Women and Justice: Keywords

Domestic Case Law

Rreshpja v. Gonzalez United States Court of Appeals for the Sixth Circuit (2005)

International law, Sexual violence and rape, Trafficking in persons

The plaintiff-appellant, a citizen of Albania, arrived in the United States with a fraudulently obtained non-immigrant visa after a man attempted to abduct her in her home country. The Immigration and Nationalization Service initiated removal proceedings against her. During those proceedings the plaintiff requested either a grant of asylum or the withholding of removal and protection under the Convention Against Torture, arguing that she is at risk of being forced to work as a prostitute if she were to return to her home country. The immigration judge denied her application, as did the Board of Immigration Appeals. The Sixth Circuit affirmed the denial because the plaintiff was unable to show that she was a member of a particular social group that faced persecution in her home country.



Kalaj v. Holder United States Court of Appeals for the Sixth Circuit (2009)

Sexual violence and rape, Trafficking in persons

The plaintiff-appellant, an Albanian citizen who entered the United States on a non-immigrant visa, fled her home country after facing three attempted kidnappings that she believed would have led her into forced prostitution. After escaping the third attempt, her uncle arranged for her to obtain a fake passport to enter the United States. After she applied for asylum with the Immigration and Nationalization Service, she was notified that she was subject to removal as an alien not in possession of valid entry documents. Both an immigration judge and the Board of Immigration Appeals denied her application for asylum. The Sixth Circuit affirmed these denials, finding that the plaintiff was unable to demonstrate that she was a member of a persecuted social group and unable to show that the Albanian government was unwilling or unable to protect her.



Ministério Público v. [Undisclosed Parties], 108/14.5JALRA.E1.S1 Supremo Tribunal de Justiça (Supreme Court of Justice) (2016)

Domestic and intimate partner violence, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

One month after marrying the victim, “BB” (name omitted from public record), the defendant, “AA” (name omitted from public record) coerced BB to become a prostitute so she could help with their financial problems. After BB engaged in sexual relations as a prostitute, AA began to physically assault BB and to threaten to kill her children, alleging that was enjoying being a prostitute. Concurrently, AA’s 15-year old daughter “CC” (name omitted from public record) moved in with AA and BB, and shortly thereafter, AA engaged in non-consensual sexual activities with CC for approximately six months. AA had previously convictions for robbery, physical harassment and child pornography, among others. The Superior Court of Justice found AA guilty of the crimes of promoting prostitution under section 169 of the Portuguese Penal Code, domestic violence under section 152 of the Portuguese Penal Code, sexual abuse of a person incapable of resistance under sections 164 and 177 of the Portuguese Penal Code and illegal possession of weapon, and sentenced AA to 16 years of imprisonment.



Public Prosecutor of Zurich Canton v. X., BGE 129 IV 81 Supreme Federal Court (2002)

Sexual violence and rape, Trafficking in persons

The defendant, X., procured women for the purpose of prostitution from a recruiter operating in Thailand.  She deliberately chose women from poor and disadvantaged backgrounds because of their greater vulnerability and their perceived inability to resist demands made by X. On February 14, 2000, the Zurich District Court convicted X on charges relating to the promotion of prostitution of others under Article 195(3) of the Penal Code (Switzerland), but found the defendant not guilty in relation to trafficking in persons, assault, and other prostitution related offenses.  Her conviction resulted in a sentence of two-and-a-half years of imprisonment and a fine of CHF 10,000. On January 24, 2001, the Zurich Court of Appeal, found X. guilty of multiple counts of trafficking in human beings (under Article 196 of the Criminal Code), promotion of prostitution (under Article 195(3) and (4) of the Criminal Code), and for offenses relating to bribery (Articles 288a and 305). X.’s prison sentence was increased to four and a half (4.5) years and the fine of CHF 10,000 was affirmed. X. appealed to the Supreme Federal Court for the annulment of the decision made by the Zurich Court of Appeal. The Supreme Federal Court confirmed the decision of the Zurich Court of Appeal, adding that any consent that may have been given by any of the trafficked women after they had been trafficked and were present in Switzerland would have been irrelevant.



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

International law, Sexual violence and rape, Trafficking in persons

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

Decision available in English here.



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

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

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

Decision available in English here.  



Prosecutor's Office v. Tasim Kučević Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2009)

Sexual violence and rape, Trafficking in persons

Between May 2003 and June 2005, Tasim Kučević (“Kučević”) and his common law wife, Meliha Pjević (“Pjević”), procured and exploited at least six women by forcing them to dance and serve cocktails at their hotel and provide sexual services to customers.  Through advertisements for dancing positions in Spain and Serbia, the couple enticed four women from Russia and Ukraine to come to Serbia; the victims were then trafficked to BiH.  By taking advantage of a Bosnian woman’s drug addiction and a Romanian woman’s illegal immigrant status in BiH, Kučević and Pjević forced two other women into prostitution at the same hotel.  Eight of Kučević’s acquaintances supervised the women, guarded the hotel, and ran the prostitution business.  In 2007, the Court of BiH convicted Kučević and Pjević of Organized Crime in conjunction with Pandering.  In 2009, a panel of the Appellate Division convicted Kučević and Pjević of Organized Crime in relation to Trafficking in Persons in violation of Articles 250(3) and 186(1) of the Criminal Code of BiH.   The panel, taking into consideration extenuating and aggravating factors, sentenced Kučević and Pjević to 12 and six years’ imprisonment, respectively.  The two were also forced to forfeit the material gain from their criminal enterprise, BAM 286,440.  Lastly, the eight men who assisted Kučević and Pjević in trafficking and exploiting the women were convicted of the same charges and sentenced to between three months’ and four years’ imprisonment.

Second instance verdict available in English here.



Prosecutor's Office v. Mario Ćosić Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2016)

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

From mid-2007 until September 2012, Mario Ćosić and four acquaintances enticed at least six women to travel to BiH to work at a restaurant Ćosić operated.  Ćosić himself would often travel to Serbia to recruit women.  Once in BiH, the women – nationals of Moldova, Serbia, Ukraine, and Russia – were forced to provide sexual services for money at the restaurant.  In addition, a seventeen-year-old waitress employed by Ćosić provided sexual services for guests in exchange for money, half of which Ćosić kept.  Ćosić was charged with International Enticement to Prostitution under Article 187(1) of the Criminal Code of BiH and Enticing a Juvenile into Prostitution under Article 210(4) of the Criminal Code of the Federation of BiH.  In December 2016, Ćosić, facing up to 40 years in prison, entered a plea agreement to the above charges, under which he will serve 20 months in prison.  One of Ćosić’s coconspirators, Miroslav Čosić, similarly pleaded guilty to International Enticement to Prostitution in exchange for a six-month prison sentence.



Uganda v. Umutoni High Court at Kampala (International Crimes Division at Kololo) (2014)

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

The accused was charged with human trafficking and aggravated child trafficking for transporting minor girls, who were promised supermarket jobs in Uganda, from Rwanda to Uganda for the purposes of forced unpaid household labor and prostitution.  The accused pleaded not guilty and maintained that she transported the girls to Uganda with their parents’ permission for a holiday.  The Court found her guilty of the charges related to two of the girls, but found that one of the girls was over the age of majority (19 years old).  The Court sentenced the accused to two concurrent terms of imprisonment: eight years for aggravated child trafficking and five years for trafficking in persons.  



Frudenthal v. Israel Supreme Court (sitting as the Court of Criminal Appeals) (2003)

Gender-based violence in general, Sexual violence and rape, Trafficking in persons

The appellant appeals his conviction for trafficking in persons for the purposes of prostitution in violation of Penal Law sec. 203A(a), pimping for prostitution, and threats and false imprisonment.  The appellants’ two co-conspirators reached plea agreements with prosecutors.  The appellant generally admits the underlying facts of the case, but argues on appeal that these facts do not amount to trafficking in persons but rather pimping for prostitution, which has a lower sentence.  The appellant “acquired” the two complainants in November of 2001 and brought them to a facility in Tel Aviv operated by the first co-conspirator for the purpose of employing them as prostitutes. Appellant “imprisoned the complainants in the facility, took their passports, and abused them physically.” The first co-conspirator supervised the complainants, forced them to work as prostitutes, and collected fees. In or around February 2002, the first co-conspirator transferred the complainants to the custody and supervision of the appellant. The appellant housed the complainants in his apartment and managed all aspects of their work as prostitutes, from arranging clients to fee collection. The appellant made each complainant pay him part of her profits for food and rent.  The complainants were not allowed to leave the apartment without the appellant’s permission and supervision.  The appellant argued that the lower court erred by not applying a narrow definition of “purchase” as used in property law.  The Supreme Court held that section 203A(a) prohibits any deal intended to create a property relationship in which a person acquires rights in another human being. The meaning of the phrases “sale and purchase” in section 203A(a) refer to any deal, in exchange for any consideration, that grants a person any kind of property right in another human being who serves as the object of the deal. It is immaterial whether the business arrangement is under the guise of ownership, rental, borrowing, partnership, or any other means of creating a property interest in a person. The Court held that the appellant’s actions clearly constituted a business arrangement that created a property interest in a human being and that, therefore, these circumstances met the legal criteria for the crime of trafficking in persons. 



Legislation

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

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

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



International Case Law

L.R. v. United Kingdom European Court of Human Rights (2014)

Sexual violence and rape, Trafficking in persons

The applicant is an Albanian national who was abducted and brought into the UK where she was forced to work as a prostitute. She escaped and requested asylum for fear of retribution from her abductor if she returned to Albania. Her request for asylum was rejected by the UK government and she complained that her removal was in violation of Articles 2, 3, 4, and 8 of the Convention. The UK did grant her application though, so the issue was resolved without having to consider whether there was a violation of the Convention.