Women and Justice: Keywords

Domestic Case Law

N.C. v. Caldwell Alabama Supreme Court (2011)

Sexual violence and rape, Statutory rape or defilement

N.C., a minor, filed a personal injury action against her physical education teacher, her school principal, and the Tallapoosa County Board of Education. N.C. alleged that after her seventh grade physical education class, she was pulled into the boys’ locker room and raped by A.H., a 12th grade student whom her teacher, Caldwell, had appointed as a teacher’s aide. N.C.’s complaint alleged that Caldwell had actual knowledge that A.H. was sexually harassing students and had negligently or wantonly supervised N.C. and the other students in her class. Caldwell, the principal, and the Board filed motions for summary judgment, arguing that N.C.’s claims were barred by the doctrine of state-agent immunity. N.C. opposed entry of summary judgment against only Caldwell. The trial court reasoned that the Alabama Supreme Court “has been particularly reluctant to hold an educator responsible for sexual misconduct by another” and granted summary judgment in favor of Caldwell based on stage-agent immunity. On appeal, the Alabama Supreme Court considered an exception to state-agent immunity: “a State agent shall not be immune from civil liability in his or her personal capacity . . . when the State acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.” The Alabama Supreme Court found that Caldwell was exercising judgment in the discharge of his duty to supervise students at the time of the rape, which occurred after the dismissal bell had rung. Nonetheless, the Alabama Supreme Court held that there was a genuine issue of material fact as to (i) whether Caldwell actually appointed A.H. as a student aide, and, if so, whether he acted beyond his authority in doing so, and (ii) whether Caldwell ignored and failed to report allegations of sexual harassment from other female students about A.H.. The Alabama Supreme Court also found that there was a genuine issue of material fact as to whether Caldwell was aware that A.H. was sexually harassing other female students and, if so, whether he failed to respond to the allegations. The Alabama Supreme Court concluded that these issues of material fact precluded summary judgment and accordingly reversed the trial court.



W.J. and L.N. v. Amkoah, Jamhuri Primary School, The Teachers Service Commission and the Attorney General (Petition No. 331 of 2011) High Court of Kenya at Nairobi (Constitutional and Human Rights Division) (2011)

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

In July 2010, W.J. and L.N, 12- and 13-year-old female students at Jamhuri Primary School, were invited to the home of their teacher, Astarikoh Henry Amkoah. Amkoah forced the girls to perform household chores and later attempted to defile W.J. in the restroom and defiled L.N. in the hall. On several occasions later that month, Amkoah raped both girls. The girls’ education was severely interrupted by the trauma of Amkoah’s attacks and L.N. dropped out of school completely. Ultimately, Amkoah was acquitted in criminal court. In this suit filed by their guardians, W.J. and L.N. sued claiming that Amkoah’s actions unconstitutionally interfered with their rights to health, education, and dignity, and claimed that the school and state should be vicariously liable for the teacher’s actions. They invited the court to look at the claims from the perspective of a tort in negligence and as a human rights violation. However, the violations took place prior to the adoption of a revised 2010 Constitution, so the Court was required to rely partially on the 1963 Constitution which did not include those same guarantees. Still, the 1963 Constitution offered a right to freedom and security of the person. Additionally, the Convention on the Rights of the Child, adopted through Kenya’s Children Act, promises children the right to be free from sexual or physical violence, the right to receive an education, and the right to dignity. As a result, the Court was able to rely on the guarantees of the Children Act. Moreover, Justice Ngugi recognized the 2010 constitutional right to dignity as a continuing right, meaning that while the initial crime may have occurred prior to the 2010 Constitution’s adoption, the continuous nature of the effects of sexual violence on an individual’s dignity make the provision applicable in this case. Here, the Court determined that the criminal acquittal would not serve as a bar to the action because of the differing standards of proof in a criminal and a civil trial. Importantly, the Court decided that “any educational or other institution in which teachers or other care givers commit acts of sexual abuse against those who have been placed under their care is vicariously liable for the wrongful acts of its employees.” The court noted that because children are particularly vulnerable, it is appropriate to impose strict liability on “those in charge of educational and other institutions . . . for abuses committed by those whom they have placed in charge of vulnerable groups such as minors in educational institutions” and held the four named plaintiffs—the teacher, the school, the teachers service commission, and the state—jointly and severally liable for damages of KSH two million for W.J. and KSH three million for L.N.



BVerwG 6 C 25.12 Federal Administrative Court (Bundesverwaltungsgericht) (2013)

Harmful traditional practices

The Court rejected the appeal and upheld the decision of the lower court that a female Muslim high school student was not exempt from compulsory swimming lessons on the grounds of her religion. In the circumstances, there was not sufficient reason to undermine compulsory school attendance of children. The parents of the girl had applied to the school for an exemption from swimming lessons on the grounds that Islamic dress custom did not allow their daughter to participate in co-educational swimming lessons. The school had rejected the application but permitted the girl to wear swimwear which would be in accordance with Islamic custom (a burkini). The decision was generally welcomed as protecting the right of Muslim girls to education.



Reports

Sexual Violence by Educators in South African Schools: Gaps in Accountability (2014)

Gender-based violence in general, Sexual harassment, Sexual violence and rape

The Centre for Applied Legal Studies at the University of Witwatersrand and Avon Global Center for Women and Justice at Cornell Law School released a joint report on sexual violence committed by educators against students in South African schools.



African Statistical Journal: A Special Issue on Gender (2010)

Gender discrimination

Special journal issue of the African Development Bank focused on gender statistics.


International Case Law

Girls Yean and Bosico v. Dominican Republic Inter-American Court of Human Rights (2005)

Gender discrimination

The IACHR submitted an application to the Court to determine whether the Dominican Republic had violated Articles 1(1), 2, 3, 8, 19, 20, 24 and 25 of the American Convention on Human Rights to the detriment of Dilcia Oliven Yean and Violeta Bosico Cofi. The application was based on the fact that the two girls had been denied Dominican birth certificates despite having been born within Dominican territory, leaving the girls stateless and without nationality. This also caused one of them, Violeta, to not be admitted to school since you must present a birth certificate to attend school in the Dominican Republic.  The Dominican Republic eventually granted the girls their birth certificates and then argued that by doing so, the girls' cause of action before the commission was null. The girls, however, argued that receiving their birth certificates did not remedy the fact that they had been stateless for four years. The Court found the Dominican Republic violated Articles 1(1), 3, 5, 18, 19, 20, and 24 of the American Convention on Human Rights and ordered the Dominican Republic to issue a public apology to the girls and to pass legislation consistent with Article 2 of the American Convention which would make it simple to acquire citizenship upon late declaration of birth. 

 

La Comisión Interamericana de Derechos Humanos presentó una solicitud a la Corte para determinar si la República Dominicana había violado los artículos 1 (1), 2, 3, 8, 19, 20, 24 y 25 de la Convención Americana sobre Derechos Humanos con respecto a Dilcia Oliven Yean y Violeta Bosico Cofi. La solicitud se basó en el hecho de que a las dos niñas se les habían negado los certificados de nacimiento dominicanos a pesar de haber nacido en el territorio nacional, lo cuál las dejó sin patria y sin nacionalidad legal. Esto también causó que una de ellas, Violeta, no fuera admitida en la escuela, ya que es requerimiento para asistir una escuela del país el presentar un certificado de nacimiento. La República Dominicana finalmente le otorgó a las niñas dichos certificados y luego argumentó que como ya estaba hecho, la causa de acción de las niñas ante la comisión era nula. Las niñas, sin embargo, argumentaron que recibir sus certificados de nacimiento no remedió el hecho de que habían sido despatriadas durante cuatro años. La Corte determinó que la República Dominicana en efecto violó los artículos 1 (1), 3, 5, 18, 19, 20 y 24 de la Convención Americana sobre Derechos Humanos y le ordenó a la República Dominicana emitir una disculpa pública a las niñas y aprobar leyes consistentes con el artículo 2 de la Convención Americana, lo cual facilitaría la adquisición de la ciudadanía en el momento de la declaración tardía de nacimiento.