Women and Justice: Keywords

Legislation

Domestic Violence Act (2008)

Domestic and intimate partner violence

The Domestic Violence Act (No. 10 of 2008) seeks to provide survivors of domestic violence with protection. The Act defines domestic violence as "any controlling or abusive behaviour that harms the health or safety of the applicant." The Act empowers Courts including Customary Courts to pass an order (Section 7 of the Act prescribes orders available to applicants such as restraining orders and interim orders) that seeks to immediately protect applicants (victims); Section 9 (2) (b) (i) provides that the order shall direct a member of the Botswana Police to prohibit the respondent (the offender) from committing an act of domestic violence. The Act also outlines the jurisdiction of the courts, describes how an applicant can file an application for an order by the court, details how documents are served to respondents, and explains the nature of proceedings in a domestic violence case.



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.



Domestic Case Law

Decision of the Constitutional Tribunal, Case 1961/2013 Constitutional Tribunal (2013)

Domestic and intimate partner violence, Gender discrimination

The Constitutional Tribunal held that the conduct of the municipal authorities forcing a victim of gender violence to reconcile with her aggressor under the threat of taking her children to a shelter violates the right of women to live free from violence. The Tribunal held that this conduct constituted undue harassment.

El Tribunal Constitucional sostuvo que la conducta de las autoridades municipales, obligando a una víctima de violencia de género a reconciliarse con su agresor bajo la amenaza de llevar a sus hijos a un refugio es contra el derecho de las mujeres a vivir libres de violencia. El Tribunal sostuvo que esta conducta constituía indebida acoso.



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.

Die eiseres het probeer om 'n klag van aanranding teen haar voormalige man onder die Wet op Huishoudelike Geweld van 1998 ("Die DVA") te bring. 'n Polisiebeampte het haar verkeerdelik aanbeveel dat sy 'n beskermingsbevel van die Landdroshof moes kry voordat sy polisiehulp kon ontvang. 'n Tweede polisiebeampte het vir haar gesê dat haar voormalige man 'n soortgelyke klag van aanranding teen haar sou bring as sy aanhou met haar klagte. Die eiseres, asook haar voormalige man, was gearresteer. Sy het 'n eis vir skadevergoeding teen, onder andere, die Minister van Polisie ingedien en het aangvoer dat (i) die betrokke beamptes volgens en binne die bestek van hul werk opgetree het en (ii) die Minister van Polisie onmiddellik aanspreeklik was vir die versuiming om die DVA te volg. Die hof het saamgestem dat die DVA vereis dat die polisie hulp en die maksimum moontlike beskerming vir slagoffers van huishoudelike mishandeling moet gee.



Mathis v. Wayne County Board of Education United States Court of Appeals for the Sixth Circuit (2012)

Sexual violence and rape, Statutory rape or defilement

The plaintiff-appellants’ sons were members of their middle school basketball team who were victims of sexual harassment by their teammates. The harassment ranged from arguably innocent locker room pranks to sexual violence. The plaintiffs sued the Wayne County Board of Education, alleging that the school board was deliberately indifferent to student-on-student sexual harassment in violation of Title IX of the Civil Rights Act. The District Court denied the defendant’s motion for judgment as a matter of law and awarded the plaintiffs $100,000 each in damages. The Sixth Circuit affirmed, holding that the plaintiffs had established the following elements of a deliberate indifference claim: that the sexual harassment was so severe, pervasive, and objectively offensive that it could be said to deprive the plaintiff of access to the educational opportunities or benefits provided by the school; that the funding recipient (i.e. the board of education) had actual knowledge of the sexual harassment, and the funding recipient was deliberately indifferent to the harassment.



A., R.H. and other v. E.N. M Seguridad – P.F.A. and others Cámara Nacional de Apelaciones en lo Contenciosos Administrativo Federal (National Appeals Court for Federal Administrative Litigation) (2011)

Domestic and intimate partner violence, Femicide

The plaintiff daughters, R.H. and V.C., filed suit against the State government and certain police officials requesting damages for the loss of the lives of their mother, Mrs. S., and father, Mr. A.  The day after her decision to flee her home together with her daughters and reside with other family members, Mrs. S. filed a civil proceeding against Mr. A. for domestic violence.  Mr. A. was prohibited from approaching Mrs. S. and his daughters, and Mrs. S. obtained permission to remove her and her daughters’ personal belongings from their previous home while escorted by police officers.  While accompanied by police officers and her sister to remove the belongings, Mr. A. killed Mrs. S. with a knife and subsequently committed suicide.  In finding for the daughters in the case of Mrs. S., the appellate court identified the following factors in support of its finding: (1) the existence of a real and immediate risk that threatened the rights of Mrs. S. and her daughters that had the potential to materialize immediately and which was expressly referenced by the Office of Domestic Violence, (2) the risk related to a specific threat against a woman and was therefore particular, (3) the State knew of the risk or should have reasonably known of the risk and (4) the State could have reasonably prevented and avoided the materialization of the risk.

Las hijas de la demandante, RH y VC, presentaron una demanda contra el gobierno del estado y ciertos oficiales de policía que solicitaron daños por la pérdida de la vida de su madre, la Sra. S. y el padre, el Sr. A. El día después de su decisión de huir de la casa junto con sus hijas, la Sra. S. presentó un proceso civil contra el Sr. A. por violencia doméstica. Al Sr. A. se le prohibió acercarse a la Sra. S. y a sus hijas, y la Sra. S. obtuvo permiso para retirar a ella y las pertenencias personales de sus hijas de su hogar anterior mientras estaba escoltada por agentes de policía. Mientras estaba acompañada por oficiales de policía y su hermana para retirar las pertenencias, el Sr. A. mató a la Sra. S. con un cuchillo y posteriormente se suicidó. Al encontrar a las hijas en el caso de la Sra. S., la corte de apelaciones identificó los siguientes factores que respaldan su descubrimiento: (1) la existencia de un riesgo real e inmediato que amenazaba los derechos de la Sra. S. y sus hijas que tenía el potencial de materializarse de inmediato y que la Oficina de Violencia Doméstica hacía referencia expresamente, (2) el riesgo relacionado con una amenaza específica contra una mujer y, por lo tanto, era particular, (3) el Estado sabía del riesgo o debería haberlo hecho razonablemente conocido del riesgo y (4) el Estado podría haber prevenido y evitado razonablemente la materialización del riesgo.



Carmichele v. Minister of Safety and Security Constitutional Court of South Africa (2001)

International law, Sexual violence and rape

The applicant was sexually assaulted by a man who was awaiting trial for the attempted rape of another woman. Despite the seriousness of the alleged crime and the fact that the man had a prior rape conviction, the police and prosecutor had recommended that the man be released pending trial. The applicant sued the Minister for damages, arguing that the police and prosecutors had negligently failed to comply with a legal duty they owed to her to take steps to prevent the man from causing her harm. The High Court dismissed the applicant's claim and the Supreme Court of Appeal affirmed, holding that the police and prosecution did not owe her a duty of protection. On appeal, the Constitutional Court set aside the orders of the lower courts and remanded the case to the High Court for trial. It held that the State is obligated by the Constitution and international law to protect the dignity and security of women and in the circumstances, the police recommendation for the assailant's release could amount to wrongful conduct giving rise to liability. The Court also held that prosecutors, who are under a duty to place before the court any information relevant to the refusal or grant of bail, may be held liable for negligently failing to fulfill that duty.



Van Eeden v. Minister of Safety and Security (2002)

Sexual violence and rape

The appellant was assaulted, raped and robbed by Andre Gregory Mohamed, who had escaped from prison where he was facing 22 charges for indecent assault, rape and armed robbery. The appellant sued the State for damages, arguing that the police owed her a legal duty to take reasonable steps to prevent Mohamed from escaping and causing her harm and that they had negligently failed to comply with such duty.  The Constitutional Court applied its recent holding in Carmichele v. Minister of Safety and Security and held that the state is obliged both by the Constitution and by international law to protect women from violence and the police should be held liable for its negligence in not taking reasonable action to prevent Mohamed's escape, especially in light of the fact that they knew that Mohamed was a dangerous serial rapist who was likely to commit further offenses against women should he escape. The court affirmed the state's liability for any damages suffered by the applicant.



International Case Law

O.G. v. Russian Federation CEDAW Committee (2017)

Domestic and intimate partner violence, International law

O.G. was in a civil partnership with K. who used drugs and alcohol and had a gambling addiction.  After O.G. left him, he sent her harassing texts, attempted to visit her, and when she refused to let him in her building, he hit her.  She reported the events to a Crisis Center for Women.  K. was sentenced to four months of labor which was suspended to a six-month probation and ordered to pay $50.  After his release, he continued to send texts to O.G. threatening to kill her.  She filed seven criminal complaints with the police, who took no action claiming there was nothing they could do because K. would not come to the police station and he was not acting on his threats.  O.G. filed a complaint with CEDAW alleging that the Russian Federation failed to fully implement the Convention by not introducing legislation on domestic violence, and that the authorities had violated her rights under the Convention by not responding adequately to her claims or implementing protective orders to ensure her safety, not providing any effective remedy or psychological support, not conducting meaningful investigation, and allowing prosecution to be time barred due to a two-year statute of limitation.  The Committee decided in O.G.’s favor, rejecting the Russian authority’s argument that O.G.’s claim to be a domestic violence victim was unsubstantiated because he was not a member of her family at the time of the alleged violence, finding that there is no statutory time limit on how long after the end of a relationship a partner can claim that violence falls within this definition.  The Committee determined that Russia had not adopted comprehensive legislation to prevent and address violence against women, and noted recent amendments to national legislation that decriminalized battery under which many domestic violence cases are prosecuted due to the absence of a definition of “domestic violence.”  This failure to amend legislation relating to domestic violence directly affected O.G.’s access to remedies and protection.  The Committee determined Russia violated O.G.’s rights under articles 1, 2 (b)-(g), 3 and 5 (a) of the Convention. It recommended that Russia provide financial compensation to O.G., adopt comprehensive legislation to prevent and address violence against women, including domestic violence, reinstate criminal prosecution of domestic violence, introduce a protocol for handling domestic violence complaints at the police station level to ensure adequate protection, renounce private prosecution in domestic violence cases, ratify the Istanbul Convention, provide mandatory training for judges, lawyers and law enforcement personnel on the Convention and related documents, investigate allegations of gender-based violence against women promptly and provide safe and prompt access to justice, provide rehabilitation programs to offenders, and develop and implement effective measures with relevant stakeholders such as women’s organizations, to address stereotypes and practices that condone or promote domestic violence.  A written response and report on actions taken was due to the Committee within six months. (Available in English, Russian, Arabic, Chinese, French, Spanish.)



Sawhoyamaxa Indigenous Community v. Paraguay Inter-American Court of Human Rights (2006)

Abortion and reproductive health rights, Gender discrimination, International law, Property and inheritance rights

This case involved issues involving the exposure of vulnerable members of indigenous communities, particularly children, pregnant women, and the elderly. A petition was filed against Paraguay on behalf of the Sawhoyamaxa Indigenous Community, alleging violations of, among other things, the right to fair trial and judicial protection, the right to property and the right to life. The petition noted that these violations placed children, pregnant women and the elderly in particularly vulnerable situations. The Court found Paraguay to be in violation of Articles 1(1), 2, 3, 4(1), 8, 19, 21 and 25 of the American Convention on Human Rights. The Court ordered Paraguay to formally and physically convey to the Sawhoyamaxa their traditional lands, to establish a community development fund, to pay non-pecuniary damages, to provide the Sawhoyamaxa with basic necessities until their lands were restored, to provide the Sawhoyamaxa with the necessary tools for communication to access health authorities, and to domestically enact legislation creating a mechanism for indigenous communities to reclaim their traditional lands.



Perozo et al. v. Venezuela Inter-American Court of Human Rights (2009)

Custodial violence, International law, Sexual harassment

This case was brought against Venezuela under allegations of harassment and physical and verbal assault toward journalists, including some female journalists, by state actors over a period of four years. While the Court found Venezuela to be in violation of the right to speak freely, to receive and impart information, and to humane treatment (violations of Articles 1(1), 5(1) and 13(1) of the American Convention on Human Rights), the Court also found there was insufficient evidence to establish violations of Articles 13(3), 21 and 24 of the American Convention on Human Rights.  The Court further noted that it would not analyze the alleged actions under Articles 1, 2 and 7(b) of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women.