Women and Justice: Keywords

Legislation

Evidence Act (1990)

Sexual violence and rape

Under Section 211 of the Evidence Act, a man charged with rape, attempt to commit rape, or indecent assault may, as a defense, show that the alleged victim against whom the offence is alleged to have been committed was of a “generally immoral character.” The victim is not to be cross-examined on the subject but may be asked whether she has had “connection” with other men, a term not defined but presumably referring to previous sexual relations. The victim’s answer to this question cannot be contradicted. However, the accused may also ask whether the victim has had connection on other occasions with the accused and is permitted to attempt to contradict the victim’s denial should she deny connection.



Code of Virginia: When cause of action shall be deemed to accrue in certain personal actions (Va. Code § 8.01-249(6))

Sexual violence and rape, Statutory rape or defilement

This section of the Virginia Code provides that a cause of action resulting from sexual abuse during incapacity or infancy accrues upon the later of (1) the removal of incapacity or infancy or (2) when facts of the injury and its causal connection to the sexual abuse is first communicated to the person by a licensed physician or psychologist. 



Code of Virginia: Personal action for injury to person or property generally (Va. Code § 8.01-243(D))

Statutory rape or defilement

This section of the Virginia Code provides that a cause of action resulting from sexual abuse during incapacity or infancy accrues upon the later of the removal of incapacity or infancy or when facts of the injury and its causal connection to the sexual abuse is first communicated to the person by a licensed physician or psychologist. 



Code of Virginia: Civil Action for Stalking (Va. Code § 8.01-42.3)

Stalking

Under Virginia law, a victim has a civil cause of action against an individual who engaged in stalking conduct prohibited under Code of Virginia § 18.2-60.3, regardless of whether the individual has been charged or convicted for the alleged violation, for the compensatory damages incurred by the victim due to the conduct plus the costs for bringing the action. A victim may also be awarded punitive damages in addition to compensatory damages.



23 Pa. C.S.A. § 3301, Domestic Relations - Grounds for Divorce (1990)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Under Pennsylvania law, a divorce can be either “fault-based” or “no-fault.” Grounds for a “fault-based” divorce include the following: abandonment (unmoving spouse has left the home) without a reasonable cause for a period of one or more years; adultery; cruel and barbarous treatment (unmoving spouse has treated movant in a way that puts his/her life or health at risk); bigamy (movant’s spouse married movant without first divorcing his/her spouse); imprisonment for two or more years; or movant’s spouse has acted in a way that made movant’s life unbearable or extremely difficult. Grounds for a “no-fault” divorce include the following: insanity or a serious mental disorder that resulted in confinement in a mental institution for at least 18 months immediately before the commencement of a divorce action; or where a complaint has been filed alleging that the marriage is “irretrievably broken.” When the grounds for divorce is that the marriage is “irretrievably broken,” the court may find that there is a “reasonable prospect of reconciliation.” If the court makes such a finding, it will continue the matter for up to 120 days, but not less than 90 days, unless the parties agree to a longer period. During this continuation period, if either party requests it, the court will require up to a maximum of three counseling sessions.



Domestic Case Law

Raniola v. Bratton United States Court of Appeals for the Second Circuit (2001)

Employment discrimination, Gender discrimination, Sexual harassment

The plaintiff, a female police officer sued a police department, alleging hostile work environment, sexual harassment, and retaliation claims under Title VII. The plaintiff alleged that she suffered years of abuse because she was a woman, including derogatory remarks, disproportionately burdensome assignments, sabotage of her work, threats, and false accusations of misconduct. The United States District Court for the Southern District of New York granted the defendants’ motion for judgment as a matter of law. The Second Circuit reviewed all the evidence in the light most favorable to the officer and found that a reasonable jury could have arrived at a different conclusion than the district court. The Second Circuit determined that the evidence presented by the officer formed a sufficient basis for a reasonable jury to conclude that she was subjected to hostile work environment because she was a woman and that she was suspended, put on probation, and then terminated in retaliation for having complained about her treatment. The Second Circuit vacated the judgment and remanded the claims for retrial.



S. v. Cayouette Supreme Court of Virginia (1992)

Sexual violence and rape, Statutory rape or defilement

The defendant sexually abused the plaintiff between 1969 and 1978 when she was 5-14 years old. The plaintiff turned 18, the age of majority in Virginia, in 1982. She first received information from her psychologist regarding the causal connection between the childhood sexual abuse and the severe emotional harm she manifested in March 1990, and she subsequently filed a lawsuit against defendant for the abuse in July 1991. However, the trial court dismissed the lawsuit as untimely. The issue before the Virginia Supreme Court was whether, upon the lapse of the time fixed in the statute of limitations and the tolling statute (the grace period before the statute of limitations begins), the defendant acquired a right protected by due process guarantees notwithstanding a recent statute by the legislature with provisions to: (a) retroactively apply a ten-year statute of limitations . . . in cases in which the statute of limitations had expired . . . and (b) to create a twelve-month period during which such cases could be filed regardless of when the cause of action accrued. In affirming the lower court’s ruling the Virginia Supreme Court reaffirmed its well-established principle that the legislature possesses the power to enact retrospective legislation only if the statute is not destructive of vested rights. Here, defendant’s statute of limitations defense was a vested right. Infant plaintiff suffered an injury in that "she experienced positive, physical or mental hurt" each time defendant committed a wrongful act against her "and her right of action accrued on that date." The last such act was committed in 1978. Because plaintiff was 14 years old at that time, the statute of limitations was tolled until she attained her majority in 1982. The two-year time limitation expired in 1984. At that time defendant right to a statute of limitations defense vested and could not be repealed by subsequent legislation. The court therefore affirmed the lower courts’ ruling that defendant had acquired a right protected by due process guarantees and plaintiff’s suit was untimely.



In re Doe Supreme Court of Texas (2002)

Abortion and reproductive health rights

Pregnant minor filed an application for judicial bypass to receive an abortion without notifying her parents. The district court did not rule on the application or make findings of fact, but issued a writing that sua sponte concluded that the parental bypass law was unconstitutional. Doe appealed due to uncertainty about the judgment, and the court of appeals dismissed for lack of jurisdiction. The Supreme Court held that because the judge did not issue findings of fact within two business days, her application was deemed granted.



In re: Jane Doe 10 Supreme Court of Texas (2002)

Abortion and reproductive health rights

A pregnant minor applied for judicial bypass to have an abortion without notifying her parents. The trial court denied the application on a form, but made no ruling and no findings of fact on one of the bases for judicial bypass—whether notifying her parents would lead to physical, sexual, or emotional abuse of the minor. Under the Texas Family Code, the court was required to issue a ruling and written findings of fact and conclusions of law within two business days after the application was filed. Doe argued that because the trial court did not comply with the Family Code, she was denied a timely and complete judgment, and her application should be deemed granted. The Supreme Court agreed, deeming her application for judicial bypass granted based on possible abuse.



Hoffman-La Roche Inc. v. Zeltwanger Supreme Court of Texas (2004)

Employment discrimination, Sexual harassment

The plaintiff-respondent worked as a sales representative for Hoffman-La Roche Inc, the defendant-petitioner. The respondent alleged that her supervisor told sexually inappropriate jokes and asked inappropriate questions on multiple occasions. She submitted complaints to Human Resources, which began an investigation. During the respondent’s performance review, her supervisor yelled at her and repeatedly criticized her performance, giving her a below average rating. Shortly afterwards, the petitioner fired both the respondent’s supervisor and the respondent. The respondent then filed a complaint for sexual harassment with the Texas Commission on Human Rights. At issue for the Supreme Court was whether the respondent could recover damages for emotional distress due to sexual harassment under the Texas Commission on Human Rights Act and common tort law. The Court of Appeals held that the respondent could recover under both statutory and common law, awarding damages. The Texas Supreme Court reversed, holding that when the complaint is for sexual harassment, the plaintiff must proceed solely under a statutory claim unless there are additional facts, unrelated to sexual harassment, to support an independent tort claim for intentional infliction of emotional distress. The Court found that the respondent could not identify additional extreme and outrageous conduct by the petitioner to support an independent intentional infliction of emotional distress claim. The Court reversed the judgment of the court of appeals and remanded to the trial court.



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.



Hofer v. Anti-Discrimination Commissioner Supreme Court of the Northern Territory (2011)

Employment discrimination, Sexual harassment

In 2009, a female employee made a formal complaint regarding improper conduct in the workplace, including continuous inappropriate and derogatory comments, by a Northern Territory Police Force member to whom she was a personal assistant, Bert Hofer.  The complaint resulted in an investigation and Hofer’s demotion and transfer.  On April 13, 2010, the female employee further made a complaint to the Northern Territory Anti-Discrimination Commission of discrimination and sexual harassment in violation of the Anti-Discrimination Act (Northern Territory).  Pursuant to Section 66 of the Anti-Discrimination Act, the Commissioner must accept or reject a complaint not later than 60 days after receipt of the complaint.  The complaint was accepted on November 1, 2010, well beyond the 60-day timeframe.  Hofer argued that the decision to accept the complaint should be set aside due to the Commissioner’s failure to accept the complaint within the statutory timeframe.  Further, Hofer argued that the Commissioner failed to consider whether the complaint was frivolous or vexatious.  The Supreme Court of the Northern Territory held that the Commissioner did consider whether the complaint was vexatious, and determined that it was not.  The fact that the Commissioner failed to accept the complaint within of the 60-day timeframe did not invalidate the decision as such a finding would result in unacceptable injustice inflicted on victims due to government inaction.  Accordingly, Hofer’s application was dismissed and the Commissioner’s decision to accept the complaint was upheld.