The defendant was charged the defilement of the complainant, a 17-year-old girl. In his defence, the accused claimed that he could not get an erection (albeit, apparently, only after the magistrate raised the question himself). During the proceedings, a woman stood up in court and volunteered to ascertain whether the accused could obtain an erection. One week later, the magistrate, prosecutor, court interpreter, accused, complainant, and the woman who had volunteered met in the magistrate’s chambers to witness whether the woman could touch the defendant sexually until he obtained an erection. The magistrate observed, after approximately 30 minutes of sexual contact, that the accused’s “penis got a bit hard but not very hard.” Following a complaint from the complainant’s parent, the High Court was requested to review the conduct of the magistrate to determine the veracity of the complaint. At this point, the magistrate had not reached a verdict. By way of a preliminary conclusion, the High Court noted that “this illegal show seemed to come out of the blue” and found that the manner of investigation into the accused’s ability to obtain an erection was “raised by the magistrate, thereby making the [High] Court conclude that there were extra judicial discussions” between the accused and the magistrate. The Court also expressed serious concern about secondary victimisation, given that the sexual act occurred in the presence of the complainant. The Court then outlined its reasons for arriving at its ultimate decision, focusing on two matters: the existence of bias and judicial stereotyping. Regarding the first issue, the Court cited caselaw from across common law jurisdictions and the European Court of Human Rights relating to actual or perceived bias. Regarding the second issue, the Court highlighted the significant dangers associated with gender stereotyping on the part of the judiciary. The Court emphasised that judges should be alive to the concerns of victims of sexual offences, specifically that gender stereotypes harm such victims and contribute to further violations of their rights. Presiding officers are obliged to ensure that the courts offer equal access to men and women. In this context, it was emphasised that it matters not only how judges conduct themselves, but also how their conduct could be perceived during a trial. A judicial officer has to be aware of the negative results of displaying condescension toward women in court. In this case, the complainant was concerned about judicial bias, corruption, and/or collusion with the accused. The decision implied that the magistrate’s conduct could have arisen from his bias against, and stereotyping of, the complainant as a complainant in a sexual offence case. The Court highlighted that the judiciary could not condone the perpetuation of “structural gender-based violence, where courts instill fear in women and girls who are victims of sexual offences, using the criminal justice system.” Therefore, in order to create a discrimination-free judicial system that victims can rely on, it is incumbent on the judiciary to remain cognisant of its own biases and stereotypes, especially in the context of victims of sexual offences, and conduct cases in a manner which counteracts such biases and stereotypes. In conclusion, the High Court ordered a retrial under a different magistrate, and that the complainant and her family be provided with the resources needed to ensure her attendance at court. The Court referred (i) the magistrate’s conduct in the trial and (ii) the wider question of gender bias among judicial officers to the Judicial Service Commission. Finally, the Court recommended that the Chief Justice, through the judiciary’s training committee, should develop training programmes to avoid a matter like this re-occurring in the future.
Women and Justice: Keywords
Domestic Case Law
R. v. Yusuf Willy (Criminal Review No. 6 of 2021/Criminal Case No. 183 of 2021) High Court of Malawi (2022)
Cправа № 334/5052/17 (Case No.334/5052/17) кримінального суду у складі Верховного Суду (Criminal Court of Cassation within the Supreme Court of Ukraine) (2020)
The appellant attacked the victim in the park in an attempt to rape her, but he was noticed by other people and fled the scene of the crime before committing rape. The court of first instance sentenced the appellant to imprisonment for three years. However, the court discharged the appellant from imprisonment and instead put him on probation, with the imposition of certain duties. The appellate court overturned this decision and reinstituted the prison sentence of three years, cancelling the discharge from punishment on probation. The Supreme Court affirmed the appellate decision, finding that the court of first instance did not sufficiently consider the degree of public danger of the crime, or that the victim was disabled since childhood, which made her exceptionally vulnerable. Also, the first-instance court did not consider the fact that the appellant did not succeed in raping the victim only because of the intervention of other people who forced the appellant to flee the scene, not because he willingly abandoned the crime. This case is significant because it illustrated how Ukrainian courts should apply the sentencing factors for attempted crimes – (i) the gravity of the offense, (ii) the amount of progress made toward completing the crime, and (iii) the reasons the crime was incomplete – in sexual violence cases.
Скаржник напав на жертву в парку, намагаючись її зґвалтувати, але оскільки його помітили інші люди, він втік з місця злочину, перш ніж вчинити зґвалтування. Суд першої інстанції засудив заявника до трьох років позбавлення волі. Проте, суд звільнив скаржника від відбування покарання, натомість призначив йому випробувальний термін із покладенням певних обов’язків. Апеляційний суд скасував це рішення та поновив покарання у вигляді трьох років позбавлення волі, скасувавши звільнення від відбування покарання з випробуванням. Верховний Суд залишив без змін рішення апеляційного суду, встановивши, що суд першої інстанції недостатньо врахував ступінь суспільної небезпеки злочину та те, що потерпіла була інвалідом з дитинства, що робило її особливо вразливою. Крім того, суд першої інстанції не взяв до уваги той факт, що скаржнику не вдалося зґвалтувати жертву лише через втручання інших осіб, які змусили скаржника втекти з місця події, а не через те, що він добровільно відмовився від злочину. Ця справа є важливою, оскільки вона продемонструвала, які обставини мають враховувати українські суди при призначенні покарання за замах на злочин у справах, які стосуються сексуального насильства: (i) тяжкість правопорушення, (ii) ступінь досягнутого на шляху завершення злочину, і (iii) причини, через які злочин не був доведений до кінця злочину.
R. v. Hutchinson Supreme Court of Canada (2014)
The complainant agreed to sexual intercourse with her partner provided that he use a condom to prevent conception. Without the complainant’s knowledge, the accused poked holes in the condom and the complainant became pregnant. The trial judge found that the complainant had not consented to sexual intercourse without a condom and the accused was convicted of sexual assault. On appeal, the majority upheld the conviction on basis that the condom was an “essential feature” of the sexual activity. The main issue before the Supreme Court was whether the act of sabotaging a condom results in there being no consent under s.273.1(1) of the Criminal Code or should it be considered as a factor to vitiate consent under s.265(3)(c). The law prescribes a two-step test for determining whether there is consent to sexual activity. The first step requires the court to determine whether there was a voluntary agreement of the complainant to engage in the sexual activity in question and if the court finds that there was consent, the court then considers the possible presence of circumstances that would negate consent. The majority of the Supreme Court found that the consent was vitiated by fraud under s.265(3)(c).
R. v. Barton Supreme Court of Canada (2019)
The accused was charged with first degree murder of an Indigenous woman who was sex worker. The deceased was found in his hotel room. The cause of death was found to be loss of blood due to an 11cm wound in the victim’s vagina. In its opening address, the prosecution referred to the deceased as a “prostitute” and discussed how she and the accused had struck up a working relationship the night before her death. In addition, without ordering a separate hearing or considering the relevance of the evidence as is required pursuant to section 276 of the Criminal Code (evidence of complainant’s sexual history), the trial judge allowed the accused to testify at length about his previous sexual activity with the deceased. The jury acquitted the accused, but the Court of Appeal ordered a new trial on first degree murder. In the Supreme Court, the majority agreed that a new trial should be ordered, but on the lesser charge of unlawful act manslaughter. This was because the trial judge’s mistakes in not considering the relevance of evidence did not affect the decision on murder. The Supreme Court said that defences to sexual assault cannot rely on things that support myths about women and consent. The first myth being that a woman’s consent to previous sexual activity means she consents to the current act in question and the second myth being that such women might not tell the truth.
Pml.-Kzz. Nr. 62/2013 Gjykata Supreme e Kosovës (Supreme Court of Kosovo) (2013)
The defendant was arrested for being suspected of touching a female police officer’s shoulder and trying to kiss her, and charged with Sexual Abuse by Abusing Position, Authority or Profession pursuant to Article 200 of the Criminal Code of Kosovo, and attempt to commit such an offense, among other crimes. The municipal court found the defendant guilty, and sentenced him to two years and four months of imprisonment and prohibition of public service for three years. The district court rejected the charge of Sexual Abuse by Abusing Position, Authority or Profession, and reduced the sentence to 12 months of imprisonment and prohibition of public service for two years. Thereafter, the defendant filed a Request for Protection of Legality against the lower courts’ decisions, arguing that the lower courts unlawfully convicted him of attempted Sexual Abuse by Abusing Position, Authority or Profession. The defendant argued that an attempt requires the offender to intentionally take immediate action toward the commission of the offense. Here, the commencing of the criminal offense was not proven because there was no action manifesting a sexual purpose behind his touching. The Supreme Court held the defendant’s claim was unfounded, pointing out that Article 200’s text states only “[w]hoever touches another person for a sexual purpose.” Here, the defendant not only touched the victim but also tried to kiss her, and was prevented from kissing her mouth only by the victim’s resistance. Hence, the defendant did not commit an attempt, but in fact completed the offense. The court, however, determined that the principle of reformatio in peius (prohibiting placing the appellant in a worse position after appeal) barred it from changing the lower courts’ qualification of the criminal offense. The court additionally rejected the defendant’s argument that the attempt in this case was not punishable, determining that an attempt to commit Sexual Abuse by Abusing Position, Authority or Profession was punishable under the Criminal Code. (Also available in English.)
New South Wales v. Lepore High Court of Australia (2003)
This decision concerned three separate cases of assault: New South Wales v. Lepore, Samin v. Queensland, and Rich v. Queensland. Each case involved the abuse of students by public school teachers. The victims alleged that the educational authority was liable on the basis of a non-delegable duty of care. The Court found the argument unpersuasive and overly broad: “The proposition that, because a school authority's duty of care to a pupil is non-delegable, the authority is liable for any injury, accidental or intentional, inflicted at school upon a pupil by a teacher, is too broad.” The victims also sought damages from the government on an alternative theory of vicarious liability. The Court considered related decisions by the Supreme Court of Canada and the House of Lords where educational authorities were held vicariously liable for the conduct of their employees. The Court asserted that vicarious liability for the criminal conduct of an employee exists where the employee was acting as agent, servant, or representative of the employer when the incident occurred. The Court ordered a new trial in the case of Lepore, and dismissed the appeals of Samin and Rich.
Banditt v. R High Court of Australia (2005)
The relevant offense occurred when the appellant broke into and entered the home of the complainant, who was asleep. The appellant had sexual intercourse with the complainant without her consent. The appellant was convicted in a jury trial. The appellant challenged his conviction based on an instruction provided by the trial judge to the jury concerning the meaning of “reckless.” The appellant claimed that the instruction was insufficient, arguing that recklessness “is satisfied by "a discrete mental state which is, 'Even if I knew, I would continue. It does not matter to me'." The High Court held that the jury instruction was proper as administered and dismissed the appeal.
Supreme Court Decision 2009Do3580 Supreme Court of South Korea (2009)
The Victim, born a male, identified as a female while growing up and was diagnosed with gender identity disorder. At the age of twenty-four, the Victim underwent a sex-change operation and was diagnosed as a transsexual by a psychiatrist. The Victim had cohabited with a male for ten years and had lived as a female for the past thirty years after the operation. Under Korean law, the victim of the crime of rape must be female. Thus, the central issue of the case pertained to the appropriate standard in determining the legal gender of a rape victim. The Supreme Court affirmed the lower court’s decision, holding that the Victim was a female under the law. In making this decision, the court noted that it must conduct a comprehensive evaluation of the biological, psychological and social factors, rather than merely relying on biology. Thus, in determining an individual’s gender, the Supreme Court noted that lower courts must consider the individual’s own sense of identity, including an individual’s behavior, attitude and characteristics. Additionally, courts must look to factors such as the individual’s discomfort regarding his or her biologically assigned gender, the individual’s sense of belonging and identity, whether the individual wants to obtain the genitals and other sexual characteristics of the opposite sex, whether a psychiatrist has diagnosed the individual as having transsexualism and whether the individual has received psychiatric treatment and hormone therapy, which failed to cure such symptoms. Lastly, courts must look at factors such as whether the individual has adapted to the opposite sex mentally and socially, has undergone sex reassignment surgery, identifies with such gender, wears the clothes and carries him or herself as the opposite sex, and whether others accept the changed gender. In this case, the Victim identified herself as a female and did not associate herself as a male, underwent a sex-change operation, and lived her life as a female for over thirty years after the operation. Thus, the court concluded the Victim was a female, and a rape was committed with knowledge that the Victim was a female.
Montero v. R Court of Criminal Appeal (New South Wales) (2013)
The complainant, age 15, was sexually assaulted while staying at the applicant’s home. The applicant was convicted of the sexual offense and appealed the conviction. The applicant argued that the judge inappropriately used the location of the offenses, the applicant’s home, as an aggravating factor. The Court held that the application of this sentencing factor was appropriate as it concerns the violation of a visitor’s “reasonable expectation of safety and security.” The Court held that the sentencing judge did not err in terms of the administration of the sentence.
Expediente 07-200123-0306-PE Tribunal de Apelación de Sentencia del Tercer Circuito Judicial de Alajuela, Sección Tercera (2013)
The public defender is appealing a conviction of sexual assault on behalf of his client. The appeal argues that (1) the facts alleged are imprecise and ambiguous (e.g., how is it possible to restrain someone’s arms while touching them at the same time?) and (2) the sexual contact was consensual because there was no evidence of the victim’s fighting back, she didn’t scream for help, had no injuries or physical signs of assault. Given the alleged failure to show that the contact was not consensual, the public defender argues that a charge of sexual harassment would be more appropriate, since the defendant was the victim’s employer. The court rejected the appeal, stating that the burden is not on the victim to show physical or objective signs of nonconsent; rather, the burden is on the defendant to show that the victim consented, which he failed to do. The court notes that victims are not obligated to display certain actions or behaviors to prove they did not consent to sexual contact. The court also notes that it is important to analyze each case on an individual basis, and not to reinforce stereotypes regarding victims’ behaviors. The court also dismissed the argument regarding the imprecise nature of the facts presented at the initial proceeding on the basis that the incident occurred six years ago, when the victim was 18 years old.
El defensor público está apelando la convicción de asalto sexual de su cliente. La apelación propone que, (1) los hechos alegados son imprecisos y ambiguos (por ejemplo, ¿cómo es posible contener los brazos de alguien y tocarlos sexualmente al mismo tiempo?) y (2) el acto sexual fue consensual porque no hay evidencia de que la víctima se resistiera, gritara pidiendo ayuda, o tuviera lesiones u otras marcas físicas de asalto. Dado el fallo en mostrar que el acto no fue consensual, el defensor público propone que un cargo de acoso sexual sería más apropiado, ya que el acusado era el empleador de la víctima. La corte rechazó la apelación concluyendo que la carga legal de probar que hubo falta de consenso mútuo en el acto sexual, no está en la víctima. La carga probatoria cae en el acusado, quien tiene que mostrar que la víctima consintió al acto sexual, lo cuál él falló en demostrar. La corte agregó que las víctimas no están obligadas a mostrar actos específicos o ciertos comportamientos para demostrar que no consintieron al acto sexual. Es importante analizar cada caso individualmente y no intensificando estereotipos con respecto a los comportamientos esperados de una víctima. La corte también rechazó el argumento con respecto a la imprecisión de la evidencia física discutido en el procedimiento inicial referente a que los actos ocurrieron seis años atrás cuando la víctima tenía 18 años de edad.
R. v. J.A Supreme Court of Canada (2011)
This appeal involved the interpretation of “consent” under the sexual assault provisions of the Criminal Code of Canada. The Supreme Court of Canada in its seminal decision in 1999 in R. v. Ewanchuk unanimously confirmed that consent to sexual activity must be active, voluntary and revocable, meaning that a woman can say “no” at any time. Further, the Supreme Court in Ewanchuk held that consent cannot be implied, whether from a complainant’s dress or the fact that she said “yes” on an earlier occasion. R. v. J.A. involved a woman who reported that she was sexually assaulted by her common-law spouse where the accused strangled the complainant into unconsciousness. When the complainant awoke, she found herself bound and being anally penetrated. The accused argued that the complainant consented “in advance” to the strangulation and anal penetration that took place while she was unconscious. In its judgment, the Supreme Court held that “an individual must be conscious throughout the sexual activity in order to provide the requisite consent” and that “the definition of consent…, requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy the requirement.”
Steve Brian Ewanchuk v. Her Majesty the Queen Supreme Court of Canada (1999)
The accused engaged in increasingly inappropriate sexual behavior toward the 17 year old complainant whom he was interviewing for a job. The teenager reported feeling afraid and stated that she repeated “no” at each advance. Despite the teen’s refusals, the accused continued to touch the complainant. The trial court acquitted the accused of sexual assault charges based on implied consent and the acquittal was upheld in the Court of Appeal. An appeal to the Supreme Court of Canada followed, in which the Supreme Court considered whether the trial court judge (1) erred with regard to his conception of consent and (2) whether the defense of “implied consent” was appropriate to this case. The Supreme Court of Canada found that the accused’s behavior did constitute sexual assault and noted that the trial judge erred in the determination that the teenager implicitly consented, stating, “the question of implied consent should not have arisen.” Specifically, the Supreme Court of Canada determined that the trial court had relied on stereotypes about women, including the problematic idea that women are “in a state of constant consent to sexual activity,” and asserted that these stereotypes “no longer find a place in Canadian law.”
Decision No. 11/1995, File No. 6 Tz 17/94 Supreme Court of the Slovak Republic (1994)
Ms. V. Ž. (the “Aggrieved”) was sexually assaulted by her mother’s partner, Mr. M. P. (the “Accused”) who had lived with them in same household for more than 5 years. The Bratislava I County Prosecutor terminated criminal proceedings after the Aggrieved refused to testify and to give her consent to initiate the criminal prosecution. The Attorney General of the Slovak Republic challenged this termination arguing that the Aggrieved was not entitled to refuse her testimony or withhold permission to initiate criminal proceedings. The Supreme Court of the Slovak Republic ruled that by testifying against the Accused, a person with whom she has family like ties, she could suffer considerable harm herself, as the harm reflected upon the Accused could be perceived as a harm done to the Aggrieved herself and therefore she was in a position to refuse such testimony. The Attorney General challenged the decision and the Supreme Court admitted the insufficient assessment of the relevant criminal offence as only restraint of personal freedom and determined the relevant criminal offence as a combination of the criminal offences of sexual abuse and blackmail. Pursuant to Section 163a of the former Criminal Procedure Code , the initiation of criminal prosecution for these criminal offences was subject to the consent of the aggrieved person. Whereas, the Aggrieved was a minor and did not have full legal capacity to provide such consent, she should have been represented by her legal representatives, i.e., her parents. In this case, since her mother was the partner of the Accused, there was a high risk of conflict of interest. In such cases, the parents are replaced by other legal representatives, i.e., court appointed custodians. Since the Bratislava I County Prosecutor failed to observe these requirements, the Supreme Court superseded its resolution and ordered a new one to follow all of the findings made by the Supreme Court. According to current legislation, the prosecution of defendants of two related criminal offences, i.e., sexual abuse and blackmail, is no longer subject to the consent of the aggrieved person. Nonetheless, this Supreme Court Decision No. 11/1995 is applicable, especially in regard to the mandatory legal representation of aggrieved minors. Pursuant to Section 211 of the current Criminal Procedure Code, the prosecution of offenders of other criminal offences (e.g., copyright violations or theft) is still subject to the consent of the aggrieved person. Minors must be represented by their legal representatives not only in relation to giving consent, but in performing any relevant legal action. The relevant authorities shall always examine whether there is possibility of a conflict of interest and if so, exclude such representatives and ask the relevant court to appoint a custodian.
Commonwealth v. Meals Pennsylvania Supreme Court (2006)
Here, the defendant pleaded guilty to sexual offenses, namely that he sexually assaulted two daughters of his live-in girlfriend and threatened the younger daughter that he would harm her mother if she reported the assaults. A member of the Sexual Offenders Assessment Board assessed the defendant and found him to be a sexually violent predator under Megan’s Law II (42 Pa. C.S.A. § 9795). The court found that the defendant was a pedophile and was a sexually violent predator. The Superior Court subsequently reversed this finding, reasoning that the evidence did not support the defendant’s classification, and the state appealed. On appeal, the court found that the Superior Court improperly required the diagnosis of pedophilia to require more than proof of sexual assault on children. The court reversed this and found that proof of sexual assault on children sufficed to warrant a finding of pedophilia and the defendant was properly classified as a sexually violent predator.
Commonwealth v. Fuentes Pennsylvania Superior Court (2010)
Defendant appealed a ruling that he was a sexually violent predator, suffering from an antisocial personality disorder. Defendant sexually assaulted a sixteen year-old girl and threatened to kill her if she reported the assault. He was subsequently arrested and entered a negotiated guilty plea. At the defendant’s Megan’s Law hearing and sentencing, a doctor, who was a member of the Sexual Offenders Assessment Board, found that the defendant had an antisocial personality disorder and that he was likely to engage in sexually violent activity if not confined. In response to the defendant’s appeal, the Superior Court noted that the “determination of a defendant’s SVP status may only be made following an assessment by the Board and hearing before the trial court.” The court noted that the Board member’s opinion was evidence in of itself of the defendant’s sexually violent nature, and it upheld the assessment.
Gourley v. Gourley Washington Supreme Court (2006)
One of the parties’ children accused petitioner of sexual assault, including improper touching of her breasts and vaginal area on multiple occasions. During an interview with Child Protective Services (CPS), the child denied any improper touching, but subsequently stated that petitioner had cautioned her against disclosing any information about the improper touching. Additionally, in a written declaration, petitioner had admitted to rubbing aloe vera on the naked body of the child. As a result, respondent sought and received a domestic violence protection order against petitioner under Wash. Rev. Code 26.50 , prohibiting contact between petitioner and respondent and their three children. Petitioner appealed, arguing that, in granting the petition for protection order, the commissioner improperly considered hearsay evidence and violated his due process rights when he refused to allow cross-examination of the child, who made the accusation. The Supreme Court of Washington held that the rules of evidence need not be applied in ex parte protection order proceedings and, therefore, the commissioner did not err when he considered hearsay evidence in issuing the protection order. Furthermore, denial to allow cross-examination of the child did not violate petitioner’s due process rights, because nothing in the statutory scheme explicitly requires allowing respondent in a domestic violence protection order proceeding to cross-examine a minor who accused him of sexual abuse.
Harvill v. Rogers Court of Appeals of Texas – Tyler Division (2010)
Molly Harvill sued her fellow employee, Oscar Rogers, for sexual assault and battery and intentional infliction of emotional distress. Ms. Harvill alleged that Mr. Rogers grabbed and kissed her, shot rubber bands at her breasts, and rubbed against her at work after repeated requests for him to stop. The trial court entered summary judgment in favor of Mr. Rogers because Ms. Harvill didn’t allege damages as a result of the sexual assault. However, the appellate court reversed on this count, recognizing that no actual damages are required for an allegation of sexual assault. All that is required is that a person intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Tex. Penal Code. § 22.01(a)(3). The court recognized that bodily injury is not required and damages for mental suffering are recoverable without an actual physical injury.
O’Dell v. Wright Court of Appeals of Texas – Fort Worth Division (2010)
Rebecca Wright was a waitress at Arlington Steakhouse, Inc. for four months. She alleged that during this time, her supervisor, Christopher O’Dell, made lewd sexual comments to her, touched her in sexual ways that she found offensive, and created a hostile work environment by his 13. Specifically, Ms. Wright alleged O’Dell put his fingers down her blouse and in her pants and brushed up against her, offered to pay her for oral sex, verbally degraded her and the other waitresses, and made inappropriate comments about her physical appearance. The jury trial resulted in a verdict for Ms. Wright on all claims, finding O’Dell assaulted her, Ms. Wright was constructively discharged, and was subjected to 13. The jury award was for $175,000 in mental anguish damages for assault and $250,000 in mental anguish damages for 13. O’Dell appealed this decision on many grounds, one of which was that the award of damages was unsupported and violated the statutory cap on damages for employers with less than 500 employees. The appellate court affirmed, recognizing that mental anguish damages require a plaintiff introduce “direct evidence of the nature, duration, and severity of her mental anguish, thus establishing that there was a substantial disruption of her daily routine.” The requirement is a “high degree of mental pain and distress” and must be more than “mere worry, anxiety, vexation, embarrassment or anger.” Direct evidence must be shown of this and the evidence shown must justify the amount awarded to be affirmed on appeal. The court found Ms. Wright presented sufficient evidence at the trial since she experienced severe anxiety, clenched her jaw, held her breath, at times felt paralyzed and nauseous, and had nightmares of her attacker, O’Dell. In addition, the appellate court found the amount was fair and reasonable since the jury considered the “disruption in her life and personal toll taken by the events surrounding the assault and 13.” The court also found that the statutory cap provided in Texas Labor Code Section 21.2585 (capping damages based on the size of the employer) did not apply because the burden was on the defendant to plead and prove this defense, it was not an automatic cap.
East Tex. Med. Ctr. EMS v. Nieves Court of Appeals of Texas – Waco Division (2010)
Kathy Nieves sued her co-worker, Jeremy Cox, for sexual assault and sued her employer, East Texas Medical Center EMS (ETMC) for, among other things, 13. Ms. Nieves was an EMT and Mr. Cox a paramedic who would work shifts with Ms. Nieves. Ms. Nieves alleged sexual assault by Mr. Cox, arguing that he had subjected her to forced sexual contact at her apartment, and 13 during the work shift when Mr. Cox allegedly tried to hold her hand and have other unwanted contact while at work. Texas recognizes that a person commits assault if he (1) intentionally, knowingly or recklessly cause bodily injury to another, (2) intentionally or knowingly threaten another with imminent bodily injury, or (3) intentionally or knowingly cause physical contact with another when he knows or should reasonably believe that the other will regard the contact as offensive or provocative. The jury was instructed that “sexual assault is without the consent of the other person if (1) the actor compels the other person to submit or participate by the use of physical force or violence, (2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat, or (3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist.” The jury trial handed down a verdict for Ms. Nieves on all claims and substantial damages for past and future physical pain and mental anguish. Mr. Cox and ETMC both appealed the jury verdict, though ETMC ended up settling the claims against it. The appellate court affirmed the trial court’s order, recognizing the important role of the jury in determining which “side of the story” is more credible and whom to believe. In this type of case, a court must consider the “entire context, circumstances, conversations, writings, acts, and relationships between the parties” in determining whether to reverse the trial court. Here, the appellate court found there was sufficient evidence for the trial court outcome and that the jury’s verdict was not unreasonable.
Griffin v. City of Opa-Locka United States Court of Appeals for the Eleventh Circuit (2001)
A. Griffin was employed as a billing clerk in the City of Opa-Locka’s water department in 1993. Shortly after hiring Griffin, the city hired Earnie Neal as its City Manager. After taking office, Neal immediately began sexually harassing Griffin. He called her derogatory names, aggressively pursued her, and made inappropriate advances. He performed some of these acts in front of the Mayor and City Commissioner. Griffin continually resisted his advances and attempted to go on with her daily routines in fear of being fired. Eventually, Neal raped Griffin in her apartment after insisting he drive her home after an event put on by the city. Griffin waited several months to come forward about the rape, and the lawsuit ensued. Griffin sought damages against the City for 13 and sexual assault under Title VII; the Florida Civil Rights Act; 42 U.S.C. § 1983, and state tort law. She also alleged claims against Neal. At trial, a jury found that Neal sexually harassed Griffin, that the harassment was a custom or policy of the City, Neal raped Griffin under color of law, the City was deliberately indifferent in hiring Neal, and found against Neal on all tort claims. The subsequent damage award amounted to $2 million dollars. On appeal, the Eleventh Circuit agreed with the district court that Neal was acting under the color of law and that 13 was the on-going, accepted practice at the City and that the City Commissioner, Mayor, and other high ranking City officials knew of, ignored, and tolerated 13. But because the record did not establish that the jury below found the City had a custom or policy of allowing rape or that the rape incident was part of the custom or pattern of 13, the court found that the suit lacked all essential aspects of a § 1983 case against the City. As such, the verdict and judgment against the City for rape under § 1983 was vacated. All other charges against the City were affirmed. The $1.5 million dollar verdict against the City was reversed. The City was still found liable for 13 due to the hostile work environment it fostered, as well as deliberate indifference in the hiring of Neal.
Doe v. University of Illinois United States Court of Appeals for the Seventh Circuit (2000)
Jane Doe attended University High School in Urbana, Illinois. Although University High was a public school, it was affiliated with the University of Illinois, which had the responsibility for overseeing the school’s administration. From January 1993 through May 1994, while a student at University High, Jane was a victim of an ongoing campaign of verbal and physical 13 perpetrated by a group of male students at the school. Doe and her parents complained on numerous occasions to officials of both the high school and the University of Illinois. The school officials suspended a few of the students and transferred one out of Doe’s biology class, but did nothing else to prevent further instances. Some administrators even suggested that it was Doe’s fault. In 1995, Doe and her parents filed suit against the University of Illinois and other individual officials of University High and the University of Illinois, alleging a violation of, among other things, Title IX. The United States District Court for the Central District of Illinois dismissed Doe’s Title IX claim. On appeal, the Seventh Circuit remanded the case, holding that Jane Doe alleged a valid claim under Title IX, and that a Title IX recipient may be held liable for its failure to take prompt, appropriate action in response to student-on-student 13, as was the case here. The court reasoned that Title IX prohibits discriminatory government conduct on the basis of sex when it occurs in the context of State-run, federally funded educational programs and institutions. In particular, Title IX provides that no person in the U.S. shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. Prior to this case, it was well settled that 13 of a student in a federally funded educational program or activity, if it is perpetrated by a teacher or other employee of the funding recipient, can render the recipient liable for damages under Title IX. What was less clear was whether a school can be liable for failing to take prompt, appropriate action to remedy known 13 of one student by other students. Although inconsistent with three other circuits, the court ultimately held that a Title IX fund recipient may be held liable for its failure to take prompt, appropriate action in response to student-on-student 13 that takes place while students are involved in school activities or otherwise under the supervision of school employees, provided the recipient’s responsible officials actually knew that the harassment was taking place. The failure to promptly take appropriate steps in response to known 13 is itself intentional discrimination on the basis of sex. Since Jane Doe alleged such a failure, she properly alleged the sort of intentional discrimination against which Title IX protects. Doe’s case was then remanded to the district court for further proceedings consistent with the court’s opinion.
B. v. Director of Public Prosecutions House of Lords (2000)
The appellant, a 15 year old, was charged with inciting a girl under 14 years old to commit an act of gross indecency for asking a 13 year old girl to perform oral sex with him several times; the girl repeatedly refused. The defense argued that the appellant honestly believed the girl was over 14 years old. The prosecution submitted the offense was one of strict liability. The Lords held that a reasonable belief, even if mistaken, as to the victim's age was a defense to the charge
R. v. K House of Lords (2001)
The appellant, K, was convicted of a single count of indecent assault against a girl aged 14; his defense was that the intercourse between the two was consensual and that she had told him she was 16. The House of Lords allowed the appeal on the grounds that the appellant's honest belief that the complainant was over the age of 16 was a defense to the charge of indecent assault.
R. v. Malone Court of Appeal (Criminal Division) (1998)
The appellant appealed his conviction on the count of rape for allegedly having sexual intercourse with the complainant without her consent when she was too drunk to put up any physical resistance. The Court upheld the conviction and the sentence on the grounds that the complainant's evidence was sufficient for a jury to find that the appellant was reckless as to the question of the complainant's consent, even if he did not know at the time that she was not consenting.
Hilda Ana Merlo Vásquez c/ Hernán Ramos Méndez Sala Penal (2000)
Alleged victim claimed that defendant pushed her down the stairs and raped her while she was unconscious. The trial court ruled in favor of the defendant, finding there was insufficient evidence to convict him of committing grave bodily injury, harassment and rape. The Appellate Court affirmed acquittals for grave bodily injury and harassment, but reversed the acquittal for rape, finding that there was sufficient medical evidence for a conviction. Medical testimony indicated that the victim had recently engaged in sexual relations, but that after the victim had fallen down the stairs, she would have been in so much pain that consensual sexual relations would have been highly unlikely. The Supreme Court affirmed the appellate court's ruling.
La presunta víctima afirmó que el acusado la empujó escaleras abajo y la violó mientras estaba inconsciente. El tribunal de primera instancia decidió a favor del acusado, al considerar que no había pruebas suficientes para condenarlo por loa legados crímenes de cometer lesiones corporales graves, acoso y violación. El Tribunal de Apelaciones confirmó las absoluciones por lesiones corporales graves y acoso, pero revocó la absolución por violación y encontró que había pruebas médicas suficientes para una condena. El testimonio médico indicó que la víctima había tenido relaciones sexuales recientemente, pero que después de que la víctima se hubiera caído por las escaleras, habría sentido tanto dolor que las relaciones sexuales consensuales hubieran sido muy poco probables. La Corte Suprema ratificó la decisión de la corte de apelaciones.
Legislation
Ley 1160 de noviembre 26, 1997 (modifica el Código Penal) (1997)
This law amends Paraguay’s Criminal Code and establishes (among other things) penalties for (i) sexual harassment, article 133; (ii) domestic violence, article 229; (iii) sexual coercion, including sexual abuse without intercourse, article 128; (iv) human trafficking, article 129; (v) sexual abuse of defenseless victims, article 130; and (vi) sexual abuse of persons held in custody, children under 14, and/or persons under guardianship –articles 130, 131, 135, 136, 137 and 230.
Esta ley modifica el Código Penal de Paraguay y establece, entre otras, penas por (i) acoso sexual, artículo 133; (ii) violencia intrafamiliar, artículo 229; (iii) coacción sexual, incluido el abuso sexual sin penetración, artículo 128; (iv) trata de personas, artículo 129; (v) abuso sexual de víctimas indefensas, artículo 130; y (vi) abuso sexual de personas privadas de libertad, menores de 14 años y/o personas bajo tutela –artículos 130, 131, 135, 136, 137 y 230.
Under the Criminal Code, rape is defined quite narrowly as “sexual intercourse against a person’s will with the use or threat of physical violence present or deprivation of possibility of resistance.” There is also no mention of rape in marriage. To hold a person liable for rape, which is punished by imprisonment for up to seven years, the victim or their representative must file a complaint. However, in the case of rape (i) by a group of accomplices or (ii) of a minor or a young child, the term of imprisonment can be longer, and complaint filing is not needed. Further, sexual assault is punished by arrest or imprisonment of up to seven years, sexual abuse is punished by arrest or imprisonment of up to three years, and sexual harassment is punished by a fine, restriction of liberty, or arrest. However, Lithuania is one of the few European Union states to have not yet criminalized stalking. Trafficking in Human Beings is punished by imprisonment from two to ten years. Infanticide is punished by arrest or imprisonment for up to five years. In the case of illegal abortion, as defined in Decree No. 50 of the Minister of Health “On the Termination of Pregnancy Operation Procedure,” the doctor and assisting persons are liable. Finally, the Code recognizes acts committed to express hatred towards persons due to their, amongst other characteristics, gender and sexual orientation, to be an aggravating circumstance. English translation available here.
Pagal baudžiamąjį kodeksą išžaginimas gana siaurai apibrėžiamas kaip lytiniai santykiai prieš asmens valią „panaudojant fizinį smurtą ar grasinant tuoj pat jį panaudoti, ar kitaip atimant galimybę priešintis, ar pasinaudojant bejėgiška nukentėjusio asmens būkle”. Apie išprievartavimą santuokoje neužsimenama. Laikyti asmenį atsakingu už išžaginimą, kuris baudžiamas laisvės atėmimu iki septynerių metų, auka ar jų atstovas turi pateikti skundą. Tačiau tuo atveju, kai išžaginama (i) bendrininkų grupės arba (ii) nepilnametį vaiką, laisvės atėmimo bausmė gali būti ilgesnė ir skundo padavimo nereikia. Už seksualinę prievartą baudžiama areštu arba laisvės atėmimu iki septynerių metų, už seksualinį smurtą baudžiama areštu arba laisvės atėmimu iki trejų metų, o už seksualinį priekabiavimą baudžiama bauda, laisvės apribojimu arba areštu. Lietuva yra viena iš nedaugelio Europos Sąjungos valstybių, kuri dar nėra kriminalizavusi persekiojimo. Už prekybą žmonėmis baudžiama laisvės atėmimu nuo dvejų iki dešimties metų. Už nužudymą baudžiama areštu arba laisvės atėmimu iki penkerių metų. Neteisėto aborto atveju, kaip apibrėžta sveikatos apsaugos ministro įsakyme Nr. 50 „Dėl nėštumo operacijos procedūros nutraukimo“, atsako gydytojas ir pagalbą teikiantys asmenys. Galiausiai kodekse pripažįstama, kad veiksmai, kuriais siekiama išreikšti neapykantą asmenims dėl jų, įskaitant kitų savybių, lyties ir seksualinės orientacijos, yra sunkinanti aplinkybė.
The law distinguishes the crimes of “sexual aggression” and “sexual aggression with penetration.” A person commits the crime of sexual aggression (article 182) if (i) he or she practices a sexual act by means of coercion, violence, or threat against someone, including a spouse, or (ii) he or she enables another person to commit such act against a third person and the sentence ranges from six months to four years of imprisonment. However, article 183 states that if the coerced sexual act involves penetration, the crime committed is “sexual aggression with penetration,” which entails a higher sentence of up to 10 years in prison. Penetration is defined as “copulation, anal or oral, oral intercourse and vaginal or anal penetration with any part of the body or objects used in circumstances of sexual involvement (article 181(c)). Additional crimes (articles 184-187) involve sexual acts committed (i) against persons with diminished capacity or those unable to consent; (ii) by taking advantage of a position or function in certain sectors or by a person in a position of authority; and (iii) by means of another person’s error. Both “ii” and “iii” carry sentences of up to three years in prison or a fine while (i) carries a sentence of up to 12 years in prison if penetration occurs. Finally, article 188 prohibits artificial procreation without the woman’s consent.
A lei distingue os crimes de “agressão sexual” e “agressão sexual com penetração”. A pessoa realiza o crime de agressão sexual (artigo 182) se (i) ele ou ela pratica ato sexual por meio de coerção, violência, ou ameaça contra alguém, incluindo um cônjuge, ou (ii) ele ou ela permite que outra pessoa realize tal ato contra uma terceira pessoa e a sentença varia entre seis meses e quatro anos de prisão. Entretanto, o artigo 183 estabelece que se o ato sexual coagido envolve penetração, o crime cometido é “agressão sexual com penetração”, que implica uma sentença de até 10 anos na prisão. Penetração é definido como “copulação, anal ou oral, relação oral e penetração anal ou vaginal com qualquer outra parte do corpo ou objetos usados em circunstâncias de envolvimento sexual (artigo 181(c)). Crimes adicionais (artigos 184-187) envolvem atos sexuais cometidos (i) contra pessoas com capacidade diminuída ou aqueles impossibilitados de consentir; (ii) ao tirar vantagem de posição ou função em certos setores ou por uma pessoa em posição de autoridade; e (iii) por meio do erro de outra pessoa. Ambos “ii” e “iii” carregam sentenças de até três anos na prisão ou multa enquanto (i) carrega sentença de até 12 anos de prisão se houver penetração. Finalmente, o artigo 188 proíbe procriação artificial sem o consentimento da mulher.
Memoranda
Closed-circuit Television in Cases Involving Child Testimony (2014)
This memorandum discusses the use of closed-circuit television (CCTV) in courtrooms for cases where there will be child testimony. The United Nations Office on Drugs and Crimes recommends that children be allowed to give testimony through CCTV or another mechanism in order to prevent the child witness from being traumatized. Unfortunately, given the funding requirements, few countries have the facilities to use CCTV. Yet, a number of countries have statutes allowing for alternative mechanisms to prevent child victims from seeing the defendant while giving testimony. Some laws providing for the use of CCTV have been challenged, but courts have upheld the laws in nearly every situation.
Assessing the Impact of Mandatory Minimum Sentences on Sexual Offences in Tanzania (2013)
With the goal of assessing the impact of mandatory minimum sentences for sexual offences in Tanzania, this memorandum provides a comparative study with a small sample of jurisdictions – including Canada, Kenya, Lesotho, Zambia, South Africa and Tanzania - to showcase how different countries have utilized mandatory minimum sentences to address sexual offences. It also explores whether imposing mandatory minimums has resulted in a reduction of the commission of the sexual offences they target.
Domestication of the U.N. Convention on the Rights of the Child and the role of national courts (2013)
This memorandum describes several success stories from countries that have domesticated the Convention on the Rights of the Child into their national laws and also examines the role of the courts. In particular, this memorandum focuses on how Lithuania, Bangladesh and South Africa have implemented their laws and/or the role that the courts have played in preventing child abuse and exploitation.
Reports
Sexual Violence by Educators in South African Schools: Gaps in Accountability (2014)
The Centre for Applied Legal Studies at the University of Witwatersrand and Avon Global Center for Women and Justice at Cornell Law School released a joint report on sexual violence committed by educators against students in South African schools.
Die Sentrum vir Toegepaste Regstudies by die Universiteit van Witwatersrand en Avon Global Centre for Women and Justice by Cornell Law School het 'n gesamentlike verslag vrygestel oor seksuele geweld wat opvoeders teen studente in Suid-Afrikaanse skole gepleeg het.
Avon Global Center 2010 Women and Justice Conference Report (2011)
In 2010, the Avon Global Center for Women and Justice held a conference in Washington, DC to discuss advances and obstacles to securing justice for women and girls in conflict and post-conflict areas.
Avon Global Center 2012 Women and Justice Conference Report (2013)
Avon Global Center 2011 Women and Justice Conference Report (2012)
In 2011, the Avon Global Center for Women and Justice hosted a conference in New Delhi, India on the theme “Gender-Based Violence and Justice in South Asia.”
Report by Rashida Manjoo, Special Rapporteur on violence against women, its causes and consequences, on her mission to the United States of America (2011).
International Case Law
X and Relatives v. Colombia Inter-American Commission on Human Rights (2008)
Rape by military members. Case was brought before the Commission against Colombia for failing to prosecute members of the Colombian military for sexually assaulting the victim. The Complaint sought to have Colombia assume international responsibility for violating articles 1(1), 5, 7, 8, 10, 11 and 22 of the American Convention on Human Rights, as well as Articles I, V, VII, XI, XVIII and XXVI of the American Declaration of the Rights and Duties of Man. Colombia and the petitioners were able to reach a friendly settlement under which the victim was awarded moral and material damages. Under the friendly settlement, Colombia also agreed to pay for the victim's education, provide her with medical and psychological services, and other necessary services to fully compensate the victim and her family. Colombia also agreed to reopen the criminal investigation and to work with the victim to fully investigate and prosecute her case.
Violación por militares. El caso fue presentado ante la Comisión contra Colombia por no procesar a miembros del ejército colombiano por agredir sexualmente a la víctima. La Demanda buscaba que Colombia asumiera la responsabilidad internacional por la violación de los Artículos 1 (1), 5, 7, 8, 10, 11 y 22 de la Convención Americana sobre Derechos Humanos, así como los Artículos I, V, VII, XI, XVIII y XXVI de la Declaración Americana de Derechos y Deberes del Hombre. Colombia y los peticionarios lograron llegar a un acuerdo en virtud de la cual se otorgó a la víctima daños morales y materiales. En virtud del acuerdo, Colombia también acordó pagar la educación de la víctima, brindarle servicios médicos y psicológicos, más otros servicios necesarios para compensar plenamente a la víctima y su familia. Colombia también acordó reabrir la investigación penal y trabajar con la víctima para investigar y procesar su caso más a fondo.
Articles
The Sexual Assault Counselor-Victim Privilege: Jurisdictional Delay into an Unclaimed Sanctuary (2009)