Women and Justice: Keywords

Domestic Case Law

El Tribunal Constitucional de Chile Constitutional Court of Chile (2007)

Forced sterilization

A parliamentary minority requested that the Constitutional Court declare unconstitutional a Ministry of Health decree that determined the availability of family planning methods and permitted distribution of emergency contraception by national health centers.  The constitutional court noted that the “right to life” is fundamental under the Chilean Constitution. It rejected scientific arguments that emergency contraception did not affect the life of a conceived but unborn embryo.  In a dissenting opinion, one judge noted that the rights protecting the reproductive rights of women were enshrined in CEDAW in conflict with the Constitutional Court’s decision.  The Constitutional Court’s decision did not prevent all distribution of emergency contraception in Chile, but banned it from being distributed by clinics and hospitals that are part of national health system. The constitutional court decision was effectively overruled in January 2010 by Law No. 20.418, promulgated by President Bachelet, which permitted distribution of emergency contraceptive pills in both public and private health centers, including to persons under 14 without parental consent.  The law also requires high schools to enact sexual education programs.



File No. 7C/203/2006 District Court Prešov (2007)

Domestic and intimate partner violence

On August 4, 2006 Ms. M. G. (the “Claimant”) filed an action with the District Court Prešov against her husband, Mr. F. G. (the “Defendant”) requesting that his right to use the common household be revoked. The court ruled to revoke the Defendant’s common right to use the household and found the Defendant guilty of the criminal offence of making a dangerous threat under Section 360 (1) of the Criminal Code and sentenced him to imprisonment for six months. The Defendant, under the influence of alcohol, threatened to throw the Claimant off the balcony and forced her by violence to leave the house. During the trial, the Claimant’s allegations regarding the violent behavior of the Defendant were supported by the testimonies of both children of the disputing parties. According to an expert opinion, the Defendant was suffering from alcohol addiction and in need of medical treatment, which was later ordered by the court. Pursuant to Section 705a of the Civil Code, if further co-habitation with a spouse, divorced spouse or close person who is a common user of the same household becomes insufferable due to his / her physical or psychological violence or threats thereof, the court may, upon a petition, revoke or limit such violating party’s right to use such common household. In this case, the District Court in Prešov revoked the Defendant’s common right to use the household under the abovementioned provision of the Civil Code.


Littell v. Allstate Ins. Co. New Mexico Court of Appeals (2007)

Sexual harassment

Littell worked as a paralegal for Allstate in 1996. Aakhus, Littell’s supervisor, regularly told demeaning jokes, touched women inappropriately, commented about other employees’ sexual preferences, and tolerated similar behaviors by other coworkers. After Littell anonymously reported Aakhus to Allstate headquarters, Aakhus started to belittle her in public, disciplined her for pretextual reasons, and became more aggressive in general. Littell eventually left her job after Aakhus denied her leave to deal with a “family crisis.” Aakhus was discharged after Littell left Allstate. Littell subsequently sued Allstate, alleging, among other things, sexual harassment and retaliatory discharge. The jury reached a verdict in favor of Littell, awarding her $360,000 in compensatory damages and $1 million in punitive damages. Allstate appealed.



Motsinger v. Lithia Rose-Ft, Inc. Oregon Court of Appeals (2007)

Employment discrimination, Gender discrimination, Sexual harassment

Plaintiff, who was employed for fourteen months by defendant as a part-time receptionist, alleged that she was subjected to repeated acts of sexual harassment by several male employees. Plaintiff also alleged that her employment was terminated in part as retaliation for reporting this sexual harassment to management. Plaintiff brought a wrongful termination action against the employer, alleging claims of sexual harassment under Or. Rev. Stat. § 659A.030(1)(a), retaliation under Or. Rev. Stat. § 659A.030(1)(f), wrongful discharge, battery, and intentional infliction of emotional distress. The trial court denied defendant's petition to abate the proceeding pending arbitration, ruling that the arbitration clause contained in plaintiff's employment contract with defendant was unenforceable because it constituted an unconscionable contract of adhesion. The appellate court found that the employee did not show that the contract formation carried indicia of procedural and substantive unconscionability other than an unequal bargaining power. Consequently, the Court of Appeals of Oregon reversed and remanded the case.



Suter v. Stuckey Maryland Supreme Court (2007)

Domestic and intimate partner violence

Suter filed a petition for a temporary protective order, alleging boyfriend committed various violent acts against her.  The court issued the temporary protective order and entered a final protective order five days later by consent.  Stuckey, Suter’s boyfriend, later filed an appeal of the final protective order.  Suter filed a motion to dismiss the appeal, arguing the appeal was time-barred, and Stuckey was estopped from appealing a consent judgment.  The court held that the appeal was moot because the protective order had expired; however, it concluded that the issue was one capable of repetition yet evading review, and implicated an important public policy; it therefore examined the merits of the case.  The Court held that boyfriend did not have the right to appeal a protective order entered by consent.



Gersch v. Fantasia North Carolina Court of Appeals (2007)

Domestic and intimate partner violence

Plaintiff and defendant were engaged and had one child.  The trial court entered a protective order due to plaintiff’s allegation that defendant hit her during a visitation exchange.  Plaintiff had a visitation exchange of infant son with defendant at plaintiff’s parents’ house.  Plaintiff’s father carried their infant son towards his house.  Defendant allegedly punched and kicked plaintiff’s father.  When plaintiff tried to pull him away, he threw her into the railing.  The court found that the trial court’s finding was supported by competent evidence, and was not persuaded by defendant’s “assertion that the trial court improperly shifted the burden of proof onto defendant in determining that defendant committed an act of domestic violence.”  Because the trial court found that defendant did not “rebut plaintiff’s testimony that she received bruises on her left side as the result of being slung into the railing, . . . the trial court believed Ms. Gersch.” 



Ohio Government Risk Management Plan v. Harrison Supreme Court of Ohio (2007)

Sexual harassment

The Court held that alleged 13 by police chief was not outside the scope of his employment; therefore the insurer owed the police chief a duty to defend him in a lawsuit brought by a former employee alleging 13.  Plaintiff alleged that defendant used the department’s computer system to distribute pornographic images and emails and also used hidden electronic devices to record female employees in the restroom.  Plaintiff filed a five-count complaint that included claims for hostile work environment due to her gender and a sex-discrimination claim.  She sued him in his individual and official capacity, arguing that he acted in his official capacity as chief of police.  At the time, the Ohio Government Risk Management Plan provided liability insurance coverage to Harrison, the police chief.  It filed a declaratory judgment action seeking a declaration that it had no duty to provide coverage or a defense to Harrison. The court held that whether acts fall within the scope of employment will vary from case to case; however, the court would not find that 13 always lies outside the scope of employment.  Whether or not acts occurred within the scope of employment “turns on the fact-finder’s perception of whether the supervisor acted, or believed himself to have acted, at least in part, in his employer’s interests.”  The Court also examined the language of the policy and held that the insurer had a duty to defend.



Raya & Haig Hair Salon v. Pennsylvania Human Relations Commission Commonwealth Court of Pennsylvania (2007)

Sexual harassment

Aida Armani worked as a hairstylist at Raya and Haig Hair Salon.  One of her customers, Kadyshes, began verbally and physically sexually harassing Aida by telling sexual jokes, commenting on her breasts, telling her she would be good in bed, and touching her rear and shoulders.  The Salon eventually hired Kadyshes as a business manager, and he became Aida’s direct supervisor.  Aida complained on at least six occasions but no action was taken to stop Kadyshes’s conduct.  Eventually Aida decided to open her own salon but before she could resign the Hair Salon learned of her plans and fired her.  The Commission found that the Salon unlawfully discriminated against her by subjecting her to a hostile work environment and constructively discharging her because of her sex.  The Salon challenged the decision on multiple grounds.  First, it argued that Aida was not discharged because of her sex but because she opened her own salon.  The court found that Aida established a prima facie claim for hostile work environment and that the evidence supported the conclusion that the Hair Salon violated the Pennsylvania Human Relations Act by allowing the existence of a hostile work environment.  In order to establish a prima facie claim for hostile work environment, a complainant must prove that she (1) suffered intentional discrimination because of her race or gender; (2) the harassment was severe or persuasive and regular; (3) the harassment detrimentally affected the complainant; (4) the harassment would detrimentally affect a reasonable person of the same protected class; and (5) the harasser was a supervisory employee or agent.  Constructive discharge occurs when an employer knowingly permits conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.  The fact that Aida stayed at her job did not preclude a finding of constructive discharge—she was the sole source of income for her family and she endured the treatment as long as she could take it.  Second, the Salon argued that it was improper to admit testimony about Aida’s work conditions that predated the time frame for which she alleged discrimination.  But the entire scope of a hostile work environment claim is permissible for assessing liability, including behavior alleged outside the statutory time period.  Third, the Salon challenged the determination that Aida attempted to mitigate her damages.  While a plaintiff has a duty to mitigate her damages, the burden of showing that she did not exercise reasonable diligence in seeking comparable employment lies with the employer.  Aida’s self-employment constituted mitigation because she took immediate steps to open her salon after she was fired.



Commonwealth v. Kerrigan Superior Court of Pennsylvania (2007)

Sexual violence and rape, Statutory rape or defilement

Daniel Kerrigan sexually abused A.R., the 7-year-old daughter of his live-in girlfriend, for 3 years.  The abuse was discovered when A.R. was diagnosed with genital warts when she was 10 years old.  The court held that the transmission of HPV and genital warts satisfies the serious bodily injury requirement of the crimes of Rape of Child (Serious Bodily Injury) and Involuntary Deviate Sexual Intercourse with a Child (Serious Bodily Injury) because HPV is a permanent disease, can lead to cervical cancer, and may be transmitted to A.R.’s future sexual partners or children.



U.S. v. Gardner United States District Court for the Northern District of California (2007)

Trafficking in persons

A grand jury indicted Defendant Gardner (“Defendant”) for alleged participation in a conspiracy to engage in the sex trafficking of a 17-year-old minor female. Defendant was allegedly involved in transporting the minor, collecting money from the minor, and housing the minor between prostitution calls. At Defendant’s detention hearing, the judge released Defendant subject to a bond and other conditions, including a curfew. Several weeks after Defendant’s release, the government sought to impose electronic monitoring as an additional condition of release and as mandated by the Adam Walsh Child and Protection Safety Act of 2006 (“the Act”). The electronic monitoring would immediately alert law enforcement if Defendant violated her curfew. Defense counsel argued that the electronic monitoring violated the Eighth Amendment, procedural due process, and the doctrine of separation of powers. The court disagreed and held that the electronic monitoring was constitutional on all three grounds. Moreover, the court concluded that the electronic monitoring furthered this interest in a way that was not excessive when compared to the risk of post-arrest criminal activity. The court noted that the Act served the valid government interest of providing additional protection for children “from sexual attacks and other violent crimes.” Decision on file with the Avon Global Center.



Gonzalez v. Munoz California Court of Appeal (2007)

Domestic and intimate partner violence

Maria Elena Gonzalez (“Gonzalez”) filed for a temporary restraining order against her former partner, Maurelio Francisco Munoz (“Munoz”). She complained that Munoz violently attacked her on numerous occasions including burning her with hot grease, choking and beating her, and abusing her three-year-old daughter Flor. The trial court granted a temporary ex-parte restraining order to keep Munoz from Gonzalez and Flor. The court also issued personal conduct and stay-away orders, and granted physical and legal custody of Flor to Gonzalez with no visitation rights for Munoz. At a subsequent hearing regarding the orders, Gonzalez and Munoz both appeared without counsel and spoke through an interpreter. At the beginning of the hearing, the court told the parties it would make some “temporary orders under certain circumstances regarding custody and visitation” but could not make a paternity judgment. The court advised Gonzalez and Munoz that they would need to file a separate paternity suit to resolve issues related to custody and visitation of Flor. Munoz indicated he was not Flor’s parent but requested “reasonable visitation” on weekends. The court issued a restraining order that excluded Flor and extended for one year the portion of the prior restraining order that kept Munoz away from Gonzalez. But it did not address custody or visitation. Gonzalez then asked the court about child support, an indication she did not understand the discussion about a separate paternity proceeding. In a subsequent hearing a judge granted Munoz weekly supervised visits with Flor despite the abuse allegations. The Court of Appeal reversed the trial court and found it erred and violated Section 6340 of the California’s Domestic Violence Prevention Act (the “Act”) when it failed to issue permanent custody of Flor to Gonzalez. The Act directs the court when applying the Act to “consider whether failure to make any of these orders may jeopardize the safety of the petitioner and the children for whom the custody or visitation orders are sought.” The Court of Appeal noted that, given Flor’s potential exposure to violence from Munoz, the trial court was charged with eliciting evidence about Flor’s parentage and whether the earlier custody and visitation orders needed to be modified or extended to “ensure the mutual safety of Gonzalez and Flor.” Also, because Munoz failed to show or to claim a parent-child relationship with Flor, the trial court should have extended the restraining order to cover Flor and entered the permanent custody order Gonzalez requested. The Court of Appeal admonished bench officers to play a “far more active role in developing the facts,” even at the expense of a particular court’s procedures, to avoid the high potential for danger to the Act’s target population—“largely unrepresented women and their minor children.” It noted the “special burden” on bench officers who “cannot rely on the propria persona litigants to know each of the procedural steps, to raise objections, and to otherwise protect their due process rights.”



Exp. No. 018-96-I/TC Constitutional Tribunal (2007)

Gender discrimination

A public defender challenged the constitutionality of Article 337 of the Civil Code, which stated that in domestic disputes, a judge could take into consideration the education, custom and conduct of both spouses when dealing with cases of cruelty, dishonest behavior or grave injury. He argued that such a law violated the constitutional right of equality before the law. The Constitutional Tribunal agreed in part and disagreed in part, holding that such considerations could only be examined when dealing with cases of grave injury.



Sentencia T-549/07 Constitutional Court of Colombia (2007)

Sexual violence and rape

Court held that plaintiff, who was accused of raping two women, did not have his due process rights violated when tried by an indigenous tribunal because the due process followed by the indigenous tribunal was consistent with the due process requirements of the national courts. 



Sentencia T-877/07 Constitutional Court of Colombia (2007)

Gender discrimination

The Court affirmed that an employer is not only constitutionally-required to provide adequate maternal leave for pregnant workers, but also bound by regional and international treaties to which Colombia is a signatory, such as the Additional Protocol to the American Convention on Human Rights  ("Protocol of San Salvador").



Sentencia T-988/07 Constitutional Court of Colombia (2007)

Gender-based violence in general

The Court ordered defendant, a health-care provider, to provide a mentally and physically-disabled woman with an abortion after she became pregnant from nonconsensual sexual intercourse. The Court held that because of her mental disability, the woman's parents could request the abortion, despite the fact that the woman was 24-years old. The Court also held that the rape need not have been reported to the authorities, as was argued by the defendant.



Y., C. I. c/ L., B. A. Fallo de la Sala F de la Cámara Nacional en lo Civil (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Reviewing a trial court decision that granted a divorce based on the actions of both parties, the Appellate Court rejected a husband's suit for divorce, and instead granted the divorce based on the wife's counter suit, holding that the marriage failed due to the husband's domestic abuse of his wife.

 

Al revisar una decisión del tribunal de primera instancia que otorgó un divorcio basado en las acciones de ambas partes, el Tribunal de Apelación rechazó la demanda de divorcio de un marido y, en su lugar, otorgó el divorcio basado en la demanda de la esposa, sosteniendo que el matrimonio fracasó debido al abuso doméstico del marido hacia su esposa.



International Case Law

Report on Admissibility of Jessica Gonzales and Others v. United States Inter-American Commission on Human Rights (2007)

Domestic and intimate partner violence

State duty to enforce court-ordered protective order.  Jessica Gonzales' three children were killed when local police failed to enforced a restraining order against her estranged husband.  The Supreme Court of the United States ruled that no affirmative duty exists on the part of the government to enforce a protective order.



Cantoral-Huamaní and García-Santa Cruz v. Peru Inter-American Court of Human Rights (2007)

Gender-based violence in general

The IACHR lodged an application against Peru for the violation, among other things, of the right to free association. Garcia-Santa Cruz was founder of a women's organization in a mining community, and provided support to the families of miners during a mining strike. Garcia-Santa Cruz was executed, and the Court held that her execution was an attempt to intimidate miners into not unionizing. The Court held this type of intimidation to be a violation of the freedom of association (Article 16 of the American Convention). The Court also found Peru to have violated Articles 1(1), 4, 5, 7, 8(1) and 25 of the American Convention on Human Rights. The Court ordered Peru to investigate and punish those who carried out these violations, to publicly acknowledge international responsibility for these violations, to provide psychological services to the victims' next of kin, and to pay pecuniary and non-pecuniary damages and costs.