Women and Justice: Keywords

Domestic Case Law

Onesphory Materu v. The Republic Court of Appeal of Tanzania at Tanga (2009)

Sexual violence and rape

Salma Yusuf, a fourteen year old girl, alleged that the appellant police officer, Onesphory Materu, had raped her inside a police cell with a promise to release her (made in writing) after the fact. The trial court found the police officer guilty of rape and convicted him to a sentence of thirty years imprisonment, twenty four strokes of the cane and an order that he pays Shs.700,000 compensation to the complainant. The police officer had appealed for the second time and the court had to consider two grounds: (1) whether the victim was in fact telling the truth; and (2) that the court erred in relying on the “release note” as evidence of the crime. On the first matter, the court noted that inclusion of Section 127 (7) of the Evidence Act as amended by the Sexual Offences Special provisions Act, Number 4 of 1998 means that the only burden imposed on the court is “to give reasons that it is satisfied that a child of tender years or the victim of the offence is telling nothing but the truth”. There is no longer a requirement for the court to warn itself of the dangers of basing a conviction on the uncorroborated evidence of a child where a sexual offence is involved. On the second matter, the court noted that the appellant did not object to the entry into evidence of the note, so there can be no merit in objecting to it now. The conviction and sentencing was upheld.


Trumbull v. State Wyoming Supreme Court (2009)

Sexual violence and rape, Statutory rape or defilement

Defendant appealed a judgment of the District Court that convicted him of two counts of third-degree sexual assault under Wyo. Stat. Ann. § 6-2-304(a)(ii) (2005) for sexual improprieties involving his 10-year-old daughter, arguing that the evidence was insufficient to support his convictions and that the district court erred in imposing sentence. The Supreme Court of Wyoming affirmed defendant’s conviction, but reversed and remanded the case to the District Court for further proceedings on other grounds. The Supreme Court of Wyoming held that, where a statute criminalizing sexual contact contains an element of sexual gratification, it is not enough to establish that the defendant merely touched the sexual or intimate parts of an individual. The law at issue requires the presence of intent of sexual arousal, gratification, or abuse. However, an oral expression of intent is not required to establish a defendant’s intent, but may be established through defendant’s conduct and circumstances of physical contact. Intent of sexual gratification may be inferred from touching the complainant on more than one occasion, and committing the act after no adults were remaining in the house. In this case, defendant’s intent could be inferred from his “massaging” the clothed victim on two occasions, during which he touched her on her “legs, arms, boobs, privates, butt, and girl spot.”



Lacey v. State Nebraska Supreme Court (2009)

Gender discrimination, Sexual harassment

Lacey worked at the Department of Correctional Services as a temporary employee. Lacey’s supervisor was known for “creating a fun atmosphere” by “giving each other a hard time in a joking manner.” The supervisor’s jokes and questions were often sexual in nature, including inquiring Lacey about the frequency, locations, and types of sex she and her boyfriend had. Towards the end of Lacey’s temporary placement, the jokes and questions were made daily and became increasingly vulgar. Supervisor also subjected Lacey to unwanted touching. Lacey eventually complained and the supervisor was ordered to stay away from here. Soon after, Lacey was terminated under questionable circumstances. Lacey filed a complaint against the Department of Correctional Services on June 7, 2006, alleging, among other things, sexual harassment in violations of the Nebraska Fair Employment Practice Act (NFERA). The trial court awarded Lacey $60,000 in damages for her sexual harassment claim. The State appealed.



Haddad v. Wal-Mart Stores, Inc. Supreme Judicial Court of Massachusetts (2009)

Employment discrimination, Gender discrimination

Here, the plaintiff worked as a staff pharmacist for the defendant for ten years.   At a subsequent point, she became temporary pharmacy manager.  Until the plaintiff was terminated thirteen months later, she was paid at a lower rate as a pharmacy manager than her male counterparts.  She was told by the defendant that she would receive the difference in pay but never did.  She complained numerous times and finally received a check for the pharmacy manager bonus that others received, but never received the thirteen months’ worth of additional pay.  Prior to her termination, the plaintiff was questioned about two prescriptions that were fraudulently written—one while she was on duty and the other was written while a male pharmacist was on duty.  The pharmacy technician immediately admitted that she falsified the prescription from when the plaintiff was on duty.  The plaintiff denied knowledge of the fraud, but she was terminated based on her failure to secure the pharmacy.  The pharmacy technician was also terminated. The male pharmacist however was not fired or disciplined for failing to secure the pharmacy area.  At the time of the plaintiff’s termination, twenty of the twenty-one managers above the pharmacy manager level were male and all pharmacy technicians were female.  The court found that the evidence was sufficient to show that the defendant discriminated against the plaintiff in terminating her.  The court reasoned that a reasonable jury could have disbelieved the defendant’s reason for terminating the plaintiff; that the plaintiff’s base wage was lower than her male counterparts, and that there was discrimination based upon the fact that the male pharmacist on duty when another prescription was falsified was not disciplined or terminated.  The court found an award of compensatory damages was supported by the evidence, but that punitive damages amounting to $1 million were not warranted because the defendant’s conduct was not so outrageous or egregious.



Hurd v. Hurd Arizona Court of Appeals (2009)

Domestic and intimate partner violence

The appellate court affirmed a family court’s grant of sole custody to the mother of three minor children. According to Ariz. Rev. Stat. Ann. § 25-403.03, a significant history of domestic violence is sufficient to render joint custody inappropriate. In addition, Ariz. Rev. Stat. Ann. § 25-403.03.D further states, “there is a rebuttable presumption that an award of custody to the parent who committed the act of domestic violence is contrary to the child’s best interests.”



Skains v. Skains Arizona Court of Appeals (2009)

Domestic and intimate partner violence

The family court abused its discretion when awarding joint custody without considering evidence of domestic violence, and when awarding Father parenting time when there was a valid order protecting the child from Father.



Watt v. UniFirst Corp. Maine Supreme Court (2009)

Sexual harassment

After commencing her employment, plaintiff agreed to prepare lunches for a new co-worker in exchange for $25 a week. Plaintiff later stopped providing lunches to the co-worker who in return, became hostile towards her, commencing a pattern of sexual harassment, including lewd comments, uninvited sexual advances, and interference with her ability to work. In keeping with company policy, plaintiff addressed complaints to her supervisor. Although the supervisor met with the co-worker and issued warnings, the harassment continued. Eventually the general manager suspended the co-worker and changed his duties so he would not be working near the plaintiff. When he returned, however, the co-worker continued to harass plaintiff. Eventually, there was an incident where the two got into a physical altercation, for which both were suspended. The plaintiff sued the defendant for failing to remedy the situation and for a hostile work environment. The court found that an employer may be liable for the sexual harassment of an employee by a co-worker under a hostile environment claim if the employer knew or should have known about the harassment and failed to take immediate and appropriate steps to correct it. The court noted that in determining whether a work environment is hostile, a court should consider the frequency of the discriminatory conduct, its severity, if it is physically threatening or humiliating as opposed to a mere offensive utterance, and if it reasonably interferes with the plaintiff’s work. The court then concluded that a jury could conclude that the defendant’s response to the harassment was neither immediate nor appropriate. Specifically, the three-day suspension and warnings were insufficient given the pattern of harassment. Thus, the court vacated the trial court’s issuance of summary judgment to the defendant and remanded the case.



Hill v. Ford Motor Co. Missouri Supreme Court (2009)

Gender discrimination, Sexual harassment

Cynthia Hill worked under the supervision of various people including Kenny Hune. Mr. Hune often made sexual comments to Ms. Hill and asked her inappropriate personal questions. Ms. Hill told Mr. Hune that she was offended by his comments and she repeatedly rejected his sexual advances. Upon receiving a complaint about Mr. Hune from Ms. Hill and another female employee, group leader Pete Wade raised these complaints with Mr. Hune. A few months after this, Ms. Hill was assigned to Mr. Hune’s supervision, where Mr. Hune refused to work with her, branded her a hostile worker, and created problems over small or non-issues. When Ms. Hill sought to bring a complaint to Mr. Edds, the labor relations supervisor, Mr. Edds told Ms. Hill to get psychiatric help and not return to work until she had done so. Upon receiving such treatment Ms. Hill resorted to the company’s 24-hour “Hotline” to report Mr. Edds and Mr. Hune. An hour later, Mr. Edds had suspended Ms. Hill from work for three days for a minor mistake. Upon Ms. Hill’s return to work, Mr. Edds told her she had been fired. The Missouri Supreme Court held that there were genuine issues of material fact to preclude the grant of summary judgment in favor of the employer. There was enough evidence for a jury to find that Mr. Hune had created a hostile work environment through his constant sexual harassment, which would constitute gender discrimination under MHRA 213.055.


Thomas v. Morris Supreme Court of West Virginia (2009)

Domestic and intimate partner violence

The Court reversed the lower court and remanded to family court for entry of a protective order on behalf of petitioner.  Petitioner and defendant had been in a twelve year relationship that ended.  A year later, defendant made efforts to renew the relationship and began harassing petitioner with numerous phone calls, voice mail messages to her home and work phone and by making unannounced appearances at her workplace and home.  Defendant arrived at her home and didn’t leave the premises for approximately two hours.  During that time, he banged a three foot metal bar against her trailer.  She felt trapped in her home.  He routinely carried a concealed weapon, his car was blocking her driveway so that she couldn’t leave in her car and she did not have telephone service.  The lower court found that the defendant did not commit domestic violence because defendant remained outside the home during this time and plaintiff was not physically restrained or confined within her home.  In reversing the lower court, the Supreme Court stated that plaintiff did not have to show proof “of some overt physical exertion on the part of the alleged offender in order to justify issuance of a protective order.”  It held that domestic violence defined in West Virginia Code 48-27-202(3) (2001) as “[c]reating fear of physical harm by harassment, psychological abuse or threatening acts” provides that fear of physical harm may be established with (1) proof of harassment, (2) proof of psychological abuse, or (3) proof of overt or threatening acts.” 



Blizzard v. Appliance Direct, Inc. Florida 5th District Court of Appeal (2009)

Sexual harassment

Blizzard sued her employer, Appliance Direct, for damages for 13 and maintenance of a hostile work environment along with back pay and damages for retaliation based on claims that, among other things, her supervisor was constantly talking about his penis including graphic descriptions of its size, and his sexual prowess, history, successes and aspirations. Blizzard did not allege that her supervisor’s comments were directed to her. However, she alleged that his comments were pervasive and that the female employees who were receptive to his “management style” received favors and preferences that Blizzard did not. Blizzard based her 13 claim against Appliance Direct on her supervisor’s “creation of a hostile work environment caused by 13 that is sufficiently severe or pervasive to alter the terms and conditions of work.” To establish a hostile work environment 13 claim based on harassment by a supervisor Ms. Blizzard was required to show: (1) that she is a member of a protected group; (2) that she was subjected to unwelcome 13, (3) that the harassment was based on the sex of the employee, (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) that there is a basis for holding the employer liable. At particular issue in this case was element 5. The Court held with respect to element 5 that Blizzard could maintain her 13 claim against her employer based on her supervisor’s creation of a hostile work environment even though her supervisor’s actions and remarks were not specifically targeted to her.



Parker v. Warren County Util. Dist. Tennessee Supreme Court (2009)

Sexual harassment

Plaintiff Parker alleged that defendant Grissom, a general manager who hired her as a bookkeeper, sexually harassed her.  She reported the harassment to her immediate supervisor, Link.  Parker stated that she feared losing her job if she did anything, so asked that Link do nothing.  The harassment continued, and Link reported it to Vinson, a member of the Utility’s Board of Commissioners.  Vinson agreed that plaintiff would likely lose her job if she reported the harassment.  Plaintiff later discussed the issue with Vinson, who did not assure her that she would not lose her job.  Grissom voluntarily resigned in April of 1994 but was rehired in the fall, despite the fact that plaintiff notified the board of the alleged harassment.  The board rehired him, but also retained counsel to conduct an independent investigation of his alleged harassment. Plaintiff filed several claims; the remaining hostile work environment/13 claim before the Court was against the Utility District under the Tennessee Human Rights Act.  The Utility District filed a summary judgment motion, arguing that “it took prompt corrective action in response to plaintiff’s complaints and that the corrective action was ‘a complete defense’ to a claim for 13.”  An employer has an affirmative defense to a hostile work environment claim based on 13 by a supervisor if the employer can show: (1) that employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by employer or that employee unreasonably failed to otherwise avoid the harm.  The court held that Parker’s supervisor could be held vicariously liable for her hostile work environment 13 claim.  There was no evidence that the District exercised reasonable care to prevent the alleged harassment, and that there was no evidence of a written anti-discrimination policy given to employees to deal with the circumstances of the case.  It reversed the trial court’s grant of summary judgment to the employer, and modified a previous decision, Carr v. United Parcel Service, 955 S.W.2d 832, according to which a supervisor could be vicariously liable only for quid pro quo, and not hostile work environment 13 claims.  The court modified Carr to “reflect the recently articulated standard for supervisor harassment adopted by the United States Supreme Court.”



Hollander v. United States United States Court of Appeals for the Second Circuit (2009)

Domestic and intimate partner violence

A group of husbands filed suit against the United States and other U.S. officials, challenging the validity of the Violence Against Women Act (VAWA). In particular, they were challenging the portion that permitted aliens who had been battered or subjected to extreme cruelty by their spouses to self-petition for legal permanent resident status. The plaintiffs claimed this created an incentive for their wives and ex-wives to file false police complaints and false applications for temporary restraining orders against them. They further argued that their reputations were harmed and that confidential information about them was being released to third parties. The United States District Court for the Southern District of New York dismissed their suit for lack of standing. Accordingly, the plaintiffs could not challenge VAWA or its self-petition provision. On appeal, the Second Circuit affirmed the district court’s decision. The court held that the plaintiffs’ injury was not fairly traceable to the defendants, but rather to independent actions of their wives or ex-wives who were not before the court. The plaintiffs further failed to state an injury-in-fact, because their claimed injuries were purely speculative. The fear of disclosing confidential information to third parties was dispelled based on the confidentiality provisions of VAWA. Thus, the plaintiffs lacked standing to sue the government and challenge VAWA.



Ollier v. Sweetwater Union High School District United States District Court for the Southern District of California (2009)

Gender discrimination

Plaintiffs brought a class action lawsuit against Sweetwater Union School District (the “District”) and several individuals, alleging unequal participation opportunities for females at Castle Park High School (“CPHS”).  Plaintiffs argued that Defendants violated Title IX’s provision that prohibits excluding or discriminating against anyone on the basis of sex in educational programs or activities that receive federal financial assistance.  The court applied a three-part test to determine whether the District complied with Title IX which included: (1) substantially proportionate athletic opportunities for females; (2) continuing practice of program expansion for females; and (3) the accommodation of females’ interest and abilities.  First, the court held that Defendants failed to provide females with substantially proportionate opportunities to participate in athletics, as the number of female students denied the opportunity to participate could have sustained several viable competitive teams.  Second, the court held that there was no steady increase in female athletic participation.  Even though, as Defendants argued, athletic programs for girls had expanded over the past decade and CPHS had two more teams for girls than for boys, the number of female participants, not the number of teams, determined whether programs had expanded.  Third, the court held that Plaintiffs demonstrated evidence of unmet interest and of the ability of CPHS females to participate in field hockey, tennis, and water polo.  Defendants’ argument that they could not obtain coaches for the teams was not a valid excuse.  The court held that Defendants allowed significant gender-based disparity in violation of Title IX and found for Plaintiffs on their claim of unequal participation opportunities for females.



Reports

An Agenda For Change: Implementing the Platform of Action against Human Trafficking (2009)

Trafficking in persons

Organization for Security & Co-operation in Europe's Special Representative and Co-ordinator for Combating Trafficking in Human Beings, 2009.


UNIFEM: Progress of the World's Women (2009)

Gender-based violence in general

This UNIFEM Report focuses on the urgent need to strengthen accountability to women.


Women's control over economic resources and access to financial resources, including microfinance (2009)

Property and inheritance rights

UN Women 2009 World Survey on the Role of Women in Development (2009).



Soldiers Who Rape, Commanders Who Condone (2009)

Sexual violence and rape

Human Rights Watch Report documenting persistent sexual violence by the army in the Democratic Republic of Congo, and the limited impact of government and donor efforts to address the problem (2009).



Articles

Access to International Criminal Justice for Victims of Violence Against Women Under International Family Law (2009)

Gender-based violence in general

Mohamed Y. Mattar, 23 EMORY INT'L L. REV. 141 (2009).


The Sexual Assault Counselor-Victim Privilege: Jurisdictional Delay into an Unclaimed Sanctuary (2009)

Sexual violence and rape

Hon. Armand Arabian, 37 PEPP. L. REV. 89 (2009). Reprinted from Pepperdine Law Review, Volume 37, Special Issue. Copyright 2010 by the Pepperdine University School of Law.