Women and Justice: Keywords

Domestic Case Law

B., M.P. v. G., R.A. Lomas de Zamora Family Court #3 (2006)

Domestic and intimate partner violence

M.P.B. suffered repeated domestic violence and abuse at the hands of her husband R.A.G. In civil suit, M.P.B. was granted exclusive control of the spousal home and custody of her children. The court imposed a restraining order on R.A.G.; he was unable to go within 300 meters of the family home, his wife’s work, or the 9 and 12 year-old children’s school. This case is fairly punitive toward the father by Argentinean standards. The judge cited both Argentinean statutes and international human rights law in arriving at her decision.

M.P.B. sufrió repetida violencia doméstica y abuso a manos de su esposo R.A.G. En una demanda civil, a M.P.B. se le otorgó el control exclusivo de la casa del cónyuge y la custodia de sus hijos. El tribunal impuso una orden de restricción a R.A.G: no podía ir a menos de 300 metros del hogar familiar, del trabajo de su esposa o de la escuela de niños de 9 y 12 años. Este caso es bastante punitivo hacia el padre para los estándares argentinos. El juez citó tanto los estatutos argentinos como el derecho internacional de los derechos humanos al llegar a su decisión.



OTS v. No Defendant Mendoza Supreme Court (2006)

Gender-based violence in general, Sexual violence and rape

A mentally handicapped young woman was allowed to have an abortion per article 86 of the Argentinean Penal Code. The woman was impregnated through rape. Because of the woman’s mental disorders and medication issues, it was impossible to ensure a viable child and a healthy mother. This decision also declared that article 86, which allows for abortion in the case of non-viability, can be employed at a doctor’s discretion without formal court proceedings.

A una joven con discapacidad mental se le permitió abortar su embarazo, conforme con el artículo 86 del Código Penal Argentino. La mujer fue impregnada por violación. Debido a los trastornos mentales y los problemas de medicación de la mujer, era imposible garantizar un hijo viable y una madre sana. Esta decisión también declaró que el artículo 86, que permite el aborto en caso de no viabilidad, puede emplearse a discreción de un médico sin procedimientos judiciales formales.



Matter of S., R. A., E. O. A. y A., R. A. Buenos Aires Supreme Court (2006)

Gender-based violence in general, Sexual violence and rape

In this case, a defendant who had been sentenced to twenty five years for kidnapping, among other crimes, appealed his conviction, contending that he had committed lesser kidnapping (plagio) instead of the more serious crime of premeditated kidnapping (rapto) of which he was convicted. The court decided to uphold his conviction, despite the fact that there was only coercion involved. The “lessening of sexual integrity” against the will of the victims made the defendant guilty of the greater crime of rapto under article 130 of the Argentinean Penal Code.

En este caso, un acusado que había sido condenado a veinticinco años por secuestro y otros delitos, apeló su condena, alegando que había cometido secuestro menor (plagio) en lugar del delito más grave de secuestro (rapto) premeditado del cual fue condenado. El tribunal decidió defender su condena, a pesar del hecho de que solo hubo coerción. La "disminución de la integridad sexual" contra la voluntad de las víctimas hizo que el acusado fuera culpable del mayor delito de rapto en virtud del artículo 130 del Código Penal argentino.



Commonwealth v. Conklin Pennsylvania Supreme Court (2006)

Sexual violence and rape

Defendant was convicted of involuntary deviate sexual intercourse, aggravated indecent assault, incest, indecent assault, indecent exposure and corruption of a minor. The defendant had sexually abused his daughter from the ages of six to nine. The nature of the defendant’s crimes required a determination if he was a sexually violent predator under Megan’s Law II (42 Pa. C.S.A. § 9792). At trial, a licensed clinical social worker and Board member assessed the defendant and concluded that he met the criteria of a sexually violent predator. The defendant’s evaluator was not a psychiatrist or psychologist, but the trial court found him qualified to testify as to the defendant’s status by his experience and training. The court found that the defendant was a sexually violent predator based upon the social worker’s conclusions. On appeal, the defendant argued that he could only be found to be a sexually violent predator by a psychiatrist or psychologist. The court noted that the criteria to assess in making the determination if a person is a sexually violent predator are: whether the offense involved multiple victims; whether the individual used excessive means to achieve the offense; the nature of the sexual contact; the relationship to the victim; the age of the victim; if the offense included any unusual cruelty; the victim’s mental capacity; and any history of prior offenses. The court found that a social worker could assess these factors; it was not necessary for a defendant to be evaluated by a psychiatrist or psychologist.



Commonwealth v. Meals Pennsylvania Supreme Court (2006)

Sexual violence and rape

Here, the defendant pleaded guilty to sexual offenses, namely that he sexually assaulted two daughters of his live-in girlfriend and threatened the younger daughter that he would harm her mother if she reported the assaults. A member of the Sexual Offenders Assessment Board assessed the defendant and found him to be a sexually violent predator under Megan’s Law II (42 Pa. C.S.A. § 9795). The court found that the defendant was a pedophile and was a sexually violent predator. The Superior Court subsequently reversed this finding, reasoning that the evidence did not support the defendant’s classification, and the state appealed. On appeal, the court found that the Superior Court improperly required the diagnosis of pedophilia to require more than proof of sexual assault on children. The court reversed this and found that proof of sexual assault on children sufficed to warrant a finding of pedophilia and the defendant was properly classified as a sexually violent predator.



Gourley v. Gourley Washington Supreme Court (2006)

Domestic and intimate partner violence, Sexual violence and rape

One of the parties’ children accused petitioner of sexual assault, including improper touching of her breasts and vaginal area on multiple occasions. During an interview with Child Protective Services (CPS), the child denied any improper touching, but subsequently stated that petitioner had cautioned her against disclosing any information about the improper touching. Additionally, in a written declaration, petitioner had admitted to rubbing aloe vera on the naked body of the child. As a result, respondent sought and received a domestic violence protection order against petitioner under Wash. Rev. Code 26.50 , prohibiting contact between petitioner and respondent and their three children. Petitioner appealed, arguing that, in granting the petition for protection order, the commissioner improperly considered hearsay evidence and violated his due process rights when he refused to allow cross-examination of the child, who made the accusation. The Supreme Court of Washington held that the rules of evidence need not be applied in ex parte protection order proceedings and, therefore, the commissioner did not err when he considered hearsay evidence in issuing the protection order. Furthermore, denial to allow cross-examination of the child did not violate petitioner’s due process rights, because nothing in the statutory scheme explicitly requires allowing respondent in a domestic violence protection order proceeding to cross-examine a minor who accused him of sexual abuse.



Lowery v. Klemm Supreme Judicial Court of Massachusetts (2006)

Sexual harassment

Here, the plaintiff volunteered at a swap shop operated by the Town of Falmouth at its waste management facility.  The defendant was the land supervisor and gatekeeper of the facility.  The defendant often visited the shop and made sexual advances toward the plaintiff for three years, despite her requests that he leave her alone.  The town subsequently terminated the plaintiff’s volunteer services and barred her from the facility.  Id. at 572.  The plaintiff sued the defendant for sexual harassment in violation of M.G.L.A. 214 § 1C.  The court found that M.G.L.A. 214 § 1C states that “[a] person shall have the right to be free from sexual harassment, as defined in chapter 151B and 151C.”  Id. at 577.  The court then noted that the definition of sexual harassment in G. L. C. 151B and 151c does not explicitly protect volunteers from sexual harassment and instead limit conduct to academic and employment contexts.  The court thus found that there is only statutory protection against sexual harassment in employment and academic contexts and there was no such protection for volunteers.  Id.  However, persons outside of this context, including volunteers, may pursue common law claims of sexual harassment.  Id. at 580-81.



Aguilar v. Hernandez-Mendez Massachusetts Appeals Court (2006)

Domestic and intimate partner violence

Here, the defendant appealed an abuse prevention order that was issued against him for the benefit of his father’s girlfriend. The plaintiff and her two teenage daughters lived with the defendant’s father. The defendant lived there as well for about two years until he moved out. Once he moved out though, he still had keys to the apartment, still received mail there, took showers there, spent the night there on occasion, and had the ability to let himself inside without making prior arrangements with his father or the plaintiff. The plaintiff obtained a restraining order against the defendant because he threatened her for over a year that he would pay someone to kill her if she did not leave his father. He also came to the apartment several times uninvited and pushed the plaintiff. He also threatened and pushed her two children. The court granted an extension of a protective order as it concluded that the defendant and the plaintiff were former household members. The defendant argued that he and his father’s girlfriend were not considered “household members” under Gen. L. C. 209A, § 1, and as a result, the court could not issue a protective order against him as to his father’s girlfriend. The court disagreed and found that a household member does not have to be a family member. The court affirmed the extension.



Putnam v. Kennedy Supreme Court of Connecticut (2006)

Domestic and intimate partner violence

While Gen. Stat. § 46b-15 allows a plaintiff to obtain a domestic restraining order, the Connecticut Supreme Court held in Putnam that such an order is an appealable final judgment.  In other words, this protection is somewhat limited as a defendant is able to appeal the issuance of a restraining order.  Id. at 167.  Here, the defendant appealed the trial court’s grant of a domestic restraining order and the appellate court found the appeal is moot, as such an order is not appealable as it is not a final judgment.  Id.  The Connecticut Supreme Court disagreed and found that it is a final judgment and an appeal is permissible due to the “potentially irreparable effects of § 46b-15 restraining orders on relationships within the family unit.”  Id.



State v. Mechling Supreme Court of West Virginia (2006)

Domestic and intimate partner violence

Appellant argued that the court wrongly allowed the admission of victim’s statements regarding alleged battery by the defendant after defendant was convicted of domestic battery.  The victim made statements to others and did not appear in court or testify at trial; therefore, appellant had no opportunity to cross-examine the victim.  The court held that the victim’s statements were “improperly admitted in violation of the Confrontation Clause of the Sixth Amendment to the . . . Constitution and Article III, Section 14 of the West Virginia Constitution.”  The lower court had permitted the state to introduce the victim’s statements made to two sheriff’s deputies.  The West Virginia Supreme Court held that these statements were testimonial and should not have been admitted into evidence under the Confrontation Clause.  Similarly, the victim’s statements to a neighbor were improperly admitted. The Court, however, noted that domestic violence cases are unique because victims rarely call the police or use the criminal justice system, and often fail to “cooperate with prosecutors because they fear retaliation.”  The Court conceded that the Confrontation Clause, therefore, gives defendants a “windfall” because domestic violence victims are “notoriously susceptible to intimidation….”  The Court therefore emphasized the “doctrine of forfeiture” under which “an accused who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.”



Speedway Superamerica, LLC v. Dupont Florida 5th District Court of Appeal (2006)

Sexual harassment

Dupont, employed by Speedway convenience stores, sued her employer alleging a hostile work environment and 13, in violation of Florida’s Civil Rights Act. Dupont’s complaint stemmed from her interactions with a coworker, Coryell, who shared Dupont’s midday shift. Dupont had for months complained to her superiors that Coryell acted inappropriately with her, both violently and sexually. For instance, Dupont complained that Coryell had inappropriately grabbed her, made sexual comments concerning female customers, and humiliated her. Speedway, at the time, had a written 13 policy, yet no action was taken. Speedway continued to place Dupont and Coryell together on the same shift. The Court found Dupont’s claim viable, noting that Coryell’s conduct – even if not entirely sexual in nature – constituted 13 where motivated by a hostility toward women because of their gender. The Court went on to describe Florida’s policy against 13 in the workplace as strong, noting that courts should liberally construe section 760.10, Florida Statutes. Finally, the Court found an award of punitive damages appropriate, even where the jury had not found Speedway’s conduct willful, because Coryell’s conduct was clearly willful and Speedway had been at the very least negligent in failing to respond to Dupont’s complaints.



Rol No. 465 Constitutional Court of Chile (2006)

Harmful traditional practices

In a case challenging the constitutionality of a Ministry of Education directive setting minimum standards for pre-schools, the Court reiterated the rights of both boys and girls to receive at least a certain minimum level of education.



Sentencia C-322/06 Constitutional Court of Colombia (2006)

Gender-based violence in general

The Court was asked to reexamine the domestic implications of Colombia's adoption of the CEDAW. Those opposing the CEDAW argued that its adoption would have grave consequences and be inconsistent with the Colombian Constitution. The Court affirmed the constitutionality of Colombia's participation in the CEDAW.



Sentencia C-355/06 Constitutional Court of Colombia (2006)

Gender-based violence in general

The Court ruled that a complete ban on abortion was unconstitutional and legalized abortion in cases of incest, danger to the health of the mother, and rape, involuntary insemination, serious deformity to the fetus, or when the mother is under the age of 14. In instances of deformity to the fetus or danger to the mother, the Court required that medical evidence be provided.  The Court relies on its obligations in international law to protect women's rights to health and life, among others.



Sentencia C-667/06 Constitutional Court of Colombia (2006)

Gender discrimination

The Court held that existing legal provisions and international treaties that provide women with special rights and considerations were not in violation of the Colombian Constitution's equal rights provision. The Court reasoned that such provisions were not aimed at withholding rights from men, but instead were aimed at correcting any shortcomings in the rights owed to women. 



Yapura, Gloria Catalina v. Nuevo Hospital El Milagro y Provincia de Salta Supreme Court of Argentina (2006)

Gender-based violence in general

Plaintiff sought an order requiring a hospital to perform a tubal litigation on her after she delivered her fourth child. Plaintiff lived in poverty and neither she nor her husband was employed. The trial and appellate courts refused to grant the order, but the Supreme Court remanded the case for the lower court, citing the lower court's failure to examine the facts of the case.

La demandante solicitó una orden que requería que un hospital le realizara un litigio tubárico después de que ella dio a luz a su cuarto hijo. La demandante vivía en la pobreza y ni ella ni su esposo estaban empleados. Los tribunales de primera instancia y de apelación se negaron a otorgar la orden, pero el Tribunal Supremo devolvió el caso al tribunal inferior, citando el fallo del tribunal inferior de examinar los hechos del caso.



International Case Law

Miguel Castro-Castro Prison v. Peru Inter-American Court of Human Rights (2006)

Custodial violence, Sexual violence and rape

Approximately 135 female prison inmates (along with about 450 male inmates) were subjected to violent attacks by guards and other state agents over the course of three days at the Castro-Castro maximum security prison. Some female inmates were humiliated, stripped-down and subjected to further physical and psychological abuse. Many inmates were held in solitary confinement, were denied medical care, and were kept from communicating with their families or their attorneys. The Court found Peru to have violated Articles 4, 5(1), 5(2), 8(1) and 25 of the American Convention on Human Rights, Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture, and Article 7(b) of the Inter-American Convention to Prevent, Punish and Eradicate Violence against Women.  The Court ordered Peru to investigate and punish those responsible for these violations, to return the bodies of any inmates killed to their next of kin, to publicly acknowledge and apologize for these violations, to provide at no cost medical and psychological treatment to the victimized inmates and next of kin, and to pay reparations to the victims or their next of kin.