Women and Justice: Keywords

Legislation

Ley Contra la Violencia Domestica con sus Reformas (Law Against Domestic Violence and Reforms, 1997 and 2005) (2005)

Domestic and intimate partner violence

Legislative Decree No. 132-97 (the “Act”) declares that the State is committed to protecting the physical, patrimonial, and sexual integrity of women against any form of violence by their spouse, former spouse, partner, ex-partner or any similar relationship. The Act is significant because it was the first time the State passed a law requiring the protection of women against domestic violence. In addition, it called on the State to adopt public policy measures necessary to prevent, punish, and ultimately eradicate domestic violence against women.

 

El Decreto Legislativo N ° 132-97 (la "Ley") declara que el Estado se compromete a proteger la integridad física, patrimonial y sexual de las mujeres contra cualquier forma de violencia por parte de su cónyuge, ex cónyuge, pareja, ex pareja o cualquier relación similar. La Ley es importante porque fue la primera vez que el Estado aprobó una ley que exige la protección de las mujeres contra la violencia doméstica. Además, obliga al Estado a adoptar las medidas políticas y públicas necesarias para prevenir, sancionar y, en última instancia, erradicar la violencia doméstica contra las mujeres.

 



Domestic Case Law

Ms. A v. Mr. B [GBK I/408/12] Equal Treatment Commission (2014)

Sexual harassment

In this case, the Applicant brought an action against an older classmate in a vocational course for incessantly taunting and making sexually crude comments to or in the presence of the Applicant. Austria’s Equal Treatment Commission (the “Commission”) concluded that this amounted to sexual harassment in violation of Section 6 para. 1 of the Federal Equal Treatment Act (Bundesgleichbehandlungsgesetz). This opinion is notable for the Commission’s recognition that taking the woman’s age into account is important to the extent that harassed persons deal differently with such treatment and take different lengths of time to process sexual harassment. The Commission considered the practical links between hierarchy, power and sexual harassment, noting that while the occurrence of sexual harassment is always an unacceptable intrusion into the human dignity of the harassed persons, young people are particularly vulnerable. 



C1 427.265-1/2012/7E Asylum Court (2012)

Forced and early marriage, Harmful traditional practices

The Applicant, a member of the Hazara ethnic group, illegally immigrated to Austria with her parents and four minor siblings from Afghanistan when she was approximately nine years old. The Federal Asylum Agency of Austria denied her and her family’s petitions for asylum. The Asylum Court reversed the denial, in part because the Federal Asylum Agency failed to adequately investigate and assess the dangers to the Applicant in Afghanistan. The Asylum Court found that the Federal Asylum Agency erred in summarily denying asylum based on the Applicant’s statements without considering outside credible reports or sources relevant to the applicant’s asylum claim. The Asylum Court concluded that the Applicant belonged to a particular social group based on her gender, age, and cultural and religious origins, and that she would have to live in accordance with the family’s conservative values if she returned to Afghanistan. As such, the Applicant would not have the opportunity to pursue any goals outside the religion and customs of her community nor would she be able to protect herself against violence or undesired restrictions. Specifically, returning to Afghanistan would mean that the Applicant would be raised to be a homemaker despite any wishes to have a career outside the home, would be married to a man chosen by her father or grandfather, and her freedom of movement and educational opportunities would be severely restricted. In granting the Applicant’s asylum claim, Austria’s Asylum Court considered both gender-specific and child-specific factors that were not brought forth by the Applicant but rather gathered from credible investigative sources. 



U1987.960V Western High Court (1987)

Domestic and intimate partner violence

The defendant was found not guilty of brutal violence by the Municipal Court, but was sentenced to sixty days of conditional imprisonment. The defendant was accused of abuse when he knocked his wife over, tore at her clothes, hit her, pulled her hair, bit her, and tried to take photographs of her naked. The Municipal Court awarded her compensation of 4,000 DKK. Subsequently, the defendant appealed to the Western High Court for reduced liability for compensation. A majority of the court found that the wife was not entitled to compensation for two reasons: 1) the defendant was only sentenced to conditional imprisonment; 2) the defendant was found not guilty of brutal violence by the Municipal Court. A dissenting judge advocated awarding compensation because of the circumstances of the abuse and also because the defendant was found guilty of committing ordinary violence. Ultimately, the High Court denied compensation to the wife.



The cases against Daniel Martinez, Manuel Pop Sun, Reyes Collin Gualip and Lieutenant Carlos Carías First Tribunal of Criminal Sentencing, Narco-trafficking and Crimes against the Environment (2011)

Gender violence in conflict

The cases against Daniel Martinez, Manuel Pop Sun, Reyes Collin Gualip and Lieutenant Carlos Carías, First Tribunal of Criminal Sentencing, Narco-trafficking and Crimes against the Environment (Tribunal Primero de Sentencia Penal, Narcoactividad y Delitos contra el Ambiente de Guatemala, 2011. Crimes against humanity, genocide. In 2009, following the decision in the case of the “Las dos Erres” Massacre, the Supreme Court of Justice ordered the State to continue cases against those involved is the massacres perpetrated during Guatemala’s civil war. A case was brought against Daniel Martinez, Manuel Pop Sun, Reyes Collin Gualip and Lieutenant Carlos Carías in the First Tribunal of Criminal Sentencing, Narco-trafficking and Crimes against the Environment in Guatemala. The accused were sentenced to 6,060 years in prison for crimes against humanity, including sexual violations, and the murder of 201 locals from Dos Erres, of which they will each serve the maximum of 50 years. The conviction of four members of Guatemalan Special Forces was a step towards fulfilling the requirements imposed by the Inter-American Court to end impunity in Guatemala. Another Guatemalan ex-Soldier, Pedro Pimental Rios, was sentenced to 6,060 years by a three judge panel after being extradited from the United States just months later on March 12, 2012. He will also serve the maximum sentence in Guatemala, 50 years.

 

Los casos son contra Daniel Martínez, Manuel Pop Sun, Reyes Collin Gualip, y el teniente Carlos Carías, Primer Tribunal de Sentencias Penales, Narco-Tráfico y Delitos contra el Medio Ambiente (Tribunal Primero de Sentencia Penal, Narcoactividad y Delitos contra el Ambiente de Guatemala, 2011). Los crímenes alegados son humanitarios y de genocidio. En 2009, tras la decisión en el caso de la Masacre de "Las dos Erres", la Corte Suprema de Justicia ordenó al Estado que continuara los casos contra los involucrados, en la masacre perpetrada durante la guerra civil de Guatemala. Los casos fueron traídos contra Daniel Martínez, Manuel Pop Sun, Reyes Collin Gualip, y el teniente Carlos Carías en el Primer Tribunal de Sentencias Penales, Narco-Tráfico y Crímenes contra el Medio Ambiente en Guatemala. Los acusados fueron sentenciados a 6,060 años de prisión por los crímenes humanitarios, incluyendo violaciones sexuales, y el asesinato de 201 lugareños de Dos Erres, de los cuales cada uno servirá el máximo de 50 años. La noción de cuatro miembros de las Fuerzas Especiales de Guatemala fue un paso hacia el cumplimiento de los requisitos impuestos por la Corte Interamericana para poner fin a la impunidad en Guatemala. Otro ex soldado guatemalteco, Pedro Pimental Rios, fue condenado a 6,060 años por un panel de tres jueces luego de ser extraditado de los Estados Unidos unos meses después, el 12 de marzo de 2012. Él también cumplirá la pena máxima en Guatemala, 50 años.



Case No. 128/2011 Denmark Supreme Court (2012)

Domestic and intimate partner violence

The defendant was found guilty of acts of violence toward his sons, which included physical abuse and constituted a continued offense because the violence involved a number of uniform and continuous acts over a period of ten (10) years. Additionally, he was found guilty of threatening his wife with abuse and death. Prior to these offenses, the defendant had no criminal record. Initially, the High Court found the defendant guilty of acts of violence and abuse against his children and wife and sentenced to one year and three months of imprisonment. Subsequently, the Supreme Court reversed the High Court’s determinations that the defendant did not commit any abuse and the acts of violence did not constitute a continued offense as well as increased the length of the defendant’s imprisonment from ten (10) months to one year and three months.



Mandla Mlondlozi Mendlula v. Rex Supreme Court of Swaziland (2013)

Femicide, Gender-based violence in general

Appellant was convicted of murdering his girlfriend and sentenced to 20 years imprisonment. Appellant appealed that the sentence was too harsh and severe and that it induced a sense of shock. Appellant presented mitigating factors that he was married with four minor children to support, the sole breadwinner, a first offender, and deserved to be given a second chance in life. The Supreme Court dismissed the appeal after considering the interest of society, the seriousness of the offense, the fact that the crime was premeditated, and the fact that the killing was gruesome and brutal. The Supreme Court further stated that sentence was fair “particularly in the upsurge in the killing of women as well as the need to impose deterrent sentences which would provide the safeguard against this onslaught.”



Somiso Mbhamali v. Rex Supreme Court of Swaziland (2013)

Femicide, Gender-based violence in general

Appellant was sentenced to 20 years imprisonment for the murder of his elderly aunt and appealed for 10 years of his sentence to be suspended because the appellant believed the victim was a witch and could kill him with the power of witchcraft. The Supreme Court upheld the original sentence and held that a perpetrator’s belief in witchcraft is not a mitigating factor when computing an appropriate sentence for murder. While a genuine belief in witchcraft could be treated as an extenuating circumstance in certain instances, murder committed because of a belief in witchcraft would not be mitigated by the belief.



The Case of Naila Farhat Supreme Court of Pakistan (2009)

Acid violence

The acid violence case of Mst. Naila Farhat was brought in November 2008. In 2003, the perpetrator sprayed acid on the (then) 13 year old victim’s face in retaliation for her refusal of a marriage proposal. Ultimately, he was sentenced to 12 years imprisonment and ordered to pay 1.2 million rupees in damages. However on appeal to the High Court, the Judge stated that if he paid the fine he would not be imprisoned. In April 2009, the victim appealed to the Supreme Court and was the first case on an acid attack to reach the Supreme Court. The case was heard by the Chief Justice at his own initiative on the 20 November 2009, not only highlighting the concept of acid violence (and giving the perpetrator a higher sentence than the first lower court as well as imposing a fine), but there were also important recommendations given to the government for (a) providing free medical treatment and legal aid to acid/burn victims to facilitate their recovery; and (b) the development of relevant legislation to specifically deal with acid violence in Pakistan. The case lead to the creation of the Acid Control and Acid Crime Prevention Bill.



Robert Rowe v. R Court of Appeals of Jamaica (2014)

Sexual violence and rape

A 13 year old female complainant was raped in the home of the male defendant, where the complainant was a regular visitor. Despite rejecting the defendant’s monetary compensation to remain silent, the complainant did not disclose the incident until two weeks later when a third party noticed that she appeared to be depressed. At trial, the defendant was convicted by a jury for the offences of rape and indecent assault for which he was sentenced to 12 years and 2 years imprisonment, respectively, to be served concurrently. The jury had been instructed to base its decision on the credibility of the witnesses. On appeal, the defendant argued, inter alia, that there was a presumption of doubt on which the trial judge ought to have instructed the jury regarding the complainant’s credibility. According to the defendant, the complainant had several opportunities to promptly speak to a third party after the incident but did not do so, which should have called the truth of her testimony into question. The Court of Appeal dismissed the appeal because it was in the jury’s discretion whether to believe the complainant. Moreover, the Court, in dictum, noted that it is established that many victims of sexual crimes remain silent for a considerable length of time before making disclosures to third parties, and notwithstanding the lapse of time, the perpetrators of these crimes have nevertheless acknowledged the truth of the allegations made against them.



R v. Noel Campbell, Robert Levy Court of Appeals of Jamaica (2007)

Sexual violence and rape

While walking on the sidewalk on her way to work, a young woman was forced into a gully where she was raped and robbed at gunpoint by two men in the early hours of the morning. At trial, the two men were convicted after the woman had seen and recognized both defendants out in public after the rape and subsequently reported them to the police. The defendants appealed the conviction on the grounds that, inter alia, the trial judge had failed to adequately warn the jury of the dangers of relying on uncorroborated evidence in rape cases and also that the trial judge had failed to adequately assess the woman’s identification evidence. The Court rejected the appeal, citing precedent that, in sexual assault cases, where the only defense is mistaken identity and the court is satisfied with the complainant’s identification, traditional sexual assault warnings regarding corroborated evidence need not be given to the jury.



Campbell (Peter) v. R Court of Appeals of Jamaica (2008)

Sexual violence and rape

While taking a taxi to school, a 13-year-old girl was forcibly raped by the taxi driver, whom she had previously encountered. After learning about the incident, the girl’s mother reported the driver to the police and he was subsequently convicted at trial for rape and sentenced to 15 years imprisonment at hard labor. At trial, the driver’s defense was one of alibi—a denial of his involvement in the offence. When instructing the jury on the definition of rape, the trial judge omitted a discussion on the element of intent to rape, which would have required the jury to find that the defendant intended to have sexual intercourse with the girl without her consent. On appeal, the driver argued, inter alia, that this omission of an element of rape from the jury instructions rendered his conviction unsatisfactory. However, the Court rejected this argument because the driver’s defense did not challenge whether the girl had consented to the intercourse, instead he argued that he had no intercourse with the complainant. According to the Court, the question of intent to rape is only relevant in cases where there is an issue as to whether or not the complainant had consented, and thus because the driver’s defense was one of alibi, and not consent, the Court concluded that it was not necessary for the trial judge to provide an expanded definition of rape.



Richard Barrett v. R Court of Appeals of Jamaica (2009)

Sexual violence and rape

A 16-year-old girl was walking home from school when a man drew a gun on her, forced her into his home and raped her. At trial, the judge—acting as trier of fact—found the man guilty of illegal possession of a firearm and rape. Because the incident was not corroborated, the judge characterized the case as an issue of credibility. The defense attempted to discredit the girl’s credibility by pointing to discrepancies between her testimony in court and her original statements to the police. While the trial judge had acknowledged that the testimony was inconsistent, the judge also acknowledged that the girl’s rape was a traumatic experience and thus her statements to the police were given under exceptional circumstances. The Court agreed with the lower court that discrepancies are to be expected in cases of this nature and so long as they are minor discrepancies, the witness may still remain credible.



Prosecutor of Nakorn Ratchasima Province v. Piman Pollachote (No. 2398/2553) Supreme Court of Thailand (2010)

Sexual violence and rape

On the night of the crime committed, several perpetrators had gang raped the victim, at which the defendant was present. The defendant later drove the victim from the scene of the crime, and raped the victim along the way. The issue presented in front of the Supreme Court was whether the defendant was liable for gang rape when the defendant merely knelt down and was unclothed beside the victim at the gang rape. The Supreme Court held that the circumstances of the case as presented shows that the defendant was ready to gang rape the victim if had the chance. The defendant therefore was considered a principal in first degree in the gang rape.



Shalem v. Twenco Ltd Supreme Court of Israel (2006)

Property and inheritance rights

The appellant wife sought a declaration that under the joint ownership rule, she owned half the rights in a residential apartment that was registered in her husband’s name only, and her interest in the apartment was protected against attachment by her husband’s creditors. The court held that date spouses satisfy conditions of the joint ownership rule (sound relationship, united efforts) is the relevant date for “purely family assets” like the residential apartment in question. But not until a “critical date” in the marriage, or when the marriage faces a real danger to its continuation because of a serious crisis between the spouses, does joint ownership of other rights and liabilities crystalize. Here, because the appellant’s marriage had not reached such a “critical date,” her interest in the apartment was protected against attachment.



State of Israel v. Ben-Hayim Supreme Court of Israel (2006)

Sexual harassment

The accused, a male manager of a branch of the Postal Authority, was convicted of unbecoming conduct under the Civil Service (Discipline) Law for sexually harassing a female temporary employee at his branch. The parties reached an agreement under which the accused was disciplined with severe reprimand, loss of one month’s salary, and reduction of one grade for a period of a year. The court held that the disciplinary measures should be significantly stricter, considering that the accused deliberately abused his authority, had considerable influence over the victim’s professional future, was twenty years older than the victim, and was aware that the victim had recently lost her father and was emotionally vulnerable.



Israel Women’s Network v. Government Supreme Court of Israel (1994)

Employment discrimination

Three men were appointed to the boards of directors of Government corporations when neither board was comprised of any women members at the time of appointments. The court found each appointment unlawful under s. 18A of the Government Corporations Law (Amendment No. 6) (Appointments), which required ministers to appoint, “in so far as it is possible in the circumstances of the case, directors of the sex that is not properly represented at that time on the board of directors of the corporation.” As a result, the court set aside each of the three appointments without prejudice.



Migdal Insurance Company Ltd v. Abu-Hana Supreme Court of Israel (2005)

Gender discrimination

The court held that loss of earnings damages for minor children should be based upon the national average wage. Factors that might warrant deviation from this presumption include the child’s age, when there is a real chance the child would have worked in another country, and other concrete characteristics of the injured child. Here, because the child in question was injured when she was only five months old, assumptions regarding her future were inappropriate.



Shakdiel v. Minister of Religious Affairs Supreme Court of Israel (1988)

Gender discrimination

The petitioner, a female resident of Yerucham and an Orthodox Jew, was disqualified from the local religious council because of a stated tradition of not appointing women as members of religious councils. The court found, however, that although the religious council provided services that were religious in character, the qualifications of the council were solely dictated by the general legal system. Thus, the exclusion of the petitioner based upon her gender was discriminatory.



Dr. Naomi Nevo v. National Labour Court Supreme Court of Israel (1990)

Gender discrimination

The petitioner challenged a pension rule requiring women to retire at age 60 while requiring men to retire at age 65. The court held that the rule was discriminatory, because it treated women differently from men where there was no relevant difference between men and women such that the rule served a legitimate purpose. In addition, the fact that the Male and Female Workers (Equal Retirement Age) Law, which corrected the difference, came into force subsequent to the judgment of the lower court did not preclude a showing of discrimination prior to the law coming into effect.



Barriya v. The Kadi of the Sharia Moslem Court Supreme Court of Israel (1955)

Gender-based violence in general

The aunt of three children applied to a Moslem Religious Court to be appointed as their guardian. The children’s mother argued that she was entitled to the guardianship under the Women’s Equal Rights Law. The mother, believing that the religious judge (the Kadi) would apply religious law and disregard the Women’s Equal Rights Law, applied for an order staying or setting aside the proceedings of the religious court. The court held that the issue was not ripe for review, as there was no indication that the Kadi would disregard civil law and rely only upon religious law. The order in which the Kadi decided to proceed was a matter of procedure with which the court would not interfere.



Taha Najar v. State of Israel Supreme Court of Israel (2005)

Harmful traditional practices

The appellant, a Bedouin man, was convicted for murder with malice aforethought for killing his sister after she insisted that she would travel to Egypt alone. The appellant claimed that his charge should be reduced as the killing was the result of provocation. He further argued that the court should take into account that he was defending his family honor, as it was unacceptable in Bedouin culture for unmarried women to travel alone. The court ruled that no argument of “family honor” as a motive for killing someone will be allowed by a court in Israel. The human dignity of the victim and the sanctity of life take precedence over family honor.



Case Number E.2005/151, K. 2008/37 Constitutional Court of Turkey (2008)

Domestic and intimate partner violence, Gender-based violence in general

The Constitutional Court held that a provision in the Turkish Penal Code that increases the penalty by half for the crime of laceration if committed against family members is constitutional. Although such a penalty treats family members differently than non-family members, the Court found that such differential treatment did not violate the equality principle under the Turkish Constitution. Under the equality principle, criminals who have committed the same offence may not be subject to the same penalty if they have different legal statuses. Here, the Court found that the Turkish Legislature, through the Turkish Penal Code, expressed a preference for family members, giving family members a different legal status and thus the provision did not violate the equality principle. In reaching its decision, the Court also noted that Turkey has taken “extensive legal and administrative measures” to prevent and reduce domestic violence in Turkey. Because the state must protect family members from danger and family members have a different legal status, the Court found that the provision increasing the term of imprisonment and fine for laceration against a family member is constitutional.



Claimant v. the Minister of Justice District Court of the Hague (2010)

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

The claimant was born in Somalia and left the country when her home was destroyed and four men attempted to rape her. The claimant sought residence in the Netherlands as a refugee under Immigration Act 2000. She argued that women in Central and Southern Somalia were systematically exposed to inhuman treatment. The claimant submitted reports that abuse and rape of women, by civilians and armed groups, was frequent, and that displaced women were particularly vulnerable during their flight. Gang rape was widespread, and victims (including young girls and boys) were selected at random. Further, rape is almost never prosecuted and the victims are discriminated against because they are seen as “unclean.” The report further stated that women in Somalia do not have access to justice and receive no protection from authorities. Human Rights Watch and UN reports also described women as suffering the brunt of abuse and repression cultivated by al-Shabaab’s decrees, including forced marriage, female genital mutilation (“FGM”) and gender-based violence. The District Court opined that women are in a vulnerable position in Central and Southern Somalia and, therefore, run the risk of suffering violence and human rights violations, and cannot obtain effective protection. They are therefore a group worthy of protection from inhuman treatment and torture.



Chile v. Rodrigo Gacitua Escobar, Criminal Court of Viña del Mar, 2013 Criminal Court of Viña del Mar (2013)

Gender discrimination

The Criminal Court of Viña del Mar sentenced Rodrigo Gacitúa Escobar to life imprisonment for a series of robberies, rapes, and other crimes committed between 2010 and 2012. The prosecutor, Vivian Quiñones, expressed satisfaction at the result, and pointed out the impact of the testimony from the victims. The defense unsuccessfully attempted to discredit the victims’ testimony, including using postings on social media.



R.M. v. State Bucharest Court of Appeal (2006)

Domestic and intimate partner violence

The accused R.M. was convicted for violence against his wife. In a second appeal submitted by the prosecutor, the Appeal Court held that the factual circumstances of the case were correctly retained by the inferior courts but the sentence did not take into account the aggravating circumstance that the victim was the wife of the accused person. The Romanian Criminal Code provides as an aggravating circumstance the fact that the criminal act has been done against a member of the family. The Appeal Court therefore decided to increase the sanction applied to R.M. based on the aggravating circumstance.



ARY v International Association of the European Labor Institute Labor Court of Appeal (2004)

Gender discrimination

A female employee claimed that she was discriminated against with regard to her salary at the time of her recruitment and subsequently as she became more senior in the company.  She argued that she was granted a lower salary at the beginning of her employment than male employees with equal qualifications and that she was not later granted a higher salary in the same way as male employees who received such higher salary only based on their seniority.The Court of first instance rejected the claims of the female employee. On appeal however, the Court applied the case “Danfoss” (Court of Justice, 109/88 of 17.10.1989) to the case at hand.  Regarding her salary at the time of the beginning of the employment, it ruled that there was no discrimination. However, in terms of the subsequent increase of the salary, the Court held that there was indeed discrimination.



Regina v. Iroi High Court of Solomon Islands (2004)

Sexual violence and rape

A victim was forced into a drain and sexually assaulted by assailant. The court relied on the Penal Code and case law for the law establishing that force is not a necessary element of rape, but it can be evidence of lack of consent. Rape is "unlawful sexual intercourse with a woman or girl, without her consent, or with consent if that consent is obtained by force or threats or intimidation of any kind." The defendant was found guilty.



Sentencia 12142, Expediente 08-009174-0007-CO Sala Constitucional de la Corte Suprema de Justicia (2008)

Domestic and intimate partner violence

The Plaintiff sued a local prosecutor's office, alleging he was illegally detained and held, arbitrarily violating his constitutional right to personal liberty. Plaintiff's wife had filed a complaint against him with at the prosecutor's office, alleging spousal abuse, although she did not ask that he be detained. Plaintiff was asked to report to the prosecutor's office, at which time he was detained without being given reason for his detention. The prosecutors' office argued that the plaintiff was only held for eight hours, well within the 24 hours a prosecutor is allowed to hold someone without bringing charges. The Court rejected Plaintiff's allegations, finding that the plaintiff's rights had not been violated because his arrest was based on a suspected violation of Article 22 of the Criminal Law against Violence toward Women. The Court emphasized that spousal abuse was a matter not only of individual concern, but of societal concern. 

 

El demandante demandó a la oficina del fiscal local, alegando que fue detenido y retenido ilegalmente, lo cual violaba de forma arbitraria su derecho constitucional a la libertad personal. Anteriormente, la esposa del demandante había presentado una denuncia contra él en la oficina del fiscal, alegando abuso conyugal, aunque ella no habia pedido que lo detuvieran. Se le citó al demandante en la oficina del fiscal, momento en el cual lo detuvieron sin que se le diera una razón para la detención. La oficina de los fiscales justificó que el demandante solo estuvo detenido durante ocho horas, dentro de las 24 horas en total en que se le permite a un fiscal detener a alguien sin presentar cargos. El Tribunal rechazó las alegaciones del demandante y determinó que no se habían violado sus derechos porque su arresto se basó en una presunta violación del artículo 22 de la Ley Penal contra la Violencia hacia las Mujeres. La Corte enfatizó que el abuso conyugal era un asunto no solo de preocupación individual, sino también de preocupación de la sociedad.



Sentencia 12224, Expediente 08-010638-0007-CO Sala Constitucional de la Corte Suprema de Justicia (2008)

Domestic and intimate partner violence

Defendant asked the Court to release him from a three-month "preventative" jail sentence he was serving for sexually, physically and emotionally abusing his wife. He argued that he no longer posed a danger to his wife, thus the "preventative" jail measure was unnecessary. The Court disagreed, holding that the threat the defendant posed to his wife had not ceased. 

 

El acusado solicitó la liberaracion de una sentencia de "prevención" de tres meses que estaba cumpliendo por abusar sexual, física, y emocionalmente de su esposa. Argumentó que ya no representaba un peligro para su esposa, por lo que la medida "preventiva" de la cárcel era innecesaria. El tribunal no estuvo de acuerdo, sosteniendo que la amenaza que el acusado representaba no había cesado.



Cour de cassation Chambre criminelle, Rejet, 7 avril 1998 No. 97-84.068 Cour de Cassation (Chambre criminelle) (1998)

Domestic and intimate partner violence

Appellant was convicted of aggravated assault against his wife under Section 222-13 of the Penal Code, which provides that violence against a spouse is an aggravating circumstance that adds to the gravity of the original offense. Appellant appealed his conviction on the grounds that at the time of the violence the two spouses lived separately according to the orders of their on-going divorce proceedings. The Court rejected the appeal, finding that application of Section 222-13 of the Penal Code, aggravation of assault if committed against a spouse, does not require co-habitation of the spouses.



Cour d'appel, Bruxelles No. 96AR1629 Court of Appeals of Belgium (1998)

Gender discrimination

With regard to the marriage of persons of different nationality Belgian courts will ordinarily look to the national statutes governing each person to determine whether the conditions of marriage have been met.  Here, however, the Court refused to look to Algerian law to determine whether the conditions for marriage had been met when called upon to decide whether the marriage between an Algerian Muslim woman and an Italian non-Muslim man could be declared null.  The Brussels Court of Appeal stated that Algerian law, which includes the prohibition for a Muslim woman marrying a non-Muslim, must be rejected as being contrary to international public policy as it results in discrimination regarding the freedom of marriage based on gender and/or their religion.  The Court therefore refused to consider Algerian law with regard to the law applicable to both parties of the marriage.



Cour de Cassation de Belgique No. P.04.0595.F Cour de Cassation de Belgium (2004)

Sexual violence and rape

The Cour de Cassation held that a finding of rape does not preclude a finding of indecent assault. The court therefore rejected an appeal for lowering the appellant's sentence and stated that the finding of the lower court of indecent assault added to the gravity of the crime of rape.



Reports

Handbook on Juvenile Law in Zambia (2014)

Gender-based violence in general

The Handbook aims to function as a practice guide for judicial officials and legal practitioners who work in the area of juvenile law. It addresses a range of issues from the constitutional, statutory, and human rights framework of juvenile law, special issues that arise in cases of child sexual abuse, and procedural protections for juvenile witnesses.



Avon Global Center 2013 Women and Justice Conference Report (2014)

Acid violence, Gender discrimination, Female genital mutilation or female genital cutting, Harmful traditional practices, Gender violence in conflict, Forced and early marriage, Gender-based violence in general

In December 2013, the Avon Global Center hosted its annual conference in New York, NY on "State Responsibility to End Violence Against Women: The Due Diligence Principle and the Role of Judges."


"They are Destroying Our Futures" Sexual Violence Against Girls in Zambia's Schools (2012)

Gender discrimination, Gender-based violence in general, Sexual harassment, Sexual violence and rape, Statutory rape or defilement

A report by the Avon Global Center for Women and Justice at Cornell Law School, Women and Law in Southern Africa-Zambia, and the Cornell Law School International Human Rights Clinic examining the problem of sexual violence against girls in school in Zambia.



Guatemala's 8 Law: Progress Against Impunity? (2010)

Femicide

Guatemala Human Rights Commission releases report one year after Guatemalan Law Against 8 passed.

 

La Comisión de Derechos Humanos de Guatemala publicó un reporte un año después de que la Ley 8 pasara. 

 



Our Bodies are Still Trembling - Haitian Women's Fight Against Rape (2010)

Sexual violence and rape

IJDH, MADRE, TransAfrica Forum, and the Universities of Minnesota and Virginia law schools author report to ensure more effective protection and promotion of women's human rights in Haiti.



Sexual Violence in Haiti's IDP Camps: Results of a Household Survey (2011)

Sexual violence and rape

Report by the Center for Human Rights and Global Justice presenting preliminary data from a survey of households, focusing on reported incidents of sexual violence (2011).



International Case Law

Pensionsversicherungsanstalt v. Kleist European Court of Justice (2010)

Employment discrimination, Gender discrimination

Mrs. Kleist, who was employed as chief physician for the pension insurance institution, was terminated pursuant to a policy requiring termination of all employees, whether male or female, upon reaching the age at which they could draw a public retirement pension. Mrs. Kleist argued that the termination policy was discriminatory because, under the pension statute, women were able to draw a pension at an age five years younger than men; thus requiring their termination five years earlier. After proceedings in the lower courts, the Austrian Supreme Court referred to the European Court of Justice the question of whether the policy constituted prohibited discrimination on the grounds of sex. The Court answered the question in the affirmative, holding that since the criterion used by such a policy is inseparable from the worker’s sex, there is a difference in treatment that is directly based on sex. Having found direct discrimination, the Court also held that the difference in treatment could not be justified by the objective of promoting employment of younger persons.



Brachner v. Pensionsversicherungsanstalt European Court of Justice (2011)

Gender discrimination, Property and inheritance rights

Ms. Brachner brought an action against the Pensionsversicherungsanstalt arguing that the implementation of an adjustment factor for pensions, established in 2008, resulted in indirect discrimination against women who were disproportionately less likely to qualify for an exceptional pension increase. Upon referral from the Austrian Supreme Court, the European Court of Justice held that (1) an annual pension adjustment scheme comes within the scope of the EU Directive guaranteeing equal treatment of men and women in matters of social security, (2) a national arrangement that excludes from an exceptional pension increase a significantly higher percentage of female pensioners would violate the Directive, and (3) the disadvantage cannot be justified by the fact that women receive their pension at an earlier age or that they receive their pension over a longer period.



Goekce v. Austria CEDAW Committee (2007)

Domestic and intimate partner violence

Sahide Goekce’s husband shot and killed her in front of their two daughters in 2002. Before her death, Ms. Goekce had obtained three expulsion and prohibition-to-return orders against her husband in response to repeated episodes of domestic violence. The Vienna Public Prosecutor denied police requests to detain Mr. Goekce, and stopped the prosecution against him on the basis of insufficient grounds of prosecution two days before Ms. Goekce’s death. Police reports show that the law enforcement failed to respond in a timely fashion to the dispute that resulted in Ms. Goekce’s death. The complaint to the Committee on behalf of the decedent stated that Austria’s Federal Act for the Protection against Violence within the Family provides ineffective protection for victims of repeated, severe spousal abuse and that women are disproportionately affected by the State’s failure to prosecute and take seriously reports of domestic violence. The Committee found that although Austria has established a comprehensive model to address domestic violence, it is necessary for State actors to investigate reports of this crime with due diligence to effectively provide redress and protection. The Committee concluded that the police knew or should have know that Ms. Goekce was in serious danger, and were therefore accountable for failing to exercise due diligence in protecting her. By allowing the perpetrator’s rights to supersede Ms. Goekce’s human rights to life and to physical and mental integrity, Austrian law enforcement violated it obligations under article 2 to end gender discrimination through the modification or enactment of appropriate legislation, and its article 3 obligation to guarantee women’s exercise and enjoyment of human rights and fundamental freedom on a basis of equality with men. The Committee recommended that Austria strengthen its implementation and monitoring of the Federal Act for the Protection against Violence within the Family, respond to complaints of domestic violence with due diligence, and provide adequate sanctions for failure to do so.



Slovak Republic, Supreme Court, Decision No. 113/1999, File No. 3 To 61/98 Supreme Court of the Slovak Republic (1998)

Sexual violence and rape, Trafficking in persons

In the summer of 1995, Mr. P.Š. and Mr. K.P. (the defendants) transported juvenile Ms. Š.N. and juvenile Ms. A.G. (the Aggrieved) to Prague under the guise of providing employment.  The defendants intended to sell the Aggrieved to R.R. into prostitution. After examining the Aggrieved primarily on the basis of their moral standing and their relationship with the defendants, the district court acquitted both defendants. Subsequently, the Prosecutor appealed the decision to the Supreme Court.  The Supreme Court quashed the decision of the district court and found the defendants guilty of trafficking in women.  It further held that an examination of the moral standing and the relationship of the Aggrieved to the defendants was unreasonable.  The Supreme Court clarified that the criminal act of trafficking in women is committed if a woman is lured (i.e., by promises, offers of money, etc.), hired (conclusion of any agreement, including illegal agreements about the trafficking of women to another country), or transported to another country (crossing of a border being sufficient, the specifics of the actual location not required) for the purpose of prostitution.  It is irrelevant whether the women in question actually worked as prostitutes or not, the intention to work as a prostitute is sufficient.  The Supreme Court ordered the district court to re-examine the case.



Slovak Republic, Supreme Court, Decision No. 6/1984, File No. 3 To 3/28 Supreme Court of the Slovak Republic (1984)

Sexual violence and rape

Ms. L.G. (the Aggrieved) a mentally disabled female, under the age of 15, was forced into sexual intercourse with A.G. (the defendant).  The district court found the defendant guilty of attempted rape, even though the defendant had confessed to a number of facts during the police investigation and the trial including knowledge of the fact that the Aggrieved was under the age of 15 and the fact that he took advantage of the Aggrieved party’s mental condition and fully knowing that she would not resist, proceeded to rape her.  The district court´s decision relied on the testimony of an expert witness who examined the condition of Ms. L.G., and concluded that no sexual intercourse had occurred due to the undamaged status of the hymen. The Prosecutor appealed the decision to the Supreme Court, which quashed the decision of the district court and found the defendant guilty of rape.  The defendant had exploited the vulnerable nature of Ms. L.G., and the fact that she was under the age of 15.  The defendant also knew that Ms. L.G. would not resist him, as a result of her mental state, as evidenced by submissions from a number of experts.  The decision did not consider the status of the claimant’s hymen, since the defendant´s penetration was proven.  The Supreme Court sentenced the defendant to 8 years in a correctional facility. 



Slovak Republic, District Court, File No. 17C/65/2009 District Court (2009)

Sexual harassment, Sexual violence and rape

Ms V.Š. (the claimant) was sexually assaulted by her colleague, Mr. S.B. (the defendant) at work.  The criminal court found the defendant guilty of sexual violence by means of an agreement on crime and punishment.  The claimant sued the defendant for damages sustained as a result of the defendant’s actions.  The claimant supported her claims with the opinion of a psychological expert, who stated that the claimant had suffered damage to her dignity, honor and personal and intimate life, as well as material costs.  The amount of non-pecuniary damage awards is determined with regard to the facts of each case individually and the opinion of the court.  As a result of the sexual assault, the claimant was traumatized, depressed and afraid to go to work because of the obvious threat posed by the defendant. The district court held that the protection of privacy and other aspects of the personal life of each individual is paramount.  Every individual has the right to make decisions about his/her intimate and sexual life and in this case, such right was grossly violated.  Furthermore, under Section 11 of the Civil Code, the claimant has the right to protect her life, health, honor, dignity, privacy, name and expressions of personal value.  The district court held that the defendant was obliged to pay to the claimant non-pecuniary damages in the amount of EUR 3,319.



Memoranda

Assessing the Impact of Mandatory Minimum Sentences on Sexual Offences in Tanzania (2013)

Gender-based violence in general, Sexual violence and rape, Statutory rape or defilement

With the goal of assessing the impact of mandatory minimum sentences for sexual offences in Tanzania, this memorandum provides a comparative study with a small sample of jurisdictions – including Canada, Kenya, Lesotho, Zambia, South Africa and Tanzania - to showcase how different countries have utilized mandatory minimum sentences to address sexual offences. It also explores whether imposing mandatory minimums has resulted in a reduction of the commission of the sexual offences they target.



Articles

Sustainable Development (2011)

Gender-based violence in general

By Sandra Day O'Connor & Kim K. Azzarelli. 44 CORNELL INT’L L.J. 1 (2011). Copyright 2011 by the Cornell International Law Journal.


Charts

Analysis of Jurisprudence Involving Sexual and other Gender-Based Violence During Conflict (2010)

Gender-based violence in general

This chart summarizes and analyzes gender-based violence cases before international war crimes tribunals and special courts.