Women and Justice: Keywords

Domestic Case Law

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。



State v. Urena Supreme Court of Rhode Island (2006)

Domestic and intimate partner violence

The defendant appealed a conviction of manslaughter after stabbing her boyfriend to death, arguing that the state did not prove beyond a reasonable doubt that she did not act in self-defense based on evidence that she suffered from battered women’s syndrome. The Supreme Court of Rhode Island clarified the burden of proof in establishing battered women’s syndrome as a defense, stating that the “defendant [is] required to prove the existence of [battered women’s syndrome] as an affirmative defense by a fair preponderance of the evidence.” Accordingly, the lower court correctly instructed the jury that the burden of proof was on the defendant, not the state, to show that she was suffering from the effects of battered women’s syndrome, and the conviction at the lower court was upheld.



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. V.U. High Court of Namibia (2007)

Domestic and intimate partner violence, Sexual violence and rape

The accused conceived a child after incestuous sexual intercourse with her brother. After the child was born, the mother tied a scarf around its neck and buried it alive. At trial, she claimed that the child was strangled by its own umbilical cord and was already dead when she buried it. However, medical and forensic evidence showed that the child died from strangulation and suffocation due to the mother’s actions. She was convicted of murder. 



The State v. Swartz High Court of Namibia (2018)

Domestic and intimate partner violence, Female infanticide and feticide, Femicide

The accused stabbed and murdered a pregnant minor girl with whom he was in a relationship when he was approximately 18 and she was 15 years old. Their relationship was one filled with domestic abuse and violence. He was convicted of murder and assault with intent to do grievous bodily harm. He was also convicted of assault for unlawfully and intentionally threatening to kill the deceased’s grandmother, thereby causing her to believe that the accused intended, and had the means, to carry out his threat.



The State v. Iipinge High Court of Namibia (2018)

Domestic and intimate partner violence

The accused was convicted of culpable homicide for kicking his girlfriend to death, despite his claims that her death was caused by falling on a rock. In sentencing the accused to 10 years imprisonment, the court noted that violence against women is a serious problem in Namibia and that this should be taken into account in sentencing decisions as an aggravating factor.



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.



Uganda v. Ogwang High Court at Soroti (2015)

Domestic and intimate partner violence

The accused is charged with murdering his wife with a hoe.  The couple’s son lived nearby and heard his parents fighting.  He interrupted his parents’ fight and tried to stop it, but the accused grabbed a hoe and struck his wife in the head, which killed her.  The accused denied his son’s testimony and said his wife was attacked while out with him. The Court found the son’s testimony credible and rejected the accused’s statements.  The Court sentenced the accused to 40 years imprisonment.



Uganda v. Kennedy High Court at Nakawa (2014)

Domestic and intimate partner violence

The accused pleaded not guilty to the charge of murdering his wife after an hours-long fight.  Medical evidence showed that the victim died of blunt force trauma and “increased incranial pressure.”  Family members and friends testified to witnesses numerous instances of the accused committed violence against the victim.  Explaining that domestic violence is one of the most pressing societal problems in Uganda today, the judge sentenced the defendant to 30 years imprisonment.



State v. Naruseb High Court of Namibia (2012)

Domestic and intimate partner violence, Sexual violence and rape, Statutory rape or defilement

The accused was tried for beating and raping his girlfriend A.S. (the third complainant), sexually abusing and beating their five-month-old male and female twin children, and murdering his son by throwing him on the floor.  Medical experts testified that the injuries on the twins suggested sexual and other physical violence.  Denying the charges, the accused testified that A.S., the children’s mother, beat the twins and assaulted the accused. The accused also argued that there was no credible evidence of the crime and that the prosecution failed to meet its burden of proof because A.S. was the only eye-witness to the accused’s alleged crimes. The High Court of Namibia disagreed, finding the accused not credible and finding the A.S. credible, not least because the circumstantial and medical evidence supported her testimony. Citing precedent regarding single witnesses, the Court determined that a single eye-witness is sufficient to sustain a conviction if the witness (a) is credible, (b) gives her statement in a straight-forward manner, and (c) has no reason to falsely incriminate the accused.  In addition, an inference may be properly drawn from the fact that the accused and the complainant were the only two adults in the room between the time the complainant went to bed at night without injuries and when she awoke in the morning with injuries. This finding is significant for domestic violence cases, which often do not involve unbiased third-party testimony.  



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.  



People’s procuratorate of Nanjing City Jiangsu Province v. Ji Xingpeng Supreme Court of Jiangsu Province (2014)

Domestic and intimate partner violence

The defendant Ji Xingpeng, husband of his 22 year-old wife, was charged of crime of intentional homicide for murdering his wife. The couple were married in 2012. Every since then, defendant was doubtful about his wife’s loyalty to him and thought she has affairs with other persons, therefore he always beat his wife after drunk. On a night in 2013, Ji was drunk again and quarreled with the victim. Holding a knife, Ji hacked and poked the wife more than ten times, causing his wife die immediately. Intermediate People’s Court of Nanjing City found that the act of the defendant constituted intentional homicide, and therefore decided a death penalty with two-year’s probation. The victim’s parents appealed that as for the civil suit collateral to criminal proceedings, more compensation shall be made. The Supreme Court of Jiangsu Province finds that the appellants did not provide any evidence for their claims, therefore the decision of the lower court is affirmed.


The People v. Nyambe High Court of Zambia (2010)

Domestic and intimate partner violence

The Defendant, Mr. Nyambe, and the victim, Mrs. Nyambe, were married. Upon return from a fishing trip, Mr. Nyambe found Mrs. Nyambe in bed with another man and reacted by beating the other man. One month later, Mrs. Nyambe revealed that the reason she committed adultery was because Mr. Nyambe “was not a real man,” whereupon the two began to fight, and Mr. Nyambe struck Mrs. Nyambe with an axe and killed her. Despite the one month that had elapsed between the initial discovery of the adultery and the murder, the High Court found that the adultery still constituted provocation. However, under Zambian law, a murder defendant’s reaction must bear a reasonable relationship to the provocation to invoke that affirmative defense to reduce the conviction to manslaughter. The High Court found that the Defendant’s retaliation of striking his wife with an axe was not proportional to the provocation and convicted him of murder.



Rajbir @ Raju & Anr v. State of Haryana Supreme Court of India (2010)

Domestic and intimate partner violence

This case involved an appeal of a man’s lifetime imprisonment sentence. He was convicted of murdering his pregnant wife after she asked for money six months into their marriage. The Punjab & Haryana High Court reduced the sentence to 10 years rigorous imprisonment. The man’s mother was also awarded two years rigorous imprisonment. While the reduction in the husband’s sentence was issued, the Court directed all trial courts in India to ordinarily add § 302 to the charge of § 304B, so that death sentences can be imposed in such heinous and barbaric crimes against women.



S.P. and G.M. v. State Bacau Court of Appeal (1995)

Femicide

The accused raped the victim at the exit of a bar and then decided to take her to their common domicile and continue raping her. On the road, when the victim threatened to report their acts to the police, they decided to murder her. To this end the accused chained the victim and drowned her after hitting her in the head with a rock. The accused were convicted, in first instance, of qualified murder, felony murder, rape, and unlawful personal sequester. Following the appeal of the accused, the Bacau Court of Appeal found that the death of the victim was not the result of the rape and that the accused should have been convicted for murder and qualified murder with the application of the legal provisions regarding aggravating circumstances resulting from committing the crime by two or more persons. (full text decision on file with the Avon Global Center)



Manuel Enrique Peralta Cabrera c/ Eulogio Chino Poma Sala Penal (2000)

Sexual violence and rape

Defendant was charged with homicide and rape of a woman, in violation of Articles 251 and 308 of the Penal Code. Defendant admitted to having raped the victim, but claimed that he did not kill her, claiming he left her alone after he finished raping her. The trial court found there was sufficient evidence to convict the defendant of both crimes. The appellate and supreme courts affirmed the ruling.



Sekoto v. Director of Public Prosecutions Court of Appeal of Botswana at Lobatse (2007)

Domestic and intimate partner violence

The appellant appeals his conviction for the murder of his live-in girlfriend and his sentence of 12 years imprisonment.  The Court upheld the sentence, noting the increasing incidence in Botswana of former lovers killing their partners and opining that the courts should impose appropriately stiff sentences as a deterrent. 



International Case Law

“White Van" (Paniagua-Morales et al.) v. Guatemala Inter-American Court of Human Rights (1998)

Acid violence

The IACHR submitted this case to the Court to determine whether Guatemala had violated the American Convention on Human Rights by "acts of abduction, arbitrary detention, inhuman treatment, torture and murder committed by agents of the State, of Guatemala against eleven victims," some of them women. The Court held that Guatemala violated Articles 1(1), 4(1), 5(1), 5(2), 8(1) and 25 of the American Convention on Human Rights, as well as Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture. The Court ordered Guatemala to investigate and punish those responsible for the violations, and to pay reparations to the victims and their next of kin.

La Comisión Internacional de Derechos Humanos presentó este caso a la Corte para determinar si Guatemala había violado la Convención Americana sobre Derechos Humanos por "actos de secuestro, detención arbitraria, trato inhumano, tortura y asesinato cometidos por agentes del Estado de Guatemala contra once víctimas", algunos de ellas mujeres. La Corte sostuvo que Guatemala en efecto violó los artículos 1 (1), 4 (1), 5 (1), 5 (2), 8 (1) y 25 de la Convención Americana sobre Derechos Humanos, así como los artículos 1, 6 y 8. de la Convención Interamericana para Prevenir y Sancionar la Tortura. La Corte le ordenó a Guatemala investigar y sancionar a los responsables de las violaciones, y pagar compensación a las víctimas y sus familiares.



Plan de Sánchez Massacre v. Guatemala Inter-American Court of Human Rights (2004)

Gender-based violence in general, Sexual violence and rape

The IACHR submitted this case to the Court, alleging violations by Guatemala of the rights to humane treatment, to judicial protection, to fair trial, to equal treatment, to freedom of conscience and of religion, and to private property, in combination with the obligation to respect rights. These allegations arose from a massacre carried out by the Guatemalan army against a primarily Mayan community. During the massacre, approximately 20 girls ages 12 to 20 were mistreated, raped and murdered. Guatemala acknowledged its international responsibility for the massacre and withdrew any objections to the allegations. The Court found that Guatemala "breached the rights set forth in Articles 5(1) and 5(2) (Right to Humane Treatment); 8(1) (Right to Fair Trial); 11 (Right to Privacy); 12(2) and 12(3) (Freedom of Conscience and Religion); 13(2) paragraph a and 13(5) (Freedom of Thought and Expression), 16(1) (Freedom of Association), 21(1) and 21(2) (Right to Property), 24 (Right to Equal Protection) and 25 (Right to Judicial Protection) of the American Convention on Human Rights; and that it did not fulfill the obligation to respect rights set forth in Article 1(1) of that Convention, as set forth in paragraphs 47 and 48 of the instant Judgment." 

La Corte Interamericana de Derechos Humanos presentó este caso a la Corte, alegando violaciones por parte de Guatemala de los derechos humanos, con respecto a la protección judicial, a un juicio justo, a un trato igualitario, a la libertad de conciencia y de religión, y a la propiedad privada, en combinación con la obligación de respetar dichos derechos. Estas acusaciones surgieron a partir de una masacre llevada a cabo por el ejército guatemalteco contra una comunidad principalmente maya. Durante la masacre, aproximadamente 20 niñas de 12 a 20 años fueron maltratadas, violadas y asesinadas. Guatemala reconoció su responsabilidad internacional por la masacre y retiró cualquier objeción a las acusaciones. El Tribunal determinó que el país "violó los derechos establecidos en los artículos 5 (1) y 5 (2) (Derecho a un trato humano); 8 (1) (Derecho a un juicio justo); 11 (Derecho a la privacidad); 12 (2) ) y 12 (3) (Libertad de conciencia y religión); 13 (2) párrafos a y 13 (5) (Libertad de pensamiento y expresión), 16 (1) (Libertad de asociación), 21 (1) y 21 ( 2) (Derecho a la propiedad), 24 (Derecho a la igualdad de protección) y 25 (Derecho a la protección judicial) de la Convención Americana sobre Derechos Humanos, y que no cumplió con la obligación de respetar los derechos establecidos en el artículo 1 (1) de esa Convención, tal como se establece en los párrafos 47 y 48 de la presente Sentencia. "