Women and Justice: Keywords

Domestic Case Law

Nadeem v. The State Lahore High Court (2015)

Sexual violence and rape, Statutory rape or defilement

The appellant arrived at the respondent’s home armed with a pistol and raped her. The respondent, 16 years old at the time, was already 32 weeks pregnant with the appellant’s child due to multiple previous rapes. The respondent filed a suit against the appellant and gave birth to a daughter during the trial. The Trial Court found the appellant guilty and sentenced him to 20 years of imprisonment, to which he appealed to the Lahore High Court. Under the criminal laws of Pakistan, it is rape when a man has sexual intercourse with a woman with or without her consent when she is 16 years old or under. It is also rape when a woman gives consent due to fear of death or being hurt. The appellant argued the lesser offence of fornication, which is a crime committed when two people have sexual intercourse outside of marriage. The appellant argued that the Trial Court should not have convicted him of rape as the respondent had consented to the sexual intercourse. The offence of fornication is only punishable by imprisonment for up to five years with a maximum fine of ten thousand rupees, whereas rape is punishable by imprisonment for up to 25 years and/or a fine. The High Court held that since the respondent was 16 years old at the time of rape, it qualified as rape irrespective of the respondent’s consent. The High Court also expressed its concern over the Trial Court’s failure to award compensation to the child. Notably, the High Court held that children born because of rape would suffer “mental anguish and psychological damage” for their entire life, and should, therefore, be entitled to compensation. The appellant was ordered to pay a fine of one million rupees to the child born as a result of the rape, in addition to the compensation payable to the respondent.



M.D. v. Prieta, Caso 312/2007 Tribunal Apelaciones Familia 1ºT (First Family Appeals Court) (2017)

Domestic and intimate partner violence

A Trial Court awarded the plaintiff UR$4,500 for actual damages and UR$30,000 for emotional distress damages, resulting from the domestic violence committed by the defendant, her common-law husband.  The defendant appealed, arguing that, beyond the plaintiff’s testimony and a medical diagnosis based on that testimony, there was no proof that he had committed acts of domestic violence. The defendant further argued that the plaintiff’s depression and anxiety were the consequences of a preexisting medical condition.  Additionally, the defendant proposed on appeal that the law does not recognize emotional distress damages in a common law marriage because the duty of fidelity and the duty to do no harm only arise from marriage. Finally, the defendant said that the plaintiff had consented to the acts of domestic violence acts and, therefore, there could be no damages.  The Family Appeals Court determined that domestic violence is a human rights violation: a victim cannot consent to be the victim of domestic violence and every person has a general duty to not harm another.  The Family Appeals court also ruled that the medical and psychological diagnoses were not hearsay. The Family Appeals Court dismissed the appeal and partially affirmed the decision of the Trial Court, concluding that the defendant breached a duty to the plaintiff, that there was causation between the harm and the domestic violence, and that the plaintiff suffered damages.  However, it reduced the award of actual damages from $4,500 to $2,250 due to the fact that the defendant had already made payments to the plaintiff.

Un Tribunal de Primera Instancia le otorgó al demandante UR $ 4,500 por daños reales y UR $ 30,000 por daños por angustia emocional, como resultado de la violencia doméstica cometida por el acusado, su marido en matrimonio común. El acusado apeló, argumentando que, más allá del testimonio del demandante y un diagnóstico médico basado en ese testimonio, no había pruebas de que hubiera cometido actos de violencia doméstica. El acusado argumentó además que la depresión y la ansiedad del demandante fueron las consecuencias de una afección médica preexistente. Además, el acusado propuso en apelación que la ley no reconoce los daños por angustia emocional en un matrimonio común porque el deber de fidelidad y el deber de no hacer daño solo surgen del matrimonio. Finalmente, el acusado dijo que el demandante había consentido a los actos de violencia doméstica y, por lo tanto, no podía haber daños. El Tribunal de Apelaciones de la Familia determinó que la violencia doméstica es una violación de los derechos humanos: una víctima no puede consentir ser víctima de violencia doméstica y cada persona tiene el deber general de no dañar a otra. La corte de Apelaciones de Familia también dictaminó que los diagnósticos médicos y psicológicos no eran rumores. El Tribunal de Apelaciones de la Familia desestimó la apelación y confirmó parcialmente la decisión del Tribunal de Primera Instancia, concluyendo que el acusado incumplió el deber del demandante, que había conexión entre el daño y la violencia doméstica, y que el demandante sufrió daños. Sin embargo, redujo la adjudicación de daños reales de $ 4,500 a $ 2,250 debido al hecho de que el acusado ya había realizado pagos al demandante anteriormente.



AA v. Fiscalía General de la Nación, Caso No. 299/2010 Tribunal Apelaciones Penal 1º Tº (First Criminal Appeals Court) (2010)

Domestic and intimate partner violence

The Trial Court sentenced the accused (AA) to two years in prison for aggravated domestic violence.  The court considered the aggravating circumstances to be the accused’s recidivism and the use of his strength to overpower his female victim.  AA had a history of domestic violence against his wife (BB).  Even though he had repeatedly assaulted BB and stabbed her once, BB refused to file a complaint against him.  A family court judge imposed a restraining order against AA pursuant to which he could not get closer than 300 meters to BB and her children. However, BB on several occasions allowed AA back in her home and near the children.  On October 7, 2008, AA came over to BB’s house with the intention of moving back in, but when BB declined, AA locked her and her children in a room for two hours.  He did not physically assault them, but did threaten to kill them.  BB filed a complaint and AA was convicted of domestic violence.  AA appealed arguing that BB had subsequently withdrawn her criminal complaint against him, which constituted consent to his conduct. The Appeals Court determined that the victim’s withdrawal of her complaint was a consequence of “battered women’s syndrome,” and had no bearing on a criminal action.  The Appeals Court dismissed the appeal and affirmed the decision of the Trial Court.

El Tribunal de Primera Instancia condenó al acusado (AA) a dos años de prisión por violencia doméstica agravada. El Tribunal consideró que las circunstancias agravantes eran la reincidencia del acusado y el uso de su fuerza para dominar a su víctima femenina. AA tenía antecedentes previos de violencia doméstica contra su esposa (BB). Aunque había asaltado repetidamente a BB y la apuñaló una vez, BB se negó a presentar una queja contra él. Un juez de un tribunal de familia impuso una orden de restricción contra AA en virtud de la cual no podía acercarse más de 300 metros a BB y sus hijos. Sin embargo, BB en varias ocasiones permitió que AA regresara a su casa y estuviera cerca de los niños. El 7 de octubre del 2008, AA vino a la casa de BB con la intención de regresar, pero cuando BB declinó, AA la encerró a ella y a sus hijos en una habitación durante dos horas. No los agredió físicamente, pero amenazó con matarlos. BB presentó una queja y AA fue condenado por violencia doméstica. AA apeló argumentando que BB había retirado posteriormente su denuncia penal contra él, lo que constituía un consentimiento para su conducta. El Tribunal de Apelaciones determinó que la retirada de la denuncia de la víctima fue una consecuencia del "síndrome de las mujeres maltratadas" y no tenía relación con una acción penal. El Tribunal de Apelaciones desestimó el recurso y confirmó la decisión del Tribunal de Primera Instancia.



Musumhiri v. State High Court of Zimbabwe (2014)

Sexual violence and rape, Statutory rape or defilement

The 47-year-old male applicant requested bail pending the appeal of his conviction and 15-year sentence for raping the 16-year-old complainant. The applicant appealed, arguing that the intercourse was consensual because the victim did not scream or immediately report the rape after a witness stumbled upon the incident. The applicant had to show, among other things, the likelihood of success of his appeal to obtain bail. The court dismissed the bail application after rejecting the state's concession that the applicant had a meritorious appeal because complainant's failure to scream or to immediately report the rape cast doubts upon her lack of consent. Citing research about cultural inhibitions on gender violence victims, the court concluded that silence could not be equated to acquiescence. With women often held culturally as custodians of appropriate sexual conduct, and with the responsibility for sexual restraint being placed on a woman, regardless of her age or power imbalances, the court found it understandable that the complainant failed to make an immediate report. The court noted that a young girl may not make a voluntary report because her cultural context makes it difficult for her to do so without being re-victimized. Consequently, the proposition that the victim's initial silence implied consent was untenable and could not be ground for bail.



U.S. v. Robinson United States Court of Appeals for the Second Circuit (2012)

Statutory rape or defilement, Trafficking in persons

A federal grand jury convicted the defendant-appellant of child sex trafficking in violation of 18 U.S.C. A minor victim testified that she started dating the defendant when she was 17 years old but had told him and others that she was 19 years old. She insisted that the defendant was only living off her income as a prostitute and was not a pimp facilitating prostitution.  However, the prosecution introduced videotaped statements in which the defendant repeatedly implored Doe to make money for him and threatened her when she failed to deliver the money. Following a jury trial, the defendant was convicted of two counts of sex trafficking of a minor. On appeal, the Second Circuit considered the construction of 18 U.S.C. § 1591(c), an evidentiary provision added by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), which provides that “[i]n a prosecution . . . in which the defendant had a reasonable opportunity to observe [the victim], the Government need not prove that the defendant knew that the person had not attained the age of 18 years.” The Second Circuit affirmed the judgment of the district court, holding that this provision imposes strict liability with regard to the defendant’s awareness of the victim’s age and relieves the government’s usual burden to prove knowledge or reckless disregard of the victim’s underage status under § 1591(a). The Second Circuit rejected the defendant’s challenges to this provision as lacking merit and affirmed the judgment of the district court.



Molina v. Commonwealth of Virginia Supreme Court of Virginia (2006)

Sexual violence and rape

The defendant appealed his convictions for rape and sodomy, arguing that there was insufficient evidence to convict him and that the victim was incapacitated due to voluntary intoxication.  The victim suffered from bipolar disorder and substance abuse. She was found non-responsive and half-naked behind a convenience store with rape-related injuries. She had high amounts of cocaine and alcohol in her blood, but low amounts of her prescribed lithium.  She stated that she had kissed the defendant but did not consent to sexual intercourse and had no recollection of intercourse with the defendant.  The defendant claimed the intercourse was consensual.  The issue before the Court was whether defendant could be convicted for rape because of the victim’s incapacity if such incapacity was not a permanent condition but a transitory condition such as voluntary intoxication. In affirming the conviction, the court explained that “[n]othing in the statutory definition itself limits the definition of ‘mental incapacity’ to a permanent condition,” but rather the statute defines incapacity to mean a condition existing “at the time of the offense” that “prevents the complaining witness from understanding the nature or consequences of the sexual act.”  Accordingly, the Court held that “mental incapacity” could extend to a transitory circumstance such as intoxication because the nature and degree of the intoxication went beyond the stage of merely reduced inhibition and reached a point where the victim did not understand “the nature or consequences of the sexual act.” Consequently, the Court upheld the convictions.



Ah-Chong v. The Queen Supreme Court of New Zealand (2015)

Sexual violence and rape

Appellant Ah-Chong was convicted of assault with intent to commit sexual violation by rape.  As a defense, Ah-Chong claimed that the victim consented to the sexual activity.  The trial judge gave the jury instructions that they had to be satisfied beyond a reasonable doubt that the defendant had no reasonable grounds to believe that consent existed.  The appellant argued that the jury instructions were wrong, claiming that there were two separate mens rea elements: one for the assault and one for intention to rape.  The Supreme Court previously held in L v R that only a reasonable belief of consent, even if mistaken, could provide a defense to the charge of sexual violation by rape.  The appellant argued that a mistaken belief of consent constitutes a defense to the charge of assault, even if the belief was unreasonable.  The Court rejected this jury instruction.  The trial judge correctly informed the jury that based on the complainant’s account of the event, there was no possibility of finding a mistaken belief in consent relating to the assault, but not the intention to rape.  The Court extended the analysis from L v. R, holding that the mental element for attempted rape was satisfied if there was a mistaken and unreasonable belief that consent was present.



S (CA338/2016) v. The Queen Court of Appeal of New Zealand (2017)

Domestic and intimate partner violence, Sexual violence and rape, Statutory rape or defilement

Appellant (who was 38 years of age at the time of the offences) appealed a sentence of imprisonment for kidnapping, disfiguring with intent to injury and wounding with intent to injure the complainant (who was 17 years of age at the time of the offences).  The complainant and appellant began a relationship after the complainant left the care of Child, Youth and Family (Ministry for Vulnerable Children).  The appellant accused the complainant of sexually assaulting his daughter. As punishment for the sexual assault and a condition for continuing their relationship, he convinced the complainant to allow him to break her finger with a rock. He subsequently subjected the complainant to other physical abuse, after which she fled to a neighbor for help.  The appellant argued at the Court of Appeal that a High Court Judge had wrongly withheld the defense of consent on the charge of wounding with intent to injure.  The Court dismissed the appeal and concluded that it was possible to eliminate the defense of consent depending on the specific facts of the case.  In this case, the Court found it permissible to eliminate the defense of consent because of the power imbalance between the parties, the fact that the complainant acquiesced because of a threat to their relationship, the gravity of domestic violence, and the severity of the injury.



Ministério Público v. [Undisclosed Parties], 43/13.4JAPRT.P1 Tribunal da Relação de Porto (Court of Appeal of Porto) (2016)

Sexual violence and rape

The Public Prosecutor (Ministério Público) brought charges against defendant, “B” (name omitted from public record), for the crime of rape for having anal sex with the victim, without the victim’s consent. The Lower Court found B guilty. B appealed, arguing that the victim facilitated the anal penetration, and therefore the court should find that the victim consented. The Appellate Court found that, although the victim facilitated penetration, the victim did so to preserve his integrity, which does not qualify as consent. The Appellate Court affirmed the Lower Court’s decision finding B guilty of rape under section 164 of the Penal Code.



Ministério Público v. [Undisclosed Parties], 1004/07.8TALMG.P1 Tribunal da Relação de Porto (Court of Appeal of Porto) (2013)

Statutory rape or defilement

The defendant, “B” (name omitted from public record), was sentenced in the Lower Court for statutory rape and qualified rape of the victim, a minor girl. The court found that the defendant had repeated sexual intercourse with the victim, who had initially consented to sexual intercourse but, over time, changed her mind and wanted to end her sexual relationship with B. B threatened to have sexual intercourse with the victim’s sister, and in order to prevent that, the victim continued her sexual relationship with B. On appeal, the Appellate Court partially overturned the decision to absolve B from the charges of qualified rape. The Appellate Court held that B did not threaten the victim personally, and therefore could not be charged with qualified rape under section 163 of the Penal Code. However, the Appellate Court further held that, under Section 174 of the Portuguese Penal Code, when an adult practices sexual acts with a minor aged from 14 to 16, it is considered statutory rape if the evidence suggests that the adult has taken advantage of the minor’s inexperience, and consent from the minor does not automatically rebut the presumption of inexperience. Therefore, the Lower Court’s decision was affirmed with respect to the sentencing of the defendant as guilty for statutory rape.



Public Prosecutor of Zurich Canton v. X., BGE 129 IV 81 Supreme Federal Court (2002)

Sexual violence and rape, Trafficking in persons

The defendant, X., procured women for the purpose of prostitution from a recruiter operating in Thailand.  She deliberately chose women from poor and disadvantaged backgrounds because of their greater vulnerability and their perceived inability to resist demands made by X. On February 14, 2000, the Zurich District Court convicted X on charges relating to the promotion of prostitution of others under Article 195(3) of the Penal Code (Switzerland), but found the defendant not guilty in relation to trafficking in persons, assault, and other prostitution related offenses.  Her conviction resulted in a sentence of two-and-a-half years of imprisonment and a fine of CHF 10,000. On January 24, 2001, the Zurich Court of Appeal, found X. guilty of multiple counts of trafficking in human beings (under Article 196 of the Criminal Code), promotion of prostitution (under Article 195(3) and (4) of the Criminal Code), and for offenses relating to bribery (Articles 288a and 305). X.’s prison sentence was increased to four and a half (4.5) years and the fine of CHF 10,000 was affirmed. X. appealed to the Supreme Federal Court for the annulment of the decision made by the Zurich Court of Appeal. The Supreme Federal Court confirmed the decision of the Zurich Court of Appeal, adding that any consent that may have been given by any of the trafficked women after they had been trafficked and were present in Switzerland would have been irrelevant.



Blake v. R. Court of Appeal (2015)

Sexual violence and rape, Statutory rape or defilement

The applicant pleaded guilty before the Circuit Court of Westmoreland for the offence of having sexual intercourse with a girl under the age of 16, in violation of section 10(1) of the Sexual Offences Act. He was in a serious relationship with the underage girl, but the matter was brought to the attention of the police when the complainant discovered she was pregnant and there was a dispute regarding the defendant’s paternity (tests showed he indeed was the father). He then argued that he was lured and tempted by the complainant, who would attend to his shop in revealing clothes and make sexual advances to him. The grounds for the defendant’s application was that the four-year sentence was manifestly excessive and that the judge was obliged to indicate, as a matter of law, the sentence that would have been imposed if the applicant had been convicted at trial and use that as a starting point for taking into account the fact that the applicant had plead guilty. In addition, his counsel highlighted as mitigating factors: the girl was just six months away from the age of consent and the sexual intercourse was consensual. His counsel also argued that the judge did not take into consideration the character and antecedents of the applicant, as well as the classic sentencing principles of retribution, deterrence, prevention and rehabilitation. However, the Court decided that, although the indication of a starting point for sentencing would have been desirable, they do not see the omission as being fatal to the reasoning underlying the sentencing. They also highlighted that it’s clear that Parliament has recognized this offence as a serious one, and their commitment against it. This case is particularly important because the Court stated that Jamaica has particular difficulties in dealing with offences involving young girls constantly being abused and exploited by older men, and that they have to get the message out that the children must be allowed to transition into adulthood without any molestation. Furthermore, the court stated that the pregnancy of the girl must not be taken as a mitigating factor, because that would send the message that a man who gets the girl pregnant is likely to be treated more favorably by the Court. Finally, the Court insisted that these pronouncements, in the context of the alarming local circumstances, should be guiding principles in sentencing these matters and cases.



NJA 2017 s. 316 Högsta domstolen (Supreme Court) (2017)

Sexual violence and rape, Statutory rape or defilement

K.K. had sexual intercourse with a 14-year-old child. The issue before the court was whether KK had reasonable reason to believe that the child was under the age of 15 and, thus, whether the sexual act constituted rape against a child.  The child (Sw. målsäganden) initially lied about her age to K.K. but, according to her own testimony, she revealed her true age to KK before they had sex.  The Supreme Court concluded that the child’s age was unclear and, in any event, that her testimony was not trustworthy because the defendant’s attorney was not present when she was initially questioned and she was not subject to cross examination. As a result, the Supreme Court held that evidence was insufficient to support a conviction.



Miloslav v. The People Supreme Court for Zambia (2014)

Sexual violence and rape

The appellant was charged with the offence of indecent assault on a female contrary to Section 137(1) of the Penal Code, Chapter 87 of the Laws of Zambia. The victim worked for the appellant as a maid when she was indecently assaulted. The appellant advanced four grounds of appeal: (i) the trial court erred when (i) it found the appellant had a case to answer at the close of the prosecution’s case; (ii) it convicted the appellant of the offence in the absence of corroborative evidence; (iii) the trial court erred when it convicted the appellant on the evidence of the victim who suffered from unsoundness of mind without satisfying itself that the victim understood the nature of an oath and was capable of giving rational testimony; and, (iv) it held that the findings in the medical report supported the prosecution’s evidence and when it held that the appellant had corroborated the evidence of the victim when he admitted touching the victim. The Court dismissed all grounds for appeal on the following bases: (i) the Court was satisfied that the victim’s testimony was presented in a very coherent manner and that the three ingredients of the offence had been established and that the victim’s testimony was not discredited at all; (ii) there was medical evidence which corroborated the crime as well as evidence that the victim did not consent to the indecent assault; (iii) the victim’s testimony was very consistent and was given with ‘lucid clarity’, therefore there was nothing in the victim’s testimony that could have compelled the trial court to conduct a voir dire; and, (iv) there was medical evidence which corroborated the victim’s testimony and there was no evidence of a romantic relationship between the parties which would indicate consent. Further, the Court held that, because of the ‘master and servant’ nature of the relationship, the minimum sentence of 15 years imprisonment was inappropriate and should be set aside and replaced by a sentence of 20 years imprisonment with hard labor effective from the date of conviction.



X. Court of Appeal of Ghent (2016)

Trafficking in persons

Defendant X was condemned under Article 433quinquies and 733septies of the Penal Code for human trafficking with the aim of exploiting three women by prostitution. The fact that the women may have given their consent, and came to Belgium for the specific purpose of prostituting themselves, was considered irrelevant. The Court of Appeal further considered irrelevant the possibility that the women in question had been active in prostitution before.   The key test is whether there has been exploitation, and that this is the case when direct or indirect benefit is derived by the exploiter from the income generated by the prostitution, and this becomes the exploiter’s main source of income, regardless of whether the exploiter lives with, or is married to, the prostitute.



Kayira v. State High Court of Malawi (2015)

Statutory rape or defilement

In 2013, the appellant, 24-year-old Matthews Kyria, was found having sexual intercourse with the victim, Sarah K., who was 15 years old. The next day the victim admitted that she had been having sexual relations with the appellant since June 2011. Malawi charged the defendant with defilement contrary to § 138(1) and indecent assault contrary to § 137(1), both of Malawi’s Penal Code. Section 138(1) provides, “Any person who unlawfully and carnally knows any girl under the age of sixteen years shall be guilty of a felony and shall be liable to imprisonment to life” (¶ 7.1). In the lower court, the appellant pleaded not guilty arguing that the victim consented to the sexual acts and that she showed him an identification card that she had doctored to state that she was 17 years old at the time. The lower court found the appellant guilty on both counts. The appellant filed two grounds of appeal asking: (i) “whether the conviction of the appellant was proper with regard . . . to the circumstances of the case;” and; (ii) “whether the sentences were manifestly excessive considering the” fact the victim had mislead the appellant with respect to her age (¶ 3.1). The High Court upheld the conviction citing the strict liability nature of the crime. The Court noted that the victim was clearly underage at the time of the sexual intercourse and rejected the defendant’s consent defense noting that “girls under the age of . . . [sixteen] are incapable of giving consent due to immaturity (¶ 7.4).” Notwithstanding, the Court reduced the appellant’s sentence to four years for defilement and one year for indecent assault to run concurrently, noting that the appellant did not know that the victim was under age.



Uganda v. Kusemererwa High Court at Fort Portal (2015)

Sexual violence and rape, Statutory rape or defilement

At issue in this case is the distinction between rape, simple defilement, and aggravated defilement in the Uganda Penal Code.  The crime of defilement, created in 1990, prohibits having or attempting sexual intercourse with a girl under 18 years of age and carries a maximum penalty of life imprisonment.  Defilement is considered aggravated if the girl is under 14 years old, the offender has HIV/AIDS, the offender is the victim’s parent or guardian, the girl has a disability, or the offender is a serial offender, and it carries a maximum penalty of death.  There is no consent requirement for defilement because children cannot consent to sexual intercourse.  The Penal Code section prohibiting rape describes it as “unlawful carnal knowledge of a woman or girl without her consent” (emphasis added) or if consent is obtained through any force, threat, or intimidation.  The maximum penalty for rape is death.  The victim in this case was 16 when the defendant had unlawful carnal knowledge of her without her consent.  The defendant argued that he should be charged with simple defilement instead of rape because rape only applies to an adult woman who can give consent.  The State argued that the statutes give the State discretion to choose between the charges.  Citing other cases in which the State charged for rape instead of defilement because the defendant used excessive force, the State argued that this case the charge of rape was justified.  The Court found that these cases were decided before Parliament had fully settled the statutory details of rape, simple defilement, and aggravated defilement.  Now that the law is settled, the law does not allow rape charges for children because of the element of consent; unlawful sexual intercourse with children must be prosecuted as defilement.



Rex v. Makebe High Court of Lesotho (2011)

Sexual violence and rape

The complainant alleged that the defendant raped her.  The defendant vehemently denied the allegations and testified that the sex was consensual.  The High Court treated the defendant’s claim of consent as an affirmative defense ruling that he had the burden of proving consent. The Court found that the defense was unable “through cross examination, to show that the sex was consensual” (p. 4). Consequently, the Court convicted the defendant of rape. This was a landmark case because it essentially shifted the burden of proof in rape cases. Instead of requiring the prosecution to prove a lack of consent, the court made the defendant prove that the victim consented to the sexual encounter.    



Rex v. Tekane High Court of Lesotho (2007)

Statutory rape or defilement

The defendant was convicted of persistent sexual abuse of a minor child.  The trial evidence showed that the defendant was the victim’s uncle and that he convinced her that, in accordance with tradition and custom, he was supposed to teach her to have sex.  As instructed, the minor allowed the defendant to perform sexual acts on her.  Since the child was below the legal age of consent, the High Court did not consider her level of resistance. The Court found the defendant guilty of sexually abusing a minor and sentenced him to fifteen years in prison.  



Nombuyiselo Siholongonyane v. Mholi Joseph Sihlongonyane High Court of Swaziland (2013)

Gender discrimination

Husband challenged his wife’s capacity to initiate legal proceedings without his consent. The common law permitted a married woman to sue without the consent of her husband only if the woman attained approval from the court first. The High Court held that this common law requirement was unfair discrimination because it applied only to women and not to men, a violation of Sections 20 and 28 of the Constitution, which respectively state that “all persons are equal before and under the law” and that “women have the right to equal treatment with men.”



Nimely v. Paye, et al. Supreme Court of Liberia (2011)

Sexual violence and rape, Statutory rape or defilement

On appeal, the Supreme Court reversed the lower court’s judgment that appellant was guilty of rape. The complainant alleged that the appellant had sex with her when she was 13 years old and he was 18 years old. She alleged that the appellant invited her to his room, gagged her, and had sexual intercourse with her. Her brother’s wife forced open the door after the complainant failed to answer her phone call. The complainant's brother then called the police. The appellant admitted to police that he and the complainant had sex. The court found the appellant guilty of rape because the elements of Liberian statutory rape law are (1) sexual intercourse, (2) the perpetrator is at least 18 years of age, and (3) the victim is less than 18 years of age. However, the court reversed his conviction because the trial court relied on inaccurate information in determining the appellant’s age. The appellant testified that he was 17 years old at the time of the rape. Documents such as a passport or birth certificate were unavailable. The court held that in the absence of any rebuttal evidence by the prosecution, the court must accept that the appellant was 17 years old and therefore a juvenile when he had sex with the complainant. Under Liberian law, a juvenile cannot commit a crime, but is instead considered a juvenile delinquent. If a case involves a juvenile delinquent who is over 16 years of age and is accused of conduct that would constitute a felony carrying a sentence of life imprisonment or death if committed by an adult of at least 18 years of age, then the circuit court must consider the best interests of the Republic and the juvenile to determine whether to exercise its jurisdiction over the matter and preside over the case or choose to refer it to the juvenile court. However, the circuit court did not make this determination. Rather, it proceeded with the trial as though the the appellant was an adult and sentenced him to life imprisonment as an adult. Therefore, the Supreme Court reversed his conviction and remanded him to the custody of his parents until the age of 21.



Gudu Masuku v. The State High Court of Zimbabwe (2004)

Sexual harassment, Sexual violence and rape

The appellant was convicted of raping the complainant ten years before she reported it to anyone and eleven years before she reported it to the police. He was sentenced to three and half years of imprisonment, with two years suspended on condition of good behavior. Although the trial judge found the complainant credible, the court found that she was not consistent in her evidence. It emphasized the trail court’s finding that she was suffering from post- traumatic stress disorder and her delay in reporting. As there was no independent evidence beyond the complainant’s testimony, the court could not hold that (i) the danger of false or erroneous implication was excluded beyond reasonable doubt or (ii) the state proved its case beyond reasonable doubt. Thus, the conviction was quashed and the sentence was set aside.



R. v. J.A Supreme Court of Canada (2011)

Gender-based violence in general, Sexual violence and rape

This appeal involved the interpretation of “consent” under the sexual assault provisions of the Criminal Code of Canada. The Supreme Court of Canada in its seminal decision in 1999 in R. v. Ewanchuk unanimously confirmed that consent to sexual activity must be active, voluntary and revocable, meaning that a woman can say “no” at any time. Further, the Supreme Court in Ewanchuk held that consent cannot be implied, whether from a complainant’s dress or the fact that she said “yes” on an earlier occasion. R. v. J.A. involved a woman who reported that she was sexually assaulted by her common-law spouse where the accused strangled the complainant into unconsciousness. When the complainant awoke, she found herself bound and being anally penetrated. The accused argued that the complainant consented “in advance” to the strangulation and anal penetration that took place while she was unconscious. In its judgment, the Supreme Court held that “an individual must be conscious throughout the sexual activity in order to provide the requisite consent” and that “the definition of consent…, requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy the requirement.”



SONKE Gender Justice Network v. Malema Equality Court for the District of Johannesburg (2009)

Gender discrimination, Sexual harassment, Sexual violence and rape

The respondent made comments at a political rally regarding the consent of the complainant in Jacob Zuma's rape trial. Specifically, he opined that a rape victim would leave early in the morning, but the complainant in this case had stayed for breakfast and requested money for a taxi. The plaintiff, a gender justice organization, sued him for hate speech, unfair discrimination, and harassment of women. The court found that the respondent's comments were based on prohibited grounds as outlined in South Africa's Equality Act, specifically sex and gender. The court also found the comments expressed by the respondent constituted "generalizations about women, rape, and consent which reinforce[d] rape myths." Moreover, the respondent's words suggested "that men need not obtain explicit [sexual] consent from women." The court found the respondent liable for hate speech and harassment.  For these reasons, the court concluded the respondent infringed the rights of women and ordered him to pay a fine and make a public apology.



Kamau v. Republic High Court of Kenya at Nakuru (2004)

Sexual violence and rape

The appellant was convicted of rape and sentenced to 12 years imprisonment with hard labor and six strokes of a cane.  The complainant testified that on the day of the incident, she met the appellant at a bar and agreed to spend the night with him for a sum of money. The appellant took her to a house where he and two colleagues raped the complainant all night in turns.  The appellant testified at trial that they had an "arrangement" with the complainant and did not rape her.  The complainant testified that she had withdrawn her consent before intercourse with the appellant and his co-perpetrators.  The morning after, the complainant escaped the house to report the rapes to the police and received treatment for her injuries at a hospital.  Ruling on the appeal, the High Court found that that the complainant withdrew her initial consent before the sexual act and that the appellant is guilty of rape.  The Court also reduced the sentence to six years imprisonment and set aside the corporal punishment, which was outlawed by the Criminal Law (Amendment) Act of 2003.  



Chepkwony v. Republic High Court of Kenya at Nakuru (2006)

Sexual violence and rape, Statutory rape or defilement

The appellant was convicted of defilement for having sexual intercourse with the complainant, who was 12 years old at the time.  The trial court sentenced him to life imprisonment.  He appealed, arguing that the prosecution did not satisfy its burden of proofs, that there was no evidence of violent force, that the complainant was his girlfriend, and that she consented.  The prosecution presented evidence of the complainant's physical injuries and the appellant's HIV-positive status.  The Court dismissed the appeal because sex with any girl younger than 16 years old is unlawful regardless of consent, and the appellant had not raised the defense that he had a reasonable belief that the girl was above the age of consent.  The Court rejected appellant's plea for special consideration because of his alleged HIV status.  Instead, the Court cited the appellant's decision to expose a 12-year-old child to HIV/AIDS in its decision to uphold the life sentence.



Rex v. Rankhebe High Court of Lesotho (1987)

Gender-based violence in general, International law, Sexual violence and rape, Statutory rape or defilement

The accused was convicted of raping an 11 year-old girl. In considering sentencing, the High Court upheld the conviction and, citing South African and English law, noted the presumption that girls under the age of 12 are considered too young to give their consent to intercourse, but in cases involving girls between the ages of 12 and 16 the prosecution must demonstrate that there was non-consent for the accused to be convicted of rape. If a girl of 12 to 16 years old does consent to sexual intercourse with a man, then the man should be found guilty of defilement or statutory rape under the Women and Girls Protection Proclamation No. 14 of 1949. [Note: The Convention on the Rights of the Child defines a child/minor as any person under 18 years of age in the absence of domestic laws. Generally, minors do not have the capacity to give consent.]



Kamwendo v. Republic High Court of Malawi (2004)

Sexual violence and rape

The accused was convicted of rape and sentenced to a custodial term of imprisonment of 18 months.  He appeals on the grounds that the lower court erred in convicting him in contradiction of the Medical Report that found it was a fabricated rape. The Court dismissed the appeal finding that the complainant's story was corroborated by the evidence and did not therefore require the Medical Report's corroboration as well and also that the Medical Report is not to be taken as conclusive evidence of penetration.  The evidence also showed that the intercourse the appellant had with the complainant was non-consensual because the consent was fraudulently obtained.



Republic v. Hwangwa High Court of Malawi (2008)

Sexual violence and rape, Statutory rape or defilement

The appellant was convicted of defiling a 12-year-old girl and appealed the conviction on the grounds that the intercourse was consensual and that he believed the complainant was older than 12 years at the time. The Court dismissed the appeal and noted that the evidence was sufficient to prove a lack of consent but also that, at 12 years old, the complainant was too young to give consent. The Court also noted aggravating factors, including that the appellant had intercourse with the complainant on multiple occasions and the appellant had threatened the complainant against telling her parents. 



Mogodu v. State High Court of Botswana (2005)

Sexual violence and rape

The appellant appealed his conviction for rape in the subordinate court of the first class for the North West Magisterial District on the grounds that the evidence did not show lack of consent, and that the sexual intercourse between the appellant and the complainant was consensual.  The Court upheld the conviction on the grounds that the evidence showed that the appellant used threats and coercion to force the complainant to have intercourse with two other persons, which rape.  Therefore, the Court upheld the conviction. The Court also discussed proper procedures for handling criminal trials for defendants who are minors at the time of the alleged crime but over the age of majority at the time of trial, as the appellant's two co-accused were in this case.



State. v. Ketlwaeletswe Court of Appeal of Botswana at Lobatse (2007)

Sexual violence and rape, Statutory rape or defilement

The appellant was found guilty in magistrates court of raping a 10-year-old girl and sentenced to 10 years in prison.  He appeals on the question of whether sexual intercourse with a girl of that age should be considered as rape or "defilement" because rape requires a lack of consent while the Penal Code defines defilement as carnal knowledge of anyone under the age of 16. The High Court held that, in accordance with the principle followed by the common law in South Africa incorporated by Botswana, a girl under the age of 12 is deemed incapable of consenting to intercourse and therefore intercourse with any person under the age of 12 is deemed rape. 



Legislation

Schweizerisches Strafgesetzbuch/Swiss Penal Code, Articles 189 - 192: Offenses Against Sexual Liberty and Honor (2019)

Sexual violence and rape

Art. 189 provides for criminal penalties of imprisonment for not more than 10 years or a monetary penalty for any person who uses threats, force or psychological pressure on another person or makes that other person incapable of resistance in order to compel him or her to tolerate a sexual act similar to intercourse or any other sexual act.  If the offender acts with cruelty, and if the offender used an offensive weapon or other dangerous object, the penalty is imprisonment for not less than three years. Art. 190 provides that a person can be sentenced to between 1 and 10 years in custody or a fine for using violence, threats, or psychological pressure to force a female to engage in a sexual act, or for making her incapable of resisting.  Art. 191 provides for criminal penalties of imprisonment for not more than 10 years or a monetary penalty for any person who, in the knowledge that another person is incapable of judgement or resistance, has sexual intercourse with, or commits an act similar to sexual intercourse or any other sexual act on, that person. Art. 192 provides for criminal penalties of imprisonment for not more than three years or a monetary penalty for any person who, by abusing a dependent relationship with a person in institutional care, an inmate of an institution, a prisoner, a detainee or a person on remand, induces the dependent person to commit or submit to a sexual act. Art. 193 provides for criminal penalties of imprisonment for not more than three years or a monetary penalty for any person who induces another to commit or submit to a sexual act by exploiting a position of need or a dependent relationship based on employment or another dependent relationship. Unofficial English translation available here.



Code of Virginia: Rape (Va. Code § 18.2-61)

Domestic and intimate partner violence, Sexual violence and rape, Statutory rape or defilement

This Virginia law defines rape as sexual intercourse with a complaining witness, or causing a complaining witness to engage in sexual intercourse with any other person, regardless of the existence of a spousal relationship and such act is accomplished (i) against the complaining witness's will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness's mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim.



HIV Control of the Disease and Related Issues (Amending Title 33) (2010)

Abortion and reproductive health rights, Employment discrimination, Gender discrimination, Harmful traditional practices, Sexual violence and rape, Statutory rape or defilement

HIV, Control of the Disease and Related Issues (Amending Title 33) (the “Law”), institutes various government initiatives and provides guidance in dealing with HIV-related issues specifically affecting women. For example, the Law provides that the Ministry of Health and Social Welfare and/or National AIDs Commission (the “Health Institutions”) must take into consideration differences in sex and gender when providing education about HIV. Additionally, the Law lists a number of key issues which the Health Institutions should address in their strategies and programs for protecting and fulfilling the human rights of women in the context of HIV. These include:

The equality of women in public and domestic life (Section 18.9(i));Sexual and reproductive rights, including the concept of consent and a woman’s right to refuse sex and her right to request safe sex (Section 18.9(ii));A woman’s right to independently utilise sexual health services (Section 18.9(ii));Increasing educational, economic, employment and leadership opportunities for women (Section 18.9(iii));Strategies for reducing differences in formal and customary law which prejudice women’s rights (Section 18.9(v)); andThe impact of harmful traditional practices on women (Section 18.9(vi)).

Furthermore, the Law directs the Ministry of Health and Social Welfare, the Ministry of Justice, and the Liberian National Police to implement educational programs for their personnel in relation to sexual assault perpetrated on women. These are designed to provide personnel working for these government agencies with a better understanding of sexual assault and protect the rights of sexual assault victims.