Women and Justice: Keywords

Domestic Case Law

HKSAR v. Hoque Court of First Instance (2014)

Sexual violence and rape

The court considered the issues of open justice, fair trials, and the right of the accused to confront the accuser. The prosecution in a rape case applied to the court for orders permitting the complainant to leave the courtroom without going through the public gallery and to give her evidence behind a screen so that she would be shielded from view by members of the public gallery.  The defendant opposed the application for the screen, claiming that it would be prejudicial to him.  The Court of First Instance held that the use of the screen to shield the witness from the public did not infringe on the right of an accused to confront the accuser, since the screen did not shield the complainant from the defendant.



U.S. v. Robinson United States Court of Appeals for the Second Circuit (2012)

Statutory rape or defilement, Trafficking in persons

A federal grand jury convicted the defendant-appellant of child sex trafficking in violation of 18 U.S.C. A minor victim testified that she started dating the defendant when she was 17 years old but had told him and others that she was 19 years old. She insisted that the defendant was only living off her income as a prostitute and was not a pimp facilitating prostitution.  However, the prosecution introduced videotaped statements in which the defendant repeatedly implored Doe to make money for him and threatened her when she failed to deliver the money. Following a jury trial, the defendant was convicted of two counts of sex trafficking of a minor. On appeal, the Second Circuit considered the construction of 18 U.S.C. § 1591(c), an evidentiary provision added by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), which provides that “[i]n a prosecution . . . in which the defendant had a reasonable opportunity to observe [the victim], the Government need not prove that the defendant knew that the person had not attained the age of 18 years.” The Second Circuit affirmed the judgment of the district court, holding that this provision imposes strict liability with regard to the defendant’s awareness of the victim’s age and relieves the government’s usual burden to prove knowledge or reckless disregard of the victim’s underage status under § 1591(a). The Second Circuit rejected the defendant’s challenges to this provision as lacking merit and affirmed the judgment of the district court.



Sentencia nº 235 de Tribunal Supremo de Justicia (Número de Expediente: C15-366) Tribunal Supremo de Justicia (2016)

Sexual violence and rape

In the predawn hours of a Sunday morning, police officers came upon a cab parked in a secluded location.  A woman (apparently an adolescent) emerged from the car naked and told the officers she was being raped by the driver, who was found with his pants down.  Prosecutors charged the driver with attempted sexual violence.  After the driver pled guilty and was sentenced to 50 months of imprisonment, the victim appealed the classification of the offense and prosecutors opposed the appeal.  Based on evidence in the record, the court of appeals modified the conviction to sexual violence, doubling the time of the prison sentence.  On the driver’s cassation appeal, the Supreme Court held that, by upgrading the conviction beyond the driver’s plea, the modification denied the driver the opportunity to present a defense and thus violated his right to due process.  The Supreme Court accordingly vacated the modification and remanded the case for rehearing of the victim’s appeal. 



Squire v. R. Court of Appeal (2015)

Sexual violence and rape, Statutory rape or defilement

On 24 May 2013, the applicant was found guilty of the abduction and rape of a 14-year-old girl. He had a good relationship with the parents of the girl and thus was a trustworthy person to her. The applicant’s first appeal application was denied. He renewed his application and the Supreme Court of Criminal Appeal granted the application. This time his conviction was quashed, the sentences were set aside, and the Court ordered a new trial at the next sitting of the Circuit Court. The applicant criticized the quality of the representation given by his counsel at the trial, arguing that his attorney did not provide an adequate defense and did not take full instructions from him. The attorney defending the applicant at the first trial argued that the applicant was properly defended, that the prosecutor also submitted that the defense was adequate and that, as the case turned on the contest of credibility between the complainant and the applicant, the jury’s verdict would have been the same, regardless of any omission by the defense counsel at the trial. Despite the seriousness of the alleged crime, the Court held that the applicant was denied the substance of a fair trial and quashed the conviction, setting aside the sentences, without doing a balancing test between the rights of the 14-year-old girl who was a victim of a crime, and the sex offender’s due process rights.



2016 (Kyo) No. 45 Supreme Court of Japan (2017)

Gender-based violence in general, Statutory rape or defilement, Trafficking in persons

The appellant in this case had been arrested and punished with a fine for allegedly paying for child prostitution in violation of the Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of Children (before its revision by Act No. 79 of 2014).  The news media reported the his arrest for the alleged charge, and all or part of the coverage was made available at several websites that were searchable on the appellee search engine.  This case concerned the appellant’s request—based on his personal rights and moral interests—for an order of provisional disposition, requiring the search engine to make websites that refer to the appellant’s criminal record unsearchable.  The High Court dismissed the request.  The Supreme Court, on one hand, recalled its finding from precedents that the protection of information related to an individual’s privacy is subject to legal protection.  On the other hand, it noted that search engines’ provision of search results (1) may constitute acts of expression and (2) has become an important infrastructure for distribution of information through the internet.  The Supreme Court then found that the evaluation of whether providing particular search results amounts to an illegal action must take into account both the benefits of making the information at question unsearchable on the one hand, and reasons and circumstances pertaining to providing such search results on the other hand; the court can require that the search engine remove such search results only if the former exceeds the latter.  In this case, the Supreme Court found that, while the criminal record at issue pertained to the privacy of the appellant and which he did not wish to be made largely available to the public, such information also concerned the public interest in light of the nature of crimes relating to child porn and child prostitution.  In addition, the Supreme Court took into account that the information dissemination was limited to a certain degree considering that such search results did not show up unless a search engine user used the appellant’s name and his residing prefecture together as search keywords.  Thus, the Supreme Court found that the benefit of making the information at issue unsearchable did not exceed the need of having the websites at issue on the search engine and sustained the lower court’s ruling.



Director of Public Prosecutions, Transvaal v. Minister for Justice and Constitutional Development and Others Constitutional Court [South Africa] (2009)

Sexual violence and rape, Statutory rape or defilement

Two men convicted of child rape challenged the constitutionality of the Sexual Offenses Act's amendments to the existing Criminal Procedure Act (CPA).  The amendments permit child victims and witnesses of sexual offenses to participate in modified court proceedings to facilitate testimony.  The lower court declared the amendments to the CPA constitutionally invalid.  The Constitutional Court reversed the ruling, holding  that (1) courts must inquire into the need to appoint  an intermediary in sexual offense trials whenever children  are expected to testify, regardless of whether the state raises the issue; (2) courts may exercise discretion whether to hold proceedings in camera; and (3) courts must give reasons for refusing to allow the use of intermediaries or other safeguards.