Women and Justice: Keywords

Domestic Case Law

Jiangsu Province v. Erming Wang People’s Procuratorate of Quning District Court (2014)

Domestic and intimate partner violence

The defendant Wang “bought” a woman with intellectual disabilities for RMB 10,000 to have a male heir. Wang chained her feet and hands and raped her several times. The imprisonment and rape lasted for two months until police rescued her. Quning District Court, Jiangsu Province found that defendant Wang trafficked the woman, imprisoned, and raped her. Therefore, according to Article 236 section 1 and Article 238 section 1 and Article 240 of Criminal Law of the People’s Republic of China, Wang was sentenced to 10 years’ imprisonment.



J.Y. Interpretation No. 617 Constitutional Court of Taiwan (2006)

Gender-based violence in general

Article 235 of the Criminal Code provides for criminal penalties for people who distribute, broadcast or sell “obscene” material, and to people who manufacture or possess obscene material “with the intent to distribute, broadcast or sell.” The Court held that the term “obscene” is not an indefinite “concept of law,” but rather includes material containing, among other things, violent or sexually abusive content. As such, the Court held that the law is a reasonable restraint on free speech and free publication. Thus, the law is constitutional and bans, among other things, material that includes violent or sexually abusive content.



J.Y. Interpretation No. 666 Constitutional Court of Taiwan (2009)

Gender-based violence in general

Article 80, Section 1, Sub-section 1 of the Social Order Maintenance Act establishes administrative penalties of detention and a fine for any person who engages in sexual conduct or cohabitation with the intent of obtaining financial gain. The Court noted that a transaction for sexual conduct necessarily involves two people: the person engaging in the conduct with the intent of obtaining financial gain, and the other person who provides consideration for the conduct. The law at issue only punishes the former party by focusing on the subjective intent of the person seeking financial gain from the sexual transaction. The Court also noted that the former party is more likely to be female. Thus, the Court held that the law essentially targets and punishes females who participate in financial transactions for sex. As such, the Court held that the law’s focus on the subjective intent for financial gain violates the principle of gender equality in Article 7 of the Constitution. The Court decreed that the provision would become ineffective upon two years after the issuance of the decision.



R v. Tyrrell [1894] 1 Q.B. 710 Crown Case Reserved (1984)

Trafficking in persons

The defendant was tried and convicted at the Central Criminal Court on an indictment charging her, in the first count, with having unlawfully aided and abetted, counselled, and procured the commission by one Thomas Ford of the misdemeanour of having unlawful carnal knowledge of her whilst she was between the ages of thirteen and sixteen, against the form of the statute, and, in the second count, with having falsely, wickedly, and unlawfully solicited and incited Thomas Ford to commit the same offence. In this case it was held that one cannot be found guilty of aiding and abetting a law that is solely in place to protect them. A girl between the ages of 13 and 16 aided and abetted a man over 16 to have intercourse with her, however she was found not guilty of aiding and abetting by law because this law was in place to protect her and her peers.



胡石明、胡锦林、水贝组织他人偷越国(边)境案,江西省高级人民法院 (People’s Procuratorate of Nanchang City Jiangxi Province v. Hu Shiming, Hu Jinlin, Shui Bei) Supreme People’s Court of Jiangxi Province (2014)

Trafficking in persons

The defendants Hu Shiming, Hu Jinlin and Shui Bei were charged of crime of organizing sneak across the border for trading three Cambodian women to China. One of the defendants, Shui Bei was introduced and married to defendant Hu Jinlin after she entered China under tourist visa. Shui Bei’s families got to know her good living condition and wished to married someone in China. Therefore, Hu Shiming and Hu Jinlin paid for the visa fee of three sisters of Shui Bei, got them in through Guangzhou custom, and advertised them for marriage. Soon after that, Hu Shiming and Hu Jinlin introduced the three to local persons at the will of both sides and took approximately RMB 240,000 in return. Shui Bei was the interpreter during the transaction. The trial court finds that according to Article 318 Section 1 of the Criminal Law of PRC, the defendants organized several foreign women to do things inconsistent with the approved visa, making up the reason to apply for visa, for the purpose of profit-making, which constituted the crime of organizing sneaking across the border. Hu Shiming appealed and alleged that according to Article 6 Section 4 of Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Certain Issues Concerning the Application of Law in the Handling of the Criminal Cases of Obstructing Border (Frontier) Control, crossing the border with certificates taken by faking reasons for crossing the border, hiding identity, illegally using others’ ID cards etc, shall be regarded as the act of sneaking across the border. All three requirements need to be satisfied, instead of selectively satisfied. The Supreme Court finds that according to the rationale of law interpretation, the three requirements are selective. Therefore the decision is affirmed.

人口拐卖

被告胡石明、胡锦林、水贝因组织将三名柬埔寨妇女偷越国境而被控拐卖妇女罪。被告之一水贝在持旅游签证入境中国后经人介绍与被告胡锦林结婚。之后,水贝家人及亲友了解到水贝在中国的生活要比柬埔寨好。水贝的表姐等三个亲友,愿意到中国来嫁人。由水贝的父母在柬埔寨办理她们的护照、签证及购买入境机票等,胡石明、胡锦林支付费用并将几人带入广州海关。之后胡石明、胡锦林将几人经双方同意介绍给中国男子,并收取共约二十四万人民币。其中,水贝担任翻译。基层人民法院认为,根据中华人民共和国刑法第三百一十八条第一款,被告以介绍境外妇女嫁给中国男人而牟利为目的,多次组织人数众多的外籍妇女以虚假的出入境事由骗取出入境证件,偷越中华人民共和国国(边)境,其行为均已构成组织他人偷越国(边)境罪。胡石明上诉称,根据根据最高人民法院、最高人民检察院《关于办理妨害国(边)境管理刑事案件应用法律若干问题的解释》第六条第(四)项规定,“使用以虚假的出入境事由、隐瞒真实身份、冒用他人身份证件等方式骗取的出入境证件出入国(边)境的”应当认定为刑法第六章第三节规定的偷越国(边)境行为,一审将必须同时具备的三个行为理解为选择性的三个行为,错误理解司法解释。高级人民法院认为,这三个行为应为选择性的。因此维持原判。



蓝树山拐卖妇女、儿童案、最高人民法院 (People’s Procuratorate of Hechi City Guangxi Province v. Lan Shushan) Supreme People’s Court of PRC (2014)

Trafficking in persons

The defendant Lan Shushan was charged of the crime of trafficking women and children for trafficking one woman and 34 children. Throughout 1988 to 2008, the defendant Lan Shushan independently and with his colleagues Tan Ruxi etc trafficked one woman and 34 children to Fujian Province, and traded them for money with the help of accomplice Lin Chuanxi, Su Ermei etc. Lan Shushan benefited approximately RMB 500,000 from the transactions. According to Article 240 section 1 & 2, the ring leader of a large scale trafficking shall be sentenced to death penalty. Thereby, Lan was convicted and sentenced to death by the Appellate Court of Hechi City. Lan appealed to the Supreme Court of Guangxi Province and the judgment is affirmed. The Supreme People’s Court of PRC reaffirmed decision and approved Lan’s death.

人口拐卖

被告蓝树山因拐卖一名妇女和三十四名儿童被控拐卖妇女、儿童罪。1988年至2008年,被告蓝树山单独并伙同同案犯谭汝喜等人拐卖了一名妇女和三十四名儿童至福建省,并在同案犯林传溪、苏二妹的帮助下将这些妇女儿童出卖。蓝树山因此共非法获利约五十万元人民币。根据刑法第三百五十条,在共同犯罪中,蓝树山系地位作用最突出、罪责最严重大型拐卖人口活动的主犯,应依法判处死刑。河池市中级人民法院认定蓝树山犯拐卖妇女、儿童罪,并判处死刑。蓝树山上诉至广西省高级人民法院,法院维持原判。中国最高人民法院维持原判并核准死刑。



Republic v. Elvan S/O Cyprian Luvindu High Court of Tanzania (2005)

Trafficking in persons

The accused physically assaulted the woman with whom he was living. The two were lovers, and he drunkenly hit and kicked her to death. He pleaded guilty to manslaughter, was in remand for four years, served part of his sentence, and had dependents. He asked for leniency on these grounds. The Court emphasized that this offence was committed “in the course of domestic violence” and made note of the Republic’s commitment to CEDAW and the eradication of violence against women. The accused was sentenced to twenty years imprisonment.



Bangladesh National Women Lawyers Association v. The Cabinet Division Bangladesh Supreme Court (2011)

Gender-based violence in general, Harmful traditional practices, Sexual harassment, Sexual violence and rape, Trafficking in persons

In an application under Article 102 of the Constitution, the Bangladesh National Women's Lawyers Association (BNWLA) petitioned the Supreme Court of Bangladesh (High Court Division) to address the exploitation and abuse endured by child domestic laborers in Bangladesh. The BNWLA argued that child domestic workers are subjected to economic exploitation, physical and emotional abuse, and the deprival of an education in violation of their fundamental constitutional rights. In support of these arguments, it presented multiple reports of extreme abuse suffered by child domestic workers. In deciding this case, the Court reviewed the current laws in Bangladesh, including the Labour Act, 2006, which fails to extend labor protections to "domestic workers," including children, and lacks an effective implementation and enforcement system. The Court directed the government of Bangladesh to take immediate steps to increase its protection of the fundamental rights of child domestic workers including prohibiting children under the age of twelve from working in any capacity including domestic settings; supporting the education of adolescents; implementing the National Elimination of Child Labour Policy 2010 and applying the Labour Act, 2006 to domestic workers. Additionally, the Court directed the government to monitor and prosecute incidents of violence against child domestic workers, maintain a registry of domestic workers and their whereabouts to combat trafficking, promulgate mandatory health check-ups and strengthen the legal framework relating to child domestic workers.



Memoranda

Anti-Human Trafficking Legislation in Tanzania and 6 Countries Around the World (2013)

Gender-based violence in general, Trafficking in persons

In 2008, Tanzania adopted the Anti-Trafficking in Persons Act (ATPA) to combat human trafficking, mandate stricter investigation and prosecution, and afford protection to victims of trafficking. This report: explains and evaluates the ATPA, including the effectiveness of its implementation since its enactment in 2008; describes similar acts around the world, including an evaluation of those laws’ implementation and effectiveness; offers specific recommendations for Tanzania to enhance the effectiveness of its anti-trafficking law.



International Case Law

Hadijatou Mani Koraou v. Republic of Niger ECOWAS Community Court of Justice (2008)

Forced and early marriage, Gender discrimination, Gender-based violence in general, Harmful traditional practices, Sexual violence and rape, Trafficking in persons

Hadijatou Mani, who was born to a mother in slavery, was sold to a local chief at age 12. For the next nine years she was subjected to rape, violence, and forced labor without remuneration. When Niger’s Supreme Court failed to convict her master under Article 270.1-5 of the Nigerien Criminal Code, which made slavery illegal in 2003, Hadijatou brought her case before the ECOWAS Community Court of Justice under Article 9(4) of the Supplementary Protocol A/SP.1/01/05. The court ruled that Hadijatou had been a slave under the definition in Article 1 (I) of the Slavery Convention of 1926 and that in failing to convict Hadijatou’s former master, Niger had not upheld its legal responsibility to protect her from slavery under international law. This case was the first ECOWAS ruling on slavery and only the second conviction made under Niger’s 2003 anti-slavery law. The case gained a high level of publicity, setting the precedent for women to fight back against the traditional slavery practices common to Niger and other ECOWAS nations. As of 2009, there had been approximately 30 more cases upholding the prohibition of slavery in Niger.