Women and Justice: Location

Legislation

China National Plan of Action on Combating Trafficking in Women and Children (2013)

Trafficking in persons

In March 2013, the State Council of China updated the China National Plan of Action to Combat Trafficking in Women and Children (2008-2012). The stipulated goal for this national plan is to reduce the occurrence of human trafficking and to improve the network to prevent human trafficking crimes. This national plan provides guiding opinions on various topics relevant to human trafficking, including but not limited to, cracking down on prostitution, increasing support for rural populations in low-income areas, guaranteeing nine-year compulsory education for all school-age children and adolescents, improving the protection mechanism for homeless minors, encouraging rural women to work, and encouraging the following people to find employment: people with disabilities, urban unemployed women, female college students and abducted women and trafficking victims who have been rescued.



Provisions for the Prohibition of Non-Medical Needs for Fetal Sex Determination and Manual Termination of Pregnancy

Abortion and reproductive health rights

The Provisions were adopted to implement the basic national policy of family planning, i.e. the “one-child policy” and to keep the sex ratio of the birth population within the normal range. Article 3 prohibits identifying the sex of the fetus for non-medical needs and to manually terminate the pregnancy because of the gender of the fetus, except for approval from the health administrative department or the family planning administrative department. Article 7 provides that if it is necessary for non-medical needs to terminate mid-term pregnancy (more than 14 weeks), an approval and corresponding certificate must be obtained from the family planning administrative department of the county-level people’s government, the sub-district office or the township people’s government. Article 7 further provides that if the fertility service certificate has been obtained and the pregnancy is terminated, the involved person shall be disciplined and educated by the family planning administrative department of the township people’s government, the sub-district office, or the county-level people’s government. The application for another birth shall not be approved until the facts are confirmed.



Law on Population and Family Planning (2015)

Abortion and reproductive health rights

The Law on Population and Family Planning was adopted by the National People’s Congress on December 29, 2001 and amended on December 27, 2015.  This law stipulated the national policy popularly known as the “one-child” policy. It was amended in 2015 to allow and encourage each couple to have two children. Before the amendment, Article 18 provided that the State encourages citizens to marry and bear a child at a later age, and advocates one child for each couple, except in certain conditions prescribed by laws and regulations. As a result of the amendment, Article 18 provides that the State encourages citizens to have two children. Before the amendment, Article 27 provided that couples who bear only one child voluntarily shall be issued the Honor Certificate and enjoy the awards for parents of only one child. Article 41 provides that a citizen who bears children in violation of Article 18 shall pay the social upbringing fines according to law.


 


Law on the Protection of Women's Rights and Interests (2005)

Abortion and reproductive health rights, Domestic and intimate partner violence, Gender discrimination, Property and inheritance rights

The Law on the Protection of Women’s Rights and Interests was adopted by the National People’s Congress on April 3, 1999 and amended on August 28, 2005. This Law stipulates that women have equal rights with men “in all aspects of political, economic, cultural, social and family life.” It also establishes the State’s responsibility to prevent domestic violence. Article 1 provides that “this Law is formulated to protect women’s lawful rights and interests, promote equality between men and women and allow full pay to women’s role in socialist modernization.” Article 7 provides that “[t]he All-China Women’s Federation and women’s federations at various levels shall, in accordance with the laws and charter of the All-China Women’s Federation,” uphold women’s rights and protect the rights and interests of women. Article 12 provides that the State shall “actively train and select female cadres” and “pay attention to the training and selection of female cadres of minority nationalities.” Article 23 provides that “[w]ith the exception of the special types of work or post unsuitable to women, no unit may, in employing staff and workers, refuse to employ women because of sex or raise the employment standards for women.” Article 23 also provides that “[t]he labor (employment) contract or service agreement shall not contain restrictions on her matrimony and child-bearing.” Articles 24 and 25 stipulate equal pay and equal opportunity for promotion for men and women. Article 26 provides that all units shall “protect women’s safety and health during their work or physical labor, and shall not assign them any work or physical labor not suitable to women,” and that “[w]omen shall be under special protection during menstrual period, pregnancy, obstetrical period and nursing period.” Article 27 provides that “[n]o entity may, for the reason of matrimony, pregnancy, maternity leave or breast-feeding, decrease a female employee’s wage, dismiss her or unilaterally terminate the labor (employment) contract or service agreement.” Article 45 prohibits husbands from applying for a divorce “within one year after childbearing or within 6 months after termination of pregnancy” of a woman. Article 46 prohibits domestic violence. Article 51 provides that “[w]omen have the right to child-bearing in accordance with relevant regulations of the state as well as the freedom not to bear any child.”



Marriage Law of the People's Republic of China (2001)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Forced and early marriage, Gender discrimination

The Marriage Law of the People’s Republic of China was adopted by the National People’s Congress on September 10, 1980 and amended on April 28, 2001. Article 2 provides that the marriage system is “based on the free choice of partners, on monogamy and on equality between man and woman.” Article 3 prohibits interference by a third party, mercenary marriage and exaction of money or gifts in connection with marriage. Article 6 provides the minimal marriage age is twenty-two for men and twenty for women. Article 13 provides that husband and wife shall have equal status in the family. Article 34 provides that “a husband may not apply for a divorce when his wife is pregnant, or within one year after the birth of the child, or within six months after the termination of her gestation.” Article 43 provides that neighborhood committee, villagers committee or the unit[1] to which the family belongs have an obligation to deter domestic violence. English version available here

 

[1] “Unit” is a term of art with strong communist connotations, which refers to the company/organization/group to which a person belongs.



The Constitution of the People's Republic of China (Articles 48-49) (2004)

Employment discrimination, Forced and early marriage, Gender discrimination, Property and inheritance rights

The Constitution of the People’s Republic of China was adopted by the National People’s Congress and promulgated for implementation on December 4, 1982. It has been amended several times, with the most recent amendment occurring on March 14, 2004.  Article 48 provides that women and men have equal rights. It states that “[w]omen in the People’s Republic of China enjoy equal rights with men in all spheres of life, in political, economic, cultural, social and family life. The State protects the rights and interests of women, applies the principle of equal pay for equal work to men and women alike and trains and selects cadres from among women.” Article 49, moreover, provides that “violation of the freedom of marriage is prohibited. Maltreatment of old people, women and children is prohibited.” English version available here



Law No. 36 of 2009 Concerning Health (2009)

Abortion and reproductive health rights

Article 75(2) of this law prohibits abortion except for the case of medical emergency or necessity and rape.



Regulation/Perkap No. 10/2007 on the Organisation and Work of the Woman and Children Service Units (2007)

Domestic and intimate partner violence, Gender-based violence in general, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Woman and Child Service Units (UPPA) handle all cases of violence against women, including human trafficking, domestic violence, sexual violence, and other related crimes, in all 305 Indonesian units. UPPA’s units range from district police levels and up. Ideally the Integrated Services for Women and Children Units (P2TP2A) should handle not only cases of violence, but also should serve as centers where women can go for information and empowerment.



Law No. 21 of 2007 on Prevention of Human Trafficking (2007)

Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

This law criminalizes the act of human trafficking and sets out minimum and maximum sentencing standards (up to 15 years) for its various permutations, such as in assisting or abetting such a crime. It also states that Indonesia will cooperate with regional and international authorities in order to thwart any actions relating to human trafficking and sexual exploitation.



Law No. 23 of 2004 on Elimination of Domestic Violence (2004)

Domestic and intimate partner violence

The law on elimination domestic violence defines “domestic violence” in Indonesia. Specifically, it includes sexual and physical abuse as well as negligence of the household. The law sets out the rights of the victims to seek protection, the burden on the government and the public to stop actions of domestic violence and provide the required protection and assistance to recovery. The law also sets out the criminal penalty for acts of domestic violence.



Law No. 13 of 2003 Concerning Manpower (2003)

Employment discrimination, Gender discrimination

The prevailing Indonesian labor laws reflect anti-discrimination principles. Each employee shall have equal opportunity without discrimination to obtain work and shall be entitled to equal treatment from the employer without discrimination (Articles 5 and 6 of the Labor Law). The Labor Law stipulates that termination of an employment relationship shall not be permitted if it is based on the ideology, religion, political inclination, ethnic group, race, social group, gender, physical condition or marital status of the employee (Article 153 (i) of the Labor Law).



Law No. 26 of 2000 - Establishing the Ad Hoc Human Rights Court (2000)

Forced sterilization, Gender violence in conflict, Gender-based violence in general, International law, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Article 9 defines crimes against humanity to include violent acts such as rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization or other forms of sexual violence.



Penal Code of Indonesia (1999)

Abortion and reproductive health rights, Gender discrimination, LGBTIQ, Sexual violence and rape, Statutory rape or defilement

Article 260 punishes spouses who conceal from their spouse a legal barrier to marriage with a maximum sentence of five years imprisonment. Article 284 punishes adulterous spouses and their partners, regardless of their marital status. The penal code only criminalizes acts of rape outside marriage unless the wife is underage and incurs injuries as a result. Articles 285 prohibits forcing or threatening force a woman to have sexual intercourse outside of marriage and punishes violators with a maximum penalty of 12 years. Article 286 punishes sexual intercourse with an unconscious or helpless woman with a maximum of nine years imprisonment. If there is a complaint, Article 287 imposes a maximum sentence of nine years imprisonment for “carnal knowledge” of a girl outside of marriage when the man knows or reasonably should presume that she is less than 15 years of age. Prosecutions are triggered automatically when the girl is less than 12 years of age. Article 288 punishes husbands that have “carnal knowledge” of their wives who “are not yet marriageable” if it results in injury (four years imprisonment), serious injury (eight years), or death (12 years). Article 292 punishes adults that have carnal knowledge of those they know to be or reasonably should know to be minors of the same sex with a maximum of five years imprisonment. Article 293 punishes sexual abuse of a minor with a maximum of five years imprisonment. Incest is punishable by a maximum of seven years imprisonment pursuant to Article 294. Article 297 prohibits trafficking in woman and boys, which carries a maximum sentence of six years imprisonment. Article 299 imposes a four-year maximum sentence for abortion and provides for a one-third increase in sentencing for professionals (e.g., doctor, midwife) who perform abortions.



Law No. 7 of 1984 on the Elimination of All Forms of Discrimination Against Women (1984)

Gender discrimination, International law

This law ratifies the UN treaty on the convention on Elimination of All Forms of Discrimination Against Women (adopted by the UN General Assembly on 18 December 1979 (resolution 34/180)) to help prevent any gender-based discrimination against women and ensuring that women will have equal rights and opportunities in all fields of life.



Law No. 1 of 1974 Marriage Law (1974)

Divorce and dissolution of marriage, Forced and early marriage, Gender discrimination, Property and inheritance rights

This law sets the legal age of marriage without parental consent at 21 years of age. With parental consent, girls may marry at age 16 and men may marry at age 19. Marriages under the legal age are void and there are penalties for knowingly entering into or authorizing child or early marriage. The law also sets the requirements for polygamy, which include the first wife’s inability to fulfill her spousal duties (e.g., bearing children), the permission of the man’s current wife or wives, permission from the local Court, and proof that the man will treat all of his wives and children fairly and provide for them equally. Women are prohibited from marrying a second husband. The law also provides the conditions for the cancellation (annulments and divorce) of a marriage, the obligations of husbands and wives, property rights of spouses, the obligations of parents to their children, the legitimacy of children, the requirements of guardianship, foreign marriages, and the children of mixed-religion marriages.



Law No. 68 of 1958 (1970)

Gender discrimination, International law

This law ratifies the UN treaty on the convention on Political Rights of Women (Convention on the Political Rights of Women open for signature on 31 March 1953) recognizing that everyone has a right to take part in the government of their country and recognizing women’s right to vote and participate in the political process of the country. This law gives the same rights to Indonesian women as is provided under the convention and protects those rights under Indonesian Law.



Constitution of the Republic of Indonesia (1945)

Gender discrimination

The Indonesia Constitution does not discuss gender or women specifically, but instead guarantees rights to “him/her.” The 1945 Constitution is the basis for the government of Indonesia and it carries the highest legal authority. Article 27 of the 1945 Constitution states that: “(i) all citizens shall have equal status accorded by law and the government, and are obliged to respect the law and government without exception; and (ii) each citizen shall be entitled to work and to have a reasonable standard of living.” Article 28I of the Constitution adopted in 1945, and amended in 2002, includes the following provisions: “The rights to life, freedom from torture, freedom of thought and conscience, freedom of religion, freedom from enslavement, recognition as a person before the law, and the right not to be tried under a law with retrospective effect are all human rights that cannot be limited under any circumstances.” Article 28B of the Constitution adopted in 1945, and amended in 2002, includes the following provisions: “Every child shall have the right to live, to grow and to develop, and shall have the right to protection from violence and discrimination.” Article 28G of the Constitution adopted in 1945, and amended in 2002, includes the following provisions: “Every person shall have the right to be free from torture or inhumane and degrading treatment, and shall have the right to obtain political asylum from another country.” (External link includes unofficial English translation.)



Domestic Violence (Amendment) Act 2017 (2017)

Domestic and intimate partner violence, Property and inheritance rights, Sexual harassment, Stalking

  • Prevent gaps in protection. An interim protection order (IPO) protects survivors during police investigation, while a protection order (PO) protects survivors during criminal court proceedings. The amendments specify when an IPO ends, and when a PO begins, so survivors won’t be left without protection between police investigations and court proceeding.
  • Strengthen the IPO to prevent further abuse. With the amendments, an IPO can include additional safeguards, like prohibiting an abuser from coming near a survivor – so police can intervene before further violence happens.
  • Expand the definition of domestic violence. The expanded definition will protect against: misappropriating property, which causes distress; threatening, which causes distress or fear for safety; or communicating (including electronically) with the survivor to insult modesty.
  • Improve rehabilitation provisions. A court can no longer order a survivor to attend reconciliatory counselling with the abuser, which puts the survivor in danger. Instead, the abuser can be ordered to complete a rehabilitation programme.
  • Recognise survivor’s right to exclusive occupancy. If a court grants a survivor occupancy of a shared residence, it must grant the survivor exclusive occupancy – not just a specified part of the residence.
  • Keep survivors better informed. The police officer must keep survivors informed on the status of investigation, status of IPO and PO, and important court dates.
  • Create the Emergency Protection Order (EPO). The EPO helps survivors get protection faster – EPOs are issued by social welfare officers who are easily accessible (IPOs are issued by magistrates). Survivors won’t have to make a police report to get an EPO. The EPO is valid for seven days, and protects against physical injury and fear of physical injury.


Civil Code of Iran (Inheritance) (1969)

Gender discrimination, Harmful traditional practices, Property and inheritance rights

With regards to inheritance law (Arts. 906-915), a widow inherits less than a widower in Iran.  A widow inherits one-quarter of her deceased husband’s property if the deceased husband left no children behind, and one-eighth if he did leave children behind.  In contrast, a surviving husband inherits half of his deceased wife’s property if she left no children behind and one-quarter if she did leave children behind (Art. 913).  Consistent with this pattern, under Iranian Civil Code Article 907, sons inherit twice as much as daughters when a parent is deceased.



Civil Code of Iran (Citizenship) (1969)

Gender discrimination, Property and inheritance rights

Article 976 states that children born to Iranian fathers are considered Iranian subjects. No clause exists extending the same rights to children born of Iranian mothers where the child’s father is not Iranian. This provision demonstrates that Iranian women cannot pass on their Iranian nationality to their children. 



Civil Code of Iran (Divorce and Dissolution of Marriage) (1969)

Domestic and intimate partner violence, Gender discrimination, Harmful traditional practices

The Iranian Civil Code also reflects deep gender inequalities in its divorce law (Arts. 1120-1157).  With only a few exceptions, a husband can divorce his wife “whenever he wishes to do so” (Art. 1133).  However, women may only seek divorce by making a request before an Islamic judge and in only a limited number of circumstances in which the husband has created “difficult and undesirable conditions” in the marriage (Art. 1130).  If this criteria has been satisfied, the Islamic judge can compel the husband to divorce his wife. 



Civil Code of Iran (Marital Duties) (1969)

Domestic and intimate partner violence, Gender discrimination, Harmful traditional practices, Property and inheritance rights, Sexual violence and rape

According to Iranian law, the husband is the exclusive holder of the position of “head of the family”  (Art. 1105).  As such, the husband provides his wife with the cost of maintenance (Art. 1106), “which includes dwelling, clothing, food, furniture, and provision of a servant if the wife is accustomed to have servant or if she needs one because of illness” (Art. 1107) Article 1108 creates a duty on the part of women to satisfy the sexual needs of their husbands at all times.  This is the tamkin (submission) requirement of Sharia law.  If a wife refuses to fulfill her duties, she may be barred from receiving maintenance payments. The husband determines his wife’s place of residence and thus controls her freedom of movement (Art. 1114).  If the dwelling of the wife and husband in the same house involves the risk of bodily or financial injury or that to the dignity of the wife, she can choose a separate dwelling.  If the alleged risk is proved, the court will not order her to return to the house of the husband and, so long as she is authorized not to return to the house, her cost of maintenance will be on the charge of her husband (Article 1115). In addition, the husband may prevent his wife from exercising a certain profession if he deems it “incompatible with the family interests or the dignity of himself or his wife” (Art. 1117).



The Islamic Penal Code of Iran, Book 5 (2013)

Abortion and reproductive health rights, Domestic and intimate partner violence, Gender discrimination, Harmful traditional practices

Articles 623-624 of Book Five of the Islamic Penal Code of Iran ban abortion and proscribe prison sentences for, respectively, "anyone" and doctors, midwives, and pharmacists. Article 630 of the Iranian Penal Code allows a man who witnesses his wife in the act of having sexual intercourse with another man (zina) to kill both of them if he is certain that his wife is a willing participant. If the husband knows that is wife was the subject of coercion, he is justified in murdering only the other man. Under Article 638 of the Iranian Penal Code, women who appear in public without the Islamic hijab may be sentenced to ten days to two months in prison or fined fifty thousand (USD $1.50) or five hundred thousand Rials (USD $15.00). (Full Persian version: http://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=103202)



The Islamic Penal Code of Iran, Books 1 & 2 (2013)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Harmful traditional practices, LGBTIQ

Article 147 of the Islamic Penal Code specifies that the age of maturity triggering criminal responsibility is 15 Islamic lunar calendar years for boys, but only nine Islamic lunar calendar years for girls. This signifies that young girls can be charged as criminally responsible adults in Iran before they reach the age of puberty. Articles 237-239 forbid same-sex kissing and touching, which will be punished by 31-74 lashes. Female genital touching (musaheqeh) is punished by 100 lashes. Article 225 mandates the death penalty for adultery (zina), which international commentators have noted is disproportionately applied to women (e.g., UN Special Rapporteur for Violence Against Women report: http://www.ohchr.org/Documents/Issues/Women/A-68-340.pdf). Article 199 describes the number and gender of witnesses needed to prove various crimes; no crimes may be proven with female witnesses alone and any female witness requires corroboration of a man and another woman. (Full Persian version of the Penal Code available at: http://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=103202)



Domestic Case Law

In re Zhou & Yang Divorce Litigation Intermediate People's Court of Wuxi Municipality (2017)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The appellant-wife appealed to the Intermediate People’s Court of Wuxi Municipality, Jiangsu Province in relation to the lower court’s refusal to grant a divorce. The appellant alleged that her marriage with the appellee was irreparably broken and that he had committed domestic violence against her. The appellant alleged that the domestic violence was corroborated by their daughter’s testimony and photographic evidence. The court held that even though the appellee might have beaten the appellant on at least one occasion, under the legal definition, domestic violence must constitute continuous multiple-time battery rather than [one occasional][1] conduct. Since the evidence submitted by the appellant was insufficient to demonstrate that the appellee’s conduct caused harmful consequences to the appellant, the court refused to grant their divorce. The court also admonished the appellee to fulfill his responsibility as a husband and to stop his "bad habits."

 

[1] Note to draft: This concept is unclear.  The exact translation of the Mandarin phrase would be “one occasional conduct.” From the context of the opinion, it appears that this means that occasional conduct, even if more than once, may not be sufficient if it is not indicative of a pattern of abuse.



Deng v. Beijing Shouwanshou Co. Ltd. No. 3 Intermediate People's Court of Beijing Municipality (2016)

Employment discrimination, Gender discrimination

The plaintiff sued the defendants for infringing on her equal employment rights. The plaintiff alleged that the job description for the courier position included: “Eligibility: Men.”  When Deng went for an interview, she was advised that “we never have women couriers.”  She was subsequently informed that Beijing Postal could not authorize an employment contract for her because she is female. The plaintiff requested relief of, among other things, an official apology and 50,000 Chinese yuan as compensation of for mental distress.  The court of first instance held that the defendants infringed upon the plaintiff’s right of employment equality under the People’s Republic of China’s Employment Law. The Court also rejected the defendants’ argument that the courier position fit within the statutory exceptions under “Special Regulations on Protection of Female Workers,” which prohibits female workers from working in certain fields involving heavy manual labor. The Court of first instance awarded 2,000 Chinese yuan as compensation for mental distress but denied the request for an official apology. Both the plaintiff and defendants appealed.  The Intermediate People’s Court affirmed the lower court’s determination that a courier does not fit within the statutory exceptions for positions “unsuitable for women.” The court also held that compensation of 2,000 Chinese yuan was commensurate with the damages suffered by the plaintiff, and that there was insufficient ground to require an official apology from the defendants to the plaintiff.



Liang v. Guangdong Huishijia Economic Development Co. Ltd. Intermediate People's Court of Guangzhou Municipality (2016)

Employment discrimination, Gender discrimination

The plaintiff sued the defendants for infringing upon her right to employment equality. The plaintiff alleged that the online advertisement posted by the defendants, to which Liang responded, required kitchen apprentices to be “men between the ages of 18 and 25.” The plaintiff further alleged that when she went to the restaurant, the receptionist informed her of the restaurant’s policy that “all employees in the kitchen should be men, even if a woman possesses the qualifications of a chef.” The plaintiff alleged that the defendants’ behavior violates Articles XII and XIII of the People’s Republic of China’s Employment Law, which provide that potential employees should not be discriminated against on the bases of ethnicity, race, sex, and religious beliefs. As relief, the plaintiff requested (1) an official apology from the defendants; (2) 21 Chinese yuan in damages for costs incurred by responding to the advertisement; and (3) 40,800 Chinese yuan in damages for emotional distress. The court of first instance held that the defendants’ actions constituted gender-based discrimination against the plaintiff. However, it found insufficient evidence for the plaintiff’s emotional distress and awarded 2,000 Chinese yuan in damages. It also denied Liang’s request for an official apology. Both the plaintiff and defendants appealed.  Relying on the explicit requirement in the advertisement and the receptionist’s explanations that the candidate be a man, the Intermediate People’s Court held that the defendants’ exclusion based on the plaintiff’s gender was unlawful and unreasonable and constituted gender-based employment discrimination. With respect to relief, the Intermediate People’s Court held that under the Supreme People’s Court’s interpretations, emotional distress normally should not be compensated in monetary terms unless there are severe consequences.  The Intermediate People’s Court held that compensation of 2,000 Chinese yuan was within the discretion of the lower court, and thus upheld the amount. The Intermediate People’s Court, however ordered the defendants to issue an official apology to the plaintiff in newspapers in the Guangzhou area.



People's Procuratorate of Chongming County v. Shi Chongming County District People's Court of Shanghai Municipality (2014)

Domestic and intimate partner violence

On May 20, 2014, the defendant used a hammer to strike her husband’s head three times. She then asked her son to send her husband to hospital where he died. The Court found that throughout their marriage, the deceased often beat and abused the defendant. The day before the incident, the deceased beat the defendant for a long period of time. At approximately 5:30 AM the following day, the defendant, due to the history of abuse, decided to kill her husband. During the trial, multiple witnesses testified to the deceased’s long history of domestic violence. A letter signed by more than 100 people, including close relatives of the deceased, also confirmed that he had abused the defendant over a long period of time. The Court held that the defendant’s conduct qualified as murder. However, because her motive was her husband’s long history of domestic violence, the victim himself was also culpable. Because the defendant had little possibility of recidivism and because there was strong public sympathy for the defendant, the court sentenced her to four years imprisonment. She was due to be released on May 21, 2018. On August 29, 2017, Shanghai No. 1 Intermediate People’s Court ordered her release on parole.



Yang v. China PLA Hospital No. 458 Higher People's Court of Guangdong Province (2018)

Abortion and reproductive health rights

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.



Liu v. Zhang Intermediate People's Court of Fuyang Municipality Anhui Province (2014)

Divorce and dissolution of marriage, Property and inheritance rights

Liu and Zhang held the wedding ceremony in 2009 and registered for marriage in 2011.  In order to marry Liu, Zhang paid a “bride price” of 96,080 Chinese yuan, and Liu’s dowry included a television, refrigerator, washing machine and several pieces of furniture. Liu filed for divorce in 2013, and Zhang requested Liu to return part or all of the bride price. The court found that the bride price was paid for the purpose of marrying Liu, and its payment led to difficulty in Zhang’s parents’ life after Zhang’s marriage. Thus, the court held that Liu was required to return a portion of the bride price. Considering the length of Zhang and Liu’s marriage and their standard of living during that time, the Court ordered Liu to return 32,000 Chinese yuan of the bride price. Moreover, the court found that Liu’s dowry was Liu’s personal property and Zhang had no interest therein.  Available here



People's Procuratorate of Wuhan City Hubei Province v. Zhu Intermediate People's Court of Wuhan Municipality (2011)

Domestic and intimate partner violence

The appellant and the deceased were divorced in 2007 but continued to live as a married couple until the incident.  The appellant had a history of physical abuse. On the day of the incident, the appellant again beat the deceased with a leather belt, causing her to commit suicide. On the same day, the appellant turned himself in. The lower People’s Court held that the appellant had continuously beaten the deceased, causing her to endure physical and mental damage and commit suicide, and his actions constituted the crime of abuse. The appellant was sentenced to five years of imprisonment. Upon appeal, the Intermediate People’s Court upheld the conviction and affirmed the decision.



People’s Procuratorate of Dazhou City Sichuan Province v. Tang Higher People's Court of Sichuan Province (2013)

Domestic and intimate partner violence

The lower court convicted the appellant of intentional assault and sentenced her to life imprisonment and deprivation of political rights for life for stabbing her cohabiting boyfriend to death. The lower court held that the defendant’s motive, frivolous arguments, constituted a crime of intentional assault.  The lower court found that the consequence of the crime was serious and that the defendant should receive a severe punishment. On appeal, the Higher People’s Court of Sichuan Province reversed the lower court’s holding, finding that (1) the appellant turned herself in and obtained forgiveness from relatives of the deceased; (2) on the day of incident, the victim had attacked the appellant first, and should bear certain responsibility. Thus, the High People’s Court reversed the lower court’s ruling and reduced the sentence to 15 years in prison and deprivation of political rights for three years. Available here.



People's Procuratorate of Baoding City Hebei Province v. Cong China Supreme People's Court (2014)

Domestic and intimate partner violence, Femicide

The defendant was convicted of murder and sentenced to death for stabbing his wife (Cui) and mother-in-law (Zhao) to death, which was upheld by the Supreme People’s Court. Cui had previously filed for divorce. On October 4, 2012, the defendant got into an argument with Zhao and Cui. The defendant chased Zhao out of the house and stabbed her to death. The defendant then caught up with Cui, who had run to a neighbor’s house for help, and stabbed her to death. The Supreme People’s Court affirmed the lower courts’ finding that the defendant was guilty of unlawfully depriving others of their lives, which constituted intentional homicide. The Supreme People’s Court upheld the death penalty, holding that the defendant’s killing method was cruel and the consequences were particularly serious, and thus the death penalty was the appropriate sentence according to the law.



Decision No. 265/Pid.Sus/2015/PN Btm District Court of Batam (2015)

Domestic and intimate partner violence, Employment discrimination, Gender discrimination

The Defendant regularly verbally abused his wife (the victim) shouting at her, insulting and cursing her, demeaning her status and causing her deep embarrassment at in front of other employees. The Defendant also joked that he should just divorce the victim and get a new younger wife instead. These verbal abuses were not isolated incidents. The court viewed them as a form of psychological abuse which resulted in psychological suffering, a deep sense of helplessness, and the victim experiencing fear, losing confidence, and losing the will to act. The court found that the Defendant was guilty of domestic violence under Article 45 of Law No. 23 2004 and sentenced the Defendant to seven months imprisonment.



Decision No. 246/Pid.B/2013/PN.Trt District Court of Tarutung (2013)

Domestic and intimate partner violence

The Defendant forced his wife (the victim) to sleep in the cold outside of the bedroom and when the victim tried to enter the bedroom and sleep on the bed, the Defendant proceeded to push her to the floor and beat her, causing bruises and injuries to the victim. The court found the Defendant guilty of an act of domestic violence under Article 44(1) of Law No.23 2004 on Elimination of Domestic Violence. The court sentenced the Defendant to three months imprisonment.



Decision No. 174/pid.Sus/2013/PN.Kpj District Court of Kepanjen (2013)

Domestic and intimate partner violence

The Defendant had an argument with his wife (the victim) and proceeded to hit his head against the victim’s head three times causing bruising and swelling to occur on the victim’s head. The court considered this act as an act of domestic violence under Article 5 of Law No. 23/2004 relating to Elimination of Domestic Violence. The court found the Defendant guilty and sentenced him to three months imprisonment.



Decision No.172/Pid.B/2016/PN.Trg District Court of Tenggarong (2016)

Statutory rape or defilement

The Defendant broke into the victim’s house and forced the victim to have sexual intercourse with the Defendant. The charge is regulated and punishable by Article 285 of the Indonesian Penal Code dated 19 May 1999. The court found the Defendant guilty and sentenced the Defendant to imprisonment for six years and six months.



Decision No. 29/Pid/B/2017/PN.Tul Tual District Court (2017)

Sexual violence and rape

The Defendant committed the offence of creating and disseminating pornographic material. The Defendant threatened the victim with physical harm and forced the victim to take off her clothes to allow the Defendant to film her. The victim put up verbal resistance that prompted the Defendant to slap her and to forcibly take off the victim’s clothes. The Defendant then proceeded to take pictures of the naked body of the Defendant then forced the victim to perform oral sex on the Defendant. The Supreme Court decided that the Defendant was guilty of creating pornography which explicitly showed nudity and sentenced the Defendant to imprisonment for one year and three months and a fine of Rp. 500,000,000. If the fine is not paid then the Defendant will face further imprisonment for an additional three months. Under Indonesian Law only acts that involve vaginal penetration are defined as rape.



Decision No. 29/Pid/B/2017/PN.Tul Tual District Court (2017)

Sexual violence and rape

The Defendant committed the offence of creating and disseminating pornographic material. The Defendant threatened the victim with physical harm and forced the victim to take off her clothes to allow the Defendant to film her. The victim put up verbal resistance that prompted the Defendant to slap her and to forcibly take off the victim’s clothes. The Defendant then proceeded to take pictures of the naked body of the Defendant then forced the victim to perform oral sex on the Defendant. The Supreme Court decided that the Defendant was guilty of creating pornography which explicitly showed nudity and sentenced the Defendant to imprisonment for one year and three months and a fine of Rp. 500,000,000. If the fine is not paid then the Defendant will face further imprisonment for an additional three months. Under Indonesian Law only acts that involve vaginal penetration are defined as rape.



Gandhi v. Perak, et al. Federal Court of Malaysia (2018)

Divorce and dissolution of marriage, Gender discrimination, International law

The appellant, Pathmanathan (husband), and the respondent, Indira Gandhi (wife), were married and had three children. In March 2009, the husband converted to Islam. In April 2009, the husband obtained certificates of conversion to Islam issued by the Pengarah Jabatan Agama Islam Perak over all three children as well as an ex-parte interim custody order over the children. In September 2009, he obtained a permanent custody order from the Syariah Court. In 2013 and 2014, the mother obtained orders from the High Court annulling the unilateral conversions and the Syariah Court’s custody order, inter alia, on the grounds that vesting equal rights to both parents to decide on a minor child’s religious upbringing and religion would be in accordance with international human rights principles, specifically the convention on the Rights of the Child (CRC) and CEDAW.  The first appeal in this case concerned the validity of the conversion of the children to Islam. The majority in the Court of Appeal allowed the husband’s appeal and held that the Syariah Court had exclusive jurisdiction to determine the validity of the children’s conversion to Islam. Dealing with the issue of whether the conversions violate international norms, the Court noted that international treaties do not form part of domestic law unless those provisions have been incorporated into domestic law and that the High Court’s approach of following very closely the standard of international norms in interpreting the Federal Constitution is not in tandem with the accepted principles of constitutional interpretation. Accordingly, the Court of Appeal did not declare that the conversions of the children were invalid. The Federal Court overturned the lower courts’ decisions on appeal, reasoning that the children had not met the statutory requirements of conversion. Specifically, the Court found that the children did not state the two clauses of the Affirmation of Faith in Arabic as the Perak Enactment requires for a valid conversion to Islam.  In addition, the Federal Court held that mothers have parental rights equal to fathers, so the permission of both parents is required for a child’s religious conversion.



Muhammad Juzaili Bin Mohd Khamis, et al. v. State Government of Negeri Sembilan, et al. Court of Appeal Putrajaya (2015)

International law, LGBTIQ

The respondents in this case, three Muslim men with Gender Identity Disorder, filed a judicial review application at the Seremban High Court seeking a declaration that section 66 of the Syariah Criminal (Negeri Sembilan) Enactment of 1992 was unconstitutional. Section 66 “makes it an offense for any Muslim male person to do any of the following in a public place: to wear a woman’s attire, or to pose as a woman.” The High Court dismissed the application. However, the Court of Appeal overturned the High Court’s decision and declared that section 66 was unconstitutional on the grounds that it interfered with the respondents’ right to live with dignity and right to life, that it discriminated based on gender, and that it violated the respondents’ freedom of movement and freedom of expression. The State Government of Negeri Sembilan appealed the Court of Appeal’s decision to the Federal Court. The Federal Court overturned the Court of Appeal decision on the basis that the respondents should have challenged section 66 under Article 4 of the Federal Constitution, which requires leave from the Federal Court and Federal Government being entitled to join as a party, instead of by way of judicial review. Accordingly, until such proceedings are filed and the Federal Court makes a declaration on the issue, section 66 of the Syariah Criminal (Negeri Sembilan) Enactment of 1992 remains valid.



HKSAR v. Law Wan Tung District Court of the Hong Kong Special Administrative Region (2015)

Domestic and intimate partner violence, Trafficking in persons

Three Indonesian domestic helpers claimed that they were assaulted and abused by Law Wang Tung,a Hong Kong housewife, during their employment by Defendant between 2010 and 2014. The District Court convicted the Defendant of 19 charges assault, intimidation, and failure to provide wages, insurance and holidays during the complainants’ employment, and was sentenced for six years of imprisonment and a fine of HK$15,000. During the trial, that one plaintiff was deprived from sleep, food and wages during the employment, and had suffered from extensive physical damages due to the serious abuse, assault and beating from defendant. Evidence also showed that the other two victims also suffered from similar but different degrees of harm while working for the Defendant. In reaching the judgment, the court held that the evidence was admissible for uncharged acts so as to “get a proper picture about the characters involved in the case” and that the account would be incomplete or incoherent without such evidence. The court also noted that the only issue in the case was the credibility of the witnesses. Despite defense’s attempt to challenge the consistencies and credibility of the victims’ testimonies and the question for lack of independent evidence, both the district court and the appellate court found in favor for the victims in the respective proceedings, by taking into account the victims’ background and the specific circumstances in the case. In affirming the decision, the Court of Appeal need to protect the interests of domestic helpers and articulate the society’s abhorrence for conduct.



L.W.L. v. Y.T. Cheng, Inc. District Court of the Hong Kong Special Administrative Region (2006)

Employment discrimination, Gender discrimination

The Plaintiff was employed as secretary of the Director by the Defendant in 2001. In February 2002, the Plaintiff suffered a threatened miscarriage, and was admitted to the hospital several times thereafter. From June to August 2012, she took sick leave frequently for treatment of her pregnancy complications.  During that period, a permanent secretary was hired by the Defendant.  The Plaintiff returned to work after expiry of her maternity leave in November 2012 as agreed with the Defendant, but was moved to a new work station which was not properly equipped, and was not given her original duties.  Shortly after she resumed her work after maternity leave, she was dismissed by the Defendant. She sued the Defendant for her dismissal on the grounds of discrimination due to pregnancy, family status and victimization.  The Court applied the “but for” and “less favorable treatment” test, and held that the burden is on the Plaintiff to prove discrimination on a balance of probabilities – once the Plaintiff can show that a possibility of discrimination can be inferred from the primary facts, the Court will look to the employer for an explanation, with which or if such explanation is not enough, the Court will infer the existence of discrimination.  Based on the facts and evidence in this case, the Court found that the Plaintiff has established the primary facts on her claims on the grounds of discrimination due to pregnancy and family status, and found that the Defendant failed to establish the unsatisfactory performance of the Plaintiff and there were no significant enough reasons for the Defendant to dismiss the Plaintiff.  On a balance of probabilities, the Court concluded that the Plaintiff was dismissed because of her pregnancy and family status, and held the Defendant liable.  Damages for injury to feelings and loss of income were awarded to the Plaintiff.



B. v. King of the King Group Limited District Court of the Hong Kong Special Administrative Region (2012)

Employment discrimination, Sexual harassment

The Plaintiff worked as a cashier at King Palace Chinese Restaurant, which was operated by King of the King Group Limited (“Defendant”). The Plaintiff alleged that she was sexually assaulted by Mr. Leung, an employee of the Defendant, who made a sexual remark to the Plaintiff and also touched the Plaintiff’s chest. Immediately after the incident, the Plaintiff reported it to her direct supervisor, who promised to follow up on the incident, but did not do so. When the Plaintiff raised the harassment again later on and wanted to report it to the police, her supervisor asked the Plaintiff not to do so or the Defendant would terminate both her and Leung’s employment.  Eventually, her supervisor arranged a meeting and asked Leung to apologize to the Plaintiff, but he did it reluctantly and disrespectfully.  The Plaintiff, irritated by the disrespect, slapped Leung, and was then immediately fired by the Defendant.  The Plaintiff settled the case with Leung and made a claim under the Sex Discrimination Ordinance. The Court held that the dismissal was not made by the Defendant on the ground of the Plaintiff’s sex, or because she was sexually harassed, but because the Plaintiff slapped the harasser.  However, the Court ruled that the acts committed by Leung constituted unlawful sexual harassment, and that the Defendant, as employer of Leung, was vicariously liable for Leung’s sexual harassment for the reason that the Defendant failed to take all reasonably practicable steps to prevent the sexual harassment against the Plaintiff in the workplace. The Court awarded the Plaintiff damages for injury to her feelings and costs caused by or in connection with the sexual harassment.



Tsang v. Cathay Pacific Airways Ltd. District Court of the Hong Kong Special Administrative Region (2001)

Employment discrimination, Gender discrimination

The plaintiff, Helen Tsang, was employed by Cathay Pacific Airways Ltd. (“Cathay”) as a flight attendant in 1979. According to the retirement policy at the time of her employment contract, the retirement age for a female attendant was 40, while the retirement age for a male attendant was 55.  Ms. Tsang was required to retire in 1992 when she reached 40. Cathay offered consecutive one year extensions of her employment thereafter till 1997 when she reached the age of 45. During that period, Cathay adopted a new retirement policy in 1993, which changed the retirement age of both the female and male cabin crew to the age of 45 and provided that female employees already on extension may choose to further extend the employment with Cathay till the age of 45 if Cathay agreed so. After 1997 (when Ms. Tsang was 45), Cathay did not offer Ms. Tsang any extension of her employment. Ms. Tsang sued Cathay alleging that the retirement policy implemented by Cathay was discriminatory and that she was discriminated on the ground of her sex. The court held that it constituted direct sex discrimination against Ms. Tsang because a male employee in the similar situation would be in a much better position than Ms. Tsang as he would have been entitled to remain employed with Cathay until the age of 55, or would at least have had the option to retire at 45 if he chose so and would have received more favorable benefits than Ms. Tsang had. In reaching such conclusion, the court upheld the view that the employment contract does not form the basis of a discriminatory claim and the discrimination is continuing and actionable if the discriminatory policy has been in place and implemented during subsequent extension(s) of employment.



Waliyah v. Yip Hoi Sun Terence District Court of the Hong Kong Special Administrative Region (2017)

Employment discrimination, Gender discrimination

The complainant, an Indonesian domestic helper, was asked by her employer’s wife to urinate for a home-pregnancy test. After the result showed positive and was subsequently confirmed by a physician, the employer terminated her employment by a month’s notice. Ultimately, the complainant was required to move out of the couple’s home before the notice period ran out. She sued the couple for damages based on, among others, sex and pregnancy discrimination. The court held the couple liable for the act of sex discrimination against the complainant by asking her to take the pregnancy test, despite the fact that she voluntarily participated in the test and wanted to know the result. The court took the view that whether the employee had consented or voluntarily cooperated to take the pregnancy test is not determinative as to deciding the nature of the employer’s request to take the pregnancy test, and that the lack of intent or motive to discriminate by the employer is a factor to assessment of damages but would not bar an act from being determined as discriminatory. The court held that the employer has no right to know about a female employee’s pregnancy status, which is a private matter of the employee. The court determined that requesting a female employee to take a pregnancy test without giving her a choice not to disclose the result to the employer constitutes a “less favorable treatment” to that employee because of her gender, for the reason that a male employee would not be requested to take such a test or reveal such private information to his employer.



2016 (A). No. 1731 Supreme Court of Japan (2014)

Sexual violence and rape, Statutory rape or defilement

The defendant committed acts of obscenity upon a young girl.  He alleged that it was only for a monetary purpose—to record the act and give the record to his acquaintance in return for receiving a loan —and that he had no sexual intent.  The defendant appealed the High Court’s ruling that sexual intent is not required to establish a prima facie case of indecent assault, which is proscribed by Article 176 of the Japanese Penal Code.  He argued that the High Court’s finding was inconsistent with a judicial precedent holding that sexual intent is an element for the crime.  The Supreme Court, upon noting that the scope of sexual crimes cannot be properly determined without taking into account the views of contemporary society, found that, in the present day, the focus should be on the existence, details, and extent of sexual damage caused to a victim rather than an assailant’s intent.  Thus, the Supreme Court, sustained the High Court’s finding and overturned the 47-year-old jurisprudence. The Court found that, while it could not deny that there may be a situation in which the sexual intent of a perpetrator becomes an important factor in finding the crime, it was not reasonable to uniformly require the existence of such a factor for the crime of indecent assault.  



2016 (Kyo) No. 45 Supreme Court of Japan (2017)

Gender-based violence in general, Statutory rape or defilement, Trafficking in persons

The appellant in this case had been arrested and punished with a fine for allegedly paying for child prostitution in violation of the Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of Children (before its revision by Act No. 79 of 2014).  The news media reported the his arrest for the alleged charge, and all or part of the coverage was made available at several websites that were searchable on the appellee search engine.  This case concerned the appellant’s request—based on his personal rights and moral interests—for an order of provisional disposition, requiring the search engine to make websites that refer to the appellant’s criminal record unsearchable.  The High Court dismissed the request.  The Supreme Court, on one hand, recalled its finding from precedents that the protection of information related to an individual’s privacy is subject to legal protection.  On the other hand, it noted that search engines’ provision of search results (1) may constitute acts of expression and (2) has become an important infrastructure for distribution of information through the internet.  The Supreme Court then found that the evaluation of whether providing particular search results amounts to an illegal action must take into account both the benefits of making the information at question unsearchable on the one hand, and reasons and circumstances pertaining to providing such search results on the other hand; the court can require that the search engine remove such search results only if the former exceeds the latter.  In this case, the Supreme Court found that, while the criminal record at issue pertained to the privacy of the appellant and which he did not wish to be made largely available to the public, such information also concerned the public interest in light of the nature of crimes relating to child porn and child prostitution.  In addition, the Supreme Court took into account that the information dissemination was limited to a certain degree considering that such search results did not show up unless a search engine user used the appellant’s name and his residing prefecture together as search keywords.  Thus, the Supreme Court found that the benefit of making the information at issue unsearchable did not exceed the need of having the websites at issue on the search engine and sustained the lower court’s ruling.



2016 (Ju) No. 2076 Supreme Court of Japan (2018)

Employment discrimination, Sexual harassment, Stalking

The appellee, a former employee of the appellant’s subsidiary, suffered sexual harassment and stalking from an employee of the appellant’s other subsidiary who shared the same work site with the appellee. The appellant had developed a corporate-group-wide compliance system, which included a consulting desk at which an employee of the appellant or its subsidiaries could raise and discuss any compliance-related matters.  The appellee brought the harassment issue to her supervisors at her immediate employer (i.e. the appellant’s subsidiary) twice, but sufficient solutions were not provided, following which she left the company without bringing the issues to the consulting desk.  The stalking continued even after her resignation, so her former colleague who still worked at the appellant's subsidiary brought the issue before the appellant through the consulting desk, but it did not provide sufficient solutions either.  The question brought before the Supreme Court was whether the appellant (i.e. a parent company of her former immediate employer) bore the duties based on the principle of good faith to provide certain protective measures to the appellant  because it had developed the corporate-group-wide compliance system.  The Supreme Court found that the appellant was not imposed with such duties in light of particular facts in the case since the appellant did not bring the harassment issue to the consulting desk during her employment.  However, in dicta, the Court stated that a parent company, depending on particular facts of the case, can be responsible for providing sufficient solutions to an employee of its subsidiary who is a victim of sexual harassment––failure of which would result in liability for damage based on the principle of good faith––if the parent company provides a system through which the employee could, and actually did, bring an issue of sexual harassment to the parent company’s attention.



2007 (Gyo-Tsu) No. 164 Supreme Court of Japan (2008)

Gender discrimination

The issue before the Supreme Court was whether a part of a provision in the Japanese Nationality Act conformed with Article 14.1 of the Japanese Constitution, which prohibits discrimination based on race, belief, sex, social status, or lineage.  The provision at issue does not grant Japanese nationality to a child born out of wedlock to a non-Japanese mother and a Japanese father––even if the father formally declares and recognizes the father-child relationship––unless the child obtains legal recognition as a child of the man and the woman through their marriage.  The Supreme Court first noted that the Japanese Nationality Act does not grant Japanese nationality to a child in the aforementioned situation although it recognizes a parent-child relationship and grants Japanese nationality to a child born out of wedlock if (1) the child’s mother was Japanese or (2) the child’s Japanese father filed for the recognition of the father-child relationship before the child’s birth.  The Court found that, while creating this distinction was reasonable at the time of the legislation, such a distinction amounted to unjustifiable discrimination in present day Japan.  Thus, the Supreme Court found that the part of the provision at issue was unconstitutional and invalid.  In its reasoning, the majority opinion stated, inter alia, “under the Japanese Nationality Act that adopts the principle of jus sanguinis, maintaining a distinction in terms of eligibility to have Japanese nationality based on whether the Japanese parent is the mother or the father of the child at issue does not accord with the basic principle of equality of the sexes.”



2012 (Ku) No. 984 Supreme Court of Japan (2013)

Property and inheritance rights

In this appeal, a child born out of wedlock appealed the High Court’s finding that a relevant part of the proviso to Article 900.4 of the Japanese Civil Code was not inconsistent with Article 14.1 of the Constitution of Japan, prohibiting discrimination based on race, belief, sex, social status, or lineage.  The proviso set forth that the statutory share in inheritance of a child born out of wedlock is half of that of a child in wedlock.  The Supreme Court reversed the High Court’s ruling and found that the proviso was inconsistent with Article 14.1 of the Constitution.  In making this finding, the Supreme Court took into account the changes in the following, which have been observed since 1947––the year in which the Japanese Civil Code was revised after World War II:  Japanese society, forms of family, legislative acts in foreign countries, and relevant Japanese legal frameworks.  The Supreme Court noted that, even though the system of civil marriage is strongly respected in Japanese society, society has come to accept the idea that a child should not suffer disadvantages based on a factor that she/he did not cause or could not change––whether to have been born in or out of wedlock––and that a child’s rights need to be protected and she/he must be given respect as an individual. 



2004 (Ju) No. 1748 Supreme Court of Japan (2006)

Abortion and reproductive health rights

The Supreme Court was asked to rule whether a father-child relationship could be legally recognized in the case where a child’s mother became pregnant through in-vitro fertilization with the frozen sperm of a deceased husband who, while he was alive, had consented to the use of the sperm even after his death.  The Supreme Court reversed the High Court’s ruling and declined to recognize the father-child relationship.  The Supreme Court considered that the legal framework in Japan concerning parent-child relationships did not anticipate such a relationship between a father and his child who was conceived after his death in light of the fact that, even if the father-child relationship had legally been established, the deceased father would not be in a position to hold parental rights, he would not be able to support his child, and the child could not be an heir of the father for the purposes of inheritance.  According to the Supreme Court, such issues need to be addressed by legislation upon analyzing several factors including bioethics, child welfare, and social acceptance.  As the country lacks such legislation, the Supreme Court did not find that the father-parent relationship could be established.



2006 (Kyo) No. 47 Supreme Court of Japan (2007)

Abortion and reproductive health rights, International law

A Japanese married couple petitioned for a court order that a Japanese local government accept birth registers for twins born from a surrogate mother in Nevada with the ovum and sperm of the Japanese couple.  The state of Nevada, pursuant to its state court, had issued birth certificates for the twins, which showed the Japanese couple as their parents.  The Supreme Court reversed the High Court’s ruling that the birth registers need to be accepted.  It stated that Article 118 of the Japanese Civil Proceedings Act prescribes that a final judgment made by a foreign court takes effect in Japan only if it satisfies all enumerated conditions, which include that “the foreign court’s ruling and its proceedings are not contrary to public policy in Japan.”  The Supreme Court recalled that the Japanese Civil Code stands on the premise that a mother of a child is a woman who conceived and delivered the child and that a mother-child relationship is established through objective factors such as gestation and delivery.  According to the Supreme Court, when a parent-child relationship can be legally established is a matter that forms the basis of the country’s legal order, and factors for finding such a relationship must be unequivocal.  Thus, the Court found that a mother-child relationship between the twins and the Japanese wife could not be established, given that the Nevada court’s ruling, which recognized a parent-child relationship contrary to Japanese laws, ran against the public policy in Japan.  In its statement, the Supreme Court urged the Japanese legislature to address the issues of parent-child relationships and assisted reproductive technology through legislation.



2013 (Ju) No. 233 Supreme Court of Japan (2014)

Divorce and dissolution of marriage, Gender discrimination

A mother, on behalf of her infant child, filed a lawsuit for a declaratory judgment for absence of parent-child relationship with the appellant––a man to whom the mother was married when the child was born.  The request for the judgment was based on the fact that a DNA test result showed that, with 99.99 percent probability, the infant was a child of a different man, with whom the mother was having an affair.  By the time of the trial, the wife and the child had left the appellant to live with the child’s biological father.  Article 772 of the Japanese Civil Code, in general, presumes a man to be the father of a child if the man is married to the mother of the child at the time of conception.  While Article 774 allows the husband to file a proceeding to rebut such a presumption, the wife or the child does not have standing to initiate such a proceeding.  The Supreme Court, stressing the importance of maintaining legal stability pertaining to familial status, found that the facts that (i) there was scientific evidence that clearly denied a biological father-child relationship and that (ii) the child was currently raised––without any problem––by the biological father does not negate the presumption of the father-child relationship under Article 772 of Japanese Civil Code, as the importance of maintaining the legal stability pertaining to familial status would not be undermined by such factors.  Therefore, the Supreme Court found that there was no legal ground to deliver the requested declaratory judgment.



2017 (Ju) No. 2015 Supreme Court of Japan (2018)

Divorce and dissolution of marriage, International law

This case concerns the custody of a Japanese couple’s son who was born and raised in the United States until the mother, without the father’s consent, took him to Japan when he was 11 years old.  Pursuant to the Japanese implementation of The Hague Convention on the Civil Aspects of International Child Abduction, the father, whose life was still based in the U.S., petitioned for the return of the son to the U.S.  A family court in Tokyo granted the petition.  However, the attempt to enforce the order of the court failed as the mother strongly resisted when a court execution officer approached her––the son also voiced his desire to stay in Japan at the time.  Subsequently, the father requested habeas corpus relief seeking release of the child.  The High Court dismissed the request.  In this appeal, the Supreme Court of Japan reversed the High Court’s ruling and remanded the case.  In its reasoning, the Supreme Court first recalled its old ruling that care for a child is tantamount to “restraint” within the meaning of the Habeas Corpus Act and the Habeas Corpus Rules in special circumstances where it cannot be deemed that the child is staying with the care provider based on the child’s free will, even if the child is capable of making her/his own decisions.  The Supreme Court found such a special circumstance––undue emotional influence from his mother––existed with respect to the son in light of the fact that he was not capable of making decisions regarding his life when he was taken to Japan, he appeared to have had less than sufficient opportunities to communicate with his father, and he had been largely dependent on his mother.  Furthermore, the Supreme Court found that the restraint at issue was unequivocally unlawful, taking into account that the mother had refused to follow the family court’s order to return the child to the United States, and that there was no special circumstance in which removing the child would be significantly unjust.  This Supreme Court’s unanimous decision may be an indication that the Court will put significant weight on compliance with The Hague Convention on the Civil Aspects of International Child Abduction.



Advisory Opinion No. 2008/64 Fatwa & Contracts Department (2008)

Divorce and dissolution of marriage, Employment discrimination, Gender discrimination

This legal advisory opinion found that a divorced woman is not entitled to the typical social allowance provided to married individuals by their employers.  The woman, unnamed in the opinion, applied for the allowance because she has custody of her minor son.  The opinion states that the allowance can be only provided to married women with children whose husband is unemployed, jobless, or incapacitated.  A divorced woman cannot benefit from this support even if she is the sole custodian of her child.  Nonetheless, this Advisory Opinion requests that the Qatar Legislator revisit this situation a “with a view to cure the unreasonable position of a divorcee employee who has children, because her situation resembles the situation of a widow in jurisprudence.”



Goren & The Women's Lobby of Israel v. Home Center (Do It Yourself) Ltd. & The National Labor Court in Jerusalem Supreme Court (sitting as the High Court of Justice) (2012)

Employment discrimination

The petitioner received a salary a little over half that of a male employee with the same responsibilities and duties.  She sued respondent under the Equal Pay Act (the “EPA”) and Equal Job Opportunities Act (the “EJOA”) and won because the respondent could not justify the discrepancy, though the district labor court also found that the respondent did not have a policy of paying female employees less than male employees.  The lower court also determined that the petitioner had a legitimate claim under the EJOA because the respondent violated the EPA.  For each violation, the labor court awarded her the difference between her salary and that of her male colleague (NIS 6,944).  Each party appealed the damages to the National Labor Court, which held in a split decision that the right to contract trumps the right to equal pay and that an award under the EPA does not necessarily trigger a claim under the EJOA.  The majority held that the purpose of the EPA is to compensate an employee for discrepancies in pay between herself and a male colleague who performs the same task in the same workplace while the purpose of the EJOA is to combat discrimination; the former does not require any evidence of discrimination while the latter does, although that discrimination need not be intentional.  The High Court of Justice rejected the appellate court’s argument that the right to contract trumps the right to equal pay, calling it “a fig leaf to cover up real discrimination,” but agreed that the EPA and EJOA have different elements, purposes, burdens of proof, and remedies.  The High Court held that an employee has the burden of demonstrating discrimination, but that burden shifts to the employer under certain circumstances, like a pay discrepancy.  A larger pay discrepancy means a more significant burden for the employer.  In this case, the employer had the burden to prove that the petitioner’s lower salary was solely based on her request for a lower salary and not her gender.  The High Court held that an employer cannot justify a 35% difference in pay solely based on an employee’s salary request when hired.  However, due to her delay in filing, the Court voided the respondents’ damages obligation under the EJOA.



Ragen, et al. v. Ministry of Transport, et al. Supreme Court (2011)

Gender discrimination, Sexual harassment

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. 



Israel v. Ben-Hayim Supreme Court (2005)

Gender discrimination

The respondent, the manager of the Postmen Department at the Benei Berak branch of the Postal Authority, was acquitted of sexually harassing and victimizing a temporary employee, but convicted of unbecoming conduct. The Civil Service Disciplinary Tribunal (the “Tribunal”) found that the respondent promised to a promotion to the complainant, that he had conducted a sexual relationship with the complainant, and that he tried to prevent the complainant from making a complaint against him, which stated that he visited her apartment for several months and had sexual intercourse with her against her will.  As a result, the complainant felt exploited and humiliated. The Tribunal held that the State failed to prove that the respondent abused his authority. The Tribunal then approved the sentencing agreement that the parties reached, although it admitted it was lenient. On appeal by the state, the Supreme Court held that the respondent’s power to influence the professional future of the workers was considerable and that he held a position of considerable power over the complainant, who was 22 years old at the time of the conduct while the respondent was 20 years older than her, which added to the his control. It follows that the complainant consented to the sexual acts was given because the respondent abused his authority over her, and therefore it was not a voluntary and genuine consent but instead “prohibited consensual intercourse.”  The Court stated that “abuse of authority” need not involve a direct threat; in sexual harassment cases such abuse may be “express or implied, direct or indirect” and is no less potent if it is “in a veiled manner.”  The Court added a one-year suspension from any managerial position to the sentence imposed by the lower Tribunal, explaining that this still amounted to a lenient punishment for the offense committed.



Frudenthal v. Israel Supreme Court (sitting as the Court of Criminal Appeals) (2003)

Gender-based violence in general, Sexual violence and rape, Trafficking in persons

The appellant appeals his conviction for trafficking in persons for the purposes of prostitution in violation of Penal Law sec. 203A(a), pimping for prostitution, and threats and false imprisonment.  The appellants’ two co-conspirators reached plea agreements with prosecutors.  The appellant generally admits the underlying facts of the case, but argues on appeal that these facts do not amount to trafficking in persons but rather pimping for prostitution, which has a lower sentence.  The appellant “acquired” the two complainants in November of 2001 and brought them to a facility in Tel Aviv operated by the first co-conspirator for the purpose of employing them as prostitutes. Appellant “imprisoned the complainants in the facility, took their passports, and abused them physically.” The first co-conspirator supervised the complainants, forced them to work as prostitutes, and collected fees. In or around February 2002, the first co-conspirator transferred the complainants to the custody and supervision of the appellant. The appellant housed the complainants in his apartment and managed all aspects of their work as prostitutes, from arranging clients to fee collection. The appellant made each complainant pay him part of her profits for food and rent.  The complainants were not allowed to leave the apartment without the appellant’s permission and supervision.  The appellant argued that the lower court erred by not applying a narrow definition of “purchase” as used in property law.  The Supreme Court held that section 203A(a) prohibits any deal intended to create a property relationship in which a person acquires rights in another human being. The meaning of the phrases “sale and purchase” in section 203A(a) refer to any deal, in exchange for any consideration, that grants a person any kind of property right in another human being who serves as the object of the deal. It is immaterial whether the business arrangement is under the guise of ownership, rental, borrowing, partnership, or any other means of creating a property interest in a person. The Court held that the appellant’s actions clearly constituted a business arrangement that created a property interest in a human being and that, therefore, these circumstances met the legal criteria for the crime of trafficking in persons. 



Seedis v. Chief Execution Officer & Schmuel Seedis Supreme Court (as an article 55 Special Tribunal) (1954)

Property and inheritance rights

A woman petitioned the article 55 Special Tribunal, which decides whether a case is of personal status and thus within the exclusive jurisdiction of a Religious Court, for review of the Rabbinical Court’s decision to allow her husband to receive rent from a property belonging to the plaintiff.  The Rabbinical Court exercised jurisdiction pursuant to Article 51 and 53 of the Palestine Order in Council 1922, which states that “suits regarding marriage” or “matters of marriage” are within the exclusive jurisdiction of the religious courts. The Special Tribunal agreed with the Rabbinical Court’s decision to exercise jurisdiction over the suit, reasoning that articles 51 and 53 are not limited to questions regarding the existence of a marriage, but also include claims for the enforcement of rights derived from marriage, including property rights.



Neera Mathur v. Life Insurance Corporation of India (1991)

Employment discrimination

Mrs. Neera Mathur had applied to work at Life Insurance Corporation of India (LIC). Upon clearing the written test and the interview, she was asked to fill a declaration form disclosing personal facts as to pregnancy (if any) and her menstrual cycle. Further, she was required to undergo a medical examination as prescribed by LIC. She submitted her declaration and also underwent a medical examination and was certified as being fit for the job. Thereafter, her training program commenced and on its completion, she received an appointment letter with the stipulation that she would be on probation for the first six months and her appointment would be confirmed subject to her performance being satisfactory. During her probation she applied for maternity leave which was granted. On her return to service she was discharged from employment on the grounds that her service was not satisfactory and that she had failed to disclose personal facts as to her pregnancy and menstruation in her declaration form. Mrs. Mathur appealed to the Supreme Court on the grounds that her right to equality guaranteed under Article 14 of the Indian Constitution had been violated by the arbitrary order of discharge. The Supreme Court ordered LIC to re-instate Mrs. Mathur and set aside the order of discharge on the grounds that there was no evidence to prove that her performance was unsatisfactory and the only reason for termination was her failure to disclose personal facts in her declaration that are not required to be disclosed to an employer. The Court stated that while India is moving forward to achieve the constitutional guarantee of equal rights for women, LIC seemed not to be moving with time. It further recommended that LIC delete such requirements from its declaration form and made a note of the fact that if one indirectly seeks to evade providing maternity leave and benefits to a female candidate by not hiring her if she is pregnant at the time of entering the service, the same may be open to a constitutional challenge.



Supreme Court Decision 2005Du6461 Supreme Court of South Korea (2007)

Sexual harassment

At an elementary school dinner party attended by school faculty, the Principal offered to pour alcohol to three male and three female teachers. The three male teachers then reciprocally offered the Principal alcohol, but the three female teachers did not do the same. The Vice Principal (Plaintiff/Appellee) twice requested the female teachers to offer the Principal alcohol as well. Two out of the three female teachers (Defendants) stated that they felt sexually harassed, the request causing the female teachers to feel a sense of sexual mortification or repugnance. Considering the nature of this dinner party, the relationship between the participants, the place, the prevailing situation when Plaintiff uttered the words in question, the lower court judged that the comment and language of Plaintiff in this case could not be interpreted as sexual harassment or unpardonable behavior in violation of public morals or social order, considering the common sense and customs of society as a whole. Defendants appealed. The Supreme Court interpreted the meaning of and criteria for determining the prerequisite "sexual speech and behavior, etc.," for a finding of sexual harassment under Article 2 Subparagraph 2 of the former Act on the Prohibition and Remedy of Sexual Discrimination (amended by Act No. 6915 of May 29, 2003). The Article stipulates that the prerequisite "sexual speech and behavior” for sexual harassment is behavior which provokes in the average person a feeling of sexual mortification and repugnance, viewed in terms of the sound knowledge and practices of society, usually involving a physical, linguistic, or visual act relating to the physical traits of man and woman or a physical relationship between the two. The Court stated that it was not necessary to show that the actor in question had a sexual motive or intent to establish sexual harassment, but rather that the acts would provoke a sense of sexual mortification and repugnance to the average person in a similar situation, taking into account the relationship between the parties, the place and circumstances of the behavior, the content of the clear or presumed response to the behavior, the content and degree of the behavior, and whether the act is fleeting or short-term, as opposed to continual. Considering the conversation of the dinner party location and the circumstances under which Plaintiff requested those acts, the Court interpreted Plaintiff’s request to be not of sexual intent, but of the intent that the offer of alcohol from the boss be reciprocated. Accordingly, the Court stated that sexual harassment could not be established merely by reason of the opposing party feeling sexual mortification and repugnance if it would not objectively provoke such sexual mortification and repugnance in the average person in a similar situation. The Court upheld the lower court’s decision and dismissed the appeal.



Latifi v. Union Of India Supreme Court of India (2001)

Domestic and intimate partner violence, Gender discrimination

The Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWPRDA, 1986) seemed to overrule the Supreme Court’s decision in Mohd. Ahmed Khan v. Shah Bano Begum. Pursuant to a prima facie reading of the MWPRDA, 1986, a Muslim husband was responsible to maintain his divorced wife only for the iddat period and after such period the onus of maintaining the woman would shift on to her relatives. The matter resurfaced before the Supreme Court in Danial Latifi v. Union Of India when the constitutional validity of the MWPRDA, 1986 was challenged on the grounds that the law was discriminatory and violative of the right to equality guaranteed under Article 14 of the Indian Constitution as it deprived Muslim women of maintenance benefits equivalent to those provided to other women under Section 125 of Criminal Procedure Code, 1973. Further, it was argued that the law would leave Muslim women destitute and thus was violative of the right to life guaranteed under Article 21 of the Indian Constitution. The Supreme Court, on a creative interpretation of the MWPRDA, 1986, upheld its constitutionality. It held that a Muslim husband is liable to make reasonable and fair provision for the future of his divorced wife extending beyond the iddat period. The Court based this interpretation on the word “provision” in the MWPRDA, 1986, indicating that “at the time of divorce the Muslim husband is required to contemplate the future needs [of his wife] and make preparatory arrangements in advance for meeting those needs” (at 11). This case is important because, it established for the first time that a Muslim husband’s liability to provide maintenance to his divorced wife extends beyond the iddat period, and he must realize his obligation within the iddat period, thereby striking a balance between Muslim personal law and the Criminal Procedure Code, 1973.



Supreme Court Decision 2007Du22498 Supreme Court of South Korea (2008)

Gender-based violence in general

Plaintiff, who was a credit card company’s Branch Head, repetitively committed acts of sexual harassment over 14 times (hugging, calling at night, asking for massage, etc.) against eight female employees who were under his control and supervision. The company terminated Plaintiff from employment on the grounds that he harmed teamwork by sexually harassing the female employees. However, as to Plaintiff's application of remedy for the first disciplinary dismissal, the Seoul Regional Labor Relations Commission acknowledged the first termination as unjust and ordered to restore him in his former position based on the excessiveness of discipline and defect in disciplinary procedure. The company revoked the first termination in accordance with the above remedy order and restored Plaintiff to employment. Thereafter, the company terminated Plaintiff from employment the second time based on additional facts that he hugged a female employee and persuaded female employees to keep his conducts secret and rationalize his conducts against the instruction of the company. The lower court ruled that the company’s termination of Plaintiff’s employment was unjust based on the reasoning that although the plaintiff's above acts could have caused the female employees to be sexually humiliated, some female employees regarded them as mere encouragement. The Supreme Court reversed the judgment below and demanded the lower court for a new trial on the following grounds: (1) A dismissal can be justified if the employee's fault is so serious that employment relationship with him cannot be continued in light of ordinary social norms. According to Article 2 (2) of the former Act on the Equal Employment for Both Sexes (amended by Act No. 7564 of May 31, 2005), the term "sexual harassment on the job" means that an employer, superior or co-worker makes another worker feel sexually humiliated or offended by sexual words or actions by utilizing his or her position within the working place or in relation with duties, or providing disadvantages in employment on account of disobedience to the sexual words or actions and any other demands. The prerequisite of "sexual words or actions" means actions such as sexual relation, or other sexual, oral and visual actions which make an ordinary and average person in the same position with the other party objectively feel sexual humiliation or offensive feelings in light of sound common sense and customs of the community. For the above sexual harassment to be established, the actors do not necessarily have to have a sexual motive or intent, but in consideration of specific relation of the parties, place of actions and circumstances, the other party's explicit or presumed response as to the action, contents and degree of the action, frequency and duration of the action, there must be actions which make an ordinary and average person in the same position with the other party objectively feel sexual humiliation or offensive feelings, and it must be acknowledged that the other party actually felt sexual humiliation or offensive feelings. (2) In a case such as this where a certain sexual harassment was so serious or repeated from the objective perspective of an ordinary and average person in the same position as to aggravate the working condition, the employer may become liable as to the victimized worker. Sexual harassers, if allowed to continue to work without a disciplinary dismissal, could aggravate a work environment to the degree where the victimized worker cannot tolerate it. Therefore if the disciplinary dismissal was imposed upon the worker who was responsible to such degree, it cannot be viewed as an abuse of a disciplinary right unless the disposition is acknowledged as patently unfair from an objective standpoint. (3) Plaintiff committed sexual harassment on the job to eight female employees who were under his control and supervision, repeatedly taking advantage of his superior position over 14 times for a certain period of time. Even if such sexual harassment happened without the female employees’ special awareness as it was triggered from an ordinary daily attitude formed by distorted social customs or culture on the job, such an excuse could not relieve the person from the seriousness of his behavior.



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, Yang, for RMB 10,000 to have a male heir. Wang chained Yang’s feet and hands and raped Yang several times. The imprisonment and rape lasted for 2 months until police rescued Yang. 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 ten years’ imprisonment.



Sarma v. V.K.V. Sarma Supreme Court of India (2013)

Domestic and intimate partner violence, Gender discrimination

Ms. Indra Sarma, an unmarried woman, left her job and began a “live-in” relationship with Mr. V.K.V. Sarma for a period as long as 18 years, despite knowing that he was married. Mr. Sarma abandoned Ms. Sarma in a state where she could not maintain herself. Under the Protection of Women from Domestic Violence Act, 2005, failure to maintain a woman involved in a “domestic relationship” amounts to “domestic violence.” Two lower courts held that Mr. V.K.V. committed domestic violence by not maintaining Ms. Sarma, and directed Mr. Sarma to pay a maintenance amount of Rs.18,000 per month. Thereafter, on appeal, the High Court of Karnataka set aside the orders of the lower courts on the ground that Ms. Sarma was aware that Mr. Sarma was married and thus her relationship with him would fall outside the protected ambit of “relationship in the nature of marriage” under the Protection of Women from Domestic Violence Act, 2005. On further appeal, the Supreme Court, while affirming the High Court’s order, created an exception to the general rule. The Supreme Court clarified that a woman who begins to live with a man who is already married to someone else, without knowing that he is married, will still be considered to be in a “domestic relationship” under the Protection of Women from Domestic Violence Act, 2005; thus, the man’s failure to maintain her will amount to “domestic violence” within the meaning of the Act and she will be eligible to claim reliefs such as maintenance and compensation. This case is important because it established for the first time such an exception and calls for legislative action to protect women like Ms. Sarma whose contributions in a joint household are often overlooked.



State of Maharashtra v. Indian Hotel & Restaurants Association Supreme Court of India (2013)

Employment discrimination, Gender discrimination

The Bombay Police Act, 1951 was amended in 2005 with the object of securing public order, morality, dignity of women, and reducing exploitation of women including trafficking of minor girls. Section 33A was inserted that prohibited performance of all types of dance in eating houses or permit rooms or beer bars. Section 33B was inserted that permitted three star hotels and Government associated places of entertainment to hold dance performances. The Indian Hotel & Restaurants Association filed a writ petition challenging Section 33A of the Bombay Police Act, 1951 before the Bombay High Court on the grounds that such prohibition: (a) discriminates against women employed to dance in eateries and bars and those employed to dance in three star hotels and government establishments; (b) interferes with their right to work and right to earn a livelihood, and thus is violative of the Indian Constitution. The Bombay High Court held that Section 33A is violative of Articles 14 (equality) and 19(1)(g) (right to work), of the Indian Constitution. The Government of Maharashtra filed an appeal before the Supreme Court and prayed that the terms “All dance” found in Section 33A be read down to mean “dances which are obscene and derogatory to the dignity of women” instead of striking it off altogether to ensure that the right to work of women is not interfered with. The Supreme Court upheld the judgement of the Bombay High Court. It declared that Section 33A violates Article 14 the Constitution of India on the ground that such law is based on an unacceptable presumption that the so-called elite (i.e. rich and the famous) have higher standards of decency, morality or strength of character than their counterparts who have to content themselves with lesser facilities of inferior quality in the dance bars. It declared that Section 33A violates Article 19(1)(g) on the ground that it interferes with the right of women to work and that, contrary to the ban’s purpose, it resulted in forcing some women into prostitution. The Court further urged the government to take affirmative action to ensure the safety and improve the working conditions of the persons working as bar dancers who primarily constitute of women.



Supreme Court Decision 2015Do6980 Supreme Court of South Korea (2015)

Sexual violence and rape

Defendant was roaming the street after drinking alone at night. He followed Victim (a 17-year-old girl) getting off the bus and walking alone. Upon nearing a desolated place, Defendant approached the Victim, while wearing and mask, holding both of his arms high to hug her. Sensing someone behind her, the Victim turned around and yelled “What are you doing?” to which the Defendant remained still and stared for a few seconds before retreating. Defendant was indicted on attempting to assault a child or juvenile which is in violation of the Act on the Protection of Children and Juveniles against Sexual Abuse. The first instance court found the Defendant guilty but the appeals court reversed the first instance judgment and acquitted Defendant. The Prosecutor then appealed to the Supreme Court. The Supreme Court held the crime of indecent act by force includes an indecent act committed after making the other party unable to resist by use of violence or threat and the act of assault itself is considered as an indecent act, and such assault is not confined to the extent of suppressing the other party’s will. An indecent act refers to an act that deviates from sexual moral norms causing a victim to feel shame or disgust, and violating the victim’s sexual freedom. Whether such crime is established should be carefully determined by factoring in: the victim’s reciprocity, gender, and age; relationship between the victim and perpetrator prior to the act; circumstances leading to the act; means and method used to commit the act; objective circumstances; and sexual moral norms at the time. In addition, the crime of attempted indecent act by force is established when the act of violence with the intention to commit an indecent act does not lead to actual commission of indecent act, and this legal principle applies to cases of “indecent act by surprise” where the act of assault in itself is acknowledged as an indecent act. Accordingly, Defendant was charged of violating the Act on the Protection of Children and Juveniles against Sexual Abuse.



Yunnan Province v. Enguang Yang, Wenjian Li People’s Procuratorate of Honghe Harniyizu District Court (2014)

Forced and early marriage, Sexual violence and rape, Trafficking in persons

The defendants Yang and Li trafficked 17 Vietnamese women who were prostitutes in Vietnam to Yunnan Province, China. Yang and Li pretended to be clients and brought the women to hotels and restaurants where they kidnapped the women and transported them to China. The defendants offered the women to villagers in remote rural area of Yunnan Province, China and forced the women to marry buyers by force or threats. Under Article 48 and Article 240 of Criminal Law of the People’s Republic of China, the two defendants were sentenced to the death penalty and their private property was confiscated by the court. The women were provided with assistance to return to Vietnam.



Supreme Court Decision 2013Do7787 (2015)

Sexual violence and rape

Defendant (a Private First Class officer in the army) met Victim (a 10-year-old girl in the 4th grade) through an online gaming site. While video chatting, Defendant repeatedly requested Victim show her body from the waist down. Victim showed her private parts on several occasions to Defendant while video chatting. The military prosecutor indicted Defendant on the charge of sexual abuse under the former Child Welfare Act. Two courts acquitted the Defendant and the military prosecutor appealed to the Supreme Court. The Supreme Court held that “sexual abuse” refers to sexual harassment, sexual assault, cruel acts, etc. which cause a victimized child to feel shame, and can undermine a child’s health and welfare or harm a child’s normal development. The Court also held that whether an act constitutes “sexual abuse” should be determined objectively according to social norms by factoring in specific circumstances, such as: (i) intent, gender, and age of the offender and victimized child; (ii) whether the victimized child had knowledge on sexual values and ability to exercise the right to sexual self-determination; (iii) relationship between the offender and the victimized child; (iv) background leading up to the act; (v) detail of the committed act; and (vi) impact of such act on the victimized child’s personality development and mental health. The Supreme Court reversed the lower court’s judgment because Victim, who was just 10 years old, lacked knowledge on sexual values and did not have the ability to protect herself; therefore, she was not capable of exercising the right to sexual self-determination. Defendant took advantage of Victim’s ignorance and naivety for his own sexual satisfaction. Even if Victim complied with Defendant’s demand without expressing any resistance and did not experience physical/psychological pain due to Defendant’s act, Victim could not voluntarily and earnestly exercise the right to sexual self-determination. As such, Defendant’s act committed against Victim constituted sexual abuse.



Fujian Province v. Lin, Lou People’s Procuratorate of Guangzhe District Court (2013)

Gender discrimination, Gender violence in conflict, Gender-based violence in general, Sexual harassment

In 2013, a teenage girl name Lin gathered two other girls to get revenge on Chen, another girl at Guangze senior high school, Fujian Province, for insulting her. Chen hid and so their plan for revenge was unsuccessful. Later that day, Lin asked someone else to take Chen to a quiet neighborhood. Lin and her friend slapped Chen’s face, broke her nose, pulled her hair, and made Chen take off all her clothes. Chen was too frightened to say no and took off all her clothes. Lin and her friend took pictures of the naked Chen and shared the photos. Guangzhe District Court found that Lin and her friends assaulted the victim Chen. According to Article 237, Criminal Law of the People’s Republic of China Lin and her friend were convicted of humiliating a woman with force and coercion. Lin was sentenced to two-years’ imprisonment, with a full suspension of the sentence. Lin’s friend, Lou, was sentenced to one-year jail time with a full suspension of the sentence. The court said that because both the defendants and the victim were under age of 18, and because the defendants were willing to cooperate with the police, tell the truth, and plead guilty, the court under Article 63, Article 67, Article72, and Article 73 of Criminal Law of People’s Republic of China to give the two defendants a mitigated punishment of community service. The court demanded that the defendants delete all the naked photos of the victim. After the crime, the defendants’ families compensated the victim and the victim forgave the defendants.



Supreme Court Decision 2014Do17346 Supreme Court of South Korea (2015)

Sexual violence and rape

Defendant illegally had sex on four occasions with a girl (aged 14 years at the time) with an intellectual disability, whom he met through an online chat room. He used a cell phone to record a video clip of his sexual intercourse and to take nude pictures of the Victim. Under the Act on the Protection of Children and Juveniles against Sexual Abuse, the Prosecutor indicted Defendant on charges of having illicit sex with a disabled juvenile and producing juvenile pornography. The trial and appellate courts found Defendant guilty, and Defendant appealed to the Supreme Court. The Supreme Court held that “judgment competency” means the ability to rationally discern between what is right and wrong, and “decision-making capacity” means the ability to control one’s behavior. Whether such abilities are lacking can be determined by factoring in not only an expert’s opinion on that issue but also objective evidence, such as testimonies of witnesses on the daily verbal expressions and behaviors of the child or juvenile, and circumstances that led to the charge, including the child’s or juvenile’s speech and behavior. The Court held that the Article 8(1) of the Juvenile Act severely punishes those who have illicit sex with a disabled child or juvenile who has judgment competency much weaker than ordinary children and juveniles, and who lack the ability to exercise the right to sexual self-determination. Furthermore, the Court held that Article 11(1) of the Juvenile Act punishes those who produced, imported, or exported child or juvenile pornography. The Court held that even if there may have been implied consent by Victim, such consent could not be viewed as an act of a child or juvenile with sufficient judgment competency who voluntarily exercised the right to sexual self-determination on an informed or educated basis. In affirming the lower court’s decision, the Supreme Court dismissed the appeal.



Voluntary Health Association of Punjab v. Union of India Supreme Court of India (2013)

Gender discrimination

The Parliament of India enacted the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition on Sex-Selection) Act of 1994 as a measure of preventing female feticides and as a form of affirmative action for women and girls to end discrimination against girl children in furtherance of the constitutional principle of equality under Article 15 of the Indian Constitution. The Supreme Court in 2001 and 2003 noticed a lack of effective implementation and misuse of the Act and thus had issued directions to the Union Government and the State Governments for its proper implementation. Having noticed a decline in the female child sex ratio as reported in the 2011 Census, the Court directed personal appearance of the Health Secretaries of the States of Punjab, Haryana, NCT Delhi, Rajasthan, Uttar Pradesh, Bihar and Maharashtra, to examine steps undertaken for effective implementation of the provisions of the Act as well as the various directions issued by the Court. The Court emphasized that women have the equal right of thinking, participating and becoming leaders in the society, stating that the purpose of the Act can only be realized when government authorities carry out their functions with commitment to and awareness about the role of women in a society. After a detailed analysis of the steps undertaken by the Union and the State Governments, the Court issued directions—including regular monitoring and reporting by authorities under the Act, faster disposal of cases filed under the Act, and suspension of licenses to practice for convicted doctors—to ensure implementation.



Supreme Court Decision 2013Do4279 Supreme Court of South Korea (2013)

Gender-based violence in general

Defendant was indicted for photographing a 14-year old girl’s breasts and genitals during video chats under the Act on Special Cases Concerning the Punishment, etc. of Sexual Violence Crimes (Taking Pictures by Using Camera, etc.). The court below found Defendant not guilty because the Victim took the video of herself, which the Defendant then saved to his computer against her will. Therefore, the court below ruled in favor of Defendant on the grounds that filming a video containing images of Victim's body, not her body itself, did not constitute a violation of the Act. The Court held that the judgment below was just and dismissed the appeal.



Khurana and Others v. Union of India and Others Supreme Court of India (2014)

Employment discrimination

The Cine Costume Make-up Artists and Hair Dressers Association of Mumbai (Association) was registered as a trade union under the Trade Unions Act, 1926. The Association’s by-laws prohibited qualified women make-up artists from becoming members of the Association based solely on their sex. Ms. Charu Khurana, a women make-up artist whose application for membership to the Association was rejected, challenged this prohibition on the grounds that it violated several rights under the Indian Constitution, including her rights to equality, to employment, and to a livelihood. Noting that gender justice is integral to the Indian Constitution, the Supreme Court struck down the Association’s by-laws as violating Articles 14, 15 and 21. Although the Court acknowledged that fundamental rights in India are enforceable only against the State and its authorities and not against purely private individuals or organizations, it found at the same time that a clause in the by-laws of a trade union registered under the Trade Unions Act, 1926, which is accepted by the Registrar of Trade Unions—a State authority under the Trade Unions Act—cannot violate the Indian Constitution.



Supreme Court Decision 2004Do3161 Supreme Court of South Korea (2004)

Sexual violence and rape

Defendant molested and videotaped a four-year-old girl and three-year-old girl. The court below, based on videotapes and victims’ testimony, rendered a guilty verdict. Defendant appealed. The main issues were (1) the admissibility of a videotape that contained conversations between a private person and another person other than a defendant and recorded by a private person and (2) the criteria for determining whether young children's testimony is admissible. As to the first issue, the Court decided that unless a defendant agreed to admit a videotape as evidence, the statement in the videotape was admissible only if (1) the videotape was original, or a photocopy of an original that was not artificially edited and (2) each of the statements on the videotape were acknowledged as the same as that made by the original statement maker by his/her testimony at a preparatory hearing or during a public trial according to Article 313(1) of the Criminal Procedure Act. Based on testimonies, the Court acknowledged each statement on the videotape as the same as that made by the original stator at a preparatory hearing and decided that the videotape was admissible as evidence. As to the second issue, the Court decided that the admissibility of young child's testimony should be decided not only by age, but also by his or her individual and specific intellectual level, after examining the contents of the testimony and the child’s attitudes during the testimony and determining whether facts of past experiences lie within the scope of things that can be understood or judged by the child. Accordingly, the Court found the judgment below of "guilt" based on the evidence was appropriate and found no violation of the evidence rules in confirming the facts and the legal principles as to the credibility of the young children's testimony or failure to conduct a complete review. The Court dismissed the appeal.



Hema Vijay Menon v. State of Maharashtra Bombay High Court (2015)

Gender discrimination

Mrs. Hema Vijay Menon, a married woman and a highly qualified lecturer, lost her only son who was 15 years old. She and her husband decided to have a child through the means of In Vitro Fertilization (IVF). On the failure of the IVF procedure, she and her husband decided to have a child through surrogacy. On the birth of her baby through a surrogate, Mrs. Menon applied for maternity leave. The concerned government authorities disapproved her leave on the grounds that there was no provision of granting maternity leave to a mother who begets a child through surrogacy. The Bombay High Court held that a mother is entitled to avail of maternity leave under Maharashtra Civil Services (Leave) Rules, 1981, even though she begets the child through surrogacy, on the basis that the right to motherhood is a fundamental right to life guaranteed under Article 21 of the Indian Constitution and cannot be violated. This case is important because it recognized for the first time in explicit terms that the right to motherhood is a fundamental tenet of the right to life and thus deserves protection under Article 21 of the Indian Constitution.



Hariharan v. Reserve Bank of India Supreme Court of India (1999)

Gender discrimination

Ms. Githa Hariharan was married to Dr. Mohan Ram and they had a son named Rishab. She applied to the Reserve Bank of India (RBI) for bonds to be held in the name of their minor son Rishab and had signed off as his guardian. The RBI sent back the application to her advising her to either produce the application signed by the father of Rishab or produce a certificate of guardianship from a competent authority in her favor. RBI was of the opinion that Dr. Mohan was the natural guardian of Rishab on the basis of Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (HMGA). That provision stated that the father is the natural guardian of a Hindu minor child and the mother is the guardian “after” the father. Ms. Hariharan challenged the constitutional validity of this provision in the Supreme Court on grounds that it violated the right to equality guaranteed under Articles 14 and 15 of the Indian Constitution. The Supreme Court, relying on gender equality principles enshrined in the Indian Constitution, CEDAW and UDHR, widely interpreted the word “after” in the provision and upheld the constitutional validity of Section 6(a) HMGA, 1956. It held that both the father and mother are natural guardians of a minor Hindu child, and the mother cannot be said to be natural guardian only after the death of the father as that would not only be discriminatory but also against the welfare of the child, which is legislative intent of HMGA, 1956. This case is important because it established for the first time that a natural guardian referred to in the HMGA, 1956 can be a father or a mother: whoever is capable of and available for taking care of the child and is deeply interested in the welfare of the child, and that need not necessarily be the father.



Decision 2005Do8130 Supreme Court of South Korea (2006)

Sexual violence and rape, Trafficking in persons

The Defendant was running a massage parlor that had hidden rooms with beds where a young female employee massaged the whole body of a male customer. The female employee, usually wearing a short skirt and a short-sleeved tee, would undress the male customer, grab his sexual organ with her hands with lotion on, touch the body part just like engaging in a sexual intercourse, and ultimately let him ejaculate. The issue was whether the act of the female employee in the Defendant’s parlor could be considered as "acts that are similar to sexual intercourse" under Article 2 (1) 1 sub paragraph Na of the Act on the Punishment of Acts of Arranging Sexual Traffic. The Act, which aimed to eradicate prostitution and protect the human rights of the victims of prostitution, did not distinguish “sexual intercourse” from “acts that are similar to sexual intercourse”. The Supreme Court interpreted "acts that are similar to sexual intercourse" as stipulated in the above Act to refer to acts of penetrating the body through the mouth or the anus, or at least acts for gaining sexual satisfaction similar to sexual intercourse. Then the Court went through a comprehensive evaluation of the circumstances, including the place where such act was conducted, the clothes the people were wearing, the body parts that were touched, the specific content of the act, and the degree of the resulting sexual satisfaction to decide whether the female employee’s act could be considered as “acts that are similar to sexual intercourse”. The Supreme Court held that the female employee’s act could be deemed as an act of bodily contact for gaining sexual satisfaction similar to sexual intercourse, and therefore dismissed the appeal by the Defendant.



Mohd. Ahmed Khan v. Shah Bano Begum Supreme Court of India (1985)

Divorce and dissolution of marriage, Gender discrimination

Ms. Shah Bano Begum was married to a lawyer named Mr. Mohd. Ahmed Khan. They lived together for 43 years and had five children. In 1978, Mr. Khan threw Ms. Begum out of the shared household and Ms. Begum applied for maintenance from Mr. Khan under Section 125 of the Criminal Procedure Code, 1973 (Cr.P.C, 1973). Pending her application, Mr. Khan dissolved the marriage by pronouncing a triple talaq (divorce on the triple utterance of the word “talaq” by a Muslim husband) and paid Ms. Begum 3000 rupees as mahr (money/valuable property promised to a Muslim woman for her financial security under the marriage contract) and a further sum of maintenance for the iddat period (a period of 3 months that a Muslim woman has to observe before she can remarry after her divorce). Mr. Khan argued that Ms. Begum’s claim for maintenance should be dismissed as Ms. Begum had received the amount due to her on divorce under the Muslim personal law. The lower court granted Ms. Begum’s claim for maintenance, which was set at 179 rupees per month by the High Court in a revision application. Mr. Khan appealed to the Supreme Court in 1985 and the Court held that a payment made pursuant to personal laws cannot absolve a husband of his obligation to pay fair and reasonable maintenance under Section 125 Cr.P.C, 1973 and a husband can be liable to pay maintenance beyond the iddat period.



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.



Freescale Semiconductor Malaysia SDN BHD (Appellant) v. Edwin Michael Jalleh (First Respondent), and Mahkamah Perusahaan Malaysia Court of Appeal Malaysia at Putrajaya (2012)

Employment discrimination

The First Respondent Edwin Michael Jalleh was a senior manufacturing supervisor at the Appellant, and he deliberately touched the buttocks of Intan Nurulain, while she was working at the saw machine. Jalleh was a supervisor on the floor. The administrative inquiry found the allegation to be proved, and he was issued a letter of dismissal from the Appellant. The First Respondent filed a claim under Section 20 of the Industrial Relations Act 1967 that his services had been terminated without just cause or excuse. He sought, among other things, reinstatement. The Industrial Court ordered that the First Respondent be accorded with backwages and compensation in lieu reinstatement, because the punishment of dismissal was too harsh. The High Court dismissed the application by the Appellant for judicial review to quash the award of the Industrial Court. The Court of Appeal, in this case, stated that the germane consideration in industrial relations is that the remedy imposed is warranted and not disproportionate to the misconduct committed, and that consideration must be taken not only of matters concerning the interests of the party who committed the misconduct, but also the whole of the circumstances in the interest of maintenance of good industrial relations in the workplace. The Court of Appeal provided that the Industrial Court failed to take into account that the offense of the sexual misconduct was not committed by a peer, but rather by a superior, which increased the magnitude of the misconduct. Further, an award to the First Respondent (i.e., the person who committed the sexual harassment) in lieu of his reinstatement imposes an unfair punishment upon the Appellant (i.e., the employer), when the misconduct is not the act of or contributed by the employer, but solely a personal act of the employee. As such, the Court of Appeal set aside the order of the High Court and the award of the Industrial Court.



Noorfadilla Binti Ahmad Saikin (Plaintiff) v. Chayed Bin Basirun et al. (Defendants) High Court of Malaya at Shah Alam (2011)

Employment discrimination, Gender discrimination, International law

The Plaintiff interviewed with the education officers of the Education Office of the Hulu Langat District to become an untrained teacher. During the interview, the Plaintiff was asked questions pertaining to her general knowledge, personal details, problem solving skills and residential address. She was not asked about her pregnancy status. The Plaintiff was accepted for the position and presented herself at an instructional meeting as instructed. At the meeting, she was told to report for duty immediately. Subsequently, an education officer asked whether anyone at the meeting was pregnant. Once the Plaintiff admitted that she was pregnant, her placement memorandum was withdrawn. The High Court held that it was not relevant whether or not there was a binding contract, as the the Defendants’ decision interfered with the Plaintiff’s right to be employed, which is contrary to Article 8(2) of the Federal Constitution, which provides that there shall be no discrimination on the ground of gender in the appointment of any office or employment under a public authority. This Article of the Federal Constitution was adopted to comply with Malaysia’s obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The High Court declared that using pregnancy as a factor in employment is a form of gender discrimination under the Malaysian Constitution, applying CEDAW in interpreting Article 8(2) of the Constitution, because of the basic biological fact that only a woman has capacity to become pregnant.



Deepa a/p Subramaniam (Appellant; Husband) v. Viran a/l Nagapan (Respondent; Wife) Dalam Perkara Mahkamah Tinggi Malaya Di Seremban (2014)

Custodial violence

The Appellant and the Respondent were married in 2003 under the Law Reform (Marriage and Divorce) Act 1976, and they have two children. In 2012, the Appellant converted to Islam, as well as his children. Pursuant to his conversion, the Appellant applied for the dissolution of the marriage of the Serembian Syariah High Court (the Syariah Court), which is the Islamic Religious Court. In September 2013, the Syariah Court granted custody order to the Appellant with visitation rights and access to the Respondent. In December 2013, the Respondent filed a petition for divorce and sought the custody of the children at the Serembian High Court, which were both granted to the Respondent, upon which both children were surrendered to the Respondent at the court premises. Two days later, the Appellant took away the youngest child from the Respondent. Consequently, the Respondent filed an application in the High Court for a recovery order for the recovery of the child, which was granted. The Appellant filed two separate appeals, one of the custody order and the other of the recovery order, in the Court of Appeal and argued that the Syariah Court, as opposed to the High Court, had jurisdiction to grant the custody order as well as the recovery order. The Court of Appeal dismissed the appeal regarding the custody order because by contracting the civil marriage, the husband and wife were bound by the Law Reform Act in respect to divorce and custody of the children, and thus, the civil court continued to have jurisdiction over the husband, notwithstanding his conversion to Islam. As provided in the Federal Constitution, the Syariah Court and the Civil High Court are courts of “coordinate” jurisdiction, and one court is in no position to overrule or set aside the decision of another court. However, the Court held that, the issue was not whether or not the High Court could disregard or set aside the Syariah Court order, but rather which court has jurisdiction over parties who had contracted civil marriage and had children out of a civil marriage. The Court held that only civil courts, including the High Court, had jurisdiction over such civil marriage, and children resulting from a civil marriage. Therefore, as per the High Court’s decision, only the Respondent has lawful custody of the child, and that the recovery order of the High Court is not flawed.



Peilis Bin Sami (Appellant) v. Public Prosecutor (Respondent) Court of Appeal Sitting at Kota Kinabalu, Sabah (2012)

Gender-based violence in general

This is an appeal against the decision of the High Court of Kota Kinabalu that had affirmed the sentences imposed by the Sessions Court of Kota Kinabalu on the Appellant. At the Sessions Court, the Appellant was charged with the 3 counts of rape of a fifteen-year-old girl, and at the conclusion of the trial, the Sessions Court found him guilty of attempted rape on the first count; and guilty of the offences of rape on the remaining 2 counts. The Sessions Court sentenced him to 4 years’ imprisonment for the first charge, and 11 years’ imprisonment for the other charges, all of which were to run consecutively. The Appellant stated in his appeal, as mitigation factors, that the victim and the Appellant were lovers, and that the sexual acts were consensual, that the complainant at the time of the commission of the offenses was almost 16 years old, and that the complainant has had sexual experiences with other men previously. The Court of Appeal held that the punishment imposed by the Sessions Court was fair and commensurate with the seriousness of the offenses committed by the Appellant, and the sentences were affirmed. In addition, the Appellant’s statement that the victim and the Appellant were lovers, and that the sexual acts were consensual were not deemed as mitigating factors by the Court since the victim was a minor, and the Appellant was 25 years old. In addition, the Court of Appeal stated that the Appellant’s claim that the victim had sexual experiences with other men was mischievous, irrelevant to the case, and far from attracting the sympathy of the Court, and was viewed by the Court as a lack of remorse by the Appellant with respect to his crime.



Balan Subramaniam A/L Ponnudurai (Appellant) v. Public Prosecutor (Respondent) Court of Appeal of Malaysia (2012)

Custodial violence

Appellant burned down his house, along with his wife Angeladevi, and his daughters Malini and Anuradha. Angeladevi and Anuradha died as a result, and Malini survived. Angeladevi gave an oral dying declaration and Anuradha gave a written dying declaration to the effect that the Appellant (Angeladevi’s husband and Anuradha’s father) was the person who set them on fire. Angeladevi’s declaration was given to the medical personnel who attended to the woman at the hospital, and Anuradha’s declaration was given to the police. The Appellant appealed, among other things, the admissibility of the dying declaration of Anuradha. The Court of Appeal dismissed the appeal for the following reasons, among others: (1) the threshold for admissibility of a statement in the nature of a dying declaration under section 32(1)(a) of Evidence Act of 1950 is very low in contrast to a dying declaration at common law, (2) the supporting witness statements of neighbors give greater probative force to the statements, and (3) even the recovery of a dead body of the victim or a vital part of it, bearing marks of violence, is sufficient proof of the homicidal death of the victim, and even when the body is not recovered, pure circumstantial evidence itself is sufficient to sustain a charge of murder. Therefore, the court found that the appellate intervention is not warranted, and that the appeal has no merit.



Decision 2012Do14788 Supreme Court of South Korea (2013)

Gender-based violence in general

After threatening and assaulting the Victim (wife) with a deadly weapon, the Defendant (husband) had violent sexual intercourse with his wife after they had started using separate rooms due to consistent dispute.” The Supreme Court found that the term ‘female’ as the victim of rape as provided by Article 297 of the Criminal Act included the offender’s legally wedded wife and that the crime of rape was established when the husband had sexual intercourse with his wife by disabling or hindering resistance through violence or intimidation in a sustained marriage. The Supreme Court stated that the legal interests protected by rape laws are not ‘women’s fidelity’ or ‘sexual chastity’ concepts based on the premise of a man as a current or future spouse, but a woman’s own sexual autonomy as a free and independent individual. Therefore, the Court concluded that the crime of rape was established in this forced marital sex case.



J.Y. Interpretation No. 457 Constitutional Court of Taiwan (1998)

Gender discrimination

The Regulations for the Handling of the Government Owned Housing and Farmlands Vacated by Married Veterans after Their Hospitalization, Retirement or Death distributes plots of state farmland to veterans. Section 4-III of the Regulations provides, “If the surviving spouse of the deceased veteran remarries but without issue or has only daughter(s), the land and housing shall be reclaimed unconditionally upon the marriage of the daughter(s); and the rights of the veteran may be inherited by his son, if any.” The Court explained that the government can allow a veteran’s surviving dependents to continue using and farming the state land distributed to veterans, and can extend the term “dependents” to a veteran’s children. In doing so, however, the government should consider the children’s ability to earn a living and cultivate the land, and must keep in mind the principle of gender equality enshrined in Article 7 of the Constitution and Article 10-VI of the Amendments to the Constitution. The Court held that Section 4-III of the Regulations violates this principle because it limits the right of inheritance of a deceased veteran to the veteran’s son without regard to the son’s ability or marital status. Thus, the Court held that Section 4-III of the Regulations discriminates against a specific group of women on the premise of marital status and sex. As such, the Court held that the government must revise Section 4-III of the Regulations to remove the discriminatory provision.



Supreme Court Decision 2002Do51 Supreme Court of South Korea (2012)

Sexual violence and rape

The Defendant raped the Victim in a car on several occasions. In addition to raping the Victim, the Defendant threatened the Victim and committed violence against the Victim. The lower court dismissed the rape charges filed by the Victim, finding that the six-month statute of limitations under Article 230 Item I of the Criminal Procedure Act had passed. The Supreme Court of South Korea reversed, noting that Article 2 (1) 3 of the Act on the Punishment of Sexual Crimes and Protection of Victims ("the Sexual Crimes Act") defines rape under Article 297 of the Criminal Act as a sexual crime and extends the statute of limitations to one year. While the Supreme Court reversed the lower court’s dismissal of the rape charges, it noted that since only the Victim can bring rape charges, any violence or threats of violence used in connection with the rape are elements of the crime of rape and cannot be prosecuted separately.



2013 (Kyo) No. 5 Supreme Court of Japan (2013)

Gender discrimination

The plaintiff husband, who had gender identity disorder and changed his gender from female to male, and the plaintiff wife requested the local public agency to amend their family registry to state the plaintiff husband as the father of their child. The child was born by artificial insemination and has no blood relationship with the plaintiff husband. The Supreme Court determined that, since the child was conceived by the plaintiff wife during marriage, he is presumed to be a child of the plaintiff husband under the Civil Code, and ordered the family registry to be amended.



Supreme Court Decision 2009Do2576 Supreme Court of South Korea (2009)

Sexual violence and rape

The Defendant was a part-time elementary school teacher who conducted health examinations for students. After checking the pulse of a student, the Defendant placed his hands inside the student’s clothes and touched her breasts. The lower court did not find this conduct to constitute “disgraceful conduct” against minors under thirteen years of age as provided by Article 8-2 (5) of the Act on the Punishment of Sexual Crimes and Protection of Victims, holding that the Defendant did not possess a subjective motive “to stimulate, stir up, and satisfy his sexual desires.” The Supreme Court reversed and remanded, holding that the subjective motive of the offender is not relevant in determining the crime of disgraceful conduct against minors. Instead, the Defendant’s conduct constitutes disgraceful conduct if his actions make an ordinary average person, in the victim’s same position, objectively feel sexual shame or offense. Additionally, the actions must be contrary to sound sexual moral norms, and thereby must have a negative effect on the victim’s mental growth. Finding that the lower court made an error in applying the law, the Court remanded the case to the Seoul High Court.



2007 (A) No. 1223 Supreme Court of Japan (2008)

Sexual violence and rape

The defendant broke into the house of the victim and, after indecently touching her, tried to escape. The victim was accidentally injured during the escape. The defendant was charged with the crime of Forcible Indecency Causing Injury. The Supreme Court concluded that, even though the injury was not directly caused by assault or intimidation, the defendant could be convicted of Forcible Indecency Causing Injury because the assault was committed closely before or after the indecent act.



Case of Presumption of Biological Child for a Foreign Born Child. 2008Reu2020, 3283 Seoul Family Court (2009)

Divorce and dissolution of marriage

The Plaintiff (Husband) and the Defendant (Wife) married in 2004. The Defendant, initially from China, went to China on December 25, 2006 without informing the Plaintiff. The Defendant returned to the Republic of Korea on January 10, 2007 but lived with a friend rather than the Plaintiff. In March 2007, the Defendant discovered she was pregnant but did not inform her husband. The Defendant gave birth to the child in Hong Kong on August 12, 2007. After giving birth, the Defendant notified the Plaintiff that a Hong Kong birth certificate requires the father’s signature. The Plaintiff proceeded to travel to Hong Kong and signed the certificate. The Defendant-wife returned to Korea in September 2007 and proceeded to live with a friend. The Defendant attempted to keep in contact with the Plaintiff but the Plaintiff refused to maintain such contact. The Plaintiff proceeded to file a divorce claim in February 2008, alleging that “from December 2006, the contact with the Defendant was completely cut off.” The Defendant countered with her own divorce claim. The Seoul Family Court dismissed the Plaintiff’s divorce claim but upheld the Defendant’s claim, finding that the fundamental breakdown of the marriage lied with the Plaintiff. While the court noted that the Defendant was also to blame, the court emphasized the fact that the Defendant attempted to initiate contact with the Plaintiff after giving birth to their child but the Plaintiff refused to make any such effort in restoring the relationship. Thus, the court ordered the Plaintiff to pay the Defendant three million won as compensation with a five percent interest rate per annum under the Civil Act. Additionally, the court ordered the Plaintiff to pay 400,000 won per month in future child rearing expenses, despite the fact that the Plaintiff was not registered as the child’s father in the Republic of Korea’s family registry. Citing Article 844 (1) of the Civil Act, the court held that there is a presumption that the wife’s husband is the father when the wife gives birth during the marriage. In determining the amount of child rearing expenses, the court considered the age and rearing condition of the child, the age and occupation of the Plaintiff and the Defendant, as well as other circumstances.



2004 (A) No. 2571 Supreme Court of Japan (2005)

Stalking

The defendant was indicted under the Stalker Regulation Law on a charge of stalking his former girlfriend. The defendant demanded many times by email and phone that she repay costs he incurred while they were dating. The defendant sent a letter to her threatening to distribute nude photos of her if she did not unblock him on her cell phone. The Supreme Court determined that, even though he sent the letter only once, his conduct amounted to “stalking” under the Stalker Regulation Law since his conduct was as a whole persistent and repetitive.



Supreme Court Decision 2008Da89712 Supreme Court of South Korea (2009)

Employment discrimination, Gender discrimination, Sexual harassment, Sexual violence and rape

The Plaintiff worked as an employee for a corporation in which the Defendant served as a supervisor. The Defendant, who had the authority to hire and fire employees, singled out the Plaintiff frequently for her passive nature and alleged inferior job skills. On numerous occasions, the Defendant forced the Plaintiff to touch his penis and engaged in other various acts of sexual misconduct. The lower court found that the Defendant’s sexual misconduct constituted an invasion of the Plaintiff’s right to self-determination. Additionally, the lower court found the employer, the Defendant-Corporation, liable for the supervisor’s sexual misconduct. The Supreme Court of Korea affirmed, finding the supervisor and employer liable. Under Article 756 of the Civil Act, an employer can be held liable for an employee’s action if the act is “related to the employee’s execution of the undertaking (for which he is employed).” Thus, the Supreme Court noted that when an employee injures another intentionally, even if the act is not related to the employee’s undertaking of his job responsibilities, employer liability still attaches if the misconduct is “apparently and objectively related” to the employer’s work. Additionally, if an employee commits an intentional act such as sexual misconduct, the court noted employer liability attaches where the misconduct was objectively related to the execution of the employer’s work. Noting the Defendant-employee’s authority to fire and hire employees, as well as his ability to punish the Plaintiff for resisting his unwelcome sexual advances, the Supreme Court held that the Defendant-employee took advantage of his superior position over the Plaintiff and therefore committed the sexual misconduct in a situation proximate, in terms of time and place, to his job responsibilities. Therefore, the court found the lower court correctly applied the law in finding employer liability, as the sexual misconduct was objectively related to the Defendant’s job duties.



1998 (O) No. 576 Supreme Court of Japan (2001)

Gender discrimination, Gender-based violence in general

The plaintiff had breast cancer and sued her operating surgeon who conducted a mastectomy arguing that he had a duty to inform her in advance that there are other treatments that do not require complete breast removal. The Supreme Court determined that the surgeon had a legal obligation to give her an opportunity to make an informed decision about her treatment, in this case by providing the name and address of medical institutions that conduct breast cancer operations that do not remove the entire breast.



Supreme Court Decision 2009Do3580 Supreme Court of South Korea (2009)

Gender discrimination, Gender-based violence in general, Sexual violence and rape

The Victim, born a male, identified as a female while growing up and was diagnosed with gender identity disorder. At the age of twenty-four, the Victim underwent a sex-change operation and was diagnosed as a transsexual by a psychiatrist. The Victim had cohabited with a male for ten years and had lived as a female for the past thirty years after the operation. Under Korean law, the victim of the crime of rape must be female. Thus, the central issue of the case pertained to the appropriate standard in determining the legal gender of a rape victim. The Supreme Court affirmed the lower court’s decision, holding that the Victim was a female under the law. In making this decision, the court noted that it must conduct a comprehensive evaluation of the biological, psychological and social factors, rather than merely relying on biology. Thus, in determining an individual’s gender, the Supreme Court noted that lower courts must consider the individual’s own sense of identity, including an individual’s behavior, attitude and characteristics. Additionally, courts must look to factors such as the individual’s discomfort regarding his or her biologically assigned gender, the individual’s sense of belonging and identity, whether the individual wants to obtain the genitals and other sexual characteristics of the opposite sex, whether a psychiatrist has diagnosed the individual as having transsexualism and whether the individual has received psychiatric treatment and hormone therapy, which failed to cure such symptoms. Lastly, courts must look at factors such as whether the individual has adapted to the opposite sex mentally and socially, has undergone sex reassignment surgery, identifies with such gender, wears the clothes and carries him or herself as the opposite sex, and whether others accept the changed gender. In this case, the Victim identified herself as a female and did not associate herself as a male, underwent a sex-change operation, and lived her life as a female for over thirty years after the operation. Thus, the court concluded the Victim was a female, and a rape was committed with knowledge that the Victim was a female.



2012 (Ju) No. 2231 Supreme Court of Japan (2014)

Gender discrimination

The plaintiff was a physiotherapist in a managerial position at her employer. She requested and was granted maternity leave but was not allowed to return to her position at the end of the maternity leave. She filed a lawsuit against her employer, asserting that there was a violation of the Equal Employment Opportunity Law. The Supreme Court found in favor of the plaintiff because the Equal Employment Opportunity Law forbids disadvantaging employees based on the employee’s pregnancy, childbirth, request for maternity leave, or request for transfer to lighter work.



Case of Liabilities for Sexual Harassment, Forced Drinking, Etc. 2006Na109669 Seoul High Court (2007)

Sexual harassment

The Plaintiff was hired by Company and placed in the marketing team of the marketing division. The Defendant served as the chief of the marketing division and the marketing team. On several occasions, the Defendant inappropriately touched the Plaintiff’s shoulders, legs, and breasts at work and work events. Additionally, the Defendant forced the Plaintiff to drink liquor on several occasions despite the Plaintiff informing the Defendant that she could not drink as a result of a stomach illness. At work and dinner parties, the Defendant often required the Plaintiff to sit next to him and often placed his arm around the Plaintiff’s waist. The Seoul High Court determined that the Defendant’s sexual actions violated the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, after considering factors such as the respective ages of the parties and their relation to one another, the location of the behavior, the existence of a sexual motive, the degree of the behavior, and the frequency of such behavior. In making a determination of unlawful conduct, it must be established that such behavior contravened social customs and order. Applying this standard to the facts of this case, the court found that the Defendant frequently touched the Plaintiff’s neck, shoulder, breasts, and waist at the workplace and at social events. Noting that the Defendant supervised and controlled the Plaintiff at work, the court found there was a clear sexual motive as the conduct was frequent and continuous over time and such conduct embarrassed and humiliated the Plaintiff. Consequently, the Defendant’s behavior violated the Plaintiff’s personal rights and was against societal norms and customs. In addition, the court found that the Defendant violated the law by forcing the Plaintiff to drink against her will. Therefore, the court awarded the Plaintiff damages of 30 million won with 5% interest per annum.



2009 (JinNa) No. 9 Supreme Court of Japan (2010)

Custodial violence

The plaintiff father was granted sole custody of his child in divorce proceedings in Wisconsin, USA. The defendant mother took the child to Japan. The plaintiff father sued for custody at the Osaka High Court. The court found in favor of the defendant mother because the father had a history of violence, the child lives a stable life and had many friends in Japan, and the child desired to live with the defendant mother.



Supreme Court Decision 2005Meu1689 Supreme Court of South Korea (2005)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The Plaintiff sought a divorce from the Defendant. Upon requesting approval of the divorce from the Defendant, the Plaintiff was slapped by the Defendant. Additionally, the Defendant physically confronted the Plaintiff on a separate occasion, resulting in fractures of the Plaintiff’s face and neck. Despite such physical abuse, the lower court found that the relationship between the Plaintiff and the Defendant did not reach a degree in which it was impossible to restore. On appeal, the Supreme Court reversed, finding that the use of violence in a conjugal relationship cannot be justified. In addition to emphasizing the severity of the Plaintiff’s injuries, the Supreme Court noted that the lower court should have reviewed in detail how the Defendant’s use of violence influenced the marital relationship, whether the marital relationship between the Plaintiff and the Defendant reached a point in which it was impossible to restore due to the loss of love and trust that should form the foundation of the marital relationship, and whether it would prove unbearable for the Plaintiff to remain in the relationship. Unless it can be proven in the affirmative that the parties can restore the relationship and it would not be unbearable for the Plaintiff to remain in such a relationship, the lower court should grant the Plaintiff’s claim for divorce. Thus, the lower court erred when it failed to examine these factors and the extent of responsibility between the Plaintiff and the Defendant. Consequently, the Supreme Court reversed the finding of the lower court and remanded.



2007 (A) No. 520 Supreme Court of Japan (2007)

Sexual harassment

The defendant was indicted under the Stalker Regulation Law on a charge of stalking his former girlfriend by sending two rose bouquets and five letters. The defendant argued that the Stalker Regulation Law is unconstitutional because it infringes a “right to fulfill romantic feelings”. The Supreme Court rejected the defendant’s argument opining that even if a right to fulfill romantic feelings were to exist, the purpose of the Stalker Regulation Law is legitimate and its contents are reasonable.



The Case of Fauzia Parveen Supreme Court of Pakistan (2013)

Sexual violence and rape

Proceedings were initiated on basis of a press clipping dated 4th November, 2013, indicating the gang rape of a deaf dumb woman, Mst. Fauzia Parveen who took it upon herself to go to the Magistrate when no one believed her and submitted an application for a medical examination (which was ultimately granted and conducted clearly revealing evidence of rape). The Court determined that the facts support the allegation of rape and also that the police were negligent in dealing with the matter and tried to cover up their negligence. The Court notes that, regardless of the inconsistency regarding the number of men who raped the victim, “as per the medical report the happening of the incident cannot be denied”. Quite importantly, the Court seeks accountability for the incident and confirms police negligence in handling the complaint (e.g., the victim’s statement was not properly documented by the investigating officers). The Court goes so far as to say, “Prima facie, we are of the opinion that the police has been influenced on account of extraneous reasons, because no action has been taken either by the police or the high ups, despite the fact that the matter was brought to their notice.” The Court directed the Inspector General Police, Punjab to initiate an independent investigation and criminal proceedings against the negligent police officers and involved officials.



2004 (Ju) No. 247 Supreme Court of Japan (2004)

Divorce and dissolution of marriage

The plaintiff husband filed for divorce arguing that his wife was impossible to live with due to her neurosis for cleanliness. The defendant wife refused to agree to divorce because she had a seven-year-old child who needed child support. The plaintiff dated another woman and was living separately from the defendant for two years and four months before filing for divorce. The Supreme Court refused to grant divorce because (i) the plaintiff destroyed family trust by dating another woman, (ii) the period of living separately was not long, (iii) their child was still only seven years old, and (iv) it would be difficult for the defendant who suffered from a neurosis to find a job to support herself.



The State, Mai and others v. The State, Abdul Khaliq and others Supreme Court of Pakistan (2011)

Sexual violence and rape

In this highly publicised case, the Supreme Court considered ten matters - eight are appeals by the victim against the acquittal of the accused rapists; one appeal has been filed by the convicted and the one is a suo moto action of the Court recalling the judgement in the gang-rape case that acquitted five of the six accused. Fourteen men were indicted in the gang rape of Mukhtar Mai in 2002, undertaken in revenge for an alleged breach of decorum by her brother and sanctioned by a panchayat (village council). Ultimately, eight of the accused were acquitted due to lack of evidence, and the remaining six were given death sentences by the trial court. The High Court then acquitted five of the six and converted the death sentence of the last accused to a life sentence. The petition of the victim asserts that, amongst other things, it is erroneous to hold that the delay in lodging of a complaint is fatal to the prosecution case. The petition also asserts that it is erroneous to hold that the testimony of a rape victim requires corroboration. In this case there was a conclusive medical report confirming rape and the rape did not take place in private (as a matter of fact, the victim was thrown out of the room partially undressed for all to see). The Court set aside the acquittals and sentenced them on each count to imprisonment for ten years, running concurrently.



2001 (Ju) No. 1066 Supreme Court of Japan (2003)

Employment discrimination

The plaintiff exercised her right under Japanese law to reduce her working hours to spend time taking care of her child. The internal policy of her employer stated that employees who did not attend work for 90% or more of work days are ineligible for a bonus. The plaintiff’s employer counted the plaintiff’s shortened working days as absences and refused to pay her a bonus. The plaintiff sued her company for a bonus. The Supreme Court determined that the employer’s internal policy violated public policy and the employer should have counted actual working hours when calculating attendance rate.



The Case of Naila Farhat Supreme Court of Pakistan (2009)

Acid violence

The acid violence case of Mst. Naila Farhat was brought in November 2008. In 2003, the perpetrator sprayed acid on the (then) 13 year old victim’s face in retaliation for her refusal of a marriage proposal. Ultimately, he was sentenced to 12 years imprisonment and ordered to pay 1.2 million rupees in damages. However on appeal to the High Court, the Judge stated that if he paid the fine he would not be imprisoned. In April 2009, the victim appealed to the Supreme Court and was the first case on an acid attack to reach the Supreme Court. The case was heard by the Chief Justice at his own initiative on the 20 November 2009, not only highlighting the concept of acid violence (and giving the perpetrator a higher sentence than the first lower court as well as imposing a fine), but there were also important recommendations given to the government for (a) providing free medical treatment and legal aid to acid/burn victims to facilitate their recovery; and (b) the development of relevant legislation to specifically deal with acid violence in Pakistan. The case lead to the creation of the Acid Control and Acid Crime Prevention Bill.



J.Y. Interpretation No. 147 Constitutional Court of Taiwan (1976)

Divorce and dissolution of marriage

Article 1001 of the Civil Code provides that spouses have a “mutual marital obligation to cohabit” absent legally justifiable reasons for not cohabiting. The Court held that a husband’s taking of a concubine violates the “marital obligation of fidelity” and qualifies as a legally justifiable reason for the wife not to cohabit with the husband. Thus, the Court held that a husband’s taking of a concubine releases his wife from her marital obligation to cohabit, but only for the period during which he maintains the concubine.



The Case of Amina Ahmed Sessions Court, Vehari Multan (2014)

Sexual violence and rape

Two men were sentenced to death for the rape and murder of a 15-year-old girl in 2011. The court acquitted two suspects due to lack of conclusive evidence. The victim, Amina Ahmed, had gone missing from her home in Luddan village on December 26, 2011. Her dismembered body was found three days later and an autopsy confirmed that the victim was gang-raped and murdered. Luddan police arrested four suspects within 72 hours. During interrogation, two of the accused (Zareef and Faisal), confessed that they had kidnapped the girl and raped her for three days as “part of their new-year celebrations”. The accused said they murdered the victim and later dismembered her body on the belief that the victim was a prostitute. After two and a half years of proceedings, the Sessions Court found them guilty of the rape and murder and sentenced them to death. They were also fined Rs300,000 each, to be paid to the legal heirs of the victim as compensation.



Economic Cooperatives of Yongxinnansha Shares v. Subdisctrict Office of Chancheng District of Foshan City Intermediate Court of Foshan City, Guangdong Province (2014)

Gender discrimination, Harmful traditional practices

In 2012, the plaintiff claims their shareholder status in Nansha economic cooperative, and alleged the local subdisctrict office to affirm their qualification. The subdisctrict office affirmed and granted certificate. Nansha economic cooperative thereby sued the Subdistrict office for its administrative decision. Nansha alleged that according to article 15 of the Article of Stockholding of the Precinct of Yongxin: women married before December 31, 1992 shall be regarded as “out-married” women and shall not be given the right to share dividends, nor their shareholder qualification. The trial court finds that according to Article 61, section 3 of Law of the People's Republic of China on the Organizations of Local People's Congresses and Local People's Governments, Article 27, 36 of Law of the People's Republic of China on the Organization of the Villagers Committees; and Article 4 of rural collective economic organization regulation of Guangdong Province, the distribution of rural collective property shall not violate other laws and regulations of China, and shall not infringe other people’s legal rights. Article 15 of the Stockholding Article is in violation of the equal right of women and therefore invalid. The intermediate court affirmed the judgment.


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.



People’s Procuratorate of Tianchang City Anhui Province v. Wang Chuanbao, Qu Qinchen People’s Court of Tianchang (2014)

Statutory rape or defilement, Sexual violence and rape

The defendants Wang Chuanbao and Qu Qinchen were charged of crime of rape for repeatedly raping the victim Wang, and crime of coercive indecency for violently digging and touching Wang’s genitals. The prosecutor alleges that according to Article 25 section 1, Article 236 section 1 and Article 237 section 1 of Criminal Law of PRC, Chuanbao and Qinchen raped and molested Wang “with violence or threats”, constituting the crime of rape and coercive indecency. Chuanbao argues that he did not have sex with Wang, and all the evidences are hearsay evidence, thus is not guilty. Qinchen argues that he did not commit the crime of coercive indecency because taking off the trousers of the victim is to have sex with Wang. After Wang refused to do so, Qinchen stopped raping her and has no mens rea to molest her. The court finds that the fact the Chuanbao and Qinchen raped Wang had also been proved by the testimony of Qinchen’s girlfriend, one of the witnesses, therefore is founded. The act of coercive indecency is regarded as absorbed by the act of rape and thus would not be convicted separately under this crime.


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.



People’s Procuratorate of Ruian City Zhejiang Province v. Li Intermediate People’s Court of Wenzhou (2014)

Sexual violence and rape

Li was charged of crime of rape for raping the victim Zhang at her drunk. Li gets to know Zhang through wechat, a social app, three weeks before he asked Zhang out for dinner. After Zhang was drunk, Li took her to a hotel and had sex with her. The trial court finds Li guilty. Li appealed, arguing he and Zhang are in a relationship and there is no evidence Zhang was drunk at that night. There is also doubt about the examination of the sample collected from Zhang’s vagina and therefore it cannot be used as evidence against Li. Furthermore, Li has nephrosis and cannot have an erection, therefore he could not possibly rape Zhang. The appellate court finds that the raping fact is proved by not only the sample examine result, but also witness testimony, video recording and victim statement, and therefore are reliable. There is no evidence showing Li and Zhang are in a relationship. And that according to expert’s opinion, nephrosis would not have effect on sexual erection. Therefore, the conviction is affirmed.


Public Prosecutor v. Besar Bin Ahmad Intermediate Court of Brunei (1996)

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

The defendant pleaded not guilty to raping a 16 year old female, punishable under section 376(1) of the Penal Code, and the alternative charge of attempted rape, punishable under section 376(2) of the Penal Code. The court was satisfied that the complainant’s complaint to her mother was made by her at the earliest possible moment, which was consistent with her complaint to the police and other evidence, therefore corroborating the complainant’s evidence. The court found the complainant credible, and accepted her evidence indicating that she did not consent. In addition, the complainant was examined by a doctor, who found numerous injuries and concluded in her report that there was some injury to the complainant’s vulva, which may be due to attempted sexual intercourse. The court found, however, that the doctor did not seem sure whether penetration occurred. Regarding whether there was penetration, the court found the complainant’s evidence unreliable, and therefore reasonable doubt. The court convicted the defendant of attempted rape and voluntarily causing hurt. The court imposed sentences of 10 years imprisonment and 12 strokes.



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.


Public Prosecutor v. Abdullah Bin HJ Yakub High Court of Brunei (1991)

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

The defendant pleaded not guilty to two charges of raping a 14 year old female, under sections 376(1) and (2) of the Penal Code, and having carnal knowledge of a female under the age of 16 years, under Section 2 of the Unlawful Carnal Knowledge Act, Cap. 29. The fact of sexual intercourse was not disputed. However, because the complainant was under 14 years old when the offences occurred, her consent was not relevant to the charge of rape. Nonetheless, because of her consent, the defendant was acquitted of the charge of aggravated rape. The court convicted the defendant of rape, and imposed a sentence of four years imprisonment and six strokes. The court also convicted the defendant of having carnal knowledge of a female under the age of 16 years, and imposed a sentence of three years imprisonment and six strokes. The sentences of imprisonment were concurrent, with the defendant to serve four years total. The sentences of whipping were consecutive, with the defendant to receive 12 strokes total.



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 1 woman and 34 children. Throughout 1988 to 2008, the defendant Lan Shushan independently and with his colleagues Tan Ruxi etc trafficked 1 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.


Public Prosecutor v. Billy Metussin High Court of Brunei (1993)

Gender discrimination, Gender violence in conflict, Gender-based violence in general, Sexual violence and rape, Statutory rape or defilement

The defendant pleaded not guilty to one charge of attempted rape of an 11 years and 10 months old female, under section 376(1) of the Penal Code. The court found that the complainant gave different versions as to the events that occurred. It found the complainant’s evidence unreliable. The court concluded that the complainant was the initiator of the events that led to the attempted intercourse. The court found that there was an attempt at sexual intercourse. In view of medical evidence that revealed that the hymen was intact and that ejaculation may have occurred outside the complainant, the court found doubt as to whether penetration occurred. The court highlighted that consent was not a defense to rape as the complainant was under the age of 14 at the time at issue. Nonetheless, consent becomes relevant to punishment, as a minimum sentence is prescribed for rape which occurs “without the consent of the victim”. The court found that the complainant gave her consent to the defendant’s attempt to have sexual intercourse with her and that she gave a real consent, not vitiated by immaturity or by any of the other factors specified in section 90 P.C. The court convicted the defendant of attempted rape and imposed sentences of one year imprisonment and three strokes.



Liu v. Zhu Court of Huilai County, Guangdong Province (2013)

Divorce and dissolution of marriage, Sexual violence and rape, Sexual harassment

The plaintiff Liu alleged that she had a illegitimate son with a Yang when she was working in Sichuan province. Soon after that, she was having another child with a Chen. Since Chen was not going to perform his duty as a father, Liu decided to give birth to the child and raise it herself. Several months later, Liu’s first son, Yang was introduced by a matchmaker to the respondent as an adopted son. Out of the strait situation Liu faces, she agreed. Several days later, the respondent Zhu proposed since the son is too naughty and needs his mother to look after him, it is better that Liu came along. Liu came and Zhu’s little brother asked Liu to marry Zhu, and they will pay her 100,000 as gift, but Liu need to take care of Zhu. Liu agreed. After the wedding, Liu found out the respondent was disabled and sit on a wheelchair, having no sexual capability. However, the respondent kept sexually harassing the plaintiff. Plaintiff argued that she was cheated to get married, and Zhu lacks sexual ability, therefore she sued for divorce. The court finds that although the marriage is facilitated by a matchmaker, the two have lived together for many years and have developed some feelings for each other. Plaintiff’s arguments are not supported by any evidence, thus are not considered by the court.


Public Prosecutor v. HJ Bidin Din HJ MD Noor High Court of Brunei (1995)

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

The defendant pleaded not guilty to five charges of rape of an approximately 13 year old female, under section 376 of the Penal Code. The court emphasized that these were rapes only because of the complainant’s age, not because any force was used against her. The court noted that the fact that a rape is committed with consent does not lower the standard of proof which is required of the act itself. The court reasoned that it would be dangerous to convict in reliance on the complainant’s evidence, which had several inconsistencies. Additionally, the testimony of an examining doctor showed that the complainant’s evidence was suspect. The complainant denied having had sexual intercourse with anyone in the date range at issue, which did not agree with the evidence of the examining doctor, which the court accepted. The court found that if she cannot be believed as to that, it could not rely on her uncorroborated evidence on any of the charges. The defendant was acquitted of all five charges and the court ordered his discharge.



People’s procuratorate of Nanjing City Jiangsu Province v. Ji Xingpeng Supreme Court of Jiangsu Province (2014)

Domestic and intimate partner violence

The defendant Ji Xingpeng, husband of his 22 year-old wife, was charged of crime of intentional homicide for murdering his wife. The couple were married in 2012. Every since then, defendant was doubtful about his wife’s loyalty to him and thought she has affairs with other persons, therefore he always beat his wife after drunk. On a night in 2013, Ji was drunk again and quarreled with the victim. Holding a knife, Ji hacked and poked the wife more than ten times, causing his wife die immediately. Intermediate People’s Court of Nanjing City found that the act of the defendant constituted intentional homicide, and therefore decided a death penalty with two-year’s probation. The victim’s parents appealed that as for the civil suit collateral to criminal proceedings, more compensation shall be made. The Supreme Court of Jiangsu Province finds that the appellants did not provide any evidence for their claims, therefore the decision of the lower court is affirmed.


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.



Wang v. Luo Court of Chaling County, Hunan Province (2013)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The plaintiff alleged that she married the respondent in 2012 and had a son in the same year. However, the respondent is a male chauvinist and has a very bad temper. He often maltreated the plaintiff. Especially during the plaintiff’s pregnancy, the respondent urged the plaintiff to have an abortion. The abortion was not carried out only because they had no money at that time. Therefore, the plaintiff sought a divorce and to submit an Agreement of divorce to the court. The court found that since the respondent did not show up at the trial, the plaintiff could not prove the authenticity of the evidence. According to Article 32 of Marriage Law, the prerequisite of a divorce judgment shall be the certainty of the loss of affection between the couple. Since the plaintiff could not prove such certainty, the divorce was not allowed.


Public Prosecutor v. Mohd Tamin Bin HJ Ahmad Intermediate Court of Brunei (1995)

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

The defendant pleaded not guilty to three charges consisting of (i) attempted rape, under section 376 of the Penal Code, (ii) causing harm, under section 323 of the Penal Code, and (iii) theft of personal property, under section 379 of the Penal Code. The court found the complainant credible, and her version of the events consistent with a note she wrote shortly after the incident and her evidence in court, despite minor discrepancies and details left out in the note. On the contrary, the court found the defendant’s version far-fetched and unacceptable. Corroborating evidence for the complainant included her distressed condition as observed by a witness immediately after the incident, her note, the injuries a doctor found on her and the discovery of her torn underwear on the road-side. The court found that the defendant made an effort to have sexual intercourse with the complainant against her will and without her consent. The court convicted the defendant of (i) attempted rape, with a sentence of six years imprisonment and four strokes, (ii) causing hurt, with a sentence of one month imprisonment and (iii) theft, with a sentence of three months imprisonment. The sentences were to run concurrently.



Guo Jing v. East Cooking Vocational Skills Training School West Lake District Court of Hangzhou (2014)

Gender discrimination, Employment discrimination

The plaintiff alleged that in June 2014, she saw the recruiting advertisement of the respondent on the Internet, knowing that the respondent want to recruit two copywriters. Guo submitted her resume accordingly. However, Guo has not got reply since then. With the certainty that she is capable of the position, Guo called the School, asking about the job. Guo was told that since the position requires many business trips, only male can be considered. Guo emphasized that she can adjust to those business trips but was still refused by the same reason. Guo therefore brought this lawsuit on the basis that the respondent’s action is in violation of Article 3 of Employment Promotion Law of the People's Republic of China, which requires that “Workers shall be entitled by law to enjoy the right to equal employment and to seek their own employment. No worker seeking employment shall suffer discrimination on the grounds of ethnicity, race, gender or religious belief.” The respondent argues that because of the specialty of the position, the copywriter should live in the same room with the president of the school, all of whom are male, while during the business trips. It is out of the consideration and care to the plaintiff that they did not recruit her. The court finds that since the respondent did not provide any evidence to prove the specialty of the position and the legal reasons for the unsuitability of female worker, it violates the accorded rule: Article 3, 12, 13 of Labor Law, which states “Labourers shall have equal right to employment and choice of occupation”, “Labourers, regardless of their ethnic group, race, sex, or religious belief, shall not be discriminated against in employment”, “Women shall enjoy the equal right, with men, to employment”.


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.



Zhao Fei, Yang Fang v. Cao Yin, Cao Chaoran, Luo Shihui etc. Hechuan District Court, Chongqing (2014)

Sexual violence and rape, Femicide

In 2012, the deceased respondent, Cao Yin cheated the deceased victim, Zhao Jing, to a Tap Water Company for interview, and arranged Zhao to start to “work”. On the next day, Cao tied Zhao up and brought her to the duty office of the company, forcing her to have sex with him. After that, afraid of being caught, Cao killed Zhao. Cao was caught finally by the police. In 2013, Cao was sentenced to death by First Intermediate Court of Chongqing. The judgment has been affirmed by the Supreme Court of Chongqing and Supreme Court of PRC. Cao has been executed. The plaintiff alleged that after Cao Yin’s death, his successors first in order shall be responsible for the damages caused. The plaintiff also sues against the Tap Water Company for their lack of due diligence. The court finds that, among the four respondents, all of whom are the successors first in order of Cao Yin, Cao Chaoran and Luo Shihui clearly quit their right of inheritance. Therefore, only the other two are responsible.


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.



Decision No. 1028 k/PID SUS/2009 Supreme Court of Indonesia (2009)

Gender-based violence in general, Statutory rape or defilement, Trafficking in persons

The defendant paid his friend to bring the victim, a 14-year-old child, to defendant’s café under the pretext of attending a birthday party. After defendant’s friend abandoned the victim at the café, the defendant told the victim to work as a server but also forced her to have sex with the male clients and kept all payments received for the victim’s services. Because the defendant used fraud to bring the victim to the café and exploited the victim by forcing her to act as a sex worker for profit, the Court of First Instance found the defendant guilty of human trafficking under section 2(1) of Law No. 21 of 2007 and sentenced the defendant to 10 years imprisonment with a fine of Rp. 120,000,000. The High Court upheld the lower court’s decision but amended the defendant’s sentence to seven years imprisonment. On appeal, the defendant argued that the High Court’s sentence of seven years was an error since the court did not consider that the victim had stayed with the defendant’s friend before coming to the café and therefore the health and condition of the victim may have worsened before coming to the defendant. The Supreme Court upheld the decision of the High Court and did not rule on the sentencing since it was a “judex facti matter (question of fact of the case)”.



In re M Insa, Decision No. 12/PUU-V/2007 Constitutional Court of Indonesia (2007)

Gender discrimination, Harmful traditional practices

Petitioner, an Indonesian male, challenged the constitutionality of a marriage law requiring monogamy with an exception that allows polygamy only with the consent of the wife and the permission of the court (Law Number 1 Year 1974 regarding Marriage). The law requires the husband to submit an application to the court of his domicile with his wife’s consent in order to engage in polygamy. Petitioner argued that because the law required the husband to obtain consent from his wife and the court before engaging in polygamy, it violated his right to freely exercise his religion because the teachings of Islam allow polygamy. The government argued that Islamic principles encourage monogamy and only allow polygamy when a wife allows her husband to re-marry for the benefit of their marriage. The court held that the practice of polygamy historically had degraded the status of women and the teachings of Islam required the preservation of the dignity of women. In addition, since the purpose of marriage is to “achieve peacefulness (sakinah),” men are required to first obtain their wives’ consent before engaging in polygamy, thus respecting their wives as legally equal partners. Therefore, the Court rejected petitioner’s claims and held the laws constitutional as they guarantee the recognition of women’s rights and allow husbands to exercise polygamy in accordance with the teachings of Islam.



Decision No. 212 K/Pid.Sus/2011/PN.Pso Poso District Court (2011)

Abortion and reproductive health rights

The defendant, a physician, agreed to perform an abortion for a woman who was 20-22 weeks pregnant for Rp. 800,000. The defendant performed the abortion in her own home using a ‘Gastrul Pill’ and was criminally charged for intentionally performing an abortion. The defendant confessed to performing the procedure and did not contest the indictment. The court found that the defendant performed an illegal abortion because the woman did not have a prior examination from a counselor and defendant did not have a certificate endorsed by the minister. The court sentenced the defendant to 10 months imprisonment and a fine of Rp. 10,000,000.00.



Decision No. 190 K/PID SUS/2007 Supreme Court of Indonesia (2007)

Statutory rape or defilement, Trafficking in persons

The defendant offered the victim a job as a nanny in her house but instead took her to a café and forced her to work as a sex worker. The defendant threatened to deprive the victim of food if she refused to work and kept 50% of the victim’s earnings along with a portion to pay for boarding and lodging. Defendant was charged with economic and sexual exploitation of a child for purposes of benefiting oneself. The High Court of Jambi found the defendant guilty and sentenced the defendant to four years imprisonment and a fine of Rp. 500,000. On appeal, the Supreme Court affirmed the decision of the High Court in part, holding that the High Court used an outdated sentencing law and reduced the sentence to three years imprisonment and a fine of Rp. 500,000.



Equal Opportunities Comm’n v. Dir. of Educ. High Court of the Hong Kong Special Administrative Region (2001)

Gender discrimination

The Equal Opportunities Commission (the “Commission”), which is an entity formed pursuant to Hong Kong’s Sex Discrimination Ordinance, Chapter 480 (the “Ordinance”), brought a challenge against the Director of Education (the “Director”), alleging that the system for transferring students from primary to secondary school (the “SSPA System”) discriminated against students on the basis of sex in violation of the Ordinance. The discrimination affected both sexes, but it primarily affected females. There were three structural elements of the SSPA system that allegedly discriminated against students: (1) A scaling mechanism, which scaled the scores of all primary students in their school assessments to ensure that they could be fairly compared with scores given by other primary schools; (2) a banding mechanism, which banded all students into broad orders of academic merit; and (3) a gender quota, which ensured that a fixed ratio of boys and girls were admitted to individual co- educational secondary schools. Though the structural elements were facially neutral, they were being employed on a gender basis. The Director argued that there were legitimate differences between boys and girls at younger ages, which justified the SSPA’s contested elements and, therefore, the SSPA simply removed initial gender bias inherent in the system. The High Court of Hong Kong Special Administrative Region held that all three allegedly discriminatory elements of the SSPA system were in fact discriminatory and contrary to the Ordinance. The Court ordered—as requested by the Commission—that the Director eliminate sex discrimination against girls within a reasonable time and that a user-friendly mechanism be put in place to deal with and remedy complaints of sex discrimination by individual parents on behalf of their children.



HKSAR v. Cheung Cho-Fat High Court of the Hong Kong Special Administrative Region Court of Appeal (2010)

Domestic and intimate partner violence

A Hong Kong man pleaded guilty to two counts of throwing corrosive fluid with intent to do grievous bodily harm at his wife and daughter. The man and his wife were in their early 70s. The facts showed that, after a 50-year marriage, the man and his wife separated. The man, in an angered state, went to his wife’s home with two jars of a liquid that was 88% sulphuric acid. The man threw one jar at his wife’s face, causing her to run. The wife ran and hid behind her daughter, but the man still launched the second jar of acid at them, causing them both burns. The wife suffered second degree partial thickness burns to her face, eyelids and arms, leaving her in the hospital for four days. The daughter suffered first-degree burns to her neck and arm. The man was sentenced to four years’ imprisonment for each crime, which he was to serve concurrently. The man appealed his sentence, claiming the following: (1) The sentences were wrong in principle because, in coming to the factual circumstances in which the offenses had been committed, the judge took into account evidentiary material that was not properly before the court; and (2) by making such impermissible findings and by failing to give proper weight to the matters advanced in mitigation, the judge imposed a sentence that was manifestly excessive. The High Court dismissed the man’s appeal. As to the first count, the High Court held that the evidence that the judge took into account would have made no practical difference to the sentence because, in part, acid throwing is “a particularly vicious crime, one viewed with understandable abhorrence by right thinking members of society.” As to the second count, the High Court compared the case at hand to precedent cases and held that the sentence imposed in this case was “entirely appropriate.”



Ng Hoi Sze v. Yuen Sha Sha High Court of the Hong Kong Special Administrative Region Court of Appeal (1999)

Gender violence in conflict

The plaintiff, Ng Hoi Sze and defendant Yuen Sha Sha shared a college dorm room. Yuen Sha Sha discovered a video recorder that plaintiff’s boyfriend, Tse Chi Pan, placed in the room, which recorded Yuen Sha Sha while she was undressing. Ms. Sha Sha had Mr. Pan expelled from the University and the plaintiff was expelled from the dorm room. The plaintiff filed a nuisance claim against Ms. Sha Sha and her boyfriend, Fung Ka Fai, the other defendant, who was a student at another university. The plaintiff moved to amend the complaint to introduce a claim for sexual harassment under the Sex Discrimination Ordinance, Cap. 480. Specifically, the plaintiff alleged that there was unlawful sexual harassment in contravention of section 39(3) of the Sex Discrimination Ordinance, Cap. 480, by the defendants’ engaging in unwelcome conduct of a sexual nature in relation to the plaintiff and, consequently, the plaintiff suffered embarrassment, humiliation and shock. The plaintiff sought damages under section 76 of the Ordinance. The Ordinance stated that a person sexually harasses a woman if the person (i) makes an unwelcome sexual advance, or an unwelcome request for sexual favors to her, or (ii) engages in other unwelcome conduct of a sexual nature in relation to her in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that she would be offended, humiliated or intimidated, or the person, alone or together with other persons, engages in conduct of a sexual nature that creates a sexually hostile or intimidating work environment for her. The question in this case was whether there were allegations that the defendants, or either of them, engaged in unwelcome conduct of a sexual nature in relation to the plaintiff. The first judge held that the plaintiff’s claim was facially deficient because she did not plead any sexual conduct that she found offensive. The second judge agreed with the first judge’s assertions. However, notably, the second judge stated that when a female student’s roommate engages, in their shared room, without the female student’s consent, in conduct of a sexual nature with another person, that conduct is capable of being considered sexual harassment of the female student. A reasonable person would have anticipated that the female student would be offended by such conduct. Thus, had the plaintiff simply properly pleaded what the sexually offensive conduct was, she would have stated a claim against the defendants for sexual harassment and would have been able to pursue a strong claim against the defendants.



HKSAR v. Cheng Kwong-Chung Hong Kong Special Administrative Region Court of Appeal (2001)

Trafficking in persons

Cheng Kwong-Chung was charged with four offenses. Wong Lai-Ming was charged with two offenses. Cheng’s first and third charges alleged conspiracy to possess a false instrument, contrary to section 75(1) and section 159A of the Crimes Ordinance, Cap. 200. Count 1 alleged that Cheng conspired with other defendants to possess a false passport, which he knew was false. Cheng and Wong also allegedly conspired to provide Lu Quifeng to enable her to possess a false US passport with knowledge that it was false. Several other fraud charges were brought. The prosecution alleged that Lu and another defendant were to be smuggled from Hong Kong to the US. Neither Cheng nor Wong presented any evidence at trial. Cheng appealed, arguing that the verdicts were unsatisfactory and against the great weight of the evidence. The Court held that there was “an abundance of evidence on which to convict” of both conspiracies in counts one and four, citing evidence adduced and presented at trial. Cheng also argued that there was insufficient evidence for the trial court judge to find that the instrument that was the subject of charge one was false. The Court also held that the trial court judge’s conclusion that whatever passport Cheng held must have been false was not erroneous. Cheng’s appeal was dismissed. Wong also appealed, arguing that the trial judge had insufficient evidence upon which to find that it was in fact Wong who committed the crime. The Court held that there was no ground upon which to disturb the trial judge’s conviction. The evidence against Wong included standard procedures from airline employee’s standard procedure of matching passports against the person who presents it and the fact that Wong never reported her passport lost or stolen. Cheng and Lu appealed their sentences as manifestly excessive because their offenses were part of one course of conduct. The Court held that the course of conduct was sophisticated and, further, stated, “We take the view that offences such as these are very serious. They involve the exploitation of persons on the Mainland, for substantial sums, exploitation which is no doubt financially crippling to the emigrant and his or her family and which puts the emigrant at continuing risk. Beyond that and importantly, the offences deliberately seek not only to undermine Hong Kong’s laws but also the immigration laws of other jurisdictions and to enable persons to travel on aircraft when they are not authorized to do so. It hardly needs to be emphasized that conduct of this kind is to be treated by our courts with a firm hand, not least when air security and international immigration controls carry an importance greater than ever before.”



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.



HKSAR v. KKK High Court of the Hong Kong Special Administrative Region Court of First Instance (2011)

Sexual violence and rape

Defendant, a male, was charged with six counts of rape and one count of indecent conduct towards a child under the age of 16. All the crimes were committed against Defendant’s three daughters. Defendant pled guilty to all charges. The victim of four charges of rape was his eldest daughter, whose rapes occurred over a three year period, when she was between 12 and 14. The other two rape charges occurred against a younger daughter, who is a twin, when she was 10 and 11. The other twin girl was the victim of the indecent conduct charge. One rape of the eldest daughter took place in the presence of her mother, who was also naked, adding to the humiliation and dominance that Defendant was attempting to exude. The eldest daughter even became pregnant as a result of one of the rapes and was forced to have an abortion, while only being 14 years old. The Court sentenced Defendant to 23 years and seven months’ imprisonment. It analyzed the cold and callousness with which Defendant committed his crimes and the seriousness of the crimes. The Court described Defendant’s crimes as “horrific,” noting that Defendant “treat[ed] his children as though they were less than human, as just sexual objects who existed solely to satisfy his lust . . . .” The Court further stated that “language seems quite a poor medium for conveying the depth of feeling that these crimes generate. Words such as ‘revulsion’ and ‘despicable’ seem quite inadequate in expressing the court’s and society’s denunciation of his conduct. . . . [W]hat this defendant did is wholly contrary to the values by which Hong Kong people live and the courts will reflect and affirm that fact by not just making statements condemning that conduct but by imposing sentences sufficiently severe and substantial to protect and preserve those values.”



HKSAR v. Lau Chung-tim High Court of Hong Kong Special Administrative Region Court of First Instance (2014)

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

Defendant pled guilty to two counts of throwing corrosive fluid with intent to do grievous bodily harm, in contravention of section 29(c) of the Offences Against the Person Ordinance, Cap 212. The corrosive fluid thrown was sulphuric acid, concentrated at 87%. Sulphuric acid at that concentration is highly corrosive and capable of causing severe burns to the skin and permanent damage to the eyes. His victims were his estranged wife and his 21-year-old son. At the time of the incident, Defendant was 65 and he was in the process of divorce, living apart from his estranged wife. Defendant returned to the marital home and became emotional, taking a knife and threatening his soon to be ex-wife. When his son, the second victim, saw what was occurring, he stood in front of his mother to protect her. Defendant opened a bottle of liquid and poured it on his estranged wife’s chest. The liquid also splashed onto his son. Because his wife was wearing only a nightgown and his son only underwear, both were burned. The victims rushed to the bathroom to attempt to wash off the liquid. They locked the door and called for help, but Defendant kicked the door in, causing a subsequent struggle. After the situation ended, the victims were taken to a hospital, where it was determined that Defendant’s estranged wife suffered 38% body burns and the son suffered 25% surface burns. The Court noted that “[acid throwing] is a very serious offence of a type which sadly occurs far too often in Hong Kong. . . . The offender aims to punish the victim for the emotional damage and to ensure that the victim is disfigured or incapacitated. The defendant here was intent on punishing the first victim for proceeding with the divorce.” The maximum penalty for acid throwing is life imprisonment. In this case, the judge passed down a sentence of 10 years’ imprisonment.



SIS Forum (Malaysia) v Dato’ Seri Syed Hamid bin Syed Jaafar Albar High Court (Kuala Lumpur) (2010)

Gender-based violence in general

SIS Forum (Malaysia) (“SIS Forum”) sought judicial review of the Minister of Home Affairs’ (“Minister”) decision to ban a book published by it, “Muslim Women and the Challenges of Islamic Extremism”. The book was a compilation of essays submitted during an international roundtable discussing challenges faced by Muslim women, including gender discrimination. The book was in circulation for two years before it was banned by the Minister for violating the Printing Presses and Publications (Control of Undesirable Publications) (No 5) Order 2008 (the “Act”). The Act prohibits publication of materials which are “prejudicial to public order”, among other things, and affords the Minister an absolute discretion to prohibit publication of any material contravening the Act. The High Court found that the Minister was unable to provide examples of how the book implicated public order issues by affecting public safety and tranquility of the community. Moreover, the book had been in circulation for 2 years and had not adversely impacted the safety and tranquility of the public. Accordingly, the High Court granted judicial review application for substantive relief to SIS Forum.



Supreme Court Decision 2005Du13414 Supreme Court of South Korea (2006)

Sexual harassment

The Supreme Court dismissed an appeal by a governor of a province claiming that because he was found not violating the Election of Public Officials Act (the “Election Act”), he should also be found not guilty of sexual harassment charges under the former Prohibition of and Remedies for Gender Discrimination Act (the “Discrimination Act”). The governor sexually harassed the defendant, a president of a vocation association, at meetings to discuss the upcoming general elections for governor. The Supreme Court held that plaintiff’s sexual behavior at such meetings constituted workplace sexual harassment, because their meetings had relevance to work, i.e. meeting to discuss governor’s elections.



Supreme Court Decision 2009Da19864 Supreme Court of South Korea (2011)

Gender discrimination

The Supreme Court upheld lower court’s decision finding that the Seoul Young Men’s Christian Associations (“YMCA”), a private organization, violated the Constitution when it excluded female from general membership. The Supreme Court found sexual discrimination, which excludes women from general membership qualification, to be against “social order exceeding tolerable limits in light of our community’s sound common senses and legal sentiment.” Accordingly, the Supreme Court found YMCA to have violated the Constitution despite its private organization status.



Supreme Court Decision 2009Do2576 Supreme Court of South Korea (2009)

Sexual violence and rape

The Supreme Court found the act of an elementary school teacher (“Defendant”) conducting a health examination to constitute “disgraceful conduct” as stipulated in Article 8-2(5) of the Act on the Punishment of Sexual Crimes and Protection of Victims (against minors aged 13 and below). The Supreme Court stated that even though the Defendant may not have subjective motive or purpose to “stimulate, stir up, and satisfy his sexual desire because such act was made in front of the students going with her, the Defendant’s act can be evaluated as disgraceful conduct.”



Pollawat Suntornwuttigrai v. Toyota Leasing (Thailand), Co. Ltd. (No. 1372/2545) Supreme Court of Thailand (2002)

Gender-based violence in general

The plaintiff was working as an employee of the defendant and had the power to evaluate whether or not probation employees will be working full-time after the probation period. The plaintiff abused that power by asking his subordinate female employees out and if they did not comply the plaintiff would evaluate such female employees in a negative way. The plaintiff also abused its power by asking out applicants who apply for positions with the defendant during the period of time the defendant has to make decisions whether or not the applicants get the positions. The defendant therefore dismissed the plaintiff, which the plaintiff claimed was an unfair dismissal. The Court held that such actions of the plaintiff constitute sexual harassment. Not only do they contradict public morals and customs which are violations of the plaintiff’s obligations regarding the defendant’s rules and regulations, they were affecting the defendant’s personnel management and growth of business by reducing the morale of female employees who refused and were harassed by the plaintiff. The violations of the plaintiff’s obligations regarding the defendant’s rules and regulations were serious. The defendant had the right to dismiss the plaintiff without having to offer the plaintiff a severance pay according to section 119(4) of the Labor Protection Act, B.E. 2541, or pay in lieu of notice, according to section 583 of the Civil and Commercial Code.



Prosecutor of Pattani Province v. Rashane Noosuwan and party defendant (No. 1917/2550) Supreme Court of Thailand (2007)

Sexual violence and rape

The plaintiff claimed the co-defendants and a party of five, together, committed battery against the victim, who is a twenty-six year old female, forcefully performed public indecency by grabbing the victim’s breasts, forced the victim to put the defendants’ genitalia parts in her mouth and gang raped the victim alternately. The second defendant denied raping the victim, contending he only forced his genitalia part in the victim’s mouth and grabbed the victim’s breasts. The Supreme Court held that this is overall a crime of gang rape. For the second defendant to force his genitalia part inside the victim’s mouth and grab the victim’s breasts during the gang rape reflected that the second defendant was a principal of first degree in the gang rape. The second defendant did not have to participate in the rape itself.



Prosecutor of Nakorn Ratchasima Province v. Piman Pollachote (No. 2398/2553) Supreme Court of Thailand (2010)

Sexual violence and rape

On the night of the crime committed, several perpetrators had gang raped the victim, at which the defendant was present. The defendant later drove the victim from the scene of the crime, and raped the victim along the way. The issue presented in front of the Supreme Court was whether the defendant was liable for gang rape when the defendant merely knelt down and was unclothed beside the victim at the gang rape. The Supreme Court held that the circumstances of the case as presented shows that the defendant was ready to gang rape the victim if had the chance. The defendant therefore was considered a principal in first degree in the gang rape.



Prosecutor of Naan Province v. Kohn Rokprai (No. 16001/2553) Supreme Court of Thailand (2010)

Sexual violence and rape

The plaintiff claimed that on the night the crime took place, the victim went to sleep around 9PM in the same bug screen as the victim’s father, the victim’s mother and her sister. Around midnight, the victim felt someone had pressed her down, undressed her pants and forced an object into her genitalia. The victim tried to push the perpetrator away. The victim felt that the person on top of her was a male, but felt too scared to open her eyes. She was perpetrated for approximately twenty minutes. The issue in this case was whether or not the defendant’s action was rape. The Supreme Court held that the circumstances of the case showed that the victim did not give consent. She tried to resist, but failed. Because the defendant was the only male in the bug screen, the victim might have suspected the defendant to be the perpetrator and felt too scared to resist or let others know. The Supreme Court held that the defendant forced his genitalia into the victim’s genitalia without consent, and that such action of the defendant constituted rape, as prescribed by section 276 paragraph 1 of Criminal Code.



Kanitchon Anansirisub v. Caster Peak Holdings, Co. Ltd. (Public) and party defendants (No. 8379/2550) Supreme Court of Thailand (2007)

Sexual harassment

The plaintiff was an employee of the defendant, under the subordination of the second defendant. In September 1995, the second defendant and the plaintiff started a sexual relationship which the plaintiff could not avoid. Later, the second defendant engaged the plaintiff in other sexual activities on several occasions, which if the plaintiff refused, the plaintiff might face consequences at work. The plaintiff resigned from her job position on June 7, 2001. The plaintiff asked the Court to grant her the right to damages paid by the defendants from the sexual harassment action, which made it impossible for her to stay in the job position, which was a violation of section 16 of the Labor Protection Act, B.E. 2541. The Supreme Court held that if the second defendant’s action was a sexual harassment, not only was the action a breach of tort duty, it was also a breach of the employment contract as well. The plaintiff therefore had the right to both the remedy for the torts claim and damages from the breach of contract claim.



Patricia Halagueña, et al. v. Philippine Airlines Incorporated Supreme Court of Philippines (2009)

Employment discrimination, Gender discrimination, International law

Female flight attendants employed by Philippine Airlines alleged their collective bargaining agreement was discriminatory due to unequal grooming standards and a compulsory retirement requirement at fifty-five years of age for women but sixty years of age for men. At issue was whether the claim was a labor grievance such that the Regional Trial Court would lack jurisdiction to hear the claim. The Supreme Court held that the regional court had jurisdiction, because the action was not a grievance, but instead a civil action to annul a provision of the contract, and that the question for decision did not involve any determination of labor or union actions.



Israel Women’s Network v. Government Supreme Court of Israel (1994)

Employment discrimination

Three men were appointed to the boards of directors of Government corporations when neither board was comprised of any women members at the time of appointments. The court found each appointment unlawful under s. 18A of the Government Corporations Law (Amendment No. 6) (Appointments), which required ministers to appoint, “in so far as it is possible in the circumstances of the case, directors of the sex that is not properly represented at that time on the board of directors of the corporation.” As a result, the court set aside each of the three appointments without prejudice.



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.



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.



Barriya v. The Kadi of the Sharia Moslem Court Supreme Court of Israel (1955)

Gender-based violence in general

The aunt of three children applied to a Moslem Religious Court to be appointed as their guardian. The children’s mother argued that she was entitled to the guardianship under the Women’s Equal Rights Law. The mother, believing that the religious judge (the Kadi) would apply religious law and disregard the Women’s Equal Rights Law, applied for an order staying or setting aside the proceedings of the religious court. The court held that the issue was not ripe for review, as there was no indication that the Kadi would disregard civil law and rely only upon religious law. The order in which the Kadi decided to proceed was a matter of procedure with which the court would not interfere.



Taha Najar v. State of Israel Supreme Court of Israel (2005)

Harmful traditional practices

The appellant, a Bedouin man, was convicted for murder with malice aforethought for killing his sister after she insisted that she would travel to Egypt alone. The appellant claimed that his charge should be reduced as the killing was the result of provocation. He further argued that the court should take into account that he was defending his family honor, as it was unacceptable in Bedouin culture for unmarried women to travel alone. The court ruled that no argument of “family honor” as a motive for killing someone will be allowed by a court in Israel. The human dignity of the victim and the sanctity of life take precedence over family honor.



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.



Ali v. State & Ors Delhi High Court (2013)

Gender discrimination

The court declared the current gate pass regime, which required litigants to provide a photo identification when entering the court premises, unconstitutional, because it violates the open court principle by restricting court access to only parties to cases listed on particular day or parties who seek to inspect the record in their cases. The Court noted that the gate pass application would disproportionately affect the economically weak, inter alia, women and children, to access courts.



Delhi High Court Bar Association v. Govt. of NCT of Delhi Delhi High Court (2013)

Gender discrimination

The court held that the Legislative Assembly of the National Capital Territory of Delhi lacked the power to amend central statutes, thereby declaring the Court Fees (Delhi Amendment) Act of 2012, through which the Delhi government had sought to increase court fees payable in Delhi, as void. The court reaffirmed that only the Parliament is empowered to amend or repeal central statutes by virtue of Article 246(4), and the procedure prescribed under the Constitution for obtaining presidential assent must be strictly followed. In addition, the court observed that the Amendment Act adversely impacts fundamental rights and results in violation of Article 38 and 39A of the Constitution of India on various count, such as reducing women’s access to court.



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.



Appeal Concerning an Application for Permission to Revise a Family Registration, ID 28212731 Third Petit Bench of the Supreme Court (2013)

Gender discrimination

Person X1 was female and underwent surgery to become a man. X1 registered as a male and married a woman X2 in 2008. In 2009, X2 bore a child. In 2012, X1 applied to have the family registry reflect that X1 was the child’s father and that the child was born while X1 and X2 were married. The ward mayor in charge of changes to family registries held that there was a problem with the application because Article 774 of the Civil Law was inapplicable to the child’s situation as the child was not related by blood to X1. X1 did not comply with the ward mayor’s request to fix the application, so the ward mayor filled in the family registry for the child with a blank for father and a note that the child was X2’s oldest son. X1 and X2 filed suit to have X1 added as the child’s father on the grounds that the child should be presumed to be a “legitimately” born child based on Article 772 of the Civil Law. The Supreme Court held that the child should be presumed to be the son of X1, overruling the lower court and the ward mayor’s decision. The court reasoned that under Article 3.1 of the Gender Identity Disorder Law, a transgender man should be treated for all purposes under the law as a man. The court held that this includes being able to marry and have a “legitimate” child. Following this decision, the Ministry of Justice issued a notification on 27 January, 2014 directing that this procedure be followed for any similarly situated families. Subsequently, the state changed the family registry for forty-five such couples to reflect that both parents are their children’s parents.



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.



Sapana Pradhan and Others v. Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2008)

Gender discrimination

The Forum for Women, Law and Development in Nepal petitioned the Supreme Court to revise a law allowing men to take second wives if their first wife is significantly ill or handicapped and gives consent. The Court found that this law was inconsistent with Article 11 of the Constitution of the Kingdom of Nepal, which guarantees equal rights for women, and with international women’s rights conventions, including CEDAW. In its ruling, the court stated that a husband should care for a sick or handicapped spouse and that requiring consent could promote domestic violence. By taking action to change this law the Court showed a dedication to real reform based on the Constitutional mandate for gender equality, crucially recognizing that accepted traditional practices must be reappraised.



Prakash Mani Sharma and Others v GON, Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (1999)

Gender discrimination

Citing the prevalence of uterus prolapse in pregnant women in Nepal, the petitioner filed that the government should be responsible for providing infrastructures to support women’s reproductive health under Article 20 of the Interim Constitution of Nepal which guarantees the right to reproductive health for all women. The Court ruled that reproductive health was a right tied to all other basic human rights but that, unlike freedom of speech and others, it requires positive infrastructures to be upheld, therefore ordering that a bill be passed providing reproductive health services to pregnant women. In this ruling the Court emphasized that proactive measures must be taken to ensure that women, who face different societal and health challenges, are given the same rights as men; this marks an important distinction between guaranteeing rights and practicing equality.



Meera Dhungana and Others v. Office of the Prime Ministers and Others Supreme Court of Nepal (2004)

Gender discrimination

After hearing a petition from the Forum for Women, Law and Development in Nepal, the Supreme Court ruled to invalidate a law allowing men to seek a second wife if, after 10 years of marriage, they have not had a child with their first wife. The Court recognized that this law gave unequal treatment to women and men by not giving comparable recourse to women and implying that infertility was the fault of the woman. The law was therefore inconsistent with Article 11 of the Constitution of the Kingdom of Nepal and with international gender rights conventions including CEDAW. This ruling represents an important step in reevaluating widely accepted laws from a gender equality standpoint. In addition, the Court acknowledged that it was constitutional to employ positive discrimination to guarantee equal rights for women, allowing for proactive defense of women’s rights in Nepal.



Punyabati Pathak and Others v Ministry of Foreign Affairs and Others Supreme Court of Nepal (2005)

Gender discrimination

The Court upheld a petition to quash a provision of the Nepalese Passport Act that requires women under the age of 35 to procure a letter of consent from a guardian before obtaining a passport. The Court ruled that the provision was contrary to Article 11 of the Constitution because it infringed on equal treatment between men and women, was contrary to the mandate for positive discrimination to ensure equality for women, and inhibited a woman’s right to enjoy the freedoms guaranteed by the Constitution and international human rights treaties. Thus, the Court quashed this provision and directed the Ministry of Foreign Affairs to issue passports to Nepali women without a letter of permission, putting an end to a highly prejudiced practice that had prevented women from accessing education, employment, and cultural enrichment outside of Nepal.



Meera Dhungana v. Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2006)

Gender discrimination, International law

A petition on behalf of the Forum for Women, Law and Development in Nepal called for revision of a law prohibiting dowries. The law imposed a much stricter sentence on the bride’s family than the grooms, making it inconsistent with the equal rights provisions in Article 11 of the Constitution of the Kingdom of Nepal and international human rights standards. The Court’s decision to revise the law, which cited earlier rulings based on Article 11, shows a continued dedication to transforming the Nepalese legal code in the interest of gender rights and equality.



Meera Dhungana v Prime Minister and Office of Council of Ministers and Others Supreme Court of Nepal (2005)

Gender discrimination

Meera Dhungana, an important women’s rights advocate in Nepal, petitioned the government to deem void a provision of the Bonus Act in the Constitution of the Kingdom of Nepal that prevents married daughters of a deceased from receiving compensation upon his death. The petitioner claimed that this provision discriminates against women based on their gender and marital status, thus contradicting the Constitution and international gender rights conventions. The Court denied the petition, finding that the Bonus Act treats male and female successors equally unless a daughter is married, in which case she has equal inheritance rights with her husband. This case marks the limitations to legal reforms that the Supreme Court will consider in the defense of gender equality, showing a consideration of Constitutional law, international conventions, and practical outcomes for women.



Rama Panta Kharel and Others v. Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2008)

Gender discrimination

A petition to replace the existing limitations on dowry size in the Interim Constitution of Nepal (2007) with a prohibition of all dowries based on the mandate for gender equality in Article 11 of the Constitution and international conventions such as CEDAW was quashed on grounds that there was not sufficient proof that allowing limited dowries was discriminatory. However, in recognition of the social harm caused by large dowries including impoverishment, competitiveness, and negative views of women, the Court directed that current laws limiting dowries be enforced more effectively and that sensitization on the harmful aspects of dowries be implemented. This ruling demarcates the limits of petitioning for gender equality against traditional and constitutional law while still showing the willingness of the Court to promote women’s rights through means outside the Constitution.



Bachpan Bachao Andolan v. Union of India & Others Supreme Court of India (2011)

Trafficking in persons

Children’s’ rights, child labor, forced labor, human trafficking, sexual abuse. Bachpan Bachao Andolan, a non-governmental organization in India submitted a petition to the Supreme Court of India to take action against the use of child performers in India’s traveling circuses. A study found that children were being trafficked from Nepal or taken from their homes, exploited as child laborers in these circuses, and subjected to mental, physical, and sexual abuse. In recognition that this practice was in violation of child labor laws and regulations on a child’s right to an education, among other national and international statutes, the Supreme Court gave an order to prohibit the employment of children in circuses, raid circuses to free children, and establish rehabilitation schemes for the child victims. This case is an important victory for children’s rights in India, where parents often sell their children to work at a young age, and also displays the willingness of the Supreme Court of India to hear petitions from NGOs, offering an important avenue for human rights reform.



Achyut Prasad Kharel v. Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2008)

Gender discrimination

A petition to require consent from the woman’s husband in a law in the Constitution of the Kingdom of Nepal allowing women to have an abortion on fetuses of less than 12 weeks cited CEDAW conventions mandating equality between men and women on matters relating to family planning. The Court dismissed the petition emphasizing that CEDAW is intended to promote and protect women’s rights and to consider the wording of equality in such absolute terms would, in fact, be contrary to this original intent. With this ruling, the Supreme Court of Nepal shows remarkable dedication to protecting and empowering women as the primary goal in interpreting legal conventions on women’s rights.



People of the Philippines v. Marivic Genosa Supreme Court of Philippines (2004)

Domestic and intimate partner violence

Marivic Genosa admitted to killing her husband after a quarrel in their house and was sentenced to death in 1998. The Supreme Court of the Philippines heard an appeal of this decision under the pretense that Ms. Genosa was a victim of battered woman syndrome (BWS). The appeal posited that the consistent abuse Genosa faced at the hands of her husband had caused BWS which meant she was in a constantly threatened state and acted in self-defense when she killed him. The court ruled that as a victim of BWS, her husband’s cumulative provocation had broken down her self-control and made the murder an act of passion. The court repealed Ms. Genosa’s death sentence and released her in consideration of her six years spent in prison. This is a landmark case in acknowledging the deep psychological impact abusive relationships have on women. By setting a legal precedent to consider BWS as an extenuating and real circumstance, the Supreme Court promoted a stronger legal recognition of and protection for abused women.



Writ Petition No. 8769 of 2010 BNWLA v. Govt. of Bangladesh Supreme Court of Bangladesh (2011)

Sexual harassment

In this case the Bangladesh Supreme Court responded to a petition by the Bangladesh National Women Lawyers Association and handed down a set of directives aimed at addressing public sexual harassment (known euphemistically as "eve teasing"). These directives included stating formal definitions of "sexual harassment" and "stalking" to be used henceforth in addressing this problem, mandating a designated cell or team housed within each police station to address sexual harassment, mandating the government to require photo identification from users of cyber cafes to address cyber harassment and stalking, mandating immediate government steps to initiate victim and witness protection systems as well as programs to redress mental trauma suffered by victims, and directing the government to "take immediate steps to formulate law or amend the existing law for incorporating specific provisions giving evidential value to the audio/video recorded statements of victims or witnesses of sexual harassment so that the perpetrators can be punished solely on the basis of such recorded evidence of sexual harassment in case of unwillingness of the victim or other witnesses to give evidence fearing further attack and humiliation and/or torture."



Shivaji @ Dadya Shankar Alhat v. The State of Maharashtra Supreme Court of India (2008)

Sexual violence and rape, Statutory rape or defilement

A man led a nine-year-old girl to a hill where he raped, strangled and murdered her. The girl’s sister testified that she saw her sister leave with the man and the mother later recovered the girl’s body from the hill and filed the police report against the accused. He was convicted and sentenced to death under Sections 376 and 302 of the Indian Penal Code. The man appealed, claiming that he should not be sentenced to death on circumstantial evidence alone. The High Court dismissed the appeal. The Supreme Court affirmed, holding that circumstantial evidence establishes the guilt of the accused, forming the conviction, but does not bear any relation to the sentencing. The Supreme Court defers discretion to trial judges in arriving at a proper sentence dealing with the subtleties of each case.



State of Rajasthan v. Hemraj & Anr Supreme Court of India (2009)

Sexual violence and rape

The Supreme Court held that a woman present for a gang rape did not share the common intention to rape and, therefore, could not be convicted of rape. According to §§ 375 and 376 of the Penal Code, only a man can commit rape, making it impossible for a woman to be convicted of a gang rape. This case is important because it raises the issue of how or when to hold women responsible for sexual violence against other women.



Noorjahan v. State Rep. by D.S.P. Supreme Court of India (2008)

Dowry-related violence

Shortly after a couple wed, the husband and his relatives began treating the wife poorly and demanded dowry from her. The husband and his brother later strangled her with rope and his sisters held the wife’s arms. This led to her death. All of the accused were convicted and sentenced under Sections 302 and 498(a) of the Indian Penal Code. The aunt of the husband was also convicted and sentenced under 498(a) for alleged dowry-related cruelty, which can lead to a sentence of up to three years imprisonment. The aunt appealed her conviction, claiming that if she had been cruel it bore no relation to dowry. The High Court upheld the conviction, yet the Supreme Court reversed. The Supreme Court held that the purpose of Section 498(a) was to combat dowry-related death and cruelty. Because there was no evidence that the aunt had ever made a demand for dowry, rendering her conviction under Section 498 improper.



Rajbir @ Raju & Anr v. State of Haryana Supreme Court of India (2010)

Domestic and intimate partner violence

This case involved an appeal of a man’s lifetime imprisonment sentence. He was convicted of murdering his pregnant wife after she asked for money six months into their marriage. The Punjab & Haryana High Court reduced the sentence to 10 years rigorous imprisonment. The man’s mother was also awarded two years rigorous imprisonment. While the reduction in the husband’s sentence was issued, the Court directed all trial courts in India to ordinarily add § 302 to the charge of § 304B, so that death sentences can be imposed in such heinous and barbaric crimes against women.



State of Rajasthan v. Madan Singh Supreme Court of India (2008)

Sexual violence and rape

The Trial Court convicted a man of raping a ten-year-old girl and sentenced him to ten years of imprisonment under Section 376(2)(f) of the Indian Penal Code. On appeal, the High Court reduced his sentence to seven years considering the convicted had already suffered a custodial sentence of six years, was young, and the only breadwinner in a family with two children. The Supreme Court, however, reversed the High Court’s reduction of the sentence because it fell below the statutory minimum. The Supreme Court held that the measure of punishment in a rape case cannot depend on the social status of the victim or the accused. It must depend on the conduct of the accused, the state and age of the victim, and the gravity of the criminal act. Crimes of violence upon women are to be severely dealt with. The proviso to Section 376(2) specifies that the court may, for special and adequate reasons, impose a sentence of less than ten years. However, the Supreme Court in the present case, found there to be no justifiable extenuating or mitigating circumstances available that would justify imposing a less-than-minimum sentence.



Utpal & Anr. v. State of West Bengal Supreme Court of India (2010)

Gender-based violence in general

On April 28, 1984 four or five men took Ms. Sitarani Jha from a bus stop to a house under construction and two of the men forcibly raped her. The trial court determined that the prosecution had not proven the case beyond a reasonable doubt. The case was appealed and the high court determined that the defendants were guilty under section 376/34 of the India Penal Code. The case was brought before the Supreme Court to determine if the high court erred in finding the appellants guilty of rape, because no physical injuries were found on the private parts of the victim’s body. The Supreme Court determined that the high court did not err. Ms. Sitarani jha was able to identify her attackers, and that a lack of injuries on the private parts of a rape victim were not enough to acquit an identified rapist.



State of Tamil Nadu vs. Ravi Supreme Court of India (2006)

Gender violence in conflict

The High Court reversed the trial court’s conviction of a man who had raped a four or five-year-old child. He had penetrated the vagina before two people stopped him. A physical exam showed her hymen was torn. A doctor also found a cut on the man’s penis consistent with an injury from forced sex. The Supreme Court reinstated the trial court’s conviction. This case is important because the Court stated that a rape conviction could be sustained solely on the basis of testimony of the victim. In addition, the Supreme Court stated that rape victims should not be treated like accomplices in a crime and that their testimony, instead, should be viewed as the testimony of an injured witness. The Supreme Court also stated that the testimony of a rape victim should receive “great weight.” In this case, however, the Supreme Court found that there was a great deal of corroborating evidence in addition to the testimony of the victim.



State of Rajasthan v. Jaggu Ram Supreme Court of India (2008)

Dowry-related violence

A new bride was threatened by her in-laws if her family did not provide a greater dowry. When local villagers protested these threats, the husband’s family killed his new bride by burning her with kerosene. The main issue of the case was to determine how the elements of dowry-death should be proven at trial under amended Indian Penal Code. The trial court acquitted the defendant of dowry-death in taking a narrow statutory view. The Supreme Court reversed, holding that a death shall be called dowry-death when a woman dies from burns or bodily injury that would not occur under normal circumstances within seven years of marriage. The Court added it should be in consideration that soon before her death the woman was subject to harassment by her husband or any relative of his or in connection with any demand for dowry. Shifting this burden to the husband’s family and broadening the scope of dowry death provides prosecutors with more powerful tools to convict for dowry-death and is meant to curb the recent rise in dowry-related violence.



Singh v. State of U.P. & Another Supreme Court of India (2006)

Gender-based violence in general

A man and woman from different castes married. The woman’s brothers objected to the inter-caste marriage and lodged false complaints of criminal activity against the husband and his family. They also alleged the woman was not mentally fit, leading to her committal. The husband’s family members filed a petition to the High Court, and the High Court ordered them to appear before a sessions judge who would assess whether they had committed a crime. The family members petitioned the Supreme Court under Article 32 of the Constitution. The Court ended all proceedings pending against the husband’s family and the warrants against them. The Court held that the police and administrative authorities have a duty to protect individuals from harassment, threats, and violence based on an inter-caste marriage. In doing so, the Supreme Court stated that the Hindu Marriage Act does not ban inter-caste marriages and admonished violent acts in protest of inter-caste marriages.



Viswanathan v. State Rep. By Inspector of Police Supreme Court of India (2008)

Sexual violence and rape

A young woman was riding home from work when she was attacked and raped by a group of men. While the woman was able to identify three of her assailants, due to falling unconscious, she was unsure of who had raped her. No Test Identification Parade was held. Upon examination, she was found with no bodily injuries. The Trial Court convicted six men finding common intention to commit gang rape. The Supreme Court affirmed in part and reversed in part. Three of the convictions could not be upheld because of the victim’s failure to identify them. The significance of this case, however, is the Court’s recognition that identifiable physical injury is not necessary to prove rape; the circumstances in which a victim is found can be sufficient. And the recognition that not all of the convicted must have committed the actual rape but need only have the intention to commit gang rape.



Md. Kalam v. The State of Bihar Supreme Court of India (2008)

Sexual violence and rape, Statutory rape or defilement

A man convicted of raping a six-year-old girl appealed his sentence of 10 years, alleging the child’s testimony should not have been accepted without corroboration. He also insisted his sentence was too harsh. A child’s testimony is acceptable as long as the court carefully evaluates it. Both the trial court and the High Court did this and found the child’s evidence reliable. The Supreme Court denied his appeal regarding the girl’s testimony but lessened his sentence to 5 years imprisonment with fines.



Golla Yelugu Govindu v. State of Andhra Pradesh Supreme Court of India (2008)

Domestic and intimate partner violence

A fourteen-year marriage broke down when the husband became addicted to “vices”; he began to beat his wife and demand money of her parents. During a quarrel, with their children in the room, the husband killed his wife by hacking her with a sickle in her back and neck. The Trial Court convicted him and sentenced him to a life imprisonment, but he appealed, claiming that his children were too young to be competent witnesses. The Supreme Court held that there is no age restriction on competency. All people are competent to testify unless they cannot understand questions or give rational answers. The Supreme Court did reduce his sentence, however, to ten years, because the murder was done in a sudden act and not premeditated.



Moti Lal v. State of M.P Supreme Court of India (2008)

Sexual violence and rape

A man raped a woman while she guarded her husband’s agricultural field. The woman and her husband filed a police report, and the man was arrested and convicted under §§ 450 and 376(1) of the Indian Penal Code and § 3(1)(xii) of the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act. The offender appealed his conviction on the grounds that the prosecution relied too heavily on the victim’s testimony. The Court denied his appeal. Emphasizing the stigma associated with incidents of rape, the Court reaffirmed Indian courts’ presumption that rape victims who file reports are telling the truth.



Sunita Jain v. Pawan Kumar Jain Supreme Court of India (2008)

Domestic and intimate partner violence, Dowry-related violence

Immediately after a woman’s marriage, her husband and his parents harassed her for having an insufficient dowry. She was attacked on two occasions and prevented from seeing her two children. A few years later the husband filed for divorce and the woman filed a police report against her husband and his family for mental torture and dowry demands. The High Court initially allowed the case to continue and then quashed the proceedings and filed a petition against the woman claiming abuse of court. The woman appealed on the question of whether a criminal court can review its prior decisions. The Supreme Court set aside the High Court’s petition stating that the court was wrong to quash the woman’s proceedings when the High Court initially found that there was a prima facie case against the husband and family. Under the Indian Penal Code, a court does not have the power to alter its prior judgment.



Kishangiri Mangalgiri Goswami v. State of Gujarat Supreme Court of India (2009)

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

A man convicted in part under § 306 of the Indian Penal Code appealed the charge of abetting his wife’s suicide. There was a history of dowry-related abuse, and the husband demanded another 40,000 rupees from his wife and her family before the she committed suicide by burning herself. The Court held that cruelty alone was not enough to convict the husband for abetment of suicide. Showing abetment requires proof of direct or indirect acts of instigation, conspiracy, or intentional aid. The man’s conviction was upheld on other grounds.



D.S. Grewal v. Vimmi Joshi Supreme Court of India (2008)

Employment discrimination, Gender discrimination, Sexual harassment

Vimmi Joshi was the principal of a public school who alleged her superior had sent her love letters and made sexual advances towards her. She brought a complaint to the School Managing Committee and was asked to bring the complaint in writing. Subsequently, the Committee received two anonymous complaints against Joshi and her employment was terminated. She challenged the termination claiming sexual harassment. The High Court held that this was a clear case of sexual harassment and ordered disciplinary actions to be taken. The Supreme Court reversed and remanded the High Court’s decision because the Supreme Court had previously laid out guidelines for sexual harassment complaints in Vishaka v. State of Rajasthan; a complaint committee must have been formed to inquire into the complaint further. The Supreme Court held that since the High Court did not fully look into the matter, they could not have found that this was a clear-cut case of sexual harassment. The High Court was directed to appoint a three-member committee, which must be headed by a woman, to hear the case.



Shekara vs. State of Karnataka Supreme Court of India (2009)

Sexual violence and rape

A man induced a girl to have intercourse with him on a false promise to marry her and then threatened to kill her and her mother. School records showed that the girl was less than 16 years of age. The Court held the man could not be convicted of rape for his false promise, but he could be convicted for the use of criminal force on a woman with intent to outrage her modesty. This case demonstrates that men can be criminally convicted for lying to a woman in order to have intercourse with her.



Bangaru Venkata Rao v. State of Andhra Pradesh Supreme Court of India (2008)

Domestic and intimate partner violence

A husband killed his wife by stabbing her in the abdomen and was sentenced under Section 302 of the Indian Penal Code to life imprisonment. He appealed the sentence, claiming that the record clearly establishes that he only delivered a single blow to his wife in a sudden quarrel, and therefore conviction under Section 302 is not proper. The High Court dismissed the appeal but the Supreme Court reversed, holding that the husband’s actions in a sudden fight did not warrant life imprisonment. His sentence should have been brought under the fourth exception of Section 300, accounting for the heat of passion in a sudden fight, and accordingly his sentence was reduced to ten years.



Satyapal v. State of Haryana Supreme Court of India (2009)

Statutory rape or defilement

A village man sexually assaulted an 11-year-old girl; he ran away when the girl’s aunt approached. In an attempt to avoid the stigma of a sexual attack, her family convened a village panchayat to resolve the dispute. The police were contacted when the panchayat was unsuccessful, and the girl did not have a medical examination until 80 hours after the attack. The exam found vaginal bruising but not penetration. Despite the delays, the Court upheld the conviction under § 376 of the Penal Code. This case is notable because the Court allowed a delay in filing the report and found that full penetration is not necessary for a rape conviction.



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.



J.Y. Interpretation No.372 Supreme Court of Taiwan (1995)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Sexual violence and rape

A Supreme Court holding that "although a spouse who has suffered unbearable mistreatment in cohabitation is entitled to sue for divorce, this does not include cases where the other party temporarily loses control and overreacts to the spouse's misconduct" is not unconstitutional.  To determine what constitutes "unbearable mistreatment in cohabitation," the courts should take into account the degree of the mistreatment, education levels, social status, and so on, determining if the degree of mistreatment goes beyond the violation of personal dignity and security that would be tolerated by most spouses.  Even with regards to cases where a "party temporarily loses control and overreacts to the spouse's misconduct," the precedent does not exclude applying the above factors to determine whether such overreactions threaten the continuity of the marriage.



J.Y. Interpretation No.410 Supreme Court of Taiwan (1996)

Gender discrimination, Property and inheritance rights

A Supreme Court precedent from 1966 held that property obtained by a wife during the continuance of a marriage, but which cannot be proved separate property or contributed property, belongs to the husband.  The amendment of the Civil Code in 1985 under the authority of Article 7 of the Constitution emphasizes gender equity and invalidates this Supreme Court precedent.



J.Y. Interpretation No.554 (2002)

Gender-based violence in general

The legislature may enact a law restricting freedom of sexual behavior within the system of marriage (such as by making adultery punishable under criminal law), but only if the restrictions are not overly severe in violation of the principle of proportionality embodies in Article 23 of the Constitution.  In particular, the offense must be indictable only upon complaint, and no complaint may be instituted if the spouse has connived against or forgiven the offending party for the offense.



J.Y. Interpretation No.559 (2003)

Domestic and intimate partner violence

In the case of protection orders involving monetary payment, the Domestic Violence Prevention Act explicitly authorizes the agency empowered to execute such orders and sets forth procedures and methods or doing so, in keeping with Constitutional requirements.  However, for protection orders not involving monetary payment, the Act provides only general authorization of police agencies without procedures and methods, so the Act must be amended to fulfill the Constitutional requirement of specific and explicit authorization by law.



Porntip v. Panomprai Katesa Supreme Court of Thailand (2009)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The Supreme Court ruled that a husband's adulterous behavior which caused his wife great mental pain and humiliation and led to a four-year-separation created appropriate grounds for the wife to file for divorce.



Muhammad Siddique v. State High Court of Pakistan (2002)

Harmful traditional practices, Honor crimes (or honour crimes)

Murder conviction for father's honor killing of daughter, son-in-law and grandchild upheld on the grounds that an honor killing is murder. The Court found that "[n]o tradition is sacred, no convention is indispensable and no precedent worth emulation if it does not stand the test of civil society's fundamental principles. In particular, the law must reflect changing needs and promote social progress. Accordingly, any judicial response to S's crime must serve as a deterrent.  Any other response could amount to appeasement or endorsement since a society which fails to effectively punish such offenders becomes privy to their crimes."



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.



Case on the House Head System Constitutional Court of South Korea (2005)

Gender discrimination, Harmful traditional practices

The petitioners requested the constitutional review of Civil Code provisions which establish the traditional "house head system" (Ho-jue jae-do) which holds that a household is formed around the male, and passes down only through direct male descendants serving as successive house heads.  Under this system, male members are always recorded as the head of family in the Family Registry, and hold superior inheritance rights over female members. The Court held that the provisions which establish the "house head system" are unconstitutional.  The Court held that this system is a "statutory device to form a family with  male lineage at the center and perpetuate it to successive generations."  Furthermore, the system discriminates both men and women because it determines the order of succession, and effects marital relations and parent-children relationships.  The Court held that family relationships are changing, from authoritarian to democratic relationships, where "all family members are equally respected as individuals with dignity regardless of sex."



Disclosure of the Identity of Sex Offenders Convicted of Acquiring Sexual Favors from Minors in Exchange for Monetary Compensation Constitutional Court of South Korea (2003)

Sexual violence and rape

The petitioner, convicted of having sexual intercourse with a minor in exchange for payment, filed a lawsuit in the Seoul Administrative Court against the Commission on Youth Protection ("Commission"), requesting that the Commission revoke its decision to publicly disclose the petitioner's identity (name, age, birthdate, vocation and address, with summary of the crime).  The Administrative Court thereafter filed a request to the Constitutional Court for constitutional review of the provisions of the Juvenile Sex Protection Act ("the Act").   The Constitutional Court held that the provisions of the Act which required the Commission to disclose the personal information (name, age, occupation, address) of the sex offenders convicted of purchasing sex from minors, is constitutional.  The Court held that the Act intends to effect crime prevention, and to protect minors from sexual offenses, "thereby protecting their human rights and helping them to grow up to be sound members of society."



So-called Brothel Building Provider Case Constitutional Court of South Korea (2006)

Trafficking in persons

The petitioner filed a complaint that the Act on the Punishment of Arranging Sexual Traffic (hereinafter "The Act") which prohibits the "providing [of] buildings or land with the knowledge that it will be used for sexual traffic" is unconstitutional.  The petitioner owned or had management rights to buildings located in a brothel area, and since the buildings could not be leased out other than for purposes of sex trafficking, petitioner argued that the regulation pursuant to The Act excessively infringed on his right to property.  The Court held that restrictions imposed by the Act are appropriate to achieve its legislative purpose, which is to root out sexual trafficking and the acts of arranging it, and to protect the human rights of the victims of sex trafficking.  The Court reasoned that "[i]t is necessary for the state to protect women driven to such sexual traffic, and to regulate middlemen of sexual traffic."  The court held that the public good that is achieved by preventing the sexual trafficking in brothels outweighs the "short term private losses" suffered by the petitioners, and thus, the Act is constitutional.



Use of Paternal Family Name Case Constitutional Court of South Korea (2005)

Gender discrimination

Petitioners applied for constitutional review of Article 781(1) of the Civil Code which stated that "a child shall follow the family name of the father."  The Constitutional Court held that the civil code provision requiring a child to follow the father's family name is unconstitutional.  The court held that "such unilateral requirement to follow the father's family name and disallow use of the mother's name violates individual dignity and sexual equality."  In addition, the court held that "forcing one to use only his original father's family name and not allowing a name change infringes on the individual's right to personality." The concurring opinion stated that the civil code provision also results in discrimination against women, and found no legislative purpose for such discrimination.  (Article 36(1) of the South Korean Constitution guarantees individual dignity in marriage and family.)



J.Y. Interpretation No.365 (1994)

Gender discrimination

Article 1089 of the Civil Code, which stipulates that in situations of parental disagreement in exercising parental rights over a minor, the father has the right of final decision, is in violation of both Article 7 of the Constitution (stating that both sexes are equal under the law) and Article 9 of the Amendment (eliminating sexual discrimination).  Therefore, Article 1089 should be examined and amended.  The current Article is void within two years of this interpretation.



Smt. Seema v. Ashwani Kumar Supreme Court of India (2007)

Forced and early marriage, Harmful traditional practices

The Supreme Court ordered that all marriages be registered in order to prevent child marriage.



2002 (A) No. 805 Supreme Court of Japan (2003)

Domestic and intimate partner violence

The defendant husband of Dutch nationality, married but separated from his Japanese wife, forcibly took his two-year-old daughter away from her mother, with the purpose of taking her away to the Netherlands.  The court held that the defendant kidnapped his daughter in a "malicious manner" when he pulled her by the legs, hanged her upside down and wedged her between his arm and waist, a criminal offense of kidnapping for the purpose of transporting the kidnapped person to a foreign country, under Article 226(1) of the Penal Code.   



State of Andhra Pradesh v. Gangula Satya Murthy Supreme Court of India (1996)

Sexual violence and rape

The Supreme Court of India found that the High Court had insufficient reason to overturn a rape conviction, holding that rape cases should be tried with the "utmost sensitivity" and the court must look at the "totality of the background" of the case.



2004 (A) No. 2199 Supreme Court of Japan (2005)

Domestic and intimate partner violence

The defendant husband, who had joint parental authority with his wife, forcibly took his son away from his mother.  The court held that the defendant's act constituted kidnapping, as there were no special circumstances which made the defendant's actions necessary, and the act was "violent and coercive."  In addition, the court found that the act of kidnapping the child could not be justified even though the defendant had parental authority.



State of Himachal Pradesh v. Raghubir Singh Supreme Court of India (1993)

Sexual violence and rape, Statutory rape or defilement

While traveling to her house, an 8/9 year-old girl was separated from her father and sister while in her family's fields.  The defendant kidnapped and raped her under a nearby mango tree.  The Supreme Court reversed a High Court's acquittal and found the defendant guilty of rape.  The Supreme Court stated that the conviction could be upheld solely on the victim's testimony, despite her age, if it is believable and there is no evidence to discredit its trustworthiness.



2004 (Ju) No. 1968 Supreme Court of Japan (2006)

Harmful traditional practices, Property and inheritance rights

Two female members of a certain local community which have collective property rights to a common land (called a "common" or a "hamlet") petitioned the court to decide the unconstitutionality of a traditional practice which determined membership and property rights within the community.  The court held that this custom which excludes female descendants who married outside of the community, is "contrary to public order and therefore null and void" under Article 90 of the Civil Code.  The court held that "the male descendant requirement discriminates against female descendants only because they are females" and it is unreasonable and against the constitutional principle of "essential gender equality."



State of Maharashtra v. Kewalchand Jain Supreme Court of India (1990)

Sexual violence and rape

A police inspector contrived to have the fiance of a young girl locked up, and after doing so, went to her hotel room and raped her. The Supreme Court refuted the notion that testimony of a victim of sexual violence requires corroboration and found that courts should not be reluctant to accept the evidence of a rape victim, if under the totality of the circumstances appearing on the record of the case the victim does not have a strong motive to lie.  A rape victim's evidence is to receive the same weight that would be given to any victim of physical violence.  The Supreme Court noted that corroboration of the testimony of a woman who is a victim of sexual violence is not required except in extremely rare circumstances.



2007(A) No. 1961 Supreme Court of Japan (2008)

Stalking

The accused was charged with the act of stalking a female customer at a shopping mall, taking photographs of her buttocks in trousers with his cellular phone with a built-in digital camera from a close distance.  The court held that this act constituted an obscene act making a victim feel embarrassed or insecure under the Hokkaido Prefecture Ordinance on Prevention of Violent Public Nuisance No. 34 of 1965, which criminalizes obscene behavior.



State of Orissa v. Naiko Supreme Court of India (1992)

Sexual violence and rape

A woman was kidnapped in broad daylight, taken to a forest, then gang-raped. The defense argued that the woman's injuries were not severe enough for her to have resisted multiple rapists. The Court held that a woman need not present evidence of resistance to support a charge of rape.



Muhammad Akram Khan v. State Supreme Court of Pakistan (2001)

Harmful traditional practices, Honor crimes (or honour crimes)

The Supreme Court for the first time ever approached the issue of honor killings from a victim's rights perspective. The Court found that no one had the right to take law into their own hands to take a life in the name of ghairat. The Court stated that "neither the land nor the religion permits so-called honour killing, which amounts to murder simpliciter." The Court added that such a murder was a violation of the Fundamental right to life of the victim as enshrined in Article 9 of the Constitution, which states that no person would be deprived of life and liberty except in accordance with law and any custom or usage in that respect is void under Article 8(I) of the Constitution.



State of Punjab v. Ramdev Singh Supreme Court of India (2003)

Gender-based violence in general, Sexual violence and rape

A case of sexual assault where the accused was acquitted. The State appealed and the court determined that lack of physical evidence of rape and previous sexual activity on the part of the victim cannot be grounds for acquittal and the court restored the conviction. Also, the testimony need not be corroborated with additional evidence as long as there is an assurance of veracity.



State of West Bengal v. Jaiswal Supreme Court of India (1993)

Domestic and intimate partner violence, Dowry-related violence, Harmful traditional practices

A woman committed suicide by hanging herself after being mistreated and abused by her husband, being subject to complaints about her dowry and held responsible for the death of her father-in-law because of her "evil luck" by her in-laws, and being subjected to other mental torture.  In an action against the woman's husband and mother-in-law, the lower court had found insufficient evidence of systematic cruelty or physical or mental torture to sustain a conviction under 498 A of the Indian Penal Code, which provides that a relative of a woman that subjects that woman to cruelty may be imprisoned for up to three years.  The Supreme Court reversed the lower court's holding, finding that the actions of the accused husband and mother-in-law did qualify as "cruelty" because their willful conduct was of such nature as was likely to commit the victim's suicide.



Sudesh Jhaku v. K.C.J. High Court of India (1998)

Gender-based violence in general

The Court held that extreme caution must be taken during the questioning of child witnesses: questions must not be long, complex, or confusing, breaks may be taken during the questioning if necessary, a screen may be used to block the child's view of the courtroom, and "a social worker or other friendly but ‘neutral' adult" may be present or even allowed to sit next to the child. Moreover, such questioning must be in camera.



The Chairman, Railway Board & ORS v. Mrs. Chandrima Das & ORS Supreme Court of India (2000)

Gender-based violence in general, Sexual violence and rape

A case of gang-rape under public law because the accused were employees of the national railway. The case includes a discussion of the application of UN resolutions domestically, including the Declaration on the Elimination of Violence Against Women and the Universal Declaration of Human Rights. The Court concludes that the victim can recover under public law due to the violation of her fundamental rights, enshrined in the declarations and the Indian Constitution.



Varsha Kapoor v. Union of India High Court of India (2010)

Domestic and intimate partner violence

A woman filed charges of domestic abuse against her husband and mother-in-law. The mother-in-law argued that she could not be charged under India's 2005 Protection of Women from Domestic Violence Act because the person to be charged is specifically defined as male. The High Court denied this claim, holding that although the law defines adult men as the primary defendants, it allows the complaint to charge a man's relatives as secondary defendants.



Shanti v. State of Haryana Supreme Court of India (1991)

Dowry-related violence, Harmful traditional practices

The petitioners were charged and found guilty of dowry death. The Court upheld the conviction, holding that the evidence of cruelty necessary to create a presumption of dowry death may be less than or different from the level of evidence of cruelty necessary to uphold a charge of criminal cruelty.  The two crimes are unrelated, despite using similar wordings, and a person may be convicted of dowry death without having committed criminal cruelty.



Vishaka v. State of Rajasthan Supreme Court of India (1997)

Gender violence in conflict, Gender-based violence in general

This case involved a public interest petition filed by a group of NGOs for enforcement of the Constitution's protection of women's rights and international women's rights norms. The victim was gang-raped and before the rape had complained of 13 to the authorities, but there was no response. The court held that 13 is a violation of gender equity and the right to life and liberty and the government must provide safeguards to prevent such harassment from happening.



Mandal v. Deen Dayal Harinagar Hospital Supreme Court of India (2010)

Gender discrimination

A public interest litigation was initiated to urge the Indian government to address the issue of high levels of maternal mortality in the country. The Court ordered the government to correct discriminatory actions in programs intended to reduce maternal mortality, to report on what corrective steps will be taken to monitor and improve current programs, and to create additional programs if necessary.



Naz Foundation v. Govt. of Delhi Supreme Court of India (2009)

Gender-based violence in general, LGBTIQ

A public interest litigation was initiated to change the definition of non-criminal sex from "hetero-sexual penile-vaginal" to "consensual sex between adults." The court granted the petition finding the criminalization of non-heterosexual sex violative of the constitution.



P. Babu Venkatesh v. Rani High Court of India (2008)

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

After a marital dispute arose, the husband transferred ownership of the marital home to his mother in order to evade the 2005 Protection of Women from Domestic Violence Act which does not permit women to be forcibly dispossessed of their homes. The Court held that the subterfuge was insufficient to evade the law and ordered that the wife be allowed to live in the home until the dispute could be resolved. Here, the Supreme Court held that the shared household only includes homes which are owned or rented by the couple.



P. Rathinam v. Union of India Supreme Court of India (1994)

Domestic and intimate partner violence

The Supreme Court held that criminal penalties for suicide violate the constitutional right to life by amounting to a double punishment; specifically arguing that women who attempt suicide after abuse cannot be criminally penalized for their suicide attempt. Previously, Indian law carried criminal penalties for attempted suicide.



Pandurang Shivram Kawathkar v. State Of Maharashtra Supreme Court of India (2001)

Dowry-related violence, Harmful traditional practices

The petitioner, having been found guilty under the dowry prohibition act, charged that because the witnesses were all related, their testimony was insufficient to prove that he participated in a demand for dowry. The Court held that the testimony is sufficient to uphold a charge, and that evidence of a demand for dowry having been presented it is up to the defendant to prove that he did not participate in the demand—to prove an alibi.



People's Union for Democratic Rights v. Union of India Supreme Court of India (1982)

Gender violence in conflict

In this public interest litigation, the Court reaffirmed that the equal pay for equal work provision of the constitution is valid, and that the employer, whether public or private, is responsible for enforcing it and taking prompt disciplinary action when violations occur.



Balwant Singh v. State of Punjab Supreme Court of India (1987)

Sexual violence and rape

A woman was kidnapped and raped by men who owed her father money. The police decided to drop the case because they believed the charge was invented to harm the father's debtors. The Court held that the father's relationship with the defendants was insufficient to invalidate the victim's testimony.



Prerana v. State of Maharashtra Supreme Court of India (2002)

Sexual violence and rape, Trafficking in persons

After a police raid on a brothel, four pimps were arrested and twenty-four women and girls were taken into custody. The magistrate ordered a medical examination to, among other things, determine the women's ages. The magistrate then ordered that the women 18 and over be released, and a few days later ordered the minor girls to be released. The magistrate explained that the girls had expressed a desire to be released. The Court held that this act was in violation of the Juvenile Justice Act, that only a child welfare board could determine how the girls were to be released. The Court then set forth guidelines for courts dealing with girls taken from brothels in the future.  This case is significant because victims of trafficking may need counseling and other medical services in order to prevent their re-victimization.



CEHAT v. Union of India Supreme Court of India (2001)

Female infanticide and feticide, Femicide, Harmful traditional practices

In this public interest litigation, an NGO that works on health issues challenged the government's failure to adequately address the issue of anti-girl child sex selection and the enforcement of the laws prohibiting prenatal sex identification. The Court ordered the government to respond with what it planned to do to address the problem.



Rajeev v. Ram Kishan Jaiswal Supreme Court of India (1992)

Dowry-related violence, Harmful traditional practices

In this case, a woman's in-laws repeatedly demanded additional gifts from her. As a result of this harassment, the woman committed suicide. The Court defined dowry as any demand for gifts in relation to marriage and dowry death as a death within seven years of marriage where there have been demands for dowry.



Delhi Domestic Working Women's Forum v. Union of India Supreme Court of India (1991)

Gender-based violence in general, Sexual violence and rape

In this public interest litigation, the case at issue concerned six women who were sexually assaulted and raped on a commuter train. The Court set out new requirements for police dealing with rape victims, including that victims be provided with legal representation, informing the victim of all her rights before questioning her, and protecting her anonymity during trial. The court also ordered that the criminal compensation board consider the totality of the circumstances, ranging from the emotional pain of the act itself to medical costs and emotional pain associated with any child that might result from the rape when setting out compensation to be paid.



Sakshi v. Union of Inda Supreme Court Supreme Court of India (2004)

Sexual violence and rape

In this public interest litigation, the Supreme court ordered the use of extensive measures to protect children during sexual abuse trials.



Dr. G.M. Natarajan v. State, Supreme Court Supreme Court of India (1995)

Gender-based violence in general, Harmful traditional practices

A woman, harassed by her husband and in-laws for additional dowry, committed suicide by jumping into a well with her baby.  The trial court acquitted the accused because the prosecution did not prove the case.  The Court reversed, holiding that if the facts necessary to create a presumption of dowry-death are shown, the burden of proof shifts to the defendant and not the prosecution.



Madan Gopal Kakkad v. Naval Dubey Supreme Court of India (1992)

Statutory rape or defilement

A man attempted to have vaginal sex with an eight year-old girl, but did not break her hymen. The Court held that even the slightest penetration meets the definition for rape.



Aruna Parmod Shah v. Union of India High Court of India (2008)

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

A man charged with domestic violence against his female live-in domestic partner challenged the law's use by an unmarried domestic partner. The court held that domestic violence by a man against a woman in any marriage-like relationship, or even relationships outside marriage, is subject to the law. This decision is notable given that many marriages in India are unofficial or not legally valid.



Ashok Kumar v. Birakishore High Court of India (2004)

Gender discrimination, Harmful traditional practices

A father alleged that his son-in-law had kidnapped his daughter.  The daughter showed that she was of age and had married of her own free will.  The court held that a family can have no control over who an adult chooses to marry.



Association for Social Justice Research v. Union of India Supreme Court of India (2010)

Harmful traditional practices

A father married his 11–12 year old daughter to an adult man.  When an NGO intervened, the father and "husband" argued that no money had been exchanged and that the girl would have a better life in marriage.  The Court held that marriage of a minor girl is presumptively invalid unless the girl decides otherwise when she reaches 18 years of age.



Bachcha v. State of U.P. Supreme Court of India (2007)

Sexual violence and rape, Statutory rape or defilement

A man took a six year-old girl into his house, removed her clothes and masturbated until he ejaculated on her stomach. The prosecution charged that he was found in the act of raping the girl, but the medical evidence showed that he could not have done so. The Court held that he could be found guilty of an "offence to modesty," which the court defined as any action that would be shocking the sense of decency of a woman. Here, the Court finds the perpetrator guilty despite India's inadequate criminal law to deal with sexual assault not amounting to rape.



Lim Boon Tak et al. v. Public Prosecutor High Court of Brunei (1997)

Trafficking in persons

The Court reviewed a guilty verdict against defendants under the Women and Girls Protection Act and Passport Act for forcibly bringing two women into Brunei for the purposes of prostitution.  The Court found that the Magistrate judge was did not err in relying on testimonial evidence if that evidence was found to be reliable.



Public Prosecutor v. Hishamuddin Bin Hj Chuchu High Court of Brunei (1997)

Gender-based violence in general, Sexual violence and rape

Although the Court found that intercourse was consensual and lacked the requisite forcible element, it stated that evidence from the alleged victim is enough to corroborate a rape allegation.



Air India v. Nargesh Meerza Supreme Court of India (1981)

Abortion and reproductive health rights, Gender discrimination

Air India, a state-owned company, required female flight attendants to retire under three circumstances: (1) upon reaching 35 years of age, (2) upon getting married, or (3) upon first pregnancy. The Court struck the rules down, holding that these requirements constituted official arbitrariness and hostile discrimination.



Amit Sundra v. Sheetal Khanna High Court of India (2007)

Domestic and intimate partner violence, Gender violence in conflict

In a case of domestic violence, under the 2005 Protection of Women from Domestic Violence Act, the Delhi High Court upheld the Magistrate Court's injunctive order to allow the wife and some of her family to remain in the marital home until the case was fully prosecuted.



Thomas v. Union of India (2010)

Gender discrimination

Ms. Saumya Ann and Mr. Thomas, who were Christians by faith, had applied for a decree of divorce by mutual consent under Section 10A of the Divorce Act. The lower court rejected the application because the Divorce Act requires that the filing couple shall have lived in separate residences for a minimum period of two years, but Ms. And Mr. Thomas had been living apart for only one year. On appeal, the couple argued that the law was a violation of their right to life and liberty guaranteed under Article 21 of the Indian Constitution. They also argued that such law was discriminatory and in violation of Article 14 of the Constitution because Hindus and Parsis were entitled to divorce by mutual consent after living apart for only a year. The Government argued that the law in question pertained to Christians and was their personal religious law, granting it complete insulation from any form of interference by courts. The Kerala High Court rejected the government’s contention. The Court held that the couple was entitled to seek a decree of divorce by mutual consent, that the requirement of two years violated the right to seek a divorce as guaranteed under Article 21 of the Indian Constitution, and that the constitutional right to equality includes the right to divorce as persons from other religions are. Instead of declaring the law unconstitutional, the Kerala High Court read down the two-year requirement to one year, like the laws applicable to Hindu and Parsi divorces. This case is significant because it demonstrates that customs and laws, even if religious in nature, can be invalidated if they violate the fundamentals rights guaranteed by the Indian Constitution.



Reports

Our Time to Sing and Play: Child Marriage in Nepal, Human Rights Watch (2016)

Domestic and intimate partner violence, Forced and early marriage, Gender discrimination, Harmful traditional practices, Statutory rape or defilement

While there are certain legal protections in place, such as a law establishing the minimum age of marriage at 20, enforcement is weak. Police and local governments rarely intervene to prevent child marriages. Nepal’s Post-2015 Sustainable Development Goals, Goal 5, targets ending child marriage by 2030. Further developing the National Plan of Action to End Child Marriage would advance Nepal’s National Strategy to End Child Marriage. 37% of girls in Nepal marry before age 18, 10% percent marry before age 15, and many marry around the time they begin menstruating. Child marriage, mostly resulting from forced marriage arrangements, is most prevalent in marginalized and lower caste communities. The key factors contributing to child marriage include poverty, lack of access to education and reproductive healthcare, child labor, social pressures and gender inequality, and the institution of dowry, which is payment by a bride’s family to the husband’s family for the marriage. In Nepali society, girls are often seen as a burden to a family, because they are expected to live with the husband’s families, as opposed to staying with and financially providing for their own families. The negative impact of child marriage includes dropping out of school, bearing and raising children too early in a child’s life, and domestic violence by the husband or husband’s family.



Avon Global Center 2011 Women and Justice Conference Report (2012)

Gender-based violence in general, Sexual violence and rape, Statutory rape or defilement

In 2011, the Avon Global Center for Women and Justice hosted a conference in New Delhi, India on the theme “Gender-Based Violence and Justice in South Asia.”



Lessons Learnt and Experiences Gained in the UNFPA Supported WPC Project on Addressing Sex Selection (2012)

Gender discrimination, Harmful traditional practices

During a three-year project (2008-2011) in India, the WPC assessed the circumstances surrounding and methods to address growing sex selection in India. A systematic process was put into place to set up multiple local-level implementing partners to collect data; increase education and awareness; and launch and maintain programs to induce long-term change of the traditional practices that lead to sex selection.


Staying Alive: Fourth Monitoring & Evaluation Report 2010 on the Protection of Women from Domestic Violence Act, 2005 (India) [pdf]. (2010)

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

Report by Lawyers Collective Women’s Rights Initiative (LCWRI), International Center for Research on Women (ICRW) and UN Trust Fund to End Violence Against Women on the implementation of India’s domestic violence law since its establishment in 2005 (2010).



Staying Alive (2005)

Gender-based violence in general

Lawyer's Collective of India Report evaluating the implementation of the Domestic Violence Act of 2005 in India.



They Took Me and Told Me Nothing (2010)

Female genital mutilation or female genital cutting, Harmful traditional practices

Human Rights Watch report on female genital mutilation in Iraqi Kurdistan.



Burnt Not Defeated (2007)

Gender-based violence in general

Report by Campaign and Struggle Against Acid Attacks on Women (CSAAAW) on acid attacks in Karnataka, India.



Combating Acid Violence in Bangladesh, Cambodia, and India (2011)

Acid violence

A Report by the Avon Global Center for Women and Justice at Cornell Law School, the Committee on International Human Rights of the New York City Bar Association, the Cornell Law School International Human Rights Clinic, and the Virtue Foundation, Combating Acid Violence in Bangladesh, Cambodia, and India.


Combating Acid Violence in Bangladesh, Cambodia, and India (2011)

Acid violence

A Report by the Avon Global Center for Women and Justice at Cornell Law School, the Committee on International Human Rights of the New York City Bar Association, the Cornell Law School International Human Rights Clinic, and the Virtue Foundation.


International Case Law

Sharma, et al. v. Nepal Human Rights Committee (ICCPR) (2018)

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

The Government of Nepal declared a state of emergency in response to a rebellion by the Maoist party and granted powers to the Royal Nepal Army to arrest individuals on suspicion of involvement in terrorist activities through and to keep them in detention for up to 90 days without charge.  The first author, Sarita Devi Sharma, is the sister of Himal Sharma, Secretary-General of a Maoist-affiliated political party in Nepal.  Ms. Sharma and her friend B.M. were followed and asked about Ms. Sharma’s brother, then they were handcuffed, placed in a van and taken to Army barracks.  She was detained and held from October 2003 through 30 June 2005.  Once her husband, the second author, became aware of her disappearance, he submitted an application to the National Human Rights Commission denouncing her disappearance and submitted a writ petition to the Supreme Court of Nepal demanding an order of habeas corpus, which the court rejected, claiming lack of evidence proving her illegal detention.  He also informed Amnesty International about her disappearance, but they never received a reply from the Government when they inquired about her.  During the first four-five months, she was routinely interrogated, beaten, held underwater for long periods of time and threatened with rape.  After that, she suffered ill health and was taken to a hospital.  In the hospital, she sent a letter secretly to her husband who, after several months of not hearing any further information, shared it with members of All Nepal National Independent Student Union Revolutionary who included information about her condition in a press release.  As a result, Ms. Sharma was interrogated harshly and beaten.  Ms. Sharma was then moved to a small, dark room and kept in isolation.  Her husband filed a new petition for habeas corpus with the Supreme Court, which ordered her release.  The Committee determined that Nepal produced no evidence to show that, while Ms. Sharma was held in incommunicado detention, it met its obligations to protect her life, and that this failure resulted in a violation of article 6(1) of the Covenant.  In addition, the Committee found that the enforced disappearance and incommunicado detention of Ms. Sharma, and the acts of torture and conditions to which she was exposed constituted violations of article 7 of the Covenant.  Further, the Committee concluded that the enforced disappearance and arbitrary detention of Ms. Sharma amounted to a violation of article 9 (1-4) of the Covenant.  The enforced disappearance deprived her of the protection of the law and her right to recognition as a person before the law in violation of article 16 of the Covenant.  The anguish and distress suffered by Ms. Sharma’s husband and son, the third author, due to her enforced disappearance also were found to constitute a violation of article 7 of the Covenant.  The Committee determined that neither Ms. Sharma did not receive an adequate remedy (246,000 Nepalese rupees), in violation of article 2 (3), in conjunction with articles 6, 7, 9 (1-4) and 16, and her husband and son received no interim relief, which constituted a violation of article 2 (3), read in conjunction with article 7 of the Covenant.  Moreover, the Committee stated that Nepal was obligated to provide an effective remedy.  This remedy should include:  (1) conducting a thorough and effective investigation into the facts surrounding the detention and the treatment suffered in detention; (2) prosecuting those responsible for the violations committed and making the results public; (3) providing detailed information about the results of the investigation to Ms. Sharma and her family; (4) ensuring that any necessary and adequate psychological rehabilitation and medical treatment is provided; and (5) providing adequate compensation and appropriate measures of satisfaction for the violations suffered.  Further, in order to prevent the occurrence of similar violations in the future, the Committee stated that Nepal should ensure that its legislation:  (1) criminalizes torture and enforced disappearance and provides for appropriate sanctions and remedies; (2) guarantees that such cases give rise to a prompt, impartial and effective investigation; (3) allows for the criminal prosecution of those found responsible for such crimes; and (4) amends the 35-day statutory limit for claiming compensation for torture, in accordance with international standards.



Unal Tekeli v. Turkey European Court of Human Rights (2004)

Gender discrimination

The European Court of Human rights held that a Turkish Law preventing married women from keeping their own surname after marriage is unlawful discrimination on the basis of sex. As required under Turkish law, upon marriage Ms. Unal Tekeli took her husband’s last name. She continued to use her maiden name in her professional life and put it in front of her legal surname, but could not use her maiden name in official documents. She brought suit in the Turkish Courts requesting that she be able to use her maiden name and that the law was discriminatory, but her case was dismissed both at the trial court and upon appeal. After being dismissed, she brought suit in the European Court of Human Rights, alleging discrimination. The Court first determined that differential treatment did exist because under the law, married men were treated differently from married women. Next, it found that no objective and reasonable justification existed for such differential treatment. It acknowledged that Turkey has a goal of preserving the family unit, but noted that this goal was not defeated by allowing women to keep their surnames. Thus, preserving the family unit was not a justification for the unequal treatment of married men and married women. The Court held that the difference in treatment based on sex violated international law.



Tanbay Tuten v. Turkey European Court of Human Rights (2013)

Gender discrimination

Ms. Tanbay Tuten, a university professor, was married and took her husband’s surname as required by law in 1992. She continued, however, to use her maiden name in her professional life, even though she could not use it in official documents. In 2007, she brought a proceeding in the Turkish Courts requesting that she be allowed to use only her maiden name, but was denied in the lower court and on appeal. Ms. Tuten brought her case to the European Court of Human Rights contending that the law is discrimination on ground of sex. The Court held that the difference in treatment on grounds of sex was in violation of Article 14 and Article 8 of the Convention and based its analysis on Tekeli v. Turkey.



Pun Devi Maharjan v GoN, Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2008)

Gender discrimination

A petition claimed that the traditional practice of electing young girls as Kumaris, or “goddesses”, who are expected to follow certain social restrictions and appear at religious festivals violated the rights of the child. After ordering a study the Court found that this practice did not prevent the Kumari from getting an education or qualify as child labor. Rather, the Court found Kumaris to be an important cultural and religious institution and ordered compensation for former Kumaris who had not been socially reintegrated and ordered a study to find recommendations for preserving the rights, interests, and social security of current and ex-Kumaris. This case shows an astute consideration of the balance between cultural preservation and child’s rights in a country with deep cultural and religious traditions. Additionally, it sets the important precedent of considering the practical well-being and rights of the child before implementing human rights reforms.



Meera Dhungana v Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2007)

Gender discrimination, Property and inheritance rights

The petitioner filed to amend a provision in pension payments by the Nepalese Army that withheld payments from married daughters. The Court ruled to invalidate this measure based on the grounds that pension payments to children were stopped at 18 years, before the legal age of marriage, making it obsolete. However, the Court also acknowledged that this provision was contrary to Article 11 of the Constitution of the Kingdom of Nepal which guarantees equal rights to all, in particular highlighting that equality is meant in practical terms sometimes necessitating positive discrimination. By interpreting Article 11 of the Constitution to include positive discrimination, this case opens the door to proactive human rights defense measures.



Sapana Pradhan Malla v Office of Prime Minister and Council of Minister and Others Supreme Court of Nepal (2007)

Gender discrimination

The Forum for Women, Law and Development in Nepal brought a petition to the Supreme Court filing for an exhaustive law ensuring privacy for vulnerable groups; particularly women, children, and persons living with HIV/AIDS. The Court ruled that enforcing the right to privacy for these and other sensitive parties in legal proceedings is inextricable from other Constitutional rights, including life and dignity, and vital to ensuring justice. Therefore, the Court ordered a directive for a law to be passed ensuring the right to privacy and set forth detailed guidelines for maintaining privacy to be followed in the interim. This ruling guarantees a crucial right to victims of gender violence and other abuses, opening a window for them to seek justice without fearing further injury from social stigma, discrimination, or retaliation. Furthermore, the ruling acknowledges that certain Constitutional rights much be positively enforced through legal codes.



Sapana Pradhan Malla and Others v, Office of Prime Minister and Others Supreme Court of Nepal (2006)

Gender discrimination

The Women, Law and Development Forum of Nepal won a petition calling for the Supreme Court to order revision of a law setting the legal age for marriage at 18 years for women and 22 years for men. The Court held that this law promoted gender inequality in contradiction of Article 11 of the Constitution and acknowledged that it can cause significant harm in a country where female literacy rates are low and there are high levels of gender discrimination. The Court also ordered for better enforcement of these laws in light of the continued prevalence of child marriage. Here the Supreme Court of Nepal has once again heeded a petition from a civilian organization and privileged gender equality in reformulating laws, showing a willingness to uphold women’s rights, promote social change, and respond to activism from groups such as the Women, Law, and Development Forum.


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.



Jit Kumari Pangeni (Neupane) and Others v. Prime Ministers and Council of Ministers and Others Supreme Court of Nepal (2008)

Domestic and intimate partner violence, Gender discrimination, Sexual violence and rape

A woman who had been a repeated victim of marital rape petitioned the Supreme Court of Nepal to make sentencing for marital rape on par with sentencing for other types of rape. The Court found that punishing marital rape differently from other forms of rape violated equal rights provisions in the Interim Constitution and international law, especially considering that prior sentencing guidelines of three to six months put the victim in danger of repeated violence and rape. Although the Court did not have the power to change sentencing terms on existing offences, it directed the legislative authorities to change sentencing terms for marital rape, showing recognition of the gravity of rape as a violation of rights and dignity while also exhibiting a proactive will to reform legal codes in the name of equality.



Somprasad Paneru and Others v. Office of the Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2006)

Trafficking in persons

Citing reports that a traditional custom called Kamlari sends over 10,000 children between the ages of 7 and 8 into servitude for wealthy households or small businesses, a petition called for new controls on this practice which is against both Nepalese constitutional law and the Convention on Rights of the Child, 1989 (CRC). The Court ordered the Government of Nepal to frame laws to abolish Kamlari and ensure protection of affected children. In addition, the Court called on the government to develop comprehensive legislation addressing the underlying issues that perpetuate such harmful practices, such as education and employment, especially amongst girls and women. By rooting out the base causes for harmful traditional practices, the Supreme Court of Nepal showed a crucial willingness to identify and address the societal problems driving harmful practices, providing hope for real change in women’s and human rights.



Tek Tamrakar and Others v. HMG Cabinet Secretariat and Others Supreme Court of Nepal (2005)

Gender discrimination

Women of Badi origin, an ethnic minority subjected to social and economic exclusion in Nepal, are often forced into prostitution and become single mothers. The petition sought to rectify the common practice of denying citizenship and other rights to Badi children when the father cannot be found. The Court ruled that it was unconstitutional to deny citizenship on such claims and, furthermore, amended a law that gave men precedence over women in birth and death registrations. Finally, in light of the range of abuses suffered by the Badi, the Court ordered a study on problems faced by the Badi community directed that all recommendations produced be implemented. This case is remarkable not only in recognizing the impacts of ethnic and gender discrimination but also in going beyond the petitioners request to proactively address the wider range of related rights abuses.



Memoranda

Maternity Benefits: International and Regional Standards and Guidelines on Maternity Benefits and Country Samples of Best Practices (2015)

Employment discrimination, Gender discrimination, Sexual harassment

Adequate and sufficient maternity leave, coupled with appropriate accommodations on return to work, are essential to women’s physical and psychological wellbeing after giving birth. This memorandum outlines the international and regional framework relating to maternity benefits and provides country illustrations of best practices from Sweden, Croatia, Chile, South Africa, and Vietnam.



Child Marriage in Bangladesh: Birth and Marriage Registration (2013)

Forced and early marriage, Gender discrimination

This memorandum discusses the link between child marriage and birth and marriage registration. Section I of this memorandum focuses on birth registration, including the importance of registration, government and civil society birth registration initiatives in Bangladesh and the factors that perpetuate low rates of birth registration and recommendations for overcoming them. Section II briefly introduces marriage registration, the unreliability of which also contributes to Bangladesh’s high rates of child marriage.



Child Marriage in Bangladesh: Impact of Discriminatory Personal Laws (2013)

Forced and early marriage

This Memorandum discusses the impact of personal laws on the treatment of child marriage within Bangladesh. Bangladesh’s antiquated personal laws relating to marriage fail to protect children,reinforce support for early marriage, and directly contradict statutory law in Bangladesh. Examining Bangladesh’s current legal framework highlights the problematic influence that discriminatory personal laws have on the fulfillment of national and international obligations concerning child marriage.



Consultation Paper on Manmade Disasters (2013)

Gender violence in conflict

This consultation paper written for the Law Commission of India discusses whether there is a need for a specific legal apparatus to provide relief to the victims of tragedies and manmade disasters.



Domestic Violence in Turkey (2011)

Domestic and intimate partner violence

This memorandum provides a brief overview of violence against women in Turkey and, in doing so, highlights select reports and news stories, and references key legal obligations and case law touching on this problem.



Child Marriage in Bangladesh: Causes, Consequences, and Legal Framework (2013)

Divorce and dissolution of marriage, Forced and early marriage, Gender discrimination

This memorandum discusses the context, causes, consequences, and legal framework of child marriage in Bangladesh



Child Marriage in Bangladesh: Occurrence and Links to Sexual Harrassment (2013)

Forced and early marriage, Gender discrimination

This memorandum examines the occurrence of child marriage in Bangladesh and explores its link with sexual harassment. Bangladesh has one of the highest occurrences of child marriage in the world. This high rate of marriage of girls below the age of 18 is due to a variety of causes, including patriarchal social mores, parental desire to safeguard girls against premarital sex and out-of-wedlock pregnancies (and the associated social stigma associated with these), and poverty, linked with the perception of girls as an economic burden. In addition to these more widely known causes of early marriage, the widespread prevalence of severe and public sexual harassment in Bangladesh is gaining attention as an important, albeit lesser-studied cause of child marriage.



Class Action Litigation in the United States (2012)

Gender-based violence in general

This memorandum presents information regarding class action lawsuits in the United States, highlighting the importance of Rule 23 of the Federal Rules of Civil Procedure, outlining the most common types of class action lawsuits in the United States, discussing the pros and cons of using class action litigation, and briefly considering the practicality of utilizing the U.S. model of class action litigation in India.


Exploitation of Child Workers in Bangladesh (2010)

Gender-based violence in general, Harmful traditional practices, Trafficking in persons

This memorandum examines the exploitation of child domestic workers in Bangladesh and the ties between child domestic labor and trafficking.



Public Policy Considerations of Child Domestic Labor and Exploitation of Child Domestic Workers (2010)

Gender-based violence in general, Harmful traditional practices

This memorandum examines the public policy considerations raised by child domestic labor and the exploitation of child domestic workers.