Women and Justice: Keywords

Domestic Case Law

Onesphory Materu v. The Republic Court of Appeal of Tanzania at Tanga (2009)

Sexual violence and rape

Salma Yusuf, a fourteen year old girl, alleged that the appellant police officer, Onesphory Materu, had raped her inside a police cell with a promise to release her (made in writing) after the fact. The trial court found the police officer guilty of rape and convicted him to a sentence of thirty years imprisonment, twenty four strokes of the cane and an order that he pays Shs.700,000 compensation to the complainant. The police officer had appealed for the second time and the court had to consider two grounds: (1) whether the victim was in fact telling the truth; and (2) that the court erred in relying on the “release note” as evidence of the crime. On the first matter, the court noted that inclusion of Section 127 (7) of the Evidence Act as amended by the Sexual Offences Special provisions Act, Number 4 of 1998 means that the only burden imposed on the court is “to give reasons that it is satisfied that a child of tender years or the victim of the offence is telling nothing but the truth”. There is no longer a requirement for the court to warn itself of the dangers of basing a conviction on the uncorroborated evidence of a child where a sexual offence is involved. On the second matter, the court noted that the appellant did not object to the entry into evidence of the note, so there can be no merit in objecting to it now. The conviction and sentencing was upheld.


Liu v. Zhu Court of Huilai County, Guangdong Province (2013)

Divorce and dissolution of marriage, Sexual violence and rape, Sexual harassment

The plaintiff Liu alleged that she had a illegitimate son with a Yang when she was working in Sichuan province. Soon after that, she was having another child with a Chen. Since Chen was not going to perform his duty as a father, Liu decided to give birth to the child and raise it herself. Several months later, Liu’s first son, Yang was introduced by a matchmaker to the respondent as an adopted son. Out of the strait situation Liu faces, she agreed. Several days later, the respondent Zhu proposed since the son is too naughty and needs his mother to look after him, it is better that Liu came along. Liu came and Zhu’s little brother asked Liu to marry Zhu, and they will pay her 100,000 as gift, but Liu need to take care of Zhu. Liu agreed. After the wedding, Liu found out the respondent was disabled and sit on a wheelchair, having no sexual capability. However, the respondent kept sexually harassing the plaintiff. Plaintiff argued that she was cheated to get married, and Zhu lacks sexual ability, therefore she sued for divorce. The court finds that although the marriage is facilitated by a matchmaker, the two have lived together for many years and have developed some feelings for each other. Plaintiff’s arguments are not supported by any evidence, thus are not considered by the court.


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.


N.C. v. P.R. Caldwell Alabama Supreme Court (2011)

Sexual violence and rape, Sexual harassment

N.C., a minor, filed a personal injury action against her physical education teacher, her school principal, and the Tallapoosa County Board of Education. N.C. alleged that, following her 7th grade physical education class, she was pulled into the boys’ locker room and raped by A.H, a 12th grade student who her teacher, Mr. Caldwell, had allegedly appointed as a teacher’s aide. N.C.’s complaint alleged that Mr. Caldwell had actual knowledge that A.H. was sexually harassing students and negligently or wantonly supervised N.C. and the other students in her class. Mr. Caldwell, the principal, and the Board filed motions for summary judgment, arguing that N.C.’s claims were barred by the doctrine of State-agent immunity. N.C. opposed entry of summary judgment only against Mr. Caldwell. The trial court found that the doctrine of immunity is strong and the Supreme Court “has been particularly reluctant to hold an educator responsible for sexual misconduct by another.” On that ground, the trial court granted summary judgment in favor of Mr. Caldwell on the basis of Stage-agent immunity. On appeal, the court considered an exception to the law of State-agent immunity, which provides that “a State agent shall not be immune from civil liability in his or her personal capacity . . . when the State acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.” N.C. argued that there was a genuine issue of material fact as to whether Mr. Caldwell acted beyond his authority: (1) when he allegedly failed to properly supervise A.H.; (2) when he allegedly allowed A.H. to act as a teacher’s aide; and (3) when he ignored and failed to report previous claims by other female students. The appellate court held that there was a genuine issue of material fact as to whether Mr. Caldwell actually appointed A.H. as a student aide, and, if he did, whether he acted beyond his authority in doing so. The court also found that there was a genuine issue of material fact as to whether Mr. Caldwell was actually aware that A.H. was sexually harassing other female students and, if he was, whether he failed to respond to the allegations. Thus, the appellate court concluded that the trial court erred in entering summary judgment for Mr. Caldwell.


Commonwealth v. Eckrote Superior Court of Pennsylvania (2010)

Sexual violence and rape, Domestic and intimate partner violence

C.B. was arriving home from work when Joseph Eckrote leapt from his hiding place under the porch and “charged” at her.  He demanded that C.B. get in the car and forced her to do so after she refused.  Despite her yelling and struggling to get free, Eckrote was able to drive off with C.B. to a wooded area where he raped her after repeatedly telling her he was going to kill himself.  Eckroke appealed his convictions for assault, kidnapping, and rape.  The court upheld the convictions after finding sufficient evidence to support all three.  As for assault, Eckrote hid himself and attacked C.B. when she arrived home; he forcibly stuffed her into the car which resulted in bruising.  He had in the past threatened to kill C.B. after hitting her in the face.  His conduct created in C.B. fear of imminent seriously bodily injury, which, in fact, occurred.  As for the rape, the evidence supported the finding that Eckrote used psychological and physical force to compel C.B. to engage in intercourse with him.  Lastly, the evidence established kidnapping because Eckrote possessed the requisite intent to facilitate a felony—rape—when he forced C.B. into the car and transported her to the wooded area.


Reports

Avon Global Center 2012 Women and Justice Conference Report (2013)

Statutory rape or defilement, Sexual violence and rape, Gender-based violence in general

In December 2012, the Avon Global Center for Women and Justice hosted its annual conference. The topic for 2012 was addressing sexual violence against girls in Southern Africa.


Rape and sexual violence: Human rights law and standards in the International Criminal Court (2011)

Sexual violence and rape

Report by Amnesty International on identifying how the crimes of rape and sexual violence must, as a requirement of its own statute and a matter of international human rights law, be interpreted and applied with equality between men and women by the International Criminal Court (March, 2011).


Report on the Adoption of UNSCR 1960 (2010) (2010)

Sexual violence and rape, Gender violence in conflict

UN Security Council Report on the adoption of UN Security Council Resolution 1960 (2010) requesting detailed information on suspected perpetrators of sexual violence during armed conflict.


Special Rapporteur on Violence Against Women Thematic Report (2010)

Gender-based violence in general

Special Rapporteur on Violence Against Women, Its Causes and Consequences submitted a thematic report on reparations to women subjected to violence in conflict and post-conflict. April 19, 2010.


The Dynamics of Social Change: Towards the Abandonment of Female Genital Mutilation/Cutting in Five African Countries (2010)

Female genital mutilation or female genital cutting, Harmful traditional practices

Report by UNICEF's Innocenti Research Centre highlighting solutions and examples of communities ending the practice of female genital mutilation. The report examines what conditions are necessary for a consensus to abandon FGM/C and identifies strategies for sustainable abandonment (2010).


Trafficking for sexual exploitation: Victim protection in international and domestic asylum law (2011)

Sexual violence and rape, Trafficking in persons

Research Paper No. 206 by Tyler Marie Christensen for the United Nations High Commissioner for Refugees (April, 2011).


2010 Trafficking in Persons Report (2010)

Sexual violence and rape, Trafficking in persons

The U.S. State Department's 10th annual Trafficking in Persons Report covers the status of efforts against human trafficking in countries around the world, including the United States, and highlights key trends in human trafficking.


Addressing Conflict-Related Sexual Violence – An Analytical Inventory of Peacekeeping Practice (2010)

Gender violence in conflict

Report by UNIFEM, United Nations Department of Peacekeeping Operations, UN Action against Sexual Violence in Conflict, on best practices and emerging elements for a more effective response by peacekeepers to women's security concerns in conflict situations (2010).


Charts

Analysis of Jurisprudence Involving Sexual and other Gender-Based Violence During Conflict (2010)

Gender-based violence in general

This chart summarizes and analyzes gender-based violence cases before international war crimes tribunals and special courts.


International Case Law

Democratic Republic of Congo v. Republics of Burundi, Rwanda, and Uganda African Commission on Human and Peoples' Rights (2003)

Sexual violence and rape, Gender violence in conflict

The armed forces of Burundi, Rwanda, and Uganda engaged in systematic violence against the people of the Democratic Republic of Congo (the DRC). As part of that violence, approximately 2,000 HIV-positive Rwandan and Ugandan soldiers raped Congolese women and young girls in order to spread AIDS to the Congolese population. The DRC brought the complaint asserting, among other things, that the mass rape and deliberate infection of women and girls with HIV constituted a violation of human rights under the African Charter. The respondents did not deny the occurrence of mass rape and infection, but responded that "there is never group responsibility for violations" like rape. The Commission noted that the mass rape of women and girls as a tool of systematic violence violated article 76 of the first Protocol Additional to the Geneva Conventions of 1949, which provides that "[w]omen shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other forms of indecent assault" and also "offend[ed] the African Charter and the Convention on the Elimination of All Forms of Discrimination Against Women." It therefore held that this offense violated articles 60 and 61 of the African Charter, which enable the African Commission to draw inspiration from international law on human and peoples' rights and take into consideration general principles of law, such as the humanitarian law principles contained in the Geneva Conventions. The Commission urged the respondent states to abide by their obligations under the African Charter and other applicable international and regional law and immediately withdraw their armed forces from the DRC. The Commission also requested that adequate reparations be paid to the DRC for and on behalf of the victims of the human rights violations.


Articles

2010 Symposium Gender-Based Violence and Justice in Conflict and Post-Conflict Areas (2011)

Sexual violence and rape, Gender violence in conflict

Cornell International Law Journal Special Conference Issue. 44 CORNELL INT'L L.J. 1 (2011).


Gender-Based Violence and Justice in Conflict and Post-Conflict Areas (2011)

Sexual violence and rape, Gender violence in conflict

By Rashida Manjoo and Calleigh McRaith. 44 CORNELL INT'L L.J. 1 (2011). Copyright 2011 by the Cornell International Law Journal.


The Sexual Assault Counselor-Victim Privilege: Jurisdictional Delay into an Unclaimed Sanctuary (2009)

Sexual violence and rape

Hon. Armand Arabian, 37 PEPP. L. REV. 89 (2009). Reprinted from Pepperdine Law Review, Volume 37, Special Issue. Copyright 2010 by the Pepperdine University School of Law.