Women and Justice: Keywords

Legislation

Постанова Кабінету Міністрів України "Про затвердження Порядку встановлення статусу особи, яка постраждала від торгівлі людьми" № 417 2012 (Resolution 'On Approval of the Procedure for establishing the status of person affected by human trafficking') (2012)

Trafficking in persons

The Procedure defines the rules for determining the status of a victim of human trafficking based on relevant information. The document requires that a victim submit an application to establish status to their local state administration. The Procedure determines victims’ rights to receive shelter, medical, psychological, and other government assistance. If the application is approved, the victim of human trafficking is issued a certificate. The requirements for establishing the status are: (i) conclusion of an illegal agreement (for example, if a person (victim) was sold by agreement as goods by one person (seller) to another person (buyer)); (ii) recruitment, movement, concealment, transfer, or receipt of a person for the purpose of exploitation, including coercion, abduction, fraud, blackmail, material, or other dependence; (iii) the applicant’s supporting documents and materials affirm their eligibility. A person whose status has been established and who has received the relevant certificate has the right to receive one-time financial assistance in accordance with the Procedure. Also, victims will receive information about their rights and opportunities, set out in their own language, as well as compensation for moral and material damage at the expense of the persons who caused it. The status is granted for up to two years and can be extended. According to official statistics for 2021, the status of victims of human trafficking was established for 47 citizens, of whom 11 are women, 36 are men, and 1 is a child. The greatest number of persons suffered from labor exploitation. The main destination countries are Ukraine and the Russian Federation.

Порядок визначає правила визначення статусу особи, яка постраждала від торгівлі людьми, за відповідною інформацією. Документ передбачає, що потерпілий подає заяву про встановлення статусу до місцевої державної адміністрації. Порядок визначає права потерпілих на отримання притулку, медичної, психологічної та іншої державної допомоги. У разі задоволення заяви, потерпілому від торгівлі людьми видається довідка. Вимогами для встановлення статусу є: (I) укладення незаконної угоди (наприклад, якщо особа (потерпілий) була продана за домовленістю як товар однією особою (продавцем) іншій особі (покупцю)); (II) вербування, переміщення, приховування, передача або одержання особи з метою експлуатації, включаючи примус, викрадення, шахрайство, шантаж, матеріальну чи іншу залежність; (III) документи та матеріали, що зібрані під час проведення перевірки і підтверджують можливість встановлення статусу. Право на отримання одноразової грошової допомоги згідно з Порядком має особа, статус якої встановлено та, яка отримала відповідну довідку. Також потерпілі отримають інформацію про свої права та можливості, викладену рідною мовою, а також відшкодування моральної та матеріальної шкоди за рахунок осіб, які її завдали. Статус надається на термін до двох років і може бути продовжений. Згідно з офіційною статистикою за 2021 рік статус постраждалих від торгівлі людьми встановлено 47 громадянам, з яких 11 жінок, 36 чоловіків, 1 дитина. Найбільша кількість осіб постраждала від трудової експлуатації. Основні країни призначення – Україна та Російська Федерація.

Kodi Penal i Republikës së Shqipërisë (Penal Code of Albania) (2017)

Sexual violence and rape, Trafficking in persons

The amended law aims to harmonize its provisions with the highest international standards. The amendments include a new provision (Article 58 (The Rights of the Victim of the Criminal Offence)), which provides a number of guaranteed rights for victims of gender-based violence in criminal proceedings in accordance with international standards. Article 58 Paragraph 1 includes, among others, the right of access by the victim to various support services (such as psychological assistance, counseling etc.), the right to use his/her own language during the proceedings and the right to be informed at all stages of the proceedings about the arrest and release of the offender and the victim’s right to compensation. Article 58 Paragraph 2 requires the public authority in charge of the criminal procedures to immediately notify the victim of the rights in Paragraph 1 and keep records of such notification. Article 58(b) includes amendments to provisions related to victims of sexual violence and human trafficking. This includes the right to be interviewed by a police officer or prosecutor of the same gender, the right to refuse to respond to questions about his/her private life that are not related to the case, and the right to testify through audio-visual technology. (Unofficial English translation available here.)

Domestic Case Law

R. v. Yusuf Willy (Criminal Review No. 6 of 2021/Criminal Case No. 183 of 2021) High Court of Malawi (2022)

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

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.

R. v. Goldfinch Supreme Court of Canada (2019)

Domestic and intimate partner violence, Sexual violence and rape

The accused was charged with sexual assault of a woman he had once dated. The complainant claimed that on the night in question, she had called to the accused’s house for drinks and that he snapped, dragged her to his bedroom, hit her, and forced her to have sex with him. At trial, the accused requested that evidence of a “friends with benefits” relationship be admitted to the jury as it was important context for the jury to know. The trial judge allowed what he called the “benign” evidence to be admitted. The jury found the accused not guilty but the Court of Appeal said the evidence should not have been allowed. On appeal to the Supreme Court, the court said the evidence should not have been allowed and that it was used to suggest that as she had agreed to sex in the past, she was more likely to agree on this occasion which is exactly what the “rape shield law” (section 276 of the Criminal Code (evidence of complainant’s sexual history)) is designed to protect. The Supreme Court said that the judge should have made the accused show that the evidence was useful for some other important reason. A new trial was ordered.

Phiri v. Smallholder Coffee Farmers Trust Industrial Relations Court of Malawi (2007)

Employment discrimination, Sexual harassment, Sexual violence and rape

The applicant, was a security guard. She was employed on a fixed term renewable contract, renewable upon satisfactory performance. On December 26, 2005, near the end of her employment term, one of the applicant's colleagues attacked her and attempted to rape her, only stopping after being apprehended when she shouted for help. The applicant reported the incident to her employer’s management, which convened a hearing. During the hearing, the company’s human resources representative accused the applicant of misconduct and embarrassing the company by discussing the attempted rape, which the company considered to be an "inside thing." On December 31, 2005, the company fired the applicant, citing the expiring fixed term contract for support. The applicant brought her case to the Industrial Relations Court of Malawi (the “Court”). Calling it "a case of the worst forms of unfair labour practices," the Court found that (i) the applicant had reason to believe that the company would renew her contract and (ii) that their refusal to do so was based on the attempted rape incident. According to the Court, the company’s actions breached an implied term of the plaintiff’s employment contract relating to mutual trust and confidence as well as the company’s obligation under the contract to protect female employees from sexual harassment and abuse. Until recent amendments to the Employment Act, the labor laws of Malawi did not address sexual harassment, other than reading § 5 of the Employment and Labor Relations Act with § 20 of Malawi’s Constitution, which prohibit unfair discrimination in all forms. Despite the lack of a legal provision specifically addressing sexual harassment, the Court found that sexual harassment creates a hostile work environment, leads to unfair labor practices, and thus constitutes discrimination based on sex. Therefore, the Court found the plaintiff's dismissal invalid and held that the company violated her “right to fair labor practices, the right to work, her right to safe working environment and personal dignity.” The Court considered remedies, finding that compensation in the form of 57 months' salary was appropriate, noting that the first-choice remedy in unfair dismissal cases, reinstatement, was not acceptable in this case because of the egregious conduct of the company's human resources representative.