Women and Justice: Keywords

Domestic Case Law

Jiangsu Province v. Erming Wang People’s Procuratorate of Quning District Court (2014)

Domestic and intimate partner violence

The defendant Wang “bought” a woman with intellectual disabilities, Yang, for RMB 10,000 to have a male heir. Wang chained Yang’s feet and hands and raped Yang several times. The imprisonment and rape lasted for 2 months until police rescued Yang. Quning District Court, Jiangsu Province found that defendant Wang trafficked the woman, imprisoned, and raped her. Therefore, according to Article 236 section 1 and Article 238 section 1 and Article 240 of Criminal Law of the People’s Republic of China, Wang was sentenced to ten years’ imprisonment.



Supreme Court Decision 2015Do6980 Supreme Court of South Korea (2015)

Sexual violence and rape

Defendant was roaming the street after drinking alone at night. He followed Victim (a 17-year-old girl) getting off the bus and walking alone. Upon nearing a desolated place, Defendant approached the Victim, while wearing and mask, holding both of his arms high to hug her. Sensing someone behind her, the Victim turned around and yelled “What are you doing?” to which the Defendant remained still and stared for a few seconds before retreating. Defendant was indicted on attempting to assault a child or juvenile which is in violation of the Act on the Protection of Children and Juveniles against Sexual Abuse. The first instance court found the Defendant guilty but the appeals court reversed the first instance judgment and acquitted Defendant. The Prosecutor then appealed to the Supreme Court. The Supreme Court held the crime of indecent act by force includes an indecent act committed after making the other party unable to resist by use of violence or threat and the act of assault itself is considered as an indecent act, and such assault is not confined to the extent of suppressing the other party’s will. An indecent act refers to an act that deviates from sexual moral norms causing a victim to feel shame or disgust, and violating the victim’s sexual freedom. Whether such crime is established should be carefully determined by factoring in: the victim’s reciprocity, gender, and age; relationship between the victim and perpetrator prior to the act; circumstances leading to the act; means and method used to commit the act; objective circumstances; and sexual moral norms at the time. In addition, the crime of attempted indecent act by force is established when the act of violence with the intention to commit an indecent act does not lead to actual commission of indecent act, and this legal principle applies to cases of “indecent act by surprise” where the act of assault in itself is acknowledged as an indecent act. Accordingly, Defendant was charged of violating the Act on the Protection of Children and Juveniles against Sexual Abuse.



T.M. et. al. v. Miroslava T. T. et. al. Austria Supreme Court (2009)

Sexual violence and rape, Trafficking in persons

The defendants were held guilty of violating several provisions of the Austrian Criminal Code after the lower court found that they acted as a criminal organization to recruit victims by means of extortion, massive violence, penalties for not performing sex work and threats and arranged for the victims’ transfer and accommodation in brothels in Austria. After an appeal on procedural grounds, the Austrian Supreme Court upheld the convictions.



Maria N. et. al. v. Ferenc D. Austria Supreme Court (2011)

Sexual violence and rape, Trafficking in persons

The defendant was convicted of trafficking in persons for the purpose of prostitution after the lower court found that he lured the victims from Hungary into Austria under the false pretext that they could work as cleaners in an Austrian Hotel and then threatened them with injury or death to force them to work as prostitutes. The Austrian Supreme Court upheld the conviction on appeal.



Joseph v. Canada Federal Court of Canada (2006)

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

Ms. Joseph is a citizen of Grenada who fled to Canada in order to escape a violent common law relationship she had been involved in for 15 years. During Ms. Joseph’s relationship with her common law spouse, she tried to leave him several times; however, he always found her and the abuse would continue. She applied for protection in Canada pursuant to the Gender-Related Guidelines of the Immigration and Refugee Protection Act, which aids determination of the risk facing women who are fleeing gender-specific persecution. Ms. Joseph based her claim on the ground that there is a substantial risk that she would face torture and cruel and unusual treatment at the hands of her former common law spouse, and there is more than a mere possibility that she would face gender-based persecution, if forced to return to Grenada. Despite the fact that the officer reviewing Ms. Joseph's application found her testimony and evidence to be credible, her application for protection was denied on the ground that she had failed to rebut the presumption of state protection in Grenada. When Ms. Joseph was informed that removal arrangements had been made, she brought a motion for a stay of removal, which was granted. The court ordered that Ms. Joseph’s application for judicial review be allowed, due to “discrepancies in logic” regarding the officer’s estimation of her evidence and his decision on her application, and remitted the matter to a different state officer for redetermination of her application for protection.



Bangladesh National Women Lawyers Association v. The Cabinet Division Bangladesh Supreme Court (2011)

Gender-based violence in general, Harmful traditional practices, Sexual harassment, Sexual violence and rape, Trafficking in persons

In an application under Article 102 of the Constitution, the Bangladesh National Women's Lawyers Association (BNWLA) petitioned the Supreme Court of Bangladesh (High Court Division) to address the exploitation and abuse endured by child domestic laborers in Bangladesh. The BNWLA argued that child domestic workers are subjected to economic exploitation, physical and emotional abuse, and the deprival of an education in violation of their fundamental constitutional rights. In support of these arguments, it presented multiple reports of extreme abuse suffered by child domestic workers. In deciding this case, the Court reviewed the current laws in Bangladesh, including the Labour Act, 2006, which fails to extend labor protections to "domestic workers," including children, and lacks an effective implementation and enforcement system. The Court directed the government of Bangladesh to take immediate steps to increase its protection of the fundamental rights of child domestic workers including prohibiting children under the age of twelve from working in any capacity including domestic settings; supporting the education of adolescents; implementing the National Elimination of Child Labour Policy 2010 and applying the Labour Act, 2006 to domestic workers. Additionally, the Court directed the government to monitor and prosecute incidents of violence against child domestic workers, maintain a registry of domestic workers and their whereabouts to combat trafficking, promulgate mandatory health check-ups and strengthen the legal framework relating to child domestic workers.



Memoranda

Compilation of Innovative Court Procedures to Protect Vulnerable Adult and Child Victim-Witnesses (2015)

Gender discrimination, Sexual violence and rape, Statutory rape or defilement

This memorandum compiles international and regional best practices guidelines, model laws, and progressive practices of domestic courts to protect adult and child victim-witnesses before, during, and after trials.



Problems in Prosecuting or Adjudicating Corruption Cases in Tanzania (2012)

Gender discrimination, Gender-based violence in general

This memorandum provides a brief overview of corruption in Tanzania and efforts taken by the government to address the problem. The memorandum also examines the problems that emerge in prosecuting or adjudicating corruption cases in Tanzania and the reasons corruption cases fail.



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.



Sexual Violence by Educators in South African Schools: Gaps in Accountability (2014)

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

The Centre for Applied Legal Studies at the University of Witwatersrand and Avon Global Center for Women and Justice at Cornell Law School released a joint report on sexual violence committed by educators against students in South African schools.



"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.



“I Am Not Dead, But I Am Not Living" Barriers to Fistula Prevention and Treatment in Kenya (2010)

Gender-based violence in general

Human Rights Watch report describing the situation of women with fistula in Kenya, including the increased risk of stigma and violence and the impact of a health system that fails to properly address the problem of fistula. July 15, 2010. Copyright 2010 Human Rights Watch.



Handbook for Legislation on Violence Against Women (2010)

Gender discrimination

Department of Economic and Social Affairs, Division for the Advancement of Women



International Case Law

Saadia Ali v. Tunisia CAT Committee (2008)

Gender-based violence in general

Saadia Ali, a dual French/Tunisian citizen, was attempting to obtain an official document from the court of first instance in Tunis when she was taken into custody, stripped of her clothing, and beaten by a prison guard in front of fifty male prisoners for verbally criticizing a Tunisian public official. Upon regaining consciousness, Ali was given a summary trial without due process and a suspended sentence of three months imprisonment for attacking a public official. Ali’s lawyer initiated a complaint with the office of the State prosecutor, which rejected the complaint without further explanation. In her complaint to the Committee Against Torture, Ali alleged violations of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT), and cited violations of internationally recognized standards on the administration of justice and articles 25 and 26 of Tunisia’s Code of Criminal Procedure. The Committee held that Tunisia’s actions towards Ali were tantamount to torture and violated articles 1, 12, 13, 14, and 16 of the Convention. The deliberate infliction of severe pain and suffering upon Ali by Tunisian public officials constituted torture under article 1 and cruel, unusual, or degrading treatment within the meaning of article 16. The Committee also held that the State’s dismissal of the complaint and delay in investigating Ali’s case established a violation of articles 12 and 13, under which a State has the obligation to promptly investigate allegations of torture. The State’s failure to act on the complaint and immediately launch an investigation equated to a breach of the State’s obligations under article 14 to provide redress to victims of torture in the form of restitution, compensation, and rehabilitation.



Interights (on behalf of Husaini and Others) v. Nigeria African Commission on Human and Peoples' Rights (2005)

Custodial violence, Gender discrimination, Gender-based violence in general, Harmful traditional practices

Interights, an international human rights organization, filed a complaint before the Commission on behalf of Ms. Safiya Hussaini and others, arguing that Nigeria's Islamic Sharia courts had violated their rights to a fair trial and due process. Safiya Hussaini, a nursing mother, was sentenced to death by stoning for adultery. Ms. Hussaini was tried under Sharia law, according to which adultery is punishable by death. The petitioners also included Amina Lawal, a woman sentenced to similar punishment for adultery, and Bariya Magazu, an unmarried woman who received 100 lashes as punishment for zina (voluntary premarital sexual intercourse). In response to the complaint, the Chairman of the African Commission sent an urgent appeal to Nigerian President Olusegun Obasanjo, urging him to suspend further implementation of the Sharia penal statutes and convictions under those laws pending the outcome of the complaints before the Commission. In response to the Chairman's urgent appeal, the Secretary General of the African Union formally brought the matter to President Obasanjo. The President's Chief of Staff wrote to the Chairman of the African Commission that while the federal government could not suspend the operation of Sharia law, the administration would ensure that the "right to life and human dignity" of Ms. Hussaini and the others would be adequately protected. Before the court ruled on admissibility of the complaint, the complainant moved for withdrawal of the complaint, and it was withdrawn from the Commission.