Women and Justice: Keywords

Domestic Case Law

Gawaxab v. The State High Court of Namibia (2018)

Femicide, Gender-based violence in general, Sexual harassment

The accused was charged with assaulting and murdering a woman. At trial, the accused filed an application for his discharge at the close of the prosecution’s case, arguing that the prosecution failed to make a case requiring the accused to answer. According to prosecution evidence, after buying alcohol and drinking it with a group of women he did not know, including the deceased, an argument began because the accused stated that he could have sex with all the women. The driver stopped the car when the accused hit the deceased with a bottle. The accused continued to beat the woman outside of the car and the others drove away in fear for their lives to report the attack the police. Upon their return to the scene, they found and picked up the deceased, who was running down the road after escaping the accused. She later passed away from her injuries. At trial, prosecutors presented several eye-witnesses to testify against the accused, as well as direct and circumstantial evidence to support their case. The accused argued that the eye-witnesses had been intoxicated at the time of the assault and therefore their testimony was unreliable. He also argued that the prosecutors failed to meet their burden to convict him. However, the court agreed with the prosecution and refused to discharge the accused, finding that the prosecution’s evidence presented a prima facie case that the accused was legally obliged to answer.



The State v. Swartz High Court of Namibia (2018)

Domestic and intimate partner violence, Female infanticide and feticide, Femicide

The accused stabbed and murdered a pregnant minor girl with whom he was in a relationship when he was approximately 18 and she was 15 years old. Their relationship was one filled with domestic abuse and violence. He was convicted of murder and assault with intent to do grievous bodily harm. He was also convicted of assault for unlawfully and intentionally threatening to kill the deceased’s grandmother, thereby causing her to believe that the accused intended, and had the means, to carry out his threat.



Ah-Chong v. The Queen Supreme Court of New Zealand (2015)

Sexual violence and rape

Appellant Ah-Chong was convicted of assault with intent to commit sexual violation by rape.  As a defense, Ah-Chong claimed that the victim consented to the sexual activity.  The trial judge gave the jury instructions that they had to be satisfied beyond a reasonable doubt that the defendant had no reasonable grounds to believe that consent existed.  The appellant argued that the jury instructions were wrong, claiming that there were two separate mens rea elements: one for the assault and one for intention to rape.  The Supreme Court previously held in L v R that only a reasonable belief of consent, even if mistaken, could provide a defense to the charge of sexual violation by rape.  The appellant argued that a mistaken belief of consent constitutes a defense to the charge of assault, even if the belief was unreasonable.  The Court rejected this jury instruction.  The trial judge correctly informed the jury that based on the complainant’s account of the event, there was no possibility of finding a mistaken belief in consent relating to the assault, but not the intention to rape.  The Court extended the analysis from L v. R, holding that the mental element for attempted rape was satisfied if there was a mistaken and unreasonable belief that consent was present.



福建林某某、楼某某强制污辱妇女案,福建光泽县人民法院 (Fujian Province v. Lin, Lou) People’s Procuratorate of Guangzhe District Court (2013)

Gender discrimination, Gender violence in conflict, Gender-based violence in general, Sexual harassment

In 2013, a teenage girl name Lin gathered two other girls to get revenge on another girl, C., at Guangze senior high school, Fujian Province, for insulting her. C. hid and so their plan for revenge was unsuccessful. Later that day, Lin asked someone else to take C. to a quiet neighborhood. Lin and her friend slapped C.'s face, broke her nose, pulled her hair, and made C. take off all her clothes. C. was too frightened to say no and took off all her clothes. Lin and her friend took pictures of the naked C. and shared the photos. Guangzhe District Court found that Lin and her friends assaulted the victim C. According to Article 237, Criminal Law of the People’s Republic of China, Lin and her friend were convicted of humiliating a woman with force and coercion. Lin was sentenced to two-years’ imprisonment, with a full suspension of the sentence. Lin’s friend, Lou, was sentenced to one-year jail time with a full suspension of the sentence. The court said that because both the defendants and the victim were under age of 18, and because the defendants were willing to cooperate with the police, tell the truth, and plead guilty, the court under Article 63, Article 67, Article 72, and Article 73 of Criminal Law of People’s Republic of China to give the two defendants a mitigated punishment of community service. The court demanded that the defendants delete all the naked photos of the victim. After the crime, the defendants’ families compensated the victim and the victim forgave the defendants.

性别歧视、性暴力、性骚扰

2013年,被告人林某某认为其被陈某某辱骂,纠集楼某某、 黄某某(均为未成年女性),到福建省光泽县某中学找该校学生陈某某(女, 未成年)欲行报复。因陈某某警觉躲藏,林某某等人寻找未果。当日晚, 林某某通过他人将陈某某约出并带到光泽县某超市后面的巷子里。

林某某与楼某某先后对被害人实施打耳光、拉扯头发等殴打行为,致使被害人鼻子流血, 并叫被害人“把衣服脱光”。陈某某因害怕哭泣而不敢反抗,遂将衣裤脱光。林某某与楼某某及在场的另二名女学生对被害人围观取笑。其间楼某 某使用手机对陈某某的裸体拍摄了十余张照片并将照片传送给他人。法院经审理认为,被告人楼某某、林某某伙同他人聚众以暴力方法强制侮辱妇女,根据中华人民共和国刑法第二百三十七条,其行为已构成强制侮辱妇女罪。法院院综合考虑被告人作案时均不满十八周岁,主动归案并如实供述犯罪事实,根据刑法第六十三、六十七、七十二和七十三条,决定依法对被告人减轻处罚并适用缓刑。以强制污辱妇女罪判处林某某有期徒刑二年,缓刑二年;判处楼某某有期徒刑一年,缓刑一年。 法院要求被告人删除被害人裸照。被告人家庭案发后积极赔偿并取得对方谅解。



Hilda Ana Merlo Vásquez c/ Hernán Ramos Méndez Sala Penal (2000)

Sexual violence and rape

Alleged victim claimed that defendant pushed her down the stairs and raped her while she was unconscious. The trial court ruled in favor of the defendant, finding there was insufficient evidence to convict him of committing grave bodily injury, harassment and rape. The Appellate Court affirmed acquittals for grave bodily injury and harassment, but reversed the acquittal for rape, finding that there was sufficient medical evidence for a conviction. Medical testimony indicated that the victim had recently engaged in sexual relations, but that after the victim had fallen down the stairs, she would have been in so much pain that consensual sexual relations would have been highly unlikely. The Supreme Court affirmed the appellate court's ruling.