Cole Ross was convicted of murder and arson. He appealed his conviction claiming, among other things, that the Commonwealth of Kentucky used its preemptory challenges to dismiss female jurors on the basis of gender. Seven out of the nine peremptory challenges used by the Commonwealth to remove prospective jurors were used to dismiss women. The trial court found that the Commonwealth’s justifications were gender neutral and non-pretextual. On appeal, the Supreme Court of Kentucky found that the disproportionate striking of women jurors and the Commonwealth’s admission during jury selection that they wished to dismiss female jurors created the inference of gender discrimination. The Supreme Court of Kentucky found that this inference was not rebutted by a gender-neutral justification, thereby constituting a Batson violation. Accordingly, the Commonwealth violated the Equal Protection Clause by denying the women the right to be on a jury on the basis of their gender and thus the case was remanded to the trial court for further proceedings
Women and Justice: Keywords
The Victim, born a male, identified as a female while growing up and was diagnosed with gender identity disorder. At the age of twenty-four, the Victim underwent a sex-change operation and was diagnosed as a transsexual by a psychiatrist. The Victim had cohabited with a male for ten years and had lived as a female for the past thirty years after the operation. Under Korean law, the victim of the crime of rape must be female. Thus, the central issue of the case pertained to the appropriate standard in determining the legal gender of a rape victim. The Supreme Court affirmed the lower court’s decision, holding that the Victim was a female under the law. In making this decision, the court noted that it must conduct a comprehensive evaluation of the biological, psychological and social factors, rather than merely relying on biology. Thus, in determining an individual’s gender, the Supreme Court noted that lower courts must consider the individual’s own sense of identity, including an individual’s behavior, attitude and characteristics. Additionally, courts must look to factors such as the individual’s discomfort regarding his or her biologically assigned gender, the individual’s sense of belonging and identity, whether the individual wants to obtain the genitals and other sexual characteristics of the opposite sex, whether a psychiatrist has diagnosed the individual as having transsexualism and whether the individual has received psychiatric treatment and hormone therapy, which failed to cure such symptoms. Lastly, courts must look at factors such as whether the individual has adapted to the opposite sex mentally and socially, has undergone sex reassignment surgery, identifies with such gender, wears the clothes and carries him or herself as the opposite sex, and whether others accept the changed gender. In this case, the Victim identified herself as a female and did not associate herself as a male, underwent a sex-change operation, and lived her life as a female for over thirty years after the operation. Thus, the court concluded the Victim was a female, and a rape was committed with knowledge that the Victim was a female.
The Supreme Court upheld lower court’s decision finding that the Seoul Young Men’s Christian Associations (“YMCA”), a private organization, violated the Constitution when it excluded female from general membership. The Supreme Court found sexual discrimination, which excludes women from general membership qualification, to be against “social order exceeding tolerable limits in light of our community’s sound common senses and legal sentiment.” Accordingly, the Supreme Court found YMCA to have violated the Constitution despite its private organization status.
This memorandum discusses the strategies courts employ around the world to treat child victims and witnesses and their evidence when giving testimony. International and regional human rights standards have highlighted good practices in the treatment of vulnerable young child witnesses, centering on the foundational principle of the best interests of the child. In turn, domestic courts and legislatures worldwide have created and employed a broad range of judicial approaches to the admissibility of child witness testimony; the reliability of child witness evidence, and the procedures that should be employed to facilitate child witness testimony.
Although great strides have been made in breaking down the barriers that have previously kept women from being able to have the same rights and privileges to work in the legal profession that men enjoy, there is still progress to be made.