Women and Justice: Keywords

International Case Law

A.S. v. Denmark CEDAW Committee (2018)

International law, LGBTIQ

A.S., a Uganda national, applied for asylum in Denmark.  She claimed she was wanted in Uganda and at risk of being killed there because she was a lesbian.  She was forced to marry a man and have three children, and when he died, she made a living working in a bar frequented by lesbians.  Three men made advances to her in the bar, she turned them down, and they became aggressive.  Her home was ransacked and burned, her belongings were stolen, and the police looked for her, including at her mother’s house.  She left Rwanda traveling with a visa obtained in Kampala.  Danish authorities rejected the asylum application, noting the visa contained the wrong name.  A.S. filed a complaint with CEDAW claiming that, deportation to Uganda would violate her rights under articles 1-3 of the Convention because her life would be in danger at the hands of the police and ordinary people due to her sexual orientation.  She claimed that her case was not properly investigated by the Refugee Appeals Board.  The Committee noted that the Danish authorities found A.S.’ account lacked credibility due to factual inconsistencies and lack of support related to her claim to be a lesbian and her account of the bar incident.  The Committee also noted that the authorities considered the situation of gay people in Uganda, and found that, notwithstanding the fact homosexuality is prohibited under the Penal Code, the ban has not been enforced and gay people are not targeted.  The Committee deemed the communication inadmissible under article 4 (2)(c) concluding that A.S. failed to support that the lack of reference to the Convention in the asylum decision or the refusal to call a witness stemmed from any gender-based discrimination.  It also did not find any procedural defect or arbitrariness in the decision-making process or any breach of the Convention as a result of the initial error related to A.S.’ name.



Domestic Case Law

Gutierrez v. The Queen Court of Appeal of Belize (2018)

Employment discrimination, Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The appellant was convicted of raping a 16-year-old female colleague and was sentenced to eight years in prison.  The Court of Appeal granted a retrial because the trial court had “erred in failing to give a proper/adequate direction to the jury.”  Under Section 92(3)(a) of Belize’s Evidence Act, a trial court has discretion to “warn the jury of the special need for caution” where the only evidence against a person charged with rape is the word of the victim.  Where a judge exercises such discretion, he or she must provide the reasons for cautioning the jury.  The trial judge did caution the jury in the case, but the Court of Appeal found he had erred by not warning the jury that the complainant had lied during her testimony and by not pointing out the complainant’s admission that she had been raped was made only after being threatened by her father.  The Court of Appeal also found that the trial judge should have warned the jury that the complainant “may have had some kind of relationship with the Appellant.”



Gardea v. R. Supreme Court of Liberia (2014)

Sexual violence and rape

The Appellant was convicted of raping his step-daughter on three occasions and sentenced to life imprisonment. He appealed the decision on the basis of lack of evidence. The prosecution’s case relied on evidence provided by the victim (deceased at the time of the trial), her nine-year-old sister, and a medical professional who examined the victim at the hospital immediately after she was raped. The defence argued that evidence provided by the victim immediately before her death was hearsay. The court held that, while under Liberian law hearsay cannot form the basis of a criminal conviction, “a dying declaration” (i.e., when a victim provides evidence concerning her or his attacker whilst at impending death in extremis) can be admitted as evidence and is not hearsay. The court also pointed out that, despite her young age, the victim’s sister’s evidence, which was admitted, was not hearsay because she was a direct witness to the attack and was subject to comprehensive cross examination. Finally, the court rejected the defence’s claims that the medical professional who inspected the victim in the hospital was not an expert witness because of her credentials that included a medical degree and over ten years of experience treating children victims of sexual violence. The conviction was upheld.



Sentencia nº 542 de Tribunal Supremo de Justicia Tribunal Supremo de Justicia (2015)

Sexual violence and rape, Statutory rape or defilement

A teenage girl reported she had been sexually abused by a man.  A medical exam confirmed she had suffered involuntary anal penetration on the date of her report.  At trial, however, the girl testified that she was in a sexual relationship with a boyfriend at the time of the alleged abuse, another girl had advised her to blame the defendant in order to protect the boyfriend, and the defendant was innocent.  Her father corroborated her testimony, explaining that she recanted her accusations when he told her “where the defendant was being held.”  Noting “contradictions” in the girl’s and father’s testimony (e.g., the girl did not know the full name or the address of the boyfriend or the other girl), the trial court gave “no weight” to the recantation, indicating that it was the product of “manipulation.”  Instead, based on the medical evidence and the testimony of witnesses who responded to the girl’s initial report, the trial court convicted the defendant.  The court of appeals affirmed.  On a cassation appeal to the Supreme Court, the defendant argued that (1) the trial court failed to articulate the grounds for finding each element of the offense, and (2) the conviction was incongruous because there was no evidence identifying him as the perpetrator other than the girl’s own now-recanted statements.  The Supreme Court vacated the conviction and ordered a new trial, ruling that the trial court had made certain findings about the alleged crime without citing a basis in the record.  Notably, after a lengthy discussion of the importance of protecting victims from “secondary victimization” in the legal process, the Court authorized the trial court to read the girl’s testimony from the first trial into the record of the new trial, in lieu of requiring her to submit to live re-examination.    



Hall v. R. Court of Appeal (2014)

Sexual violence and rape, Statutory rape or defilement

The appellant was charged for carnal abuse of a girl under the age of 12 years and buggery. On 20 April 2009, the appellant was convicted for carnal abuse (but not for buggery). On 9 November 2010 the appellant filed for leave against the conviction and the sentence. He argued in his appeal that the trial judge was obliged to give the jury a separate and distinct warning related to the dangers of convicting relying solely on the uncorroborated evidence from children (in addition to the warning she gave them in relation to the dangers of convicting relying solely on the uncorroborated evidence of complainants in sexual cases).  However, the Court decided that it’s entirely within the discretion of the trial judge to determine (taking into account the content and manner of the witness’ evidence, the circumstances of the case and the issues raised), whether to give any warning at all, and if so, in what terms. As a result, in exercising her discretion, the judge decided the girl’s age did not warrant a specific, separate warning other than the one given related to the danger of acting on uncorroborated evidence in a sexual case.



Prosecutor's Office v. Radmilo Vuković Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2008)

Gender violence in conflict, Sexual violence and rape

In 2007, the Court of BiH found Radmilo Vuković, a member of the Republika Srpska Army, guilty of War Crimes against Civilians under Article 173(1) of the Criminal Code of BiH for raping a Bosnian woman at least six times between June and August 1992, the early months of the Bosnian War.  In 2008, a panel of the Appellate Division acquitted Vuković of these charges, finding the testimonies of the claimant and her sister to be inconsistent and thus not credible.  First, the Court noted factual inconsistencies between the testimony of the claimant and her sister (e.g., the date of the first assault, whether the claimant told her mother of the assault).  Second, the Court found the testimonies of the claimant and her sister were inconsistent with prior statements they had given in 1994 and 2001.  Third, the Court noted that two defense witnesses testified that Vuković and the claimant were cohabiting partners engaged in an extramarital affair before the Bosnian War (however, the claimant denied any relationship).  Lastly, the Court questioned why the claimant did not obtain an abortion to terminate the pregnancy resulting from the alleged rape once she was in safe territory.  This case is notable because of the demanding standard set by the court regarding the testimony of rape victims: “The testimony of the injured party must not raise any suspicion as to its exactness and truthfulness, credibility and integrity of the witness exactly because the act of rape, as a rule, is never attended by a witness who might decisively support the testimony of the injured party.”  This case is also notable because the Court considered the claimant’s decision to not have an abortion to be evidence that a rape had not occurred.

Second instance verdict available in English here.



Minister for Immigration and Citizenship v. SZMDS High Court of Australia (2010)

Gender-based violence in general, International law, LGBTIQ

The respondent, an allegedly homosexual citizen of Pakistan, arrived in Australia on a visitor visa in 2007 and applied for a protection visa. To be recognized as a refugee, the respondent had to show that he had a well-founded fear of being persecuted due to his race, religion, nationality, membership of a particular social group, or political opinion. The respondent argued that, as a homosexual man, he belonged to a particular social group that was persecuted and subject to harm in Pakistan. The respondent’s protection visa application was initially denied, and the Refugee Review Tribunal (Tribunal) affirmed this decision. The Tribunal found that while homosexuals in Pakistan constitute a protected group, the respondent was not actually a homosexual because he safely make a three-week visit to Pakistan before traveling to Australia and failed to seek asylum on a recent visit to the UK.  On appeal, the Federal Court found that the Tribunal’s decision was based on illogical reasoning. The Minister for Immigration and Citizenship appealed the Federal Court’s decision to the High Court. In a majority decision, the High Court overturned the Federal Court’s decision, finding that the Tribunal’s reasons for not believing the respondent was actually a homosexual were sound.



Rex v. Simelane High Court (2017)

Sexual violence and rape, Statutory rape or defilement

The accused was charged with rape of his seven-year-old granddaughter between the months of August to October 2008. The prosecution alleged that the accused did intentionally have unlawful sexual intercourse with a female seven-year-old minor who is incapable of consenting to sexual intercourse. The complainant, her brother who was sharing a bedroom with her during the rapes, the complainant’s aunt who the complainant first told of the rapes, a neighbor who had been told of the accused’s actions by his wife, the doctor who examined the complainant, and the constable all testified for the prosecution. The accused denied the charges and argued that all of the witnesses were lying, specifically that the children had been coached by the police. The Court discussed the elements that the Crown must prove in order for the accused to be found guilty of rape, namely (1) the accused must be identified; (2) there must be sexual intercourse; and (3) there must be lack of consent by the complainant. The accused was found guilty of rape. In sentencing, the Court found that the Crown proved that there were aggravating factors under Section 185(bis) of the Criminal Evidence Act (1938), namely, (1) the victim was a minor of a tender age; (2) the accused sexually assaulted the victim on more than one occasion; and (3) the accused stood in locus parentis to the victim and this abused the relationship of trust. The Court found the witnesses credible and found the accused guilty as charged.



Kisingiri v. Uganda High Court at Kampala (2016)

Sexual violence and rape

The appellant was convicted of having carnal knowledge of a person against the order of nature (i.e., homosexual sex acts, in this case anal sexual intercourse) in violation of section 145 of the Penal Code Act.  On appeal, appellant’s counsel emphasized the State offered no evidence of penetration, that corroboration is necessary in cases of sexual offenses, and the compromised credibility of several material prosecution witnesses, including a complainant.  Four years before the trial when he was 17 or 18, the complainant testified that he went to the Appellant’s home for a party, which never happened.  Instead, the Appellant gave the complainant a glass of wine and the complainant blacked out.  The next thing he remembered was anal bleeding and seeing the defendant entering the room.  The complainant testified that he was too ashamed to ask what happened.  The following day went to the doctor, who told the complainant that it seemed that he had been sodomized and gave him medication.  The appellate judge agreed with the trial judge that this did not amount to direct evidence of a sexual act.  Four years later in 2013, the complainant told Reverend Solomon Male about the assault after hearing him on the radio.  The police then searched the appellant’s home where they found chloroform, which the complainant was not examined for at his 2009 doctor’s appointment.  Both the trial and appellate judges noted that the fact that the complainant did not tell any of his housemates about his bleeding or assault at the time cast doubt on his account.  While medical evidence is not required for sexual assault cases, the court here was concerned that it found no evidence at all of sexual assault.  The Court found that the trial judge erred in finding that the complainant’s failure to report the assault in 2009 was “a natural reaction” as a result of shame, especially because no psychologist or behavioral specialist testified at trial.  The appellate court quashed the defendant’s conviction and sentence after finding that the prosecution failed to prove the first element of the offense, penetration, beyond a reasonable doubt.  The appellate court also mentioned a key witness’, Pastor Solomon Male’s, publication of “malicious information of sodomy” against Ugandan pastor Robert Kayanja, which is a reference to an incident in which a boy who had accused Kayanja of sodomy withdrew his accusations and said that Male and several of his colleagues paid him and other boys to accuse the minister.  In that case, Male and his clergy colleagues were convicted of conspiring to destroy Kayanja’s name and professional reputation.



Uganda v. Okiring High Court at Mbale (2011)

Sexual violence and rape

The complainant was carrying a bag of maize on the back of her bicycle.  When the bag fell off, the defendant and two of his colleagues offered to help.  Two then raped her and the third stole her bicycle.  They fled when a friend of the complainant came up the road on his motorcycle.  The victim recognized her attackers and identified them to the police.  She also went to the hospital for a medical examination.  The defendant denied the charges and claimed never to have seen the victim before court proceedings began.  The trial court found credible the complainant and the prosecution’s other corroborating witnesses, which included the complainant's male friend who found her immediately after the rapes, local council members, and police.  The Court made clear that the lack of medical evidence was not dispositive.  As a first time offender who had served over three years awaiting trial, the Court sentenced the defendant to an additional 18 months imprisonment.



State v. Nghidini High Court of Namibia (2015)

Domestic and intimate partner violence, Statutory rape or defilement

The defendant, an 18-year-old uncle of the complainant, was criminally charged for housebreaking with intent to rape and raping his 12-year-old niece. The complainant alleged that the defendant, on three separate occasions, came to the complainant’s home and raped her.  The complainant’s mother found out after take the complainant to a clinic, which confirmed that she was pregnant, and confronting the defendant through the headman, as tradition dictates.  According to the defendant, the complainant invited him to her home and agreed to have sex with him for money, specifically N$6. Given the conflicting testimony, the High Court of Namibia (“High Court”) found that the prosecution failed to prove the housebreaking with the intent to rape and rape charges beyond a reasonable doubt.  In explaining its reasonable doubt, the Court cited the facts that complainant did not mention until her cross-examination that her uncle in fact gave her money on the day of the first rape, that she did not wake her seven-year-old brother or otherwise raise an “alarm” when her uncle arrived at her hut at night, and that she continued to withhold information from her mother “after her mother created a secure environment and the accused failed to execute his threat” to beat the complainant if she told anyone.  Still, the Court did not believe the defendant’s testimony that his niece was a “great temptress.”  Instead of homebreaking with intent to rape and rape as charged by the State, the High Court convicted the defendant under section 14, sexual offences with youths, of the Immoral Practices Act, 21 of 1980, which carries a maximum penalty of 10 years imprisonment and/or a fine not exceeding N$40,000.  The Court found that the State proved the three elements of that offense: the defendant (1) committed a sexual act with a child under the age of 16 (2) when he was more than three years older than her and (3) not married to her.  Although the defendant claimed that he did not know the complainant’s age, the High Court held that, in order to avoid conviction, the defendant had the burden of proving that the complainant deceived him regarding her age. The defendant failed to provide such proof. 



Kamaze v. State High Court (2013)

Statutory rape or defilement

The appellant was convicted of raping his minor daughter and sentenced to 18 years and three years imprisonment, for rape and incest respectively, to run concurrently. He appealed his conviction, claiming that his minor daughter was the only witness to the alleged crime, that the trial judge improperly assumed the complainant was under 18 years old, that the prosecution did not meet its burden of proof, that his rights to legal representation were not explained, and that the sentences were unreasonable. The High Court of Namibia (“High Court”) determined that the child’s testimony was sufficient to sustain the conviction pursuant to Section 208 of Act 51 of 1977, which allows for conviction based on “the single evidence of any competent witness.”  The High Court held that “although the complainant is a single witness to the actual rape, the fact that she immediately reported that to her sister and her niece corroborates her evidence,” and that the medical report, which was the result of a doctor’s examination conducted on the night of the rape after the complainant took a bath, corroborated her account of being raped.  However, the High Court allowed the appeal on the charge of incest.  The High Court cited the “single intent” test, which requires that two criminal acts be considered as one transaction if the evidence for one of the acts necessarily involves proof of another criminal act.  The Court stated that the defendant had a single intent – to rape his daughter – so he should only be convicted of one crime (rape) rather than two. 



Massaquoi v. Republic of Liberia Supreme Court of Liberia (2014)

Sexual violence and rape, Statutory rape or defilement

On appeal, the Supreme Court affirmed the lower court’s judgment that appellant, Power Massaquoi, was guilty of rape and reduced his sentence from life imprisonment to 50 years imprisonment. The victim, an 11-year-old girl, stated that the appellant, 38, forced her into his room and had nonconsensual sexual intercourse with her. The court affirmed the lower court’s admission in evidence of the testimony of the victim’s mother, who testified that she saw blood on the victim’s skirt and questioned the victim about the incident. The court held that the testimony qualified as an exception to the hearsay rule because statements are generally admissible “to determine the trustworthiness and reliability of statements made by child victims of abuse.” In addition, the court affirmed the lower court’s admission in evidence of the expert testimony of a physician’s assistant. The court held that even though the physician’s assistant did not have a medical degree, he qualified as an expert because of his experience with and knowledge of victims of sexual violence. The court noted that social workers trained in these areas would qualify as expert witnesses.



People of the Philippines v. Bernabe Pareja Y Cruz Supreme Court of Philippines (2014)

Sexual violence and rape, Statutory rape or defilement

The appellant was convicted of two counts of statutory rape. The appellant sought to overturn the conviction on the ground that the victim’s testimony was riddled with inconsistencies. The Supreme Court set forth the recognized rule that the “assessment of the credibility of witnesses is a domain best left to the trial court judge… and when his findings have been affirmed by the Court of Appeals, these are generally binding and conclusive upon this Court.” While there are recognized exceptions to this rule, the Supreme Court found no substantial reason to overturn the identical conclusions of the trial and appellate courts on the witnesses’ credibility and affirmed.



People of the Philippines v. Antonio Mendoza Y Butones Supreme Court of Philippines (2005)

Sexual violence and rape, Statutory rape or defilement

The appellant was convicted of rape of his daughter. The Supreme Court affirmed the conviction, noting that the appellant failed to proffer a credible defense, instead merely denying the accusations. To the contrary, there is a recognized presumption of credibility when a daughter accuses her father. The conviction was upheld.



Suleiman v. Republic High Court of Kenya at Machakos (2004)

Sexual violence and rape, Statutory rape or defilement

The appellant was charged with rape and defilement and alternatively with indecent assault for having carnal knowledge of the complainants under the guise of treatment as an herbalist/witch doctor.  He was convicted of indecent assault and sentenced to four years imprisonment and hard labor. He appealed the conviction on grounds of insufficient evidence and undue harshness of the sentence. The Court held that a rape conviction requires penetration and lack of consent on the part of the victim; defilement only requires penetration but not lack of consent.  Evidence of penetration can be inferred from sexually transmitted infections; medical examinations are not required to sustain a conviction.  Appellant's defense that he was framed was dismissed as it was improbable that the complainants would subject themselves to rape to avoid paying him.