Women and Justice: Keywords

Domestic Case Law

Tirivanhu Ndoziva v. The State High Court of Zimbabwe (2011)

Sexual harassment, Sexual violence and rape

The appellant was convicted of two counts of rape for allegedly raping two girls, aged 4 and 8 years, respectively. He was sentenced to 10 years on each count, with five years suspended for five years on condition of good behavior. The appellant appealed against the convictions and the sentences. It was accepted that the two girls were sexually interfered with, which both confirmed through testimony. Both girls were (i) examined by a doctor, who observed attenuation of the hymen and a deep notch on both girls and (ii) able to identify the appellant as the perpetrator to the police. The court was satisfied with the identification, finding that the appellant was correctly convicted. The appellant argued that the sentence was too harsh. The court found that numerous factors were considered before sentencing. It held that the appellant did not use gratuitous violence, and was entitled to some leniency. The court ruled that the sentence imposed was unduly harsh and induced a sense of shock. The sentence was overturned and substituted for 10 years imprisonment, with two years suspended for five years on condition the appellant does not within this period commit any offence of a sexual nature for which he is sentenced to imprisonment without the option of a fine.



Case #41.770 - “C.A.” Buenos Aires Criminal and Correctional Court (2011)

Statutory rape or defilement

The victim was twelve to thirteen years old when she had sexual relations with the defendant. There was no presumption of sexual immaturity. It had to be proven by evidence and expert testimony. In this case, the testimony of experts, text message evidence, and the testimony of the victim demonstrated that she was not mature enough to consent to sex. While the outcome of this case was a positive one, the general Argentinean attitude towards statutory rape is not: sexual immaturity must be proven regardless of age.

 

La víctima tenía entre doce y trece años cuando tuvo relaciones sexuales con el acusado pero no hubo presunción de inmadurez sexual, la cual tenía que ser probada por la evidencia y el testimonio de expertos. En este caso, el testimonio de expertos, la evidencia del mensaje de texto y el testimonio de la víctima demostraron que no era lo suficientemente madura como para consentir el sexo. Si bien el resultado de este caso fue positivo, la actitud general argentina hacia la violación estatutaria no lo es: la inmadurez sexual debe probarse independientemente de la edad.



In re Civil Commitment of S.S. New Jersey Superior Court (2011)

Sexual violence and rape

Here, the court affirmed a judgment involuntarily committing the petitioner to a Special Treatment Unit as a sexually violent predator under the Sexually Violent Predator Act (N.J.S.A. 30:4-27.24). Under this act, the state must prove by clear and convincing evidence that an alleged offender is a “sexually violent predator and currently suffers from a mental abnormality or personality disorder that makes him highly likely to engage in acts of sexual violence if not confined.” In this case, the defendant had been indicted for aggravated sexual assault of five pre-teen females, five counts of kidnapping, two counts of terroristic threats, two counts of robbery, two counts of unlawful possession of a weapon, and two counts of possession of a weapon for an unlawful purpose. The court found that the state’s use of expert testimony that the petitioner’s condition predisposed him to sexual violence established by clear and convincing evidence that he is a high risk to re-offend unless confined.



In re Schwartz New Mexico Supreme Court (2011)

Sexual harassment

This is a proceeding for the disciplining of Schwartz, a trial court judge. Judge Robert Schwartz initiated a romantic relationship with an assistant public defender with cases before him. The assistant public defender informed her supervisor of Judge Schwartz’s planned recusal via a voice message. In the following days, Judge Schwartz provided dishonest reasons for his recusal from some cases involving the assistant public defender, and entered rulings in some other cases involving the assistant public defender.



Bangladesh National Women Lawyers Association v. The Cabinet Division Bangladesh Supreme Court (2011)

Gender-based violence in general, Harmful traditional practices, Sexual harassment, Sexual violence and rape, Trafficking in persons

In an application under Article 102 of the Constitution, the Bangladesh National Women's Lawyers Association (BNWLA) petitioned the Supreme Court of Bangladesh (High Court Division) to address the exploitation and abuse endured by child domestic laborers in Bangladesh. The BNWLA argued that child domestic workers are subjected to economic exploitation, physical and emotional abuse, and the deprival of an education in violation of their fundamental constitutional rights. In support of these arguments, it presented multiple reports of extreme abuse suffered by child domestic workers. In deciding this case, the Court reviewed the current laws in Bangladesh, including the Labour Act, 2006, which fails to extend labor protections to "domestic workers," including children, and lacks an effective implementation and enforcement system. The Court directed the government of Bangladesh to take immediate steps to increase its protection of the fundamental rights of child domestic workers including prohibiting children under the age of twelve from working in any capacity including domestic settings; supporting the education of adolescents; implementing the National Elimination of Child Labour Policy 2010 and applying the Labour Act, 2006 to domestic workers. Additionally, the Court directed the government to monitor and prosecute incidents of violence against child domestic workers, maintain a registry of domestic workers and their whereabouts to combat trafficking, promulgate mandatory health check-ups and strengthen the legal framework relating to child domestic workers.



N.C. v. P.R. Caldwell Alabama Supreme Court (2011)

Sexual violence and rape, Sexual harassment

N.C., a minor, filed a personal injury action against her physical education teacher, her school principal, and the Tallapoosa County Board of Education. N.C. alleged that, following her 7th grade physical education class, she was pulled into the boys’ locker room and raped by A.H, a 12th grade student who her teacher, Mr. Caldwell, had allegedly appointed as a teacher’s aide. N.C.’s complaint alleged that Mr. Caldwell had actual knowledge that A.H. was sexually harassing students and negligently or wantonly supervised N.C. and the other students in her class. Mr. Caldwell, the principal, and the Board filed motions for summary judgment, arguing that N.C.’s claims were barred by the doctrine of State-agent immunity. N.C. opposed entry of summary judgment only against Mr. Caldwell. The trial court found that the doctrine of immunity is strong and the Supreme Court “has been particularly reluctant to hold an educator responsible for sexual misconduct by another.” On that ground, the trial court granted summary judgment in favor of Mr. Caldwell on the basis of Stage-agent immunity. On appeal, the court considered an exception to the law of State-agent immunity, which provides that “a State agent shall not be immune from civil liability in his or her personal capacity . . . when the State acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.” N.C. argued that there was a genuine issue of material fact as to whether Mr. Caldwell acted beyond his authority: (1) when he allegedly failed to properly supervise A.H.; (2) when he allegedly allowed A.H. to act as a teacher’s aide; and (3) when he ignored and failed to report previous claims by other female students. The appellate court held that there was a genuine issue of material fact as to whether Mr. Caldwell actually appointed A.H. as a student aide, and, if he did, whether he acted beyond his authority in doing so. The court also found that there was a genuine issue of material fact as to whether Mr. Caldwell was actually aware that A.H. was sexually harassing other female students and, if he was, whether he failed to respond to the allegations. Thus, the appellate court concluded that the trial court erred in entering summary judgment for Mr. Caldwell.


Krystyna W. v. Janusz W. Connecticut Court of Appeals (2011)

Domestic and intimate partner violence

Court of Appeal affirmed the trial court’s grant of a domestic violence restraining order requested by plaintiff against her husband. In this case, the defendant had threatened to seek revenge on his children because they had hospitalized him. Defendant walked around the house with knives, verbally abused the children, and prevented the family from sleeping by making loud noises. While intoxicated, defendant had also previously asked his son to kill him with a hammer and knife. The court noted that Connecticut’s Gen. Stat. § 46b-15 “clearly requires a continuous threat of present physical pain or physical injury before a court can grant a domestic violence restraining order.” The court found that the above facts presented enough of a continuous threat of present physical pain or injury so that the trial court’s ruling was not an abuse of discretion, and affirmed the grant of a restraining order.



Miller v. State, Dep't of Public Safety Delaware Superior Court (2011)

Sexual harassment

Plaintiff alleged that her superior violated the Department of Public Safety’s sexual harassment policy to attempt to pursue a sexual relationship with her. At various times during plaintiff’s employment, her superior had allegedly engaged in sexually harassing behavior towards her. At a later date when plaintiff had received poor performance reviews, claimed that her supervisor made her believe he could save her job if internal investigations against her concerning the reviews did not go well. With this indication, the supervisor made sexual advances towards the plaintiff, who felt pressured into submitting to these advances for fear of losing her job. The court noted that Delaware courts have not yet adopted federal tests to determine a quid pro quo sexual harassment claim. However, it noted that based upon the Supreme Court’s interpretation, “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes quid pro quo sexual harassment when ‘(1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual’.” The court noted that under this test, the consequences of a rejection to such advances or requests must “be sufficiently severe as to alter the harassed employee’s compensation, terms, conditions, or privileges of employment.” The court found that the plaintiff pleaded a qui pro quo claim of sexual harassment against the defendant.



State v. Little, 127 Conn.App. 336 Connecticut Court of Appeals (2011)

Sexual violence and rape

Here, the defendant had a prior conviction of sexual assault in the third degree.  He was sentenced to two years of prison with three years probation.  Under Gen. Stat. § 54-252, the defendant was required to register as a sex offender with the sex offender registry unit of the state policy.  Id. at 338.  While the defendant initially registered after his release from prison, he later failed to comply with all of the registration reporting requirements.  Id.  Specifically, he failed to return an address verification form.  The defendant had moved and six months later, contacted the registry office to send correspondence to his new address so he could update his registry.  Id.  The defendant since remained in compliance with registry requirements.  Nonetheless, the court affirmed the trial court’s conviction that the defendant failed to comply with sex offender registration requirements.



Tex. S. Univ. v. Rodriguez Court of Appeals of Texas – Houston Division (2011)

Sexual harassment

Lisa Rodriguez was a patrol officer at Texas Southern University (“TSU”) who alleged that her supervisor sexually harassed her by making sexual innuendos, making inappropriate remarks, commenting on her physical attractiveness, asking about the color of her undergarments, and keeping a picture of her on his desk.  Eventually, Ms. Rodriguez filed a charge form with the Texas Workforce Commission Civil Rights Division (“TWC”) alleging, among other things, 13.  In the charge form, she alleged that the 13 began a week after she was hired, and had continued until as recently as four months before filing the TWC complaint.  As a defense, TSU claimed Ms. Rodriguez had failed to meet the 180-day deadline for filing the complaint.  In Texas, a complaint under the Texas Labor Code for 13 (a type of sex discrimination) must be filed “not later than the 180th day after the date the alleged unlawful employment practice occurred.”  Tex. Lab. Code Ann. § 21.202(a).  TSU argued that because Ms. Rodriguez only documented 13 at the beginning of her employment, the 180-day deadline had passed.  However, the court recognized there are two types of 13—quid pro quo and hostile work environment.  “Quid pro quo harassment occurs when employment benefits are conditioned on sexual favors, while a hostile work environment is the result of 13.”  Since Ms. Rodriguez’s claim was of a hostile work environment, the “continuing violation doctrine” applied since the “unlawful employment practice manifest[ed] itself over time, rather than as a series of discrete acts.”  Since Ms. Rodriguez alleged “a series of related acts, one or more of which [fell] within the limitations period,” the complaint was timely filed and the appellate court found that it had jurisdiction over the case.



Ruffin Hotel Corp. v. Gasper Maryland Supreme Court (2011)

Sexual harassment

Respondent sought damages from petitioner and Irman Ahmed, who terminated Respondent’s employment.  Respondent brought, inter alia, claims of negligent hiring and retention against Ruffin Corp. and intentional infliction of emotional distress by Ahmed; employment discrimination and 13 by Ruffin and retaliation by Ruffin.  Gasper alleged that Ruffin hotel hired Ahmed, despite its knowledge that a number of employees had complained of his abusive behavior, behavior that included 13.  She also alleged that Ahmed refused to intervene when she was harassed by another employee and that he fired her after she complained of the harassment.  The court held that petitioner’s claim for negligent hiring and retention, due to her allegation that Ruffin hired an individual against whom allegations of 13 had been made, was not preempted by Title VII, the Maryland Human Relations Act, a county code provision prohibiting retaliation for complaining of 13 or the Maryland Workers’ Compensation Act.  It also found that the rule prohibiting introduction of evidence of other crimes was only applicable in criminal, not civil cases; however, Gasper could not introduce evidence of harassment by Ahmed occurring prior to Ahmed’s rehire because her current allegation was against another employee.



Dittrich v. Woods United States Court of Appeals for the Sixth Circuit (2011)

Sexual violence and rape

Thomas Dittrich was accused of having a three-month relationship with his daughter’s thirteen-year-old classmate, the Complaintant. The relationship began when the Complaintant went to Dittrich’s house to visit his daughter, and quickly progressed into a mutual intimate relationship. When the Complaintant’s parents uncovered the relationship, they immediately intervened and a criminal suit was filed against Dittrich. At trial, Dittrich’s family, the Complaintant, and other third parties testified about his conduct with Complaintant. Dittrich’s family recounted his history of domestic violence, to which Dittrich’s attorney did not object. Dittrich also tried to examine Complaintant about her sexual history, but could not overcome Michigan’s rape shield law by offering proof as to his proposed evidence. The jury convicted Dittrich on seven counts of criminal sexual conduct, sentencing him to 95-180 months’ imprisonment. Dittrich appealed to the Michigan Court of Appeals and then to the Michigan Supreme Court, on claims that (1) he was denied effective counsel due to his attorney’s failure to object to his family’s domestic violence testimony, and (2) the court, by denying his motion to examine Complaintant about her sexual history, violated his right to confrontation. Both courts denied relief. In 2007, Dittrich petitioned for a writ of habeas corpus, alleging both ineffective assistance of counsel and a violation of his confrontation right. The district court granted the writ, holding the confrontation violation was harmless, but Dittrich did receive ineffective assistance of counsel. The state appealed that decision and Dittrich cross-appealed on the confrontation claim. The Sixth Circuit reasoned that to prove ineffective assistance of counsel, one must demonstrate that counsel’s performance was deficient, and that the deficient performance prejudiced the defense. Although the court found that Dittrich’s counsel’s performance was deficient, they ruled that the deficiency did not prejudice the defense due to the overwhelming evidence against Dittrich. As to the confrontation claim, the court reviewed Dittrich’s request based on whether the error had substantial and injurious effect or influence in determining the jury’s verdict. The court held that Dittrich’s proposed inquiries into the Complaintant’s sexual history would have been of minimal value. Thus, the court’s decision to exclude the evidence did not have a “substantial and injurious effect” on the jury’s verdict. The court reversed the district court’s grant of habeas relief on Dittrich’s ineffective-assistance claim and affirmed its rejection of his right-to-confrontation claim.



Doe v. Penzato United States District Court for the Northern District of California (2011)

Sexual violence and rape, Trafficking in persons

Plaintiff Jane Doe (“Doe”) filed a lawsuit under a pseudonym and alleged 23 causes of action including human trafficking, sexual battery, forced labor and involuntary servitude against Defendants Mr. and Mrs. Penzato. Mrs. Penzato had offered Doe $1,500 per month, free room and board, and transportation to the United States in exchange for child care and housekeeping services. Doe accepted the offer and moved to San Francisco, California. Doe alleged that during her employment Defendants physically assaulted her, sexually molested her, threatened her with cancellation of her visa, and abused or exploited her in various other ways. She eventually left the Penzatos’ household and moved to a transitional housing residence for female victims of violence. Doe filed a motion for a protective order and requested permission to proceed with the lawsuit under a pseudonym. Doe argued that this was necessary to avoid additional psychological trauma due to the sensitive and personal nature of her claims. Further, she argued that the use of a pseudonym would help maintain the safety and anonymity of her fellow transitional housing residents. Defendants argued that because they were publically accused of sexual abuse, human trafficking, and forced labor, Doe should also be publicly exposed. Defendants also argued that they would be prejudiced by the extra effort they would have to take to keep her identity a secret. The court granted Doe’s motion and allowed her to proceed under a pseudonym, holding that Doe’s need to remain anonymous outweighed Defendants’ arguments and the public’s interest in knowing her identity. The court noted the strong interest in protecting sexual assault victims’ identities—to encourage them to report the assaults without fear of being stigmatized as a sexual assault victim.



Joslyn v. State Indiana Supreme Court (2011)

Domestic and intimate partner violence

Stephanie Livingston moved in with Richard Joslyn, her third cousin, following a breakup with her youngest son’s father.  She lived with him for six months and struggled with alcohol.  She learned later that Joslyn recorded a video of them engaging in sexual intercourse but has no memory of the act.  Later she moved in with her mother and applied ex parte for a protective order under the Indiana Civil Protective Order Act.  The court issued the order which “prohibited Joslyn from having any contact with Livingston.”  A deputy served Joslyn with a copy of the order by attaching it to the door of his residence.  The deputy “did not indicate on the return of service form that a copy of the order was also mailed to Joslyn’s last known address as required by Indiana Trial Rule 4.1.”  Later, Livingston noted several instances in which Joslyn watched her, left notes at her mother’s front door, asked her friends about her whereabouts, crashed her friend’s vehicle, and hid in a crawl space under her home.  In December, the State charged Joslyn with “class C felony stalking, four counts of class A misdemeanor invasion of privacy and a class A misdemeanor resisting law enforcement.  The case went to trial by jury.  The jury found Joslyn guilty of all counts, except the resisting law enforcement count.   Joslyn appealed, and challenged “the sufficiency of the evidence to support his convictions, arguing the State did not prove he was properly served with the protective order.”  The Court of Appeals affirmed the convictions.  It found that Joslyn’s admission that he received notice left at his home was “sufficient to permit his conviction for invasion of privacy and stalking.”  The court noted that the statutes defining stalking and invasion of privacy require notice of an order, but the fact that the process server may not have sent a copy to his house by first class mail as required under Indiana Trial Rules is insufficient to overturn his convictions.  The court noted that the purpose of the Indiana Civil Protection Order Act is to “promote the protection and safety of all victims of domestic violence and prevent future incidents.”  It found that overturning a conviction due to an error in civil process, even when the court had issued the order and defendant had actual notice of the order, would be contrary to that purpose.



International Case Law

L.C. v. Peru CEDAW Committee (2011)

Sexual violence and rape, Statutory rape or defilement

An 11-year-old girl was repeatedly raped by a 34-year-old man. As a result, she became pregnant and consequently attempted to commit suicide by jumping from a building. She survived the suicide attempt but sustained serious injuries which required emergency surgery. The hospital declined to perform the surgery based on the risk posed to the pregnancy, and refused to perform an abortion despite that therapeutic abortion is legal in Peru and that the pregnancy posed a danger to her physical and mental health. As a consequence, she was completely paralyzed from the neck down. The Center for Reproductive Rights and the Center for the Promotion and Defense of Sexual and Reproductive Rights filed a human rights petition on behalf of her against Peru before CEDAW alleging violations of Articles 1, 2 (c) and (f), 3, 5, 12 and 16 (e) of CEDAW by failing to implement measures that guarantee a woman’s ability to obtain essential reproductive health services in a timely manner. The Committee upheld the claim and asked Peru to provide L.C. reparation, including physical and mental rehabilitation, and issue necessary measures so that no other woman is denied her right to comprehensive healthcare and therapeutic abortion. This decision demonstrate a willingness on the part of the CEDAW to view the denial of reproductive rights as a discrimination issue and is flagged as an innovative juridical resource for reforming abortion laws.



Articles

Sustainable Development (2011)

Gender-based violence in general

By Sandra Day O'Connor & Kim K. Azzarelli. 44 CORNELL INT’L L.J. 1 (2011). Copyright 2011 by the Cornell International Law Journal.


Judging Women (2011)

Gender discrimination, Gender-based violence in general, Employment discrimination

By Stephen J. Choi, Mitu Gulati, Mirya Holman, & Eric A. Posner. 8 J. Empirical Legal Stud. 504-532 (2011).


Reparations, Microfinance, and Gender: A Plan, with Strategies for Implementation (2011)

Gender violence in conflict

By Anita Bernstein and Hans Dieter Seibel. 44 CORNELL INT'L L.J. 1 (2011). Copyright 2011 by the Cornell International Law Journal.


Wartime Female Slavery: Enslavement? (2011)

Sexual violence and rape, Gender violence in conflict

By Patricia Viseur Sellers. 44 CORNELL INT'L L.J. 1 (2011). Copyright 2011 by the Cornell International Law Journal.


2010 Symposium Gender-Based Violence and Justice in Conflict and Post-Conflict Areas (2011)

Sexual violence and rape, Gender violence in conflict

Cornell International Law Journal Special Conference Issue. 44 CORNELL INT'L L.J. 1 (2011).


Gender-Based Violence and Justice in Conflict and Post-Conflict Areas (2011)

Sexual violence and rape, Gender violence in conflict

By Rashida Manjoo and Calleigh McRaith. 44 CORNELL INT'L L.J. 1 (2011). Copyright 2011 by the Cornell International Law Journal.


Greasing the Palm: An Argument for an Increased Focus on Public Corruption in the Fight Against International Human Trafficking (2011)

Trafficking in persons

By Virginia M. Kendall. 44 CORNELL INT'L L.J. 1 (2011). Copyright 2011 by the Cornell International Law Journal.


Reports

Rape and sexual violence: Human rights law and standards in the International Criminal Court (2011)

Sexual violence and rape

Report by Amnesty International on identifying how the crimes of rape and sexual violence must, as a requirement of its own statute and a matter of international human rights law, be interpreted and applied with equality between men and women by the International Criminal Court (March, 2011).


Trafficking for sexual exploitation: Victim protection in international and domestic asylum law (2011)

Sexual violence and rape, Trafficking in persons

Research Paper No. 206 by Tyler Marie Christensen for the United Nations High Commissioner for Refugees (April, 2011).


GENDER 2010 Report Card on the International Criminal Court (2011)

Gender discrimination, Sexual violence and rape, Harmful traditional practices

Report by The Women's Initiatives for Gender Justice assessing the implementation by the ICC of the Rome Statute, Rules of Procedure, Evidence and Elements of Crimes, and in the gender mandates they embody.


Human Rights and Gender Equality in Health Sector Strategies: How to Assess Policy Coherence (2011)

Gender discrimination

Report providing a tool to consider practical options and posing critical questions for policy-makers to identify gaps and opportunities in the review or reform of health sector strategies as well as other sectoral initiatives. Developed by the World Health Organization, the Office of the High Commissioner for Human Rights (OHCHR) and the Swedish International Development Cooperation Agency (2011).


Combating Acid Violence in Bangladesh, Cambodia, and India (2011)

Acid violence

A Report by the Avon Global Center for Women and Justice at Cornell Law School, the Committee on International Human Rights of the New York City Bar Association, the Cornell Law School International Human Rights Clinic, and the Virtue Foundation, Combating Acid Violence in Bangladesh, Cambodia, and India.


From Protection to Punishment: Post-Conviction Barriers to Justice for Domestic Violence Survivor-Defendants in New York State (2011)

Domestic and intimate partner violence

A study on the barriers to justice faced by women survivors of violence who enter the criminal system as defendants in New York State.



Combating Acid Violence in Bangladesh, Cambodia, and India (2011)

Acid violence

A Report by the Avon Global Center for Women and Justice at Cornell Law School, the Committee on International Human Rights of the New York City Bar Association, the Cornell Law School International Human Rights Clinic, and the Virtue Foundation.


Memoranda

Agreements Between Cohabitants in Louisiana, U.S.A (2011)

Divorce and dissolution of marriage

This memorandum examines the definition of cohabitation and its effect upon agreements between cohabitants in Louisiana, U.S.A.



Problem-Solving Courts and Integrated Domestic Violence Courts in New York State (2011)

Domestic and intimate partner violence, Gender-based violence in general

This memorandum briefly outlines the history and structure of problem-solving courts in New York state, with a special focus on New York's Integrated Domestic Violence Court System.