Women and Justice: Keywords

Legislation

Schweizerisches Strafgesetzbuch/Swiss Penal Code, Article 5: Offenses against minors (2019)

Statutory rape or defilement, Trafficking in persons

Art. 5 provides that the Swiss Penal Code also applies to any person who is in Switzerland, is not being extradited, and has committed any of the following offenses abroad: (1) Trafficking in human beings (Penal Code Art. 182), sexual coercion (Penal Code Art. 189), rape (Penal Code Art. 190), sexual acts with a person incapable of proper judgment or resistance (Penal Code Art. 191) or encouraging prostitution (Penal Code Art. 195) if the victim was less than 18 years of age; (2) sexual acts with dependent persons (Penal Code Art. 188) and sexual acts with minors against payment (Penal Code Art. 196); (3) sexual acts with a child (Penal Code Art. 187) and sexual acts with a minor of age less than 14; or (4) aggravated pornography (Penal Code Art. 197, para. 3 and 4) if the objects or representations depict sexual acts with minors. Unofficial English translation available here.



Domestic Case Law

Seedis v. Chief Execution Officer & Schmuel Seedis Supreme Court (as an article 55 Special Tribunal) (1954)

Property and inheritance rights

A woman petitioned the article 55 Special Tribunal, which decides whether a case is of personal status and thus within the exclusive jurisdiction of a Religious Court, for review of the Rabbinical Court’s decision to allow her husband to receive rent from a property belonging to the plaintiff.  The Rabbinical Court exercised jurisdiction pursuant to Article 51 and 53 of the Palestine Order in Council 1922, which states that “suits regarding marriage” or “matters of marriage” are within the exclusive jurisdiction of the religious courts. The Special Tribunal agreed with the Rabbinical Court’s decision to exercise jurisdiction over the suit, reasoning that articles 51 and 53 are not limited to questions regarding the existence of a marriage, but also include claims for the enforcement of rights derived from marriage, including property rights.



Deepa a/p Subramaniam (Appellant; Husband) v. Viran a/l Nagapan (Respondent; Wife) Dalam Perkara Mahkamah Tinggi Malaya Di Seremban (2014)

Custodial violence

The Appellant and the Respondent were married in 2003 under the Law Reform (Marriage and Divorce) Act 1976, and they have two children. In 2012, the Appellant converted to Islam, as well as his children. Pursuant to his conversion, the Appellant applied for the dissolution of the marriage of the Serembian Syariah High Court (the Syariah Court), which is the Islamic Religious Court. In September 2013, the Syariah Court granted custody order to the Appellant with visitation rights and access to the Respondent. In December 2013, the Respondent filed a petition for divorce and sought the custody of the children at the Serembian High Court, which were both granted to the Respondent, upon which both children were surrendered to the Respondent at the court premises. Two days later, the Appellant took away the youngest child from the Respondent. Consequently, the Respondent filed an application in the High Court for a recovery order for the recovery of the child, which was granted. The Appellant filed two separate appeals, one of the custody order and the other of the recovery order, in the Court of Appeal and argued that the Syariah Court, as opposed to the High Court, had jurisdiction to grant the custody order as well as the recovery order. The Court of Appeal dismissed the appeal regarding the custody order because by contracting the civil marriage, the husband and wife were bound by the Law Reform Act in respect to divorce and custody of the children, and thus, the civil court continued to have jurisdiction over the husband, notwithstanding his conversion to Islam. As provided in the Federal Constitution, the Syariah Court and the Civil High Court are courts of “coordinate” jurisdiction, and one court is in no position to overrule or set aside the decision of another court. However, the Court held that, the issue was not whether or not the High Court could disregard or set aside the Syariah Court order, but rather which court has jurisdiction over parties who had contracted civil marriage and had children out of a civil marriage. The Court held that only civil courts, including the High Court, had jurisdiction over such civil marriage, and children resulting from a civil marriage. Therefore, as per the High Court’s decision, only the Respondent has lawful custody of the child, and that the recovery order of the High Court is not flawed.



Caplan v. Donovan Supreme Judicial Court of Massachusetts (2008)

Domestic and intimate partner violence

Here, the plaintiff was a resident of Massachusetts and she sought an abuse prevention order against her nonresident partner.  The plaintiff and her partner met in Massachusetts and moved to Florida, where they had a child.  The plaintiff took the child to Massachusetts on occasion but the defendant never returned.  The plaintiff alleged that the defendant physically abused her and she fled to Massachusetts with her son.  The plaintiff alleged that prior to her escape, the defendant accused her of cheating, called her a whore, and threatened to kill her and the child.  He blocked the door when she tried to leave and when she took the phone to call the police, he ripped the phone from her hand and threw it across the room.  Once the plaintiff arrived in Massachusetts, the defendant called his friends and the plaintiff’s cell phone several times a day trying to locate her.  The plaintiff subsequently filed a complaint in court in Massachusetts seeking a protection order.  The court issued an order which granted the plaintiff custody of the child and directed the defendant not to abuse the plaintiff or the child, not to contact them, to surrender his firearms in Florida and to compensate the plaintiff monetarily.   The court found that the plaintiff was entitled to an abuse prevention order directing the defendant not to abuse her, not to contact her, to stay away from the plaintiff and her residence, granting custody of the child to the plaintiff, and ordering the defendant to stay away from the child.  However, the court found that it was a violation of the defendant’s due process rights to order an affirmative obligation on him, including paying money and handing over his firearms, as the court had no personal jurisdiction over the defendant.



T.L. v. W.L. Delaware Family Court (2003)

Domestic and intimate partner violence

Here, the plaintiff sought a protection order from a Delaware court.  The defendant argued that a Delaware court had no jurisdiction over him, as the alleged abuse did not occur in Delaware, and he was a non-resident.  Further, the plaintiff and her children were present in Delaware only for two days upon filing the petition.  Id. at 508.  The court noted that Delaware enacted the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act, which allows courts to register and enforce valid protection orders from other states.  Id. at 513.  The court found that because Delaware would recognize any protection order, the wife should have more appropriately requested the order in Ohio, as the defendant’s due process rights outweighed Delaware’s interests to protect its residents from domestic violence.