Women and Justice: Keywords

Domestic Case Law

Supreme Court Decision 2013Do7787 (2015)

Sexual violence and rape

Defendant (a Private First Class officer in the army) met Victim (a 10-year-old girl in the 4th grade) through an online gaming site. While video chatting, Defendant repeatedly requested Victim show her body from the waist down. Victim showed her private parts on several occasions to Defendant while video chatting. The military prosecutor indicted Defendant on the charge of sexual abuse under the former Child Welfare Act. Two courts acquitted the Defendant and the military prosecutor appealed to the Supreme Court. The Supreme Court held that “sexual abuse” refers to sexual harassment, sexual assault, cruel acts, etc. which cause a victimized child to feel shame, and can undermine a child’s health and welfare or harm a child’s normal development. The Court also held that whether an act constitutes “sexual abuse” should be determined objectively according to social norms by factoring in specific circumstances, such as: (i) intent, gender, and age of the offender and victimized child; (ii) whether the victimized child had knowledge on sexual values and ability to exercise the right to sexual self-determination; (iii) relationship between the offender and the victimized child; (iv) background leading up to the act; (v) detail of the committed act; and (vi) impact of such act on the victimized child’s personality development and mental health. The Supreme Court reversed the lower court’s judgment because Victim, who was just 10 years old, lacked knowledge on sexual values and did not have the ability to protect herself; therefore, she was not capable of exercising the right to sexual self-determination. Defendant took advantage of Victim’s ignorance and naivety for his own sexual satisfaction. Even if Victim complied with Defendant’s demand without expressing any resistance and did not experience physical/psychological pain due to Defendant’s act, Victim could not voluntarily and earnestly exercise the right to sexual self-determination. As such, Defendant’s act committed against Victim constituted sexual abuse.



DW v. R Court of Criminal Appeal (New South Wales) (2014)

Sexual violence and rape, Statutory rape or defilement

Appellant in this case was convicted of various sexual offenses against his minor daughter, the complainant, including charges of possessing child pornography. During the course of the trial, a recording of a conversation between the appellant and complainant had been entered into evidence. The recording detailed a sexually inappropriate conversation between the parties. At the trial level, this piece of evidence was deemed “reasonably necessary for the complainant’s lawful interest in protecting herself” from abuse by the father and was therefore allowed in as evidence. Appellant asserted that the recording was entered in error. The Court held that even if the recording was in fact entered in error, there was “no substantial miscarriage of justice and the appellant has not lost a real chance of acquittal.” Therefore, the appeal was dismissed.



LM v. The Queen Supreme Court of New Zealand (2014)

Sexual violence and rape

Section 144 of the Crimes Act 1961 “provides for the prosecution of New Zealanders for conduct which, if it had occurred in New Zealand, would be contrary to specified provisions of the Crimes Act involving sexual offending against children and young people.” The appellant, a New Zealander, was found guilty of a sex crime against a child. The crime was committed in Russia and the other offender in the case was a Russian man. At issue on appeal was whether the aforementioned law allowed for “the prosecution of a New Zealander (being LM) on the basis of party liability for “offending” where the principal “offender” is not a New Zealander.” The Supreme Court dismissed the appeal, holding that the appellant was in fact liable as a principal and noting that a miscarriage of justice had not occurred. Furthermore, the Court stated that a “wrong decision” regarding party liability “does not warrant the allowing of the appeal.”



VSAI v. Minister for Immigration & Multicultural & Indigenous Affairs Federal Court of Australia (2004)

Sexual harassment, Sexual violence and rape

A citizen of Eritrea sought protection on the basis that she feared persecution in Eritrea, where she would either be (i) conscripted into, and subject to rape and abuse by, the army or (ii) prosecuted for failure to report for conscription. Although she presented evidence that rape, sexual abuse and impregnation by military officers was committed against draftees, including at the camp to which she would be assigned, as well as evidence showing incidents of parents killed whilst resisting the drafting of their daughters, a delegate of the Refugee Review Tribunal denied the application. The court found that the Tribunal misdirected itself by not asking whether rape, sexual abuse and impregnation by military officers was deliberate or pre-meditated conduct, exposure to which the applicant could not be expected to tolerate. The court set aside the Tribunal’s decision and the matter referred back to the Tribunal.



Claimant v. the Minister of Justice District Court of the Hague (2010)

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

The claimant was born in Somalia and left the country when her home was destroyed and four men attempted to rape her. The claimant sought residence in the Netherlands as a refugee under Immigration Act 2000. She argued that women in Central and Southern Somalia were systematically exposed to inhuman treatment. The claimant submitted reports that abuse and rape of women, by civilians and armed groups, was frequent, and that displaced women were particularly vulnerable during their flight. Gang rape was widespread, and victims (including young girls and boys) were selected at random. Further, rape is almost never prosecuted and the victims are discriminated against because they are seen as “unclean.” The report further stated that women in Somalia do not have access to justice and receive no protection from authorities. Human Rights Watch and UN reports also described women as suffering the brunt of abuse and repression cultivated by al-Shabaab’s decrees, including forced marriage, female genital mutilation (“FGM”) and gender-based violence. The District Court opined that women are in a vulnerable position in Central and Southern Somalia and, therefore, run the risk of suffering violence and human rights violations, and cannot obtain effective protection. They are therefore a group worthy of protection from inhuman treatment and torture.



Bachpan Bachao Andolan v. Union of India & Others Supreme Court of India (2011)

Trafficking in persons

Children’s’ rights, child labor, forced labor, human trafficking, sexual abuse. Bachpan Bachao Andolan, a non-governmental organization in India submitted a petition to the Supreme Court of India to take action against the use of child performers in India’s traveling circuses. A study found that children were being trafficked from Nepal or taken from their homes, exploited as child laborers in these circuses, and subjected to mental, physical, and sexual abuse. In recognition that this practice was in violation of child labor laws and regulations on a child’s right to an education, among other national and international statutes, the Supreme Court gave an order to prohibit the employment of children in circuses, raid circuses to free children, and establish rehabilitation schemes for the child victims. This case is an important victory for children’s rights in India, where parents often sell their children to work at a young age, and also displays the willingness of the Supreme Court of India to hear petitions from NGOs, offering an important avenue for human rights reform.



M v. M High Court of New Zealand (2005)

Sexual violence and rape, Domestic and intimate partner violence

This case concerns the Domestic Violence Act of 1995. Appellant sent emails, faxes, and oral communications to politicians and others, claiming that the respondent, her brother, raped her when she was 11. In Family Court, the judge concluded that the allegation of rape was unfounded and that appellant’s purpose for the communications was to shame the respondent and ruin his reputation, amounting to harassment or psychological abuse. The judge issued a protection order pursuant to the Domestic Violence Act of 1995, prohibiting appellant from further communications alleging the rape. On appeal, it was contended that, 1) the family court judge wrongly found that appellant’s behavior constituted psychological abuse or harassment, and 2) that the special conditions imposed in the protection order were unduly broad, infringing upon the appellant’s freedom of expression under the New Zealand Bill of Rights Act (NZBORA). The High Court rejected the first ground of appeal. As to the second, the High Court read the Domestic Violence Act narrowly, saying that the legislature could not have intended to pass a bill that would conflict with the NZBORA. The High Court would modify the Family Court Judge’s protection order only to qualify that appellant is not precluded from discussing the matter with other family members, attorneys, or law enforcement, thereby preserving her rights under NZBORA. The High Court also approved a Constitutional Court holding that the right of freedom of expression extends to a woman’s right to use her own name in connection with her status as a victim of sexual abuse.


Vistos los autos: “Review of fact by an Appeal court in the cause of Anonymous” Supreme Court of Argentina

Sexual violence and rape

Anonymous had been continually sexually abused and raped by her father since 2001 at the age of twelve. An Argentinean trial court had sentenced the father to eighteen years in prison for abusing his daughter, but this decision was overturned by an Argentinean appellate court, believing the father was not clearly guilty and his punishment was, thus, incommensurate with the crime. The Supreme Court overturned the appellate court decision, stating that there was clear guilt on the father’s part, repeated cries for help by Anonymous, and that the appellate court showed a lack of regard for the facts and the suffering of Anonymous. The case was remanded for new sentencing.

 

Anónimo había sido continuamente abusada sexualmente y violada por su padre desde 2001 a la edad de doce años. Un tribunal de primera instancia argentino había condenado al padre a dieciocho años de prisión por abusar de su hija, pero esta decisión fue revocada por un tribunal de apelación argentino, creyendo que el padre no era evidentemente culpable y que su castigo era, por lo tanto, incompatible con el crimen. La Corte Suprema anuló la decisión de la corte de apelaciones, declarando que había una clara culpabilidad por parte del padre, repetidos gritos de ayuda por parte de Anonymous, y que la corte de apelaciones mostró una falta de respeto por los hechos y el sufrimiento de Anonymous. El caso fue remitido para nueva sentencia.



KKO 2011:1 Supreme Court of Finland (2011)

Sexual violence and rape

The issue here was whether violation of official duty of a doctor was considered sexual abuse under the Finnish Criminal Code (39/1889, as amended) (the "Criminal Code"). A was the working doctor when B went for a breast ultrasonography. A had touched B's breast with bare hands and complemented her on her breasts. A had also massaged gel on the breasts with his hands and several times touched B's breasts. A had also, after getting permission from B, suckled the breasts in order to get excretion. The District Court and the Court of Appeal held that the procedure was not appropriate but did not amount to sexual abuse. The questionbefore the Supreme Court was whether the procedure had a sexual purpose.  According to  Chapter 20 Section 5(1) of the Criminal Code, a person who abuses his or her position and entices another into engaging in sexual intercourse or another sexual act or submitting to such an act should be sentenced for sexual abuse. The Court held that the procedures that A performed deviated from established and medically recommended practice. As a whole the procedure was done in a way that strongly indicated the purpose of sexual arousal or satisfaction. The fact that B had reacted only afterwards was not significant. The Court held that doctor and patient are not in an equal position and the fact that a patient agrees to a medical examination does not imply that the patient would give up her sexual self-determination. The Court saw that A had misused his position as a doctor and found A guilty of sexual abuse and violation of an official duty in accordance with Chapter 40 Section 9(1) of the Criminal Code. The Court found that this was only a single incident towards a consenting adult and sentenced A to pay 80 days-fine and damages to B of 1,200 Euros.



KKO 2010:1 Supreme Court of Finland (2010)

Gender discrimination, Sexual harassment, Sexual violence and rape

The issue here was whether A, the CEO of a company for which the victims worked, was guilty of sexual abuse, of a work safety offense, and of employment discrimination. A had performed sexual acts on his subordinates while they were resting in the break room. These acts included touching intimate parts such as breasts and bottom. The District Court and the Court of Appeal held A guilty of these charges, and A appealed to the Supreme Court.  The Supreme Court considered whether the public prosecutor had a cause of action given that the injured party had not reported the offense within the statute of limitations period.  According to Chapter 20 Section 11 of the Finnish Criminal Code (39/1889, as amended) (the "Criminal Code"), the public prosecutor may not bring charges for the offenses referred to in Sections 3 or 4 or Section 5(1)(2) or 5(1)(4), unless the injured party reports the offense for the bringing of charges or unless a very important public interest requires that charges be brought.The Court held that since A was the victim's supervisor, important public interest required the case to be brought to court by the prosecutor. Turning to the merits of the case, the Court found that A had abused his position in violation of Chapter 20 Section 5(1) of the Criminal Code.  It therefore held A guilty of sexual abuse towards B, C, D and E.  In addition, the Court upheld A's convictions for a work safety offense under Chapter 47 Section 1(1) of the Criminal Code and Section 27 of the Finnish Occupational Safety and Health Act (738/2002, as amended).  Finally, the Court upheld A's conviction for employment discrimination in violation of Section 8(2)(4) of the  Finnish Equality Act (609/1986, as amended), in accordance with Chapter 47 Section 3(1) of the Criminal Code.



Exp. No.1348-2004-AA/TC Constitutional Tribunal (2004)

Sexual violence and rape

A male schoolteacher was accused of sexually abusing one of his female students, a third-grader, and was removed from his job pending the outcome of his trial. He filed a constitutional challenge to his removal, arguing that it violated his due process right to a presumption of innocence, as enumerated in Article 2 of the Peruvian Political Constitution. The court of first instance agreed with the teacher, ordering the school system to reinstate him. The school system argued that the Law of Teachers ("Ley de Profesorado") allows for termination of a teacher without a conviction. The Constitutional Tribunal held that while professionals normally cannot be removed from a job until proven guilty, the interest of protecting minor children outweighed the interest of the teacher in this case. The Court held that the teacher's removal was consistent with Article 34 of the Convention on the Rights of the Child, and Article 2 of the Interamerican Convention on the Prevention, Punishment and Eradication of Violence Against Women, as well as numerous other Peruvian laws.



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.



Egglestone v. The State (2008)

Sexual violence and rape

A high school teenage girl from an impoverished neighborhood consented to undergo job training as a receptionist at the appellant's escort agency. She alleged that during her training, the appellant held her against her will, and raped and sexually assaulted her. The appellant argued that his conviction should be overturned because the victim had consented.  The court dismissed the kidnapping charges, but upheld the rape and sexual assault charges. The court acknowledged that although the victim consented to parts of the training (i.e. wearing lingerie and taking up residence at the employer's compound), she did not consent to sexual intercourse with the appellant.  The court also noted that because of the appellant's age (twice that of the victim) and his promise of employment, he exercised a dominant position over the victim that made it difficult for her to refuse his advances.



K. v. Ministry of Safety and Security Constitutional Court of South Africa (2005)

Sexual violence and rape

K. sued to recover damages from the Minister of Safety and Security from being raped and assaulted by three uniformed and on-duty police sergeants.  The High Court held that the actions of the police officers fell out of the scope of their employment and that the Minister could not be held vicariously liable for their conduct.  The Court held that although the police officers' actions were obviously a clear deviation from their duty, there was a sufficiently close relationship between their employment and the wrongful conduct to hold the Minister liable. 



Disclosure of the Identity of Sex Offenders Convicted of Acquiring Sexual Favors from Minors in Exchange for Monetary Compensation Constitutional Court of South Korea (2003)

Sexual violence and rape

The petitioner, convicted of having sexual intercourse with a minor in exchange for payment, filed a lawsuit in the Seoul Administrative Court against the Commission on Youth Protection ("Commission"), requesting that the Commission revoke its decision to publicly disclose the petitioner's identity (name, age, birthdate, vocation and address, with summary of the crime).  The Administrative Court thereafter filed a request to the Constitutional Court for constitutional review of the provisions of the Juvenile Sex Protection Act ("the Act").   The Constitutional Court held that the provisions of the Act which required the Commission to disclose the personal information (name, age, occupation, address) of the sex offenders convicted of purchasing sex from minors, is constitutional.  The Court held that the Act intends to effect crime prevention, and to protect minors from sexual offenses, "thereby protecting their human rights and helping them to grow up to be sound members of society."



Sudesh Jhaku v. K.C.J. High Court of India (1998)

Gender-based violence in general

The Court held that extreme caution must be taken during the questioning of child witnesses: questions must not be long, complex, or confusing, breaks may be taken during the questioning if necessary, a screen may be used to block the child's view of the courtroom, and "a social worker or other friendly but ‘neutral' adult" may be present or even allowed to sit next to the child. Moreover, such questioning must be in camera.



Delhi Domestic Working Women's Forum v. Union of India Supreme Court of India (1991)

Gender-based violence in general, Sexual violence and rape

In this public interest litigation, the case at issue concerned six women who were sexually assaulted and raped on a commuter train. The Court set out new requirements for police dealing with rape victims, including that victims be provided with legal representation, informing the victim of all her rights before questioning her, and protecting her anonymity during trial. The court also ordered that the criminal compensation board consider the totality of the circumstances, ranging from the emotional pain of the act itself to medical costs and emotional pain associated with any child that might result from the rape when setting out compensation to be paid.



Sakshi v. Union of Inda Supreme Court Supreme Court of India (2004)

Sexual violence and rape

In this public interest litigation, the Supreme court ordered the use of extensive measures to protect children during sexual abuse trials.



Cour de Cassation Chambre criminelle, Rejet, 5 septembre 1990, No. 90-83.786 Cour de Cassation (Chambre criminelle) (1990)

Domestic and intimate partner violence, Sexual violence and rape

Appellant appealed his indictment for aggravated rape, assault, and torture and acts of barbarism against his wife, arguing that marriage creates a presumption of consent to sexual relations between spouses. The Court found that such a presumption is not conclusive and that Section 332 of the Penal Code, which defines rape as "[a]ny act of sexual penetration, whatever its nature, committed against another person by violence, constraint, threat or surprise," does not exclude the possibility of rape within a marital relationship where there is a lack of consent. Furthermore, the same reasoning applies to sexual abuse other than penetration. The Court thus recognized that rape and other sexual abuse can take place within a marital relationship.



Bachcha v. State of U.P. Supreme Court of India (2007)

Sexual violence and rape, Statutory rape or defilement

A man took a six year-old girl into his house, removed her clothes and masturbated until he ejaculated on her stomach. The prosecution charged that he was found in the act of raping the girl, but the medical evidence showed that he could not have done so. The Court held that he could be found guilty of an "offence to modesty," which the court defined as any action that would be shocking the sense of decency of a woman. Here, the Court finds the perpetrator guilty despite India's inadequate criminal law to deal with sexual assault not amounting to rape.



Dorotea Ortega de Guerrero c/ Efraín Guerrero Tarifa Sala Penal (1998)

Sexual violence and rape

Charges were brought against defendant for allegedly sexually abusing his 14-year old daughter for a period of 30 days while they were in Argentina. The lower court found defendant guilty of aggravated rape, in violation of Article 308-2 and 310-2 of the Penal Code. Upon defendant's appeal, the Court affirmed the lower court's ruling, holding that the victim's testimony coupled with that of the defendant's brother, who witnessed and first reported the rape, was sufficient evidence to convict the plaintiff.



Susana Hurtado de Barrero c/ Francisco Barranco Ramos Sala Penal (1998)

Sexual violence and rape

Defendant was charged with the aggravated rape of his 9-year old daughter. After considering a medical exam that confirmed rape had occurred, and hearing testimony from the victim naming her father as the aggressor, the lower court found defendant guilty of aggravated rape. The defendant appealed, alleging the accusation of rape was an attempt by the girl's mother of getting revenge against him. Finding there to be sufficient evidence for a conviction, the Court affirmed the lower court's ruling.



International Case Law

State v. Secretary, Ministry of Law, Justice & Parliamentary Affairs and Others High Court of Bangladesh (1990)

Sexual violence and rape, Statutory rape or defilement

A 7-year-old Bangladeshi girl who had been raped by a neighbor was taken by her parents to receive medical treatment and submit a statement to authorities. Thereafter a judge misinterpreted a law regarding the committal of victimized children and sent the young girl to a government-run safe home, preventing her from being returned to her parents’ custody. The High Court found that the judge had acted illegally and this case was taken as an example of the urgent need for Bangladesh to update is legal code in compliance with the United Nations Convention on the Rights of the Child (CRC), signed by Bangladesh in 1990. The High Court made great strides towards defending the rights of the child with recommendations including child-specific courts in each district, mandatory knowledge of relevant law codes for justice officials who deal with children, and new laws aligned with the CRC.