Women and Justice: Keywords

Domestic Case Law

Public Prosecutor v. Khairul Bin Haji Dagang Intermediate Court of Brunei (1994)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The defendant pleaded not guilty to two charges of rape of a 14 year old female and a 24 year old female, under section 376 of the Penal Code. Regarding the first charge, the court accepted the first complainant’s evidence. Corroboration that she did not consent included fresh abrasions found by a doctor on the defendant’s arms and chest, the crying and distress of said complainant as observed by several witnesses very soon after the incident and the promptness of the complaints made by her. The court held the defendant guilty of having sexual intercourse with said complainant against her will or without her consent, imposing a sentence of seven years imprisonment and six strokes. The court also accepted the second complainant’s evidence. Corroboration that she did not consent included her sad condition and her crying as observed by a witness immediately after the incident, and the complaints she made to said witness, her mother, brother and the police. The court found that the defendant said threatening words which had put her in fear of death or hurt. The court held the defendant guilty of aggravated rape of said complainant, imposing a sentence of nine years imprisonment and 14 strokes. The sentences as to each rape were to run consecutively.



People v. Brials Court of Appeals First District (2000)

Sexual violence and rape, Statutory rape or defilement

Brials and another defendant were convicted of the sexual assault and unlawful restraint of an 11-year-old girl. In their appeal, the defendants contended that the conviction for aggravated criminal sexual assault based on commission during the felony of unlawful restraint should be reduced to a conviction for criminal sexual assault because unlawful restraint is a lesser-included offense and should not be used as an aggravating factor. The Court of Appeals affirmed the convictions, but remanded to the trial court to resentence. Because unlawful restraint was already an inherent factor in criminal sexual assault, it could not also be used as an aggravating factor. Thus, the defendants could only be convicted of criminal sexual assault.



Public Prosecutor v. Intol Bin Langgar Intermediate Court of Brunei (1993)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The defendant was charged with two charges of rape of the complainant, a 14 year old female, punishable under section 376(1) of the Penal Code, and two charges of unlawful carnal knowledge with a girl under 16 years old, an offence under section 2 of the Unlawful Carnal Knowledge Act (Cap. 29). DNA and other forensic evidence indicated that the defendant was the biological father of the complainant’s child. While that evidence alone could not prove rape, the complainant’s evidence, consisting largely of her testimony, was found credible despite minor discrepancies in the testimony of her various witnesses. The court held that the prosecution had proved beyond the reasonable doubt the four charges against the defendant, and he was accordingly convicted. The court sentenced the defendant to 10 years imprisonment on the first and second charge, and four years imprisonment on the third and fourth charge, to run concurrently. A total sentence of imprisonment was 10 years was imposed.



Public Prosecutor v. Yaha Bin Mansor High Court of Brunei (1991)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The defendant pleaded not guilty to (i) two charges of attempted rape and (ii) two charges of rape, punishable under section 376 of the Penal Code. The prosecution withdrew the fourth charge during the trial. The court noted that since the complainant was under the age of 14 at the time of each alleged incident, her consent was not relevant. As the court found no corroboration of the complainant’s evidence, it had to rely upon her credibility. The court found that the complainant was exaggerating when she claimed that the defendant attempted to rape her. The court did not agree that he did more than commit an act of indecency under Section 354 P.C., which contains the offence of assault or criminal force used on a woman with intent to outrage her modesty. The court acquitted the defendant of attempted rape and rape, but convicted him of the offence of indecency for all three charges. He was sentenced to three years and four strokes for each of the three charges, which are cumulative and consecutive sentences. The defendant was ordered to serve a total of nine years and suffer a total of 12 strokes, with a reduction for time already spent in custody.



Public Prosecutor v. Sapar Bin Badau Intermediate Court of Brunei (1995)

Statutory rape or defilement

The defendant was charged with two charges of rape of his daughter, under section 375 of the Penal Code. According to the complainant, her father first raped her when she was 12 years old and he raped her about 9 to 12 times in a month. The court found that the evidence did not support the complainant’s allegation that she was raped by the defendant, and that her evidence was uncorroborated. The court further found that the complainant had not been telling the truth in several instances, which made her evidence questionable. The court highlighted that, although the complainant claimed she was raped about 500 times by her father since 1989, nobody ever saw the parties together in one of their rooms, nor the complainant in a distressed condition. The court found it dangerous to convict the defendant by relying solely on the uncorroborated evidence of the complainant. The court acquitted the defendant of the two charges and discharged him.



Public Prosecutor v. Zulkifli Bin Sabang Intermediate Court of Brunei (1993)

Statutory rape or defilement

The defendant pleaded not guilty to three charges of rape of a 12 year old female, under section 376 of the Penal Code. The complainant alleged that the defendant penetrated her on all three occasions. However, with regard to the first and second occasions, the complainant’s evidence was uncorroborated. As the court was not prepared to convict in the absence of evidence of penetration, the defendant was acquitted on both the first and second charges. The court accepted that there was some corroboration on the third charge, including a DNA report in connection with a pregnancy and an ‘admission’ by the defendant made to a witness who the court found truthful. The court believed the complainant that she did not consent to the sexual intercourse with the defendant, noting that because consent is not defense to a rape of an individual under the age of 14 years, the complainant’s consent was relevant only to the sentencing. The court held that the third charge was proven beyond reasonable doubt against the defendant and convicted him accordingly. The court imposed a sentence of nine years imprisonment with 14 strokes.



People of the Philippines v. Anacito Dimanawa Supreme Court of Philippines (2010)

Custodial violence, Sexual violence and rape, Statutory rape or defilement

The appellant was convicted of statutory rape of his daughter. The appellant claimed the rape had not happened because the daughter was not home, and that she was not a credible witness. The Supreme Court agreed with the findings and conclusion of the trial and appeals courts that rape was committed by the appellant. The Supreme Court noted that the testimony of a child-victim is to be given full weight and credence. The Supreme Court noted that respect for elders is deeply rooted in Filipino children and recognized by law such that there is a presumption that the child testified truthfully. Moreover, the concurrence of the age of the victim and her relationship to the offender warranted upgrades to the sentencing penalty.



So Wai Lun v. HKSAR Court of Final Appeal of the Hong Kong Special Administrative Region (2006)

Statutory rape or defilement

Appellant, So Wai Lun, was convicted of unlawful sexual intercourse with a girl under the age of 16, in contravention of section 124 of the Crimes Ordinance, Cap. 200, which made sexual intercourse with a girl under the age of 16 a strict liability offense, punishable by five years’ imprisonment. Appellant first argued that section 124 was unconstitutional because it criminalized only the male’s conduct, depriving him of equality under the law. Appellant also argued, alternatively, that the law was arbitrary because it did not deter people who did not believe that what they were doing is unlawful. The Court dismissed the first argument, noting that the legislature is entitled to take into account various differences between men and women, such as the problem of teenage pregnancies, deterring females from reporting if they would also be criminally liable, etc., and concluded that the legislature’s differing treatment was justified by reference to genuine need, rationality and proportionality. The Court also dismissed the second argument, stating that protecting young girls is a choice constitutionally open to the legislature. Therefore, the judge dismissed both of Appellant’s appeals.



Sexual Assault Against a Minor is a Presumed Violent Act: Habeas Corpos No. 74.983-6 (in Portugeuse) Brazilian Federal Supreme Court (1997)

Sexual violence and rape, Statutory rape or defilement

The Brazilian Federal Supreme Court (Supremo Tribunal Federal or “STF”) denied the petition for writ of habeas corpus of Mario Somensi, upholding the constitutionality of Article 224(a) of the Penal Code which establishes a presumption of violence in sex crimes against minors. Somensi was convicted of rape and child abuse, and was sentenced to a prison term of eight years for rape and one year and ten months for child abuse. In his appeal and writ, Somensi argued he had committed no violence and that the presumption of violence set forth in Article 224(a) of the Penal Code was unconstitutional. The Court first noted that the provision in question predated Brazil’s 1988 Constitution and could not be found “unconstitutional” with respect to its construction. Rather, the Court examined its compatibility with the 1988 Constitution and found that the purpose of the presumption – to protect minors who legally are incapable of offering consent – was consistent with and expressed by the broad statement in Article 227 § 4 of the Constitution that “[t]he law shall severely punish abuse, violence and sexual exploitation of children and adolescents.” The STF held that the presumption did not violate constitutional principles, even when the presumption embraced what otherwise would be a factual matter requiring evidentiary proof.



Achiula v. Republic Court of Appeal of Tanzania (2012)

Sexual violence and rape, Statutory rape or defilement

The appellant’s conviction of rape and subsequent sentence of thirty years imprisonment was upheld by the High Court. He had allegedly raped an underage girl on several occasions, manipulating her with monetary bribes and threats. The appellant appealed this decision, claiming that the voire dire examination of the underage victim had been insufficient to ensure that she understood the meaning and duty to tell the truth, and that her evidence was thus not credible. He also argued that because there was no proof to corroborate the age of the victim, the charge of rape was not established. The Court dismissed the appeal, finding that the victim had demonstrated sufficient intelligence and understanding to justify the reception of her evidence. The Court also dismissed the appellant’s citation of the lack of proof of the victim’s age, pointing out that the victim’s age had been accepted as a matter of course during the trial. Finally, the Court decided that there was sufficient evidence of penetration, pointing out that “True evidence of rape has to come from the victim, if an adult, that there was no penetration and no consent, and in case of any other woman where consent is irrelevant that there was penetration."



M. v. The State, Supreme Court of Appeal of South Africa Supreme Court of Appeal of South Africa (2013)

Sexual violence and rape, Statutory rape or defilement

A man in South Africa was convicted of raping his adopted daughter over the course of a sexually abusive relationship that lasted several years and was sentenced to 15 years in prison. The judge overruled claims that the victim had given consent, holding that the victim’s lack of resistance did not qualify as active consent. Furthermore, the judge held that that the perpetrator had knowingly employed sexual grooming techniques to leverage the victim into sexual acts. In refuting the perpetrator’s claims that he believed the victim to be consenting, the judge in this case took an important step in defending victim’s rights and acknowledging the complicated power dynamics that often underlie sexual crimes. This case opens the path for victims of similarly complex patterns of sexual abuse to come forward and claim their rights, providing vital recourse for the many victims of sexual crimes in South Africa.



Decision No. 11/1995, File No. 6 Tz 17/94 Supreme Court of the Slovak Republic (1994)

Domestic and intimate partner violence, Sexual violence and rape, Statutory rape or defilement

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.



Christensen v. Royal Sch. Dist. Washington Supreme Court (2005)

Sexual violence and rape, Statutory rape or defilement

Plaintiff-child and parents sued defendant-school district, principal and teacher, alleging that teacher had sexually abused the child and the district and principal were negligent in hiring and supervising the teacher. In a responsive pleading, defendant-school district and principal asserted as affirmative defense that plaintiff’s voluntary participation in the sexual relationship with defendant teacher constituted contributory fault. The trial court certified to the Supreme Court of Washington a question whether a 13-year-old victim of sexual abuse, who brought a negligence action, could have contributory fault assessed against her under the Washington Tort Reform Act. The Supreme Court of Washington held that, as a matter of law, a child under the age of 16 could not have contributory fault assessed against her for participating in sexual activities. Plaintiff lacked the capacity to consent and was under no legal duty to protect herself from sexual abuse. Societal interests embodied in the criminal laws protecting children from sexual abuse applied equally in the civil arena when harm was caused to the child by an adult perpetrator of sexual abuse or a third party in a position to control that person’s conduct. Furthermore, the idea that a student had a duty to protect herself from sexual abuse at school by her teacher conflicted with the well-established law that a school district had an enhanced and solemn duty to protect minor students in its care.



CDB v. DJE Wyoming Supreme Court (2005)

Sexual violence and rape, Statutory rape or defilement

After pleading guilty, appellant-father was convicted of several counts of sexually abusing his daughter. Appellee-mother filed a petition to terminate father’s parental rights to the daughter, and the District Court terminated his parental rights pursuant to Wyo. Stat. Ann. § 14-2-309(a)(iii) and (a)(iv). The Supreme Court of Wyoming upheld the decision. In terminating appellant-father’s parental rights, the Supreme Court held that the fact of incarceration, by itself, is not per se evidence of unfitness. However, incarceration is a reality that severely impacts the parent-child relationship and, therefore, cannot be ignored. The length of appellant’s incarceration of 47 years makes it extremely improbable that appellant would ever be able to care for the ongoing physical, mental or emotional needs of the daughter. Most importantly, appellant was convicted on several counts of sexually abusing his daughter, and there can be nothing that makes a parent more intrinsically unfit than abusing his child.



Egglestone v. The State (2008)

Sexual violence and rape

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



Public Prosecutor v. Mr. Eakkapong Supreme Court of Thailand (2006)

Sexual violence and rape

The accused took the underage victim from her parents. The Court determined that the offense of sexual assault and the offense of wrongfully taking the accused for the purpose of sexual assault are separate offenses.



Rapto y Estupro Son Delitos Independientes Supreme Court of Mexico

Sexual violence and rape

The Court affirmed that abduction and statutory rape were different crimes. The Court reasoned that statutory rape could take place without an abduction, and abduction could take place without resulting in statutory rape. The Court explained that when the victim is taken away by a male for the purpose of sexual abuse or marriage, statutory rape occurs at the moment of sexual activity, while abduction occurs at the moment she becomes segregated from her customary mode of life.

 

La Corte afirmó que el secuestro y la violación eran delitos diferentes. El Tribunal razonó que la violación estatutaria podría tener lugar sin un secuestro, y el secuestro podría tener lugar sin que se produjera una violación estatutaria. El Tribunal explicó que cuando un hombre se lleva a la víctima con fines de abuso sexual o matrimonio, se produce una violación legal en el momento de la actividad sexual, mientras que la abducción ocurre en el momento en que la victima se separa de su modo de vida habitual.

 



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

Sexual violence and rape

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



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

Sexual violence and rape

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



International Case Law

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

Sexual violence and rape, Statutory rape or defilement

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