Women and Justice: Keywords

Domestic Case Law

R. v. H. Supreme Court of Queensland (2002)

Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

The appellant advertised in Korea for families to come to Australia to attend a missionary school. The appellant was responsible for settling those families’ affairs, and they were dependent on him to organize the necessary extensions of visas. Most of the time, the parents spoke no English and their children spoke little English. The appellant organized accommodation for the parents of the complainant among other families, and at the same time he arranged for separate accommodation for their daughter with children of other families. The accommodation for the daughter was close to the appellant’s house, but an hour’s drive from her parents’ house. The appellant was the only individual who had the keys to the children’s rooms. The appellant advised the father of the complainant to return to Korea to seek more families, and he did. One night, the appellant returned around 1:00 AM to the children’s accommodation and entered the complainant’s room where another girl was with her. That girl left after certain remarks by the appellant. The appellant took the complaint in his van to a remote place where he proceeded to touch her, took off her pyjamas, and then had sexual intercourse with her, despite her resistance. During this resistance, they both fell to the floor of the van and the appellant injured his arm. The appellant threatened the complainant not to inform anyone about this incident, reminding her that her family needed him to renew their visas. The complainant immediately told her friends at the accommodation of the sexual assault. In the morning, the complainant walked to a public telephone where she called her father in Korea and told him about the incident, and then called her mother to inform her of the same. In fear with respect to their visas, the family went with the appellant to Brisbane where they had their visas renewed, acting as if nothing happened. Later, the father flew back to Australia and immediately lodged a complaint with the police. Through investigation, the police found physical evidence of rape, including injuries to her genitals consistent with rape, the appellant’s DNA, and wounds consistent with complainant’s statement of the rape. Based on the evidence, the District Court sentenced the appellant to eight years for two counts of rape and one count of indecent dealing with a circumstance of aggravation. Relying on older cases, the appellant filed this appeal to lower his sentence, claiming it was too high for someone his age, considering he had no previous convictions and that there were no violence or weapon used. The Queensland Court of Appeal dismissed these arguments, stating that the older cases referenced by the appellant were dated before the implementation of new rules that increased the sentences for rape. In addition, even though no violence was used against the complainant, the court found that the appellant took advantage of her because of her visa situation, and this was an aggravating factor. Therefore, the appeal was dismissed.

Ministério Público v. [Undisclosed Parties], 9/14.7GCTND.C1 Tribunal da Relação de Coimbra (Court of Appeal of Coimbra) (2016)

Sexual harassment, Statutory rape or defilement

The Public Prosecutor (Ministério Público) brought charges against the defendant, “A” (name omitted from public record), for sexual harassment against the victim, “D” (name omitted from public record) a minor girl. A had naked pictures of D and threatened to expose them using the internet unless D agreed to have sexual intercourse with him. The Lower Court held that D’s conduct did not meet the requirements of sexual harassment under section 163 of the Portuguese Penal Code, which requires a grave threat to the victim as an element of the crime. The Lower Court held that the threat to expose naked pictures of D is considered a grave threat under the Portuguese Penal Code. The Public Prosecutor appealed, and the Appellate Court reversed the decision, finding B guilty of sexual harassment.

O Ministério Público trouxe acusações contra o réu, “A” (nome omitido do registro público), por assédio sexual contra a vítima, “D” (nome omitido do registro público) uma garota menor de idade. A tinha fotos de D pelada e ameaçou expor as fotos na internet a menos que D concordasse em ter relações sexuais com ele. O Tribunal da Relação considerou que a conduta de D não cumpria com as exigências de assédio sexual sob a seção 163 do Código Penal Português, que requer uma grave ameaça à vítima como elemento do crime. O Tribunal da Relação considerou que a ameaça de expor as fotos de D pelada é considerada grave ameaça sob o Código Penal Português. O Ministério Público apelou, e o Tribunal da Relação reverteu a decisão, condenando B pelo crime de assédio sexual.

Joan v. Hodgson High Court for Zambia (2011)

Divorce and dissolution of marriage, Property and inheritance rights

The defendant alleged that he was induced to make and execute an agreement to pay the plaintiff various amounts following the breakdown of their 10-year relationship, including: payment of US $50,000 (with US $30,000 to be paid initially followed by the remainder; this was subsequently amended to US $60,000), payment of the plaintiff’s rental and medical expenses for 12 months, the purchase of furniture and a computer, and the provision of financial support to the plaintiff’s daughter who was studying. The defendant freely paid the plaintiff US $30,000 but did not honor the rest of the proposed agreement. The defendant claimed that the agreement had been entered into by duress on the part of the plaintiff or alternatively, should be set aside for lack of consideration, and therefore counterclaimed the US$30,000 paid under that agreement. In reply, the plaintiff claimed that: (i) there was a common law marriage between the parties for the defendant held himself out as the plaintiff’s husband and father to her children and for all intents and purposes they lived as husband and wife; and, (ii) the defendant entered into the agreement willingly. The Supreme Court concluded that, in the present case, there was no celebration of marriage and, therefore, the parties could not be presumed to have been married under common law. Further, the Supreme Court noted that there was evidence in support of the position that the agreement was the result of blackmail on the part of the plaintiff who held various sensitive documents of the defendant and threatened to report the defendant to the Zambia Revenue Authority if he did not agree to enter into the agreement. The Supreme Court noted that the evidence established that the agreement had been entered into under duress and therefore was capable of being set aside on this basis. However, a party who enters into a contract under duress has the option of ratifying the contract or seeking to avoid it once the duress has come to an end. The Supreme Court noted that while the defendant paid the US $30,000 with full knowledge of all the circumstances (including suspecting that the plaintiff no longer had any sensitive documents in her possession), the defendant could not have legally ratified the contract, as it was invalid for lack of consideration (in particular, any consideration would be past consideration because the relationship had ended and the plaintiff was supposed to move out of the defendant’s house anyway as she had no legal right to continue staying there). Accordingly, the Supreme Court ordered the plaintiff to refund US$30,000 without interest to the defendant on the basis that the plaintiff should not be unjustly enriched by the threat (with costs to be borne by the plaintiff, to be agreed upon or taxed in default of agreement).