Women and Justice: Keywords

Domestic Case Law

TC/0003/17 Constitutional Court (2017)

Femicide, Gender discrimination, Gender-based violence in general, International law, Sexual violence and rape

Due to the increase of femicide crimes in the Dominican society, the Constitutional Court proclaimed the termination of violence against women in all its forms as it is a violation of the Constitution. The proclamation was made in commemoration of the murder of Mirabal, Minerva, Patria and María Teresa, political opponents of the regime of Rafael Trujillo, and in accordance with the international agreements executed in defense of women's rights, as well as the laws issued against gender violence, sexual violence and femicide. 

 

Debido al aumento de los delitos de femicidio en la sociedad dominicana, el Tribunal Constitucional proclamó el cese de la violencia contra la mujer en todas sus formas, incluyéndolo como una forma de violación de la Constitución. Dicha proclamación se realizó en conmemoración del asesinato de Mirabal, Minerva, Patria, y María Teresa, quienes fueron opositores políticos del régimen de Rafael Trujillo. La proclamación está en conformidad con los acuerdos internacionales celebrados en defensa de los derechos de las mujeres y con las leyes emitidas contra la violencia basada en género sexual, violencia sexual en sí, y femicidio.



Mandla Mlondlozi Mendlula v. Rex Supreme Court of Swaziland (2013)

Femicide, Gender-based violence in general

Appellant was convicted of murdering his girlfriend and sentenced to 20 years imprisonment. Appellant appealed that the sentence was too harsh and severe and that it induced a sense of shock. Appellant presented mitigating factors that he was married with four minor children to support, the sole breadwinner, a first offender, and deserved to be given a second chance in life. The Supreme Court dismissed the appeal after considering the interest of society, the seriousness of the offense, the fact that the crime was premeditated, and the fact that the killing was gruesome and brutal. The Supreme Court further stated that sentence was fair “particularly in the upsurge in the killing of women as well as the need to impose deterrent sentences which would provide the safeguard against this onslaught.”



Somiso Mbhamali v. Rex Supreme Court of Swaziland (2013)

Femicide, Gender-based violence in general

Appellant was sentenced to 20 years imprisonment for the murder of his elderly aunt and appealed for 10 years of his sentence to be suspended because the appellant believed the victim was a witch and could kill him with the power of witchcraft. The Supreme Court upheld the original sentence and held that a perpetrator’s belief in witchcraft is not a mitigating factor when computing an appropriate sentence for murder. While a genuine belief in witchcraft could be treated as an extenuating circumstance in certain instances, murder committed because of a belief in witchcraft would not be mitigated by the belief.



Bheki Amos Mkhaliphi v. Rex High Court of Swaziland (2013)

Gender-based violence in general

Appellant convicted of murdering a woman and sentenced to 18 years imprisonment. Appellant appealed the verdict and sentence, claiming that he did not possess the requisite intent to kill and mitigating circumstances that he was 35-years old, a first offender, gainfully employed and a breadwinner supporting two children should reduce his sentence. The High Court dismissed his appeal finding that the stab wounds to the victim demonstrated intent to kill and that the mitigating circumstances were properly weighed when the sentence was determined. The Court further stated, “Violence against women is a matter of great concern to the community at large and sentences imposed on perpetrators should reflect its rightful indignation at such crimes.”



Dr. Naomi Nevo v. National Labour Court Supreme Court of Israel (1990)

Gender discrimination

The petitioner challenged a pension rule requiring women to retire at age 60 while requiring men to retire at age 65. The court held that the rule was discriminatory, because it treated women differently from men where there was no relevant difference between men and women such that the rule served a legitimate purpose. In addition, the fact that the Male and Female Workers (Equal Retirement Age) Law, which corrected the difference, came into force subsequent to the judgment of the lower court did not preclude a showing of discrimination prior to the law coming into effect.



Ruth Nahmani v. Daniel Nahmani Supreme Court of Israel (1996)

Forced sterilization, Gender discrimination, Gender-based violence in general

A married couple was unable to conceive child naturally. They underwent in-vitro fertilization in Israel for purposes of implanting the fertilized ova in a surrogate mother in the United States. Before the ova could be implanted in a surrogate mother, however, the husband left the wife. The wife applied to the Israeli hospital for release of the fertilized ova, intending to move forward with the surrogacy plan in the United States. The husband opposed the release of the ova. The court held that the husband was estopped from opposing the surrogacy procedure, because he had consented to it and the wife reasonably relied on his consent by going through with the fertilization process. In addition, Jewish heritage is a cornerstone of the Israeli legal system, which values the procreation of children. Relatedly, the right to have children under Israeli law is secondary to the desire not to have unwanted children.



Case Number E.1999/35, K.2002/104 Constitutional Court of Turkey (2002)

Domestic and intimate partner violence, Gender-based violence in general

The Constitutional Court found that the legislature could take necessary measures to reduce violence within families. Articles 1.1 of the Law on the Protection of the Family allows judges to take measures against one spouse, not both, and not against the children or members of the family, if a spouse has subjected another family member to domestic violence. The Gulyaly Peace Court found that because the Articles did not provide for an injunction or penalty if a child committed a violent act, rather than a spouse or parent, the Articles violated the principle of equality. Relying on Article 41 of the Turkish Constitution, which focuses on the family as the foundation of Turkish Society and gives the legislature the power to protect the family unit, the Constitutional Court found that Article 1.1 does not violate the Constitution because it protects the family unit and ensures peace within a family unit. The Court also found that the provision did not violate the Turkish equality principle, because the legal status of spouses differs from that of other family members and just cause exists to treat such groups differently.



Constitutionality of Lei Maria da Penha (Federal Domestic Violence Law ) (ADC 19 and ADI 4424) (in Portuguese) Brazilian Federal Supreme Court (2012)

Domestic and intimate partner violence, Gender discrimination, Gender-based violence in general

Following a request to Brazil’s Federal Supreme Court (Supremo Tribunal Federal or “STF”) by then-President Luiz Inácio Lula da Silva, the STF reviewed and upheld the constitutionality of the Lei Maria da Penha (“LMP”). The LMP is Brazil’s first law to address the problem of domestic violence against women on a national scale. The law’s provision for the creation of special courts, as well as the law’s differentiated protection of women, had come under scrutiny in many of Brazil’s lower courts as unconstitutional. The STF, however, has previously held that those articles were constitutional. President Silva argued that the LMP was constitutional due to Article 226, § 8 of the Federal Constitution, and Brazil’s ratification of the Convention on the Elimination of All Forms of Discrimination Against Women and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women. The Justices agreed that the LMP does not create a law of unequal treatment as between men and women, but addresses the reality of longstanding discrimination and aggression directed at women, and offers substantive mechanisms to promote equality without impinging on the rights of males. The Court also found that the provision of specialized courts is constitutional and not in conflict with state control of the local courts. Finally, with a majority vote of 10-1, the Justices held that the office of the public prosecutor can prosecute domestic violence cases even when the victim fails to appear or file a complaint against her aggressor. The majority reasoned that state intervention is necessary to guarantee the victim’s protection from the risk of ongoing violence, which may be aggravated by the victim appearing in the action against her aggressor.



Shalem v. Twenco Ltd Supreme Court of Israel (2006)

Property and inheritance rights

The appellant wife sought a declaration that under the joint ownership rule, she owned half the rights in a residential apartment that was registered in her husband’s name only, and her interest in the apartment was protected against attachment by her husband’s creditors. The court held that date spouses satisfy conditions of the joint ownership rule (sound relationship, united efforts) is the relevant date for “purely family assets” like the residential apartment in question. But not until a “critical date” in the marriage, or when the marriage faces a real danger to its continuation because of a serious crisis between the spouses, does joint ownership of other rights and liabilities crystalize. Here, because the appellant’s marriage had not reached such a “critical date,” her interest in the apartment was protected against attachment.



State of Israel v. Ben-Hayim Supreme Court of Israel (2006)

Sexual harassment

The accused, a male manager of a branch of the Postal Authority, was convicted of unbecoming conduct under the Civil Service (Discipline) Law for sexually harassing a female temporary employee at his branch. The parties reached an agreement under which the accused was disciplined with severe reprimand, loss of one month’s salary, and reduction of one grade for a period of a year. The court held that the disciplinary measures should be significantly stricter, considering that the accused deliberately abused his authority, had considerable influence over the victim’s professional future, was twenty years older than the victim, and was aware that the victim had recently lost her father and was emotionally vulnerable.



Migdal Insurance Company Ltd v. Abu-Hana Supreme Court of Israel (2005)

Gender discrimination

The court held that loss of earnings damages for minor children should be based upon the national average wage. Factors that might warrant deviation from this presumption include the child’s age, when there is a real chance the child would have worked in another country, and other concrete characteristics of the injured child. Here, because the child in question was injured when she was only five months old, assumptions regarding her future were inappropriate.



Shakdiel v. Minister of Religious Affairs Supreme Court of Israel (1988)

Gender discrimination

The petitioner, a female resident of Yerucham and an Orthodox Jew, was disqualified from the local religious council because of a stated tradition of not appointing women as members of religious councils. The court found, however, that although the religious council provided services that were religious in character, the qualifications of the council were solely dictated by the general legal system. Thus, the exclusion of the petitioner based upon her gender was discriminatory.



Erdogu v. Canada Federal Court of Canada (2008)

Gender-based violence in general, Honor crimes (or honour crimes)

Ms. Erdogu, a Turkish national, fled to Canada and filed a claim for refugee protection to escape persecution for her political and religious activity in Turkey. Because she was both an ethnic and religious minority (Kurdish/Alevi), she was arrested in Turkey on a number of occasions, during which she was detained, interrogated, beaten, and sexually molested. Further, she claimed to be at risk because a violent ex-boyfriend had informed her father of the former couple’s sexual relationship, leading her father to declare his intent to kill her in order to preserve the family’s honor. Ms. Erdogu’s application was denied, and she applied for judicial review of that decision. The judge noted that the documentary evidence clearly demonstrated continuing problems with the Turkish government’s efforts to address the issue of honor killings, finding that the officer who had made the initial decision on Ms. Erdogu’s case had failed to consider such evidence. Because of the high risk of honor killing that Ms. Erdogu faced, and due to the officer’s failure to justify his denial of her initial application for protection, the judge ruled that judicial review would be allowed, and that the decision on Ms. Erdogu’s application was to be set aside and redetermined by another officer.



In re Civil Commitment of S.S. New Jersey Superior Court (2011)

Sexual violence and rape

Here, the court affirmed a judgment involuntarily committing the petitioner to a Special Treatment Unit as a sexually violent predator under the Sexually Violent Predator Act (N.J.S.A. 30:4-27.24). Under this act, the state must prove by clear and convincing evidence that an alleged offender is a “sexually violent predator and currently suffers from a mental abnormality or personality disorder that makes him highly likely to engage in acts of sexual violence if not confined.” In this case, the defendant had been indicted for aggravated sexual assault of five pre-teen females, five counts of kidnapping, two counts of terroristic threats, two counts of robbery, two counts of unlawful possession of a weapon, and two counts of possession of a weapon for an unlawful purpose. The court found that the state’s use of expert testimony that the petitioner’s condition predisposed him to sexual violence established by clear and convincing evidence that he is a high risk to re-offend unless confined.



International Case Law

Sandra Jankovic v. Croatia European Court of Human Rights (2009)

Gender-based violence in general

The applicant brought a claim in Split Municipal Court for protection against being disturbed in occupying her room. After years the applicant finally gained possession of the room and then was assaulted by several individuals. Although the applicant tried to get a criminal case brought, it was dismissed by the domestic courts. She then brought a complaint relying on Articles 3 and 8 of the Convention before this Court. The applicant argued that the national authorities failed to afford her adequate protection against violence inflicted by private individuals, which was an Article 8 violation. The Court agreed that Article 8 applied due to the circumstances under which she had been attacked and found that Article 8 had been violated due to the delay of the authorities in prosecuting the crime.



Reports

Avon Global Center 2013 Women and Justice Conference Report (2014)

Acid violence, Gender discrimination, Female genital mutilation or female genital cutting, Harmful traditional practices, Gender violence in conflict, Forced and early marriage, Gender-based violence in general

In December 2013, the Avon Global Center hosted its annual conference in New York, NY on "State Responsibility to End Violence Against Women: The Due Diligence Principle and the Role of Judges."


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.


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.


Articles

Access to International Criminal Justice for Victims of Violence Against Women Under International Family Law (2009)

Gender-based violence in general

Mohamed Y. Mattar, 23 EMORY INT'L L. REV. 141 (2009).