Women and Justice: Keywords

Domestic Case Law

AA v. Fiscalía General de la Nación, Caso No. 6/2009 Tribunal Apelaciones Penal 2º Tº (Second Criminal Appeals Court) (2009)

Sexual violence and rape, Statutory rape or defilement

The Trial Court sentenced the accused (AA) to three years and six months in prison for the kidnapping and continuous sexual abuse of a 15-year-old girl (BB). AA had been sexually abusing BB once a week since she was 11 years old. When BB was 15 years old, AA called her over to his house under false pretenses and then, against her will, he locked her inside and raped her for six hours. AA was drunk and when he got distracted, BB was able to escape and find a neighbor who helped her. The Trial Court determined that there was enough evidence to prove the kidnapping and the continuous sexual abuse. The Appeals Court dismissed AA’s appeal and affirmed the decision of the Trial Court, except for qualifying the rape as continuous sexual abuse. Based on the facts of the case, the Appeals Court ruled the sexual abuse as repetitive instead of continuous. It also determined that AA’s inebriation was voluntary, and thus had no relevance in sentencing.

El Tribunal de Primera Instancia condenó al acusado (AA) a tres años y seis meses de prisión por el secuestro y el abuso sexual continuo de una niña de 15 años (BB). AA había abusado sexualmente de BB una vez por semana desde que tenía 11 años. Cuando BB tenía 15 años, AA la llamó a su casa con falsos pretextos y luego, contra su voluntad, la encerró y la violó durante seis horas. AA estaba borracho y cuando se distrajo, BB pudo escapar y encontrar a una vecina que la ayudó. El Tribunal de Primera Instancia determinó que había pruebas suficientes para probar el secuestro y el abuso sexual continuo. El Tribunal de Apelaciones desestimó la apelación de AA y confirmó la decisión del Tribunal de Primera Instancia, excepto que calificó la violación como abuso sexual continuo. Con base en los hechos del caso, el Tribunal de Apelaciones dictaminó que el abuso sexual era repetitivo en lugar de continuo. También determinó que la embriaguez de AA era voluntaria y, por lo tanto, no tenía relevancia en la sentencia.

R. v. H. Supreme Court of Queensland (2002)

Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

The appellant advertised in Korea for families to come to Australia to attend a missionary school. The appellant was responsible for settling those families’ affairs, and they were dependent on him to organize the necessary extensions of visas. Most of the time, the parents spoke no English and their children spoke little English. The appellant organized accommodation for the parents of the complainant among other families, and at the same time he arranged for separate accommodation for their daughter with children of other families. The accommodation for the daughter was close to the appellant’s house, but an hour’s drive from her parents’ house. The appellant was the only individual who had the keys to the children’s rooms. The appellant advised the father of the complainant to return to Korea to seek more families, and he did. One night, the appellant returned around 1:00 AM to the children’s accommodation and entered the complainant’s room where another girl was with her. That girl left after certain remarks by the appellant. The appellant took the complaint in his van to a remote place where he proceeded to touch her, took off her pyjamas, and then had sexual intercourse with her, despite her resistance. During this resistance, they both fell to the floor of the van and the appellant injured his arm. The appellant threatened the complainant not to inform anyone about this incident, reminding her that her family needed him to renew their visas. The complainant immediately told her friends at the accommodation of the sexual assault. In the morning, the complainant walked to a public telephone where she called her father in Korea and told him about the incident, and then called her mother to inform her of the same. In fear with respect to their visas, the family went with the appellant to Brisbane where they had their visas renewed, acting as if nothing happened. Later, the father flew back to Australia and immediately lodged a complaint with the police. Through investigation, the police found physical evidence of rape, including injuries to her genitals consistent with rape, the appellant’s DNA, and wounds consistent with complainant’s statement of the rape. Based on the evidence, the District Court sentenced the appellant to eight years for two counts of rape and one count of indecent dealing with a circumstance of aggravation. Relying on older cases, the appellant filed this appeal to lower his sentence, claiming it was too high for someone his age, considering he had no previous convictions and that there were no violence or weapon used. The Queensland Court of Appeal dismissed these arguments, stating that the older cases referenced by the appellant were dated before the implementation of new rules that increased the sentences for rape. In addition, even though no violence was used against the complainant, the court found that the appellant took advantage of her because of her visa situation, and this was an aggravating factor. Therefore, the appeal was dismissed.

施美丽故意杀人案，上海市崇明县人民法院 (People's Procuratorate of Chongming County v. Shi) Chongming County District People's Court of Shanghai Municipality (2014)

Domestic and intimate partner violence

On May 20, 2014, the defendant used a hammer to strike her husband’s head three times. She then asked her son to send her husband to hospital where he died. The Court found that throughout their marriage, the deceased often beat and abused the defendant. The day before the incident, the deceased beat the defendant for a long period of time. At approximately 5:30 AM the following day, the defendant, due to the history of abuse, decided to kill her husband. During the trial, multiple witnesses testified to the deceased’s long history of domestic violence. A letter signed by more than 100 people, including close relatives of the deceased, also confirmed that he had abused the defendant over a long period of time. The Court held that the defendant’s conduct qualified as murder. However, because her motive was her husband’s long history of domestic violence, the victim himself was also culpable. Because the defendant had little possibility of recidivism and because there was strong public sympathy for the defendant, the court sentenced her to four years imprisonment. She was due to be released on May 21, 2018. On August 29, 2017, Shanghai No. 1 Intermediate People’s Court ordered her release on parole.

家庭暴力

2014年5月20日，被告人使用榔头击打其丈夫张某某的头部三次。被告让儿子将张某某送至医院，张某某经医院抢救无效死亡。法院查明，在婚后，被害人经常打骂被告人。事发当天，被害人曾长时间殴打被告人。5月20日凌晨5时30分许，被告人因为长期遭受被害人打骂，遂起杀害张某某之意。庭审时，多位证人证明张某某的长期家庭暴力行为。100余人的请愿书也证明了此家庭暴力行为。法院认为，被告人的行为构成故意杀人罪。但是被害人也因为对被告人的长期家暴行为存在重大过错。因为被告人再犯可能性较小，并受到民众高度同情，法院判决被告人有期徒刑四年。被害人的羁押将于2018年5月21日截止。2017年8月29日，上海第一中级人民法院判决被告人假释。

唐芳故意伤害罪，四川省高级人民法院 (People’s Procuratorate of Dazhou City Sichuan Province v. Tang) Higher People's Court of Sichuan Province (2013)

Domestic and intimate partner violence

The lower court convicted the appellant of intentional assault and sentenced her to life imprisonment and deprivation of political rights for life for stabbing her cohabiting boyfriend to death. The lower court held that the defendant’s motive, frivolous arguments, constituted a crime of intentional assault. The lower court found that the consequence of the crime was serious and that the defendant should receive a severe punishment. On appeal, the Higher People’s Court of Sichuan Province reversed the lower court’s holding, finding that (1) the appellant turned herself in and obtained forgiveness from relatives of the deceased; (2) on the day of incident, the victim had attacked the appellant first, and should bear certain responsibility. Thus, the High People’s Court reversed the lower court’s ruling and reduced the sentence to 15 years in prison and deprivation of political rights for three years. Available here.

家庭暴力

四川省达州市中级人民法院原判认定被告人唐芳因持水果刀朝同居男友胸部捅刺数刀，致其死亡，犯故意伤害罪，判处无期徒刑，剥夺政治权利终身。原判认为，本案系婚恋纠纷引发，被告人唐芳有自首情节，并取得被害人亲属谅解，可依法从轻处罚。四川省高级人民法院认为，上诉人（原审被告人）唐芳因生活琐事纠纷，持刀致同居男友卢某甲死亡，其行为已构成故意伤害罪，后果严重，应予严惩。鉴于本案系婚恋家庭矛盾纠纷引发，案发后唐芳有自首情节，并取得死者亲属的谅解，被害人卢某甲平时对唐芳实施家庭暴力，案发当天先殴打唐，有过错，可依法对被告人从轻处罚。法院撤销四川省达州市中级人民法院判决，即被告人唐芳犯故意伤害罪，判处无期徒刑，剥夺政治权利终身；并判决上诉人唐芳犯故意伤害罪，判处有期徒刑十五年，剥夺政治权利三年。

The State v. L.S. High Court of Namibia (2006)

Domestic and intimate partner violence

The accused murdered her newborn child and pleaded guilty to the crime. In determining her prison sentence, the judge took into account mitigating circumstances such as her young age (21 years old), the fact that the child’s father denied responsibility for the child, and the fact that her family nearly kicked her out of their home when she had her previous child. The judge also acknowledged that she was a first-time offender and showed remorse for the crime. However, he reiterated the seriousness of the crime and stated that he did not want his leniency in this case to serve as a message to other young women that infanticide was acceptable. He further stated that newborn infants have just as much a right to life as anyone else. For the murder, he sentenced the accused to three years imprisonment with 30 months suspended for five years on the condition that the accused not be convicted of murder during the suspension. For the concealment of the birth of her newborn child, the judge sentenced the accused to six months imprisonment to run concurrently with the murder sentence.

The State v. G.I. High Court of Namibia (2007)

Abortion and reproductive health rights

The accused was an 18-year-old woman charged with the crime of abortion under the Abortion and Sterilization Act, 2 of 1975 (the “Act”). The Act outlaws abortion and prescribes no minimum sentence for the crime. The accused pleaded guilty and testified that she performed the abortion on herself, which terminated a two-month-long pregnancy. The Court sentenced her to pay N$3,000 or serve two years in prison. On review, the High Court found the sentence to be “completely” disproportionate to the crime. The Judge referred to the Old Authorities and stated that sentences for abortion should be less harsh in cases where a very young fetus is involved. The Judge also found that the accused personal circumstances and the particular circumstances of her trial, including the fact that she was a minor at the time, did not have counsel to represent her, and was not given the opportunity to explain her actions, warranted mitigation of the penalty. Finding that the lower court did not factor in any of these mitigating circumstances, the High Court reduced the sentence to N$300 or three months in prison, which he suspended on the condition that during that period the accused was not convicted of any abortion-related crime.

Longsworth v. The Queen Court of Appeal of Belize (2012)

Domestic and intimate partner violence

The appellant threw an accelerant on her husband, followed by a lit candle. She then immediately attempted to douse the flames in water. Her husband died and she was convicted of murder and sentenced to life imprisonment. On appeal, the appellant attempted to introduce new evidence that she had suffered from Battered Women Syndrome (“BWS”). This evidence was not available during the appellant’s trial because there were no qualified forensic psychiatrists available in Belize. The Court of Appeal granted the appeal on the ground that (1) it was capable of belief; (2) it was relevant to the issues before the jury; (3) it would have been admissible at trial; (4) the trial attorney had been asked why no medical evidence was presented at trial; (5) the new evidence may have caused the jury to decide differently; (6) the evidence supports a defense of diminished responsibility and (7) it cast doubt as to the reasonableness of the verdict and admission of the evidence was in the interest of justice. The court considered the findings of an experienced and distinguished professional in the field of forensic psychiatry who examined the appellant, interviewed witnesses, and reviewed trial documents and found that the appellant’s history and behavior was consistent with BWS. The forensic psychiatrist concluded that the appellant had been physically, sexually, financially, and psychologically abused by her partner for nine years. This abuse, together with the appellant’s response to the abuse, was found to be consistent with BWC. The Court reduced the appellant’s sentence to eight years. This case was the first time that a court in Belize admitted new evidence in relation to BWS and PTSD in connection with a defense of diminished responsibility.

Lawrence v. The Queen Court of Appeal of Belize (2018)

Domestic and intimate partner violence, Femicide

The appellant was convicted of the murder of his romantic partner of eight years and was sentenced to life in prison. On the night of the murder, the appellant first beat his partner in front of her three children. One of children called the police to report the beating, but the police failed to respond to the residence. Following the beating, the appellant left the house, but returned an hour later, broke into the house, and stabbed his partner to death. The appellant then drove his partner to the hospital where he was subsequently arrested. At the appellant' trial, testimony revealed that the appellant was under the influence of drugs and alcohol at the time of the killing and had a history of domestic violence. The first issue before the Court of Appeal was whether the trial judge gave adequate instructions on the potential for intoxication to be taken into account when deciding whether there was an intent to kill for the purposes of the appellant’s defense. The Court of Appeal found that such instructions given by the trial judge were adequate. The next issue decided by the Court of Appeal was whether new evidence from a forensic psychiatrist based on a single interview with the appellant regarding the appellant’s mental health necessitated a new trial. The Court of Appeal found the new evidence to be less than credible, but exercised discretion to substitute the original conviction of murder to a conviction of manslaughter and reduced the appellant’s sentence to 18 years. In reducing the sentence, the Court of Appeal began with the range of sentences for murder applicable a street fight (being 15 to 20 years), although acknowledged that the instant case differed in that it was a “vicious attack on an unarmed victim.” Taking into account appellant’s diagnosis of schizophrenia, the Court of Appeal began with a 15-year sentence and then added three years to reflect the aggravating factors of “the choice of weapon, the number of stab wounds, the presence of the children and the previous violence he inflicted on the deceased about an hour before the fatal incident” to arrive at the 18 year sentence ordered.

Blake v. R. Court of Appeal (2015)

Sexual violence and rape, Statutory rape or defilement

The applicant pleaded guilty before the Circuit Court of Westmoreland for the offence of having sexual intercourse with a girl under the age of 16, in violation of section 10(1) of the Sexual Offences Act. He was in a serious relationship with the underage girl, but the matter was brought to the attention of the police when the complainant discovered she was pregnant and there was a dispute regarding the defendant’s paternity (tests showed he indeed was the father). He then argued that he was lured and tempted by the complainant, who would attend to his shop in revealing clothes and make sexual advances to him. The grounds for the defendant’s application was that the four-year sentence was manifestly excessive and that the judge was obliged to indicate, as a matter of law, the sentence that would have been imposed if the applicant had been convicted at trial and use that as a starting point for taking into account the fact that the applicant had plead guilty. In addition, his counsel highlighted as mitigating factors: the girl was just six months away from the age of consent and the sexual intercourse was consensual. His counsel also argued that the judge did not take into consideration the character and antecedents of the applicant, as well as the classic sentencing principles of retribution, deterrence, prevention and rehabilitation. However, the Court decided that, although the indication of a starting point for sentencing would have been desirable, they do not see the omission as being fatal to the reasoning underlying the sentencing. They also highlighted that it’s clear that Parliament has recognized this offence as a serious one, and their commitment against it. This case is particularly important because the Court stated that Jamaica has particular difficulties in dealing with offences involving young girls constantly being abused and exploited by older men, and that they have to get the message out that the children must be allowed to transition into adulthood without any molestation. Furthermore, the court stated that the pregnancy of the girl must not be taken as a mitigating factor, because that would send the message that a man who gets the girl pregnant is likely to be treated more favorably by the Court. Finally, the Court insisted that these pronouncements, in the context of the alarming local circumstances, should be guiding principles in sentencing these matters and cases.

Rex v. Shongwe High Court (2008)

Domestic and intimate partner violence

The 54-year-old accused pleaded guilty to culpable homicide based on allegations that she unlawfully poured boiling water on her husband. He refused to seek medical attention for his injuries because he was embarrassed and he died six days later. The Court ordered a suspended sentence because the accused “had been and was being” viciously attacked by her husband and was escaping his attack. The Court based its judgment on a finding that there was a combination of extenuating factors present, including that the accused suffered from battered wife syndrome, the needs of the six remaining minor children for whom the accused is the sole caretaker and provider, that the accused had already served two years imprisonment before she was released on bail, and the deceased’s refusal to go to the hospital for treatment for fear of being ridiculed by other men.

Rex v. Ntai High Court of Lesotho (2004)

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

The defendant was convicted of culpable homicide. The trial evidence showed that after spending an evening at a bar, the defendant beat his girlfriend to death. The defendant sought leniency at sentencing, arguing that he was drunk when he committed the offense. The High Court found that although intoxication somewhat lessens the blameworthiness of a person, the courts should not consider it a mitigating factor. According to the Court, defendants “should not be allowed to escape appropriate punishment for their actions for reasons of drunkenness, especially where such actions exhibit an attitude of violence against women” (p. 3). The Court sentenced the defendant to seven years imprisonment with half of the sentence suspended for five years if he was not found guilty of another violent offense during the suspension. This decision marked a shift in how intoxication was treated for purposes of sentencing in domestic violence cases in Lesotho.

Republic v. Mzungu High Court of Malawi (2007)

Sexual violence and rape, Statutory rape or defilement

The appellant was charged with defilement for having unlawful carnal knowledge of a girl under 13 years of age. The trial court convicted him of indecent assault because there was no penetration. He appealed his conviction for indecent assault because it was not included in the original charge. He also argued that his sentence was excessive. The Court dismissed the appeal of the conviction on the grounds that where the evidence is sufficient to sustain the lesser charge of indecent assault but may not be sufficient for defilement, the accused may be convicted of the lesser crime even when it was not included in the original charge. However, the Court upheld the appeal of the sentence and lowered it, despite of the fact that women and girls need to be protected, taking into account the mitigating factor of the appellant's youth.

Republic v. Peter High Court of Malawi (2008)

Statutory rape or defilement

The appellant was found guilty of defiling a girl under 13 years of age and appealed on the grounds that the sentence is excessive and that his taking care of his grandparents should be considered as a mitigating factor. The complainant had since been diagnosed with a sexually transmitted infection and medical examinations revealed multiple instances of sexual abuse. The appellant testified that neither he nor his wife had a sexually transmitted infection, but the Court did not find this claim persuasive because neither of them had been tested (neither took the initiative to be tested and the government could not force them to be tested). The Court dismissed the appeal and upheld the sentence, considering the harm done to the complainant in infecting her with a sexually transmitted infection.