Women and Justice: Keywords

Domestic Case Law

Ayotte v. Planned Parenthood of Northern New England Supreme Court of the United States (2006)

Abortion and reproductive health rights, Gender discrimination

The respondents were an obstetrician/gynecologist and three reproductive health service clinics. They challenged a New Hampshire law that required minors to get parental consent before procuring an abortion on the grounds that the law did not provide an emergency health exception despite subjecting minors to significant health risks. The law only outlined an exception for the purpose of saving a minor’s life. The Supreme Court remanded the case to the lower court for further proceedings to determine whether the New Hampshire legislature would have wanted the law to include a medical emergency exception. The Court further instructed that the lower court should refrain from striking down the law in its entirety if only some sections of the law are unconstitutional. The Court stated that the law could not prevent minors from obtaining an abortion due to a medical emergency.

Hodgson v. Minnesota Supreme Court of the United States (1990)

Abortion and reproductive health rights, Gender discrimination

The petitioners were a group of doctors, clinics, pregnant minors, and the mother of a pregnant minor. They challenged a Minnesota law that required minors seeking an abortion to notify and receive consent from both biological parents at least 48 hours before the procedure. Minors who were victims of parental abuse were instead required to give notice to the authorities and declare their abuse. Subdivision 6 of the law provided that, if a court enjoined the two-parent notification requirement, a minor could bypass parental notification with a court order by proving that (i) they are “mature and capable of giving informed consent” or (ii) it would be in their best interest to obtain an abortion without notifying their parents. The petitioners argued that the law was unconstitutional for violating the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The District Court struck down and enjoined the enforcement of the law in its entirety, but the Eighth Circuit Court of Appeals reversed because of the section allowing minors to obtain a court order bypassing the two-parent-permission system. The Supreme Court affirmed, holding that while the two-parent-permission system was burdensome and not reasonably related to legitimate state interest, the remainder of the law was constitutional because it allowed minors to approach the court for authorization to obtain an abortion without parental notification.

Cправа № 243/9975/16-к (Case No. 243/9975/16-к) Верховний Суд (Supreme Court of Ukraine) (2019)

Sexual violence and rape

The defendant, a boy under the age of 18 (juvenile: 16-18 years), committed lewd acts against a girl under the age of 14 (minor). The first-instance court imposed a punishment of five years imprisonment (Part 2 of Article 156 of the Criminal Code of Ukraine - Criminal Code). However, the court of first instance released the defendant from serving a sentence and instead imposed a probationary period of two years (Articles 75, 104 of the Criminal Code). The Court of Appeal left the decision unchanged. The victim's representative demanded a review of the case due to the mildness of the punishment, failure to take into account the gravity of the crime, and aggravating circumstances. The Supreme Court noted that a person who has committed a crime must be given a punishment that is necessary and sufficient for his correction and prevention of new crimes (Articles 50, 65 of the Criminal Code). The sentence must be based on the principles of proportionality and individualization, the type and size of the punishment should correspond to the nature of the crime, its dangerousness, and the identity of the perpetrator. When choosing a coercive measure (enforcement), the mitigating circumstances (sincere remorse and the commission of the crime by a minor) and aggravating circumstances (not established during the trial) are essential considerations. An individual analysis of the situation showed a low risk of committing a repeated criminal offense. The Supreme Court found that the defendant presented a low risk for re-offending because the defendant was a child under 18 who, according to psychological analysis, was capable of re-education, moreover it was the first offense he committed, and he sincerely repented. Thus, the Supreme Court rejected the victim’s petition to increase the sentence. This case is important because it shows the principle of proportionality and efficiency of punishment, and emphasizes the importance of preventing unreasonably heavier punishment.

Особа, що не досягла 18 років, (неповнолітня: 16-18 років) вчинила розпусні дії щодо особи, яка не досягла 14 років (малолітньої особи). Суд першої інстанції призначив покарання у виді позбавлення волі на строк 5 років (ч.2 ст. 156 КК), але засудженого було звільнено від відбування покарання з випробуванням з іспитовим строком тривалістю 2 роки (ст. 75, 104 КК). Апеляційний суд залишив рішення без змін. Представник постраждалої особи вимагав перегляду справи через м’якість покарання, неврахування тяжкості злочину та обтяжуючих обставин. Верховний суд зазначив, що особі, яка вчинила злочин, повинно бути призначено покарання, необхідне й достатнє для її виправлення та попередження вчинення нових злочинів (ст. 50, 65 КК ); виходячи із принципів співмірності й індивідуалізації покарання за своїм видом та розміром має бути адекватним (відповідним) характеру вчинених дій, їх небезпечності та даним про особу винного. При виборі заходу примусу мають значення й повинні братися до уваги обставини, які його пом'якшують (щире каяття та вчинення злочину неповнолітнім) та обтяжують (в ході судового розгляду не встановлено). Індивідуальний аналіз ситуації показав, що ризик вчинення повторного кримінального правопорушення низький, а тому перевиховання засудженого без ізоляції від суспільства цілком можливе, тому вимоги представника постраждалої особи не були задоволені. Ця справа є важливою, бо показує дію принципу пропорційності покарання злочину і недопущення необґрунтовано більш тяжкого покарання.

In der Beschwerdesache der A (In the Matter of A.) [E 1948/2018-13] (2019)

Female genital mutilation or female genital cutting, Gender discrimination, Gender-based violence in general, International law, Sexual violence and rape, Statutory rape or defilement

The appellant, a Somali girl, applied to the Austrian government for asylum and international protection due to her precarious situation in Yemen. The appellant’s family fled to Yemen when she was four years old because her family was discriminated against in Somalia due to their affiliation with a Madhibaan minority clan. The plaintiff’s brother and father were killed and no other family remained in Somalia. Further, female genital mutilation is a common practice in Somalia. The appellant’s application for asylum and international protection was rejected by the relevant asylum authorities and the Austrian Federal Administrative Court on the grounds that the nature of the persecution was found to be insufficiently intense or severe. It was further decided that the appellant’s genital mutilation had already happened , so the international protection against threatened genital mutilation could not apply. However, the Austrian Constitutional Court ultimately revoked this judgment, finding (among other conclusions) that the circumstances of this case were not given sufficient consideration, in particular, the disregard of the fact that women of minority clans in the relevant geographic areas were particularly vulnerable to risks of torture, rape, murder, and forced marriages. The lower court also failed to consider sufficiently the possibility of repeated genital mutilation. Finally, the Court referred to UNHCR’s finding that prior genital mutilation was an equally reasonable justification for the application for asylum and international protection because the victim suffered life-long physical and mental damages.

Die Beschwerdeführerin, ein somalisches Mädchen, beantragte bei der österreichischen Regierung Asyl und internationalen Schutz aufgrund ihrer prekären Situation im Jemen. Die Familie der Klägerin floh in den Jemen, als sie vier Jahre alt war, weil ihre Familie in Somalia aufgrund ihrer Zugehörigkeit zu einem Clan der Madhibaan-Minderheit diskriminiert wurde. Der Bruder und der Vater der Klägerin wurden getötet, und keine andere Familie blieb in Somalia. Außerdem ist die weibliche Genitalverstümmelung in Somalia eine gängige Praxis. Der Antrag der Klägerin auf Asyl und internationalen Schutz wurde von den zuständigen Asylbehörden und dem österreichischen Bundesverwaltungsgericht mit der Begründung abgelehnt, dass die Art der Verfolgung nicht ausreichend intensiv oder schwer sei. Außerdem wurde festgestellt, dass die Genitalverstümmelung der Beschwerdeführerin bereits stattgefunden hatte, so dass der internationale Schutz gegen drohende Genitalverstümmelung nicht zur Anwendung kommen konnte. Der österreichische Verfassungsgerichtshof hob dieses Urteil jedoch schließlich auf, da er (neben anderen Schlussfolgerungen) feststellte, dass die Umstände dieses Falles nicht ausreichend berücksichtigt wurden, insbesondere die Tatsache, dass Frauen von Minderheitenclans in den betreffenden geografischen Gebieten besonders gefährdet sind, gefoltert, vergewaltigt, ermordet und zwangsverheiratet werden. Die Vorinstanz hat auch die Möglichkeit wiederholter Genitalverstümmelung nicht ausreichend berücksichtigt. Schließlich verwies das Gericht auf die Feststellung des UNHCR, dass eine frühere Genitalverstümmelung eine ebenso angemessene Begründung für den Antrag auf Asyl und internationalen Schutz sei, da das Opfer lebenslange körperliche und seelische Schäden erleidet.

Mwafenga v. R High Court of Malawi Criminal Division (2017)

Trafficking in persons

The appellant challenged his concurrent sentences for six violations of the Trafficking in Persons Act as manifestly excessive. The sentences ranged from 10-14 years of imprisonment including hard labor. The maximum penalty for a standard count of trafficking under article 14 of the Act is 14 years, the maximum penalty for trafficking children under 18 years is 21 years (article 15), and article 16 lists aggravating circumstances that increase the penalty for human trafficking to life imprisonment. The appellate court found that the lower court had inaccurately noted which charges corresponded with each victim, which resulted in confusing and improper sentencing decisions. First, the trial court erroneously sentenced the appellant for article 14 trafficking for Counts 1, 2, 5, and 6, but the victims were children and thus these charges should have been sentenced with reference to article 15’s 21 year maximum. In another error regarding Counts 3 and 4, the trial court found the appellant guilty of trafficking an adult of unsound mind in violation of article 16(1)(c), but the conviction should have been for article 14 trafficking of an adult because the adult victim was of sound mind. Ultimately the appellate court affirmed four of the six sentences related to trafficking children because the aggravating factors meant that those maximum penalties for were substantially longer than 14 years, rendering these sentences judicious. For the erroneous article 16 convictions, the appellate court substituted two article 14 convictions and imposed a substitute sentence of 10 years for each count to run concurrently. The court rejected the appellant’s argument that the sentences were manifestly excessive because they were well below the maximum available sentences.

Juma v. Republic High Court of Malawi Criminal Division (2018)

Statutory rape or defilement

The 21-year-old appellant pleaded guilty to the defilement of a 15-year-old girl with whom he had an ongoing sexual relationship and who was, by the time of the trial, pregnant as a result. The trial court sentenced the appellant to six years imprisonment with hard labor. He unsuccessfully appealed to reduce the sentence, claiming the following mitigating factors: (i) his willingness to financially support the girl and her baby; (ii) his age; and (iii) his status as a first-time offender. The court rejected this appeal on the grounds that appellate courts may only interfere with sentences that are either “manifestly excessive (or inadequate) or otherwise erroneous in principle,” citing cases in which the state had successfully enhanced initial sentences from six to eight years as evidence that this sentence was not unusually excessive or otherwise erroneous.

Kambalame v. Republic High Court of Malawi Criminal Division (2017)

Gender discrimination, Statutory rape or defilement

The appellant pleaded guilty to raping and impregnating a 12-year-old girl for which he was originally sentenced to 12 years imprisonment with hard labor. On appeal, the appellant argued that his sentence was excessive in light of mitigating factors. While recognizing the victim’s age and pregnancy as aggravating factors, the appeals court reduced his sentence to nine years imprisonment. The court articulated several rules regarding mitigation in favor of this outcome based on the citation of cases from the appellant. First, the court stated that guilty pleas should reduce a sentence by one-third, even in the case of serious crimes. Second, citing in Rep v. Bamusi Mkwapatira, the court stated that all first-time offenders, regardless of the severity of the offense, should benefit from mitigation. Finally, the court identified the appellant, who was 33 years old at the time of the offense, as “youthful,” asserting that “men especially grow slowly mentally and at 35 they are at their prime experimenting with life.” Cautioning against mitigating too significantly, however, the court explicitly recognized the victim’s pregnancy, which “disturbed [her] life […] physically and psychologically,” and her very young age as aggravating factors. Thus, the court reduced the sentence by one-quarter, resulting in a nine-year sentence, rather than one-third or more.

Kaliyati v Republic High Court of Malawi (2020)

Statutory rape or defilement

The appellant was convicted and sentenced to eight years imprisonment including hard labor for defilement of an11-month-old girl. On appeal, the appellant’s primary argument was that the testimony of the child’s mother was not sufficiently corroborated and therefore the conviction was not supported by the evidence. He also argued that the sentence was excessive. Regarding the corroboration rule in sexual violence cases, the court announced that it was a longstanding practice based on blatant discrimination against women, who are the predominant victims of such offenses and assumed to be unreliable witnesses. The court found the corroboration rule unlawful under existing constitutional (article 20), evidence, and criminal laws. Instead, the court held that courts should take caution basing convictions on uncorroborated evidence to ensure satisfaction of the burden of proof. Regarding the appellant’s arguments, the court found that there was not sufficient evidence of penetration to sustain the defilement conviction, thus acquitting the appellant of defilement. Instead, the court found that the evidence supported a conviction for the lesser offense of indecent assault, for which the court imposed a sentence of three years of imprisonment out of a maximum of 14 years. The court chose a substantially lower sentence than the maximum due to what it described as mitigating factors, including that: (i) the appellant was a first-time offender; (ii) the child was largely unharmed physically according to the medical report; (iii) there was no evidence that the child would subsequently suffer an STI or psychological impacts; and (iv) the crime was not premeditated in the court’s view, but a crime of opportunity.

File No. PL. ÚS 24/14 Ústavný súd Slovenskej republiky (Constitutional Court of the Slovak Republic) (2014)

Gender discrimination, LGBTIQ

In Slovakia, a petition signed by at least 350,000 voters may initiate a referendum as long as the questions relate to public interest. However, the subject of the referendum may not be basic rights and freedoms. The Constitutional Court reviews whether the subject of the referendum conforms to the Constitution. In 2014, 408,000 voters signed a petition asking the President to announce a referendum on the following questions: 1) Do you agree that the term “marriage” may not be used to designate any other form of cohabitation of persons other than the union between one man and one woman?; 2) Do you agree that pairs or groups of persons of the same sex may not be allowed to adopt children and subsequently to bring them up?; 3) Do you agree that no other form of cohabitation of persons other than marriage should be accorded the special protection, rights and obligations which are accorded solely to marriage and spouses by the legal system as at 1 March 2014?; and 4) Do you agree that schools may not require children to attend lessons in the field of sexual behavior or euthanasia, if their parents and the children themselves do not agree with the teaching content? The President asked the court to consider whether the first, second, and third questions were admissible as they related to the right to privacy, and whether the last question was admissible as it might interfere with the right to education. The Constitutional Court balanced the inalterability of constitutional provisions guaranteeing fundamental rights and freedoms with the impossibility of rejecting every question which might minimally affect a right or freedom. The court held that the irrevocability of human rights means the standard of human rights is as set in the constitutional text. Any referendum questions that would lead to a broadening of human rights would be constitutionally acceptable, and any that would reduce human rights would not be constitutionally acceptable. Thus, the first, second, and fourth question were declared acceptable, and the third unacceptable. This case is available through the search function on the Constitutional Court of the Slovak Republic website here by searching for the case file number (PL. ÚS 24/2014).

Re Castlemaine Steiner School Ltd. Victorian Civil and Administrative Tribunal: Human Rights Division (2015)

Gender discrimination

The students enrolled at Castlemaine Steiner School Ltd (“Castlemaine”) for kindergarten and prep were originally approximately 75% boys and 25% girls. Castlemaine wished to offer more places to female students in order to maintain gender balance in their classes. Such conduct would constitute discrimination on the basis of gender in the provision of education and services under the Equal Opportunity Act 2010 (Vic) (“EO Act”), unless an exemption applies. Castlemaine sought an exemption under section 89 of the EO Act, contending that an exemption would enable it to promote social cohesion and gender balance, and would provide boys and girls opportunities to be with a meaningful number of children of their own gender. In assessing the application, the Victorian Civil and Administrative Tribunal (“VCAT”) noted that they were required to interpret the law, so far as it is possible to do so, compatibly with section 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). In addition, VCAT was required to consider whether the interests served by the exemption are sufficient to justify taking the relevant conduct out of the prohibitions of the EO Act. Ultimately, VCAT granted the exemption for the maximum period of five years, on the basis that the proposed exemption offered a reasonable chance of to achieving gender balance.

Baby A and The Cradle-The Children Foundation v. Attorney General, Kenyatta National Hospital, and the Registrar of Births and Deaths High Court of Kenya at Nairobi (Constitutional and Human Rights Division) (2014)

Forced sterilization, LGBTIQ

Baby “A” was born with both male and female genitalia. Kenyatta National Hospital issued the baby’s mother with various documents used in the process of carrying out genitogram tests, x-rays, and scans on the baby, and a question mark was entered in the column indicating the child’s sex. To date, the child has never been issued a birth certificate. The petitioners requested a declaration of the court that the Constitution protects and recognizes intersex children. The petitioners claimed that the entry of a question mark on the child’s medical treatment notes offended the child’s rights to legal recognition, eroded their dignity, and violated the right of the child not to be subjected to inhuman and degrading treatment. The petitioners argued that corrective surgery for intersex children was not necessary unless there was a therapeutic need to conduct the surgery. Finally, they argued that forced genital normalization, involuntary sterilization, unethical experimentation, medical display, reparative therapies, and conversion therapies often lead to irreversible changes to the body and interferes with a child’s right to family and reproductive health rights generally. The court, noting the “silent issues faced by intersex” people stated that an intersex children are “no different than any other” children with a constitutional right to legal recognition and the benefits of nationality, including the right not to face intersex discrimination. However, the court found that the respondent did not violate the petitioners’ fundamental rights and freedom because there was no evidence that the child’s mother had tried to obtain, and therefore had never been unlawfully denied, the child’s legal documents. The court first ordered the First Respondent to report to the court within 90 days about (i) the agency responsible for collecting data on intersex people, (ii) a legislative proposal for registering intersex people as a sexual category, and (iii) a legislative proposal for intersex “corrective surgery” regulations. Second, the court ordered the child’s mother to register the with the Third Respondent and file a copy of the approved registration with the court within 90 days.

KI 52/12 Gjykata Kushtetuese (Constitutional Court) (2013)

Divorce and dissolution of marriage, Gender discrimination, Harmful traditional practices, International law

The applicant (wife), her husband, and their children lived in Austria and held dual Austrian and Kosovar citizenship. After marriage problems arose between the couple, the husband took the children away from the wife while they were in Kosovo and kept them away from her. The husband’s family wanted to resolve the matter according to Albanian tradition, causing the wife to fear that the children would stay with the father. She thus initiated legal proceedings for the children’s return to Austria. Pursuant to The Hague Convention on the Civil Aspects of International Children Abduction, the Austrian Ministry of Justice requested the Kosovar Ministry of Justice to assist in the children’s return, and the Kosovar authorities initiated proceedings in the country’s courts for such an order. The District Court held hearings in the presence of the husband but without the wife or prosecutor, and ruled for the husband, finding that no abduction had taken place. The Supreme Court quashed the decision and remanded the case for retrial. Following retrial, the District Court again ruled that, under The Hague Convention, returning the children was unnecessary, as it would have a negative impact on the children because they had developed a strong emotional bond with their father, they were attending school in Kosovo, and the couple had marital problems. The Supreme Court affirmed, finding the return of the children might cause them psychological damage. The wife then filed a request for repetition of procedure, arguing that she and the prosecutor were not given the opportunity to participate in the session in which the District Court reviewed the request to return the children. The Supreme Court rejected the request, stating that the procedural parties were the Ministry of Justice and the husband, not the wife, and that the participation of the prosecutor was not legally obligatory. The wife appealed to the Constitutional Court, alleging that her rights guaranteed under Article 31 of the Constitution of Kosovo (Right to Fair and Impartial Trial), and under Article 6 (Right to Fair Trial) of the European Convention on Human Rights and Fundamental Freedoms, had been violated. The Constitutional Court held that by not being present at the session, the wife was unable to refute her husband and was deprived of the possibility of convincing the District Court that the children should be returned. The wife was thus placed at a substantial disadvantage vis-à-vis her opponent, in violation of the principle of equality of arms, which is one aspect of the right to fair trial under European Court of Human Rights case law. Finding the wife’s right to a fair trial violated, the Constitutional Court accordingly invalidated the Supreme Court’s decisions and ordered the District Court to repeat the proceedings and invite the wife to participate. (Also available in Srpski, English, and Türkçe.)

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.

平成24年(ク)984 (2012 (Ku) No. 984) 最高裁 (Supreme Court of Japan) (2013)

Property and inheritance rights

In this appeal, a child born to unmarried parents 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.


平成29年(受)2015 (2017 (Ju) No. 2015) 最高裁 (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, who 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 U.S., 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.

A gg. Bundesasylamt (A. v. Federal Asylum Agency) [C16 427.465-1/2012] Asylgerichtshof (Asylum Court) (2012)

Forced and early marriage, Gender discrimination, Gender-based violence in general, Harmful traditional practices, International law

The minor applicant, a member of the Hazara ethnic group, illegally immigrated to Austria with her parents and four minor siblings from Afghanistan when she was approximately nine years old. The Federal Asylum Agency of Austria (“FAAA”) denied her and her family’s petitions for asylum. The Asylum Court reversed the denial, finding that the FAAA erred in summarily denying asylum based on the applicant’s statements without considering outside credible reports or sources relevant to the applicant’s asylum claim. The Asylum Court found that the applicant belonged to a particular social group based on her gender, age, and cultural and religious origins, and that she would have to live in accordance with the family’s conservative values if she returned to Afghanistan. As such, the applicant would not have the opportunity to pursue any goals outside the religion and customs of her community nor would she be able to protect herself against violence or undesired restrictions. Furthermore, a return would mean that the applicant would be raised to be a homemaker and married to a man chosen by her father and grandfather. The Court concluded that, if returned to Afghanistan, the applicant would find herself in a situation of permanent latent threats, structural violence, and immediate restrictions that would practically make it impossible for her to exercise her human rights. In granting the applicant’s asylum claim, the Court considered both gender-specific and child-specific factors that were not brought forth by the applicant, but rather gathered from credible investigative sources.

Die minderjährige Beschwerdeführerin ist afghanische Staatsbürgerin und Angehörige der Volksgruppe der Hazara. Sie wanderte gemeinsam mit ihren Eltern und vier minderjährigen Geschwistern illegal nach Österreich ein, als sie ungefähr neun Jahre alt war. Das Österreichische Bundesasylamt lehnte ihren Asylantrag und den ihrer Familie ab. Der Asylgerichtshof hat der Beschwerde der Beschwerdeführerin stattgegeben und ihr den Status einer Asylberechtigten zuerkannt. Nach Auffassung des Asylgerichtshofs lehnte das Bundesasylamt fehlerhaft den Antrag aufgrund der Angaben der Beschwerdeführerin ab, ohne weitere externe Berichte oder sonstige Quellen in Betracht zu ziehen, die ebenso relevant für die Beurteilung des entsprechenden Asylantrags sind. Der Asylgerichtshof stellte fest, dass die Beschwerdeführerin einer bestimmten sozialen Gruppe aufgrund ihres Geschlechts, Alters und kultureller oder religiöser Herkunft angehört, sodass sie in Übereinstimmung mit den konservativen Werten ihrer Familie leben müsste, sollte sie nach Afghanistan zurückkehren. Unter diesen Umständen würde ihr das Verfolgen von Zielen außerhalb der Religion und den Gepflogenheiten ihrer Gemeinschaft verwehrt. Sie wäre des Weiteren nicht in der Lage, sich gegen Gewalt oder ungewollte Restriktionen zu wehren. Außerdem würde eine Rückkehr für sie bedeuten, als Hausfrau und Mutter erzogen zu werden, bis sie an einen Mann verheiratet würde, den entweder Vater oder Großvater für sie aussuchen. Der Gerichtshof hat daher festgestellt, dass die Beschwerdeführerin, sollte sie nach Afghanistan zurückkehren, sich in einem Klima ständiger latenter Gefahr, struktureller Gewalt und unmittelbarer Einschränkungen wiederfinden würde, die es ihrer praktisch unmöglich machen, ihre Menschenrechte auszuüben. Indem der Gerichtshof, dem Antrag der Beschwerdeführerin stattgab, hat er sowohl geschlechtsspezifische und kind-spezifische Faktoren erwogen, die nicht von der Beschwerdeführerin vorgebracht wurden, allerdings aus glaubwürdigen investigativen Quellen stammen.

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.

Barriya v. The Kadi of the Sharia Moslem Court Supreme Court of Israel (1955)

Gender discrimination

The aunt of three children applied to a Moslem Religious Court to be appointed as their guardian. The children’s mother argued that she was entitled to the guardianship under the Women’s Equal Rights Law. The mother, believing that the religious judge (the Kadi) would apply religious law and disregard the Women’s Equal Rights Law, applied for an order staying or setting aside the proceedings of the religious court. The court held that the issue was not ripe for review, as there was no indication that the Kadi would disregard civil law and rely only upon religious law. The order in which the Kadi decided to proceed was a matter of procedure with which the court would not interfere.

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.”

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

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

In an application under Article 102 of the Constitution, the Bangladesh National Women's Lawyers Association (BNWLA) petitioned the Supreme Court of Bangladesh (High Court Division) to address the exploitation and abuse endured by child domestic laborers in Bangladesh. The BNWLA argued that child domestic workers are subjected to economic exploitation, physical and emotional abuse, and the deprival of an education in violation of their fundamental constitutional rights. In support of these arguments, it presented multiple reports of extreme abuse suffered by child domestic workers. In deciding this case, the Court reviewed the current laws in Bangladesh, including the Labour Act, 2006, which fails to extend labor protections to "domestic workers," including children, and lacks an effective implementation and enforcement system. The Court directed the government of Bangladesh to take immediate steps to increase its protection of the fundamental rights of child domestic workers including prohibiting children under the age of 12 from working in any capacity including domestic settings; supporting the education of adolescents; implementing the National Elimination of Child Labour Policy 2010 and applying the Labour Act, 2006 to domestic workers. Additionally, the Court directed the government to monitor and prosecute incidents of violence against child domestic workers, maintain a registry of domestic workers and their whereabouts to combat trafficking, promulgate mandatory health check-ups and strengthen the legal framework relating to child domestic workers.

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.

Reference Guides

A Practical Approach to Evidence for Judicial Officers: Common Law Sources and African Applications (2023)

Gender discrimination, Sexual violence and rape, Statutory rape or defilement

The manual for judges and judicial officers explains the common-law origins of evidence law, then offers contemporary country-specific analyses of thirteen southern and eastern African countries with a shared common-law colonial history: Botswana, Eswatini, Kenya, Lesotho, Malawi, Mauritius, Namibia, Seychelles, South Africa, Tanzania, Uganda, Zambia, and Zimbabwe. It includes guidance for gender-related issues such as the cautionary rule, protection of complainants in sexual violence cases, character evidence, treatment of child witnesses, and similar fact evidence. The Judicial Institute for Africa and the Women & Justice Collection collaborated on this manual.

A Practical Approach to Evidence for Judicial Officers: Common Law Sources and African Applications (2023)

Sexual violence and rape, Statutory rape or defilement

The manual for judges and judicial officers explains the common-law origins of evidence law, then offers contemporary country-specific analyses of thirteen southern and eastern African countries with a shared common-law colonial history: Botswana, Eswatini, Kenya, Lesotho, Malawi, Mauritius, Namibia, Seychelles, South Africa, Tanzania, Uganda, Zambia, and Zimbabwe. It includes guidance for gender-related issues such as the cautionary rule, protection of complainants in sexual violence cases, character evidence, treatment of child witnesses, and similar fact evidence. The Judicial Institute for Africa and the Women & Justice Collection collaborated on this manual.

A Practical Approach to Evidence for Judicial Officers: Common Law Sources and African Applications (2023)

Gender discrimination, Sexual violence and rape, Statutory rape or defilement

The manual for judges and judicial officers explains the common-law origins of evidence law, then offers contemporary country-specific analyses of thirteen southern and eastern African countries with a shared common-law colonial history: Botswana, Eswatini, Kenya, Lesotho, Malawi, Mauritius, Namibia, Seychelles, South Africa, Tanzania, Uganda, Zambia, and Zimbabwe. It includes guidance for gender-related issues such as the cautionary rule, protection of complainants in sexual violence cases, character evidence, treatment of child witnesses, and similar fact evidence. The Judicial Institute for Africa and the Women & Justice Collection collaborated on this manual.

A Practical Approach to Evidence for Judicial Officers: Common Law Sources and African Applications (2023)

Gender discrimination, Sexual violence and rape, Statutory rape or defilement

The manual for judges and judicial officers explains the common-law origins of evidence law, then offers contemporary country-specific analyses of thirteen southern and eastern African countries with a shared common-law colonial history: Botswana, Eswatini, Kenya, Lesotho, Malawi, Mauritius, Namibia, Seychelles, South Africa, Tanzania, Uganda, Zambia, and Zimbabwe. It includes guidance for gender-related issues such as the cautionary rule, protection of complainants in sexual violence cases, character evidence, treatment of child witnesses, and similar fact evidence. The Judicial Institute for Africa and the Women & Justice Collection collaborated on this manual.

A Practical Approach to Evidence for Judicial Officers: Common Law Sources and African Applications (2023)

Gender discrimination, Sexual violence and rape, Statutory rape or defilement

The manual for judges and judicial officers explains the common-law origins of evidence law, then offers contemporary country-specific analyses of thirteen southern and eastern African countries with a shared common-law colonial history: Botswana, Eswatini, Kenya, Lesotho, Malawi, Mauritius, Namibia, Seychelles, South Africa, Tanzania, Uganda, Zambia, and Zimbabwe. It includes guidance for gender-related issues such as the cautionary rule, protection of complainants in sexual violence cases, character evidence, treatment of child witnesses, and similar fact evidence. The Judicial Institute for Africa and the Women & Justice Collection collaborated on this manual.

A Practical Approach to Evidence for Judicial Officers: Common Law Sources and African Applications (2023)

Gender discrimination, Sexual violence and rape, Statutory rape or defilement

The manual for judges and judicial officers explains the common-law origins of evidence law, then offers contemporary country-specific analyses of thirteen southern and eastern African countries with a shared common-law colonial history: Botswana, Eswatini, Kenya, Lesotho, Malawi, Mauritius, Namibia, Seychelles, South Africa, Tanzania, Uganda, Zambia, and Zimbabwe. It includes guidance for gender-related issues such as the cautionary rule, protection of complainants in sexual violence cases, character evidence, treatment of child witnesses, and similar fact evidence. The Judicial Institute for Africa and the Women & Justice Collection collaborated on this manual.


Children First Act 2015 (2015)

Domestic and intimate partner violence, Statutory rape or defilement

The 2015 Act imposes certain reporting obligations on organizations and groups of professionals that provide ‘relevant services’ to children (listed in Schedule 1 of the Act). The Act requires, inter alia, the provision of child safeguarding statements (Part 2), reporting by ‘mandated persons’ and ‘authorized persons’ (Part 3); and inter-departmental/sectoral implementation plans (e.g., information-sharing). The legislation also abolishes the common-law defense of “reasonable chastisement.” (Section 28).

Civil Registration Act 2019 (2019)

Abortion and reproductive health rights, Gender discrimination, LGBTIQ

The Civil Registration Act 2019 made technical amendments to the Civil Registration Act of 2004, the purposes of which were to facilitate legislation to provide for registration of the birth of donor-conceived children, and to enable both partners in a same-sex female relationship to have their details recorded in such registrations. Specifically, Section 10 provides for the recording of a ‘parent’s’ details and any parent may so register although the options of ‘mother’ and ‘father’ are still available.

Adoption (Amendment) Act 2017 (2017)

Gender discrimination, LGBTIQ

The 2017 Act amends and extends the law in relation to the adoption of children and made conforming amendments to other legislation. Among other things, the Act, in conjunction with the Children and Family Relationships Act 2015 (available here), enables adoption by same-sex couples. The Act, in particular, amends use of heterosexual phrases in legislation, introducing more neutral terminology for words such as “parent” and “relative” (Section 3).

Criminal Law (Human Trafficking) (Amendment) Act 2013 (2013)

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

The Human Trafficking Amendment Act amends the Criminal Law (Human Trafficking) Act 2008 (available here) and the Child Trafficking and Pornography Act 1998 (available here). The Act of 2008 defined human trafficking and exploitation for the purposes of trafficking. It also contains specific provisions for the trafficking of children. The Human Trafficking Amendment Act of 2013 amends the 2008 Act by (a) expanding the definitions of “labour exploitation” to include forced begging and of “exploitation” to include forced participation in criminal acts for profit (in line with the EU Human Trafficking Directive) and (b) adding aggravating factors (e.g., where a public official trafficks for sexual or labor exploitation).

Išmokų vaikams įstatymas (Law on Benefits for Children) (1994)

Property and inheritance rights

The legislation sets out various child benefits, such as a one-time payment for the birth or adoption of a child (EUR 462 in 2022) and entitlement to a monthly payment until a child reaches 18 years old (EUR 73,5 in 2022).

Šiame teisės akte nustatytos įvairios išmokos vaikui, pavyzdžiui, vienkartinė išmoka už vaiko gimimą ar įvaikinimą (462 EUR 2022 m.) ir teisė į mėnesinę išmoką, kol vaikui sueis 18 metų (73,5 EUR 2022 m.).

Apsaugos nuo smurto artimoje aplinkoje įstatymas (Protection Against Domestic Violence Act) (2011)

Domestic and intimate partner violence

This Act aims to protect any persons who are victims of domestic violence, including persons having a common household. It also defines “violence” as “intentional physical, mental, sexual, economic, or other influence exerted upon a person by act or omission, due to which the person suffers physical, material, or non-pecuniary damage.” Under the Act, victims do not have to submit a private complaint, but public prosecutors must charge the offenders. In addition, the victim of domestic abuse has the right to receive specialized support such as consulting a psychologist or receiving legal assistance. English translation available here.

Šiuo įstatymu siekiama apsaugoti visus asmenis, kurie yra smurto artimoje aplinkoje aukos, įskaitant asmenis, turinčius bendrą namų ūkį. Šis įstatymas taip pat apibrėžia jog „smurtas“ yra tiek veikimu, tiek neveikimu atliekamas „tyčinis fizinis, psichinis, seksualinis, ekonominis ar kitas poveikis, dėl kurio asmuo patiria fizinę, turtinę ar neturtinę žalą“. Pagal įstatymą nukentėjusiesiems nereikia pateikti privataus skundo, tačiau prokurorai privalo pateikti kaltinimus pažeidėjams. Be to, smurto artimoje aplinkoje auka turi teisę gauti specializuotą kompleksinę psichologo, teisinę ir kitą pagalbą.

Bundes-Verfassungsgesetz (B-VG) (Federal Constitutional Act) (1945)

Gender discrimination

Article 7(1) states that all citizens are equal before the law and prohibits sex-based privileges (among other factors). Article 7(2) states that the federal government and all federal states and municipalities affirm actual equality between women and men. It further stresses that measures to achieve factual equality between women and men are legal. Regarding job titles or academic titles, Article 7(3) requires that the gendered nouns in those titles reflect the gender of the respective holder are in accordance with law. Article 14(6) states that public schools, kindergartens, and similar institutions shall be accessible to all children regardless of sex (among other factors).

Artikel 7 Abs. 1 macht deutlich, dass alle Bürger vor dem Gesetz gleich sind und verbietet gleichzeitig u.a. geschlechterbezogene Privilegien. Nach Artikel 7 Abs. 2 betonen die Bundesregierung, die Bundesstaaten sowie die Gemeinden die Gleichheit von Mann und Frau. Weiterhin betont das Gesetz, dass Maßnahmen, die dem Ziel dienen, eine faktische Gleichstellung von Mann und Frau zu erreichen, rechtmäßig sind. Betreffend Jobbezeichnungen oder akademischer Titel macht Artikel 7 Abs. 3 deutlich, dass eine geschlechterspezifische Anpassung dieser ebenso rechtmäßig ist. Artikel 14 Abs. 6 folgend müssen öffentliche Schulen, Kindergärten und vergleichbare Einrichtungen für alle Kinder egal welchen Geschlechts verfügbar sein.

Trafficking in Persons Act (2015)

Abortion and reproductive health rights, Trafficking in persons

The Trafficking in Persons Act provides for the prevention and elimination of human trafficking, in addition to establishing the National Coordination Committee against Trafficking in Persons which serves to coordinate and manage related issues in Malawi (the “Committee”). The Act applies to offenses committed at least partly in Malawi (or in contemplation of committing a crime inside Malawi), committed by a citizen of Malawi, or involving the trafficking of a citizen of Malawi. The Committee is responsible for coordinating and overseeing investigations and prosecutions under the Act, as well as formulating policy, educational programming, and recommendations with Malawi on the topic, amongst other responsibilities. The Act provides the Committee with affirmative responsibilities to trafficked persons, including access to adequate health care and shelter, protection from discrimination, and legal support. The Act criminalizes the trafficking of other persons, punishable up to 14 years of imprisonment. The Act provides a list of aggravating factors that can extend the punishment by life imprisonment, including if a trafficked person becomes pregnant or is forced to terminate a pregnancy. There are additional penalties associated with trafficking in children, including a maximum sentence of 21 years imprisonment, as well as for benefiting from exploitation or trafficking and providing support for trafficking offenses. The Act further regulates international transportation organizations, and provides specialized investigatory and judicial mechanisms for the enforcement of the Act.

قانون منع الاتجار بالبشر رقم 9 لسنة 2009 (Anti-Human Trafficking Law No. 9 of 2009) (2009)

Trafficking in persons

Article 8 provides that traffickers of adults over 18 are subject to a sentence of not less than six months, a fine of 1,000 – 5,000 (JD), or both. Human trafficking crimes for this purpose are defined in Article 3 (A)(1) to include coercion, threat or force, or through giving or receiving gifts or privileges to secure consent. Article 9 provides for a punishment consisting of temporary imprisonment with hard labor for a not less than 10 years, and a fine between 5000 – 20,000 (JD) if the victim of trafficking is a female under 18, even without any aggravating factors or the use or threat or force (as defined in Article 3). Article 10 further provides that a person will be imprisoned for up to 6 months if he or she becomes aware, by nature of her or his job, of such acts or the intent to commit Article 9 acts and does not report it. Similarly, Article 11 has provisions for juristic persons who commit such crimes stating they will be sentenced to a fine of 1,000 – 50,000 (JC) as well as potential criminal responsibility. Article 13 also provides a provision that consent of the victims is not a consideration under this Law, especially to reduce stipulated penalties in this Law.

ذكرت المادة 8 عقوبة كل من استقطب أشخاص أو نقلهم أو آواهم أو استقبلهم بغرض استغلالهم عن طريق التهديد بالقوة أو استعمالها أو غير ذلك من أشكال الاستغلال أو الاختطاف أو الاحتيال أو القسر أو الخداع (البند 1 من الفقرة أ من ذات القانون) بالحبس مدة لا تقل عن ستة أشهر أو بغرامة ما بين 1000 و5000 دينار أردني أو بكلتا هاتين العقوبتين. كما نصت المادة 9 على العقوبات التي تترتب على كل من اتجر بشخص يقل عمره عن 18 سنة ولو كان ذلك دون استعمال أي شكل من أشكال القوة الموضحة في المادة 3 من ذات القانون. وأوضحت المادة 10 أن عقوبة كل من نمى إلى علمه بحكم وظيفته بارتكاب إحدى الجرائم المنصوص عليها في المادة 9 من ذات القانون أو بوجود مخطط لارتكابها، منها الاتجار بالأشخاص الذي لم يبلغ عمرهم 18 سنة، ولم يقم بإبلاغ الجهات الرسمة ذات الاختصاص. أما المادة 11 فقد عاقبت الشخص الاعتباري المرتكب لأي جريمة منصوص عليها في هذا القانون بغرامة ما بين 10,000 و 50,000 دينار أردني. وذكرت المادة 13 أن رضى المجني عليهم أو المتضررين من جرائم الاتجار بالبشر لا يؤخذ بعين الاعتبار من أجل تخفيض أي من العقوبات المنصوص عليها في هذا القانون.

Marriage and Family Code Chapter 10: Personal Non-Property Relations in the Family (1999)

Gender discrimination

Under Art. 75, both parents exercise parental authority equally, meaning that all issues regarding the forms and methods of upbringing, education, religion, organization of free time among other child-rearing matters, require mutual agreement. Disagreements between parents on raising children are resolved in the courts.

ກົດໝາຍວ່າດ້ວຍ ຄອບຄົວ (ສະບັບປັບປຸງ) (Family Law (Revised)) (2008)

Divorce and dissolution of marriage, Forced and early marriage, Property and inheritance rights

The law defines matrimonial and family relationships and sets out protections of mothers’ and children’s interests in family life and upon divorce. The law establishes that men and women have equal rights in all aspects pertaining to family relationships and have freedom to marry upon reaching the age of marriage. The law provides that marriage should be entered into on the basis of mutual consent. The law prohibits various forms of discrimination against women, such as through polygamy, unequal use of matrimonial properties during a marriage, and unlawful division of matrimonial properties upon divorce. The law states that husband and wife have right to engage in political, economic, cultural, and social activities. It further provides that both husband and wife have joint right to choose place of residence and the respective right to select family name. The law also sets out provisions for divorce. In case of divorce, the Court may order a former husband to pay child support; and when his former wife is sick and unable to meet her own needs, the Court may also order a former husband to pay alimony for a period which shall be less than one year.

National Education Act of B.E. 2545 (1999) (as amended by the National Education Act, B.E. 2545 (2002)) (2002)

Gender discrimination

The National Education Act provides for Thailand’s educational system’s structure. Under Section 10, all individuals shall have equal rights and opportunities to receive basic education provided by the State for the duration of at least 12 years. Such education, provided on a nationwide basis, shall be of quality and free of charge. This extends to those with physical, mental, emotional, and social deficiencies, and those unable to support themselves or who are otherwise destitute or disadvantaged, where such persons shall have the rights and opportunities to receive basic education specially provided. Original Thai laws available here.

Código Civil y Comercial: Artículos 638-639, 642, 646-647, 654 (Responsabilidades, deberes y derechos de los padres) (2014)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Article 638 defines parental responsibility as the set of parental duties and rights relating to the person and property of the children for the children’s protection, development, and education while they are minors. These responsibilities are governed by three principles set out in article 639: a) the best interests of the child; b) the progressive autonomy of the child based on his or her psychophysical characteristics, aptitudes, and development. With greater autonomy, the representation of the parents in the exercise of the rights of the children diminishes; c) the right of the child to be heard and to have his or her opinion considered based on his or her age and degree of maturity. In the event of a disagreement between parents, article 642 permits either parent to seek relief from a competent judge. The judge must resolve the disagreement through the shortest mechanism provided by local law, after hearing the parents in conjunction with a public prosecutor. If the disagreements continue or if any other disagreement occurs that seriously obstructs the exercise of parental responsibility, the judge may: (1) assign parental responsibility in whole or in part to one of the parents, or (2) distribute their duties among them, for a period not exceeding two years. The judge may also order interdisciplinary intervention measures and submit the disagreement for mediation. Article 646 states that the duties of the parents are to: a) take care of and live with the child, provide food and education; b) consider the specific needs of the child according to his or her psychophysical characteristics, aptitudes and development; c) respect the right of children and adolescents to be heard and to participate in their own educational process, as well as in all matters related to their personal rights; d) provide guidance and direction to the child for the exercise and effectiveness of his or her rights; e) respect and facilitate the right of the child to maintain personal relationships with grandparents, other relatives or persons with whom he or she has an affective bond; f) represent and manage the child's estate. Article 647 prohibits corporal punishment in any form, mistreatment, and any act that physically or psychologically harms children or adolescents. Article 654 requires that each parent inform the other about the education, health, and other issues related to the child's person and assets.

El artículo 638 define la responsabilidad parental como el conjunto de deberes y derechos parentales relacionados con la persona y los bienes de los niños para la protección, el desarrollo y la educación de los niños mientras sean menores. Estas responsabilidades se rigen por tres principios establecidos en el artículo 639: a) el interés superior del niño; b) la progresiva autonomía del niño en función de sus características psicofísicas, aptitudes y desarrollo. Con mayor autonomía, disminuye la representación de los padres en el ejercicio de los derechos de los hijos; c) el derecho del niño a ser escuchado y a que se tenga en cuenta su opinión en función de su edad y grado de madurez. En caso de desacuerdo entre los padres, el artículo 642 permite que cualquiera de los padres busque alivio ante un juez competente. El juez debe resolver el desacuerdo a través del mecanismo más corto provisto por la ley local, después de escuchar a los padres en conjunto con un fiscal. Si los desacuerdos continúan o si se produce cualquier otro desacuerdo que obstaculice gravemente el ejercicio de la patria potestad, el juez podrá: (1) ceder la patria potestad total o parcialmente a uno de los padres, o (2) repartir sus deberes entre ellos, por un período no superior a dos años. El juez también podrá ordenar medidas de intervención interdisciplinaria y someter la disconformidad a mediación. El artículo 646 establece que los deberes de los padres son: a) cuidar y convivir con el niño, proporcionarle alimentación y educación; b) considerar las necesidades específicas del niño de acuerdo con sus características psicofísicas, aptitudes y desarrollo; c) respetar el derecho de los niños, niñas y adolescentes a ser escuchados y participar en su propio proceso educativo, así como en todo lo relacionado con sus derechos personales; d) brindar orientación y dirección al niño para el ejercicio y efectividad de sus derechos; e) respetar y facilitar el derecho del niño a mantener relaciones personales con los abuelos, otros familiares o personas con las que tenga un vínculo afectivo; f) representar y administrar la herencia del niño. El artículo 647 prohíbe el castigo corporal en cualquier forma, el maltrato y cualquier acto que lesione física o psicológicamente a los niños o adolescentes. El artículo 654 requiere que cada padre informe al otro sobre la educación, la salud y otros asuntos relacionados con la persona y los bienes del niño.

Children's Act (1998)

Forced and early marriage, Property and inheritance rights, Trafficking in persons

This Act consolidates the laws relating to children. It provides an overview of children’s rights, delineates the broad requirements concerning child maintenance and adoption, regulates child labor and apprenticeship, and discusses other ancillary matters concerning children generally. Part 1, Sub-Part 1 specifies several children’s rights and parental duties such as the right to parental property, education and well-being, social activity, and opinion. This Sub-Part also protects children from exploitative labor, torture, degrading treatment, and forced betrothal, dowry, or marriage. The penalty for any violation of these rights is imprisonment not to exceed one year or the payment of a fine not to exceed 5 million currency points or both. Section 14 of this Sub-Part sets the minimum age for any marriage at 18. Part IV of the Act then outlines the adoption process and gives jurisdiction to the High Court, Circuit Court, or Family Tribunal in the area where the adopter or adoptee resides at the time of the application. It further states that only a minor (a child under the age of 18) can be adopted by husband and wife jointly; father or mother alone or jointly with the spouse; a relative of 21 years; or a single person of 25 years and at least 21 years older than the child to be adopted. Finally, Part V of the Act delimitates the employment of children and prohibits any type of work before 13 years old.

Constitution of the Republic of Ghana (Amendment Act 1996) (1996)

Divorce and dissolution of marriage, Employment discrimination, Gender discrimination, Harmful traditional practices, Property and inheritance rights

Article 15 of the Constitution of the Republic of Ghana relates to respect for human dignity and prohibits torture or cruel and inhuman punishment. Article 16 prohibits involuntary servitude or slavery. Article 17 relates to equality and non-discrimination and establishes that every person in Ghana is equal before the law. To this end, Article 17 specifically prohibits discrimination on the grounds of gender, race, color, ethnic origin, religion, creed, or social or economic status. Article 18 pertains to property rights and states that every person has the right to own property either alone or in association with others. Article 22 builds upon Article 18 and establishes that a spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died with a will. Article 22 states that Parliament shall enact legislation regulating the property rights of spouses as soon as possible after the Constitution came in to force. Article 22 clarifies that spouses shall have equal access to property jointly acquired during marriage and that assets that are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage. Article 24 of the Ghanaian Constitution concerns economic rights and establishes pay parity as a constitutionally enshrined principle. It states that every person has the right to work under satisfactory, safe, and healthy conditions and shall receive equal pay for equal work without distinction of any kind. Article 26 concerns cultural rights and practices and states that (a) every person is entitled to enjoy, practise, profess, maintain, and promote any culture, language, tradition, or religion subject to the provisions of the Constitution; but also that (b) all customary practices that dehumanise or injure the physical and mental well-being of a person are prohibited. Article 27 refers specifically to women’s rights. It states that special care shall be accorded to mothers during a reasonable period before and after childbirth; and during these periods, working mothers shall be entitled to paid leave; that facilities shall be provided for the care of children below school-going age to enable women, who traditionally care for children, to realise their full potential; and that women shall be guaranteed equal rights to training and promotion without impediments. Article 36(6) refers specifically to the economic obligations of the state, which include ensuring that the State afford equality of economic opportunity to all citizens. Article 36(6) emphasizes that the State must take all necessary steps to ensure the full integration of women as equal partners in Ghana’s economic development.

Constitution of Liberia (1986)

Gender discrimination, Property and inheritance rights

Article 11 guarantees fundamental rights and freedoms to all persons regardless of sex, ethnicity, race, political opinion, or national origin. Article 18 prohibits employment discrimination based on sex. Article 23 provides that the property obtained by a person during marriage because of his or her own labor shall not be used to satisfy the obligations of his or her spouse, nor shall the property be controlled by a spouse. It states further that the legislature is compelled enact laws to provide equal protection to the surviving spouses and children in both statutory and customary marriages.

Domestic Abuse (Scotland) Act 2018 (2018)

Domestic and intimate partner violence, Sexual violence and rape, Stalking

The Domestic Abuse Act (Scotland) of 2018 came into force on April 1, 2019. It modifies and expands upon portions of the Criminal Procedure (Scotland) Act of 1995. The act expands the definition of domestic abuse to include psychological abuse and coercive and controlling behavior. It criminalizes both psychological and physical harm directed to a partner or an ex-partner. Section 11.2 defines a “partner” as a spouse or civil partner, a person with whom one lives as a spouse, or a person with whom one is in an “intimate personal relationship.” Section 2 defines abuse as “violent, threatening, or intimidating” behavior that may consist of controlling a victim’s daily activities, causing the victim to become subordinate or dependent on the perpetrator, isolating the victim from friends or family, depriving or restricting a victim’s actions, or frightening, humiliating, degrading, or otherwise punishing the victim. Section 3 contains an extraterritoriality clause covering such conduct occurring partly or wholly outside the country, and thus the abusive behavior need not take place within the United Kingdom. Section 5 creates a is the only UK legislation with a specific statutory sentencing aggravation for the harm that can be caused to children growing up in an environment in which domestic abuse takes place. Section 2.2.n., likewise, includes a victim’s child under the age of 18 as a potential additional victim of abuse. Section 5.3 clarifies that the aggravation can be applied both in cases in which abusive behavior is directed at a child, and in scenarios in which a child “sees or hears, or is present during, an incident of behavior that A directs at B as part of the course of behavior.” The Domestic Abuse Act has been lauded by women’s rights organizations as a “welcome change” that “should increase the opportunity [for victims] to obtain protection and seek justice through the criminal justice system."

Family Violence Prevention Act (Victoria) (2008)

Domestic and intimate partner violence

The Family Violence Protection Act aims to maximise safety for children and adults who have experienced family violence, and to prevent and reduce family violence to the greatest extent possible. It also aims to promote accountability for those who perpetrate family violence. The Act provides for police protection before court, family violence intervention orders (and their enforcement), and counselling orders.

Charter of Human Rights and Responsibilities Act (Victoria) (2006)

Employment discrimination, Female genital mutilation or female genital cutting, Forced sterilization, Gender discrimination, Property and inheritance rights, Trafficking in persons

The Charter aims to protect and promote the human rights set out in Part 2, including property rights and freedom from forced work (slavery), as well as the right to enjoy those human rights without discrimination. With respect to any proposed new law, the Victorian Parliament must prepare a “statement of compatibility,” which must examine the proposed law’s compatibility (or incompatibility) with the human rights protected in the Charter. While this statement has no effect on the validity of any law, it furthers the purpose of the Charter in promoting human rights. Further, under section 32 of the Charter, all statutory provisions must be interpreted in a way that is compatible with human rights (to the extent it is possible to do so consistently with their purpose). The Charter also allows the Victorian Equal Opportunity and Human Rights Commission to intervene in any court or tribunal proceeding in relation to the Charter.

Ley de Educación 2006 (última revisión 2018) (2018)

Gender discrimination, Gender-based violence in general

The Law on Education established that one of the principles of Spain’s public education system is the prevention of gender-based violence (Article 1). Preference in the admission to public schools will be given to students who have had to move because they suffered acts of gender-based violence (Article 84.7).

La Ley de Educación estableció que uno de los principios del sistema de educación pública de España es la prevención de la violencia de género (Artículo 1). Se dará preferencia a la admisión a las escuelas públicas a los estudiantes que hayan tenido que mudarse porque sufrieron actos de violencia de género (Artículo 84.7).

Female Genital Mutilation Act (2003)

Female genital mutilation or female genital cutting

The Female Genital Mutilation Act of 2003 restated and amended the law prohibiting female genital mutilation, and further prohibits assistance in mutilation, failing to protect a girl from risk of mutilation, and assistance in transporting girls overseas for the purpose of female genital mutilation. It establishes a maximum penalty of 14 years imprisonment.

家庭暴力防治法 (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 three calendar months prior to the prohibition of work. After the prohibition period, women may take an additional period of parental leave (Karenz) until the child reaches the age of two. 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 receive a child allowance through social insurance during this time. Pregnant employees and parents on parental 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 permissible types of work for pregnant women, women who are breastfeeding, and women who have recently given birth (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, etc.) 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).

Schwangeren Angestellten ist das Arbeiten während eines Acht-Wochen-Zeitraums vor der Kindesgeburt und nach der Kindesgeburt untersagt. Während des Zeitraums hat die Mutter einen Anspruch auf das sog. Wochengeld. Die Höhe dessen richtet sich nach dem Durchschnittsgehalt der Angestellten innerhalb der letzten drei Kalendermonate, bevor der Arbeitsuntersagung. Nach dem Zeitraum, in dem die Mutter nicht arbeiten darf, kann sie optional noch weitere Elternzeit, sog. Karenz, in Anspruch nehmen, bis das Kind ein Alter von zwei Jahren erreicht. In der Karenzzeit können Mutter oder Vater, je nachdem wer die Karenz in Anspruch genommen hat (niemals beide gleichzeitig), keine Vergütung von ihrem Arbeitnehmer verlangen, sie erhalten allerdings einen Kindesunterhalt von der Sozialversicherung. Schwangere Angestellte und Eltern in Elternzeit können während dieser Zeit und bis zu vier Wochen nach ihrer Rückkehr nicht gekündigt werden. Das MuSchG enthält darüber hinaus auch Regeln bezüglich der Arbeit, die schwangeren, stillenden und Frauen, die kürzlich gebärt haben, gestattet ist – insbesondere verboten: körperlich besonders anstrengende Arbeit, der Umgang mit Chemikalien, Arbeit, bei der die Frau ohne Pause lange sitzen oder stehen muss, etc. Außerdem enthält das MuSchG Regeln zur Arbeitszeit, die schwangeren und stillenden Angestellten gestattet ist – nicht zwischen 20 Uhr und 6 Uhr; nicht an Sonntagen und staatlichen Feiertagen.

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

Abortion and reproductive health rights, LGBTIQ

Medically assisted reproduction is available 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) for certain couples where there may be difficulty becoming pregnant or giving birth, or may give birth to a child with a hereditary disease (such as severe, untreatable pain or brain damage, or which would require the child be kept alive through constant use of modern medical technology) due to genetic dispositions. It is also available to a woman living in a registered partnership or cohabitation with another woman. Surrogacy is not permitted in 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.

Medizinisch assistierte Fortpflanzung steht verheirateten Paaren, eingetragenen Partnerschaften oder einer Lebensgemeinschaft zur Verfügung. Außerdem ist es Paaren nur gestattet, wenn sie gewisse Schwierigkeiten bei der Empfängnis haben; dies sind z.B.: (1.) alle oder zumutbare Behandlungen, um eine Schwangerschaft durch Geschlechtsverkehr herbeizuführen, sind erfolglos oder aussichtslos; (2.) der Geschlechtsverkehr ist dem Paar nicht zumutbar, da eine ernsthafte Gefahr der Übertragung einer schweren Infektionskrankheit besteht; (3.) wenn das Paar Schwierigkeiten hat schwanger zu werden oder zu gebären, oder das Kind wegen genetischer Dispositionen mit einer Erbkrankheit geboren würde (so wie ernsthaften, unbehandelbaren Schmerzen oder Gehirnschäden, oder solche die es erforderlich machen, dass das Kind dauerhaft durch moderne Technologie am Leben erhalten würde). Außerdem stehen die Möglichkeiten homosexuellen Frauen offen, die in einer eingetragenen Partnerschaft oder Lebensgemeinschaft leben. Nicht erlaubt ist Leihmutterschaft in Österreich, denn medizinisch unterstützte Fortpflanzung ist nur in der Ehe, eingetragenen Partnerschaften und in Lebensgemeinschaften erlaubt. Es gibt zwei Ausnahmen, in denen das genetische Material für eine medizinisch unterstützte Fortpflanzung genutzt werden darf: (1.) Der Samen einer dritten Person darf verwendet werden, wenn der Ehegatte, eingetragene Partner oder Partner in Lebensgemeinschaft nicht der Fortpflanzung fähig ist oder das Paar aus zwei Frauen in einer eingetragenen Partnerschaft besteht; (2.) die Eizelle einer dritten Person darf einer Frau eingesetzt werden, wenn diese jünger als 45 Jahre alt ist und auf andere Weise nicht fähig ist, sich fortzupflanzen.

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)

International Case Law

Johnston and Others v. Ireland European Court of Human Rights (1986)

Divorce and dissolution of marriage

The applicants were a man, a woman, and their child. The man’s inability to obtain a dissolution of his first marriage made it impossible for him to marry the woman, which resulted in their child therefore being deemed “illegitimate.” The Court held that the impossibility of obtaining a dissolution of the first applicant’s marriage under Irish law did not breach the first and second applicants’ rights under Articles 12 and 8 of the European Convention on Human Rights (the rights to respect for private and family life and the rights to marry and found a family, respectively). The Court found that Article 12 does not give rise to a right to divorce; and nor does Article 8 extend to an obligation to permit the divorce and re-marriage that the applicants sought. However, the Court unanimously found a violation of Article 8 as regards all three applicants due to the legal situation (“illegitimate” status) of the couple’s child; specifically, the “absence of an appropriate legal regime reflecting the third applicant’s natural family ties amounts to a failure to respect her family life” under Article 8. Finally, the Court found that under the European Convention on Human Rights, the concept of family encompasses the concept of non-marital family.

M.M.B. v. Slovakia European Court of Human Rights (2019)

International law, Statutory rape or defilement

When the applicant was four years old, her mother requested that she be examined by psychologists as the mother suspected the applicant’s father of sexual abuse. Psychologists concluded that the applicant exhibited symptoms of Child Abuse and Neglect (CAN) syndrome. Based on this report, the mother lodged a criminal complaint for sexual abuse against the father. Another psychological expert produced an opinion, which found that the applicant showed no signs of sexual abuse. The criminal prosecution was discontinued. A year later, the applicant’s mother again lodged a complaint based on the applicant’s additional allegations of sexual abuse by her father. The investigator opened a criminal prosecution and commissioned three expert opinions. One concluded that the applicant did not display signs of abuse and the other two concluded that the applicant did display symptoms of sexual abuse. The investigator charged the father with sexual abuse, but the regional prosecutor’s office annulled the decision to press charges and discontinued the criminal prosecution after the father filed a complaint. The applicant lodged a constitutional complaint challenging this decision, alleging that her Article 8 right to an effective investigation had been violated by the domestic authorities’ investigation into the allegation of abuse by her father. The Constitutional Court dismissed the applicant’s complaint. The European Court of Human Rights held that the national authorities had violated the applicant’s Article 8 right to respect for private and family life by failing to adequately investigate the abuse allegations. The Court ordered the State to pay damages because authorities ended proceedings without compelling reason and despite several expert witnesses indicating that the applicant had been sexually abused by her father.

N.B. v. Slovakia European Court of Human Rights (2012)

Abortion and reproductive health rights, Forced sterilization, International law

The applicant was sterilized at age 17 during the birth of her second child. She claimed that she was coerced into signing the authorizations for the sterilization, segregated in the hospital based on her Roma ethnicity, and that the decision to sterilize her was discriminatory. The District Court dismissed the applicant’s civil action against the hospital on the basis that the sterilization was required to save her life and, therefore, did not need consent. On appeal, the Regional Court, found that the sterilization was not required to save her life and valid consent had not been provided as she was a minor and parental consent was required. The Court ordered EUR 1,593 in damages for the applicant. A criminal action and complaint at the Constitutional Court were both dismissed. The applicant argued she had been subjected to inhumane and degrading treatment, her private and family life had been negatively impacted, and that she had been discriminated against on the basis of sex and ethnic origin as there were no anti-discrimination laws effective in Slovakia at the time of her sterilization. The State argued the compensation already awarded was appropriate, as she was 10 days away from the age of majority when she signed the consent documents, the medical staff had acted in good faith, and that she was not permanently infertile as she could pursue in-vitro fertilization or reverse the sterilization through surgery. The European Court of Human Rights held that there was a violation of the applicant’s rights under Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and that the State’s failure to provide sufficient legal protections of the reproductive health of Roma women violated Article 8. The Court awarded the applicant damages.

O’Keeffe v. Ireland European Court of Human Rights (2014)

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

The applicant was repeatedly sexually abused by her school principal during the 1970s. When these events were reported to the police in 1996, the complete police investigation revealed that the principal had sexually abused 21 former students during a 10-year period. In total, the principal was charged with 386 criminal offences of sexual abuse. The applicant brought a civil action against the Minister for Education and the Attorney General of Ireland, claiming that the State had vicarious liability for the personal injury she suffered as a result of the abuse in the public school. The High Court ruled that the state did not have vicarious liability for its employee’s actions, and the Supreme Court dismissed the applicant's appeal. In January 2014, the applicant brought a case to the European Court of Human Rights ("ECtHR"), alleging violations of Article 3 (torture or inhuman or degrading treatment) of the European Convention on Human Rights, and Article 13, alleging that she did not have an effective domestic remedy. The ECtHR held the following: (1) the Irish State failed to meet its positive obligation, in violation of Article 3; (2) there was no violation of the procedural obligations under Article 3 since an effective official investigation into the ill-treatment of the applicant had been carried out in 1995 once the a complaint was made by another former pupil to the police; (3) the applicant did not have an adequate remedy available to her regarding her Article 3 complaints, in violation of Article 13; and (4) the applicant was awarded 85,000 euros for the costs and expenses of the proceedings. As a result of this case, Irish Prime Minister Enda Kenny gave an apology to the applicant, and, in August 2014, the Irish government submitted an Action Plan to the Council of Europe setting out the measures that have been taken since this ECtHR decision.

Корнейкова та Корнейков проти України (Korneykova and Korneykov v. Ukraine) European Court of Human Rights (Європейський суд з прав людини) (2016)

Abortion and reproductive health rights, Custodial violence, International law

The first applicant, who was in the fifth month of pregnancy, was detained by the police on suspicion of robbery. The national court ordered her pre-trial detention as a preventive measure pending trial. During her detention, the applicant gave birth to her son, the second applicant. Later, the woman appealed to the European Court of Human Rights (“ECtHR”) to obtain just satisfaction, as she argued that her right under Article 3 of the European Convention on Human Rights (prohibition of torture) was violated during detention. The applicant alleged that she had been continuously shackled to her hospital bed or to a gynecological examination chair. In addition, the woman claimed that the detention conditions were inhuman (due to absence of hot water and bed for child, irregular supply of cold water, etc.). She also complained about her placement in a metal cage during court hearings. In view of the above facts, the Court concluded that the unjustified shackling of the first applicant (during and after childbirth, when she was particularly sensitive) can be qualified as inhuman and degrading treatment. Also, the Court drew attention to (i) the woman's physical and psychological suffering, which was caused by the lack of normal nutrition, (ii) improper organization of sanitary and hygiene arrangements, and (iii) the applicant's placement in a metal cage, which is incompatible with the standards of civilized behavior that are the hallmark of a democratic society. Thus, the domestic authorities failed to comply with their obligations under Article 3 of the European Convention on Human Rights. The ECtHR, deciding in equity, awarded both applicants €22,000. This case is important because it identifies the shortcomings of places of detention within a criminal justice system, which neglects the needs of female prisoners with children and during the pregnancy.

Першу заявницю, яка перебувала на п'ятому місяці вагітності, було затримано міліцією за підозрою у вчиненні розбою. Національний суд обрав заявниці запобіжний захід у вигляді тримання під вартою. Під час перебування під вартою заявниця народила сина, другого заявника. Пізніше жінка звернулася до Європейського суду з прав людини (“ЄСПЛ”) для отримання справедливої сатисфакції, оскільки вона стверджувала, що її право, гарантоване статтею 3 Конвенції про захист прав людини та основоположних свобод (заборона катування) було порушено під час тримання під вартою. Заявниця стверджувала, що вона весь час була прикута наручниками до лікарняного ліжка або до гінекологічного крісла. Крім того, жінка стверджувала, що умови утримання були нелюдськими (через відсутність гарячої води та ліжка для дитини, нерегулярного постачання холодної води тощо). Також вона скаржилась на те, що під час судових засідань її поміщали до металевої клітки. З огляду на вищенаведені факти, Суд дійшов висновку, що невиправдане застосування наручників до першої заявниці (під час і після пологів, коли вона була особливо чутливою) можна кваліфікувати як нелюдське чи таке, що принижує гідність, поводження. Також Суд звернув увагу на (i) фізичні та психологічні страждання жінки, які були спричинені відсутністю нормального харчування, (ii) неналежну організацію санітарних та гігієнічних заходів, а також (iii) поміщення заявниці в металеву клітку, що несумісне зі стандартами цивілізованої поведінки, яка є ознакою демократичного суспільства. Таким чином, національні органи влади не виконали своїх зобов’язань за статтею 3 Конвенції про захист прав людини та основоположних свобод. ЄСПЛ, вирішуючи справу на засадах справедливості, присудив обом заявникам 22 000 євро. Ця справа важлива, оскільки вона визначає недоліки місць ув’язнення в системі кримінального правосуддя, яка нехтує потребами ув’язнених жінок з дітьми та під час вагітності.