Women and Justice: Keywords

Legislation

Domestic and Cohabitation Relationships Violence Ordinance (1986)

Domestic and intimate partner violence

The Domestic and Cohabitation Relationships Violence Ordinance superseded the earlier Domestic Violence Ordinance. It extends protections beyond married couples to both opposite-sex and same-sex cohabitants. One type of relief it offers is an injunction from the District Court or the Court of First Instance, which restrains the offender from using violence against the applicant or excludes the offender from the shared home or from other specified area.



Justices Act (1959)

Domestic and intimate partner violence, Stalking

The Act’s purpose is to provide means to hinder persons from committing acts of family and domestic or personal violence by imposing restraints on their behavior and activities. Under the section 106B of the Act, restraint orders can be issued against a person who has caused or has threatened to cause injury or damage to another person or property and is likely to do so again or carry out the threat, behaved in a provocative or offensive manner and is likely to do so again, or against a person who has stalked another person. The justice must be satisfied on the balance of probability that the imposed restraints are necessary or desirable to prevent further prohibited behavior. Restraint orders can be issued on an interim or final basis. A person who fails to comply with an order is guilty of an offence and liable to a fine not exceeding ten penalty units or imprisonment not exceeding six months.



Domestic Violence Prevention Act (2015)

Domestic and intimate partner violence

The Domestic Violence Prevention Act (the “DVPA”) was established in order to prevent acts of domestic violence and to protect the interests of victims. The DVPA defines domestic violence offenses and the family members who might be implicated, specifies the responsibilities and tasks of the various competent authorities, and governs issues such as civil protection orders, criminal procedure, the interests of any minors involved, protection of and support for victims, and educational and prevention measures. Breaches of the DVPA will result in the imposition of a fine or imprisonment.



Domestic Violence Act (2008)

Domestic and intimate partner violence

The Domestic Violence Act (No. 10 of 2008) seeks to provide survivors of domestic violence with protection. The Act defines domestic violence as "any controlling or abusive behaviour that harms the health or safety of the applicant." The Act empowers Courts including Customary Courts to pass an order (Section 7 of the Act prescribes orders available to applicants such as restraining orders and interim orders) that seeks to immediately protect applicants (victims); Section 9 (2) (b) (i) provides that the order shall direct a member of the Botswana Police to prohibit the respondent (the offender) from committing an act of domestic violence. The Act also outlines the jurisdiction of the courts, describes how an applicant can file an application for an order by the court, details how documents are served to respondents, and explains the nature of proceedings in a domestic violence case.



Domestic Violence Act of 2004 (2004)

Domestic and intimate partner violence

The Domestic Violence Act (“DVA”), originally enacted in 1996 and amended in 2004, aims to provide protections for women and children domestic violence situations.  It gives courts the power to grant protection and occupation orders.  Applications for such orders can be brought by the victim or, in the case of a child, a parent, guardian, constable, or social worker can bring an application on the child’s behalf.  The DVA sets forth the limitations imposed by protective orders, and it states courts can grant such an order if “it is satisfied that” the individual against whom the order is sought used or threatened to use violence, mental or physical, against the person seeking the order.  Even without that showing, the court can grant a protective order if it finds the order necessary for the protection of the person “having regard to all circumstances.”  The court can grant protection and occupation orders on an ex parte basis if the court deems it necessary.  Punishment for violating an order is a fine not exceeding $10,000 or imprisonment for a maximum of six months, or both.



Cavanaugh v. Cavanaugh (2014)

Domestic and intimate partner violence, Sexual harassment, Stalking

An man appealed his restraining order, which prevented him from contacting his ex-wife, arguing that the lower court did not properly establish a finding of domestic abuse despite his ex-wife’s testimony that he repeatedly used vulgar and threatening language towards her, at times placing her in fear of physical harm. The Rhode Island Supreme Court upheld the restraining order and underlying finding of domestic abuse, citing the definition of domestic abuse in Title 15, Chapter 15 of the General Laws of Rhode Island: “Among the acts specified in . . . the statute as constituting ‘domestic abuse’ is ‘stalking,’ [which means] ‘harassing another person.’” Because the court found that the ex-husband was “harassing” (and thus “stalking”) his ex-wife, the ex-husband’s conduct fell within the plain meaning of the statute defining domestic abuse. This case is important because it provides that the “unambiguous language” of Rhode Island’s domestic abuse statute does not require a finding of actual physical harm or threats of physical harm as a predicate for domestic abuse—other harassing language is enough.



23 Pa. C.S.A. § 6101, Protection from Abuse Act (1990)

Domestic and intimate partner violence

This statute provides for Protection From Abuse Orders (“PFA Orders”). These PFA Orders act as a safeguard to victims and their children from a family/household member who is abusing them. The Protection from Abuse Act also provides for absolute confidentiality between a victim and a domestic violence counselor/advocate to encourage open and honest dialogue.



Alabama Code Title 13A. Criminal Code § 13A-11-72 (2015)

Domestic and intimate partner violence

In 2015, Alabama amended its gun legislation to prohibit anyone who has been convicted of a misdemeanor offense of domestic violence or is subject to a domestic abuse protective order from possessing a firearm. The amended statute provides: “No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence, misdemeanor offense of domestic violence, violence offense as listed in Section 12-25-32(14), anyone who is subject to a valid protection order for domestic abuse, or anyone of unsound mind shall own a firearm or have one in his or her possession or under his or her control.”



Domestic Violence Act (2000)

Domestic and intimate partner violence, Property and inheritance rights

Belize enacted the Domestic Violence Act #19 in 2000 to provide greater protection and assistance to domestic violence victims.  It was enacted in recognition of the pervasive nature of domestic violence in Belize society in order to increase the resources available to deal with domestic violence cases.  The Domestic Violence Act defines domestic violence and governs protective orders, occupation orders, tenancy orders, other orders relating to counselling, the use of furniture and household effects, payment of rent, mortgage, utilities and compensation for any monetary loss due to domestic violence.  Where a protective order or interim protective order is violated, the individual violating the order may be liable to a fine of up to $5,000 or to imprisonment for up to six months.  (Section 21)



Domestic and Family Violence Act (Northern Territory) (2017)

Domestic and intimate partner violence

The Domestic and Family Violence Act 2007 (NT) empowers the Magistrates’ Court to issue orders for the protection for victims of domestic violence.  A domestic violence order may impose restrictions on the ability of the person whom the order is against to contact, use violence against, damage the property of, threaten, stalk or harass the victim.  A domestic violence order may be issued to victims including: a spouse or former spouse of the perpetrator of the violence; a person who is or has been living with the perpetrator; a relative or former relative of the perpetrator; and a person who has or has had an intimate personal relationship with the perpetrator.  The domestic violence order may be sought by the victim (if over 15 years old), his/her legal representative, a police or child protection officer, or a court.  Knowingly breaching a domestic violence order is a criminal offence, punishable by up to 400 penalty units ($62,000 as of August 2018) or imprisonment for two years.  The domestic violence order remains in force for the period stated, but may be revoked earlier by the victim’s consent or a court order.



Domestic Violence (Amendment) Act 2017 (2017)

Domestic and intimate partner violence, Property and inheritance rights, Sexual harassment, Stalking

Prevent gaps in protection. An interim protection order (IPO) protects survivors during police investigation, while a protection order (PO) protects survivors during criminal court proceedings. The amendments specify when an IPO ends, and when a PO begins, so survivors won’t be left without protection between police investigations and court proceeding.Strengthen the IPO to prevent further abuse. With the amendments, an IPO can include additional safeguards, like prohibiting an abuser from coming near a survivor – so police can intervene before further violence happens.Expand the definition of domestic violence. The expanded definition will protect against: misappropriating property, which causes distress; threatening, which causes distress or fear for safety; or communicating (including electronically) with the survivor to insult modesty.Improve rehabilitation provisions. A court can no longer order a survivor to attend reconciliatory counselling with the abuser, which puts the survivor in danger. Instead, the abuser can be ordered to complete a rehabilitation programme.Recognise survivor’s right to exclusive occupancy. If a court grants a survivor occupancy of a shared residence, it must grant the survivor exclusive occupancy – not just a specified part of the residence.Keep survivors better informed. The police officer must keep survivors informed on the status of investigation, status of IPO and PO, and important court dates.Create the Emergency Protection Order (EPO). The EPO helps survivors get protection faster – EPOs are issued by social welfare officers who are easily accessible (IPOs are issued by magistrates). Survivors won’t have to make a police report to get an EPO. The EPO is valid for seven days, and protects against physical injury and fear of physical injury.


Domestic Case Law

Between S.A.J. and S.P.J. Supreme Court of Grenada and the West Indies Associated States (2014)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Sexual violence and rape

In a pending divorce case, the trial court entered an order for the parties to “refrain from molesting, harassing, besetting, intimidating and/or threatening and carrying out physical or other abuse of the other.”  The wife subsequently accused the husband of sexual molestation and violating the court’s order.  The court explained that “an allegation of sexual molestation in any form is very serious and the onus is on the wife to prove to the Court beyond a reasonable doubt that the husband breached the Order by committing the acts of sexual molestation as alleged.”  The court held that the “wife has failed to discharge this burden” because:  (i) there was no evidence from any corroborating witness; (ii) there was no corroborating evidence from the doctor who examined the wife; (iii) both parties chose not to cross-examine the deponents who swore to the affidavits in the committal application; and (iv) “the husband’s version of the events on 5th March is equally plausible as the wife’s” version of events.



Decision of the Constitutional Tribunal, Case 2208/2013 Constitutional Tribunal (2013)

Domestic and intimate partner violence

The Court held that it was not empowered to impose measures that guaranteed the physical and psychological integrity of domestic violence victims when other tribunals and bodies established for that purpose were competent. However, plaintiffs have the right to make the requests from the competent courts to take necessary measures in order to enforce its orders, using persuasive or coercive means.

La Corte sostuvo que no estaba facultada para imponer medidas que garantizaran la integridad física y psicológica de las víctimas de violencia doméstica donde otros tribunales y organismos establecidos con ese fin eran competentes. Sin embargo, los demandantes tienen el derecho de hacer las solicitudes de los tribunales competentes para tomar las medidas necesarias para hacer cumplir sus órdenes, utilizando medios persuasivos o coercitivos.



Pierce v. City of Humboldt Court of Appeals of Tennessee at Jackson (2013)

Employment discrimination, Gender discrimination

The plaintiff was a police officer with the Humboldt Police Department. While off duty, she ran into an ex-boyfriend against whom she had a protective order. Based on this encounter, she filed a criminal charge against him for violating the order. The chief of police commenced an internal affairs investigation into her charges, and her ex-boyfriend filed a criminal charge against her for filing a false charge. While both charges were pending, the plaintiff informed the chief of police that she was pregnant. Once the internal affairs investigation was completed, the plaintiff’s employment was terminated. She filed suit in the Gibson County Circuit Court for discrimination based on gender and pregnancy in violation of the Tennessee Human Rights Act (“THRA”). The Circuit Court granted summary judgment in favor of her employer, but the Court of Appeals of Tennessee reversed and remanded, finding that the plaintiff had sufficiently alleged that she was treated differently than similarly situated male police officers.



Stephens v. Rose Supreme Court of Virginia (2014)

Stalking

The plaintiff filed a petition for a protective order against the defendant, her ex-boyfriend.  The two  ended their relationship in 2007, but from 2009 to 2012, the defendant made repeated, unsuccessful attempts to re-establish contact with the plaintiff via e-mail and social media.  In 2013, the defendant escalated his attempts, first driving to the plaintiff ’s parents’ home in Canton, Ohio, and approaching her father at 6:20 a.m. to find out where the plaintiff  was currently living.  The plaintiff’s father told the defendant not to contact the plaintiff anymore and then called 911. The plaintiff became afraid upon learning that the defendant had visited her parents’ home, asking her current boyfriend to stay with her because she was afraid to be home alone.  The defendant  began repeatedly calling and leaving voice messages for the plaintiff.  Within a one-week period, he called her 40 times.  On one occasion, the plaintiff ’s boyfriend answered the phone and told the defendant that he had the wrong number and not to call anymore.  The defendant also attempted to contact the plaintiff at her work.  Then, one day, after placing several calls between 2 and 3 A.M., the defendant showed up at the plaintiff ’s home at 7 A.M. with flowers, and the plaintiff ’s boyfriend called 911 and had him arrested. The issue before the Court was whether these acts satisfied the statutory requirements for a protective order which require an “[a]ct of violence, force, or threat.”  The Court held that stalking satisfies the requirements for a protective order even in the absence of physical harm or threatened physical harm.  The Court set forth three elements necessary to prove stalking: (1) “the defendant directed his or her conduct toward the victim on at least two occasions”; (2) “intended to cause fear or knew or should have known that his or her conduct would cause fear”; and (3) “the defendant’s conduct caused the victim ‘to experience reasonable fear of death, criminal sexual assault, or bodily injury.’”  The Court held that, in this case, these three factors were satisfied and explained, with respect to the third factor, that it was sufficient that the plaintiff said that she “was scared,” because “[a] victim need not specify what particular harm she fears to satisfy the third element of stalking.”   



Expediente 12-0001488-0396-PE Tribunal de Apelación de Sentencia Penal. Segundo Circuito Judicial de Guanacaste, Santa Cruz (2013)

Gender-based violence in general

The public ministry is appealing a previous ruling, which found the defendant not guilty of violating an order or protection that prohibited the defendant from, among other things, nearing or entering the home, place of work or place of study of the complainant. Police found the defendant approximately one or two meters from the complainant’s home, armed with a knife. He had broken down the front door and forcibly entered the home. The judge in the previous ruling found the defendant not guilty of violating the order of protection because the facts alleged by the public ministry had not been sufficiently demonstrated. The court also found that the protective order was vague (e.g., what does “near” the house mean?) and that it had not been demonstrated that the defendant was at the victim’s home without her consent. The victim declined to testify. This court overturns the ruling and remands the case to the lower court. The judge found that the investigation was deficient and the public investigators should have looked to other evidence notwithstanding the victim’s refusal to testify), including the fact that the victim called authorities for help and that the door to the house had been broken. The principle of reasonableness should govern, and here, there was clearly a violation of the intent of the protective order. The judge notes that while protective orders do limit rights of the individual subject to the order, their purpose is to provide equal rights to the protected individual. These limitations on the accused’s rights, while important, are less important than the ultimate goal of protecting the other person(s). The goal of public officials should be to provide tools to individuals so that they can enjoy their constitutional and human rights, including equality. In examining these cases, judges should look at the core purpose of the protective order and determine whether the order has been violated, and here, the facts were sufficient to show such a violation. In his discussion, the judge cites the Intra-American Convention to Prevent Violence Against Women, which requires that states take all appropriate measures with respect to legislation, judicial practices and common law in order to prevent violence against women and to establish judicial and administrative procedures for this purpose.

El Ministerio Público inicia esta apelación a una orden de la corte inferior la cual declaró al acusado “no culpable” de violar una Orden que le prohibía estar cerca o entrar a la casa, centro de trabajo, o de estudio, de la litigante. La policia encontró al acusado a unos 2 metros de la casa de la víctima y armado con un cuchillo. El había forzado la puerta del frente y se había adentrado en el hogar. El juez de la corte inferior encontró que estos actos no sumaban a culpabilidad por las siguientes razones: (1) la evidencia no fue específicamente demostrada; (2) la redacción de la Orden se determinó “vaga” porque no especificaba los metros de distancia que no eran permitidos, incluyendo la frase poco específica “cerca de la casa;” (3) no se demostró que el acusado estaba adentro de la casa sin el consentimiento de la litigante; y (4) la litigante se negó a testificar frente a la corte. Nosotros anulamos dichas conclusiones y remendamos el caso en busca de más evidencia. La investigación fue deficiente desde el inicio. Los investigadores públicos debieron haber buscado y presentado mas información—por ejemplo el hecho de que la víctima llamó a la policia diciendo que alguien había forzado la puerta del frente. El principio legal de justicia gobierna este caso. Aunque la Orden no incluya palabras especificas y en efecto limite los derechos del acusado, la conclusión de la corte inferior viola su intento. El propósito de esas órdenes es proveer derechos al protegido. Por lo tanto, cualquier limitación en los derechos del acusado resultan inferiores al objetivo principal protector. La meta de los oficiales públicos debe concentrarse en asegurar que todos los individuos disfruten sus derechos constitucionales, incluyendo la igualdad. Cuando casos similares se presentan ante la corte, los jueces deben concentrarse en analizar el objetivo principal de la Orden protectora. Entonces, en vista a ese hallazgo, determinar si ha sido violada. En este caso hay hechos suficientes demostrando tal violación. En la discusión mencionada, el juez cita datos de la Convención Intro-Americana para prevenir la violencia contra la mujer (Intra-American Convention to Prevent Violence Against Women). Esta Convención require que los estados, tomen toda medida posible con respecto a la legislatura, prácticas judiciales, y ley escrita en vistas a prevenir cualquier violencia contra las mujeres y además establecer los procedimientos judiciales y administrativos pertinentes en vistas a lograr este propósito.



Weheliye v. Minister for Immigration & Multicultural Affairs Federal Court of Australia (2001)

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

A citizen of Somalia sought a protection order on the basis that she feared persecution due to her status as young, a Somali and a woman. The application asserted that she had been sentenced to death by stoning for adultery in Somalia. The Refugee Review Tribunal denied the application, finding the applicant not credible and holding that neither married nor divorced Somalia women constituted a protected group. The court held that the Tribunal erred because it did not examine whether the law against adultery was applied and administered in Somalia in a discriminatory manner.



Jesus C. Garcia v. The Honorable Ray Alan T. Drilon, et al. Supreme Court of Philippines (2013)

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

The plaintiff successfully sought a Temporary Protection Order against her husband under Republic Act No. 9626 Against Women and Their Children. The husband appealed, claiming the Act to be unconstitutional and the order therefore invalid because the Act favored women over men as victims of violence and abuse to whom the State extends its protection. The Supreme Court held that the Act was valid, highlighting the unequal power relationship between women and men; that women are more likely than men to be victims of violence; and the widespread gender bias and prejudice against women, which all make for real differences justifying the law.



Ancich v. Ancich Arizona Court of Appeals (2009)

Domestic and intimate partner violence

Father and Mother were divorced in 2003 and were granted joint custody of their son, Z.  In January 2008, Mother sought an order of protection against Father covering her house, her mother’s house, and Z’s school, claiming that Father, a police officer, had committed domestic violence against her, and had intimidated Z to a point where he left a suicide note.  After an evidentiary hearing, the family court found sufficient evidence to support an order protecting Mother.  The court found, however, evidence was insufficient to cover Z in the order, and thus removed Z’s school from coverage.  Father appealed, arguing that the order was wrongly entered because only Mother’s side of the story “had been heard,” to which the court responded that the family court was entitled to resolve conflict in evidence.  The court determined that Mother’s account was more convincing, and thus rejected Father’s argument.  Father also argued that because of the protective order, he must check his service weapon at the end of every shift and asked for it again at the beginning of every shift.  As a result, he could not perform security work in off-duty hours.  The court did not consider the argument because Father failed to cite any legal authority in support of a need for him to perform off-duty security work.  Finally, Father argued that the protective order would diminish his right to participate decision-making about Z.  The court found the argument unconvincing because father was free to reach Mother via e-mail or phone.  Accordingly, the court affirmed the family court’s grant of a protective order covering Mother.



State v. Baloyi Constitutional Court of South Africa (2000)

Domestic and intimate partner violence

An army officer was convicted for breaching an interdict issued by a magistrate ordering him not to assault his wife or prevent her or their child from leaving their home.  He appealed to the Transvaal High Court which declared that Section 3(5) of the Prevention of Family Violence Act was unconstitutional to the extent that it placed the burden on him to disprove his guilt. The Constitutional Court overturned the High Court's judgment, finding that the purpose of an interdict was to protect the victim of domestic violence and indicate that society would not stand by in the face of spousal abuse.  As such, fairness to the complainant required that the enquiry proceedings be speedy and dispense with the normal process of charge and plea, but in fairness to the accused, the presumption of innocence would still apply to the summary enquiry. 



International Case Law

González Carreño v. Spain CEDAW Committee (2014)

Domestic and intimate partner violence

In 2003, a father murdered his seven-year-old daughter Andrea during a court-approved parental visitation. Ángela González, Andrea’s mother, had previously reported instances of physical abuse to the police on numerous occasions and sought court-ordered restraining orders against him to protect herself and her daughter. The father had refused to accept supervised visitations with his daughter. After killing his daughter, the father committed suicide. The mother brought suit in national court against Spanish authorities. The court ruled against her, deciding in April 2011 that the visit regime was sound and denied the case any constitutional relevance. As a result, the mother brought this complaint to the CEDAW Committee. The Committee found for the mother, stating that in deciding the parental visitation scheme the Spanish authorities should have taken into account the existing context of domestic violence in the family. Instead, the Spanish authorities had made a routine decision that this type of visitation scheme was appropriate without taking the specific facts of this case into consideration. The Committee held that the Spanish authorities thereby failed to take the best interest of the child into account. The Committee has repeatedly found that a State can be held responsible for acts of individuals if it fails to exercise necessary diligence in order to prevent violations of the CEDAW Convention. Specifically, Spain had violated articles 2 a), d), e) and f), 5 a) and 16 paragraph 1 of CEDAW. Additionally, CEDAW ruled that Spain must provide training to judges and other professionals to avoid similar failures in the future. Spain has since stated that it will introduce new mechanisms to protect children in gender violence cases, such as requiring judges to act with precaution in their decision-making.

En 2003, un padre asesinó a su hija Andrea, de siete años, durante una visita de padres aprobada por el tribunal. Ángela González, la madre de Andrea, había denunciado previamente casos de abuso físico a la policía en numerosas ocasiones y había solicitado órdenes de restricción ordenadas por el tribunal para protegerse a ella y a su hija. El padre se había negado a aceptar visitas supervisadas con su hija. Después de matar a su hija, el padre se suicidó. La madre presentó una demanda en el juzgado nacional contra las autoridades españolas. El tribunal falló en contra de ella, decidiendo en abril de 2011 que el régimen de visitas era sólido y negó al caso cualquier relevancia constitucional. Como resultado, la madre presentó esta queja al Comité de la CEDAW. El Comité determinó que la madre indicaba que, al decidir el plan de visitas de los padres, las autoridades españolas deberían haber tenido en cuenta el contexto existente de violencia doméstica en la familia. En cambio, las autoridades españolas habían tomado una decisión de rutina de que este tipo de esquema de visitas era apropiado sin tener en cuenta los hechos específicos de este caso. El Comité sostuvo que las autoridades españolas no habían tenido en cuenta el interés superior del niño. El Comité ha encontrado repetidamente que un Estado puede ser responsabilizado por actos de individuos si no ejerce la diligencia necesaria para prevenir violaciones de la Convención de la CEDAW. Específicamente, España había violado los artículos 2 a), d), e) yf), 5 a) y 16 párrafo 1 de la CEDAW. Además, la CEDAW dictaminó que España debe brindar capacitación a jueces y otros profesionales para evitar fallas similares en el futuro. Desde entonces, España ha declarado que introducirá nuevos mecanismos para proteger a los niños en casos de violencia de género, como exigir que los jueces actúen con precaución en su toma de decisiones.