Women and Justice: Keywords

International Case Law

Case of the Yakye Axa Indigenous Community v. Paraguay Inter-American Court of Human Rights (2005)

Property and inheritance rights

The Inter-American Commission on Human Rights alleged that, by not respecting ancestral property rights, the Government of Paraguay threatened the Yakye Axa Indigenous Community’s access to food, water and health care, and survival in violation of Articles 4 (right to life), 8 (right to fair trial), 21 (right to property) and 25 (judicial protection) of the American Convention on Human Rights. The court noted several specific examples of dangers faced by the women of the Community, including instances in which a woman was threatened by a man wielding a shotgun and another in which a woman was sexually exploited by State workers. The court noted that Paraguay was obligated to take into account the economic and social characteristics, special vulnerability, and customary laws, values and customs of indigenous peoples in order to effectively protect them, and found that Paraguay’s delay in recognizing the Community’s leadership, legal status and claims to land violated the Community’s rights to judicial protection, a fair trial, property, and ultimately a decent life. The court also found that the Community had a right to be granted legal status in order to take advantage of its members’ full rights as a people, and that Paraguay’s ongoing refusal to recognize that status was a violation of this right. As such, the court ordered that Paraguay provide the Community – “especially children, the elderly and pregnant women” -- with reparations, including compensation, food and water, sanitation, access to health care, and rightful title to their traditional territory.

La Comisión Interamericana de Derechos Humanos alegó que, al no respetar los derechos de propiedad ancestral, el Gobierno de Paraguay amenazaba el acceso de la Comunidad Indígena Yakye Axa a alimentos, agua y atención médica, y la supervivencia, en violación de los Artículos 4 (derecho a la vida), 8 (derecho a un juicio justo), 21 (derecho a la propiedad) y 25 (protección judicial) de la Convención Americana sobre Derechos Humanos. El tribunal tomó nota de varios ejemplos específicos de peligros que enfrentan las mujeres de la Comunidad, incluyendo casos en los que una mujer fue amenazada por un hombre con una escopeta y otro en el que una mujer fue explotada sexualmente por trabajadores estatales. El tribunal señaló que el gobierno de Paraguay estaba obligado a tomar en cuenta las características económicas y sociales, la especial vulnerabilidad y las leyes, valores y costumbres consuetudinarios de los pueblos indígenas para protegerlos de manera efectiva, y determinó que la demora de Paraguay en reconocer el liderazgo de la Comunidad, el estatus legal y las reclamaciones de tierras violaron los derechos de la Comunidad a la protección judicial, un juicio justo, la propiedad y, en última instancia, una vida digna. El tribunal también determinó que la Comunidad tenía derecho a que se le otorgara un estatus legal para poder aprovechar los plenos derechos de sus miembros como pueblo, y que la continua negativa de Paraguay a reconocer esa condición constituía una violación de este derecho. Como tal, el tribunal ordenó que Paraguay proporcionara a la Comunidad - “especialmente a los niños, ancianos y mujeres embarazadas” - reparaciones, incluyendo indemnizaciones, alimentos y agua, saneamiento, acceso a la atención médica y título legítimo de su territorio tradicional.

Slovak Republic, Supreme Court, Decision No. 36/2005, File No. 2 Cdo 67/03 Supreme Court of the Slovak Republic (2005)

Gender discrimination

Ms X.Y. (the claimant) had worked as a nurse in the Hospital in the city of Velký Krtíš (the employer) since November 30, 1998. On April 11, 2002, the claimant received a notice of the termination of her employment due to her failure to take an oath in accordance with new legislation. The new legislation came into force on April 1, 2002, when the claimant was on maternity leave. The notification of the new legal prerequisite was posted in the halls of the hospital making it almost impossible for workers on maternity leave to be informed. The claimant sued the employer for unlawful termination of employment, arguing that the termination was discriminatory on the grounds of her gender. The district court ruled in favor of the claimant; however, on appeal the regional court quashed the decision and dismissed the case. The claimant appealed to the Supreme Court which held that the termination was unlawful for a number of reasons. Firstly, the employer failed to perform its legal obligations to enable the claimant to take the oath. Secondly, the acts of the employer with respect to the termination of employment were discriminatory. The employer had disadvantaged a certain group of its employees, in particular those on maternity leave, by failing to provide them with notice about the new requirement to take the oath, breaching the prohibition of discrimination established in labor relations. This was in breach of the prohibition of discrimination under Section 13 of the Labor Code of the Slovak Republic. Lastly, the Supreme Court held that the employer had abused its rights as an employer, which is in violation of moral principals. The Supreme Court further held that the termination would have been lawful if the employer had duly informed the claimant about the new regulations and provided her with a chance to comply with them, and ordered a re-examination of the issue by the district court.

N.S.F. v. United Kingdom CEDAW Committee (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence

N. S. F., a Pakistani national, experienced repeated ill-treatment from her husband, including marital rape, until they divorced in 2002. Although N. S. F.’s husband continued to harass her after she moved to a nearby village, the police did not offer her any protection. When her ex-husband came to her new home with other armed men and threatened to kill her, N. S. F. fled to the United Kingdom and applied for asylum, claiming that her forced return to Pakistan would constitute violations of the 1951 Convention on the Status of Refugees and article 3 of the European Convention on Human Rights and Fundamental Freedoms. N. S. F. appealed the dismissal of her application for asylum by the Immigration and Nationality Directorate of the Home Office, and on appeal the Adjudicator denied N. S. F.’s application on the grounds that N. S. F. could relocate further away from her husband within the country, and that she would receive protection in Pakistan on account of her being divorced from her husband. The Immigration Appeal Tribunal rejected N. S. F.’s application for permission to appeal, and the High Court of Justice, Queens Bench Division, Administrative Court affirmed the decision upon challenge. Her complaint alleged that the asylum and human rights-based procedures were not fair, and that if deported back to Pakistan, N. S. F.’s husband would kill her and put her children’s education at risk. Although the Committee found the complaint inadmissible because N. S. F. did not exhaust all domestic remedies, the Committee noted that the complaint raised concern for women who have fled their country because of fear of domestic violence. It recalled its General Recommendation No. 19 on violence against women, and concluded that Pakistan’s assertion that N. S. F.’s claims do not amount to an allegation of sex discrimination needed to be reconsidered in light of this Recommendation. The Committee suggested that N. S. F. apply to the High Court for judicial review of her application for asylum, and that the Court take her allegations of sex discrimination under consideration.

Domestic Case Law

M v. M High Court of New Zealand (2005)

Sexual violence and rape, Domestic and intimate partner violence

This case concerns the Domestic Violence Act of 1995. Appellant sent emails, faxes, and oral communications to politicians and others, claiming that the respondent, her brother, raped her when she was 11. In Family Court, the judge concluded that the allegation of rape was unfounded and that appellant’s purpose for the communications was to shame the respondent and ruin his reputation, amounting to harassment or psychological abuse. The judge issued a protection order pursuant to the Domestic Violence Act of 1995, prohibiting appellant from further communications alleging the rape. On appeal, it was contended that, 1) the family court judge wrongly found that appellant’s behavior constituted psychological abuse or harassment, and 2) that the special conditions imposed in the protection order were unduly broad, infringing upon the appellant’s freedom of expression under the New Zealand Bill of Rights Act (NZBORA). The High Court rejected the first ground of appeal. As to the second, the High Court read the Domestic Violence Act narrowly, saying that the legislature could not have intended to pass a bill that would conflict with the NZBORA. The High Court would modify the Family Court Judge’s protection order only to qualify that appellant is not precluded from discussing the matter with other family members, attorneys, or law enforcement, thereby preserving her rights under NZBORA. The High Court also approved a Constitutional Court holding that the right of freedom of expression extends to a woman’s right to use her own name in connection with her status as a victim of sexual abuse.

Christensen v. Royal Sch. Dist. Washington Supreme Court (2005)

Sexual violence and rape, Statutory rape or defilement

Plaintiff-child and parents sued defendant-school district, principal and teacher, alleging that teacher had sexually abused the child and the district and principal were negligent in hiring and supervising the teacher. In a responsive pleading, defendant-school district and principal asserted as affirmative defense that plaintiff’s voluntary participation in the sexual relationship with defendant teacher constituted contributory fault. The trial court certified to the Supreme Court of Washington a question whether a 13-year-old victim of sexual abuse, who brought a negligence action, could have contributory fault assessed against her under the Washington Tort Reform Act. The Supreme Court of Washington held that, as a matter of law, a child under the age of 16 could not have contributory fault assessed against her for participating in sexual activities. Plaintiff lacked the capacity to consent and was under no legal duty to protect herself from sexual abuse. Societal interests embodied in the criminal laws protecting children from sexual abuse applied equally in the civil arena when harm was caused to the child by an adult perpetrator of sexual abuse or a third party in a position to control that person’s conduct. Furthermore, the idea that a student had a duty to protect herself from sexual abuse at school by her teacher conflicted with the well-established law that a school district had an enhanced and solemn duty to protect minor students in its care.

Boykin v. State Wyoming Supreme Court (2005)

Domestic and intimate partner violence

Defendant appealed a judgment of the District Court, convicting him of one count of assault and battery on a household member. Defendant argued, among other things, that the trial court abused its discretion in allowing the testimony of a convenience store clerk concerning statements the victim made to the clerk under the excited utterance exception to the hearsay rule. Defendant had gone to a bar with his friends and returned around 2:00 a.m. to the residence he shared with his girlfriend and their children, and entered into an argument with his girlfriend, at which time she slapped him and he hit her in the nose. The girlfriend took the children and left the house, driving to a nearby convenience store, where the convenience clerk called the police. At trial, the girlfriend testified that she did not remember whether or not she talked to the clerk about what happened. The clerk, however, testified that she told him that defendant hit her. The Supreme Court of Wyoming affirmed the judgment of the District Court, noting that the excited utterance exception applied to the circumstances and that the girlfriend’s statement to the sales clerk was spontaneous and not the result of reflection, deliberation, or fabrication. In affirming, the court specified five factors the trial court should consider in determining whether the excited utterance exception applies: 1) the nature of the startling event; 2) the declarant’s physical manifestation of excitement; 3) the declarant’s age; 4) the lapse of time between the event and the hearsay statement: and 5) whether the statement was made in response to an inquiry.

CDB v. DJE Wyoming Supreme Court (2005)

Sexual violence and rape, Statutory rape or defilement

After pleading guilty, appellant-father was convicted of several counts of sexually abusing his daughter. Appellee-mother filed a petition to terminate father’s parental rights to the daughter, and the District Court terminated his parental rights pursuant to Wyo. Stat. Ann. § 14-2-309(a)(iii) and (a)(iv). The Supreme Court of Wyoming upheld the decision. In terminating appellant-father’s parental rights, the Supreme Court held that the fact of incarceration, by itself, is not per se evidence of unfitness. However, incarceration is a reality that severely impacts the parent-child relationship and, therefore, cannot be ignored. The length of appellant’s incarceration of 47 years makes it extremely improbable that appellant would ever be able to care for the ongoing physical, mental or emotional needs of the daughter. Most importantly, appellant was convicted on several counts of sexually abusing his daughter, and there can be nothing that makes a parent more intrinsically unfit than abusing his child.

Iamele v. Asselin Supreme Judicial Court of Massachusetts (2005)

Domestic and intimate partner violence

Here, the plaintiff and the defendant lived together and had a son together. The defendant physically abused the plaintiff for two to four years. The plaintiff had previously obtained a protection order against the defendant under Gen. Law C. 209A, which expired. The day after the order expired, the defendant called the plaintiff and was highly agitated and threatening. The plaintiff sought a renewal of the order. Prior to the hearing regarding the extension of the order, the plaintiff stated that the defendant made several phone calls to the plaintiff attempting to reconcile and then becoming mean. Many of these calls occurred while the plaintiff was at work and caused her to lose her job. The plaintiff feared the defendant would kill her without the order. The defendant’s attorney at the hearing argued he only contacted the plaintiff to re-establish his relationship with his son. The judge refused to grant the extension, finding that the plaintiff is “clearly in fear no matter what” and providing no reasoning for the refusal. Upon appeal the court found that the plaintiff needed to make a showing similar to what is required to obtain an initial protection order, by a preponderance of the evidence. The court noted that it should consider the defendant’s violations of protective orders, ongoing child custody or other litigation likely to bring hostility, the parties’ demeanor in court, the likelihood the parties will encounter each other in their usual activities, and if there are significant changes in the parties’ circumstances. Here, the court remanded the case because the trial judge did not define the burden the plaintiff needed to meet to warrant an extension and he did not explain which part of the plaintiff’s case was insufficient to warrant the extension.

Jackson v. Birmingham Board of Education United States Supreme Court (2005)

Gender discrimination

Mr. Jackson, a teacher and basketball coach, brought suit against the Birmingham Board of Education (“Board”), alleging that the Board retaliated against him because he had complained about sex discrimination in the high school’s athletic program. Specifically, Mr. Jackson complained to his supervisors that the girls’ basketball team was not receiving equal funding and equal access to athletic equipment and facilities. After the Board terminated Mr. Jackson’s coaching duties, he filed suit in the United States District Court for the Northern District of Alabama. He alleged that the Board violated Title IX by retaliating against him for protesting the discrimination of the girls’ basketball team. The district court dismissed Mr. Jackson’s complaint on the ground Title IX did not cover claims retaliation, and the Court of Appeals for the Eleventh Circuit affirmed. The Unites States Supreme Court reversed, holding: “We conclude that when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional ‘discrimination’ ‘on the basis of sex,’ in violation of Title IX.” The Court reached this conclusion, in part, because “[r]eporting incidents of discrimination is integral to Title IX enforcement and would be discouraged if retaliation against those who report went unpunished.” In response to the Board’s claim that it had no notice that Title IX prohibited retaliation, the Supreme Court held that Title IX itself supplied sufficient notice to the Board, as did previous Courts of Appeals decisions that had considered the issue.

Karch v. Karch Superior Court of Pennsylvania (2005)

Domestic and intimate partner violence

Dinzel and Christine Karch were married with three children. Christine sought and was granted a protection from abuse (“PFA”) order for an incident in March wherein Dinzel placed his hands around her neck and threatened to “snap” it. Then in May, during an argument about getting divorced and child custody, Dinzel put his hands on his wife’s forehead, made a motion as if he was firing a gun, and said “there is your future.” This action made Christine’s head sore as if she had a brush burn. Dinzel argued that the court should not have credited Christine’s testimony about the injury inflicted upon her by him because she did not seek medical treatment for her injury. But neither the PFA Act nor the body of case law interpreting it requires that there be medical evidence or that the wife seek medical treatment for an injury in order for her testimony to be found credible. And in any event, verbal threats are sufficient to support the grant of a PFA; actual physical injury is not a prerequisite. Dinzel next argued that the lack of a police report filed cast doubts on Christine’s credibility because it demonstrated that the police did not believe that she had been abused and that the lack of police compliance precluded the issue of a PFA as a matter of law. The court held that it is also not required that a police report be filed in order to obtain a PFA and wished to make it “abundantly clear” that it will not infer that the failure of the police to act on a report of domestic violence means that the victim is not credible.

U.S. v. Dowd United States Court of Appeals for the Ninth Circuit (2005)

Domestic and intimate partner violence, Sexual violence and rape

A jury convicted Matthew Dowd of violating the federal interstate domestic violence law. The events giving rise to the conviction occurred over an 8-month period between May and December 2002. During that time, Dowd forced his former girlfriend, Danna Johnson, to travel throughout Montana, Colorado, and Utah with him while he was fleeing authorities. During the forced excursion, Dowd repeatedly subjected Ms. Johnson to physical and psychological abuse, including rape, choking, and death threats. Dowd contested the conviction, arguing that the jury did not have sufficient evidence that he forced or coerced Ms. Johnson to cross state lines, as the statute required. The court reasoned that to convict a defendant of violating the federal interstate domestic violence statute by causing a spouse or intimate partner to travel in interstate or foreign commerce by force, coercion, duress, or fraud, the government must show that the spouse or intimate partner was a non-consenting participant in the interstate travel. Despite evidence that there were various occasions during the several-months-long interstate journey where Ms. Johnson was outside of Dowd’s presence and did not seek assistance from others or attempt to escape, the court found that Ms. Johnson was not a willing participant in the extended journey, and that sufficient evidence supported a finding that Dowd violated the federal statute. That evidence included Dowd’s persistent actual and threatened physical, sexual, and psychological abuse, and threats of retribution against Ms. Johnson’s family if she left him. Accordingly, Dowd’s conviction was upheld.

Mario Ramón González Cáceres, Raúl Antonio Maidana Duarte y Carolina Maidina Duarte sobre trata de personas en Independencia, Paraguay Court of Appeal of Paraguay (2005)

Trafficking in persons

Defendants were convicted in a Paraguayan trial court for mistreatment of persons, in violation of Article 129 of the Penal Code, for deceiving several women into thinking that the defendants had found them jobs as grocery store cashiers in Spain, and then trying to force the women to work at a brothel upon arrival in Spain. The Appellate Court reversed the conviction, saying the trial court lacked jurisdiction because in a case where a crime begins in one jurisdiction and is completed in another, the latter jurisdiction, in this case Spain, should hear the case. The Supreme Court, Penal division, disagreed with the appellate court, holding that the trial court did have jurisdiction, and further held that the conviction was consistent with Article 6 of the American Convention on Human Rights (“Pact of San Jose”), Article 8 of the International Pact of Civil and Political Rights, Articles 2 and 3 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, and Articles 3 and 5 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children.

Los acusadosfueron condenados en un tribunal de primera instancia paraguayo por maltrato de personas, en violación del artículo 129 del Código Penal, por engañar a varias mujeres haciéndoles creer que los acusados les habían encontrado trabajo como cajeras de abarrotes en España, y luego intentar forzarlas a trabajar en un burdel al llegar a España. El Tribunal de Apelación revocó la condena, diciendo que el tribunal de primera instancia carecía de competencia porque en un caso en el que un delito comienza en una jurisdicción y se completa en otra, esta última jurisdicción, en este caso España, debería escuchar el caso. La Corte Suprema, División Penal, no estuvo de acuerdo con la corte de apelaciones, sosteniendo que el tribunal de primera instancia sí tenía jurisdicción, y además sostuvo que la condena era consistente con el Artículo 6 de la Convención Americana sobre Derechos Humanos (“Pacto de San José”), Artículo 8 del Pacto Internacional de Derechos Civiles y Políticos, Artículos 2 y 3 de la Convención Interamericana para Prevenir, Sancionar y Erradicar la Violencia contra la Mujer y Artículos 3 y 5 del Protocolo para Prevenir, Reprimir y Sancionar la Trata de Personas Especialmente mujeres y niños.

Oscar Eugenio Paniagua Batochi s/ Coacción Sexual en San Juan Neponuceno Sala de Acuerdos los Señores Ministros de la Excelentísima Corte Suprema de Justicia Sala Penal (2005)

Sexual violence and rape

The Supreme Court, Penal division, upheld the conviction of a defendant who raped his stepdaughter under threat of death or grievous injury. The Court held that the conviction was consistent with Article 54 of the National Constitution, Article 19 of the American Convention on Human Rights ("Pact of San Jose"), Article 24 of the International Pact of Civil and Political Rights, Article 19 of the Convention on the Rights of the Child, Article 3 of the Code of Children and Adolescents, and Article 1 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women.

La Corte Suprema, División Penal, confirmó la condena de un acusado que violó a su hijastra bajo amenaza de muerte o lesiones graves. La Corte sostuvo que la condena era compatible con el Artículo 54 de la Constitución Nacional, el Artículo 19 de la Convención Americana sobre Derechos Humanos ("Pacto de San José"), el Artículo 24 del Pacto Internacional de Derechos Civiles y Políticos, el Artículo 19 del Convención sobre los Derechos del Niño, Artículo 3 del Código de la Niñez y Adolescencia y el Artículo 1 de la Convención Interamericana para Prevenir, Sancionar y Erradicar la Violencia contra la Mujer.

Sentencia T-622/05 Constitutional Court of Colombia (2005)

Custodial violence, Gender-based violence in general, Sexual harassment

The Court held that prison procedural rules that required vaginal inspections of female visitors, and that did not allow female visitors to enter the prison while menstruating, violated female visitors' right to dignity, personal liberty and health. The Court ordered the National Institute of Prisons and Jails (Instituto Nacional Penitenciario y Carcelario) to stop such intrusive inspections and install at the prison in question, the Cárcel Distrital Villahermosa de Cali, equipment necessary to accomplish the safety objectives of a vaginal inspection without needing to conduct such an inspection.

El Tribunal sostuvo que las normas de prevención penitenciarias que exigían inspecciones vaginales de las visitantes femeninas y que no permitían que las visitantes ingresaran a la prisión mientras menstruaban violaban el derecho a la dignidad, la libertad personal y la salud de las visitantes femeninas. La Corte ordenó al Instituto Nacional Penitenciario y Carcelario que detuviera tales inspecciones intrusivas e instalara en el centro penitenciario en cuestión, la Cárcel Distrital Villahermosa de Cali, los equipos necesarios para lograr los objetivos de seguridad de una inspección vaginal sin necesidad para realizar dicha inspección.

Sentencia C-101/05 Constitutional Court of Colombia (2005)

Gender discrimination

Explaining that the right to marry or remarry is a fundamental right, the Court held that wills and testaments that required a woman to remain single or widowed were unconstitutional.

Al explicar que el derecho a contraer matrimonio o volver a casarse es un derecho fundamental, la Corte sostuvo que los testamentos que exigían que una mujer permaneciera soltera o viuda eran inconstitucionales porque abrogaban este derecho.

Sentencia C-534/05 Constitutional Court of Colombia (2005)

Gender discrimination

The Court held that 4, while prima facie unconstitutional, is acceptable if done with the constitutional purpose of furthering the rights of women, considered a constitutionally-protected class, and not with the purpose of maintaining traditional societal roles. The Court held that "the special protection of women allows for discriminatory treatment with constitutional ends." The Court also affirmed that minors are a protected class, protected both by the Colombian Constitution but also by the international treaties to which Colombia is a signatory.

La Corte sostuvo que 4, aunque prima facie en violación a la constitución, es aceptable si se hace con el propósito constitucional de promover los derechos de la mujer, la cual es considerada una clase protegida constitucionalmente, y no con el propósito de mantener roles sociales tradicionales. La Corte sostuvo que "la protección especial de la mujer permite un trato positivamente discriminatorio con fines constitucionales." La Corte también afirmó que los menores son una clase protegida, amparada tanto por la Constitución colombiana como por los tratados internacionales de los que Colombia es signataria.

Reports

WHO Multi-country Study on Women's Health and Domestic Violence against Women (2005)

Domestic and intimate partner violence

Report by the World Health Organization documenting the prevalence of intimate partner violence and its association with women's physical, mental, sexual and reproductive health in 10 countries: Bangladesh, Brazil, Ethiopia, Japan, Peru, Namibia, Samoa, Serbia and Montenegro, Thailand and the United Republic of Tanzania (2005).