Women and Justice: Keywords

International Case Law

Hadijatou Mani Koraou v. Republic of Niger ECOWAS Community Court of Justice (2008)

Forced and early marriage, Gender discrimination, Gender-based violence in general, Harmful traditional practices, Sexual violence and rape, Trafficking in persons

Hadijatou Mani, who was born to a mother in slavery, was sold to a local chief at age 12. For the next nine years she was subjected to rape, violence, and forced labor without remuneration. When Niger’s Supreme Court failed to convict her master under Article 270.1-5 of the Nigerien Criminal Code, which made slavery illegal in 2003, Hadijatou brought her case before the ECOWAS Community Court of Justice under Article 9(4) of the Supplementary Protocol A/SP.1/01/05. The court ruled that Hadijatou had been a slave under the definition in Article 1 (I) of the Slavery Convention of 1926 and that in failing to convict Hadijatou’s former master, Niger had not upheld its legal responsibility to protect her from slavery under international law. This case was the first ECOWAS ruling on slavery and only the second conviction made under Niger’s 2003 anti-slavery law. The case gained a high level of publicity, setting the precedent for women to fight back against the traditional slavery practices common to Niger and other ECOWAS nations. As of 2009, there had been approximately 30 more cases upholding the prohibition of slavery in Niger.



NJA 2008 s. 482 II Supreme Court of Sweden (2008)

Sexual violence and rape

["A person who, otherwise than as provided in Section 1 first paragraph, induces another person by unlawful coercion to undertake or endure a sexual act, shall be sentenced for sexual coercion to imprisonment for at most two years. / This shall also apply to a person who carries out a sexual act other than provided for in Section 1 second paragraph with a person, under the conditions otherwise specified in that paragraph./ If a crime provided for in the first or second paragraph is considered gross, a sentence to imprisonment for at least six months and at most six years shall be imposed for gross sexual coercion. In assessing whether the crime is gross, special consideration shall be given to whether more than one person assaulted the victim or in any other way took part in the assault or whether the perpetrator otherwise exhibited particular ruthlessness or brutality. (…)" Chapter 6, Section 1 of the Swedish Penal Code.]  [A person who, by violence or threat involving or appearing to the threatened person as imminent danger, forces the latter to have sexual intercourse or to engage in a comparable sexual act, shall be sentenced for rape to imprisonment for at least two and at most six years. (…)" Chapter 6, Section 2 of the Swedish Penal Code.]  In this case, the Supreme Court held that sexual coercion had occurred when a man masturbated to another person that was asleep. The victim was at the time 17 years old and had provisionary employment at the perpetrator's company. The incident took place in a hotel room during a trip arranged by the company. The Supreme Court found that the victim was, at the time of the crime, in such helpless condition as referred to in Chapter 6, Section 1 Swedish Penal Code but that the sexual act was not comparable to sexual intercourse. The circumstance that the victim was 17 years old and worked for the perpetrator was not considered to make the offense gross. The Supreme Court therefore found the accused guilty of sexual coercion. [Decision on file with Avon Global Center]



Domestic Case Law

Susan Couch v. Attorney-General (2008)

Gender-based violence in general

The plaintiff, Ms. Couch, was seriously injured when William Bell robbed her place of employment. William Bell was a parolee under the supervision of the Probation Service. Ms. Couch claimed that the Probation Service failed to exercise reasonable care in the supervision of William Bell, leading to her injuries. The Court of Appeals dismissed her claim on the basis that the Probation Service owed no duty of care to her. The Supreme Court unanimously reversed, holding that the Probation Service owes a duty of care to victims of criminal assault by parolees under its supervision. In doing so, the Supreme Court expressly rejected a so-called “sufficient proximity” rule, stating that the Probation Service owes a duty of care only to plaintiffs who are members of an identifiable class that is at particular risk of harm by parolees. The Supreme Court also held that the Probation Service is not vicariously liable for the actions of its parolees.


Easton v. Broadcasting Commission High Court of New Zealand (2008)

Gender discrimination

Plaintiff sought to challenge what he saw as state-sponsored and supported gender bias against men. He alleged that the New Zealand Bill of Rights Act of 1990 is discriminatory because it specifically requires that a range of broadcasts be available to provide for the interests of women while failing to include men, and that in doing so, the Act implicitly discriminates against men. The High Court dismissed the case based on the defendant agencies’ lack of standing to defend the claim, and therefore lack of jurisdiction by the High Court to hear the case.


Raynes v. Rogers Vermont Supreme Court (2008)

Domestic and intimate partner violence

Here, the parties lived together for approximately six years. Following a separation, plaintiff moved out, and the parties disputed personal property ownership. On one occasion, the plaintiff went to the defendant’s house for dinner and the parties got into an argument. The plaintiff picked up the defendant’s small dog and took it with her to leave. This led to the defendant kicking the plaintiff’s car door and using physical force against the plaintiff in an attempt to recover the dog. The plaintiff obtained a temporary abuse order. At the hearing for that order to be made permanent, the defendant chased the plaintiff, grabbed her, kicked the door of her car, and hit her in the face. The defendant also began to call the plaintiff and monitor her. The family court found this warranted the plaintiff to be in fear of further harm. The defendant argued that he was justified in using force to protect his dog, as it was his personal property. The court rejected this argument and found that the common-law defense of property is irrelevant in the determination of whether a victim needs protection from abuse.



Danny v. Laidlaw Transit Servs., Inc. Washington Supreme Court (2008)

Domestic and intimate partner violence, Employment discrimination

While she was working at Laidlaw, plaintiff and her five children experienced ongoing domestic violence at the hands of her husband. Plaintiff requested time off to remove herself and her children from the abusive situation, was refused, and was subsequently given paid time off for 15 days, in which she availed of police, legal, and advocacy assistance. Shortly after returning to work, defendant first demoted plaintiff and subsequently terminated plaintiff’s employment stating as a reason falsification of payroll records. Plaintiff filed her complaint against defendant, alleging that Laidlaw terminated her employment in violation of public policy and Washington's Law Against Discrimination, RCW 49.60. Absent a contract to the contrary, Washington employees are generally terminable “at will,” with a narrow exception for the common law tort of wrongful discharge, which applies when an employer terminates an employee for reasons that contravene a clearly mandated public policy. As one element of this tort, the plaintiff needed to establish “the existence of a clear public policy (the clarity element).” The Supreme Court of Washington reformulated the certified question from the District Court as follows: Has Washington established a clear mandate of public policy of protecting domestic violence survivors and their families and holding their abusers accountable? The Supreme Court of Washington answered the question in the affirmative, holding that plaintiff had satisfied the “clarity” element of wrongful discharge in violation of public policy, because Washington unequivocally established, through legislative, judicial, constitutional, and executive expressions, a clear mandate of public policy of protecting domestic violence survivor and their families and holding abusers accountable. On remand, the Supreme Court of Washington instructed the District Court to determine whether employee satisfied the jeopardy element of the tort by showing that the time she took off from work was the only available adequate means to prevent domestic violence against herself or her children by evaluating the nature of the danger, the particular actions she undertook, and the details of her work schedule.



Sam v. State Wyoming Supreme Court (2008)

Domestic and intimate partner violence

Defendant was arrested for violation of a protection order and moved to suppress the results of a search of his motor vehicle, which uncovered evidence of drug crimes. The Supreme Court of Wyoming affirmed the judgment and defendant’s conviction. A sergeant of the Police department became aware of an order of protection in favor of Candie Hinton and her daughter, protecting them from defendant and, among other things, prohibiting defendant from calling them on the phone. Aware that the defendant was in violation of the terms of the protection order because of the Hintons’ complaints of phone harassment, the sergeant was preparing to seek a warrant for defendant’s arrest. The sergeant was also aware that he was authorized to make a warrantless arrest if he became aware of a specific instance of a violation of the protection order. Before the sergeant was able to obtain an arrest warrant, the Crisis Intervention Office contacted him and told him that Candie Hinton and her daughter were at the Office, that defendant had been calling the daughter’s cell phone, and that defendant had twice driven by the Office. When the sergeant observed defendant driving by for a third time, he stopped him and arrested him on the basis of violation of the protection order. During the search of defendant’s car for evidence relating to violation of the protection order, the sergeant uncovered evidence of drug crimes, but no evidence of defendant’s violation of the protection order. The Supreme Court of Wyoming sustained the conviction and ruled the evidence of drug crimes as admissible under these circumstances because the officer was aware that defendant was the subject of an order of protection and that he had violated that order several times immediately prior to his search and arrest. Consequently, the officer was justified in searching for evidence which might serve to sustain defendant’s prosecution for violation of the protection order and/or that he might have been an imminent and serious danger to his victims, given his prior behavior.


Caplan v. Donovan Supreme Judicial Court of Massachusetts (2008)

Domestic and intimate partner violence

Here, the plaintiff was a resident of Massachusetts and she sought an abuse prevention order against her nonresident partner.  The plaintiff and her partner met in Massachusetts and moved to Florida, where they had a child.  The plaintiff took the child to Massachusetts on occasion but the defendant never returned.  The plaintiff alleged that the defendant physically abused her and she fled to Massachusetts with her son.  The plaintiff alleged that prior to her escape, the defendant accused her of cheating, called her a whore, and threatened to kill her and the child.  He blocked the door when she tried to leave and when she took the phone to call the police, he ripped the phone from her hand and threw it across the room.  Once the plaintiff arrived in Massachusetts, the defendant called his friends and the plaintiff’s cell phone several times a day trying to locate her.  The plaintiff subsequently filed a complaint in court in Massachusetts seeking a protection order.  The court issued an order which granted the plaintiff custody of the child and directed the defendant not to abuse the plaintiff or the child, not to contact them, to surrender his firearms in Florida and to compensate the plaintiff monetarily.   The court found that the plaintiff was entitled to an abuse prevention order directing the defendant not to abuse her, not to contact her, to stay away from the plaintiff and her residence, granting custody of the child to the plaintiff, and ordering the defendant to stay away from the child.  However, the court found that it was a violation of the defendant’s due process rights to order an affirmative obligation on him, including paying money and handing over his firearms, as the court had no personal jurisdiction over the defendant.



Frieler v. Carlson Mktg. Group, Inc. Minnesota Supreme Court (2008)

Sexual harassment

Here, the appellant, Judy Frieler, sued the respondent for violating § 363A.03(43) and § 363A.08(2) of the Minnesota Human Rights Act (MHRA), “based on a hostile working environment due to sexual harassment by a supervisor.” Ms. Frieler worked part-time and was interested in a full-time position in the shipping department. She expressed her interest and was referred to Ed Janiak, the supervisor of that department. Ms. Frieler alleged that Janiak had verbally abused her and on three to four occasions lured her into a locked room, pressed himself against her and made sexual advances towards her. Ms. Frieler reported the incident to her employer (respondent) but before a full investigation could take place, Janiak resigned from his position. Janiak was made aware of the allegations just a few days before his resignation, and he denied them. Ms. Frieler subsequently sued her employer under § 363A.03(43) and § 363A.08(2). The trial court and court of appeals dismissed her sexual harassment claims for failing to raise an issue of material fact as to whether the employer knew about the harassment and whether Janiak was Ms. Frieler’s supervisor for vicarious liability purposes. The Minnesota Supreme Court reversed and remanded the court of appeals’ ruling. The court held that: 1) a plaintiff does not need to prove that his or her employer knew about the harassment in order to maintain a claim under the MHRA; 2) employers are not strictly liable for sexual harassment claims; 3) “an employer is subject to vicarious liability for an actionable hostile environment created by a supervisor with immediate authority over a victimized employee;” and 4) in this case, there was a material issue of fact whether Janiak was Ms. Friedler’s supervisor at the time of the harassment.



Gavin v. Rogers Tech. Servs., Inc. Nebraska Supreme Court (2008)

Sexual harassment

Gavin worked as the personal assistant to Rogers, president of RTSI. A few days into her employment, Gavin discovered that the conversations between her and Rogers always had a sexual overtone, if not outright about sex. One day, when Gavin entered Rogers’ home office in the morning, Gavin appeared to be wearing nothing but a pair of boxer shorts. Gavin immediately left and never returned to work again. On these facts, Gavin brought a sexual harassment suit under VII of the Civil Rights Act of 1964 against RISI.


MacPherson v. Weiner New Hampshire Supreme Court (2008)

Domestic and intimate partner violence

Here, the plaintiff was issued a final protective order against the defendant. Subsequent to the issuance of this order, the plaintiff had filed a statement with the police that the defendant went to her work, called her work, and called her parents. Further, a witness observed the defendant at the plaintiff’s home, and he was seen to drive by her home on seven occasions. The defendant was convicted of violating the protective order and complied with it thereafter. Subsequently, the plaintiff requested a five-year extension to the order and the defendant requested a hearing. The trial court granted the extension and the defendant appealed. The defendant argued that the plaintiff did not have good cause to support the extension. The court considered good cause under N.H. Rev. Stat. § 633:3-a which provides that in regard to stalking, a protective order may be extended on a showing of good cause to provide for the safety and well-being of the plaintiff. The court noted that to determine good cause, it should consider the circumstances of the original stalking, the current conditions, and consider any reasonable fear by the plaintiff. The court found that the plaintiff showed good cause for an extension of the protective order; the defendant drove by the plaintiff’s house multiple times in violation of the initial protective order only fifteen months earlier and the plaintiff’s fear of the defendant was reasonable.



Clements v. Haskovec Court of Appeals of Texas – Corpus Cristi-Edinburg District (2008)

Domestic and intimate partner violence

Ira Clements lived with his elderly wife, Helen, who had been diagnosed with Alzheimer’s disease.  Their daughter, Linda, believed that her father was abusing her mother.  When Linda arrived at the family home with the intention of removing her mother from Ira’s home, Ira grabbed Linda by her hair and drew back his fist as though he would hit her.  As Helen tried to sneak out of the house, Ira grabbed her arm and pulled her back into the house.  When police officers arrived to investigate, Ira admitted to them that he grabbed Linda’s hair and stated that he “should have beat the hell out of [Linda]”; Linda was visibly nervous and shaken and reported to the officer that she feared for her life.  A “family violence” protective order issued against Ira behalf of Helen, Linda, and Linda’s husband pursuant to section 71.004 of the Texas Family Code.  Ira challenged the protective order on the grounds that (i) his conduct did not constitute “family violence” under the Code and (ii) there was no threat that family violence would likely occur in the future.  As to Ira’s first argument, the court held that Ira’s behavior fit the definition of “family violence” even though he never actually struck his wife or daughter because he put a family member “in fear of imminent physical harm, bodily injury, [or] assault.” The protective order was legally sufficient because Linda, her sister, and two police officers testified that Ira grabbed Linda’s hair and drew back his fist as if he would hit her, and, that Ira had repeatedly threatened Helen and made her fearful—thus, there was not a complete absence of vital fact and the evidence amounted to more than a “mere scintilla.”  As to Ira’s second argument, the court held that there was sufficient evidence for the finding that family violence would likely occur in the future.  In so finding, the court explicitly extended to family violence protective order cases the well-settled family law principle that evidence a person has engaged in abusive or neglectful conduct permits an inference that the person will continue this behavior in the future.



Aleem v. Aleem Maryland Supreme Court (2008)

Divorce and dissolution of marriage, Gender discrimination

Court held that divorce obtained by husband under Islamic religious and secular Pakistani law would not be recognized and afforded comity in Maryland.  Petitioner argued that because he performed “talaq,” (which under Islamic law, allows a husband to divorce his wife by stating “I divorce thee” three times) the Circuit Court for Montgomery County lacked jurisdiction “to litigate the division of the parties’ marital property.”  “The trial court found that the marriage contract entered into on the day of the parties’ marriage in Pakistan specifically did not provide for the division of marital property and thus, for that reason alone, the agreement did not prohibit the Circuit Court for Montgomery County from dividing the parties’ marital property under Maryland law.”  The Court of Special Appeals agreed and stated, “[t]hus, the Pakistani marriage contract in the instant matter is not to be equated with a premarital or post-marital agreement that validly relinquished, under Maryland law, rights in marital property.”  It explained that the default under Pakistan law is that the wife does not have rights to marital property, while under Maryland law she does.  Applying Pakistani law, according to the court, would violate Maryland public policy.  The court also noted that a “procedure that permits a man (and him only unless he agrees otherwise) to evade a divorce action begun in this State by rushing to the embassy of a country recognizing talaq and, without prior notice to the wife . . . summarily terminate the marriage and deprive his wife of marital property, confers insufficient due process to his wife.  Accordingly, for this additional reason the courts of Maryland shall not recognize the talaq divorce performed here.”



Metro N. Owners, LLC v. Thorpe Civil Court of the City of New York (2008)

Domestic and intimate partner violence, Property and inheritance rights

Ms. Thorpe was a victim of domestic violence.  Her landlord sought to evict her from her apartment, alleging nuisance in violation of the lease.  Ms. Thrope was the only person on the lease.  Her landlord’s nuisance claim was based on a fight that had occurred between Ms. Thorpe and her husband.  Ms. Thorpe moved for summary judgment based on the Violence Against Women and Department of Justice Reauthorization Act of 2005 (“VAWA 2005”).  Under VAWA 2005, “an incident of domestic violence will not be construed to violate a public-housing or government-assisted tenancy and shall not be good cause to terminate a public-housing or government-assisted tenancy if the tenant is the victim or threatened victim of domestic violence.”  Ms. Thorpe argued that because her landlord’s allegations of nuisance were based solely on acts of domestic violence committed against her, he could not terminate her government-assisted tenancy.  To prove that she was a victim of domestic violence, Ms. Thorpe provided three complaint reports that she had filed with the New York Police Department, along with a protective order she obtained against her husband from the New York City Criminal Court.  The court granted Ms. Thorpe’s motion for summary judgment because she was a victim of domestic violence, and as such, VAWA 2005 prohibited her landlord from terminating her lease.  The court reasoned that “VAWA’s goal is to prevent a landlord from penalizing a tenant for being a victim of domestic violence,” as Ms. Thorpe was here.



Elrod v. Elrod North Carolina Court of Appeals (2008)

Domestic and intimate partner violence

Plaintiff and Defendant were married in 1998 but entered into a separation agreement in 2007.  Plaintiff and Defendant were living together.  They were discussing work that needed to be done around the house when defendant husband requested that the wife look at the door sweep.  The wife bent down to look and subsequently could not recall anything that took place until she woke up around 3:00 am and found herself in bed with a “terrible headache” and extreme nausea.  Defendant told her that she had had a seizure and had hit her head.  She went to the hospital.  The doctor found that her injuries were life-threatening and consistent with domestic violence, not with a seizure.  Her family members testified that at the hospital defendant acted nervous.  When her son insinuated to defendant that defendant caused the injuries, defendant responded “What man would walk away from three million dollars?”  Three days later plaintiff filed a complaint and motion for a domestic violence protective order.  The trial court entered the protective order, finding that defendant caused the plaintiff’s severe injuries.  Defendant appealed, arguing that the finding was “not supported by competent evidence” and “the findings did not support the conclusion that domestic violence had occurred.”  The appellate court noted that in North Carolina, domestic violence is “the commission of one or more of the following acts upon an aggrieved party or upon a minor child residing with or in the custody of the aggrieved party by a person with whom the aggrieved party has or has had a personal relationship, but does not include acts of self-defense: (1) Attempting to cause bodily injury, or intentionally causing bodily injury.”  The court reviewed the evidence and found that it supported the trial court’s finding – the defendant’s testimony was “not plausible.”  



Mescanti v. Mescanti Superior Court of Pennsylvania (2008)

Domestic and intimate partner violence, Sexual harassment

William and Elizabeth Mecanti were married with children.  William subjected Elizabeth to a pattern of harassment that lasted months.  The couple had been experiencing marital difficulties and Elizabeth had been sleeping on the couch.  She slept during the daytime because she worked the night shift.  William would come home from work and wake her up to argue and instigate fights.  He hacked into Elizabeth’s emails and looked through her pockets, cell phone logs, purses, and car.  He would follow her when she was out with friends.  He wrote her pages expressing his love, his fear of losing her, and his wish to stay together forever.  On one occasion William hid her house and car keys and locked her out of the house; when she was finally able to reenter the house, Elizabeth discovered that he had disconnected the telephone lines.  Elizabeth sought a protection from abuse (“PFA”) order after an incident when William wanted her to sleep with him in their bedroom, even though she had told him she wanted a divorce and they had been sleeping apart for three years.  When she refused to follow him to the bedroom, William told her “this is going to get ugly” and “this is just the tip of the iceberg.” Then he left the house.  Elizabeth went to sleep on the couch and woke up when William returned home and turned on the television.  She asked him to turn it off but he refused; after some argument he stormed out of the room after saying “you better not go to sleep.  You better not even close your eyes.”  Elizabeth heard a noise like the cocking of a gun (William kept guns in the house) so she called the police.  After this incident she sought the order of protection, which was granted.  She had not filed for divorce because she was afraid of what William might do.  On appeal, William argued that the PFA should not have issued because his threats were indirect and Elizabeth never testified to a past occasion when he threatened her as he did the night of the incident.  The court considered the pattern of harassment as a whole, including Elizabeth’s testimony that she had heard William cock guns in the past, and concluded that that his behavior established “abuse” under the statute.



Benjamin v. McKinnon Court of Appeals Fourth District (2008)

Domestic and intimate partner violence

The plaintiff sought a protection order against the defendants, a father and son, for orders of protection. The trial court awarded an order of protection against the son, but not against the father. The Court of Appeals considered whether there was a family relationship between the plaintiff and the defendants that permitted issuing an order of protection under the state law and decided that there was a family relationship because the plaintiff’s son had been married to the defendants’ daughter and sister respectively. They relied on previous case law that had found a sufficient relationship between families related by blood. Thus, the Court affirmed the order of the trial court, upholding the order of protection against the son and denying the father’s motion for sanctions.



Sentencia T-549/08 Constitutional Court of Colombia (2008)

Gender discrimination

Reversing a lower court's finding, the Court ordered defendant to reinstate plaintiff in her prior place of employment after it found that defendant had improperly fired plaintiff due to her pregnancy, thereby violating her rights as a pregnant woman. 



Sentencia A092/08 Constitutional Court of Colombia (2008)

Gender violence in conflict

The Court recognized the special constitutional protection that women displaced by armed conflict are entitled to, as well as international obligations applicable to women displaced by armed conflict. The Court ordered the creation of programs to bring attention to the plight of displaced women and to strengthen their constitutional rights. The court also granted protective orders to more than 600 displaced women. Finally, the court alerted the Attorney General of numerous sexual crimes committed against women during Colombia's armed conflict. 



Sentencia T-058/08 Constitutional Court of Colombia (2008)

Gender discrimination

Reversing an appellate court ruling and affirming a trial court ruling, the Court reaffirmed the rights to employment of pregnant and nursing women.  



Sentencia T-088/08 Constitutional Court of Colombia (2008)

Gender-based violence in general

Recognizing the constitutional vulnerability of pregnant women and unborn and newborn children, the Court ordered defendant, and insurance company, to insure plaintiff, an 18-year old pregnant woman, who had lost the right to her parents' insurance upon reaching the age of 18. 



Sentencia T-209/08 Constitutional Court of Colombia (2008)

Gender-based violence in general

Therapeutic abortion in cases of rape, incest, and to save the health and life of the woman. The Court reaffirmed that a ban on abortion in all instances would an unconstitutional violation of women's fundamental rights. 



Reports

Global Financial and Economic Crisis and its Impact on Women: a Human Rights Perspective (2008)

Gender discrimination

Report by Programme on Women's Economic, Social and Cultural Rights (PWESCR)on a South Asian Regional workshop hosted by PWESCR, UNWomen and Heinrich Boll Foundation, presenting a gendered view of human rights in South Asia (2010).


Progress of the World's Women 2008/2009: Who Answers to Women? (2008)

Gender discrimination

UN Women report presenting innovative measures states and international institutions are taking to increase accountability to women, focusing on politics and governance, access to public services, economic opportunities, justice, and the distribution of international assistance for development and security (2008).


The Role of the Judiciary in Promoting Gender Justice in Africa (English) (2008)

Gender discrimination

Report of the Partners for Gender Justice Conference, Accra, Ghana 19-21 Nov. 2008. English version.


The Role of the Judiciary in Promoting Gender Justice in Africa (French) (2008)

Gender discrimination

Report of the Partners for Gender Justice Conference, Accra, Ghana 19-21 Nov. 2008. French version.


Articles

Human Rights at Home: Domestic Violence as a Human Rights Violation (2008)

Domestic and intimate partner violence