Here, the Court held that government officials violated the constitutional rights of the plaintiff by illegally raiding plaintiff’s home without a search warrant, seizing plaintiff’s documents related to her work as an advocate for the human rights of LGBTQ persons, and illegally arresting a guest present at plaintiff’s home during the raid. Later, at the police station, plaintiff’s guest was forcibly undressed and fondled to “determine” her sex. The Court held that plaintiff and plaintiff’s guest were treated in an inhuman and degrading manner amounting to sexual harassment and indecent assault.
Women and Justice: Keywords
The Court held that it was not empowered to impose measures that guaranteed the physical and psychological integrity of domestic violence victims when other tribunals and bodies established for that purpose were competent. However, plaintiffs have the right to make the requests from the competent courts to take necessary measures in order to enforce its orders, using persuasive or coercive means.
La Corte sostuvo que no estaba facultada para imponer medidas que garantizaran la integridad física y psicológica de las víctimas de violencia doméstica donde otros tribunales y organismos establecidos con ese fin eran competentes. Sin embargo, los demandantes tienen el derecho de hacer las solicitudes de los tribunales competentes para tomar las medidas necesarias para hacer cumplir sus órdenes, utilizando medios persuasivos o coercitivos.
The Constitutional Tribunal held that the conduct of the municipal authorities forcing a victim of gender violence to reconcile with her aggressor under the threat of taking her children to a shelter violates the right of women to live free from violence. The Tribunal held that this conduct constituted undue harassment.
El Tribunal Constitucional sostuvo que la conducta de las autoridades municipales, obligando a una víctima de violencia de género a reconciliarse con su agresor bajo la amenaza de llevar a sus hijos a un refugio es contra el derecho de las mujeres a vivir libres de violencia. El Tribunal sostuvo que esta conducta constituía indebida acoso.
The appellant was shot by her husband, who subsequently committed suicide. Her husband was employed by the South African Police Service, so she sued the Minister of Safety and Security for general damages, medical expenses, loss of earnings, and loss of support arising from her injuries and the deceased’s suicide. She also sued for loss of support on behalf of her infant triplets with the deceased. The appellant alleged that the shooting and suicide were caused by, inter alia, the negligence of the station commander and/or certain police officials. The appellant claimed that these police officers failed to (a) dispossess the deceased of the firearm, (b) initiate disciplinary steps against him, and (c) have him criminally charged despite her previous requests and their knowledge that the deceased abused alcohol, had a violent temper and suicidal tendencies, had assaulted her, pointed a firearm at her and threatened to shoot her and thereafter kill himself, which led her to obtain a protection order against him under the Domestic Violence Act 1998. The Supreme Court of Appeal found that: (a) the police had a legal duty to investigate the appellant’s complaints once she reported that she feared for her safety; (b) the police negligently breached that duty by failing to take measures to protect the appellant from being injured by the deceased (and prevent the deceased from killing himself); and (c) the appellant had established wrongfulness on the part of the police due to the causal connection established between the police’s negligent breach of duty and the harm suffered by the appellant. The court therefore upheld the appeal.
Die appèllant is deur haar man geskiet waarna hy selfmoord gepleeg het. Haar man het vir die Suid-Afrikaanse Polisiediens gewerk daarvolgens het sy die Minister van Veiligheid en Sekuriteit gedagvaar vir algemene skadevergoeding, mediese uitgawes, verlies van verdienste, en die verlies van ondersteuning wat voortspruit uit haar beserings en die oorledene se selfmoord. Die appèllant beweer dat die skietery en selfmoord veroorsaak is deur, onder andere, die nalatigheid van die stasiebevelvoerder en/of sekere polisiebeamptes. Die appèllant beweer dat diè polisiebeamptes versuim het om (a) die oorledene se vuurwapen te verwyder, (b) dissiplinêre stappe teen hom te inisieer, en (c) om hom strafregtelik aan te kla ten spyte van haar vorige versoeke en hul kennis dat die oorledene alkohol misbruik het, 'n gewelddadige humeur het en selfmoordneigings gehad het, haar aangerand het, 'n vuurwapen op haar gerig het, en haar gedreig het dat hy haar gaan skiet en daarna selfmoord pleeg, wat daartoe gelei het om 'n beskermingsbevel teen hom onder die Wet op Huishoudelike Geweld van 1998 te verkry. Die Appèlhof het bevind dat: (a) die polisie 'n wettige plig gehad het om die appèllant se klagtes te ondersoek nadat sy berig het dat sy vir haar veiligheid gevrees het; (b) die polisie was nalatig was deur hul plig ter versuiming om maatreëls te tref om die appèllant te beskerm teen die oorledene (en om te verhoed dat die oorledene selfmoord pleeg); en (c) die appèllant het die onregmatigheid aan die kant van die polisie bewys as gevolg van die verband tussen die polisie se nalatige pligssversuim en die skade wat die appèllant gely het. Die hof het die appèl dus goedgekeur.
The plaintiff attempted to bring a charge of assault against her former husband under the Domestic Violence Act of 1998 (“the DVA”). She was incorrectly advised by a police officer that she required a protection order from the Magistrate Court before she could receive police assistance. She was then told by a second officer that her former husband would bring a similar charge of assault against her if she persisted. The plaintiff, along with her former husband, was arrested. She filed a claim for damages against, inter alia, the Minister of Police, arguing that (i) the officials involved were acting in the course and within the scope of their employment and (ii) the Minister of Police was vicariously liable for failing to comply with the DVA. The court agreed that the DVA requires the police to assist and provide the maximum protection possible to victims of domestic abuse.
Die eiseres het probeer om 'n klag van aanranding teen haar voormalige man onder die Wet op Huishoudelike Geweld van 1998 ("Die DVA") te bring. 'n Polisiebeampte het haar verkeerdelik aanbeveel dat sy 'n beskermingsbevel van die Landdroshof moes kry voordat sy polisiehulp kon ontvang. 'n Tweede polisiebeampte het vir haar gesê dat haar voormalige man 'n soortgelyke klag van aanranding teen haar sou bring as sy aanhou met haar klagte. Die eiseres, asook haar voormalige man, was gearresteer. Sy het 'n eis vir skadevergoeding teen, onder andere, die Minister van Polisie ingedien en het aangvoer dat (i) die betrokke beamptes volgens en binne die bestek van hul werk opgetree het en (ii) die Minister van Polisie onmiddellik aanspreeklik was vir die versuiming om die DVA te volg. Die hof het saamgestem dat die DVA vereis dat die polisie hulp en die maksimum moontlike beskerming vir slagoffers van huishoudelike mishandeling moet gee.
Yang sued China PLA Hospital No. 458 for violation of his reproductive rights. The plaintiff alleged that his wife sought an abortion at the defendant-hospital and lied that she was unmarried. The plaintiff also alleged that the defendant did not meet its obligation to investigate Peng’s marital status and chose to believe Peng’s lie. The Court held that under Article 51 of the Law on Protection of Women’s Rights and Interests, “women have the right to reproduce and not to reproduce under the relevant state regulations.” Therefore, Peng’s right to voluntarily terminate pregnancy is protected by law. Moreover, according to the Supreme People’s Court’s authoritative interpretations of the Marriage Law, “courts should not support husbands’ damage claims based on infringement of their reproductive rights due to their wives’ termination of pregnancy.” Therefore, the defendant’s actions were not unlawful.
A month after the rape, the appellant’s pregnancy was formally confirmed, she then informed the investigating police officer of her pregnancy who referred her to a public prosecutor. She was told by the prosecutor that she had to wait until the rape trial had been completed to have her pregnancy terminated. At the direction of the police, she returned to the prosecutor’s office four months later and was advised that she required a pregnancy termination order. The prosecutor requested that a magistrate certify the termination. The magistrate said he could not assist because the rape trial had not been completed. She eventually obtained the necessary magisterial certificate nearly six months after the rape, the hospital felt that it was no longer safe to carry out the termination procedure. The appellant carried to full term and gave birth to a child. The applicant brought an action against the Ministers of Home Affairs, Health and Justice for damages for the physical and mental pain, anguish and stress she suffered and care for the child until the child turned 18. The basis of the claim was that the employees of the three Ministries concerned were negligent in their failure to prevent the pregnancy or to expedite its termination. The particulars of negligence were itemized. Her claim was dismissed. The questions for determination on appeal were (i) whether or not the respondents’ employees were negligent in responding to the appellant, (ii) if they were, whether the appellant suffered any actionable harm as a result of such negligence and, (iii) if so, whether the respondents were liable for damages for pain, suffering, and the care of her child. The Supreme Court held, on appeal, that the State was liable for failing to provide the appellant with emergency contraception to prevent the pregnancy and ordered it to pay damages. However, the court dismissed the claim that the State was liable for failing to ensure a timely termination of the pregnancy and in turn that they were liable to pay for the care of the child. The case was referred back to the High Court for a determination of the amount of damages.
The plaintiff, a female police officer sued a police department, alleging hostile work environment, sexual harassment, and retaliation claims under Title VII. The plaintiff alleged that she suffered years of abuse because she was a woman, including derogatory remarks, disproportionately burdensome assignments, sabotage of her work, threats, and false accusations of misconduct. The United States District Court for the Southern District of New York granted the defendants’ motion for judgment as a matter of law. The Second Circuit reviewed all the evidence in the light most favorable to the officer and found that a reasonable jury could have arrived at a different conclusion than the district court. The Second Circuit determined that the evidence presented by the officer formed a sufficient basis for a reasonable jury to conclude that she was subjected to hostile work environment because she was a woman and that she was suspended, put on probation, and then terminated in retaliation for having complained about her treatment. The Second Circuit vacated the judgment and remanded the claims for retrial.
The plaintiff, the manager of the Tennessee Department of Correction’s Murfreesboro probation office, was fired after an anonymous letter was sent to the department alleging that the office was rife with sexual harassment, creating a hostile work environment. An administrative law judge reviewed the plaintiff’s termination and found it to be warranted. The plaintiff appealed the administrative law judge’s decision to the Davidson County Chancery Court, which affirmed the order. The Court of Appeals of Tennessee affirmed the Chancery Court’s decision, holding in part that the conduct for which he was fired was not protected speech under the First Amendment.
The plaintiff was a police officer with the Chattanooga Police Department. After repeated sexual harassment by a fellow officer, she filed a sexual harassment complaint against the officer, and he was transferred to a different team. However, he still worked in close physical proximity to the plaintiff and his presence intimidated her. She filed suit in the Hamilton County Chancery Court, alleging hostile work environment and sexual harassment in violation of the Tennessee Human Rights Act (“THRA”). The Court granted a directed verdict in favor of the police department, but the Court of Appeals of Tennessee vacated the verdict, finding that reasonable minds could differ on whether the employer established the affirmative defense that it took appropriate corrective action.
The plaintiff was a police officer with the Humboldt Police Department. While off duty, she ran into an ex-boyfriend against whom she had a protective order. Based on this encounter, she filed a criminal charge against him for violating the order. The chief of police commenced an internal affairs investigation into her charges, and her ex-boyfriend filed a criminal charge against her for filing a false charge. While both charges were pending, the plaintiff informed the chief of police that she was pregnant. Once the internal affairs investigation was completed, the plaintiff’s employment was terminated. She filed suit in the Gibson County Circuit Court for discrimination based on gender and pregnancy in violation of the Tennessee Human Rights Act (“THRA”). The Circuit Court granted summary judgment in favor of her employer, but the Court of Appeals of Tennessee reversed and remanded, finding that the plaintiff had sufficiently alleged that she was treated differently than similarly situated male police officers.
The plaintiff alleged that she was raped several times by a police officer who had been assigned to help her deal with her son’s behavioral issues. The plaintiff reported the rapes to municipal mental health and domestic abuse entities, and she alleged that these entities violated their statutory duty to report these incidents or take further action. Consequently, the plaintiff sued the Alexandria Police Department for intentional tort and negligent hiring. The issue before the Court was whether the sovereign immunity doctrine barred the plaintiff from suing municipal entities for both intentional torts and negligence in failing to act upon plaintiff’s reports and in hiring and retaining the offending officer. The Virginia Supreme Court affirmed the lower court’s dismissal of the action as barred by sovereign immunity, explaining that a municipality is immune from liability for negligence associated with the performance of “governmental” functions, which include maintaining a police force and the decision to retain a specific police officer. It declined to adopt an exception to sovereign immunity for the tort of negligent retention, as it had done in the context of charitable immunity. The Court observed that whether a municipality is liable for an employee’s intentional torts was an issue of first impression in Virginia, but the Court relied on Fourth Circuit precedent to conclude that sovereign immunity applies in this context. Finally, the Court held that the then-applicable statute requiring officials to make a report whenever they have “reason to suspect that an adult” has been “abused, neglected, or exploited” imposed a discretionary duty and not a ministerial duty upon the individuals subject to the reporting requirements and thus dismissed the claim. (i.e., ministerial duties make actions necessary when conditions for their performance arise while discretionary duties make actions optional, subject to the official’s judgment.)
The plaintiff daughters, R.H. and V.C., filed suit against the State government and certain police officials requesting damages for the loss of the lives of their mother, Mrs. S., and father, Mr. A. The day after her decision to flee her home together with her daughters and reside with other family members, Mrs. S. filed a civil proceeding against Mr. A. for domestic violence. Mr. A. was prohibited from approaching Mrs. S. and his daughters, and Mrs. S. obtained permission to remove her and her daughters’ personal belongings from their previous home while escorted by police officers. While accompanied by police officers and her sister to remove the belongings, Mr. A. killed Mrs. S. with a knife and subsequently committed suicide. In finding for the daughters in the case of Mrs. S., the appellate court identified the following factors in support of its finding: (1) the existence of a real and immediate risk that threatened the rights of Mrs. S. and her daughters that had the potential to materialize immediately and which was expressly referenced by the Office of Domestic Violence, (2) the risk related to a specific threat against a woman and was therefore particular, (3) the State knew of the risk or should have reasonably known of the risk and (4) the State could have reasonably prevented and avoided the materialization of the risk.
Las hijas de la demandante, RH y VC, presentaron una demanda contra el gobierno del estado y ciertos oficiales de policía que solicitaron daños por la pérdida de la vida de su madre, la Sra. S. y el padre, el Sr. A. El día después de su decisión de huir de la casa junto con sus hijas, la Sra. S. presentó un proceso civil contra el Sr. A. por violencia doméstica. Al Sr. A. se le prohibió acercarse a la Sra. S. y a sus hijas, y la Sra. S. obtuvo permiso para retirar a ella y las pertenencias personales de sus hijas de su hogar anterior mientras estaba escoltada por agentes de policía. Mientras estaba acompañada por oficiales de policía y su hermana para retirar las pertenencias, el Sr. A. mató a la Sra. S. con un cuchillo y posteriormente se suicidó. Al encontrar a las hijas en el caso de la Sra. S., la corte de apelaciones identificó los siguientes factores que respaldan su descubrimiento: (1) la existencia de un riesgo real e inmediato que amenazaba los derechos de la Sra. S. y sus hijas que tenía el potencial de materializarse de inmediato y que la Oficina de Violencia Doméstica hacía referencia expresamente, (2) el riesgo relacionado con una amenaza específica contra una mujer y, por lo tanto, era particular, (3) el Estado sabía del riesgo o debería haberlo hecho razonablemente conocido del riesgo y (4) el Estado podría haber prevenido y evitado razonablemente la materialización del riesgo.
In response to statements by the Turkish Prime Minister regarding abortion, the applicants demonstrated outside of the Ministry of Family & Social Policies of Turkey. The applicants asked for the Prime Minister and the Minister of Family & Social Policies to apologize for the statements. When police officers told the applicants that the Minister was not present in the Ministry building, the applicants tried, unsuccessfully, to enter the building using force. Following their failed attempt to enter the building, the Applicants headed to the Grand National Assembly of Turkey and blocked the road in front of it. At this point, the applicants were arrested by police. The applicants allege that during the arrests they were injured and sexually harassed. They were held in custody for seven hours. Medical reports indicate that when they were released, each of the activists had several bruises on their bodies. The Office of Public Prosecutor (the “OPP”) failed to investigate the activist’s allegations of abuse, did not take the testimony of the police officers regarding this incident, and decided to not prosecute this case. The applicants appealed the OPP’s decision claiming gender discrimination, but their appeal was dismissed by the lower court. The Constitutional Court ruled that the force exerted by the police officers while they arresting the applicants was proportionate because the applicants had used force against the police officers. Furthermore, the Constitutional Court concluded that the bruises mentioned in the medical report indicate that police officers only used force to capture the applicants. Because of this, the Constitutional Court found that bruises were not evidence of sexual harassment. This case is important because it demonstrates that the Constitutional Court relies on the medical reports to judge allegations of sexual harassment.
The applicant, Ms. Kaya, was arrested for alleged political offences. After she was released, she submitted a petition to the Office of Prosecutor General, asserting that she had been subjected to inhuman and degrading treatment while she was in custody. She also claimed that physicians at the state hospital ignored her complaints related to torture and inhuman treatment. After the incident, Ms. Kaya received asylum from Austria in 2002. Concurrently, the Office of Prosecutor General brought an action against the gendarmerie personnel and the physicians who ignored Ms. Kaya’s complaints to address her complaint regarding inhuman and degrading treatment. The trial at the Court of First Instance took about nine years. During that period, the claim against physician was dropped due to the lapse of time. Ms. Kaya was outside of Turkey during the trial. However, she remotely applied to several hospitals in Turkey to get consultations regarding the medical reports that were prepared while she was in custody. All of Ms. Kaya’s medical reports indicated that she showed signs of torture and inhuman treatment. She submitted those reports to the Court of First Instance. In 2011, the Court of First Instance dropped the case as a result of lapse of time. However, the Constitutional Court set aside the Court of First Instance’s decision and ruled that the prolonged trial violated Ms. Kaya’s right to access justice. The Constitutional Court held that Turkey must hold a speedy trial to abide by its constitutional obligation to effectively investigate claims related to torture and inhuman and degrading treatment. This case is important, because it concluded that an insufficient investigation may itself be inhuman treatment. This case should constitute a precedent for the future cases where women are harmed as a result of insufficient and ineffective investigation.
Members of Freedom and Roam Uganda (“FARUG”) sued the Attorney General and Minister of Ethics and Integrity Simon Lokodo for violating their constitutional rights to freedom of assembly, right to participate in peaceful civil society activity, and right to equal treatment before the law. In February 2012, Minister Lokodo personally appeared at and ordered closed down a FARUG-hosted “project planning, advocacy, human rights, leadership, and business skills” workshop in 2012 on the grounds that the workshop was an “illegal gathering of [h]omosexuals.” The respondents argued that Uganda Penal Code (sec. 148) prohibits homosexual acts, which includes the prohibition of direct or indirect encouragement, incitement, and conspiracy to commit the offense. Citing the Uganda Penal Code, Constitution of Uganda, and African Charter of Human and Peoples’ Rights, the Court held that individual human rights are not absolute and may be restricted in the public interest as long as the restrictions do not amount to political persecution. Calling the workshops “a pretext for human rights advocacy to promote homosexual acts which are prohibited by the Ugandan laws,” the Court rejected Applicants’ freedom of expression arguments because their activities constituted “offenses against morality” and “prejudicial to the public interest.” In response to Applicants’ use of international human rights law, the Court held that Uganda’s “different laws and moral values” require different definitions and protections of the public interest than those cited in precedent from the UN, South Africa, the European Court of Human Rights, Hong Kong, etc. The Court also rejected the suit against the Minister of Ethics and Integrity in his individual capacity because he was acting in his official capacity, meaning the Attorney General was the only proper respondent.
The petitioners sued the defendants for operating “mehadrin” bus lines for orthodox and ultra-orthodox Jews. Petitioners argue that these bus lines discriminate based on gender by allowing men to board and sit in the front of the bus while requiring that women board by the rear door, sit in the back, and dress modestly. Petitioners claim these restrictions violate their fundamental and constitutional rights to equality, dignity, freedom of religion, and freedom of conscience. Petitioners refused to comply with the gender restrictions, which respondents claimed were not compulsory but voluntary and thus legal. Petitioners, however, countered that the gender separation on mehadrin lines is not voluntary and that they were subjected to verbal harassment, threatened with physical violence, humiliated, and forced to leave the bus when they declined to observe the gender separation. After the respondents agreed to an examination of public transportation arrangements on lines serving the ultra-orthodox sector by an independent committee and the committee delivered its analysis, the Court ordered respondent 1 to instruct respondent 2 to publicize the cancellation of the separation arrangements (within 10 days of the date on which the judgment was rendered), and ordered respondent 2 to carry out its instructions within 30 days of the judgment. Within that period of time, respondents 2 and 3 were to post signs regarding the cancellation in all buses formerly subject to “mehadrin” arrangements, without exception.
The plaintiff sued the government for false arrest and assault. The plaintiff, who worked for the government as an accounts clerk, claimed she was robbed by two armed men while she was transporting government funds. The next day, the police arrested her. The plaintiff alleged that she was taken to a police post, stripped down to her underwear, placed on her back, beaten, and interrogated, while the officers beat her and poured water over her head. The High Court determined that the plaintiff’s arrest was lawful but the torture was not. A medical certificate entered into evidence showed that plaintiff had injuries when she was released from police custody. Because there was no proof that she had those injuries before she was detained, the Court found that the plaintiff was entitled to relief.
G.N., a mother, brought the action on behalf of her nine-year-old daughter, C.N. A friend of the family, Captain D.K., was conducting night patrols and he stopped by the family home. G.N.’s husband was not at home, so the Captain said he was going to leave and wanted to take C.N. with him home. G.N. declined saying it was late, but when she returned to the kitchen to finish cooking the meal and then called for her daughter, she was no longer there. Neighbors informed G.N. that she had left with D.K. She looked for C.N., but did not see her. The serviceman was a friend of the family. She thought C.N. would soon return. When G.N.’s husband returned home, she informed him that C.N. had not returned and he reassured her so they decided to wait. C.N. returned home the next day. G.N. eventually learned from C.N. that D.K. had taken her to his house, raped her, and, when she cried, threatened her with his firearm if she made any more noise. He sent her to sleep with his own children and the next day gave her 500 Burundian francs (USD 0.30). He told her never to speak about the rape and threatened her and her mother if she revealed their secret. However, a week after the incident, her mother persisted in asking C.N. because she could not stand up and said she had a stomach ache. The victim’s father raised the issue with Captain D.K., who proposed an out of court settlement, which was rejected by G.N. G.N. took C.N. for a medical examination, which confirmed the rape and she reported the rape to the military prosecutor’s department. G.N. appealed to the domestic courts, which dismissed the case because of the ten-day period between the incident and reporting of it and the calmness and availability of the Captain. After seeking domestic remedies with no action taken, G.N. appealed to the Committee submitting that her daughter was the victim of a violation of articles 2(1), 12, 13 and 14, read in conjunction with article 1 and, alternatively, with article 16 of the Convention. The Committee found that the sexual abuse to which C.N. was subjected by an official of the State acting in his official capacity and the associated acts of intimidation fall within the scope of article 1 of the Convention. The Committee also determined the investigation was not impartial, effective and prompt, contrary to articles 12 and 13 of the Convention. It relied on the fact it was closed quickly and prosecutors did not seek additional evidence to pursue the case or arrest any other suspects, meaning the perpetrator of the rape has gone unpunished even though Burundi law provides that rape is punishable by life imprisonment when committed against a child under the age of 12. As the child received no redress, the Committee also found that Burundi violated its obligations under article 14 of the Convention. Finally, the Committee urged Burundi to: (1) promptly reopen an investigation; (2) provide reparation including compensation for the material and moral harm caused, restitution, rehabilitation, measures of satisfaction and a guarantee of non-repetition; (3) prevent threats/acts of violence against G.N. and C.N. for lodging the complaint; and (4) advise the Committee within 90 days of the steps taken.