Women and Justice: Keywords

Domestic Case Law

R. v. H. Supreme Court of Queensland (2002)

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

The appellant advertised in Korea for families to come to Australia to attend a missionary school. The appellant was responsible for settling those families’ affairs, and they were dependent on him to organize the necessary extensions of visas. Most of the time, the parents spoke no English and their children spoke little English. The appellant organized accommodation for the parents of the complainant among other families, and at the same time he arranged for separate accommodation for their daughter with children of other families.  The accommodation for the daughter was close to the appellant’s house, but an hour’s drive from her parents’ house. The appellant was the only individual who had the keys to the children’s rooms. The appellant advised the father of the complainant to return to Korea to seek more families, and he did. One night, the appellant returned around 1:00 AM to the children’s accommodation and entered the complainant’s room where another girl was with her.  That girl left after certain remarks by the appellant.  The appellant took the complaint in his van to a remote place where he proceeded to touch her, took off her pyjamas, and then had sexual intercourse with her, despite her resistance.  During this resistance, they both fell to the floor of the van and the appellant injured his arm. The appellant threatened the complainant not to inform anyone about this incident, reminding her that her family needed him to renew their visas. The complainant immediately told her friends at the accommodation of the sexual assault. In the morning, the complainant walked to a public telephone where she called her father in Korea and told him about the incident, and then called her mother to inform her of the same. In fear with respect to their visas, the family went with the appellant to Brisbane where they had their visas renewed, acting as if nothing happened. Later, the father flew back to Australia and immediately lodged a complaint with the police. Through investigation, the police found physical evidence of rape, including injuries to her genitals consistent with rape, the appellant’s DNA, and wounds consistent with complainant’s statement of the rape.  Based on the evidence, the District Court sentenced the appellant to eight years for two counts of rape and one count of indecent dealing with a circumstance of aggravation. Relying on older cases, the appellant filed this appeal to lower his sentence, claiming it was too high for someone his age, considering he had no previous convictions and that there were no violence or weapon used. The Queensland Court of Appeal dismissed these arguments, stating that the older cases referenced by the appellant were dated before the implementation of new rules that increased the sentences for rape. In addition, even though no violence was used against the complainant, the court found that the appellant took advantage of her because of her visa situation, and this was an aggravating factor. Therefore, the appeal was dismissed.



R. v. Hunter Supreme Court of Queensland (2014)

Domestic and intimate partner violence, Femicide

The appellant and the victim were married for 37 years. On 6 May 2010, the victim was struck at least 15 times on the head, face, and forearm with severe force, causing her death. When police arrived, they found the victim’s body doused in petrol in the garage near her car.. Police found the appellant lying on the floor in the lounge room in the house with a head injury and had a letter opener sticking out of his right hand. The appellant was taken to hospital and later interviewed by the doctors and police. The appellant told police that he got out of bed, walked into the lounge room, and was hit on the head by a man wearing a stocking over his head. Throughout this interview and later investigations by the police, the appellant maintained that there was an intruder who entered the house, assaulted him, and then killed his wife. At trial, the Crown’s case against the appellant included several pieces of circumstantial evidence:  the victim was covered by appellant’s clothing, someone attempted to clean up the blood with towels, the victim was doused in petrol but not ignited, indicating that someone tried to destroy DNA, the footprints around the victim’s body matched footwear commonly worn by appellant, the appellant’s DNA was on a bloody metal bar found near the victim’s body, the metal bar appeared to come from the household, blood in and around the house matched victim’s and appellants, appellant had dried, flaky blood on him, the appellant gave inconsistent accounts of the events, appellant lied to officials, and appellant had the motive to kill her because he had financial difficulties and was the beneficiary of her life insurance. In light of the evidence, the appellant was convicted of  murdering the victim.The appellant filed an appeal on the grounds that the trial judge erred in  (i) directing the jury that they could use appellant’s lie in relation to the murder weapon belonging to him as implied admission of his guilt; (ii) directing the jury that they could use appellant’s lie about owning footwear similar to that which left footprints around the victim’s body as implied admission of his guilt; (iii) admitting the lack of reaction from the appellant when learning of his wife’s death as evidence of his guilt; (iv) failing to direct the jury in relation to evidence that the appellant did not ask how his wife died; (v) misdirecting the jury in relation to motive; and, (vi) failing to direct the jury in relation to evidence of DNA analysis. The Supreme Court dismissed the appeal, finding that the trial judge did not err in jury instructions or admissions. 



Habeas Corpus 124.306 Superior Tribunal de Justiça (Superior Court of Justice of Brazil) (2016)

Abortion and reproductive health rights, Gender discrimination

The Superior Court of Justice of Brazil revoked the pretrial detention order issued against staff and patients of a clinic that was alleged to have been performing clandestine abortions. The Court found that criminal laws against abortion were unconstitutional, and the criminalization of voluntary termination of pregnancy during the first three months was incompatible with the protection of multiple fundamental rights of women. The decision set an important precedent for the sexual and reproductive rights of women in Brazil. The court also discussed that the criminalization of abortion disproportionately affected women living in poverty who do not have access to private or public abortion clinics. Judge Barroso stated that while the potential life of the foetus is important, the criminalisation of abortion before the end of the first three months of pregnancy violated several fundamental rights of women granted by the Brazilian Constitution of 1988 (personal autonomy, physical and mental integrity, sexual and reproductive rights and gender equality). This decision does not decriminalize abortion but suggests that abortion may be legalised in the future. This is perhaps a softening of the law regarding abortion in Brazil.  



Habeas Corpus 106.212 Supremo Tribunal Federal (Supreme Federal Court of Brazil) (2011)

Domestic and intimate partner violence

This case refers to a writ filed by the accused in order to not apply to his case Article 41 of Law 11.340/ 2006 (Maria da Penha Act). Article 41 states that the domestic crimes committed against women cannot be tried by the procedural rite of 9.099/1995 (Small Courts Act), which regulates the trial of petty offenses. The accused argued that his conduct did not fit into Article 41, and that applying this article would be unconstitutional for giving special treatment to women. The Supreme Court of Brazil denied the order and declared Article 41 constitutional. They found that the Constitution gave the legislator freedom to define which crimes will be considered petty offenses. The Court decided that the domestic crimes against women imply greater complexity because they are crimes against the family institution, for which the Constitution has established special protection.



Habeas Corpus 143.641 São Paulo Supremo Tribunal Federal (Supreme Federal Court of Brazil)

Gender discrimination

In this case, Brazil’s Supreme Court issued a landmark ruling that pregnant women, mothers of children up to the age of 12, and mothers with disabled children accused of non-violent crimes should be permitted to await trial under house arrest rather than in detention. Minister Ricardo Lewandowski of the Federal Supreme Court granted in this judgment habeas corpus ex officio so that prisoners with children who have not yet been placed under house arrest are entitled to the benefit.



The Queen v. Baptiste Supreme Court of Grenada and the West Indies Associated States (2013)

Sexual violence and rape

The defendant pled guilty to rape and holding a woman at knifepoint until she was able to fight him off and escape.  The defendant was before the court for sentencing.  The court began by observing that “over the past few years the courts have been disposed to sentence persons convicted of rape to terms of imprisonment of between 7-10 years.”  Here, the only mitigating factor was the defendant’s guilty plea.  The aggravating factors included physical and psychological harm, use of a weapon and violence, and prior convictions.  Considering these factors, the court sentenced the defendant to a term of eight years imprisonment.



Thomas v. D. D. Eastern Caribbean Supreme Court in the Court of Appeal (2016)

Domestic and intimate partner violence

This was a domestic violence case where the male appellant was in a long-term relationship with the female respondent.  The appellant allegedly physically assaulted the respondent’s sister, accosted a second person, and threatened the lives of the members of the household with a cutlass.  The appellant denied these allegations.  The appellate issue was whether to overturn the trial judge’s injunction against the appellant, requiring him to refrain “from committing any acts of violence.”  The appellate court upheld the injunction, explaining that the injunction was “sensible” and “a person cannot complain of prejudice or inconvenience because he is restrained from committing acts of violence.” 



Regina v. Cadoo Supreme Court of Grenada and the West Indies Associated States (2017)

Statutory rape or defilement

The defendant pled guilty to rape and was before the court for sentencing.  Both victims were young girls between the ages of 14 and 15 at the time of the offense.  The defendant raped the victims multiple times, and one of the victims became pregnant as a result.  In sentencing the defendant, the court observed that there were several aggravating factors:  the victims were minors and the defendant was 16 years their senior; the defendant was a relative and a person of trust; after one of the victims became pregnant, she sought help from the defendant but defendant again sexually assaulted her; and the offense occurred while the defendant was on bail.  The only mitigating factor was the defendant’s guilty plea.  Accordingly, the court sentenced defendant to 10 years imprisonment.



Regina v. Richards Supreme Court of Grenada and the West Indies Associated States (2017)

Gender-based violence in general, Statutory rape or defilement

The defendant pled guilty to wounding and causing grievous harm to an adult female after dragging her into the bushes and attacking her with a piece of wood and cutlass, leaving deep lacerations and abrasions.  The defendant also pled guilty to the rape and robbery of a 16-year-old female, which occurred just two days later.  The defendant was before the court for sentencing.  Analyzing the aggravating factors, the court observed that defendant had a criminal history, was not remorseful, preferred violence, and presented a danger to the community.  The court also recognized that the victims were not only physically hurt, but had “been severely traumatized by their experiences.” The only mitigating factor was the guilty plea.  Accordingly, the court sentenced the defendant to 14 years and three months imprisonment. 



Z.D.C. v. E.M.S. Rechtbank van eerste aanleg te Antwerpen (Court of First Instance in Antwerp) (2017)

Domestic and intimate partner violence, LGBTIQ

The two accused were prosecuted for invading the home of the two victims and assaulting them, which temporarily prevented the victims from being able to work. The first accused organized the crime because she could neither accept the breakup with one of the victims nor the fact that the victim was in a relationship with a man. Additionally, the first accused created a false Facebook profile to make fun of one victim’s sexual orientation and to convince one victim to break up with the other. The Court found that the motive of the crime was, among others, the sexual orientation of the victims, which is an aggravating circumstance of the assault. The Court found that the facts regarding the first accused had been clearly established. However, the interrogation and the investigation did not provide the court with enough evidence to hold the second accused criminally liable. The Court convicted the first accused and imposed a sentence of three years imprisonment and a fine of EUR 100.00 (increased with the multiplication factor of 50, i.e., in total EUR 5000), but suspended for five years if the accused complied with the terms of probation.



Public Prosecutor v. S.C. Rechtbank van eerste aanleg West-Vlaanderen afdeling Brugge sectie correctionele rechtbank (Bruges Criminal Court) (2018)

Gender-based violence in general, LGBTIQ

The accused was prosecuted for assaulting a trans woman and her partner for being transsexual. The accused confessed to calling the victim and her partner “dirty transsexuals” and assaulting them. Following the assault, a doctor determined that the victim was unable to work. The Court found that the facts were uncontested and therefore proven. According to the Court, the accused showed a lack of respect for social norms and the physical integrity of other human beings. Additionally, the Court found the punishment should reflect that the crime was based on the victim’s transsexual status and that the punishment should serve to have a strong deterrent effect. The court convicted the accused and imposed a sentence of  six months imprisonment and a fine of EUR 100.00 (increased with the multiplication factor of 50 (i.e., in total EUR 5000))which would be suspended during three years if the accused obeyed the terms of probation.



The Queen v. Kilic High Court of Australia (2016)

Domestic and intimate partner violence

This domestic violence case involved an appeal against a sentencing decision. The defendant set fire to the victim when she was 12 weeks pregnant and caused serious injury. After the attack, she terminated her pregnancy due to the permanent nature of her injuries. The trial court sentenced him to 15 years imprisonment. On appeal by the defendant, the Court of Appeal decided that this was “manifestly excessive” compared to other cases of serious injury by fire and resentenced the defendant to 10 years and six months imprisonment. On appeal by the prosecution, the High Court of Australia held that the Court of Appeal had erred in decreasing the sentence and pointed out that there were not enough comparable cases of intentionally causing serious injury by fire and the few cases mentioned could not establish a sentencing pattern.



Munda v. Western Australia High Court of Australia (2013)

Domestic and intimate partner violence, Femicide

This domestic violence case involved an appeal against a sentencing decision. The defendant was found guilty and sentenced to five years and seven months imprisonment for the manslaughter of his spouse after a history of domestic violence against his wife and other family members. The trial court considered the defendant's circumstances of disadvantage – that he was an Aboriginal man and grew up in an environment that normalized violence and alcohol abuse – as mitigating factors. In the first appeal, the prosecution successfully argued that the sentence was manifestly inadequate, and the Court of Appeal increased the sentence to seven years and nine months. The defendant then appealed to the High Court of Australia, arguing that there were insufficient grounds for the Court of Appeal to interfere with the original sentence and ignore the mitigating factors considered in the original judgment, in particular his social disadvantage. The High Court dismissed the appeal, finding that the first appellate court gave proper weight to the defendant’s social disadvantages and acted properly within its discretion in the resentencing.



J. v. The Queen High Court of Australia (2018)

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

In 2015, the appellant was charged and convicted for committing five sexual offenses against his sister. The had purportedly occurred over  years,. Most of the charged offenses, sexual exploitation of a child and two rapes, occurred when the appellant was an adult, but prosecutors also charged him with an indecent assault committed when he was 11 or 12 years old and thus presumed to be incapable of the offense. To rebut this presumption, the prosecution offered evidence of the appellant’s earlier, uncharged acts of sexual violence against his sister beginning when he was five or six years old. In the first appeal, the Court of Criminal Appeal found that the prosecution’s rebuttal evidence was insufficient to overcome the doli incapax presumption for the indecent assault charge and the evidence was “too sparse” to sustain a conviction for the third count in the indictment. The court upheld the other three convictions. In this appeal, the High Court examined whether it was permissible for the prosecution to use evidence of the dismissed charges for “contextual” purposes related to the remaining three charges, each of which the appellant was convicted. In dismissing this appeal, the High Court found unanimously that the evidence was relevant because it illustrated the family background in which the appellant and his sister were raised and that it was admissible “relationship evidence.” The court found that without such contextual evidence, the sexual abuse claims could easily have been seen as implausible.



Decision of the Constructional Tribunal, Case 0033/2013 Supreme Tribunal: Criminal Bench (2017)

Domestic and intimate partner violence

The Supreme Tribunal confirmed the decision of the Appeal Court, which refused to review the decision of the First Instance Court that had allowed summary proceedings in a case of domestic violence and had sentenced the accused to two years of prison. The Supreme Tribunal held that the Court of Appeal had sufficiently reasoned its decision by holding that the judge of First Instance had correctly applied Article 272 of the Criminal Code, which provides for abbreviated proceedings and for the imposition of the maximum penalty suggested by the public ministry where the accused pleads guilty and agrees with the public ministry to abbreviated proceedings.  

El Tribunal Supremo confirmó la decisión del Tribunal de Apelación, que se negó a revisar la decisión del Tribunal de Primera Instancia que había permitido un proceso sumario en un caso de violencia doméstica y había condenado al acusado a dos años de prisión. El Tribunal Supremo sostuvo que el Tribunal de Apelación había razonado suficientemente su decisión al sostener que el juez de Primera Instancia había aplicado correctamente el Artículo 272 del Código Penal, que prevé un procedimiento abreviado y la imposición de la pena máxima sugerida por el ministerio público donde el acusado se declara culpable y está de acuerdo con el ministerio público para abreviar los procedimientos.



Decision of the Constitutional Tribunal, Case 0206/2014 Constitutional Tribunal (2015)

Abortion and reproductive health rights, Gender discrimination

Patricia Mansilla Martínez, a member of the Bolivian Parliament, challenged the constitutionality of several articles of the Criminal Code on the basis that they discriminated against women. The Court held that some of the challenged articles were unconstitutional and upheld others. On the grounds of gender discrimination, the Court found unconstitutional Article 56, which prevented imprisoned women from being employed outside of prisons while allowing imprisoned men outside employment, and Article 245, which recognized as a defense to the offense of falsifying a birth record the motive of protecting the honor of one’s wife, mother, daughter, or sister. The Court declared unconstitutional the words “fragility” and “dishonor” in Article 258 regarding infanticide also due to gender discrimination, although this did not affect the operation of the offense. The final unconstitutional issue was that Article 250 criminalized an unmarried man abandoning a woman who became pregnant with him, but did not criminalize a married father’s abandonment of his pregnant wife. The Court was unwilling to hold restrictions on abortion unconstitutional. As such, receiving an abortion remains prohibited under Articles 263 and 264, and the performance of abortion is prohibited under Article 269. However, the Court did declare unconstitutional the requirements in Article 266 that a woman inform the police and obtain judicial authorization in order to obtain an abortion in the case of rape or incest (article 266).

Patricia Mansilla Martínez, quien es miembro del Parlamento boliviano, cuestionó la constitucionalidad de varios artículos del Código Penal sobre la base de que eran discriminatorios contra las mujeres. El Tribunal sostuvo que varios de los artículos impugnados eran inconstitucionales: el Artículo 56, que impedía que las mujeres encarceladas fueran empleadas fuera de las cárceles mientras que los hombres encarcelados, por otro lado, podían tener empleo y el Artículo 245, que reconocía la protección del honor de la esposa, la madre, la hija o la hermana de uno como defensa al delito de falsificar un registro de nacimiento. Ambos Artículos se consideraron inconstitucionales sobre la base de la discriminación de género. La Corte declaró que las palabras "fragilidad" y "deshonra" contenidas en el Artículo 258 en asociación con el infanticidio eran inconstitucionales por la misma base, aunque esto no afecta el funcionamiento del delito. Además, la distinción dentro del Artículo 250 que penalizaba el abandono por parte de un padre de una mujer que no es su esposa después de dejarla embarazada pero que no se aplicaba a la esposa de un padre también se consideró inconstitucional. La Corte no estaba dispuesta a mantener las restricciones sobre el aborto como inconstitucionales. Como tal, recibir un aborto sigue prohibido según los Artículos 263 y 264, y el aborto está prohibido según el Artículo 269. Sin embargo, la Corte declaró inconstitucional los requisitos del Artículo 266 de que una mujer informe a la policía y obtenga la autorización judicial para obtener un aborto en caso de violación o incesto (artículo 266).



Resolución Nº 01439 - 2014, Expediente: 11-000056-0532-PE Tribunal de Apelación de Sentencia Penal II Circuito Judicial de San José (2014)

Domestic and intimate partner violence, International law

The Court established that for a cause of action based on a threat against a woman to meet the justiciability criteria pursuant to article 27 of the Law of Criminalization of Violence against Women (Ley de Penalización de Violencia contra la Mujer), it is necessary that the conduct be executed in a context of a (1) marriage or of (2) factual union.

La Corte estableció que para que una causa de acción basada en una amenaza contra una mujer cumpla con los criterios de justiciabilidad, en conformidad con el artículo 27 de la Ley de Penalización de Violencia contra la Mujer, es necesario que la conducta se haya ejecutado en un contexto de (1) matrimonio o de (2) unión de hecho.



Resolución Nº 00355 - 2016, Expediente: 12-110068-0671-TP Tribunal de Apelación de Sentencia Penal: III Circuito Judicial de Alajuela en San Ramón (2016)

Divorce and dissolution of marriage, Domestic and intimate partner violence, International law

The Court established a unified standard of the legal meaning of a “factual union” (unión de hecho). This term is used in the Law of Criminalization of Violence against Women (Ley de Penalización de Violencia contra la Mujer) and in the Family Code (Código de Familia). However, the definition is composed of different elements under each of these legislations. For example, in the Family Code’s definition, the requirement for the marital union to have lasted for a three-year term is considered unnecessary in order to protect the life, free will, physical integrity, and the woman’s dignity in a marriage or factual union. In the unified standard, the Court established that the necessary elements of a factual union are the following: (1) stability (which excludes periodic relationships); (2) publicity (which excludes furtive relationships); (3) cohabitation (which excludes superficial relationships); and (4) singularity (which excludes multiplicity). The Court recognized these elements and acknowledged that they were also recognized by the Convention of Belém do Pará, establishing that it is also considered domestic violence when the aggressor lives with the victim (cohabitation).

El Tribunal estableció una definición legal unificada del significado de una “unión de hecho.” Dicho término se utiliza en la Ley de Penalización de la Violencia contra la Mujer y en el Código de la Familia. Sin embargo, la definición se compone de diferentes elementos en cada una de estas legislaciones. Por ejemplo, en la definición del Código de la Familia, el requisito de que la unión matrimonial haya durado un período de tres años se considera innecesario para proteger la vida, el libre albedrío, la integridad física y la dignidad de la mujer en un matrimonio o en una unión de hecho. En la norma unificada, la Corte estableció que los elementos necesarios de una unión de hecho son los siguientes: (1) estabilidad (lo cual excluye las relaciones periódicas); (2) publicidad (lo cual excluye relaciones furtivas); (3) la cohabitación (lo cual excluye las relaciones superficiales); y (4) la singularidad (lo cual excluye la multiplicidad). La Corte reconoció estos elementos y reconoció que también fueron reconocidos por la Convención de Belém do Pará, estableciendo que también se considera violencia doméstica cuando el agresor vive con la víctima (convivencia).



Resolución Nº 00618 - 2018, Expediente: 12-021945-0042-PE Tribunal de Apelación de Sentencia Penal: II Circuito Judicial de San José (2018)

Domestic and intimate partner violence, International law

The court emphasized that in order to prove a domestic violence cause of action, the plaintiff must prove that she has been subject to a behavior pattern that fits within the domestic violence cycle. Such behavior pattern consists of three stages: (1) the growing tension stage; (2) the acute aggression stage; and (3) the kindness or affection stage. The third stage is followed by the aggressor’s regret and then by the reconciliation, which in turns leads to another assault and then to the repetition of the cycle. This third stage is crucial in order to recognize whether there is a systematic situation of violence and to prove the elements of this cause of action.

 

La Corte enfatizó que para presentar con éxito una causa de acción legal por violencia doméstica, la demandante debe probar que ha estado sujeta a un patrón de comportamiento que se ajusta al ciclo de violencia doméstica. Dicho patrón de comportamiento consta de tres etapas: (1) la etapa de tensión creciente; (2) la etapa de agresión aguda; y (3) la etapa de bondad o afecto. A la tercera etapa le sigue el arrepentimiento del agresor y luego la reconciliación, que a su vez conduce a otro asalto y luego a la repetición del ciclo. Esta tercera etapa es crucial para reconocer si existe una situación sistemática de violencia y para probar todos los elementos que constituyen esta causa de acción.



Dlanjwa v. Minister of Safety and Security Supreme Court of Appeal (2015)

Domestic and intimate partner violence, Property and inheritance rights

The appellant was shot by her husband, who subsequently committed suicide.  Her husband was employed by the South African Police Service, so she sued the Minister of Safety and Security for general damages, medical expenses, loss of earnings, and loss of support arising from her injuries and the deceased’s suicide. She also sued for loss of support on behalf of her infant triplets with the deceased.  The appellant alleged that the shooting and suicide were caused by, inter alia, the negligence of the station commander and/or certain police officials.  The appellant claimed that these police officers failed to (a) dispossess the deceased of the firearm, (b) initiate disciplinary steps against him, and (c) have him criminally charged despite her previous requests and their knowledge that the deceased abused alcohol, had a violent temper and suicidal tendencies, had assaulted her, pointed a firearm at her and threatened to shoot her and thereafter kill himself, which led her to obtain a protection order against him under the Domestic Violence Act 1998.  The Supreme Court of Appeal found that: (a) the police had a legal duty to investigate the appellant’s complaints once she reported that she feared for her safety; (b) the police negligently breached that duty by failing to take measures to protect the appellant from being injured by the deceased (and prevent the deceased from killing himself); and (c) the appellant had established wrongfulness on the part of the police due to the causal connection established between the police’s negligent breach of duty and the harm suffered by the appellant.  The court therefore upheld the appeal.



Naidoo v. Minister of Police Supreme Court of Appeal (2015)

Domestic and intimate partner violence

The plaintiff attempted to bring a charge of assault against her former husband under the Domestic Violence Act of 1998 (“the DVA”). She was incorrectly advised by a police officer that she required a protection order from the Magistrate Court before she could receive police assistance. She was then told by a second officer that her former husband would bring a similar charge of assault against her if she persisted. The plaintiff, along with her former husband, was arrested. She filed a claim for damages against, inter alia, the Minister of Police, arguing that (i) the officials involved were acting in the course and within the scope of their employment and (ii) the Minister of Police was vicariously liable for failing to comply with the DVA. The court agreed that the DVA requires the police to assist and provide the maximum protection possible to victims of domestic abuse.



In re Zhou & Yang Divorce Litigation Intermediate People's Court of Wuxi Municipality (2017)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The appellant-wife appealed to the Intermediate People’s Court of Wuxi Municipality, Jiangsu Province in relation to the lower court’s refusal to grant a divorce. The appellant alleged that her marriage with the appellee was irreparably broken and that he had committed domestic violence against her. The appellant alleged that the domestic violence was corroborated by their daughter’s testimony and photographic evidence. The court held that even though the appellee might have beaten the appellant on at least one occasion, under the legal definition, domestic violence must constitute continuous multiple-time battery rather than [one occasional][1] conduct. Since the evidence submitted by the appellant was insufficient to demonstrate that the appellee’s conduct caused harmful consequences to the appellant, the court refused to grant their divorce. The court also admonished the appellee to fulfill his responsibility as a husband and to stop his "bad habits."

 

[1] Note to draft: This concept is unclear.  The exact translation of the Mandarin phrase would be “one occasional conduct.” From the context of the opinion, it appears that this means that occasional conduct, even if more than once, may not be sufficient if it is not indicative of a pattern of abuse.



People's Procuratorate of Chongming County v. Shi Chongming County District People's Court of Shanghai Municipality (2014)

Domestic and intimate partner violence

On May 20, 2014, the defendant used a hammer to strike her husband’s head three times. She then asked her son to send her husband to hospital where he died. The Court found that throughout their marriage, the deceased often beat and abused the defendant. The day before the incident, the deceased beat the defendant for a long period of time. At approximately 5:30 AM the following day, the defendant, due to the history of abuse, decided to kill her husband. During the trial, multiple witnesses testified to the deceased’s long history of domestic violence. A letter signed by more than 100 people, including close relatives of the deceased, also confirmed that he had abused the defendant over a long period of time. The Court held that the defendant’s conduct qualified as murder. However, because her motive was her husband’s long history of domestic violence, the victim himself was also culpable. Because the defendant had little possibility of recidivism and because there was strong public sympathy for the defendant, the court sentenced her to four years imprisonment. She was due to be released on May 21, 2018. On August 29, 2017, Shanghai No. 1 Intermediate People’s Court ordered her release on parole.



People's Procuratorate of Wuhan City Hubei Province v. Zhu Intermediate People's Court of Wuhan Municipality (2011)

Domestic and intimate partner violence

The appellant and the deceased were divorced in 2007 but continued to live as a married couple until the incident.  The appellant had a history of physical abuse. On the day of the incident, the appellant again beat the deceased with a leather belt, causing her to commit suicide. On the same day, the appellant turned himself in. The lower People’s Court held that the appellant had continuously beaten the deceased, causing her to endure physical and mental damage and commit suicide, and his actions constituted the crime of abuse. The appellant was sentenced to five years of imprisonment. Upon appeal, the Intermediate People’s Court upheld the conviction and affirmed the decision.



People’s Procuratorate of Dazhou City Sichuan Province v. Tang Higher People's Court of Sichuan Province (2013)

Domestic and intimate partner violence

The lower court convicted the appellant of intentional assault and sentenced her to life imprisonment and deprivation of political rights for life for stabbing her cohabiting boyfriend to death. The lower court held that the defendant’s motive, frivolous arguments, constituted a crime of intentional assault.  The lower court found that the consequence of the crime was serious and that the defendant should receive a severe punishment. On appeal, the Higher People’s Court of Sichuan Province reversed the lower court’s holding, finding that (1) the appellant turned herself in and obtained forgiveness from relatives of the deceased; (2) on the day of incident, the victim had attacked the appellant first, and should bear certain responsibility. Thus, the High People’s Court reversed the lower court’s ruling and reduced the sentence to 15 years in prison and deprivation of political rights for three years. Available here.



State v. Banda High Court of Zimbabwe (2001)

Abortion and reproductive health rights

The accused took a concoction of herbs with the intent to procure an abortion when she was six months pregnant and buried the fetus. She pled guilty to contravening the Termination of Pregnancy Act, which bans abortions subject to enumerated exceptions. She was sentenced to nine months imprisonment that were suspended on the condition that she complete 305 hours of community service. The issue under review was whether the conviction was proper without medical evidence to prove that the ingested herbal concoction could induce an abortion. It was held that before a person is convicted for abortion it must be proved that the instrument or method used can induce an abortion. Except for a few obvious cases were the conduct of the accused is known to cause abortions, medical evidence must prove that the terminated pregnancy was not spontaneous but induced by the actions of the accused. Here, there was no proof that the herbal concoction was, in fact, capable of inducing an abortion. Therefore a conviction for abortion was an error, accused was guilty solely of attempting abortion.



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.



People's Procuratorate of Baoding City Hebei Province v. Cong China Supreme People's Court (2014)

Domestic and intimate partner violence, Femicide

The defendant was convicted of murder and sentenced to death for stabbing his wife (Cui) and mother-in-law (Zhao) to death, which was upheld by the Supreme People’s Court. Cui had previously filed for divorce. On October 4, 2012, the defendant got into an argument with Zhao and Cui. The defendant chased Zhao out of the house and stabbed her to death. The defendant then caught up with Cui, who had run to a neighbor’s house for help, and stabbed her to death. The Supreme People’s Court affirmed the lower courts’ finding that the defendant was guilty of unlawfully depriving others of their lives, which constituted intentional homicide. The Supreme People’s Court upheld the death penalty, holding that the defendant’s killing method was cruel and the consequences were particularly serious, and thus the death penalty was the appropriate sentence according to the law.



Mapingure v. Minister of Home Affairs Supreme Court of Zimbabwe (2014)

Abortion and reproductive health rights, Sexual violence and rape

A month after the rape, the appellant’s pregnancy was formally confirmed, she then informed the investigating police officer of her pregnancy who referred her to a public prosecutor. She was told by the prosecutor that she had to wait until the rape trial had been completed to have her pregnancy terminated. At the direction of the police, she returned to the prosecutor’s office four months later and was advised that she required a pregnancy termination order. The prosecutor requested that a magistrate certify the termination. The magistrate said he could not assist because the rape trial had not been completed. She eventually obtained the necessary magisterial certificate nearly six months after the rape, the hospital felt that it was no longer safe to carry out the termination procedure. The appellant carried to full term and gave birth to a child. The applicant brought an action against the Ministers of Home Affairs, Health and Justice for damages for the physical and mental pain, anguish and stress she suffered and care for the child until the child turned 18. The basis of the claim was that the employees of the three Ministries concerned were negligent in their failure to prevent the pregnancy or to expedite its termination. The particulars of negligence were itemized. Her claim was dismissed. The questions for determination on appeal were (i) whether or not the respondents’ employees were negligent in responding to the appellant, (ii) if they were, whether the appellant suffered any actionable harm as a result of such negligence and, (iii) if so, whether the respondents were liable for damages for pain, suffering, and the care of her child. The Supreme Court held, on appeal, that the State was liable for failing to provide the appellant with emergency contraception to prevent the pregnancy and ordered it to pay damages. However, the court dismissed the claim that the State was liable for failing to ensure a timely termination of the pregnancy and in turn that they were liable to pay for the care of the child. The case was referred back to the High Court for a determination of the amount of damages.



State v. Gudyanga (2015)

Domestic and intimate partner violence

This was a review of a sentence imposed by a trial magistrate at the request of the regional magistrate. In the opinion of the regional magistrate, the sentence imposed by the trial magistrate was too harsh and a community service sentence would have been just in the case. The accused was charged with physical abuse as defined under the DVA. The 20-year-old accused assaulted the complainant, his18-year-old wife, over a denial of conjugal rights. He was sentenced to two months’ imprisonment with a further two months suspended. The issue to be determined on review was whether the trial magistrate, by imposing a custodial sentence on a repeat violator of the DVA, erred in the exercise of discretion. The court found no misdirection on the part of the magistrate, holding that a custodial sentence is not required because the purpose of the DVA was to bring families closer together. Rather, the court explained that judges should apply a multi-factor sentencing analysis that includes, among other factors, considering both the DVA’s purpose to bring families together and whether the accused was a repeat offender. The DVA makes repeat offenders liable for imprisonment not exceeding five years. Here, the accused was a repeat offender, and therefore, liable for a custodial sentence at the discretion of the trial magistrate.



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.



State v. Ware Supreme Court of Rhode Island (1980)

Statutory rape or defilement

The Supreme Court of Rhode Island rejected the argument that the state’s criminal statute outlawing carnal knowledge of a girl under 16 years of age violated equal protection of the law, even though it created a classification based on sex by designating females as the only possible victims and subjecting only males to conviction under the statute. In rejecting the defendant’s argument, the court applied the rule that sex-based classifications that served important governmental objectives and were substantially related to the achievement of those objectives were not unconstitutional. The court cited the fact that the classification was substantially related to the important state’s interest in protecting female children “from the severe physical and psychological consequences of engaging in coitus before attaining the age of consent in the statute.” Therefore, the classification based on sex did not violate the constitution’s equal protection law.



McMaugh v. State Supreme Court of Rhode Island (1992)

Domestic and intimate partner violence

A woman and her husband were convicted of murder, and the woman appealed her conviction, arguing that her husband’s severe abuse prevented her from fairly defending herself at trial. Evidence of the abuse was discovered one year after the completion of trial, when the woman and her husband were placed in separate prisons. In reviewing the trial court’s denial of post-conviction relief, the Supreme Court of Rhode Island assessed whether the trial court considered if the additional evidence was newly discovered, material, and outcome determinative, and then whether such evidence, if appropriately before the court, warranted post-conviction relief. Upon hearing the newly discovered evidence, the court found that the pattern of extreme physical and mental abuse by her husband prevented the woman from assisting her attorney in presenting a reasonable defense at trial—rather, the evidence supported that the woman was suffering from battered women’s syndrome, which caused her, contrary to her own interests, to support her husband’s story at trial. Moreover, the evidence was and could only have been discovered after the wife was in prison and more removed from the husband’s domination and influence. The court found that this evidence warranted post-conviction relief, vacating the case and remanding it to the lower court for a new trial.



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.



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

Domestic and intimate partner violence, Statutory rape or defilement

The defendant was convicted of rape and sexual abuse of his minor daughter and appealed, challenging the trial court’s refusal to order the victim to undergo a mental health examination and the sufficiency of the evidence supporting his conviction.  The defendant’s daughter, who was 11 years old, reported to her mother that defendant had sex with her on two occasions when she was seven and eight years old. In a motion to order a psychiatric examination of the child, defendant pointed to the child’s mental health history, which showed that she “had been diagnosed with psychological disorders and exhibited dysfunctional behavior.” The trial court denied the motion and the Virginia Court of Appeals affirmed the denial. The issue before the Court was whether the trial court erred in denying defendant’s motion to subject the plaintiff, a rape victim, to a psychiatric examination and whether the plaintiff’s testimony alone, without the requested mental examination, was sufficient to sustain defendant’s conviction. The Court affirmed the lower courts, finding that the trial process afforded “adequate safeguards to the accused to test the competency of the complaining witness without a court-ordered mental health examination of that witness.” Therefore, “a trial court has no authority to order a complaining witness in a rape case to undergo a psychiatric or psychological evaluation.”  With respect to the sufficiency of the evidence, the court noted its precedents establishing that “the victim’s testimony alone, if not inherently incredible, is sufficient to support a conviction for rape,” and that because the child’s testimony was not inherently incredible, it was sufficient to sustain defendant’s conviction. The trial court did not err in denying defendant’s motion to subject plaintiff to a mental examination and the plaintiff’s testimony, by itself, was sufficient to support the conviction.



Stephens v. Rose Supreme Court of Virginia (2014)

Stalking

The plaintiff filed a petition for a protective order against the defendant, her ex-boyfriend.  The two  ended their relationship in 2007, but from 2009 to 2012, the defendant made repeated, unsuccessful attempts to re-establish contact with the plaintiff via e-mail and social media.  In 2013, the defendant escalated his attempts, first driving to the plaintiff ’s parents’ home in Canton, Ohio, and approaching her father at 6:20 a.m. to find out where the plaintiff  was currently living.  The plaintiff’s father told the defendant not to contact the plaintiff anymore and then called 911. The plaintiff became afraid upon learning that the defendant had visited her parents’ home, asking her current boyfriend to stay with her because she was afraid to be home alone.  The defendant  began repeatedly calling and leaving voice messages for the plaintiff.  Within a one-week period, he called her 40 times.  On one occasion, the plaintiff ’s boyfriend answered the phone and told the defendant that he had the wrong number and not to call anymore.  The defendant also attempted to contact the plaintiff at her work.  Then, one day, after placing several calls between 2 and 3 A.M., the defendant showed up at the plaintiff ’s home at 7 A.M. with flowers, and the plaintiff ’s boyfriend called 911 and had him arrested. The issue before the Court was whether these acts satisfied the statutory requirements for a protective order which require an “[a]ct of violence, force, or threat.”  The Court held that stalking satisfies the requirements for a protective order even in the absence of physical harm or threatened physical harm.  The Court set forth three elements necessary to prove stalking: (1) “the defendant directed his or her conduct toward the victim on at least two occasions”; (2) “intended to cause fear or knew or should have known that his or her conduct would cause fear”; and (3) “the defendant’s conduct caused the victim ‘to experience reasonable fear of death, criminal sexual assault, or bodily injury.’”  The Court held that, in this case, these three factors were satisfied and explained, with respect to the third factor, that it was sufficient that the plaintiff said that she “was scared,” because “[a] victim need not specify what particular harm she fears to satisfy the third element of stalking.”   



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.



Jacques v. State Supreme Court of Rhode Island (1995)

Sexual violence and rape

The defendant appealed a 12-year prison sentence, arguing that his sentence was excessive given that there was no evidence he used violent force or penile penetration. However, the court held that the defendant failed to show the sentence imposed on him by the trial court was excessive or that any serious disparity existed between his sentence and any other sentence imposed for similar convictions, citing the fact that the Supreme Court found he violated Rhode Island’s sexual assault statute even though he did not commit penile penetration or use violent force (“the type of penetration is unimportant under the sexual-assault statute . . . The fact that only digital penetration occurred does not lessen [the victim’s] fear and humiliation.”).



State v. Urena Supreme Court of Rhode Island (2006)

Domestic and intimate partner violence

The defendant appealed a conviction of manslaughter after stabbing her boyfriend to death, arguing that the state did not prove beyond a reasonable doubt that she did not act in self-defense based on evidence that she suffered from battered women’s syndrome. The Supreme Court of Rhode Island clarified the burden of proof in establishing battered women’s syndrome as a defense, stating that the “defendant [is] required to prove the existence of [battered women’s syndrome] as an affirmative defense by a fair preponderance of the evidence.” Accordingly, the lower court correctly instructed the jury that the burden of proof was on the defendant, not the state, to show that she was suffering from the effects of battered women’s syndrome, and the conviction at the lower court was upheld.



State v. Rivera Supreme Court of Rhode Island (2010)

Sexual violence and rape, Statutory rape or defilement

A bus driver was convicted of sexually assaulting three developmentally disabled women, two of whom were passengers on the defendant’s bus route. On appeal, the defendant challenged his conviction on several grounds, one of which was that the trial court erred in precluding him from questioning the victim’s mother about a previous incident that suggested the victim was promiscuous. The court held that the defendant was not entitled to question the victim’s mother about the incident, because the defendant did not notify the trial justice beforehand of his intention to probe into the victim’s conduct or otherwise seek a hearing with the court about the admissibility of such evidence.



State v. Enos (2011)

Domestic and intimate partner violence

Charges were filed against a young woman’s ex-boyfriend for domestic violence after he grabbed her at a restaurant and repeatedly kicked her and hit her over the head with a drinking glass. The defendant was convicted in the lower court of domestic assault with a dangerous weapon. On appeal, the defendant argued that there was insufficient evidence that the couple was in a domestic relationship, which was a prerequisite finding for his conviction. The Rhode Island Supreme Court held that the state domestic violence statute does not require a specific demonstration of three statutory factors (length and nature of relationship and frequency of the interaction between the parties) to prove the existence of a substantive dating relationship, nor are courts limited to considering only these three factors. Rather, the fact that the victim testified that (i) the couple dated for six months, (ii) the two had an intimate relationship during the defendant’s arrest, and (iii) the defendant referred to the victim as his girlfriend was evidence that the defendant and the victim were in a substantive dating relationship as required to support a domestic assault conviction. The Court also rejected the defendant’s arguments regarding the trial judge’s decision not to declare a mistrial and upheld his conviction.



The State v. L.S. High Court of Namibia (2006)

Domestic and intimate partner violence

The accused murdered her newborn child and pleaded guilty to the crime. In determining her prison sentence, the judge took into account mitigating circumstances such as her young age (21 years old), the fact that the child’s father denied responsibility for the child, and the fact that her family nearly kicked her out of their home when she had her previous child. The judge also acknowledged that she was a first-time offender and showed remorse for the crime. However, he reiterated the seriousness of the crime and stated that he did not want his leniency in this case to serve as a message to other young women that infanticide was acceptable. He further stated that newborn infants have just as much a right to life as anyone else. For the murder, he sentenced the accused to three years imprisonment with 30 months suspended for five years on the condition that the accused not be convicted of murder during the suspension. For the concealment of the birth of her newborn child, the judge sentenced the accused to six months imprisonment to run concurrently with the murder sentence.



The State v. V.U. High Court of Namibia (2007)

Domestic and intimate partner violence, Sexual violence and rape

The accused conceived a child after incestuous sexual intercourse with her brother. After the child was born, the mother tied a scarf around its neck and buried it alive. At trial, she claimed that the child was strangled by its own umbilical cord and was already dead when she buried it. However, medical and forensic evidence showed that the child died from strangulation and suffocation due to the mother’s actions. She was convicted of murder. 



The State v. Vries Supreme Court of Namibia (2001)

Sexual violence and rape, Statutory rape or defilement

The accused was charged with raping a 10-year-old girl (the “complainant”). The trial judge convicted the accused of attempted rape, finding that the prosecution did not prove penetration beyond a reasonable doubt. The prosecutor was not satisfied with the sentence and appealed to the Supreme Court, seeking a conviction for rape. The Supreme Court agreed with the trial court that penetration had not been proven beyond a reasonable doubt. However, the Supreme Court stressed that the slightest unwanted penetration of a woman’s genitalia by a man’s genitalia is sufficient to constitute the crime of rape.



Monomono v. The State High Court of Namibia (2017)

Sexual violence and rape, Statutory rape or defilement

The appellant was convicted of rape under the Combating of Rape, Act 8 of 2000 (the “Act”) in the Regional Court for inserting his finger into the vagina of his friend’s eight-year-old daughter (the “complainant”). This insertion caused bruising to the complainant’s vagina that lasted longer than 72 hours. The complainant’s hymen, however, remained intact. The appellant was sentenced to 15 years in prison, of which five were conditionally suspended. On appeal, the appellant argued that he had not committed rape under the Act because he had not penetrated the complainant’s “vagina” as that term is defined under the Act, but rather touched the areas around her vagina. Accordingly, he argued that, at most, he had committed indecent assault, and therefore his sentence should be reduced. The appellate court denied the appeal and upheld the original sentence, finding that the labia minora, labia majora and the para-urethral fort all form part of the complainant’s genital organs and therefore satisfy the definition of “vagina” within the Act.



The State v. G.I. High Court of Namibia (2007)

Abortion and reproductive health rights

The accused was an 18-year-old woman charged with the crime of abortion under the Abortion and Sterilization Act, 2 of 1975 (the “Act”). The Act outlaws abortion and prescribes no minimum sentence for the crime. The accused pleaded guilty and testified that she performed the abortion on herself, which terminated a two-month-long pregnancy. The Court sentenced her to pay N$3,000 or serve two years in prison. On review, the High Court found the sentence to be “completely” disproportionate to the crime. The Judge referred to the Old Authorities and stated that sentences for abortion should be less harsh in cases where a very young fetus is involved. The Judge also found that the accused personal circumstances and the particular circumstances of her trial, including the fact that she was a minor at the time, did not have counsel to represent her, and was not given the opportunity to explain her actions, warranted mitigation of the penalty. Finding that the lower court did not factor in any of these mitigating circumstances, the High Court reduced the sentence to N$300 or three months in prison, which he suspended on the condition that during that period the accused was not convicted of any abortion-related crime.



The State v. Dausab High Court of Namibia (2018)

Domestic and intimate partner violence, Femicide

The accused was convicted of pre-meditated murder and sentenced to life imprisonment after stabbing his girlfriend (“the victim”) 27 times and locking her in a room until she bled to death. Prior to murdering the victim, the accused sent her a text message describing how he would kill her. At trial, the court determined the crime was aggravated by the fact that the accused had a direct intention of murdering his girlfriend and did so in a domestic setting. In imposing a sentence, the court took into account retribution, prevention of crime, deterrence and reformation. The court further found that the accused did not care about the victim’s right to life, but rather his own wellbeing, that he “played victim,” and that he showed no remorse. The judge stated that it “is high time that men in relationships with women should understand that once a woman tells them that they are no longer interested in continuing with the relationship, she means just that and her views and feelings should be understood and respected.”



Gawaxab v. The State High Court of Namibia (2018)

Femicide, Gender-based violence in general, Sexual harassment

The accused was charged with assaulting and murdering a woman. At trial, the accused filed an application for his discharge at the close of the prosecution’s case, arguing that the prosecution failed to make a case requiring the accused to answer. According to prosecution evidence, after buying alcohol and drinking it with a group of women he did not know, including the deceased, an argument began because the accused stated that he could have sex with all the women. The driver stopped the car when the accused hit the deceased with a bottle. The accused continued to beat the woman outside of the car and the others drove away in fear for their lives to report the attack the police. Upon their return to the scene, they found and picked up the deceased, who was running down the road after escaping the accused. She later passed away from her injuries. At trial, prosecutors presented several eye-witnesses to testify against the accused, as well as direct and circumstantial evidence to support their case. The accused argued that the eye-witnesses had been intoxicated at the time of the assault and therefore their testimony was unreliable. He also argued that the prosecutors failed to meet their burden to convict him. However, the court agreed with the prosecution and refused to discharge the accused, finding that the prosecution’s evidence presented a prima facie case that the accused was legally obliged to answer.



The State v. Swartz High Court of Namibia (2018)

Domestic and intimate partner violence, Female infanticide and feticide, Femicide

The accused stabbed and murdered a pregnant minor girl with whom he was in a relationship when he was approximately 18 and she was 15 years old. Their relationship was one filled with domestic abuse and violence. He was convicted of murder and assault with intent to do grievous bodily harm. He was also convicted of assault for unlawfully and intentionally threatening to kill the deceased’s grandmother, thereby causing her to believe that the accused intended, and had the means, to carry out his threat.



H.D. v. The State Supreme Court of Namibia (2018)

Statutory rape or defilement

The appellant was charged with the rape and indecent assault of a three-year-old girl (“the complainant”). He pled “not guilty” to both counts but was convicted on the first count and sentenced to 14 years’ imprisonment. The trial court acquitted the appellant on the second count. On appeal, the appellant argued that (a) the charge did not contain adequate particulars of the date and time of the alleged crimes; (b) the degree of the injuries to the complainant made it doubtful that he could have raped her; and (c) the cautionary rule was not correctly applied when the trial court reviewed the complainant’s evidence. The Supreme Court confirmed that the trial court was not only aware of the risks associated with the evidence presented by a sole young witness, but also exercised appropriate caution in considering the complainant’s evidence. It further found that the evidence presented at trial, including testimony by the complainant’s mother and older sister provided sufficient details to uphold the conviction. The appeal was accordingly denied.



The State v. Iipinge High Court of Namibia (2018)

Domestic and intimate partner violence

The accused was convicted of culpable homicide for kicking his girlfriend to death, despite his claims that her death was caused by falling on a rock. In sentencing the accused to 10 years imprisonment, the court noted that violence against women is a serious problem in Namibia and that this should be taken into account in sentencing decisions as an aggravating factor.



The State v. Nkasi High Court of Namibia (2010)

Domestic and intimate partner violence, Female infanticide and feticide

The accused negligently killed his daughter by beating her to death with a stick, which he meant as punishment. He also intentionally shot and killed his son with a shotgun and attempted to shoot his wife. He was convicted of culpable homicide, murder, attempted murder, obstructing the course of justice, possession of a firearm without a license, and the unlawful possession of ammunition. The court sentenced him to 44 years imprisonment. With respect to the conviction for negligent homicide, the court found that parents do not have carte blanche to punish their children. The court also found that the accused’s previous acts of violence against his wife and children constituted aggravating circumstances. The court further emphasized the seriousness of domestic violence and noted that sentencing in such cases should serve as retribution for those harmed, including the community at large and as deterrence to others.



F.N. v. S.M. High Court of Namibia (2012)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The appellant and respondent are divorced parents of three children. At the time of the divorce, custody of the children was awarded to the respondent. The appellant then moved for an interim protection order, claiming that the respondent physically abused their minor children. A court granted the interim protection order on October 3, 2011, and awarded the appellant interim custody of the children, subject to visitation by the respondent, and ordered respondent to cease abusing the children. The Magistrate’s Court subsequently discharged the interim order on October 24, 2011, based on Section 12 of the Combating of Domestic Violence Act 4 of 2003, reasoning that the beatings were an isolated incident and were only meant to punish the children for bad behavior. The appellant challenged the discharge. The appellate court agreed with appellant and granted a final protection order effective through July 2013, which awarded the appellant custody of the children with visitation for the respondent on alternate weekends and holidays. In its decision, the appellate court stated the importance of rooting out the “evil that is domestic violence in order to give effect to the protection of the constitutional value of human dignity.”



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.



Causa nro. 44601/2010 Juzgado Nacional en lo Criminal de Instrucción nro. 17 (2015)

Domestic and intimate partner violence

Mr. M. R. committed successive acts of violence and made threats against his wife, Mrs. F.M.S.  Upon finding that the declarations made by Ms. F.M.S., photographs and medical reports constituted sufficient probative evidence, the court determined that Mr. M. R. committed simple aggravated assault based on the relationship between the parties and that the threats made against Mrs. F.M.S. were grave and imminent.  Accordingly, the court found sufficient cause to hold the defendant in preventative confinement.

 

El Sr. M. R. cometió varios actos de violencia e hizo amenazas contra su esposa, la Sra. F.M.S. Al descubrir las declaraciones hechas por la Sra. F.M.S., las fotografías y los informes médicos constituyeron pruebas probatorias suficientes. El tribunal determinó que el Sr. M. R. cometió un asalto agravado simple basado en la relación entre las partes y que las amenazas contra la Sra. F.M.S. Fueron graves e inminentes. En consecuencia, el tribunal encontró causa suficiente para retener al acusado en confinamiento preventivo. 



Causa Nº 4.792/13 Ex Juzgado de Instrucción Formal Quinta Nominación (2014)

Domestic and intimate partner violence, Femicide, Gender discrimination, LGBTIQ

Defendant Mr. H.R.A was convicted of aggravated homicide based on his prior ties and relationship with the victim, Ms. N.A. (his partner), whom he murdered with a gun.  Mr. H.RA. was sentenced to life in prison pursuant to Law No. 26,791, Article 80, which provides that “[l]ife imprisonment or confinement shall be imposed upon a person that murders an ascendant, descendent, spouse or ex-spouse or a person that kills another with whom he or she maintains a relationship, irrespective of whether they maintained a joint household.”  The defendant challenged the constitutionality of the statute, arguing that it violates principles of equal protection because it does not afford (or it is not clear that the statute affords) equal protection to similarly situated homosexual couples.  In rejecting the defendant’s challenge, the court notes (1) Supreme Court precedent making clear that holding legislation unconstitutional is a grave act that should be taken as a last resort and when it is clear that the legislation is clearly unconstitutional, and (2) the legislation in question sought to introduce as aggravating circumstances factors that had previously been ignored, extending the definition of the concept of “family” to include different family realities.

 

El acusado, el Sr. H.R.A fue condenado por homicidio con acciones agravadas debido a sus vínculos anteriores y su relación con la víctima, la Sra. N.A. (su pareja), a quien asesinó con un arma. El Sr. H.RA. fue condenado a cadena perpetua con conformidad con la Ley Nº 26.791, Artículo 80, que dispone que “se impondrá la reclusión o el encarcelamiento a una persona que asesine a un ascendiente, descendiente, cónyuge o ex cónyuge o una persona que asesine” otro con quien él o ella mantiene una relación, independientemente de si mantuvieron un hogar conjunto ”. El acusado impugnó la constitucionalidad de la ley, argumentando que violaba los principios de protección igualitaria porque no permite (o no está claro si el el estatuto otorga igual protección a las parejas homosexuales en situación similar). Al rechazar la impugnación del acusado, el tribunal señala (1) el Tribunal Supremo precedente, dejando en claro que mantener la legislación inconstitucional es un acto grave que debe tomarse como último recurso y solamente cuando está claro que la legislación es claramente inconstitucional, y cuando (2) la legislación en cuestión buscaba introducir como circunstancias agravantes factores que anteriormente se habían ignorado, extendiendo la definición del concepto de "familia" para incluir diferentes realidades familiares.



M.L.A. S/Lesiones Leves Agravadas y Amanazas de Muerte Corte Suprema Justicia de San Miguel de Tucumán (2016)

Domestic and intimate partner violence

In a criminal proceeding for domestic violence, the prosecutor appealed a judgment in favor the of the defendant on the basis that the trial court failed to confer proper evidentiary status to victim statements, medical and other reports, and photographs taken by the Office of Domestic Violence, a division of the Argentine judiciary.  In finding for the government, the appellate court noted that while investigating matters relating to domestic violence is a difficult task given that the disputed facts generally take place in intimate settings or when only the victim and aggressor are present, a victim’s testimony has inherent probative value.  The appellate court noted that “the work of judicial staff and employees (doctors, social workers, psychologists, etc.) that actively participate in the counseling of victims of domestic or gender violence must not be hidden and much less ignored in their entirety (…) The interviews, reports, physical inspections and medical reports carried out by professionals of the judiciary branch must constitute an essential component of the investigation into the facts,” irrespective of the decision on whether to proceed with the prosecution of the alleged perpetrator.

 

En un proceso penal por violencia doméstica, el fiscal apeló una sentencia a favor del demandado sobre la base de que el tribunal de primera instancia no otorgó el estatus de evidencia adecuada a las declaraciones de víctimas, informes médicos y otras, y fotografías tomadas por la Oficina de Violencia Doméstica , una división del poder judicial argentino. En la búsqueda para el gobierno, el tribunal de apelaciones señaló que si bien la investigación de asuntos relacionados con la violencia doméstica es una tarea difícil dado que los hechos en disputa generalmente tienen lugar en entornos íntimos o cuando solo la víctima y el agresor están presentes, el testimonio de la víctima tiene un valor probatorio inherente . La corte de apelaciones señaló que “el trabajo del personal judicial y los empleados (médicos, trabajadores sociales, psicólogos, etc.) que participan activamente en el asesoramiento a las víctimas de violencia doméstica o de género no debe ocultarse y mucho menos ignorarse en su totalidad (... ) Las entrevistas, informes, inspecciones físicas e informes médicos llevados a cabo por profesionales del poder judicial deben constituir un componente esencial de la investigación de los hechos ", independientemente de la decisión de proceder con el enjuiciamiento del presunto autor.



Hicks v. State of Alabama Supreme Court of Alabama (2014)

Abortion and reproductive health rights

The defendant was charged with chemical endangerment of a child for ingesting cocaine while pregnant, which resulted in her child testing positive for cocaine at birth. The defendant was convicted after a guilty plea, but challenged her conviction on appeal, arguing that the legislature did not intend for Alabama’s chemical endangerment statute to apply to unborn children. Additionally, she alleged that if the statute applied to unborn children, the law was: (1) bad public policy because it does not protect unborn children and (2) unconstitutionally vague. The Alabama Supreme Court rejected Hicks’ claims, relying on an Alabama Court of Appeal decision, Ankrom v. State, 152 So.3d 373 (Ala. Crim. App. 2011), in which the court held that the plain language of the statute included an unborn child or viable fetus in the term “child.” The Alabama Supreme Court refused to consider the defendant’s public policy arguments, stating that policy arguments are ill-suited to judicial resolution and should instead be directed at the legislature. Finally, the court concluded that the law was not vague, as it “unambiguously protects all children, born and unborn, from exposure to controlled substances.”



[Undisclosed parties] v. Ministério Público Tribunal da Relação de Porto (2018)

Statutory rape or defilement

Appellant B (name omitted from the public record) challenged the district court’s (Tribunal da Comarca) ruling that convicted him of child sexual abuse for having sexual intercourse with underage victims F, E and K (names omitted from the public record).  Appellant B argued that the victims were not sexually inexperienced, and had intercourse with him out of their own free will, as the victims had sufficient means to reject him if they had so decided.  Under the Portuguese Penal Code, a person who, being over the age of 18, maintains sexual intercourse or relations with victims between the age of 14 and 16, taking advantage of their inexperience, is guilty of child sexual abuse (Sec. 173).  The appellate court (Tribunal da Relação) held that victims between the age of 14 and 16 are still considered inexperienced despite having prior sexual relations.  The appellate court upheld the district court’s conviction of Appellant B.



[Undisclosed Parties] v. Ministério Público Tribunal da Relação de Coimbra (Court of Appeal of Coimbra) (2018)

Domestic and intimate partner violence

Appellant A (name omitted from the public record) challenged the district court’s (Tribunal da Comarca) decision which convicted him of domestic violence, for having inflicted physical and psychological injuries on his spouse, who later filed for divorce.  As provided under the Portuguese Penal Code, the crime of domestic violence occurs whenever a person—repeatedly or not—inflicts physical or psychological harm to their spouse or former spouse (Sec. 152).  The Appellant argues that the occurrence of the crime of domestic violence requires repeated episodes of physical or psychological harm for the marital relation to be damaged by the injuries of the spouse.  In this case, the Appellant argued that there was only one episode of physical and psychological injury, and he therefore should be tried for the lesser crime of inflicting bodily injury.  The appellate court held that the crime of domestic violence is not characterized by repeated episodes of harm, but rather by the gravity of the harms inflicted.  The appeal was denied.



Sentenza 25498/2017 Corte di Cassazione: Sezione VI Penale (Supreme Court: VI Criminal Section) (2017)

Domestic and intimate partner violence

A man was charged with the crime of mistreatment in the family pursuant to article 572 of the Italian Criminal Code and sentenced by the Court of Appeal to one year and four months of imprisonment for mistreatment, aggravated injury and threats against the cohabiting partner. The accused appealed the ruling holding that the charges referred to episodes occurred after the cessation of the cohabitation between him and the victim. However, the Supreme Court maintained that the end of cohabitation is irrelevant to the evaluation of ill-treatment between the members of the couple when the personal relationship was based on mutual solidarity and assistance, and resulted in the birth of a child. In fact, the parental obligations towards a child, for which the couple needs to relate with cooperation and mutual respect, survive despite the cessation of the cohabitation. Therefore, the Italian Supreme Court dismissed the appeal because the presence of a child increases the importance of the stability and longevity of the parents’ relationship.



Sentenza N. 10959/2016 Corte de Cassazione: Sezioni Unite (Supreme Court: Joint Sections)

Domestic and intimate partner violence, Femicide, Gender-based violence in general, International law, Sexual harassment, Sexual violence and rape, Stalking, Statutory rape or defilement

The Supreme Court, in deciding upon the applicability of certain procedural rules, confirmed the main international definitions of violence within gender relationships. Particularly, the local court dismissed the case against a man charged with the crimes of stalking and mistreatment in the family pursuant to articles 612-bis and 572 of the Italian Criminal Code, without giving any notice thereof to the person injured by the crime in accordance with Article 408 of the Italian Code of Criminal Procedure. In deciding the case, the injured person appealed the decision of the local court and requested the Italian Supreme Court to declare the dismissal of the case null and void. In deciding the procedural issue at hand, the Italian Supreme Court pointed out that the Italian criminal law has drawn the definitions of gender violence and violence against women mainly from international law provisions, which are directly enforced in the system pursuant to Article 117 of the Constitution. In this decision the Italian Supreme Court gave all the definitions of violence within gender relationships in consideration of international conventions and specifically European law, and concluded that such definitions, even if not directly included in domestic regulations, “are fully part of our national system through international law and are therefore enforceable.” According to this interpretation, the definitions of gender violence given by the Istanbul Convention on preventing and combating violence against women and domestic violence are directly applicable in the Italian legal framework. On this basis, the Court ruled that notice of dismissal of the case must always be served on the person injured by crimes of stalking and mistreatment in the family pursuant to articles 612-bis and 572 of the Italian Criminal Code, as those provisions relate to the gender violence notion set forth under the international and EU provisions applicable in the Italian legal framework.



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.



Decision No. 265/Pid.Sus/2015/PN Btm District Court of Batam (2015)

Domestic and intimate partner violence, Employment discrimination, Gender discrimination

The Defendant regularly verbally abused his wife (the victim) shouting at her, insulting and cursing her, demeaning her status and causing her deep embarrassment at in front of other employees. The Defendant also joked that he should just divorce the victim and get a new younger wife instead. These verbal abuses were not isolated incidents. The court viewed them as a form of psychological abuse which resulted in psychological suffering, a deep sense of helplessness, and the victim experiencing fear, losing confidence, and losing the will to act. The court found that the Defendant was guilty of domestic violence under Article 45 of Law No. 23 2004 and sentenced the Defendant to seven months imprisonment.



Decision No. 246/Pid.B/2013/PN.Trt District Court of Tarutung (2013)

Domestic and intimate partner violence

The Defendant forced his wife (the victim) to sleep in the cold outside of the bedroom and when the victim tried to enter the bedroom and sleep on the bed, the Defendant proceeded to push her to the floor and beat her, causing bruises and injuries to the victim. The court found the Defendant guilty of an act of domestic violence under Article 44(1) of Law No.23 2004 on Elimination of Domestic Violence. The court sentenced the Defendant to three months imprisonment.



Decision No. 174/pid.Sus/2013/PN.Kpj District Court of Kepanjen (2013)

Domestic and intimate partner violence

The Defendant had an argument with his wife (the victim) and proceeded to hit his head against the victim’s head three times causing bruising and swelling to occur on the victim’s head. The court considered this act as an act of domestic violence under Article 5 of Law No. 23/2004 relating to Elimination of Domestic Violence. The court found the Defendant guilty and sentenced him to three months imprisonment.



Decision No.172/Pid.B/2016/PN.Trg District Court of Tenggarong (2016)

Statutory rape or defilement

The Defendant broke into the victim’s house and forced the victim to have sexual intercourse with the Defendant. The charge is regulated and punishable by Article 285 of the Indonesian Penal Code dated 19 May 1999. The court found the Defendant guilty and sentenced the Defendant to imprisonment for six years and six months.



Decision No. 29/Pid/B/2017/PN.Tul Tual District Court (2017)

Sexual violence and rape

The Defendant committed the offence of creating and disseminating pornographic material. The Defendant threatened the victim with physical harm and forced the victim to take off her clothes to allow the Defendant to film her. The victim put up verbal resistance that prompted the Defendant to slap her and to forcibly take off the victim’s clothes. The Defendant then proceeded to take pictures of the naked body of the Defendant then forced the victim to perform oral sex on the Defendant. The Supreme Court decided that the Defendant was guilty of creating pornography which explicitly showed nudity and sentenced the Defendant to imprisonment for one year and three months and a fine of Rp. 500,000,000. If the fine is not paid then the Defendant will face further imprisonment for an additional three months. Under Indonesian Law only acts that involve vaginal penetration are defined as rape.



Decision No. 29/Pid/B/2017/PN.Tul Tual District Court (2017)

Sexual violence and rape

The Defendant committed the offence of creating and disseminating pornographic material. The Defendant threatened the victim with physical harm and forced the victim to take off her clothes to allow the Defendant to film her. The victim put up verbal resistance that prompted the Defendant to slap her and to forcibly take off the victim’s clothes. The Defendant then proceeded to take pictures of the naked body of the Defendant then forced the victim to perform oral sex on the Defendant. The Supreme Court decided that the Defendant was guilty of creating pornography which explicitly showed nudity and sentenced the Defendant to imprisonment for one year and three months and a fine of Rp. 500,000,000. If the fine is not paid then the Defendant will face further imprisonment for an additional three months. Under Indonesian Law only acts that involve vaginal penetration are defined as rape.



Longsworth v. The Queen Court of Appeal of Belize (2012)

Domestic and intimate partner violence

The appellant threw an accelerant on her husband, followed by a lit candle.  She then immediately attempted to douse the flames in water.  Her husband died and she was convicted of murder and sentenced to life imprisonment.  On appeal, the appellant attempted to introduce new evidence that she had suffered from Battered Women Syndrome (“BWS”).  This evidence was not available during the appellant’s trial because there were no qualified forensic psychiatrists available in Belize.  The Court of Appeal granted the appeal on the ground that (1) it was capable of belief; (2) it was relevant to the issues before the jury; (3) it would have been admissible at trial; (4) the trial attorney had been asked why no medical evidence was presented at trial; (5) the new evidence may have caused the jury to decide differently; (6) the evidence supports a defense of diminished responsibility and (7) it cast doubt as to the reasonableness of the verdict and admission of the evidence was in the interest of justice.  The court considered the findings of an experienced and distinguished professional in the field of forensic psychiatry who examined the appellant, interviewed witnesses, and reviewed trial documents and found that the appellant’s history and behavior was consistent with BWS.  The forensic psychiatrist concluded that the appellant had been physically, sexually, financially, and psychologically abused by her partner for nine years.  This abuse, together with the appellant’s response to the abuse, was found to be consistent with BWC.  The Court reduced the appellant’s sentence to eight years.  This case was the first time that a court in Belize admitted new evidence in relation to BWS and PTSD in connection with a defense of diminished responsibility. 



Meyers v. The Queen Court of Appeal of Belize (2017)

Statutory rape or defilement

The appellant was convicted of carnal knowledge of a female child under the age of 14.  During trial the complainant claimed to not remember anything about the night in question or even where she lived, her mother’s occupation or place of work, or where her best friend lived.  When the complainant continued to “evince no desire to cooperate with prosecuting counsel” and stated her previous statement to the prosecution about the night in question was untrue, the trial court granted the prosecution permission to treat the complainant as a hostile witness.  However, the Court of Appeal faulted the trial court for the fact there is “no indication in the record that the judge took the steps dictated by long established practice in this jurisdiction to demonstrate that [the trial judge] formed, at the proper time, the opinion that [the complainant], being then a child of only 13 years, understood the nature of an oath.”  Given the importance of the sworn testimony of the complainant on the identification of the appellant, the court ordered a retrial and granted bail on the condition the appellant stayed away from the complainant and her family. 



Gabourel v. The Queen Court of Appeal of Belize (2017)

Domestic and intimate partner violence, Sexual violence and rape

The appellant was convicted of grievous harm (was also charged but acquitted of rape) and was sentenced to a fine of $10,000 or in default a term of three years imprisonment, as well as being ordered to pay the complainant $3,000.  The appellant appealed, arguing that the trial judge erred in law by not giving a proper instruction to the jury on the issue of self-defense.  The Court of Appeal affirmed the conviction, finding “no miscarriage of justice,” where the jury “clearly accepted the version [of events] given by the complainant in relation to the offence of grievous harm, and rejected the version given by the appellant,” and a different self-defense instruction would not have changed the result.



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.”



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

Sexual violence and rape

The appellant was convicted of abduction and rape and sentenced to 12 years’ imprisonment.  The complainant was kidnaped from a car, driven to a remote location, and raped multiple times by two men.  Upon arrival at the remote location, the police chased after the two men, but only caught and arrested one of the men – the appellant.  The complainant testified that the appellant wore a stocking mask, and although he had spoken to her many times the night of her kidnaping, she did not recognize him until his stockinged face was illuminated by a car light.  This identification was not made until a few days after the police arrested the appellant.  The Court of Appeal quashed the convictions because the trial judge did not direct the jury on issues related to voice identification in general or concerns related to the timing of complainant’s identification.  The Court of Appeals also faulted the prosecution for not conducting a controlled identification procedure to test the complainant’s ability to identify the appellant by the sound of his voice.  The Court did not however order a retrial because it found the evidence to be “insufficient to justify a conviction by any jury which had been properly directed” due to the “glaring evidential gaps”.  



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

Domestic and intimate partner violence, Femicide

The appellant was convicted of the murder of his romantic partner of eight years and was sentenced to life in prison.  On the night of the murder, the appellant first beat his partner in front of her three children. One of children called the police to report the beating, but the police failed to respond to the residence.  Following the beating, the appellant left the house, but returned an hour later, broke into the house, and stabbed his partner to death.  The appellant then drove his partner to the hospital where he was subsequently arrested. At the appellant' trial, testimony revealed that the appellant was under the influence of drugs and alcohol at the time of the killing and had a history of domestic violence. The first issue before the Court of Appeal was whether the trial judge gave adequate instructions on the potential for intoxication to be taken into account when deciding whether there was an intent to kill for the purposes of the appellant’s defense.  The Court of Appeal found that such instructions given by the trial judge were adequate.  The next issue decided by the Court of Appeal was whether new evidence from a forensic psychiatrist based on a single interview with the appellant regarding the appellant’s mental health necessitated a new trial.  The Court of Appeal found the new evidence to be less than credible, but exercised discretion to substitute the original conviction of murder to a conviction of manslaughter and reduced the appellant’s sentence to 18 years.  In reducing the sentence, the Court of Appeal began with the range of sentences for murder applicable a street fight (being 15 to 20 years), although acknowledged that the instant case differed in that it was a “vicious attack on an unarmed victim.”  Taking into account appellant’s diagnosis of schizophrenia, the Court of Appeal began with a 15-year sentence and then added three years to reflect the aggravating factors of “the choice of weapon, the number of stab wounds, the presence of the children and the previous violence he inflicted on the deceased about an hour before the fatal incident” to arrive at the 18 year sentence ordered.



Carne v Wride & Carne v Nicholas Supreme Court of the Northern Territory (2012)

Domestic and intimate partner violence

The appellant Barry Carne was formerly in a relationship with L.S., the victim and the mother of his four children.  One day Carne entered L.S.’s home without consent, destroyed property, and confronted L.S..  During the altercation he grabbed and twisted L.S.’s right hand and fingers, causing her to fall in pain.  As a result he was charged with aggravated assault, and a domestic violence order was issued against him.  The domestic violence order restrained him from contacting, approaching, intimidating or harassing the victim and from exposing their children to domestic violence.  While the domestic violence order was in force, Carne again went to L.S.’s house.  After L.S. did not answer, he attempted to hang himself outside the home, only to be saved by his son, who was 14 at the time.  Carne was charged with breaching the domestic violence order, and pleaded guilty.  The sentencing magistrate sentenced him to eight months’ imprisonment for the breach and two months for the aggravated assault, to be served concurrently.  Carne appealed the sentence, claiming that it was manifestly excessive, and argued that the magistrate took into account irrelevant matters, in particular his suicide attempt.  The court of appeal considered the definition of “domestic violence” and whether Carne’s attempted suicide in front of the children was an attempt to cause mental harm to L.S. and/or her children.  The court held that the sentencing magistrate had not received sufficient evidence from the prosecution demonstrating that Carne had attempted the suicide in order to cause mental harm to L.S. and/or her children and, accordingly, it was not open to the magistrate to make such a finding.  The magistrate was required to exclude any other reasonable hypothesis, permitted by the facts, regarding the attempted suicide before concluding that the intent was to cause mental harm.  As such, the sentence was reduced to one month’s imprisonment.



The Queen v. D.A. Supreme Court of the Northern Territory (2017)

Sexual violence and rape

The complainant, a 32-year-old nurse, woke up to the sound of someone breaking into her house in the early hours.  She screamed and struggled for 20 minutes as the perpetrator attempted to have sexual intercourse with her, eventually succeeding.  The victim managed to call the police as the perpetrator was masturbating, which caused the perpetrator to flee the scene.  The accused, who was 16 years old at the time of the offense, pleaded not guilty to having sexual intercourse with the victim without the victim’s consent while knowing or being reckless as to the lack of consent.  DNA tests revealed a match between the DNA of the perpetrator and the sperm found in the victim.  The accused challenged the admissibility of the DNA test, arguing that he did not properly consent to the test.  The court held that the benefit the public would gain from admitting the DNA evidence outweighed any undesirability of admitting the evidence, such as encouraging improper police conduct.  Accordingly, the evidence was ruled admissible.



Ministério Público v. [Undisclosed Parties], 39/09.0TAFCR.C1 Tribunal da Relação de Coimbra (Court of Appeal of Coimbra) (2011)

Sexual harassment, Statutory rape or defilement

The defendant, a teacher, was charged with sexual harassment of children for multiple offenses against two of his students. On repeated occasions, the defendant inappropriately touched and made obscene gestures to the students, who were 11 and 12 years old. The Lower Court found the defendant guilty of the charges. The defendant appealed, arguing that he did not have sexual intent towards the students, and therefore did not satisfy all requisites of the crime of sexual harassment under section 171 of the Portuguese Penal Code. The Appellate Court affirmed the Lower Court’s decision, and held that the crime of sexual harassment of children under section 171 of the Penal Code requires only that the victim’s freedom and sexual self-determination is hindered by the defendant.



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.



Ministério Público v. [Undisclosed Parties], 6/08.1ZRPRT.P1 Tribunal da Relação de Porto (Court of Appeal of Porto) (2014)

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

The Public Prosecutor (Ministério Público) filed charges of human trafficking and sexual exploitation of minors against the defendants, “B” and “C” (names omitted from public record). Evidence demonstrated that B and C would transport women and minors from Italy to Portugal and hold them against their will to work as prostitutes at adult entertainment facilities. The Lower Court found B and C guilty on charges of both human trafficking and sexual exploitation of minors, which constitute separate crimes under the Portuguese Penal Code. B appealed to the Appellate Court, arguing that she could not be sentenced twice for the same conduct. The Appellate Court affirmed the Lower Court’s decision, and held that the crimes of human trafficking and of sexual exploitation of minors violate different rights of the victims, which warrants the stacked sentences of both crimes as provided under Sections 160 and 175 of the Penal Code.



Ministério Público v. [Undisclosed Parties], 481/14.5JABRG.P1 Tribunal da Relação de Porto (Court of Appeal of Porto) (2017)

Statutory rape or defilement

The Public Prosecutor (Ministério Público) brought charges of child pornography against defendant, “B” (name omitted from public record), for committing the crime of child pornography. The Public Prosecutor argued that B. kept naked pictures of a 14-year-old girl. The Lower Court found B not guilty of child pornography, because B did not coerce the girl to send him the pictures, but instead had received the pictures from the girl out of her own free will. The Appellate Court reversed the decision, holding that the means by which the pictures were obtained were irrelevant, and maintaining that possession of naked pictures of a minor is sufficient for the crime of child pornography under section 176 of the Portuguese Penal Code. 



Ministério Público v. [Undisclosed Parties], 3/16.0PAPST.L1-9 Tribunal da Relação de Lisboa (Lisbon Court of Appeal) (2017)

Domestic and intimate partner violence

The Public Prosecutor (Ministério Público) brought charges against two spouses, as defendants, for domestic violence under section 152 of the Portuguese Penal Code. The Public Prosecutor alleged that in a particular episode, both spouses physically and verbally assaulted each other, and should therefore both be penalized for the crime of domestic violence. Both spouses had previously been convicted of charges of domestic violence. In this case, however, both the District Court (Tribunal da Comarca) and the Appellate Court found that although the Portuguese Penal Code does require physical or mental damages to a spouse or former spouse in order to be convicted of domestic violence, spouses cannot both be convicted of domestic violence if damages were caused reciprocally.



Sexual Crimes Court, New Chapter 25 Establishing Criminal Court “E” – Title 17 – Liberian Code of Laws Revised

Sexual violence and rape, Statutory rape or defilement

The Sexual Crimes Court, New Chapter 25 Establishing Criminal Court “E” – Title 17 – Liberian Code of Laws Revised (the “Law”) establishes a Sexual Offences Court and Special Divisions of Circuit Courts. The Law gives exclusive jurisdiction to these courts for dealing with the prosecution of sex crimes. These courts have the authority to prohibit publication of a victim’s personal information. This includes the right to expunge their names from public records. Additionally, the Law grants these courts the ability to provide interim relief to protect victims. In this respect, the Law specifically refers to the ability of the court to ensure that child victims are placed in protective custody.



Toopah v. RL Supreme Court of Liberia (1974)

Domestic and intimate partner violence, Femicide

The Defendant appealed a homicide conviction for the shooting of his wife arguing that the killing resulted from the discovery of her adultery and could; therefore, only amount to manslaughter. In a charge of homicide, the law requires a showing of malice (i.e., a murder committed with premeditation). Implied malice (i.e., murder committed in the “heat of passion;” without premeditation) is nullified by sufficient provocation. The Court found that the murder was premeditated because express malice was proven to the Court. Thus provocation was not considered and the conviction was upheld.



Tequah v. Paye Supreme Court of Liberia (2014)

Sexual violence and rape

The Appellants were accused and convicted of armed robbery and gang rape. The trial court found that the Appellants raped the victim at gun point. The Supreme Court of Liberia upheld that under circumstances of violence or threats of violence to have sexual intercourse with a person, there is a presumption that the person being violated or threatened did not consent. In such circumstances, the burden of proving affirmative consent from the victim is on the accused.



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.



Public Prosecutor of Canton Ticino v. A.A., 6S. 292/2004 Supreme Federal Court (2004)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Sexual violence and rape

A.A. and B.A., while estranged spouses but not having applied for legal separation, were living in the same house in two separate apartments, with A.A. paying for the rental of both units. The decision to live in the same house was accepted by B.A., as it allowed them to continue helping each other with everyday tasks and to oversee the children’s education together. On June 7, 2003, B.A. alleged that the two engaged in intercourse without B.A.’s consent. On May 24, 2004, the Canton Ticino Public Prosecutor indicted A.A. before the Court of Riviera for alleged sexual violence against his wife, B.A. On July 2, 2004, the Canton Ticino Court of Appeal dismissed the indictment of the Public Prosecutor, as B.A. had withdrawn the allegation of sexual violence committed against her by her husband. The Public Prosecutor appealed the decision before the Supreme Federal Court. Under Swiss law, sexual violence against a spouse can only be prosecuted where the victim has made allegations. The Supreme Federal Court, on the basis of the evidence collected in the course of the proceeding, and as argued by the Public Prosecutor, stated that the fact that the spouses were living in two separate apartments was not material, as they were nevertheless maintaining a “communion of life” status, which could be inferred from their mutual assistance, meals together, continued feelings of affection, and occasional sexual intercourses. Therefore, on the basis of such evidence, the Supreme Federal Court stated that the decision of the Court of Appeal to dismiss the indictment of A.A. was legitimate and rejected the Public Prosecutor’s appeal.



X. v. Y., BGE 131 IV 167 Supreme Federal Court (2005)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Sexual violence and rape

Y. was married to X. until 1993. After the divorce, he continued to live with his former wife until March 2001, when he moved into his own flat. The former spouses continued their sexual relationship until September 2, 2001, after which they finally separated. From September 21 to October 12, 2001, Y. sent X. a large number of messages demanding that she perform certain sexual acts and threatening her. X. finally consented to the sexual acts demanded - including sexual intercourse and filming a sex tape. X. was forced to film pornography and suffered sexual abuse for about two months. Initially, the Winterthur Court condemned Y. to sixteen (16) months in prison for sexual coercion and rape. On appeal, the prison sentence was reduced to four (4) months, but Y.’s culpability was firmly reiterated. Y. appealed to the Supreme Federal Court, claiming that the threats to X. were not as severe as the prosecution had claimed. This appeal was rejected by the Supreme Federal Court, and the sentence of four (4) months remained in place.



Sentencia nº 965 de Tribunal Supremo de Justicia Tribunal Supremo de Justicia (2012)

Sexual violence and rape, Statutory rape or defilement

A mother was charged with sexual abuse of her own son and daughter.  The trial court issued an order of detention pending trial.  When the mother brought an extraordinary constitutional petition seeking protection against the order, the court of appeals declined to hear the petition on the ground that such a petition can heard only after ordinary remedies have been exhausted.  On appeal to the Supreme Court, the mother argued that the underlying order of detention suffered from various constitutional defects, mainly that special courts have exclusive jurisdiction to hear cases involving sexual violence against a girl and that the trial court therefore lacked jurisdiction.  (The mother argued, moreover, that she was being prosecuted and detained in order to prevent enforcement of her visitation rights—this after she had already been deprived of them the two years prior.)  The Supreme Court affirmed the appellate decision, noting that the mother had not exhausted any of the three remedies still available to her:  motion for reconsideration, motion for substitution, and an ordinary appeal. 



Sentencia nº 407 de Tribunal Supremo de Justicia Tribunal Supremo de Justicia (2016)

Sexual violence and rape, Statutory rape or defilement

A man invaded his neighbor’s house at night while two girls (12 and 17 years old) and their grandmother slept, and sexually assaulted the two girls.  The trial court convicted him of sexual abuse and physical violence.  After the court of appeals affirmed the conviction, the defendant brought a cassation appeal to the Supreme Court, arguing that the court of appeals erred by (1) selectively giving weight only to certain testimony of the victims and their grandmother, while ignoring exculpatory evidence; and (2) finding facts without articulating grounds for each finding.  Noting that weighing of evidence and fact finding are the exclusive domain of the trial court and that appellate review must be limited to assessment of the sufficiency of the evidence, the Supreme Court denied the appeal, expressly rejecting it as an attempt to replay the appeal below. 



Sentencia nº 620 de Tribunal Supremo de Justicia Tribunal Supremo de Justicia (2015)

Statutory rape or defilement

A male dance teacher was charged with sexually abusing a three-year-old girl at a dance school, by inducing her to perform oral sex and rubbing his penis against her behind.  Trial witnesses included the child, a security guard, and the parent of another student.  The trial court convicted the man and sentenced him to over 15 years of imprisonment.  On appeal, he argued that the conviction was illogical and groundless because the testimony of the guard and parent disproved that he was alone with the child at the school at the time of the alleged crime.  He also asserted that the prosecution turned down his offers to test his DNA against any found on the child’s undergarment.  The court of appeals affirmed the conviction, noting that factual and credibility determinations were for the trial court to make.  On a cassation appeal, the defendant argued that the court of appeals failed to state the grounds for its decision.  The Supreme Court also affirmed the conviction, finding that the defendant failed to specify the legal errors he claimed.   



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.    



Sentencia nº 752 de Tribunal Supremo de Justicia Tribunal Supremo de Justicia (2016)

Sexual violence and rape

A female motorcycle taxi driver was diverted by a male passenger to a remote location, where he knocked off her helmet with a blow to the head and used a broken bottle and threats to force her to perform oral sex.  Prosecutors charged him with (1) physical violence, (2) psychological violence, (3) sexual violence, and (4) threats.  Notably, prosecutors dropped the physical and psychological violence charges, explaining that (1) the helmet had protected the victim from any “visible injuries legally diagnosable through a medical examination,” and (2) it was not possible to show that she was “psychologically impacted by the events,” given that they “occurred for the first time and not in a manner continuous or permanent in time.”  The defendant pled guilty to sexual violence and threats, and was sentenced to 100 months of imprisonment.  On a constitutional appeal to the Supreme Court, the defendant argued that sexual violence and threats were impossible to prove in the absence of physical or psychological violence.  The Supreme Court rejected the appeal.  Citing various sources, the Court declared that “the nucleus of the crime of sexual violence is the infringement of a woman’s right to decide upon her sexuality voluntarily and freely.”  The Court noted, moreover, that threats were a form of violence sufficient to prove sexual violence under the statutory definitions.  This case is important because it makes clear that neither physical nor psychological violence is required in order to establish the commission of sexual violence.    



Sentencia nº 393 de Tribunal Supremo de Justicia Tribunal Supremo de Justicia (2016)

Sexual violence and rape, Statutory rape or defilement

A 13-year-old girl reported having consensual sex with her 26-year-old boyfriend.  He was charged under a statute that outlaws sexual relations, even without violence or intimidation, to the detriment of a woman who is “vulnerable” because of her age.  The trial court convicted the defendant, finding the girl “vulnerable” based on psychological evaluations.  On appeal, the court of appeals focused on the girl’s “discernment” to “decide concerning an active sexual life.”  The court of appeals then found the girl not “vulnerable” in light of her testimony that she consented to the alleged crime.  The court thus vacated the conviction.  The court of appeals also found that the psychological evaluations had “nothing to do with” the issue, because they did not focus on the girl’s “discernment,” but rather on her emotional state, which, in any event, was caused by “rigid standards and values” at home and the “the presence of a controlling feminine figure” (her mother), and not by the relationship with the boyfriend.  Because the couple had been dating for four months before deciding “by mutual accord” to have sex, the court found that the boyfriend had not taken advantage of the girl.  Prosecutors then brought a cassation appeal to the Supreme Court, arguing that the court of appeals had misinterpreted and misapplied the statute.  Although the Supreme Court also focused on the “degree of discernment or maturity possessed by the victim to make decisions regarding her sexual freedom,” the Court also held that the girl’s emotional state was essential to the analysis of her vulnerability and her ability to give “free consent,” because “emotions are determinants” that “directly influence human behavior.”  The Supreme Court thus remanded the case to a new appeals panel, with directions to rehear the defendant’s appeal in a manner consistent with the Court’s opinion.    



Sentencia nº 235 de Tribunal Supremo de Justicia Tribunal Supremo de Justicia (2016)

Sexual violence and rape

In the predawn hours of a Sunday morning, police officers came upon a cab parked in a secluded location.  A woman (apparently an adolescent) emerged from the car naked and told the officers she was being raped by the driver, who was found with his pants down.  Prosecutors charged the driver with attempted sexual violence.  After the driver pled guilty and was sentenced to 50 months of imprisonment, the victim appealed the classification of the offense and prosecutors opposed the appeal.  Based on evidence in the record, the court of appeals modified the conviction to sexual violence, doubling the time of the prison sentence.  On the driver’s cassation appeal, the Supreme Court held that, by upgrading the conviction beyond the driver’s plea, the modification denied the driver the opportunity to present a defense and thus violated his right to due process.  The Supreme Court accordingly vacated the modification and remanded the case for rehearing of the victim’s appeal. 



Sentencia nº 357 de Tribunal Supremo de Justicia (Número de Expediente: CC15-173) Tribunal Supremo de Justicia (2015)

Domestic and intimate partner violence, Gender-based violence in general

In 2013, a woman’s ex-partner wounded her with a machete and knife as she was arriving home at midnight.  When the victim’s sister intervened, the man punched the sister and ran off.  For his attack against his ex-partner, the man was charged with attempted homicide, a violation of both the general penal code and the Organic Law on the Right of Women to a Life Free of Violence (the “statute”).  For his attack against the sister, he was charged with physical violence, a violation of the statute.  Amended in 2014, the statute created special courts with exclusive jurisdiction to hear cases brought under the statute, but a subsequent Supreme Court decision clarified that all types of homicide offenses occurring prior to the amendment remained within the jurisdiction of ordinary courts.  During the preliminary hearing, the ordinary court found that the allegations did not support the attempted homicide charge but rather the offense of “minor injuries,” a violation of the statute.  Accordingly, the ordinary court ruled that it lacked jurisdiction and thus referred the case to the special court.  In turn, finding that the allegations did support a homicide charge, the special court also concluded that it lacked jurisdiction.  When the jurisdictional conflict was certified to the Supreme Court, it held that the special court had exclusive jurisdiction.  The Court explained that the classification of the “homicide” charge was of no consequence, because the charge against the sister vested jurisdiction in the special court over all related charges involving gender violence. 



Clark v. Clinton-Johnson Supreme Court of Liberia (2015)

Sexual violence and rape

The Act Creating Criminal Court E, Section 25.3(a), requires magistrates to forward a case alleging a sexual offense to the circuit court within 72 hours of arrest without first investigating the charge. However, the Constitution of Liberia, Article 21(f), requires courts in general criminal matters to conduct an investigation, known as a preliminary examination, within 48 hours to determine whether a prima facia case exists, thereby prohibiting preventively detaining the accused. The petitioner was arrested for rape, and the magistrate forwarded the case to the circuit court without first conducting a preliminary examination. The Supreme Court of Liberia held that forwarding such a case to the circuit court under the Act does not violate the Constitution, notwithstanding the additional time and its potential characterization as preventive detention, because magistrate courts are not equipped to protect witnesses from public exposure and the psychological harm resulting from directly facing the defendant. The objective of promoting witness protection having outweighed the additional time required by forwarding such cases to the circuit court, the Constitution is not violated, and Section 25.3(a) stands.



Application by Court of First Instance Court to Annul a Certain Criminal Provision Constitutional Court (2016)

Sexual violence and rape, Statutory rape or defilement

The Turkish Criminal Code, Article 103, Number 5237, provides sentencing for child sexual abuse without graduating the sentence in proportion to the child’s age. The Bafra High Criminal Court applied to the Constitutional Court to annul this provision, and the Court annulled the following two provisions: (1) child sexual abuse carries a sentence between eight and fifteen years; (2) child sexual molestation carries a sentence between three and eight years. The Court reasoned that the legislature may consider the country’s moral values and social and cultural structure in determining the punishment, and while heavier sentences for crimes against younger children who are more vulnerable to sexual assault would be reasonable, the Court opined that in some cases the crime and the punishment might not be proportional, which would violate the “state of law” principle. Therefore, the Court annulled the sentencing guidelines, effective six months following publication in the Official Gazette.



Warren v. R. Court of Appeal (2015)

Sexual violence and rape, Statutory rape or defilement

The applicant was convicted in the Circuit Court of Kingston for the offences of indecent assault, incest and assault. Later, a single judge granted leave to appeal and granted legal aid to the appellant. The prosecution conceded that the learned trial judge erred in imposing a sentence of 15 years imprisonment in respect of the incest charge, under the Child Care Protection Act of 2004, because the appellant was actually charged under the Incest (Punishment) Act, which establishes as maximum penalty for the crime is five years. As a consequence, the appeal against the sentence was allowed on the incest charge and this was set aside and substituted for five years imprisonment. The Court didn’t take into account, nor studied, the possibility of amending the indictment due to the specific circumstances and seriousness of the case, that is, the fact that the appellant sexually assaulted an underage girl on more than one occasion, and also, according to the evidence, threatened her to kill her if she made him go to prison.



Gregory v. R. Court of Appeal (2015)

Gender-based violence in general

The applicant was sentenced to seven years imprisonment for abduction and robbery with aggravation. In response to his first application for leave to appeal against conviction and sentence, the judge granted him leave to appeal to the sentence, but refused permission to appeal against conviction. The applicant renewed his application for leave to appeal against his conviction. The issue on appeal was whether the indictment erroneously citing the wrong statute warranted overturning the conviction. The offence of forcible abduction can be found in the section 17 of the Sexual Offences Act, and it was formerly an offence addressed in section 56 of the Offences Against Person Act. The latter was repealed when the Sexual Offences Act passed. Although the sections are not identically worded, they create the same offence of taking away a woman, against her will, with the intent of having sexual intercourse with her. The indictment in this case had incorrectly stated that the offence was in violation of section 56 (which had been repealed at that point). Nonetheless, the Court of Appeals decided that the error was not fatal to the conviction, as an amendment would have been permissible. This leads to the conclusion that as long as indictment errors are related to the form, and not the substance, then there is no prejudice to the appellants.



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.



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.



Fletcher v. R. Court of Appeal (2015)

Sexual violence and rape, Statutory rape or defilement

On 29 July 2009, the applicant was convicted in the Home Circuit Court for rape of a 17-year-old girl. She claimed that he hauled her to the back of an abandoned house while asking her indecent questions and threatening her, and then proceeded to forcibly have sexual intercourse with her. He confirmed that they had had sexual intercourse in the yard of a building, but claimed they were in a long-term relationship. As to prove this, a witness testified that the applicant introduced the complainant to her as his girlfriend. However, her testimony was contradictory and unclear. His application for leave to appeal was heard and refused by a single judge of the Supreme Court of Criminal Appeal. He then renewed application for leave to appeal, arguing that the learned trial judge failed to adequately address questions raised by the jury during their deliberations, only giving them broad and general directions concerning their role and legal duty. His application for leave to appeal was again refused by the full Court. The application was denied because the court determined that the lower court made an accurate comparison of precedents offered, and that the trial judge’s jury direction was appropriate and within the acceptable parameters of what has become known as the Watson direction (as established by the English Court of appeal in the case R v. Watson). The judge was found to have avoided giving the jury any hint of pressure, correctly advised them to apply both their individual and collective experiences, and urged them to share their perspectives, but also to be willing to adapt to the other’s view if they agreed.



Squire v. R. Court of Appeal (2015)

Sexual violence and rape, Statutory rape or defilement

On 24 May 2013, the applicant was found guilty of the abduction and rape of a 14-year-old girl. He had a good relationship with the parents of the girl and thus was a trustworthy person to her. The applicant’s first appeal application was denied. He renewed his application and the Supreme Court of Criminal Appeal granted the application. This time his conviction was quashed, the sentences were set aside, and the Court ordered a new trial at the next sitting of the Circuit Court. The applicant criticized the quality of the representation given by his counsel at the trial, arguing that his attorney did not provide an adequate defense and did not take full instructions from him. The attorney defending the applicant at the first trial argued that the applicant was properly defended, that the prosecutor also submitted that the defense was adequate and that, as the case turned on the contest of credibility between the complainant and the applicant, the jury’s verdict would have been the same, regardless of any omission by the defense counsel at the trial. Despite the seriousness of the alleged crime, the Court held that the applicant was denied the substance of a fair trial and quashed the conviction, setting aside the sentences, without doing a balancing test between the rights of the 14-year-old girl who was a victim of a crime, and the sex offender’s due process rights.



NJA 2007 s. 547 Högsta domstolen (Supreme Court) (2007)

Domestic and intimate partner violence

The defendant was charged with multiple counts of assault and unlawful threats under the combined classification of aggravated violation of a woman’s integrity (Sw. grov kvinnofridskränkning). In the Court of Appeal, the defendant requested that the court allow evidence regarding the victim’s character.  The prosecutor and the victim objected, arguing that the evidence was meant only to tarnish the woman’s reputation and had no legal relevance to the present case.  As his proffer, the defendant claimed that the witnesses would testify that the woman was a pathological liar and that she committed fraud and extortion by threatening to report a relative for molestation if he did not pay her. The Court of Appeal excluded portions of the proffered evidence and the defendant appealed that decision. On review, the Supreme Court held that because the prosecution relied primarily on the victim’s testimony, her credibility was a key factor in the case.  As such, it determined that the Court of Appeal denied the defendant a fair trial by excluding the proffered character evidence. The Supreme Court reversed the conviction and remanded the case.



RH 2006:29 Hovrätten för Västra Sverige (Court of Appeal for Western Sweden) (2006)

Domestic and intimate partner violence

The defendant had been released on probation after having been convicted of aggravated violation of a woman’s integrity (Sw. grov kvinnofridskränkning) against a woman with whom he had a relationship. While on probation, the defendant assaulted the woman in her residence by striking her in the face and throwing her to the ground. The defendant had also left a message on the woman’s voicemail, threatening to kill her. The Court of Appeal for Western Sweden found that the defendant was guilty of assault and unlawful threat. The question before the court then became whether the crimes should be reclassified as aggravated violation of a woman’s integrity. The court held that because the defendant had previously been convicted of aggravated violation of a woman’s integrity, and the assault had been committed six months after the defendant was released on probation, the assault and the unlawful threat were to be viewed as continued and repeated violations of the woman’s integrity, and thus reclassified as aggravated violation of a woman’s integrity.



RH 2006:29 Hovrätten för Västra Sverige (Court of Appeal for Western Sweden) (2006)

Domestic and intimate partner violence

The defendant had been released on probation after having been convicted of aggravated violation of a woman’s integrity (Sw. grov kvinnofridskränkning) against a woman with whom he had a relationship. While on probation, the defendant assaulted the woman in her residence by striking her in the face and throwing her to the ground. The defendant had also left a message on the woman’s voicemail, threatening to kill her. The Court of Appeal for Western Sweden found that the defendant was guilty of assault and unlawful threat. The question before the court then became whether the crimes should be reclassified as aggravated violation of a woman’s integrity. The court held that because the defendant had previously been convicted of aggravated violation of a woman’s integrity, and the assault had been committed six months after the defendant was released on probation, the assault and the unlawful threat were to be viewed as continued and repeated violations of the woman’s integrity, and thus reclassified as aggravated violation of a woman’s integrity.



NJA 2016 s. 819 Högsta domstolen (Supreme Court) (2016)

Sexual violence and rape

Two men were traveling in a car with a sleeping woman.  While the woman was still asleep, and under the influence of narcotics, the defendants raped her.  Both were convicted of rape.  One of the defendants appealed his conviction to the Supreme Court, which found that, because the defendant raped the woman and subsequently helped his co-defendant move the woman from the front to the back seat of the car for the purpose of raping her, he was properly convicted.  Swedish law classifies multiple acts of rape from multiple persons as aggravated rape.  Here, the defendants committed some of the acts together and the individual acts in succession, so the acts were viewed as aggravated rape.



NJA 2013 s. 548 Högsta domstolen (Supreme Court) (2013)

Domestic and intimate partner violence, Sexual violence and rape

The defendant suspected that his then-wife was unfaithful.  In order to determine if his suspicion was correct, defendant forced his wife onto a bed, pulled her legs apart, and inserted two fingers into her vagina. During this ordeal, the defendant had also threatened her.  Despite the defendant’s alleged purpose, the Supreme Court found that his actions were sexual in nature and that they constituted rape.  Although sexual assault may be viewed as less severe if the victim wakes up and objects, that concept did not apply. Here, the defendant used actual and threatened violence in a manner that was humiliating to the victim and, as a result, the Supreme Court held that the crime was not to be classified as “less severe” (Sw. mindre grovt), but as a rape of the “normal” degree (Sw. av normalgraden).



NJA 2015 s. 1024 Högsta domstolen (Supreme Court) (2015)

Sexual violence and rape

Defendant, an 18-year-old man, was convicted of rape and sentenced to one year in prison. The question for the Supreme Court was whether the jail sentence was too long, given the defendant’s age. The Supreme Court noted that that the punishment for rape of the “normal degree” (Sw. normalgraden) is between two and four years’ imprisonment.  Normally, courts reduce jail sentences by fifty percent when the defendant is 18 years old.  However, for long jail sentences, the courts have discretion to further reduce the punishment.  The court also recognized that punishments other than jail sentences also may be considered. Given the crime, the court determined that community service was inappropriate, but reduced the defendant’s sentence to probation and three months’ imprisonment.  Though rape is a serious offense, the Supreme Court adhered to the principle that imprisoning young individuals should be avoided, to the extent possible.



RH 2010:6 Svea hovrätt (Svea Court of Appeal) (2010)

Sexual violence and rape

The defendant was charge with sex crimes, including: (1) rape of woman A, (2) sexual coercion and rape of woman B, and (3) sexual coercion and attempted rape of woman C.  It was alleged that the defendant assaulted all three women while he was highly intoxicated.  The district court convicted the defendant on all charges, but the Court of Appeal reversed the convictions on the charges related to women B and C.  Regarding woman A, however, the Court of Appeal affirmed defendant’s conviction because, at the time of the rape, woman A was in a helpless condition and asleep from intoxication.  Although the defendant argued that he should not be held liable because he was intoxicated, the court rejected his defense.  The Court of Appeal recognized that the law classifies rape as less severe if there is no penetration, or that the penetration was brief and interrupted after the victim wakes up and objects to having intercourse, no such mitigating circumstances were present. Consequently, the defendant was convicted of rape of the “normal” degree (Sw. av normalgraden).



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.



RH 2004:48 Svea hovrätt (Svea Court of Appeal) (2004)

Divorce and dissolution of marriage, Domestic and intimate partner violence

During a four-month period, A.H. made several unlawful threats (Sw. olaga hot) toward his ex-wife. The question in the Court of Appeal was whether the unlawful threats constituted repeated violations of the ex-wife’s integrity and whether the threats were meant to seriously harm her self-esteem. The Court of Appeal acknowledged that the parties were going through a divorce, where both parties expressed hurtful words to one another.  As such, the Court of Appeal held that the unlawful threats did not constitute a violation of a woman’s integrity (Sw. kvinnofridskränkning).



RH 2003:11 Hovrätten för Västra Sverige (Court of Appeal for Western Sweden) (2003)

Domestic and intimate partner violence, Gender-based violence in general

L-G.T. assaulted his girlfriend, S.S., two times during the time they lived together. The District Court found that the acts were meant to cause a serious violation of S.S.’s integrity. The Court of Appeal held that the number of acts must be more than two in order to constitute a repeated violation of the integrity, but that if the acts of violence were severe, the number of repeated acts necessary for conviction may be reduced.  Because the court found that the assaults at issue in this case were not severe, the court did not find the defendant guilty of violating his girlfriend’s integrity (Sw. grov fridskränkning).



RH 2016:29 Svea hovrätt (Svea Court of Appeal) (2016)

Domestic and intimate partner violence, Gender-based violence in general

During the course of a three month-long relationship, M.H. assaulted A.I. four times. The question in the Court of Appeal was whether M.H. and A.I. lived together under circumstances that could be considered equal to a marriage and, if so, whether the repeated assaults should be classified a violation of a woman’s integrity (Sw. kvinnofridskränkning). The Court of Appeal held that they did not.  Because the couple did not share a household, the crime could not be considered as violation of a woman’s integrity. The Court of Appeal then assessed whether the couple were “closely related persons” (Sw. närstående), which would allow the assaults to be classified as aggravated violation of the integrity (Sw. grov fridskränkning). However, the Court of Appeal held that the relationship was too short for M.H and A.I. to be viewed as closely related persons and refused to convict M.H. of aggravated violation of the integrity.



NJA 1999 s. 102 Högsta domstolen (Supreme Court) (1999)

Domestic and intimate partner violence

B.B. was tried for repeatedly assaulted his girlfriend, L.L., in their home. The question the Supreme Court considered was whether previous assault convictions could be used to convict B.B. of a related crime – violation of L.L.’s integrity (Sw. kvinnofridskränkning).  The elements of violating of a woman’s integrity are as follows: (i) the defendant and the alleged victim are, or had been, in a relationship equivalent to a marriage, and (ii) that the acts constitute repeated violations of the woman’s integrity and have been intended to seriously harm her self-esteem. The Supreme Court noted that B.B. had been assaulting L.L. on an on-going basis and that B.B. had already been convicted for some of the assaults. Although the Supreme Court confirmed that all assaults generally could be taken into consideration – even the assaults for which B.B. had already been convicted – because some of B.B.’s assault convictions predated the law against violating a woman’s integrity, the law could not be retroactively applied to consider B.B.’s assault convictions.



NJA 2008 s. 1010 Högsta domstolen (Supreme Court) (2008)

Domestic and intimate partner violence

T.H. was accused of assault and unlawfully threatening (Sw. olaga hot) his girlfriend, L.K. The alleged assault consisted of dragging her by the hair and pressing a knife against her throat, while threatening to kill her. T.H. also allegedly threatened to bomb L.K.’s apartment, and he told her that he would kill her if she called the police. The Supreme Court held that although the elements were present to establish an assault and the making of an unlawful threat, the defendant was not necessarily guilty of both crimes. According to the court, if an act is considered closely connected, and also subordinate, to another act, the defendant may be convicted of only one of the acts. The Supreme Court held that the threat was the more serious crime and that the assault could possibly elevate the unlawful threat to an “aggravated” threat, but the Supreme Court declined to do so in this case. Instead, the court convicted T.H. only of making an unlawful threat. Two Supreme Court judges dissented, arguing that the threat should have been classified as aggravated.



NJA 2005 s. 712 Högsta domstolen (Supreme Court) (2005)

Domestic and intimate partner violence, Sexual violence and rape

L.G. was accused of violation of a woman’s integrity (Sw. kvinnofridskränkning), assault (Sw. misshandel) and rape of his wife, C.G.  Because the couple’s three children were present when the alleged abuse occurred, L.G. was also charged with violation of their integrity.  The Supreme Court found that C.G.’s statements were more credible than L.G.’s, partly because the couple’s three children concurred with C.G.’s version of events.  Accordingly, due to L.G.’s repeated violation of C.G.’s integrity, the Supreme Court found L.G. guilty of violating C.G.’s integrity.  Regarding the rape charge, however, the Supreme Court did not find sufficient evidence to convict L.G.  Aside from C.G.’s testimony – which left doubt as to the time of the alleged rape – there was no evidence to substantiate the rape charge.  Therefore, the Supreme Court held that the prosecution failed to prove the rape charge beyond a reasonable doubt.  Nonetheless, because the court determined that L.G. had assaulting C.G. and their children, the court sentenced L.G. to two years and six months imprisonment.



Mougdiel S.M., Case No. APN-135-15 Tribunal de Sentencia de Ahuachapan (2015)

Sexual violence and rape, Statutory rape or defilement

This case is an appeal from a judgment by a lower court.  Judge Delmy Elizabeth Mejia Salazar found Alvin, a 27-year-old farmer originating from Concepcion de Ataco, guilty of attempted rape of a minor (11 years old) in violation of articles 159 and 172 of the El Salvadoran criminal code, and sentenced Alvin to seven years imprisonment.  In the underlying case, the victim testified that Alvin forced her into a crawling position, raped, and sodomized her.  On appeal, Alvin argued that the sentencing judge did not properly apply article 179 of the criminal code of procedure as the evidence presented by the forensic expert did not show any injuries in support of a finding of rape and/or sodomization.  On appeal, the court emphasized that the medical examination was conducted a month and a half after the attempted rape and sodomization, which provided sufficient time for any injuries to heal.  The court further stated that article 159 of the penal code does not require the use of violence and indicated that not every attempted violation will leave physical evidence (e.g., if the victim has a passive reaction to the aggression which does not result in the use of force).  Additionally, Alvin did not deny attempting to sexually assault the victim by putting her in a crawling position.  Thus, the appellate court upheld the trial court’s ruling and sentence, which was shorter than the eight years imprisonment recommended by the relevant statute.



F.A.P.A., Case No. 191-09-2016 Tribunal de Sentencia de Chalatenango (2016)

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

F.A.P.A., the defendant, was a 54-year-old unmarried Salvadoran farmer residing in La Reina, El Salvador. At the time of the allegations giving rise to the case, he was receiving treatment for epilepsy.  An evening, F.A.P.A. visited his niece.  F.A.P.A. and his niece, a minor, were sitting on a couch watching television when his niece’s mother left the room to attend to her other children.  During that time, F.A.P.A. engaged in sexual behavior with his niece against her will by touching her genitals and kissing her in the mouth.  F.A.P.A. was subsequently arrested by Salvadoran police officers for sexually harassing his niece.  F.A.P.A. later confessed to these underlying facts.  Section 165 of the El Salvadoran Penal Code states a person is liable for sexual harassment when that person (1) engages in sexual behavior involving phrases, touching , signs, or other unequivocal conduct of a sexual nature or content, (2) the action is undesired by the person who receives it, (3) the action does not constitute a more serious sexual offence, (4) in the case of a person of legal age, the action is repeated, and (5) the action is intentional.  The court found that F.A.P.A.’s confession of intentionally touching his niece’s genitals and kissing her against her will satisfies the elements of sexual harassment.  Although F.A.P.A. was being treated for epilepsy, the court found that he was capable of distinguishing right from wrong and acted consciously.  The court found F.A.P.A. guilty of sexual harassment punishable by two years imprisonment.  However, in lieu of the prison sentence, the court exercised its discretion under articles 77 and 79 of the Penal Code and sentenced F.A.P.A. to two years of probation with the following restrictions: (1) prohibition from leaving the country; (2) prohibition from approaching the victim or her family; (3) prohibition from ingesting intoxicating drinks; and (4) will be under probationary surveillance.



AP 2537/09 – Dalibor Perić Ustavni Sud Bosne i Hercegovine (Constitutional Court of Bosnia and Herzegovina) (2009)

Divorce and dissolution of marriage, Domestic and intimate partner violence

In 2004, the common-law marriage between Dalibor Perić (“Perić”) and his wife was terminated.  Perić’s ex-wife was granted custody of their two-year-old son, and Perić was ordered to pay BAM 100 per month in child support.  Over the next three years, Perić never paid child support, he verbally abused and physically assaulted his ex-wife and her parents resulting in two domestic violence charges.  In addition, he beat the child on several occasions.  In 2007, the mother of the child filed a motion to terminate Perić’s parental rights.  Two years later, the Basic Court in Bijeljina stripped Perić of his parental rights pursuant to Article 106 of the Family Law of the Republika Srpska.  The County Court of Bijelina dismissed Perić’s appeal and upheld the lower court’s ruling.  Perić then appealed to the Constitutional Court of BiH, arguing the ruling of the County Court violated his right to a fair trial and right to private and family life.  Because no draft decision received a majority vote, the Constitutional Court of BiH dismissed Perić’s appeal.

Decision available in English here.



Prosecutor's Office v. A.P. Ustavni Sud Bosne i Hercegovine (Constitutional Court of Bosnia and Herzegovina) (2004)

International law, Sexual violence and rape, Trafficking in persons

In 2002, the Basic Court in Doboj convicted A.P. of Trafficking of Minors for the Purpose of Prostitution under Article 188 of the Criminal Code of the Republika Srpska.  The Court sentenced A.P. to two years’ imprisonment and prohibited him from operating a catering business for five years.  A.P. appealed his conviction to the Supreme Court of the Republika Srpska and then to the Constitutional Court of BiH.  He argued his right to a fair trial under the Constitution of BiH and the European Convention on Human Rights had been violated because he did not have an opportunity to cross-examine the victims at his trial.  Instead, the statements of the victims were read aloud in court.  The Constitutional Court of BiH found that, despite A.P. not having an opportunity to cross-examine the victims, his right to a fair trial had not been violated.  First, the victims were not present at A.P’s trial because they are foreign nationals who no longer resided in the Republika Srpska.  Second, the victims gave their testimony in person during preliminary criminal proceedings, and A.P. was allowed to refute the statements at his trial.  Third, the judgment of the Basic Court was not based solely on the victims’ statements, but also on the testimony of a third witness – who had paid to have sex with one of the victims at A.P.’s establishment – and material evidence.  

Decision available in English here.



Prosecutor's Office v. Nermin Ćupina Ustavni Sud Bosne i Hercegovine (Constitutional Court of Bosnia and Herzegovina) (2006)

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

In 2002, Nermin Ćupina (“Ćupina”) recruited two underage girls and one woman and forced them, through threats of violence to them and their family members, to provide sexual services for money.  Each day, the victims were forced to earn KM 400 through prostitution, all of which Ćupina kept.  The Court of BiH sentenced Ćupina to 12 years’ imprisonment, which it added to Ćupina’s four-year prison sentence from the Cantonal Court in Mostar, resulting in a single sentence of 14 years’ imprisonment after credit for time served.  In addition, in accordance with Article 110 of the Criminal Code of BiH, the Court of BiH confiscated the material gain Ćupina acquired through his criminal enterprise.  The court, relying on the findings of an expert, established that Ćupina made at least BAM 100,000 in 2002 by prostituting the victims.  The court also concluded that because neither Ćupina nor his wife had regular income during 2002, the construction of an apartment valued at BAM 61,481.55 was financed entirely from Ćupina’s criminal enterprise.  The Court of BiH confiscated the apartment and ordered Ćupina to pay the remainder of the estimated material gain, BAM 38,518.45.

Decision available in English here.  



Prosecutor's Office v. Čedo Markelić Ustavni Sud Bosne i Hercegovine (Constitutional Court of Bosnia and Herzegovina) (2015)

Statutory rape or defilement, Trafficking in persons

Between 2006 and 2007, Čedo Markelić recruited two minors for the purpose of sexual exploitation.  Markelić promised the girls he would give them money and help them with school-related problems if they provided sexual services to him and his acquaintances.  In May 2010, the Court of BiH found Markelić guilty of Trafficking in Persons (minors) in violation of Article 186(2) of the CC BiH and sentenced him to six years’ imprisonment.  The trial court, in determining whether Markelić had exploited the victims, took into consideration not only the girls’ age at the time of the crimes (15 and 16 years old), but also that, due to the victims’ “insufficient emotional development,” they did not have the capacity to consent to sexual acts.  Furthermore, the court held that under Article 186(4) of the CC BiH, whether a victim of human trafficking “consents” to the exploitation is irrelevant, particularly if the victim is a minor.  On appeal, Markelić argued that one of the three elements of human trafficking – the act of perpetration – was lacking in his case.  Specifically, he argued Article 186(1) of the CC of BiH requires that a human trafficking recruiter must have effective contact with a third person who controls the victim, and that third person must give his or her consent to the exploitation of the victim.  The Constitutional Court of BiH dismissed Markelić’s appeal, holding the Court of BiH correctly found all constituent elements of human trafficking under Article 186(2) were present.  The Constitutional Court of BiH found Markelić had committed the offense of human trafficking by recruiting the minors for the purpose of sexual exploitation; contact with a third party who controlled the victims was not required under the CC BiH.

Decision available in English here.



Prosecutor's Office v. Radovan Stanković Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2007)

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

In the summer of 1992, during an assault on the non-Serb civilian population of Foča in the early months of the Bosnian War, Radovan Stanković, a member of the Republika Srpska Army, established a small detention center for women at an apartment known as “The Brothel.”  He and others brought at least nine non-Serb females, most of whom were minors, to the apartment and detained them there.  Between August and November 1992, Stanković repeatedly raped one woman and her underage sister and incited other soldiers who visited the apartment to rape the detainees.  In addition, Stanković forced the victims to perform physical labor, including cooking for the soldiers, washing the soldiers’ uniforms, and bathing the soldiers.  In 2002, Stanković was arrested by the NATO peacekeeping force, KFOR, and transferred to the ICTY.  The ICTY referred Stanković’s case to the Court of BiH in 2005.  One year later, the Court of BiH convicted Stanković of Crimes against Humanity (enslavement, imprisonment, torture, and rape) under Article 172(1) of the Criminal Code of BiH and sentenced him to sixteen years imprisonment.  In 2007, a panel of the Appeals Division increased the prison term to twenty years.  Stanković appealed his sentence, which the ICTY and The Hague Court of Appeal upheld.  This case is notable because it was the first time the ICTY referred a case to a court of national jurisdiction.

Second instance verdict available in English here.



Prosecutor's Office v. Gojko Janković Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2007)

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

Between April 1992 and November 1993, during the Bosnian War, Gojko Janković, a paramilitary leader within the Srpska Republika Army, participated in a widespread and systematic attack on the non-Serb civilian population of Foča.  Janković’s unit methodically captured civilians, detained them separately according to gender, and killed dozens of men.  During this time, Janković raped at least five girls and women; the soldiers under his command raped scores more.  In addition, Janković and a co-perpetrator kept two teenage girls in sexual slavery at a nearby house for over one year.  In 2005, Janković voluntarily surrendered and was transferred to the International Criminal Tribunal for the Former Yugoslavia (“ICTY”).  Shortly thereafter, the Referral Branch of the ICTY referred Janković’s case to the Court of BiH.  In 2007, the Court of BiH found Janković guilty of Crimes against Humanity under Article 172(1) of the Criminal Code of BiH and sentenced him to 34 years imprisonment.  In 2010, Janković appealed his conviction to the ICTY, arguing the Court of BiH convicted him under a law, the Criminal Code of BiH, which did not exist at the time his crimes were committed.  The ICTY denied his appeal.

Second instance verdict available in English here.



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.



Prosecutor's Office v. Predrag Kujundžić Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2010)

Gender violence in conflict, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

From the spring of 1992 to the autumn of 1993, during the Bosnian War, Predrag Kujundžić, a commander in the local military and later police force, led several attacks against non-Serb civilians in Doboj.  During that time, he incited, aided, and abetted the murder, rape, imprisonment, and persecution of non-Serb civilians.  In addition, from June to December 1992, Kujundžić forced a Muslim minor into sexual slavery by use of force and threats to kill the victim’s mother and younger sister.  Kujundžić repeatedly raped the victim, forced her to have sexual intercourse with soldiers, and controlled every aspect of her life.  In 2009, the Court of BiH found Kujundžić guilty of Crimes against Humanity under Article 172(1) of the Criminal Code of BiH.  The Court found several aggravating circumstances present in Kujundžić’s case, including Kujundžić’s status as a commander, the motives for the attack, the large number of victims, and the fact that the victim of rape and sexual slavery was a minor.  The Court accordingly sentenced Kujundžić to 22 years imprisonment.  A panel of the Appellate Division later reduced his prison sentence to 17 years.

Second instance verdict available in English here.



Prosecutor’s Office v. Ćerim Novalić Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2011)

Gender violence in conflict, Sexual violence and rape

In September 1992, during the Bosnian War, the Army of BiH attacked Serb houses in the village of Džepi.  During this assault, Ćerim Novalić and an unidentified soldier entered a home to see if the couple was hiding Serbs.  While the unidentified soldiers interrogated the husband about his neighbors of Serb ethnicity, Novalić forced the wife into an upstairs room and raped her.  In 2010, the Court of BiH found Novalić guilty of a War Crime against a Civilian under Article 173(1) of the CC BiH and sentenced him to seven years imprisonment.  The following year, a panel of the Appellate Division of the Court of BiH revised Novalić’s conviction, finding him guilty under Article 142(1) of the Criminal Code of the Socialist Federal Republic of Yugoslavia, the law in effect at the time of Novalić’s crime.  The Appellate Panel considered the “extremely humiliating manner” in which Novalić raped the victim – her underage children and mother-in-law were in an adjacent room and her husband was downstairs – and increased his sentence to eight years and six months imprisonment.  This is the upper-end of the typical prison sentence mandated by the Court of BiH for one count of rape during the Bosnian War.

Second revised verdict available in English here.



Prosecutor’s Office of Bosnia and Herzegovina v. Slavko Lalović Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2012)

Gender violence in conflict, Sexual violence and rape

In August 1992, during the Bosnian War, Slavko Lalović served as a security guard at an elementary school turned into a prison for unlawfully detained civilians in Kalinovik.  While on duty, Lalović allowed two soldiers from the Republika Srpska Army to enter the makeshift prison and rape a detained woman.  Lalović also treated detainees inhumanely on several occasions.  In 2011, the Court of BiH found Lalović guilty of War Crimes against Civilians under Article 173(1) of the Criminal Code of BiH.  The following year, a panel of the Appellate Division revised Lalović’s sentence, convicting him under the law in effect at the time the crimes were committed, Article 142(1) of the Criminal Code of the Socialist Federal Republic of Yugoslavia.  Lalović’s five-year prison sentence remained unchanged.  Notably, this is one of the few instances in which a person in a position of authority was found guilty by the Court of BiH of aiding and abetting a rape as a war crime during the Bosnian war.  

Second instance verdict available in English here.



Prosecutor’s Office v. Veselin Vlahović Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2014)

Gender violence in conflict, Sexual violence and rape

Between 1992 and 1995 during the Bosnian War, Veselin Vlahović a member of the Serbian paramilitary forces, committed various crimes against humanity against the civilian non-Serb population of Sarajevo, including murder, rape, physical and mental abuse, robbery, and enforced disappearance.  His crimes were so horrific that he was known by victims as the “Monster of Grbavica.”  In 2010, Vlahović was arrested in Spain and extradited to BiH.  In 2013, the Court of BiH found Vlahović guilty of sixty different crimes against humanity, including 35 murders and 11 rapes, as well as torture, imprisonment, and looting.  He was sentenced to forty-five years imprisonment.  In 2014, the Court of BiH acquitted Vlahović of one of the 60 counts of the indictment and reduced his prison sentence to 42 years.  Notably, Vlahović’s original prison sentence of 45 years was the maximum possible penalty and is the longest sentence handed down by the Bosnian war crimes court.

Second instance verdict available in English here.



Prosecutor’s Office of Bosnia and Herzegovina v. Bogdanović Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2015)

Gender violence in conflict, Sexual violence and rape

In May 1993, during the Bosnian War, Velibor Bogdanović, a member of the Croatian Defence Council, and five unidentified soldiers ransacked the home of a couple in Mostar.  The group stole jewelry from the home and took the husband to the local prison where he was unlawfully detained for 30 days.  In addition, Bogdanović raped the wife.  In 2011, the Court of Bosnia and Herzegovina (“BiH”) found Bogdanović guilty of War Crimes against Civilians under Article 173(1), as read together with Article 180(1) and Article 29, of the Criminal Code of Bosnia and Herzegovina (“CC BiH”).  In July 2015, the Constitutional Court of BiH overturned Bogdanović’s conviction, finding that it had been based on an inapplicable law.  And in September 2015, the Appellate Division of the Court of BiH revised Bogdanović’s sentence, finding him guilty of the criminal offense of War Crimes against Civilians under Article 142(1) of the Criminal Code of the Socialist Federative Republic of Yugoslavia.  The Court imposed the minimum sentence on Bogdanović – five years imprisonment – reasoning that the accused was a married father, that he had been 22-years-old at the time that he committed the crime, that he had committed no criminal offense since the war, and that he had apologized to the victim after the war and offered her assistance.

Revised second instance verdict in English available here.



HKSAR v. Law Wan Tung District Court of the Hong Kong Special Administrative Region (2015)

Domestic and intimate partner violence, Trafficking in persons

Three Indonesian domestic helpers claimed that they were assaulted and abused by Law Wang Tung,a Hong Kong housewife, during their employment by Defendant between 2010 and 2014. The District Court convicted the Defendant of 19 charges assault, intimidation, and failure to provide wages, insurance and holidays during the complainants’ employment, and was sentenced for six years of imprisonment and a fine of HK$15,000. During the trial, that one plaintiff was deprived from sleep, food and wages during the employment, and had suffered from extensive physical damages due to the serious abuse, assault and beating from defendant. Evidence also showed that the other two victims also suffered from similar but different degrees of harm while working for the Defendant. In reaching the judgment, the court held that the evidence was admissible for uncharged acts so as to “get a proper picture about the characters involved in the case” and that the account would be incomplete or incoherent without such evidence. The court also noted that the only issue in the case was the credibility of the witnesses. Despite defense’s attempt to challenge the consistencies and credibility of the victims’ testimonies and the question for lack of independent evidence, both the district court and the appellate court found in favor for the victims in the respective proceedings, by taking into account the victims’ background and the specific circumstances in the case. In affirming the decision, the Court of Appeal need to protect the interests of domestic helpers and articulate the society’s abhorrence for conduct.



Magerer v. Republic High Court of Kenya at Bomet (2016)

Female genital mutilation or female genital cutting, Harmful traditional practices

The appellant was convicted of (i) aiding the commission of female genital mutilation (“FGM)” on several girls, (ii) failing to report the commission of FGM, and (iii) allowing her premises to be used to perform FGM.  She pled guilty to the crimes and was sentenced to pay a fine of Kshs. 200,000 (or 3 years of imprisonment if she defaulted on the payment).  On appeal, she argued that the sentence was overly harsh and oppressive because she was a single mother of three children.  Justice M. Muya upheld her sentence, as it was the minimum allowed under the Female Genital Mutilation Act.  The Justice in this case noted that within this case “lies the clash between traditional values and the law of the land.”  Even though the appellant was abiding by a customary practice, it was in violation of Kenyan criminal law, and thus the appellate court upheld her sentence. 



A.M.L. v. Republic High Court of Kenya at Mombasa (2012)

Statutory rape or defilement

The appellant was convicted of defilement for having intercourse numerous times with a 16-year-old, which is under the age of consent.  A.M.L. appealed his conviction and ten-year sentence on four grounds: (i) failure to conduct a voir dire examination on the victim before obtaining her testimony, (ii) failure to conduct a DNA test on the appellant, (iii) insufficiency of evidence, and (iv) the court’s failure to adequately consider his defense.  The State wished to enhance A.M.L.’s sentence on appeal.  The appellate court found that adequate evidence had been presented at trial that justified the charge of defilement.  However, the court found ten-year sentence imposed by the trial magistrate unlawful because 15 years is the legal mandatory minimum sentence for the defilement of a girl aged between 16 and 18 years.  Accordingly, AML’s sentence was enhanced to 15 years and his conviction upheld.



Republic v. C.W. High Court of Kenya at Siaya (2016)

Domestic and intimate partner violence

The defendant was accused of the killing of her husband. She entered into a plea agreement to reduce the charge of murder to manslaughter.  The deceased returned home on May 7, 2016, intoxicated and accused the defendant of infidelity.  A violent domestic fight ensued and the defendant used a kitchen knife to fatally stab the deceased.  The defendant was also injured by the deceased during the altercation.  The defendant asked the court for a non-custodial sentence based on a number of mitigating circumstances including the fact that the defendant is the primary caregiver of her three children with the deceased, aged five, three, and one.  Relatives and friends of the deceased confirmed that he was verbally and physically abusive to the defendant and the killing occurred in “the heat of the moment.”  Furthermore, the defendant had no prior record, demonstrated remorse, and the deceased’s family and the community had forgiven her and were willing to help her raise her children.  The High Court agreed that these factors merited a non-custodial status, adding that the defendant is both the accused and the victim, and was acting in self-defense even though she used excessive force.  The High Court handed down a three-year non-custodial sentence.  This case marks an important example of Kenyan courts treating victims of domestic violence with leniency where excessive force is used while defending themselves from their abuser.



Levenstein v. Frankel Constitutional Court (2018)

Sexual violence and rape, Statutory rape or defilement

The case was initially brought to the High Court by individuals who had suffered childhood sexual molestation by the deceased, a prominent financier and philanthropist, in the 1970s and ‘80s. The applicants were unable to pursue criminal charges due of the effect of s18(f) of the Criminal Procedure Act 1997, which imposed a 20-year statute of limitations for most sexual offences (excluding rape, sexual trafficking, and using a child or a mentally disabled person for pornographic purposes). However, the High Court found s18(f) to be unconstitutional. The Constitutional Court affirmed, removing the statute of limitations for prosecuting all sexual offences.



AA v. Attorney General's Office, Case No. 375/2007 Criminal Appeals Court 3º Tº (2007)

Domestic and intimate partner violence

The accused (AA) was sentenced to 20 months in prison by the Trial Court for crimes of domestic violence against his wife. AA filed an appeal to the Appeals Court arguing that the scope of the law against domestic violence applies only to victims that are deemed to be defenseless. AA argued that the victim BB was a member of the military and as such could not be deemed a defenseless person. The Appeals Court dismissed the appeal affirming the decision of the Trial Court.  The Appeals Court determined that the fact that the victim was a member of the military was irrelevant and that the acts of violence were appropriately analyzed considering only the aggressor.



AA v. Attorney General's Office, Case No. 327/2008 Criminal Appeals Court 1º Tº (2008)

Domestic and intimate partner violence

AA was sentenced to 12 months by the Trial Court of Tacuarembó for domestic violence deemed to be aggravated because the victim was a woman. AA and the victim had been living together in common law marriage since 2000, and in 2002 the victim reported on several occasions multiple instances of physical abuse as well as of psychological violence. In September 2003, the victim filed a complaint against AA for injuries inflicted to her neck and arm, which were verified by a public health doctor. The couple reconciled but thereafter got separated again. On January 1, 2004 the victim was on her way to visit a friend when AA intercepted her on the street and forcibly grabbed her left arm while pressing against her mouth a ring he was carrying until he broke her front tooth. Between December 2003 and January 2004 the victim had also reported threats and aggressions from AA. AA appealed to the Appeals Court but the Appeals Court dismissed the appeal affirming the decision of the Trial Court, ruling that the 12-month sentence was appropriate considering the evidence presented and the dangerous personality of AA.



AA v. Attorney General's Office, Case No. 413/2008 Criminal Appeals Court 2º Tº (2008)

Domestic and intimate partner violence

The accused (AA) was sentenced to 10 months with a suspended sentence by the Trial Court for the crime of domestic violence against his wife (BB). AA intimidated and committed continuous acts of violence against BB. The continuous and manipulative nature of this violence was deemed an aggravating circumstance by the Trial Court. AA appealed, arguing the Trial Court had improperly analyzed the evidence presented and that there was not enough evidence to convict him. The Appeals Court determined that the evidence on file needed to be analyzed in the context of the contentious relationship between AA and BB.  While AA argued that BB had mental problems, the court found this argument a mere pretext to deflect attention away from his own misconduct. The facts of the case showed that BB maintained the home and paid for AA’s expenses, a fact demonstrating that AA had an additional interest in BB other than one of affection. The doorman of the building where AA and BB lived testified that he once saw AA breaking things in a violent rampage, testimony contradicting AA’s statement that he was not destructive.  The Appeals Court found that there was sufficient evidence in the record to demonstrate AA’s guilt and affirmed the decision of the Trial Court.



Durand v. Prieto, Case No. 312/2017 Family Appeals Court 1ºT (2017)

Domestic and intimate partner violence

A trial court awarded Mariangeles Durand (Plaintiff) US$4,500 for actual damages and US$30,000 for emotional distress damages as a result of domestic violence committed by her common-law husband Luis Prieto (Defendant).  Defendant appealed arguing that, beyond Plaintiff’s testimony and a medical diagnosis based on that testimony, there was no proof that Defendant committed acts of domestic violence against Plaintiff and that Plaintiff’s depression and anxiety were the consequences of a preexisting medical condition.  Additionally, Defendant argued 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, Defendant argued that Plaintiff 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 Defendant breached a duty to Plaintiff and there was causation between the domestic violence and the damages suffered by Plaintiff.  However, it reduced the award of actual damages from $4,500 to $2,250 due to the fact that Defendant had already made payments to Plaintiff.



AA v. Attorney General's Office, Case No. 299/2010 Criminal Appeals Court 1º Tº (2010)

Domestic and intimate partner violence

The accused (AA) was sentenced to two years in prison by the Trial Court 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 even 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, but 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 said no 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 and that this fact should be considered 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.



AA v. Attorney General's Office, Case No. 6/2009 Criminal Appeals Court 2º Tº (2009)

Sexual violence and rape, Statutory rape or defilement

The accused (AA) was sentenced to three years and six months in prison by the Trial Court for the continuous sexual abuse of a 15-year-old girl (BB) and her kidnapping. AA sexually abused BB once a week since she was 11 years old. When BB was 15 years old, AA called her over to his house under false pretenses and then locked her inside against her will for six hours and raped her.  AA was drunk and when he got distracted, BB was able to escape and find a neighbor to help her.  The trial court determined that there was enough evidence to prove the kidnapping and that the sexual abuse was continuous.  The Appeals Court dismissed AA’s appeal, affirming the decision of the Trial Court with the exception of its finding the rape as continuous sexual abuse. Based on the facts of the case, the Appeals Court qualified the sexual abuse as repetitive instead of continuous.  It also determined that AA’s inebriation was voluntary, and thus has no bearing on the sentencing.



2016 (A). No. 1731 Supreme Court of Japan (2014)

Sexual violence and rape, Statutory rape or defilement

The defendant committed acts of obscenity upon a young girl.  He alleged that it was only for a monetary purpose—to record the act and give the record to his acquaintance in return for receiving a loan —and that he had no sexual intent.  The defendant appealed the High Court’s ruling that sexual intent is not required to establish a prima facie case of indecent assault, which is proscribed by Article 176 of the Japanese Penal Code.  He argued that the High Court’s finding was inconsistent with a judicial precedent holding that sexual intent is an element for the crime.  The Supreme Court, upon noting that the scope of sexual crimes cannot be properly determined without taking into account the views of contemporary society, found that, in the present day, the focus should be on the existence, details, and extent of sexual damage caused to a victim rather than an assailant’s intent.  Thus, the Supreme Court, sustained the High Court’s finding and overturned the 47-year-old jurisprudence. The Court found that, while it could not deny that there may be a situation in which the sexual intent of a perpetrator becomes an important factor in finding the crime, it was not reasonable to uniformly require the existence of such a factor for the crime of indecent assault.  



Mwape v. The People Supreme Court of Zambia (2012)

Statutory rape or defilement

The appellant was charged with defilement contrary to Section 138 of the Penal Code, Chapter 87 of the Laws of Zambia (unlawful carnal knowledge of a girl under 16 years) and was sentenced to the minimum mandatory sentence of 15 years’ imprisonment. On behalf of the appellant, the appeal was filed on two grounds. On ground one, it was contended that the Court had erred in law by deciding not to conduct a voir dire and proceeding to receive the sworn evidence of a child. On ground two, it was contended the court below erred by finding corroboration and concluding the appellant was guiltywwww. Relative to the first grounds, the Court held that, while there had been no voir dire and while the Magistrate had failed to inquire as to whether the child understood the nature of the oath, this did not necessitate a re-trial, given that such orders are typically discretionary and this was not the only evidence tendered at trial. Relative to the second grounds, the Court observed that the question of identity was not in dispute and that there was substantial corroborative evidence that the crime had been committed. Accordingly, the Court concluded that the grounds lacked merit, as the Court was competent to convict the appellant even without the victim’s evidence. The Court further noted that the crime was compounded by the breach of trust that the appellant (who was the prosecutrix’s step-grandfather and exercising parental responsibility over her at the time) had committed against the victim and, therefore, set aside the 15-year minimum sentence in favor of a 20-year hard labour sentence. 



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.



The People v. Mugala High Court for Zambia (2012)

Gender-based violence in general, Sexual violence and rape

The accused was charged with one count of rape contrary to Sections 132 and 133 of the Penal Code, Chapter 87 of the Laws of Zambia. The accused denied the charge. However, following the trial (during which the prosecution called five witnesses, and after considering the evidence of the accused which was given on oath), the trial magistrate found the accused guilty and convicted him of the subject offence. The case was then remitted to the High Court for sentencing pursuant to Section 217 of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia. Before passing any sentence, the Court was required to satisfy itself that the relevant legal and procedural provisions had been observed by the trial court. The Court held that there was medical evidence in support of the violent nature of the act as well as other corroborative evidence, such as the distressed state of the victim when she reported the act.  Furthermore, the Court concluded there was sufficient evidence in support of the identification of the accused by the victim including the trial magistrate’s finding that the victim was a truthful witness. On the totality of the evidence, the High Court held that the trial judge’s finding of guilt and the conviction was ‘anchored on firm ground’ and, therefore, concluded that it should be upheld. The High Court sentenced the accused to 25 years imprisonment with hard labor effective from the date of arrest.



Sikazwe v. The People Supreme Court for Zambia (2012)

Sexual violence and rape, Statutory rape or defilement

The appellant was charged with incest contrary to Section 159(1) of the Penal Code but was convicted of the lesser charge of indecent assault contrary to Section 137(1) as amended by Act No. 15 of 2005, Cap 871, as the medical evidence ‘left a lot to be desired’ (as described by the Magistrate). However, when the matter was sent to the High Court for sentencing, the sentencing judge substituted the charge of indecent assault with incest and sentenced the appellant to 20 years imprisonment with hard labor. The appellant appealed this conviction and sentence on the basis that the Magistrate “erred in law and fact when he tried and convicted the appellant without the Director of Public Prosecutions’ consent.” In support of this argument, the appellant noted that the instructions of the Director of Public Prosecutions were to try the appellant for rape not incest. Therefore, in the absence of express consent by the Director of Public Prosecutions as required by Section 164 of the Penal Code, Cap 871, the trial court had jurisdiction neither to hear the matter nor to proceed to convict the appellant on indecent assault and sentence him to 20-year term for incest. The Supreme Court reviewed the letter from the Director of Public Prosecutions and noted that, while the first paragraph gave the impression that he had sanctioned the prosecution to go ahead with the charge of incest, the remainder of the letter made it clear that he had also sanctioned the appellant’s prosecution on a charge of either rape or defilement. The Supreme Court also noted that the latter could potentially enable a conviction of indecent assault under the relevant provisions of the Penal Code. Thus, the Supreme Court confirmed that the Director of Public Prosecutions rightly guided the prosecution and the court below to invoke whichever of these provisions as necessary. Moreover, the Supreme Court stated that the Magistrate rightly concluded that ‘the medical evidence left a lot to be desired.’ Ultimately, it concluded that the appellant was not guilty of the offence of rape, but that he was guilty of the offence of indecent assault contrary to Section 137 of the Penal Code and that the sentencing judge was mistaken to sentence the appellant for incest. The Supreme Court quashed the incest conviction, but still upheld the conviction for indecent assault and imposed a 20-year prison sentence.



Habeenzu v. The People Supreme Court for Zambia (2012)

Sexual violence and rape

The appellant was charged in the Subordinate Court of attempted rape contrary to Section 137 of the Penal Code, Chapter 87 of the Laws of Zambia. The statement of offence read defilement, contrary to Section 138 of the Penal Code. The appellant was convicted of indecent assault, a minor offence per Section 181(2) of the Criminal Procedure Code. The appellant appealed on two grounds. First, the statement of offence was defective, as (i) it did not specify the offence by section and subsection of the provision of the law contravened, and (ii) it was amended late which was unjust. Second, on the available evidence, a court could not have properly convicted appellant for attempted rape or indecent assault because the allegation of attempted rape impliedly includes both an allegation of assault and of indecency; on the facts, there was only an element of indecency (and not assault). The Supreme Court rejected both grounds of appeal on the basis that: (i), indecent assault, attempted rape, rape and defilement are offences of the same genus and therefore a defendant charged with attempted rape may be convicted of a lesser related charge like indecent assault; (ii) the appellant had an opportunity to defend himself in relation to the alternative charge, so there was no constitutional violation of the fairness of the trial; and (iii) the findings of fact were in accordance with the evidence on the record, as the appellant was ‘caught in the act’ and there was medical evidence of injuries sustained by the victim. Accordingly, there was no reason to interfere with the findings of fact or the minimum sentence of 15 years’ imprisonment imposed by the sentencing judge. The Court dismissed the appeal.



Applicants McEwan, Clarke, et al. v. Attorney General High Court of the Supreme Court of Judicature (2013)

Gender discrimination, LGBTIQ

On February 6, 2009, four transgender individuals (A, B, C, D) identifying as female were arrested and charged with both Loitering and Wearing Female Attire.  The police detained the Applicants for the entire weekend without explaining the charges against them.  Wearing Female Attire is prohibited under Section 153(1)(XLV11) of the Summary Jurisdiction (Offences) Act, chapter 8:02.  At the hearing on February 9, 2009, the Chief Magistrate commented that the Applicants were confused about their sexuality and told them they were men, not women, and needed to give their lives to Jesus Christ.  The Applicants, who were all unrepresented at the time, pleaded guilty to the charge of Wearing Female Attire.  Applicants A, B and D were fined $7,500, and Applicant C was fined $19,500 (Guyanese dollars).  The loitering charges were eventually dismissed.  The Applicants contacted the Society Against Sexual Orientation Discrimination (SASOD), the Equal Rights Trust’s Guyanese partner, about the case.  SASOD agreed to represent Applicants and filed a Notice of Motion challenging the Magistrate’s Court decision and seeking redress.  The Applicants argued that the police violated the Constitution because the officers failed to inform them of their arrest and did not permit the Applicants to retain counsel.  They also argued that Section 153 (1) (XLV11) of the Summary Jurisdiction (Offences) Act 1893 is: (1) vague and of uncertain scope; (2) irrational and discriminatory on the ground of sex; and (3) a continuing threat to their right to protection against discrimination on the ground of sex and gender under the Constitution.  Applicants further argued that, by instructing the Applicants to attend Church and give their lives to Jesus Christ, the Chief Magistrate discriminated against them on the basis of religion, which violated a fundamental norm of the Co-operative of the Republic of Guyana as a secular state in contravention to the Constitution.  The Court upheld the Applicants’ claims in relation to their fundamental right to be informed of the reason for their arrest under Article 139 of the Constitution, but rejected all of their other claims.  The Court found that the prohibition of cross-dressing for an improper purpose was not unconstitutional gender or sex discrimination, impermissibly vague, or undemocratic.  The Court also struck SASOD’s application in full, finding that SASOD did not have standing to be an applicant in the case.



Femicide (Docket 1a/LIV/2016 (10a.)) First Collegiate Tribunal of the Twenty-Seventh Circuit (2016)

Femicide, Gender discrimination

This isolated thesis is a relevant example of gender perspective case law, as the criteria issued by the collegiate tribunal is binding on all cases resolved by such tribunal. In addition, such criteria issued may be persuasive in similar cases arising in other federal courts. The Mexican Supreme Court has determined that in order to determine whether a law is discriminatory a court must evaluate the following: (i) whether the purpose of such law is objective and not contrary to the Constitution; (ii) the means; (iii) that the purpose of the law and the means are proportional. The Mexican Supreme Court has determined that the state legislator can develop any mechanism to protect human rights. Therefore, given that femicide, as a felony, is designed to protect a disadvantaged segment of the population, any special treatment inherent to this felony cannot be interpreted as contrary to the human right to equality.

 

Esta tesis aislada es un ejemplo relevante de la jurisprudencia de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son relevantes para todos los casos resueltos por dicho tribunal. Además, los criterios emitidos pueden ser persuasivos en casos similares que surjan en otros tribunales federales. El Tribunal Supremo de México ha determinado que para determinar si una ley es discriminatoria, un tribunal debe evaluar lo siguiente: (i) si el propósito de dicha ley es objetivo y no contrario a la Constitución; (ii) los medios para enforzarla; (iii) que el propósito de la ley y los medios sean proporcionales. La Corte Suprema de México ha determinado que el legislador estatal puede desarrollar cualquier mecanismo para proteger los derechos humanos. Por lo tanto, dado que el femicidio, como delito grave, está diseñado para proteger a un segmento desfavorecido de la población, cualquier tratamiento especial inherente a este delito grave no puede interpretarse como contrario al derecho humano a la igualdad.



Access to Justice in Equal Conditions (Docket 1a.J. 22.2016 (10a.)) Mexico Supreme Court (2016)

Gender discrimination

This jurisprudential thesis is a relevant example of case law, as the criteria issued by the Mexican Supreme Court is binding on all courts in the country. Every court shall rule based on a gender perspective. Therefore there should be a test to determine whether there is a gender violence case before the court. This test shall be performed by the court regardless of whether a party makes such a petition. The court shall take into consideration the following points: (i) if the particular case involves gender violence, taking into account the facts and the evidence, excluding any stereotype that the court may have; (ii) in the event that the evidence is insufficient to determine whether the case involves gender violence, the court shall request more evidence to make a determination; (iii) if the court determines that the case involves gender violence, it shall apply the relevant law to the particular case and issue a ruling; (iv) human rights shall be taken into consideration at all times during the process and; (v) the use of inclusive language to ensure access to justice that is free of gender-based stereotypes.

 

Esta tesis jurisprudencial es un ejemplo relevante de jurisprudencia, ya que los criterios emitidos por el Tribunal Supremo de México son vinculantes para todos los tribunales del país. Cada tribunal decidirá con una perspectiva de género. Por lo tanto, debe haber una prueba para determinar si hay un caso de violencia de género ante el tribunal. Esta prueba será realizada por el tribunal, independientemente de si una parte hace tal petición. El tribunal deberá tener en cuenta los siguientes puntos: (i) si el caso en particular involucra violencia de género, teniendo en cuenta los hechos y las pruebas, excluyendo cualquier estereotipo que el tribunal pueda tener; (ii) en el caso de que la evidencia sea insuficiente para determinar si el caso involucra violencia de género, el tribunal deberá solicitar más evidencia para tomar una decisión; (iii) si el tribunal determina que el caso involucra violencia de género, aplicará la ley pertinente al caso particular y emitirá un fallo; (iv) los derechos humanos se tendrán en cuenta en todo momento durante el proceso y; (v) el uso de un lenguaje inclusivo para garantizar el acceso a la justicia sin estereotipos o discriminación sexual.



Rape (Docket II.2o.P.37 P (10a.)) Second Collegiate Tribunal in Criminal Matters of the Second Circuit (2016)

Domestic and intimate partner violence, Sexual violence and rape

This isolated thesis is a relevant example of gender perspective case law, as the criteria issued by the collegiate tribunal is binding on all cases resolved by such tribunal. In addition, such criteria may be persuasive in similar cases arising in other federal courts. In cases of rape, facts of a psychological nature such as fear originated in relationships shall be taken into consideration. Every judgement shall be based on a gender perspective and the courts shall consider every element set forth by the victim, as those elements may increase the severity of the sentence. A failure to do so could potentially invalidate the sentence. (Amparo Directo: http://sise.cjf.gob.mx/SVP/word1.aspx?arch=104/01040000180833650006005.d...)

 

Esta tesis aislada es un ejemplo relevante de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son vinculantes para todos los casos resueltos por dicho tribunal. Además, dichos criterios pueden ser persuasivos en casos similares que surjan en otros tribunales federales. En casos de violación, se deben tener en cuenta los hechos de naturaleza psicológica, como por ejemplo, el miedo originado en relaciones personales. Cada juicio se basará en una perspectiva de género y los tribunales considerarán cada elemento expuesto por la víctima, ya que esos elementos pueden aumentar la severidad de la sentencia. Si no lo hace, podría invalidar una determinación final.



Ruling with a Gender Perspective (Isolated Thesis Docket XXI.2o.P.A.1 CS (10a.)) Second Collegiate Tribunal in Criminal and Administrative Matters of the Twentieth Circuit (2017)

Gender discrimination

“RULING WITH A GENDER PERSPECTIVE. THE COURT MUST DETERMINE IF THE RELEVANT PARTY IS IN A VULNERABLE STATE THAT RESULTS IN A REAL DISADVANTAGE OR CLEAR IMBALANCE VIS-À-VIS THE OTHER PARTIES TO THE CASE.”

This isolated thesis is a relevant example of gender perspective case law, as the criteria issued by the collegiate tribunal is binding on all cases resolved by such tribunal. In addition, such criteria may be persuasive in similar cases arising in other federal courts. Each case that is brought to court must be analyzed in order to determine whether there is a degree of vulnerability for each woman. Without such scrutiny, courts cannot provide a gender perspective analysis to a controversy, as gender perspective does not depend solely on gender but on other considerations, such as social vulnerability, which must be proven. In order to determine if a woman finds herself in a disadvantaged situation, the following issues must be taken into consideration: (a) if one or more parties find themselves in one of the categories identified in the Brasilia Regulations Regarding Access to Justice for Vulnerable People; (b) the gender disadvantage and the violence that prevails in the place of residence or the social core in which the parties may be involved, in order to clarify the possible existence of structural inequality; (c) education level, age, socioeconomic situation, and the particular characteristics of all of the people involved in the trial, in order to determine if a inequality actually exists; and (d) all proven facts in the docket, in order to identify the power relationships. Taking the aforementioned considerations into account, it must be determined if in the particular case it is optimal to order measures seeking to balance one or more differences and vulnerabilities that prevent the disadvantaged party from the enjoyment of its human rights. (Amparo Directo Agrario 163/2016 here: http://sise.cjf.gob.mx/SVP/word1.aspx?arch=752/07520000188524300006005.d...)

 

“REGLA CON UNA PERSPECTIVA DE GÉNERO. "EL TRIBUNAL DEBE DETERMINAR SI LA PARTE PERTINENTE ESTÁ EN UN ESTADO VULNERABLE QUE RESULTA EN UNA DESVENTAJA REAL O UN CLARO DESBALANCE VISE-VISE CON RESPECTO A LAS OTRAS PARTES DEL CASO." 

Esta tesis aislada es un ejemplo relevante de la jurisprudencia de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son relevantes a todos los casos resueltos por dicho tribunal. Además, dichos criterios pueden ser persuasivos en casos similares que surjan en otros tribunales federales. Cada caso que se lleva ante el tribunal debe analizarse para determinar si existe un grado de vulnerabilidad unico para cada mujer. Sin tal control, los tribunales no pueden proporcionar un análisis de perspectiva de género a una controversia, ya que la perspectiva de género no depende únicamente del género, sino de otras consideraciones, como la vulnerabilidad social, que deben probarse. Para determinar si una mujer se encuentra en una situación de desventaja, se deben tener en cuenta los siguientes temas: (a) si una o más partes se encuentran en una de las categorías identificadas en el Reglamento de Brasilia sobre el acceso a la justicia para personas vulnerables ; (b) la desventaja de género y la violencia que prevalece en el lugar de residencia o el núcleo social en el que pueden participar las partes, a fin de aclarar la posible existencia de desigualdad estructural; (c) el nivel de educación, la edad, la situación socioeconómica y las características particulares de todas las personas involucradas en el ensayo, a fin de determinar si realmente existe una desigualdad; y (d) todos los hechos comprobados en el expediente, con el fin de identificar las relaciones de poder. Teniendo en cuenta las consideraciones mencionadas anteriormente, se debe determinar si, en el caso particular, es óptimo ordenar medidas que busquen equilibrar una o más diferencias y vulnerabilidades que impidan que las partes desfavorecidas disfruten de sus derechos humanos. 



Police v. Apelu Supreme Court of Samoa (2010)

Abortion and reproductive health rights, International law

A women inmate at Tafaigata Prison who was two months pregnant asked the defendant to abort the fetus using a duck speculum and uterine sound instrument while she was on weekend parole.  Upon returning to the prison and complaining of severe pain, the woman was rushed to the hospital, where she delivered a live, premature female infant.  The baby died of respiratory failure as a result of extreme prematurity and neonatal sepsis; the medical report stated that the instruments used by the defendant had infected the victim’s uterus and induced labor.  In 2004, she had been sentenced to two and one-half years for the same offense.  Although the charges were not prosecuted at the time, they were revisited in 2005 and a year was added to the defendant’s sentence.  The sentencing judge in the case considered the defendant’s record of recent convictions as aggravating factors.  While the maximum sentence for this offence is seven years, the court considered that it warranted a starting point of six and a half years.  The only mitigating factor in the defendant’s favor was her guilty plea, which avoided the necessity of a full trial, for which twelve months were deducted from her sentence.  The question before the Supreme Court was whether the Convention on the Rights of the Child and CEDAW ought to be considered in sentencing.  In the course of answering such question in the negative, the judge was clear in relying solely upon national legislation: “This country through its elected representatives namely Parliament has chosen to take a pro-life stand and have legislated against abortion except when it is necessary to preserve the life of the mother.  Parliament having enacted that law, the courts duty is beyond question, it is required to enforce the laws of the land.  The rightness, wrongness or morality of such a law is debated in the building next door, not in this one.”  The fact that Samoa continues to criminalize abortion after ratifying international conventions evinces clear legislative intent against domesticating CEDAW through specific legislation.



Sentencia TC/0599/15 Constitutional Court (2015)

Abortion and reproductive health rights

The foundations “Justicia y Transparencia”, “Transparencia y Democracia” and “Matrimonio Feliz” challenged the constitutionality of Articles 107, 108, 109 and 110 of the Criminal Code Law 550-14. Law 550-14 regulates abortion, including the adjudication of cases of exoneration from criminal liability such as the interruption of pregnancy based on the crimes of rape, incest or malformations of the embryo that may endanger life. The foundations alleged the violation of, among others, Articles 101, 102, 105 and 112 of the Constitution that provide for the process of enacting organic laws (defined as those that regulate fundamental rights), and the violation of Article 37 that provides the inviolability of the right to life from the conception to death. The Criminal Code was approved by a simple majority. However, as it restricts fundamental rights such as the right to freedom, it must be considered as an organic law and therefore, had to be approved by a two-thirds majority. Additionally, only one of the chambers reviewed the executive authority’s observations before the law was approved. Likewise, the foundations argued that admitting exemptions from criminal liability to those who perform abortions was contrary to the Constitution which protects life from conception. The Constitutional Court admitted the action and ruled that Law 550-14 was unconstitutional because it created a new Criminal Code without following the due process necessary for its promulgation. 

 

Las fundaciones “Justicia y Transparencia”, “Transparencia y Democracia” y “Matrimonio Feliz” desafiaron la constitucionalidad de los artículos 107, 108, 109 y 110 de la Ley 550-14 del Código Penal. La Ley 550-14 regula el aborto, incluyendo el fallo de casos que tratan con la absolución de responsabilidad penal, como la interrupción del embarazo por delitos de violación, incesto, u otras malformaciones del embrión que pueden poner en peligro la vida de la madre y del feto. Específicamente, las fundaciones alegaron la violación de, entre otros, los artículos 101, 102, 105 y 112 de la Constitución, los cuáles contemplan el proceso de promulgación de leyes orgánicas (definidas como aquellas que regulan los derechos fundamentales), y además la violación del artículo 37, el cual establece como inviolable el derecho a la vida desde la concepción hasta la muerte. El Código Penal fue aprobado por la mayoría. Sin embargo, como restringe derechos fundamentales como el derecho a la libertad, el Código clasifica como una ley orgánica y, por lo tanto, debe ser aprobada por una mayoría de dos tercios. Además, sólo una de las cámaras tribunales revisó las observaciones dadas por la autoridad ejecutiva antes de que se aprobara la ley. Las fundaciones argumentaron que abstener de responsabilidad penal a quienes realizan abortos era contrario a la Constitución, la cuál protege la vida desde la concepción. La Corte permitió la acción a proceder y declaró que la Ley 550-14 en violación de la Constitucion en base a que creó un nuevo Código Penal sin seguir el procedimiento necesario para su promulgación inicial. 



Human Trafficking (Isolated Thesis Docket: I.9o.P.144 P (10a.)) Ninth Collegiate Tribunal in Criminal Matters of the First Circuit (2017)

Gender-based violence in general, Trafficking in persons

“HUMAN TRAFFICKING. IF A VICTIM OF THIS CRIME, IN ONE OF THE FIRST STATEMENTS, MAKES AN ALLEGATION AGAINST THE DEFENDANT, INCLUDING A NARRATIVE OF THE FACTS, AND SUCH STATEMENT IS CORROBORATED BY FURTHER EVIDENCE, SUCH EVIDENCE SHOULD BE REGARDED AS ACCURATE EVEN IF THE VICTIM SUBSEQUENTLY RETRACTS THE ALLEGATIONS.”

This isolated thesis is a relevant example of gender perspective case law, as the criteria issued by the collegiate tribunal is binding on such tribunal. In addition, such criteria may also be persuasive in similar cases arising in other federal courts. In this case, the federal court determined that it is a well-known fact that Mexican society discriminates against sex workers. In light of the stigma that sex workers carry, they are subject to continuous pressure from different societal actors, including their nuclear family, to refrain from providing statements or to withdraw initial statements regarding crimes committed against them. The collegiate tribunal held that when a sex-worker case comes before a court, the court must consider a gender perspective in its ruling. As a result, courts must use all available mechanisms in order to obtain irrefutable proof from the victim. The tribunal based its ruling on Article 2(c) and (d) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW):  “(c) to establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; (d) to refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation.”

 

“LA TRATA DE PERSONAS. SI UNA VÍCTIMA DE ESTE CRIMEN, EN UNA DE LAS PRIMERAS DECLARACIONES, HACE UNA ALLEGACIÓN CONTRA EL DEFENDIENTE, INCLUYENDO UNA NARRATIVA DE LOS HECHOS, Y DICHA DECLARACIÓN ES SUSTENTADA CON EVIDENCIA DICHA EVIDENCIA SE MANTENDRA COMO VALIDA INCLUSO SI LA VICTIMA RECANTA SU TESTIMONIO."

Esta tesis aislada es un ejemplo relevante de la jurisprudencia de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son vinculantes para dicho tribunal. Además, dichos criterios también pueden ser persuasivos en casos similares que surjan en otros tribunales federales. En este caso, el tribunal federal determinó que es un hecho bien conocido que la sociedad mexicana discrimina a las trabajadoras en base a su sexo. En vista del estigma que las trabajadoras sexuales ejercen, están sujetos a la presión continua de diferentes actores sociales, incluida su familia nuclear, para que se abstengan de emitir declaraciones o de retirar declaraciones iniciales sobre los delitos cometidos contra ellas. El tribunal colegiado sostuvo que cuando un caso de trabajadora sexual se presenta ante un tribunal, el tribunal debe considerar una perspectiva de género en su decisión. Como resultado, los tribunales deben usar todos los mecanismos disponibles para obtener pruebas irrefutables de la víctima. El tribunal basó su decisión en el Artículo 2 (c) y (d) de la Convención sobre la Eliminación de Todas las Formas de Discriminación contra la Mujer (CEDAW): “(c) establecer la protección legal de los derechos de las mujeres en igualdad de condiciones con los hombres y asegurar a través de los tribunales nacionales competentes y otras instituciones públicas la protección efectiva de las mujeres contra cualquier acto de discriminación; (d) abstenerse de participar en cualquier acto o práctica de discriminación contra las mujeres y garantizar que las autoridades e instituciones públicas actúen de conformidad con esta obligación."



Case of Sebastian Ramirez Ledesma Supreme Court (1999)

Domestic and intimate partner violence

Sebastian Ramirez Ledesma was found guilty of murdering his father by the lower court.  The lower court sentence was confirmed by the Court of Appeals.  However, in 1997, the Supreme Court overturned the sentence and absolved the accused of all charges because he acted in self-defense.  On the day the events took place, Joaquin Ramirez, father of the accused was drunk and threatening to kill his wife, Francisca Ledesma de Ramirez.  Joaquin Ramirez regularly hit his wife.  In light of these circumstances, the accused intervened trying to defend his mother, which enraged his father.  Joaquin Ramirez took out a gun and fired three shots at the accused, missing him.  Then, Joaquin Ramirez continued the aggression against his wife.  Subsequently, the accused was able to grab the gun from his father.  When Joaquin Ramirez realized that his son took the gun, he took out a knife.  At this point, the accused fired the gun at his father, killing him.  The Supreme Court overturned the sentence because it found that the accused was acting in self-defense and also was trying to protect his mother. 



Case of Joao María Dos Santos Supreme Court (1997)

Sexual violence and rape, Statutory rape or defilement

S.J.D.S and M.J.D.S (16 and 13 years old) were sexually abused by their father, Joao María Dos Santos on several occasions.  The victims testified that they were forced to have sexual relations with their father.  The accused admitted that he raped them.  The accused was sentenced to 16 years in prison.  His sentenced was confirmed by the Supreme Court in 1997.



Case of Francisco Ramírez Irala Supreme Court (2011)

Domestic and intimate partner violence

In 2008, Francisco Ramírez Irala was found guilty of domestic violence against his wife.  The Justice of the Peace ordered the accused to refrain from living at their home or being within 300 meters of his house or any other place that represented a risk for the victim for a period of 60 days.  The accused appealed, and the sentence was confirmed.  Subsequently, the accused filed a request before the Supreme Court alleging that the sentence caused him great harm because he is a colonel in the military with an impeccable career and being evaluated for a promotion.  The Supreme Court rejected his motion.



Case of Alejandro Candia Criminal Appeals Court (2011)

Sexual violence and rape, Statutory rape or defilement

Two minor children, an eight-year-old boy and a twelve-year-old girl, were raped by their father, once and multiple times over several years, respectively.  The defendant was sentenced to 20 years in prison, but the Criminal Appeals Court reduced the sentence to 19.6 years in prison on October 11, 2001, after finding that the 20-year sentence was impermissible under Paraguay’s sentencing guidelines.



Case of W.F.C.M. and L.M.S.V., No. 556 Supreme Court (2005)

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

L.M.S.V. and W.F.C.M were accused of sexual coercion against the victim L.del R.A., an 18 year old woman, who was sexually coerced by the two accused males with a knife.  The accused, who were minors, were sentenced to 3 years in prison.  L.M.S.V appealed and the Court of Appeals confirmed the lower court sentence.  Finally, L.M.S.V challenged the decision before the Supreme Court which partially overturned the decision.  The Supreme Court found that because L.M.S.V. was a minor at the time of the crime and, in order to hold minors criminally responsible, minors must have sufficient psycho-social maturity (“madurez sico-social”) to understand the criminality of their actions, the sentence should be reduced to two years in prison.  The court also ordered that during the probation period, L.M.S.V. must live no less than 10 kilometers away from the victim.



Case of Juan Alveiro Gómez Supreme Court (1997)

Sexual violence and rape

In 1994, a married woman was sexually abused and raped by Juan Aveiro Gómez in her home.  Law 104 (dated December 17, 1990) modified Paraguay’s penal code to punish the rape of a married woman with prison.  The Criminal Appeals Court sentenced the defendant to 12 years in prison.  However, the Supreme Court reduced the sentence to eight years in prison on February 20, 1997.



Case of Derlis Mauro Rodríguez Rojas Criminal Appeals Court (2002)

Sexual violence and rape, Statutory rape or defilement

The child victim was sexually abused by Derlis Mauro Rodriguez.  The parents of the victim stated that the child was found with the defendant in an abandoned house while he was touching her.  Medical reports confirmed the defendant had been sexually abusing the victim.  The defendant was sentenced to fifteen years in prison, which was confirmed by the Criminal Appeals Court on April 16, 2002.



Case of Florencio Arias, et al. Criminal Appeals Court (2003)

Sexual violence and rape, Statutory rape or defilement

A nine-year-old girl was sexually abused by her father, Florencio Arias, on several occasions.  The defendant was sentenced to 10 years in prison, which was confirmed by the Criminal Appeals Court on April 25, 2003.



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.



Rex v. Shongwe High Court (2008)

Domestic and intimate partner violence

The 54-year-old accused pleaded guilty to culpable homicide based on allegations that she unlawfully poured boiling water on her husband. He refused to seek medical attention for his injuries because he was embarrassed and he died six days later. The Court ordered a suspended sentence because the accused “had been and was being” viciously attacked by her husband and was escaping his attack. The Court based its judgment on a finding that there was a combination of extenuating factors present, including that the accused suffered from battered wife syndrome, the needs of the six remaining minor children for whom the accused is the sole caretaker and provider, that the accused had already served two years imprisonment before she was released on bail, and the deceased’s refusal to go to the hospital for treatment for fear of being ridiculed by other men.



A.S. v. J.O.B. and J.I.O. Court of Cassation (2008)

Sexual violence and rape, Statutory rape or defilement

The Court of Cassation confirmed a Court of Appeal judgment in a case of the rape of a minor where the question at issue was whether rape was to be considered to have taken place, in violation of Article 375 of the Penal Code, even if penetration was incomplete given the incomplete physical development of the child. The Court confirmed that rape is any act of sexual penetration of whatever kind and with whatever object that is committed on a person who does not consent to it.



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.



Public Prosecutor v. Various Parties Court of Appeal of Antwerp (2016)

Acid violence, Domestic and intimate partner violence, Gender-based violence in general, LGBTIQ

An 18-year old woman died from injuries sustained during acts of exorcism (involving use of boiling water, acid, and beating) carried out at the request of her parents by a healer, a few months after she told her mother that she had homosexual feelings. At first instance, the acts were qualified as torture, and the fact that the victim was in a particularly vulnerable situation (mentally and physically) was considered an aggravating factor. Both the healer and the parents were sentenced by the lower court to prison terms (based on Article 417bis and 417ter of the Penal Code (torture)), but the court held that any possible discriminatory motive based on sexual orientation (which it considered unproven anyway) could not affect the criminal qualification, because the Penal Code does not provide for discrimination as an aggravating factor for torture.  Contrary to the lower court, which qualified the acts as torture, the Court of Appeal did not qualify the acts as torture (as the intention of the defendants was not to punish the victim), but as blows and injuries intentionally inflicted without the purpose of manslaughter but leading to death under Article 401 of the Penal Code. In addition, the Court found that the aggravating factors included the failure to protect a vulnerable person (Article 405bis) and the fact that acts were committed by the parents of the victim had been the motive for the exorcism.  The healer and both parents were sentenced to jail.



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.



D.A.V.G. v. Attorney General's Office Supreme Court (2013)

Statutory rape or defilement

The defendant in this case spent 11 days at a hotel in Honduras with a 13-year-old girl. The victim and defendant had sexual relations throughout this time. Following a trial, the defendant was sentenced to 15 years imprisonment for the crime of special, or statutory, rape. The defendant challenged this decision on several grounds. First, he claimed that he lacked the requisite mens rea, as he was unaware of the victim’s age. He claimed that was due to both the victim’s physical appearance and her statements to him affirming that she was an adult. The Court dismissed this argument, and found the defendant capable of knowing that he was committing a crime when having sexual intercourse with the victim. Furthermore, the Court found that actual knowledge of the victim’s age was irrelevant, as special rape is a statutory crime. In addition to his claim regarding intent, the defendant also claimed that the evidence presented did not demonstrate sexual intercourse. The defendant pointed to a physical examination preformed on the victim, showing that her hymen was intact. The Court considered that oral statements during trial proved that there was sexual intercourse and that the state of the victim’s hymen was irrelevant, as sexual penetration does not always entail the hymen’s breaking. Therefore, the Court dismissed the appeal and confirmed the sentence.  

 

En este caso, el acusado pasó 11 días en un hotel en Honduras con una niña de 13 años. La víctima y el acusado tuvieron relaciones sexuales durante este tiempo. Después de un juicio, el acusado fue sentenciado a 15 años de prisión por violación estatutaria. El demandado desafió esta decisión por varios motivos. En primer lugar, afirmó que no cumplía los requisitos para la condena, ya que desconocía la edad de la víctima. Afirmó que esto se debía tanto a la apariencia física de la víctima como a las declaraciones que le hizo afirmando que era una persona adulta. Sin embargo, el tribunal desestimó este argumento y encontró que el acusado debia de saber que estaba cometiendo un delito al tener relaciones sexuales con la víctima. Además, el Tribunal argumentó que el conocimiento real de la edad de la víctima era irrelevante, ya que la violación estatutaria es un delito legal independiente del conocimiento del acusado. Además de su reclamo con respecto a la intención, el acusado también alegó que la evidencia presentada no demostró relaciones sexuales. El acusado señaló un examen físico realizado en la víctima, lo que demuestra que su himen estaba intacto. El Tribunal consideró que las declaraciones orales durante el juicio probaron que habían habido relaciones sexuales y que el estado del himen de la víctima era irrelevante, ya que la penetración sexual no siempre implica la ruptura del himen. Por lo tanto, el Tribunal desestimó la apelación y confirmó la sentencia.



Attorney General's Office v. P.T.B.L. Supreme Court (2010)

Statutory rape or defilement

In 2005, an 8-year-old girl was grabbed in the street and taken to an inhabited home. There she was sexually assaulted by a man exposing his genitals. The victim’s mother found the child and the defendant in the abandoned home where she physically attacked him, causing him to flee. The defendant was convicted and sentenced to four years of imprisonment for acts of lust. The prosecutor challenged this decision. Although distinct challenges where submitted, the principal argument raised was that the accused actions amounted to attempted special rape, also known as statutory rape, as the victim was under 14-years-old at the time. The prosecutor argued that the defendant’s actions demonstrated intent to rape the child, and was only frustrated in his attempt due to the intervention of the victim’s mother. The Court agreed with the prosecutor and considered it unnecessary to review the other challenges raised by the defendant. The defendant was re-sentenced to 10 years imprisonment.

 

En el 2005, una niña de 8 años fue agarrada en la calle y llevada a una casa habitada. Allí fue atacada sexualmente por un hombre que expuso sus genitales ante ella. La madre de la víctima encontró a la niña y al acusado en la casa abandonada donde ella lo atacó físicamente, lo que provocó que el huyera. El acusado fue declarado culpable y condenado a cuatro años de prisión por actos de lujuria. El fiscal impugnó esta decisión. Aunque se presentaron distintos desafíos, el principal argumento que se planteó fue que las acciones del acusado equivalían a un intento de violación estatutaria, también conocida como violación legal, ya que la víctima tenía menos de 14 años. El fiscal argumentó que las acciones del acusado demostraron su intención de violar a la niña y solo no se pudieron llevar a cabo debido a la intervención de la madre de la víctima. El Tribunal estuvo de acuerdo con el fiscal y consideró innecesario revisar los otros desafíos planteados por el acusado. El acusado fue condenado a 10 años de prisión.



J.A.C.Z. v. Attorney General's Office Supreme Court (2010)

Sexual violence and rape

The defendant in this case took a female victim by the mouth, put her against the wall and sexually abused her. Following trial he was sentenced to 10 years of imprisonment on for rape. His appeal advanced two primary arguments. The first argument was that the evidence presented in the case was contradictory and was not sufficiently reliable to convict him of rape. While some witnesses’ statements showed that the defendant grabbed the victim by the mouth, other witnesses suggested that he took her by the back. The Court dismissed this argument, finding that the relevant fact is that the accused used force to make the victim have sexual intercourse with him, and that fact constitutes the crime of rape. The defendant’s second argument was that physical exams of the victim revealed that she had an intact hymen. The defendant argued that the exam demonstrated the lack of any sexual abuse on his part. The Court disagreed and found that sexual abuse, included forced penetration, does not necessarily result in the breaking of a hymen. Therefore, the rape conviction was confirmed by the Supreme Court. 

 

El acusado en este caso agarró a la víctima por la boca, la puso contra la pared, y abusó sexualmente de ella. Después del juicio, él fue sentenciado a 10 años de prisión por violación. Su apelación adelantó dos argumentos principales. El primer argumento fue que las pruebas presentadas en el caso eran contradictorias y no eran lo suficientemente confiables para condenarlo por violación. Mientras que las declaraciones de algunos testigos mostraron que el acusado agarró a la víctima por la boca, otros testigos sugirieron que la tomó por la espalda. El Tribunal desestimó este contradiccion y concluyó que el hecho relevante es que el acusado utilizó la fuerza para que la víctima tuviera relaciones sexuales con él, y ese hecho automáticamente constituye el delito de violación. El segundo argumento de la acusada fue que los exámenes físicos de la víctima revelaron que tenía un himen intacto. El acusado argumentó que el examen demostró la falta de abuso sexual por su parte. El tribunal no estuvo de acuerdo y encontró que el abuso sexual, incluida la penetración forzada, no necesariamente resulta en la ruptura de un himen. Por lo tanto, la condena por violación fue confirmada por el Tribunal Supremo.



J.B.G.G. v. Attorney General's Office J.B.G.G. v. Attorney General's Office (2012)

Statutory rape or defilement

On June 27, 2008, a man invited a 15-year-old girl to his home, where he and an accomplice proceeded to drug and sedate her. Once she regained consciousness, the defendant had oral sexual relations with her, while his friend made a video recording of it. Both the defendant and his accomplice were sentenced to 18 years imprisonment for "special violation," also known as statutory rape, and child pornography. The defendant appealed his conviction on the ground that no child pornography crime had been committed by him, as it was his accomplice that made the video. The Court rejected this argument and reasoned that, regardless of who made the recording, the defendant clearly consented to having it recorded. In accordance with Honduras criminal law, that consent constitutes conspiracy for the commission of the crime of child pornography. A co-conspirator is equally responsible for a crime as the principal. Therefore, the court upheld the sentence. 

 

El 27 de junio de 2008, un hombre invitó a una niña de 15 años a su casa, donde él y un cómplice procedieron a drogarla y sedarla. Una vez que recuperó la conciencia, el acusado tuvo relaciones sexuales orales con ella, mientras que su amigo hizo una grabación en video del acto. Tanto el acusado como su cómplice fueron condenados a 18 años de prisión por "violación especial", también conocida como violación estatutaria y pornografía infantil. El acusado apeló su convicción sobre la base de que él no había cometido ningún delito de pornografía infantil, ya que fue su cómplice el que hizo el video. El Tribunal rechazó este argumento y razonó que, independientemente de quién hiciera la grabación, el acusado consintió claramente en grabarla. De conformidad con el derecho penal de Honduras, ese consentimiento constituye una conspiración en la comisión del delito de pornografía infantil. Un co-conspirador es igualmente responsable de un crimen como el principal. Por lo tanto, el tribunal confirmó la sentencia.



A.R.M.P. v. Attorney General's Office Supreme Court (2010)

Domestic and intimate partner violence

The defendant was seized by police officers at his parents’ domicile for domestic violence against his wife. During the arrest, the defendant proceeded to insult the victim, threaten her, grab her by the hair and spit on her face. The defendant was sentenced to two years of imprisonment on the count of domestic violence. During his appeal, the defendant had three arguments for repealing his conviction. First, as the defendant’s conduct was governed under both Honduras criminal law and Honduras Domestic Violence Act, he argued that only the most recent law, the Honduras Domestic Violence Act, should be applied. That more recent piece of legislation does not establish any criminal punishment. The Court disagreed, and found that the defendant used force and intimidation to cause emotional harm which is covered under the criminal statute. The defendants second argument was that certain statements offered as evidence against the accused were not sufficiently convincing to meet criminal law threshold and therefore could not sustain a count for domestic violence.  The Court concluded that this argument did not meet the threshold for rejection of evidence in criminal law. The defendant’s final argument was that the evidence showed that the facts discussed at trial indicated that his behavior was different those covered under the law on which the Tribunal’s decision were based. Nonetheless, as those facts also indicate force and intimidation resulting in psychological damage for the victim, no grounds for reversal of the decision were found. The conviction for domestic violence was confirmed and the decision was sustained. 

 

La policía capturó al acusado en el domicilio de sus padres por violencia doméstica contra su esposa. Durante el arresto, el acusado procedió a insultar a la víctima, amenazarla, agarrarla por el pelo y escupirle la cara. El acusado fue condenado a dos años de prisión por el cargo de violencia doméstica. Durante su apelación, el acusado tenía tres argumentos para revocar su condena. Primero, dado que la conducta del acusado violaba la ley penal de Honduras y la Ley de Violencia Doméstica de Honduras, argumentó que solo se debería aplicar la ley más reciente, la Ley de Violencia Doméstica. Esa legislación más reciente no establece ningún castigo penal. El tribunal no estuvo de acuerdo y encontró que el acusado utilizó la fuerza y la intimidación para causar un daño emocional que está cubierto por el estatuto penal. El segundo argumento del acusado fue que ciertas declaraciones ofrecidas como evidencia contra el no eran lo suficientemente convincentes para cumplir con el umbral de la ley penal y, por lo tanto, no podían sostener un recuento de la violencia doméstica. El Tribunal concluyó que este argumento no calificaba para el rechazo de pruebas en el derecho penal. El argumento final del acusado fue que la evidencia mostraba que los hechos discutidos en el juicio indicaban que su comportamiento era diferente a los contemplados en la ley en que se basaba la decisión del Tribunal. No obstante, dado que sus hechos también indican fuerza e intimidación que causaron daños psicológicos a la víctima, no se encontraron motivos para revertir la decisión. Se confirmó la condena por violencia doméstica y se sostuvo la decisión.

 



R.R.R. v. Attorney General's Office Supreme Court (2013)

Sexual violence and rape

The defendant invited a 16-year-old girl for a walk to a park, but refused to take her home when she requested. He instead took her to another residence and, along with other individuals, sexually assaulted her using force, insults and intimidation. The defendant was subsequently sentenced to 15 years imprisonment for rape. He appealed the sentence alleging that the facts demonstrated establish that the accused had only “sexual relations” with the victim and Honduras criminal law, rape necessitates acts beyond sexual relations; specifically, penetration, which he claimed was not demonstrated in the facts. The Court reasoned that “sexual relations” was not limited to penetration, but included penetration. Therefore the Court rejected the appeal. The case was dismissed and the sentence upheld.

 

El acusado invitó a una niña de 16 años a caminar al parque, pero se negó a llevarla a su casa cuando lo solicitó. Él, en cambio, la llevó a otra residencia y, junto con otros individuos, la agredió sexualmente usando la fuerza, insultos, e intimidación. El acusado fue posteriormente condenado a 15 años de prisión por violación. Apeló la sentencia alegando que los hechos demostrados establecen que el acusado solo tenía "relaciones sexuales" con la víctima y con la ley penal de Honduras, la violación requiere actos más allá de las relaciones sexuales. Específicamente, la violación require la penetración, que según él no se demostró en los hechos. El Tribunal razonó que las "relaciones sexuales" no se limitaban a la penetración, sino que meramente incluían la penetración, sin ser un hecho exclusivo. Por lo tanto, el Tribunal rechazó la apelación. El caso fue desestimado y la sentencia fue confirmada.



J.J.R. v. Attorney General's Office J.J.R. v. Attorney General's Office (2013)

Trafficking in persons

The defendant was convicted for soliciting women to prostitute themselves and was consequently fined and sentenced to six years of imprisonment for procurement, and eight years of imprisonment for human trafficking. During his appeal, the defendant raised a procedural objection, challenging the admissibility of evidence demonstrating his involvement in women’s prostitution in Honduras. In addition to reaffirming its longstanding practice of dismissing appeals for failing to state arguments with particularity, the Supreme Court dismissed this objection on the grounds that the accused had an opportunity to challenge the admissibility of evidence during the first trial, and failed to do so. Concerning the second appeal, the defendant argued that no human trafficking occurred, as the elements of the crime, as codified in Honduras criminal law and international conventions, was not met. The defendant argued that he merely invited women to conduct prostitution, and never forced them nor did he participate any further in their transportation to Tegucigalpa (the capital) to conduct these activities. The Court agreed with the defendant’s argument and reversed the human trafficking conviction. ​

 

El acusado fue condenado por solicitar mujeres para que se prostituyeran. Como consecuencia, fue multado y condenado a seis años de prisión por adquisición y ocho años de prisión por trata de personas. Durante su apelación, el acusado presentó una objeción al proceso, impugnando la admisibilidad de las pruebas que demuestran su participación en la prostitución de mujeres en Honduras. Además de reafirmar su práctica de descartar apelaciones por no presentar argumentos con particularidad, el Tribunal Supremo descartó esta objeción por el hecho de que el acusado tuvo la oportunidad de impugnar la admisibilidad de las pruebas durante el primer juicio y no lo hizo. Con respecto a la segunda apelación, el acusado argumentó que no hubo tráfico de personas, ya que los elementos del crimen, tal como están codificados en el derecho penal de Honduras y las convenciones internacionales, no estaban probados. El acusado argumentó que simplemente invitó a las mujeres a ejercer la prostitución, y nunca las obligó a hacerlo, ni tampoco participó en su transporte a Tegucigalpa (la capital) para llevar a cabo estas actividades. La Corte estuvo de acuerdo con el argumento del acusado y revocó la condena de trata de personas.



J.A.H. v. Attorney General's Office Supreme Court (2011)

Statutory rape or defilement

The defendant, 52 years old, appealed a conviction stemming from the rape of a 13-year-old girl. The victim became pregnant following the assault, and the defendant supplied her with pills to prevent intestinal worms. The pills resulted in the victim experiencing minor bleeding.  Following a trial, the defendant was sentenced to prison for 15 years for aggravated rape and four years for attempted abortion. On appeal, the defendant argued that there had been no aggravated rape as the sexual intercourse was consensual and the claimant was unaware of the law prohibiting sexual intercourse with minors. Furthermore, the defendant argued that he sought to create a family with the victim. Concerning abortion, the accused argued that there was neither evidence demonstrating that the accused had the proper mens rea for the crime to arise, nor that the pills he provided could actually inflict an abortion on the victim. While the Court dismissed the defendant’s arguments regarding the rape, it held that the defendant was improperly convicted of attempted abortion. The Court found that the defendant did not possess the requisite means rea, nor did he engage in “unequivocal actions” of an attempt to inflict an abortion demonstrated.

 

El acusado, de 52 años de edad, apeló una condena por la violación de una niña de 13 años. La víctima quedó embarazada después del asalto, y el acusado le suministró pastillas para prevenir los gusanos intestinales. Las pastillas dieron como resultado que la víctima experimentara un sangrado menor. Tras un juicio, el acusado fue condenado a prisión durante 15 años por violación agravada y a cuatro años por intento de aborto. En la apelación, el acusado argumentó que no hubo violación agravada debido a que la relación sexual fue consensual y que él desconocía la ley que prohíbe las relaciones sexuales con menores. Además, el acusado argumentó que intentaba crear una familia con la víctima. En relación al aborto, el acusado dijo que no había pruebas que demostraran que él tenía los medios adecuados para que surgiera el delito, ni que las píldoras que él proporcionó podían infligir un aborto a la víctima. Mientras que la Corte desestimó los argumentos del acusado con respecto a la violación, la corte concluyó que él fue condenado indebidamente por intento de aborto. El Tribunal determinó que el acusado no poseía los medios necesarios, ni se involucró en "acciones inequívocas" con un intento demostrado de infligir un aborto.



A.R.T. v. Attorney General's Office Supreme Court (2012)

Domestic and intimate partner violence

Mistakenly believing that a stranger was in his house, the defendant began insulting his wife and tried to beat her. He was prevented in succeeding in his attack after an intervention by their son. The defendant was consequently convicted of domestic violence and sentenced to 20 months in prison. Responding to the argument that a lack of force prevents his actions from satisfying the elements of domestic violence as codified in Honduras Penal Code, the Court responded that “intimidation” was within the elements of domestic violence. Furthermore, the Court held that that the accused failed to establish with particularity which elements were improperly decided. Therefore, it dismissed his appeal and confirmed the sentence.

 

Creyendo erróneamente que un extraño estaba en su casa, el acusado comenzó a insultar a su esposa y trató de golpearla. La intervención de su hijo previno el ataque. En consecuencia, el acusado fue declarado culpable de violencia doméstica y condenado a 20 meses de prisión. Respondiendo al argumento de que la falta de fuerza supuestamente impide que sus acciones satisfagan los elementos de violencia doméstica según lo codifica el Código Penal de Honduras, la Corte respondió que la "intimidación" satisface los elementos de violencia doméstica. Además, el Tribunal sostuvo que el acusado no pudo establecer con particularidad qué elementos se decidieron incorrectamente. Por lo tanto, desestimó su recurso y confirmó la sentencia.



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.



The Republic v. Banda, et al. High Court of Malawi (2016)

Gender discrimination, Trafficking in persons

On February 23, 2016, 19 women were arrested by police and jointly charged “for the offence of living on the earnings of prostitution” in violation of § 146 of the Penal Code of Malawi (the “Penal Code”) ( ¶ 1.1). A Fourth Grade Magistrate in Dedza convicted them “on their own plea of guilt” and fined them MK 7,000.00 each (¶ 1.2). The police lacked evidence to prove the charge against them. In addition, the women did not have legal representation during the proceedings, including when their guilty plea was recorded. The women challenged the conviction on July 28, 2016 on numerous grounds including (i) that the Fourth Grade Magistrate did not have jurisdiction, (ii) that the women were charged together when they should have been charged separately, (iii) that the High Court should not have accepted a unanimous plea, (iv) that “the charge was wrong in law as living on the earnings of prostitution does not target the sex worker herself” but those who live parasitically and exploitatively off her earnings, and (v) that the plea of guilty should not be accepted because the court did not comply with mandatory procedures regarding the defendants’ knowledge. The High Court found that the Fourth Grade Magistrate did not have jurisdiction to hear the case. In addition, the Court held that the arrest of the women was unconstitutional and not based on evidence. Citing the legislative history of the offense, the Court clarified that § 146 of the Penal Code did not criminalize sex work but was mainly intended to protect sex workers from those who would exploit them. The High Court held that even though sex workers may be arrested in circumstances under this section, the arrest must be properly supported by evidence. Consequently, the High Court vacated the convictions and ordered that fines be repaid to the women. 



Yang Zheng Jun v. Uganda Court of Appeal at Kampala (2013)

Statutory rape or defilement, Trafficking in persons

The Chinese accused was charged with aggravated trafficking in children, aggravated defilement, and simple defilement.  After the accused complained that his Chinese translator was not effectively communicating with him, the trial court judge canceled the accused’s bail and adjourned the proceedings until a replacement translator could be found.  The Appeals Court found that the trial court judge improperly revoked the accused’s bail application and ordered it reinstated.



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. 



State v. Naruseb High Court of Namibia (2012)

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

The accused was tried for beating and raping his girlfriend A.S. (the third complainant), sexually abusing and beating their five-month-old male and female twin children, and murdering his son by throwing him on the floor.  Medical experts testified that the injuries on the twins suggested sexual and other physical violence.  Denying the charges, the accused testified that A.S., the children’s mother, beat the twins and assaulted the accused. The accused also argued that there was no credible evidence of the crime and that the prosecution failed to meet its burden of proof because A.S. was the only eye-witness to the accused’s alleged crimes. The High Court of Namibia disagreed, finding the accused not credible and finding the A.S. credible, not least because the circumstantial and medical evidence supported her testimony. Citing precedent regarding single witnesses, the Court determined that a single eye-witness is sufficient to sustain a conviction if the witness (a) is credible, (b) gives her statement in a straight-forward manner, and (c) has no reason to falsely incriminate the accused.  In addition, an inference may be properly drawn from the fact that the accused and the complainant were the only two adults in the room between the time the complainant went to bed at night without injuries and when she awoke in the morning with injuries. This finding is significant for domestic violence cases, which often do not involve unbiased third-party testimony.  



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. Latsi High Court of Lesotho (2007)

Sexual violence and rape

While considering the appeal of a rape conviction, the High Court condemned the trial court’s failure to punish the defendant in accordance with the severity of his crime. The Court found that where a trial court finds sufficient evidence of rape, the sentence should be more than a mere “slap on the wrist.”  The court stated that “rape is always serious even without aggravating circumstances” because the victim’s “virginity has been assaulted and undoubtedly her dignity and reputation have been compromised blighting her prospects for marriage” (p. 1). The Court found that those factors should always be considered before a sentence is imposed. The Court affirmed the conviction and increased the defendant’s prison sentence from five to ten years.  



Rex v. Motsoene High Court of Lesotho (2005)

Sexual violence and rape

The defendant was charged with violating the Sexual Offence Act of 2003 for the attempted rape of a 71-year-old woman. The trial evidence showed that the victim’s daughter intervened and was able to stop the rape after the defendant threw the victim to the ground but before he could commit the actual rape. As such, the defendant maintained at trial that he was innocent because the Sexual Offences Act of 2003 did not criminalize attempted rape. The High Court disagreed with the defendant’s interpretation of the Sexual Offenses Act. The Court held that, in order to sustain a conviction for attempted rape, the prosecutor simply had to provide evidence of the defendant’s intent to commit rape and any actions taken to commence the actual crime.  Here, the defendant struggled with the victim, threw her to the ground, and stated his intention to have sex with her against her will. Consequently, the Court found the defendant guilty of attempted rape.  



Rex v. Lenyolosa High Court of Lesotho (2003)

Sexual violence and rape, Statutory rape or defilement

The defendant was convicted for sexual assault and attempted rape of his 16-year-old niece. The appellate court upheld the conviction, but overturned the sentence imposed by the trial court. The appellate court held that the lower court failed to consider aggravating factors, including the close relationship between the parties. Given the prevalence of sexual assault in Lesotho, the court determined that jail sentences needed to serve as a deterrent for both the perpetrator and the general public.  According to the court, “a very loud and clear message must be sent to all those who consider themselves with power and right to abuse or rape girls and women, that they will be dealt with the seriousness their unlawful actions demand” (p. 5).  The Court sentenced the defendant to two years imprisonment with one year suspended for five years, unless the defendant commits another violent offense.



Rex v. Ntai High Court of Lesotho (2004)

Domestic and intimate partner violence, Gender-based violence in general

The defendant was convicted of culpable homicide. The trial evidence showed that after spending an evening at a bar, the defendant beat his girlfriend to death. The defendant sought leniency at sentencing, arguing that he was drunk when he committed the offense.  The High Court found that although intoxication somewhat lessens the blameworthiness of a person, the courts should not consider it a mitigating factor. According to the Court, defendants “should not be allowed to escape appropriate punishment for their actions for reasons of drunkenness, especially where such actions exhibit an attitude of violence against women” (p. 3).  The Court sentenced the defendant to seven years imprisonment with half of the sentence suspended for five years if he was not found guilty of another violent offense during the suspension. This decision marked a shift in how intoxication was treated for purposes of sentencing in domestic violence cases in Lesotho.  



Decision No. 212 K/Pid.Sus/2011/PN.Pso Poso District Court (2011)

Abortion and reproductive health rights

The defendant, a physician, agreed to perform an abortion for a woman who was 20-22 weeks pregnant for Rp. 800,000. The defendant performed the abortion in her own home using a ‘Gastrul Pill’ and was criminally charged for intentionally performing an abortion. The defendant confessed to performing the procedure and did not contest the indictment. The court found that the defendant performed an illegal abortion because the woman did not have a prior examination from a counselor and defendant did not have a certificate endorsed by the minister. The court sentenced the defendant to 10 months imprisonment and a fine of Rp. 10,000,000.00.



Decision No. 1028 k/PID SUS/2009 Supreme Court of Indonesia (2009)

Gender-based violence in general, Statutory rape or defilement, Trafficking in persons

The defendant paid his friend to bring the victim, a 14-year-old child, to defendant’s café under the pretext of attending a birthday party. After defendant’s friend abandoned the victim at the café, the defendant told the victim to work as a server but also forced her to have sex with the male clients and kept all payments received for the victim’s services. Because the defendant used fraud to bring the victim to the café and exploited the victim by forcing her to act as a sex worker for profit, the Court of First Instance found the defendant guilty of human trafficking under section 2(1) of Law No. 21 of 2007 and sentenced the defendant to 10 years imprisonment with a fine of Rp. 120,000,000. The High Court upheld the lower court’s decision but amended the defendant’s sentence to seven years imprisonment. On appeal, the defendant argued that the High Court’s sentence of seven years was an error since the court did not consider that the victim had stayed with the defendant’s friend before coming to the café and therefore the health and condition of the victim may have worsened before coming to the defendant. The Supreme Court upheld the decision of the High Court and did not rule on the sentencing since it was a “judex facti matter (question of fact of the case)”.



Rogers v. Republic of Liberia Supreme Court of Liberia (2009)

Sexual violence and rape, Statutory rape or defilement

On appeal, the Supreme Court reversed the lower court’s judgment that appellant, Allen Rogers, was guilty of rape. The 11-year-old complainant alleged that the appellant kidnapped her and a boy for two months, raping her daily during this time period. She testified that the appellant threatened to kill her if she talked about the rape. In his defense, the appellant testified that the week before the alleged kidnapping occurred, he knelt down to pray and heard the voice of someone he called Evee. Evee told him “your two children have come.” He then met the complainant and the other child. He took them to the town advisor, who said that the appellant could keep them at his house. The appellant was found guilty of statutory rape and given the maximum sentence of life imprisonment. The court reversed the conviction because the appellant did not receive adequate representation. His representation was inadequate because the public defender assigned to his case failed to call corroborating witnesses and counsel “knew, or ought to have known that the lone testimony of the appellant was not sufficient to establish his innocence. Thus, his failure to have ensured that other witness[es] appear to testify for the appellant was a serious dereliction of duty.” In Liberia, “the uncorroborated testimony of the accused person is not sufficient to rebut proof of guilt.” Therefore the court reversed the appellant's conviction and remanded the case for a new trial.



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.



Fallah v. Republic of Liberia Supreme Court of Liberia (2011)

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

On appeal, the Supreme Court affirmed the lower court’s judgment that appellant, Musa Solomon Fallah, was guilty of rape and upheld his sentence of life imprisonment. The appellant had been convicted previously, but the Supreme Court vacated that conviction in 2007 and ordered a de novo trial on the grounds that the appellant lacked adequate representation. The complainant, a nine-year-old girl, alleged that the appellant gagged and raped her. On appeal, the appellant contended that the testimony of the victim should be excluded from evidence because the testimony was conducted in camera. The victim testified in a closed room that allowed cross-examination by the defendant and visual access for jurors. The court held that the victim’s testimony was admissible, stating that if “a potential child victim witness would suffer ‘serious emotional distress’ and might just not be able to communicate within a reasonable fear free environment if put on the stand in the presence of the accused abuser to introduce courtroom testimony” then an in camera witness presentation is appropriate. The appellant's constitutional right to confront his accuser was preserved because he was afforded opportunity to listen to testimony and cross-examine the witness. In addition, the court referenced U.S. law on in camera testimony, citing U.S. Supreme Court cases to support its decision. The court stated: “It is the rule of general application in our jurisdiction that unless expressly contrary by the laws in vogue, common law and usages of the courts of England and of the United States, other authoritative treaties, principles and rules set forth in case law and in Blackstone and Kent Commentaries, when applicable, are deemed as Liberian Laws.” Finally, the Court held that medical testimony establishing rape, the testimony of the complainant, the appellant's admission that the complainant spent the nights in question with him, and unchallenged testimony claiming that the appellant had offered the complainant's family money in exchange for keeping the rape a secret were more than a sufficient "mountain of evidence" to sustain the conviction. It is not necessary, the Court stated, for the prosecution to produce an eye witness, "direct proof", or evidence eliminating every single possible alternative in order to meet their burden of proof beyond a reasonable doubt.



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.



S. v. Abraham Alfeus High Court of Namibia. Main Division, Windhoek (2013)

Domestic and intimate partner violence, Femicide, Gender-based violence in general

Abraham Alfeus was convicted of murder with direct intent after admitting to shooting his intimate partner twice with a shotgun. The presiding judge, Naomi Shivute, read the ruling citing provisions of the Domestic Violence Act, Act 4 of 2003 and sentenced Alfeus to 30 years in prison. In the ruling Shivute stressed a need for stiffer sentences in response to extremely high levels of domestic violence against women and children in Namibia; including that it was a matter of protecting the constitutional right for human dignity, the rights of the victim, and in the interest of society generally. The judge’s ruling was meant to deter future domestic violence offenders and is an important precedent in Namibia where domestic violence runs rampant but is rarely prosecuted.



Jan Oompie Kolea v. The State Supreme Court of Appeal of South Africa (2012)

Gender-based violence in general, Sexual violence and rape

Mr. Kolea was convicted of repeatedly raping a woman with another man and sentenced to 15 years in prison under s 51(2) of the Criminal Law Amendment Act 105 of 1997 (the Act). When Mr. Kolea appealed the ruling and the sentence it was found that his conviction should in fact be read under s 51(1) of the Act which imposes a minimum sentence of life in prison when the victim was raped more than once by more than one person. Mr. Kolea was duly sentenced to life in prison and his appeal was dismissed. This case broke a previous trend of judges neglecting to impose life sentences under s 51(1), instead giving lighter sentences under s 51(2) even in the case of multiple rapes. The real threat of life imprisonment is a crucial precedent to set in South Africa, where rape is common and often overlooked or punished with leniency.



M. v. The State, Supreme Court of Appeal of South Africa Supreme Court of Appeal of South Africa (2013)

Sexual violence and rape, Statutory rape or defilement

A man in South Africa was convicted of raping his adopted daughter over the course of a sexually abusive relationship that lasted several years and was sentenced to 15 years in prison. The judge overruled claims that the victim had given consent, holding that the victim’s lack of resistance did not qualify as active consent. Furthermore, the judge held that that the perpetrator had knowingly employed sexual grooming techniques to leverage the victim into sexual acts. In refuting the perpetrator’s claims that he believed the victim to be consenting, the judge in this case took an important step in defending victim’s rights and acknowledging the complicated power dynamics that often underlie sexual crimes. This case opens the path for victims of similarly complex patterns of sexual abuse to come forward and claim their rights, providing vital recourse for the many victims of sexual crimes in South Africa.



People v. Liberta New York Court of Appeals (1984)

Sexual violence and rape

The defendant's wife filed a criminal complaint against him, claiming that he raped her. He moved to dismiss the charge because, under New York Penal Law section 130.35 (“Section 130.35”), which contained a marital exemption, a husband could not be convicted of raping his wife.  The trial court granted Defendant’s motion and dismissed the indictment based on the marital exemption.  The Appellate Division reversed the decision of the trial court and remanded the case for trial.  The Court of Appeals affirmed the judgment of the Appellate Division, finding Section 130.35 was unconstitutional due to the marital exemption provision.  “Where a statute draws a distinction based on marital status, the classification must be reasonable and must be based upon ‘some ground of difference that rationally explains the different treatment.’”  The court found that there was no rational basis for distinguishing between marital rape and non-marital rape and thus declared the marital exemption unconstitutional.  The court reasoned that the marital rape exemption denies married women equal protection of the laws guaranteed by the New York and United States Constitutions.  Further, the court stated, “Rape is not simply a sexual act to which one party does not consent.  Rather, it is a degrading, violent act which violates the bodily integrity of the victim and frequently causes severe, long-lasting physical and psychic harm.  To ever imply consent to such an act is irrational and absurd.  A marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity.  A married woman has the same right to control her own body as does an unmarried woman.” 



Masiya v. Director of Public Prosecutions (Pretoria) Constitutional Court of South Africa (2007)

Sexual violence and rape, Statutory rape or defilement

Mr. Masiya was charged with the rape of a nine-year-old girl; at the trial, evidence came out that he had penetrated the girl anally which required a conviction for indecent assault rather than rape.  The High Court, however, amended the common law definition of rape to include anal penetration as well and made the definition gender-neutral.  Mr. Masiya appealed. The Constitutional Court affirmed the High Court and held that the definition of rape must be extended to include nonconsensual anal penetration of females; the Court did say that for the court to extend the definition to include male rape would encroach onto the legislature's prerogative.



State. v. Jackson (1997)

Sexual violence and rape, Statutory rape or defilement

Jackson was charged with the attempted rape of S., a 17-year-old girl when he tied her wrists and attempted to have intercourse with her.   She fought him off and managed to escape the car and subsequently was examined by a doctor who found some evidence of unlubricated sexual contact, but no conclusive evidence of penetration. Jackson appealed on the grounds of the cautionary rule, encouraging that accusations of rape be handled cautiously to prevent false convictions. The Court held that the cautionary rule was based on outdated stereotypes against women and that in criminal cases, the burden is on the State to prove the guilt of the accused beyond a reasonable doubt, without an application of a general cautionary rule. The Court adopted the formula used in England whereby a judge could choose, on a case by case basis, to use caution only in cases where it was proven that the complainant was untrustworthy for some reason, e.g. had made previous false complaints or bore the defendant a grudge. 



State. v. J.M. (2002)

Sexual violence and rape, Statutory rape or defilement

The appellant, M., was tried before a regional magistrate for the rape of his six-year-old daughter during 1989. He was convicted and sentenced to ten years imprisonment, which he appealed. The Court held that, especially given the age of the complainant at the time, the question of a consensual sexual relationship is moot and further stipulated that the sexual history of the complainant is not relevant in a charge of rape, unless the Court specifically judges it to be so.



State. v. Mahomotsa (2002)

Sexual violence and rape, Statutory rape or defilement

The accused was charged and convicted on two separate counts of rape for raping two 15-year-old girls more than once and sentenced to six years imprisonment on the first and ten years imprisonment on the second count.  On appeal, the defense was put forward that the sentence was too severe because of mitigating circumstances in that the victims did not suffer serious physical or psychological injuries and that both victims had previously been sexually active. The Court dismissed the appeal and held that the sentences were, in fact, too lenient, especially as the victims' previous sexual history was irrelevant and also that the extent of harm to the victims matters less because rape is a basic violation of dignity.  The sentence was increased to 8 years for the first count and 12 years for the second.



Mwaura v. Republic Court of Appeal of Kenya at Nakuru (2007)

Sexual violence and rape, Statutory rape or defilement

The accused was charged with defilement of a girl under the age of 14 years, and was convicted and sentenced to 14 years imprisonment.  He appealed for leniency on the grounds that he was remorseful, suffering from acute pneumonia and only 17 years of age at the time of the incident. The Court upheld the sentence finding that the sentence of 10 years for defilement of a girl and 5 years for indecent assault is not excessive and no circumstances existed to justify mitigating the 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.]



Achoki v. Republic Court of Appeal of Kenya at Kisumu (2011)

Sexual violence and rape

The appellant was charged with three criminal violations in connection with his and his coconspirators' robbery of the complainant and corresponding violence: (1) aggravated robbery with violence, (2) rape of the complainant's niece during the robbery, and (3) possession of suspected stolen property.  The trial court found the appellant guilty on all counts, but the first count was reduced to simple robbery.  The trial court sentenced him to ten years imprisonment for robbery, ten years imprisonment for rape, and 12 months for handling suspected stole goods, to be served concurrently. Without citing a specific reason for reducing the aggravated robbery with violence charge, the trial magistrate noted that the complainant testified that she was not injured in the robbery.  The appellant first appealed to the High Court, which found the appeal had no merit and that the appellant was guilty of aggravated robbery with violence.  The High Court vacated the conviction and 10-year sentence for simple robbery and imposed the death sentence for robbery with violence.  In this appeal to the Court of Appeal (Kisumu), the appellant raised four concerns: (1) whether he was improperly identified as the robber and rapist because the attack took place at night when it was dark, (2) whether the first appellate court properly re-evaluated the evidence, (3) whether the High Court's substitution of simple robbery with aggravated robbery with violence was proper, and (4) whether the State was required to file a cross-appeal to entitle the High Court to substitute the simple robbery conviction with aggravated robbery with violence.  The High Court documents show that the appellant was warned more than once and that at the earliest opportunity the State Counsel would seek to increase the sentence to capital robbery, but the appellant decided to proceed with the appeal.  Quoting its precedent, the lower courts' records, and the Criminal Procedure Code Sec. 354, the Court of Appeal rejected all aspects of the appeal and upheld the death sentence for robbery with violence.



Rex v. Tauhali and Mashea High Court of Lesotho (1999)

Sexual violence and rape

Both of the accused were convicted of raping a 25-year-old woman when each took turns helping the other to rape the complainant. Two women who were with her tried to drive off the accused, but they threw rocks at the women and chased them off. The Court noted that the punishment for rape carries a maximum sentence of life imprisonment and a minimum sentence of five years imprisonment when there are no mitigating or aggravating factors. Aggravating factors include (1) violence in addition to the violence of the rape, (2) use of a weapon to intimidate or physically harm, and (3) repeated rape. The Court upheld the conviction and overturned the previous sentence of five years each to eight years, finding that gang rape calls for a higher sentence. In its discussion of the elements of rape, the Court noted that if one perpetrator held a woman down while another raped her, then the first would also be guilty of rape. In addition, in contradiction of international standards, the Court stated that women lack the necessary anatomy to commit rape and therefore can only be guilty of rape by assisting a male perpetrator. 



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.



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.



Ali v. Republic Court of Appeal of Kenya at Mombasa (2006)

Sexual violence and rape

The appellant was charged with rape and alternatively with indecent assault. He was acquitted of rape but convicted of indecent assault and sentenced to 10 years imprisonment with hard labor. The complainant is a local brewer of an illicit beverage called "changaa," which she was arrested for on November 12, 2002. She offered a bribe to the arresting officers, but could not pay the price they demanded (5,000 KSH). At the police station, the officers accepted the 1,000 KSH bribe she had offered earlier and released her to get another 4,000 KSH to exchange for the five liters of changaa she was arrested for possessing. The police officers sent her home with the appellant, who threatened her with a knife and raped her. The trial court found the complainant credible and very honest, but acquitted the accused on the rape charge because sexual offenses require corroboration. In this case, the magistrate judge stated that the complainant's testimony needed to be corroborated with medical evidence or by the police officers who released the complainant with the appellant. However, this was an error of law, as the superior court and Court of Appeal both stated in their decisions on the accused's appeals. The Court upheld the conviction on the ground that while sexual offenses usually require corroboration of the complainant's testimony, in cases where the judge is satisfied of the complainant's veracity or where the complainant's testimony can be corroborated with circumstantial evidence, a conviction can be made. The Court of Appeal added that, in its view, the appellant's acquittal on the charge of rape was incorrect.



Republic v. Chiledzelere High Court of Malawi (2007)

Gender-based violence in general, Sexual violence and rape

The accused was convicted of attempted rape and sentenced to five years imprisonment with hard labor for accosting the complainant and assaulting her with the intent to have intercourse with her before he was prevented from doing so by the arrival of the witness. The appeal was dismissed because the accused's actions in fondling the complainant and tearing her underwear provided clear evidence of his intent.  The sentence was upheld because of the aggravating factors that the accused was told that the complainant was a married woman and the traumatic effect of the tearing of the woman's underwear.  [Note: International legal standards do not discriminate on the basis of marital status in determining the gravity of a rape.]



Mulundi v. Republic Court of Appeal of Kenya at Machakos (2005)

Gender violence in conflict, Sexual violence and rape, Statutory rape or defilement

The appellant was convicted of defilement of a girl under the age of 14 years and sentenced to 14 years imprisonment with ten strokes of the cane.  The appellant appealed his conviction and the sentence as being excessive for a first offense. The Court dismissed the appeal of the conviction as the complainant identified the appellant and medical evidence is no longer necessary to convict an accused if the evidence was sufficiently cogent.  The "defilement" conviction was substituted with rape and the appellant was sentenced to ten years imprisonment.  



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. 



Murunga v. Republic Court of Appeal of Kenya at Nakuru (2008)

Sexual violence and rape

The appellant was charged and convicted of three counts of robbery with violence and one count of rape, with the charge of rape stating that the appellant "jointly with another not before the court" had carnal knowledge of the complainant. The trial court sentenced him to death for robbery with violence, which is a capital offense.  He appealed on the grounds that the rape charge was defective and that the police violated his constitutional rights because they held him for 24 days without bringing him to court.  The High Court dismissed his first appeal. However, hearing his second appeal, the Court of Appeal held that multiple men cannot jointly commit the offense of rape against one woman, so the offenders cannot be charged jointly.  The Court quashed the appellant's conviction for rape because each offender should have been charged on a separate individual count of rape.  The Court also quashed the robbery with violence conviction and sentence because the Constitution (sec. 72(3)) requires police to bring detainees accused of a capital offense to court within 14 days, but in this case police improperly held the appellant for 24 days without cause before bringing him to court.  The Court dismissed the state counsel's arguments that the length of the appellant's detention was a moot issue because he failed to raise it in earlier proceedings.  The Court stated that it is the responsibility of the prosecuting authorities to justify any delay and a judge's duty to raise issues of unlawful detention if the defendant does not.



Republic v. Makaluni High Court of Malawi (2002)

Sexual violence and rape

The accused was convicted of rape and sentenced to four years' imprisonment.  The sentence was appealed by the judge who reviewed the lower court's decision because the reviewing judge found the sentence inadequate. The Court upheld the sentence, stating that it was not so excessively inadequate as to merit interference and taking note of the factors used in determining sentences for rape offenders: violence used to commit the rape, a repeated rape, a carefully planned rape, whether the defendant has previous convictions for rape or other serious offenses, whether the victim was subjected to any further sexual indignities, whether the victim was very young or very old, and the physical and mental effects upon the victim. The factors to warrant a harsher sentence were not judged to be present in this case, and the sentencing judge's decision was within his discretion.



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.  



Republic v. Mzungu High Court of Malawi (2007)

Sexual violence and rape, Statutory rape or defilement

The appellant was charged with defilement for having unlawful carnal knowledge of a girl under 13 years of age. The trial court convicted him of indecent assault because there was no penetration. He appealed his conviction for indecent assault because it was not included in the original charge. He also argued that his sentence was excessive. The Court dismissed the appeal of the conviction on the grounds that where the evidence is sufficient to sustain the lesser charge of indecent assault but may not be sufficient for defilement, the accused may be convicted of the lesser crime even when it was not included in the original charge. However, the Court upheld the appeal of the sentence and lowered it, despite of the fact that women and girls need to be protected, taking into account the mitigating factor of the appellant's youth.



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.



Republic v. Peter High Court of Malawi (2008)

Statutory rape or defilement

The appellant was found guilty of defiling a girl under 13 years of age and appealed on the grounds that the sentence is excessive and that his taking care of his grandparents should be considered as a mitigating factor. The complainant had since been diagnosed with a sexually transmitted infection and medical examinations revealed multiple instances of sexual abuse. The appellant testified that neither he nor his wife had a sexually transmitted infection, but the Court did not find this claim persuasive because neither of them had been tested (neither took the initiative to be tested and the government could not force them to be tested). The Court dismissed the appeal and upheld the sentence, considering the harm done to the complainant in infecting her with a sexually transmitted infection.



Ochieng v. Republic High Court of Kenya of Kisii (2008)

Sexual violence and rape, Statutory rape or defilement

The appellant was charged and convicted of defilement and indecent assault of a six-year-old girl.  He was sentenced to 10 years imprisonment on the first count and five years imprisonment for the second.  He appealed on the grounds of insufficient evidence to sustain a conviction and an excessive sentence. The Court affirmed the convictions because the six-year-old complainant described the incident in detail, the medical evidence was corroborative, and the appellant's abrupt and unexplained disappearance after the incident was also properly considered corroborative evidence.  The Court also held that the sentences were not excessive. 



Wafula v. Republic High Court of Kenya at Bungoma (2005)

Sexual violence and rape, Statutory rape or defilement

The appellant was charged and convicted of raping the complainant, a girl of 15 years, with his friend.  The appellant appealed on four grounds: (1) that the complainant was so young that the court needed to have first satisfied itself that the complainant possessed sufficient intelligence to justify the reception of her evidence, (2) that the court convicted him solely based on the testimony of one witness, (3) that the sentence was manifestly harsh and unfair, and (4) that the prosecution in this case failed to adhere to the requirement that a charge of rape must contain the words "unlawful" and "without consent". The Court dismissed the first three grounds, stating that 15 years did not make the complainant too young to give uncorroborated evidence, as would otherwise be required in sexual offenses.  However, the Court quashed the conviction because the rape charge did not contain the words "unlawful" and "without consent," which are necessary to any charge of rape.



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. 



Sekoto v. Director of Public Prosecutions Court of Appeal of Botswana at Lobatse (2007)

Domestic and intimate partner violence

The appellant appeals his conviction for the murder of his live-in girlfriend and his sentence of 12 years imprisonment.  The Court upheld the sentence, noting the increasing incidence in Botswana of former lovers killing their partners and opining that the courts should impose appropriately stiff sentences as a deterrent. 



Makuto v. State Court of Appeal for Botswana at Lobatse (2000)

Sexual violence and rape

The appellant appealed his conviction for rape, arguing that the Penal Code sections dealing with rape are discriminatory because they provide increased penalties for a person convicted of rape if they are found to be HIV-positive.  The Court held that the relevant provisions of the Penal Code apply when the convicted person was HIV-positive at the time he committed the rape and that it is therefore a reasonable provision in order to combat the spread of HIV/AIDS.   



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. Matlho Court of Appeal of Botswana (2008)

Gender-based violence in general, Sexual violence and rape

The appellant challenged the sentence for rape under the sections of the Penal Code that set forth mandatory minimum sentences for rape charges depending on circumstances such as the perpetrator's use of violence or the perpetrator's status as being HIV positive. Section 142(5) of the Penal Code prohibits a sentence for rape from running concurrently with any other offense; the sentences must be served consecutively.  The appellant was convicted on two counts of rape and sentenced to the mandatory minimum sentence of 10 years for each count, resulting in a total of 20 years imprisonment, which he claimed was a violation of the constitutional prohibition on "torture or inhuman or degrading punishment."  The Court upheld the conviction, noting that although it was undeniably severe, it was not disproportionate to the offense, especially in light of the increase in the incidence of rape in Botswana and the heinous nature of rape itself.



Legislation

Penal Code 2014: Lei nº 35/2014 (2014)

Abortion and reproductive health rights, Domestic and intimate partner violence, Sexual violence and rape

The Code defines certain crimes and their penalties. The Code includes provisions defining and prohibiting sexual assault and domestic violence. The Code legalizes abortions performed within 12 weeks of gestation. The Code also eliminates attenuating circumstances previously associated with the crime of rape, such as the possibility of acquittal in cases where the perpetrator married the victim. In addition, the Code decriminalizes prostitution.



Lei de Prevenção e Combate ao Tráfico de Pessoas: Lei nº 6/2008 (Law to Prevent Trafficking and Combat in Persons) (2008)

Trafficking in persons

The law defines and prohibits human trafficking. The penalty for human trafficking is 16 - 20 years imprisonment. Longer prison sentences are recommended when the victim is a woman or a child. The law provides that victims can benefit from witness protection measures and other forms of assistance, such as medical services and counseling.



Lei Sobre a Violência Doméstica Praticada Contra a Mulher: Lei nº 29/2009 (Law on Domestic Violence Against Women) (2009)

Domestic and intimate partner violence, Sexual violence and rape

The law defines and prohibits acts of domestic violence, including sexual and moral violence, which do not result in death. Moral violence consists of publishing content that offends the honor or character of a woman. The penalty for domestic violence is established according to the rules of the national Penal Code. The law also includes community service as a potential penalty. The penalty for “non-consensual sex” is six months to two years imprisonment. The penalty may be increased if the perpetrator maintained sexual relations with the victim despite being aware that he was infected with HIV. However, lawmakers chose not to include an article in the law which would have prohibited traditional practices that violate women’s sexual and reproductive rights (e.g. the traditional practice whereby widows must marry their deceased husband’s brother).



Decreto Lei No 2.848 (1940)

Abortion and reproductive health rights, Gender discrimination

Under this law it is illegal to kill a child during pregnancy, during childbirth, or shortly afterwards. Under Article 124 to provoke abortion in itself or to allow others to provoke it, is illegal. Under Article 125 to proceed with abortion, without the consent of the pregnant woman is illegal. It is illegal under Article 126 to provoke abortion with the consent of the pregnant woman. Brazilian law only allows abortion if the woman’s life is at risk, if the pregnancy resulted from rape, or if the foetus has an anencephaly. However, the issue of legalizing abortion has been taken to the Supreme Court and may be reformed soon.



Lei Nº 9.029 (1995)

Abortion and reproductive health rights, Employment discrimination, Gender discrimination

This law prohibits any discrimination that is based upon gender, race, colour, marital status, family status or age. Article 1 prohibits any discriminatory and limiting practice for the effect of access to employment, or their maintenance, by reason of sex, origin, race, colour, marital status, family situation or age (except in the protection of the child). Article 2 prohibits any discriminatory practices such as i) requiring a test, examination, skill, award, attestation, declaration or any other procedure concerning sterilization or pregnancy, ii) the adoption of any measures, at the initiative of the employer that constitute induction, promotion of birth control. The Act provides for the detention of one to two years and a fine.



Trafficking in Persons (Prevention, Suppression and Punishment) (2009)

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

This Act prescribes measures to prevent and combat trafficking in persons with particular regard to victims who are women and children, and aims to assist victims of trafficking and facilitating efficient investigation of cases of trafficking. The offence of trafficking is committed if a person recruits, transports, transfer, harbors or receives another person within Jamaica, from Jamaica to another country, or from another country to Jamaica. A person found guilty of an offence in terms of the Act is liable to a fine or imprisonment for a term not exceeding 20 years.



The Women (Employment of) Act (1942)

Employment discrimination, Gender discrimination

This Act prohibits the employment of women in night work save in certain circumstances. Night work is recognized in the Act as “work in an industrial undertaking during the night.” The total hours of employment of women for both day and night work shall not exceed 10 hours in a 24 hour period. To ensure compliance with the Act and that no exploitation of women occurs, the Act provides for powers of inspection in industrial undertakings, and where it is found that an industrial undertaking obstructs any inspection or is guilty of an offence under this Act, it will be liable to a fine for summary conviction and in a default of payment thereof, imprisonment for a term not exceeding three months. If a proprietor or manager of an industrial undertaking is found to be in contravention of the provisions of the Act, such person will be liable to imprisonment for a term not exceeding six months.



Offences Against the Person Act (2010)

Abortion and reproductive health rights, Trafficking in persons

The Offences against the Person Act lists acts recognized in law as punishable offences and details the ways in which the law deals with the offenders under the said acts. Child stealing is recognized as a felony and any person convicted for child stealing shall be imprisoned for a term not exceeding seven years. Kidnapping is recognized as a felony and any person convicted shall be liable to imprisonment for life. Attempts to procure abortion (by virtue of the pregnant woman unlawfully administering any substances to terminate her pregnancy by whatsoever means) is recognized as a felony and shall be liable for imprisonment for life. Infanticide (the act by which a woman willfully causes the death of her child under the age of twelve months) is a punishable offence recognized as the offence of manslaughter of a child.



Child Pornography (Prevention) Act of 2009 (2009)

Statutory rape or defilement, Trafficking in persons

The Child Pornography (Prevention) Act prohibits the production, distribution, importation, exportation or possession of child pornography and the use of children for pornography A “Child” is a male or a female person under the age of 18 years. Child pornography constitutes any visual representation, any audio recording or written material depicting engagement of a child in sexual activity or depicts body parts of child for sexual purposes, or depicts a child subject to torture, cruelty, or physical abuse of a sexual context. A person who has custody of, charge or care of a child and knowingly causes or incites the involvement of a child in the production of child pornography commits an offence and will be liable for a fine or to imprisonment (or both) for a term not exceeding 15 years. The production or distribution of child pornography carries a penalty of imprisonment for a term not exceeding 20 years. Possession of child pornography carries a penalty of a fine or imprisonment (or both) for a term not exceeding 8 years. The receipt of any financial benefit from any offence in terms of the act carries a penalty of a fine or imprisonment (or both) for a term not exceeding 20 years. The act preserves the identity of the victims, thereby preventing any disclosure in relation to the victim. Any person that publishes information in contravention of the act shall be liable for a fine not exceeding one million dollars or imprisonment for a maximum period of 12 months. 



Sexual Offences Act of 2011 (2009)

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

The Sexual Offences Act specifically outlaws many sex-based crimes, including rape, sexual assault, marital rape, sexual touching or interference, inducing or encouraging the violation of a child, indecent assault, violation of persons suffering from mental or physical disabilities, forcible abduction, procuration, unlawful detention with the intent to have sexual intercourse, and living on earnings of prostitution.  It also amended certain laws and standards regarding consent.  It abolished the common law presumption that a boy under fourteen years of age could not commit rape, and further noted that consent is “immaterial” in any offences involving a child.  The Act restricts evidence that can be brought at rape trials, specifically preventing the complainant from being asked about his or her sexual history.  It preserves the possibility of anonymity for persons bringing claims under the Sexual Offences Act.  Finally, it creates a sex offender registry and mandates registration for persons convicted of sexual offences.



Criminal Justice Administration Act of 2009 (2009)

Sexual violence and rape, Statutory rape or defilement

Section 23 of the Criminal Justice Administration Act states that proceedings regarding accusations of certain crimes shall be held in camera (privately).  These crimes include rape, grievous sexual assault, marital rape, sexual intercourse with a person under age sixteen, indecent adult, or involvement in prostitution.



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.



Art. 28b of the Swiss Civil Code: Domestic Violence, Threats or Harassment (2019)

Domestic and intimate partner violence, Property and inheritance rights

This article provides that in order to obtain protection from violence, threats or harassment, a person (the “applicant”) may request a court to order the offending party to refrain from approaching the applicant or the applicant’s home, contacting and harassing the applicant, and frequenting specific locations. If the applicant lives in the same dwelling as the offending party, the applicant may ask the court to order the offending party to leave the dwelling for a specified period, which may be extended on one occasion for good cause. The statute further provides that, when justified by the circumstances, the court may require the applicant to pay reasonable compensation for his or her exclusive use of the dwelling, or, with the landlord’s consent, transfer the rights and obligations under the lease to the applicant alone. The statute requires the Swiss Cantons to designate an authority and to enact rules for the immediate expulsion of the offending party from the joint dwelling in urgent cases.



Schweizerisches Strafgesetzbuch/Swiss Penal Code, Article 264e: War Crimes (2019)

Forced and early marriage, Forced sterilization, Gender violence in conflict, International law, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Art. 264e provides for a criminal penalty of not less than three years for any person who commits certain specified offenses in connection with an armed conflict, including (among other things) raping a person of the female gender protected by international humanitarian law or, after she has been forcibly made pregnant, confining her unlawfully with the intent of affecting the ethnic composition of a population, forcing a person to tolerate a sexual act of comparable severity or forcing a person protected by international humanitarian law into prostitution or to be sterilized.  In especially serious cases, and in particular where the offense affects a number of persons or the offender acts in a cruel manner, life imprisonment may be imposed. In less serious cases, imprisonment of not less than one year may be imposed. Unofficial English translation available here.



Schweizerisches Strafgesetzbuch/Swiss Penal Code, Article 264a: Crimes Against Humanity (2019)

Forced and early marriage, Gender violence in conflict, International law, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Provides for a criminal penalty of not less than five years for any person who commits certain specified offenses as part of a widespread or systematic attack directed against any civilian population, including (1) assuming and exercising a right of ownership over a person, in particular in the form of trafficking in persons, sexual exploitation or forced labor; and (2) raping a person of the female gender or, after she has been forcibly made pregnant, confining her unlawfully with the intent of affecting the ethnic composition of a population, forcing a person to tolerate a sexual act of comparable severity or forcing a person into prostitution or to be sterilized. Unofficial English translation available here.



Schweizerisches Strafgesetzbuch/Swiss Penal Code, Article 213: Incest (2019)

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

Provides for criminal penalties of imprisonment for not more than three years or a monetary penalty for any person who has sexual intercourse with a blood relative in direct line or with a brother or sister, or a half-brother or half-sister.



Schweizerisches Strafgesetzbuch/Swiss Penal Code, Article 197: Aggravated Pornography (2019)

Sexual violence and rape, Statutory rape or defilement

Provides for criminal penalties of imprisonment for not more than three years or a monetary penalty for, among other things, a person who recruits or causes a minor to participate in a pornographic performance, or for any person who produces, imports, stores, markets, advertises, exhibits, offers, shows, passes on or makes accessible to others or possesses pornography that contains sexual acts involving animals, acts of violence involving adults or non-genuine sexual acts with minors.  For pornography containing genuine sexual acts with minors, the penalty is imprisonment for not more than five years or a monetary penalty.  Criminal penalties are also provided for persons who obtain or produce such pornographic materials for their own use. Unofficial English translation available here.



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.



Schweizerisches Strafgesetzbuch/Swiss Penal Code, Article 188: Endangering the Development of Minors/Sexual Acts with Dependent Persons (2019)

Sexual violence and rape, Statutory rape or defilement

Art. 188 provides for criminal penalties of imprisonment for not more than three years or a monetary penalty for any person who sexually exploits his or her relationship with a minor over the age of 16 (which is the age threshold for statutory rape under Penal Code Art. 187) who is dependent on him or her due to a relationship arising from the minor's education, care or employment or another form of dependent relationship, or for any person who encourages such a minor to commit a sexual act by exploiting such a relationship. Unofficial English translation available here.



Schweizerisches Strafgesetzbuch/Swiss Penal Code, Article 182: Trafficking in Human Beings (2019)

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

Art. 182 provides for criminal penalties of imprisonment or a monetary penalty for any person who as a supplier, intermediary or customer engages in the trafficking of a human being for the purpose of sexual exploitation, exploitation of his or her labor or for the purpose of removing an organ. If the victim is a minor or if the offender acts for commercial gain, the penalty is imprisonment for not less than one year.  In every case, a monetary penalty must also be imposed.  The statute also provides that the soliciting of a person for these purposes is equivalent to trafficking, and that any person who commits the act abroad is also guilty of an offense. Unofficial English translation available here.



Schweizerisches Strafgesetzbuch/Swiss Penal Code, Articles 118 and 119: Illegal Abortion and Legal Abortion (2019)

Abortion and reproductive health rights

Art. 118 provides for criminal penalties of imprisonment for not more than five years or a monetary penalty for any person who terminates a pregnancy with the consent of the pregnant woman or incites or assists a pregnant woman to terminate her pregnancy without the requirements of Penal Code Art. 119 being met. Article 118 also provides for (1) imprisonment from one to 10 years for any person who terminates a pregnancy without the consent of the pregnant woman, and (2) imprisonment for not more than three years or a monetary penalty for any woman who has her pregnancy terminated or otherwise participates in the termination of her pregnancy following the end of the twelfth week and without the requirements of Penal Code Art. 119 being met. Article 119 provides the requirements for legal abortion. The termination is, in the judgment of a physician, necessary in order to be able to prevent the pregnant woman from sustaining serious physical injury or serious psychological distress. The risk must be greater the more advanced the pregnancy is, or the termination must be performed (1) at the written request of a pregnant woman within 12 weeks of the start of the woman’s last period, (2) by a physician who is licensed to practice his profession, and (3) the woman claims that she is in a state of distress. The physician must have a detailed consultation with the woman prior to the termination and provide her with appropriate counsel. If the woman is incapable of judgment, the consent of her legal representative is required. The statute directs the Swiss Cantons to designate the medical practices and hospitals that fulfill the requirements for the professional conduct of procedures to terminate pregnancy and for the provision of counsel. Unofficial English translation available here.



Schweizerisches Strafgesetzbuch/Swiss Penal Code, Article 67: Prohibition on carrying on an activity involving regular contact with minors following sentencing for certain offenses (2019)

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

This article provides that a person who is sentenced to a custodial sentence of more than six months or to indefinite incarceration or involuntary commitment for offenses committed during the exercise of a professional activity or organized non-professional activity shall be prohibited from carrying on the exercise when it involves regular contact with any minors for 10 years. The offenses include: statutory rape or other child sexual abuse, rape and sexual coercion, child pornography, encouraging prostitution, and human trafficking. Unofficial English translation available here.



Schweizerisches Strafgesetzbuch/Swiss Penal Code, Article 66a: Mandatory expulsion of foreign nationals for female genital mutilation and certain other offenses (2019)

Female genital mutilation or female genital cutting, International law, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Article 66a provides that a foreign national shall be expelled from Switzerland for a period of five to 15 years if they are convicted of, among other things, female genital mutilation (Penal Code Art. 124, para. 1), forced marriage or forced registered partnership (Penal Code Art. 181a), trafficking in human beings (Penal Art. 182), sexual acts with children (Penal Code Art. 187, para. 1), sexual coercion (Art. 189), rape (Art. 190), sexual acts with persons incapable of judgement or resistance (Art. 191), encouraging prostitution (Art. 195), aggravated pornography (Art. 197, para. 4, second sentence – pornography containing genuine sexual acts with minors), genocide (Art. 264), crimes against humanity (Art. 264a), serious violations of the Geneva Convention of 1949 (Art. 264c), and other war crimes (Art. 264d and 264h). Unofficial English translation available here. 



Schweizerisches Strafgesetzbuch/Swiss Penal Code, Article 5: Offenses against minors (2019)

Statutory rape or defilement, Trafficking in persons

Art. 5 provides that the Swiss Penal Code also applies to any person who is in Switzerland, is not being extradited, and has committed any of the following offenses abroad: (1) Trafficking in human beings (Penal Code Art. 182), sexual coercion (Penal Code Art. 189), rape (Penal Code Art. 190), sexual acts with a person incapable of proper judgment or resistance (Penal Code Art. 191) or encouraging prostitution (Penal Code Art. 195) if the victim was less than 18 years of age; (2) sexual acts with dependent persons (Penal Code Art. 188) and sexual acts with minors against payment (Penal Code Art. 196); (3) sexual acts with a child (Penal Code Art. 187) and sexual acts with a minor of age less than 14; or (4) aggravated pornography (Penal Code Art. 197, para. 3 and 4) if the objects or representations depict sexual acts with minors. Unofficial English translation available here.



Straftwek van België/Code pénal de Belgique (Criminal Code of Belgium)

Female genital mutilation or female genital cutting

Article 409 of the Belgian Criminal Code criminalizes (i) the execution or facilitation of female genital mutilation which is penalized with imprisonment, ranging from three to five years, and (ii) the attempt, incitement, advertising or the spreading of advertisements, which is penalized with imprisonment ranging from eight days to one year. The Article includes several aggravating circumstances, which will increase the severity of the punishment.



Criminal Code Act of 1995 (2018)

Forced and early marriage, Trafficking in persons

Division 270 of the Criminal Code Act prohibits slavery and slavery-like offenses. Section 170.1A defines these offenses and related terms including coercion, forced labor, and forced marriage. Section 270.2 specifies that slavery offenses are unlawful, whether committed inside or outside of Australia. Section 270.4 criminalizes servitude offenses, 270.6A criminalizes forced labor offenses, section 270.7B criminalizes forced marriage offenses, section 270.8 criminalizes slavery-like offenses, 271.2 criminalizes trafficking in persons, 271.4 criminalizes trafficking in children, and 271.5 criminalizes domestic trafficking in persons. Section 270.11 clarifies that for all above offenses it is not a defense that a person consented to or acquiesced to prohibited conduct.



Prevention and Combating of Trafficking in Persons Act (2013)

Forced and early marriage, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

The Act defines and prohibits human trafficking. The PCTP Act adopts a broad definition of human trafficking, namely, that a person is guilty of human trafficking if he or she delivers, recruits, transports, transfers, harbours, sells, exchanges, leases or receives another person, through various means, including the use of force, deception, or coercion, aimed at the person or an immediate family member for the purpose of exploitation. Furthermore, a person who adopts a child, facilitated or secured through legal or illegal means; or concludes a forced marriage with another person, for the purposes of exploitation of that child or person, is guilty of an offence. The PCTP Act criminalizes various acts that constitute or relate to trafficking in persons and imposes harsh penalties, including life imprisonment for trafficking in persons; 15 years’ imprisonment for engaging in conduct that causes a person to enter into debt bondage or benefiting from services of a trafficking victim; and 10 years’ imprisonment for facilitating trafficking. The PCTP Act also provides for severe fines and enables the state to confiscate the assets of traffickers.



Criminal Law Amendment Act No. 105 (1997)

Sexual violence and rape

Section 51 of the Act provides for certain mandatory sentences and sentencing guidelines which a regional court or high court may impose and consider for, inter alia, rape and compelled rape (minimum sentences may be reduced for compelling and substantial circumstances). The Act specifically provides that when considering imposing a sentence in respect of the offence of rape, a court must not consider the following circumstances as constituting compelling circumstances to deviate from the minimum sentencing guidelines: the complainant’s sexual history, lack of physical injury, culture or religious beliefs of accused or any relationship of the parties prior to assault.



Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (2007)

Sexual violence and rape

The Act was adopted to comprehensively and extensively deal with all sexual offences under a single statute. The act, inter alia, repeals the common law offences of rape and replaces it with an expanded definition of rape applicable to all form of sexual penetration without consent irrespective of gender and repeals other common law offences related to indecent assault and penetration and replaces them with broader statutory offences. 



Sexual Offences Act (1998)

Sexual harassment, Sexual violence and rape, Trafficking in persons

The Sexual Offences Act recognizes in its preamble that women are particularly vulnerable to becoming victims of sexual offences, particularly adult prostitution. The Act prohibits prostitution, the operation of brothels, and other activities related to prostitution and brothel-keeping.



Domestic Violence Act and the Domestic Violence Regulations (1999)

Domestic and intimate partner violence

The Domestic Violence Act and the Domestic Violence Regulations promulgated thereunder offer complainants (any person in a domestic relationship who alleges she/he is the subject of domestic violence, including a child in the care of the complainant) the maximum protection possible from domestic abuse by imposing obligations on the police and other organs of state to prevent and assist the elimination of domestic violence (defined as including, inter alia, sexual abuse, physical abuse, stalking and harassment). Persons deemed to be in a domestic relationship include, inter alia, persons married by any law or custom, persons living (or who recently lived) together, parents of a child and parties in a romantic or sexual relationship. The Act allows any complainant to obtain a protection order against a respondent by application to the court and allows for interim orders to be granted without the respondent having received notice of such application in certain circumstances. When granting a protection order the court must make an order for the arrest of the respondent and may make an order to confiscate any weapons in the respondent’s possession.



China National Plan of Action on Combating Trafficking in Women and Children (2013)

Trafficking in persons

In March 2013, the State Council of China updated the China National Plan of Action to Combat Trafficking in Women and Children (2008-2012). The stipulated goal for this national plan is to reduce the occurrence of human trafficking and to improve the network to prevent human trafficking crimes. This national plan provides guiding opinions on various topics relevant to human trafficking, including but not limited to, cracking down on prostitution, increasing support for rural populations in low-income areas, guaranteeing nine-year compulsory education for all school-age children and adolescents, improving the protection mechanism for homeless minors, encouraging rural women to work, and encouraging the following people to find employment: people with disabilities, urban unemployed women, female college students and abducted women and trafficking victims who have been rescued.



Termination of Pregnancy Act (1977)

Abortion and reproductive health rights

if the continuation of the pregnancy is a serious threat to the mother’s health; (iii) if there is a serious risk that, if the child is born, it will suffer from a physical or mental defect that will cause the child to be severely disabled; (iv) where the pregnancy is a result of unlawful intercourse. Unlawful intercourse includes rape (this does not include marital rape), incest and mental handicap. However, a legal abortion can only be performed by a medical practitioner in a designated institution with the written permission of the superintendent of the institution. In cases where the mother’s life is in danger, the superintendent will not give permission until they have two different medical opinions regarding the danger to the mother. In circumstances of rape/incest, the superintendent must give permission after he receives written confirmation from a magistrate that the woman complained about the rape or the incestuous conduct. Contravention of the act by a medical practitioner in terminating a pregnancy or superintendent in providing permission not in accordance with the TPA constitutes an offense for which they could be liable for a fine not exceeding USD 5000, and/or to imprisonment for a period not exceeding five years.



The Domestic Violence Act (2007)

Domestic and intimate partner violence, Harmful traditional practices

The DVA protects and provides relief for victims of domestic violence. It defines and prohibits domestic violence in the form of physical, emotional, sexual, and economic abuse as well as acts of abuse derived from any cultural or customary practices that discriminate against or degrade women. Examples include, but are not limited to, forced virginity testing, female genital mutilation, pledging women and girls to appease spirits, forced marriage, child marriage, forced wife inheritance or sexual intercourse between fathers-in-law and newly married daughters-in-law. The penalty for committing an act of domestic violence as defined under section 3 is a fine not exceeding USD 5,000 and/or imprisonment for a period not exceeding ten years. The DVA also imposes duties on the police. Stations must have, where possible, one police officer with domestic violence expertise. Further, a police officer who receives a complaint of domestic violence must advise the complainant about how to obtain shelter or medical treatment and about their right to seek relief under the DVA. The DVA also requires that complaints made to police officers should be taken by officers of the same sex as the complainant, if complainant so requests.  Moreover, police officers have the authority to arrest a person suspected of committing an act of domestic violence without a warrant and bring that person before a magistrate within 48 hours. Finally, the DVA provides for protection and relief to survivors of domestic violence by enabling them to apply for a protection order when an act of domestic violence has been committed, is being committed, or is threatened. It also allows someone acting with the consent of the complainant to make an application for a protection order on his or her behalf with the leave of the court. A person who fails to comply with a protection order is guilty of an offense and liable for a fine not exceeding USD 200 and/or imprisonment for up to five years.



Criminal Offenses: Child Pornography Prohibited

Statutory rape or defilement

This statute prohibits production, reproduction, distribution, transfer and knowing possession of child pornography through any medium, device or format.



Criminal Offenses: First Degree Sexual Assault

Sexual violence and rape

A person is guilty of first degree sexual assault if he or she engages in sexual penetration with another person, and the accused: not being the spouse, knows or has reason to know that the victim is mentally or physically incapacitated; or the accused uses force, coercion, stealth, or surprise; or engages in medical treatment or examination for sexual purposes.



Criminal Offenses: First Degree Child Molestation Sexual Assault

Statutory rape or defilement

A person is guilty of first-degree child molestation sexual assault if he or she engages in sexual penetration with a person 14 years of age or under.



Domestic Relations: Domestic Abuse Prevention (General Laws of Rhode Island)

Domestic and intimate partner violence

The definition of domestic abuse in Rhode Island includes (i) attempting to cause or causing physical harm, (ii) placing another in fear of imminent serious physical harm, (iii) causing another to engage involuntarily in sexual relations by force, threat of force, or duress, and (iv) stalking or cyberstalking when the perpetrator and victim are present or former family members, including stepparent and dating relationships.



Criminal Offenses: Stalking (General Laws of Rhode Island)

Stalking

This statute makes it illegal to harass or to knowingly and repeatedly follow another person with the intent to place that person in reasonable fear of bodily injury. Under the statute, stalking is a felony, punishable by imprisonment for not more than five years, by a fine of not more than $10,000, or both.



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.



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: Arrest without a warrant authorized in cases of assault and battery against a family or household member and stalking and for violations of protective orders; procedure, etc. (Va. Code § 19.2-81.3)

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

This Virginia law allows officers to make an arrest without a warrant in certain cases of assault and battery, or stalking, against a family or household member. Instead of a warrant, the arrest must be based on probable cause, the officer’s personal observations, the officer’s investigation, or a reasonable complaint from a witness.



Code of Virginia: Stalking; penalty (Va. Code § 18.2-60.3)

Stalking

Virginia law prohibits that any person, except law enforcement officers acting in the capacity of the official duties, and registered private investigators acting in the course of their legitimate business, who on more than one occasion engages in conduct with the intent to place, or when that person knows or reasonably should know that the conduct places another person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person or to that other person’s family or household member is guilty of a Class 1 misdemeanor. If the person contacts or follows or attempts to contact or follow the person after being given actual notice that the person does not want to be contacted or followed, such actions are a prima facie evidence that the person intended to place that other person, or reasonably should have known that the other person was placed, in reasonable fear of death, criminal sexual assault, or bodily injury to himself or a family or household member.



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.



Code of Virginia: Abortion (Va. Code § 18.2 et seq.)

Abortion and reproductive health rights

Under Virginia law, it is a Class 4 felony to cause destruction of a unborn child, abortion, or miscarriage through medical procedure, drugs, or other means. There is an exception for physicians who are licensed by the Board of Medicine to practice medicine and surgery, to terminate a pregnancy or assist in performing an abortion or causing a miscarriage during the first trimester of pregnancy, among other exceptions.  Informed written consent is required for an abortion under Virginia law, subject to civil penalties.  It is also a Class 3 misdemeanor to encourage an individual to have an abortion prohibited by Virginia law.



Cavanaugh v. Cavanaugh (2014)

Domestic and intimate partner violence, Sexual harassment, Stalking

An man appealed his restraining order, which prevented him from contacting his ex-wife, arguing that the lower court did not properly establish a finding of domestic abuse despite his ex-wife’s testimony that he repeatedly used vulgar and threatening language towards her, at times placing her in fear of physical harm. The Rhode Island Supreme Court upheld the restraining order and underlying finding of domestic abuse, citing the definition of domestic abuse in Title 15, Chapter 15 of the General Laws of Rhode Island: “Among the acts specified in . . . the statute as constituting ‘domestic abuse’ is ‘stalking,’ [which means] ‘harassing another person.’” Because the court found that the ex-husband was “harassing” (and thus “stalking”) his ex-wife, the ex-husband’s conduct fell within the plain meaning of the statute defining domestic abuse. This case is important because it provides that the “unambiguous language” of Rhode Island’s domestic abuse statute does not require a finding of actual physical harm or threats of physical harm as a predicate for domestic abuse—other harassing language is enough.



Duty to Report Sexual Assault (Title 11, Chapter 37, General Laws of Rhode Island)

Sexual violence and rape, Statutory rape or defilement

Under Rhode Island’s statute criminalizing sexual assault, anyone other than the victim with  knowledge or reason to know that a first-degree sexual assault or attempted first-degree sexual assault is taking place or has taken place shall immediately notify the police. Anyone who knowingly violates this statute is guilty of a misdemeanor punishable by imprisonment for no more than one year, a $500 fine, or both (§ 11-37-3.3.).



Uniform Act on Prevention of and Remedies for Human Trafficking (Chapter 11, General Laws of Rhode Island)

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

This law makes it a felony to knowingly engage in, or benefit from, knowing participation in recruiting, enticing, harboring, transporting, providing, or obtaining by any means another person, intending or knowing that the person will be subjected to forced labor in order to commit a commercial sexual activity. The statute also mandates the creation and composition of a council on human trafficking to provide victims services, analyze human trafficking in Rhode Island, conduct a public awareness campaign, coordinate training on human trafficking prevention and victim services for state and local employees. It creates an affirmative defense to prostitution charges for victims of human trafficking, enumerates aggravating factors, and outlines criminal procedure details.



Sexual Assault - Prior sexual conduct of the complainant - Admissibility of Evidence (Title 11, Chapter 37, General Laws of Rhode Island)

Sexual violence and rape, Statutory rape or defilement

If a defendant who is charged with sexual assault intends to introduce evidence at trial that the victim has engaged in sexual activities with other persons, he or she must give prior notice to the court of the intention to introduce such evidence. The notice must be given orally and out of the hearing of any other spectators or jurors. Upon receiving such notice, the court must order the defendant to make a specific offer of the proof that he or she intends to introduce, and the court will rule on the admissibility of the evidence before it can be offered at trial. The purpose of this “rape shield” statute is to encourage victims to report crimes without fear of inviting unnecessary probing into the victim’s sexual history.



Sexual Assault - Prior sexual conduct of the complainant - Admissibility of Evidence (Title 11, Chapter 37, General Laws of Rhode Island)

Sexual violence and rape, Statutory rape or defilement

If a defendant who is charged with sexual assault intends to introduce evidence at trial that the victim has engaged in sexual activities with other persons, he or she must give prior notice to the court of the intention to introduce such evidence. The notice must be given orally and out of the hearing of any other spectators or jurors. Upon receiving such notice, the court must order the defendant to make a specific offer of the proof that he or she intends to introduce, and the court will rule on the admissibility of the evidence before it can be offered at trial. The purpose of this “rape shield” statute is to encourage victims to report crimes without fear of inviting unnecessary probing into the victim’s sexual history.



Combating of Immoral Practices Act (1980)

Sexual violence and rape, Trafficking in persons

The Combating of Immoral Practices Act aims to prevent and reduce prostitution and the existence of brothels.  The Act imposes a criminal penalty for keeping a brothel of imprisonment for a period not exceeding three years or imprisonment and a fine. The Act punishes procuring or attempting to procure any female to have unlawful carnal intercourse with imprisonment for a period not exceeding five years. The Act also imposes criminal sentences for offenses related to prostitution and various immoral acts, such as the owner or occupier of a property permitting such acts, living on earnings of prostitution, or enticing someone to commit an immoral act.



Affirmative Action (Employment) Act (1998)

Employment discrimination, Gender discrimination

The aim of this Act is to achieve equal employment opportunities through affirmative action plans to redress the conditions of designated persons in the Act who have been previously disadvantaged by past discriminatory laws and practices with the aim of eliminating discrimination in the workplace. The Act also establishes an Employment Equity Commission. Women are specifically mentioned as a designated group. An affirmative action plan achieves its purpose by obliging employers to make equitable efforts to accommodate and further the employment opportunities of those in designated groups. Employers must also fill positions of employment by giving priority and preferential treatment to those in designated groups. Where employers do not adhere to the Act, they may be referred to the Commission or to mediation, and may be placed under review. Furthermore, any person who discriminates against a person who has participated in the proceedings provided for in the Act, or obstructs or prevents compliance with the Act by any party, or fails to comply with certain provisions of the Act can be held criminally liable and on conviction be liable to a fine not exceeding N$16,000 or to imprisonment for a period not exceeding 4 years or both.



Abortion and Sterilization Act (1975)

Abortion and reproductive health rights, Forced sterilization

The Abortion and Sterilization Act (the “Act”) was adopted from South Africa and prohibits abortions, except in extreme circumstances where either: (i) the mother’s life is in danger; (ii) not having an abortion would constitute a serious threat to the mother’s mental health; (iii) there is a serious risk that the child will be born with physical and/or mental defects; or (iv) the child is a product of rape or incest. It also criminalizes performing abortions, except in the circumstances listed above. Finally, the Act states the circumstances in which sterilizations may be performed, including on people incapable of consent. 



The Combating Rape Act (2000)

Harmful traditional practices, Sexual violence and rape, Statutory rape or defilement

The Combating of Rape Act (the “Act”) seeks to prevent rape and provides minimum imprisonment sentences for rape. It also abolishes the previous law, which presumed that a boy under the age of 14 was incapable of rape and sexual intercourse. This Act also regulates the granting of bail to perpetrators to further protect the rights of the victim, and provides protection to victims of rape and sexual abuse. Finally, it abolishes the customary rule, common among rural areas, that marriage is a justification for, or a defense to, rape.  



The Combating Domestic Violence Act (2003)

Domestic and intimate partner violence

The Combatting of Domestic Violence Act (the “Act”) prohibits domestic violence, which it broadly defines to include physical abuse, sexual abuse, economic abuse, intimidation, harassment, entering the private residence of the complainant without consent, emotional, verbal or psychological abuse, and any threats of the above. Various types of relationships are also covered, including customary or religious marriages and relationships where the parties are not married. The Act amends the Criminal Procedure Act 1977, and allows courts to issue protection orders for victims and to punish perpetrators with a fine not exceeding N$8,000 and/or imprisonment not exceeding two years. 



Alabama Code Title 13A. Criminal Code § 13A-11-72 (2015)

Domestic and intimate partner violence

In 2015, Alabama amended its gun legislation to prohibit anyone who has been convicted of a misdemeanor offense of domestic violence or is subject to a domestic abuse protective order from possessing a firearm. The amended statute provides: “No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence, misdemeanor offense of domestic violence, violence offense as listed in Section 12-25-32(14), anyone who is subject to a valid protection order for domestic abuse, or anyone of unsound mind shall own a firearm or have one in his or her possession or under his or her control.”



Codice Penal (1930)

Domestic and intimate partner violence, Female genital mutilation or female genital cutting, Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The Italian Penal Code prohibits domestic violence (art. 572), female genital mutilation (art. 583), and harassment (art. 612). Punishable crimes against a person's freedom also include slavery and forced prostitution (art. 600), human trafficking (art. 601), and sexual violence (art. 609). Sexual acts coerced through violence, threats, or abuse of authority carry a prison sentence of five to 10 years. Aggravating factors in sexual violence cases include pregnancy, a victim under 14 years old, and use of a weapon. Sexual acts with a minor are not punishable when(1) the perpetrator is also a minor, (2) the minor is at least 13 years old, and (3) the age difference between the two is no more than three years (art. 609).



Código Penal (Penal Code) (2018)

Abortion and reproductive health rights, Domestic and intimate partner violence, Female genital mutilation or female genital cutting, Forced and early marriage, Gender-based violence in general, LGBTIQ, Sexual harassment, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Under section 142 (Crimes against people) of the Portuguese Penal Code, abortion is permitted if performed by a doctor and in the following scenarios: (1) risk of death or grave physical or mental harm to the mother; (2) the fetus is in risk of grave illness or malformation, up to the 24th week of pregnancy; (3) pregnancy was caused by rape or sexual assault, up to the 16th week of pregnancy; (4) by the mother’s choice, up to the 10th week of pregnancy. Article 118 provides that the statute of limitations on crimes of sexual violence and female genital mutilation against minors do not expire until the victim is at least 23 years old. Prostitution is not considered a crime in Portugal. However, the economic exploitation of prostitution by third parties is considered a crime under the Penal Code. A homicide that reveals “especial censurabilidade ou perversidade” (special censorship or perversity) is punishable with 12 – 25 years imprisonment. These special circumstances include a current or former spousal relationship between the perpetrator and victim, a sexual motive, and hate crimes including those based on sex, gender, sexual orientation, and gender identity. Article 144a bans female genital mutilation and imposes a prison sentence of two to 18 years. Articles 154b, 159, and 160 ban forced marriage, slavery, and human trafficking, respectively. Article 163 bans sexual coercion, which carries a sentence of one to eight years for coercing a significant sexual act. Article 164 punishes “violação”, which is forcible intercourse, with imprisonment for one to six years.



Código penal (Penal Code) (1999)

Abortion and reproductive health rights, Gender discrimination, Sexual violence and rape, Statutory rape or defilement

Chapter VI of Title 8 (Crimes against Life and Physical Integrity) delineates the circumstances under which abortion is illegal and establishes the penalties performing illegal abortions. Pursuant to Article 267 of the Criminal Code, anyone who, without complying with public health regulations established in respect of abortions, performs an abortion or in any way destroy the embryo, with the consent of the pregnant woman, is subject to a penalty of imprisonment for three months up to one year or a fine of 100 to 300 cuotas. If an abortion is performed (1) for profit, (2) outside of official institutions or (3) by a person that is a physician, such person is subject to an increased punishment of imprisonment for two to five years. Pursuant to Article 268, an individual who purposefully destroys the embryo (a) without using any force or violence on the pregnant woman, but without her consent, is subject to two to five years’ imprisonment or (b) with the use of any force or violence on the pregnant woman, is subject to three to eight years’ imprisonment. If concurrently with the occurrence of (a) or (b), any of the circumstances described in (1), (2) or (3) also exist, the punishment is increased to imprisonment for four to ten years. If a pregnant woman dies as a result of any of the above actions, the offending person is subject to imprisonment for a period of five to twelve years. Articles 270 and 271, respectively, prescribe the punishments for those who, without intending to do so, cause an abortion and for those who prescribe any abortion-inducing substance to destroy the embryo.

 

Chapter I of Title XI covers crimes against the normal development of sexual relations. Article 298 prescribes a penalty of four to ten years imprisonment for anyone who rapes a woman (either through vaginal intercourse or contra naturam) if during the criminal event any of the following circumstances occurs: (a) use of force or sufficient intimidation in order to achieve the goal or (b) if the victim is in a mentally disturbed state or suffers from temporary insanity, or the victim is deprived of reason or sense for any reason, or unable to resist, or lacks the ability to understand the consequences of her actions or to conform her conduct. Article 298 prescribes a term of imprisonment of 7 to 15 years if (a) the event is carried out with the participation of two or more persons, (b) if the perpetrator dresses up in military uniform or purports to be a public official, in each case, to facilitate consummating the act or (c) if the victim is over 12 and under 14 years of age. Finally, the Article prescribes a term of imprisonment of 15 to 30 years or the death penalty if (a) the event is carried out by a person who has previously been sanctioned for the same crime, (b) as a result of the act, the victim suffers serious injuries or illness, or (c) if the perpetrator knows that he is infected with a sexually transmitted disease. Anyone who rapes a minor who is under 12 years of age will be punished with either a term of imprisonment of 15 to 30 years or the death penalty, even if none of the circumstances described in the preceding sentence occur. Article 299 of the Criminal Code sanctions individuals guilty of “active” pedophilia. Any person who commits an act of “active” pedophilia using violence or intimidation, or by taking advantage of the fact that the victim is deprived of reason or sense or unable to resist, will be punished with imprisonment for seven to 15 years. Such penalty increases to 15 to 30 years or death if (a) the victim is a minor under 14 years of age, even if the circumstances set forth in the immediately preceding sentence are not present, (b) if, as a consequence of the criminal act, the victim suffers serious injuries or illness or (c) if the perpetrator has been previously sanctioned for the same crime.       

Article 295 imposes a punishment of imprisonment for a term of six months to two years or a fine of 200 to 500 cuotas, or both, to anyone who discriminates, or promotes or incites, discrimination, against another person, with manifestations in an offensive manner, on account of sex, race, color or national origin, or with actions to obstruct or impede, with motives relating to sex, race, color or national original, the exercise or enjoyment of rights of equality set forth in the Constitution. Any person who spreads ideas based on the superiority of races or racial hatred or commits, or incites, acts of violence against any race or group of people of another color or ethnic origin, shall be subject to the same punishment as indicated above. 

 

El Capítulo VI del Título 8 (Delitos contra la vida y la integridad física) describe las circunstancias bajo las cuales el aborto es ilegal y establece las sanciones por realizar abortos ilegales. En conformidad con el artículo 267 del Código Penal, cualquier persona que, sin cumplir con las normas de salud pública establecidas con respecto a los abortos, realice un aborto o destruya de cualquier modo el embrión, con el consentimiento de la mujer embarazada, está sujeta a una pena de prisión. Por tres meses hasta un año o una multa de 100 a 300 cuotas. Si se realiza un aborto (1) con fines de lucro, (2) fuera de las instituciones oficiales o (3) por una persona que es un médico, dicha persona está sujeta a un aumento de la pena de prisión de dos a cinco años. En conformidad con el Artículo 268, una persona que destruye a propósito el embrión (a) sin usar ninguna fuerza o violencia contra la mujer embarazada, pero sin su consentimiento, está sujeta de dos a cinco años de prisión o (b) con el uso de cualquier fuerza o violencia en la mujer embarazada, está sujeto de tres a ocho años de prisión. Si concurrentemente con la ocurrencia de (a) o (b), cualquiera de las circunstancias descritas en (1), (2) o (3) también existen, el castigo se incrementa a la prisión de cuatro a diez años. Si una mujer embarazada muere como resultado de cualquiera de las acciones anteriores, la persona ofensora está sujeta a prisión por un período de cinco a doce años. Los artículos 270 y 271, respectivamente, prescriben los castigos para aquellos que, sin la intención de hacerlo, causan un aborto y para aquellos que prescriben cualquier sustancia inductora del aborto para destruir el embrión.

 

El Capítulo I del Título XI cubre los delitos contra el desarrollo normal de las relaciones sexuales. El artículo 298 prescribe una pena de cuatro a diez años de prisión para toda persona que viole a una mujer (ya sea por coito vaginal o contra naturam) si durante el evento criminal ocurre alguna de las siguientes circunstancias: (a) uso de la fuerza o suficiente intimidación para: lograr la meta o (b) si la víctima está en un estado mentalmente perturbado o sufre de locura temporal, o si la víctima está privada de razón o sentido por cualquier razón, o no puede resistirse, o carece de la capacidad de entender las consecuencias de las acciones o para conformar su conducta. El artículo 298 prescribe un período de prisión de 7 a 15 años si (a) el evento se lleva a cabo con la participación de dos o más personas, (b) si el perpetrador se viste de uniforme militar o pretende ser un funcionario público, en en cada caso, para facilitar la consumación del acto o (c) si la víctima es mayor de 12 años y menor de 14 años. Finalmente, el artículo prescribe un período de prisión de 15 a 30 años o la pena de muerte si (a) el evento es llevado a cabo por una persona que ha sido sancionada previamente por el mismo delito, (b) como resultado del acto, la víctima sufre lesiones o enfermedades graves, o (c) si el autor sabe que está infectado con una enfermedad de transmisión sexual. Cualquier persona que viole a un menor de edad menor de 12 años será castigada con una pena de prisión de 15 a 30 años o con la pena de muerte, incluso si no ocurre ninguna de las circunstancias descritas en la oración anterior. El artículo 299 del Código Penal sanciona a las personas culpables de pedofilia "activa". Cualquier persona que cometa un acto de pedofilia "activa" mediante el uso de la violencia o la intimidación, o aprovechando el hecho de que la víctima está privada de razón o sentido o no puede resistir, será castigada con pena de prisión de siete a 15 años. Dicha penalización aumenta a 15 a 30 años o fallece si (a) la víctima es menor de 14 años, incluso si las circunstancias establecidas en la oración inmediatamente anterior no están presentes, (b) si, como consecuencia de la acto criminal, la víctima sufre lesiones graves o enfermedad o (c) si el autor ha sido previamente sancionado por el mismo delito.

 

El artículo 295 impone una pena de prisión de seis meses a dos años o una multa de 200 a 500 cuotas, o ambas, a cualquier persona que discrimine, promueva o incite a la discriminación de otra persona, con manifestaciones de manera ofensiva. , debido al sexo, raza, color u origen nacional, o con acciones para obstruir o impedir, con motivos relacionados con el sexo, raza, color u origen nacional, el ejercicio o disfrute de los derechos de igualdad establecidos en la Constitución. Cualquier persona que difunda ideas basadas en la superioridad de las razas o el odio racial o cometa, o incite, actos de violencia contra cualquier raza o grupo de personas de otro color u origen étnico, estará sujeta al mismo castigo que se indicó anteriormente.



Law No. 36 of 2009 Concerning Health (2009)

Abortion and reproductive health rights

Article 75(2) of this law prohibits abortion except for the case of medical emergency or necessity and rape.



Regulation/Perkap No. 10/2007 on the Organisation and Work of the Woman and Children Service Units (2007)

Domestic and intimate partner violence, Gender-based violence in general, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Woman and Child Service Units (UPPA) handle all cases of violence against women, including human trafficking, domestic violence, sexual violence, and other related crimes, in all 305 Indonesian units. UPPA’s units range from district police levels and up. Ideally the Integrated Services for Women and Children Units (P2TP2A) should handle not only cases of violence, but also should serve as centers where women can go for information and empowerment.



Law No. 21 of 2007 on Prevention of Human Trafficking (2007)

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

This law criminalizes the act of human trafficking and sets out minimum and maximum sentencing standards (up to 15 years) for its various permutations, such as in assisting or abetting such a crime. It also states that Indonesia will cooperate with regional and international authorities in order to thwart any actions relating to human trafficking and sexual exploitation.



Law No. 23 of 2004 on Elimination of Domestic Violence (2004)

Domestic and intimate partner violence

The law on elimination domestic violence defines “domestic violence” in Indonesia. Specifically, it includes sexual and physical abuse as well as negligence of the household. The law sets out the rights of the victims to seek protection, the burden on the government and the public to stop actions of domestic violence and provide the required protection and assistance to recovery. The law also sets out the criminal penalty for acts of domestic violence.



Penal Code of Indonesia (1999)

Abortion and reproductive health rights, Gender discrimination, LGBTIQ, Sexual violence and rape, Statutory rape or defilement

Article 260 punishes spouses who conceal from their spouse a legal barrier to marriage with a maximum sentence of five years imprisonment. Article 284 punishes adulterous spouses and their partners, regardless of their marital status. The penal code only criminalizes acts of rape outside marriage unless the wife is underage and incurs injuries as a result. Articles 285 prohibits forcing or threatening force a woman to have sexual intercourse outside of marriage and punishes violators with a maximum penalty of 12 years. Article 286 punishes sexual intercourse with an unconscious or helpless woman with a maximum of nine years imprisonment. If there is a complaint, Article 287 imposes a maximum sentence of nine years imprisonment for “carnal knowledge” of a girl outside of marriage when the man knows or reasonably should presume that she is less than 15 years of age. Prosecutions are triggered automatically when the girl is less than 12 years of age. Article 288 punishes husbands that have “carnal knowledge” of their wives who “are not yet marriageable” if it results in injury (four years imprisonment), serious injury (eight years), or death (12 years). Article 292 punishes adults that have carnal knowledge of those they know to be or reasonably should know to be minors of the same sex with a maximum of five years imprisonment. Article 293 punishes sexual abuse of a minor with a maximum of five years imprisonment. Incest is punishable by a maximum of seven years imprisonment pursuant to Article 294. Article 297 prohibits trafficking in woman and boys, which carries a maximum sentence of six years imprisonment. Article 299 imposes a four-year maximum sentence for abortion and provides for a one-third increase in sentencing for professionals (e.g., doctor, midwife) who perform abortions.



Criminal Code (2000)

Abortion and reproductive health rights, Forced and early marriage, LGBTIQ, Sexual violence and rape, Statutory rape or defilement

The Belize Criminal Code defines and criminalizes rape, including marital rape (Sections 46, 71-74); carnal knowledge of female child (Section 47); procuring or attempting to procure a woman (Section 49-50); compulsion of marriage (Section 58); incest by males (Section 62); abortion, miscarriage, and child destruction (Sections 111-12, 127).  The Code mandates a minimum sentence of eight years for rape (Section 46), 12 years of carnal knowledge of a female child (Section 47), and a life sentence for habitual sex offenders (Section 48).

Of particular note:

Marital rape under Section 72 requires a showing that the spouses have separated, the marriage is dissolved, an order or injunction has been made, granted or undertaken against the spouse, or that the sexual intercourse was preceded or accompanied by assault and battery.  Lack of consent is not enough if the parties are married.  The Criminal Code also criminalizes same-sex relationships under Section 53, which criminalizes “carnal intercourse against the order of nature with any person or animal.”Abortion and the aiding of abortion are felonies and carry a prison term of 14 years to imprisonment for life under Section 111.  There are limited exceptions under Section 112 if two registered medical practitioners agree that the abortion is necessary to preserve the life or health of the mother or her family or if the child may be seriously handicapped.


Domestic Violence Act (2000)

Domestic and intimate partner violence, Property and inheritance rights

Belize enacted the Domestic Violence Act #19 in 2000 to provide greater protection and assistance to domestic violence victims.  It was enacted in recognition of the pervasive nature of domestic violence in Belize society in order to increase the resources available to deal with domestic violence cases.  The Domestic Violence Act defines domestic violence and governs protective orders, occupation orders, tenancy orders, other orders relating to counselling, the use of furniture and household effects, payment of rent, mortgage, utilities and compensation for any monetary loss due to domestic violence.  Where a protective order or interim protective order is violated, the individual violating the order may be liable to a fine of up to $5,000 or to imprisonment for up to six months.  (Section 21)



Evidence Act (2000)

Sexual violence and rape, Statutory rape or defilement

Section 74 of the Evidence Act governs “[r]estrictions on evidence at trials for rape.”  This section provides that when a man is being prosecuted for rape or attempted rape, the “sexual experience of a complainant with a person other than that defendant” is inadmissible.  The exception to this rule is if a judge is satisfied that it would be unfair to the defendant to refuse to allow the evidence.  Under Section 92(3), a judge has discretion to warn the jury of the “special need for caution” when the prosecution relies only on the testimony of the accuser where a person is “prosecuted for rape, attempted rape, carnal knowledge or any other sexual offence.”



Criminal Code of the Northern Territory of Australia (2019)

Sexual violence and rape

In the Northern Territory a person is guilty of a crime if he/she has sexual intercourse with another person without the other person’s consent and knows about, or is reckless as to, the lack of consent.  Consent is defined as “free and voluntary agreement.”  Circumstances in which a person does not consent to sexual intercourse include circumstances where: force is used; the victim fears force or harm to themselves or someone else; the victim is unconscious or not capable of free agreement; or the victim is unable to understand the sexual nature of the act.  In addition, consent is no longer assumed where the victim is married to the accused.  The prosecution must prove beyond reasonable doubt that the accused knew that the victim was not consenting or was reckless as to whether the victim was consenting.  Recklessness includes not giving any thought to whether the person is consenting to sexual penetration.  A defendant is not guilty of the offence if he or she mistakenly believed that consent had been given.



The Revised Criminal Code of the Federal Democratic Republic of Ethiopia (2004)

Abortion and reproductive health rights, Domestic and intimate partner violence, Female genital mutilation or female genital cutting, Forced and early marriage, Gender-based violence in general, Harmful traditional practices, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

The Ethiopian Criminal Code criminalizes most forms of violence against women and girls including physical violence within marriage or cohabitation (Article 564), Female Genital Mutilation/ Circumcision (Articles 565-6), trafficking women (Article 597), rape (Articles 620-28), prostitution/exploitation of another for financial gain (Article 634), and early marriage (Article 648). The Criminal Code outlaws abortion, except in cases of rape or incest, risk to the life of the mother or fetus, severe or incurable disease or birth defect, a mother who is mentally or physically incapable of raising a child, or “grave and imminent danger” that can only be addressed by terminating the pregnancy.



Domestic Violence (Amendment) Act 2017 (2017)

Domestic and intimate partner violence, Property and inheritance rights, Sexual harassment, Stalking

Prevent gaps in protection. An interim protection order (IPO) protects survivors during police investigation, while a protection order (PO) protects survivors during criminal court proceedings. The amendments specify when an IPO ends, and when a PO begins, so survivors won’t be left without protection between police investigations and court proceeding.Strengthen the IPO to prevent further abuse. With the amendments, an IPO can include additional safeguards, like prohibiting an abuser from coming near a survivor – so police can intervene before further violence happens.Expand the definition of domestic violence. The expanded definition will protect against: misappropriating property, which causes distress; threatening, which causes distress or fear for safety; or communicating (including electronically) with the survivor to insult modesty.Improve rehabilitation provisions. A court can no longer order a survivor to attend reconciliatory counselling with the abuser, which puts the survivor in danger. Instead, the abuser can be ordered to complete a rehabilitation programme.Recognise survivor’s right to exclusive occupancy. If a court grants a survivor occupancy of a shared residence, it must grant the survivor exclusive occupancy – not just a specified part of the residence.Keep survivors better informed. The police officer must keep survivors informed on the status of investigation, status of IPO and PO, and important court dates.Create the Emergency Protection Order (EPO). The EPO helps survivors get protection faster – EPOs are issued by social welfare officers who are easily accessible (IPOs are issued by magistrates). Survivors won’t have to make a police report to get an EPO. The EPO is valid for seven days, and protects against physical injury and fear of physical injury.


An Act to Amend the New Penal Code Chapter 14 Section 14.17 and 14.71 and to address Gang Rape (2006)

Sexual violence and rape, Statutory rape or defilement

The Act to Amend the New Penal Code Chapter 14 Section 14.17 and 14.71 (the “Law”) and to address Gang Rape provides the definition for rape, gang rape and the concept of consent. Under Section 1(a)(i) and (ii), a person (male or female) commits rape if they intentionally penetrate the vagina, anus, mouth or any other opening of another person’s body with their penis or a foreign object or any other part of their body without the victim’s consent. Under Section 1(b), rape is committed where the victim is less than 18 years old, provided the perpetrator is above the age of 18 years. Under Section 2, the Law provides that the crime of gang rape has been committed if (i) a person purposefully promotes or facilitates rape (ii) a person agrees with one or more other person(s) to engage in or cause rape as defined in Section 1 above. Additionally, consent is defined as agreeing to sexual intercourse by choice where that person has a) freedom of choice and b) the capacity to make that choice. The Law also provides a number of circumstances where there is a presumption of a lack of consent. These fall into three categories: 1) where violence is used or threatened against the victim;  2) where the victim was unable to communicate to the accused at the time of the act (e.g. because of disability or unconsciousness); 3) where the perpetrator impersonated a person known to the victim in order to induce the victim to consent.



Schweizerisches Strafgesetzbuch/Swiss Penal Code (2014)

Female genital mutilation or female genital cutting, Forced and early marriage, Harmful traditional practices, Sexual harassment, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Art. 124: A person who seriously injures a female’s genitals can be sentenced to up to 10 years in prison or fined.  A person may be punished for causing such injuries abroad if the person is not extradited.

Art. 181a: The statute provides that anyone who coerces someone to marry or register a same-sex partnership by the use of force or threats can be punished by sentence of custody of up to five years.  The statute applies even if the marriage occurred outside Switzerland if the person has not been extradited. 

Art. 187: A person can be punished by up to five years in custody or a fine for (1) committing a sexual act with a person under 16 years old, (2) inciting a child under 16 to commit a sexual act, or (3) involving a child under 16 in a sexual act.

Art. 190: 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. 195: A person can be sentenced to 10 years in custody or fined for (1) inducing or encouraging a minor to engage in prostitution for financial gain, (2) inducing a person into prostitution by taking advantage of their dependency, (3) restricting a prostitute’s freedom to act by controlling his or her work as a prostitute, or (4) making a person continue as a prostitute against his or her will.

Art. 198: A person may be fined for offending someone by performing a sexual act in the presence of another who is not expecting it or sexually harassing someone through physical acts or indecent language. 



Lei Nº 11.340 (2006)

Domestic and intimate partner violence, International law

On August 7, 2006, Law No. 11.340 was enacted to create a new body of legal provisions tackling the issue of domestic violence against women in Brazil. Commonly known as “Lei Maria da Penha” (or Maria da Penha Act), the new law criminalized different forms of domestic violence against women, established stricter punishment for offenders, facilitated preventive arrests, and created other special protective and relief mechanisms for women, including special courts, designated police stations, and shelter for women. The new law, considered a landmark statute, was named after Maria da Penha, a Brazilian bio-pharmacist who became paraplegic after being shot and electrocuted by her husband. After nearly two decades of ineffective criminal prosecution, Maria da Penha took the case to the Inter-American Commission on Human Rights, where Brazil was ultimately criticized for its inefficient treatment of issues regarding domestic violence (case available here). In effect since 2006, the Maria da Penha Act has been praised by the United Nations as one of the most progressive laws in combatting domestic violence against women.



Law No. 13.104/2015 (“Lei do Feminicídio”) (2015)

Female infanticide and feticide, Femicide

On March 9, 2015, Brazil’s existing criminal code was amended to criminalize femicide, with sentencing ranging from twelve to thirty years of imprisonment. The new legislation defined femicide as a sex-based homicide committed against women, with the involvement of domestic violence, discrimination or contempt for women. The crime is aggravated if the victim is a pregnant woman, a woman within the first three months of maternity, a girl under the age of fourteen years or a woman over sixty years of age. Besides amending the existing criminal code, the new legislation also amended Law no. 8.072/1990, adding femicide to the list of heinous crimes.



On the Amendments to the Criminal and Criminal Procedure Codes of Ukraine in order to implement the provisions of the Council of Europe Convention on preventing and combating violence against women and domestic violence (2017)

Domestic and intimate partner violence, Forced and early marriage, Forced sterilization, Gender discrimination, Gender-based violence in general, International law, Sexual violence and rape

The Criminal and Criminal Procedural Codes of Ukraine were amended in December 2017 to adopt provisions of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) adopted in 2011.  As a result of these amendments, forced marriage (i.e. forcing a person to marry or to continue being in a forced marriage, or to enter into a cohabitation without official registration of marriage, or to continue such cohabitation) is punishable by restraint of liberty for up to three years or imprisonment for the same period and domestic violence (i.e. deliberate systematic violence against a spouse or ex-spouse or other person with whom the perpetrator is in family or intimate relationship, leading to physical or psychological suffering, disorder of health, disability, emotional dependence) is punishable with public works for up to 240 hours or detention for up to six months, or restraint of liberty for up to 5 years or imprisonment for up to two years.  In addition, the amendments:

introduce new corpus delicti, such as “illegal abortion or sterilization” (i.e. performed by a person without medical education or without consent of the victim) which is punishable by imprisonment for up to 3 years;establish punishment for rape of a spouse or ex-spouse or other person with whom the perpetrator is in a family or intimate relationship (imprisonment for up to 10 years); andincrease punishment for sexual violence to up to 15 years, if such acts resulted in serious consequences.


On Preventing and Combating Domestic Violence (No. 2229-VIII) (2017)

Domestic and intimate partner violence

The Domestic Violence Protection Act of Ukraine (the “Act”) introduces the concept of “domestic violence” which is defined to include action or inaction of physical, sexual, psychological or economic violence committed within a family or between relatives, or between former or current spouses or other persons who live (or lived) together as a family, irrespective of whether the person who committed domestic violence lives (or lived) together with the victim, as well as a threat of similar actions. The Act contains a series of governmental steps aimed at combatting domestic violence and improving the status of victims of domestic violence, which includes, without limitation, that the Ukrainian government maintain a unified state register of cases of domestic violence and sex-based violence and to establish a relevant call center, the adoption of immediate injunctions with respect to domestic violence offenders, provision of free of charge legal assistance to all victims in all cases of domestic violence, free medical, social and psychological help, and reimbursement of inflicted harm and damage to the victim’s physical and psychological health. The Act, through amendments to the Code of Administrative Offences Act, makes domestic violence or sex-based violence punishable by a fine in the amount of 20 non-taxable minimal wages or public works for the period from 30 to 40 hours or administrative detention for the period of up to seven days. If such actions are repeated within a year, the punishment is increased up to 40 non-taxable minimal wages, public works for the period of up to 60 hours or administrative detention for up to 15 days.



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

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

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



Domestic Violence Prevention Act (Chapter 29 of the General Laws of Rhode Island) (1956)

Domestic and intimate partner violence, Sexual violence and rape

The Domestic Violence Prevention Act was originally enacted in 1956 to recognize the importance of domestic violence as a serious crime against society and to establish an official response to domestic violence cases that stresses the enforcement of laws to protect victims and communicate that violent behavior is not excused or tolerated. In passing the Act, the legislature specifically provided that its intent was that the Act can be enforced without regard to whether the persons involved are or were married, cohabitating, or involved in a relationship. Accordingly, the act defines victims to include “spouses, former spouses, adult persons related by blood or marriage, adult persons who are presently residing together or who have resided together in the past three years, and persons who have a child in common regardless of whether they have been married or have lived together, or persons who are, or have been, in a substantive dating or engagement relationship within the past one year which shall be determined by the court's consideration of the following factors: (1) the length of time of the relationship; (2) the type of the relationship; and (3) the frequency of the interaction between the parties.”



International Case Law

G.N. v. Burundi Committee Against Torture (2017)

International law, Statutory rape or defilement

G.N., a mother, brought the action on behalf of her nine-year-old daughter, C.N.  A friend of the family, Captain D.K., was conducting night patrols and he stopped by the family home.  G.N.’s husband was not at home, so the Captain said he was going to leave and wanted to take C.N. with him home.  G.N. declined saying it was late, but when she returned to the kitchen to finish cooking the meal and then called for her daughter, she was no longer there.  Neighbors informed G.N. that she had left with D.K.  She looked for C.N., but did not see her.  The serviceman was a friend of the family.  She thought C.N. would soon return.  When G.N.’s husband returned home, she informed him that C.N. had not returned and he reassured her so they decided to wait.  C.N. returned home the next day.  G.N. eventually learned from C.N. that D.K. had taken her to his house, raped her, and, when she cried, threatened her with his firearm if she made any more noise.  He sent her to sleep with his own children and the next day gave her 500 Burundian francs (USD 0.30). He told her never to speak about the rape and threatened her and her mother if she revealed their secret.  However, a week after the incident, her mother persisted in asking C.N. because she could not stand up and said she had a stomach ache.  The victim’s father raised the issue with Captain D.K., who proposed an out of court settlement, which was rejected by G.N.  G.N. took C.N. for a medical examination, which confirmed the rape and she reported the rape to the military prosecutor’s department.  G.N. appealed to the domestic courts, which dismissed the case because of the ten-day period between the incident and reporting of it and the calmness and availability of the Captain.  After seeking domestic remedies with no action taken, G.N. appealed to the Committee submitting that her daughter was the victim of a violation of articles 2(1), 12, 13 and 14, read in conjunction with article 1 and, alternatively, with article 16 of the Convention.  The Committee found that the sexual abuse to which C.N. was subjected by an official of the State acting in his official capacity and the associated acts of intimidation fall within the scope of article 1 of the Convention.  The Committee also determined the investigation was not impartial, effective and prompt, contrary to articles 12 and 13 of the Convention.  It relied on the fact it was closed quickly and prosecutors did not seek additional evidence to pursue the case or arrest any other suspects, meaning the perpetrator of the rape has gone unpunished even though Burundi law provides that rape is punishable by life imprisonment when committed against a child under the age of 12.  As the child received no redress, the Committee also found that Burundi violated its obligations under article 14 of the Convention.  Finally, the Committee urged Burundi to: (1) promptly reopen an investigation; (2) provide reparation including compensation for the material and moral harm caused, restitution, rehabilitation, measures of satisfaction and a guarantee of non-repetition; (3) prevent threats/acts of violence against G.N. and C.N. for lodging the complaint; and (4) advise the Committee within 90 days of the steps taken. 



Y. v. Slovenia European Court of Human Rights (2015)

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

Applicant is a citizen of Ukraine who came to Slovenia as a teenager with her family.  Applicant alleged that when she was 14 a family friend repeatedly sexually assaulted her.  The police investigated and an expert in gynecology examined the applicant.  After complaints and a letter from the State Prosecutor’s Office to the local police a criminal complaint was issued.  The ensuing investigation and trial extended over a period of eight years.  During that time the defendant was allowed to repeatedly cross examine the applicant.  Moreover, a lawyer with whom the applicant had shared confidential information about the case was allowed to represent the defendant.  The defendant was acquitted, the applicant was referred to civil court for damages, and the applicant received a settlement from the government for the undue delays in the proceedings.  The Court found that Slovenia violated the European Convention of Human Rights in two ways.  Slovenia violated Article 3 when it failed to promptly investigate and prosecute the complaint of sexual abuse.  Furthermore, Slovenia violated Article 8 because it failed to sufficiently protect the applicant’s personal integrity and privacy in the proceedings.



Case of W. v. Slovenia European Court of Human Rights (2014)

International law, Sexual violence and rape

In 1990 at age 18, W. was raped by a group of seven men.  Three other men aided and abetted the rape.  Seven months later, the court acquitted the men of all charges, finding that the victim had not “seriously resisted sexual intercourse.”  The Public Prosecutor appealed the judgement and in 1991, a year after the assault, the appellate court overturned the acquittal.  The Slovenian authorities attempted to locate the perpetrators, but two defendants had emigrated to Austria and could not be found.  Between 1995 and 2001, the victim wrote eight letters to the court urging the proceedings to continue and five hearings were adjourned for failure of some of the defendants to appear.  Various excuses, such as frequent changes in the presiding judges, were offered to the victim as excuses for the stalled proceedings.  Finally, in May 2001, the authorities issued an international arrest warrant for the defendants located abroad.  In June 2002, six defendants were found guilty of rape and aggravated rape.  However, due to the passage of time, they were only sentenced to eight months to one year of prison.  The last defendant was extradited in 2004, convicted of aiding and abetting the rape, and sentenced to eight months in prison.  The victim received €5,000 from the Slovenian government in recognition of delay in prosecuting the defendants; however, the European Court of Human Rights (ECtHR) found that this amount (while the statutory maximum in Slovenia) was insufficient redress.  The ECtHR noted that Slovenian authorities failed to proceed with the case in a diligent manner and that the defendants received prison sentences of less than the minimum sentences prescribed by law.  Thus, the domestic authorities failed to comply with their obligations under Article 3 of the European Convention of Human Rights.  The ECHR, deciding in equity, awarded the victim €15,000 in addition to the €5,000 she received from the domestic authorities.



Case of Bălşan v. Romania European Court of Human Rights (2017)

Divorce and dissolution of marriage, Domestic and intimate partner violence, International law

Applicant is a Romanian citizen who alleged that her husband had been violent towards her and their children on numerous occasions.  The assaults intensified when the applicant initiated divorce proceedings against her husband.  The applicant’s husband assaulted and threatened her on multiple occasions, for which she required and obtained medical treatment.  She then used her medical records as proof when she lodged formal complaints against her husband at the prosecutor’s office.  She told prosecutors of the incidences of violence and the fact that her husband repeatedly locked her out of their shared residence.  The police did not pursue criminal charges and only imposed an administrative fine, holding that the applicant had provoked the disputes.  A similar pattern of abuse, medical attention, and contact with the authorities occurred over a period of months.  The applicant brought the case to the European Court of Human Rights alleging that the State “had failed to protect her from domestic violence and to hold the perpetrator accountable.”  The Court found that there were violations of Article 3 and Article 14 of the European Convention on Human Rights, which forbid torture and discrimination, respectively.  The Court found that the authorities were aware of the violence against the applicant, and thus they had an obligation to act on the complaints.  The applicant exhausted domestic avenues, but without success.  The state’s responses did not comply with international standards about required state action to violence against women and domestic violence. (Available in English, Romanian, and Croatian. English version is official.)



Prosecutor v. Gacumbitsi International Criminal Tribunal for Rwanda (2004)

International law, Sexual violence and rape

Mr. Sylvestre Gacumbitsi served as the mayor of the Rusumo Commune during the tragic events that took place in Rwanda in 1994. The Trial Chamber found Mr. Gacumbitsi guilty of genocide and the crimes against humanity of extermination and rape. The Trial Chamber held that Mr. Gacumbitsi planned, instigated, ordered, committed, and aided and abetted the killing and raping of Tutsi civilians. Moreover, Mr. Gacumbitsi was directly involved in certain instances in such acts. This case is important, among others, since the Trial Chamber has used a broad definition of rape - recognizing various forms of sexual violence as constituting rape.