Women and Justice: Keywords

Domestic Case Law

Resolución Nº 00355 - 2016, Expediente: 12-110068-0671-TP Tribunal de Apelación de Sentencia Penal: III Circuito Judicial de Alajuela en San Ramón (2016)

Divorce and dissolution of marriage, Domestic and intimate partner violence, International law

The Court established a unified standard of the legal meaning of a “factual union” (unión de hecho). This term is used in the Law of Criminalization of Violence against Women (Ley de Penalización de Violencia contra la Mujer) and in the Family Code (Código de Familia). However, the definition is composed of different elements under each of these legislations. For example, in the Family Code’s definition, the requirement for the marital union to have lasted for a three-year term is considered unnecessary in order to protect the life, free will, physical integrity, and the woman’s dignity in a marriage or factual union. In the unified standard, the Court established that the necessary elements of a factual union are the following: (1) stability (which excludes periodic relationships); (2) publicity (which excludes furtive relationships); (3) cohabitation (which excludes superficial relationships); and (4) singularity (which excludes multiplicity). The Court recognized these elements and acknowledged that they were also recognized by the Convention of Belém do Pará, establishing that it is also considered domestic violence when the aggressor lives with the victim (cohabitation).

El Tribunal estableció una definición legal unificada del significado de una “unión de hecho.” Dicho término se utiliza en la Ley de Penalización de la Violencia contra la Mujer y en el Código de la Familia. Sin embargo, la definición se compone de diferentes elementos en cada una de estas legislaciones. Por ejemplo, en la definición del Código de la Familia, el requisito de que la unión matrimonial haya durado un período de tres años se considera innecesario para proteger la vida, el libre albedrío, la integridad física y la dignidad de la mujer en un matrimonio o en una unión de hecho. En la norma unificada, la Corte estableció que los elementos necesarios de una unión de hecho son los siguientes: (1) estabilidad (lo cual excluye las relaciones periódicas); (2) publicidad (lo cual excluye relaciones furtivas); (3) la cohabitación (lo cual excluye las relaciones superficiales); y (4) la singularidad (lo cual excluye la multiplicidad). La Corte reconoció estos elementos y reconoció que también fueron reconocidos por la Convención de Belém do Pará, estableciendo que también se considera violencia doméstica cuando el agresor vive con la víctima (convivencia).



Resolución Nº 00618 - 2018, Expediente: 12-021945-0042-PE Tribunal de Apelación de Sentencia Penal: II Circuito Judicial de San José (2018)

Domestic and intimate partner violence, International law

The court emphasized that in order to prove a domestic violence cause of action, the plaintiff must prove that she has been subject to a behavior pattern that fits within the domestic violence cycle. Such behavior pattern consists of three stages: (1) the growing tension stage; (2) the acute aggression stage; and (3) the kindness or affection stage. The third stage is followed by the aggressor’s regret and then by the reconciliation, which in turns leads to another assault and then to the repetition of the cycle. This third stage is crucial in order to recognize whether there is a systematic situation of violence and to prove the elements of this cause of action.

 

La Corte enfatizó que para presentar con éxito una causa de acción legal por violencia doméstica, la demandante debe probar que ha estado sujeta a un patrón de comportamiento que se ajusta al ciclo de violencia doméstica. Dicho patrón de comportamiento consta de tres etapas: (1) la etapa de tensión creciente; (2) la etapa de agresión aguda; y (3) la etapa de bondad o afecto. A la tercera etapa le sigue el arrepentimiento del agresor y luego la reconciliación, que a su vez conduce a otro asalto y luego a la repetición del ciclo. Esta tercera etapa es crucial para reconocer si existe una situación sistemática de violencia y para probar todos los elementos que constituyen esta causa de acción.



González de Delgado and Others v. Universidad Nacional de Córdoba Corte Suprema de Justicia de la Nación (Supreme Court of Argentina) (2000)

Gender discrimination, International law

Parents of students enrolled at Colegio Nacional de Monserrat, a private all-male high school, filed suit to prevent the implementation of an order of the High Council of the National University of Córdoba (Consejo Superior de la Universidad Nacional de Córdoba) mandating that the high school admit female applicants. They argued that parents have the right to choose the type of education their children receive. The court of first instance found partially in favor of the parents, which was overturned by the appellate court.  Among other reasons, the Supreme Court upheld the appellate court ruling on the basis that (1) the High Council of the National University of Córdoba acted within its statutory authority, (2) the Argentine constitution does not guarantee the right to enroll children in schools limited to a specific gender, (3) mixed gender schools do not infringe on the rights of parents to elect the type of education their children receive, and (4) establishing a mixed gender school is the only alternative compatible with the constitutional principles of equality and the Convention on the Elimination of All Forms of Discrimination Against Women to which Argentina is a signatory.



Roches v. Belize Agricultural Health Authority and Attorney General of Belize Supreme Court of Belize (2017)

Employment discrimination, International law, Sexual harassment

The claimant brought a claim of damages for unlawful termination of employment because she alleged she was terminated before her two-year contract had run despite a positive one-year evaluation.  She claimed her contract was not renewed because she made reports of sexual harassment by her supervisor to the police.  However, that report was made four months after the claimant was informed of the decision not to renew her contract.  The court also determined that her contract was a one-year contract.  As a result, her claim was dismissed.  However, the court “condemn[ed] in the strongest possible terms the exploitation and degradation of women by predatory male behavior in the workplace” and found that the respondent “has an obligation to not sweep these grave allegations under the rug.”  The court urged an investigation into the alleged conduct by claimant’s supervisor and for the respondent to “duly penalize such behavior if substantiated, in keeping with Belize’s national and international obligations to protect the rights of women and children from sexual exploitation under treaties such as the Convention on the Elimination of All Forms of Violence and Discrimination Against Women.”



Gandhi v. Perak, et al. Federal Court of Malaysia (2018)

Divorce and dissolution of marriage, Gender discrimination, International law

The appellant, Pathmanathan (husband), and the respondent, Indira Gandhi (wife), were married and had three children. In March 2009, the husband converted to Islam. In April 2009, the husband obtained certificates of conversion to Islam issued by the Pengarah Jabatan Agama Islam Perak over all three children as well as an ex-parte interim custody order over the children. In September 2009, he obtained a permanent custody order from the Syariah Court. In 2013 and 2014, the mother obtained orders from the High Court annulling the unilateral conversions and the Syariah Court’s custody order, inter alia, on the grounds that vesting equal rights to both parents to decide on a minor child’s religious upbringing and religion would be in accordance with international human rights principles, specifically the convention on the Rights of the Child (CRC) and CEDAW.  The first appeal in this case concerned the validity of the conversion of the children to Islam. The majority in the Court of Appeal allowed the husband’s appeal and held that the Syariah Court had exclusive jurisdiction to determine the validity of the children’s conversion to Islam. Dealing with the issue of whether the conversions violate international norms, the Court noted that international treaties do not form part of domestic law unless those provisions have been incorporated into domestic law and that the High Court’s approach of following very closely the standard of international norms in interpreting the Federal Constitution is not in tandem with the accepted principles of constitutional interpretation. Accordingly, the Court of Appeal did not declare that the conversions of the children were invalid. The Federal Court overturned the lower courts’ decisions on appeal, reasoning that the children had not met the statutory requirements of conversion. Specifically, the Court found that the children did not state the two clauses of the Affirmation of Faith in Arabic as the Perak Enactment requires for a valid conversion to Islam.  In addition, the Federal Court held that mothers have parental rights equal to fathers, so the permission of both parents is required for a child’s religious conversion.



P.O. v. Board of Trustees, A.F., et al. Industrial Court at Nairobi (2014)

Employment discrimination, Gender discrimination, Gender-based violence in general, International law, Sexual harassment

The claimant accompanied one of respondents, a co-worker “J.”, on a work-related trip.  Throughout the business trip, J. made sexual innuendos towards the claimant and when his advances failed, he physically beat her.  He booked a single hotel room, while the claimant believed she would have her own room.  As a result, the claimant was forced to sleep on the floor and returned to Kenya two days later, while J. continued to the conference.  Upon the claimant’s return, she received multiple threatening emails from J. and her employment was terminated as of May 24, 2010 for alleged “misconduct” for not travelling to the conference.  Her salary for May was unpaid.  Although there were numerous legal issues decided in this case, including jurisdiction, the key issue was whether the claimant was subjected to gender-based discrimination and thus unlawfully terminated, and what, if any, entitlement is due to her.  The Industrial Court determined that J.’s conduct toward the claimant, no matter where it had occurred, clearly amounted to gender-based violence against an employee, and that his conduct “had the effect of nullifying or impairing the equality of opportunity or treatment in employment, based on her sex.”  The Industrial Court awarded P total compensation of Kshs 3,240,000, which included general damages for sexual harassment, and unfair and wrongful termination of Kshs 3,000,000.  This case is important to demonstrate Kenyan courts afford protection against sexual violence in multiple ways, including equal opportunity and human rights legislation, labor legislation, civil remedies and criminal law.  In addition to Kenyan employment law, the Industrial Court also relied on the 1993 UN Declaration on the Elimination of Violence against Women, the International Labour Organization, as well as other forms of jurisprudence to support eradicating violence and sexual discrimination against women in the workplace.  The decision noted that while the Constitution of Kenya was not yet in effect and thus not directly applicable when the case was tried, Articles 1, 3 and 5 of the 1948 UN Universal Declaration of Human Rights were included in the Kenyan Constitution and thus were applicable at the time the case occurred.



Resolution U.No. 137/2013 Constitutional Court (2014)

Abortion and reproductive health rights, Gender discrimination, International law

A legal scholar and four non-governmental organizations filed an initiative with the Constitutional Court of Macedonia for the commencement of a procedure to review the constitutionality of the Law on Termination of Pregnancy ((“Official Gazette of the Republic of Macedonia”, nos.87/2013, 164/2013 and 144/2014”) (the “LTP”) and its compatibility with international law, on the basis that the LTP created “a possibility of state interference into the right of choice and free decision-making of the women (which was contrary to Article 41 paragraph 1 and Article 118 of the Constitution of the Republic of Macedonia)”. Further, the applicants stated that the LTP contravenes Articles 11 paragraph 1, Article 39 paragraph 2 and Article 41 paragraph 1 of the Constitution, which provides that female citizens had sovereignty over themselves, their life, physical integrity and health. The applicants pointed out, inter alia, that the requirement to submit a written request, mandatory counselling, and waiting period were incompatible with the constitutionally guaranteed freedom of choice regarding childbirth. In addition, given that those provisions in the LTP did not exist for any other medical intervention, they represented a discrimination against women. All but one of the judges stated that they do not consider the LTP to be problematic and fully rejected the initiative. 



Public Safety (Isolated Thesis Docket XVI.1o.A.115 A (10a.)) First Collegiate Tribunal in Administrative Matters of the Sixteeth Circuit (2016)

Employment discrimination, Gender discrimination, International law

This isolated thesis is a relevant example of gender perspective case law, as the criteria issued by the collegiate tribunal is binding on all cases resolved by such tribunal. In addition, such criteria may be persuasive in similar cases arising in other federal courts. The Mexican Supreme Court has previously determined the social benefits to which a former public safety employee is entitled at the time of her termination. The social benefits and salary must be paid upon termination and must account for both the period before and after an unjustified termination for pregnancy. The Mexican Constitution (Article 123, section B, item XI, subparagraphs (a) & (c)) recognizes the rights of pregnant women. These include social benefits during pregnancy. Consequently, the impairment that results from the termination must be paid and includes: (a) medical bills and payments made to private medical institutions due to the lack of social security benefits and (b) the payment of the full salary from the last month before birth as well as the two months after it, unless there is a court ruling in relation to unpaid wages. This provision of the Mexican Constitution, as well as other provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Inter-American Convention on the Prevention, Punishment And Eradication Of Violence Against Women “Convention of Belém do Pará” compels the courts to rule with a gender perspective in order to ensure justice for this historically vulnerable social group. (Amparo Directo Administrativo 121/2016: http://sise.cjf.gob.mx/SVP/word1.aspx?arch=1320/13200000186095880003003....)

 

Esta tesis aislada es un ejemplo relevante de la jurisprudencia de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son relevantes a todos los casos resueltos por dicho tribunal. Además, dichos criterios pueden ser persuasivos en casos similares que surjan en otros tribunales federales. La Corte Suprema de México ha determinado previamente los beneficios sociales a los que tiene derecho un ex-empleado de seguridad pública en el momento de su despido. Los beneficios sociales y el salario deben pagarse a la terminación y deben tener en cuenta tanto el período antes como el de después de una terminación injustificada por embarazo. La Constitución mexicana (Artículo 123, sección B, artículo XI, subpárrafos (a) y (c)) reconoce los derechos de las mujeres embarazadas. Estos incluyen beneficios sociales durante el embarazo. En consecuencia, el deterioro que resulta de la terminación debe pagarse e incluye: (a) facturas médicas y pagos realizados a instituciones médicas privadas debido a la falta de beneficios de seguridad social y (b) el pago del salario completo del último mes anterior al nacimiento, así como los dos meses posteriores al mismo, a menos que exista un fallo judicial en relación con los salarios impagos. Esta disposición de la Constitución mexicana, así como otras disposiciones de la Convención sobre la Eliminación de Todas las Formas de Discriminación contra la Mujer (CEDAW) y la Convención Interamericana para Prevenir, Sancionar y Erradicar la Violencia contra la Mujer "Convención de Belém do Pará" obliga a los tribunales a gobernar con una perspectiva de género para garantizar la justicia para este grupo social históricamente vulnerable.



Gumede v. President of the Republic of South Africa & Others Constitutional Court of South Africa (2008)

Divorce and dissolution of marriage, Gender discrimination, International law, Property and inheritance rights

Mrs. and Mr. Gumede, both domiciled in KwaZulu-Natal, entered into a monogamous customary marriage in 1968 and four children were born during their marriage.  Because she was forbidden by her husband to take up employment, Mrs. Gumede never worked and could not contribute to the accumulation of the family’s estate, which included two family homes.  She was always the primary caregiver of the children.  After forty years, the marriage broke down irretrievably.  Mrs. Gumede had no family and was dependent for financial support upon her children and her old-age pension.  In 2003, Mr. Gumede instituted divorce proceedings before the Divorce Court.  Mrs. Gumede also approached the High Court and obtained an order invalidating the discriminatory legislative provisions on which the Divorce Court could rely.  The Constitutional Court subsequently was approached by the Minister of Home Affairs and the KwaZulu-Natal Member of the Executive Council for Traditional Leaders and Local Government Affairs who resisted the order, for the reevaluation of the order of the High Court declaring constitutionally invalid certain sections of the Recognition of Customary Marriages Act, of the KwaZulu Act on the Code of Zulu Law 16 of 1985 and certain sections of the Natal Code of Zulu Law (Proc R155 of 1987), which regulate the proprietary consequences of customary marriages.  In a lengthy judgment, the Constitutional Court took great pains to explain that any distinction between the consequences of customary marriages entered into before and after the Recognition of Customary Marriages Act came into operation is discriminatory, inconsistent with the Constitution, and invalid.  The Constitutional Court noted the international instruments that South Africa has ratified that prohibit forms of discrimination against women, including CEDAW.  It held that the two provisions are patently discriminatory, unfair, and not justifiable.  In terms of the judgment, all monogamous customary marriages entered into before the Recognition of Customary Marriages Act came into operation are now ipso facto in community of property, excluding customary marriages which had been terminated by death or by divorce before the date of the judgment.  The Constitutional Court further held that the constitutional invalidity of Section 7(1) was limited to monogamous marriages and should not concern polygynous relationships or their proprietary consequences, determining that polygynous marriages should continue to be “regulated by customary law until parliament intervenes.”



Regina v. Gua High Court of Solomon Islands (2012)

Domestic and intimate partner violence, Gender discrimination, International law, Sexual violence and rape

Macberth Gua was charged with the rape of his estranged wife of ten years.  The victim had not filed any divorce proceedings and there was no formal separation.  The defendant dragged the victim into his vehicle under the threat of violence and drove her to a remote location where he forced himself on her.  The defendant’s defense relied upon the antiquated common law maxim that a husband could not be liable for involuntary sexual intercourse with his wife (the “marital rape exception”), as her agreement to wed constituted an irrevocable consent to marital relations.  Moreover, Section 136 of the Penal Code of the Solomon Islands provides an excessively narrow definition of rape: “Any person who has unlawful sexual intercourse with a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by impersonating her husband, is guilty of the felony termed rape.”  The question before the High Court was whether a husband could be held criminally liable for raping his wife.  The answer provided by the High Court was in the affirmative, which ruled that marriage is now regarded as a partnership of equals, and that this principle of equality has been reflected not only in international conventions to which the Solomon Islands is a party, but is also entrenched in the provisions of the Constitution.  In its rationale, the High Court noted that one of the international conventions to which the Solomon Islands is a party is CEDAW, which, in Article 15, calls on all State parties to accord women equality with men before the law and, in Article 16, calls for the same personal rights between husband and wife.  As for the Constitution, Sections 3 and 15 of the Constitution guarantee women equal rights and freedoms as men and afford them protection against all forms of discrimination, including discrimination on the ground of sex.  The High Court thus held that the rule exempting husbands from liability for rape on their wives is no longer applicable, that it is no longer supported by common law, and that it is offensive to modern standards and principles of equality found in international conventions and the Constitution.  Notwithstanding the foregoing, unfortunately in the sentencing decision following Regina v. Gua, the sentencing judge stated that “this is a case which has occurred as a result of domestic problems between a husband and his wife.  It is not an offence that has been committed to gratify one’s own sexual desires.  There is an underlying cause for the commission of the offence – the termination by the victim of her marriage to the accused.  Hence, the accused is not solely to be blamed for this incident.  The complainant must also share the blame.” 



Police v. Apelu Supreme Court of Samoa (2010)

Abortion and reproductive health rights, International law

A women inmate at Tafaigata Prison who was two months pregnant asked the defendant to abort the fetus using a duck speculum and uterine sound instrument while she was on weekend parole.  Upon returning to the prison and complaining of severe pain, the woman was rushed to the hospital, where she delivered a live, premature female infant.  The baby died of respiratory failure as a result of extreme prematurity and neonatal sepsis; the medical report stated that the instruments used by the defendant had infected the victim’s uterus and induced labor.  In 2004, she had been sentenced to two and one-half years for the same offense.  Although the charges were not prosecuted at the time, they were revisited in 2005 and a year was added to the defendant’s sentence.  The sentencing judge in the case considered the defendant’s record of recent convictions as aggravating factors.  While the maximum sentence for this offence is seven years, the court considered that it warranted a starting point of six and a half years.  The only mitigating factor in the defendant’s favor was her guilty plea, which avoided the necessity of a full trial, for which twelve months were deducted from her sentence.  The question before the Supreme Court was whether the Convention on the Rights of the Child and CEDAW ought to be considered in sentencing.  In the course of answering such question in the negative, the judge was clear in relying solely upon national legislation: “This country through its elected representatives namely Parliament has chosen to take a pro-life stand and have legislated against abortion except when it is necessary to preserve the life of the mother.  Parliament having enacted that law, the courts duty is beyond question, it is required to enforce the laws of the land.  The rightness, wrongness or morality of such a law is debated in the building next door, not in this one.”  The fact that Samoa continues to criminalize abortion after ratifying international conventions evinces clear legislative intent against domesticating CEDAW through specific legislation.



Human Trafficking (Isolated Thesis Docket: I.9o.P.144 P (10a.)) Ninth Collegiate Tribunal in Criminal Matters of the First Circuit (2017)

Gender-based violence in general, Trafficking in persons

“HUMAN TRAFFICKING. IF A VICTIM OF THIS CRIME, IN ONE OF THE FIRST STATEMENTS, MAKES AN ALLEGATION AGAINST THE DEFENDANT, INCLUDING A NARRATIVE OF THE FACTS, AND SUCH STATEMENT IS CORROBORATED BY FURTHER EVIDENCE, SUCH EVIDENCE SHOULD BE REGARDED AS ACCURATE EVEN IF THE VICTIM SUBSEQUENTLY RETRACTS THE ALLEGATIONS.”

This isolated thesis is a relevant example of gender perspective case law, as the criteria issued by the collegiate tribunal is binding on such tribunal. In addition, such criteria may also be persuasive in similar cases arising in other federal courts. In this case, the federal court determined that it is a well-known fact that Mexican society discriminates against sex workers. In light of the stigma that sex workers carry, they are subject to continuous pressure from different societal actors, including their nuclear family, to refrain from providing statements or to withdraw initial statements regarding crimes committed against them. The collegiate tribunal held that when a sex-worker case comes before a court, the court must consider a gender perspective in its ruling. As a result, courts must use all available mechanisms in order to obtain irrefutable proof from the victim. The tribunal based its ruling on Article 2(c) and (d) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW):  “(c) to establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; (d) to refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation.”

 

“LA TRATA DE PERSONAS. SI UNA VÍCTIMA DE ESTE CRIMEN, EN UNA DE LAS PRIMERAS DECLARACIONES, HACE UNA ALLEGACIÓN CONTRA EL DEFENDIENTE, INCLUYENDO UNA NARRATIVA DE LOS HECHOS, Y DICHA DECLARACIÓN ES SUSTENTADA CON EVIDENCIA DICHA EVIDENCIA SE MANTENDRA COMO VALIDA INCLUSO SI LA VICTIMA RECANTA SU TESTIMONIO."

Esta tesis aislada es un ejemplo relevante de la jurisprudencia de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son vinculantes para dicho tribunal. Además, dichos criterios también pueden ser persuasivos en casos similares que surjan en otros tribunales federales. En este caso, el tribunal federal determinó que es un hecho bien conocido que la sociedad mexicana discrimina a las trabajadoras en base a su sexo. En vista del estigma que las trabajadoras sexuales ejercen, están sujetos a la presión continua de diferentes actores sociales, incluida su familia nuclear, para que se abstengan de emitir declaraciones o de retirar declaraciones iniciales sobre los delitos cometidos contra ellas. El tribunal colegiado sostuvo que cuando un caso de trabajadora sexual se presenta ante un tribunal, el tribunal debe considerar una perspectiva de género en su decisión. Como resultado, los tribunales deben usar todos los mecanismos disponibles para obtener pruebas irrefutables de la víctima. El tribunal basó su decisión en el Artículo 2 (c) y (d) de la Convención sobre la Eliminación de Todas las Formas de Discriminación contra la Mujer (CEDAW): “(c) establecer la protección legal de los derechos de las mujeres en igualdad de condiciones con los hombres y asegurar a través de los tribunales nacionales competentes y otras instituciones públicas la protección efectiva de las mujeres contra cualquier acto de discriminación; (d) abstenerse de participar en cualquier acto o práctica de discriminación contra las mujeres y garantizar que las autoridades e instituciones públicas actúen de conformidad con esta obligación."



Masupha v. Senior Resident Magistrate for the Subordinate Court of Berea High Court of Lesotho (Constitutional Division) (2013)

Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

The petitioner, Senate Masupha, is the firstborn, female child of a late principal Chief.  Because there were no firstborn males in his immediate family, upon his death, the late Chief’s wife and the petitioner’s mother was appointed as a caretaker Chief in accordance with the Chieftainship Act.  Following the death of the late Chief’s wife in 2008, the late Chief’s younger brother instituted a claim for inheritance of the chieftainship before a magistrate’s court, which was challenged by the late Chief’s son from a second wife, as well as that son’s mother.  The petitioner, who had not been included in the proceedings before the lower court, subsequently intervened to request a change of venue to the Constitutional Court, so that she could challenge the constitutionality of the provision in the Chieftainship Act under which she was precluded from seeking to succeed to the chieftainship, as she was the first-born child.  Masupha argued that the Chieftainship Act does not necessarily preclude her from inheriting the chieftainship and that, even if the Chieftainship Act in fact precludes her from doing so, it should be struck down, because it violates multiple provisions of the Constitution.  The High Court highlighted the fact that, in acceding to CEDAW, Lesotho specifically excluded itself from the provisions of that Convention in so far as it concerns the customary practices relating to succession to the throne and to chieftainship.  It therefore dismissed Masupha’s petition seeking to declare the Chieftainship Act provision preventing female offspring from inhering chieftainships discriminatory and therefore unconstitutional, finding that the Chieftainship Act was not discriminatory, because it allows the senior wife to inherit the title as a caretaker, if there are no living first-born males from any of the deceased’s marriages.  The High Court concluded that, when a wife succeeds her husband as a caretaker, the right to inherit reverts back to the male line of the family upon the death of the female chief.  The judgment was appealed to the highest court in the country, the Court of Appeal, which affirmed the High Court’s decision and upheld the customary law effectively denying women the ability to succeed to chieftainship.



Estate of Lerionka Ole Ntutu High Court of Kenya at Nairobi (Family Division) (2008)

Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

Lerionka Ole Ntutu was survived by multiple wives, sons, and daughters.  After his sons filed an application asking the High Court to issue to them the letters of administration to administer their father’s estate, their sisters and stepsisters filed an objection and claimed their inheritance.  The sons contested the objection, arguing that the distribution of their father’s estate was governed by Masai customary law, which did not recognize the right of daughters to claim an inheritance from their father’s estate.  The judge in the first instance found that, because Ntutu was Masai and lived in an area excluded from the Succession Act, his estate should be divided accorded to Masai custom.  The judge thus held that none of the daughters could inherit from their father’s estate.  In ruling on the daughters’ appeal, the Court of Appeal invoked international treaties and covenants, including CEDAW, in finding that the daughters of the deceased person in that case were entitled to a share of his estate.  On appeal before the High Court, the definitive question before Lady Justice K. Rawal was whether the Court should apply the Law of Succession Act or the customary law of the Masai community.  The High Court was satisfied that, even if the Law of Succession Act allowed Ole Ntutu’s community to apply customary law in the distribution of his estate, any tenet of such customary law that would abrogate the right of daughters to inherit the estate of a father would be repugnant to justice and morality and could not be applied.  The High Court thus ruled that Ole Ntutu’s daughters were entitled to inherit their father’s land.



The Queen v. Vernon Anthony Paddy The Eastern Caribbean Supreme Court in the High Court of Justice (Criminal Division) (2011)

Domestic and intimate partner violence, International law

Mrs. Paddy was a victim of ongoing domestic abuse by her husband of nine years; she hoped to move on and began communicating with other men, giving one of them her phone number.  Upon discovering that Mrs. Paddy wanted to get out of their marriage, Mr. Paddy attacked his wife, repeatedly beating her with a hammer.  Mr. Paddy was charged and convicted for causing grievous bodily harm with intent.  Mr. Paddy claimed to have been provoked by the conduct of the victim, but the Supreme Court found that the facts did not suggest such provocation, especially because the husband was aware that his wife suffered from multiple sclerosis and diabetes, and ruled it a premeditated attack.  In sentencing Mr. Paddy to eight years of imprisonment and financial responsibility for his wife’s medical expenses, the Supreme Court recognized that, under CEDAW, States are required to eliminate the many different forms of gender-based discrimination women confront by ensuring that all necessary arrangements are put in place that will allow women to actually experience equality in their lives.  The Supreme Court further observed that “it is now the duty of the courts to send out a strong message that domestic violence in any form will not be tolerated and that men do not have an unfettered license to batter women,” and that “[t]he only way the courts can effectively show this is by the sentences that are passed which are aimed at ensuring that the wrongdoer does not repeat the offence and that potential offenders get the message that society will not condone such behavior.”



Mmusi v. Ramantele High Court of Botswana at Gaborone (2012)

Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

Edith Mmusi and her sisters, all over 65 years of age, brought a case against their nephew, Molefi Ramantele, who claimed to have rightfully inherited the home that was occupied by Mmusi and her sisters and tried to evict them.  The sisters contested the eviction, arguing that they had paid for the home’s upkeep and expansion costs.  The applicable customary law, that of the Ngwaketse tribe, dictated that the family home of a deceased individual was to be reserved to the last born male child.  The rest of the property was to be divided among the children, regardless of gender.  The Lower Customary Court found in favor of the nephew; the Higher Customary Court held in 2008 that the home belonged to all of the children; and the Customary Court of Appeal, to which both parties appealed, held that the home should be inherited by the nephew.  The High Court noted that the issue of law being considered was whether the Ngwaketse customary law, to the extent that it denied the applicants the right to inherit the family residence intestate, "solely on the basis of their sex, violate[d] their constitutional right to equality under s 3(a) of the Constitution of Botswana.  On 12 October 2012, the High Court subsequently awarded the home to the sisters, ruling that the local customary laws prioritizing male inheritance were not in keeping with the promise of gender equality enshrined in the Constitution of Botswana and in international conventions such as CEDAW, thereby recognizing for the first time the right of women in Botswana to inherit property.  On 3 September 2013, the Court of Appeal upheld the decision of the High Court, observing that “Constitutional values of equality before the law, and the increased leveling of the power structures with more and more women heading households and participating with men as equals in the public sphere and increasingly in the private sphere, demonstrate that there is no rational and justifiable basis for sticking to the narrow norms of days gone by when such norms go against current value systems.”  This case was a landmark case that effectively ended the patriarchal inheritance system in Botswana.



Castles v. Secretary to the Department of Justice Supreme Court of Victoria (2010)

Abortion and reproductive health rights, International law

This case challenged a decision by the Secretary of the Department of Justice to refuse Ms. Castles’ access to in vitro fertilization (“IVF”) treatment, while she was in a low security prison.  Prior to her imprisonment for social security fraud, Ms. Castles was undergoing IVF treatment.  Although she was sentenced to only 18 months of imprisonment, Ms. Castles was nearing the age at which IVF would no longer be available to her.  Ms. Castles sought a declaratory judgment and injunctive relief to enable her to continue IVF treatment to conceive a second child with her husband.  The question decided by the Supreme Court was whether access to IVF is inherent in the right to respect privacy and family life.  The Supreme Court acknowledged that although incarceration necessarily involves a limitation of the right to liberty, it places an additional burden on the State to preserve human dignity.  International agreements, including CEDAW and ICESCR, recognize that decisions concerning the number and spacing of children, and access to health services, including in the area of sexual and reproductive health, are an aspect of the inherent dignity of a person that underlies all human rights.  The Supreme Court held that the requirement to give proper consideration to human rights required the decision-maker to consider the possible impact of the decision on a person’s human rights, but that this need not be a sophisticated legal exercise.  The Supreme Court further ordered the Department of Justice to allow Ms. Castles access to the relevant medical treatment, subject to an assessment of any countervailing security or other concerns on a visit-by-visit basis.



Nese Aslanbay Akbiyik Basvurusu, Case Application Number: 2014/5836 Constitutional Court of Turkey (2015)

Gender discrimination

The petitioner filed a claim to the Turkish Constitutional Court stating that trial and appellate courts’ refusal to allow her use her pre-marriage surname after marriage violated her right to protection of her private life and discriminated against her based on her gender. Article 187 of the Turkish Civil Code requires married women to use their husband’s surname after marriage, which created complications in the petitioner’s professional life since she was known by her pre-marriage name. On appeal, the Constitutional Court applied both Turkish law and international law to find that a person’s right to a name, including their surname, is an inalienable right. The Court looked to precedent from the European Court of Human Rights in finding that protection of a person’s name including person’s surname is covered by Article 8 (respect for private and family life). The Court also found that the protections afforded by Article 17 of the Turkish Constitution overlapped with the protections in Article 8 of the European Convention on Human Rights. Consequently, the Court concluded that, since the right to one’s name is protected in the Turkish Constitution and within the scope of international agreements to which Turkey is a party—including the European Convention of Human Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, and the International Covenant on Civil and Political Rights—men and women are entitled to equal rights to use their pre-marriage last name.



Hariharan v. Reserve Bank of India Supreme Court of India (1999)

Gender discrimination

Ms. Githa Hariharan was married to Dr. Mohan Ram and they had a son named Rishab. She applied to the Reserve Bank of India (RBI) for bonds to be held in the name of their minor son Rishab and had signed off as his guardian. The RBI sent back the application to her advising her to either produce the application signed by the father of Rishab or produce a certificate of guardianship from a competent authority in her favor. RBI was of the opinion that Dr. Mohan was the natural guardian of Rishab on the basis of Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (HMGA). That provision stated that the father is the natural guardian of a Hindu minor child and the mother is the guardian “after” the father. Ms. Hariharan challenged the constitutional validity of this provision in the Supreme Court on grounds that it violated the right to equality guaranteed under Articles 14 and 15 of the Indian Constitution. The Supreme Court, relying on gender equality principles enshrined in the Indian Constitution, CEDAW and UDHR, widely interpreted the word “after” in the provision and upheld the constitutional validity of Section 6(a) HMGA, 1956. It held that both the father and mother are natural guardians of a minor Hindu child, and the mother cannot be said to be natural guardian only after the death of the father as that would not only be discriminatory but also against the welfare of the child, which is legislative intent of HMGA, 1956. This case is important because it established for the first time that a natural guardian referred to in the HMGA, 1956 can be a father or a mother: whoever is capable of and available for taking care of the child and is deeply interested in the welfare of the child, and that need not necessarily be the father.



Noorfadilla Binti Ahmad Saikin (Plaintiff) v. Chayed Bin Basirun et al. (Defendants) High Court of Malaya at Shah Alam (2011)

Employment discrimination, Gender discrimination, International law

The Plaintiff interviewed with the education officers of the Education Office of the Hulu Langat District to become an untrained teacher. During the interview, the Plaintiff was asked questions pertaining to her general knowledge, personal details, problem solving skills and residential address. She was not asked about her pregnancy status. The Plaintiff was accepted for the position and presented herself at an instructional meeting as instructed. At the meeting, she was told to report for duty immediately. Subsequently, an education officer asked whether anyone at the meeting was pregnant. Once the Plaintiff admitted that she was pregnant, her placement memorandum was withdrawn. The High Court held that it was not relevant whether or not there was a binding contract, as the the Defendants’ decision interfered with the Plaintiff’s right to be employed, which is contrary to Article 8(2) of the Federal Constitution, which provides that there shall be no discrimination on the ground of gender in the appointment of any office or employment under a public authority. This Article of the Federal Constitution was adopted to comply with Malaysia’s obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The High Court declared that using pregnancy as a factor in employment is a form of gender discrimination under the Malaysian Constitution, applying CEDAW in interpreting Article 8(2) of the Constitution, because of the basic biological fact that only a woman has capacity to become pregnant.



El Tribunal Constitucional de Chile Constitutional Court of Chile (2007)

Forced sterilization

A parliamentary minority requested that the Constitutional Court declare unconstitutional a Ministry of Health decree that determined the availability of family planning methods and permitted distribution of emergency contraception by national health centers.  The constitutional court noted that the “right to life” is fundamental under the Chilean Constitution. It rejected scientific arguments that emergency contraception did not affect the life of a conceived but unborn embryo.  In a dissenting opinion, one judge noted that the rights protecting the reproductive rights of women were enshrined in CEDAW in conflict with the Constitutional Court’s decision.  The Constitutional Court’s decision did not prevent all distribution of emergency contraception in Chile, but banned it from being distributed by clinics and hospitals that are part of national health system. The constitutional court decision was effectively overruled in January 2010 by Law No. 20.418, promulgated by President Bachelet, which permitted distribution of emergency contraceptive pills in both public and private health centers, including to persons under 14 without parental consent.  The law also requires high schools to enact sexual education programs.



In Re Estate of Lerionka Ole Ntutu (Deceased) High Court of Kenya at Nairobi (Family Division) (2008)

Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

The sons of Lerionka Ole Ntutu filed to prevent Ntutu’s married daughters from receiving their inheritance of his estate Section 82(4) (b) of the Kenyan Constitution. Under Kikuyu customary law, only unmarried daughters were allowed an inheritance. The presiding judge held that this claim was illegitimate, stating that the law cannot deprive a person of their rights only on the basis of sex and marital status. The judge followed the precedent set by the ruling in Rono v. Rono, Kenya Court of Appeal, 2005, in circumscribing customary law to prevent violations of justice, morality, and other written law. This case marked another important step in upholding women’s rights and human rights law over harmful customary practices towards women.



Meera Dhungana v. Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2006)

Gender discrimination, International law

A petition on behalf of the Forum for Women, Law and Development in Nepal called for revision of a law prohibiting dowries. The law imposed a much stricter sentence on the bride’s family than the grooms, making it inconsistent with the equal rights provisions in Article 11 of the Constitution of the Kingdom of Nepal and international human rights standards. The Court’s decision to revise the law, which cited earlier rulings based on Article 11, shows a continued dedication to transforming the Nepalese legal code in the interest of gender rights and equality.



Rama Panta Kharel and Others v. Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2008)

Gender discrimination

A petition to replace the existing limitations on dowry size in the Interim Constitution of Nepal (2007) with a prohibition of all dowries based on the mandate for gender equality in Article 11 of the Constitution and international conventions such as CEDAW was quashed on grounds that there was not sufficient proof that allowing limited dowries was discriminatory. However, in recognition of the social harm caused by large dowries including impoverishment, competitiveness, and negative views of women, the Court directed that current laws limiting dowries be enforced more effectively and that sensitization on the harmful aspects of dowries be implemented. This ruling demarcates the limits of petitioning for gender equality against traditional and constitutional law while still showing the willingness of the Court to promote women’s rights through means outside the Constitution.



Achyut Prasad Kharel v. Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2008)

Gender discrimination

A petition to require consent from the woman’s husband in a law in the Constitution of the Kingdom of Nepal allowing women to have an abortion on fetuses of less than 12 weeks cited CEDAW conventions mandating equality between men and women on matters relating to family planning. The Court dismissed the petition emphasizing that CEDAW is intended to promote and protect women’s rights and to consider the wording of equality in such absolute terms would, in fact, be contrary to this original intent. With this ruling, the Supreme Court of Nepal shows remarkable dedication to protecting and empowering women as the primary goal in interpreting legal conventions on women’s rights.



Punyabati Pathak and Others v Ministry of Foreign Affairs and Others Supreme Court of Nepal (2005)

Gender discrimination

The Court upheld a petition to quash a provision of the Nepalese Passport Act that requires women under the age of 35 to procure a letter of consent from a guardian before obtaining a passport. The Court ruled that the provision was contrary to Article 11 of the Constitution because it infringed on equal treatment between men and women, was contrary to the mandate for positive discrimination to ensure equality for women, and inhibited a woman’s right to enjoy the freedoms guaranteed by the Constitution and international human rights treaties. Thus, the Court quashed this provision and directed the Ministry of Foreign Affairs to issue passports to Nepali women without a letter of permission, putting an end to a highly prejudiced practice that had prevented women from accessing education, employment, and cultural enrichment outside of Nepal.



Meera Dhungana v Prime Minister and Office of Council of Ministers and Others Supreme Court of Nepal (2005)

Gender discrimination

Meera Dhungana, an important women’s rights advocate in Nepal, petitioned the government to deem void a provision of the Bonus Act in the Constitution of the Kingdom of Nepal that prevents married daughters of a deceased from receiving compensation upon his death. The petitioner claimed that this provision discriminates against women based on their gender and marital status, thus contradicting the Constitution and international gender rights conventions. The Court denied the petition, finding that the Bonus Act treats male and female successors equally unless a daughter is married, in which case she has equal inheritance rights with her husband. This case marks the limitations to legal reforms that the Supreme Court will consider in the defense of gender equality, showing a consideration of Constitutional law, international conventions, and practical outcomes for women.



Mensah v. Mensah Supreme Court of Ghana (2011)

Divorce and dissolution of marriage, International law, Property and inheritance rights

The petitioner filed for divorce and sought an equal share of assets acquired during the marriage.  At the time of marriage, neither party owned any property.  During their marriage, the plaintiff assisted in building their business and managed their shop while her husband continued to work for the Controller and Accountant General's Department.  The plaintiff also advised the respondent on property investments.  The respondent denied that the petitioner contributed to the business and claimed that she embezzled money from him, and therefore should not be considered an equal holder of marital assets.  The trial court and the Court of Appeals ruled in favor of the petitioner, finding that she was a joint owner of the property and was therefore entitled to an equal share of the marital assets.  The Supreme Court affirmed.  Previous case law denied a wife a share in property acquired during the marriage unless the wife could show that she had made a "substantial contribution" to the acquirement of these assets.  Yet, because more recent cases supported the "equality is equity" principle in the division of marital assets, the Supreme Court concluded that "the death knell has been sung to the substantial contribution principle, making way for the equitable distribution as provided for under Article 22 (3) of the Constitution 1992."  Thus, the court held that even if it determined that the petitioner did not make a substantial contribution to the acquisition of marital property, she would still be entitled to a share of the property.  To further support its decision, the Supreme Court referenced Article 1 and Article 5 of CEDAW, in addition to the Universal Declaration of Human Rights, which emphasize equality between the sexes.



KHO 2005:87 Supreme Administrative Court (2005)

Forced and early marriage, Harmful traditional practices

The issue here was whether A should get a residence permit to Finland because of family ties. He had entered into marriage with his cousin B in Syria in 2004 who was 15 years old at the time and had lived in Finland since 1996. The Directorate of Immigration (now Finnish Immigration Service) denied A's application for residence permit. According to Section 114(1) of the Finnish Aliens Act (301/2004, as amended) (the "Aliens Act"), a residence permit is issued on the basis of family ties to a family member of a refugee or an alien who has been issued with a residence permit on the basis of the need for subsidiary protection or humanitarian protection, or who has enjoyed temporary protection if: (i) the sponsor lives in Finland or has been issued with a residence permit for the purpose of moving to Finland; and (ii) the applicant is not considered a danger to public order, security or health. According to Section 4 of the Finnish Marriage Act (234/1929, as amended) (the "Marriage Act"), (i) a person under 18 years of age shall not marry, (ii) The Ministry of Justice may, however, for special reasons grant a person under 18 years of age a dispensation to marry. Before the matter is decided, the custodian of the applicant shall be reserved an opportunity to be heard if his or her whereabouts can be determined with reasonable measures. The Directorate of Immigration considered that the marriage was against Finnish law and not valid. Hence A could not be considered a family member in accordance with the Aliens Act.  The Administrative Court reversed the Directorate of Immigration's decision.  It held that the marriage was made under Syrian law and the fact that B was under age according to the Finnish law did not matter in this case. Also taking into account the religion, culture and traditions of B and her family, the Court found that issuing permit of residence would not be against the interest of the child. On appeal from the decision of the Administrative Court, the Supreme Administrative Court concluded that the fact that some countries allow underage marriages does not mean that such marriages can be the basis for a residence permit in the same way as are marriages between consenting adults. Although Section 115(1) of the Marriage Act generally recognizes the validity of marriages concluded in other countries, the law contains an exception where the application of a foreign provision would have an outcome contrary to Finnish public policy (ordre public (Section 139 (2) of the Marriage Act). Taking into account Article 1(1) of the Convention on Consent to Marriage, Minimum Age For Marriage, and Registration of Marriages; Article 23(3) of the International Covenant on Civil and Political Rights (ICCPR); and Article 16(1)(6) and (2) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Court held that it was not possible to use culture to justify marrying B to a person whom she is claimed to have met when she was a small child and taking her into a country where she does not have any family ties. Marrying a child and applying for permit of residence on the basis of this marriage can be seen as intention to evade the provision on entry into or residence in the country (Section 36(2) of the Aliens Act). On these grounds, the Supreme Administrative Court held that the decision of the Administrative Court would be revised and the decision of the Directorate of Immigration would be enforced.



Vaux v. Vaux High Court of Malawi (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, International law, Property and inheritance rights

The petitioner-wife sought dissolution of her marriage on the grounds of abuse by the respondent-husband, who repeatedly physically abused her and threatened her with physical force when she tried to stop him from drinking. She also asked for maintenance for the couple's daughter. The Court granted the dissolution of marriage and noted that the types of mistreatment the petitioner suffered at the hands of her husband constituted gender-based violence as defined by the Declaration of the Elimination of Violence Against Women because it was based on the unequal power relations between the husband and wife and caused the petitioner serious psychological suffering.  



Andrew Manunzyu Musyoka (Deceased) High Court of Kenya at Machakos (2005)

Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

The applicants are the sons and wife of the deceased and are seeking to apply the Kamba customary law that would not permit a daughter to inherit her father's estate if she is married.  The Court held that the Kamba customary law is discriminatory insofar as it seeks to prevent a married daughter from inheriting her father's estate under the Succession Act.  It specifically noted that although the Kenyan constitution specifically provides for customary law to take precedence over the Constitution in matters dealing with property inheritance after death and other personal issues, Kenya is also obligated to end discriminatory practices under CEDAW and the UDHR. 



Sentencia C-322/06 Constitutional Court of Colombia (2006)

Gender-based violence in general

The Court was asked to reexamine the domestic implications of Colombia's adoption of the CEDAW. Those opposing the CEDAW argued that its adoption would have grave consequences and be inconsistent with the Colombian Constitution. The Court affirmed the constitutionality of Colombia's participation in the CEDAW.



Attorney General v. Unity Dow Court of Appeal of Botswana at Lobatse (1992)

Gender discrimination, International law

The respondent, Ms. Unity Dow, brought a case to the High Court of Botswana asserting that sections 4 and 5 of the Citizenship Act violated her right to equal protection of the law and protection from discrimination on the basis of sex because the sections of the Citizenship Act treated children differently depending on whether they were born to citizen mothers or to citizen fathers. The respondent had one child with an American man prior to their marriage and two children after. Botswana's citizenship requirements allowed only children born outside of marriage to inherit their mother's citizenship, so the respondent's first child was a citizen of Botswana while the two born during her marriage were not. Though not the central issue of the case, the Court noted that an immediate effect of the law could be the expulsion of the husband and non-citizen children from Botswana. The Court of Appeal upheld the High Court's decision in finding that the Citizenship Act discriminated on the basis of gender under both the Botswana Constitution and the Declaration on the Elimination of Discrimination Against Women because it punishes a female citizen for marrying a non-citizen male. In addition, the Court considered similar cases in different countries in reaching its opinion.  (High Court decision available at: https://www.law.cornell.edu/sites/www.law.cornell.edu/files/women-and-ju...)



Memoranda

Maternity Benefits: International and Regional Standards and Guidelines on Maternity Benefits and Country Samples of Best Practices (2015)

Employment discrimination, Gender discrimination, Sexual harassment

Adequate and sufficient maternity leave, coupled with appropriate accommodations on return to work, are essential to women’s physical and psychological wellbeing after giving birth. This memorandum outlines the international and regional framework relating to maternity benefits and provides country illustrations of best practices from Sweden, Croatia, Chile, South Africa, and Vietnam.



International Case Law

Karen Tayag Vertido v. The Philippines CEDAW Committee (2008)

Gender discrimination, Sexual violence and rape

Karen Tayag Vertido, an employee of the Davao City Chamber of Commerce and Industry in the Philippines, was raped by a former President of the Chamber in 1996. The case remained at the trial court level for eight years before the Regional Court of Davao City acquitted the defendant in 2005. The Court scrutinized Vertido’s testimony with “extreme caution,” and challenged her credibility on the ground that “an accusation of rape can be made with facility.” The Court specifically declined to apply Filipino Supreme Court precedent cases establishing that failure to escape does not negate the existence of rape, stating that Vertido had ample opportunities to escape her attacker. In her complaint to the Committee on the Elimination of Discrimination Against Women, Vertido argued that the Court’s actions subjected her to revictimization and violated articles 2(c), 2(f), and 5(a) of the Convention on the Elimination of All Forms of Discrimination Against Women and CEDAW General Recommendation 19, which obliges a State to modify or abolish existing laws, regulations, and practices that constitute discrimination against women. The Committee held that the State Court erred in relying on gender-based myths and stereotypes about rape and rape victims in Vertido’s case, and stressed that there should be no assumption in law or practice that a woman gives her consent where she had not physically resisted unwanted sexual conduct. The Committee recommended that the State provide Vertido with appropriate compensation, review the definition of rape under existing law to ensure that lack of consent is a essential element of the crime of rape, remove any requirement that sexual violence be committed by violence or force, and require appropriate training for judges, lawyers, and law enforcement officers in understanding crimes of rape and other sexual offenses.



Elisabeth de Blok et al. v. The Netherlands CEDAW Committee (2014)

Employment discrimination, Gender discrimination

Elisabeth de Blok and five other nationals of the Netherlands are self-employed women who gave birth between 2005 and 2006. Until 31 July 2004, self-employed persons were compulsorily insured against the risk of loss of income as a result of incapacity for work under the Incapacity Insurance Act. Under the Work and Care Act, self-employed women were also entitled to a State maternity benefits. On August 1, 2004, the Discontinuation of Access to Incapacity Insurance Act entered into force, ending the entitlement of self-employed women to maternity benefits. The six self-employed women complained to the District Court of The Hague, claiming that the State should have ensured an adequate maternity benefit scheme in keeping with article 11(2)(b) of the Convention on the Elimination of All forms of Discrimination against Women. The District Court declared the claim unfounded. The Court of Appeal of The Hague upheld the judgment. The Supreme Court dismissed the appeal, ruling that the provisions of article 11(2)(b) of the Convention were insufficiently precise, thus making them unsuitable for direct application by national courts. In their complaint to the Committee on the Elimination of Discrimination Against Women, the six women argued that the State party violated their rights under article 11(2)(b) of the Convention on the Elimination of All forms of Discrimination Against Women by removing the existing maternity leave scheme applicable to self-employed women up to 2004. The Committee held that article 11(2)(b) is applicable also to self-employed women and not to female employees exclusively. Further, the Committee held that, contrary to the State party’s view, the provision was directly applicable. The Committee concluded that the State party’s failure to provide maternity benefits affected pregnant women adversely and therefore constituted direct sex and gender-based discrimination against women. The Committee recommended that the State party provide reparation, including monetary compensation, for the loss of maternity benefits to the six women. The Committee noted that the Sate party amended its legislation in June 2008 to ensure that a maternity leave scheme is available also to self-employed women. However, the Committee invited the State party to address and redress the situation of women similarly situated to the authors, who are self-employed and gave birth between 1 August 2004 and 4 June 2008, when no compensation scheme for self-employed women was in place.



R.P.B. v. The Philippines CEDAW Committee (2014)

Gender discrimination, Sexual violence and rape

R.P.B., a Filipina national born in 1989 who is both deaf and mute, was raped by her 19-year-old neighbor in 2006. The case remained at the trial court level for five years before the Regional Trial Court of Pasig City acquitted the defendant in 2011. Similar to a previous case from the Philippines heard by the CEDAW Committee in 2008, Karen Tayag Vetrido v. The Philippines, the Court again declined to apply Filipino Supreme Court precedent. Instead, the Court relied on gender-based myths and stereotypes about rape and rape victims, finding that the victim should have used every opportunity to escape or resist her attacker. In addition, State authorities did not provide any interpretation for R.P.B. In her complaint to the Committee on the Elimination of Discrimination Against Women, R.P.B. argued that the Court’s actions violated article 1, and article 2(c), (d), and (f) of the Convention on the Elimination of All Forms of Discrimination against Women. In addition to relying on gender based myths and stereotypes, R.P.B. also argued that the Court failed to provided her with accessibility, on an equal basis with other victims, to the court, as a woman who is also deaf and mute. The Committee held that the provision of sign language interpretation was essential to ensure R.P.B’s full and equal participation in the proceedings, in compliance with article 2(c) and 2(d) of the Convention. Further, the Committee held that the State party erred in relying on gender-based stereotyping, which resulted in sex and gender-based discrimination and disregard for the individual circumstances of the case, such as R.P.B’s disability and age. The Committee recommended that the State provide R.P.B. with the appropriate compensation and free-of-charge counseling, review the existing law and remove any requirement that sexual assault be committed by force or violence, guarantee the free and adequate assistance of interpreters, ensure that all criminal proceedings involving rape and other sexual offences are conducted in an impartial and fair manner, free from prejudices or stereotypical notions regarding the victim’s gender, age and disability, and provide adequate and regular training on the Convention, the Optional Protocol and the Committee’s general recommendations.



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.



R.K.B. v. Turkey CEDAW Committee (2012)

Employment discrimination, Gender discrimination

R.K.B.’s employer dismissed her but not the male colleague whom she was accused of having an affair with, and threatened to “spread rumours about her relationships with other men” to pressure her to sign a document, attesting that she had been paid all her benefits upon termination. R.K.B. filed a claim to the Kocaeli 3rd Labour Court against her employer alleging unfair termination based on gender stereotypes. The Court decided that the termination of her contract was not justified but not dismissing the male colleague was not discriminatory. R.K.B. appealed to the Court of Cassation, which dismissed the appeal without reference to gender discrimination. The CEDAW held that the Turkish court violated Articles 5(a), 11(1a) and 11(1d) of CEDAW by basing their decisions on gender stereotypes, tolerating allegations of extramarital relationships by male employees but not by female employees. It recommended adequate compensation to be paid to R.K.B, issued the State to take measures to implement laws on gender equality in the work environment; and to provide training to judges, lawyers and law enforcement personnel on women’s rights and gender-based stereotypes. The decision is of particular importance in a country where almost 80% of women are unemployed (Richinick) and where women’s participation in the labor force has been declining. It also stresses that mere adoption of laws is not enough to protect rights – implementation is the key. The decision also emphasizes the role of the courts (and not the executive branch) as ultimately responsible for rights’ violation.



A. v. Croatia European Court of Human Rights (2011)

Domestic and intimate partner violence

A, a Croatian woman was subjected to repeated violent behavior by her mentally-ill ex-husband, B, often in front of their daughter, whom on occasions turned violent towards the daughter too. Seven sets of proceedings were brought against B and although some protective measures were implemented, others were not. The prison sentences were not served and some of the treatment was not undergone due to a lack of qualified providers. A was refused an injunction prohibiting B from harassing and stalking her on basis that there was no immediate risk to her life. B was eventually imprisoned for making death threats to the judge and the judge's daughter. The ECtHR found that A would have been more effectively protected from B’s violence if the authorities had had an overview of the situation as a whole, rather than in numerous sets of separate proceedings. A failure to enforce protective measures undermined the deterrent purpose of such sanctions. It was still uncertain whether the husband had undergone any psychiatric treatment. A’s Article 8 right to respect for private life was breached for a prolonged period. The Court dismissed the allegation that domestic violence legislation applied in a discriminatory fashion in Croatia.



Kell v. Canada CEDAW Committee (2012)

Gender discrimination, Property and inheritance rights

K, an Aboriginal woman from the Rae-Edzo community in the Northwest Territories (N.W.T.) of Canada, bought a house from the N.W.T. Housing Corporation, with S her common law partner, as co-owners of the property. S subjected K to domestic violence, including economic abuse, over the subsequent three-year period. Following a request from S, a then board member of the Housing Authority, and without K’s knowledge, the N.W.T. Housing Corporation on instruction from the Rae-Edzo Housing Authority removed K’s name from the Assignment of Lease, making S the sole owner of the property. S then evicted her from the property while she sought protection in a shelter. K filed proceedings against S in the N.W.T. Supreme Court seeking compensation for domestic violence and loss of use of her home, fraudulently obtained by S, aided and abetted by the N.W.T. Government. S subsequently died, following which K’s lawyer initiated proceedings against his estate and the N.W.T. Housing Corporation. They offered K a monetary settlement but K refused as her key concern was regaining the property. The Supreme Court dismissed both proceedings for “want of prosecution.” Costs were imposed against K and subsequent appeals were unsuccessful. K filed a third action related to her interest in and right to the leasehold title and possession of the property. The property had then been sold and the Court dismissed the matter. K brought a communication to the CmEDAW alleging violations by Canada of Articles 1, 2(d), 2(e), 14(2)(h), 15(1)-15(4), 16(1)(h) of CEDAW by allowing its agents – the N.W.T. Housing Corporation and the Rae-Edzo Housing Authority – to discriminate against her on the grounds of sex, marital status and cultural heritage and failing to ensure that its agents afford women and men equal rights in respect of ownership and enjoyment of property. The Committee found that Canada was responsible for K losing ownership of the property, in violation of Articles 2(d), 2(e), and 16(1)(h) of CEDAW, read with Article 1. However, it found that Canada had not violated Articles 14(2)(h) or 15(4), as there was no evidence K had been discriminated against as a rural woman or prevented from residing in another property in the community. The Committee recommended that Canada compensate K and provide her with appropriate housing. It also recommended recruiting and training more Aboriginal women to provide legal aid and reviewing the legal aid system to ensure Aboriginal women who are victims of domestic violence have effective access to justice.



Chile v. Javier Sebastián Parra Godoy Angol Criminal Court (2013)

Gender violence in conflict

While the victim was sleeping, her partner Sebastian Javier Parra Godoy attacked her by striking her in the head. She suffered near-fatal head injuries as a result of the blow. On February 5, 2013, the criminal court in the province of Angol found Mr. Godoy guilty of the crime of attempted intimate femicide. In their ruling, the judges explicitly referenced the fact that the case presented a case of gender-based violence. It concluded that that Parra Godoy had acted as a result of traditional views considering women as subordinate perpetuating stereotypes of violence and coercion. The court stated that in such cases, international standards of human rights such as the Inter-American Convention to Prevent, Punish and Eradication of Violence Against Women and the general recommendations of the Committee on the Elimination of Discrimination Against Women (CEDAW) should apply. The prosecutor Raul Espinoza explained that the main challenge of the case was the absence of direct evidence because the only potential witnesses were the victim, who was sleeping at the time of the attack and who suffered neurological damage which affected her memory, and the victim’s autistic son, who was mentally handicapped. To bring the case, he relied instead on strong circumstantial evidence.



A.S. v. Hungary CEDAW Committee (2006)

Forced sterilization

Andrea Szijjarto was sterilized without her informed consent by a Hungarian hospital during an emergency cesarean section procedure. While in a state of shock due to blood loss, Szijjarto was asked to provide her written consent to tubal ligation by signing an illegible hand-written note describing the procedure in terms she did not understand. Szijjarto charged the hospital with negligence in failing to obtain her full and informed consent to the coerced sterilization. Both the town and county courts held that the hospital was at least partially negligent in its legal duties to Szijjarto, but rejected her claim and appeal for failure to prove a lasting handicap and causal relationship between permanent loss of reproductive capacity and the conduct of the hospital’s doctors. The Committee on the Elimination of Discrimination Against Women held that Hungary violated Szijjarto’s rights under article 10(h) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) on access to information on family planning, article 12 guaranteeing women appropriate medical services in connection with pregnancy, and paragraph 1(e) of article 16 on a woman’s right to freely choose the number and spacing of her children. The Committee recognized the serious consequences of coercive practices including forced sterilization under its General Recommendation No. 21, and held that the Hungary had violated Szijjarto’s right to information on family planning and the sterilization procedure. The Committee also held that lack of informed consent constituted a breach of the obligation under article 12 and General Recommendation No. 24 to ensure the delivery of acceptable medical services in a manner that respects a woman’s dignity. Accordingly, the Committee recommended the State provide compensation to Szijjarto and amend its Public Health Act allowing doctors’ discretion to administer sterilization procedures when “appropriate in given circumstances.”



Salgado v. United Kingdom CEDAW Committee (2007)

Gender discrimination

Constance Ragan Salgado, a British citizen, moved to Colombia with her husband, a Colombian, and gave birth to a son. Salgado attempted to obtain British nationality for her son, but the British Consul in Bogotá stated that British nationality passed only though the paternal line. Although the British Nationality Act of 1981 amended British law to confer equal rights to men and women, Salgado’s son did not qualify because he was over 18. The Legislation again changed in 2002 with the passage of the Nationality, Immigration and Asylum Act which allowed children born to British mothers between 1961 and 1983 to register as British nationals if they satisfied certain other conditions. Salgado’s complaint alleged sex-based discrimination under the British Nationality Act of 1948 which restricted nationality descent to British fathers. Salgado raised issues under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, which calls for the elimination of all discriminatory laws, regulations and customs that discriminate against women, and article 9 paragraph 2 under which State parties must grant women equal rights with men with respect to the nationality of their children. She claimed that the discrimination was ongoing because her son failed to qualify for citizenship under the various amendments to the Act. Although the Committee held that the complaint was inadmissible ratione temporis because the events occurred before the Covention’s entry into force in the United Kingdom, it based its decision on the fact that Salgado’s son had reached the age of majority, at which time he could have applied for British nationality on his own. The Committee noted that the United Kingdom had enacted the challenged legislation prior to the Optional Protocol’s entry into force. The Committee also recommended that Salgado challenge the legislation by way of judicial review in the British High Court before turning to the Committee for further redress.



Goekce v. Austria CEDAW Committee (2007)

Domestic and intimate partner violence

Sahide Goekce’s husband shot and killed her in front of their two daughters in 2002. Before her death, Ms. Goekce had obtained three expulsion and prohibition-to-return orders against her husband in response to repeated episodes of domestic violence. The Vienna Public Prosecutor denied police requests to detain Mr. Goekce, and stopped the prosecution against him on the basis of insufficient grounds of prosecution two days before Ms. Goekce’s death. Police reports show that the law enforcement failed to respond in a timely fashion to the dispute that resulted in Ms. Goekce’s death. The complaint to the Committee on behalf of the decedent stated that Austria’s Federal Act for the Protection against Violence within the Family provides ineffective protection for victims of repeated, severe spousal abuse and that women are disproportionately affected by the State’s failure to prosecute and take seriously reports of domestic violence. The Committee found that although Austria has established a comprehensive model to address domestic violence, it is necessary for State actors to investigate reports of this crime with due diligence to effectively provide redress and protection. The Committee concluded that the police knew or should have know that Ms. Goekce was in serious danger, and were therefore accountable for failing to exercise due diligence in protecting her. By allowing the perpetrator’s rights to supersede Ms. Goekce’s human rights to life and to physical and mental integrity, Austrian law enforcement violated it obligations under article 2 to end gender discrimination through the modification or enactment of appropriate legislation, and its article 3 obligation to guarantee women’s exercise and enjoyment of human rights and fundamental freedom on a basis of equality with men. The Committee recommended that Austria strengthen its implementation and monitoring of the Federal Act for the Protection against Violence within the Family, respond to complaints of domestic violence with due diligence, and provide adequate sanctions for failure to do so.



Yildirim v. Austria CEDAW Committee (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Fatma Yildirim sought to divorce her husband who threatened to kill her and her children if she ever initiated divorce proceedings. In response to Yildirim’s numerous reports of assault and dangerous criminal threats, the Austrian police issued an expulsion and prohibition-to-return order against her husband. The police also recommended that her husband be detained, but the Vienna Public Prosecutor twice denied the request. Yildirim appealed to the Vienna Intervention Center after her husband repeatedly came to her workplace to harass and threaten her; the Center asked the police to pay more attention to Yildirim’s case. When Yildirim finally filed a petition for divorce at the Vienna District Court of Hernals, her husband followed her home from work and fatally stabbed her. The complaint stated that the State’s action violated article 1 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) because the Austrian criminal justice system negatively impacts women through the public prosecutors’ failure to treat cases of domestic violence seriously. The complaint also cited the failure of judicial officials and law enforcement to collect data and maintain statistics on domestic violence instances denied Yildirim the enjoyment of her human rights in violation of article 2 and 3 of CEDAW on eliminating laws, regulations, and customs that adversely effect women . Finally, the complaint stated a violation of article 5 of the Convention on eliminating social and cultural attitudes towards women in the State’s continual treatment of domestic violence as a social or domestic problem rather than a serious crime. The Committee held that the Austrian police force’s failure to detain Yildirim’s husband was in breach of the State’s due diligence obligation to protect Yildirim, noting that a perpetrator’s rights cannot superseded women’s human rights to life and to physical and mental integrity. The Committee also took note of the correlation between lenient attitudes towards women’s cultural subordination and domestic violence. Although Austria prosecuted Yildirim’s husband to the fullest extent for her death, the Committee found violations of articles 2, 3, and 5 and recommended that Austria strengthen its implementation and monitoring of the Federal Act for the Prevention against Violence within the Family, and ensure enhanced coordination between police and judicial officers to protect women victims of gender-based violence.



V.K. v. Bulgaria CEDAW Committee (2011)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination

Ms. V.K., a Bulgarian citizen residing in Poland, sought to obtain a divorce from her husband after years of physical, emotional and economic abuse. Following a series of incidents in which her husband physically abused and intimidated both mother and children, Ms. V.K. took her children and left Poland for Bulgaria in order to hide from her husband and to seek protection and support from her family and the State. Once in Bulgaria, Ms. V.K. filed an application pursuant to the State’s Law on Protection against Domestic Violence, asking for an immediate protection order against her husband, invoking the Convention (CEDAW) and other human rights treaties. The District Court issued the order for immediate protection, but rejected Ms. V.K.’s application for a permanent protection order. On appeal, the Regional Court upheld the decision of the District Court. After exhausting all available domestic remedies, Ms. V.K. lodged a complaint with the CEDAW Committee alleging that the State had failed to provide her with effective protection against domestic violence, in violation of the Convention. She further claimed that the absence of a special law regarding the equality of women and men in the State, and the lack of recognition of violence against women as a form of discrimination, interfered with her human rights. Upon consideration, the Committee found that the refusal of the State’s courts to issue a permanent protection order against Ms. V.K.’s husband, along with the unavailability of shelters for battered women, violated the State’s obligation to effectively protect her against domestic violence. The Committee further concluded that the refusal of the State’s courts to issue a permanent protection order against Ms. V.K.’s husband was based on discriminatory notions of what constitutes domestic violence.



Abramova v. Belarus CEDAW Committee (2011)

Gender discrimination, Sexual harassment

Ms. Abramova, a citizen of Belarus, is a journalist who was arrested for her activism on behalf of the “For Freedom” movement and convicted of “minor hooliganism.” She was held in a temporary detention facility for five days, where she shared a small, unheated cell with an unenclosed toilet area that lay in open view of the all-male staff. During her detention, the male prison staff directed numerous humiliating comments at Ms. Abramova, treatment that the male detainees at the facility did not receive. Upon her release, Ms. Abramova submitted a complaint of violation of her rights in detention to authorities at the Interior Department, who informed her that her allegations had not been verified. Ms. Abramova then filed a complaint with the Prosecutor’s Office, again with a response that her claims had not been confirmed. Next, Ms. Abramova filed an application to the District Court under civil procedure, but the court claimed that it lacked jurisdiction and rejected her application. She appealed, and the Judicial Board rejected her appeal. Ms. Abramova proceeded to file a complaint to the District Court under administrative procedure, which again refused to initial civil proceedings. On appeal, the Judicial Board reversed the decision of the District Court and remanded the case for new consideration; on remand, the District Court dismissed Ms. Abramova’s complaint on procedural grounds. She submitted a complaint to the CEDAW Committee alleging that the conditions under which the State detained her constituted inhuman and degrading treatment, and that such treatment amounted to discrimination against her on the basis of gender. The Committee found that Ms. Abramova’s temporary detention in poor, unhygienic conditions, in a facility staffed exclusively by men, amounted to inhuman and degrading treatment and discrimination on the basis of her gender. Further, the Committee found that the State was in violation of its obligations under the Convention (CEDAW).



Teixeira v. Brazil CEDAW Committee (2011)

Gender discrimination

Alyne da Silva Pimentel Teixeira, a Brazilian national of African origin, suffered a high-risk pregnancy and was repeatedly denied timely care at public health facility, before dying of a digestive hemorrhage following delivery of her stillborn fetus. The husband of the deceased then filed a civil claim for material and moral damages, and twice requested the judicial mechanism of tutela antecipada, which requests the judge to anticipate the protective effects of a decision. The first request was ignored and the second denied. The mother of the deceased then submitted a complaint to CEDAW Committee, alleging that the State violated her daughter’s right to life and health under the Convention (CEDAW). The State contended that the evidence offered no link between the deceased’s gender and the possible errors committed, and that such errors therefore did not fall within the definition of discrimination set out in the Convention. Upon consideration, the Committee found that the death of the deceased must be regarded as maternal, that the deceased was denied appropriate services in connection with her pregnancy, that the State failed to fulfill its obligations under the Convention pursuant to the right to health, and that the State’s lack of appropriate maternal health services has a differential impact on the right to life of women. The Committee directed the State to take the following steps: compensate the deceased’s family, ensure women’s right to safe motherhood and affordable access to adequate emergency obstetric care, provide adequate professional training for health workers, ensure that private health care facilities comply with national and international standards on reproductive health care, and ensure that sanctions are imposed on health professionals who violate women’s reproductive health rights.



N.S.F. v. United Kingdom CEDAW Committee (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence

N. S. F., a Pakistani national, experienced repeated ill-treatment from her husband, including marital rape, until they divorced in 2002. Although N. S. F.’s husband continued to harass her after she moved to a nearby village, the police did not offer her any protection. When her ex-husband came to her new home with other armed men and threatened to kill her, N. S. F. fled to the United Kingdom and applied for asylum, claiming that her forced return to Pakistan would constitute violations of the 1951 Convention on the Status of Refugees and article 3 of the European Convention on Human Rights and Fundamental Freedoms. N. S. F. appealed the dismissal of her application for asylum by the Immigration and Nationality Directorate of the Home Office, and on appeal the Adjudicator denied N. S. F.’s application on the grounds that N. S. F. could relocate further away from her husband within the country, and that she would receive protection in Pakistan on account of her being divorced from her husband. The Immigration Appeal Tribunal rejected N. S. F.’s application for permission to appeal, and the High Court of Justice, Queens Bench Division, Administrative Court affirmed the decision upon challenge. Her complaint alleged that the asylum and human rights-based procedures were not fair, and that if deported back to Pakistan, N. S. F.’s husband would kill her and put her children’s education at risk. Although the Committee found the complaint inadmissible because N. S. F. did not exhaust all domestic remedies, the Committee noted that the complaint raised concern for women who have fled their country because of fear of domestic violence. It recalled its General Recommendation No. 19 on violence against women, and concluded that Pakistan’s assertion that N. S. F.’s claims do not amount to an allegation of sex discrimination needed to be reconsidered in light of this Recommendation. The Committee suggested that N. S. F. apply to the High Court for judicial review of her application for asylum, and that the Court take her allegations of sex discrimination under consideration.



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