextricable from sex and sexuality.   The difference between rape in Morrison and domestic violence in Castle Rock is vast and significant. However, the mere recognition that these two forms of oppression are treated similarly by US law does not, in itself, trigger the discursive harms of homogenizing different kinds of violence against women. Moreover, the comparison is essential in order to realize how law reproduces a larger system of coercive control and subordination that allows for violence against women and enables repeated legal affirmations of men’s sovereignty.



Anthony Giddens’ theory of structuration is essential in this essay’s critique of the Supreme Court decisions in Morrison and Castle Rock, and moreover, in the illustration of the function of law in society as reflected in these cases. Structuration theory posits that both structures and human agencies constrain and reshape each other in mutually constitutive relations. According to Giddens, dynamics in institutions and structures are reproduced in social relations—the notion of the duality of structure. Although Giddens does not specifically consider the impact of gender inequality and dynamics—commonly criticized by feminist scholars —his theory enables a powerful critique of the legal system’s reproduction of gender inequality and the consolidation of power by men.

In addition, Giddens’ theory describes power and domination, which “cannot be thought of only in terms of asymmetries of distribution but have to be recognized as inherent in social association.”   For Giddens, domination depends on mobilizing allocative resources, such as economic institutions, and authoritative resources, such as political institutions.   Giddens asserts that dominant groups can retain power through the “storage” of authoritative and allocative resources. The memory and knowledge of past dominance allows for the perpetuation of that dominance. Giddens explains:


‘Storage’ is a medium of ‘binding’ time-space involving […] the knowledgeable management of a projected future and recall of an elapsed past […] The storage of authoritative and allocative resources may be understood as involving the retention and control of information or knowledge whereby social relations are perpetuated across time-space.”


Past social relations are stored through memory and institutions such that the dominant can retain their hold over resources through time. I posit that one such “container” is law, allowing for the storage of gender inequality and perpetuation of violence against women. US law’s roots in regressive gender systems has contributed to the slow pace of change and continued subjugation of women. In this way, Giddens’ structuration theory presents a vision for law’s role in society: law functions to store, entrench, and institutionalize the dynamics of social relations. As such, it is not surprising that violence against women is addressed through law in ways that systematically favor men.

Although institutional problems and inequalities are reproduced in social relations, Giddens urges that “[w]e should not conceive of the structures of domination built into social institutions as in some way grinding out ‘docile bodies’ who behave like […] automata.”    Rather, social systems retain continuity over time and space partly because of the “autonomy and dependence between actors.”  Through this notion of autonomy and dependence, Giddens conceptualizes “the dialectic of control in social systems” such that “dependence offer[s] some resources whereby those who are subordinate can influence the activities of their superiors.”   In this way, Giddens’ theory offers a path for agents to change, reconfigure, and transform systems, even when situated in disadvantaged positions. Therefore, Giddens’ notion of agency is useful in providing a mechanism to change how law treats violence against women, even if male sovereignty over law persists in the short term.

The feminist critique of Morrison and Castle Rock is influenced by the scholarship of Catharine A. MacKinnon, Carol Smart, and Martha Chamallas. One basic assumption these thinkers share is that gender equality is a goal that has not yet been achieved, either de jure or de facto. This framework considers law as an expression of men’s dominance in the state.   Transnational studies theorists, such as Margaret E. Keck, Kathryn Sikkink, and Martha Finnemore, influence the recommendations for action in Part V.



In analyzing Morrison and Castle Rock, this essay will apply Giddens’ structuration theory and the feminist legal frameworks established in Part II to the Supreme Court decisions on the basis of (a) a public/private divide in which violence against women is inherently “private” (b) the implicit statements on the worth of women, and (c) the sanctioning of men’s sovereignty through law.


US v. Morrison

As a freshman at Virginia Tech in 1996, Christy Brzonkala was gang raped by two members of the University football team. As a result, Ms. Brzonkala dropped out of school, sought psychiatric help, and attempted suicide.   She reported the rape to her university, which only investigated the charge against one of the two accused students—the one who confessed to the rape.   Without notifying Brzonkala, the school reduced the charge against this student from sexual assault to “using abusive language.”  Upon learning that her assailant was allowed to return to the university without reprimand, Ms. Brzonkala cancelled her own plans to return. Ms. Brzonkala’s rapists went unpunished and the state made no effort to protect her or hold either assailant responsible.

In a final attempt for a remedy, Ms. Brzonkala filed a civil suit in federal court under the Violence Against Women Act (VAWA) of 1994.   VAWA was passed after a four-year inquiry—surveying records from law enforcement officials, judges, social scientists, professors, physicians, and victims—confirming that violence against women is a national problem “requiring federal attention, federal leadership, and federal funds.”  Responding to the history of individual states’ failure to afford victims of gender-based violence an opportunity to vindicate their rights on a par with other victims of serious violent crime, VAWA included a provision, Section 13981, creating a new federal civil cause of action that allows a victim of gender-motivated violence to sue her attacker.   The statute responded to systemic biases in state criminal and civil courts by freeing victims from total dependence on the state systems that had belittled and demeaned their claims.

Ms. Brzonkala’s case went all the way to the US Supreme Court, which struck down Section 13981 as an unconstitutional exercise of Congress’ Commerce Clause and Fourteenth Amendment powers. The fact that violence against women has historically been a crime addressed by each locality was the justification for refusal to recognize the society-wide uniformity and the national scale of violence against women.   Moreover, the court—and in particular Chief Justice Rehnquist—feared the slippery slope of federalism as VAWA had the “potential to create needless friction and duplication among the state and federal systems.”     In reality, VAWA duplicated “no state law in theory, design, or remedy, [and had] federalism-friendly concurrent jurisdiction that provided merely a supplementary civil option while leaving state criminal remedies in place.”   However, the Court found that, since there are state laws against inequality of treatment, the fact that state laws are enforced in a discriminatory fashion is an insufficient reason to permit a federal remedy.   As a result, Morrison set a legal precedent requiring that a civil remedy to a nationwide problem be legislated state-by-state.

MacKinnon has sharply pointed out that the fear of national encroachment on states’ rights is a gendered phenomenon. The Fourth Circuit court opened their decision on Morrison with “We the People”—the first words of the Preamble to the US Constitution—are “distrustful of power, and believing that government limited and dispersed protects freedom best.”    Naturally, those represented by “We the People” in the US Constitution it was written were exclusively white men—excluding the voice of Brzonkala and amplifying those of her assailants. The meaning behind these words is an assertion of self-determination: men’s trust in their own power but distrust in other men’s power over them. In this way, the Fourth Circuit court saw Morrison as a threat to them; federal power empowered other men over them, both personally and professionally.    Yet, this fear did not enable the judges to identify with Brzonkala, let alone accord a woman’s interest in living as an equal, free from gender-based violence, the same level of constitutional priority as the states’ interests in maintaining their traditional sphere of action.

By rejecting the civil rights remedy of VAWA in Morrison, the Supreme Court circumscribed Congress’s power to enact federal laws pursuant either to Section 5 of the Fourteenth Amendment or to the Commerce Clause. The overall decision of the Court regarding Ms. Brzonkala’s civil suit was that her rape—in a room not her own, while she was attending a public educational institution, condoned by public officials through public legal processes—was a private matter.


  1. The Public/Private Divide in US v. Morrison

The Supreme Court majority—consisting of Justices Rehnquist, O’Connor, Scalia, and Kennedy, joined by Thomas—recognized that the states’ laws against inequality of treatment were applied in a discriminatory fashion. Yet, Rehnquist’s majority opinion stressed that Section 13981 exceeded the Fourteenth Amendment’s enforcement powers as it attempts to regulate private actions while the Fourteenth Amendment “erects no shield against merely private conduct.”    For this judgment, the Supreme Court cited Shelley v. Kraemer, in which the court ruled that private actors may voluntarily abide by terms of racially restrictive real estate covenants, but enforcement of such covenants constitutes discriminatory state action. However, as racially restrictive housing contracts are worthless pieces of paper unless enforced by law, the Court determined that in order to become effective, contracts “contain[ed] an express allegation of state involvement.”    By withdrawing legal backing from these contracts, Shelley eliminated this contractually enforceable inequality.

In contrast to Shelley, violence against women is self-enforcing unless addressed by law.    Although violence against women is emboldened and perpetuated by the widespread failure of the states to enforce recourse against perpetrators, the abdication of state authority to prevent violence against women is not defined as a state act. Therefore, by determining that violence against women is private, the Supreme Court defines state acts very narrowly. However, the fact that states have actively, officially, and publicly failed to protect women, this “[d]iscriminatory abdication by public authority makes private acts public.”    The states’ failure to act is in itself a public act, and thus violence against women is only considered private because it has been kept private by exclusion from public recognition or public redress. Similarly, the Supreme Court’s decision to sanction “systematic state nonintervention in the private” “is a public decision by the highest Court of the nation to support male power.”    The ‘private,’ therefore, is defined in Morrison as the location where violence against women happens, or rather where effective redress for gender-based violence is unavailable.    Moreover, by reaffirming that women’s mistreatment by law is itself a private affair, without remediation by the federal government, the Court suggests that the law itself excludes women.

    2. Women’s Worth in US v. Morrison

The Supreme Court ruled that Section 13981 also lacked authority under the Commerce Clause. However, Rehnquist’s decision stressed that “Congress has had considerably greater latitude in regulating conduct and transactions under the Commerce Clause than our previous case law permitted.”    After four years of research and hearings, Congress enacted VAWA because of extensive findings that violence against women is a national problem that “bars its most likely targets—women—from full partic[ipation] in the national economy,” both on a case-by-case basis and in aggregate.   Congress determined that women are deterred from interstate travel, from conducting interstate business, and deprived of the opportunity to secure and maintain employment on equal footing with men as a result of gender-based violence. An increase in medical care and unemployment benefits due to this violence costs the US over $3 billion per year.    In Morrison, Brzonkala’s assault caused her to drop out of college, significantly altering her future economic potential. These economic costs, Congress determined, constitute a substantial impact on the national economy. The Court’s role is to review the congressional findings “not for soundness, but simply for the rationality.”    Yet, the Court found that the activity VAWA aimed to regulate was “local” and “noneconomic.”   This determination consisted of disputing Congress’ characterization of “[g]ender-motivated crimes of violence” as “any sense of the phrase, economic activity.”   Beyond being non-economic, the Court rejected the national pervasiveness of violence against women by demanding that any impact it may have on the economy is local in character.

Interestingly, even if the economic impact of violence against women is “local,” the aggregation of its local effects would certainly have an impact on the national economy. This logic was used in Wickard v. Filburn—which both Justices Souter and Breyer cite in their dissents—whereby stated that “growing wheat at home for home consumption, an activity purposefully outside the stream of commerce and determinedly domestic, was found subject to regulation under the Commerce Clause because, when aggregated, it produced a substantial economic effect.”     Wickard recognized that even if “activity be local, and though it may not be regarded as commerce, it may […] be reached by Congress if it exerts a substantial economic effect on interstate commerce.”    As Justice Souter emphasized in his dissent, the Commerce Clause was applied in Wickard simply because of the existence of an effect on supply and demand in interstate commerce from producing wheat for home consumption. Similarly, “[s]upply and demand for goods in interstate commerce will also be affected by the deaths of 2,000 to 4,000 women annually at the hands of domestic abusers […] and by the reduction in the work force by the 100,000 or more rape victims who lose their jobs each year or are forced to quit.”    Why some non-economic entities gain economic characters upon aggregation in some cases and not others lacks any substantial support.

However, feminist theory provides a potential explanation for the reluctance to consider women as contributors to the national economy. For instance, Martha Chamallas approaches the subject of women’s subordinated economic worth through her study of tort law.   In tort law, an “implicit hierarchy of value”—determining the ranking of types of injuries—relegate women to “noneconomic” categorizations.   The failure to consider an economic impact of violence against women indicates the court’s resistance to view any gender-motivated violence to have a significant impact on her; whether or not a woman is subject to gender-motivated violence is not considered significant for her life or for her community. This line of thinking blatantly undervalues women as human beings and as contributing members of society, relying on regressive notions of solely domesticated women, engaged in ‘valueless,’ noneconomic, and non-public activity.

Representative of the Court’s rejection of women’s contribution as active members of society is Rehnquist’s reliance on the recent precedent of US v. Lopez. In Lopez, the Court found unconstitutional a law in which Congress, under the Commerce Clause, made it illegal to carry a firearm near a school building. The Rehnquist Court rejected the law because the subject matter—guns—had “nothing to do with ‘commerce’ or any sort of economic enterprise.”    Rehnquist’s frequent reference to Lopez in his opinion on Morrison suggests a comparison between women and guns; the Court’s view is that women contribute to the economy as much as an inanimate object. 

The devaluation of women and their contribution—and indeed their lives—as non-economic is predicted in Giddens’ structuration theory. As domination depends on “the mobilization of […] allocative resources” such as economic institutions, the dominant group controls the definition of ‘economic,’ defining it as “hav[ing] meaning only in the context of market economies.”    Yet, as Giddens argues, “the economic cannot properly be defined, in a generic way at least, as concerning struggles for scarce resources.”    Freedom from gender-motivated violence can be considered an economic resource and its lack of “‘materiality’ does not affect the fact that such phenomena become resources.”   Therefore, reclassifying institutional orders “depends upon resisting what has sometimes been called ‘substantivist’ concepts of ‘economic,’ ‘political,’ and other institutions.”    The Supreme Court’s narrow and exclusive definition of ‘economic’ reflects its role as a dominant agent, reproducing inequalities of social relations through its decision-making capacity. It is thus the role of the subordinate, non-dominant group to resist these categorizations.


    3. Sovereignty Over Law in US v. Morrison

Illustrated by the Supreme Court’s narrow definition of ‘economic’ that excludes and disempowers women, Morrison affirms men’s dominance over law. There is certainly precedent to support upholding Section 13981, demonstrated by the four dissenting justices. Feminist critique of law, epitomized by MacKinnon, shows how the five concurring justices were swayed “less with the imperatives of institutional forces the majority invoked than with the gender relations that impel those forces.”   This form of decision-making—in which judicial outcomes depend on judges’ personal goals; the rules, or institutional environment; and situations, or facts of the case—is supported by Segal and Spaeth’s “attitudinal model.”   Morrison relies institutional doctrines that were built upon social arrangements of men’s power. MacKinnon characterizes the “‘traditional’ allocation to state authorities of the government response to men’s violence against women” as nothing more than a “historical tradition of men […] dividing up power among themselves under conditions in which women had no authoritative say.”   In this way, men’s power over law cannot be viewed in isolation from the gender relations that deprive women of power in private spaces.

MacKinnon describes the changing legal status of women—the transformation from chattel to citizen—as a process of leaving home:


The closer to home women’s injuries are addressed, the less power and fewer rights women seem to have; the farther away from home the forum, the more power and rights women have gained […] For […] violated women, going public […] has meant seeking accountability and relief from higher sovereigns, men who have power over the men who abused them because they are above, removed from, hence less likely to be controlled by those abusers […] Systematically, the preferred jurisdiction of resolution is always closest to the abuser.


In context of MacKinnon’s analysis, Morrison can be viewed as Brzonkala encountering a “systemic barrier,” telling her that a federal court is no place for her civil suit against her rapist, but that the Court’s reasoning has “nothing to do with gender but simply reflect the way the system works.”    By seeking accountability in increasingly higher, superior forums, women attempt to resist men’s sovereignty. However, upon appealing to a higher sovereign—the Supreme Court—Brzonkala and women like her are told “they do not belong there and should go back home where they belong.”    Brzonkala’s remaining recourse after Morrison was to bring a civil suit against her rapists in a state court: a forum closer to home, closer to the crime, and closer to the perpetrator’s domain. In effect, “Morrison sent women home, to their violators.”    Yet, as Morrison proves, appealing to higher sovereigns in the US does not guarantee justice, especially when centuries of male-dominated legal precedent is stacked against women. Another higher, international forum is needed. This alternative is explored through the case study of Town of Castle Rock v. Gonzales and later Lenahan v. US.

Town of Castle Rock v. Gonzales

In 1999, Jessica Gonzales was divorcing her estranged husband, Simon Gonzales, and obtained a restraining order against him. One evening, Mr. Gonzales abducted their three daughters played outside, violating his restraining order. Ms. Gonzales called the Castle Rock Police Department, but when officers arrived, they told Ms. Gonzales that “there was nothing they could do” and suggested that she “call the Police Department again if the three children did not return home by 10:00 p.m.”     Around 8:30 p.m., Ms. Gonzales spoke to Mr. Gonzales on his cell phone, and he indicated that he had the children at a nearby amusement park. Ms. Gonzales again called police, requesting that they attempt to find and arrest Mr. Gonzales at the park. The police refused to perform any duties prescribed by the restraining order.    After 10:00 p.m., Ms. Gonzales again notified the police to report that the children were still missing, to which the dispatcher instructed her to wait until midnight, at which point she again reported the children missing. When the dispatcher again refused to help, Ms. Gonzales drove to her husband’s apartment. Upon discovering he was not home, she telephoned the police. When the police officers failed to respond, Ms. Gonzales went to the police station took an incident report. Rather than attempt to enforce the protective order or locate her three children, the officer left for dinner.   Later that evening, Mr. Gonzales arrived at the police station, opening fire with a semiautomatic handgun. Police officers returned fire and killed him. They later located the lifeless bodies of the three daughters inside Mr. Gonzales’ truck.

Jessica Gonzales alleged that she was denied substantive and procedural due process rights in the failure of the Police Department to enforce the restraining order against Mr. Gonzales.   Castle Rock reached the Supreme Court in order to resolve the question of “whether an individual who has obtained a state-law restraining order has a constitutionally protected property interest in having the police enforce the restraining order.”   The court ruled 7-2 that Ms. Gonzales did not have an entitlement to enforcement to her mandatory protection order.  In effect, the Court determined that the Colorado statute requiring mandatory arrest in domestic abuse cases was not “mandatory enough.”    The Court argued it was unclear whether an entitlement to enforcement of a protective order could constitute a “property” interest, as “such a right would have no ascertainable monetary value.”


    1. Public/Private in Castle Rock v. Gonzales

Castle Rock is a classic example of official under-enforcement in matters of domestic violence—and broadly in matters of violence against women—as a result of the perception that domestic violence is “a private, “family” matter and that arrest ought to be used as a last resort.”   Police often respond to domestic violence calls by taking no action, purposefully delaying response in order to avoid confrontation, or attempting to mediate the situation.    Although Colorado state law includes a mandatory arrest statute in domestic violence situations, such that police must enforce a protective order, that statute was not followed.   The police officers did not take Ms. Gonzales’ claims seriously—considering her repeated pleas to be regarding a private matter—implicitly trusting Mr. Gonzales as head-of-household to care for their three daughters. The officers determined unilaterally that police intervention was unnecessary, resulting in the murder of three children.

Moreover, in determining whether Ms. Gonzales’ substantive due process rights were violated, the courts cited Deshaney v. Winnebago, which held that “[e]ven if the State knows of an individual’s predicament […] its failure to protect does not violate substantive due process,” except “where the State creates the danger.”   The Court concluded that Ms. Gonzales’ substantive due process rights were not denied because the danger to her and her children was “a direct result of Simon Gonzales’s action, not of police inaction.”    Similar to Morrison—the Court ruling that rape is private and therefore unable to be regulated by the Fourteenth Amendment—Castle Rock determined that domestic violence is beyond the scope of the government’s responsibility. Domestic violence, Castle Rock held, is private, and thus no amount of government inaction could be considered negligent. The danger of domestic violence in their household may have been initiated by Mr. Gonzales, but the danger posed by the failure of the government to act is anything but private. Rather, the Police Department’s abdication of their responsibility ensured that this “private” situation became public. 


    2. Women’s Worth in Castle Rock v. Gonzales

The Court determined that the “property interest” in having the protection order enforced “has no ascertainable monetary value.”   Here, the implicit assumption, similar to those made in Morrison, is that whether or not a woman is subjected to gender-motivated violence is inconsequential in a monetary sense, and thus is of little consequence to her life. Stevens’ dissent contends that the Court has previously “made clear that the property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money.”  Regardless, according to the majority—despite mounting evidence that violence against women has significant economic impacts—there is no monetary difference between a life lived with and without the enforcement of a protection order. This judgment involves implicit devaluation of women’s material and public contribution.


    3. Men’s Sovereignty Over Law in Castle Rock v. Gonzales

Men’s sovereignty over law is illustrated in the Court’s decision that the mandatory arrest statute in Colorado is not a “true mandate.”   In response to low arrest rates, Colorado instituted a statute into state law removing police discretion, mandating arrests.   Justice Stevens, in his dissent, found that “Colorado law has quite clearly eliminated the police's discretion to deny enforcement” and Ms. Gonzales therefore had a legitimate claim of entitlement to enforcement.    Regardless, the police discounted Ms. Gonzales’ judgment that indeed the protection order had been violated and that her children were at risk. The officers injected their own discretion on the matter, implicitly trusting Mr. Gonzales, who had a history of erratic and violent conduct, more than Ms. Gonzales. The Court approved of the officers’ use of their own discretion in determining the necessity of action. However, writing for the majority opinion in the Tenth Circuit Court, Judge Stephanie Seymour stresses that “once probable cause exists, any discretion the officer may have possessed in determining whether or how to enforce the restraining order is wholly extinguished.”    Yet, given that the Supreme Court interpreted the protection order as a benefit that could be granted or denied based on official discretion, and therefore not an entitlement.   Viewing the elimination of police discretion in enforcement as an attempt to limit men’s sovereignty over law and place power in the hands of domestic violence survivors, it is unsurprising that the Court supported the police officers’ decision not to intervene nor honor the protection order. This judgment further affirms the court’s role in society as “storage” for men’s dominance in societal systems.



While Part III of this essay addressed the similarities in Morrison and Castle Rock, Part IV presents a central difference in how these cases were ultimately resolved. Brzonkala did not pursue a suit against her rapists in a state court after Morrison. After Castle Rock, Jessica Lenahan (formerly Gonzales) petitioned an international body—the Inter-American Commission on Human Rights (IACHR)—to review her case. The IACHR’s landmark report in Lenahan v. US entirely negated Castle Rock, concluding that the US violated numerous rights protected by the American Declaration of the Rights and Duties of Man by failing to exercise due diligence to protect Lenahan and her three daughters.   The report urged the US government to conduct a thorough investigation into the “systematic failures that took place” and “to determine the responsibilities of public officials for violating state and/or federal laws, and holding those responsible accountable.”

The IACHR’s conclusion drew support from diverse sources—including international treaties, UN resolutions and reports, and decisions from other international bodies—and acted as a “highest sovereign,” with authority over states and countries.    By diverging from the “storage” of men’s sovereignty by using a wide variety of legal sources, the IACHR categorized the domestic violence in Castle Rock—and all violence against women—as a violation of human rights. In contrast to US law regarding gender-based violence, human rights violations must be addressed by states with “due diligence”—a positive obligation to prevent, investigate and punish acts of violence against women, whether those acts are perpetrated by states or by private persons. Therefore, the argument that violence against women is “private” does not mitigate the state’s obligation to prevent the violence under the due diligence standard. In this way, Lenahan provides an alternative solution for cases like Morrison: justice through appealing to international human rights courts and holding states accountable through the due diligence standard. More women victims of gender-based violence must to be able to seek justice in international forums, and in so doing, challenge the structures that sanction violence against women in general. Lenahan proves the necessity of utilizing transnational networks to normalize the notion that states, including the US, can and must be held responsible for “private” violence.



Lenahan presents a strategy that is a model for future legal action regarding violence against women in the US. In accordance with MacKinnon’s theory that women are able to obtain justice “farther from home” and from the sovereignty of those who violate their rights in “private,” women who suffer from gender-based violence must be empowered to seek justice in international courts. International courts are superior to the US legal system here for three reasons: they rely on diverse legal sources, diverging from the “storage” of men’s sovereignty through US law; they allow women to seek justice from the “highest sovereign,” courts that have authority over countries;   and international legal frameworks include the standard of due diligence, holding governments responsible for negligence. Moreover, international courts allow a comprehensive review of women’s treatment globally; just as violence against women is not a local problem at Virginia Tech or in Castle Rock, Colorado, it is also not “local” to the US. Rather, the “risk of violence […] is one thing women, irrespective of their […] colour or culture, share in common.”

To address the failings of US courts, it is essential to mobilize non-governmental organizations to increase access to international legal bodies for victims of gender-based violence. This recommendation includes educating women about their legal right to seek redress in international courts, as well as disseminating past findings of international bodies to potential plaintiffs and government officials. This essay proposes that women who seek justice for violence be encouraged and empowered to forgo US legal processes—challenging the sovereignty of US law—in favor of international bodies. This recommendation is supported by Giddens’ theory, in which institutions do not produce “‘docile bodies’ who behave like […] automata,” but rather people are enabled by autonomy and co-dependence.   Agents are empowered to change structures as “[s]tructure has no existence independent of the knowledge that agents have about what they do in their day-to-day activity.”   Structures are maintained through the constant tug-of-war between autonomy and interdependence of actors and systems. The legal structures currently storing men’s dominance lose authority if they are no longer respected as sovereign; only by rejecting law’s storage of dominance can we begin institutionalizing and internationalizing gender equality “to de-institutionalize […] the governmental pattern […] of collaboration in the violent sexualized subordination of women.”

A likely criticism of this recommendation’s appeal to international legal norms is that implementation of international law is highly politicized and US structures resist deferring to external authority.    However, transnational studies scholars, notably Margaret E. Keck, Kathryn Sikkink, and Martha Finnemore, offer a framework to outline practical suggestions for future action. Finnemore and Sikkink emphasize how global norms—such as due diligence standards—are diffused not through state action, but through transnational advocacy networks: “norm entrepreneurs.”    Norms are translated across borders, according to Cass R. Sunstein, through “norm cascades.”    “Norm life-cycles” unfold by initial norm emergence, cascading, and domestic norm internalization.   Transforming gender relations relies on professionalized and “NGO-ized” social networks, based on principles and values, organizationally decentralized and flexible.  As due diligence standards have already emerged in international law, this section’s recommendations are geared towards enabling cascading and domestic internalization of norms.

This proposal to redirect legal cases involving violence against women to international forums does not aim to entirely replace US law with international law, nor to remove women from the US legal system. In the short term, the goal is to repudiate the concept that US law is an adequate forum to address women’s concerns, thereby rejecting men’s sovereignty over law. Due to the efficacy of transnational networks, the resolution of a greater number of US cases involving violence against women in international forums will result in “norm cascading:” the standard of due diligence diffusing into social relations, even absent US structural change. Most importantly, in the long term, increasing access to international forums will alter how agents view their “day-to-day enactments of social life,” thereby changing societal structures through Giddens’ duality of structure.   In the process of domestic norm internalization, US law will eventually mirror the “highest sovereign”—incorporating the positive obligation inherent in due diligence standards to prevent violence against women.



2. A. J. Cambria, “Defying a Dead End: The Ramifications of Town of Castle Rock v. Gonzales on Domestic Violence Law and How the States Can Ensure Police Enforcement of Mandatory Arrest Statutes,” Rutgers Law Review 59, no. 1 (2006): 161.
































































































4. Smart, Feminism and the Power of Law (New York: Routledge, 1989), 45.

6. Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge: Harvard University Press, 1987), 86–7.

8. For instance, Diana Mulinari and Kerstin Sandell. “A Feminist Re-Reading of Theories of Late Modernity: Beck, Giddens and the Location of Gender,” Critical Sociology 35, no. 4 (July 1, 2009): 493–507.

10. Ibid. 33.

12. Ibid. 16.

14. Ibid.

16. United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 1746 (2000).

18. Ibid.

20. Joseph R. Biden Jr., “The Civil Rights Remedy of the Violence against Women Act: A Defense Essay,” Harvard Journal on Legislation 37 (2000): 43.

22. Ibid. 43.

24. William H. Rehnquist, “Welcoming Remarks: National Conference of State-Federal Judicial Relationships,” Virginia Law Review 78 (1992): 1657, in MacKinnon, Women’s Lives, Men’s Laws, 215.

26. Ibid. 218.

28. Brzonkala v. Virginia Polytechnic Institute and State University, 169 F.3d 820, 825-826 (4th Cir. 1999); MacKinnon, Women’s Lives, Men’s Laws, 231.

30. Ibid. 231, 236

32. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 1746 (majority opinion), quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948).

34. Ibid. 233-4.

36. Ibid. 233.

38. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 1748 (majority opinion).

40. Biden, “The Civil Rights Remedy of the Violence against Women Act,” 4. Medical costs related to domestic abuse alone were estimated over $100 million annually.

42. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 1754 (majority opinion).

44. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 1774 (Breyer, J., dissenting).

46. Wickard, 317 U.S. 111, 125.

48. United States v. Lopez, 514 U.S. 549, 627 (1995), (Breyer, J., dissenting). Also see Morrison, 529 US 598, 120 S. Ct. 1740, 1759 (Thomas, J., concurring). Justice Thomas disapproved of this “substantial effects” test under the Commerce Clause as “inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.”

50. Martha Chamallas, Introduction to Feminist Legal Theory (Gaithersburg: Aspen Law & Business, 1999), 199. As the categories constructed to describe types of injuries and damages are inseparable from societal contexts of gender inequality, “important and recurring injuries in women’s lives tend more often to be classified as lower-ranked emotional or relational harm, or as noneconomic loss […such that] it [is] more likely that relief will be denied or that recoveries will be devalued.”

52. Giddens, The Constitution of Society, 33-34.

54. Ibid. 33.

56. MacKinnon, Women’s Lives, Men’s Laws, 235.

58. MacKinnon, Women’s Lives, Men’s Laws, 235.

60. Ibid.

62. Ibid. 238.

64. Ibid. 2796, 2801-02.

66. Ibid.

68. Ibid. 2800.

70. Vi T. Vu, “Town of Castle Rock v. Gonzales: A Hindrance in Domestic Violence Policy Reform and Victory for The Institution of Male Dominance,” The Scholar: St. Mary’s Law Review on Minority Issues 9 (2006): 105.

72. Castle Rock, 545 U.S. 748, 125 S.Ct. 2796, 2817, (Stevens, J., dissenting).

74. Colorado Revised Statute §18-6-803.5(3)(a) (2002). The statute mandates arrest whenever there is probable cause to believe that the restrained person has violated or attempted to violate any provision of the order.

76. Kirsten S. Rambo, “Trivial Complaints”: The Role of Privacy in Domestic Violence Law and Activism in the U.S. (New York: Columbia University Press, 2009), 145.

78. Castle Rock, 545 U.S. 748, 125 S.Ct. 2796, 2822 (Stevens, J., dissenting).

80. In context of domestic violence, allowing the police wide discretion to arrest or otherwise prevent a perpetrator from inflicting harm presupposes that officers are aware of the unconscious biases that may corrupt their judgment, such as lack of interest in intervening in matters they consider “private.” For this reason, limiting police discretion through mandatory arrest statutes was a major success for anti-domestic violence activists. See Linda Hamilton Krieger, “The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity,” Stanford Law Review 47, no. 6 (1995): 1161-1188; Vu, “Town of Castle Rock v. Gonzales,” 112.

82. Gonzales v. Castle Rock, 366 F.3d 1093, 1106, quoted in Rambo, Trivial Complaints, 147.

84. Rehan Abeyratne and Dipika Jain, “Domestic Violence Legislation in India: The Pitfalls of a Human Rights Approach to Gender Equality,” American University Journal of Gender, Social Policy, and the Law 21, no. 2 (2013): 366; Lenahan v. United States, Case 12.626, Inter-American Commission on Human Rights, Report No. 80/11, 5 (2011). These rights include: Ms. Lenahan’s right to equality and nondiscrimination, her daughters’ right to life, in conjunction with their right to special protection as female children; and Ms. Lenahan and her children’s right to judicial protection.

86. Abeyratne and Jain, “Domestic Violence Legislation in India,” 366; MacKinnon, Women’s Lives, Men’s Laws, 237. Moreover, US law was formed and debated without consent or contribution from women. International law is relatively new, constantly reforming through the addition of new treaties.

88. United Nations Centre for Social Development and Humanitarian Affairs, Violence Against Women in the Family 1989, 12, quoted in MacKinnon, Are Women Human, 30.

90. Ibid. 26.

92. US resistance to adopt the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is one example of the politicization of human rights. See Abeyratne and Jain, “Domestic Violence Legislation in India,” 371-2.

94. Cass R. Sunstein, Free Markets and Social Justice (New York: Oxford University Press, 1997), 35.

96. Valerie Sperling, Myra Marx Ferree, and Barbara Risman, “Constructing Global Feminism: Transnational Advocacy Networks and Russian Women’s Activism,” Signs 26, no. 4 (2001): 1155, 1159.


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