Women and Justice: Keywords

Domestic Case Law

People of the Philippines v. Divinagracia Supreme Court of the Philippines (2018)

Sexual violence and rape, Statutory rape or defilement

The appellant was found guilty by the Regional Trial Court and the Court of Appeals of raping his daughter AAA (who was eight at the time), and of acts of lasciviousness against his other daughter BBB (age nine at the time). On appeal, the appellant argued that his guilt was not established beyond reasonable doubt. He pointed to inconsistencies in witness testimonies about when his daughters told their aunt and others about the sexual abuse. The Supreme Court found that such inconsistencies are not related to the elements of the crime and do not diminish the credibility of the victim. Under Article 266-A of the Revised Penal Code, when the victim is under 12, the elements of rape are sexual congress with a woman by a man. Through the birth records, the age of the victim was clearly under 12, and through AAA’s testimony and physical examinations by the doctor, the element of sexual congress was met. The rule is that factual findings and evaluation of witnesses’ credibility made by the trial court should be respected unless it is shown that the trial court may have overlooked, misapprehended, or misapplied any fact or circumstance of weight and substance. The court refused to find AAA’s failure to tell others immediately as affecting her credibility. The court also reiterated that only the credible testimony of the offended party is necessary to establish the guilt of the accused. With respect to damages, the court overruled the lower courts, which had held that awarding damages would be a miscarriage of justice because the defendant-father was a compulsory heir to his daughters. It awarded BBB a total of P300,000 in civil indemnity, moral damages, and exemplary damages. The court awarded AAA P20,000 civil indemnity, P30,000 moral damages, and P20,000 exemplary damages because of the heinous nature of the crime. The court imposed sentences of reclus​ión perpetua (minimum of 30 years imprisonment) for the rape and 12 – 20 years imprisonment for the crime of lasciviousness.

People of the Philippines v. Rupal Supreme Court of the Philippines (2018)

Sexual violence and rape, Statutory rape or defilement

The appellant was found guilty by the Regional Trial Court and the Court of Appeals of raping a 13-year-old girl by dragging her to a nearby farm, raping her and later threatening her with retaliation if she did not stay silent. The appellant appealed, pointing to inconsistencies in the number of times the victim testified as being raped and arguing that the prosecution was not able to prove his guilt beyond reasonable doubt. The Supreme Court affirmed the conviction. According to the court, the victim making inconsistent statements about the number of times the appellant raped her did not harm her credibility, given the fear and distress the victim suffered, and the frequency is also not an element of the crime. The required elements of rape under Article 266-A of the Revised Penal Code are: (1) offender had carnal knowledge of a woman and (2) he accomplished such act through force or intimidation, or when she was deprived of reason or unconscious, or when she was under 12 years of age, or demented. The medical examination and victim’s credible testimony meets the first element. The element of force or intimidation is met by the fact that the appellant dragged her and pushed her to the ground to abuse her. The appellant also intimidated her after the act. Thus, the required elements of rape under Article 266-A of the Revised Penal Code are met. The appellant’s alibi or denials were weak and uncorroborated. 

AA v. Fiscalía General de la Nación, Caso No. 413/2008 Tribunal Apelaciones Penal 2º Tº (Second Criminal Court of Appeals) (2008)

Domestic and intimate partner violence

The Trial Court sentenced the accused (AA) to 10 months with a suspended sentence for the crime of domestic violence against his wife (BB). AA intimidated and committed continuous acts of violence against BB. The Trial Court deemed the continuous and manipulative nature of this violence to be an aggravating circumstance. AA appealed, arguing that the Trial Court had improperly analyzed the evidence and that there was not enough evidence to convict him. The Appeals Court determined that the evidence on file should 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 supported the home and paid for AA’s expenses, which demonstrated that AA had interests in BB aside from affection. The doorman of the building where AA and BB lived testified that he once saw AA breaking things in a violent rampage. This  testimony contradicted 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.

El Tribunal de Primera Instancia condenó al acusado (AA) a 10 meses con una sentencia suspendida por el delito de violencia doméstica contra su esposa (BB). AA intimidó y cometió actos continuos de violencia contra BB. El Tribunal de Primera Instancia consideró que la naturaleza continua y manipuladora de esta violencia era una circunstancia agravante. AA apeló, argumentando que el Tribunal de Primera Instancia había analizado incorrectamente las pruebas y que no había suficientes pruebas para condenarlo. El Tribunal de Apelaciones determinó que la evidencia en el archivo debe analizarse en el contexto de la relación entre AA y BB. Mientras AA argumentó que BB tenía problemas mentales, el tribunal consideró este argumento como un simple pretexto para desviar la atención de su propia mala conducta. Los hechos del caso mostraron que BB apoyaba la casa y pagaba los gastos de AA, lo que demuestra que AA tenía intereses en BB además de ser afectuoso. El portero del edificio donde vivían AA y BB testificó que una vez vio a AA rompiendo cosas en un violento alboroto. Este testimonio contradecía la declaración de AA de que no era destructivo. El Tribunal de Apelaciones determinó que había pruebas suficientes en el expediente para demostrar la culpabilidad de AA y afirmó la decisión del Tribunal de Primera Instancia.

AA v. Fiscalía General de la Nación, Caso No. 359/2013 Tribunal Apelaciones Penal 1º Tº (First Criminal Appeals Court) (2013)

Sexual violence and rape, Statutory rape or defilement

The Trial Court sentenced the accused (AA) to four years in prison for aggravated sexual abuse of a minor (BB). AA and the mother of BB had a common law marriage. AA had been sexually abusing BB since she was eight years old and started raping her when she turned 11.  At age 14, BB became pregnant as a result of rape committed by AA.  BB’s mother discovered AA’s abuse and filed the criminal complaint.  AA confessed to being the victim’s “lover.”  The court found aggravating circumstances including that AA had taken advantage of his domestic relationship with BB’s mother and that he had abused his victim during the night. AA’s confession constituted an attenuating circumstance, reducing the sentence imposed.  The Appeals Court dismissed AA’s appeal and affirmed the Trial Court’s decision, ruling that there was enough evidence presented to establish the facts of the case.

El Tribunal de Primera Instancia condenó al acusado (AA) a cuatro años de prisión por abuso sexual agravado de un menor (BB). AA y la madre de BB tenían un matrimonio común. AA había abusado sexualmente de BB desde que tenía ocho años y comenzó a violarla cuando cumplió los 11. A los 14 años, BB quedó embarazada como resultado de una violación cometida por AA. La madre de BB descubrió el abuso de AA y presentó esta denuncia penal. AA confesó ser el "amante" de la víctima. El tribunal encontró circunstancias agravantes, incluyendo que AA se había aprovechado de su relación doméstica con la madre de BB y que había abusado de su víctima generalmente durante las noches. La confesión de AA constituyó una circunstancia atenuante, reduciendo la sentencia impuesta. El Tribunal de Apelaciones desestimó la apelación de AA y confirmó la decisión del Tribunal de Primera Instancia, dictaminando que se presentaron suficientes pruebas para establecer los hechos del caso.

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.

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.

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.

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.

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.

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.

H.V.N. v. EM-M Defensa-FAA and Others Cámara Nacional de Apelaciones en lo Contencioso Administrativo Federal (National Federal Administration Appeals Court) (2015)

Employment discrimination, Sexual harassment

The plaintiff filed suit against her employer, the Ministry of Defense—Argentine Air Force, seeking damages for sexual harassment and workplace persecution because her supervisor made indecent proposals, threatened her employment if she did not accede to his demands, made sexually explicit comments, and impeded her advancement.  The trial court ruled against the plaintiff on the basis that (1) a psychological report indicated that she suffered from “moderate reactive development,” therefore making it impossible to determine the level of fault that corresponded to the alleged hostile conduct or to her “moderate reactive development,” (2) while certain testimony indicated the plaintiff was subject to certain “inconveniences” caused by her supervisor, the court found that these were insufficient to support a claim of sexual harassment or other unlawful conduct and (3) the plaintiff was therefore subject to a higher burden of proof in relation to the alleged conduct and that this burden was not met.   In reversing the trial court’s ruling, the appellate court noted that (1) workplace sexual harassment is characterized by extreme psychological violence in the workplace that is both systematic and prolonged and that is carried out for the purpose of devaluing, perturbing, or debasing the victim so that the victim abandons the workplace or accepts other workplace conditions, and (2) particular difficulties arise in proving that the offensive conduct took place. For this reason, the court noted, special importance must be given to testimony given by work colleagues, medical or psychological reports to determine the existence of physical or psychological damage and documentary evidence.  Specifically, the appellate court found that the plaintiff presented sufficient witness testimony, documentary evidence and psychological and accounting reports to sustain her claims. In addition to allowing damages, the appellate court ordered the defendants to pay costs.

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

Sexual violence and rape

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

Sentencia nº 407 de Tribunal Supremo de Justicia (Número de Expediente: C16-189) 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 (Número de Expediente: C15-289) 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.   

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.

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.

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.

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.

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. 

Individual Application of Özlem Tuncel Kaya Constitutional Court (2016)

Domestic and intimate partner violence

The applicant, Ms. Kaya, applied to the Office of Public Prosecutor (the “OPP”), claiming that she had been the victim of domestic violence. After investigating, the OPP charged the applicant’s husband with domestic violence and went to trial. However, during the trial, the applicant withdrew her claim and said that the bruises she had submitted as evidence were actually the result of an accident at the couple’s home. The OPP dropped the charges against the applicant’s husband. Two years later, the applicant filed another claim with the OPP alleging that her husband stole her jewellery and again subjected her to domestic violence.  The OPP notified the proper Court of First Instance for Family Affairs (the “Court of First Instance”). The Court issued a restraining order against the husband that prevented him from approaching the applicant and ordered that he pay alimony to her for four months. The government offered the applicant state housing for the victims of domestic violence, but she rejected the offer. The applicant was subjected to several more incidents of domestic violence. During that time, the OPP requested the Court of First Instance to issue a warrant for the arrest of the applicant’s husband. The Court of First Instance rejected the OPP’s request. The applicant appealed, but her appeal was dismissed because Ms. Kaya’s statements alone were not adequate evidence of domestic abuse. After Ms. Kaya appealed, the Constitutional Court ruled that Turkey had a duty to take affirmative steps to prevent further acts of domestic violence against the appellant and effectively investigate her claims in this case. However, after applying the legal framework addressing victims of domestic violence, the Constitutional Court ruled that Ms. Kaya’s fundamental rights under the framework had not been infringed. This decision is important because it demonstrates that even though there is a legal framework available for women affected by domestic violence, claims against state officials for failing to act on their duties under that framework need to be specific and supported by substantial evidence.

Kisingiri v. Uganda High Court at Kampala (2016)

Sexual violence and rape

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

Uganda v. Ogwang High Court at Soroti (2015)

Domestic and intimate partner violence

The accused is charged with murdering his wife with a hoe.  The couple’s son lived nearby and heard his parents fighting.  He interrupted his parents’ fight and tried to stop it, but the accused grabbed a hoe and struck his wife in the head, which killed her.  The accused denied his son’s testimony and said his wife was attacked while out with him. The Court found the son’s testimony credible and rejected the accused’s statements.  The Court sentenced the accused to 40 years imprisonment.

State v. Nghidini High Court of Namibia (2015)

Domestic and intimate partner violence, Statutory rape or defilement

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

Kamaze v. State High Court (2013)

Statutory rape or defilement

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

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.    

Sir Domtinet Bolngar v. Madam Nalem Louise Supreme Court of Chad (2005)

Divorce and dissolution of marriage, Property and inheritance rights

Sir Domtinet Bolngar brought a divorce claim to the civil tribunal of N’jamena on the basis of the prolonged rupture of their joint life and adultery committed by his wife. The Court pronounced a shared fault divorce and ordered an equal split of the couple’s joint goods. The Court of Appeal of N’jamena partially reversed the court’s decision and held that the divorce was exclusively caused by Sir Domtinet Bolngar‘s fault since the adultery of Madam Nalem Louise was never proven. The Court also awarded 3 million in damages to Madam Nalem Louise. Sir Domtinet Bolngar appealed the decision claiming he caught his wife red-handed at 5 am and that judges fail to assess the prejudice that he suffered. However the judges of the Supreme Court held that a simple narration of the facts did not constitute sufficient proof to charge Madam Nalem Louise with adultery, and therefore charged Sir Domtinet Bolngar with the court fees.

Balan Subramaniam A/L Ponnudurai (Appellant) v. Public Prosecutor (Respondent) Court of Appeal of Malaysia (2012)

Custodial violence

Appellant burned down his house, along with his wife Angeladevi, and his daughters Malini and Anuradha. Angeladevi and Anuradha died as a result, and Malini survived. Angeladevi gave an oral dying declaration and Anuradha gave a written dying declaration to the effect that the Appellant (Angeladevi’s husband and Anuradha’s father) was the person who set them on fire. Angeladevi’s declaration was given to the medical personnel who attended to the woman at the hospital, and Anuradha’s declaration was given to the police. The Appellant appealed, among other things, the admissibility of the dying declaration of Anuradha. The Court of Appeal dismissed the appeal for the following reasons, among others: (1) the threshold for admissibility of a statement in the nature of a dying declaration under section 32(1)(a) of Evidence Act of 1950 is very low in contrast to a dying declaration at common law, (2) the supporting witness statements of neighbors give greater probative force to the statements, and (3) even the recovery of a dead body of the victim or a vital part of it, bearing marks of violence, is sufficient proof of the homicidal death of the victim, and even when the body is not recovered, pure circumstantial evidence itself is sufficient to sustain a charge of murder. Therefore, the court found that the appellate intervention is not warranted, and that the appeal has no merit.

The Case of Amina Ahmed Sessions Court, Vehari Multan (2014)

Sexual violence and rape

Two men were sentenced to death for the rape and murder of a 15-year-old girl in 2011. The court acquitted two suspects due to lack of conclusive evidence. The victim, Amina Ahmed, had gone missing from her home in Luddan village on December 26, 2011. Her dismembered body was found three days later and an autopsy confirmed that the victim was gang-raped and murdered. Luddan police arrested four suspects within 72 hours. During interrogation, two of the accused (Zareef and Faisal), confessed that they had kidnapped the girl and raped her for three days as “part of their new-year celebrations”. The accused said they murdered the victim and later dismembered her body on the belief that the victim was a prostitute. After two and a half years of proceedings, the Sessions Court found them guilty of the rape and murder and sentenced them to death. They were also fined Rs300,000 each, to be paid to the legal heirs of the victim as compensation.

United States v. Afolabi, 508 Fed. Appx. 11 (3d Cir. 2013) Court of Appeals Third District (2013)

Sexual violence and rape, Trafficking in persons

Afolabi was convicted in district court on twenty two counts relating to her participation in a visa fraud and human trafficking scheme. From October 2002 through September 2007, Afolabi and her family trafficked over twenty West African girls into the U.S. and forced them into unpaid labor. At trial, the prosecution introduced evidence of the physical, psychological, and sexual abuse the girls endured at the hands of Afolabi and her family in the U.S. and Togo. Specifically, the prosecution used evidence of abuse in Togo to establish the involuntary nature of the girls’ servitude. On appeal, Affolabi claimed the court erred in admitting evidence of acts occurring prior to the indictment period. The Third Circuit Court of Appeals held that the evidence was properly introduced because the evidence of prior bad acts in Togo met the requirements of Federal Rule of Evidence 404(b). The Court held that the evidence had a proper evidentiary purpose because it served to illustrate a plan or scheme to coerce the girls into servitude in the U.S. The Court further held that such evidence was relevant because it could contribute to the jury’s determination of the girls’ inability to leave. Additionally, the Court found that any potential prejudice resulting from the Togo evidence did not substantially outweigh its probative value especially in light of the limiting instruction provided by the trial judge.

United States v. Flanders, 752 F.3d 1317 (11th Cir. 2014) Court of Appeals Eleventh District (2014)

Sexual violence and rape, Trafficking in persons

Defendants Flanders and Callum engaged in a scheme to lure aspiring models to South Florida, drug them with Benzodiazepines, film them engaging in sexual acts and distribute the film for profit. The two were convicted on conspiracy charges and multiple counts of inducing women to engage in sex trafficking through fraud and benefitting from that scheme. The two were sentenced to a total imprisonment term of life, including sixty month terms for the conspiracy charge and life terms for each of the sex-trafficking charges to run consecutively to each other. On appeal Flanders challenged his conviction on sufficiency of the evidence grounds. He claimed the conspiracy conviction could not be sustained because there was insufficient evidence of an agreement between the Defendants or of an overt act in furtherance of the conspiracy. The Court held that evidence that Flanders represented himself as a Bacardi agent and a fictitious female employee of a modeling agency, together with evidence that Callum referred to the fictitious female employee and used phrases Flanders used to lure the models, was sufficient to establish an agreement amongst the Defendants to defraud the victims and constituted overt acts in furtherance of the agreement. Additionally, the Defendants challenged their convictions on double jeopardy grounds, claiming that convictions under 18 U.S.C. §1591(a)(1) and (a)(2) were multiplicitous. The Court held that Section 1591(a)(1) requires the prosecution to prove that the defendant was criminally responsible for the recruitment or enticement of a person with the knowledge that such person will be fraudulently induced to engage in a commercial sex act. By contrast, Section 1591(a)(2) only requires participation in a venture which has recruited a person for such purposes and that the defendant receive valuable benefit from his participation. Applying the Blockburger test, the Court held that the each subsection of the trafficking statute requires proof of different elements that the other does not and that convictions under each subsection do not result in a violation of the Double Jeopardy Clause of the U.S. Constitution.

Yolanda Floralde, et al. v. Court of Appeals, et al. Supreme Court of Philippines (2000)

Employment discrimination, Sexual harassment

The respondent was found guilty of grave misconduct for sexually harassing his co-workers and was dismissed from Government service. He successfully appealed, arguing that the evidence was insufficient to support the ruling. The Supreme Court reinstated the ruling, citing the well-established rule that findings of fact of an administrative agency must be respected even if they are not overwhelming and even if the appellate court would weigh evidence differently.

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

Sexual violence and rape

Kalenga, the Defendant, told his 70 year-old grandmother, the Victim, that he had collected some firewood in the bush and offered to give her some. When she followed him into the bush, she found that no firewood had been collected, and instead, Kalenga took off his clothes and had intercourse with her without her consent. The Victim returned home and reported the crime to the head of the village and then to the police. While in police custody, he denied the charge, but admitted to having gone into the bush to collect firewood. At trial the Defendant did not testify. The Trial Magistrate found the Victim’s story to be corroborated by the fact that no firewood had been collected and found no reason why the Victim would fabricate such a story involving her grandson. As this evidence went unchallenged by Kalenga, the Trial Magistrate convicted him. The Trial Magistrate committed Kalenga for sentencing to the High Court, which sentenced him to 16 years imprisonment with hard labor. Kalenga appealed to the Supreme Court on the grounds that there was no finding of corroborative evidence. The Supreme Court agreed with the trial court that his admission to escorting the Victim into the bush, the lack of motive of the Victim to lie, and the unlikelihood of mistaken identity constituted “something more” to corroborate the Victim’s testimony. The Supreme Court further found the age of the Victim to be an aggravating circumstance and increased his sentence from 16 years to 20 years.

Expediente 07-200123-0306-PE Tribunal de Apelación de Sentencia del Tercer Circuito Judicial de Alajuela, Sección Tercera (2013)

Sexual violence and rape

The public defender is appealing a conviction of sexual assault on behalf of his client. The appeal argues that (1) the facts alleged are imprecise and ambiguous (e.g., how is it possible to restrain someone’s arms while touching them at the same time?) and (2) the sexual contact was consensual because there was no evidence of the victim’s fighting back, she didn’t scream for help, had no injuries or physical signs of assault. Given the alleged failure to show that the contact was not consensual, the public defender argues that a charge of sexual harassment would be more appropriate, since the defendant was the victim’s employer. The court rejected the appeal, stating that the burden is not on the victim to show physical or objective signs of nonconsent; rather, the burden is on the defendant to show that the victim consented, which he failed to do. The court notes that victims are not obligated to display certain actions or behaviors to prove they did not consent to sexual contact. The court also notes that it is important to analyze each case on an individual basis, and not to reinforce stereotypes regarding victims’ behaviors. The court also dismissed the argument regarding the imprecise nature of the facts presented at the initial proceeding on the basis that the incident occurred six years ago, when the victim was 18 years old.

El defensor público está apelando la convicción de asalto sexual de su cliente. La apelación propone que, (1) los hechos alegados son imprecisos y ambiguos (por ejemplo, ¿cómo es posible contener los brazos de alguien y tocarlos sexualmente al mismo tiempo?) y (2) el acto sexual fue consensual porque no hay evidencia de que la víctima se resistiera, gritara pidiendo ayuda, o tuviera lesiones u otras marcas físicas de asalto. Dado el fallo en mostrar que el acto no fue consensual, el defensor público propone que un cargo de acoso sexual sería más apropiado, ya que el acusado era el empleador de la víctima. La corte rechazó la apelación concluyendo que la carga legal de probar que hubo falta de consenso mútuo en el acto sexual, no está en la víctima. La carga probatoria cae en el acusado, quien tiene que mostrar que la víctima consintió al acto sexual, lo cuál él falló en demostrar. La corte agregó que las víctimas no están obligadas a mostrar actos específicos o ciertos comportamientos para demostrar que no consintieron al acto sexual. Es importante analizar cada caso individualmente y no intensificando estereotipos con respecto a los comportamientos esperados de una víctima. La corte también rechazó el argumento con respecto a la imprecisión de la evidencia física discutido en el procedimiento inicial referente a que los actos ocurrieron seis años atrás cuando la víctima tenía 18 años de edad.

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.

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.

Phillips v. The Queen High Court of Australia (2006)

Gender-based violence in general, Sexual violence and rape

This appeal was based on the contention that there had been a wrong decision on a question of law concerning the admissibility of evidence in a sexual assault case. The appellant, Phillips, was convicted on several counts of rape and unlawful carnal knowledge and on one count of assault with intent to commit rape. The counts involved multiple teenage victims. Similarities existed across the victim’s stories and evidence was admitted concerning each victim. The Criminal Code stated that "an indictment must charge 1 offence only and not 2 or more offences," also stating that “Charges for more than 1 indictable offence may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose." The appellant contended that the offenses did not reflect “offences of the same or similar character,” arguing that trial of the eight charges at once had been unduly prejudicial to his case. The High Court held that “prejudice to the fair trial of the appellant was substantial” and made a formal order for retrial.

Case #41.770 - “C.A.” Buenos Aires Criminal and Correctional Court (2011)

Statutory rape or defilement

The victim was twelve to thirteen years old when she had sexual relations with the defendant. There was no presumption of sexual immaturity. It had to be proven by evidence and expert testimony. In this case, the testimony of experts, text message evidence, and the testimony of the victim demonstrated that she was not mature enough to consent to sex. While the outcome of this case was a positive one, the general Argentinean attitude towards statutory rape is not: sexual immaturity must be proven regardless of age.

La víctima tenía entre doce y trece años cuando tuvo relaciones sexuales con el acusado pero no hubo presunción de inmadurez sexual, la cual tenía que ser probada por la evidencia y el testimonio de expertos. En este caso, el testimonio de expertos, la evidencia del mensaje de texto y el testimonio de la víctima demostraron que no era lo suficientemente madura como para consentir el sexo. Si bien el resultado de este caso fue positivo, la actitud general argentina hacia la violación estatutaria no lo es: la inmadurez sexual debe probarse independientemente de la edad.

State of Rajasthan v. Jaggu Ram Supreme Court of India (2008)

Dowry-related violence

A new bride was threatened by her in-laws if her family did not provide a greater dowry. When local villagers protested these threats, the husband’s family killed his new bride by burning her with kerosene. The main issue of the case was to determine how the elements of dowry-death should be proven at trial under amended Indian Penal Code. The trial court acquitted the defendant of dowry-death in taking a narrow statutory view. The Supreme Court reversed, holding that a death shall be called dowry-death when a woman dies from burns or bodily injury that would not occur under normal circumstances within seven years of marriage. The Court added it should be in consideration that soon before her death the woman was subject to harassment by her husband or any relative of his or in connection with any demand for dowry. Shifting this burden to the husband’s family and broadening the scope of dowry death provides prosecutors with more powerful tools to convict for dowry-death and is meant to curb the recent rise in dowry-related violence.

Viswanathan v. State Rep. By Inspector of Police Supreme Court of India (2008)

Sexual violence and rape

A young woman was riding home from work when she was attacked and raped by a group of men. While the woman was able to identify three of her assailants, due to falling unconscious, she was unsure of who had raped her. No Test Identification Parade was held. Upon examination, she was found with no bodily injuries. The Trial Court convicted six men finding common intention to commit gang rape. The Supreme Court affirmed in part and reversed in part. Three of the convictions could not be upheld because of the victim’s failure to identify them. The significance of this case, however, is the Court’s recognition that identifiable physical injury is not necessary to prove rape; the circumstances in which a victim is found can be sufficient. And the recognition that not all of the convicted must have committed the actual rape but need only have the intention to commit gang rape.

Golla Yelugu Govindu v. State of Andhra Pradesh Supreme Court of India (2008)

Domestic and intimate partner violence

A fourteen-year marriage broke down when the husband became addicted to “vices”; he began to beat his wife and demand money of her parents. During a quarrel, with their children in the room, the husband killed his wife by hacking her with a sickle in her back and neck. The Trial Court convicted him and sentenced him to a life imprisonment, but he appealed, claiming that his children were too young to be competent witnesses. The Supreme Court held that there is no age restriction on competency. All people are competent to testify unless they cannot understand questions or give rational answers. The Supreme Court did reduce his sentence, however, to ten years, because the murder was done in a sudden act and not premeditated.

Shivaji @ Dadya Shankar Alhat v. The State of Maharashtra Supreme Court of India (2008)

Sexual violence and rape, Statutory rape or defilement

A man led a nine-year-old girl to a hill where he raped, strangled and murdered her. The girl’s sister testified that she saw her sister leave with the man and the mother later recovered the girl’s body from the hill and filed the police report against the accused. He was convicted and sentenced to death under Sections 376 and 302 of the Indian Penal Code. The man appealed, claiming that he should not be sentenced to death on circumstantial evidence alone. The High Court dismissed the appeal. The Supreme Court affirmed, holding that circumstantial evidence establishes the guilt of the accused, forming the conviction, but does not bear any relation to the sentencing. The Supreme Court defers discretion to trial judges in arriving at a proper sentence dealing with the subtleties of each case.

Moti Lal v. State of M.P Supreme Court of India (2008)

Sexual violence and rape

A man raped a woman while she guarded her husband’s agricultural field. The woman and her husband filed a police report, and the man was arrested and convicted under §§ 450 and 376(1) of the Indian Penal Code and § 3(1)(xii) of the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act. The offender appealed his conviction on the grounds that the prosecution relied too heavily on the victim’s testimony. The Court denied his appeal. Emphasizing the stigma associated with incidents of rape, the Court reaffirmed Indian courts’ presumption that rape victims who file reports are telling the truth.

Gourley v. Gourley Washington Supreme Court (2006)

Domestic and intimate partner violence, Sexual violence and rape

One of the parties’ children accused petitioner of sexual assault, including improper touching of her breasts and vaginal area on multiple occasions. During an interview with Child Protective Services (CPS), the child denied any improper touching, but subsequently stated that petitioner had cautioned her against disclosing any information about the improper touching. Additionally, in a written declaration, petitioner had admitted to rubbing aloe vera on the naked body of the child. As a result, respondent sought and received a domestic violence protection order against petitioner under Wash. Rev. Code 26.50 , prohibiting contact between petitioner and respondent and their three children. Petitioner appealed, arguing that, in granting the petition for protection order, the commissioner improperly considered hearsay evidence and violated his due process rights when he refused to allow cross-examination of the child, who made the accusation. The Supreme Court of Washington held that the rules of evidence need not be applied in ex parte protection order proceedings and, therefore, the commissioner did not err when he considered hearsay evidence in issuing the protection order. Furthermore, denial to allow cross-examination of the child did not violate petitioner’s due process rights, because nothing in the statutory scheme explicitly requires allowing respondent in a domestic violence protection order proceeding to cross-examine a minor who accused him of sexual abuse.

State v. Schultz Washington Supreme Court (2002)

Domestic and intimate partner violence

Defendant was charged with assault stemming from a domestic violence incident. At his arraignment, the court entered a no-contact order, forbidding defendant to have any contact with his victim for a period of one year. Defendant was found guilty of the assault. He resumed cohabitation with the victim, although both were aware that the no-contact order remained in effect. Two months later, the police department received a hang-up 911 call from the apartment shared by defendant and the victim. The state charged defendant with violation of domestic violence no-contact order (pre-conviction). Defendant contended that the no-contact order had expired upon Schultz's conviction. The Supreme Court of Washington held that a no-contact order entered at arraignment under RCW 10.99.040(3) does not expire upon a finding of guilt in a domestic violence prosecution but remains in effect until the defendant's sentencing. As a sentencing condition, pursuant to RCW 10.99.050(1), the trial court may issue a new no-contact order, or it may extend the existing order by clearly indicating on the judgment and sentence that the order is to remain in effect. Here, the no-contact order entered under RCW 10.99.040(3) at defendant’s arraignment was permissibly extended as a sentencing condition and thus remained in effect until its stated expiration date.

Sam v. State Wyoming Supreme Court (2008)

Domestic and intimate partner violence

Defendant was arrested for violation of a protection order and moved to suppress the results of a search of his motor vehicle, which uncovered evidence of drug crimes. The Supreme Court of Wyoming affirmed the judgment and defendant’s conviction. A sergeant of the Police department became aware of an order of protection in favor of Candie Hinton and her daughter, protecting them from defendant and, among other things, prohibiting defendant from calling them on the phone. Aware that the defendant was in violation of the terms of the protection order because of the Hintons’ complaints of phone harassment, the sergeant was preparing to seek a warrant for defendant’s arrest. The sergeant was also aware that he was authorized to make a warrantless arrest if he became aware of a specific instance of a violation of the protection order. Before the sergeant was able to obtain an arrest warrant, the Crisis Intervention Office contacted him and told him that Candie Hinton and her daughter were at the Office, that defendant had been calling the daughter’s cell phone, and that defendant had twice driven by the Office. When the sergeant observed defendant driving by for a third time, he stopped him and arrested him on the basis of violation of the protection order. During the search of defendant’s car for evidence relating to violation of the protection order, the sergeant uncovered evidence of drug crimes, but no evidence of defendant’s violation of the protection order. The Supreme Court of Wyoming sustained the conviction and ruled the evidence of drug crimes as admissible under these circumstances because the officer was aware that defendant was the subject of an order of protection and that he had violated that order several times immediately prior to his search and arrest. Consequently, the officer was justified in searching for evidence which might serve to sustain defendant’s prosecution for violation of the protection order and/or that he might have been an imminent and serious danger to his victims, given his prior behavior.

Boykin v. State Wyoming Supreme Court (2005)

Domestic and intimate partner violence

Defendant appealed a judgment of the District Court, convicting him of one count of assault and battery on a household member. Defendant argued, among other things, that the trial court abused its discretion in allowing the testimony of a convenience store clerk concerning statements the victim made to the clerk under the excited utterance exception to the hearsay rule. Defendant had gone to a bar with his friends and returned around 2:00 a.m. to the residence he shared with his girlfriend and their children, and entered into an argument with his girlfriend, at which time she slapped him and he hit her in the nose. The girlfriend took the children and left the house, driving to a nearby convenience store, where the convenience clerk called the police. At trial, the girlfriend testified that she did not remember whether or not she talked to the clerk about what happened. The clerk, however, testified that she told him that defendant hit her. The Supreme Court of Wyoming affirmed the judgment of the District Court, noting that the excited utterance exception applied to the circumstances and that the girlfriend’s statement to the sales clerk was spontaneous and not the result of reflection, deliberation, or fabrication. In affirming, the court specified five factors the trial court should consider in determining whether the excited utterance exception applies: 1) the nature of the startling event; 2) the declarant’s physical manifestation of excitement; 3) the declarant’s age; 4) the lapse of time between the event and the hearsay statement: and 5) whether the statement was made in response to an inquiry.

Matter of J.W.D. New Jersey Supreme Court (1997)

Domestic and intimate partner violence

Defendant appealed the trial court’s determination that he could not have the return of his firearms after a second domestic violence complaint. Upon appeal the appellate division reversed. The State appealed, and the Supreme Court of New Jersey found that the defendant was not entitled to the return of his firearms if the court were to find he posed a threat to public health, safety or welfare under the Prevention of Domestic Violence Act. Before the plaintiff and the defendant divorced, the plaintiff filed two domestic violence complaints. During the first complaint, the police confiscated the defendant’s guns and firearms purchaser identification card. The defendant ultimately obtained his firearms back. Subsequently, as the parties’ divorce action was pending, the second complaint arose when the plaintiff went to pick up their son from the defendant’s house. The police once again confiscated the defendant’s weapons. In addition to these confrontations, the defendant had affixed post-it notes to the windows stating, “danger, enter at your own risk,” and set up devices that appeared like booby traps. Further, during the parties’ marriage, the defendant would play music, strap on a holster and walk around the house with his gun. The plaintiff never knew if the gun was loaded on these occasions. The court found this established enough evidence to warrant denial of returning the firearms, as the defendant posed a threat to public safety and health under the Prevention to Domestic Violence Act.

State v. McGee New Mexico Court of Appeals (2004)

Domestic and intimate partner violence

A protective order prohibiting domestic violence involving McGee and Wife was filed on July 1, 1999, under the Family Violence Protection Act (“FVPA”). The order prohibited McGee from writing to, talking to, visiting, or contacting Wife. On February 16, 2000, McGee made several phone calls to Wife from the Otero County Detention Center. Based on these facts, the trial court convicted McGee for four counts of violation of the protective order and gave McGee six consecutive sentences. McGee appealed, arguing that the evidence was insufficient to support his conviction and the “double jeopardy” theory barred the six consecutive sentences.

KKO 2004:60 Supreme Court of Finland (2004)

Sexual violence and rape

The issue was whether the victim pointing out the rapist was sufficient evidence to hold someone guilty, taking into account the circumstances at the time of recognition. B was coming home late at night from a restaurant. On the way home B was raped. After the incident B tried to find the rapist. B met a friend C who happened to be in the companion of A. B recognized A as the rapist. All the parties where intoxicated at the time. A left the scene immediately when B started accusing A. There was not enough DNA evidence to be found to determine the identity of the rapist. At the District Court hearing B recognized A as the perpetrator. A pleaded not guilty but the District Court and later the Court of Appeal sentenced A to 1 year and 10 months prison for rape. The question in front of the Supreme Court was whether B pointing out A as the perpetrator was enough evidence to hold A guilty. The Court had no doubt that B was raped. The Supreme Court held that there were uncertainties including the parties' intoxication and the fact that B after identifying A reinforced the characteristics of the perpetrator. This could indicate that these were more observations about A and not about the actual rapist. B's recognition could not be held as the only evidence proving A guilty since it could not be seen as reliable. Also the Court held that according to the new witnesses D and E and the testimony by C, A could not possibly have had the time to reach the crime scene and back to where A was reported been seen. The court held that B's recognition could not be held as reliable evidence and the fact that A left as soon as B pointed out him as the perpetrator could not be seen as evidence proving A's guilt. According to the Supreme Court the evidence was not sufficient to prove A guilty. The charges were dismissed. Reliability of evidence is regulated under Finnish law pursuant to Chapter 17 Section 2(1) of the Finnish Code of Judicial Procedure (4/1734, as amended) (the "Code of Judicial Procedure"). The Code of Judicial Procedure provides that after having carefully evaluated all the facts that have been presented, the court shall decide what is to be regarded as the truth in the case. The court shall evaluate the evidence by: (i) deliberating the value of the evidence and (ii) resolving whether the presented evidence is sufficient. The court practices free deliberation which is limited by the need for careful evaluation and the fact that the assessment has to be grounded on objective criteria. The judge uses his/hers empirical rule and additional facts on the evidence evaluation. In criminal cases the burden of proof is on the prosecution and the plaintiff (Chapter 17 Section 1(2) of the Code of Judicial Procedure).

Helsingen Hovioikeus 2009:3420 Court of Appeal of Helsinki (2009)

Trafficking in persons

The issue here was whether defendants Lepp and Taning were guilty of trafficking in persons. Lepp and Taning had jointly solicited A to come with them from Tallinn to Helsinki, where they had lodged her and, profiting from her insecure position and dependence, had subjected her to sexual abuse by prostitution for the purpose of gaining financial profit for themselves. The District Court of Helsinki found that the activities of the defendants did not amount to human trafficking under the Finnish Criminal Code (39/1889, as amended).  The Court of Appeal reversed.  To establish the crime of trafficking in human beings under Chapter 25, Section 3 of the Criminal Court, the State must establish the means, methods, and purpose of trafficking. The Court of Appeal concluded that it was undisputed that the purpose of the defendants was to subject A to sexual abuse and prostitution (for payment) in Finland. In terms of methods, the Court of Appeal concluded, inter alia, that Lepp and Taning had solicited, by giving a phone call to A, A to activities in purposes of earning money through prostitution. Finally, the Court of Appeal concluded that A's childhood experiences and personal characteristics made her vulnerable to activities that are harmful to her.  Considering A's lack of foreign language skills, the fact that she had got into debt in Estonia, lack of means due to her mental characteristics, the Court found that she had no other choice than to continue prostitution under these circumstances. Therefore, she had been defenseless when she was acting as a prostitute, and she was dependant on Lepp and Taning, within the meaning of Chapter 25, Section 3 of the Criminal Code. Lepp and Taning were sentences to 1,5 years in prison for human trafficking and to pay damages of 4,000 Euros to A.

Helsingen Hovioikeus 2007:722 Court of Appeal of Helsinki (2007)

Trafficking in persons

The issue here was whether defendants Ilves, Marttila, Zdanovits, Hilden, Maalinn, Traublum and Angelsctock were guilty of aggravated trafficking in human beings of a mentally handicapped person and of aggravated pandering. According to Chapter 25 Section 3 a of the Finnish Criminal Code (39/1889, as amended) (the "Criminal Code"), if, in trafficking in human beings, (i) violence, threats or deceitfulness is used instead of or in addition to the means referred to in section 3,(ii) grievous bodily harm, a serious illness or a state of mortal danger or comparable particularly grave suffering is intentionally or through gross negligence inflicted on another person, (iii) the offense has been committed against a child younger than 18 years of age or against a person whose capacity to defend himself or herself has been substantially diminished, or (iv) the offence has been committed within the framework of a criminal organization referred to in chapter 17, section 1a, subsection 4 and the offence is aggravated also when considered as whole, the offender shall be sentenced for aggravated trafficking in human beings to imprisonment for at least two years and at most ten years. Seemen had come to Finland from Estonia to work as a prostitute. According to doctor's testimony, she was mentally handicapped. The Court concluded, in the light of the evidence presented, that Seemen had been threatened by violence and her freedom had been restricted by the defendants. The elements of trafficking were present as a whole when taking into account the intensiveness of the submission, even though Seemen might still have had her passport or key to the apartment. The Court of Appeal considered that the defendants were guilty of aggravated trafficking in human beings. Seemen, who was mentally handicapped, had been deceived and mislead into working as a prostitute in Finland. The court dismissed the claims of aggravated trafficking in human beings against Marttila and Hilden on grounds that they could not have been seen in having such a close connection with Seemen even though they were belonged to a criminal organization responsible for pandering. The Court also held that Angelstock was guilty only of abetting aggravated trafficking in human beings. According to Chapter 20 Section 9a(1) of the Criminal Code if, in pandering, (i) considerable financial benefit is sought, (ii) the offense is committed in a particularly methodical manner, and the offense is aggravated also when assessed as a whole, the offender shall be sentenced for aggravated pandering to imprisonment for at least four months and at most six years. According to the Finnish government proposal (34/2004), for the Criminal Code, "considerable financial benefit" would meant cases where the benefit is larger than on average. The Court decided that Ilves, Marttila, Zdanovits, Hilden, Malinn and Traublum were guilty of aggravated pandering. They were ordered to forfeit the proceeds of the crime and to pay damages to Seemen.

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.

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.

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.  

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.

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.


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.”


Closed-circuit Television in Cases Involving Child Testimony (2014)

Gender-based violence in general, Sexual violence and rape

This memorandum discusses the use of closed-circuit television (CCTV) in courtrooms for cases where there will be child testimony. The United Nations Office on Drugs and Crimes recommends that children be allowed to give testimony through CCTV or another mechanism in order to prevent the child witness from being traumatized. Unfortunately, given the funding requirements, few countries have the facilities to use CCTV. Yet, a number of countries have statutes allowing for alternative mechanisms to prevent child victims from seeing the defendant while giving testimony. Some laws providing for the use of CCTV have been challenged, but courts have upheld the laws in nearly every situation.

Problems Women and Child Victims and Witnesses Encounter in Sexual Offenses Cases in Tanzania (2012)

Gender discrimination, Gender-based violence in general

This memorandum examines the particular problems that women and children confront as vulnerable victims and witnesses in sexual offenses cases in Tanzania.

International Case Law

D.J. v. Croatia European Court of Human Rights (2012)

Sexual violence and rape

DJ was allegedly raped by his colleague. The Croatian authorities failed to conduct an effective investigation of the rape allegation by failing to conduct a proper inspection of the scene of the alleged crime, interview the injured party and other witnesses, and secure forensic evidence. The trial judge placed his emphasis on DJ alleged antisocial behavior thus lacked perceived impartiality. The ECtHR found Croatia in breach of the procedural aspect of Article 3 and 8 of the ECHR. It stressed that ‘the allegation that a rape victim was under the influence of alcohol or other circumstances concerning the victim’s behaviour or personality cannot dispense the authorities from the obligation to effectively investigate.’ The case adds to the Court’s jurisprudence recognizing violence against women as a form of ill-treatment prohibited by Article 3 of the ECHR and refines the contents of the state’s positive obligations to punish rape and investigate rape cases.