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First, this Article explains the facts and the Commission's legal analysis in Maria da Penha and Lenahan and briefly describes the different approach taken by the Commission in each case.
Second, this Article analyzes the evolution in the case law that led to the recognition that a State's failure to prevent and investigate could constitute a violation of substantive rights. Third, this Article examines the standard the Commission utilized in analyzing the duty to prevent in Lenahan and describes the theory of foreseeable risk, how it has been used, and the role it played in the Lenahan case. Finally, this Article discusses the theory of foreseeable risk, its application to cases of domestic violence, and the significance of this development in the jurisprudence of the Inter-American system.
This Article concludes that the recognition of substantive rights may be violated by the failure of the State to prevent and investigate, and that the use of the theory of foreseeable risk constitutes a significant step forward in clarifying the obligation of States to fight domestic violence. Finding a State responsible for failing to prevent, pursuant to the theory of foreseeable risk, implies that the State knew or ought to have known there was an imminent risk of domestic violence, and in the face of this foreseeable risk, the State failed to take action. This lack of prevention might be considered the equivalent of acquiescence pursuant to the definition of torture in the United Nations Convention Against Torture (UNCAT)." Consequently, this evolution could, and hopefully will, result in a recognition in the Inter-American System that in certain circumstances domestic violence constitutes torture.