The Indigenous Community Xákmok Kásek and its members sued Paraguay because of its inability to recover certain ancestral property. The Community claimed that this lack of access to property and possession of its territory, in addition to threatening the survival of the Community, resulted in nutritional, medical and health vulnerability to its members, causing, among other things, the death of pregnant women, children, and the elderly. The court found Paraguay in violation of Articles 3 (Right to Juridical Personality), 4 (Right to Life), 5 (personal integrity), 8.1 (Trial), 19 (Rights of the Child), 21 (Right to Property) and 25 (Judicial Protection) of the Convention, in relation to the obligations established in Articles 1.1 (Obligation to Respect Rights) and 2 (duty to adopt domestic law). The court ordered Paraguay to engage in a series of reparation measures, including returning land to the Community, damages and undertakings not to repeat such conduct and to assist the Community with rehabilitation. Among other measures ordered by the court, Paraguay must provide immediate “special care to women who are pregnant, both before birth and during the first months thereafter, and the newborn.”
Women and Justice: Keywords
Karen Atala Riffo, a judge in Chile, and her husband separated in 2002 and agreed that she would retain custody of their three daughters. After a few years, Ms. Atala began to live with her female partner. In response, her husband filed for custody claiming that the mother’s homosexuality was detrimental to the children. The lower court confirmed the grant of custody to the mother, finding that there was no evidence that homosexuality was pathological conduct that would make Ms. Atala unfit as a mother. On appeal, however, the Supreme Court of Chile granted custody to the father, on the basis that the mother’s sexuality would cause irreversible harm to the children’s development. Ms. Atala took the case to the Inter-American Court of Human Rights (“IACHR”), marking the first time that the IACHR heard a case related to LGBT rights. The IACHR held that sexual orientation is a suspect class and that the Chilean courts had discriminated against Atala in the custody case in violation of the American Convention’s right to equality and non-discrimination. In 2012, the court ordered Chile to pay Atala USD $50,000 in damages and $12,000 in court costs. The Chilean government agreed to abide by the IACHR’s ruling.
A seventeen-year old girl won her court petition for an abortion despite the fact that there was no issue of fetus viability. The minor had suffered repeated sexual abuse at the hands of her father and uncle for the past six years. The court reaffirmed constitutional and human rights protections for fetuses against abortions, but explained that the right to life is not protected from conception to death with the same intensity. In this case, the fact that the pregnant minor had suffered repeated sexual abuse, had passed a psychological evaluation, and was only 11 weeks pregnant were sufficient reasons to override the presumption of protection for the fetus.
Una niña de diecisiete años ganó su petición en la corte para un aborto a pesar del hecho de que no había ningún problema de viabilidad del feto. La menor había sufrido repetidos abusos sexuales a manos de su padre y su tío durante los últimos seis años. El tribunal reafirmó las protecciones constitucionales y de derechos humanos para los fetos contra los abortos, pero explicó que el derecho a la vida no está protegido desde la concepción hasta la muerte con la misma intensidad. En este caso, el hecho de que la menor embarazada había sufrido abuso sexual repetido, había pasado una evaluación psicológica y tenía solo 11 semanas de embarazo era razón suficiente para anular la presunción de protección para el feto.
Defendant appealed a ruling that he was a sexually violent predator, suffering from an antisocial personality disorder. Defendant sexually assaulted a sixteen year-old girl and threatened to kill her if she reported the assault. He was subsequently arrested and entered a negotiated guilty plea. At the defendant’s Megan’s Law hearing and sentencing, a doctor, who was a member of the Sexual Offenders Assessment Board, found that the defendant had an antisocial personality disorder and that he was likely to engage in sexually violent activity if not confined. In response to the defendant’s appeal, the Superior Court noted that the “determination of a defendant’s SVP status may only be made following an assessment by the Board and hearing before the trial court.” The court noted that the Board member’s opinion was evidence in of itself of the defendant’s sexually violent nature, and it upheld the assessment.
Here, claimant sought judicial review of an order of the Employment Appeals Board that denied her claim for unemployment insurance benefits after finding that claimant failed to establish that her belief that further stalking by a fellow employee would occur was reasonable. Claimant argued that the Appeals Board erred in concluding that she quit her job without good cause after being stalked by a co-worker for several months. Under ORS 657.176(12), an individual could not be disqualified from receiving benefits under subsection (2)(c) if: (a) [t]he individual is a victim, or is the parent or guardian of a minor child who is a victim, of domestic violence, stalking, or sexual assault; (b) [t]he individual leaves work . . . to protect the individual or the minor child from further domestic violence, stalking or sexual assault that the individual reasonably believes will occur at the workplace or elsewhere.” The Court of Appeals of Oregon reversed and remanded for further proceedings, finding that claimant’s belief that further stalking would occur was reasonable, in light of her stalker ignoring warnings from the police to leave claimant alone, disregarding some of the restrictions that employer instituted after the first temporary stalking protective order (SPO) was issued and in light of his conduct escalating and becoming increasingly alarming.
Defendant burglarized two homes several times and raped two women, one at knifepoint and one with the threat of a gun, living in them. The defendant also walked into a nursing home, dragged a female resident into a bedroom and demanded that she perform oral sex on him. The defendant subsequently entered a plea agreement involving twenty-four years in prison with a twelve-year period of parole ineligibility. During the defendant’s sentence, the New Jersey legislature enacted the Sexually Violent Predator Act (N.J.S.A. 30:4-27.26). Towards the end of the defendant’s sentence, the State filed a petition to have him civilly committed. The defendant challenged the petition and argued that he was not provided with sex offender treatment while incarcerated, and thus, commitment would violate his due process rights. Id. at 185-86. The civil commitment court rejected this challenge and found that the Sexual Violent Predator Act is not unconstitutional on its face as applied to an individual who did not receive treatment while incarcerated. The court then found the defendant was a sexually violent predator and committed him. On appeal, the defendant argued that the Act is unconstitutional because it is used as a vehicle for further punishment. The court found that the Act was not punitive and serves to deter and prevent sexual violence.
Defendant appealed the trial court’s award of a restraining order. The trial court had granted the order because the plaintiff made a showing that the defendant, her ex-husband, was obsessed with her to a point where it clouded his judgment and she was afraid he would harm her. Plaintiff made this showing through evidence that after the parties were divorced, plaintiff had seen the defendant drive by her house repeatedly, she had received flowers from the defendant one day at work and later that night under the windshield wiper of her car, she was concerned that the defendant was in her driveway while they were separated, and that she was afraid because she thought the defendant went to anger management therapy and lived nearby. The parties’ daughter testified that she also believed the defendant was obsessed with the plaintiff. Under Ct. Gen. S. § 46b-15, anyone who has been subject to a continuous threat of present physical pain or physical injury by another household member or is in a dating relationship and been subjected to these threats may apply to the superior court for relief. The appellate court found the plaintiff showed sufficient evidence of a continuous threat of present physical pain or physical injury, as the defendant’s obsession with her could lead him to harm her, and affirmed the trial court’s grant of a restraining order.
Here, the plaintiff moved to extend a protective order against the defendant, her ex-husband. The trial court granted the extension and the defendant appealed. In this case, while the parties were married, the defendant assaulted the plaintiff in their garage and attempted to suffocate her while she was knocked to the ground and she almost lost consciousness. The defendant only stopped when the parties’ daughter entered the garage and the plaintiff told her to call 911. The defendant was arrested and served six months in jail. The plaintiff also had obtained a protective order that prohibited the defendant from having direct or indirect contact with the plaintiff and their daughter for two years. The defendant violated this order by sending his daughter a Christmas card and by entering the plaintiff’s home. As the order was going to expire, the plaintiff moved to extend it. The court extended the order because the assault against her had been “extraordinarily brutal and unprovoked.” The court found that the plaintiff had a well-founded fear of vehicles that were similar to that of the defendant, especially because the defendant got a job in the town where the plaintiff worked. The defendant appealed the trial court’s finding. The court affirmed the trial court’s extension, finding there were no factual findings of clear error made by the trial court. Thus, a protective order does not have to have a time limit where a party’s fear is justified.
Doyle was subject to a domestic abuse protection order for Linda Doyle, his wife. The “no contact” provision of the order prohibited Doyle from “telephoning, contacting, or otherwise communicating with [Linda]” for a period of 1 year. After Doyle was escorted to a hospital by law enforcement on February 14, 2008, Doyle evaded the monitoring of police officers and directed a nurse to contact his wife. The call was placed and Linda was indeed reached. Linda hung up after a brief conversation with the nurse.
Here, the parties were married for two years when the plaintiff filed a domestic violence petition against the defendant. She stated that defendant punched her in the stomach and leg, choked her, threw her to the floor, fisted her in the face, and threated to drown her in the bathtub. The plaintiff did not specify the dates of the abuse. The trial court issued an ex parte domestic violence temporary order of protection. The defendant argued that the plaintiff’s petition was legally insufficient as it did not specify when the abuse occurred. The plaintiff testified to the alleged abuse without objection. Subsequent to this testimony, the court issued a final protective order. The court found that N.H. rev. Stat. § 173:B did not require the plaintiff to set forth the specific dates on which she suffered abuse. The court found that the plaintiff’s allegations were legally sufficient to withstand a motion to dismiss because they allowed a reasonable inference that the plaintiff was in immediate and present danger of abuse. Further, the fact that the plaintiff did not specify the dates of the abuse did not violate the defendant’s due process rights since he could not show he was actually prejudiced by this omission.
Here, the plaintiff and the defendant were married and had four children. They all lived in Florida until the plaintiff left with their children and moved to New Hampshire. The parties subsequently divorced. Upon her arrival in New Hampshire, the plaintiff applied for a temporary restraining order against the defendant in Massachusetts, because he criminally threatened her and their children and he threatened her at her parents’ house in Massachusetts. Family court issued a protective order that prohibited the defendant from threatening or abusing his wife or children, contacting the plaintiff absent special authorization by court, coming within a distance of her home or work, or taking or damaging the plaintiff’s property. The family court also ordered the defendant to hand over his firearms. The husband appealed and argued that the court had no personal jurisdiction over him as he was a nonresident and the alleged abuse never occurred in New Hampshire. The court found that the family court could issue a protective order against the defendant as the purpose of New Hampshire’s domestic violence statute was to protect victims within that state, but that it could not require any affirmative act on the part of the defendant. Thus, the order could stand as it directed the defendant to refrain from seeing or contacting the plaintiff, but it could not direct him to relinquish his firearms.
Rebecca Wright was a waitress at Arlington Steakhouse, Inc. for four months. She alleged that during this time, her supervisor, Christopher O’Dell, made lewd sexual comments to her, touched her in sexual ways that she found offensive, and created a hostile work environment by his 13. Specifically, Ms. Wright alleged O’Dell put his fingers down her blouse and in her pants and brushed up against her, offered to pay her for oral sex, verbally degraded her and the other waitresses, and made inappropriate comments about her physical appearance. The jury trial resulted in a verdict for Ms. Wright on all claims, finding O’Dell assaulted her, Ms. Wright was constructively discharged, and was subjected to 13. The jury award was for $175,000 in mental anguish damages for assault and $250,000 in mental anguish damages for 13. O’Dell appealed this decision on many grounds, one of which was that the award of damages was unsupported and violated the statutory cap on damages for employers with less than 500 employees. The appellate court affirmed, recognizing that mental anguish damages require a plaintiff introduce “direct evidence of the nature, duration, and severity of her mental anguish, thus establishing that there was a substantial disruption of her daily routine.” The requirement is a “high degree of mental pain and distress” and must be more than “mere worry, anxiety, vexation, embarrassment or anger.” Direct evidence must be shown of this and the evidence shown must justify the amount awarded to be affirmed on appeal. The court found Ms. Wright presented sufficient evidence at the trial since she experienced severe anxiety, clenched her jaw, held her breath, at times felt paralyzed and nauseous, and had nightmares of her attacker, O’Dell. In addition, the appellate court found the amount was fair and reasonable since the jury considered the “disruption in her life and personal toll taken by the events surrounding the assault and 13.” The court also found that the statutory cap provided in Texas Labor Code Section 21.2585 (capping damages based on the size of the employer) did not apply because the burden was on the defendant to plead and prove this defense, it was not an automatic cap.
Kathy Nieves sued her co-worker, Jeremy Cox, for sexual assault and sued her employer, East Texas Medical Center EMS (ETMC) for, among other things, 13. Ms. Nieves was an EMT and Mr. Cox a paramedic who would work shifts with Ms. Nieves. Ms. Nieves alleged sexual assault by Mr. Cox, arguing that he had subjected her to forced sexual contact at her apartment, and 13 during the work shift when Mr. Cox allegedly tried to hold her hand and have other unwanted contact while at work. Texas recognizes that a person commits assault if he (1) intentionally, knowingly or recklessly cause bodily injury to another, (2) intentionally or knowingly threaten another with imminent bodily injury, or (3) intentionally or knowingly cause physical contact with another when he knows or should reasonably believe that the other will regard the contact as offensive or provocative. The jury was instructed that “sexual assault is without the consent of the other person if (1) the actor compels the other person to submit or participate by the use of physical force or violence, (2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat, or (3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist.” The jury trial handed down a verdict for Ms. Nieves on all claims and substantial damages for past and future physical pain and mental anguish. Mr. Cox and ETMC both appealed the jury verdict, though ETMC ended up settling the claims against it. The appellate court affirmed the trial court’s order, recognizing the important role of the jury in determining which “side of the story” is more credible and whom to believe. In this type of case, a court must consider the “entire context, circumstances, conversations, writings, acts, and relationships between the parties” in determining whether to reverse the trial court. Here, the appellate court found there was sufficient evidence for the trial court outcome and that the jury’s verdict was not unreasonable.
An insurance agency, Walthall, Sachse & Pipes, Inc., brought suit against its former employee, Rosemary Spring, for opening a competing insurance agency in violation of her non-compete agreement. Ms. Spring then brought several counterclaims against her former employer, including claims for 13 under the Texas Labor Code and Title VIII of the Civil Rights Act of 1964 and assault by her supervisor, Mr. Sachse. She alleged that he pushed her head into his hip, thrust his buttocks into her pelvic area and grinded against her while laughing, and kissed her cheek and neck. The trial court entered summary judgment against Ms. Spring on all counts and she appealed. The appellate court held that Ms. Spring failed to plead a prima facie case for 13. To plead 13 under a hostile work environment theory, a plaintiff must establish: (1) she is a member of a protected class, (2) she was the victim of uninvited 13, (3) the harassment was based on sex, and (4) the harassment affected a “term, condition, or privilege” of her employment. The appellate court recognized that for the conduct to be actionable, she must show “the workplace was permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile or abusive working environment.” The 13 must be sufficiently severe or pervasive such that to a reasonably objective third person the conduct created an “abusive working environment.” Despite her allegations, the court looked at other similar cases where the harassment was even more severe and found that the conduct didn’t rise to “such severe or pervasive 13 that would create a hostile or abusive work environment as to affect a term, condition, or privilege of employment of a reasonable person in Spring’s position.” However, the court did reverse the entry of summary judgment on the assault claim. Conduct can be actionable as civil assault when it doesn’t rise to the level of discrimination under the Texas Labor Code and Title VII of the Civil Rights Act of 1964. To allege assault, Ms. Spring must have shown Mr. Sachse intentionally or knowingly caused physical contact with her when he knew or should have known she would regard the contact as offensive or provocative. Ms. Spring presented testimony of a co-worker who corroborated the contact in the elevator. The other two incidents both involved physical contact. Since reasonable minds could differ on whether the unsolicited physical contact was offensive or provocative, the court reversed on the assault claim.
Linett Wilkerson was the widowed third wife of James Wilkerson. Dennis Wilkerson was James’s adult son from his first marriage. After her husband died, Linett explained to Dennis that she intended to help run one of the family businesses, a golf course. Dennis became furious. told Linett that she had no business in the golf course, and instructed her to follow him outside where he pulled a gun out and shot some soda cans, telling Linett that he was “a good shot” and “I never miss” and that he “always [had] plenty of ammunition.” On another occasion he told Linett not to “get in his way” or “something would happen” to her. After Dennis repeatedly refused Linett’s attempts to obtain financial information about the business in order to probate James’s estate, Linett filed a lawsuit. Williams, a friend of Dennis’s, came to Linett’s house twice and threatened her and her children. The trial court issued a family violence protective order against Dennis on behalf of Linett and her children. Dennis asserted that it was not an appropriate case for the issuance of a family violence protective order because “Linett and Dennis have never shared a household” and their family relationship was “attenuated” since she was his father’s third wife. The court held that their relationship was one of family under section 71.004(1) of the Texas Family Code, since Linett and Dennis were related by affinity and Dennis and Linett’s children were half-siblings. In other words, step-families fall within the “family violence” provisions of the Code even where they do not share a household. Moreover, the evidence was legally and factually sufficient for issuance of the protective order.
Molly Harvill sued her fellow employee, Oscar Rogers, for sexual assault and battery and intentional infliction of emotional distress. Ms. Harvill alleged that Mr. Rogers grabbed and kissed her, shot rubber bands at her breasts, and rubbed against her at work after repeated requests for him to stop. The trial court entered summary judgment in favor of Mr. Rogers because Ms. Harvill didn’t allege damages as a result of the sexual assault. However, the appellate court reversed on this count, recognizing that no actual damages are required for an allegation of sexual assault. All that is required is that a person intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Tex. Penal Code. § 22.01(a)(3). The court recognized that bodily injury is not required and damages for mental suffering are recoverable without an actual physical injury.
Defendant Megan Goff shot and killed her estranged husband. The State moved the trial court to order Goff to submit to a psychological examination, knowing that she planned to use battered women’s theory in her defense. The court held that a defendant’s right against self-incrimination is not violated when the court orders the defendant to submit to a psychiatric evaluation by a state expert in response to the defendant’s assertion of battered women’s syndrome. However, to preserve the right, the examination must be limited to information regarding battered women’s syndrome and “whether the defendant’s actions were affected by the syndrome.” In this case, the examination and testimony were not so limited; therefore, the court held that the defendant’s right against self-incrimination was violated. One of the State’s experts testified about inconsistencies in the defendant’s statements.
Plaintiff brought a hostile work environment claim, among others. She witnessed her supervisor and another employee in a compromising position. Her supervisor threatened her with the loss of employment and her license if she shared what she had witnessed. She promised to remain silent and shortly thereafter went on vacation. When she returned, her supervisor fired her, stating that he did not like the way she dressed or styled her hair. Plaintiff was an at-will employee at the time of termination. Plaintiff alleged that she “was subjected to improper and sexually explicit conduct by her superiors … thereby creating a hostile and abusive environment in violation of the West Virginia Human Rights Act.” To state a claim for 13 under the West Virginia Human Rights Act, a plaintiff must prove “(1) the subject conduct was unwelcome; (2) it was based on the sex of the plaintiff; (3) it was sufficiently severe or pervasive to alter the … [plaintiff’s] conditions of employment and create an abusive work environment, and (4) it was imputable on some factual basis to the employer.” The Court also held that “an employee may state a claim for hostile environment 13 if unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature have the purpose or effect of unreasonably interfering with an individual’s work performance or creates an intimidating, hostile, or offensive working environment.” The Court held that plaintiff sufficiently pled a cause of action for hostile workplace and overturned the lower court’s grant of a motion to dismiss.
In 1991 Lesly Yajayra Perdomo (“Perdomo”), a citizen and native of Guatemala, joined her mother in the United States. In April 2003 the Immigration and Naturalization Service charged her as removable because she unlawfully entered the United States in 1991. Perdomo conceded removability but requested asylum, withholding of removal, and relief under the United Nations Convention Against Torture. Perdomo sought asylum because of her fear of future persecution as a member of a particular social group of “women in Guatemala between the ages of fourteen and forty.” Perdomo explained she was fearful because of: (1) the large number of women killed in Guatemala; (2) the failure of the Guatemalan government to respond appropriately; and (3) the lack of explanation for the killings. The immigration judge denied Perdomo’s requests. The Board of Immigration Appeals (the “BIA”) affirmed the denials and rejected the particular social group definition, “women in Guatemala between the ages of fourteen and forty” and Perdomo’s revised group definition, “all women in Guatemala,” as too broad to qualify for protection. The Ninth Circuit granted Perdomo’s petition for review and held that prior case law established that, “women in a particular country, regardless of ethnicity or clan membership, could form a particular social group.” The court noted that the size and breadth of the group, “all women in Guatemala,” did not preclude it from qualifying as a protected social group and that the BIA erred when it held to the contrary. The court remanded the case to the BIA to determine whether “all women in Guatemala” is a particular social group and, if so, whether Perdomo qualified for asylum.
Human Rights Watch report describing the situation of women with fistula in Kenya, including the increased risk of stigma and violence and the impact of a health system that fails to properly address the problem of fistula. July 15, 2010. Copyright 2010 Human Rights Watch.
Department of Economic and Social Affairs, Division for the Advancement of Women
A Report by the Harvard Humanitarian Initiative With Support from Oxfam America, April 2010
By Margaux J. Hall. 28 Wis. Int'l L.J. 74-107 (2010). Reprinted from Wisconsin International Law Journal, Volume 28. Copyright 2010 Wisconsin International Law Journal.