Doe v. ConstantHaiti: Death Squads and Gender-Based Violence
Jane Doe et al. v. Emmanuel “Toto” Constant
On December 22, 2004, CJA filed a complaint in the U.S. District Court for the Southern District of New York against Emmanuel “Toto” Constant, the founder and former leader of FRAPH (Revolutionary Front for the Advancement and Progress of Haiti), a notorious death squad that operated under Haiti’s 1991-1994 military regime.
On August 16, 2006, the District Court issued a default judgment, finding Constant liable for torture, crimes against humanity and the systematic use of violence against women, including rape. The plaintiffs were awarded $19 million in damages. This judgment marks the first time that anyone has been held accountable for the state-sponsored campaign of rape in Haiti.
Constant appealed the decision to the U.S. Court of Appeals for the Second Circuit. On December 1, 2009, the Second Circuit rejected Constant’s appeal and upheld the $19 million judgment against him. The Court ruled that plaintiffs had presented sufficient allegations that Constant had “worked in concert with the Haitian military to terrorize and repress the civilian population.” Constant filed a petition for panel rehearing or rehearing en banc by the full Second Circuit Court of Appeals, which was denied on February 23, 2010. Finally, on October 4, 2010 the U.S. Supreme Court issued an order denying Constant's petition for a writ of certiorari.
In September 1991, President Jean-Bertrand Aristide was overthrown by elements of the Haitian Armed Forces. From the 1991 coup until the armed U.S. intervention in October 1994, the de facto military regime presided over one of the bloodiest periods in modern Haitian history. An estimated 4,000 civilians were killed and several hundred thousand were tortured, imprisoned, or forced into exile by the Haitian Armed Forces and a paramilitary organization called FRAPH—a play on the French and Creole verb “frapper,” meaning “to hit” or “to beat”.
The founder and former leader of FRAPH was Emmanuel “Toto” Constant, the outspoken son of an army commander under the Haitian dictator “Papa Doc” Duvalier. Constant modeled FRAPH on the notorious Duvalierist death squad, the Tonton Macoutes.
In 1993 and 1994, FRAPH brutalized the dictatorship’s perceived enemies and pro-democracy activists employing extrajudicial killings, enforced disappearances, arson, rape and other forms of torture. These violent actions, taken against the poorest neighborhoods of Haiti, worsened the already severe burdens of illness, malnutrition and dire poverty that afflicted these communities.
The Targeting of Women in Haiti
FRAPH’s signature atrocity was the use of sexual violence against women. Rape and other forms of gender-based violence were used as a weapon of war, to punish and intimidate women for their or their family’s perceived political sympathies.
The modus operandi of FRAPH was to
The Raboteau Criminal trial in Haiti
In 1994, diplomatic and military pressure from the U.S. secured the return of the democratically-elected Aristide government. A few months after his return to power, Aristide issued a warrant for Constant’s arrest. But Constant—like several other leaders of the military regime—fled Haiti and found safe haven in the U.S.
Responding to public outcry against Constant’s presence, the U.S. government ordered his deportation in 1995. Shortly thereafter, Constant appeared on the news program
Later, in November 2000, Constant was convicted in absentia in Haiti for conspiracy and complicity in murder and other crimes stemming from the 1994 Raboteau massacre. Constant and 36 other defendants—including the high command of the Haitian Armed Forces—were charged with command responsibility for the criminal actions of their subordinates. Notwithstanding the conviction in Haiti, Constant continued to live freely in New York City, working as a real estate agent in the heart of the Haitian diasporic community.
» Read here for more on the Raboteau Massacre Trial in Haiti.
On December 22, 2004, CJA and pro bono counsel Sonnenschein Nath & Rosenthal LLP and the Center for Constitutional Rights filed suit on behalf of three Haitian women who accused Constant of overseeing extrajudicial killing, torture, and crimes against humanity in 1993 and 1994. The case was brought before the U.S. District Court for the Southern District of New York under the Alien Tort Statute and the Torture Victim Protection Act. Due to the fear of reprisals, the plaintiffs filed their claims anonymously.
Defendant Constant was personally served with the complaint on January 14, 2005, but failed to respond. On August 16, 2006, the district court granted plaintiffs’ motion for a default judgment and an evidentiary hearing to set damages was held on August 29, 2006, before Judge Sidney Stein. Once again, Constant failed to participate in the proceedings. At the hearing, CJA and pro bono co-counsel presented evidence including the testimony of two of our clients, who testified anonymously behind a screen. Judge Stein ordered Constant to pay $19 million in damages to CJA’s clients.
Criminal Mortgage Fraud Trial
Shortly before the default judgment was entered against him, authorities in New York arrested Constant for criminal mortgage fraud. On October 28, 2008, he was sentenced to 12 to 37 years in prison after being
found guilty on all six felony counts against him in a July 2008 trial. Constant’s criminal trial and subsequent conviction is the result of
measures taken by CJA to educate the U.S. government on Constant’s
background as a human rights abuser. The judge specifically mentioned
Constant's role as a human rights abuser at sentencing.
» A full summary of CJA's intervention in the mortgage fraud case is available here.
Department of State’s Statement of Interest
On September 27, 2006—while Judge Stein’s Finding of Facts and Conclusions of Law was still pending—John B. Bellinger, III, Legal Advisor to the U.S. Department of State, issued a statement of interest in the matter of Doe v. Constant. Without disputing the facts of the case, Bellinger expressed concern about the Court’s invoking of customary international law. Bellinger suggested that Judge Stein simply enter a judgment without “endorsing the theories espoused in the complaint.” Instead, on October 24th, Judge Stein upheld the plaintiffs’ theories of liability based on the command responsibility doctrine.
Motion to Vacate and Appeal
In 2007, twenty-two months after the entering of the default judgment, Constant launched a pro se campaign from prison to have the judgment voided. Constant argued that, as the head of FRAPH, he was not a state actor and therefore cannot be subject to liability under the TVPA. On July 30, 2008, Judge Stein denied Constant's motion and wrote, “Constant presents no evidence of his bald self-serving assertions that FRAPH did not have anything to do with the government of Haiti…” and that “there is no conceivable doubt that the defendant was the leader of FRAPH, a violent and brutal paramilitary organization...”
In August 2008, Constant filed a pro se appeal with the Second Circuit Court of Appeals. On December 1, 2009, the Second Circuit Court of Appeals affirmed Judge Stein's order denying Constant's motion to have the judgment voided. Constant thereafter filed a petition for panel rehearing or, in the alternative, rehearing en banc, which the Second Circuit also denied on February 23, 2010.
United States Supreme Court
On May 21, 2010, Constant filed a petition for writ of certiorari with the U.S. Supreme Court. It was placed on the docket on June 14, 2010 and distributed for conference on September 27, 2010. The Supreme Court denied Constant's petition for writ of certiorari on October 4, 2010. In the same order, the Court granted our motion to seal the petition.