Women and Justice: Keywords

Domestic Case Law

Matter of J.W.D. New Jersey Supreme Court (1997)

Domestic and intimate partner violence

Defendant appealed the trial court’s determination that he could not have the return of his firearms after a second domestic violence complaint. Upon appeal the appellate division reversed. The State appealed, and the Supreme Court of New Jersey found that the defendant was not entitled to the return of his firearms if the court were to find he posed a threat to public health, safety or welfare under the Prevention of Domestic Violence Act. Before the plaintiff and the defendant divorced, the plaintiff filed two domestic violence complaints. During the first complaint, the police confiscated the defendant’s guns and firearms purchaser identification card. The defendant ultimately obtained his firearms back. Subsequently, as the parties’ divorce action was pending, the second complaint arose when the plaintiff went to pick up their son from the defendant’s house. The police once again confiscated the defendant’s weapons. In addition to these confrontations, the defendant had affixed post-it notes to the windows stating, “danger, enter at your own risk,” and set up devices that appeared like booby traps. Further, during the parties’ marriage, the defendant would play music, strap on a holster and walk around the house with his gun. The plaintiff never knew if the gun was loaded on these occasions. The court found this established enough evidence to warrant denial of returning the firearms, as the defendant posed a threat to public safety and health under the Prevention to Domestic Violence Act.

State v. Gonzales New Mexico Court of Appeals (1997)

Domestic and intimate partner violence

On July 15, 1994, a domestic violence protective order involving Gonzales and Wife was entered. The order contained a “stay away” provision, one that prohibited Gonzales from visiting Wife’s workplace. Five days later, on July 15, 1994, Gonzales was arrested for being at Wife’s workplace. The trial court found that Gonzales had violated the protective order in contempt and sentenced him to jail. Five days later, on July 25, 1994, Gonzales was again charged, this time for criminal false imprisonment, battery, stalking, and harassment. The July 25 charges were based on the same encounter as the July 20 conviction. Gonzales filed a motion to dismiss on the charges of stalking and harassment. He argued that the July 20 conviction for contempt should preclude a successive prosecution on stalking and harassment. Following this “double jeopardy” theory, the trial court dismissed the sexual harassment and stalking claims. The state appealed.

In re Grievance of Butler Vermont Supreme Court (1997)

Gender discrimination, Sexual harassment

Plaintiff worked for the defendant as a police officer. During training where plaintiff was one of three women amongst twenty-four participants, plaintiff started to feel that she could never raise complaints because of her gender as a result of comments such as how the male troopers had better “watch out” or she would charge them with sexual harassment, or about another female trooper whose sex discrimination complaint had been dismissed by the Board. Plaintiff also received lewd and sexually inappropriate comments from a male officer in training who also attacked her in a kick-boxing fashion, and ridiculed her when she protested. After completing training, plaintiff was the only female full-time officer in her department and continued to experience more harassment, including exposure to openly-displayed pictures of semi-nude women, an officer telling his girlfriend that plaintiff was his sex slave, personnel and supervisors frequently discussing plaintiff’s marital difficulties, and interfering with her personal relationship with a former police officer. During the plaintiff’s first evaluation, she received a good score for her work performance but her overall score was lowered due to comments from others. Further, when it was a male colleague’s birthday, he demanded the plaintiff kiss him and when she refused, he made fun of her appearance. When plaintiff’s supervisor did not respond to her complaints regarding these incidents, she met with the Commissioner, setting forth her sexual harassment claims. She was offered an unfeasible transfer far from her home and children as the only alternative. When the plaintiff failed to report to the transfer location, she was terminated. Plaintiff subsequently filed claims for sexual harassment and hostile work environment with the Board. The Board found there was discrimination and ordered her reinstatement and reimbursement of back pay. In response to the state’s appeal, the court agreed with the Board and found that the plaintiff’s work environment, characterized by her colleagues’ and supervisor’s attitudes towards her as a woman, established that she was judged more harshly than her male colleagues. The court found the evidence supported the Board’s conclusion that there existed a hostile work environment and that the plaintiff was sexually harassed.

Byers v. Labor and Indus. Review Comm. Wisconsin Supreme Court (1997)

Sexual harassment

Here, the petitioner obtained a restraining order against her co-worker who had constantly harassed the petitioner and repeatedly made sexual advances towards her. The co-worker violated the restraining order and the petitioner complained to her employer to take measures to stop the harassment. Despite her complaints , the co-worker was not terminated, suspended or reprimanded for his sexual harassment. The petitioner finally filed a complaint with the Equal Rights Division of the DILHR “alleging sex discrimination by the employer for allowing the co-[worker] to sexually harass her at work in violation of WFEA.” The DILHR held that it did not have jurisdiction to hear her case because the Worker’s Compensation Act (WCA) provided her sole remedy for her work-related injury. The WCA exclusive remedy provision “mandates that when the conditions for an employer’s liability under the WCA exists, the employee’s right to recover compensation under the WCA shall be the employee’s exclusive remedy against an employer.” Since the petitioner had previously raised a complaint under the WCA for her employer’s failure to take action to remedy the sexual harassment and that complaint had been dismissed, the petitioner no longer had any remedies available.

Kanzler v. Renner Wyoming Supreme Court (1997)

Sexual harassment

Appellant, a former dispatcher with the Cheyenne Police Department, appealed from the summary judgment which was entered in favor of police officer-appellee, also employed by the Cheyenne Police Department, on appellant’s claim of intentional infliction of emotional distress. The Wyoming Supreme Court reversed, because as a matter of law, appellant presented sufficient evidence in support of her claim of intentional infliction of emotional distress, based on inappropriate sexual conduct by a co-employee in the workplace, to survive appellee’s motion for summary judgment. The court identified several recurring factors that could be used in determining whether particular conduct in the workplace is sufficiently outrageous to survive a preliminary motion: (1) abuse of power; (2) repeated incidents and/or pattern of harassment; (3) unwelcome touching and/or offensive, non-negligible physical contact; and (4) retaliation for refusing or reporting sexually-motivated advances. The court found that conditions and circumstances alleged by appellant, including repeated incidents over a period of time and offensive, non-negligible physical contact, could lead a jury to construe appellee’s conduct as outrageous. Furthermore, appellant’s evidence was sufficient to create a jury issue on the severity of her emotional distress.

In re Piatt Arizona Supreme Court (1997)

Sexual harassment

In May of 1990, Piatt represented clients A and B in their respective domestic relations actions.  During his representation of client A, Piatt repeatedly asked her questions such as whether she had masturbated at the age of fourteen, and whether she had ever had sexual relationship without emotional involvement.  He also made comments about the length of client A’s skirt and how “delicious” she looked.  Piatt later told client A during a meeting that if she did not respond to his sexual advances, he would be forced to charge her a large sum of money for continued representation.  Piatt threatened client B in substantially the same way.

Hoy v. Angelone Superior Court of Pennsylvania (1997)

Sexual harassment

Louise Hoy worked at Shop-Rite as a meat-wrapper.  During her tenure there, Dominick Angelone repeatedly subjected her to sexual propositions, filthy language, off-color jokes, physical groping, and the posting of sexually suggestive pictures in the workplace.  Eventually Hoy took medical leave to receive psychiatric treatment; when she returned, she requested that the store manager move her to another department.  In order to recover under a hostile environment claim, the employee must prove that (1) she suffered intentional sex discrimination because of her sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the employee; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability.  Hoy established the first four elements but Shop-Rite argued that it could not be liable under the Pennsylvania Human Relations Act for Angelone’s conduct because it did not know nor had reason to know of the existence of a sexually hostile environment, and it took remedial action.  A plaintiff may establish an employer’s knowledge by showing (i) that she complained to higher management or (ii) that the harassment was so pervasive that the employer will be charged with constructive knowledge.  The court upheld the jury’s finding that the store manager knew or should have been aware of the conduct before Hoy requested transfer out of the meat department and failed to take remedial action; indeed, the conduct was so pervasive that several of Hoy’s coworkers knew of the abuse.  Thus, Shop-Rite was liable for Angelone’s conduct because the manager failed to take remedial action despite this knowledge.

Kite v. Kite Tennessee Supreme Court (1997)

Domestic and intimate partner violence

The court found that a trial court retains jurisdiction under Tenn. Code Ann. § 36 – 3 – 605 “after failing to conduct a hearing within ten (10) days of service of an ex parte protective order.”  The court found that the ten day limit was only a limit on the duration of the protective order and not a limit on jurisdiction.  Petitioner Kite alleged that defendant vandalized her home and automobile, called her employer and tried to get her fired, assaulted her repeatedly and regularly called and harassed her.  On these grounds, she requested an immediate ex parte order of protection from the trial court.  The trial court issued the order and set a hearing date that did not fall within ten days of service of the order.  The respondent filed a motion to dismiss, arguing that the court had jurisdiction only for ten days after service of the protective order.  The court looked to the legislative intent behind the statute, finding the words of the statute ambiguous.  It interpreted the ten-day requirement in a manner consistent with the policy goal of “providing enhanced protection from domestic abuse.”  It found that the ten-day requirement was not meant to limit a domestic violence victim’s judicial protection, but rather to limit “the potential for abuse by protecting respondents from possible ongoing frivolous or retaliatory ex parte protective orders.”

International Case Law

María Elena Loayza-Tamayo v. Peru Inter-American Court of Human Rights (1997)

Custodial violence, Sexual violence and rape

Loayza-Tamayo was detained by the National Counter-Terrorism Bureau ("DINCOTE"). While detained, she was threatened with torture and was repeatedly raped in an effort to force her to confess to belonging to the Peruvian Communist Party ("Shining Path").  She was charged and found guilty of treason and was held in solitary confinement. She filed a complaint with the Inter-American Commission of Human Rights, alleging numerous human rights violations and requesting her release. The Commission, unable to reach a decision, submitted the case to the Inter-American Court. The Court held that Peru violated Articles 5, 7, 8(1), 8(2) and 8(4) of the American Convention on Human Rights, in relation to Articles 25 and 1(1) thereof. The Court ordered that Loayza-Tamayo be released, and that she and her next of kin be compensated for any relevant expenses.