Women and Justice: Keywords

Legislation

Domestic Violence Prevention Act (2015)

Domestic and intimate partner violence

The Domestic Violence Prevention Act (the “DVPA”) was established in order to prevent acts of domestic violence and to protect the interests of victims. The DVPA defines domestic violence offenses and the family members who might be implicated, specifies the responsibilities and tasks of the various competent authorities, and governs issues such as civil protection orders, criminal procedure, the interests of any minors involved, protection of and support for victims, and educational and prevention measures. Breaches of the DVPA will result in the imposition of a fine or imprisonment.



Matrimonial Causes Act (1990)

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

The Matrimonial Causes Act governs marriages, dissolution of marriage, and custody of children. According to Section 5(d) a marriage is voidable if at the time of marriage “the wife is pregnant by a person other than the husband.” However, by Section 35(c), only the husband can nullify the marriage because of pregnancy; the wife has no right to petition to do so. Under Section 47, both husband and wife have grounds for a decree of restitution of conjugal rights, if either refuse to cohabitate with and render conjugal rights to the other. With respect to the wife, if the husband has paid any money to her with respect to a decree under Section 47 and she refuses to comply with the decree within a reasonable time, the money paid becomes a debt due and payable by the wife to the husband and recoverable by action in court.



Marriage (Amendment) Act of 2001 (2001)

Forced and early marriage, International law

The Marriage Act was amended in 2001 to make it illegal for any person under the age of 18 to marry. In accordance with the Convention on the Rights of the Child (CRC), the amendment stipulates that no minor below the age of 21 years may marry without the consent of parents or a legal guardian. The amendment provided for the registration of Customary, Muslim, Hindu, and other religious marriages.



Mutterschutzgesetz (Maternity Protection Act) (1979)

Abortion and reproductive health rights, Employment discrimination, Gender discrimination

Pregnant employees are prohibited from working during the eight-week period prior to giving birth and the eight-week period after giving birth. During this period, the mother is entitled to receive maternity pay, which is calculated as the employee’s average earnings during the 13 weeks prior to the prohibition of work. After the prohibition period, women may take an additional period of maternity leave, up to two years after the birth of the child. During this period, a mother (or father, if he has taken paternity leave, although both parents may not take leave concurrently) will not receive remuneration through her (or his) employer, although the parent taking leave may withdraw child allowance through social insurance during this time.  Pregnant employees and parents on maternity or paternity leave may not be terminated from employment during that time and for a period of four weeks after returning to work.  The Act also provides regulations for the type of work pregnant women, women who are breastfeeding, and women who have recently given birth may do (i.e., prohibition of certain physical work and manual labor, handling of chemicals, work where the woman must sit or stand for long periods with no break) and regulations regarding the times pregnant and breastfeeding employees may work (i.e., must not work between the hours of 8 p.m. and 6 a.m., nor Sundays or public holidays).



Gesamte Rechtsvorschrift für Fortpflanzungsmedizingesetz (Reproductive Medicine Act) (1992)

Abortion and reproductive health rights

Medically assisted reproduction is permissible only to married couples, or those in a registered partnership or cohabitation.  Further, it is only permitted to the couple if certain difficulties in conceiving exist, such as (i) all other possible or reasonable treatments to induce pregnancy through sexual intercourse are unsuccessful or hopeless; (ii) pregnancy through sexual intercourse would expose the spouse or partner to a serious risk of transmitting a serious infectious disease; (iii) the couple is two women living in a registered partnership; or (iv) for certain couples where there may be difficulty becoming pregnant or giving birth, or giving birth to a child with a hereditary disease (which would require the child be kept alive through constant use of modern medical technology, or has severe brain damage or severe pain that cannot be treated) due to genetic dispositions.  Surrogacy is not permitted Austria because medically assisted reproduction is only permissible within a marriage or registered partnership or cohabitation, and only the ova and the semen of the spouses, registered partners, or cohabitants may be used. There are two exceptional circumstances in which a third party’s genetic material may be used for medically assisted reproduction: (i) the semen of a third person may be used if the spouse, registered partner or cohabitant is not capable of reproduction, or if the couple is two women in a registered partnership; or (ii) the oocyte of a third person may be used if a woman, younger than 45, whom the pregnancy will be induced is otherwise not able to reproduce.



Domestic Violence Act of 2004 (2004)

Domestic and intimate partner violence

The Domestic Violence Act (“DVA”), originally enacted in 1996 and amended in 2004, aims to provide protections for women and children domestic violence situations.  It gives courts the power to grant protection and occupation orders.  Applications for such orders can be brought by the victim or, in the case of a child, a parent, guardian, constable, or social worker can bring an application on the child’s behalf.  The DVA sets forth the limitations imposed by protective orders, and it states courts can grant such an order if “it is satisfied that” the individual against whom the order is sought used or threatened to use violence, mental or physical, against the person seeking the order.  Even without that showing, the court can grant a protective order if it finds the order necessary for the protection of the person “having regard to all circumstances.”  The court can grant protection and occupation orders on an ex parte basis if the court deems it necessary.  Punishment for violating an order is a fine not exceeding $10,000 or imprisonment for a maximum of six months, or both.



Family Law Act of 1975 (2018)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Section 4AB defines family violence, covering within its scope violent, threatening or other behavior by a person that coerces or controls a member of the family or causes that member to be fearful. Further, 4AB(2) sets out a list of behaviors that may constitute family violence, including assault, stalking, repeated derogatory taunts, intentionally damaging or destroying property, and unreasonably withholding financial support. The Act provides for divorce and nullity of marriage if the marriage has broken down irreparably. Furthermore, section 65AA deals with parental orders. The court must, pursuant to section 60CG, facilitate the child’s best interest but also to the extent possible ensure that any parental order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence.



23 Pa. C.S.A. § 5301, Domestic Relations - Child Custody (2010)

Divorce and dissolution of marriage

In making custody and visitation decisions, Pennsylvania courts look to various factors in determining what is in the “best interest of the child.” The factors weighed by the court include: (1) the well-reasoned preference of the child, based on the child’s maturity and judgment; (2) the need for stability and continuity in the child’s education, family life and community life; (3) which parent is more likely to foster a relationship between the noncustodial parent and the child; (4) each parent’s history of violent or abusive conduct; and (5) specific criminal convictions. The court will only award sole custody when it is in the best interest of the child. Shared custody will only be awarded if: (1) one or both parents apply for it; (2) the parents have agreed to shared custody; or (3) the court determines it is in the best interest of the child. It is within the court’s discretion to require the parents to attend counseling sessions. Further, the court may review and consider recommendations from the counselor in making the final custody decision.



Labour Act (2007)

Employment discrimination, Gender discrimination, Sexual harassment

The Labour Act (the “Act”) establishes protections for employees and regulates the employer/employee relationship. In particular, this Act prohibits any form of child labor, forced labor, or discrimination and/or sexual harassment in the workplace. The Act also provides for basic conditions of employment to which an employer must adhere, including maternity leave for female employees. An employer may not provide disadvantageous terms in an employment contract or promote unfair labor practices. Violations of this Act expose employers to various penalties. Employees may refer disputes to the Labour Commissioner or the Labour Court to obtain relief.



Maintenance Act (2003)

Divorce and dissolution of marriage, Gender discrimination

The Maintenance Act (the “Act”) imposes equal rights and burdens in relation to the payment of child support (and enforcement of child support orders) on both parents and abolishes customary laws to the contrary. The Act also states that husbands and wives are equally responsible for each other’s maintenance.



Children's Status Act (2006)

Gender discrimination, Property and inheritance rights

Among other things, the Children’s Status Act gives children born out of wedlock the same legal privileges as children born to married couples (e.g., inheritance rights, custody, guardianship, etc.) and provides various legal mechanisms (e.g., court orders) to protect these rights. 



The Islamic Penal Code of Iran, Books 1 & 2 (2013)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Harmful traditional practices, LGBTIQ

Article 147 of the Islamic Penal Code specifies that the age of maturity triggering criminal responsibility is 15 Islamic lunar calendar years for boys, but only nine Islamic lunar calendar years for girls. This signifies that young girls can be charged as criminally responsible adults in Iran before they reach the age of puberty. Articles 237-239 forbid same-sex kissing and touching, which will be punished by 31-74 lashes. Female genital touching (musaheqeh) is punished by 100 lashes. Article 225 mandates the death penalty for adultery (zina), which international commentators have noted is disproportionately applied to women (e.g., UN Special Rapporteur for Violence Against Women report: http://www.ohchr.org/Documents/Issues/Women/A-68-340.pdf). Article 199 describes the number and gender of witnesses needed to prove various crimes; no crimes may be proven with female witnesses alone and any female witness requires corroboration of a man and another woman. (Full Persian version of the Penal Code available at: http://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=103202)



Domestic Case Law

AA v. Fiscalía General de la Nación, Caso No. 359/2013 Tribunal Apelaciones Penal 1º Tº (First Criminal Appeals Court) (2013)

Sexual violence and rape, Statutory rape or defilement

The Trial Court sentenced the accused (AA) to four years in prison for aggravated sexual abuse of a minor (BB). AA and the mother of BB had a common law marriage. AA had been sexually abusing BB since she was eight years old and started raping her when she turned 11.  At age 14, BB became pregnant as a result of rape committed by AA.  BB’s mother discovered AA’s abuse and filed the criminal complaint.  AA confessed to being the victim’s “lover.”  The court found aggravating circumstances including that AA had taken advantage of his domestic relationship with BB’s mother and that he had abused his victim during the night. AA’s confession constituted an attenuating circumstance, reducing the sentence imposed.  The Appeals Court dismissed AA’s appeal and affirmed the Trial Court’s decision, ruling that there was enough evidence presented to establish the facts of the case.

El Tribunal de Primera Instancia condenó al acusado (AA) a cuatro años de prisión por abuso sexual agravado de un menor (BB). AA y la madre de BB tenían un matrimonio común. AA había abusado sexualmente de BB desde que tenía ocho años y comenzó a violarla cuando cumplió los 11. A los 14 años, BB quedó embarazada como resultado de una violación cometida por AA. La madre de BB descubrió el abuso de AA y presentó esta denuncia penal. AA confesó ser el "amante" de la víctima. El tribunal encontró circunstancias agravantes, incluyendo que AA se había aprovechado de su relación doméstica con la madre de BB y que había abusado de su víctima generalmente durante las noches. La confesión de AA constituyó una circunstancia atenuante, reduciendo la sentencia impuesta. El Tribunal de Apelaciones desestimó la apelación de AA y confirmó la decisión del Tribunal de Primera Instancia, dictaminando que se presentaron suficientes pruebas para establecer los hechos del caso.



Decision No. 16-0357: Sentencia Familia Homoparentales por reproduccion asistida El Tribunal Supreme de Justicia (Venezuela Supreme Court of Justice) (2016)

Gender discrimination, LGBTIQ

The plaintiff, a female Venezuelan citizen married to a female Venezuelan citizen, got married in Argentina, where LGBT marriage rights are fully granted to homosexual couples.  In the following years, they tried to validate their marriage in Venezuela through a judicial homologation process. Such homologation was denied on the basis that the marriage regulations in Argentina did not comply with the provisions of Article 44 of the Venezuelan Civil Code, which regulates marriage rights in Venezuela and provides that “marriage cannot be entered into except between one single man and one single woman.”  Thereafter, the couple conceived a child through the assisted reproduction method in Argentina, who was born and presented for registration as their son in Argentina.  Immediately after the baby was born, the couple moved back to Venezuela, where they tried to present the newborn as their son to the Venezuelan competent authorities, requiring that the baby carried the surnames of both mothers.  The registration was denied.  The couple introduced a complaint before the competent court and the judge decided the registration of the boy was inadmissible.  The plaintiff appealed this decision until it reached the Constitutional Chamber of the Supreme Court of Justice (“TSJ”), Venezuelan’s highest judicial body, which decided to annul the decision of the lower court.  The TSJ overruled the lower court’s decision on the basis that the decision violated the plaintiff’s right to present the child as an LGBTIQ couple’s child.  Likewise, the TSJ stated that this action violated the child’s constitutional right to have an identity.  The TSJ final decision was to allow the registration of the child with both mothers’ surnames.  



Douglas v. CTML Pty Ltd. Queensland Civil and Administrative Tribunal (2018)

Gender discrimination, Property and inheritance rights

The decision of the tribunal was only in relation to whether to approve the respondent’s application to dismiss the complaint.  The respondent’s application was denied because there were real factual issues in dispute.  It appears that the substantive trial has not yet commenced (or alternatively a settlement was reached).  In any case, this case is relevant as it illustrates the discrimination women may face in Australia when seeking to establish themselves in a secure environment and raise their children.  The complainant was a single mother who sought to rent an apartment from the respondent.  The complaint rested upon the allegation that the complainant’s tenancy application had been rejected (and she was not even allowed to see the property) as a result of the complainant intending on having her young son live with her in the rental property.  



McGlothlin v. Bristol Obstetrics, Gynecology and Family Planning, Inc. Court of Appeals of Tennessee at Knoxville (1998)

Abortion and reproductive health rights

A mother and daughter sued an abortion provider for having performed an abortion on the minor daughter without first obtaining her parents’ approval, which was in violation of a Tennessee statute. The daughter was 17 years and ten months old at the time. The trial court dismissed the complaint because the statute was unconstitutional as applied to the abortion rights of minors. The Court of Appeals of Tennessee affirmed, finding that the statute in question violated the privacy rights of minors seeking abortions.



Texas Family Code: Child in Relation to the Family - Limitations of Minority - Notice of and Consent to Abortion (2016)

Abortion and reproductive health rights

Texas prohibits pregnant unemancipated minors from obtaining abortions unless the physician performing the abortion gives at least 48 hours actual notice of the appointment, in person or by telephone, to the minor’s parent, managing conservator, or guardian. If the parent or guardian cannot be notified after a reasonable effort, the physician may perform the abortion after giving 48 hours constructive notice by certified mail to the guardian’s last known address. A minor may obtain an abortion without parental notification if the minor receives a court order authorizing the minor to consent (judicial bypass), or if the physician finds a medical emergency, certifies the medical emergency in writing to the Department of State Health Services, and notifies the parent of the medical emergency. If a physician intentionally performs an abortion without complying with this code, the offense is punishable by a maximum fine of $10,000.



Dupre v. Dupre Supreme Court of Rhode Island (2004)

Divorce and dissolution of marriage

In this case, the Rhode Island Supreme Court held that a parent seeking to relocate out of the country with children in his or her custody need not make a showing that his or her reasons for relocation are “compelling.” Rather, the court cited the “time-honored axiom that the primary consideration and paramount concern in all matters relating to custody is the best interests of the child.” In determining the child’s best interests, requiring a parent to demonstrate that the reason for moving was compelling would overly burden a parent’s ability to relocate for legitimate reasons. Accordingly, the court held that the family court had incorrectly applied a “compelling reason” test in denying a mother’s motion to relocate with her children, failing to consider the children’s best interests. 



23 Pa. C.S.A. § 4301, Domestic Relations - Child Support (1985)

Divorce and dissolution of marriage, Property and inheritance rights

Pennsylvania uses a system referred to as the “Income Shares Model” for determining child support. This methodology focuses primarily on the net incomes of the parents and aims to grant the children the same proportion of the parental income that he or she would have received had the parents not divorced.



Roe v. Planned Parenthood Southwest Ohio Region Supreme Court of Ohio (2009)

Abortion and reproductive health rights

The parents of a minor who received an abortion sued Planned Parenthood, which they alleged had performed the abortion illegally because the clinic did not notify them in advance. The plaintiffs sought the medical records and any reports of abuse relating to minors who had received abortions in the prior 10 years. The defendant refused to produce the records of nonparty patients on the ground of physician-patient privilege. The trial court ordered the defendant to produce the non-party records with identifying information redacted, but the Court of Appeals of Ohio reversed. The Supreme Court of Ohio affirmed the Court of Appeals’ ruling, holding that the medical records of non-party patients were not discoverable.



Mathis v. Wayne County Board of Education United States Court of Appeals for the Sixth Circuit (2012)

Sexual violence and rape, Statutory rape or defilement

The plaintiff-appellants’ sons were members of their middle school basketball team who were victims of sexual harassment by their teammates. The harassment ranged from arguably innocent locker room pranks to sexual violence. The plaintiffs sued the Wayne County Board of Education, alleging that the school board was deliberately indifferent to student-on-student sexual harassment in violation of Title IX of the Civil Rights Act. The District Court denied the defendant’s motion for judgment as a matter of law and awarded the plaintiffs $100,000 each in damages. The Sixth Circuit affirmed, holding that the plaintiffs had established the following elements of a deliberate indifference claim: that the sexual harassment was so severe, pervasive, and objectively offensive that it could be said to deprive the plaintiff of access to the educational opportunities or benefits provided by the school; that the funding recipient (i.e. the board of education) had actual knowledge of the sexual harassment, and the funding recipient was deliberately indifferent to the harassment.



R.M., L.R. v. C.A., A.D. (Denuncia por violencia familiar) Camara Civil (Civil Court) (2014)

Domestic and intimate partner violence, International law

Child protective services appealed a decision of the court of first instance denying its request to extend to Ms. R.M.’s children an order of protection against her partner on the basis that (1) Ms. R.M. did not request that protection and (2) weaknesses were found in the determination by the Office of Domestic Violence regarding the degree of risk faced by the children.  In overturning the trial court’s ruling, the appellate court (1) found that applicable rules permit a judge to take measures that put an end to the crisis in order to enable the victim of domestic violence to return to a daily routine free from the influence of violence and (2) noted that the Office of Domestic Violence reported that the situation presented a high degree of risk, including in relation to the children.  In addition, the appellate court noted that in the cases brought before the judiciary, judges must ensure that the principals and rights set forth in the Treaty on the Rights of Children are observed.

 

Los servicios de protección infantil apelan una decisión del tribunal de primera instancia que denegó su solicitud de extender a los niños de la Sra. R.M. una orden de protección contra su pareja sobre la base de que (1) la Sra. R.M. no solicitó que se encontraran protección y (2) debilidades en la determinación de la Oficina de Violencia Doméstica con respecto al grado de riesgo que enfrentan los niños. Al anular el fallo del tribunal de primera instancia, el tribunal de apelación (1) encontró que las reglas aplicables permiten que un juez tome medidas para poner fin a la crisis a fin de permitir que la víctima de violencia doméstica regrese a una rutina diaria libre de la influencia de violencia y (2) notó que la Oficina de Violencia Doméstica informó que la situación presentaba un alto grado de riesgo, incluso en relación con los niños. Además, la corte de apelaciones señaló que en los casos presentados ante el poder judicial, los jueces deben garantizar que se respeten los principios y derechos establecidos en el Tratado sobre los Derechos del Niño.



Reproductive Health Services, et al. v. Marshall, et al. United States District Court for the Middle District of Alabama Northern Division (2017)

Abortion and reproductive health rights

A licensed abortion facility and its owner sued Alabama’s Attorney General and the Montgomery County District Attorney. Among Plaintiffs claims were allegations that the 2014 amendments to Alabama Code Title 26’s judicial bypass law violated the due process rights of minor patients seeking abortions because it failed to provide an adequate judicial bypass by permitting adverse parties and the court to disclose private information about the minor to others. Citing Supreme Court precedent enshrining a minor’s constitutional right to seek an abortion through judicial bypass without outside interference violating her privacy, the court ultimately agreed with the plaintiffs and severed the unconstitutional provisions allowing the participation of (1) the district attorney, (2) the minor’s parents, and (3) a guardian ad litem for the fetus from the judicial bypass process.



2012 (Ku) No. 984 Supreme Court of Japan (2013)

Property and inheritance rights

In this appeal, a child born out of wedlock appealed the High Court’s finding that a relevant part of the proviso to Article 900.4 of the Japanese Civil Code was not inconsistent with Article 14.1 of the Constitution of Japan, prohibiting discrimination based on race, belief, sex, social status, or lineage.  The proviso set forth that the statutory share in inheritance of a child born out of wedlock is half of that of a child in wedlock.  The Supreme Court reversed the High Court’s ruling and found that the proviso was inconsistent with Article 14.1 of the Constitution.  In making this finding, the Supreme Court took into account the changes in the following, which have been observed since 1947––the year in which the Japanese Civil Code was revised after World War II:  Japanese society, forms of family, legislative acts in foreign countries, and relevant Japanese legal frameworks.  The Supreme Court noted that, even though the system of civil marriage is strongly respected in Japanese society, society has come to accept the idea that a child should not suffer disadvantages based on a factor that she/he did not cause or could not change––whether to have been born in or out of wedlock––and that a child’s rights need to be protected and she/he must be given respect as an individual. 



2017 (Ju) No. 2015 Supreme Court of Japan (2018)

Divorce and dissolution of marriage, International law

This case concerns the custody of a Japanese couple’s son who was born and raised in the United States until the mother, without the father’s consent, took him to Japan when he was 11 years old.  Pursuant to the Japanese implementation of The Hague Convention on the Civil Aspects of International Child Abduction, the father, whose life was still based in the U.S., petitioned for the return of the son to the U.S.  A family court in Tokyo granted the petition.  However, the attempt to enforce the order of the court failed as the mother strongly resisted when a court execution officer approached her––the son also voiced his desire to stay in Japan at the time.  Subsequently, the father requested habeas corpus relief seeking release of the child.  The High Court dismissed the request.  In this appeal, the Supreme Court of Japan reversed the High Court’s ruling and remanded the case.  In its reasoning, the Supreme Court first recalled its old ruling that care for a child is tantamount to “restraint” within the meaning of the Habeas Corpus Act and the Habeas Corpus Rules in special circumstances where it cannot be deemed that the child is staying with the care provider based on the child’s free will, even if the child is capable of making her/his own decisions.  The Supreme Court found such a special circumstance––undue emotional influence from his mother––existed with respect to the son in light of the fact that he was not capable of making decisions regarding his life when he was taken to Japan, he appeared to have had less than sufficient opportunities to communicate with his father, and he had been largely dependent on his mother.  Furthermore, the Supreme Court found that the restraint at issue was unequivocally unlawful, taking into account that the mother had refused to follow the family court’s order to return the child to the United States, and that there was no special circumstance in which removing the child would be significantly unjust.  This Supreme Court’s unanimous decision may be an indication that the Court will put significant weight on compliance with The Hague Convention on the Civil Aspects of International Child Abduction.



Mabuza v. Shongwe Supreme Court of Appeal of Swaziland (2006)

Gender discrimination, Harmful traditional practices

The appellant was the maternal grandfather of two minor children (the subject of the application). The appellant was appealing a decision of the trial court which ordered that the children be placed the custody of their biological father (the respondent). The children stayed with the appellant for a period of time while the respondent pursued his education in South Africa. Upon the respondent’s return, he fetched the children from the applicant’s residence. One of the appellant’s arguments was that because the marriage between the appellant’s deceased daughter and the respondent was invalid under Swazi law, the custody of the children should be with the maternal family (in accordance with Swazi law and custom). The Court stated that Section 29(4) of the Constitution removes the distinction between legitimate and illegitimate children as it states that children whether born in or out of wedlock shall enjoy the same protection and rights. The Court found that the most important considerations were the welfare, interests and happiness of the children. The Court found that no evidence was adduced to prove that the respondent was not fit to have custody over the children and the appeal was dismissed. 



J.E.R.A. v. Attorney General's Office Supreme Court (2009)

Sexual violence and rape

The defendant in this case sexually assaulted his stepdaughter, who was 12-years-old at the time. The defendant was sentenced to 15 years in prison for rape. During his appeal, the defendant argued that the trial court failed to legally assess all the evidence presented. During her initial testimony, the victim declared that it was her stepfather who had caused the sexual abuse apparent in her psychological and physical examinations. However, she recanted two months later and stated that the abuse had actually been inflicted by her boyfriend. Nonetheless, the trial court convicted the victim’s stepfather. On appeal the Court found no error. It reasoned that the timing between the contradictory declarations and, most importantly, the nature of the second declaration indicated that the first testimony was correct. The Court found that such a declaration was a product of the stepfather’s pressure as it lacked many details and appeared disingenuous. The Court dismissed the procedural challenge and confirmed the sentence. 

 

En este caso, el acusado agredió sexualmente a su hijastra, que tenía 12 años en ese momento. El acusado fue condenado a 15 años de prisión por violación. Durante su apelación, el acusado argumentó que el tribunal de primera instancia no evaluó legalmente todas las pruebas presentadas. En su testimonio inicial, la víctima declaró que fue su padrastro quien había causado el abuso sexual aparente en sus exámenes físicos y psicológicos. Sin embargo, ella se retractó dos meses después y declaró que el abuso había sido infligido por su novio. No obstante, el tribunal de primera instancia condenó al padrastro de la víctima. En la apelación, La Corte no encontró ningún error. Razonó que el momento entre las declaraciones contradictorias y, lo más importante, la naturaleza de la segunda declaración indicaban que el primer testimonio era correcto. El Tribunal determinó que la segunda declaración era producto de la presión del padrastro, ya que carecía de muchos detalles y parecía poco sincera. El tribunal terminó la apelación y confirmó la sentencia como decisión final.



Kirungi v. Mugabe High Court at Kampala (2013)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The petitioner requests a divorce from the respondent and money to care for the parties’ daughter, for whom the petitioner is the sole caregiver. The parties were married in July 2008 in Uganda and then moved to Woburn, Massachusetts, USA.  The respondent husband physically abused his wife, especially when intoxicated.  During the time they lived together, the respondent usually slept in the sitting room.  For three years they lived apart, but were reconciled by relatives.  During the reconciliation, the parties had a daughter.  The respondent was never involved in caring for the child and eventually left the family home to live with his mother 45 minutes away.  The petitioner returned to Uganda where she is the sole parent and provider for her daughter.  The court granted the request for a divorce on the grounds of cruelty and desertion.  The court explained that the best interests of the child control all determinations relating to children.  The court granted the petitioner custody of the daughter and $400 (USD or the USh equivalent) per month from the respondent for their daughter’s maintenance.



Re Namugerwa & 2 Others High Court at Jinja (2010)

Gender discrimination, Harmful traditional practices, Property and inheritance rights

The aunt of three children applied for guardianship of the children and the land they inherited following the death of their father.  The Court was unable to determine some critical information, including whether the children had a surviving parent and the source of the funds the aunt used to care for the children.  The Court was also concerned that the children’s mother might be alive and the automatic guardian, but that the aunt was chosen because she was related to the children’s male parent.  Under most customary community traditions in Uganda, being a paternal ancestor would give the aunt guardianship priority over the mother.  The Constitutional Court found these practices unconstitutional.



E.S. v. A.C. Supreme Court of Namibia (2015)

Gender discrimination

The appellant, E.S., was a 38-year-old mother of three. She was practicing Jehovah’s Witness who consistently maintained that blood transfusions were against her religion. She told her obstetrician at her last pre-delivery appointment that she would refuse a blood transfusion if complications arose during delivery. After that appointment, E.S. gave her husband, also a Jehovah’s Witness, Durable Power of Attorney for Health Care. Nonetheless, her brother, A.C., filed an ex parte application to serve as her “curator to the person,” for the purpose of authorizing medical procedures on E.S., including blood transfusions after she suffered complications including a hysterectomy after giving birth. In support of his application, E.S.’s brother argued that, as a parent, E.S.’s individual autonomy had to be weighed against the interests of her family.  He also offered testimony from her doctor, who explained that her blood and oxygen levels were too low to support full brain function. The trial court granted the application. The Supreme Court addressed three issues: whether the matter was moot after E.S.’s medical recovery, whether the lower court erred in granting A.C.’s application to be appointed his sister’s curator and have blood transfusions administered, and whether young children’s right to be raised by their parents supersedes the right of an individual to refuse a blood transfusion in life-threatening circumstances.  The Supreme Court reversed the lower court, finding that “written advanced directives which are specific, not compromised by undue influence, and signed at a time when the patient has decisional capacity construe clear evidence of a patient’s intentions regarding their medical treatment” (¶56) and “the right to choose what can and cannot be done to one’s body, whether one is a parent or not, is an inalienable right” (¶ 71).  The court made clear that a woman’s status as a mother does not restrict her right to liberty and privacy, especially where decisions of medical treatment are involved.  



W.J. and L.N. v. Amkoah, Jamhuri Primary School, The Teachers Service Commission and the Attorney General (Petition No. 331 of 2011) High Court of Kenya at Nairobi (Constitutional and Human Rights Division) (2011)

International law, Sexual violence and rape, Statutory rape or defilement

In July 2010, W.J. and L.N, 12- and 13-year-old female students at Jamhuri Primary School, were invited to the home of their teacher, Astarikoh Henry Amkoah. Amkoah forced the girls to perform household chores and later attempted to defile W.J. in the restroom and defiled L.N. in the hall. On several occasions later that month, Amkoah raped both girls. The girls’ education was severely interrupted by the trauma of Amkoah’s attacks and L.N. dropped out of school completely. Ultimately, Amkoah was acquitted in criminal court. In this suit filed by their guardians, W.J. and L.N. sued claiming that Amkoah’s actions unconstitutionally interfered with their rights to health, education, and dignity, and claimed that the school and state should be vicariously liable for the teacher’s actions. They invited the court to look at the claims from the perspective of a tort in negligence and as a human rights violation. However, the violations took place prior to the adoption of a revised 2010 Constitution, so the Court was required to rely partially on the 1963 Constitution which did not include those same guarantees. Still, the 1963 Constitution offered a right to freedom and security of the person. Additionally, the Convention on the Rights of the Child, adopted through Kenya’s Children Act, promises children the right to be free from sexual or physical violence, the right to receive an education, and the right to dignity. As a result, the Court was able to rely on the guarantees of the Children Act. Moreover, Justice Ngugi recognized the 2010 constitutional right to dignity as a continuing right, meaning that while the initial crime may have occurred prior to the 2010 Constitution’s adoption, the continuous nature of the effects of sexual violence on an individual’s dignity make the provision applicable in this case. Here, the Court determined that the criminal acquittal would not serve as a bar to the action because of the differing standards of proof in a criminal and a civil trial. Importantly, the Court decided that “any educational or other institution in which teachers or other care givers commit acts of sexual abuse against those who have been placed under their care is vicariously liable for the wrongful acts of its employees.” The court noted that because children are particularly vulnerable, it is appropriate to impose strict liability on “those in charge of educational and other institutions . . . for abuses committed by those whom they have placed in charge of vulnerable groups such as minors in educational institutions” and held the four named plaintiffs—the teacher, the school, the teachers service commission, and the state—jointly and severally liable for damages of KSH two million for W.J. and KSH three million for L.N.



C.K. & 11 Others v. Commissioner of Police High Court of Kenya at Meru (2013)

Gender discrimination, International law, Statutory rape or defilement

The petitioners are eleven minors and the non-governmental organization that shelters, educates, and cares for the eleven minors. Each child claims to have been subjected to child abuse and defilement in Meru County, where police "neglected...or otherwise failed" to investigate or protect the children in any way.  The High Court of Kenya held that the police have a duty to investigate allegations of sexual abuse made by female complainants, stating that “by failing to enforce existing defilement laws, the police have contributed to the development of a culture of tolerance for pervasive sexual violence against girl children and impunity.”



Masusu v. Masusu High Court of Botswana at Lobatse (2007)

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

The appellant-wife sought and was granted a divorce from her husband on the grounds of domestic violence and that he did not financially support her or their two children. The wife appeals a decision by the Customary Court of Appeal granting the house to the respondent-husband on the grounds that under customary law, a wife who divorces her husband is at fault because a wife is supposed to remain in her marital home regardless of her husband's actions. The High Court found that the Customary Court's reasoning discriminated against women because it automatically faulted the wife for filing a divorce no matter what her husband did and ordered the marital home be sold and the profits given to the appellant-wife.   



International Case Law

Korneykova and Korneykov v. Ukraine European Court of Human Rights (2016)

Abortion and reproductive health rights, Custodial violence

The first applicant, a woman in her fifth month of pregnancy, was taken into police custody on suspicion of robbery and subsequently detained pending trial.  The woman gave birth to her son, the second applicant, while in detention.  The woman claimed that she had been shackled to bed during her stay in the maternity hospital, placed in a metal cage during court hearings before and after giving birth, and that the physical conditions of her and her child’s detention and the medical care provided to the child in pre-trial detention had been inadequate.  The Court considered that shackling to a gynecological examination chair before and after birth giving on the basis that she could escape or behave violently was unjustified, inhuman and degrading given the woman’s condition, and that holding a person in a metal cage during a trial constituted an affront to human dignity. The Court also held that keeping the woman’s son in detention without any monitoring by a pediatrician for almost three months following his birth and without adequate healthcare constituted a violation of his rights.