Women and Justice: Keywords

International Case Law

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

International law, Sexual violence and rape

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



Legislation

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

Sexual violence and rape, Statutory rape or defilement

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



Domestic Case Law

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

Sexual violence and rape

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



Counsellor, et al. v. Republic of Liberia Supreme Court of Liberia (2008)

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

On appeal, the Supreme Court affirmed the lower court’s judgment that appellants, Living Counsellor, Wisdom Counsellor, and Righteous Counsellor, were guilty of rape. Their four female victims ranged from ages 7 to 12. The victims were introduced into the Kingdom Assembly Church of Africa, or the “Never Die Church,” so named because it promised followers eternal life on earth. It also promoted free sexual relations among its members. The victims testified that they were beaten and raped by members of the church. The court stated that “the evidence adduced during the trial show that rape is institutionalized in the Never Die Church. The testimonies given by the prosecution witnesses also points to a situation where the victims were living in a condition of servitude almost identical to slavery.” The appellants argued that “they did not rape the girls but that they only share love with their sisters because they have no earthly mother or father but only Wonderful Counsellor.” They argued that their conviction should be overturned because they were also charged with gang rape, but the trial judge failed to instruct the jury on that charge. Still, their conviction was upheld because they were convicted of rape nonetheless.



Prosecutor of Pattani Province v. Rashane Noosuwan and party defendant (No. 1917/2550) Supreme Court of Thailand (2007)

Sexual violence and rape

The plaintiff claimed the co-defendants and a party of five, together, committed battery against the victim, who is a twenty-six year old female, forcefully performed public indecency by grabbing the victim’s breasts, forced the victim to put the defendants’ genitalia parts in her mouth and gang raped the victim alternately. The second defendant denied raping the victim, contending he only forced his genitalia part in the victim’s mouth and grabbed the victim’s breasts. The Supreme Court held that this is overall a crime of gang rape. For the second defendant to force his genitalia part inside the victim’s mouth and grab the victim’s breasts during the gang rape reflected that the second defendant was a principal of first degree in the gang rape. The second defendant did not have to participate in the rape itself.



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

Gender-based violence in general, Sexual violence and rape

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



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.



State of Rajasthan v. Hemraj & Anr Supreme Court of India (2009)

Sexual violence and rape

The Supreme Court held that a woman present for a gang rape did not share the common intention to rape and, therefore, could not be convicted of rape. According to §§ 375 and 376 of the Penal Code, only a man can commit rape, making it impossible for a woman to be convicted of a gang rape. This case is important because it raises the issue of how or when to hold women responsible for sexual violence against other women.



State of Orissa v. Naiko Supreme Court of India (1992)

Sexual violence and rape

A woman was kidnapped in broad daylight, taken to a forest, then gang-raped. The defense argued that the woman's injuries were not severe enough for her to have resisted multiple rapists. The Court held that a woman need not present evidence of resistance to support a charge of rape.



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

Sexual violence and rape

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



Kamau v. Republic High Court of Kenya at Nakuru (2004)

Sexual violence and rape

The appellant was convicted of rape and sentenced to 12 years imprisonment with hard labor and six strokes of a cane.  The complainant testified that on the day of the incident, she met the appellant at a bar and agreed to spend the night with him for a sum of money. The appellant took her to a house where he and two colleagues raped the complainant all night in turns.  The appellant testified at trial that they had an "arrangement" with the complainant and did not rape her.  The complainant testified that she had withdrawn her consent before intercourse with the appellant and his co-perpetrators.  The morning after, the complainant escaped the house to report the rapes to the police and received treatment for her injuries at a hospital.  Ruling on the appeal, the High Court found that that the complainant withdrew her initial consent before the sexual act and that the appellant is guilty of rape.  The Court also reduced the sentence to six years imprisonment and set aside the corporal punishment, which was outlawed by the Criminal Law (Amendment) Act of 2003.  



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

Sexual violence and rape

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