North America

Domestic Case Law

Saks v. Franklin Covey Co. United States Court of Appeals for the Second Circuit (2003)

Abortion and reproductive health rights, Employment discrimination, Gender discrimination

The plaintiff’s employee health benefit plan denied coverage for certain infertility procedures that can only be performed on women, including in vitro fertilization (“IVF”). She sued her employer for unlawful discrimination under the Americans with Disabilities Act (“ADA”), Title VII, the Pregnancy Discrimination Act, and state law. The United States District Court for the Southern District of New York granted summary judgment in favor of the defendant-employer. On the plaintiff’s appeal, the Second Circuit analyzed the issue differently than the district court but ultimately affirmed the grant of summary judgment, finding that the health plan’s exclusion of coverage for surgical implantation procedures limited its infertility procedures for male and female employees equally and as a result did not amount to unlawful discrimination.



Lavin-McEleney v. Marist College United States Court of Appeals for the Second Circuit (2001)

Employment discrimination, Gender discrimination

The plaintiff, a female professor sued the defendant, alleging that her salary raises were less than those of comparable male professors in violation of the Equal Pay Act and Title VII. At trial, both parties’ experts provided statistical evidence based on multiple regression analyses controlled to eliminate any observed gender disparity, including rank, years of service, division, tenure status, and degrees earned. Both experts found a difference in pay between comparable men and women, but disagreed about the statistical significance of that difference. The District Court for the Southern District of New York entered judgment for the plaintiff. The defendant appealed, arguing that the plaintiff had failed to make a case for discrimination because she had not identified a specific higher-paid male professor in her department and that she had impermissibly compared herself to a male employee statistical composite rather than an actual male employee. The Second Circuit affirmed the district court’s decision, holding that the plaintiff had identified a specific male comparator since only two other professors were comparable in each of the five categories identified by the expert witnesses, and one of them was a male professor who received higher pay. The Second Circuit further held that it was proper for the professor to introduce



Raniola v. Bratton United States Court of Appeals for the Second Circuit (2001)

Employment discrimination, Gender discrimination, Sexual harassment

The plaintiff, a female police officer sued a police department, alleging hostile work environment, sexual harassment, and retaliation claims under Title VII. The plaintiff alleged that she suffered years of abuse because she was a woman, including derogatory remarks, disproportionately burdensome assignments, sabotage of her work, threats, and false accusations of misconduct. The United States District Court for the Southern District of New York granted the defendants’ motion for judgment as a matter of law. The Second Circuit reviewed all the evidence in the light most favorable to the officer and found that a reasonable jury could have arrived at a different conclusion than the district court. The Second Circuit determined that the evidence presented by the officer formed a sufficient basis for a reasonable jury to conclude that she was subjected to hostile work environment because she was a woman and that she was suspended, put on probation, and then terminated in retaliation for having complained about her treatment. The Second Circuit vacated the judgment and remanded the claims for retrial.



Bah v. Mukasey United States Court of Appeals for the Second Circuit (2008)

Female genital mutilation or female genital cutting, Gender-based violence in general, Harmful traditional practices, International law

Three plaintiffs from Guinea who underwent female genital mutilation (“FGM”) appealed decisions from the Board of Immigration Appeals (“BIA”), which had denied their claims for relief and withholding of removal under the Convention Against Torture based on FGM. An applicant who demonstrates past persecution benefits from the presumption that he or she faces future persecution, unless the government shows either a change of circumstances such that the applicant’s life or freedom would not be threatened upon return to his or her native country, or a reasonable possibility of internal relocation within the country. Here, the BIA found that the presumption was automatically rebutted because the FGM had already occurred. On appeal, the Second Circuit held that the fact that an applicant had already undergone FGM cannot, in and of itself, rebut the presumption that her life or freedom will be threatened in the future. In doing so, the Second Circuit found that the BIA had committed two significant errors in its analysis. First, it assumed that FGM is a one-time act without placing the burden on the government to show that the individuals in this case are not at risk of further mutilation. Second, to rebut the presumption, the government must show that changed conditions in the country obviate the risk to life or freedom related to the original claim; it is not enough that the particular act of persecution suffered by the victim in the past might not reoccur. The Second Circuit accordingly vacated the BIA decisions and remanded the cases.



Kone v. Holder United States Court of Appeals for the Second Circuit (2010)

Female genital mutilation or female genital cutting, Harmful traditional practices, International law

The plaintiff, who was from Côte d'Ivoire, appealed a Board of Immigration Appeals (“BIA”) decision affirming the denial of her asylum application, withholding of removal, and protection under the Convention Against Torture. Her asylum claim was based on female genital mutilation (“FGM”) and her fear that her daughters would be subjected to FGM if she was removed. An applicant who demonstrates past persecution benefits from the presumption that he or she faces future persecution unless the government rebuts that presumption by showing that there is either a change of circumstances such that the applicant’s life or freedom would not be threatened upon return to his or her native country, or a reasonable possibility of internal relocation within the country. Here, the BIA found that the plaintiff’s several voluntary return trips to her native country prior to her application for asylum rebutted that presumption and undermined her credibility. The Second Circuit disagreed, finding that a safe return on one occasion does not preclude potential future harm and that the regulation does not require an applicant to show that she would immediately be persecuted upon return. Similarly, the Second Circuit also found that an applicant’s return trips are not sufficient to undermine an applicant’s credibility. The Second Circuit accordingly vacated the BIA decision and remanded the case, noting that the agency may wish to consider the application for “humanitarian asylum.”



U.S. v. Robinson United States Court of Appeals for the Second Circuit (2012)

Statutory rape or defilement, Trafficking in persons

A federal grand jury convicted the defendant-appellant of child sex trafficking in violation of 18 U.S.C. A minor victim testified that she started dating the defendant when she was 17 years old but had told him and others that she was 19 years old. She insisted that the defendant was only living off her income as a prostitute and was not a pimp facilitating prostitution.  However, the prosecution introduced videotaped statements in which the defendant repeatedly implored Doe to make money for him and threatened her when she failed to deliver the money. Following a jury trial, the defendant was convicted of two counts of sex trafficking of a minor. On appeal, the Second Circuit considered the construction of 18 U.S.C. § 1591(c), an evidentiary provision added by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), which provides that “[i]n a prosecution . . . in which the defendant had a reasonable opportunity to observe [the victim], the Government need not prove that the defendant knew that the person had not attained the age of 18 years.” The Second Circuit affirmed the judgment of the district court, holding that this provision imposes strict liability with regard to the defendant’s awareness of the victim’s age and relieves the government’s usual burden to prove knowledge or reckless disregard of the victim’s underage status under § 1591(a). The Second Circuit rejected the defendant’s challenges to this provision as lacking merit and affirmed the judgment of the district court.



McGlothlin v. Bristol Obstetrics, Gynecology and Family Planning, Inc. Court of Appeals of Tennessee at Knoxville (1998)

Abortion and reproductive health rights

A mother and daughter sued an abortion provider for having performed an abortion on the minor daughter without first obtaining her parents’ approval, which was in violation of a Tennessee statute. The daughter was 17 years and ten months old at the time. The trial court dismissed the complaint because the statute was unconstitutional as applied to the abortion rights of minors. The Court of Appeals of Tennessee affirmed, finding that the statute in question violated the privacy rights of minors seeking abortions.



Berning v. State Department of Correction Court of Appeals of Tennessee at Nashville (1999)

Employment discrimination, Sexual harassment

The plaintiff, the manager of the Tennessee Department of Correction’s Murfreesboro probation office, was fired after an anonymous letter was sent to the department alleging that the office was rife with sexual harassment, creating a hostile work environment. An administrative law judge reviewed the plaintiff’s termination and found it to be warranted. The plaintiff appealed the administrative law judge’s decision to the Davidson County Chancery Court, which affirmed the order. The Court of Appeals of Tennessee affirmed the Chancery Court’s decision, holding in part that the conduct for which he was fired was not protected speech under the First Amendment.



Spann v. Abraham Court of Appeals of Tennessee (1999)

Employment discrimination, Gender discrimination

The plaintiff, a cook and assistant manager at the defendant’s pizza franchise, informed her employer that she was pregnant. The defendant offered her the position of a backup night driver—a position she had held before—and proposed that his son replace her as the assistant manager while she took maternity leave. When she refused, the defendant informed her that if she did not accept the temporary reassignment, he had no other position for her. She quit soon after and sued in the Davidson County Circuit Court for pregnancy discrimination in violation of the Tennessee Human Rights Act (“THRA”). The Court entered a directed verdict in favor of her employer, and the Court of Appeals of Tennessee affirmed, finding that the plaintiff had failed to establish a prima facie case that the defendant discriminated against her because she was pregnant.



Keeton v. Hill Court of Appeals of Tennessee at Nashville (2000)

Gender discrimination, Sexual harassment

The plaintiff was fired for falsifying documents related to her work time. She sued in the Davidson County Chancery Court, alleging sexual harassment and retaliatory discharge in violation of the Tennessee Human Rights Act (“THRA”). The plaintiff alleged that her supervisors made sexually derogatory remarks to her, and that she was fired shortly after she complained about these comments. The Court granted summary judgment in favor of the defendant, and the Court of Appeals of Tennessee affirmed because the employer had established the affirmative defense of exercising reasonable care.



Tennessee Department of Health v. Boyle Court of Appeals of Tennessee at Nashville (2002)

Abortion and reproductive health rights

A Tennessee statute required private clinics providing a “substantial number” of abortions to obtain a “certificate of need” from the Health Facilities Commission and a license from the Department of Health. The Department of Health denied a license to plaintiffs, and then sued to enjoin them from performing abortions. Defendants alleged that the licensing requirement violated the United States and Tennessee Constitutions as they relate to women’s right to privacy. The Davidson County Chancery Court upheld the statute and enjoined the defendants from performing abortions. The Court of Appeals of Tennessee reversed, holding that the statute was unconstitutional.



Bundy v. First Tennessee Bank National Association Court of Appeals of Tennessee at Jackson (2007)

Employment discrimination, Gender discrimination

The plaintiff, a 59 year-old male employee, was fired following his failure to disclose documents he received from a customer. He filed suit in the Shelby County Circuit Court alleging both age and sex discrimination. The Court granted summary judgment in favor of his employer, and the Court of Appeals of Tennessee affirmed because the plaintiff was neither replaced by a younger female employee nor was he similarly situated to a younger female employee.



Smith v. City of Chattanooga Court of Appeals of Tennessee at Knoxville (2007)

Employment discrimination, Gender discrimination

The plaintiff was a police officer with the Chattanooga Police Department. After repeated sexual harassment by a fellow officer, she filed a sexual harassment complaint against the officer, and he was transferred to a different team. However, he still worked in close physical proximity to the plaintiff and his presence intimidated her. She filed suit in the Hamilton County Chancery Court, alleging hostile work environment and sexual harassment in violation of the Tennessee Human Rights Act (“THRA”). The Court granted a directed verdict in favor of the police department, but the Court of Appeals of Tennessee vacated the verdict, finding that reasonable minds could differ on whether the employer established the affirmative defense that it took appropriate corrective action.



Bellomy v. Autozone, Inc. Court of Appeals of Tennessee at Knoxville (2009)

Employment discrimination, Gender discrimination

The plaintiff was the defendant’s employee. She applied for the position of store manager, but the promotion was given to a younger male employee with less experience. She sued her employer in the Hamilton County Chancery Court alleging sex discrimination and other tort claims. The Court granted summary judgment in favor of her employer, but the Court of Appeals of Tennessee reversed and remanded her sex discrimination claims, finding that a genuine issue of material fact existed as to whether the plaintiff was qualified for the store manager position.



Hartman v. Tennessee Board of Regents Court of Appeals of Tennessee at Nashville (2011)

Employment discrimination, Gender discrimination

The plaintiff was a long-time employee of Tennessee Tech University’s facilities department, where she managed inventory and was required to make purchases of supplies and equipment. After she made a purchase that exceeded her $5,000 purchasing authority, and even though she had recruited multiple bids for the product and chose the best supplier, her employment was terminated. The plaintiff filed suit in the Putnam County Chancery Court for gender discrimination. The Court granted summary judgment in favor of the defendant. The Court of Appeals of Tennessee affirmed, finding that the plaintiff had not sufficiently alleged that a similarly-situated male employee was treated more favorably, even though she had named a male employee who was not fired after making a purchase that exceeded his purchasing authority.



Castro v. TX District Court of Appeals of Tennessee at Jackson (2013)

Employment discrimination, Gender discrimination

The plaintiff worked at-will as a sales representative for the defendant. Shortly after she started working there, she discovered she was pregnant and informed her supervisor. Shortly after that, her supervisor informed her that her yearly salary would be halved, allegedly because she had failed to meet sales quotas. When she contacted the CEO (with whom she had interviewed) about her pay reduction, her supervisor met informed her that it was inappropriate to go over his head. After renegotiating the terms of her employment, her employment was soon terminated, again allegedly for failing to meet sales quotas. The plaintiff filed suit in the Shelby County Chancery Court for of sex and pregnancy discrimination, retaliation, and hostile work environment. The Court granted summary judgment in favor of her employer, but the Court of Appeals of Tennessee reversed, holding that the defendant did not establish that there were no male comparators that were treated more favorably than the plaintiff.



Pierce v. City of Humboldt Court of Appeals of Tennessee at Jackson (2013)

Employment discrimination, Gender discrimination

The plaintiff was a police officer with the Humboldt Police Department. While off duty, she ran into an ex-boyfriend against whom she had a protective order. Based on this encounter, she filed a criminal charge against him for violating the order. The chief of police commenced an internal affairs investigation into her charges, and her ex-boyfriend filed a criminal charge against her for filing a false charge. While both charges were pending, the plaintiff informed the chief of police that she was pregnant. Once the internal affairs investigation was completed, the plaintiff’s employment was terminated. She filed suit in the Gibson County Circuit Court for discrimination based on gender and pregnancy in violation of the Tennessee Human Rights Act (“THRA”). The Circuit Court granted summary judgment in favor of her employer, but the Court of Appeals of Tennessee reversed and remanded, finding that the plaintiff had sufficiently alleged that she was treated differently than similarly situated male police officers.



Bazemore v. Performance Food Group, Inc. Court of Appeals of Tennessee at Knoxville (2015)

Employment discrimination, Sexual harassment

The plaintiff was employed by the defendant as a sales manager. Another sales manager in her office sexually harassed her verbally and physically. He repeatedly made sexually explicit comments towards her and grabbed her buttocks on one occasion. The plaintiff sued in the Hamilton County Circuit Court, alleging sexual harassment and constructive discharge in violation of the Tennessee Human Rights Act (“THRA”). The Circuit Court granted summary judgment in favor of her employer, and the Court of Appeals of Tennessee affirmed, finding that the employer took reasonable steps to prevent sexual harassment.



Sanders v. Lanier Supreme Court of Tennessee (1998)

Employment discrimination, Sexual harassment

The plaintiff worked as a youth services officer with the Dyer County Juvenile Court, where she alleged that a Chancery Court judge sexually harassed her verbally and physically. When she rejected his advances, the judge demoted her from her supervisory position, denied her salary increases, and altered her job requirements weekly. She sued the judge for quid-pro-quo sexual harassment, in violation of the Tennessee Human Rights Act (“THRA”). The Dyer County Chancery Court determined that the State was not the plaintiff’s employer for purposes of the THRA and dismissed her complaint for failing to state a cause of action. The Court of Appeals of Tennessee reversed and the Supreme Court of Tennessee affirmed the Court of Appeals decision. The Supreme Court of Tennessee held that the plaintiff did state a cause of action because the State was the plaintiff’s employer and the defendant was a supervisor acting in the scope of his employment, making the employer strictly liable under an “alter-ego” theory of liability.



Anderson v. Save-A-Lot, Ltd. Supreme Court of Tennessee (1999)

Employment discrimination, Sexual harassment

The plaintiff was the co-manager of a Save-A-Lot grocery store in Memphis, where her immediate supervisor sexually harassed her daily and threatened to kill her if she reported the harassment. She reported him and transferred to another store, but suffered post-traumatic stress disorder (“PTSD”) and other psychological problems for which she sought medical treatment. She filed a complaint for workers compensation, which is at issue in this appeal, as well as a claim in federal court for sexual harassment in violation of the Tennessee Human Rights Act (“THRA”) and Title VII of the Civil Rights Act of 1964. The Shelby County Chancery Court granted summary judgment in favor of her employer on her worker’s compensation claim, finding that that her injuries did not arise out of her employment. The Special Workers Compensation Appeals Panel reversed and remanded, but the Supreme Court of Tennessee reversed the Panel’s ruling, holding that her employment was not the “but for” cause of her injuries.



Parker v. Warren County Utility District Supreme Court of Tennessee (1999)

Employment discrimination, Sexual harassment

The plaintiff worked as a bookkeeper for the defendant. The general manager of the district repeatedly touched her inappropriately and made inappropriate remarks to her. Parker made numerous complaints to her immediate supervisor, but the harassing conduct continued until she resigned. Soon after, she sued the defendant for sexual harassment in violation of the Tennessee Human Rights Act in the Warren County Chancery Court. The court granted summary judgment in favor of the defendant, finding that it took prompt corrective action in response to plaintiff’s complaints, thereby establishing a complete affirmative defense. The Court of Appeals of Tennessee reversed, finding that there was a genuine issue of material fact as to whether the defendant acted promptly and adequately. The Supreme Court of Tennessee held that an employer is subject to vicarious liability for actionable hostile work environment sexual harassment by a supervisor with immediate, or successively higher, authority over employee, but that a genuine issue of material fact existed as to whether the employer exercised reasonable care. The Court remanded the case for further proceedings.



Planned Parenthood of Middle Tennessee v. Sundquist Supreme Court of Tennessee (2000)

Abortion and reproductive health rights

A Tennessee criminal statute required that physicians warn their patients that “abortion in a considerable number of cases constitutes a major surgical procedure,” that second-trimester abortions be performed in a hospital, and that women wait two days after meeting with a physician to receive an abortion. The plaintiff challenged the constitutionality of these provisions. The Davidson County Circuit Court struck down as unconstitutional the statutory warning and two-day waiting period as unconstitutional, but allowed the hospitalization requirement. The Court of Appeals of Tennessee reversed, finding each requirement constitutional. The Supreme Court of Tennessee reversed the Court of Appeals, holding that none of the provisions could be deemed constitutional under the proper strict scrutiny framework.



Women's Medical Center of Providence, Inc. v. Roberts United States District Court for the District of Rhode Island (1982)

Abortion and reproductive health rights, Gender discrimination

This case struck down provisions of the Rhode Island “Informed Consent for Abortion” Act for failure to demonstrate a compelling state interest to justify its interference with women’s rights to abortion including: (i) a provision that required women be informed of “all medical risks” associated with the abortion procedure, including “psychological risks to the fetus,” as such a provision was unconstitutionally vague; (ii) a provision requiring a woman seeking abortion to give written consent to the procedure at least 24 hours prior to her scheduled operation, as such a provision imposed a legally significant burden on a woman’s fundamental right to terminate her pregnancy, and the state did not demonstrate a compelling state interest necessitating such waiting period. However, the Court upheld a provision requiring that an abortion patient be informed of the “nature of her abortion,” i.e., that the abortion will irreversibly terminate her pregnancy.



Constitutional Right to Life Committee v. Cannon Supreme Court of Rhode Island (1976)

Abortion and reproductive health rights

A non-profit corporation filed a claim protesting the validity of a regulation requiring specified facilities, procedures, and personnel whenever a pregnancy is terminated within the geographical boundaries of Rhode Island, arguing that the regulations failed to consider the life of the unborn child. The Supreme Court of Rhode Island held that the regulation did not improperly disregard the life of the unborn child because, as a matter of constitutional law, the only interest that a state may assert in regulating abortion procedures prior to the time of a child’s viability is during the second trimester when the state may regulate abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.



State v. Ware Supreme Court of Rhode Island (1980)

Statutory rape or defilement

The Supreme Court of Rhode Island rejected the argument that the state’s criminal statute outlawing carnal knowledge of a girl under 16 years of age violated equal protection of the law, even though it created a classification based on sex by designating females as the only possible victims and subjecting only males to conviction under the statute. In rejecting the defendant’s argument, the court applied the rule that sex-based classifications that served important governmental objectives and were substantially related to the achievement of those objectives were not unconstitutional. The court cited the fact that the classification was substantially related to the important state’s interest in protecting female children “from the severe physical and psychological consequences of engaging in coitus before attaining the age of consent in the statute.” Therefore, the classification based on sex did not violate the constitution’s equal protection law.



Hamel v. Hamel Supreme Court of Rhode Island (1981)

Divorce and dissolution of marriage

Petitioners, husband, and wife filed cross-petitions for legal separation rather than an absolute divorce where the matrimonial bonds are completely broken. The Family Court dismissed both petitions because the husband’s stated reason for seeking legal separation was “irreconcilable differences.” The text of the statute ordaining legal separation seemed to require that it be an interim measure pending the reconciliation of the parties. Legal separation because of irreconcilable differences therefore, on its face, seemed to be an inconsistent proposition. The issue on appeal was whether irreconcilable differences could be grounds for a merely legal separation rather than an absolute divorce. The Supreme Court of Rhode Island ruled that based on the history of legal separation and legislative intent, a party can seek legal separation based on irreconcilable differences without needing to show that there is a possibility of reconciliation. Statutory text that seemed to contradict this ruling by requiring a show of a possibility for reconciliation was precatory but not mandatory.



McMaugh v. State Supreme Court of Rhode Island (1992)

Domestic and intimate partner violence

A woman and her husband were convicted of murder, and the woman appealed her conviction, arguing that her husband’s severe abuse prevented her from fairly defending herself at trial. Evidence of the abuse was discovered one year after the completion of trial, when the woman and her husband were placed in separate prisons. In reviewing the trial court’s denial of post-conviction relief, the Supreme Court of Rhode Island assessed whether the trial court considered if the additional evidence was newly discovered, material, and outcome determinative, and then whether such evidence, if appropriately before the court, warranted post-conviction relief. Upon hearing the newly discovered evidence, the court found that the pattern of extreme physical and mental abuse by her husband prevented the woman from assisting her attorney in presenting a reasonable defense at trial—rather, the evidence supported that the woman was suffering from battered women’s syndrome, which caused her, contrary to her own interests, to support her husband’s story at trial. Moreover, the evidence was and could only have been discovered after the wife was in prison and more removed from the husband’s domination and influence. The court found that this evidence warranted post-conviction relief, vacating the case and remanding it to the lower court for a new trial.



Sammataro v. Sammataro Supreme Court of Rhode Island (1993)

Divorce and dissolution of marriage

The General Master of Family Court granted custody of a child to the defendant because the plaintiff received public assistance. The issue on appeal was whether receiving public assistance was a legitimate criterion for the denial of child custody. In reversing the Family Court’s ruling for the defendant, the Supreme Court of Rhode Island reiterated the rule that any custody determinations must be based on the best interests of the child and delineated a non-exclusive test to determine the best interest of the child. The factors include, but are not limited to: (i) the wishes of the child’s parent or parents regarding the child’s custody; (ii) the reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding and experience to express a preference; (iii) the interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings, and any other person who may significantly affect the child’s best interest; (iv) the child’s adjustment to the child’s home, school and community; (v) the mental and physical health of all individuals involved; (vi) the stability of the child’s home environment; (vii) the moral fitness of the child’s parents; and (viii) the willingness and ability of each parent to facilitate a close and continuous parent-child relationship between the child and the other parent.



Congdon v. Congdon Court of Appeals of Virginia: Richmond (2003)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Property and inheritance rights

In this divorce case, the husband appealed the trial court’s decision to grant spousal support to the wife notwithstanding her adultery, based on the court’s finding that manifest injustice would otherwise result.  The appellant and the appellee were married for 20 years and had two children.  The appellant had a stable career in the trucking business and earned $250,000 per year and had assets totaling more than $6 million.  The appellee was the primary caretaker for the children and worked part-time as a receptionist earning $10 an hour.  She did not contest that she had an affair for at least five years during the marriage.  The court noted, however, that the evidence “portrayed the appellant  as a profane and verbally abusive man,” who frequented “strip joints and topless bars,” and frequently boasted and bragged about these experiences in lewd terms in front of the appellee and their children.  He was also verbally abusive to his children.  Several witnesses testified that “they had never once seen [him] show any affection or any kindness toward [his wife],” and that he “chronically complained” to the appellee and others about her “weight, appearance, housekeeping, and spending habits.”  The trial court explained that Va. Code § 20-107.1(B)the law precludes an award of support to any spouse found guilty of adultery, subject to narrow exceptions, including when the trial court determines from “clear and convincing evidence, that denial of support and maintenance would constitute manifest injustice, based upon the respective degrees of fault during the marriage or relative economic circumstances of the parties. The question before the court was whether the trial court committed a reversible error in stating that the statutory standard for deciding if a denial of support and maintenance constitutes a manifest injustice involved considering “either” the respective degrees of fault during the marriage “or” the relative economic circumstances of the parties.  In affirming the ruling of the trial court, the Court of Appeals held that the trial court erred, but also that it was a harmless error as it was supported by facts that satisfied the correct standard. The court determined that the proper standard for determining if a denial of spousal support would constitute a manifest injustice must consider “both” the comparative economic circumstances “and” the respective degrees of fault, i.e., the test was a conjunctive test rather than the disjunctive test used by the trial court.  Nevertheless, the Court of Appeals affirmed the ruling under correct test.  With respect to the relative degrees of fault, the Court of Appeals explained that adultery was not dispositive and that a reasonable factfinder could conclude that appellant’s severe and longstanding abusive conduct went beyond “mere incivility or petulance” and tipped the scales in appellee’s favor.  Moreover, the Court of Appeals affirmed the trial court’s finding of “extreme disparities” in the relative economic situations of the parties.  Consequently, the trial court erred in stating the standard for determining if a denial of spousal support would cause manifest injustice as requiring either economic disparities or fault instead of both factors, but the error was harmless as the factual findings addressed both factors under the appropriate standard.



Bergaust v. Flaherty Court of Appeals of Virginia (2011)

Gender discrimination, Property and inheritance rights

The plaintiff, a mother, brought a petition for child support against the putative father.  The two met during a trip to France and had a long-distance relationship for 18 months.  After returning to Virginia from another visit to the defendant in France, the plaintiff learned she was pregnant.  Because the defendant was her only sexual partner during the relevant time period, she informed the defendant that the child was his.  The defendant said he would help in any way he could and called twice a week during the pregnancy.  Their child was born in Alexandria, Virginia, and the defendant continued to call regularly during this time.  When the child was seven months old, the defendant came to Virginia to meet and spend time with the child.  Following this visit, the defendant’s contact with the plaintiff decreased and ultimately ceased.  Several years later, the plaintiff learned of the defendant’s whereabouts and brought a petition for child support.  The circuit court dismissed the petition for lack of personal jurisdiction. The question before the Virginia Court of Appeals was whether the defendant had fathered a child in Virginia pursuant to the long-arm statute that provided, in part, that a court may exercise personal jurisdiction over a person when it is shown that the person “conceived or fathered” a child in Virginia.  The statute does not define the terms “conceived or fathered.”  In finding no personal jurisdiction, the Court of Appeals affirmed the circuit court’s interpretation of the term “fathered” to mean “to beget or to procreate as father,” rejecting the plaintiff’s argument that the term encompassed “the acknowledgment of parentage” while in Virginia.  Although the Court of Appeals acknowledged that the ordinary meaning of “fathered” includes “to make oneself the father…by acknowledgment,” the court concluded that if the state legislature had intended this broader meaning of the term, it “presumably would have included the word ‘mothered’ along with ‘conceived or fathered’ to encompass the non-custodial mother of a child living in [Virginia].”  Therefore, per Virginia law, the child was not fathered in Virginia and the long-arm statute could not grant personal jurisdiction over the matter.



deCamp v. deCamp Court of Appeals of Virginia: Chesapeake (2014)

Divorce and dissolution of marriage, Property and inheritance rights

The appellant and the appellee were married for 21 years and had three children.  After the birth of their first child, by mutual agreement of the parties, the appellee stopped working and became a homemaker and the children’s primary caregiver. In adjudicating couple’s separation agreement, the trial court ordered the appellant to pay the appellee spousal support in addition to child support pursuant to statutory guidelines.  On appeal, the appellant raised several arguments including that the trial court failed to exclude child-related expenses that he already had to pay for through child support awarded to appellee and that the court erred in refusing to impute income to appellee even though she was voluntarily unemployed.  With respect to  the first argument, the court affirmed the trial court’s conclusion, explaining that expenses that are indivisible by nature or trivial in amount need not be segregated. Although “some of wife’s claimed expenses did indeed include expenses attributable to the children, such as Internet service fees, utilities, and food,” those expenses were properly included in the spousal support award because they were “indivisible by their very nature.”   With respect to the trial court’s refusal to impute income to the appellee, the court explained that “the law does not require wife return to work immediately upon divorce to avoid judicial imputation of income merely because she has provable earning capacity at the time of the divorce.”  Rather, any decision to impute income must be done “within a review of all the statutory factors concerning spousal support.”  Under the circumstances, the court found the trial court’s refusal to impute income to the appellee to be supported by the facts, given that the appellant  had been the sole monetary contributor for the entire duration of their marriage, the appellee had left her nursing career in order to be a full-time homemaker and caregiver for their children, and the family moved eight times over the course of the marriage in order to enable the appellant  to pursue and advance his military career. Thus, the refusal to impute any income to her was not an error.



J. v. Victory Tabernacle Baptist Church Supreme Court of Virginia (1988)

Statutory rape or defilement

The plaintiff, the mother of 10-year-old girl, sued the defendant, the Tabernacle Baptist Church, alleging that her daughter had been repeatedly raped and sexually assaulted by an employee of the church.  The plaintiff alleged that the church knew or should have known that its employee had recently been convicted of aggravated sexual assault on a young girl, was currently on probation for this offense, and that a condition of his probation was that he not be involved with children.  In spite of this fact, the church hired the offending employee and entrusted him with duties that encouraged him to interact freely with children, gave him the keys to lock and unlock all of the church doors, and failed to supervise him.  As a result, the plaintiff’s daughter was raped by the employee multiple times, on and off of church grounds.  The trial court dismissed the action, concluding that, as a charitable organization, the church was immune from tort liability under the doctrine of charitable immunity.  The Virginia Supreme Court reversed and remanded. The question  before the court was whether the church, as a charitable institution, was immune from prosecution for torts under the charitable immunity doctrine. Answering in the negative, the Court cited cases in which Virginia courts held charitable hospitals liable for negligent hiring and concluded that there was no basis for distinguishing those cases from the case before it.  Thus, the Court held that the church could be held liable for negligently hiring an employee.



S. v. Cayouette Supreme Court of Virginia (1992)

Sexual violence and rape, Statutory rape or defilement

The defendant sexually abused the plaintiff between 1969 and 1978 when she was 5-14 years old. The plaintiff turned 18, the age of majority in Virginia, in 1982. She first received information from her psychologist regarding the causal connection between the childhood sexual abuse and the severe emotional harm she manifested in March 1990, and she subsequently filed a lawsuit against defendant for the abuse in July 1991. However, the trial court dismissed the lawsuit as untimely. The issue before the Virginia Supreme Court was whether, upon the lapse of the time fixed in the statute of limitations and the tolling statute (the grace period before the statute of limitations begins), the defendant acquired a right protected by due process guarantees notwithstanding a recent statute by the legislature with provisions to: (a) retroactively apply a ten-year statute of limitations . . . in cases in which the statute of limitations had expired . . . and (b) to create a twelve-month period during which such cases could be filed regardless of when the cause of action accrued. In affirming the lower court’s ruling the Virginia Supreme Court reaffirmed its well-established principle that the legislature possesses the power to enact retrospective legislation only if the statute is not destructive of vested rights. Here, defendant’s statute of limitations defense was a vested right. Infant plaintiff suffered an injury in that "she experienced positive, physical or mental hurt" each time defendant committed a wrongful act against her "and her right of action accrued on that date." The last such act was committed in 1978. Because plaintiff was 14 years old at that time, the statute of limitations was tolled until she attained her majority in 1982. The two-year time limitation expired in 1984. At that time defendant right to a statute of limitations defense vested and could not be repealed by subsequent legislation. The court therefore affirmed the lower courts’ ruling that defendant had acquired a right protected by due process guarantees and plaintiff’s suit was untimely.



Middlekauff v. Allstate Insurance Co. Supreme Court of Virginia (1994)

Employment discrimination, Gender discrimination, Sexual harassment

The plaintiff sued her former supervisor and former employer for intentional infliction of emotional distress due to her supervisor’s harassment, which consisted of sexist and belittling remarks over an extended period of time.  The lower courts held that her claim was barred by the Virginia’s Workers Compensation Act, which supplies remedied for injuries by accident, arising out of and in, the course of the employment or occupational disease but excluded any other remedies for such injuries. The issue before the Court was whether a pattern of harassment constituted the type of injury for which a lawsuit had to be filed under the Workers Compensation Act only. In reversing the lower courts’ decision, the court overruled its prior decision in Haddon v. Metropolitan Life Insurance Co., 389 S.E.2d 712 (Va. 1990), which held that a pattern of sexual harassment constituted an “injury by accident” and thus could only be brought under the Workers’ Compensation Act.  The Court reasoned that Haddon was irreconcilable with long-established precedent holding that a “gradually incurred” injury over an extended period of time did not constitute an “injury by accident” and was thus not covered by the Act’s exclusion of other remedies.  The Court’s decision allowed for a tort cause of action for intentional infliction of emotional distress based on a pattern of sexual harassment in the workplace.   



Lockhart v. Commonwealth Education Systems Corp. Supreme Court of Virginia (1994)

Employment discrimination, Gender discrimination, Sexual harassment

Two plaintiffs, A and B, sued their former employer for wrongful termination, one based on racial discrimination and the other based on gender discrimination. Plaintiff B alleged that her supervisor touched her sexually without her consent and, when she complained, he fired her.  The lower courts dismissed the actions, concluding that, pursuant to the employment-at-will doctrine, the plaintiffs were at-will employees who could be terminated for any or no reason at all.  The issue before the Court was whether workplace discrimination could constitute a public policy exception to the employment-at-will doctrine and whether the availability of federal statutory remedies precluded state tort lawsuits. In reversing lower courts’ decision, the Court cited its precedents recognizing a public policy exception to the employment-at-will doctrine and concluded that it is “[w]ithout question” that it is the public policy of the Commonwealth of Virginia that individuals within the state are “entitled to pursue employment free of discrimination based on race or gender.”  The Court rejected the employer’s argument that the availability of federal statutory remedies should preclude a state tort cause of action based on wrongful discharge, explaining that it is not uncommon for injuries resulting from the same set of operative facts to give rise to multiple remedies.



Niese v. City of Alexandria Supreme Court of Virginia (2002)

Sexual violence and rape

The plaintiff alleged that she was raped several times by a police officer who had been assigned to help her deal with her son’s behavioral issues.  The plaintiff reported the rapes to municipal mental health and domestic abuse entities, and she alleged that these entities violated their statutory duty to report these incidents or take further action.  Consequently, the plaintiff sued the Alexandria Police Department for intentional tort and negligent hiring.  The issue before the Court was whether the sovereign immunity doctrine barred the plaintiff from suing municipal entities for both intentional torts and negligence in failing to act upon plaintiff’s reports and in hiring and retaining the offending officer. The Virginia Supreme Court affirmed the lower court’s dismissal of the action as barred by sovereign immunity, explaining that a municipality is immune from liability for negligence associated with the performance of “governmental” functions, which include maintaining a police force and the decision to retain a specific police officer.  It declined to adopt an exception to sovereign immunity for the tort of negligent retention, as it had done in the context of charitable immunity.  The Court observed that whether a municipality is liable for an employee’s intentional torts was an issue of first impression in Virginia, but the Court relied on Fourth Circuit precedent to conclude that sovereign immunity applies in this context.  Finally, the Court held that the then-applicable statute requiring officials to make a report whenever they have “reason to suspect that an adult” has been “abused, neglected, or exploited” imposed a discretionary duty and not a ministerial duty upon the individuals subject to the reporting requirements and thus dismissed the claim. (i.e., ministerial duties make actions necessary when conditions for their performance arise while discretionary duties make actions optional, subject to the official’s judgment.)



Molina v. Commonwealth of Virginia Supreme Court of Virginia (2006)

Sexual violence and rape

The defendant appealed his convictions for rape and sodomy, arguing that there was insufficient evidence to convict him and that the victim was incapacitated due to voluntary intoxication.  The victim suffered from bipolar disorder and substance abuse. She was found non-responsive and half-naked behind a convenience store with rape-related injuries. She had high amounts of cocaine and alcohol in her blood, but low amounts of her prescribed lithium.  She stated that she had kissed the defendant but did not consent to sexual intercourse and had no recollection of intercourse with the defendant.  The defendant claimed the intercourse was consensual.  The issue before the Court was whether defendant could be convicted for rape because of the victim’s incapacity if such incapacity was not a permanent condition but a transitory condition such as voluntary intoxication. In affirming the conviction, the court explained that “[n]othing in the statutory definition itself limits the definition of ‘mental incapacity’ to a permanent condition,” but rather the statute defines incapacity to mean a condition existing “at the time of the offense” that “prevents the complaining witness from understanding the nature or consequences of the sexual act.”  Accordingly, the Court held that “mental incapacity” could extend to a transitory circumstance such as intoxication because the nature and degree of the intoxication went beyond the stage of merely reduced inhibition and reached a point where the victim did not understand “the nature or consequences of the sexual act.” Consequently, the Court upheld the convictions.



Nobrega v. Commonwealth of Virginia Supreme Court of Virginia (2006)

Domestic and intimate partner violence, Statutory rape or defilement

The defendant was convicted of rape and sexual abuse of his minor daughter and appealed, challenging the trial court’s refusal to order the victim to undergo a mental health examination and the sufficiency of the evidence supporting his conviction.  The defendant’s daughter, who was 11 years old, reported to her mother that defendant had sex with her on two occasions when she was seven and eight years old. In a motion to order a psychiatric examination of the child, defendant pointed to the child’s mental health history, which showed that she “had been diagnosed with psychological disorders and exhibited dysfunctional behavior.” The trial court denied the motion and the Virginia Court of Appeals affirmed the denial. The issue before the Court was whether the trial court erred in denying defendant’s motion to subject the plaintiff, a rape victim, to a psychiatric examination and whether the plaintiff’s testimony alone, without the requested mental examination, was sufficient to sustain defendant’s conviction. The Court affirmed the lower courts, finding that the trial process afforded “adequate safeguards to the accused to test the competency of the complaining witness without a court-ordered mental health examination of that witness.” Therefore, “a trial court has no authority to order a complaining witness in a rape case to undergo a psychiatric or psychological evaluation.”  With respect to the sufficiency of the evidence, the court noted its precedents establishing that “the victim’s testimony alone, if not inherently incredible, is sufficient to support a conviction for rape,” and that because the child’s testimony was not inherently incredible, it was sufficient to sustain defendant’s conviction. The trial court did not err in denying defendant’s motion to subject plaintiff to a mental examination and the plaintiff’s testimony, by itself, was sufficient to support the conviction.



Stephens v. Rose Supreme Court of Virginia (2014)

Stalking

The plaintiff filed a petition for a protective order against the defendant, her ex-boyfriend.  The two  ended their relationship in 2007, but from 2009 to 2012, the defendant made repeated, unsuccessful attempts to re-establish contact with the plaintiff via e-mail and social media.  In 2013, the defendant escalated his attempts, first driving to the plaintiff ’s parents’ home in Canton, Ohio, and approaching her father at 6:20 a.m. to find out where the plaintiff  was currently living.  The plaintiff’s father told the defendant not to contact the plaintiff anymore and then called 911. The plaintiff became afraid upon learning that the defendant had visited her parents’ home, asking her current boyfriend to stay with her because she was afraid to be home alone.  The defendant  began repeatedly calling and leaving voice messages for the plaintiff.  Within a one-week period, he called her 40 times.  On one occasion, the plaintiff ’s boyfriend answered the phone and told the defendant that he had the wrong number and not to call anymore.  The defendant also attempted to contact the plaintiff at her work.  Then, one day, after placing several calls between 2 and 3 A.M., the defendant showed up at the plaintiff ’s home at 7 A.M. with flowers, and the plaintiff ’s boyfriend called 911 and had him arrested. The issue before the Court was whether these acts satisfied the statutory requirements for a protective order which require an “[a]ct of violence, force, or threat.”  The Court held that stalking satisfies the requirements for a protective order even in the absence of physical harm or threatened physical harm.  The Court set forth three elements necessary to prove stalking: (1) “the defendant directed his or her conduct toward the victim on at least two occasions”; (2) “intended to cause fear or knew or should have known that his or her conduct would cause fear”; and (3) “the defendant’s conduct caused the victim ‘to experience reasonable fear of death, criminal sexual assault, or bodily injury.’”  The Court held that, in this case, these three factors were satisfied and explained, with respect to the third factor, that it was sufficient that the plaintiff said that she “was scared,” because “[a] victim need not specify what particular harm she fears to satisfy the third element of stalking.”   



Robinson v. Salvation Army Supreme Court of Virginia (2016)

Employment discrimination, Sexual harassment

The plaintiff sued her former employer, alleging wrongful termination because she refused her supervisor’s request for unmarried sex in violation of a statute that proscribed fornication. The plaintiff alleged that her supervisor also made frequent lewd requests and comments when he was alone with her as well as suggestive gestures and inquiries concerning her romantic life. After plaintiff played secret recordings of these conversations to human resources she was terminated without explanation.  The issue before the court was whether termination for refusing to engage in unmarried sex could be the basis of a public policy exception to the at-will employment doctrine. In rejecting the plaintiff’s claim, the court reasoned that a public policy argument cannot be based on an unconstitutional statute. Further, that a statute that sought to regulate private consensual sexual activity between adults was unconstitutional. Here, plaintiff could not base her claim on the statute that forbade unmarried sex because such a statute sought to regulate private consensual activity between adults and was therefore unconstitutional. This case is significant because the court reached this conclusion even though the conduct at issue was economically coercive and the same alleged facts could arguably have supported a wrongful discharge claim based on statutes concerning gender discrimination or “criminal acts” of “adultery and lewd and lascivious cohabitation,” statutes, which the court did not purport to overrule.   



Operation Rescue-National v. Planned Parenthood of Houston and Southeast Texas Supreme Court of Texas (1998)

Abortion and reproductive health rights

Doctors and clinics sued anti-abortion activist group Operation Rescue for invasion of privacy, tortious interference, and civil conspiracy. Anti-abortion activists planned to picket and obstruct abortion clinics and homes of physicians who worked for the clinics to coincide with the 1992 Republican National Convention. The district court granted a permanent injunction to restrict anti-abortion demonstrations, which prohibited activists from, among other things, demonstrating within specified areas of each clinic. Operation Rescue appealed. Pursuant to free speech principles, the Court held that the injunction must burden no more speech than necessary to serve a significant government interest. The Court upheld the injunction as it related to physicians’ homes, but found the injunction overbroad because it limited peaceful communication within speech-free zones, such as peaceful sidewalk counseling and prayer. The Court modified the injunction, allowing no more than two demonstrators within a zone. These two demonstrators may individually sidewalk counsel patients in a normal speaking voice, but must retreat when the patient or physician verbally indicates that they wish to be alone. Otherwise, the lower court’s judgment was affirmed.



In re: Jane Doe Supreme Court of Texas (2000)

Abortion and reproductive health rights

A pregnant minor applied for judicial bypass to have an abortion without notifying her parents. The trial court denied her application, finding that she was neither mature nor well-informed enough to consent to an abortion without parental notification. The Supreme Court reversed, finding that Doe showed that she was sufficiently well-informed. The trial court specifically denied Doe’s application because she was allegedly unaware of the intrinsic benefits of alternatives to abortion such as parenting and adoption. The Supreme Court held that even though a minor may not share the court’s views about what the benefits of her alternatives might be, it does not follow that she has not thoughtfully considered her options or acquired sufficient information about them. The Court noted that she had read about abortion, spoken to women who have had abortions, and discussed potential mental effects with a counselor. Moreover, she expressed that she was not ready for parenthood and that keeping the child would prevent her from going to college or having a career. The Supreme Court thus reversed the trial court and granted Doe’s judicial bypass, holding that when a minor has established that she has engaged in a rational and informed decision-making process and concluded that realistic concerns foreclose her alternatives, she cannot be denied the statutory bypass for failing to list general benefits seen by others.



In re Doe Supreme Court of Texas (2002)

Abortion and reproductive health rights

Pregnant minor filed an application for judicial bypass to receive an abortion without notifying her parents. The district court did not rule on the application or make findings of fact, but issued a writing that sua sponte concluded that the parental bypass law was unconstitutional. Doe appealed due to uncertainty about the judgment, and the court of appeals dismissed for lack of jurisdiction. The Supreme Court held that because the judge did not issue findings of fact within two business days, her application was deemed granted.



In re: Jane Doe 10 Supreme Court of Texas (2002)

Abortion and reproductive health rights

A pregnant minor applied for judicial bypass to have an abortion without notifying her parents. The trial court denied the application on a form, but made no ruling and no findings of fact on one of the bases for judicial bypass—whether notifying her parents would lead to physical, sexual, or emotional abuse of the minor. Under the Texas Family Code, the court was required to issue a ruling and written findings of fact and conclusions of law within two business days after the application was filed. Doe argued that because the trial court did not comply with the Family Code, she was denied a timely and complete judgment, and her application should be deemed granted. The Supreme Court agreed, deeming her application for judicial bypass granted based on possible abuse.



Bell v. Low Income Women of Texas Supreme Court of Texas (2002)

Abortion and reproductive health rights, Gender discrimination

Physicians and clinics sued the Commissioner of Health sued, claiming that Texas Medical Assistance Program’s (“TMAP”) abortion funding restrictions for indigent women violated their constitutional rights under the Equal Rights Amendment and Equal Protection Clause of the Texas Constitution, and their rights to privacy. TMAP was prohibited from authorizing abortion services without matching federal funds. The relevant federal law, the Hyde Amendment, prevented TMAP from funding abortions unless the pregnancy resulted from rape or incest, or placed the woman in danger of death. The plaintiffs argued that the restriction constituted sex discrimination because the state funded virtually all medically necessary services for men while refusing to fund abortions that are medically necessary even though the woman is not at risk of death. The Supreme Court held that although any restriction related to abortion would only affect women, TMAP’s restriction was not “on the basis of sex,” but rather due to the nature of abortion as a medical procedure involving potential life, which has no similar treatment method. The Court noted that other than medically necessary abortions, TMAP funded virtually all other medical treatment for women, and funded abortions to the extent that matching federal funds were available. The Court held that the discouragement of abortion through funding restrictions cannot, by itself, be considered purposeful discrimination against women as a class. The Court recognized the state’s interest in encouraging childbirth over abortion and held that the right to choose an abortion does not translate into a state obligation to subsidize abortions. The Court thus held that the funding restrictions did not violate the Texas Constitution, reversing the Court of Appeals and entering judgment for the defendant.



Hoffman-La Roche Inc. v. Zeltwanger Supreme Court of Texas (2004)

Employment discrimination, Sexual harassment

The plaintiff-respondent worked as a sales representative for Hoffman-La Roche Inc, the defendant-petitioner. The respondent alleged that her supervisor told sexually inappropriate jokes and asked inappropriate questions on multiple occasions. She submitted complaints to Human Resources, which began an investigation. During the respondent’s performance review, her supervisor yelled at her and repeatedly criticized her performance, giving her a below average rating. Shortly afterwards, the petitioner fired both the respondent’s supervisor and the respondent. The respondent then filed a complaint for sexual harassment with the Texas Commission on Human Rights. At issue for the Supreme Court was whether the respondent could recover damages for emotional distress due to sexual harassment under the Texas Commission on Human Rights Act and common tort law. The Court of Appeals held that the respondent could recover under both statutory and common law, awarding damages. The Texas Supreme Court reversed, holding that when the complaint is for sexual harassment, the plaintiff must proceed solely under a statutory claim unless there are additional facts, unrelated to sexual harassment, to support an independent tort claim for intentional infliction of emotional distress. The Court found that the respondent could not identify additional extreme and outrageous conduct by the petitioner to support an independent intentional infliction of emotional distress claim. The Court reversed the judgment of the court of appeals and remanded to the trial court.



San Antonio Water System v. Nicholas Supreme Court of Texas (2015)

Employment discrimination, Sexual harassment

The petitioner claimed that she was terminated from her position because she confronted a male vice president about his repeated lunch invitations to two female employees outside his department. The Texas Supreme court held that no reasonable person could have believed the invitations gave rise to an actionable sexual harassment claim. Accordingly, the Court held the petitioner did not engage in a protected activity under the Texas Commission on Human Rights Act when she confronted the vice president about his behavior. The Court reversed the lower court and dismissed the claim.



Texas Family Code: Child in Relation to the Family - Limitations of Minority - Notice of and Consent to Abortion (2016)

Abortion and reproductive health rights

Texas prohibits pregnant unemancipated minors from obtaining abortions unless the physician performing the abortion gives at least 48 hours actual notice of the appointment, in person or by telephone, to the minor’s parent, managing conservator, or guardian. If the parent or guardian cannot be notified after a reasonable effort, the physician may perform the abortion after giving 48 hours constructive notice by certified mail to the guardian’s last known address. A minor may obtain an abortion without parental notification if the minor receives a court order authorizing the minor to consent (judicial bypass), or if the physician finds a medical emergency, certifies the medical emergency in writing to the Department of State Health Services, and notifies the parent of the medical emergency. If a physician intentionally performs an abortion without complying with this code, the offense is punishable by a maximum fine of $10,000.



Jacques v. State Supreme Court of Rhode Island (1995)

Sexual violence and rape

The defendant appealed a 12-year prison sentence, arguing that his sentence was excessive given that there was no evidence he used violent force or penile penetration. However, the court held that the defendant failed to show the sentence imposed on him by the trial court was excessive or that any serious disparity existed between his sentence and any other sentence imposed for similar convictions, citing the fact that the Supreme Court found he violated Rhode Island’s sexual assault statute even though he did not commit penile penetration or use violent force (“the type of penetration is unimportant under the sexual-assault statute . . . The fact that only digital penetration occurred does not lessen [the victim’s] fear and humiliation.”).



Rhode Island Depositors Economic Protection Corp. v. Brown Supreme Court of Rhode Island (1995)

Gender discrimination

In this case, the Rhode Island Supreme Court set out the standard of scrutiny with which to view the constitutionality of laws that discriminate based on gender: “If an act employs a gender-based classification, it is subject to a middle-tier scrutiny in which the classification must be substantially related to the achievement of the statutory objective.”



Dupre v. Dupre Supreme Court of Rhode Island (2004)

Divorce and dissolution of marriage

In this case, the Rhode Island Supreme Court held that a parent seeking to relocate out of the country with children in his or her custody need not make a showing that his or her reasons for relocation are “compelling.” Rather, the court cited the “time-honored axiom that the primary consideration and paramount concern in all matters relating to custody is the best interests of the child.” In determining the child’s best interests, requiring a parent to demonstrate that the reason for moving was compelling would overly burden a parent’s ability to relocate for legitimate reasons. Accordingly, the court held that the family court had incorrectly applied a “compelling reason” test in denying a mother’s motion to relocate with her children, failing to consider the children’s best interests. 



DeCamp v. Dollar Tree Stores, Inc. Supreme Court of Rhode Island (2005)

Employment discrimination

A female employee sued her employer and supervisor for sex discrimination in violation of the Rhode Island Fair Employment Practices Act and the Rhode Island Civil Rights Act. In deciding the case, the court set out a three-step approach for determining liability. First, the employee must establish a prima facie case of gender discrimination. In a gender discrimination analysis based upon a termination, the establishment of a prima facie case requires the plaintiff to show that: “(1) she is a member of a protected class; (2) she was performing her job at a level that rules out the possibility that she was fired for inadequate job performance; (3) she suffered an adverse job action by her employer; and (4) her employer sought a replacement for her with roughly equivalent qualifications.” Once this “not especially onerous” burden has been met, the employer must offer a legitimate, nondiscriminatory reason for the adverse employment action. Finally, the employee is required to convince the judge or jury that that the legitimate, nondiscriminatory reason proffered by the employer is merely a pretext for her termination.



State v. Urena Supreme Court of Rhode Island (2006)

Domestic and intimate partner violence

The defendant appealed a conviction of manslaughter after stabbing her boyfriend to death, arguing that the state did not prove beyond a reasonable doubt that she did not act in self-defense based on evidence that she suffered from battered women’s syndrome. The Supreme Court of Rhode Island clarified the burden of proof in establishing battered women’s syndrome as a defense, stating that the “defendant [is] required to prove the existence of [battered women’s syndrome] as an affirmative defense by a fair preponderance of the evidence.” Accordingly, the lower court correctly instructed the jury that the burden of proof was on the defendant, not the state, to show that she was suffering from the effects of battered women’s syndrome, and the conviction at the lower court was upheld.



State v. Rivera Supreme Court of Rhode Island (2010)

Sexual violence and rape, Statutory rape or defilement

A bus driver was convicted of sexually assaulting three developmentally disabled women, two of whom were passengers on the defendant’s bus route. On appeal, the defendant challenged his conviction on several grounds, one of which was that the trial court erred in precluding him from questioning the victim’s mother about a previous incident that suggested the victim was promiscuous. The court held that the defendant was not entitled to question the victim’s mother about the incident, because the defendant did not notify the trial justice beforehand of his intention to probe into the victim’s conduct or otherwise seek a hearing with the court about the admissibility of such evidence.



State v. Enos (2011)

Domestic and intimate partner violence

Charges were filed against a young woman’s ex-boyfriend for domestic violence after he grabbed her at a restaurant and repeatedly kicked her and hit her over the head with a drinking glass. The defendant was convicted in the lower court of domestic assault with a dangerous weapon. On appeal, the defendant argued that there was insufficient evidence that the couple was in a domestic relationship, which was a prerequisite finding for his conviction. The Rhode Island Supreme Court held that the state domestic violence statute does not require a specific demonstration of three statutory factors (length and nature of relationship and frequency of the interaction between the parties) to prove the existence of a substantive dating relationship, nor are courts limited to considering only these three factors. Rather, the fact that the victim testified that (i) the couple dated for six months, (ii) the two had an intimate relationship during the defendant’s arrest, and (iii) the defendant referred to the victim as his girlfriend was evidence that the defendant and the victim were in a substantive dating relationship as required to support a domestic assault conviction. The Court also rejected the defendant’s arguments regarding the trial judge’s decision not to declare a mistrial and upheld his conviction.



23 Pa. C.S.A. § 4301, Domestic Relations - Child Support (1985)

Divorce and dissolution of marriage, Property and inheritance rights

Pennsylvania uses a system referred to as the “Income Shares Model” for determining child support. This methodology focuses primarily on the net incomes of the parents and aims to grant the children the same proportion of the parental income that he or she would have received had the parents not divorced.



Roe v. Planned Parenthood Southwest Ohio Region Supreme Court of Ohio (2009)

Abortion and reproductive health rights

The parents of a minor who received an abortion sued Planned Parenthood, which they alleged had performed the abortion illegally because the clinic did not notify them in advance. The plaintiffs sought the medical records and any reports of abuse relating to minors who had received abortions in the prior 10 years. The defendant refused to produce the records of nonparty patients on the ground of physician-patient privilege. The trial court ordered the defendant to produce the non-party records with identifying information redacted, but the Court of Appeals of Ohio reversed. The Supreme Court of Ohio affirmed the Court of Appeals’ ruling, holding that the medical records of non-party patients were not discoverable.



Women's Medical Professional Corp. v. Voinovich United States Court of Appeals for the Sixth Circuit (1997)

Abortion and reproductive health rights

The plaintiff-appellant, an abortion clinic, sued the Governor of Ohio, the Attorney General of Ohio, and the prosecuting attorney for Montgomery County, challenging the facial constitutionality of an Ohio law regulating abortions. The district court ruled (i) that the prohibition on dilation and extraction abortions placed substantial, and hence unconstitutional, obstacles in the way of women seeking pre-viability abortions; (ii) that the combination of subjective and objective standards without scienter requirements rendered the “medical emergency” and “medical necessity” exceptions to the abortion prohibitions were unconstitutionally vague; and (iii) that the constitutional and unconstitutional provisions in the law could not be severed. The district court thus struck down the entire law and prohibited its enforcement. The Sixth Circuit affirmed.



Williams v. General Motors Corp. United States Court of Appeals for the Sixth Circuit (1999)

Employment discrimination, Gender discrimination, Sexual harassment

The plaintiff-appellant, who worked for General Motors for more than 30 years, sued the company for violating Title VII of the Civil Rights Act, claiming that she experienced a hostile work environment and retaliation. She alleged that she suffered a variety of sexually harassing comments, as well as other slights such as being the only employee denied a break and the only employee without a key to the office. The district court granted summary judgment in favor of her employer on both her hostile work environment and retaliation claims. The Sixth Circuit affirmed the district court’s grant of summary judgment on the plaintiff’s retaliation claim, but reversed and remanded the lower court’s ruling on her hostile work environment claim, finding that there was a genuine issue of material fact as to whether her allegations were sufficiently severe or pervasive enough to violate Title VII.



Smith v. City of Salem United States Court of Appeals for the Sixth Circuit (2004)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

The plaintiff-appellant a trans woman lieutenant in the Salem, Ohio, Fire Department, sued the City of Salem, alleging discrimination based on sex in violation of Title VII of the Civil Rights Act. According to the plaintiff’s complaint, after she began expressing a more feminine appearance at work on a full-time basis, her co-workers informed her that she was not acting masculine enough. She then notified her immediate supervisor that she had been diagnosed with gender identity disorder and that she planned to physically transition from male to female. The plaintiff’s supervisor met with the City of Salem’s Law Director and other municipal officials, who required the plaintiff to undergo three psychological evaluations. The plaintiff retained legal counsel, received a “right to sue” letter from the U.S. Equal Opportunity Employment Commission, and was shortly thereafter suspended for one 24-hour shift, allegedly in retaliation for retaining counsel. The district court dismissed his complaint, but the Sixth Circuit reversed and remanded, holding that the plaintiff sufficiently plead a prima facie case of retaliation under Title VII, as well as claims of sex stereotyping and gender discrimination.



Rreshpja v. Gonzalez United States Court of Appeals for the Sixth Circuit (2005)

International law, Sexual violence and rape, Trafficking in persons

The plaintiff-appellant, a citizen of Albania, arrived in the United States with a fraudulently obtained non-immigrant visa after a man attempted to abduct her in her home country. The Immigration and Nationalization Service initiated removal proceedings against her. During those proceedings the plaintiff requested either a grant of asylum or the withholding of removal and protection under the Convention Against Torture, arguing that she is at risk of being forced to work as a prostitute if she were to return to her home country. The immigration judge denied her application, as did the Board of Immigration Appeals. The Sixth Circuit affirmed the denial because the plaintiff was unable to show that she was a member of a particular social group that faced persecution in her home country.



Barnes v. City of Cincinnati United States Court of Appeals for the Sixth Circuit (2005)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

The plaintiff-appellant, a trans (“a pre-operative male-to-female transsexual”) police officer, applied to be promoted to sergeant within the Cincinnati Police Department. The plaintiff passed the sergeants exam but failed a rigorous training program and was denied promotion. The plaintiff sued the City of Cincinnati, alleging that the denial of her promotion was due to sex-based discrimination and failure to conform to male sex stereotypes, such as wearing makeup, in violation of Title VII of the Civil Rights Act and the Equal Protection Clause. The district court ruled in favor of the plaintiff and awarded her $320,511 as well as attorney’s fees and costs. The Sixth Circuit affirmed, holding that the plaintiff met all four requirements of a claim of sex discrimination: that the plaintiff is a member of a protected class, that she applied and was qualified for a promotion, that she was considered for and denied a promotion, and that other employees of similar qualifications who were not members of the protected class received promotions.



Women's Medical Professional Corp. v. Baird United States Court of Appeals for the Sixth Circuit (2008)

Abortion and reproductive health rights

The plaintiff-appellant operated an abortion clinic in Dayton, Ohio. Ohio law required it to be licensed, which in part required it to enter into a written transfer agreement with a Dayton-area hospital. When no hospital would enter into such an agreement with the plaintiff, it sought a waiver of the transfer agreement requirement. Even though the plaintiff had both a back-up group of physicians ready to provide emergency care and a letter from Miami Valley Hospital confirming that it would admit patients in the event of an emergency, the Director of the Ohio Department of Health denied the plaintiff’s request for a waiver and ordered that it immediately close. The plaintiff sought a temporary restraining order and an injunction against the Department of Health’s order. The District Court granted both requests and awarded attorney’s fees and expenses to the plaintiff. The Sixth Circuit affirmed, holding that the plaintiff’s procedural due process rights were violated, but vacated the permanent injunction and remanded the case for a hearing on the denial of the plaintiff’s application.



Thornton v. Federal Express Corp. United States Court of Appeals for the Sixth Circuit (2008)

Employment discrimination, Gender discrimination, Sexual harassment

The plaintiff-appellant, a former employee of FedEx, the defendant, was discharged when she did not return from work after a 16-month leave of absence. She took this leave because of stress she suffered after being sexually harassed by her immediate supervisor, and she did not return to work because her health care providers had not released her from treatment for panic disorder and fibromyalgia. The plaintiff sued for sex discrimination in violation of Title VII of the Civil Rights Act, as well as discrimination based on disability in violation of the Americans with Disabilities Act. The District Court granted summary judgment in favor of FedEx, and the Sixth Circuit affirmed, holding that the plaintiff did not establish either that she was disabled under the Americans with Disabilities Act or that she suffered an adverse employment action.



Kalaj v. Holder United States Court of Appeals for the Sixth Circuit (2009)

Sexual violence and rape, Trafficking in persons

The plaintiff-appellant, an Albanian citizen who entered the United States on a non-immigrant visa, fled her home country after facing three attempted kidnappings that she believed would have led her into forced prostitution. After escaping the third attempt, her uncle arranged for her to obtain a fake passport to enter the United States. After she applied for asylum with the Immigration and Nationalization Service, she was notified that she was subject to removal as an alien not in possession of valid entry documents. Both an immigration judge and the Board of Immigration Appeals denied her application for asylum. The Sixth Circuit affirmed these denials, finding that the plaintiff was unable to demonstrate that she was a member of a persecuted social group and unable to show that the Albanian government was unwilling or unable to protect her.



Gilbert v. Country Music Association, Inc. United States Court of Appeals for the Sixth Circuit (2011)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

After the plaintiff-appellant, a theater professional who was openly homosexual, complained that a coworker had threatened him based on his sexual orientation and a union hiring hall of which the plaintiff was a member refused to provide him with work. Gilbert sued his union and a collection of various employers, alleging, among other claims, discrimination under Title VII of the Civil Rights Act. The district court granted the defendants’ motion to dismiss, holding that Title VII does not prohibit discrimination based on sexual orientation. The Sixth Circuit affirmed in part and reversed in part. The court observed that, while Title VII prohibits sex discrimination, and that this prohibition includes “sex stereotyping” whereby a plaintiff suffers an adverse employment action due to his or her nonconformity with gender stereotypes. The court held that Gilbert had not plead a sex stereotyping claim since other than his sexual orientation, the plaintiff fit every male stereotype, and sexual orientation did not suffice to obtain recovery under Title VII: “[f]or all we know,” the Court stated, “Gilbert fits every ‘male stereotype’ save one—sexual orientation—and that does not suffice to obtain relief under Title VII.”



Kalich v. AT&T Mobility United States Court of Appeals for the Sixth Circuit (2012)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

The plaintiff-appellant sued his employer, AT&T, in state court under Michigan’s Elliott-Larsen Civil Rights Act, and AT&T removed the action to the United States District Court for the Eastern District of Michigan. The plaintiff alleged that his immediate supervisor made a series of sexually inappropriate comments to him over the course of a year that created a hostile work environment. These comments included calling him by a girl’s name and telling him he looked like a girl. The district court granted the defendant’s motion for summary judgment, and the Sixth Circuit affirmed, holding that the plaintiff failed to demonstrate that his supervisor’s conduct toward him was because of his gender. The appellate court noted that the plaintiff stated in his deposition that he believed that his supervisor made these derogatory comments because he knew or suspected that the plaintiff was gay and that sexual orientation discrimination was not a protected classification under Title VII or Michigan law.



Mathis v. Wayne County Board of Education United States Court of Appeals for the Sixth Circuit (2012)

Sexual violence and rape, Statutory rape or defilement

The plaintiff-appellants’ sons were members of their middle school basketball team who were victims of sexual harassment by their teammates. The harassment ranged from arguably innocent locker room pranks to sexual violence. The plaintiffs sued the Wayne County Board of Education, alleging that the school board was deliberately indifferent to student-on-student sexual harassment in violation of Title IX of the Civil Rights Act. The District Court denied the defendant’s motion for judgment as a matter of law and awarded the plaintiffs $100,000 each in damages. The Sixth Circuit affirmed, holding that the plaintiffs had established the following elements of a deliberate indifference claim: that the sexual harassment was so severe, pervasive, and objectively offensive that it could be said to deprive the plaintiff of access to the educational opportunities or benefits provided by the school; that the funding recipient (i.e. the board of education) had actual knowledge of the sexual harassment, and the funding recipient was deliberately indifferent to the harassment.



EEOC v. New Breed Logistics United States Court of Appeals for the Sixth Circuit (2015)

Employment discrimination, Sexual harassment

The plaintiff-appellant, the Equal Employment Opportunity Commission, initiated sexual harassment and retaliation claims under Title VII against New Breed Logistics, the defendant, on behalf of three employees. The plaintiff alleged that Calhoun, a supervisor at New Breed sexually harassed three female employees and then retaliated against the women after they complained. The plaintiff further alleged that Calhoun retaliated against a male employee who verbally objected to Calhoun’s harassment of the women. The evidence presented to the district court that showed that each woman communicated her intent to complain about Calhoun’s sexual harassment shortly after which all three women were fired or transferred. One of the women lodged a complaint through the company’s complaint line but the company asked Calhoun five questions about his conduct and determined there was no misconduct. A jury found the defendant liable under Title VII for Calhoun’s sexual harassment and retaliation, and the district court denied the defendant’s post-trial motions for a new trial and judgment as a matter of law. The district court determined that complaints to management and informal protests were protected activities under Title VII. Therefore, the three employees’ demand that Calhoun stop harassing them were considered protected activity under Title VII, and retaliation constituted a violation of Title VII. The defendant appealed, challenging the district court’s denial of its post-trial motions. The Second Circuit affirmed the district court’s decisions, finding that sufficient evidence supported the district court’s rulings and that the district court did not abuse its discretion when providing instructions to the jury.



Ault v. Oberlin College United States Court of Appeals for the Sixth Circuit (2015)

Employment discrimination, Sexual harassment

The plaintiff-appellants, three female dining services department employees, sued Oberlin College, the defendant alleging that they suffered various acts of sexual harassment at the hands of the executive chef of the private contractor, Bon Appetit, that operated the dining facilities. The plaintiffs brought this suit under Chapter 4112 of the Ohio Revised Code, which prohibits sexual harassment in the work place and holds employers responsible for sexual harassment committed by employees or nonemployees in the work place, where the employer knows or should have known but fails to intervene. The plaintiffs initially sued in state court, and the defendants removed. The district court granted summary judgment in favor of the defendants, and the Sixth Circuit affirmed on all but one count. The court held that, with respect to one of the plaintiffs but not the other two, there was a genuine issue of material fact as to whether the conduct the employee endured was sufficiently severe or pervasive enough to affect the terms, conditions, or privileges of employment.



Jackson v. VHS Detroit Receiving Hospital, Inc. United States Court of Appeals for the Sixth Circuit (2016)

Employment discrimination, Gender discrimination

The plaintiff-appellant worked as a mental health technician for the defendant, Detroit Receiving Hospital’s Mental Health Crisis Center. Her duties included assisting registered nurses with treating psychiatric patients. A few days after assisting a nurse with the mistaken discharge of a patient who should not have been discharged, the plaintiff’s employment was terminated, even though she consistently received high ratings on her performance evaluations. The plaintiff sued the defendant for sex discrimination in violation of Title VII of the Civil Rights Act. The district court granted summary judgment in favor of the defendant, but the Sixth Circuit reversed and remanded, holding that the plaintiff had established a prima facie case of sex discrimination, in part because two men committed “nearly identical” infractions of “comparable seriousness” and were not terminated like the plaintiff. The appellate court remanded the case for trial proceedings.



Simpson v. Vanderbilt University United States Court of Appeals for the Sixth Circuit (2017)

Employment discrimination, Gender discrimination

The plaintiff-appellant was a professor at the Vanderbilt University School of Medicine who solicited clients for her own private business, which the defendant, Vanderbilt University, considered to be a violation of its Conflict of Interest Policy, its By-Laws, and its Participation Agreement. The defendant terminated the plaintiff’s employment and she sued the defendant, alleging that her termination was due to gender discrimination in violation of Title VII of the Civil Rights Act and the Tennessee Human Rights Act. The district court granted summary judgment in favor of the defendant, holding that the plaintiff failed to identify a suitable male comparator and thus did not establish a prima facie case of discrimination. The Sixth Circuit affirmed, finding key differences between the plaintiff’s conduct and that of the male comparator she identified, including most notably the fact that the male comparator had disclosed his work outside of Vanderbilt University on his conflict of interest form.



Hamilton v. Scott Supreme Court of Alabama (2012)

Abortion and reproductive health rights

Plaintiff, a mother of a stillborn child, sued physicians and a medical group, alleging that they wrongfully caused the death of her son and caused her emotional distress. The trial court held that a wrongful death action could not be maintained for the death of a fetus before viability. The Alabama Supreme Court reversed this holding, while agreeing with the trial court that Plaintiff could not recover damages for emotional distress. The court concluded that “Alabama’s wrongful-death statute allows an action to be brought for the wrongful death of any unborn child, even when the child dies before reaching viability.” Nonetheless, the court held that Plaintiff failed to demonstrate that she was entitled to damages for emotional distress because she did not present evidence that she was within the “zone of danger” and she could not claim a physical injury to herself based on the death of the fetus.



Hicks v. State of Alabama Supreme Court of Alabama (2014)

Abortion and reproductive health rights

The defendant was charged with chemical endangerment of a child for ingesting cocaine while pregnant, which resulted in her child testing positive for cocaine at birth. The defendant was convicted after a guilty plea, but challenged her conviction on appeal, arguing that the legislature did not intend for Alabama’s chemical endangerment statute to apply to unborn children. Additionally, she alleged that if the statute applied to unborn children, the law was: (1) bad public policy because it does not protect unborn children and (2) unconstitutionally vague. The Alabama Supreme Court rejected Hicks’ claims, relying on an Alabama Court of Appeal decision, Ankrom v. State, 152 So.3d 373 (Ala. Crim. App. 2011), in which the court held that the plain language of the statute included an unborn child or viable fetus in the term “child.” The Alabama Supreme Court refused to consider the defendant’s public policy arguments, stating that policy arguments are ill-suited to judicial resolution and should instead be directed at the legislature. Finally, the court concluded that the law was not vague, as it “unambiguously protects all children, born and unborn, from exposure to controlled substances.”



Reproductive Health Services, et al. v. Marshall, et al. United States District Court for the Middle District of Alabama Northern Division (2017)

Abortion and reproductive health rights

A licensed abortion facility and its owner sued Alabama’s Attorney General and the Montgomery County District Attorney. Among Plaintiffs claims were allegations that the 2014 amendments to Alabama Code Title 26’s judicial bypass law violated the due process rights of minor patients seeking abortions because it failed to provide an adequate judicial bypass by permitting adverse parties and the court to disclose private information about the minor to others. Citing Supreme Court precedent enshrining a minor’s constitutional right to seek an abortion through judicial bypass without outside interference violating her privacy, the court ultimately agreed with the plaintiffs and severed the unconstitutional provisions allowing the participation of (1) the district attorney, (2) the minor’s parents, and (3) a guardian ad litem for the fetus from the judicial bypass process.



Institutional Violence Against Women (Docket XXVII.1o.3 C (10a.)) Mexico Supreme Court (2016)

Gender discrimination, Gender-based violence in general, International law

This isolated thesis is a relevant example of gender perspective case law, as the criteria issued by the collegiate tribunal is binding on all cases resolved by such tribunal. In addition, such criteria issued may be persuasive in similar cases arising in other federal courts. The Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women “Convention of Belém do Pará,” states that violence against women is an offense against human dignity, which constitutes a violation of fundamental rights. In addition, Article 18 of the General Law for Women’s Access to a Life Free of Violence establishes that any public servant’s conduct, whether by act or omission, which is discriminatory or which impairs the woman’s human rights is considered institutional violence. Therefore, if a governmental authority deprives a woman of any right in the context of family law, the court shall acknowledge the authority’s intention to discriminate or impair the plaintiff’s human rights in its ruling. Further, any court ruling seeking to restore the woman’s rights shall identify the authority responsible for the violation. (Amparo Directo: http://sise.cjf.gob.mx/SVP/word1.aspx?arch=462/04620000174646210006004.d...)

 

Esta tesis aislada es un ejemplo relevante de la jurisprudencia de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son vinculantes para todos los casos resueltos por dicho tribunal. Además, los criterios emitidos pueden ser persuasivos en casos similares que surjan en otros tribunales federales. La Convención Interamericana para Prevenir, Sancionar y Erradicar la Violencia contra la Mujer "Convención de Belém do Pará", afirma que violencia contra la mujer es un delito contra la dignidad humana y constituye una violación de los derechos fundamentales. Además, el artículo 18 de la Ley General para el Acceso de las Mujeres a una Vida Libre de Violencia establece que la conducta de cualquier servidor público, ya sea por acto u omisión, que sea discriminatoria o que perjudique los derechos humanos de la mujer se considera violencia institucional. Por lo tanto, si una autoridad gubernamental priva a una mujer de cualquier derecho en el contexto del derecho de familia, el tribunal reconocerá la intención de la autoridad de discriminar o menoscabar los derechos humanos del demandante en su decisión. Además, cualquier fallo judicial que busque restaurar los derechos de la mujer deberá identificar a la autoridad responsable de la violación.



Femicide (Docket 1a/LIV/2016 (10a.)) First Collegiate Tribunal of the Twenty-Seventh Circuit (2016)

Femicide, Gender discrimination

This isolated thesis is a relevant example of gender perspective case law, as the criteria issued by the collegiate tribunal is binding on all cases resolved by such tribunal. In addition, such criteria issued may be persuasive in similar cases arising in other federal courts. The Mexican Supreme Court has determined that in order to determine whether a law is discriminatory a court must evaluate the following: (i) whether the purpose of such law is objective and not contrary to the Constitution; (ii) the means; (iii) that the purpose of the law and the means are proportional. The Mexican Supreme Court has determined that the state legislator can develop any mechanism to protect human rights. Therefore, given that femicide, as a felony, is designed to protect a disadvantaged segment of the population, any special treatment inherent to this felony cannot be interpreted as contrary to the human right to equality.

 

Esta tesis aislada es un ejemplo relevante de la jurisprudencia de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son relevantes para todos los casos resueltos por dicho tribunal. Además, los criterios emitidos pueden ser persuasivos en casos similares que surjan en otros tribunales federales. El Tribunal Supremo de México ha determinado que para determinar si una ley es discriminatoria, un tribunal debe evaluar lo siguiente: (i) si el propósito de dicha ley es objetivo y no contrario a la Constitución; (ii) los medios para enforzarla; (iii) que el propósito de la ley y los medios sean proporcionales. La Corte Suprema de México ha determinado que el legislador estatal puede desarrollar cualquier mecanismo para proteger los derechos humanos. Por lo tanto, dado que el femicidio, como delito grave, está diseñado para proteger a un segmento desfavorecido de la población, cualquier tratamiento especial inherente a este delito grave no puede interpretarse como contrario al derecho humano a la igualdad.



Access to Justice in Equal Conditions (Docket 1a.J. 22.2016 (10a.)) Mexico Supreme Court (2016)

Gender discrimination

This jurisprudential thesis is a relevant example of case law, as the criteria issued by the Mexican Supreme Court is binding on all courts in the country. Every court shall rule based on a gender perspective. Therefore there should be a test to determine whether there is a gender violence case before the court. This test shall be performed by the court regardless of whether a party makes such a petition. The court shall take into consideration the following points: (i) if the particular case involves gender violence, taking into account the facts and the evidence, excluding any stereotype that the court may have; (ii) in the event that the evidence is insufficient to determine whether the case involves gender violence, the court shall request more evidence to make a determination; (iii) if the court determines that the case involves gender violence, it shall apply the relevant law to the particular case and issue a ruling; (iv) human rights shall be taken into consideration at all times during the process and; (v) the use of inclusive language to ensure access to justice that is free of gender-based stereotypes.

 

Esta tesis jurisprudencial es un ejemplo relevante de jurisprudencia, ya que los criterios emitidos por el Tribunal Supremo de México son vinculantes para todos los tribunales del país. Cada tribunal decidirá con una perspectiva de género. Por lo tanto, debe haber una prueba para determinar si hay un caso de violencia de género ante el tribunal. Esta prueba será realizada por el tribunal, independientemente de si una parte hace tal petición. El tribunal deberá tener en cuenta los siguientes puntos: (i) si el caso en particular involucra violencia de género, teniendo en cuenta los hechos y las pruebas, excluyendo cualquier estereotipo que el tribunal pueda tener; (ii) en el caso de que la evidencia sea insuficiente para determinar si el caso involucra violencia de género, el tribunal deberá solicitar más evidencia para tomar una decisión; (iii) si el tribunal determina que el caso involucra violencia de género, aplicará la ley pertinente al caso particular y emitirá un fallo; (iv) los derechos humanos se tendrán en cuenta en todo momento durante el proceso y; (v) el uso de un lenguaje inclusivo para garantizar el acceso a la justicia sin estereotipos o discriminación sexual.



Rape (Docket II.2o.P.37 P (10a.)) Second Collegiate Tribunal in Criminal Matters of the Second Circuit (2016)

Domestic and intimate partner violence, Sexual violence and rape

This isolated thesis is a relevant example of gender perspective case law, as the criteria issued by the collegiate tribunal is binding on all cases resolved by such tribunal. In addition, such criteria may be persuasive in similar cases arising in other federal courts. In cases of rape, facts of a psychological nature such as fear originated in relationships shall be taken into consideration. Every judgement shall be based on a gender perspective and the courts shall consider every element set forth by the victim, as those elements may increase the severity of the sentence. A failure to do so could potentially invalidate the sentence. (Amparo Directo: http://sise.cjf.gob.mx/SVP/word1.aspx?arch=104/01040000180833650006005.d...)

 

Esta tesis aislada es un ejemplo relevante de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son vinculantes para todos los casos resueltos por dicho tribunal. Además, dichos criterios pueden ser persuasivos en casos similares que surjan en otros tribunales federales. En casos de violación, se deben tener en cuenta los hechos de naturaleza psicológica, como por ejemplo, el miedo originado en relaciones personales. Cada juicio se basará en una perspectiva de género y los tribunales considerarán cada elemento expuesto por la víctima, ya que esos elementos pueden aumentar la severidad de la sentencia. Si no lo hace, podría invalidar una determinación final.



Adequate Defense of Pregnant Women in Labor Matters (Docket 3.o.2 L (10a.)) Third Collegiate Tribunal in the Assistant Center of the Tenth Region (2016)

Employment discrimination, Gender discrimination

ADEQUATE DEFENSE OF PREGNANT WOMEN IN LABOR MATTERS. PREGNANT WOMEN ARE CONSIDERED A VULNERABLE GROUP AND THEREFORE THE JUDGE SHALL RULE BASED ON A GENDER PERSPECTIVE.

This isolated thesis is a relevant example of gender perspective case law, as the criteria issued by the collegiate tribunal is binding on all cases resolved by such tribunal. In addition, such criteria issued may be persuasive in similar cases arising in other federal courts. The labor law states that every person shall have an appropriate defense. In addition, this right acquires different considerations when the claimant is a pregnant woman. Historically, women in Mexico have been fired solely for being pregnant. Pregnant women are consequently considered a vulnerable group. Therefore, this isolated thesis requires the courts to inform the claimant of her right to have an attorney, and in those cases where the claimant cannot afford one, the court shall appoint one for her. (Amparo Directo Laboral: http://sise.cjf.gob.mx/SVP/word1.aspx?arch=484/04840000187544100005005.d...)

 

 

DEFENSA ADECUADA DE LAS MUJERES EMBARAZADAS EN ASUNTOS LABORALES. LAS MUJERES EMBARAZADAS SON CONSIDERADAS EN UN GRUPO VULNERABLE Y, POR LO TANTO, EL JUEZ REGIRÁ BASADO EN UNA PERSPECTIVA DE GÉNERO.

Esta tesis aislada es un ejemplo relevante de la jurisprudencia de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son vinculantes para todos los casos resueltos por dicho tribunal. Además, los criterios emitidos pueden ser persuasivos en casos similares que surjan en otros tribunales federales. La ley laboral establece que cada persona tendrá una defensa apropiada. Además, este derecho adquiere diferentes consideraciones cuando el reclamante es una mujer embarazada. Históricamente, las mujeres en México han sido despedidas de sus empleos por estar embarazadas. En consecuencia, las mujeres embarazadas son consideradas un grupo vulnerable. Por lo tanto, esta tesis aislada requiere que los tribunales informen al reclamante de su derecho a tener un abogado, y en aquellos casos en que el reclamante no pueda pagar uno, el tribunal le asignará uno.



Public Safety (Isolated Thesis Docket XVI.1o.A.115 A (10a.)) First Collegiate Tribunal in Administrative Matters of the Sixteeth Circuit (2016)

Employment discrimination, Gender discrimination, International law

This isolated thesis is a relevant example of gender perspective case law, as the criteria issued by the collegiate tribunal is binding on all cases resolved by such tribunal. In addition, such criteria may be persuasive in similar cases arising in other federal courts. The Mexican Supreme Court has previously determined the social benefits to which a former public safety employee is entitled at the time of her termination. The social benefits and salary must be paid upon termination and must account for both the period before and after an unjustified termination for pregnancy. The Mexican Constitution (Article 123, section B, item XI, subparagraphs (a) & (c)) recognizes the rights of pregnant women. These include social benefits during pregnancy. Consequently, the impairment that results from the termination must be paid and includes: (a) medical bills and payments made to private medical institutions due to the lack of social security benefits and (b) the payment of the full salary from the last month before birth as well as the two months after it, unless there is a court ruling in relation to unpaid wages. This provision of the Mexican Constitution, as well as other provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Inter-American Convention on the Prevention, Punishment And Eradication Of Violence Against Women “Convention of Belém do Pará” compels the courts to rule with a gender perspective in order to ensure justice for this historically vulnerable social group. (Amparo Directo Administrativo 121/2016: http://sise.cjf.gob.mx/SVP/word1.aspx?arch=1320/13200000186095880003003....)

 

Esta tesis aislada es un ejemplo relevante de la jurisprudencia de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son relevantes a todos los casos resueltos por dicho tribunal. Además, dichos criterios pueden ser persuasivos en casos similares que surjan en otros tribunales federales. La Corte Suprema de México ha determinado previamente los beneficios sociales a los que tiene derecho un ex-empleado de seguridad pública en el momento de su despido. Los beneficios sociales y el salario deben pagarse a la terminación y deben tener en cuenta tanto el período antes como el de después de una terminación injustificada por embarazo. La Constitución mexicana (Artículo 123, sección B, artículo XI, subpárrafos (a) y (c)) reconoce los derechos de las mujeres embarazadas. Estos incluyen beneficios sociales durante el embarazo. En consecuencia, el deterioro que resulta de la terminación debe pagarse e incluye: (a) facturas médicas y pagos realizados a instituciones médicas privadas debido a la falta de beneficios de seguridad social y (b) el pago del salario completo del último mes anterior al nacimiento, así como los dos meses posteriores al mismo, a menos que exista un fallo judicial en relación con los salarios impagos. Esta disposición de la Constitución mexicana, así como otras disposiciones de la Convención sobre la Eliminación de Todas las Formas de Discriminación contra la Mujer (CEDAW) y la Convención Interamericana para Prevenir, Sancionar y Erradicar la Violencia contra la Mujer "Convención de Belém do Pará" obliga a los tribunales a gobernar con una perspectiva de género para garantizar la justicia para este grupo social históricamente vulnerable.



Ruling with a Gender Perspective (Isolated Thesis Docket XXI.2o.P.A.1 CS (10a.)) Second Collegiate Tribunal in Criminal and Administrative Matters of the Twentieth Circuit (2017)

Gender discrimination

“RULING WITH A GENDER PERSPECTIVE. THE COURT MUST DETERMINE IF THE RELEVANT PARTY IS IN A VULNERABLE STATE THAT RESULTS IN A REAL DISADVANTAGE OR CLEAR IMBALANCE VIS-À-VIS THE OTHER PARTIES TO THE CASE.”

This isolated thesis is a relevant example of gender perspective case law, as the criteria issued by the collegiate tribunal is binding on all cases resolved by such tribunal. In addition, such criteria may be persuasive in similar cases arising in other federal courts. Each case that is brought to court must be analyzed in order to determine whether there is a degree of vulnerability for each woman. Without such scrutiny, courts cannot provide a gender perspective analysis to a controversy, as gender perspective does not depend solely on gender but on other considerations, such as social vulnerability, which must be proven. In order to determine if a woman finds herself in a disadvantaged situation, the following issues must be taken into consideration: (a) if one or more parties find themselves in one of the categories identified in the Brasilia Regulations Regarding Access to Justice for Vulnerable People; (b) the gender disadvantage and the violence that prevails in the place of residence or the social core in which the parties may be involved, in order to clarify the possible existence of structural inequality; (c) education level, age, socioeconomic situation, and the particular characteristics of all of the people involved in the trial, in order to determine if a inequality actually exists; and (d) all proven facts in the docket, in order to identify the power relationships. Taking the aforementioned considerations into account, it must be determined if in the particular case it is optimal to order measures seeking to balance one or more differences and vulnerabilities that prevent the disadvantaged party from the enjoyment of its human rights. (Amparo Directo Agrario 163/2016 here: http://sise.cjf.gob.mx/SVP/word1.aspx?arch=752/07520000188524300006005.d...)

 

“REGLA CON UNA PERSPECTIVA DE GÉNERO. "EL TRIBUNAL DEBE DETERMINAR SI LA PARTE PERTINENTE ESTÁ EN UN ESTADO VULNERABLE QUE RESULTA EN UNA DESVENTAJA REAL O UN CLARO DESBALANCE VISE-VISE CON RESPECTO A LAS OTRAS PARTES DEL CASO." 

Esta tesis aislada es un ejemplo relevante de la jurisprudencia de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son relevantes a todos los casos resueltos por dicho tribunal. Además, dichos criterios pueden ser persuasivos en casos similares que surjan en otros tribunales federales. Cada caso que se lleva ante el tribunal debe analizarse para determinar si existe un grado de vulnerabilidad unico para cada mujer. Sin tal control, los tribunales no pueden proporcionar un análisis de perspectiva de género a una controversia, ya que la perspectiva de género no depende únicamente del género, sino de otras consideraciones, como la vulnerabilidad social, que deben probarse. Para determinar si una mujer se encuentra en una situación de desventaja, se deben tener en cuenta los siguientes temas: (a) si una o más partes se encuentran en una de las categorías identificadas en el Reglamento de Brasilia sobre el acceso a la justicia para personas vulnerables ; (b) la desventaja de género y la violencia que prevalece en el lugar de residencia o el núcleo social en el que pueden participar las partes, a fin de aclarar la posible existencia de desigualdad estructural; (c) el nivel de educación, la edad, la situación socioeconómica y las características particulares de todas las personas involucradas en el ensayo, a fin de determinar si realmente existe una desigualdad; y (d) todos los hechos comprobados en el expediente, con el fin de identificar las relaciones de poder. Teniendo en cuenta las consideraciones mencionadas anteriormente, se debe determinar si, en el caso particular, es óptimo ordenar medidas que busquen equilibrar una o más diferencias y vulnerabilidades que impidan que las partes desfavorecidas disfruten de sus derechos humanos. 



Anania v. Daubenspeck Chiropractic Court of Appeals of Ohio (1998)

Employment discrimination, Sexual harassment

Two former employees of the defendant were subjected to repeated instances of sexual harassment by the clinic’s patients. The employees alleged that they complained to the defendant about the conduct, but he failed to take any corrective action. They filed suit in the Clark County Court of Common Pleas alleging sexual harassment. The court granted summary judgment in favor of the defendant, holding that Ohio law did not recognize such a claim based on the conduct of non-employees. The Court of Appeals of Ohio reversed, holding that Ohio Civil Rights law does permit courts to impose liability on employers for non-employees’ sexual harassment at the place of employment.



Edwards v. Ohio Institute of Cardiac Care Court of Appeals of Ohio (2007)

Employment discrimination, Sexual harassment

The plaintiff-appellant worked as a scheduler at the Ohio Institute of Cardiac Care when she began to receive emails from her supervisor—approximately six to ten per day—that made her uncomfortable. Her supervisor then began touching her at work, such as on the lower back or shoulder, and his emails became more frequent. After she complained about this conduct, she began to receive tardy forms, and she was soon after fired, allegedly for changing clothes at work before Fourth of July weekend. She filed suit in the Greene County Court of Common Pleas, claiming sexual harassment and retaliation. After a jury trial, the court ruled in the plaintiff’s favor on her harassment claim but for the defendant on the retaliation claim, but the appellate court reversed and remanded because the defendant was entitled to a jury instruction as to its affirmative defense. Notably, the court held as a matter of first impression that a settlement between a supervisory employee and another employee does not extinguish the employer’s liability for sexual harassment claims.



Egli v. Congress Lake Club Court of Appeals of Ohio (2010)

Employment discrimination, Gender discrimination

The plaintiff -appellant was the “head golf professional” at the Congress Lake Golf Club. Despite her formidable golfing pedigree, the club’s board of directors requested her resignation, ostensibly because of her inability to manage various golf programs. She sued the defendant for sex discrimination in the Stark County Court of Common Pleas. The Court granted summary judgment in favor of the defendant, but the Court of Appeals of Ohio reversed, finding that there was an issue of fact as to whether the golf club’s proffered legitimate reason for her termination were pretextual.



In re Doe Court of Appeals of Ohio (2011)

Abortion and reproductive health rights

A juvenile filed an application seeking permission to have an abortion without parental notification, but the Columbiana County Court of Common Pleas, Juvenile Division dismissed the application, finding that the juvenile was not sufficiently mature and well-informed enough to intelligently decide whether to have an abortion. The Court of Appeals of Ohio reversed and granted her petition. The Court of Appeals determined she was sufficiently mature and well-informed in part due to the following factors: that she was a few months away from turning 18, that she had good grades and planned to attend college in the fall, and that she had been using an oral contraceptive and only became pregnant when she ran out and her prescription expired.



Lascu v. Apex Paper Box Co. Court of Appeals of Ohio (2011)

Employment discrimination, Gender discrimination

The plaintiff-appellant had been employed at Apex for approximately 30 years before being fired in connection with Apex’s reduction in force. She filed suit in the Cuyahoga County Court of Common Pleas, alleging that she was the victim of gender discrimination. The Court granted summary judgment in favor of the defendant, and the Court of Appeals of Ohio affirmed, holding that her unsupported assertions of discrimination were insufficient to overcome the defendant's legitimate reduction-in-force justification.



Pitts-Baad v. Valvoline Instant Oil Chage Court of Appeals of Ohio (2012)

Employment discrimination, Gender discrimination

The plaintiff-appellant worked as an assistant manager of a Valvoline Instant Oil Change branch. She was on track for a promotion but did not pass all the required courses. When she was eight months pregnant, she tripped and fell at work. On the advice of her doctor, she reported the injury to her employer. Later, when she returned form maternity leave, she found the work environment distrusting, and she was often not permitted to take breaks to pump her breast milk for long periods of time. After she failed to follow correct procedures on an oil change, her employment was terminated. She sued Valvoline alleging gender discrimination and retaliation, but the Stark County Court of Common Pleas granted the defendant’s motion for summary judgment. The Court of Appeals of Ohio affirmed, holding that the plaintiff had failed to show that the defendant’s legitimate reason for terminating her employment was not a pretext.



Jones v. MTD Consumer Group, Inc. Court of Appeals of Ohio (2015)

Employment discrimination, Gender discrimination, Sexual harassment

The plaintiff was fired from his job with MTD Consumer Group after sexually harassing a coworker. He and the coworker had been in a romantic relationship, which had since ended, when the coworker complained that the plaintiff had made a threatening gesture to her and her new boyfriend outside of her home. The plaintiff was also verbally derogatory toward this coworker until his employment was terminated. He sued MTD in the Medina County Court of Common Pleas, alleging reverse gender discrimination and negligent retention of his coworker. The Court granted the employer’s motion for a directed verdict, and the Court of Appeals of Ohio affirmed, holding that the evidence at trial was insufficient to support the plaintiff's claim that he was treated differently form a similarly-situated coworker.



Weber v. Ferrellgas, Inc. Court of Appeals of Ohio (2016)

Employment discrimination, Gender discrimination

The plaintiff-appellant worked as a customer service representative for Ferrellgas and received high marks on her employment evaluations. When her employer opened a position for which the plaintiff thought she was qualified, her supervisor discouraged her from applying, saying that it would be a difficult job for her because she had children. About six months later, she reported this conversation to the regional vice president, who mediated a meeting between the two. When another employee alleged that the plaintiff had suggested transferring funds owed to a customer to her personal account, she was fired for violating the company’s ethics policy. She filed suit against Ferrellgas for gender discrimination and retaliation, but the Trumbull County Court of Common Pleas entered summary judgment in favor of the defendant. The Court of Appeals of Ohio affirmed, holding that she had not established a prima facie case of gender discrimination.



Capital Care Network of Toledo v. State of Ohio Dept. of Health Court of Appeals of Ohio (2016)

Abortion and reproductive health rights

Capital Care is a medical facility that offers abortion services. It had been licensed for years to operate as an ambulatory surgical facility. An Ohio statute was passed that required all abortion providers to have a license from the Director of the Ohio Department of Health, and such licenses required providers to have a written transfer agreement with a local hospital. Capital Care could not obtain a transfer agreement with a local hospital, but had such an agreement with a nearby hospital in Ann Arbor, Michigan, yet was denied a license. The plaintiff sued in the Lucas County Court of Common Pleas, claiming this requirement placed an undue burden on women’s access to abortions. The Court ruled in favor of the plaintiff, and the Court of Appeals of Ohio affirmed that the transfer agreement requirement was unconstitutional as applied to Capital Care.



Vogt v. Total Renal Care, Inc. (2016)

Employment discrimination, Gender discrimination

The plaintiff-appellant worked as a regional operations director for Total Renal Care, Inc., which operated dialysis centers. The plaintiff received positive reviews by her coworkers and supervisors, but following Total Renal Care’s acquisition, she was transferred to a different group than the one she had previously worked in, which came with a reduced bonus and fewer stock awards. In addition, her employer filled her previous position with a male and promoted another male to a position for which she was potentially eligible. She brought suit in the Cuyahoga County Court of Common Pleas for gender discrimination and retaliation, but the court granted summary judgment in favor of her employer. The Court of Appeals of Ohio affirmed on all counts except the plaintiff's gender discrimination claim, finding that there was a fact issue as to whether the plaintiff suffered an adverse employment action necessary for sustaining a gender discrimination claim.



Allen v. Totes Isotoner Corp. Supreme Court of Ohio (2009)

Employment discrimination, Gender discrimination

The plaintiff-appellant, an employee of Totes/Isotoner Corporation, had for two weeks taken breaks without her employer’s knowledge to lactate. After the defendant fired her “for her failure to follow directions,” the plaintiff filed suit alleging wrongful termination on the basis of her pregnancy. The Butler County Court of Common Pleas granted summary judgment in favor of her employer, and the Court of Appeals of Ohio affirmed. The Supreme Court of Ohio also affirmed, holding that there was no evidence that employer's articulated legitimate, nondiscriminatory reason for employee's termination, i.e., failure to follow directions, was pretext for pregnancy discrimination.



N.C. v. Caldwell Alabama Supreme Court (2011)

Sexual violence and rape, Statutory rape or defilement

N.C., a minor, filed a personal injury action against her physical education teacher, her school principal, and the Tallapoosa County Board of Education. N.C. alleged that after her seventh grade physical education class, she was pulled into the boys’ locker room and raped by A.H., a 12th grade student whom her teacher, Caldwell, had appointed as a teacher’s aide. N.C.’s complaint alleged that Caldwell had actual knowledge that A.H. was sexually harassing students and had negligently or wantonly supervised N.C. and the other students in her class. Caldwell, the principal, and the Board filed motions for summary judgment, arguing that N.C.’s claims were barred by the doctrine of state-agent immunity. N.C. opposed entry of summary judgment against only Caldwell. The trial court reasoned that the Alabama Supreme Court “has been particularly reluctant to hold an educator responsible for sexual misconduct by another” and granted summary judgment in favor of Caldwell based on stage-agent immunity. On appeal, the Alabama Supreme Court considered an exception to state-agent immunity: “a State agent shall not be immune from civil liability in his or her personal capacity . . . when the State acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.” The Alabama Supreme Court found that Caldwell was exercising judgment in the discharge of his duty to supervise students at the time of the rape, which occurred after the dismissal bell had rung. Nonetheless, the Alabama Supreme Court held that there was a genuine issue of material fact as to (i) whether Caldwell actually appointed A.H. as a student aide, and, if so, whether he acted beyond his authority in doing so, and (ii) whether Caldwell ignored and failed to report allegations of sexual harassment from other female students about A.H.. The Alabama Supreme Court also found that there was a genuine issue of material fact as to whether Caldwell was aware that A.H. was sexually harassing other female students and, if so, whether he failed to respond to the allegations. The Alabama Supreme Court concluded that these issues of material fact precluded summary judgment and accordingly reversed the trial court.



Fabian v. Hospital of Central Connecticut United States District Court for the District of Connecticut (2016)

Employment discrimination

Plaintiff complained that the Hospital of Central Connecticut did not hire her to be an on-call orthopedic surgeon because she disclosed that she was a transgender woman. Defendant moved for summary judgment, which the court denied, citing that transgender discrimination is a cognizable claim under Title VII as sex-based discrimination.



Mejia v. Catholic Charities of the Archdioceses of Chicago United States District Court for the Northern District of Illinois (2015)

Employment discrimination

Plaintiff worked for Defendant when she became pregnant with a high-risk pregnancy. Plaintiff told supervisor that she was not strong enough to endure the pregnancy and had several dangerous near-miscarriages. Plaintiff was shortly demoted to a position which included manual labor. After work-related anxiety attacks, she prematurely delivered a son. Plaintiff brought claims for intentional infliction of emotional distress, gender discrimination, and pregnancy-related retaliation under Title VII of the Civil Rights Act of 1964 as well as a negligence claim on behalf of her son. Defendant moved to dismiss the claims brought on behalf of Plaintiff’s son. The court determined that children have a right to be born free of prenatal injuries which a breach of duty on the mother’s behalf could foreseeably cause and that a child has a right to recover for injuries obtained prenatally from the negligence of another. Accordingly, the court denied the motion to dismiss.



Videckis v. Pepperdine University United States District Court for the Central District of California (2015)

Gender discrimination

Plaintiffs were women’s basketball players for Pepperdine University, a university receiving state funding from California. Plaintiffs allege that when the basketball coach became aware of their lesbian relationship, they were harassed and forced by the athletic coordinator to end their relationship or quit the team. Defendant motioned to dismiss, citing Plaintiff’s failure to state a claim upon which relief could be granted. The court denied the motion, determining that sexual orientation discrimination claims are a subcategory of gender stereotyping and are therefore actionable claims under Title VII and Title IX.



Sanchez v. Torres Appellate Court of Illinois First District Second Division (2016)

Domestic and intimate partner violence

After several instances of abuse by Defendant, Plaintiff sought an emergency order of protection in November 2014. During the hearing, the trial court found that there was abuse but denied a plenary order of protection and instead issued a civil restraining order, which is a less severe remedy. On appeal, the Appellate Court of Illinois found that Illinois statute states that when a trial court finds abuse against the petitioner, it must issue an order of protection and remanded the case to the trial court to issue this order.



Washington v. Hodgins Court of Appeals of Washington Third Division (2015)

Domestic and intimate partner violence

Hodgins had repeated misdemeanor convictions for domestic violence when the state of Washington brought charges against him for violating an order of protection on seven different occasions. Hodgins pled guilty to two of the seven counts of domestic violence, but the court did not include his prior misdemeanor convictions in its calculation of his offender status for purposes of sentencing. The Court of Appeals found that, under the facts of the case and relevant Washington law, Hodgins should have received an extra point on his offender status for any prior repetitive domestic violence offenses. Accordingly, the trial court erred in failing to consider his convictions in determining his offender status at sentencing. The Court of Appeals remanded the case for sentencing with a higher offender status.



Eternal World TV Network v. Sec’y of the United States HHS United States Court of Appeals for the Eleventh Circuit (2015)

Gender discrimination

Plaintiff, the Eternal World TV Network—a Catholic network with 350 employees—was required to provide health insurance for its employees, which would include coverage for contraceptives, under the Affordable Care Act. Plaintiff contended that using or providing contraceptives violated a deeply-held tenant of its belief system and that the accommodation provided to religious nonprofit organizations under the Affordable Care Act still amounted to government coercion to change its beliefs. Plaintiff brought suit against the federal government, claiming that the Affordable Care Act’s contraceptive mandate violated the Religious Freedom Restoration Act, which protects religious groups. The Eleventh Circuit found that the accommodation did not violate the Religious Freedom Restoration Act because, despite the plaintiff’s right to strict scrutiny review, the accommodation did not substantially burden the exercise of religious tenants and was the least restrictive method of furthering the compelling interest of reducing the rate of unplanned pregnancies. Plaintiff also argued that the accommodation violated the Free Exercise and Establishment Clauses of the United States Constitution, which the court denied, reasoning that the contraceptive mandate was generally applicable: it did not target specifically religious groups or particular denominations.



Gonzales v. Marriott United States District Court for the Central District of California (2015)

Employment discrimination

Plaintiff Gonzales was a full-time accountant for the Los Angeles Airport Marriott when she arranged to be a gestational surrogate, due to give birth in April 2014. When the child was born, Plaintiff used her three work breaks to pump breast milk and send it to the child’s family. After two weeks of shipping the milk to the family, Plaintiff continued to lactate for personal health reasons and donated the milk to women’s organizations for mothers who could not breastfeed. Marriot then discontinued her two extra breaks arguing that she was not disabled and not feeding a child at home. Plaintiff sued claiming disparate treatment, sex stereotyping, and failure to make reasonable accommodation to for a condition related to pregnancy. Marriott motioned to dismiss, and the court found that there was a question of fact as to all claims such that the motion to dismiss was denied in whole.



Young v. United Parcel Service Inc. Supreme Court of the United States (2015)

Employment discrimination

Plaintiff brought a claim of pregnancy discrimination alleging that her employer violated the Pregnancy Discrimination Act by refusing to accommodate her pregnancy related lifting restriction. The Supreme Court held that a petitioner may state a prima facie case of pregnancy discrimination according to the McDonnell Douglas Corp. v. Green burden-shifting framework by showing: (1) she belongs to a protected class; (2) she sought an accommodation; (3) the employer refused to accommodate her; and (4) the employer has accommodated others "similar in their ability or inability to work." If a petitioner makes out a prima facie case of discrimination, the employer may rebut with legitimate, nondiscriminatory reasons for refusing to accommodate the employee. The employee must then establish that the employer's justification is pre-textual. The Supreme Court determined that there was a question as to whether the UPS provided more favorable treatment to other employees under similar circumstances and remanded the case for judgment.



Wilcox v. Corrections Corp. of America Court of Appeals for the Eleventh Circuit (2015)

Gender discrimination, Sexual harassment

Wilcox worked as a corrections officer at McRae Correctional Facility with her husband. After her husband was fired, Wilcox alleged that she was subject to sexual harassment by her supervisor. She alleged that her supervisor caressed her, touched her thighs and referred to them in evocative language, slapped her buttocks in front of other employees, and discussed his female friend’s genitalia with her. Wilcox complained to the EEOC that her supervisor’s actions created a hostile work environment. The Circuit Court agreed, citing that all five requirements for hostile work environment were met: 1) that the complainant belong to a protected group 2) that the complainant was subject to sexual harassment 3) the harassment was based on the sex of the complainant 4) the harassment was sufficiently pervasive or severe to change the conditions of employment and create an abusive working environment 5) a basis for holding the employer liable.



MKB Management Corp. v. Stenehjem Court of Appeals for the Eighth Circuit (2015)

Gender discrimination

Red River Women’s Clinic, a subsidiary of MKB Management Corp. was the only abortion provider in the state of North Dakota. MKB Management Corp. challenged a North Dakota law which prohibited abortions following determination of fetal heartbeat. The District Court ruled that the North Dakota law infringed a woman’s constitutional right under the Due Process Clause of the Fourteenth Amendment to terminate pregnancy before viability which was established in Roe v. Wade and Planned Parenthood v. Casey. The United States Court of Appeals for the Eighth Circuit affirmed.



Schiavo v. Marina Dist. Development Co., LLC Superior Court of New Jersey Appellate Division (2015)

Employment discrimination, Gender discrimination, Sexual harassment

Twenty-one former employees of the defendant’s hotel and casino alleged sexual discrimination, gender stereotyping, and disparate treatment and impact as a result of their employer’s standards for appearance. The casino instituted a standard weight applicable to men and women (which was 7% above a base rate adjusted for gender). The women’s job was to bring drinks to casino patrons, and to do so wearing a revealing costume. The plaintiffs reported incidents of sexual harassment by casino patrons to their employers, who did not address the incidents. The lower court granted summary judgment to the casino on the complaints of facial discrimination citing the statute of limitations. However, the appellate court determined that the summary judgment was in error, as it did not take into consideration that the plaintiffs’ claim that the employer ignored sexual harassment by casino patrons, creating a hostile work environment was a continuing violation. Because one of the alleged acts occurred within the two years prior to filing the case, the case is thus not time-barred.



Yousuf v. Fairview Health Services Court of Appeals for the Eighth Circuit (2015)

Gender discrimination

Plaintiff Khadara-Ayan Yousuf, a U.S. citizen and a Muslim woman of Somali national origin, sued her former employer, Fairview Health Services for discrimination based on race, sex, pregnancy, religion, and national origin in violation of Title VII, 42 U.S.C., and 42 U.S.C. § 1981. Fairview Health Services, her former employer, alleged that they terminated her employment when she allegedly did not return from a leave of absence. Plaintiff claimed discrimination as violations of Title VII and 42 U.S.C. §1982. She appealed the district court’s grant of summary judgment in favor of the defendant. The Court of Appeals partially vacated the judgment with respect to the sex and pregnancy discrimination citing that Title VII has been amended via the Pregnancy Discrimination Act to prohibit employers from discriminating against a woman for her capacity to become pregnant, not merely because she is pregnant.



Roper v. Jolliffe Court of Appeals of Texas (2015)

Domestic and intimate partner violence

Joliffe was granted a temporary ex parte protective order against Roper, with whom she aws in a relationship, following an incident of violence at Roper’s apartment, with a hearing on the matter of the protective order scheduled eight days later. Roper motioned for limited discovery and a jury trial. The jury trial was denied but the limited discovery was granted. The court granted Jolliffe a two year protective order, finding by a preponderance of the evidence that Roper was a threat, and ordered Roper to participate in the Batterer’s Intervention and Counselling Program (BIPP). Roper argued to the Court of Appeals that he was entitled to a jury trial under the Texas state Constitution. The court determined that Roper was not entitled to a jury because the state legislature’s intent concerning protective orders was for the court to be the sole fact finder. Roper never formally requested discovery, so he was not denied a meaningful opportunity to defend himself under the due process clause. Roper argued that he was entitled to a higher burden of proof than preponderance of the evidence, citing the criminal undertones of domestic violence civil proceedings, but the court found that preponderance of the evidence was the correct standard.



Greene v. Buckeye Valley Fire Dept. Court of Appeals for the Ninth Circuit (2015)

Employment discrimination

Plaintiff sued the Buckeye Valley Fire Dept. under Title VII of the Civil Rights Act of 1964, and a denial of equal protection under 42 U.S.C. §1983. The district court granted summary judgment for the defendants. However the Ninth Circuit reversed the grant of summary judgment citing that the Plaintiff needed only to provide evidence of a nexus between the alleged discrimination and her lack of promotion. The court determined that she did provide enough evidence to establish a nexus because a man seeking the same promotion was granted the promotion without having participated in assessments, the results of which kept the plaintiff from her promotion



State v. Girardier Missouri Court of Appeals (2015)

Sexual harassment

Defendant was convicted of misdemeanor trespassing after he stayed for several hours in a women’s restroom at a gas station. Numerous store employees entered during the two hours he was in the restroom and told him that there was no smoking, as he smelled like smoke. During these encounters, the store personnel were under the impression the defendant was female as he disguised his voice to mimic a woman’s. When the defendant did not leave, the police arrived and escorted the defendant out of the restroom. The defendant gave the police consent to search him and they found lotion and a pornographic magazine; the defendant was then arrested. The trial court found him guilty of the misdemeanor trespass and sentenced him to six months in jail. The defendant appealed citing an error in denying his motion for acquittal and for exclusion of the lotion and pornographic magazine. The appellate court found that the lotion was relevant as to motive for remaining unlawfully and also relevant to whether his presence was an accident which undermines his defense. Accordingly, the evidence was lawfully admitted and the conviction stood.



Rosati v. Igbinoso Court of Appeals for the Ninth Circuit (2015)

Gender discrimination

Pro se plaintiff Rosati, a transgender female, was imprisoned in California and suffering from Gender Dysphoria. Prison officials refused to provide the medically necessary gender reassignment surgery. The prison officials denied the gender reassignment surgery on the recommendation of a physician’s assistant who had no experience in transgender medicine and in spite of the plaintiff attempting repeated self-castrations. The district court dismissed without leave to amend for failure to state a claim on which relief could be granted. The Ninth Circuit reversed the dismissal citing that the prison officials were deliberately indifferent to the serious medical need of the inmate and that such conduct was a violation of the Eighth Amendment right to be free from cruel and unusual punishment, and that a plausible claim for relief was stated.



Roe v. Patton United States District Court for the District of Utah (2015)

Gender discrimination

Plaintiffs Kami and Angie Roe sued the Executive Director of the Utah Department of Health in his official capacity and sought a preliminary injunction seeking a court order to enjoin the defendants from applying sections of the Utah Uniform Parentage Act differently to male and female spouses of women who become pregnant via sperm donation. The provisions of the Utah statute provide that a married man can become the legal parent to a child conceived by his wife through sperm donation by filing mutual consent in writing, but defendants have declined to apply this same rule to a married woman in respect to her wife. Instead, they have required that she undergo a step-parent adoption process. The court balanced the failure of defendants to provide a rational basis for the unequal treatment with the fact that the plaintiffs and similarly situated wives would suffer irreparable harm if the injunction to compel the defendants to equally apply the statute was not granted. As such, the court granted the preliminary injunction.



Kennedy v. Cain Court of Appeals for the Fifth Circuit (2015)

Gender discrimination

Petitioner was convicted of aggravated rape of a child. In his appeal he argued that the state of Alabama had systemic sex discrimination in the selection of jury forepersons. In a ten year period of time, there were nineteen jury forepersons: twelve were male while seven were female. The petitioner brought a habeas corpus claim citing improper jury foreman election. The Fifth Circuit determined that the petitioner had shown substantial underrepresentation of female forepersons and that no specific disparity percentage was sufficient enough to show substantial underrepresentation but that factors such as disparity, population size, demographics of selection population should be taken into account.



Doe v. Hagenbeck United States District Court for the Southern District of New York (2015)

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

The plaintiff is a female former cadet at the United States Military Academy at West Point, where she claimed that she was forced to resign after her third year due to rampant sexual hostility. In May 2010, she was raped while at West Point after she took sleeping pills and she also cites several other instances of sexual assault and harassment, claiming that members the Sexual Assault Review Board at West Point failed to punish the perpetrators. The District Court found that the plaintiff had properly stated an equal protection claim under the Fourteenth Amendment of the United States Constitution, affording women the same protections under the law as men. The District Court also found that hearing the claim was not precluded by Feres Doctrine, which typically bars tort claims under the Federal Tort Claims Act and constitutional claims against superior officers incident to military service, since the rape was not a service-related injury and hearing the claim would not compromise the legislative or executive functions of government, including the disciplinary role of the Executive Branch over the nation's military. Therefore, the court denied the defendant’s motion to dismiss.



Planned Parenthood of the Heartland Inc. v. Iowa Board of Medicine Supreme Court of Iowa (2015)

Gender discrimination

The Iowa Board of Medicine (“Board”) passed a rule of professional practice that prohibited telemedicine abortions, which are non-surgical abortions overseen by a medical practitioner via audio-visual connection. Planned Parenthood of the Heartland brought a claim against the Board citing that the prohibition of telemedicine abortions violated the equal protection clause by placing an undue burden on women seeking to exercise their right to terminate a pregnancy. The Iowa Supreme Court determined that the Board’s prohibition of telemedicine abortions would unduly limit rural women in Iowa from exercising their right to terminate a pregnancy. Additionally, the Court determined that the Board’s actions were politically motivated and did not constitute sound public policy given that trained professionals administered a physical examination and follow-up appointments were mandatory.



Edwards v. Beck Eighth Circuit Court of Appeals (2015)

Gender discrimination

Abortion-providing physicians in Arkansas filed a 18 USC §1983 action in District Court seeking a permanent injunction against Arkansas Code Ann §20?16?1203(a), which revokes the license of physicians who perform abortions of fetuses beyond the point when the fetal heartbeat can be detected, about 12 weeks. The physicians were granted the injunction, and the State appealed. The Eighth Circuit Court of Appeals upheld the injunction, finding that this statute violated women’s right to terminate pregnancy as set out in Roe v. Wade, which allows for abortion up to the point of fetal viability. The court also notes that viability should be determined on a case-by-case basis and that viability is being pushed sooner and sooner with advancing medical research.



Avendano-Hernandez v. Lynch Court of Appeals for the Ninth Circuit (2015)

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

Plaintiff was a transgender woman from Mexico who was subjected to sexual assault and rape by Mexican police and military throughout her life. In 2006, she was arrested in America for driving under the influence. In 2007 she was deported to Mexico. After suffering more mistreatment in Mexico, Avendano-Hernandez returned to the U.S. and appealed for asylum under the United Nations Convention Against Torture. She reentered the United States in May 2008 and was arrested three years later for violating the terms of probation imposed in her 2006 felony offense for failing to report to her probation office. Plaintiff applied for withholding of removal and relief under the Convention Against Torture but the immigration judge denied her request for failing to show that the Mexican government would more likely than not consent to or acquiesce in her torture, which was confirmed by the Board of Immigration Appeals. On appeal, the Ninth Circuit reversed the decision with respect to the Convention Against Torture application because it was enough for Avendano-Hernandez to show that she was subject to torture at the hands of local officials. Additionally, the immigration judge relied on recent anti-discrimination legislation; however, the judge did not consider the legislation’s effectiveness. Therefore, Plaintiff should be given relief under the Convention Against Torture.



Doe v. Corrections Corporation of America United States District Court for the Middle District of Tennessee (2015)

Sexual harassment

Three female petitioners sued a state-managed prison facility after prison officials required them to verify that they were menstruating before bringing feminine hygiene products into a male prison when visiting inmates. One of the petitioners’ children was also forced to watch the mother being searched because prison rules require children be supervised at all times. The women cited violations of due process, invasion of privacy, negligence, intentional infliction of emotional distress, false imprisonment, unconstitutional seizures, unconstitutional search and a violation of the Fourteenth Amendment. The court denied the prison’s motion to dismiss, noting that filing a case against an agent in his official capacity as well as the entity to which the individual agent is not legally precluded and that liability can rest on the individuals given that the actors at least knowingly acquiesced in the search and likely facilitated the policy that allowed it to happen.



Hill v. Cundiff Court of Appeals for the Eleventh Circuit (2015)

Sexual harassment, Sexual violence and rape

Doe, a 14 year old eighth grader, was raped at school by 15 year old eight grader CJC who had a prior history of sexual harassment at school. The school’s policy on sexual harassment was to accept only three types of evidence as demonstrative of sexual harassment: catching the harasser in the act, physical evidence of the harassment, or an admission of guilt by the harasser. Doe was instructed by a teacher’s aide to lure CJC into a bathroom as a “rape-bait” sting to catch him in the act of sexual harassment. There, CJC anally penetrated Doe against her will before teachers could arrive to catch CJC pursuant to their plan. Doe filed a complaint against the school board and school administrators with a myriad of claims including a 42 U.S.C. §1983 claim for violation of the Equal Protection Clause. While the district court granted summary judgment in favor of the principal and school officials on the §1983 claims, the United States Court of Appeals for the Eleventh Circuit reviewed the case de novo and reversed the summary judgment. The Eleventh Circuit determined that the principal deprived Doe of equal protection through his deliberate indifference to inadequate sexual harassment policies. The Court also reversed the grant of summary judgment in favor of the school officials who suggested and acquiesced to the sting operation: the court found that they were not entitled to immunity because any reasonable government official would know that the plan violated the U.S. Constitution’s Equal Protection Clause.



Stuart v. Camnitz Court of Appeals for the Fourth Circuit (2015)

Gender discrimination

North Carolina passed a law, the Right to Know Act, which required physicians in North Carolina to show a woman seeking an abortion a live-feed of her ultrasound between four and seventy-two hours before an abortion and to describe the fetus in detail including dimensions and location of the fetus. A coalition of doctors and Planned Parenthood sued the President of the North Carolina Medical Board, the Secretary of Health and Human Services for North Carolina, the American Medical Association, and other similar entities. The district court granted summary judgment and an injunction for the plaintiffs. On appeal, the Fourth Circuit affirmed, citing that the requirement that doctors perform and display real-time ultrasounds was unconstitutional as it did pass intermediate scrutiny. Additionally, the requirement violated the doctor’s First Amendment right to freedom of speech as the state is delivering a message that the woman should reconsider having an abortion, albeit compelling speech through the third-party doctors.



Ross v. Commonwealth of Kentucky Supreme Court of Kentucky (2015)

Gender discrimination

Cole Ross was convicted of murder and arson. He appealed his conviction claiming, among other things, that the Commonwealth of Kentucky used its preemptory challenges to dismiss female jurors on the basis of gender. Seven out of the nine peremptory challenges used by the Commonwealth to remove prospective jurors were used to dismiss women. The trial court found that the Commonwealth’s justifications were gender neutral and non-pretextual. On appeal, the Supreme Court of Kentucky found that the disproportionate striking of women jurors and the Commonwealth’s admission during jury selection that they wished to dismiss female jurors created the inference of gender discrimination. The Supreme Court of Kentucky found that this inference was not rebutted by a gender-neutral justification, thereby constituting a Batson violation. Accordingly, the Commonwealth violated the Equal Protection Clause by denying the women the right to be on a jury on the basis of their gender and thus the case was remanded to the trial court for further proceedings



Teamsters Local Union No. 117 v. Washington Dept. of Corrections Court of Appeals for the Ninth Circuit (2015)

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

Female prisoners in Washington prisons alleged sexual abuse by the prison guards. As a remedial remedy, the Department of Corrections designated 110 positions as female-only. These female-only positions include observing female prisoners in sensitive locations, such as showers, as well as performing pat downs. The union of correctional officers sued the Department for Title VII violations for sexual discrimination in employment. The district court granted summary judgment for the Department. The Circuit Court affirmed citing sex as a bona fide occupational qualification for those positions given that sexual abuse is present in prisons and positions which require observing prisoners in sensitive areas or tasks can be performed by females only in order to protect female prisoners from abuse.



Morales-Santana v. Lynch United Court of Appeals (2015)

Gender discrimination

Morales-Santana sought review of a decision made by the Board of Immigration Appeals denying his motion to reopen his removal proceedings to evaluate his claim of derivative citizenship. Morales-Santana’s derivative citizenship claim was based on the Immigration and Nationality Act of 1952 (18 U.S.C. §1409). The 1952 Act differentiates how fathers and mothers can confer citizenship to their children. An unwed citizen mother confers citizenship on her child as long as she had been resident in the United States for a year continuously before the child’s birth. An unwed citizen father, however, cannot transfer citizenship to his child born abroad if he was not present in the United States before the child’s birth for a total of ten years. Additionally, five of the father’s ten years in the United States must be after his fourteenth birthday. Therefore, it was impossible for a father under the age of eighteen to confer citizenship to a child born abroad of a non-citizen mother. In this case, Morales-Santana’s father satisfied the requirements for transmitting citizenship applicable to unwed mothers but not the more stringent requirements applicable to unwed fathers. The Second Circuit Court of Appeals found this disparate treatment a violation of the Fifth Amendment’s guarantee of equal protection and reversed the Board of Immigration Appeals decision.



EEOC v. New Breed Logistics Court of Appeals for the Sixth Circuit (2015)

Employment discrimination, Sexual harassment

The EEOC alleged a Title VII violation on behalf of Hines, Pearson, and Pete after their employer Calhoun allegedly sexually harassed them. Another employee witnessed the sexual harassment and confronted Calhoun. Each woman communicated their intent to complain about Calhoun’s sexual harassment shortly after which all three women were fired or transferred. Pete did place a complaint in the company’s complaint line but the company asked Calhoun five questions about his conduct and determined there was no misconduct. The court determined that complaints to management and informal protests were protected activities under Title VII. Therefore, the women’s demands that Calhoun stop harassing them are considered protected activity under Title VII, and retaliation constituted a violation of Title VII.



People v. Reynolds Court of Appeals Fourth District (1995)

Domestic and intimate partner violence

The defendant was convicted of violating an order of protection against his ex-wife by sending her a note with the intent to harass her. He appealed contesting that the statues violates the First and Fourteenth Amendments because it is vague and overbroad. The Court of Appeals rejected the arguments that it was too vague or overbroad because these issues had already been determined previously in other cases. The Court also rejected the defendant’s arguments that the trial court erred in excluding evidence and that the defendant was deprived of a fair trial because of the level of deference given to the state on review.



Wal-Mart Stores, Inc. v. Human Rights Commission Court of Appeals Second District (1999)

Gender discrimination

Ms. McQueary was discharged from Wal-Mart and alleged that her employer violated the Illinois Human Rights Act by discharging her on the basis of gender. Her employer claimed that it discharged her after she left her shift early, which she had done due to harassment from her male co-workers. After the administrative judge recommended liability, the Illinois Human Rights Commission (HRC) sustained the complaint and ordered the award of damage and reinstatement of Mrs. McQueary. Wal-Mart argues that the employee failed to prove the fourth prong of a prima facie cause of unlawful discrimination—that employees in a similar situation who were not members of a protected group were not discharged. The Court of Appeals ruled that this was met though when they examined Wal-Mart’s treatment of similar employees and found that the male employees who also left their shift early were not automatically discharged. The Court affirmed the judgment of the HRC.



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

Sexual violence and rape, Statutory rape or defilement

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



Daria W. v. Bradley W Court of Appeals Third District (2000)

Sexual violence and rape

The petitioner filed for an order of protection for her minor child against the respondent, Bradley W., the child’s father. On appeal, the defendant argued that the trial court made a mistake in applying section 606(e) of the Marriage Act to admit the minor child’s hearsay statements alleging sexual abuse by the father. The Court of Appeals looked at two different statutes that could apply to the legal issue, and according to the rule of statutory construction the more specific statute governed, which is what the trial court had followed. The Court decided that they were in no position to question the trial court’s conclusions, so they affirmed the judgment.



United States v. Chang Da Liu, 538 F. 3d 1078 (9th Cir. 2008) Court of Appeals Ninth District (2008)

Sexual violence and rape, Trafficking in persons

Ming Yan Zheng and her husband Chang Da Liu opened a brothel in Saipan, the capital of the Commonwealth of the Northern Mariana Islands (“CMNI”). They recruited employees in China by advertising for positions as waitresses, nightclub performers and service workers. The materials promised wages of between $3,000 and $4,000 and required applicants to pay a $6,000 processing fee. Upon their arrival to CMNI, the employees were forced into prostitution. Six of the victims reported the situation to the FBI which resulted in Zheng and Liu’s convictions for conspiracy, sex trafficking, foreign transportation for prostitution and transportation of persons in execution of fraud. On appeal, Zheng challenged her conviction on several grounds, inter alia, that the court lacked jurisdiction to prosecute her. Zheng argued that the Federal Government lacked authority to prosecute her because Section 501 of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (“the Covenant”) limited the application of the criminal statutes under which she was convicted in the CMNI. According to Zheng, Section 501provides an exhaustive list of the provisions of the U.S. Constitution which apply to the CMNI. As such, she could not be prosecuted under the criminal statutes used to prosecute her because they were enacted under the commerce clause and that territorial clause, which provisions are not listed in Section 501 of the Covenant. The Court found Zheng’s argument to be lacking because Section 501 sets forth the Constitutional provisions which apply in the CNMI as if it were a state. By contrast, the commerce clause and the territorial clause apply to Congress and regulate its ability to enact legislation applicable to the CMNI. As such, the Court held that Congress had authority to legislate over the CMNI, and that the court had jurisdiction over Zheng. The Court pointed out that although Congress has authority to legislate over the CMNI, the Covenant does limit Congress’s powers with respect to legislation enacted after the Covenant’s effective date. For such legislation, the Court must balance the federal interest served by the legislation against the degree of intrusion into the CMNI’s local affairs. However, the Court found that the federal interest in combating international sex trafficking through the U.S. territories outweighs the intrusion into the CMNI’s local affairs.



United States v. Flanders, 752 F.3d 1317 (11th Cir. 2014) Court of Appeals Eleventh District (2014)

Sexual violence and rape, Trafficking in persons

Defendants Flanders and Callum engaged in a scheme to lure aspiring models to South Florida, drug them with Benzodiazepines, film them engaging in sexual acts and distribute the film for profit. The two were convicted on conspiracy charges and multiple counts of inducing women to engage in sex trafficking through fraud and benefitting from that scheme. The two were sentenced to a total imprisonment term of life, including sixty month terms for the conspiracy charge and life terms for each of the sex-trafficking charges to run consecutively to each other. On appeal Flanders challenged his conviction on sufficiency of the evidence grounds. He claimed the conspiracy conviction could not be sustained because there was insufficient evidence of an agreement between the Defendants or of an overt act in furtherance of the conspiracy. The Court held that evidence that Flanders represented himself as a Bacardi agent and a fictitious female employee of a modeling agency, together with evidence that Callum referred to the fictitious female employee and used phrases Flanders used to lure the models, was sufficient to establish an agreement amongst the Defendants to defraud the victims and constituted overt acts in furtherance of the agreement. Additionally, the Defendants challenged their convictions on double jeopardy grounds, claiming that convictions under 18 U.S.C. §1591(a)(1) and (a)(2) were multiplicitous. The Court held that Section 1591(a)(1) requires the prosecution to prove that the defendant was criminally responsible for the recruitment or enticement of a person with the knowledge that such person will be fraudulently induced to engage in a commercial sex act. By contrast, Section 1591(a)(2) only requires participation in a venture which has recruited a person for such purposes and that the defendant receive valuable benefit from his participation. Applying the Blockburger test, the Court held that the each subsection of the trafficking statute requires proof of different elements that the other does not and that convictions under each subsection do not result in a violation of the Double Jeopardy Clause of the U.S. Constitution.



United States v. Mozie, 752 F.3d 1271 (11th Cir. 2014) Court of Appeals Eleventh District (2014)

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

Defendant James Mozie ran prostitution ring from his house, commonly known as the Boom Boom Room by his customers. Mozie recruited vulnerable teenage girls by posing as a modeling agent, luring them to the Boom Boom Room, and forcing them to have sex with him and his customers. In 2011, law enforcement agents raided the Boom Boom Room and Mozie was subsequently charged with one count of conspiring to commit child sex trafficking in violation of 18 U.S.C. § 1594(c), eight counts of child trafficking in violation of 18 U.S.C. § 1591(a) and one count of producing child pornography in vilation of 18 U.S.C. § 2251(a). The jury convicted Mozie of all ten counts and he was sentenced to the guideline-recommended sentence of life imprisonment. On appeal, Mozie claimed his conviction under 18 U.S.C. § 1591(a) violated the Fifth Amendment’s Due Process Clause. Mozie argued that the statute is facially unconstitutional because it allows the government to obtain a conviction without proving beyond a reasonable doubt that the defendant knew his victim was a minor. The Court held that the statute is not unconstitutional because it requires the Government to prove beyond a reasonable doubt that the defendant had a reasonable opportunity to observe the victim. If such element is proven, then the Government need only prove that the defendant recklessly disregarded that victims age. The Court explained that the Due Process clause does not prevent Congress from criminalizing reckless conduct, especially in the context of statutory rape and other measures to protect young children from sexual exploitation. Additionally, Mozie contended that his conviction should be reversed because his indictment was constructively amended by the district court. Mozie’s indictment alleged conjunctively that he knew and recklessly disregarded his victims’ age. The district court, however, instructed the jury that they could convict Mozie “if they found he either knew his victims were minor or recklessly disregarded the fact that they were minors.” The Court held that there was no constructive amendment of the indictment because when an indictment charges in the conjunctive, the jury instructions may properly be framed in the disjunctive.



United States v. Sawyer, 733 F.3d 228 (7th Cir. 2013) Court of Appeals Seventh District (2013)

Trafficking in persons

Defendant Datqun Sawyer was convicted of sex trafficking in violation 18 U.S.C. § 1591(a). On appeal, Sawyer admitted to forcing at least seven teenage girls he knew to be minors to work as prostitutes for his benefit but challenged his conviction on grounds that the jury was improperly instructed. Sawyer argued that the jury should have been instructed to acquit if the Government did not prove beyond a reasonable doubt that he knew or intended his criminal conduct to affect interstate commerce. The Court held that the clause in 18 U.S.C. § 1591 requiring the defendant’s conduct to affect interstate commerce merely establishes the basis for Congress’s power to legislate and is not subject to any mens rea requirement. The Court explained it would be unreasonable for Congress to limit its enforcement ability to the “trifling number” of sex-traffickers who know or intend their conduct to impact interstate or international commerce as understood under Constitutional law. As such, the Court held that a conviction under 18 U.S.C. § 1591(a) does not require proof of the defendant’s knowledge of the implications of his conduct on interstate commerce.



Cece v. Holder, 733 F.3d 662 (7th Cir. 2013) Court of Appeals Seventh District (2013)

Gender discrimination, Sexual violence and rape, Trafficking in persons

Cece, a young Albanian woman fled Albania to avoid trafficking and prostitution rings which target young women living alone. While living alone in Korce, Cece caught the attention of one of the leaders of a well-known prostitution ring. He followed, harassed, and threatened Cece. Her reports of the assault to the authorities were perfunctorily dismissed. Thereafter, Cece fled to the United States (“U.S.”) using a fraudulently procured Italian passport, whereupon she filed for asylum and withholding of removal within the one-year statutory period. Her claim was based on fear of returning to Albania as a young woman living alone. The immigration judge granted Cece’s asylum claim finding that her fear of returning to Albania was well founded because she belonged to a particular social group composed of “young Albanian women who are targeted for prostitution by traffickers” and that the government of Albania was unable or unwilling to protect such women. The Board of Immigration Appeals vacated the judge’s decision, holding that the judge erred in finding that Cece had established membership in a particular social group. On appeal, the Seventh Circuit Court of Appeals found that Cece was a member of particular social group cognizable under 8 U.S.C. § 1101(a)(42)(A) and therefore eligible for asylum. Specifically, the Court found that the particular social group identified by the immigration judge – young Albanian women living alone and thus vulnerable to being trafficked – met the immutability requirements of 8 U.S.C. § 1101(a)(42)(a) because it is based on common characteristics that members of the group either cannot change or should not be required to change.



United States v. Afolabi, 508 Fed. Appx. 11 (3d Cir. 2013) Court of Appeals Third District (2013)

Sexual violence and rape, Trafficking in persons

Afolabi was convicted in district court on twenty two counts relating to her participation in a visa fraud and human trafficking scheme. From October 2002 through September 2007, Afolabi and her family trafficked over twenty West African girls into the U.S. and forced them into unpaid labor. At trial, the prosecution introduced evidence of the physical, psychological, and sexual abuse the girls endured at the hands of Afolabi and her family in the U.S. and Togo. Specifically, the prosecution used evidence of abuse in Togo to establish the involuntary nature of the girls’ servitude. On appeal, Affolabi claimed the court erred in admitting evidence of acts occurring prior to the indictment period. The Third Circuit Court of Appeals held that the evidence was properly introduced because the evidence of prior bad acts in Togo met the requirements of Federal Rule of Evidence 404(b). The Court held that the evidence had a proper evidentiary purpose because it served to illustrate a plan or scheme to coerce the girls into servitude in the U.S. The Court further held that such evidence was relevant because it could contribute to the jury’s determination of the girls’ inability to leave. Additionally, the Court found that any potential prejudice resulting from the Togo evidence did not substantially outweigh its probative value especially in light of the limiting instruction provided by the trial judge.



United States v. Cortes-Castro, 511 Fed. Appx. 942 (11th Cir. 2013) Court of Appeals Eleventh District (2013)

Sexual violence and rape, Trafficking in persons

After the Department of Homeland Security learned that Ernesto, Alberto and Israel Cortes Castro, were smuggling women from Mexico into the U.S. for forced prostitution, they were charged with conspiring to traffic women for prostitution by force or coercion in violation of 18 U.S.C. § 1594(c) and other substantive trafficking crimes. The Defendants plead guilty to the conspiring charge in exchange for the dismissal of the other charges. The factual proffer submitted with the plea agreements stated that the Defendants agreed to establish a sex-trafficking business in the U.S. in which women would be transported from Mexico and prostituted in exchange for money. It also detailed the methods employed by the Defendants to defraud, force and coerce women into prostitution. The district court accepted the plea agreements and sentenced the Defendants to 180 months of imprisonment, an upward variation from the 108-135 month range provided by the advisory guidelines. According to the district court, the upward variation was justified by the “unusually heinous, cruel, brutal and degrading” nature of their conduct. Additionally, the court ordered the Defendants to pay $1,239,200 in restitution losses to the victims. On appeal, the Defendants challenged the upward variation and the restitution award. The Eleventh Circuit Court of Appeals found that the district court had not abused its discretion by sentencing the Defendants to terms 45 months over the advisory guidelines range because they had “enslaved, demeaned and debased immigrant women” forcing them into prostitution for several years and subjecting them to mental, physical and emotional abuse. The Court further held that the district court reasonably determined that an upward variation was required to address the “abhorrent nature” of the crimes. Finally, the Court held that the district court did not err in granting the restitution award because the victims were statutorily entitled to compensation and such award was based on factual information in the factual proffer and the presentencing report.



Cruz v. Canada (Minister of Citizenship and Immigration) Immigration and Refugee Board (2012)

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

This case concerns an application for review of a decision made by the Immigration and Refugee Board, which had determined a family applying for protection, a mother and two minor children, did not have a “well-founded fear of persecution” and were not persons in need of protection. The family expressed fear of domestic violence upon a return to Mexico. During appeal, the Federal Court held that the Immigration and Refugee Board was in error “when it determined that state protection was available to the minor Applicants in Mexico.” The Court noted that the children’s individual circumstances and fear were not properly assessed and ought to have been taken into consideration by the Board: specifically, “[t]he evidence adduced with respect to the situation of each individual child should have triggered separate analyses of risk.” Furthermore, the Court noted that the Board should have considered “the ability of the Mexican state to protect these children” as individuals. The application for review was allowed to proceed.



Corneau v. Canada (Minister of Citizenship and Immigration) Refugee Protection Division of the Immigration and Refugee Board (2011)

Domestic and intimate partner violence, Gender discrimination

This case concerns a decision of the Refugee Protection Division of the Immigration and Refugee Board. In response to an application for protection by Ms. Corneau, who sought protection from domestic violence perpetrated by her partner in Saint Lucia, the Board held that authorities in Saint Lucia were “capable of providing the applicant with adequate protection.” The applicant sought review of this determination. The Federal Court held that the Board’s finding was unreasonable, noting that “[t]he good intentions of a state to protect its citizens do not constitute state protection where in practice protection does not exist.” The Court stated that the Board failed to give adequate weight to contrary evidence and further noted that applicants for state protection are “not required to seek protection or assistance from non-governmental organizations or administrative agencies in order to rebut the presumption of state protection.”



Moge v. Moge Supreme Court of Canada (1992)

Divorce and dissolution of marriage

The parties, Polish immigrants, divorced in Canada after approximately 25 years of marriage. The wife had a seventh grade education and no special skills or training. During the marriage, in addition to caring for their 3 children and the house, she worked evenings cleaning offices. After the separation, she was awarded custody of the children and received $150 per month spousal and child support and continued to work cleaning offices. The husband remarried in 1984 and continued to pay support to his former wife. She was laid off in 1987 and, as a result of an application to vary, her spousal and child support was increased to $400. She was later able to secure part-time and intermittent cleaning work. In 1989, the husband was granted an order terminating support. The trial judge found that the former wife had had time to become financially independent and that her husband had supported her as long as he could be required to do. The Court of Appeal set aside the judgment and ordered spousal support in the amount of $150 per month for an indefinite period. The matter was appealed to the Supreme Court of Canada to determine whether the wife was entitled to ongoing support for an indefinite period of time or whether spousal support should be terminated. The Supreme Court of Canada determined that spousal support should continue and that termination of spousal support, pursuant to sec. 17 of the Divorce Act, should consider the recipient’s disadvantaged economic status as a result of the marriage breakdown both at the time of breakdown and as it may continue, rather than a simple “sink or swim” policy premised on the wife’s having had sufficient time to become self-sufficient. This decision has provided considerable protection from impoverishment for recently divorced women.



R. v. Morgentaler Supreme Court of Canada (1988)

Gender discrimination

Prior to this case, a woman had to get the approval from the therapeutic abortion committee of an approved hospital before she could get an abortion in Canada. Abortions performed without this approval were illegal. Three doctors, including Dr. Morgentaler, set up a clinic to perform abortions for women who did not have the necessary approval and the doctors were criminally charged. They argued that the abortion laws violated a woman’s right to security of the person. The Supreme Court of Canada decided that the Criminal Code’s restrictions on abortion were unconstitutional because they increased health risks to women, depriving them of the right to security of the person. Since this decision, no abortion laws have been enacted. Therefore, this decision has had the practical effect of giving women the freedom of choice.



Steve Brian Ewanchuk v. Her Majesty the Queen Supreme Court of Canada (1999)

Sexual violence and rape

The accused engaged in increasingly inappropriate sexual behavior toward the 17 year old complainant whom he was interviewing for a job. The teenager reported feeling afraid and stated that she repeated “no” at each advance. Despite the teen’s refusals, the accused continued to touch the complainant. The trial court acquitted the accused of sexual assault charges based on implied consent and the acquittal was upheld in the Court of Appeal. An appeal to the Supreme Court of Canada followed, in which the Supreme Court considered whether the trial court judge (1) erred with regard to his conception of consent and (2) whether the defense of “implied consent” was appropriate to this case. The Supreme Court of Canada found that the accused’s behavior did constitute sexual assault and noted that the trial judge erred in the determination that the teenager implicitly consented, stating, “the question of implied consent should not have arisen.” Specifically, the Supreme Court of Canada determined that the trial court had relied on stereotypes about women, including the problematic idea that women are “in a state of constant consent to sexual activity,” and asserted that these stereotypes “no longer find a place in Canadian law.”



Janzen v. Platy Enterprises Ltd Supreme Court of Canada (1989)

Employment discrimination, Sexual harassment

The appellant waitresses had been harassed while working at Pharos Restaurant, a restaurant owned by Platy Enterprises Ltd. Multiple waitresses endured sexual harassment from the same employee. In each individual incident, the waitresses resisted the conduct and one waitress spoke to management. While the harassment stopped, the offending employee continued to behave in an “unpleasant manner.” An adjudicator for the Manitoba Human Rights Commission awarded damages to the victims of sexual harassment and found that they had been “victims of sex discrimination contrary to s. 6(1) of the Human Rights Act. The Court of the Queen’s Bench upheld the decision, but the Court of Appeal later reversed. The Supreme Court of Canada held that the lower court “should not have reduced the amount of damages given to the appellants” given the severity of the sex discrimination experienced by the employees.



Cheung v. Canada Canada Court of Appeal (1993)

Forced sterilization

After having her first child in China in 1984, Cheung had three abortions and moved to a new province in 1986 to avoid problems with local authorities on the basis of China’s one-child policy. Cheung had another child in that province. Cheung moved to Canada, knowing that she would be sterilized if she returned to China. The Immigration and Refugee Board determined that Cheung and her daughter did not have the “well-founded fear of persecution” necessary for Convention refugee status, and Cheung appealed. The Court determined that forced sterilization “is such an extreme violation of basic human rights as to be persecutory,” and determined that Cheung did in fact have the “well-founded fear of persecution” necessary for refugee status. Furthermore, the Court determined that Cheung’s young daughter also qualified for refugee status because she would have been denied appropriate medical care and other necessities if she returned to China.



R. v. J.A Supreme Court of Canada (2011)

Gender-based violence in general, Sexual violence and rape

This appeal involved the interpretation of “consent” under the sexual assault provisions of the Criminal Code of Canada. The Supreme Court of Canada in its seminal decision in 1999 in R. v. Ewanchuk unanimously confirmed that consent to sexual activity must be active, voluntary and revocable, meaning that a woman can say “no” at any time. Further, the Supreme Court in Ewanchuk held that consent cannot be implied, whether from a complainant’s dress or the fact that she said “yes” on an earlier occasion. R. v. J.A. involved a woman who reported that she was sexually assaulted by her common-law spouse where the accused strangled the complainant into unconsciousness. When the complainant awoke, she found herself bound and being anally penetrated. The accused argued that the complainant consented “in advance” to the strangulation and anal penetration that took place while she was unconscious. In its judgment, the Supreme Court held that “an individual must be conscious throughout the sexual activity in order to provide the requisite consent” and that “the definition of consent…, requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy the requirement.”



D.B.S. v S.R.G. Supreme Court of Canada (2006)

Divorce and dissolution of marriage

This case concerned the issue of child support and the entitlement of recipient spouses, predominantly mothers, to increased child support following an increase in the income of payer spouses, who are predominantly fathers. The Supreme Court of Canada ruled unanimously that ex-spouses could face significant retroactive child support payments if they failed to declare their increased earnings.



Bradwell v. The State United States Supreme Court (1872)

Employment discrimination, Gender discrimination

Myra Bradwell petitioned to be admitted to the bar and to be allowed to practice law, but was denied by the Supreme Court of Illinois. The United States Supreme Court upheld this decision, noting that a woman’s freedom to pursue the occupation of a lawyer was not a “privilege and immunity” of Untied States citizenship that was protected from state restriction by the 14th amendment to the United States Constitution. Thus the court found that excluding women from the bar did not violate the U.S. Constitution.



In re Maddox Maryland Court of Appeals (1901)

Employment discrimination, Gender discrimination

This case addressed the claims of Etta Haynie Maddox that she should be allowed to sit for the bar examination and receive admission to the bar despite a Maryland state statute limiting bar admission to “male citizens of Maryland.” The Maryland Court of Appeals denied her application, stating that the court did not have the power to enact legislation. Thus until the legislative branch declared that women could be admitted to the bar, the court did not have any power to admit Maddox.



In re Goodell Supreme Court of Wisconsin (1875)

Employment discrimination, Gender discrimination

In Goodell, the Supreme Court of Wisconsin refused to include women within the construction of the word “person” and denied Goodell admission to the bar because she was a woman. Judge Ryan noted that that extending the meaning of “person” to include females as well could result in perverse interpretations of the law, and provided examples of the ridiculous results he foresaw, including the “prosecution [of a woman] for the paternity of a bastard…” In support of his conclusion that a gender-neutral statute did not mean that women could be admitted to the bar, Judge Ryan also maintained that the admission of women to the bar was not something contemplated by the state legislators who enacted of the legislation in question; thus he found “no statutory authority for the admission of females to the bar of any court of [Wisconsin].”



In re Lockwood United States Supreme Court (1894)

Employment discrimination, Gender discrimination

The Supreme Court stated that a woman could not be admitted to the bar because she was under a common law disability: she did not have the right to enter into contracts with third persons without the permission of her husband.



Joseph v. Canada Federal Court of Canada (2006)

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

Ms. Joseph is a citizen of Grenada who fled to Canada in order to escape a violent common law relationship she had been involved in for 15 years. During Ms. Joseph’s relationship with her common law spouse, she tried to leave him several times; however, he always found her and the abuse would continue. She applied for protection in Canada pursuant to the Gender-Related Guidelines of the Immigration and Refugee Protection Act, which aids determination of the risk facing women who are fleeing gender-specific persecution. Ms. Joseph based her claim on the ground that there is a substantial risk that she would face torture and cruel and unusual treatment at the hands of her former common law spouse, and there is more than a mere possibility that she would face gender-based persecution, if forced to return to Grenada. Despite the fact that the officer reviewing Ms. Joseph's application found her testimony and evidence to be credible, her application for protection was denied on the ground that she had failed to rebut the presumption of state protection in Grenada. When Ms. Joseph was informed that removal arrangements had been made, she brought a motion for a stay of removal, which was granted. The court ordered that Ms. Joseph’s application for judicial review be allowed, due to “discrepancies in logic” regarding the officer’s estimation of her evidence and his decision on her application, and remitted the matter to a different state officer for redetermination of her application for protection.



Chu v. Canada Federal Court of Canada (2006)

Trafficking in persons

Ms. Chu is a citizen of China who was smuggled into Canada as a minor, arrested by Citizenship and Immigration Canada while she was being smuggled into the United States, and subsequently detained for eight months. Ms. Chu filed a refugee claim with the Immigration and Refugee Board, which was rejected. In rejecting her claim, however, the Board accepted that Ms. Chu was a member of a social group comprising rural young women from China, and that as such, Ms. Chu was a “very vulnerable member of society.” Ms. Chu then submitted an application for permanent resident status on humanitarian and compassionate grounds, in light of the international laws regarding the trafficking of women. After complying with a request to provide updated information about her case, Ms. Chu received word that her application had been refused on the grounds that she had not shown sufficient establishment in Canada to suggest that she would suffer undue hardship if required to leave and apply for a visa in the regular manner. Ms. Chu challenged this decision by applying for judicial review of her application, alleging that the officer who made the original decision had failed to consider all of the evidence submitted in her case. The judge dismissed Ms. Chu’s application for judicial review, holding that the officer had not made any reviewable error because Ms. Chu had not successfully demonstrated that the officer ignored any evidence.



Streanga v. Canada Federal Court of Canada (2007)

Trafficking in persons

Ms. Streanga is a citizen of Romania who was smuggled to Canada by a sex trafficking ring. After escaping from her traffickers, Ms. Streanga submitted an application for protection. Her application was denied, the deciding officer concluding that since the Romanian government had “taken serious measures” to punish those responsible for trafficking, state protection would be available to Ms. Streanga upon her return. Ms. Streanga made a motion for an order staying her removal until such time as her Application for Leave and for Judicial Review of her application could be decided. On hearing the motion, the judge found that the public pronouncements and public awareness cited by the officer, as well as services for women who have already been victimized, did not amount to state protection. The judge also found that Ms. Streanga would likely suffer irreparable harm if deported to Romania. Further, the judge found reviewable error in that the officer had applied the wrong legal test to determine state protection, and that in light of the evidence of the serious inadequacies of the Romanian police in combating and preventing human trafficking, the officer’s standard of review was flawed. The court granted the stay of removal until the deposition of the leave application, and provided that if leave was granted, the stay would remain until such time as the application for judicial review could be disposed of by the Court.



Erdogu v. Canada Federal Court of Canada (2008)

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

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



R. v. Arcand Court of Appeal of Alberta (2010)

Gender-based violence in general, Sexual violence and rape

The complainant was raped by the accused, a distant relative, while unconscious in her home. Prior to the incident, out of kindness, the complainant had taken the accused to her home and had offered to let him stay with her. Just before the assault, the two were sitting on a bed talking, drinking, and watching television. The complainant then passed out, and she awoke to find the accused having sexual intercourse with her. She pushed him off and brought suit against him for sexual assault. The trial judge found the accused guilty of sexual assault. Although there is a three-year minimum sentence for serious sexual assault, the judge took the recommendation of defense counsel and sentenced the accused to 90 days imprisonment, to be served intermittently, plus three years probation. The State appealed the sentence, arguing that it should have been in the three- to four-year range. In evaluating the appropriate application of the proportionality principle to sentences for sexual assault, the Court of Appeal reasoned that the Supreme Court had never endorsed the concept of a harmless rape or other major sexual assault. The court held that non-consensual sexual intercourse under any circumstances constituted a profound violation of a person’s dignity, equality, security of person and sexual autonomy, and that under the circumstances of the instant case, the offense should have been sentenced as a serious sexual assault. However, the court also ruled that, having regard to all relevant considerations, a downward departure from the three-year minimum sentence is justified. Finding that the original sentence was inadequate, the court granted the appeal and concluded that a fit and proper sentence would be two years imprisonment plus two years probation.



R. v. Ewanchuk Supreme Court of Canada (1999)

Sexual violence and rape

The female complainant was repeatedly touched in a progressively intimate manner by the accused, despite the fact that she clearly said “no” on each occasion. Any compliance by the complainant with the accused’s advances was done out of fear, as she believed that they were locked inside the accused’s trailer. The conversation that took place between the two in the trailer clearly demonstrated that the accused knew that the complainant was afraid and that she was an unwilling participant. The complainant filed suit against the accused for sexual assault in the Alberta Court of the Queen’s Bench. Despite the trial judge’s acceptance of the complainant’s testimony regarding her lack of consent, the judge acquitted the accused on the basis of “implied consent”; the Court of Appeal affirmed. On the issue of whether the trial judge erred in his understanding of consent in sexual assault, and on whether the defense of “implied consent” was proper, the Supreme Court of Canada held that there was error and ordered that an appeal from that decision be allowed.



R. v. Bear Provincial Court for Saskatchewan (1999)

Domestic and intimate partner violence

Ms. Bear was charged with aggravated assault for stabbing her partner more than a dozen times in his abdomen, arms, and face, leaving him in critical condition. Ms. Bear also received serious cuts to her leg and hand in the course of the altercation. In her defense, Ms. Bear claimed that she acted in self-defense and offered expert testimony that she and the victim were caught up in a cycle of violence commonly referred to as “battered woman syndrome.” Both parties were intoxicated at the time of the incident, and Ms. Bear testified that her partner was blocking the only exit. Ms. Bear had a history of assault, but she also had a history of involving herself in violent relationships. The trial judge accepted the theory of “battered woman syndrome” and found Ms. Bear not guilty on the charge of aggravated assault, holding that she had clearly acted in self-defense and that the lethality of her actions was not unreasonable given her situation.



R. v. Smith Ontario Court of Appeal (2005)

Gender-based violence in general, Sexual violence and rape

The appellant was convicted of two counts of making obscene material, one count of possessing obscene material for distribution, and two counts of distributing obscene material through internet websites. The materials in question, consisting of audiovisual material and written stories, depicted acts of violence perpetrated against women by men. Although no explicit sexual act was depicted in the audiovisual material, the images included depictions of nude women with their genitalia exposed and with weapons protruding from their bodies. The written stories, however, depicted explicit sex and violence. The trial judge imposed a $100,000 fine and a period of probation, during which the appellant was prohibited from accessing the internet or residing in any place where internet access was provided. The appellant appealed both his convictions and sentence. The Court of Appeal judge ruled that he would allow the appeal, set aside the convictions on four of the five counts and ordered a new trial on those counts. With respect to the written stories, the judge dismissed the appeal, set aside the original sentence and probation order, and imposed a $2,000 fine.



Nava v. Santa Fe New Mexico Supreme Court (2004)

Sexual harassment

Nava has been a police office since 1993. In 2000, according to Nava, Gallegos, one of Nava’s supervisors, harassed her almost daily. Gallegos checked on her location more than other officers, raised his voice to her, denied her many of the same privileges male officers were afforded, followed her to her house to monitor how long she took on bathroom breaks, assigned rape calls to her even when other officers were closer to the scene of the crime, and threw a file folder at her on one occasion. Nava brought a sexual harassment claim based on a hostile work environment theory under the New Mexico Human Rights Act. At trial the jury awarded Nava $285,000 in damages. The trial court subsequently reduced the amount to $90,250 on the city’s motion. Both parties appealed.



Kanzler v. Renner Wyoming Supreme Court (1997)

Sexual harassment

Appellant, a former dispatcher with the Cheyenne Police Department, appealed from the summary judgment which was entered in favor of police officer-appellee, also employed by the Cheyenne Police Department, on appellant’s claim of intentional infliction of emotional distress. The Wyoming Supreme Court reversed, because as a matter of law, appellant presented sufficient evidence in support of her claim of intentional infliction of emotional distress, based on inappropriate sexual conduct by a co-employee in the workplace, to survive appellee’s motion for summary judgment. The court identified several recurring factors that could be used in determining whether particular conduct in the workplace is sufficiently outrageous to survive a preliminary motion: (1) abuse of power; (2) repeated incidents and/or pattern of harassment; (3) unwelcome touching and/or offensive, non-negligible physical contact; and (4) retaliation for refusing or reporting sexually-motivated advances. The court found that conditions and circumstances alleged by appellant, including repeated incidents over a period of time and offensive, non-negligible physical contact, could lead a jury to construe appellee’s conduct as outrageous. Furthermore, appellant’s evidence was sufficient to create a jury issue on the severity of her emotional distress.



Commonwealth v. Fuentes Pennsylvania Superior Court (2010)

Sexual violence and rape

Defendant appealed a ruling that he was a sexually violent predator, suffering from an antisocial personality disorder. Defendant sexually assaulted a sixteen year-old girl and threatened to kill her if she reported the assault. He was subsequently arrested and entered a negotiated guilty plea. At the defendant’s Megan’s Law hearing and sentencing, a doctor, who was a member of the Sexual Offenders Assessment Board, found that the defendant had an antisocial personality disorder and that he was likely to engage in sexually violent activity if not confined. In response to the defendant’s appeal, the Superior Court noted that the “determination of a defendant’s SVP status may only be made following an assessment by the Board and hearing before the trial court.” The court noted that the Board member’s opinion was evidence in of itself of the defendant’s sexually violent nature, and it upheld the assessment.



Werth v. Empl. Dep't. Oregon Court of Appeals (2010)

Sexual harassment

Here, claimant sought judicial review of an order of the Employment Appeals Board that denied her claim for unemployment insurance benefits after finding that claimant failed to establish that her belief that further stalking by a fellow employee would occur was reasonable. Claimant argued that the Appeals Board erred in concluding that she quit her job without good cause after being stalked by a co-worker for several months. Under ORS 657.176(12), an individual could not be disqualified from receiving benefits under subsection (2)(c) if: (a) [t]he individual is a victim, or is the parent or guardian of a minor child who is a victim, of domestic violence, stalking, or sexual assault; (b) [t]he individual leaves work . . . to protect the individual or the minor child from further domestic violence, stalking or sexual assault that the individual reasonably believes will occur at the workplace or elsewhere.” The Court of Appeals of Oregon reversed and remanded for further proceedings, finding that claimant’s belief that further stalking would occur was reasonable, in light of her stalker ignoring warnings from the police to leave claimant alone, disregarding some of the restrictions that employer instituted after the first temporary stalking protective order (SPO) was issued and in light of his conduct escalating and becoming increasingly alarming.



Littell v. Allstate Ins. Co. New Mexico Court of Appeals (2007)

Sexual harassment

Littell worked as a paralegal for Allstate in 1996. Aakhus, Littell’s supervisor, regularly told demeaning jokes, touched women inappropriately, commented about other employees’ sexual preferences, and tolerated similar behaviors by other coworkers. After Littell anonymously reported Aakhus to Allstate headquarters, Aakhus started to belittle her in public, disciplined her for pretextual reasons, and became more aggressive in general. Littell eventually left her job after Aakhus denied her leave to deal with a “family crisis.” Aakhus was discharged after Littell left Allstate. Littell subsequently sued Allstate, alleging, among other things, sexual harassment and retaliatory discharge. The jury reached a verdict in favor of Littell, awarding her $360,000 in compensatory damages and $1 million in punitive damages. Allstate appealed.



Sam v. State Wyoming Supreme Court (2008)

Domestic and intimate partner violence

Defendant was arrested for violation of a protection order and moved to suppress the results of a search of his motor vehicle, which uncovered evidence of drug crimes. The Supreme Court of Wyoming affirmed the judgment and defendant’s conviction. A sergeant of the Police department became aware of an order of protection in favor of Candie Hinton and her daughter, protecting them from defendant and, among other things, prohibiting defendant from calling them on the phone. Aware that the defendant was in violation of the terms of the protection order because of the Hintons’ complaints of phone harassment, the sergeant was preparing to seek a warrant for defendant’s arrest. The sergeant was also aware that he was authorized to make a warrantless arrest if he became aware of a specific instance of a violation of the protection order. Before the sergeant was able to obtain an arrest warrant, the Crisis Intervention Office contacted him and told him that Candie Hinton and her daughter were at the Office, that defendant had been calling the daughter’s cell phone, and that defendant had twice driven by the Office. When the sergeant observed defendant driving by for a third time, he stopped him and arrested him on the basis of violation of the protection order. During the search of defendant’s car for evidence relating to violation of the protection order, the sergeant uncovered evidence of drug crimes, but no evidence of defendant’s violation of the protection order. The Supreme Court of Wyoming sustained the conviction and ruled the evidence of drug crimes as admissible under these circumstances because the officer was aware that defendant was the subject of an order of protection and that he had violated that order several times immediately prior to his search and arrest. Consequently, the officer was justified in searching for evidence which might serve to sustain defendant’s prosecution for violation of the protection order and/or that he might have been an imminent and serious danger to his victims, given his prior behavior.


Scuncio Chevrolet, Inc. v. Salandra Rhode Island Superior Court (1988)

Employment discrimination, Gender discrimination

Plaintiff worked for the defendant and sold cars. Following termination of her employment, she filed a complaint with the Humans Rights Commission. The Commission found she was entitled to back pay, fringe benefits, interest, and that the defendant was to cease and desist its unlawful employment practices. In response to defendant’s appeal, the court found that the plaintiff’s testimony that she was never confronted for unsatisfactory work performance, and she neither received formal evaluations, nor written or oral warnings was credible. Notwithstanding her positive performance, the plaintiff was terminated. The defendant argued that she was “laid-off,” and that the Commission failed to take into account that the defendant did not hire a male replacement for the plaintiff’s position. However, the defendant did hire a male employee a day before it fired the plaintiff. The court found that the Commission was entitled to reject the defendant’s testimony and find that it was clear that the plaintiff was replaced by a male employee. Thus, the Commission’s finding of liability was affirmed.



State ex rel. Juvenile Dep't. v. Gohranson (In re Gohranson) Oregon Court of Appeals (1996)

Domestic and intimate partner violence, Sexual violence and rape

Here, appellants, the State and the children, sought review of a judgment from the circuit court, which found in favor of respondents, a mother and father, in the State’s action to terminate their parental rights. The Court of Appeals of Oregon reversed and remanded with instructions to enter judgment terminating the parental rights of father and mother. With reference to ORS 419B.504, the Court of Appeals of Oregon terminated the father’s parental rights with regard to his own daughter, because he was convicted for sexually abusing the mother’s daughter from previous marriage and had sexually abused his own daughter. In addition, integration of the children into his home was unlikely in the foreseeable future. In keeping with ORS 419B.504, the Court of Appeals of Oregon terminated the mother’s parental rights, because the children were subjected to severe sexual abuse while in her care, but she had neither recognized the signs of sexual abuse nor protected them. Furthermore, the evidence also demonstrated that mother would not be able to adjust her behavior to protect the children in the future, most importantly because she continuously denied the possibility that father subjected the children to sexual abuse.



Ocana v. Am. Furniture Co. New Mexico Supreme Court (2004)

Sexual harassment

Ocana worked for the Santa Fe store of the American Furniture Co. (“AFC”) from July, 1997 to November 1998.On January 10, 2000, Ocana, acting pro se, filed a complaint in a trial court, charging AFC with, among other things, sexual harassment in violation of the NMHRA.In particular, Ocana claimed that the store manager touched himself in suggestive ways, stared at her breasts, and parked next to her even when he had a different, dedicated parking spot.AFC moved for summary judgment. The trial court granted summary judgment in favor of AFC, reasoning that “there was no evidence corroborating Ocana’s claims of sexual harassment; there were no witnesses and no evidence that she complained about the harassment until after she was fired; and she had been disciplined for as many as 14 major mistakes.”Ocana appealed.The Supreme Court of New Mexico reversed, holding that genuine issues of material fact precluded summary judgment on employee’s sexual harassment claims under the New Mexico Human Rights Act (“NMHRA”).



Boykin v. State Wyoming Supreme Court (2005)

Domestic and intimate partner violence

Defendant appealed a judgment of the District Court, convicting him of one count of assault and battery on a household member. Defendant argued, among other things, that the trial court abused its discretion in allowing the testimony of a convenience store clerk concerning statements the victim made to the clerk under the excited utterance exception to the hearsay rule. Defendant had gone to a bar with his friends and returned around 2:00 a.m. to the residence he shared with his girlfriend and their children, and entered into an argument with his girlfriend, at which time she slapped him and he hit her in the nose. The girlfriend took the children and left the house, driving to a nearby convenience store, where the convenience clerk called the police. At trial, the girlfriend testified that she did not remember whether or not she talked to the clerk about what happened. The clerk, however, testified that she told him that defendant hit her. The Supreme Court of Wyoming affirmed the judgment of the District Court, noting that the excited utterance exception applied to the circumstances and that the girlfriend’s statement to the sales clerk was spontaneous and not the result of reflection, deliberation, or fabrication. In affirming, the court specified five factors the trial court should consider in determining whether the excited utterance exception applies: 1) the nature of the startling event; 2) the declarant’s physical manifestation of excitement; 3) the declarant’s age; 4) the lapse of time between the event and the hearsay statement: and 5) whether the statement was made in response to an inquiry.



State v. Bruneau Rhode Island Supreme Court (2003)

Domestic and intimate partner violence

Defendant appealed a conviction of violating a no-contact order, resulting in imprisonment for thirty months. The defendant’s ex-wife had obtained a protective order, which the defendant violated. Specifically, the defendant called his ex-wife to arrange to visit their daughter. Suspecting that he was drunk, she asked that he call the next day, but the defendant arrived ten to fifteen minutes later and was let into the house from the ex-wife’s roommate’s daughter. The ex-wife did not see the defendant in the house but heard his voice, and called the police. The defendant contested his conviction on the basis that his violation took place after the temporary restraining order expired. However, because a permanent order was in place at that time, directed towards the same conduct as the temporary order, this argument could not stand. The defendant then argued that he did not have actual notice of the order because it was mailed to him and was not personally served. The court rejected this argument also and found that service by mail was proper. The court affirmed the conviction.



Roberts v. Dudley Washington Supreme Court (2000)

Employment discrimination, Gender discrimination

Appellant-employer filed an appeal from a decision of the Court of Appeals, which reversed a ruling entered in the Superior Court, granting appellant’s motion for partial summary judgment and dismissing appellee-employee’s wrongful discharge claim. The Supreme Court of Washington affirmed the appellate court’s decision, holding that appellee properly stated a cause of action for the tort of wrongful discharge based on the clearly articulated public policy against sex discrimination in employment. When appellee was on unpaid maternity leave, appellant discharged appellee, claiming that the position was no longer available due to a business slowdown. Appellant re-advertized the position one year later, but when appellee applied she was refused reemployment. Appellee claims the reason given for her discharge (i.e., economic slowdown) was pretextual, whereas the real reason for her discharge was that she was pregnant. Appellee filed a claim for common law wrongful discharge in violation of the public policy against sex discrimination. Although an indefinite employment contract is generally terminable at will, an exception to the at-will rule exists in the form of a common law cause of action in tort for wrongful discharge of an employee where the discharge contravenes a clear mandate of public policy. In this case, public policy against gender discrimination is grounded in the constitution, statute, and prior court decisions. Therefore, the Supreme Court of Washington affirmed the judgment of the Court of Appeals, as appellee properly stated a cause of action for the tort of wrongful discharge based on the clearly articulated public policy against sex discrimination in employment.



Sabella v. Manor Care, Inc. New Mexico Supreme Court (1996)

Sexual harassment

Sabella worked for Manor Care, Inc. (“Manor”) from 1989 to 1990. Sabella claimed that her supervisor sexually harassed her and retaliated against her rejections by assigning her to less desirable jobs. On February 8, 1990, Sabella filed a grievance with the Equal Employment Opportunity Commission (the “EEOC”), but not with the New Mexico Human Rights Division (the “NMHRD”). While the investigation was pending, Sabella filed a claim for workers’ compensation benefits, claimed injuries such as bruised breast and emotional trauma due to sexual assaults. Sabella and Manor eventually settled the workers’ compensation claim. She signed an agreement that discharged Manor all current and future liabilities under the Workers’ Compensation Act. On August 24, 1993, Sabella received an order of non-determination from the NMHRD. Sabella appealed the order to the trial court. Manor filed a motion to dismiss, claiming that Sabella had not exhausted her administrative remedies as required by the NMHRA. Id. at 902-03. Manor specifically pointed out that Sabella had not filed her grievance with the NMHRD. Id. The trial court granted Manor’s motion to dismiss. Sabella appealed.



R.S. v. Dept. of Family Servs. (In re KLS) Wyoming Supreme Court (2004)

Domestic and intimate partner violence

Appellant-father appealed the judgment of the District Court that terminated his parental rights. The Supreme Court of Wyoming affirmed, as the record contained clear and convincing evidence of abuse and neglect over the child’s lifetime, including evidence that the father caused the child to witness repeated episodes of domestic violence. Termination of parental rights pursuant to Wyo. Stat. Ann. § 14-2-309(a)(iii) requires the establishment of three elements: (1) abusive treatment or neglect by the parent; (2) unsuccessful efforts to rehabilitate the family; and (3) the child’s health and safety would be seriously jeopardized by remaining with or returning to the parent. Abuse and neglect are defined in Wyo. Stat. Ann. § 14-3-202(a)(ii): (ii) “Abuse” means inflicting or causing physical or mental injury, harm or imminent danger to the physical or mental health or welfare of a child other than by accidental means, including abandonment, unless the abandonment is a relinquishment substantially in accordance with W.S. 14-11-101 through 14-11-109, excessive or unreasonable corporal punishment, malnutrition or substantial risk thereof by reason of intentional or unintentional neglect, and the commission or allowing the commission of a sexual offense against a child as defined by law. The Court concluded that the father had subjected the child to abusive treatment and neglect by causing the child to repeatedly witness domestic violence between him and the child’s mother.



Allen v. Dep't. of Employment and Training Vermont Supreme Court (1992)

Gender discrimination, Sexual harassment

Plaintiff was denied unemployment benefits by the Employment Security Board because prior to quitting her job, she did not notify her business manager that she was being sexually harassed by her supervisor. The plaintiff appealed. Plaintiff worked as a secretary for housekeeping and maintenance.  For several months during her employment, the plaintiff’s supervisor made repeated sexual advances towards her by grabbing her, kissing her, and apologizing thereafter.  Plaintiff complained once, but otherwise never complained to anyone other than her supervisor, and eventually quit her job out of fear of further unwanted sexual advances.  She testified that she had never received a personnel policy, never knew of the existence of such a policy, and believed that she was to complain to her immediate supervisor.  Notwithstanding, the Board found the plaintiff did not show that she had “good cause” to quit her job, since her business manager had no knowledge of the harassment.  Under 21 V.S.A. § 1344(a)(2)(A), a party may not receive unemployment benefits where she quits voluntarily unless she shows she quit with “good cause.”  On appeal, the court found that if there were a personnel policy in effect, there was no evidence that it was ever made known or available to the defendant’s employees.  The court found that the plaintiff could not adhere to a policy (to notify a manager) that is not “sufficiently disseminated by the employer to employees.”  Thus, the court reversed the Board’s conclusion and remanded the matter.



Mackay v. Acorn Custom Cabinetry Washington Supreme Court (1995)

Employment discrimination, Gender discrimination

Plaintiff-ex-employee challenged the jury instruction given by the Superior Court, which directed the jury to find in plaintiff’s favor in a discrimination case brought pursuant to Wash. Rev. Code § 49.60.180(2), only if it concluded, inter alia, that gender was the determining factor in the decision by defendant ex-employer to discharge plaintiff. RCW 49.60.180(2) provides that “[i]t is an unfair practice for any employer . . . (2) [t]o discharge or bar any person from employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained guide dog or service dog by a disabled person.” The Supreme Court of Washington declined to read the “because of” language of the statute, as requiring proof that one of the attributes enumerated in RCW 49.60.180(2) was a “determining factor” in the employer’s adverse employment decision. Rather, the Supreme Court reversed the lower court’s decision, holding that in order to prevail on a discrimination claim brought pursuant to RCW 49.60.180(2), plaintiff only needed to prove that her gender was a “substantial factor” in defendant’s decision to terminate her employment.



State v. Gonzales New Mexico Court of Appeals (1997)

Domestic and intimate partner violence

On July 15, 1994, a domestic violence protective order involving Gonzales and Wife was entered. The order contained a “stay away” provision, one that prohibited Gonzales from visiting Wife’s workplace. Five days later, on July 15, 1994, Gonzales was arrested for being at Wife’s workplace. The trial court found that Gonzales had violated the protective order in contempt and sentenced him to jail. Five days later, on July 25, 1994, Gonzales was again charged, this time for criminal false imprisonment, battery, stalking, and harassment. The July 25 charges were based on the same encounter as the July 20 conviction. Gonzales filed a motion to dismiss on the charges of stalking and harassment. He argued that the July 20 conviction for contempt should preclude a successive prosecution on stalking and harassment. Following this “double jeopardy” theory, the trial court dismissed the sexual harassment and stalking claims. The state appealed.



Bevan v. Fix Wyoming Supreme Court (2002)

Domestic and intimate partner violence

Appellants, two minor children, appealed the District Court’s grant of summary judgment for intentional infliction of emotional distress. The Supreme Court of Wyoming reversed, holding that genuine issues of material fact precluded the grant of summary judgment on the claims for intentional infliction of emotional distress. The claim for intentional infliction of emotional distress stemmed from a domestic violence incident, which involved appellee beating, kicking, punching, dragging by the hair and choking the mother of two children while screaming that he wanted to kill her. Although the Supreme Court of Wyoming agreed with the District Court that not every domestic violence altercation constitutes an extreme and outrageous conduct or results in sufficiently severe emotional impact to support a third party claim for intentional infliction of emotional distress, it also noted that appellee’s alleged conduct in this case amounted to conduct beyond mere insults, indignities and petty oppressions. If proved, it could be construed as outrageous, atrocious and utterly intolerable in a civilized community. Therefore, the grant of summary judgment was improper, as the jury should have been able to determine whether appellee’s conduct was sufficiently extreme and outrageous to result in liability.



In re Grievance of Butler Vermont Supreme Court (1997)

Gender discrimination, Sexual harassment

Plaintiff worked for the defendant as a police officer. During training where plaintiff was one of three women amongst twenty-four participants, plaintiff started to feel that she could never raise complaints because of her gender as a result of comments such as how the male troopers had better “watch out” or she would charge them with sexual harassment, or about another female trooper whose sex discrimination complaint had been dismissed by the Board. Plaintiff also received lewd and sexually inappropriate comments from a male officer in training who also attacked her in a kick-boxing fashion, and ridiculed her when she protested. After completing training, plaintiff was the only female full-time officer in her department and continued to experience more harassment, including exposure to openly-displayed pictures of semi-nude women, an officer telling his girlfriend that plaintiff was his sex slave, personnel and supervisors frequently discussing plaintiff’s marital difficulties, and interfering with her personal relationship with a former police officer. During the plaintiff’s first evaluation, she received a good score for her work performance but her overall score was lowered due to comments from others. Further, when it was a male colleague’s birthday, he demanded the plaintiff kiss him and when she refused, he made fun of her appearance. When plaintiff’s supervisor did not respond to her complaints regarding these incidents, she met with the Commissioner, setting forth her sexual harassment claims. She was offered an unfeasible transfer far from her home and children as the only alternative. When the plaintiff failed to report to the transfer location, she was terminated. Plaintiff subsequently filed claims for sexual harassment and hostile work environment with the Board. The Board found there was discrimination and ordered her reinstatement and reimbursement of back pay. In response to the state’s appeal, the court agreed with the Board and found that the plaintiff’s work environment, characterized by her colleagues’ and supervisor’s attitudes towards her as a woman, established that she was judged more harshly than her male colleagues. The court found the evidence supported the Board’s conclusion that there existed a hostile work environment and that the plaintiff was sexually harassed.



Danny v. Laidlaw Transit Servs., Inc. Washington Supreme Court (2008)

Domestic and intimate partner violence, Employment discrimination

While she was working at Laidlaw, plaintiff and her five children experienced ongoing domestic violence at the hands of her husband. Plaintiff requested time off to remove herself and her children from the abusive situation, was refused, and was subsequently given paid time off for 15 days, in which she availed of police, legal, and advocacy assistance. Shortly after returning to work, defendant first demoted plaintiff and subsequently terminated plaintiff’s employment stating as a reason falsification of payroll records. Plaintiff filed her complaint against defendant, alleging that Laidlaw terminated her employment in violation of public policy and Washington's Law Against Discrimination, RCW 49.60. Absent a contract to the contrary, Washington employees are generally terminable “at will,” with a narrow exception for the common law tort of wrongful discharge, which applies when an employer terminates an employee for reasons that contravene a clearly mandated public policy. As one element of this tort, the plaintiff needed to establish “the existence of a clear public policy (the clarity element).” The Supreme Court of Washington reformulated the certified question from the District Court as follows: Has Washington established a clear mandate of public policy of protecting domestic violence survivors and their families and holding their abusers accountable? The Supreme Court of Washington answered the question in the affirmative, holding that plaintiff had satisfied the “clarity” element of wrongful discharge in violation of public policy, because Washington unequivocally established, through legislative, judicial, constitutional, and executive expressions, a clear mandate of public policy of protecting domestic violence survivor and their families and holding abusers accountable. On remand, the Supreme Court of Washington instructed the District Court to determine whether employee satisfied the jeopardy element of the tort by showing that the time she took off from work was the only available adequate means to prevent domestic violence against herself or her children by evaluating the nature of the danger, the particular actions she undertook, and the details of her work schedule.



State v. McGee New Mexico Court of Appeals (2004)

Domestic and intimate partner violence

A protective order prohibiting domestic violence involving McGee and Wife was filed on July 1, 1999, under the Family Violence Protection Act (“FVPA”). The order prohibited McGee from writing to, talking to, visiting, or contacting Wife. On February 16, 2000, McGee made several phone calls to Wife from the Otero County Detention Center. Based on these facts, the trial court convicted McGee for four counts of violation of the protective order and gave McGee six consecutive sentences. McGee appealed, arguing that the evidence was insufficient to support his conviction and the “double jeopardy” theory barred the six consecutive sentences.


Cobb v. Cobb Wyoming Supreme Court (2000)

Domestic and intimate partner violence

Appellant-mother challenged the order of the District Court, awarding child custody to appellee-father and giving her the same visitation rights that appellee had when appellant had custody. The Supreme Court of Wyoming affirmed the order because domestic violence suffered by appellant at the hands of a boyfriend in front of the children was a change in circumstances that warranted a change in custody to protect the parties’ children. Wyo. Stat. Ann. § 20-2-113(a) provides that “the court shall consider evidence of spousal abuse or child abuse as being contrary to the best interest of the child.” Although the abuse of mother was not technically “spousal” abuse because they were not married, the Supreme Court of Wyoming agreed with the District Court that the statute applied to non-marital domestic relationships. Therefore, domestic violence experienced by the mother warranted a change in custody to protect the children from potential abuse and was in their best interest.



Raynes v. Rogers Vermont Supreme Court (2008)

Domestic and intimate partner violence

Here, the parties lived together for approximately six years. Following a separation, plaintiff moved out, and the parties disputed personal property ownership. On one occasion, the plaintiff went to the defendant’s house for dinner and the parties got into an argument. The plaintiff picked up the defendant’s small dog and took it with her to leave. This led to the defendant kicking the plaintiff’s car door and using physical force against the plaintiff in an attempt to recover the dog. The plaintiff obtained a temporary abuse order. At the hearing for that order to be made permanent, the defendant chased the plaintiff, grabbed her, kicked the door of her car, and hit her in the face. The defendant also began to call the plaintiff and monitor her. The family court found this warranted the plaintiff to be in fear of further harm. The defendant argued that he was justified in using force to protect his dog, as it was his personal property. The court rejected this argument and found that the common-law defense of property is irrelevant in the determination of whether a victim needs protection from abuse.



Gourley v. Gourley Washington Supreme Court (2006)

Domestic and intimate partner violence, Sexual violence and rape

One of the parties’ children accused petitioner of sexual assault, including improper touching of her breasts and vaginal area on multiple occasions. During an interview with Child Protective Services (CPS), the child denied any improper touching, but subsequently stated that petitioner had cautioned her against disclosing any information about the improper touching. Additionally, in a written declaration, petitioner had admitted to rubbing aloe vera on the naked body of the child. As a result, respondent sought and received a domestic violence protection order against petitioner under Wash. Rev. Code 26.50 , prohibiting contact between petitioner and respondent and their three children. Petitioner appealed, arguing that, in granting the petition for protection order, the commissioner improperly considered hearsay evidence and violated his due process rights when he refused to allow cross-examination of the child, who made the accusation. The Supreme Court of Washington held that the rules of evidence need not be applied in ex parte protection order proceedings and, therefore, the commissioner did not err when he considered hearsay evidence in issuing the protection order. Furthermore, denial to allow cross-examination of the child did not violate petitioner’s due process rights, because nothing in the statutory scheme explicitly requires allowing respondent in a domestic violence protection order proceeding to cross-examine a minor who accused him of sexual abuse.



In re Schwartz New Mexico Supreme Court (2011)

Sexual harassment

This is a proceeding for the disciplining of Schwartz, a trial court judge. Judge Robert Schwartz initiated a romantic relationship with an assistant public defender with cases before him. The assistant public defender informed her supervisor of Judge Schwartz’s planned recusal via a voice message. In the following days, Judge Schwartz provided dishonest reasons for his recusal from some cases involving the assistant public defender, and entered rulings in some other cases involving the assistant public defender.



Trumbull v. State Wyoming Supreme Court (2009)

Sexual violence and rape, Statutory rape or defilement

Defendant appealed a judgment of the District Court that convicted him of two counts of third-degree sexual assault under Wyo. Stat. Ann. § 6-2-304(a)(ii) (2005) for sexual improprieties involving his 10-year-old daughter, arguing that the evidence was insufficient to support his convictions and that the district court erred in imposing sentence. The Supreme Court of Wyoming affirmed defendant’s conviction, but reversed and remanded the case to the District Court for further proceedings on other grounds. The Supreme Court of Wyoming held that, where a statute criminalizing sexual contact contains an element of sexual gratification, it is not enough to establish that the defendant merely touched the sexual or intimate parts of an individual. The law at issue requires the presence of intent of sexual arousal, gratification, or abuse. However, an oral expression of intent is not required to establish a defendant’s intent, but may be established through defendant’s conduct and circumstances of physical contact. Intent of sexual gratification may be inferred from touching the complainant on more than one occasion, and committing the act after no adults were remaining in the house. In this case, defendant’s intent could be inferred from his “massaging” the clothed victim on two occasions, during which he touched her on her “legs, arms, boobs, privates, butt, and girl spot.”



Motsinger v. Lithia Rose-Ft, Inc. Oregon Court of Appeals (2007)

Employment discrimination, Gender discrimination, Sexual harassment

Plaintiff, who was employed for fourteen months by defendant as a part-time receptionist, alleged that she was subjected to repeated acts of sexual harassment by several male employees. Plaintiff also alleged that her employment was terminated in part as retaliation for reporting this sexual harassment to management. Plaintiff brought a wrongful termination action against the employer, alleging claims of sexual harassment under Or. Rev. Stat. § 659A.030(1)(a), retaliation under Or. Rev. Stat. § 659A.030(1)(f), wrongful discharge, battery, and intentional infliction of emotional distress. The trial court denied defendant's petition to abate the proceeding pending arbitration, ruling that the arbitration clause contained in plaintiff's employment contract with defendant was unenforceable because it constituted an unconscionable contract of adhesion. The appellate court found that the employee did not show that the contract formation carried indicia of procedural and substantive unconscionability other than an unequal bargaining power. Consequently, the Court of Appeals of Oregon reversed and remanded the case.



State v. Schultz Washington Supreme Court (2002)

Domestic and intimate partner violence

Defendant was charged with assault stemming from a domestic violence incident. At his arraignment, the court entered a no-contact order, forbidding defendant to have any contact with his victim for a period of one year. Defendant was found guilty of the assault. He resumed cohabitation with the victim, although both were aware that the no-contact order remained in effect. Two months later, the police department received a hang-up 911 call from the apartment shared by defendant and the victim. The state charged defendant with violation of domestic violence no-contact order (pre-conviction). Defendant contended that the no-contact order had expired upon Schultz's conviction. The Supreme Court of Washington held that a no-contact order entered at arraignment under RCW 10.99.040(3) does not expire upon a finding of guilt in a domestic violence prosecution but remains in effect until the defendant's sentencing. As a sentencing condition, pursuant to RCW 10.99.050(1), the trial court may issue a new no-contact order, or it may extend the existing order by clearly indicating on the judgment and sentence that the order is to remain in effect. Here, the no-contact order entered under RCW 10.99.040(3) at defendant’s arraignment was permissibly extended as a sentencing condition and thus remained in effect until its stated expiration date.



Allegheny County v. Wilcox Pennsylvania Commonwealth Court (1983)

Gender discrimination

The defendant-appellant, the Court of Common Pleas, appealed a ruling by the Pennsylvania Human Relations Commission (“PHRC”).  The PHRC had ruled that the defendant discriminated against female secretaries with respect to compensation and directed them to upgrade the secretaries’ wages and to pay them back pay.  The defendant argued that the PHRC could not require it to increase the wages and also that it was not considered an “employer” under 43 P.S. § 954(b).  The defendant argued that the definition of employers does not include a reference to courts and that any application of the Pennsylvania Human Relations Act violates the doctrine of separation of powers by allowing the executive and legislative branches to interfere upon the judicial branch. The court found that the defendant failed to show how its authority was encumbered by the Human Relations Act.  The court also found that compelling the upgrade or equalization of pay was proper where, inversely, a court could compel a legislative body to spend money that is reasonably necessary for the body’s proper operation and administration.  Thus, the court affirmed the PHRC’s finding and ruled that the PHRC could require the defendant to increase the female secretaries’ wages and order back pay.



CDB v. DJE Wyoming Supreme Court (2005)

Sexual violence and rape, Statutory rape or defilement

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



Ettner v. City of Medford Oregon Court of Appeals (2001)

Employment discrimination, Gender discrimination

Although plaintiff had satisfactorily completed her firefighter-training year and had been highly recommended for advancement, she was found to have allegedly failed five final task tests and her employment was terminated shortly thereafter. Plaintiff filed an action against defendant City of Medford for unlawful employment practice alleging she was unlawfully discharged as a firefighter on the bases of gender and of perceived impairment in violation of ORS 659.030 which provides, in pertinent part, “(1) It is an unlawful employment practice: (a) For an employer, because of an individual's . . . sex, . . . to . . . discharge from employment such individual. However, discrimination is not an unlawful employment practice if such discrimination results from a bona fide occupational requirement reasonably necessary to the normal operation of the employer's business.” Plaintiff was required to prove only that she was treated less favorably than male candidates because of sex, which is sufficient to establish a discriminatory motive. The Circuit Court found for the employee on the gender discrimination claim, and the appellate court affirmed. Here, the grading was unfair to plaintiff because it was highly subjective and allowed for too much internal bias. Furthermore, because two of the evaluators were officers who had previously expressed reservations regarding a gender-integrated department on behalf of other firefighters, it was a permissible inference that those evaluators attempted to give effect to the line firefighters' animus by giving plaintiff lower scores than she deserved. These testing problems existed within a context, revealing a general animosity toward female firefighters as firemen had told plaintiff that they were having problems with their wives over the hiring of a woman and had expressed concerns about plaintiff’s ability to ably assist the other firefighters during a fire despite plaintiff’s proven physical ability. Finally, plaintiff's success as a firefighter before and after her experience in Medford provided circumstantial evidence of discriminatory treatment. Thus, the appellate court affirmed the judgment, concluding that plaintiff satisfied her burden in proving that gender was a substantial and impermissible factor in the city's decision to discharge her.



Matter of J.W.D. New Jersey Supreme Court (1997)

Domestic and intimate partner violence

Defendant appealed the trial court’s determination that he could not have the return of his firearms after a second domestic violence complaint. Upon appeal the appellate division reversed. The State appealed, and the Supreme Court of New Jersey found that the defendant was not entitled to the return of his firearms if the court were to find he posed a threat to public health, safety or welfare under the Prevention of Domestic Violence Act. Before the plaintiff and the defendant divorced, the plaintiff filed two domestic violence complaints. During the first complaint, the police confiscated the defendant’s guns and firearms purchaser identification card. The defendant ultimately obtained his firearms back. Subsequently, as the parties’ divorce action was pending, the second complaint arose when the plaintiff went to pick up their son from the defendant’s house. The police once again confiscated the defendant’s weapons. In addition to these confrontations, the defendant had affixed post-it notes to the windows stating, “danger, enter at your own risk,” and set up devices that appeared like booby traps. Further, during the parties’ marriage, the defendant would play music, strap on a holster and walk around the house with his gun. The plaintiff never knew if the gun was loaded on these occasions. The court found this established enough evidence to warrant denial of returning the firearms, as the defendant posed a threat to public safety and health under the Prevention to Domestic Violence Act.



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

Sexual violence and rape, Statutory rape or defilement

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



Yankoskie v. Lenker Pennsylvania Superior Court (1987)

Domestic and intimate partner violence

Plaintiff sought a protective order from her ex-boyfriend. The two had lived together but the plaintiff subsequently moved out to her own apartment with their three children. Plaintiff filed a petition for a protection order after her ex-boyfriend entered her apartment with her permission, became so drunk that he attempted to assault her, broke their infant son’s leg, and shoved his other son’s face against a door. The Court of Common Pleas denied plaintiff’s petition. On appeal, the Supreme Court of Pennsylvania found that the plaintiff adequately demonstrated that her ex-boyfriend attempted to physically harm her and did cause her sons bodily injury. Further, even though the parties did not live together, the defendant had legal access to the plaintiff’s apartment; permissive entry is a form of legal access. The court thus found that it could issue a protective order in this situation and it reversed the court’s ruling.



A.L.P. Inc. v. Bureau of Labor & Indus. Oregon Court of Appeals (1999)

Gender discrimination, Sexual harassment

Here, petitioner, a male employer, sought review of a final order of the Commissioner of the Bureau of Labor and Industries, which found petitioner had created an intimidating, hostile and offensive working environment based on respondent’s gender, in violation of Or. Rev. Stat. § 659.030(1), which provides, “(1) [i]t is an unlawful employment practice: (B) [f]or an employer, because of an individual's . . .  sex . . . to discriminate against such individual in compensation or in terms, conditions or privileges of employment.”  The statute does not require that the unlawful employment practice be “sexual” in nature to be actionable.  It requires only that the practice have occurred “because of” the employee’s sex.  Furthermore, no independent corroboration of a complaining witness is required to establish an unlawful employment practice claim. Petitioner, the owner of a store selling adult toys and gifts, only referred to his employee, respondent Theresa Getman, using derogatory terms.  Petitioner also frequently passed derogatory comments on the appearance of female customers and directed a number of sexually inappropriate remarks towards Getman.  Additionally, petitioner frequently threatened Getman that he was going to “bitch slap” her and on several occasions slapped Getman on the top of her head and across her face.  Throughout the duration of the employment, Getman was physically ill. She had a stomach ache and found herself unable to sleep because of the stress.  The appellate court affirmed the finding that respondent was the victim of gender discrimination in her employment, as there was substantial evidence to support the finding that all of petitioner’s offensive conduct had occurred because respondent was a woman.



In re Civil Commitment of W.X.C. New Jersey Supreme Court (2010)

Sexual violence and rape

Defendant burglarized two homes several times and raped two women, one at knifepoint and one with the threat of a gun, living in them. The defendant also walked into a nursing home, dragged a female resident into a bedroom and demanded that she perform oral sex on him. The defendant subsequently entered a plea agreement involving twenty-four years in prison with a twelve-year period of parole ineligibility. During the defendant’s sentence, the New Jersey legislature enacted the Sexually Violent Predator Act (N.J.S.A. 30:4-27.26). Towards the end of the defendant’s sentence, the State filed a petition to have him civilly committed. The defendant challenged the petition and argued that he was not provided with sex offender treatment while incarcerated, and thus, commitment would violate his due process rights. Id. at 185-86. The civil commitment court rejected this challenge and found that the Sexual Violent Predator Act is not unconstitutional on its face as applied to an individual who did not receive treatment while incarcerated. The court then found the defendant was a sexually violent predator and committed him. On appeal, the defendant argued that the Act is unconstitutional because it is used as a vehicle for further punishment. The court found that the Act was not punitive and serves to deter and prevent sexual violence.



Byers v. Labor and Indus. Review Comm. Wisconsin Supreme Court (1997)

Sexual harassment

Here, the petitioner obtained a restraining order against her co-worker who had constantly harassed the petitioner and repeatedly made sexual advances towards her. The co-worker violated the restraining order and the petitioner complained to her employer to take measures to stop the harassment. Despite her complaints , the co-worker was not terminated, suspended or reprimanded for his sexual harassment. The petitioner finally filed a complaint with the Equal Rights Division of the DILHR “alleging sex discrimination by the employer for allowing the co-[worker] to sexually harass her at work in violation of WFEA.” The DILHR held that it did not have jurisdiction to hear her case because the Worker’s Compensation Act (WCA) provided her sole remedy for her work-related injury. The WCA exclusive remedy provision “mandates that when the conditions for an employer’s liability under the WCA exists, the employee’s right to recover compensation under the WCA shall be the employee’s exclusive remedy against an employer.” Since the petitioner had previously raised a complaint under the WCA for her employer’s failure to take action to remedy the sexual harassment and that complaint had been dismissed, the petitioner no longer had any remedies available.


Commonwealth v. Conklin Pennsylvania Supreme Court (2006)

Sexual violence and rape

Defendant was convicted of involuntary deviate sexual intercourse, aggravated indecent assault, incest, indecent assault, indecent exposure and corruption of a minor. The defendant had sexually abused his daughter from the ages of six to nine. The nature of the defendant’s crimes required a determination if he was a sexually violent predator under Megan’s Law II (42 Pa. C.S.A. § 9792). At trial, a licensed clinical social worker and Board member assessed the defendant and concluded that he met the criteria of a sexually violent predator. The defendant’s evaluator was not a psychiatrist or psychologist, but the trial court found him qualified to testify as to the defendant’s status by his experience and training. The court found that the defendant was a sexually violent predator based upon the social worker’s conclusions. On appeal, the defendant argued that he could only be found to be a sexually violent predator by a psychiatrist or psychologist. The court noted that the criteria to assess in making the determination if a person is a sexually violent predator are: whether the offense involved multiple victims; whether the individual used excessive means to achieve the offense; the nature of the sexual contact; the relationship to the victim; the age of the victim; if the offense included any unusual cruelty; the victim’s mental capacity; and any history of prior offenses. The court found that a social worker could assess these factors; it was not necessary for a defendant to be evaluated by a psychiatrist or psychologist.



State ex rel. Marshall v. Hargreaves Oregon Supreme Court (1986)

Domestic and intimate partner violence

Here, the relator-wife sought the issuance of a writ of mandamus to compel defendant circuit court judge to conduct a hearing on her petition for a restraining order and to prevent abuse, pursuant to the Oregon Abuse Prevention Act, Or. Rev. Stat. §§ 107.700-107.730. The Supreme Court of Oregon issued a peremptory writ, requiring the judge to conduct forthwith a hearing on the wife’s petition for a restraining order and to prevent abuse and to determine whether there existed an immediate and present danger of abuse to the wife. Defendant-circuit court judge had refused to issue a restraining order to the benefit of the relator-wife, because she had already obtained two earlier restraining orders based upon allegations similar to those the relator presented in the present case, but had promptly dismissed them. However, the judge did not hold a hearing on the merits as contemplated by ORS 107.718(1) to determine whether the relator was in immediate and present danger of abuse by the husband. The Supreme Court of Oregon issued a peremptory writ of mandamus, finding that defendant-circuit judge had no discretion to deny relator a hearing. The Court further ordered defendant to conduct such a hearing to determine whether there is an immediate and present danger of abuse to relator, but expressed no opinion on the merits of the petition for a restraining order.



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

Sexual violence and rape

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



Hat Six Homes, Inc. v. State Wyoming Supreme Court (2000)

Gender discrimination, Sexual harassment

Appellant-employer challenged the decision from the District Court, affirming findings of appellee, Wyoming Department of Employment, Unemployment Insurance Commission, holding, among other things, that appellee employee had quit her employment with appellant employer for good cause under Wyo. Stat. Ann. § 27-3-311(a)(i) (1997).  In this case, appellee-employee left her employment because of sexual harassment and hostile work environment. This included the president of appellant-employer touching her under her shirt and behind her knees in an unwelcome manner and continuing this behavior after appellee employee asked him to stop. Additionally, conduct of the vice-president created a tension that “could [be] cut . . . with a knife . . .” On several occasions, the vice-president threw around staplers and cellular phones and yelled at customers and other employees. The Supreme Court of Wyoming affirmed the District Court’s decision and held that this conduct on the part of appellant-employer sufficed for the determination that appellee-employee had quit her employment for good cause.


Commonwealth v. Meals Pennsylvania Supreme Court (2006)

Sexual violence and rape

Here, the defendant pleaded guilty to sexual offenses, namely that he sexually assaulted two daughters of his live-in girlfriend and threatened the younger daughter that he would harm her mother if she reported the assaults. A member of the Sexual Offenders Assessment Board assessed the defendant and found him to be a sexually violent predator under Megan’s Law II (42 Pa. C.S.A. § 9795). The court found that the defendant was a pedophile and was a sexually violent predator. The Superior Court subsequently reversed this finding, reasoning that the evidence did not support the defendant’s classification, and the state appealed. On appeal, the court found that the Superior Court improperly required the diagnosis of pedophilia to require more than proof of sexual assault on children. The court reversed this and found that proof of sexual assault on children sufficed to warrant a finding of pedophilia and the defendant was properly classified as a sexually violent predator.



Nearing v. Weaver Oregon Supreme Court (1983)

Domestic and intimate partner violence

Here, plaintiffs Henrietta Nearing and her two children appealed the order of the Court of Appeals, which affirmed a grant of summary judgment to respondents city and police officers for failure to follow the mandatory arrest provisions of Or. Rev. Stat. § 133.310(3) for violation of a domestic protective order. Plaintiff Henrietta Nearing was separated from her husband and received a restraining order against him after he was arrested and charged with assault for entering her home without permission and striking her. Plaintiff reported her husband’s subsequent multiple returns to her home, damaging the premises and the property of her friend, threats of physical violence to her friend, and attempts to remove the children. Despite these complaints, defendant officers took no action to restrain plaintiff’s husband. Two days after plaintiff’s last report, her husband telephoned her and threatened to kill her friend and subsequently assaulted the friend in front of plaintiff’s home. The Supreme Court of Oregon reversed the summary judgment and held that plaintiff’s complaint alleged facts that, if proved, obliged the St. Helen’s police officers to respond to plaintiff’s call for protection against the exact kind of harassment proscribed by the statute. The duty was not an ordinary common law duty of due care, but a specific duty imposed by statute for the benefit of individuals previously identified by a judicial order. The court ruled that plaintiffs could recover for either psychic and emotional injuries, or physical injuries that were caused by the police officers’ failure to comply with a mandatory arrest statute.



Krystyna W. v. Janusz W. Connecticut Court of Appeals (2011)

Domestic and intimate partner violence

Court of Appeal affirmed the trial court’s grant of a domestic violence restraining order requested by plaintiff against her husband. In this case, the defendant had threatened to seek revenge on his children because they had hospitalized him. Defendant walked around the house with knives, verbally abused the children, and prevented the family from sleeping by making loud noises. While intoxicated, defendant had also previously asked his son to kill him with a hammer and knife. The court noted that Connecticut’s Gen. Stat. § 46b-15 “clearly requires a continuous threat of present physical pain or physical injury before a court can grant a domestic violence restraining order.” The court found that the above facts presented enough of a continuous threat of present physical pain or injury so that the trial court’s ruling was not an abuse of discretion, and affirmed the grant of a restraining order.



Haddad v. Wal-Mart Stores, Inc. Supreme Judicial Court of Massachusetts (2009)

Employment discrimination, Gender discrimination

Here, the plaintiff worked as a staff pharmacist for the defendant for ten years.   At a subsequent point, she became temporary pharmacy manager.  Until the plaintiff was terminated thirteen months later, she was paid at a lower rate as a pharmacy manager than her male counterparts.  She was told by the defendant that she would receive the difference in pay but never did.  She complained numerous times and finally received a check for the pharmacy manager bonus that others received, but never received the thirteen months’ worth of additional pay.  Prior to her termination, the plaintiff was questioned about two prescriptions that were fraudulently written—one while she was on duty and the other was written while a male pharmacist was on duty.  The pharmacy technician immediately admitted that she falsified the prescription from when the plaintiff was on duty.  The plaintiff denied knowledge of the fraud, but she was terminated based on her failure to secure the pharmacy.  The pharmacy technician was also terminated. The male pharmacist however was not fired or disciplined for failing to secure the pharmacy area.  At the time of the plaintiff’s termination, twenty of the twenty-one managers above the pharmacy manager level were male and all pharmacy technicians were female.  The court found that the evidence was sufficient to show that the defendant discriminated against the plaintiff in terminating her.  The court reasoned that a reasonable jury could have disbelieved the defendant’s reason for terminating the plaintiff; that the plaintiff’s base wage was lower than her male counterparts, and that there was discrimination based upon the fact that the male pharmacist on duty when another prescription was falsified was not disciplined or terminated.  The court found an award of compensatory damages was supported by the evidence, but that punitive damages amounting to $1 million were not warranted because the defendant’s conduct was not so outrageous or egregious.



Campbell v. Martin Maine Supreme Court (2002)

Domestic and intimate partner violence

Here, the plaintiff had obtained a protective order against the defendant in Kentucky because she feared that the defendant would abuse her and the parties’ daughter. Subsequently, the defendant threatened to kill the plaintiff, and the plaintiff fled to Maine, where she filed for a protective order. The district court granted a temporary protective order. Subsequently, the plaintiff filed for custody of the parties’ daughter. The district court found that it could not grant the plaintiff custody as Maine was not the daughter’s home state. On appeal, the court noted that under 19-A M.R.S.A. §§ 1731-1783, where Maine is not the child’s home state, a Maine court does not have jurisdiction unless the child’s home state declines to exercise jurisdiction. However, where a parent and child flee their home state due threats of abuse, Maine may exercise jurisdiction over the child’s interests under § 1748. The court affirmed the district court’s denial of custody though. The court found that the court properly exercised jurisdiction to issue a protective order which would not expire until a custody hearing in Kentucky. Because the child’s interests would be protected until the matter was adjudicated, there was no need to act further to protect the child by issuing a more permanent order.



Moore v. City of Leeds Alabama Court of Criminal Appeals (2008)

Domestic and intimate partner violence

Mr. Moore was convicted of third-degree domestic violence, harassment, and harassing communications based on evidence he attacked his ex-wife, Karen Kelly, while they were driving in a car.  On appeal, Mr. Moore argued that the trial court improperly admitted testimony from the treating physician as to what Ms. Kelly told him when he was treating her broken nose.  Specifically, the physician testified that Ms. Kelly told him her injuries were caused as a result of an “altercation with her husband while they were driving.”  Mr. Moore argued that this statement was not admissible because it did not concern the cause of Ms. Kelly’s injuries but was a statement of fault, which is inadmissible under Alabama Rule of Evidence 804(3). In concluding that the physician’s testimony was admissible under Rule 804(3), the appellate court cited two prior decisions applying either Alabama Rule of Evidence 804(3) or Federal Rule of Evidence 804(3), which are identical. First, the court considered Ex parte C.L.Y., 928 So.2d 1069 (Ala. 2005), wherein the Alabama Supreme Court held that statements by a child abuse victim that the abuser is a member or friend of the victim’s immediate household are reasonably pertinent to the treatment and admissible under Rule 804(3). Second, the appellate court considered United State v. Joe, 8 F.3d 1488 (10th Cir. 1993), wherein the Tenth Circuit held that that the “the identify of the abuser is reasonably pertinent to treatment in virtually every domestic sexual assault case, even those not involving children.” The Tenth Circuit found that a treating physician generally must know who the abuser was in order to render proper treatment because the physician’s treatment will necessarily differ when the abuser is a member of the victim’s household. Based on the Alabama Supreme Court’s rationale in Ex parte C.L.Y. and the Tenth Circuit’s rationale in United States v. Joe, the appellate court in Moore held that Ms. Kelly’s statements to the treating physician “concerning the cause of her injuries and the identity of the person who committed the injuries were admissible under Rule 803(4).”



In re Sawyer New Hampshire Supreme Court (2010)

Domestic and intimate partner violence

Here, the parties were married for two years when the plaintiff filed a domestic violence petition against the defendant. She stated that defendant punched her in the stomach and leg, choked her, threw her to the floor, fisted her in the face, and threated to drown her in the bathtub. The plaintiff did not specify the dates of the abuse. The trial court issued an ex parte domestic violence temporary order of protection. The defendant argued that the plaintiff’s petition was legally insufficient as it did not specify when the abuse occurred. The plaintiff testified to the alleged abuse without objection. Subsequent to this testimony, the court issued a final protective order. The court found that N.H. rev. Stat. § 173:B did not require the plaintiff to set forth the specific dates on which she suffered abuse. The court found that the plaintiff’s allegations were legally sufficient to withstand a motion to dismiss because they allowed a reasonable inference that the plaintiff was in immediate and present danger of abuse. Further, the fact that the plaintiff did not specify the dates of the abuse did not violate the defendant’s due process rights since he could not show he was actually prejudiced by this omission.



Joni S. v. Ricky S. Connecticut Court of Appeals (2010)

Domestic and intimate partner violence

Defendant appealed the trial court’s award of a restraining order. The trial court had granted the order because the plaintiff made a showing that the defendant, her ex-husband, was obsessed with her to a point where it clouded his judgment and she was afraid he would harm her. Plaintiff made this showing through evidence that after the parties were divorced, plaintiff had seen the defendant drive by her house repeatedly, she had received flowers from the defendant one day at work and later that night under the windshield wiper of her car, she was concerned that the defendant was in her driveway while they were separated, and that she was afraid because she thought the defendant went to anger management therapy and lived nearby. The parties’ daughter testified that she also believed the defendant was obsessed with the plaintiff. Under Ct. Gen. S. § 46b-15, anyone who has been subject to a continuous threat of present physical pain or physical injury by another household member or is in a dating relationship and been subjected to these threats may apply to the superior court for relief. The appellate court found the plaintiff showed sufficient evidence of a continuous threat of present physical pain or physical injury, as the defendant’s obsession with her could lead him to harm her, and affirmed the trial court’s grant of a restraining order.



Lowery v. Klemm Supreme Judicial Court of Massachusetts (2006)

Sexual harassment

Here, the plaintiff volunteered at a swap shop operated by the Town of Falmouth at its waste management facility.  The defendant was the land supervisor and gatekeeper of the facility.  The defendant often visited the shop and made sexual advances toward the plaintiff for three years, despite her requests that he leave her alone.  The town subsequently terminated the plaintiff’s volunteer services and barred her from the facility.  Id. at 572.  The plaintiff sued the defendant for sexual harassment in violation of M.G.L.A. 214 § 1C.  The court found that M.G.L.A. 214 § 1C states that “[a] person shall have the right to be free from sexual harassment, as defined in chapter 151B and 151C.”  Id. at 577.  The court then noted that the definition of sexual harassment in G. L. C. 151B and 151c does not explicitly protect volunteers from sexual harassment and instead limit conduct to academic and employment contexts.  The court thus found that there is only statutory protection against sexual harassment in employment and academic contexts and there was no such protection for volunteers.  Id.  However, persons outside of this context, including volunteers, may pursue common law claims of sexual harassment.  Id. at 580-81.



Frieler v. Carlson Mktg. Group, Inc. Minnesota Supreme Court (2008)

Sexual harassment

Here, the appellant, Judy Frieler, sued the respondent for violating § 363A.03(43) and § 363A.08(2) of the Minnesota Human Rights Act (MHRA), “based on a hostile working environment due to sexual harassment by a supervisor.” Ms. Frieler worked part-time and was interested in a full-time position in the shipping department. She expressed her interest and was referred to Ed Janiak, the supervisor of that department. Ms. Frieler alleged that Janiak had verbally abused her and on three to four occasions lured her into a locked room, pressed himself against her and made sexual advances towards her. Ms. Frieler reported the incident to her employer (respondent) but before a full investigation could take place, Janiak resigned from his position. Janiak was made aware of the allegations just a few days before his resignation, and he denied them. Ms. Frieler subsequently sued her employer under § 363A.03(43) and § 363A.08(2). The trial court and court of appeals dismissed her sexual harassment claims for failing to raise an issue of material fact as to whether the employer knew about the harassment and whether Janiak was Ms. Frieler’s supervisor for vicarious liability purposes. The Minnesota Supreme Court reversed and remanded the court of appeals’ ruling. The court held that: 1) a plaintiff does not need to prove that his or her employer knew about the harassment in order to maintain a claim under the MHRA; 2) employers are not strictly liable for sexual harassment claims; 3) “an employer is subject to vicarious liability for an actionable hostile environment created by a supervisor with immediate authority over a victimized employee;” and 4) in this case, there was a material issue of fact whether Janiak was Ms. Friedler’s supervisor at the time of the harassment.



N.C. v. P.R. Caldwell Alabama Supreme Court (2011)

Sexual violence and rape, Sexual harassment

N.C., a minor, filed a personal injury action against her physical education teacher, her school principal, and the Tallapoosa County Board of Education. N.C. alleged that, following her 7th grade physical education class, she was pulled into the boys’ locker room and raped by A.H, a 12th grade student who her teacher, Mr. Caldwell, had allegedly appointed as a teacher’s aide. N.C.’s complaint alleged that Mr. Caldwell had actual knowledge that A.H. was sexually harassing students and negligently or wantonly supervised N.C. and the other students in her class. Mr. Caldwell, the principal, and the Board filed motions for summary judgment, arguing that N.C.’s claims were barred by the doctrine of State-agent immunity. N.C. opposed entry of summary judgment only against Mr. Caldwell. The trial court found that the doctrine of immunity is strong and the Supreme Court “has been particularly reluctant to hold an educator responsible for sexual misconduct by another.” On that ground, the trial court granted summary judgment in favor of Mr. Caldwell on the basis of Stage-agent immunity. On appeal, the court considered an exception to the law of State-agent immunity, which provides that “a State agent shall not be immune from civil liability in his or her personal capacity . . . when the State acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.” N.C. argued that there was a genuine issue of material fact as to whether Mr. Caldwell acted beyond his authority: (1) when he allegedly failed to properly supervise A.H.; (2) when he allegedly allowed A.H. to act as a teacher’s aide; and (3) when he ignored and failed to report previous claims by other female students. The appellate court held that there was a genuine issue of material fact as to whether Mr. Caldwell actually appointed A.H. as a student aide, and, if he did, whether he acted beyond his authority in doing so. The court also found that there was a genuine issue of material fact as to whether Mr. Caldwell was actually aware that A.H. was sexually harassing other female students and, if he was, whether he failed to respond to the allegations. Thus, the appellate court concluded that the trial court erred in entering summary judgment for Mr. Caldwell.


Hemenway v. Hemenway New Hampshire Supreme Court (2010)

Domestic and intimate partner violence

Here, the plaintiff and the defendant were married and had four children. They all lived in Florida until the plaintiff left with their children and moved to New Hampshire. The parties subsequently divorced. Upon her arrival in New Hampshire, the plaintiff applied for a temporary restraining order against the defendant in Massachusetts, because he criminally threatened her and their children and he threatened her at her parents’ house in Massachusetts. Family court issued a protective order that prohibited the defendant from threatening or abusing his wife or children, contacting the plaintiff absent special authorization by court, coming within a distance of her home or work, or taking or damaging the plaintiff’s property. The family court also ordered the defendant to hand over his firearms. The husband appealed and argued that the court had no personal jurisdiction over him as he was a nonresident and the alleged abuse never occurred in New Hampshire. The court found that the family court could issue a protective order against the defendant as the purpose of New Hampshire’s domestic violence statute was to protect victims within that state, but that it could not require any affirmative act on the part of the defendant. Thus, the order could stand as it directed the defendant to refrain from seeing or contacting the plaintiff, but it could not direct him to relinquish his firearms.



State v. Swanson Connecticut Superior Court (2000)

Domestic and intimate partner violence

Defendant argued that it was unconstitutional for a court to issue a protective order that resulted in barring a person from his home as a result of an arrest for domestic violence. Under Gen. Stat. § 46b-38c, a court is authorized to issue a protective order to include “provisions necessary to protect the victim from threats, harassment, injury or intimidation by the defendant including but not limited to, an order enjoining the defendant from (1) imposing any restraint upon the person or liberty of the victim; (2) threatening, harassing, assaulting, molesting or sexually assaulting the victim; or (3) entering the family dwelling or the dwelling of the victim.” Here, the court had issued a protective order for the defendant’s wife. The defendant argued that the statute violated his substantive due process rights because he was precluded access to his home and property and became subject to enhanced criminal penalties and liabilities. The court found that even though the defendant had a due process interest, the statute was intended to protect victims and not, rather, punish defendants. The court noted that the state had a legitimate interest in providing this protection. Thus, the court found the statute to be constitutional and a court may bar a defendant from his home in a domestic violence situation.



Cuddyer v. Stop & Shop Supermarket Co. Supreme Judicial Court of Massachusetts (2001)

Employment discrimination, Sexual harassment

Here, the plaintiff worked for the defendant as a worker on production lines.  Since the first day she was sexually harassed by her supervisor and two foremen, as were other women workers. Although plaintiff reported some of the incidents, she did not report all because she was afraid the supervisor would make her work harder if she complained. Complaints to management were followed by periods of relief, but the sexual harassment would restart or would turn into a hostile work environment. Similar occurrences continued and the plaintiff filed the suit against the defendant for a hostile work environment. Gen. Law. C. 151B, § 5 requires a plaintiff to file a complaint with the Massachusetts Commission against Discrimination (“MCAD”) within six months of the occurrence of the discrimination to allow the MCAD an opportunity to investigate the claim and to provide the defendant with notice of potential liability. However, this requirement does not exist where the discrimination is of a continuing nature and where there is a discrete violation within the six-month period to anchor the earlier claims. Here, the plaintiff did not file a complaint with the MCAD within six months of the first occurrence. The defendant argued that the continuing violation doctrine does not apply here because the plaintiff admitted in her deposition that she considered the discrimination by other employees at the time the acts occurred. A continuing violation claim will fail if the plaintiff should have been aware that she was being discriminated against while the earlier acts which are now untimely, were taking place. Id. at 534-35. The court found though that a plaintiff may not be able to appreciate the true character of the discriminatory environment until after it has continued for some time. Further, a hostile work environment constitutes a pattern of sexual harassment, which by definition, has to take place over time. The court found the plaintiff’s claims were thus timely and not barred by the six-month requirement.



Hill v. Ford Motor Co. Missouri Supreme Court (2009)

Gender discrimination, Sexual harassment

Cynthia Hill worked under the supervision of various people including Kenny Hune. Mr. Hune often made sexual comments to Ms. Hill and asked her inappropriate personal questions. Ms. Hill told Mr. Hune that she was offended by his comments and she repeatedly rejected his sexual advances. Upon receiving a complaint about Mr. Hune from Ms. Hill and another female employee, group leader Pete Wade raised these complaints with Mr. Hune. A few months after this, Ms. Hill was assigned to Mr. Hune’s supervision, where Mr. Hune refused to work with her, branded her a hostile worker, and created problems over small or non-issues. When Ms. Hill sought to bring a complaint to Mr. Edds, the labor relations supervisor, Mr. Edds told Ms. Hill to get psychiatric help and not return to work until she had done so. Upon receiving such treatment Ms. Hill resorted to the company’s 24-hour “Hotline” to report Mr. Edds and Mr. Hune. An hour later, Mr. Edds had suspended Ms. Hill from work for three days for a minor mistake. Upon Ms. Hill’s return to work, Mr. Edds told her she had been fired. The Missouri Supreme Court held that there were genuine issues of material fact to preclude the grant of summary judgment in favor of the employer. There was enough evidence for a jury to find that Mr. Hune had created a hostile work environment through his constant sexual harassment, which would constitute gender discrimination under MHRA 213.055.


Strickland v. Prime Care of Dothan United States District Court, M.D. Alabama, Southern Division (2000)

Gender discrimination, Employment discrimination

Ms. Strickland sued her former employer, Prime Care of Dothan, on the theory Prime Care terminated her employment as a medical assistant because of her pregnancy. Prime Care filed a motion for summary judgment on the sole issue of whether Ms. Strickland had sufficient evidence to create an issue of fact on the question of pretext. In order to rebut the inference of discrimination, Prime Care was required to articulate a legitimate nondiscriminatory reason for its decision to terminate Ms. Strickland. To this end, Prime Care asserted that it based its termination decision on violation of work rules, including that Ms. Strickland was rude and/or unprofessional on several occasions, was frequently tardy, and failed to return to work after attending a doctor’s visit. Because, if true, the reasons asserted by Prime Care were nondiscriminatory, the burden shifted back to Ms. Strickland to show that the proffered reasons were really pretext for unlawful discrimination. Ms. Strickland achieved this by showing her conduct did not violate Prime Care’s established policies, and presenting circumstantial evidence that, if true, demonstrated her supervisor harbored a discriminatory animus toward unmarried pregnant women. Prime Care also argued that even if it did discriminate against unmarried, pregnant women, such discrimination did not violate Title VII because the differential treatment was not based on sex. Rather, Prime Care claimed such a policy was neutral toward women, since women were both members of the group of married pregnant women and unmarried pregnant women. The court held that Congress and the Supreme Court had expressly rejected this argument, finding that the terms “because of sex” or “on the basis of sex” include because of or on the basis of pregnancy. Thus, an employer violated the Pregnancy Discrimination Act when it premises an employment decision, in whole or in part, on the fact that one of its female employees or applicants was pregnant out of wedlock. For these reasons, the court denied Prime Care’s motion for summary judgment.


MacPherson v. Weiner New Hampshire Supreme Court (2008)

Domestic and intimate partner violence

Here, the plaintiff was issued a final protective order against the defendant. Subsequent to the issuance of this order, the plaintiff had filed a statement with the police that the defendant went to her work, called her work, and called her parents. Further, a witness observed the defendant at the plaintiff’s home, and he was seen to drive by her home on seven occasions. The defendant was convicted of violating the protective order and complied with it thereafter. Subsequently, the plaintiff requested a five-year extension to the order and the defendant requested a hearing. The trial court granted the extension and the defendant appealed. The defendant argued that the plaintiff did not have good cause to support the extension. The court considered good cause under N.H. Rev. Stat. § 633:3-a which provides that in regard to stalking, a protective order may be extended on a showing of good cause to provide for the safety and well-being of the plaintiff. The court noted that to determine good cause, it should consider the circumstances of the original stalking, the current conditions, and consider any reasonable fear by the plaintiff. The court found that the plaintiff showed good cause for an extension of the protective order; the defendant drove by the plaintiff’s house multiple times in violation of the initial protective order only fifteen months earlier and the plaintiff’s fear of the defendant was reasonable.



Miller v. State, Dep't of Public Safety Delaware Superior Court (2011)

Sexual harassment

Plaintiff alleged that her superior violated the Department of Public Safety’s sexual harassment policy to attempt to pursue a sexual relationship with her. At various times during plaintiff’s employment, her superior had allegedly engaged in sexually harassing behavior towards her. At a later date when plaintiff had received poor performance reviews, claimed that her supervisor made her believe he could save her job if internal investigations against her concerning the reviews did not go well. With this indication, the supervisor made sexual advances towards the plaintiff, who felt pressured into submitting to these advances for fear of losing her job. The court noted that Delaware courts have not yet adopted federal tests to determine a quid pro quo sexual harassment claim. However, it noted that based upon the Supreme Court’s interpretation, “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes quid pro quo sexual harassment when ‘(1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual’.” The court noted that under this test, the consequences of a rejection to such advances or requests must “be sufficiently severe as to alter the harassed employee’s compensation, terms, conditions, or privileges of employment.” The court found that the plaintiff pleaded a qui pro quo claim of sexual harassment against the defendant.



Ramsdell v. Western Mass. Bus Lines, Inc. Supreme Judicial Court of Massachusetts (1993)

Employment discrimination, Sexual harassment

Here, a female employee appealed the decision of the Commission Against Discrimination which dismissed her complaint against her employer for sexual discrimination.  The Massachusetts Supreme Court affirmed the Commission’s decision.  Under Gen .L. C. 151B, §4(1) (1990), employment discrimination on the basis of gender is prohibited.  The Massachusetts Code defines sexual harassment as “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (a) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions; (b) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.”  Gen. L. C. 151B, §1(18) (1990). 



Williams v. Williams Missouri Supreme Court (1982)

Domestic and intimate partner violence

Here, Mrs. Williams sought an order of protection against her husband, the respondent, who beat her numerous times. On one occasion, the respondent caused her serious bodily harm and Mrs. Williams was hospitalized for twelve days. Upon her petition for an order of protection from the court, the court held that although Mrs. Williams met all the requirements necessary to obtain relief under the Adult Abuse Act (§ 455.035 and § 455.045), she could not obtain relief because the Adult Abuse Act was unconstitutional because 1) the Act also afforded protection to children, which was not immediately apparent from the title of the act and therefore violated article II, section 23 of the Missouri Constitution; 2) an ex parte order violated defendants’ due process rights because it did not provide defendants with notice of process; and 3) the Act was too vague and therefore unconstitutional. The Missouri Supreme Court reversed the trial court’s decision and held that the Adult Abuse Act was constitutional. The court held that the “ex parte order provisions comply with due process requirements because they are reasonable means to achieve the state’s legitimate goal of preventing domestic violence, and afford adequate procedural safeguards, prior to and after any deprivation occurs.” Also, the Act is not vague because it “provides sufficient direction and guidance for the judges who must apply it. The protection orders are to issue only when an ‘immediate and present danger of abuse to the petitioner’ is found.”



Williams v. State Alabama Court of Criminal Appeals (1986)

Domestic and intimate partner violence, Sexual violence and rape

A jury found Mr. Williams guilty of burglary and sodomy in the first degree. On appeal, Mr. Williams argued, among other things, that Alabama’s forcible sodomy statute was unconstitutional because it excluded a married person from liability. In other words, under the statute, a married person could not be convicted of forcibly sodomizing his or her spouse in Alabama. The appellate court held that the statute, on its face, discriminates between married and unmarried persons, and thus looked to see whether there was, “as a minimum, some ground of difference that rationally explains the different treatment accorded married and unmarried persons under the statute.” The court considered several traditional rationales for the marital exception. First, the court considered the implied consent theory – i.e., when a women makes her marriage vows, she impliedly consents to sexual intercourse with her husband during the marriage. The court rejected this rationale, finding that a “married person has the same right to control his or her body as does an unmarried person.” Because “any implied consent notion would give one spouse control over the other spouse’s bodily integrity,” it was not a rationale basis for the marital exemption. Second, the court rejected the proposed justification for the marital exemption that it protected against governmental invasion into marital privacy. The court found that marital privacy was not designed as a shield to protect against violent sexual assaults. Third, the court found untenable the argument that elimination of the marital exemption for forcible sodomy would disrupt marriages because it would discourage reconciliation: “When a marriage relationship has deteriorated to the point of forcible and unwanted sexual contact, reconciliation seems highly unlikely. Fourth, the court found problems with proof did not provide a rationale basis for the marital exemption because the evidentiary problems concerning one spouse’s lack of consent to an act of sodomy would be no more difficult than proving lack of consent by a victim involved in a non-marital relationship. Fifth, and finally, the court rejected the argument that the assault statutes provided alternative remedies available to a victim of forcible sodomy by a spouse, finding the vast differences in punishment disproved the alternative remedy theory. The court concluded that there can be no justification for forcible sodomy upon one’s spouse, and a rule that protected unmarried persons from forcible sodomy but not married persons could not withstand constitutional scrutiny. Therefore, the court severed and removed from the statute the marital exemption for the offense of forcible sodomy.



Mancini v. Township of Teaneck New Jersey Supreme Court (2004)

Gender discrimination, Sexual harassment

Plaintiff was hired as a police officer. Since the beginning of her employment she felt that other members of the Department were unhappy because they felt it was not a job for women. Plaintiff also suffered sexual harassment. During her first four years there, plaintiff had a locker in the men’s room as there were no women’s locker rooms, and male co-workers would shower and walk around naked in the locker room. Plaintiff’s boss told her that he did not expect her to make it as an officer, that he did not want women on the job, and that he would not accommodate her, but that he had a mattress waiting for her in his closet. The plaintiff interpreted this as a sexual advance. Plaintiff also received other inappropriate remarks, for example, in response to plaintiff’s complaint about not having a shower, her boss told her several times that he would wash her. Officers also kept pornographic magazines and pinups both at work and in patrol cars. The plaintiff also received in her mailbox at work panties, a motel key, and a note reading, “back stabbing c-t.” There were also sexual cartoons, some pertaining to her and others to other women. Plaintiff ultimately sued for sexual harassment and sex discrimination. At trial, the jury awarded the plaintiff $1 million in compensatory damages and $500,000 in punitive damages. The trial court vacated the punitive damages and reduced the compensatory damages. The defendant appealed, asserting laches – that the plaintiff unreasonably delayed in filing the suit. The court found the defendant did not make an adequate factual record in this defense and it otherwise affirmed the holding finding the defendant liable.


Schuster v. Derocili Delaware Superior Court (2001)

Employment discrimination, Sexual harassment

Here, the plaintiff was an at-will employee whose contract could be terminated by either party giving thirty days written notice. The plaintiff mainly worked for the defendant, who was the president and controlling shareholder of the company. The plaintiff alleged the defendant made sexual comments and advances towards her a few weeks after she commenced work and also touched her inappropriately. The plaintiff told the defendant his behavior made her uncomfortable but he did not stop. Subsequently, the plaintiff began recording the defendant’s conduct in a journal and rejecting his advances more forcefully. The defendant subsequently fired the plaintiff for substandard job performance. Under 19 Del. C. § 711, an employer may not discriminate against an employee based upon gender. The defendant argued that there could be no common law cause of action for employment discrimination because there was already a statutory scheme, and the plaintiff was required to abide by the specific procedures of that statute to bring such a claim. Specifically, the defendant argued that judicial review is only available after the Delaware Department of Labor Review Board hears the matter. Plaintiff based her theory on a breach of the implied covenant of good faith and fair dealing derived from the employment contract and as such, her claim did not arise directly from § 711. The court found that the plaintiff had a common law cause of action and she could bring her claim.



College-Town, Div. of Interco, Inc. v. Mass. Comm’n Against Discrimination Supreme Judicial Court of Massachusetts (1987)

Employment discrimination, Gender discrimination, Sexual harassment

Here, an employer appealed the superior court’s decision that it discriminated against an employee on the basis of sex.  A few weeks after College-Town hired the employee, Rizzi, Rizzi’s supervisor began making sexually suggestive comments to her.  Once he touched her back, and another time he put his hand over a slit in her dress and told her to fix her skirt.  On one occasion, Rizzi asked her supervisor to review her performance in a meeting and he told her that she handled it well and that he “liked the way [her] tits stood out in the red shirt.”  Once, he asked her if she was a good f----.  Rizzi then spoke to the director of manufacturing, who told her he was “not qualified to go into these things,” and refused to talk to her.  Rizzi had to wait several days before she could tell someone else at work.  A College-Town executive finally spoke with the supervisor about the allegations, which were denied.  A meeting was held to determine the truth of the allegations, which the supervisor and all other women in the department attended except for Rizzi.  She was not asked to the meeting or notified of its occurrence.  At the meeting, the supervisor explained the allegations and Rizzi’s co-workers were generally supportive of the supervisor.  College-Town made no further investigation.  Prior to that meeting, Rizzi sought a promotion to a position in another department.  After the meeting was held, Rizzi was informed she was not qualified for the promotion and College-Town hired someone with more knowledge and experience.  Soon thereafter, College-Town attempted to transfer Rizzi as tension in the office was affecting productivity and she declined.  Rizzi was never told the transfer was mandatory, and within weeks of her denial, she was discharged. The trial court found that College-Town’s supervisor created a sexually harassing work environment, it failed to remedy the situation, and it retaliated against the employee in its attempt to transfer her and discharge her once she declined the transfer.  Id. at 158.  The Massachusetts Supreme Court affirmed the decision and found that sexual harassment may constitute discrimination under Gen. L. C. 151B, §4(1), which prohibits employment discrimination on the basis of gender.



Lacey v. State Nebraska Supreme Court (2009)

Gender discrimination, Sexual harassment

Lacey worked at the Department of Correctional Services as a temporary employee. Lacey’s supervisor was known for “creating a fun atmosphere” by “giving each other a hard time in a joking manner.” The supervisor’s jokes and questions were often sexual in nature, including inquiring Lacey about the frequency, locations, and types of sex she and her boyfriend had. Towards the end of Lacey’s temporary placement, the jokes and questions were made daily and became increasingly vulgar. Supervisor also subjected Lacey to unwanted touching. Lacey eventually complained and the supervisor was ordered to stay away from here. Soon after, Lacey was terminated under questionable circumstances. Lacey filed a complaint against the Department of Correctional Services on June 7, 2006, alleging, among other things, sexual harassment in violations of the Nebraska Fair Employment Practice Act (NFERA). The trial court awarded Lacey $60,000 in damages for her sexual harassment claim. The State appealed.



Gaines v. Bellino New Jersey Supreme Court (2002)

Sexual harassment

Plaintiff worked the midnight shift in a prison. One night another officer kissed her without any invitation and subsequently repeatedly referred to the incident, and made intimidating jokes about raping the plaintiff. Despite being made aware of these incidents, plaintiff’s superiors did not take any action. It was almost two years before the warden responded to plaintiff’s attempts to talk to him about the harassment, at which time plaintiff refused to file a complaint in fear for her safety. The warden later advised her again to file a complaint and issued a cease and desist letter to the officer. Eventually, the County filed disciplinary charges against the officer but dismissed the charges. Plaintiff eventually brought a lawsuit alleging a hostile work environment. Although the County had an anti-sexual harassment policy, numerous employees testified that they were never trained on the policy, and the plaintiff testified that the policy was loosely enforced. The trial court dismissed the plaintiff’s complaint, reasoning that the fact that an individual violates a policy does not render the policy wrong. The Appellate Division affirmed. The plaintiff appealed the Appellate Division decision, contending that in determining employer liability for sexual harassment, the court was required to consider (1) whether the company had mandatory training for supervisors and managers which is offered to all members of the company; and (2) effective sensing or monitoring systems to check the trustworthiness of the prevention and remedial structures for employees. The court agreed with the plaintiff; even though the policy was known to many high-ranking officials, no action was taken to address the plaintiff’s complaints, even if they were not “formal” complaints. The court found that summary judgment was improper because there were questions of fact as to the adequacy of the policy.



In re Piatt Arizona Supreme Court (1997)

Sexual harassment

In May of 1990, Piatt represented clients A and B in their respective domestic relations actions.  During his representation of client A, Piatt repeatedly asked her questions such as whether she had masturbated at the age of fourteen, and whether she had ever had sexual relationship without emotional involvement.  He also made comments about the length of client A’s skirt and how “delicious” she looked.  Piatt later told client A during a meeting that if she did not respond to his sexual advances, he would be forced to charge her a large sum of money for continued representation.  Piatt threatened client B in substantially the same way.



Richardson's Market v. Covais Delaware Superior Court (1995)

Sexual harassment

Here, the defendant employer appealed the Board’s decision that the plaintiff had good cause to walk away from her employment as she was sexually harassed and her employer failed to rectify the situation. The son of the defendant-business owner and the defendant’s manager sexually harassed the plaintiff in a verbal and physical nature. The plaintiff tried to discuss the situation with the business owner but the harassment continued. Further, she was advised by the owner that all managerial responsibilities were given to his son and that the plaintiff would have to work it out with the son. The plaintiff attempted to discuss the situation again with the owner but after waiting for fifteen or twenty minutes, she left and quit without being able to speak to him. The plaintiff sued for hostile work environment, and the court found the defendant was liable. The employer appealed, arguing that the plaintiff did not make a reasonable effort to inform it about the hostile working environment and remedy the situation. The court disagreed and affirmed the Board’s decision.



Caplan v. Donovan Supreme Judicial Court of Massachusetts (2008)

Domestic and intimate partner violence

Here, the plaintiff was a resident of Massachusetts and she sought an abuse prevention order against her nonresident partner.  The plaintiff and her partner met in Massachusetts and moved to Florida, where they had a child.  The plaintiff took the child to Massachusetts on occasion but the defendant never returned.  The plaintiff alleged that the defendant physically abused her and she fled to Massachusetts with her son.  The plaintiff alleged that prior to her escape, the defendant accused her of cheating, called her a whore, and threatened to kill her and the child.  He blocked the door when she tried to leave and when she took the phone to call the police, he ripped the phone from her hand and threw it across the room.  Once the plaintiff arrived in Massachusetts, the defendant called his friends and the plaintiff’s cell phone several times a day trying to locate her.  The plaintiff subsequently filed a complaint in court in Massachusetts seeking a protection order.  The court issued an order which granted the plaintiff custody of the child and directed the defendant not to abuse the plaintiff or the child, not to contact them, to surrender his firearms in Florida and to compensate the plaintiff monetarily.   The court found that the plaintiff was entitled to an abuse prevention order directing the defendant not to abuse her, not to contact her, to stay away from the plaintiff and her residence, granting custody of the child to the plaintiff, and ordering the defendant to stay away from the child.  However, the court found that it was a violation of the defendant’s due process rights to order an affirmative obligation on him, including paying money and handing over his firearms, as the court had no personal jurisdiction over the defendant.



Gavin v. Rogers Tech. Servs., Inc. Nebraska Supreme Court (2008)

Sexual harassment

Gavin worked as the personal assistant to Rogers, president of RTSI. A few days into her employment, Gavin discovered that the conversations between her and Rogers always had a sexual overtone, if not outright about sex. One day, when Gavin entered Rogers’ home office in the morning, Gavin appeared to be wearing nothing but a pair of boxer shorts. Gavin immediately left and never returned to work again. On these facts, Gavin brought a sexual harassment suit under VII of the Civil Rights Act of 1964 against RISI.


Lehmann v. Toys R Us New Jersey Supreme Court (1993)

Sexual harassment

Plaintiff was employed by defendant as a file clerk and subsequently promoted to supervisory positions. Sometime thereafter, defendant hired a new supervisor to the plaintiff. This supervisor started sexually harassing female employees, including plaintiff, through offensive sexual comments and touching. Although plaintiff immediately reported incidents to the supervisor’s boss, she was told to handle the matter herself. Upon continuing to bring incidents to the attention of the manager, plaintiff was told that she was being paranoid. Eventually plaintiff addresses the executive vice president, expressed that she felt she was being forced out of the company, and when she was offered an undesirable transfer as a solution, offered her resignation. The plaintiff sued the defendant for hostile work environment, arguing that its investigation into the harassment was inadequate. To bring a claim for hostile work environment, the plaintiff needed to show: (1) the conduct would not have occurred but for the employee’s gender; (2) the conduct was severe or pervasive enough to make a (3) reasonable woman believe (4) that the conditions of employment are altered and the working environment is hostile or abusive. The court found that even though the defendant had a written policy against sexual harassment, the manager did not keep any records about the investigation, did not document the investigation, and did not question key witnesses about events. The court found that this enabled a hostile work environment, and held the defendant liable.



Ford v. Revlon, Inc. Arizona Supreme Court (1987)

Sexual harassment

Plaintiff Ford’s supervisor, Karl Braun, began to sexually harass Ford at a dinner on April 3, 1980, where Braun told Ford that she would regret it if she didn’t sleep with him. At a company picnic a month later, Braun said to Ford: “I want to fuck you, Leta,” and restrained her in a chokehold, from which Ford eventually escaped. Despite Ford having reported the harassment to regional management later than month and to headquarters in November, 1980, no action was taken until Braun’s employment was terminated in October, 1981, almost a year and a half after plaintiff’s original complaints. During this period Braun’s continuing threats led to Ford developing symptoms of emotional stress such as high blood pressure and chest pains.



Feddiman v. State Delaware Supreme Court (1989)

Sexual violence and rape

Here, the defendant appealed a conviction for assault, kidnapping and rape. The defendant argued that he could not be convicted of eight separate counts of rape for one victim, as this would constitute double jeopardy. The court disagreed and affirmed the superior court’s finding that the fact that there were variations in the sexual acts, there was physical movement of the victim between acts, and there was time between each offense.



Iamele v. Asselin Supreme Judicial Court of Massachusetts (2005)

Domestic and intimate partner violence

Here, the plaintiff and the defendant lived together and had a son together. The defendant physically abused the plaintiff for two to four years. The plaintiff had previously obtained a protection order against the defendant under Gen. Law C. 209A, which expired. The day after the order expired, the defendant called the plaintiff and was highly agitated and threatening. The plaintiff sought a renewal of the order. Prior to the hearing regarding the extension of the order, the plaintiff stated that the defendant made several phone calls to the plaintiff attempting to reconcile and then becoming mean. Many of these calls occurred while the plaintiff was at work and caused her to lose her job. The plaintiff feared the defendant would kill her without the order. The defendant’s attorney at the hearing argued he only contacted the plaintiff to re-establish his relationship with his son. The judge refused to grant the extension, finding that the plaintiff is “clearly in fear no matter what” and providing no reasoning for the refusal. Upon appeal the court found that the plaintiff needed to make a showing similar to what is required to obtain an initial protection order, by a preponderance of the evidence. The court noted that it should consider the defendant’s violations of protective orders, ongoing child custody or other litigation likely to bring hostility, the parties’ demeanor in court, the likelihood the parties will encounter each other in their usual activities, and if there are significant changes in the parties’ circumstances. Here, the court remanded the case because the trial judge did not define the burden the plaintiff needed to meet to warrant an extension and he did not explain which part of the plaintiff’s case was insufficient to warrant the extension.



FBG Serv. Corp. v. Anderson Nebraska Court of Appeals (1993)

Employment discrimination, Gender discrimination

Anderson worked the night shift at FBG Service Corp (“FBG”). A review conducted in November 1988 stated that Anderson’s work was “excellent.” In early or mid-July 1989, a coworker recommended Anderson for the recently vacated job of daytime supervisor, and Anderson expressed interest. The person with hiring authority told coworkers that he preferred a man for the job as it involved heavy lifting. A month later, the firm hired a man with 21 years of experience in the military and 18 years of experience in repairing machinery for a “janitorial” position at a rate of $4 an hour.



Cesare v. Cesare New Jersey Supreme Court (1998)

Domestic and intimate partner violence

Mrs. Cesare sought a restraining order against her husband under the Prevention of Domestic Violence Act following an argument about ending their marriage. During this argument Mr. Cesare allegedly threatened Mrs. Cesare that she would never get custody of their children, and that he would never sell the house and share the proceeds. Prior to this argument, Mr. Cesare had threatened he would kill her, or “get someone else to do it very cheaply” before she got custody of their children or shared assets. Mr. Cesare was on medication for depression and kept three loaded guns in the house. Fearing for her safety, Mrs. Cesare took her children to the police that night. The superior court granted Mrs. Cesare a temporary restraining order despite there being no explicit threats to kill Mrs. Cesare that night, finding that under the totality of the circumstances, there was sufficient cause to issue the order based on the couple’s prior history, course of conduct, and the credibility of the different witnesses. The appellate division reversed the superior court’s holding and found that the trial court’s ruling constituted a “manifest denial of justice” and that Mr. Cesare’s conduct did not qualify as a terroristic threat, required under N.J.S.A. 2C:12-3(b). The court found the record lacked statements that were intended to put Mrs. Cesare in imminent fear of her life, and that the trial court should have used a reasonable person standard rather than a subjective one. The court of appeals in New Jersey reversed and found that there was sufficient evidence to support the trial court’s finding. The court found that the Domestic Violence Act has broad legislative intent and that an appellate court should give a deferential standard of review to a trial court. The court noted that the Domestic Violence Act was “intended to ‘assure the victims of domestic violence the maximum protection from abuse the law can provide’.”


Hurd v. Hurd Arizona Court of Appeals (2009)

Domestic and intimate partner violence

The appellate court affirmed a family court’s grant of sole custody to the mother of three minor children. According to Ariz. Rev. Stat. Ann. § 25-403.03, a significant history of domestic violence is sufficient to render joint custody inappropriate. In addition, Ariz. Rev. Stat. Ann. § 25-403.03.D further states, “there is a rebuttable presumption that an award of custody to the parent who committed the act of domestic violence is contrary to the child’s best interests.”



Watt v. UniFirst Corp. Maine Supreme Court (2009)

Sexual harassment

After commencing her employment, plaintiff agreed to prepare lunches for a new co-worker in exchange for $25 a week. Plaintiff later stopped providing lunches to the co-worker who in return, became hostile towards her, commencing a pattern of sexual harassment, including lewd comments, uninvited sexual advances, and interference with her ability to work. In keeping with company policy, plaintiff addressed complaints to her supervisor. Although the supervisor met with the co-worker and issued warnings, the harassment continued. Eventually the general manager suspended the co-worker and changed his duties so he would not be working near the plaintiff. When he returned, however, the co-worker continued to harass plaintiff. Eventually, there was an incident where the two got into a physical altercation, for which both were suspended. The plaintiff sued the defendant for failing to remedy the situation and for a hostile work environment. The court found that an employer may be liable for the sexual harassment of an employee by a co-worker under a hostile environment claim if the employer knew or should have known about the harassment and failed to take immediate and appropriate steps to correct it. The court noted that in determining whether a work environment is hostile, a court should consider the frequency of the discriminatory conduct, its severity, if it is physically threatening or humiliating as opposed to a mere offensive utterance, and if it reasonably interferes with the plaintiff’s work. The court then concluded that a jury could conclude that the defendant’s response to the harassment was neither immediate nor appropriate. Specifically, the three-day suspension and warnings were insufficient given the pattern of harassment. Thus, the court vacated the trial court’s issuance of summary judgment to the defendant and remanded the case.



Aguilar v. Hernandez-Mendez Massachusetts Appeals Court (2006)

Domestic and intimate partner violence

Here, the defendant appealed an abuse prevention order that was issued against him for the benefit of his father’s girlfriend. The plaintiff and her two teenage daughters lived with the defendant’s father. The defendant lived there as well for about two years until he moved out. Once he moved out though, he still had keys to the apartment, still received mail there, took showers there, spent the night there on occasion, and had the ability to let himself inside without making prior arrangements with his father or the plaintiff. The plaintiff obtained a restraining order against the defendant because he threatened her for over a year that he would pay someone to kill her if she did not leave his father. He also came to the apartment several times uninvited and pushed the plaintiff. He also threatened and pushed her two children. The court granted an extension of a protective order as it concluded that the defendant and the plaintiff were former household members. The defendant argued that he and his father’s girlfriend were not considered “household members” under Gen. L. C. 209A, § 1, and as a result, the court could not issue a protective order against him as to his father’s girlfriend. The court disagreed and found that a household member does not have to be a family member. The court affirmed the extension.



State v. Doyle Nebraska Court of Appeals (2010)

Domestic and intimate partner violence

Doyle was subject to a domestic abuse protection order for Linda Doyle, his wife. The “no contact” provision of the order prohibited Doyle from “telephoning, contacting, or otherwise communicating with [Linda]” for a period of 1 year. After Doyle was escorted to a hospital by law enforcement on February 14, 2008, Doyle evaded the monitoring of police officers and directed a nurse to contact his wife. The call was placed and Linda was indeed reached. Linda hung up after a brief conversation with the nurse.



Ancich v. Ancich Arizona Court of Appeals (2009)

Domestic and intimate partner violence

Father and Mother were divorced in 2003 and were granted joint custody of their son, Z.  In January 2008, Mother sought an order of protection against Father covering her house, her mother’s house, and Z’s school, claiming that Father, a police officer, had committed domestic violence against her, and had intimidated Z to a point where he left a suicide note.  After an evidentiary hearing, the family court found sufficient evidence to support an order protecting Mother.  The court found, however, evidence was insufficient to cover Z in the order, and thus removed Z’s school from coverage.  Father appealed, arguing that the order was wrongly entered because only Mother’s side of the story “had been heard,” to which the court responded that the family court was entitled to resolve conflict in evidence.  The court determined that Mother’s account was more convincing, and thus rejected Father’s argument.  Father also argued that because of the protective order, he must check his service weapon at the end of every shift and asked for it again at the beginning of every shift.  As a result, he could not perform security work in off-duty hours.  The court did not consider the argument because Father failed to cite any legal authority in support of a need for him to perform off-duty security work.  Finally, Father argued that the protective order would diminish his right to participate decision-making about Z.  The court found the argument unconvincing because father was free to reach Mother via e-mail or phone.  Accordingly, the court affirmed the family court’s grant of a protective order covering Mother.



Kopenga v. Davric Maine Corp. Maine Supreme Court (1999)

Employment discrimination, Gender discrimination

The plaintiff applied for a job to work at the defendant’s race track as a security officer. The defendant’s director of security informed the plaintiff that he normally did not hire women and instead employed her in the dispatch hour to answer telephones and complete paper work. The plaintiff had a bachelor’s degree in criminal justice and experience in security work. The plaintiff subsequently requested to work the late night security shift at the stable gate to work additional hours. Her request was denied as the director did not hire women for this position. When the general manager learned of the incident, he informed the director that he violated company policy and directed him to change his discriminatory practices. Ultimately, the plaintiff left the company due to disputes over her work assignments and she filed a complaint with the Maine Human Rights Commission and sued the defendant. The trial court determined that but for the director’s gender discrimination, the plaintiff could have worked an additional sixteen hours each week for thirty-three weeks and that she would have earned overtime. The Supreme Court of Maine held that the plaintiff was entitled to back pay for these lost wages under 5 M.R.S.A. § 4613.



Com. v. Boucher Supreme Judicial Court of Massachusetts (2002)

Sexual violence and rape

Here, the defendant had pled guilty to rape of a child and assault and battery on a child.  Before he was about to be released from custody at the completion of his sentences, the State filed a petition to commit him as a sexually dangerous person under Gen. L. C. 123A, §§1, 12, as someone who has been convicted of a “sexual offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses if not confined to a secure facility.”  Id. at 275.  The trial judge dismissed the State’s petition as it found the State failed to show beyond a reasonable doubt that the defendant was likely to commit new sexual offenses unless confined.  The court found that the State had to show a risk of committing a new offense of at least fifty percent, or, more likely than not.  The State appealed.  Here, the court was faced with defining the word “likely” as used in Gen. L. C. 123A, § 1 in defining a sexually dangerous person as someone “likely to engage in sexual offenses if not confined to a secure facility.”  Id. at 274.  The court noted that to determine what is “likely,” the court must consider the seriousness of the threatened harm, the relative certainty that the harm will occur, and the possibility of successful intervention to prevent the harm.  Id. at 276.  Further, “likely” indicates more than a mere possibility or probability, but it is not bound to a statistical definition such as “at least fifty percent.”  Id. at 277.  Further, the statute does not indicate it has to mean more likely than not.  As such, the court found the trial court erred in its interpretation of “likely” and it remanded the case.



Madeja v. MPB Corp. New Hampshire Supreme Court (2003)

Sexual harassment

Here, the plaintiff worked for the defendant, who manufactured ball bearings. After commencing work, the plaintiff’s trainer told a supervisor that he could not work around the plaintiff due to her attitude. The plaintiff responded that the trainer had been engaging in sexually harassing behavior. The supervisor warned the trainer, following which the trainer did not bother the plaintiff again, but was hostile towards her. Soon thereafter, another trainer, friend of the previous trainer, started making complaints about plaintiff. After this new complaint, the supervisor inspected the plaintiff’s work and concluded she was unproductive. The supervisor then spoke with the senior shift supervisor about the plaintiff’s low productivity. The shift supervisor did not know about the plaintiff’s complaint against the trainer and recommended that the supervisor terminate the plaintiff. The plaintiff was subsequently terminated and then sued the defendant for sexual harassment. The jury during the trial found the defendant was guilty for a hostile work environment under N.H. Rev. Stat. § 354-A. The defendant argued that the judge’s jury instructions were improper because they would hold the defendant liable for a merely negligent response to the sexual harassment, which should be insufficient to find liability. The court noted that under N.H. Rev. Stat. § 354-A, an employer is liable for sexual harassment committed by a co-worker of the plaintiff if the employer knew or should have known about the harassment and failed to take prompt, effective remedial action to end the harassment. The court further noted that an employer may be liable for an employee’s sexual harassment based on the employer’s negligence to remedy the situation.


Skains v. Skains Arizona Court of Appeals (2009)

Domestic and intimate partner violence

The family court abused its discretion when awarding joint custody without considering evidence of domestic violence, and when awarding Father parenting time when there was a valid order protecting the child from Father.



Nadeau v. Rainbow Rugs Maine Supreme Court (1996)

Sexual harassment

The plaintiff worked as an administrative assistant for the defendant, whose office was located at the home of the company’s president. The plaintiff worked in the same room as the president and he supervised the plaintiff’s work. The president asked her uncomfortable personal questions about her marriage and financially distressed situation, stating that she had options available to make money, but that he needed to speak to her in private about them. He followed this by offering to give the plaintiff money in exchange for sex. The plaintiff immediately rejected the proposal and the president told her that her position was not jeopardized but left the offer open in case the plaintiff changed her mind. The plaintiff reported the incident that day to a supervisor of the warehouse. However the president was her only supervisor so she did not report the incident to anyone else. The defendant had no policies for sexual harassment or complaint procedures. The plaintiff subsequently resigned due to the president’s comments and filed a complaint with the Human Rights Commission suing the defendant for the harassment by her supervisor under 5 M.R.S.A. § 4572 for a hostile work environment. The court found that under the Maine Human Rights Act, “employers are liable for hostile environment harassment by supervisors and co-workers if an official representing the institution knew, or in the exercise of reasonable care, should have known, of the harassment’s occurrence, unless that official can show that he or she took appropriate steps to halt it.” Here, the court found that because the president was the plaintiff’s only supervisor, she had no one else to consult, and because the defendant had no harassment policy in place, she had no avenues of relief. Any higher officials than the president were located in Belgium. Further, the president was an official representing the defendant and obviously knew of the occurrence. He could have taken steps to stop the harassment by rescinding his offer but he left it open in case the plaintiff changed her mind. Thus, the defendant could be liable for the president’s harassment.



Ex parte Alabama Department of Youth Services Supreme Court of Alabama (2003)

Custodial violence, Sexual harassment, Sexual violence and rape

Jane Doe 1 and Jane Doe 2, female minor children in the custody of Alabama’s Department of Youth Service (“DYS”), brought an action against DYS and its executive director, alleging federal claims of sexual harassment and abuse under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. (“Title IX”) and 42 U.S.C. § 1983, and state claims of intentional infliction of emotional distress, negligent hiring and supervision of DYS employees, and intentional misrepresentation. Defendants’ filed a motion to dismiss the claims based on various arguments for immunity, which the trial court denied. Defendants filed a petition for writ of mandamus directing the Circuit Court to dismiss the complaint. In ruling on Defendants’ petition, the Supreme Court considered each claim for immunity. First, DYS claimed it was immune from liability under the Eleventh Amendment. The Court, however, held that, because Congress enacted Title IX not only pursuant to its Article I powers, but also pursuant to its Fourteenth Amendment, § 5, power, Congress successfully abrogated the Eleventh Amendment immunity of the states from suits in federal and state courts for violations of Title IX. Second, the executive director argued he was entitled to federal qualified immunity from the § 1983 claim, since he was a government official. The Court disagreed, citing law holding that there is no state interest in protecting government officials accused of sexually molesting a child. Because the plaintiffs alleged that the executive director failed to protect them from harm even after he received notice of the sexual harassment and abuse, he did not have a clear legal right to dismissal of plaintiffs’ § 1983 claim on the ground of federal qualified immunity. Third, the Court found that, based on the sovereign immunity provision of the Alabama constitution, dismissal of plaintiffs’ state-law claims against the executive director in his official capacity was proper. However, the Court found that the doctrine of state-agent immunity did not warrant dismissal of plaintiffs’ state law claims against the executive director in his individual capacity.



Schneider v. Plymouth State College New Hampshire Supreme Court (1999)

Sexual harassment

Here, the plaintiff was a student at the defendant-college. The plaintiff took a course with a professor, had a positive experience and ultimately majored in the subject of the class. The professor became the plaintiff’s academic advisor. Subsequently, the professor began to sexually harass the plaintiff. When the plaintiff refused the professor’s advances, he grew angry and threatened to make her life very difficult. He withheld academic support for her and ridiculed her in front of faculty. He also gave her a poor mark for her work as an intern without ever consulting the supervisor at the company. The plaintiff reported the harassment to faculty members (to a professor and the dean of the college). The plaintiff also reported the harassment in a paper to a professor, but no action was taken in response. The plaintiff eventually spoke with another professor about the harassment but wished to remain anonymous for fear of worse treatment by the professor. That professor then told the chair of the college’s art department. Further, more students had reported the harassment of the plaintiff. Action was not taken against the professor though because the plaintiff wished to remain anonymous and the school would not act without a “firsthand account.” After the plaintiff graduated, she wrote to the dean who was acting as interim president of the school that she was harassed as a student. The professor was then dismissed on the ground of moral delinquency. The plaintiff then sued the defendant for vicarious liability for the professor’s sexual harassment. She also claimed breach of fiduciary duty. The court found that there was a fiduciary relationship between the plaintiff and the defendant; the plaintiff depended on the defendant for her education and relied upon the defendant to adopt and enforce practices to minimize danger that students will be exposed to sexual harassment. The court did not analyze the school’s liability under the hostile environment theory as it found the school guilty of a breach of fiduciary duty. Thus, in an academic setting, a plaintiff may be entitled to relief for harassment under a breach of fiduciary duty in addition to the usual hostile environment claims.


Thames Talent, Ltd. v. Com'n on Human Rights and Opportunities Connecticut Supreme Court (2003)

Employment discrimination, Sexual harassment

Plaintiff was hired as a bookkeeper and secretary for the defendant company, and worked exclusively for the company’s president. The president subjected plaintiff to comments about the her clothing and body, quizzed her about intimate details of her sex life, purchased underwear for her, and showed her pictures of naked women. Some of this behavior was done in front of other employees. In response, plaintiff began wearing baggy clothing to work and told the president that his behavior made her uncomfortable. Subsequently, in a discussion about plaintiff’s work performance, the president told plaintiff that he was happy with her work and that she may receive a raise if her performance continued. Two days after this discussion, plaintiff met with the president again to discuss her discomfort at work due to his comments. Several days later, the president terminated plaintiff’s employment. Plaintiff sought back pay and reimbursement to the state for unemployment compensation benefits. The trial court granted back pay but did not order reimbursement. Defendant appealed against having to provide back pay, arguing that under Gen. Stat. § 46a-86, an order of reinstatement to the employment position is a prerequisite for back pay or reimbursement, and the court had not ordered reinstatement. The court rejected this argument and found it could order back pay and reimbursement even though reinstatement to the position was not ordered by the trial court.



Dyer v. Dyer Maine Supreme Court (2010)

Domestic and intimate partner violence

Here, the plaintiff moved to extend a protective order against the defendant, her ex-husband. The trial court granted the extension and the defendant appealed. In this case, while the parties were married, the defendant assaulted the plaintiff in their garage and attempted to suffocate her while she was knocked to the ground and she almost lost consciousness. The defendant only stopped when the parties’ daughter entered the garage and the plaintiff told her to call 911. The defendant was arrested and served six months in jail. The plaintiff also had obtained a protective order that prohibited the defendant from having direct or indirect contact with the plaintiff and their daughter for two years. The defendant violated this order by sending his daughter a Christmas card and by entering the plaintiff’s home. As the order was going to expire, the plaintiff moved to extend it. The court extended the order because the assault against her had been “extraordinarily brutal and unprovoked.” The court found that the plaintiff had a well-founded fear of vehicles that were similar to that of the defendant, especially because the defendant got a job in the town where the plaintiff worked. The defendant appealed the trial court’s finding. The court affirmed the trial court’s extension, finding there were no factual findings of clear error made by the trial court. Thus, a protective order does not have to have a time limit where a party’s fear is justified.



Jackson v. Birmingham Board of Education United States Supreme Court (2005)

Gender discrimination

Mr. Jackson, a teacher and basketball coach, brought suit against the Birmingham Board of Education (“Board”), alleging that the Board retaliated against him because he had complained about sex discrimination in the high school’s athletic program. Specifically, Mr. Jackson complained to his supervisors that the girls’ basketball team was not receiving equal funding and equal access to athletic equipment and facilities. After the Board terminated Mr. Jackson’s coaching duties, he filed suit in the United States District Court for the Northern District of Alabama. He alleged that the Board violated Title IX by retaliating against him for protesting the discrimination of the girls’ basketball team. The district court dismissed Mr. Jackson’s complaint on the ground Title IX did not cover claims retaliation, and the Court of Appeals for the Eleventh Circuit affirmed. The Unites States Supreme Court reversed, holding: “We conclude that when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional ‘discrimination’ ‘on the basis of sex,’ in violation of Title IX.” The Court reached this conclusion, in part, because “[r]eporting incidents of discrimination is integral to Title IX enforcement and would be discouraged if retaliation against those who report went unpunished.” In response to the Board’s claim that it had no notice that Title IX prohibited retaliation, the Supreme Court held that Title IX itself supplied sufficient notice to the Board, as did previous Courts of Appeals decisions that had considered the issue.



Monge v. Beebe Rubber Co. New Hampshire Supreme Court (1974)

Employment discrimination, Sexual harassment

Here, the plaintiff worked for the defendant in a union shop and she joined the union as a requirement for her employment. After working without incident for a few months, the plaintiff applied to work a different position for higher pay. The plaintiff’s foreman told her that if she wanted the job, she would have to be nice. The plaintiff got the job. Subsequently, the foreman asked her out and she refused. Following this, the plaintiff’s personnel manager visited her at home about some annoying phone calls the plaintiff was receiving, and during that visit, the manager told the plaintiff he knew that the foreman used his position to make advances at female employees under his authority, and asked the plaintiff “not to make trouble.” After that, only three weeks after having worked in the new position, her machine was shut down, her overtime was taken away (even though no one else’s was), and she had to return to a position at a lower salary. The foreman continued to harass plaintiff in various ways, eventually firing her for refusing to comply an order at the very moment she was making a complaint to the union steward. After she was reinstated, the plaintiff was fired yet again when she called in sick over a period of time. The plaintiff did not file a claim for hostile working environment upon her termination. However, she did sue for breach of her employment contract. The plaintiff was an at-will employee. The court noted that in order to find termination was improper, the plaintiff would need to show that the termination was motivated by bad faith or malice. The court noted that the facts of the case—in particular, the foreman’s overtures, manipulation of assignments, and the connivance of the personnel manager, all supported the jury’s conclusion that termination was maliciously motivated and thus improper. Thus, even though the plaintiff did not sue for sexual harassment, she was able to use the harassment to show she was maliciously terminated from her job.



Craine v. Trinity College Supreme Court of Connecticut (2002)

Employment discrimination, Gender discrimination

Here, the plaintiff was hired by the defendant as an assistant professor. Throughout her employment, she was reappointed and complimented by the appointments and promotions committee. In her positions, the plaintiff taught, researched, and participated in service efforts for the defendant. Id. at 629-30. Despite that the plaintiff published several articles, taught students and supervised student research, during her tenure review in her sixth year of employment, she was denied tenure. Id. at 632-33. The tenure committee found the plaintiff was a “good teacher but not an extraordinary one,” and found her service to the school to be adequate. However the committee found her research and scholarship was inadequate, since she had only published one article in a refereed professional journal (notwithstanding that she had other publications). Id. at 634. The plaintiff claimed that the tenure process as it applied to her was discriminatory. The court noted that to establish a prima facie case of gender discrimination in the work environment, a plaintiff must show: “(1) she was a member of a protected class; (2) she was qualified for her position; (3) she was discharged; and (4) the termination occurred under circumstances giving rise to an inference of discrimination.” Id. at 225-26. The court noted to meet the fourth element, the plaintiff must show that “she was treated less favorably than comparable male employees in circumstances from which a gender-based motive could be inferred.” Id. at 638. Once a prima facie case is established, to succeed on a gender discrimination claim, the plaintiff must go further to show that the defendant was motivated by an intent to discriminate against the plaintiff in its acts.

 



Brittell v. Dep’t. of Correction Supreme Court of Connecticut (1998)

Sexual harassment

Here, a former correction officer claimed the Department of Correction created a hostile work environment through an officer’s sexual harassment. Prior to the plaintiff’s employment, she attended a training academy to be a correction officer. One of the plaintiff’s classmates commented that the plaintiff did not date men and that she liked women. The plaintiff warned the classmate to never make such a comment again, but she did not report the comment to a supervisor. Id. at 151. Within a few months after the plaintiff started working, inmates began making sexually obscene comments towards her. As the comments continued and took a threatening nature, i.e.--inmates threatened to assault her to determine her gender, the plaintiff reported the comments. The plaintiff was told by inmates that officers had started a rumor about her that she had a sex change operation, but was not given names. Id. at 151-52. The defendant underwent an investigation and questioned officers. It also warned all employees against sexual harassment. It offered the plaintiff aid through the employee assistance program, which the plaintiff declined. Id. at 153. The defendant continued to monitor and investigate the situation as the comments and harassment continued, and eventually offered to transfer the plaintiff to any institution of her choice within the facility, but the plaintiff declined. Id. at 159. The plaintiff then asked to go on unpaid medical leave, which was granted. The plaintiff then failed to submit the necessary medical documentation and she was considered to have resigned. Id. at 160-61. The plaintiff then sued for sexual harassment creating a hostile work environment and claimed that the defendant failed to adequately investigate and remedy the harassment. The court considered Gen. Stat. §46a-60, which prohibits discriminatory employment practices. The court then looked to federal law for guidance on whether to hold an employer liable for sexual harassment committed by the plaintiff’s co-workers. The court concluded that “once an employer has knowledge of a sexually combative atmosphere in the work-place, he or she has a duty to take reasonable steps to eliminate it.” Id. at 168 (quoting Snell v. Suffolk County, 782 F.2d 1094, 1104 (2d Cir. 1986)). The court noted that an employer’s response will be analyzed in terms of how prompt, appropriate and adequate it was. Id. The court found that the defendant did not only investigate the harassment but also made reasonable efforts to identify the inmates and officers responsible for the rumors, warned all staff that sexual harassment would not be tolerated, provided the plaintiff with access to supervisors to report any incidents to, and offered a transfer to the plaintiff which was in no way onerous, punitive or unreasonable. Id. at 171-72. The court found this was reasonable and the defendant would not be liable.



Okun v. Misiewicz Connecticut Superior Court (2001)

Gender discrimination

Here, the plaintiff filed a claim of sexual harassment against the defendant under Gen. Stat. § 46a-60, alleging that the harassment caused low self esteem, damage to the plaintiff’s career and reputation, lost wages, lost insurance, lost fringe benefits, and physical and mental pain and suffering. The defendant argued that the plaintiff could not bring a claim for a hostile working environment because under § 46a-82, the plaintiff was required to exhaust administrative remedies prior to seeking redress in court. Id. at *1. Specifically, the plaintiff was required to file a complaint with the Commission on Human Rights and Opportunities and obtain a release from the Commission to file an action in court. Id. at *2. The plaintiff failed to do either of these and claimed she was exempt; she claimed the Commission’s remedies were inadequate because the Commission has no authority to award compensatory and punitive damages, both of which the plaintiff sought. Id. The court dismissed the plaintiff’s complaint as it found that the Commission’s authority is not based upon a plaintiff’s preferred remedy; she must still file a complaint with the Commission and obtain a release to bring an action in court. Id. at *4.



Putnam v. Kennedy Supreme Court of Connecticut (2006)

Domestic and intimate partner violence

While Gen. Stat. § 46b-15 allows a plaintiff to obtain a domestic restraining order, the Connecticut Supreme Court held in Putnam that such an order is an appealable final judgment.  In other words, this protection is somewhat limited as a defendant is able to appeal the issuance of a restraining order.  Id. at 167.  Here, the defendant appealed the trial court’s grant of a domestic restraining order and the appellate court found the appeal is moot, as such an order is not appealable as it is not a final judgment.  Id.  The Connecticut Supreme Court disagreed and found that it is a final judgment and an appeal is permissible due to the “potentially irreparable effects of § 46b-15 restraining orders on relationships within the family unit.”  Id.



State v. Little, 127 Conn.App. 336 Connecticut Court of Appeals (2011)

Sexual violence and rape

Here, the defendant had a prior conviction of sexual assault in the third degree.  He was sentenced to two years of prison with three years probation.  Under Gen. Stat. § 54-252, the defendant was required to register as a sex offender with the sex offender registry unit of the state policy.  Id. at 338.  While the defendant initially registered after his release from prison, he later failed to comply with all of the registration reporting requirements.  Id.  Specifically, he failed to return an address verification form.  The defendant had moved and six months later, contacted the registry office to send correspondence to his new address so he could update his registry.  Id.  The defendant since remained in compliance with registry requirements.  Nonetheless, the court affirmed the trial court’s conviction that the defendant failed to comply with sex offender registration requirements.



Brett v. Berkowitz Supreme Court of Delaware (1998)

Sexual harassment

Here, the plaintiff sued her former attorney for sexual misconduct and malpractice.  Under 11 Del. C. § 601, there are criminal penalties for sexual harassment.  The statute does not explicitly provide for a private right of action.  Further, the plaintiff did not bring her cause of action under this statute, and instead, claimed she could bring a common law cause of action for sexual harassment.  The court held that the plaintiff did not have a private cause of action under § 601; in other words, she could not bring common law private claims under that section for sexual harassment.  Id. at 512-13



Konstantopoulos v. Westvaco Corp. Supreme Court of Delaware (1996)

Sexual harassment

Here, the plaintiff sued her former employer for allowing her to be subjected to sexual harassment, sexual discrimination, and sexual assault by her co-workers.  The plaintiff claimed that her co-workers made sexual comments and engaged in inappropriate sexual behavior, but that she was not physically injured by the conduct.  She also had no prior or subsequent contact with her co-workers outside of work.  Id. at 938.  The plaintiff complained to her supervisors but nothing was ever done to rectify the situation.  The plaintiff subsequently elected to take a layoff from her job once the harassment continued.  The defendant argued that the plaintiff had no common law right of action because any of these claims were encompassed by the Delaware Workmen’s Compensation Act (19 Del. C. § 2301).  Under this Act, a plaintiff’s compensation for personal injuries is limited to compensation that is provided in the Act.  The court agreed with the defendant and found that the Act did not exclude acts of a sexual nature that occurred at work, and that the plaintiff could not bring a private cause of action for sexual harassment.  Id. at 939-40.  Thus, any action for sexual harassment would have to be brought pursuant to 19 Del. C. § 2301.



Gallucio’s v. Kane Delaware Superior Court (1995)

Gender discrimination

Here, the defendant-employer appealed the decision of the Equal Employment Review Board that it had discriminated against the plaintiff because of her sex, in violation of 19 Del. C. § 711.  The plaintiff was a waitress for almost four years when she requested maternity leave to the restaurant’s owner and general manager.  She was granted maternity leave and told she could return to work to her previous schedule when physically able.  Id. at *1.  When the plaintiff attempted to return to work three months later, she was told there were no positions available, but at that time, six part-time waitresses were hired.  Id.  When the plaintiff applied for unemployment compensation, she was offered a position but with a reduced schedule, and which gave her less time serving on the patio, where greater tips could be yielded than inside.   The plaintiff was never replaced by a male employee but did lose income as a result of her reduced schedule.  Id.  The Equal Employment Review Board found the defendant discriminated against the plaintiff.  On appeal, the court noted that to prove a prima facie case of gender discrimination, a plaintiff must satisfy a four-prong test as articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  Id.  Under the test, the plaintiff was required to show that she “(1) was within the protected group; (2) that [she] was qualified for the position in question; (3) that despite [her] qualifications, [she] was rejected or discharged; and (4) that after [her] rejection, the employer continued to seek applicants from persons with the same qualifications, or that [she] was replaced by a person outside of the protected group.”  Id.   However, if at that point, the employer could show a reason for its actions that were non-discriminatory, a plaintiff may not necessarily prevail on a gender discrimination claim.  The court found that the Board did not consider the employer’s rebuttal of the plaintiff’s showing of gender discrimination—testimony from five witnesses that the defendant often switched waitresses from the patio to the inside of the restaurant, and that other employees who returned after a leave of absence returned on a reduced pay arrangement.  Id.  Thus, the court remanded the case to the Board to more carefully review the defendant’s rebuttal.



T.L. v. W.L. Delaware Family Court (2003)

Domestic and intimate partner violence

Here, the plaintiff sought a protection order from a Delaware court.  The defendant argued that a Delaware court had no jurisdiction over him, as the alleged abuse did not occur in Delaware, and he was a non-resident.  Further, the plaintiff and her children were present in Delaware only for two days upon filing the petition.  Id. at 508.  The court noted that Delaware enacted the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act, which allows courts to register and enforce valid protection orders from other states.  Id. at 513.  The court found that because Delaware would recognize any protection order, the wife should have more appropriately requested the order in Ohio, as the defendant’s due process rights outweighed Delaware’s interests to protect its residents from domestic violence.



Stafford v. Nunn, 1996 WL 434514, at *1 Delaware Family Court (1996)

Domestic and intimate partner violence

Here, the plaintiff sought an emergency protective order as she feared that her ex-husband was going to kidnap their son and as the ex-husband had told her the only way to solve their problems was for the plaintiff to be dead.  Id. at *1.  Under 10 Del. C. § 1043(a), a party may request an emergency protective order where there is an immediate and present danger of domestic violence.  In order to obtain such an order, the plaintiff must show in writing what efforts have been made to give notice to the adverse party of the request.  Further, a court may not grant an order unless the plaintiff files an affidavit or verified pleading.  The plaintiff failed to file such a writing in this case, and the court noted that emergency relief can only be granted based upon oral testimony in very limited circumstances.  Because there were no new arguments made in the plaintiff’s oral argument that could not have been raised earlier or in writing, the court found no such exception existed here.  Thus, the court denied the emergency protective order.  Id. at *1-*2.


Menefee v. McCaw Court of Appeals of Texas – Dallas Division (2003)

Gender discrimination

Sherri Menefee filed an employment sex discrimination and retaliation case against her employer, McCaw Cellular.  Sherri was hired as the manager of the IT department for the company’s southwestern region.  She alleged that her boss discriminated against her and that she was subjected to a less favorable environment based on her sex and was terminated shortly after complaining about the discrimination.  Under the Texas Commission on Human Rights Act (Texas Labor Code § 21.051(1)), an employer commits an unlawful employment practice if, because of sex, the employer discriminates in any manner against an individual in connection with compensation or the terms, conditions, or privileges of employment.  The Act is modeled after the federal Title VII and therefore Texas courts may look not only to cases involving the state statute but also to cases interpreting the analogous federal provisions.  In discrimination cases based upon circumstantial evidence, the plaintiff must first establish a prima facie case by showing: (1) she was a member of the protected class, (2) she was qualified for the position she held, (3) she was discharged or suffered an adverse employment action, and (4) she was replaced with a person who is not a member of the protected class or she was otherwise treated differently from persons outside the protected class.  Once the plaintiff makes this “minimal” showing, the burden of production shifts to the employer to produce evidence that the plaintiff was terminated for a legitimate, nondiscriminatory reason.  Then the plaintiff must establish that the legitimate reason was a “pretext” by showing that a discriminatory motive move likely motivated the employer’s decision, such as through evidence of disparate treatment or that the employer’s explanation is unworthy of credence.  In this case, Sherri established a prima facie case, and McCaw met its burden by producing evidence that Sherri was fired because she was not a “good fit” for her team.  Sherri sufficiently evidenced that this reason for her termination was a pretext because the reason she could not create a cohesive team was due to the discriminatory conduct and disruptive behavior of her boss and the failure of her supervisors to take action when she complained; moreover, she presented evidence that she had been told she was doing a good job.  Thus, Sherri sufficiently raised a factual issue to survive summary judgment.



State v. Felton Wisconsin Supreme Court (1983)

Domestic and intimate partner violence

The court held that lawyer’s representation of domestic violence victim/ criminal defendant constituted ineffective assistance of counsel where lawyer failed to inform himself of statutes regarding heat-of-passion manslaughter defense to first-degree murder charge and failed to consider the defense of not-guilty due to mental disease or defect, or make meaningful investigation into facts that would support the defense.  The defendant was married to her husband for twenty-three years; during that time her husband severely abused her and her children.  Defendant shot and killed her husband while he was asleep.  Her counsel used the “battered spouse” defense, claiming that she acted in self-defense.  The jury received instructions on first degree murder, second degree murder and manslaughter and on the privilege of self defense.  However, “there was no request for instruction on heat-of-passion manslaughter.”  After her conviction by a jury of second degree murder, appellate counsel brought a post-conviction motion arguing trial counsel was ineffective.  The trial attorney admitted that he was not “well-versed in criminal law.”  Although he practiced for three years, his practice had not been in Wisconsin and he never “handled an entire felony case.”  He acknowledged that he was probably incompetent to handle a case of this magnitude.”  The court held that “counsel’s conduct did not rise to the standard expected of a prudent lawyer reasonably skilled and versed in the criminal law.”  It also found that the “conduct of counsel prejudiced the defendant by depriving her of important defenses.”  Therefore, it held counsel was ineffective.  It reversed the portion of the court of appeals decision which found defendant guilty and affirmed the part which ordered a new trial on the “question of criminal responsibility.” 



Tex. S. Univ. v. Rodriguez Court of Appeals of Texas – Houston Division (2011)

Sexual harassment

Lisa Rodriguez was a patrol officer at Texas Southern University (“TSU”) who alleged that her supervisor sexually harassed her by making sexual innuendos, making inappropriate remarks, commenting on her physical attractiveness, asking about the color of her undergarments, and keeping a picture of her on his desk.  Eventually, Ms. Rodriguez filed a charge form with the Texas Workforce Commission Civil Rights Division (“TWC”) alleging, among other things, 13.  In the charge form, she alleged that the 13 began a week after she was hired, and had continued until as recently as four months before filing the TWC complaint.  As a defense, TSU claimed Ms. Rodriguez had failed to meet the 180-day deadline for filing the complaint.  In Texas, a complaint under the Texas Labor Code for 13 (a type of sex discrimination) must be filed “not later than the 180th day after the date the alleged unlawful employment practice occurred.”  Tex. Lab. Code Ann. § 21.202(a).  TSU argued that because Ms. Rodriguez only documented 13 at the beginning of her employment, the 180-day deadline had passed.  However, the court recognized there are two types of 13—quid pro quo and hostile work environment.  “Quid pro quo harassment occurs when employment benefits are conditioned on sexual favors, while a hostile work environment is the result of 13.”  Since Ms. Rodriguez’s claim was of a hostile work environment, the “continuing violation doctrine” applied since the “unlawful employment practice manifest[ed] itself over time, rather than as a series of discrete acts.”  Since Ms. Rodriguez alleged “a series of related acts, one or more of which [fell] within the limitations period,” the complaint was timely filed and the appellate court found that it had jurisdiction over the case.



Wilkerson v. Wilkerson Court of Appeals of Texas – Houston District (2010)

Domestic and intimate partner violence

Linett Wilkerson was the widowed third wife of James Wilkerson. Dennis Wilkerson was James’s adult son from his first marriage.  After her husband died, Linett explained to Dennis that she intended to help run one of the family businesses, a golf course.  Dennis became furious. told Linett that she had no business in the golf course, and instructed her to follow him outside where he pulled a gun out and shot some soda cans, telling Linett that he was “a good shot” and “I never miss” and that he “always [had] plenty of ammunition.” On another occasion he told Linett not to “get in his way” or “something would happen” to her.  After Dennis repeatedly refused Linett’s attempts to obtain financial information about the business in order to probate James’s estate, Linett filed a lawsuit.  Williams, a friend of Dennis’s, came to Linett’s house twice and threatened her and her children.  The trial court issued a family violence protective order against Dennis on behalf of Linett and her children.  Dennis asserted that it was not an appropriate case for the issuance of a family violence protective order because “Linett and Dennis have never shared a household” and their family relationship was “attenuated” since she was his father’s third wife.  The court held that their relationship was one of family under section 71.004(1) of the Texas Family Code, since Linett and Dennis were related by affinity and Dennis and Linett’s children were half-siblings.  In other words, step-families fall within the “family violence” provisions of the Code even where they do not share a household.  Moreover, the evidence was legally and factually sufficient for issuance of the protective order.



Harvill v. Rogers Court of Appeals of Texas – Tyler Division (2010)

Sexual harassment

Molly Harvill sued her fellow employee, Oscar Rogers, for sexual assault and battery and intentional infliction of emotional distress.  Ms. Harvill alleged that Mr. Rogers grabbed and kissed her, shot rubber bands at her breasts, and rubbed against her at work after repeated requests for him to stop.  The trial court entered summary judgment in favor of Mr. Rogers because Ms. Harvill didn’t allege damages as a result of the sexual assault.  However, the appellate court reversed on this count, recognizing that no actual damages are required for an allegation of sexual assault.  All that is required is that a person intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.  Tex. Penal Code. § 22.01(a)(3).  The court recognized that bodily injury is not required and damages for mental suffering are recoverable without an actual physical injury.



O’Dell v. Wright Court of Appeals of Texas – Fort Worth Division (2010)

Sexual harassment

Rebecca Wright was a waitress at Arlington Steakhouse, Inc. for four months.  She alleged that during this time, her supervisor, Christopher O’Dell, made lewd sexual comments to her, touched her in sexual ways that she found offensive, and created a hostile work environment by his 13.  Specifically, Ms. Wright alleged O’Dell put his fingers down her blouse and in her pants and brushed up against her, offered to pay her for oral sex, verbally degraded her and the other waitresses, and made inappropriate comments about her physical appearance.  The jury trial resulted in a verdict for Ms. Wright on all claims, finding O’Dell assaulted her, Ms. Wright was constructively discharged, and was subjected to 13.  The jury award was for $175,000 in mental anguish damages for assault and $250,000 in mental anguish damages for 13.  O’Dell appealed this decision on many grounds, one of which was that the award of damages was unsupported and violated the statutory cap on damages for employers with less than 500 employees.  The appellate court affirmed, recognizing that mental anguish damages require a plaintiff introduce “direct evidence of the nature, duration, and severity of her mental anguish, thus establishing that there was a substantial disruption of her daily routine.”  The requirement is a “high degree of mental pain and distress” and must be more than “mere worry, anxiety, vexation, embarrassment or anger.”  Direct evidence must be shown of this and the evidence shown must justify the amount awarded to be affirmed on appeal.  The court found Ms. Wright presented sufficient evidence at the trial since she experienced severe anxiety, clenched her jaw, held her breath, at times felt paralyzed and nauseous, and had nightmares of her attacker, O’Dell.  In addition, the appellate court found the amount was fair and reasonable since the jury considered the “disruption in her life and personal toll taken by the events surrounding the assault and 13.”  The court also found that the statutory cap provided in Texas Labor Code Section 21.2585 (capping damages based on the size of the employer) did not apply because the burden was on the defendant to plead and prove this defense, it was not an automatic cap.



East Tex. Med. Ctr. EMS v. Nieves Court of Appeals of Texas – Waco Division (2010)

Sexual harassment

Kathy Nieves sued her co-worker, Jeremy Cox, for sexual assault and sued her employer, East Texas Medical Center EMS (ETMC) for, among other things, 13.  Ms. Nieves was an EMT and Mr. Cox a paramedic who would work shifts with Ms. Nieves.  Ms. Nieves alleged sexual assault by Mr. Cox, arguing that he had subjected her to forced sexual contact at her apartment, and 13 during the work shift when Mr. Cox allegedly tried to hold her hand and have other unwanted contact while at work.  Texas recognizes that a person commits assault if he (1) intentionally, knowingly or recklessly cause bodily injury to another, (2) intentionally or knowingly threaten another with imminent bodily injury, or (3) intentionally or knowingly cause physical contact with another when he knows or should reasonably believe that the other will regard the contact as offensive or provocative.  The jury was instructed that “sexual assault is without the consent of the other person if (1) the actor compels the other person to submit or participate by the use of physical force or violence, (2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat, or (3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist.”  The jury trial handed down a verdict for Ms. Nieves on all claims and substantial damages for past and future physical pain and mental anguish.  Mr. Cox and ETMC both appealed the jury verdict, though ETMC ended up settling the claims against it.  The appellate court affirmed the trial court’s order, recognizing the important role of the jury in determining which “side of the story” is more credible and whom to believe.  In this type of case, a court must consider the “entire context, circumstances, conversations, writings, acts, and relationships between the parties” in determining whether to reverse the trial court.  Here, the appellate court found there was sufficient evidence for the trial court outcome and that the jury’s verdict was not unreasonable.



Spring v. Walthal, Sachse & Pipes, Inc Court of Appeals of Texas – San Antonio Division (2010)

Sexual harassment

An insurance agency, Walthall, Sachse & Pipes, Inc., brought suit against its former employee, Rosemary Spring, for opening a competing insurance agency in violation of her non-compete agreement.  Ms. Spring then brought several counterclaims against her former employer, including claims for 13 under the Texas Labor Code and Title VIII of the Civil Rights Act of 1964 and assault by her supervisor, Mr. Sachse.  She alleged that he pushed her head into his hip, thrust his buttocks into her pelvic area and grinded against her while laughing, and kissed her cheek and neck.  The trial court entered summary judgment against Ms. Spring on all counts and she appealed.  The appellate court held that Ms. Spring failed to plead a prima facie case for 13.  To plead 13 under a hostile work environment theory, a plaintiff must establish: (1) she is a member of a protected class, (2) she was the victim of uninvited 13, (3) the harassment was based on sex, and (4) the harassment affected a “term, condition, or privilege” of her employment.  The appellate court recognized that for the conduct to be actionable, she must show “the workplace was permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile or abusive working environment.”  The 13 must be sufficiently severe or pervasive such that to a reasonably objective third person the conduct created an “abusive working environment.”  Despite her allegations, the court looked at other similar cases where the harassment was even more severe and found that the conduct didn’t rise to “such severe or pervasive 13 that would create a hostile or abusive work environment as to affect a term, condition, or privilege of employment of a reasonable person in Spring’s position.”  However, the court did reverse the entry of summary judgment on the assault claim.  Conduct can be actionable as civil assault when it doesn’t rise to the level of discrimination under the Texas Labor Code and Title VII of the Civil Rights Act of 1964.  To allege assault, Ms. Spring must have shown Mr. Sachse intentionally or knowingly caused physical contact with her when he knew or should have known she would regard the contact as offensive or provocative.  Ms. Spring presented testimony of a co-worker who corroborated the contact in the elevator.  The other two incidents both involved physical contact.  Since reasonable minds could differ on whether the unsolicited physical contact was offensive or provocative, the court reversed on the assault claim.



Thomas v. Morris Supreme Court of West Virginia (2009)

Domestic and intimate partner violence

The Court reversed the lower court and remanded to family court for entry of a protective order on behalf of petitioner.  Petitioner and defendant had been in a twelve year relationship that ended.  A year later, defendant made efforts to renew the relationship and began harassing petitioner with numerous phone calls, voice mail messages to her home and work phone and by making unannounced appearances at her workplace and home.  Defendant arrived at her home and didn’t leave the premises for approximately two hours.  During that time, he banged a three foot metal bar against her trailer.  She felt trapped in her home.  He routinely carried a concealed weapon, his car was blocking her driveway so that she couldn’t leave in her car and she did not have telephone service.  The lower court found that the defendant did not commit domestic violence because defendant remained outside the home during this time and plaintiff was not physically restrained or confined within her home.  In reversing the lower court, the Supreme Court stated that plaintiff did not have to show proof “of some overt physical exertion on the part of the alleged offender in order to justify issuance of a protective order.”  It held that domestic violence defined in West Virginia Code 48-27-202(3) (2001) as “[c]reating fear of physical harm by harassment, psychological abuse or threatening acts” provides that fear of physical harm may be established with (1) proof of harassment, (2) proof of psychological abuse, or (3) proof of overt or threatening acts.” 



Clements v. Haskovec Court of Appeals of Texas – Corpus Cristi-Edinburg District (2008)

Domestic and intimate partner violence

Ira Clements lived with his elderly wife, Helen, who had been diagnosed with Alzheimer’s disease.  Their daughter, Linda, believed that her father was abusing her mother.  When Linda arrived at the family home with the intention of removing her mother from Ira’s home, Ira grabbed Linda by her hair and drew back his fist as though he would hit her.  As Helen tried to sneak out of the house, Ira grabbed her arm and pulled her back into the house.  When police officers arrived to investigate, Ira admitted to them that he grabbed Linda’s hair and stated that he “should have beat the hell out of [Linda]”; Linda was visibly nervous and shaken and reported to the officer that she feared for her life.  A “family violence” protective order issued against Ira behalf of Helen, Linda, and Linda’s husband pursuant to section 71.004 of the Texas Family Code.  Ira challenged the protective order on the grounds that (i) his conduct did not constitute “family violence” under the Code and (ii) there was no threat that family violence would likely occur in the future.  As to Ira’s first argument, the court held that Ira’s behavior fit the definition of “family violence” even though he never actually struck his wife or daughter because he put a family member “in fear of imminent physical harm, bodily injury, [or] assault.” The protective order was legally sufficient because Linda, her sister, and two police officers testified that Ira grabbed Linda’s hair and drew back his fist as if he would hit her, and, that Ira had repeatedly threatened Helen and made her fearful—thus, there was not a complete absence of vital fact and the evidence amounted to more than a “mere scintilla.”  As to Ira’s second argument, the court held that there was sufficient evidence for the finding that family violence would likely occur in the future.  In so finding, the court explicitly extended to family violence protective order cases the well-settled family law principle that evidence a person has engaged in abusive or neglectful conduct permits an inference that the person will continue this behavior in the future.



State v. Mechling Supreme Court of West Virginia (2006)

Domestic and intimate partner violence

Appellant argued that the court wrongly allowed the admission of victim’s statements regarding alleged battery by the defendant after defendant was convicted of domestic battery.  The victim made statements to others and did not appear in court or testify at trial; therefore, appellant had no opportunity to cross-examine the victim.  The court held that the victim’s statements were “improperly admitted in violation of the Confrontation Clause of the Sixth Amendment to the . . . Constitution and Article III, Section 14 of the West Virginia Constitution.”  The lower court had permitted the state to introduce the victim’s statements made to two sheriff’s deputies.  The West Virginia Supreme Court held that these statements were testimonial and should not have been admitted into evidence under the Confrontation Clause.  Similarly, the victim’s statements to a neighbor were improperly admitted. The Court, however, noted that domestic violence cases are unique because victims rarely call the police or use the criminal justice system, and often fail to “cooperate with prosecutors because they fear retaliation.”  The Court conceded that the Confrontation Clause, therefore, gives defendants a “windfall” because domestic violence victims are “notoriously susceptible to intimidation….”  The Court therefore emphasized the “doctrine of forfeiture” under which “an accused who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.”



Vongontard v. Tippit Court of Appeals of Texas – Houston District (2004)

Domestic and intimate partner violence

Gregory Vongontard and Misty Tippit broke up after two-and-a-half years of dating.  After the break-up, Gregory began threatening Misty by backing her into walls and corners, calling her names, throwing house keys at her as she attempted to return them to him, calling her numerous times and demanding to know where she was and who she was with, and threatening to “kill the guy” she was dating.  Misty also testified that Gregory had been physically violent on three occasions while they were dating (trying to hit her, pushing her against a wall, and pushing her to the ground).  A “dating violence” protective order issued against Gregory pursuant to the Texas Family Code, sections 71.001 to 87.004.  Gregory contended that the evidence was insufficient to show that he committed dating violence against Misty.  The court held that there was “more than a scintilla” of evidence of past violence since the evidence showed that Gregory had thrice pushed Misty, putting her in fear of imminent physical harm.  The court further held that the finding of future incidents of dating violence was likewise supported by sufficient evidence since Gregory had continued to threaten Misty post-break-up.



Kelley Co., Inc. v. Marquardt Wisconsin Supreme Court (1992)

Gender discrimination

Plaintiff Marquardt took eight weeks off for maternity leave and vacation.  During that time, her supervisor reorganized the division in which she worked and redefined her responsibilities.  He did not inform her of these changes.  Included in the reorganization was the elimination of plaintiff’s position as credit manager.  The position was divided into two positions, and Marquardt’s supervisory responsibilities decreased.  Her new position also involved 25% clerical work, whereas in her old position, she had no clerical work.  She received the same pay and benefits and had the same office as her prior position.  The Court found that the plaintiff in this case was not returned to her equivalent employment position after her return from maternity leave, which is required under the Family Medical Leave Act (FMLA).  It held that although an employer may reorganize a department while an employee is on leave, and give an employee new job duties, it must still give the employee equivalent job duties.  An equivalent employment position “means a position with equivalent compensation, benefits, working shift, hours of employment, job status, responsibility and authority.”  It also held that the plaintiff was properly awarded back pay and that plaintiff’s “interim earnings and amounts earnable with reasonable diligence should be considered when back pay is awarded under the FMLA.”



B.C. v. Rhodes Court of Appeals of Texas – Austin District (2003)

Domestic and intimate partner violence, Sexual violence and rape

T.L.R. was an eighth-grader at the Texas School for the Deaf and was dating B.C., also an eighth-grader at the School. After about two months of dating, B.C. approached T.L.R. and told her he wanted to have sex with her; she responded “no” twice and tried to get away from him by entering the girls’ restroom. B.C. followed her into the restroom. T.L.R. told him “I don’t want this” but B.C. took her clothes off, took his clothes off, told her to lie down on the floor, and penetrated her. T.L.R.’s father sought and obtained a protective order against B.C. on behalf of his daughter. B.C. argued that, because T.L.R. was a minor, the court was without jurisdiction to issue the protective order, claiming that only an adult member of a dating relationship is entitled to seek a protective order for dating violence. The court held that, under sections 71.004 and 82.002 of the Texas Family Code, any adult may apply for a family violence protective order to protect a child from “dating violence.” Moreover, the evidence was legally and factually sufficient to support the protective order: T.L.R. twice told B.C. “no” and did not help him undress her, and, B.C. sent a hostile message to her.



State v. Friedrich Wisconsin Supreme Court (1987)

Sexual violence and rape

Defendant was convicted of two counts of second-degree sexual assault for assaulting his 14-year old niece by marriage.  The Wisconsin Supreme Court held that the trial court correctly refused to allow a psychologist for the defense to testify that the defendant did not fit the psychological profile of incestuous sex offenders.  It held that testimony regarding defendant’s sex acts against minors was admissible.  It also held that testimony by an adult woman of defendant’s 13, although an error, was harmless error.  The court agreed that the testimony of the two individuals regarding sex acts against minors was admissible because it showed a “general scheme or motive to obtain sexual gratification from young girls” under Wisconsin evidentiary law.  It agreed that admitting the testimony of the woman who alleged 13 was error since it did not similarly show a general scheme, but that admission was harmless error since it was not possible that the error contributed to the defendant’s conviction.  The court noted that the trial court applies a two step process to determine whether evidence of other crimes is admissible, looking at whether it falls into one of the exceptions listed in the applicable statute, and second determining whether prejudice outweighs the probative value of the evidence.  Additionally, in sex crime cases involving children, the court noted that there is “greater latitude of proof as to other like occurrences.”



Weiand v. State Florida Supreme Court (1999)

Domestic and intimate partner violence

n the midst of an abusive marriage, Weiand shot her husband in self-defense. A jury found Weiand guilty of second-degree murder. Weiand appealed, claiming the court had erred by failing to instruct the jury that the duty to retreat did not apply where Weiand was attacked in her own home. Florida law provides that a person may use deadly force in self-defense if she reasonably believes it necessary to prevent imminent death or severe bodily harm. A person is not entitled to use such deadly force in self-defense, where she may safely retreat from harm. The duty to retreat does not apply when an attack takes place in one’s own home. In reversing the conviction, the Court clarified that Weiand was not required to retreat merely because her attacker was a co-occupant of the home. Specifically, the Court explained that increased understanding of domestic violence and its effect on women provided strong policy reasons for not imposing a duty to retreat from the home where deadly force is used against a co-occupant. In fact, the Court relied heavily on policy reasons regarding domestic violence victims in reaching its decision, explaining that a contrary decision would have a damaging effect on women, because they make up the majority of domestic violence victims. The Court reasoned that a duty to retreat jury instruction in such circumstances would perpetuate common myths concerning domestic violence victims by leaving a jury to think that if the abuse was so terrible, the woman should have left.


Raya & Haig Hair Salon v. Pennsylvania Human Relations Commission Commonwealth Court of Pennsylvania (2007)

Sexual harassment

Aida Armani worked as a hairstylist at Raya and Haig Hair Salon.  One of her customers, Kadyshes, began verbally and physically sexually harassing Aida by telling sexual jokes, commenting on her breasts, telling her she would be good in bed, and touching her rear and shoulders.  The Salon eventually hired Kadyshes as a business manager, and he became Aida’s direct supervisor.  Aida complained on at least six occasions but no action was taken to stop Kadyshes’s conduct.  Eventually Aida decided to open her own salon but before she could resign the Hair Salon learned of her plans and fired her.  The Commission found that the Salon unlawfully discriminated against her by subjecting her to a hostile work environment and constructively discharging her because of her sex.  The Salon challenged the decision on multiple grounds.  First, it argued that Aida was not discharged because of her sex but because she opened her own salon.  The court found that Aida established a prima facie claim for hostile work environment and that the evidence supported the conclusion that the Hair Salon violated the Pennsylvania Human Relations Act by allowing the existence of a hostile work environment.  In order to establish a prima facie claim for hostile work environment, a complainant must prove that she (1) suffered intentional discrimination because of her race or gender; (2) the harassment was severe or persuasive and regular; (3) the harassment detrimentally affected the complainant; (4) the harassment would detrimentally affect a reasonable person of the same protected class; and (5) the harasser was a supervisory employee or agent.  Constructive discharge occurs when an employer knowingly permits conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.  The fact that Aida stayed at her job did not preclude a finding of constructive discharge—she was the sole source of income for her family and she endured the treatment as long as she could take it.  Second, the Salon argued that it was improper to admit testimony about Aida’s work conditions that predated the time frame for which she alleged discrimination.  But the entire scope of a hostile work environment claim is permissible for assessing liability, including behavior alleged outside the statutory time period.  Third, the Salon challenged the determination that Aida attempted to mitigate her damages.  While a plaintiff has a duty to mitigate her damages, the burden of showing that she did not exercise reasonable diligence in seeking comparable employment lies with the employer.  Aida’s self-employment constituted mitigation because she took immediate steps to open her salon after she was fired.



Kite v. Kite Tennessee Supreme Court (1997)

Domestic and intimate partner violence

The court found that a trial court retains jurisdiction under Tenn. Code Ann. § 36 – 3 – 605 “after failing to conduct a hearing within ten (10) days of service of an ex parte protective order.”  The court found that the ten day limit was only a limit on the duration of the protective order and not a limit on jurisdiction.  Petitioner Kite alleged that defendant vandalized her home and automobile, called her employer and tried to get her fired, assaulted her repeatedly and regularly called and harassed her.  On these grounds, she requested an immediate ex parte order of protection from the trial court.  The trial court issued the order and set a hearing date that did not fall within ten days of service of the order.  The respondent filed a motion to dismiss, arguing that the court had jurisdiction only for ten days after service of the protective order.  The court looked to the legislative intent behind the statute, finding the words of the statute ambiguous.  It interpreted the ten-day requirement in a manner consistent with the policy goal of “providing enhanced protection from domestic abuse.”  It found that the ten-day requirement was not meant to limit a domestic violence victim’s judicial protection, but rather to limit “the potential for abuse by protecting respondents from possible ongoing frivolous or retaliatory ex parte protective orders.”


Sangamon County Sheriff’s Department v. Illinois Human Rights Commission Iliinois Supreme Court (2009)

Gender discrimination, Sexual harassment

Donna Feleccia was a records clerk with the county sheriff’s department. A coworker sent her a letter that appeared to be from the Illinois Department of Public Health informing her that she may have been exposed to a sexually transmitted disease. When Feliccia read the letter, she became very upset and started shaking. The letter was sent by Yanor, a coworker of Feliccia’s, as a practical joke. Feliccia’s coworkers heard about the letter and/or that Feliccia had a sexually transmitted disease and Feliccia missed work and sleep over the incident. Yanor was only lightly disciplined and advised not to have any contact with Feliccia. Prior to the letter, Feliccia had endured several incidents of sexual harassment by Yanor, including once incident when he grabbed her and asked for a kiss and another when he asked her to go to a motel with him. Feliccia filed a charge of sexual harassment and retaliation against the sheriff’s department and Yanor. The court held that, under section 2-102(D) of the Illinois Human Rights Act, the sheriff’s department (i.e. the employer) was strictly liable for Yanor’s (i.e. a supervisory employee) “hostile environment” sexual harassment regardless of whether it was aware of the harassment or took measures to correct the harassment. It was irrelevant that Yanor did not have direct supervisory authority over Feliccia’s working conditions; in other words, an employer’s liability is not limited based on the harasser’s relationship to the victim. In addition, the court held that a sexual harassment claim is timely as long as it is filed within 180 days of any act that is part of the hostile work environment and that a factfinder may consider all of the conduct that makes up the hostile environment claim. Feliccia’s sexual harassment claim was meritorious because Yanor’s forged letter and other harassing conduct caused Feliccia to miss work and sleep.



Metro N. Owners, LLC v. Thorpe Civil Court of the City of New York (2008)

Domestic and intimate partner violence, Property and inheritance rights

Ms. Thorpe was a victim of domestic violence.  Her landlord sought to evict her from her apartment, alleging nuisance in violation of the lease.  Ms. Thrope was the only person on the lease.  Her landlord’s nuisance claim was based on a fight that had occurred between Ms. Thorpe and her husband.  Ms. Thorpe moved for summary judgment based on the Violence Against Women and Department of Justice Reauthorization Act of 2005 (“VAWA 2005”).  Under VAWA 2005, “an incident of domestic violence will not be construed to violate a public-housing or government-assisted tenancy and shall not be good cause to terminate a public-housing or government-assisted tenancy if the tenant is the victim or threatened victim of domestic violence.”  Ms. Thorpe argued that because her landlord’s allegations of nuisance were based solely on acts of domestic violence committed against her, he could not terminate her government-assisted tenancy.  To prove that she was a victim of domestic violence, Ms. Thorpe provided three complaint reports that she had filed with the New York Police Department, along with a protective order she obtained against her husband from the New York City Criminal Court.  The court granted Ms. Thorpe’s motion for summary judgment because she was a victim of domestic violence, and as such, VAWA 2005 prohibited her landlord from terminating her lease.  The court reasoned that “VAWA’s goal is to prevent a landlord from penalizing a tenant for being a victim of domestic violence,” as Ms. Thorpe was here.



State v. Hickson Florida Supreme Court (1994)

Domestic and intimate partner violence

After stabbing her husband in self-defense, Hickson was charged with second-degree murder. As a defense, Hickson sought to admit evidence that she suffered from battered-spouse syndrome. The Court held that expert testimony concerning the battered-spouse syndrome was, in fact, admissible to the extent that Hickson’s expert could testify as to the syndrome generally and respond to hypothetical questions.



Commonwealth v. Eckrote Superior Court of Pennsylvania (2010)

Sexual violence and rape, Domestic and intimate partner violence

C.B. was arriving home from work when Joseph Eckrote leapt from his hiding place under the porch and “charged” at her.  He demanded that C.B. get in the car and forced her to do so after she refused.  Despite her yelling and struggling to get free, Eckrote was able to drive off with C.B. to a wooded area where he raped her after repeatedly telling her he was going to kill himself.  Eckroke appealed his convictions for assault, kidnapping, and rape.  The court upheld the convictions after finding sufficient evidence to support all three.  As for assault, Eckrote hid himself and attacked C.B. when she arrived home; he forcibly stuffed her into the car which resulted in bruising.  He had in the past threatened to kill C.B. after hitting her in the face.  His conduct created in C.B. fear of imminent seriously bodily injury, which, in fact, occurred.  As for the rape, the evidence supported the finding that Eckrote used psychological and physical force to compel C.B. to engage in intercourse with him.  Lastly, the evidence established kidnapping because Eckrote possessed the requisite intent to facilitate a felony—rape—when he forced C.B. into the car and transported her to the wooded area.


Roberson v. University of Tennessee Tennessee Supreme Court (1992)

Gender discrimination

Employee filed suit against her employer, the University of Tennessee, alleging sex discrimination under the Equal Pay Act and the Tennessee Human Rights Act (“THRA”).  She also alleged that her employer retaliated against her for filing an EEOC charge.  The Court of Appeals held that there was sufficient evidence to support the verdict that she had suffered discrimination and that her employer retaliated against her.  Plaintiff was an employee of the University’s Agricultural Extension Service since 1980.  She was eligible for a promotion in 1986, but was not promoted.  Her co-worker, however, who started in 1979, was promoted.  Plaintiff filed an EEOC charge.  She then brought an action for sex discrimination under the Equal Pay Act and THRA and alleged that defendant retaliated against her for filing the EEOC charge.  The Court found sufficient evidence to uphold the jury verdict granting plaintiff $13,600 on her discrimination claim, $50,000 on her retaliation claim, and $26,000 in attorney’s fees.  The Court noted evidence that plaintiff’s evaluation scores were adjusted downward after she signed off on them and before they were given to the Dean who made decisions regarding pay and promotion.  There was also evidence that complaints against her were taken more seriously than complaints against her peers.  One of her supervisors admitted that he stopped recommending her for promotions after she filed the EEOC charge, and that management took much more time and effort over small matters that related to the plaintiff.



Chambers v. Trettco, Inc. Michigan Supreme Court (2000)

Sexual harassment

A former employee brought an action against her employer under the Michigan Civil Rights Act.  She alleged that the employer was vicariously liable for 13 she suffered under her temporary supervisor.  The Michigan Supreme Court held that the Court of Appeals wrongly relied on federal law to claims brought under the Michigan Civil Rights Act regarding 13.  The Michigan Supreme Court described two types of 13 outlined under Michigan law (M.C.L. § 37.2103(i), one type, “quid pro quo harassment” occurs when submission to conduct is a term or condition to obtain employment, or is used as a factor in determining decisions regarding employment.  A hostile work environment occurs when an employee must show that the employee was subjected to unwelcome sexual conduct or communication on the basis of sex, and “was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment, and respondeat superior.  The court noted that while it has found vicarious liability in cases of quid pro quo harassment, it has not when the allegation is hostile work environment because there the supervisor “acts outside the scope of actual or apparent authority to hire, fire, discipline or promote.”  Instead, an employer will be vicariously liable if the employee shows that the employer failed to take prompt remedial action.  The court found no evidence of quid pro quo harassment; however, it did find that plaintiff’s testimony established a hostile work environment claim.  It remanded the case for a determination of whether the employer failed to take prompt remedial action in response to her hostile work environment claim.


State v. Malette North Carolina Supreme Court (1999)

Domestic and intimate partner violence

A court issued a warrant for the arrest of the defendant after he assaulted and injured Dorian Jones.  The magistrate judge did not authorize his release after he was arrested; he was held for a hearing before the District Court Judge.  The Judge set a secured bond of $10,000; a few days later, the State and defense counsel agreed to a lowered bond on the condition that the defendant would have no contact with the victim.  The District Court Judge signed the order, and he was released after posting bond.  About a week later, when his case was called, he moved to dismiss.  He argued prosecution of the case violated the Double Jeopardy Clause of the Constitution.  The court noted that in its consideration of statutes, it has held that “constitutional attacks on criminal statutes must be made on a case-by-case basis.”  It found that in this case, there was no unreasonable delay in holding a post-detention hearing for the defendant.  Therefore, it held that N.C.G.S. § 15A-534.1(b), which “sets forth conditions of bail and pretrial release for individuals accused of crimes of domestic violence” was constitutional as applied to the defendant.



Byrd v. Richardson-Greenshields Securities Florida Supreme Court (1989)

Sexual harassment

his case was brought by all female employee plaintiffs who claimed assault, sexual battery, intentional infliction of emotional distress and negligent hiring and retention of employees based on incidents in which male employees touched the women and made sexual advances on them in the work place. The trial court dismissed the plaintiffs’ complaint on the grounds that the workers’ compensation statute provided the exclusive remedy for these claims, and the Second District affirmed. The Supreme Court of Florida noted that in light of the overwhelming public policy against workplace 13 the Court could not say that the exclusivity rule of the workers’ compensation statute should shield an employer from all tort liability based on incidents of 13. The Court distinguished workers’ compensation, which addresses purely economic injuries, from 13 laws, which are concerned with an intangible injury to personal rights. It asserted that both of such injuries, to the extent they are separable, should be enforced separately. As such the Court held that whenever a claim is based on the Human Rights Act, Title VII of the Civil Rights Act of 1964, the Educational Equity Act, or any other statute prohibiting sexual discrimination or harassment, such claim cannot be barred by the exclusivity rule. Furthermore the court held that to the extent a claim alleges assault, intentional infliction of emotional distress arising from 13, or a battery similar to the one alleged in this case, the exclusivity rule will not apply to bar it.



Mescanti v. Mescanti Superior Court of Pennsylvania (2008)

Domestic and intimate partner violence, Sexual harassment

William and Elizabeth Mecanti were married with children.  William subjected Elizabeth to a pattern of harassment that lasted months.  The couple had been experiencing marital difficulties and Elizabeth had been sleeping on the couch.  She slept during the daytime because she worked the night shift.  William would come home from work and wake her up to argue and instigate fights.  He hacked into Elizabeth’s emails and looked through her pockets, cell phone logs, purses, and car.  He would follow her when she was out with friends.  He wrote her pages expressing his love, his fear of losing her, and his wish to stay together forever.  On one occasion William hid her house and car keys and locked her out of the house; when she was finally able to reenter the house, Elizabeth discovered that he had disconnected the telephone lines.  Elizabeth sought a protection from abuse (“PFA”) order after an incident when William wanted her to sleep with him in their bedroom, even though she had told him she wanted a divorce and they had been sleeping apart for three years.  When she refused to follow him to the bedroom, William told her “this is going to get ugly” and “this is just the tip of the iceberg.” Then he left the house.  Elizabeth went to sleep on the couch and woke up when William returned home and turned on the television.  She asked him to turn it off but he refused; after some argument he stormed out of the room after saying “you better not go to sleep.  You better not even close your eyes.”  Elizabeth heard a noise like the cocking of a gun (William kept guns in the house) so she called the police.  After this incident she sought the order of protection, which was granted.  She had not filed for divorce because she was afraid of what William might do.  On appeal, William argued that the PFA should not have issued because his threats were indirect and Elizabeth never testified to a past occasion when he threatened her as he did the night of the incident.  The court considered the pattern of harassment as a whole, including Elizabeth’s testimony that she had heard William cock guns in the past, and concluded that that his behavior established “abuse” under the statute.



Crawford v. Commonwealth Supreme Court of Virginia (2000)

Domestic and intimate partner violence

Sarah Crawford ended an abusive relationship with her husband but remained fearful of him and took various precautions to protect herself, including applying for an order of protection.  She signed an affidavit for the order, in which she recounted instances of past abuse, including threats to her life.  The following month, she was found murdered and evidence overwhelmingly pointed to her ex-husband.  Before the trial, Crawford made a motion to suppress the affidavit, arguing that the document was testimonial hearsay.  However, the trial court admitted the affidavit, holding that under the doctrine of “forfeiture by wrongdoing,” Crawford forfeited his right to confrontation with respect to statements by Sarah.  The trial court agreed and a redacted version of the affidavit was admitted.  A jury convicted Crawford of capital murder, abduction with intent to defile, rape, grand larceny, use of a firearm in the commission of a murder, and use of a firearm in the commission of abduction.  Crawford appealed, arguing, inter alia, that admission of the affidavit violated his rights under the Confrontation Clause of the Sixth Amendment of the U.S. Constitution.  The appellate court reversed every conviction except for the grand larceny conviction on grounds that Crawford’s Sixth Amendment rights were violated by the admission of the affidavit. The Virginia Supreme Court held that the admission of the affidavit of a victim in support of her application for a preliminary protective order against defendant was testimonial and therefore violated the defendant’s Sixth Amendment right of confrontation. It also held the trial court could not admit the affidavit under the “forfeiture by wrongdoing” doctrine because there was no evidence that the defendant killed the victim to prevent the victim from testifying. However, it found that the admission of the affidavit was harmless since the other evidence against Crawford was overwhelming.



Donajkowski v. Alpena Power Co. Supreme Court of Michigan (1999)

Gender discrimination

The Supreme Court held that under the Michigan Contribution statute, M.C.L. § 600.2925a, an employer sued for sex discrimination due to the terms of a collective bargaining agreement can seek contribution from the union that is party to the agreement.  Female employees brought a 4 claim against employer, Alpena Power Company, based on the collective bargaining agreement which created a new job classification for two female employees.  Previously, the two females had the same classification as their male counterparts.  Under this new classification, their pay was frozen.   Defendant filed a third party complaint seeking contribution from the union because defendant negotiated the agreement with the union.   The appellate court upheld the decision of the trial court allowing the third party complaint against the union, and the company and union appealed.  The Court found that defendant could seek contribution from the union; nothing in the language of the Michigan Civil Rights Act prohibited this.  Although generally, the statute was analogous to Title VII of federal law, the court noted that the state statute provided for a right to contribution, whereas federal law did not.  It also found that allowing for contribution did not oppose the legislative policy behind the statute, which among others, is that “discrimination in employment on the basis of sex is forbidden.”



Poole v. Copland, Inc. North Carolina Supreme Court (1998)

Sexual harassment

Plaintiff sued John Haynes for intentional and negligent infliction of emotional distress and Copland, Inc. for ratification of Haynes’ conduct, negligent retention and supervision of Haynes, and imputed liability.  The plaintiff alleged that Haynes intimidated and harassed her during the one year that she worked for Copland, Inc.  She asked him to stop and reported the incidents to her supervisor.  The supervisor reportedly told her that he was a “youngun” and to ignore him.  After one incident outside of work, she complained to her supervisors.  They had a meeting with the plaintiff and Haynes; Haynes was terminated, and the plaintiff was also terminated later that day.  The plaintiff alleged that the harassment caused her to cry, disturbed her sleep, and gave her nightmares.  She testified to a long history of sexual abuse at the hands of various individuals.  Experts explained that she had a dissociative disorder and the experience of harassment caused a flashback that triggered severe mental problems.  The trial court dismissed all claims except the claim “for intentional infliction of emotional distress against Haynes and the claims against Copland for ratification of Haynes’ conduct and negligent retention of Haynes.”  The jury awarded monetary damages, and the Court of Appeals ordered a new trial, citing an error in the charge.  The North Carolina Supreme Court considered the “thin skull” rule, which “provides that if the defendant’s misconduct amounts to a breach of duty to a person of ordinary susceptibility, he is liable for all damages suffered by the plaintiff notwithstanding the fact that these damages were unusually extensive because of the particular susceptibility of the plaintiff.”  Copland argued that there was error because the jury was permitted to “consider the thin skull damages when it determined the liability issue.”  Copland contends therefore that the jury was able to find liability “without finding that defendant Haynes’ action could have caused severe emotional distress in a person of ordinary susceptibility.”  The court disagreed, noting that a clinical psychologist testified that a person of “ordinary sensibilities” could have been affected in a manner similar to the plaintiff in this case.  It also held that there was no error in the jury instructions, and that the instructions correctly explained that the jury had to find that Haynes’ actions could have reasonably injured a person of normal sensibilities before it could hold him liable for all of the consequences of his actions.  The court also did not review the Court of Appeals finding that the thin skull rule applies to mental, not just physical injury, and that the fact that the jury received instructions during the damages, rather than liability phase of the case, was not error.



Burton v. State Florida 1st District Court of Appeal (2010)

Custodial violence, Gender discrimination

Dubreuil proceedings (state legal proceedings used to compel a pregnant woman to undergo medical confinement, treatment, and procedures against her wishes for the benefit of the unborn fetus) were initiated against Burton on a finding that she had ignored her physician’s recommendations, creating a high-risk pregnancy that may result in the death of her baby. A Florida circuit court ordered Burton to forced medial treatment and confinement in a hospital until delivery. Holding that such a determination was inappropriate, the Court reasoned that all individuals have a fundamental right to privacy. The Court explained that Dubreuil proceedings were insufficient to compel a pregnant woman to forcibly undergo medical detention and treatment for the benefit of her unborn child. To overcome Burton’s right to refuse medical intervention in her pregnancy, the State must show a compelling interest and a method for pursuing that interest that is narrowly tailored. The State had failed to do so.



Commonwealth v. Kerrigan Superior Court of Pennsylvania (2007)

Sexual violence and rape, Statutory rape or defilement

Daniel Kerrigan sexually abused A.R., the 7-year-old daughter of his live-in girlfriend, for 3 years.  The abuse was discovered when A.R. was diagnosed with genital warts when she was 10 years old.  The court held that the transmission of HPV and genital warts satisfies the serious bodily injury requirement of the crimes of Rape of Child (Serious Bodily Injury) and Involuntary Deviate Sexual Intercourse with a Child (Serious Bodily Injury) because HPV is a permanent disease, can lead to cervical cancer, and may be transmitted to A.R.’s future sexual partners or children.



Mitchem v. Counts Supreme Court of Virginia (2000)

Sexual harassment

Mitchem filed a motion for judgment against her former employer, Counts, alleging wrongful discharge in violation of the common law following her refusal to have a sexual relationship with him, as well as several instances of 13.  She argued that her discharge violated Virginia’s policy “that all persons . . . are entitled to pursue and maintain employment free of discrimination based upon gender.”  The trial court held that the amendments to the Virginia Human Rights Act “eliminated the VHRA as a source of public policy to support a common law cause of action for wrongful termination.  The trial court also held that Code §§ 18.2-57, -344 and -345 do not articulate public policies that support a common law action for wrongful termination.  The court dismissed Mitchem’s action with prejudice, and Mitchem appealed from this judgment. On appeal, Mitchem withdrew parts of her previous claim, arguing that she was discharged from employment due, not to gender but rather, to the fact that she would not consent to her employer’s demands that she violate sections of the Virginia code prohibiting fornication, lewd and lascivious cohabitation, and was discharged for failing to “consent to commission of a battery upon her person.” The court addressed whether Code §2.1-725(D) “bars a common law action for wrongful termination based on public policies not reflected in the VHRA, when the conduct alleged in the motion for judgment also violates a public policy reflected in the VHRA.”  That section states, “Causes of action based upon the public policies reflected in this chapter shall be exclusively limited to those actions, procedures and remedies, if any, afforded by applicable federal or state civil rights statutes or local ordinances.”  The court noted that the statute only abrogated common law causes of action for wrongful discharge based on public policies in the VHRA; common law causes of action for wrongful discharge based on public policies not in the VHRA are not prohibited by the section.  The Court upheld the trial court’s dismissal of plaintiff’s wrongful discharge claim based on the public policy of “refusing to consent to commission of battery upon her person” – since if she had consented, there would have been no battery.  However, it reversed the trial court’s holding as to wrongful termination based on public policy in Code §§ 18.2-344 and -345, which prohibit fornication, and lewd and lascivious behavior respectively.



Radtke v. Everett Michigan Supreme Court (1993)

Sexual harassment

Plaintiff alleged that defendant sexually harassed her during a break from work.  The Court held that “a hostile work environment claim is actionable when the work environment is so tainted that, in the totality of the circumstances, a reasonable person in the plaintiff’s position would have perceived the conduct at issue as substantially interfering with employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment.”  The court found that, although generally, more than one incident of 13 is needed for a hostile work environment claim, a single incident of 13 may be sufficient to establish a hostile work environment claim if the harassment is perpetrated by a supervisor in a close working environment.   The court also held that in determining whether a hostile work environment exists, the use of the reasonable person standard was acceptable; there was no need for the court to assess based on a “reasonable woman” standard.


Elrod v. Elrod North Carolina Court of Appeals (2008)

Domestic and intimate partner violence

Plaintiff and Defendant were married in 1998 but entered into a separation agreement in 2007.  Plaintiff and Defendant were living together.  They were discussing work that needed to be done around the house when defendant husband requested that the wife look at the door sweep.  The wife bent down to look and subsequently could not recall anything that took place until she woke up around 3:00 am and found herself in bed with a “terrible headache” and extreme nausea.  Defendant told her that she had had a seizure and had hit her head.  She went to the hospital.  The doctor found that her injuries were life-threatening and consistent with domestic violence, not with a seizure.  Her family members testified that at the hospital defendant acted nervous.  When her son insinuated to defendant that defendant caused the injuries, defendant responded “What man would walk away from three million dollars?”  Three days later plaintiff filed a complaint and motion for a domestic violence protective order.  The trial court entered the protective order, finding that defendant caused the plaintiff’s severe injuries.  Defendant appealed, arguing that the finding was “not supported by competent evidence” and “the findings did not support the conclusion that domestic violence had occurred.”  The appellate court noted that in North Carolina, domestic violence is “the commission of one or more of the following acts upon an aggrieved party or upon a minor child residing with or in the custody of the aggrieved party by a person with whom the aggrieved party has or has had a personal relationship, but does not include acts of self-defense: (1) Attempting to cause bodily injury, or intentionally causing bodily injury.”  The court reviewed the evidence and found that it supported the trial court’s finding – the defendant’s testimony was “not plausible.”  



Blizzard v. Appliance Direct, Inc. Florida 5th District Court of Appeal (2009)

Sexual harassment

Blizzard sued her employer, Appliance Direct, for damages for 13 and maintenance of a hostile work environment along with back pay and damages for retaliation based on claims that, among other things, her supervisor was constantly talking about his penis including graphic descriptions of its size, and his sexual prowess, history, successes and aspirations. Blizzard did not allege that her supervisor’s comments were directed to her. However, she alleged that his comments were pervasive and that the female employees who were receptive to his “management style” received favors and preferences that Blizzard did not. Blizzard based her 13 claim against Appliance Direct on her supervisor’s “creation of a hostile work environment caused by 13 that is sufficiently severe or pervasive to alter the terms and conditions of work.” To establish a hostile work environment 13 claim based on harassment by a supervisor Ms. Blizzard was required to show: (1) that she is a member of a protected group; (2) that she was subjected to unwelcome 13, (3) that the harassment was based on the sex of the employee, (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) that there is a basis for holding the employer liable. At particular issue in this case was element 5. The Court held with respect to element 5 that Blizzard could maintain her 13 claim against her employer based on her supervisor’s creation of a hostile work environment even though her supervisor’s actions and remarks were not specifically targeted to her.



Karch v. Karch Superior Court of Pennsylvania (2005)

Domestic and intimate partner violence

Dinzel and Christine Karch were married with three children.  Christine sought and was granted a protection from abuse (“PFA”) order for an incident in March wherein Dinzel placed his hands around her neck and threatened to “snap” it.  Then in May, during an argument about getting divorced and child custody, Dinzel put his hands on his wife’s forehead, made a motion as if he was firing a gun, and said “there is your future.”  This action made Christine’s head sore as if she had a brush burn.  Dinzel argued that the court should not have credited Christine’s testimony about the injury inflicted upon her by him because she did not seek medical treatment for her injury.  But neither the PFA Act nor the body of case law interpreting it requires that there be medical evidence or that the wife seek medical treatment for an injury in order for her testimony to be found credible.  And in any event, verbal threats are sufficient to support the grant of a PFA; actual physical injury is not a prerequisite.  Dinzel next argued that the lack of a police report filed cast doubts on Christine’s credibility because it demonstrated that the police did not believe that she had been abused and that the lack of police compliance precluded the issue of a PFA as a matter of law.  The court held that it is also not required that a police report be filed in order to obtain a PFA and wished to make it “abundantly clear” that it will not infer that the failure of the police to act on a report of domestic violence means that the victim is not credible.



Middlekauf v. Allstate Ins. Co. Supreme Court of Virginia (1994)

Sexual harassment

A former employee brought an action against supervisor and employer for intentional infliction of emotional distress due to harassment. She alleged that her supervisor intentionally sought to humiliate her in front of her co-workers and made harassing, sexist, and belittling comments.  Although she complained to her manager and other supervisors, they failed to intervene.  The Defendant argued that her claims were barred by the exclusivity provision (Code § 65.2-307) of the Virginia Workers’ Compensation Act.  The court held that her allegations of gradually incurring severe emotional distress due to harassment did not amount to “injury by accident” under the Workers’ Compensation Act; therefore the action against the employer was not barred by the exclusivity provision of the Act.



Ruffin Hotel Corp. v. Gasper Maryland Supreme Court (2011)

Sexual harassment

Respondent sought damages from petitioner and Irman Ahmed, who terminated Respondent’s employment.  Respondent brought, inter alia, claims of negligent hiring and retention against Ruffin Corp. and intentional infliction of emotional distress by Ahmed; employment discrimination and 13 by Ruffin and retaliation by Ruffin.  Gasper alleged that Ruffin hotel hired Ahmed, despite its knowledge that a number of employees had complained of his abusive behavior, behavior that included 13.  She also alleged that Ahmed refused to intervene when she was harassed by another employee and that he fired her after she complained of the harassment.  The court held that petitioner’s claim for negligent hiring and retention, due to her allegation that Ruffin hired an individual against whom allegations of 13 had been made, was not preempted by Title VII, the Maryland Human Relations Act, a county code provision prohibiting retaliation for complaining of 13 or the Maryland Workers’ Compensation Act.  It also found that the rule prohibiting introduction of evidence of other crimes was only applicable in criminal, not civil cases; however, Gasper could not introduce evidence of harassment by Ahmed occurring prior to Ahmed’s rehire because her current allegation was against another employee.



Gersch v. Fantasia North Carolina Court of Appeals (2007)

Domestic and intimate partner violence

Plaintiff and defendant were engaged and had one child.  The trial court entered a protective order due to plaintiff’s allegation that defendant hit her during a visitation exchange.  Plaintiff had a visitation exchange of infant son with defendant at plaintiff’s parents’ house.  Plaintiff’s father carried their infant son towards his house.  Defendant allegedly punched and kicked plaintiff’s father.  When plaintiff tried to pull him away, he threw her into the railing.  The court found that the trial court’s finding was supported by competent evidence, and was not persuaded by defendant’s “assertion that the trial court improperly shifted the burden of proof onto defendant in determining that defendant committed an act of domestic violence.”  Because the trial court found that defendant did not “rebut plaintiff’s testimony that she received bruises on her left side as the result of being slung into the railing, . . . the trial court believed Ms. Gersch.” 



Speedway Superamerica, LLC v. Dupont Florida 5th District Court of Appeal (2006)

Sexual harassment

Dupont, employed by Speedway convenience stores, sued her employer alleging a hostile work environment and 13, in violation of Florida’s Civil Rights Act. Dupont’s complaint stemmed from her interactions with a coworker, Coryell, who shared Dupont’s midday shift. Dupont had for months complained to her superiors that Coryell acted inappropriately with her, both violently and sexually. For instance, Dupont complained that Coryell had inappropriately grabbed her, made sexual comments concerning female customers, and humiliated her. Speedway, at the time, had a written 13 policy, yet no action was taken. Speedway continued to place Dupont and Coryell together on the same shift. The Court found Dupont’s claim viable, noting that Coryell’s conduct – even if not entirely sexual in nature – constituted 13 where motivated by a hostility toward women because of their gender. The Court went on to describe Florida’s policy against 13 in the workplace as strong, noting that courts should liberally construe section 760.10, Florida Statutes. Finally, the Court found an award of punitive damages appropriate, even where the jury had not found Speedway’s conduct willful, because Coryell’s conduct was clearly willful and Speedway had been at the very least negligent in failing to respond to Dupont’s complaints.



Hoy v. Angelone Superior Court of Pennsylvania (1997)

Sexual harassment

Louise Hoy worked at Shop-Rite as a meat-wrapper.  During her tenure there, Dominick Angelone repeatedly subjected her to sexual propositions, filthy language, off-color jokes, physical groping, and the posting of sexually suggestive pictures in the workplace.  Eventually Hoy took medical leave to receive psychiatric treatment; when she returned, she requested that the store manager move her to another department.  In order to recover under a hostile environment claim, the employee must prove that (1) she suffered intentional sex discrimination because of her sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the employee; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability.  Hoy established the first four elements but Shop-Rite argued that it could not be liable under the Pennsylvania Human Relations Act for Angelone’s conduct because it did not know nor had reason to know of the existence of a sexually hostile environment, and it took remedial action.  A plaintiff may establish an employer’s knowledge by showing (i) that she complained to higher management or (ii) that the harassment was so pervasive that the employer will be charged with constructive knowledge.  The court upheld the jury’s finding that the store manager knew or should have been aware of the conduct before Hoy requested transfer out of the meat department and failed to take remedial action; indeed, the conduct was so pervasive that several of Hoy’s coworkers knew of the abuse.  Thus, Shop-Rite was liable for Angelone’s conduct because the manager failed to take remedial action despite this knowledge.


Roth v. DeFeliceCare, Inc. Supreme Court of West Virginia (2010)

Sexual harassment

Plaintiff brought a hostile work environment claim, among others.  She witnessed her supervisor and another employee in a compromising position.  Her supervisor threatened her with the loss of employment and her license if she shared what she had witnessed.  She promised to remain silent and shortly thereafter went on vacation.  When she returned, her supervisor fired her, stating that he did not like the way she dressed or styled her hair.  Plaintiff was an at-will employee at the time of termination.  Plaintiff alleged that she “was subjected to improper and sexually explicit conduct by her superiors … thereby creating a hostile and abusive environment in violation of the West Virginia Human Rights Act.”  To state a claim for 13 under the West Virginia Human Rights Act, a plaintiff must prove “(1) the subject conduct was unwelcome; (2) it was based on the sex of the plaintiff; (3) it was sufficiently severe or pervasive to alter the … [plaintiff’s] conditions of employment and create an abusive work environment, and (4) it was imputable on some factual basis to the employer.”  The Court also held that “an employee may state a claim for hostile environment 13 if unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature have the purpose or effect of unreasonably interfering with an individual’s work performance or creates an intimidating, hostile, or offensive working environment.”  The Court held that plaintiff sufficiently pled a cause of action for hostile workplace and overturned the lower court’s grant of a motion to dismiss.



Aleem v. Aleem Maryland Supreme Court (2008)

Divorce and dissolution of marriage, Gender discrimination

Court held that divorce obtained by husband under Islamic religious and secular Pakistani law would not be recognized and afforded comity in Maryland.  Petitioner argued that because he performed “talaq,” (which under Islamic law, allows a husband to divorce his wife by stating “I divorce thee” three times) the Circuit Court for Montgomery County lacked jurisdiction “to litigate the division of the parties’ marital property.”  “The trial court found that the marriage contract entered into on the day of the parties’ marriage in Pakistan specifically did not provide for the division of marital property and thus, for that reason alone, the agreement did not prohibit the Circuit Court for Montgomery County from dividing the parties’ marital property under Maryland law.”  The Court of Special Appeals agreed and stated, “[t]hus, the Pakistani marriage contract in the instant matter is not to be equated with a premarital or post-marital agreement that validly relinquished, under Maryland law, rights in marital property.”  It explained that the default under Pakistan law is that the wife does not have rights to marital property, while under Maryland law she does.  Applying Pakistani law, according to the court, would violate Maryland public policy.  The court also noted that a “procedure that permits a man (and him only unless he agrees otherwise) to evade a divorce action begun in this State by rushing to the embassy of a country recognizing talaq and, without prior notice to the wife . . . summarily terminate the marriage and deprive his wife of marital property, confers insufficient due process to his wife.  Accordingly, for this additional reason the courts of Maryland shall not recognize the talaq divorce performed here.”



State v. Goff Supreme Court of Ohio (2010)

Domestic and intimate partner violence

Defendant Megan Goff shot and killed her estranged husband.   The State moved the trial court to order Goff to submit to a psychological examination, knowing that she planned to use battered women’s theory in her defense.  The court held that a defendant’s right against self-incrimination is not violated when the court orders the defendant to submit to a psychiatric evaluation by a state expert in response to the defendant’s assertion of battered women’s syndrome.  However, to preserve the right, the examination must be limited to information regarding battered women’s syndrome and “whether the defendant’s actions were affected by the syndrome.”  In this case, the examination and testimony were not so limited; therefore, the court held that the defendant’s right against self-incrimination was violated.  One of the State’s experts testified about inconsistencies in the defendant’s statements.



Moniz v. Reitano Enterprises, Inc. Florida 4th District Court of Appeal (1998)

Sexual harassment

Moniz was injured in an attack by her supervisor at her place of employment during which her supervisor bit her. Moniz was paid $20,000 as a worker’s compensation settlement. This amount was comprised of $12,000 for past and future monetary compensation benefits including any re-employment services and assessment benefits and $8,000 for past and future medical benefits. Attorneys’ fees and doctors’ bills were also paid, including bills for her treatment for psychological injuries. While the worker’s compensation claim was pending, Moniz filed a seven count complaint against her employer, Reitano and her supervisor for 13, retaliation, intentional infliction of emotional distress, assault, battery and false imprisonment, based in part on the “biting” incident and in part on allegations that her supervisor continually made sexual suggestions and threatened to fire her if she did not “do the right thing”. She claimed he touched her breasts, grabbed her buttocks, pulled her underwear and rubbed up against her in an aroused condition. The trial court granted summary judgment against Moniz based on its belief that the election of remedies doctrine barred Moniz from seeking relief in tort and under Title VII for 13 because of her worker’s compensation settlement. This Court held that to the extent Moniz’s claims can be separated from the biting incident on which the worker’s compensation settlement was based, the election of remedies doctrine will not bar such claims. As such, Moniz’s claims for 13 and intentional infliction of emotional distress, which were based on a much broader course of conduct than the battery by her supervisor in the biting incident, were not barred by the election of remedies doctrine.



State v. Tennant South Carolina Supreme Court (2010)

Domestic and intimate partner violence, Sexual violence and rape

Defendant was married to victim for nine years.  After they divorced, defendant allegedly repeatedly called her, and later got into her vehicle and strangled her until she lost consciousness.  When she regained consciousness, she realized that she was in the trunk of her car.  He stopped the car after she kicked the speakers out.  He threatened her and then demanded that they have sex.  She stated she would have sex with him, testifying that she feared he would hurt her.  The next morning she flagged down a police officer who arrested the defendant.  When police arrested the defendant he had overdosed on his psychotic medication and police found a suicide note.  Defendant, before trial, stated an offer of proof in which he sought to introduce evidence of victim’s sexual conduct, including, inter alia, their prior sexual history, allegations of how they met and allegations of her promiscuity and adultery.  The court affirmed that the evidence was not admissible under South Carolina’s Rape Shield Statute, which states:  “The admission of a victim’s sexual conduct is limited by statute: (1) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct is not admissible in prosecutions under Sections 16-3-615 and 16-3-652 to 16-3-656; however, evidence of the victim’s sexual conduct with the defendant or evidence of specific instances of sexual activity with persons other than the defendant introduced to show source or origin of semen, pregnancy, or disease about which evidence has been introduced previously at trial is admissible if the judge finds that such evidence is relevant to a material fact and issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.  Evidence of specific instances of sexual activity which would constitute adultery and would be admissible under rules of evidence to impeach the credibility of the witness may not be excluded.”



State v. Harden Supreme Court of West Virginia (2009)

Domestic and intimate partner violence

Defendant shot and killed husband after a night of “domestic terror.”  Defendant claimed she acted in self-defense; however, the state argued that she unreasonably used deadly force and that she could have retreated from the danger.  The court held that the defendant was entitled to a self-defense jury instruction and that the evidence supported her claim of self-defense.  To claim self defense, the court explained, the defendant’s belief that she was at “imminent risk of bodily injury or death” must be “subjectively reasonable,” i.e., the defendant believed that his or her actions were necessary to “prevent death or serious bodily injury.”  In addition, defendant’s belief must be “objectively reasonable,” i.e., another similarly situated person could have “reasonably formed the same belief.”  The court held that even if the defendant could not claim self-defense, evidence of abuse can be used to negate elements of the charged offense.  The court also held that there is no duty to retreat (leave the home) if attacked by a co-occupant of a home.  After evaluating the extensive evidence the defendant presented of the abuse that occurred prior to the killing of her husband, the court concluded that she did have a reasonable basis to believe that she was at risk of death or serious bodily injury and that the danger was imminent. 



Suter v. Stuckey Maryland Supreme Court (2007)

Domestic and intimate partner violence

Suter filed a petition for a temporary protective order, alleging boyfriend committed various violent acts against her.  The court issued the temporary protective order and entered a final protective order five days later by consent.  Stuckey, Suter’s boyfriend, later filed an appeal of the final protective order.  Suter filed a motion to dismiss the appeal, arguing the appeal was time-barred, and Stuckey was estopped from appealing a consent judgment.  The court held that the appeal was moot because the protective order had expired; however, it concluded that the issue was one capable of repetition yet evading review, and implicated an important public policy; it therefore examined the merits of the case.  The Court held that boyfriend did not have the right to appeal a protective order entered by consent.



Ohio Government Risk Management Plan v. Harrison Supreme Court of Ohio (2007)

Sexual harassment

The Court held that alleged 13 by police chief was not outside the scope of his employment; therefore the insurer owed the police chief a duty to defend him in a lawsuit brought by a former employee alleging 13.  Plaintiff alleged that defendant used the department’s computer system to distribute pornographic images and emails and also used hidden electronic devices to record female employees in the restroom.  Plaintiff filed a five-count complaint that included claims for hostile work environment due to her gender and a sex-discrimination claim.  She sued him in his individual and official capacity, arguing that he acted in his official capacity as chief of police.  At the time, the Ohio Government Risk Management Plan provided liability insurance coverage to Harrison, the police chief.  It filed a declaratory judgment action seeking a declaration that it had no duty to provide coverage or a defense to Harrison. The court held that whether acts fall within the scope of employment will vary from case to case; however, the court would not find that 13 always lies outside the scope of employment.  Whether or not acts occurred within the scope of employment “turns on the fact-finder’s perception of whether the supervisor acted, or believed himself to have acted, at least in part, in his employer’s interests.”  The Court also examined the language of the policy and held that the insurer had a duty to defend.



O’Loughlin v Pinchback Florida 1st District Court of Appeal (1991)

Gender discrimination

After disclosing her pregnancy to her employers, Pinchback, a correctional officer at a county jail, was terminated. As a reason for the termination, Sheriff O’Loughlin explained that while pregnant, Pinchback could not perform the duties of a correctional officer and was placing her baby’s health in danger. Pinchback petitioned Florida’s Human Rights Commission for relief, resulting in a finding that O’Loughlin had wrongfully terminated Pinchback in violation of Florida’s Human Rights Act. The Court upheld the determination, explaining that O’Loughlin’s actions were indefensible as there was no evidence that Pinchback (or any pregnant employee) could not perform her work as before. As a result, the Court found Pinchback entitled to back pay.



Moore v. Moore South Carolina Supreme Court (2008)

Domestic and intimate partner violence

The court affirmed an order of protection in favor of the wife.  The husband had challenged the order and statutory authority on due process and equal protection grounds.  Police had arrested and charged the husband with criminal domestic violence after the couple’s son had called police and reported that the husband had become “physically abusive with him and his mother and threatened them with a weapon.”   The husband was released the next day on bond and ordered to not go near the family’s residence.  Despite the order, he drove by and entered the yard, removing several items.  The wife “filed an action pursuant to Section 20-4-50 of the ‘Protection from Domestic Abuse Act’ requesting an emergency hearing and an Order of Protection against Husband.”  At the hearing both the husband and wife appeared without counsel.  The judge asked the wife if she wanted counsel; she said she wanted to proceed with the hearing without counsel.  The husband also requested counsel; however, the judge denied the request, stating that the wife wanted to go forward.  The judge concluded that the husband had abused both wife and son, and issued an order of protection which, inter alia, “restrained Husband from committing any further abuse or from having contact with Wife and the parties’ two minor children; awarded Wife temporary custody of the parties’ children; ordered husband to pay temporary child and spousal support; and awarded Wife temporary possession of the marital home.”  The husband later, with counsel, filed a motion for reconsideration, arguing that the issuance of the order violated due process because he didn’t have sufficient notice and opportunity to answer with the assistance of counsel.  The court held that the husband did receive procedural due process prior to the issuance of the Order of Protection.  However, it also found that an order of protection issued pursuant to an emergency hearing is temporary, and another hearing should be conducted by the family court at a later date.  Findings of fact are definitive and therefore improper under the statute without the assistance of counsel.  Applying that finding to this case, the court held that the finding of physical abuse was not a final adjudication and therefore could not be used against the husband in future litigation.



In re Romano New York Court of Appeals (1999)

Domestic and intimate partner violence

The Court of Appeals, New York’s highest court, removed Romano, a town and village justice, from office, in part, because of his insensitivity to victims of domestic violence.  The justice engaged in egregious misconduct in his courtroom, at an arraignment, where a defendant was charged with violating a protection order and assaulting his wife.  After reviewing the charges, Romano stated, from the bench, “What’s wrong with that?  You’ve got to keep them in line once in a while.”  The Court of Appeals concluded that the evidence in the record supported the Commission’s findings that Romano seriously abused his judicial authority.  The court reasoned that Romano’s misconduct demonstrated a pattern of serious disregard for the standards of judicial conduct that “exist to maintain respect toward everyone who appears in a court.”



Kroh v. Continental General Tire, Inc. Supreme Court of Ohio (2001)

Gender discrimination

Plaintiff Kroh filed a suit against Continental General Tire, Inc., claiming that it discriminated against her based on her gender, in violation of R.C. 4112.02 and 4112.99.  After trial, the jury found for Kroh, awarding her $ 708,000 in damages.  The appellate court reversed, finding that Kroh did not demonstrate that she was treated differently from similarly situated male employees.   Kroh was promoted to cash manager after working for approximately twenty years for General Tire.  Kroh was the only cash manager so she couldn’t compare herself to anyone with exactly the same duties.  However, Ohio Supreme Court found that the male managers to whom she compared herself reported to the same boss, had similar titles, were at a similar level on the company’s organizational chart and had the same salary classification.”  The court concluded that Kroh was similarly situated to non-protected employees in all relevant respects and concluded that therefore, there was credible evidence based on which reasonable minds could reach different conclusions, and thus did not reverse a jury verdict.



Frazier v. Badger South Carolina Supreme Court (2004)

Sexual harassment

Frazier, a middle school teacher, alleged that Badger, the assistant principal, sexually harassed her.  When she rejected his advances, he allegedly had her classroom moved to the basement.  The jury found that Badger’s conduct met the elements of the tort of outrage and the Court of Appeals affirmed.  The South Carolina Supreme Court, in assessing the new issues brought before it, held that Badger did not get to claim governmental immunity.  Under South Carolina law, governmental immunity would be provided to a governmental employee who commits a tort while acting in the scope of his official duty.  The court held that sexual advances do not fall within the scope of official duties.  It looked at the phrase “scope of employment,” used in insurance policies, and found that it had previously concluded that 13 is not within the “scope of employment.”  Since “scope of official duties” is a phrase construed more narrowly than “scope of employment,” it concluded that 13 could not fall under the “scope of official duties.”  The court found that Frazier’s testimony that Badger began making sexual advances towards her years before, when he was her high school basketball coach, did not warrant a mistrial.  The court also held that Frazier did not have to file a 13 claim; it was permissible to file an outrage claim.  The court rejected Badger’s argument that the Court of Appeals erred in upholding the jury’s punitive damage award, noting that “a defendant’s inability to pay does not prohibit a jury from awarding punitive damages.” 



Vizzi v. State Florida 3rd District Court of Appeal (1986)

Sexual violence and rape

Carl Vizzi, an assistant public defender, in defending his client who was charged with sexual battery, kidnapping and false imprisonment, referred to his client’s victim as “a woman who’s trash, gutter filth.” After being admonished by the court Mr. Vizzi proceeded to call the victim “a whore, a two-bit whore.” The prosecutor petitioned the court to instruct Mr. Vizzi not to call the victim a prostitute again and the trial court ruled, based on Florida’s Rape Victim Shield Statutes, that Vizzi was not permitted to attack the character of the victim by delving into her prior sexual behavior (other than prior sexual activity that the victim had with the defendant) or by calling the victim a prostitute, whore or words of similar import. Vizzi later called the victim an “exhibitionist” and questioned the victim with respect to her “perform[ing] tricks with customers.” The circuit court held Vizzi in contempt for violating its prior order and sentenced him to 5 days of jail time. The District Court of Appeal upheld the contempt order based on Vizzi’s failure to comply with the circuit court’s ruling.


People v. Liberta New York Court of Appeals (1984)

Sexual violence and rape

The defendant's wife filed a criminal complaint against him, claiming that he raped her. He moved to dismiss the charge because, under New York Penal Law section 130.35 (“Section 130.35”), which contained a marital exemption, a husband could not be convicted of raping his wife.  The trial court granted Defendant’s motion and dismissed the indictment based on the marital exemption.  The Appellate Division reversed the decision of the trial court and remanded the case for trial.  The Court of Appeals affirmed the judgment of the Appellate Division, finding Section 130.35 was unconstitutional due to the marital exemption provision.  “Where a statute draws a distinction based on marital status, the classification must be reasonable and must be based upon ‘some ground of difference that rationally explains the different treatment.’”  The court found that there was no rational basis for distinguishing between marital rape and non-marital rape and thus declared the marital exemption unconstitutional.  The court reasoned that the marital rape exemption denies married women equal protection of the laws guaranteed by the New York and United States Constitutions.  Further, the court stated, “Rape is not simply a sexual act to which one party does not consent.  Rather, it is a degrading, violent act which violates the bodily integrity of the victim and frequently causes severe, long-lasting physical and psychic harm.  To ever imply consent to such an act is irrational and absurd.  A marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity.  A married woman has the same right to control her own body as does an unmarried woman.” 



Felton v. Felton Supreme Court of Ohio (1997)

Domestic and intimate partner violence

Trial court issued a protective order based on testimony of violent episodes of appellant’s husband.  Because of these episodes, she feared that he would kill her.  She filed criminal charges of domestic violence against him, and the county court issued a temporary protection order.  The court held that the testimony regarding the former husband’s violent tendencies warranted the issuance of a protective order, and the fact that the marriage dissolution decree already forbade them from harassing each other didn’t bar the issuance of the order.  It held that the preponderance of the evidence standard applied.



State v. Prince South Carolina Supreme Court (1999)

Domestic and intimate partner violence

Prince and his wife were married for two years.  After their divorce, his wife, Tabitha, moved into her own apartment with their son, Matthew.  Prince began visiting her occasionally without invitation or notice, under the pretext of wanting to see their son.  Despite a restraining order, Prince showed up at her apartment several times.  On one occasion, Prince slashed her tires and defaced her car.  Prince was later indicted for aggravated stalking and malicious property damage.  Prince’s counsel argued that damage to property “is not an act of violence under South Carolina Code section 16-3-1700(C) . . . sufficient to support a charge of aggravated stalking.”  The court, acknowledging that this was an issue of first impression, disagreed with Prince’s counsel, and concluded that an act of violence, for purposes of the statute, included an act of violence against property, not just against persons.  The court stated, “in our state, stalking can take many forms; it can be either a pattern of conduct causing fear of damage to one’s person, or a pattern of conduct causing fear of damage to one’s property.  If simple stalking can consist of fear of property damage, it logically follows that aggravated stalking can consist of actual property damage.”  It noted that requiring bodily injury in order to be found guilty of aggravated stalking does not promote the public policy of wanting the anti-stalking law to prevent bodily injury or death.



State v. Rider Florida 3rd District Court of Appeal (1984)

Domestic and intimate partner violence, Sexual violence and rape

Rider was charged with sexual battery on his wife. The trial court dismissed the charges, reasoning that under a common-law exception to rape, a court could not convict a husband for the rape of his wife. The Court of Appeal disagreed, finding no legal authority for the exception and noting that Florida had replaced the common-law crime of rape with the statutory crime of sexual battery. Accordingly, consent to marriage did not include consent to acts of violence. Thus, the Court reversed the dismissal.



Thoreson v. Penthouse Int’l, Ltd. Appelate Division, First Department (1992)

Sexual harassment

Ms. Thoreson brought an action against her employer to recover for 13 under New York Human Rights Law (“Executive Law § 290”).  Plaintiff worked at the men’s magazine, Penthouse, and was an aspiring actress and model.  The trial Justice found that Plaintiff was pressured into engaging in sexual activity with the company’s business associates.  Specifically, she alleged an eighteen-month liaison with a financial advisor.  Plaintiff claimed her compliance to engage in the above mentioned activities was an implicit condition of her employment, which was terminated when she refused to participate in a promotional tour in Japan because she was afraid of what she would be required to do while on tour.  The trial court found that Plaintiff had stated a sufficient cause of action for which she could recover.  The court stated, “Plaintiff’s testimony concerning this matter was contraverted only by Defendant’s blanket denial that the events took place.  I do not believe him.”  The Appellate Division affirmed the trial court’s holding.  Further, it provided that while Defendant’s “observation that Plaintiff willingly embarked upon a career which exploited her sexuality is entirely accurate, it does not preclude the subsequent withdrawal of consent to exploitation, nor does it necessarily imply consent to sexual encounters of the type complained of.”



Commonwealth v. Fiebiger Supreme Court of Pennsylvania (2002)

Sexual violence and rape

Marcia Jones was killed by Anthony James Fiebiger and his friend.  Fiebiger and his friend decided that they wanted to go to Grandview Park to molest and rape somebody.  They encountered Marcia and asked her if she wanted to go with them to the park to smoke marijuana.  Once in the park, Fiebiger choked Marcia until she fell to the ground; the two men removed her clothing while punching and kicking her.  Fiebiger attempted to have intercourse with Marcia but was unable to maintain an erection, so he abused her with a tree branch.  The court held that Fiebiger’s statement that he attempted to have intercourse with Marcia but was unable to was sufficient evidence for a jury to infer that he achieved some degree of penetration, which, however slight, is sufficient to fulfill that element of rape.  Thus, the evidence supported the finding of the aggravating factor that the murder was committed in perpetration of a felony.



Parker v. Warren County Util. Dist. Tennessee Supreme Court (2009)

Sexual harassment

Plaintiff Parker alleged that defendant Grissom, a general manager who hired her as a bookkeeper, sexually harassed her.  She reported the harassment to her immediate supervisor, Link.  Parker stated that she feared losing her job if she did anything, so asked that Link do nothing.  The harassment continued, and Link reported it to Vinson, a member of the Utility’s Board of Commissioners.  Vinson agreed that plaintiff would likely lose her job if she reported the harassment.  Plaintiff later discussed the issue with Vinson, who did not assure her that she would not lose her job.  Grissom voluntarily resigned in April of 1994 but was rehired in the fall, despite the fact that plaintiff notified the board of the alleged harassment.  The board rehired him, but also retained counsel to conduct an independent investigation of his alleged harassment. Plaintiff filed several claims; the remaining hostile work environment/13 claim before the Court was against the Utility District under the Tennessee Human Rights Act.  The Utility District filed a summary judgment motion, arguing that “it took prompt corrective action in response to plaintiff’s complaints and that the corrective action was ‘a complete defense’ to a claim for 13.”  An employer has an affirmative defense to a hostile work environment claim based on 13 by a supervisor if the employer can show: (1) that employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by employer or that employee unreasonably failed to otherwise avoid the harm.  The court held that Parker’s supervisor could be held vicariously liable for her hostile work environment 13 claim.  There was no evidence that the District exercised reasonable care to prevent the alleged harassment, and that there was no evidence of a written anti-discrimination policy given to employees to deal with the circumstances of the case.  It reversed the trial court’s grant of summary judgment to the employer, and modified a previous decision, Carr v. United Parcel Service, 955 S.W.2d 832, according to which a supervisor could be vicariously liable only for quid pro quo, and not hostile work environment 13 claims.  The court modified Carr to “reflect the recently articulated standard for supervisor harassment adopted by the United States Supreme Court.”



Garner v. State Commission on Ethics Florida 2nd District Court of Appeal (1983)

Sexual harassment

Complaints were filed with Florida Commission on Ethics against Garner alleging that he attempted to use his position as president of Hillsborough Community College to sexually harass or obtain sexual favors from various female personnel. Following a hearing on the complaints the Commission on Ethics suspended Garner from office for three months. Garner appealed based on Florida Statutes Section 112.313 which provides that “no public officer or employee of an agency shall corruptly use or attempt to use his official position … to secure a special privilege, benefit or exemption for himself or others …” The section defines “corruptly” as “done with a wrongful intent and for the purpose of obtaining ... any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties.” Garner claimed that this statute did not provide adequate notice that 13 was prohibited and that it was intended to cover only economic benefits. In addition, Garner claimed that there were no adverse job-related effects upon employees subject to his conduct. This Court held that since the charges against Garner included his obtaining sexual favors, Garner was “benefited” and that his actions were consistent with the definition of “corrupt” as being inconsistent with the performance of his official duties. Furthermore the Court indicated that it could find no legislative intent to restrict the reach of the statute to economic benefits and that there is no requirement in the statute that as a result of the public officer’s efforts to obtain a benefit from an employee that employee will necessarily be impacted in any particular way. As such, the Court upheld Garner’s suspension.



Reynolds v. Fraser Supreme Court, New York County (2004)

Domestic and intimate partner violence

Ms. Reynolds was fired from her job at the NYC Department of Correction (“Department”) for violating its sick leave policy. Ms. Reynolds was a victim of domestic violence. In 2002, she requested vacation time to find a home after leaving her abuser. When she did not find a home within her given vacation time, she requested more time off to continue searching for a place to live. As a result of her request, her employer put her on immediate sick leave and demanded that she provide them with an address. When Ms. Reynolds told them she was currently homeless, she was told she could not work at the Department without providing them with a current address. Faced with the threat of termination, even after she explained her homelessness, she gave her husband’s address. It was the Department’s policy to police sick leave abuse by sending monitors to a sick employee’s home for surprise visits. When a monitor appeared at Ms. Reynolds’s husband’s home to check in on her, she was not present. Ms. Reynolds was fired as a result. She brought suit against her employer for violating the law prohibiting employers from discriminating against victims of domestic violence. In 2001 New York enacted an amendment to the City’s Human Rights Law, also known as the Local Law I (the “Law”), to prevent employers from discriminating against victims of domestic violence. The stated purpose of this amendment was “to protect the economic viability of victims of domestic violence and to support their efforts to gain independence from their abusers by enabling victims of domestic violence to speak with their employers without fear of reprisal, about domestic violence incidents or about possible steps that will enhance their ability to perform their job without causing undue hardship.” The Supreme Court, New York County (a New York State trial court) found that the Department violated the Law when it did not make reasonable accommodations for Ms. Reynolds’s status as a homeless victim of domestic violence. The court reasoned, “the end result here, [Ms. Reynolds’s] loss of a job at the point when she was finally getting her living situation under control, is exactly the kind of fallout that Local Law 1 was enacted to prevent.”



Abankwah v. Immigration & Naturalization Serv. United States Court of Appeals for the Second Circuit (1999)

Harmful traditional practices

Ms. Abankwah, a native of Ghana, was a member of a tribe that punishes women who engage in premarital sex with female genital mutilation (“FGM”). While Ms. Abankwah was away from her tribe, she had a sexual relationship. Subsequently, she learned that she would be the next Queen Mother of her tribe, a position that requires a woman to remain a virgin until marriage. She knew this meant the tribe would discover she had engaged in premarital sex and she would be punished with FGM. Ms. Abankwah fled but her tribe came after her. She decided it was unsafe for her to remain in Ghana and purchased a falsified Ghanaian passport and U.S. visa and fled to the United States. Immigration authorities arrested Ms. Abankwah when she arrived in the United States and commenced deportation proceedings against her. Ms. Abankwah sought to remain in the United States by seeking asylum. To obtain asylum, she needed to establish, among other requirements, that she was unable or unwilling to return to her native country because of a “well-founded” fear of persecution, pursuant to section 208(b)(1) of the Immigration and Nationality Act, 8 U.S.C. section 1158(a). Ms. Abankwah explained that she feared returning to Ghana because, if she did, her tribe would perform FGM on her. The immigration court denied her petition for asylum because it concluded that her fear of FGM was not objectively reasonable. On appeal, however, the court found that Ms. Abankwah was a credible witness and her fear was objectively reasonable because it was “based on her knowledge of and experience with customs of her tribe.” As such, Ms. Abankwah was granted asylum and allowed to stay in the United States.



Doe v. Penzato United States District Court for the Northern District of California (2011)

Sexual violence and rape, Trafficking in persons

Plaintiff Jane Doe (“Doe”) filed a lawsuit under a pseudonym and alleged 23 causes of action including human trafficking, sexual battery, forced labor and involuntary servitude against Defendants Mr. and Mrs. Penzato. Mrs. Penzato had offered Doe $1,500 per month, free room and board, and transportation to the United States in exchange for child care and housekeeping services. Doe accepted the offer and moved to San Francisco, California. Doe alleged that during her employment Defendants physically assaulted her, sexually molested her, threatened her with cancellation of her visa, and abused or exploited her in various other ways. She eventually left the Penzatos’ household and moved to a transitional housing residence for female victims of violence. Doe filed a motion for a protective order and requested permission to proceed with the lawsuit under a pseudonym. Doe argued that this was necessary to avoid additional psychological trauma due to the sensitive and personal nature of her claims. Further, she argued that the use of a pseudonym would help maintain the safety and anonymity of her fellow transitional housing residents. Defendants argued that because they were publically accused of sexual abuse, human trafficking, and forced labor, Doe should also be publicly exposed. Defendants also argued that they would be prejudiced by the extra effort they would have to take to keep her identity a secret. The court granted Doe’s motion and allowed her to proceed under a pseudonym, holding that Doe’s need to remain anonymous outweighed Defendants’ arguments and the public’s interest in knowing her identity. The court noted the strong interest in protecting sexual assault victims’ identities—to encourage them to report the assaults without fear of being stigmatized as a sexual assault victim.



Ollier v. Sweetwater Union High School District United States District Court for the Southern District of California (2009)

Gender discrimination

Plaintiffs brought a class action lawsuit against Sweetwater Union School District (the “District”) and several individuals, alleging unequal participation opportunities for females at Castle Park High School (“CPHS”).  Plaintiffs argued that Defendants violated Title IX’s provision that prohibits excluding or discriminating against anyone on the basis of sex in educational programs or activities that receive federal financial assistance.  The court applied a three-part test to determine whether the District complied with Title IX which included: (1) substantially proportionate athletic opportunities for females; (2) continuing practice of program expansion for females; and (3) the accommodation of females’ interest and abilities.  First, the court held that Defendants failed to provide females with substantially proportionate opportunities to participate in athletics, as the number of female students denied the opportunity to participate could have sustained several viable competitive teams.  Second, the court held that there was no steady increase in female athletic participation.  Even though, as Defendants argued, athletic programs for girls had expanded over the past decade and CPHS had two more teams for girls than for boys, the number of female participants, not the number of teams, determined whether programs had expanded.  Third, the court held that Plaintiffs demonstrated evidence of unmet interest and of the ability of CPHS females to participate in field hockey, tennis, and water polo.  Defendants’ argument that they could not obtain coaches for the teams was not a valid excuse.  The court held that Defendants allowed significant gender-based disparity in violation of Title IX and found for Plaintiffs on their claim of unequal participation opportunities for females.



U.S. v. Gardner United States District Court for the Northern District of California (2007)

Trafficking in persons

A grand jury indicted Defendant Gardner (“Defendant”) for alleged participation in a conspiracy to engage in the sex trafficking of a 17-year-old minor female. Defendant was allegedly involved in transporting the minor, collecting money from the minor, and housing the minor between prostitution calls. At Defendant’s detention hearing, the judge released Defendant subject to a bond and other conditions, including a curfew. Several weeks after Defendant’s release, the government sought to impose electronic monitoring as an additional condition of release and as mandated by the Adam Walsh Child and Protection Safety Act of 2006 (“the Act”). The electronic monitoring would immediately alert law enforcement if Defendant violated her curfew. Defense counsel argued that the electronic monitoring violated the Eighth Amendment, procedural due process, and the doctrine of separation of powers. The court disagreed and held that the electronic monitoring was constitutional on all three grounds. Moreover, the court concluded that the electronic monitoring furthered this interest in a way that was not excessive when compared to the risk of post-arrest criminal activity. The court noted that the Act served the valid government interest of providing additional protection for children “from sexual attacks and other violent crimes.” Decision on file with the Avon Global Center.



Ericson v. Syracuse Univ. United States District Court for the Southern District of New York (1999)

Sexual harassment

Ms. Ericson and Ms. Kornechuk brought an action against Syracuse University and its employees under Title IX of the Education Amendments of 1972, 20 U.S.C. section 1681 (“Title IX”) and the Violence Against Women Act, 42 U.S.C. section 13981 (“VAWA”). Plaintiffs alleged that they were sexually harassed by their tennis coach, and that the University was aware of the tennis coach’s behavior and conducted a sham investigatory proceeding to conceal the extent of the tennis coach’s misconduct, which had occurred for more than twenty years. Defendants moved to dismiss the claims. They contended that Title IX did not provide a private right of action and the VAWA claim was barred by the statue of limitations. The court held that there was a private right of action under Title IX pursuant to the U.S. Supreme Court’s decision in Gebser v. Lago Vista Indep. Sch. Dist. (1998). Erickson held that a student who has been sexually harassed by an employee of an institution may bring suit against the institution, under Title IX, for private damages if: (1) the institution has authority to institute corrective measures on its behalf; (2) has actual notice of the behavior; and (3) is deliberately indifferent to its employee’s misconduct. The court found that Plaintiffs’ complaint, on its face, satisfied that standard because it alleged the individuals who investigated the charges against the tennis coach not only had actual notice that the tennis coach had been harassing female student-athletes for twenty years but had also conspired to conduct a sham investigation to conceal the full extent of the coach’s misconduct. The court reasoned that the allegation that the institution knew of the 13 of female-athletes and did not respond adequately was sufficient to state a claim under Title IX. The court also held that the statute of limitations did not bar the Plaintiffs’ claim under the VAWA. VAWA provides a civil cause of action to victims of gender-motivated crimes of violence. It does not contain an express statute of limitations. Accordingly, the court found that it should look to the “most appropriate or analogous state statute of limitations.” The court reasoned that Congress’ stated purpose, in enacting this law, was to “protect the civil rights of victims of gender motivated violence by establishing a federal civil rights cause of action.” Because of Congress’ stated purpose, the court found that the cause of action that was most analogous to VAWA was a personal injury claim, and as such, a three-year statute of limitations should apply. Thus, Plaintiffs’ claim under VAWA was not barred by the statue of limitations because the alleged acts of violence occurred within three years from when Plaintiffs filed their complaint.



Melani v. Bd. of Higher Educ., United States United States District Court for the Southern District of New York (1983)

Gender discrimination

Plaintiffs sued the board of trustees of the City University of New York (“CUNY”), alleging that CUNY discriminated against its female professors because it paid them less than its male professors, pursuant to Title VII of the Civil Rights Act of 1964 and 42 U.S.C. section 2000e (“Title VII”). As evidence, Plaintiffs provided statistics about the faculty’s pay that demonstrated that the female professors were paid less. Defendant argued in response that the female staff were paid less based on merit, specifically because women devoted more time to child-rearing, had fewer publications, and worked in academic fields for which the market demand was less. The court found that Defendant failed to successfully counter Plaintiffs’ claim because its testimony was little more than generalizations: its evidence did not relate to the CUNY female faculty and did not explain the salary disparity between the male and female faculty. Thus, the court found that Defendant violated Title VII by paying Plaintiffs a lower salary because of their sex.



People v. Humphrey California Supreme Court (1996)

Domestic and intimate partner violence

Defendant shot and killed her partner, Albert Hampton (“Hampton”), in their home in Fresno, California. When a police officer arrived she immediately surrendered, told him where the gun was, and admitted that she shot him. She explained, “He deserved it. I just couldn’t take it anymore. I told him to stop beating on me.” Defendant was charged with murder with personal use of a firearm. At trial, the defense asserted that Defendant shot Hampton in self-defense. They presented expert testimony on battered women’s syndrome from Dr. Lee Bowker, who stated that Defendant suffered from an extreme case of the syndrome. The court acquitted Defendant of first-degree murder and instructed the jury on second degree murder, voluntary manslaughter, involuntary manslaughter, and self-defense. The judge explained that for self-defense to be a complete or perfect defense to all charges, Defendant must have had an actual and reasonable belief that the killing was necessary. The judge further explained that an actual but unreasonable belief, imperfect self-defense, was a defense to murder but not to voluntary manslaughter. The judge instructed jurors that they could only use the battered women’s syndrome evidence to decide whether Defendant had an actual belief that the killing was necessary. The judge said the evidence could not be used to decide whether Defendant had a reasonable belief that the killing was necessary. The jury found Defendant guilty of voluntary manslaughter with personal use of a firearm. The court sentenced her to eight years in prison. The Court of Appeal affirmed the conviction. On appeal, the Supreme Court reversed the judgment. The Court held that the trial court erred when it instructed the jury that battered women’s syndrome evidence could not be used to determine whether Defendant had a reasonable belief that the killing was necessary. The Court opined that Defendant’s corroborated testimony had made a plausible case for perfect self-defense to all charges and the instruction error could have affected the verdict in a way adverse to Defendant.



Gonzalez v. Munoz California Court of Appeal (2007)

Domestic and intimate partner violence

Maria Elena Gonzalez (“Gonzalez”) filed for a temporary restraining order against her former partner, Maurelio Francisco Munoz (“Munoz”). She complained that Munoz violently attacked her on numerous occasions including burning her with hot grease, choking and beating her, and abusing her three-year-old daughter Flor. The trial court granted a temporary ex-parte restraining order to keep Munoz from Gonzalez and Flor. The court also issued personal conduct and stay-away orders, and granted physical and legal custody of Flor to Gonzalez with no visitation rights for Munoz. At a subsequent hearing regarding the orders, Gonzalez and Munoz both appeared without counsel and spoke through an interpreter. At the beginning of the hearing, the court told the parties it would make some “temporary orders under certain circumstances regarding custody and visitation” but could not make a paternity judgment. The court advised Gonzalez and Munoz that they would need to file a separate paternity suit to resolve issues related to custody and visitation of Flor. Munoz indicated he was not Flor’s parent but requested “reasonable visitation” on weekends. The court issued a restraining order that excluded Flor and extended for one year the portion of the prior restraining order that kept Munoz away from Gonzalez. But it did not address custody or visitation. Gonzalez then asked the court about child support, an indication she did not understand the discussion about a separate paternity proceeding. In a subsequent hearing a judge granted Munoz weekly supervised visits with Flor despite the abuse allegations. The Court of Appeal reversed the trial court and found it erred and violated Section 6340 of the California’s Domestic Violence Prevention Act (the “Act”) when it failed to issue permanent custody of Flor to Gonzalez. The Act directs the court when applying the Act to “consider whether failure to make any of these orders may jeopardize the safety of the petitioner and the children for whom the custody or visitation orders are sought.” The Court of Appeal noted that, given Flor’s potential exposure to violence from Munoz, the trial court was charged with eliciting evidence about Flor’s parentage and whether the earlier custody and visitation orders needed to be modified or extended to “ensure the mutual safety of Gonzalez and Flor.” Also, because Munoz failed to show or to claim a parent-child relationship with Flor, the trial court should have extended the restraining order to cover Flor and entered the permanent custody order Gonzalez requested. The Court of Appeal admonished bench officers to play a “far more active role in developing the facts,” even at the expense of a particular court’s procedures, to avoid the high potential for danger to the Act’s target population—“largely unrepresented women and their minor children.” It noted the “special burden” on bench officers who “cannot rely on the propria persona litigants to know each of the procedural steps, to raise objections, and to otherwise protect their due process rights.”



Dittrich v. Woods United States Court of Appeals for the Sixth Circuit (2011)

Sexual violence and rape

Thomas Dittrich was accused of having a three-month relationship with his daughter’s thirteen-year-old classmate, the Complaintant. The relationship began when the Complaintant went to Dittrich’s house to visit his daughter, and quickly progressed into a mutual intimate relationship. When the Complaintant’s parents uncovered the relationship, they immediately intervened and a criminal suit was filed against Dittrich. At trial, Dittrich’s family, the Complaintant, and other third parties testified about his conduct with Complaintant. Dittrich’s family recounted his history of domestic violence, to which Dittrich’s attorney did not object. Dittrich also tried to examine Complaintant about her sexual history, but could not overcome Michigan’s rape shield law by offering proof as to his proposed evidence. The jury convicted Dittrich on seven counts of criminal sexual conduct, sentencing him to 95-180 months’ imprisonment. Dittrich appealed to the Michigan Court of Appeals and then to the Michigan Supreme Court, on claims that (1) he was denied effective counsel due to his attorney’s failure to object to his family’s domestic violence testimony, and (2) the court, by denying his motion to examine Complaintant about her sexual history, violated his right to confrontation. Both courts denied relief. In 2007, Dittrich petitioned for a writ of habeas corpus, alleging both ineffective assistance of counsel and a violation of his confrontation right. The district court granted the writ, holding the confrontation violation was harmless, but Dittrich did receive ineffective assistance of counsel. The state appealed that decision and Dittrich cross-appealed on the confrontation claim. The Sixth Circuit reasoned that to prove ineffective assistance of counsel, one must demonstrate that counsel’s performance was deficient, and that the deficient performance prejudiced the defense. Although the court found that Dittrich’s counsel’s performance was deficient, they ruled that the deficiency did not prejudice the defense due to the overwhelming evidence against Dittrich. As to the confrontation claim, the court reviewed Dittrich’s request based on whether the error had substantial and injurious effect or influence in determining the jury’s verdict. The court held that Dittrich’s proposed inquiries into the Complaintant’s sexual history would have been of minimal value. Thus, the court’s decision to exclude the evidence did not have a “substantial and injurious effect” on the jury’s verdict. The court reversed the district court’s grant of habeas relief on Dittrich’s ineffective-assistance claim and affirmed its rejection of his right-to-confrontation claim.



Badih v. Myers California Court of Appeal (1995)

Gender discrimination

In 1987, Fatmeh Badih (“Badih”), a recent immigrant from Sierra Leone, was hired by the medical offices of Dr. Leonard Myers (“Myers”) as a medical assistant. Almost three years later, Badih told Myers she was pregnant. He immediately fired her. According to Badih, when she told Myers the news he replied, “If you told me you were going to get married and have babies, I wouldn’t have hired you in the first place. I need an office girl when I need her, not a person that has responsibilities the way you do now. . . . You’re going to have to go.” Badih filed a compliant against Myers and alleged pregnancy discrimination, among other claims. Myers denied that he fired Badih because she was pregnant. The jury found that Myers had terminated Badih because of her pregnancy, awarded her $20,226 in damages, and granted Badih’s motion for attorney fees. Myers appealed the judgment and attorney fees order. He argued that because he employed less than five people he was not subject to the pregnancy discrimination provisions of California’s Fair Employment and Housing Act (“FEHA”). He also argued that no other constitutional or statutory provisions prohibited pregnancy discrimination. The Court of Appeal affirmed the trial court’s judgment and attorney fees order. It held that pregnancy discrimination in employment was a form of sex discrimination. Because article I, section 8 of the California Constitution prohibits sex discrimination in employment regardless of the employer’s size, those who work for employers not covered by FEHA can maintain pregnancy discrimination claims under the California Constitution.



Perdomo v. Holder United States Court of Appeals for the Ninth Circuit (2010)

Femicide

In 1991 Lesly Yajayra Perdomo (“Perdomo”), a citizen and native of Guatemala, joined her mother in the United States. In April 2003 the Immigration and Naturalization Service charged her as removable because she unlawfully entered the United States in 1991. Perdomo conceded removability but requested asylum, withholding of removal, and relief under the United Nations Convention Against Torture. Perdomo sought asylum because of her fear of future persecution as a member of a particular social group of “women in Guatemala between the ages of fourteen and forty.” Perdomo explained she was fearful because of: (1) the large number of women killed in Guatemala; (2) the failure of the Guatemalan government to respond appropriately; and (3) the lack of explanation for the killings. The immigration judge denied Perdomo’s requests. The Board of Immigration Appeals (the “BIA”) affirmed the denials and rejected the particular social group definition, “women in Guatemala between the ages of fourteen and forty” and Perdomo’s revised group definition, “all women in Guatemala,” as too broad to qualify for protection. The Ninth Circuit granted Perdomo’s petition for review and held that prior case law established that, “women in a particular country, regardless of ethnicity or clan membership, could form a particular social group.” The court noted that the size and breadth of the group, “all women in Guatemala,” did not preclude it from qualifying as a protected social group and that the BIA erred when it held to the contrary. The court remanded the case to the BIA to determine whether “all women in Guatemala” is a particular social group and, if so, whether Perdomo qualified for asylum.



Page v. Superior Court California Court of Appeal (1995)

Sexual harassment

Plaintiff worked as a research specialist under her supervisor, Dennis Montgomery (“Montgomery”). On several occasions during her employment Montgomery asked Plaintiff to perform oral sex on him. He also repeatedly told Plaintiff he was going to arrive at one of Plaintiff’s many jobsites to engage in sexual activity with her. Twice Montgomery masturbated in front of Plaintiff during work hours. During one of those times, Plaintiff ran from the office to her car and Montgomery followed her, grabbed her arm, tried to grab her breasts, and tried to stop her from entering her car. Plaintiff repeatedly complained to the corporation’s president and chief executive officer and others about Montgomery’s conduct. No one took action to prevent the harassment. Plaintiff took a one-month leave of absence because she suffered from severe emotional distress as a result of these incidents. Her supervisors promised her a new position when she returned. But in retaliation against Plaintiff for reporting Montgomery’s 13, they gave the position to someone else. They ultimately fired Plaintiff under the pretext that she was no longer needed. Among other claims, Plaintiff sued the corporation, the corporation’s president and chief executive officer, and Montgomery for 13, retaliation, and the creation of a sexually hostile environment that violated California’s Fair Employment and Housing Act (the “FEHA”). Montgomery demurred to these claims and argued that a supervisor cannot be held personally liable for 13 or retaliation under the FEHA. The trial court sustained the demurrer. The Court of Appeal overruled the demurrer and held that the FEHA’s clear language supports imposing personal liability to supervisors for their own acts of harassment or retaliation in employment. The Court noted that this holding worked toward the deterrence and elimination of harassment and retaliation in employment.



Hollander v. United States United States Court of Appeals for the Second Circuit (2009)

Domestic and intimate partner violence

A group of husbands filed suit against the United States and other U.S. officials, challenging the validity of the Violence Against Women Act (VAWA). In particular, they were challenging the portion that permitted aliens who had been battered or subjected to extreme cruelty by their spouses to self-petition for legal permanent resident status. The plaintiffs claimed this created an incentive for their wives and ex-wives to file false police complaints and false applications for temporary restraining orders against them. They further argued that their reputations were harmed and that confidential information about them was being released to third parties. The United States District Court for the Southern District of New York dismissed their suit for lack of standing. Accordingly, the plaintiffs could not challenge VAWA or its self-petition provision. On appeal, the Second Circuit affirmed the district court’s decision. The court held that the plaintiffs’ injury was not fairly traceable to the defendants, but rather to independent actions of their wives or ex-wives who were not before the court. The plaintiffs further failed to state an injury-in-fact, because their claimed injuries were purely speculative. The fear of disclosing confidential information to third parties was dispelled based on the confidentiality provisions of VAWA. Thus, the plaintiffs lacked standing to sue the government and challenge VAWA.



U.S. v. Dowd United States Court of Appeals for the Ninth Circuit (2005)

Domestic and intimate partner violence, Sexual violence and rape

A jury convicted Matthew Dowd of violating the federal interstate domestic violence law. The events giving rise to the conviction occurred over an 8-month period between May and December 2002. During that time, Dowd forced his former girlfriend, Danna Johnson, to travel throughout Montana, Colorado, and Utah with him while he was fleeing authorities. During the forced excursion, Dowd repeatedly subjected Ms. Johnson to physical and psychological abuse, including rape, choking, and death threats. Dowd contested the conviction, arguing that the jury did not have sufficient evidence that he forced or coerced Ms. Johnson to cross state lines, as the statute required. The court reasoned that to convict a defendant of violating the federal interstate domestic violence statute by causing a spouse or intimate partner to travel in interstate or foreign commerce by force, coercion, duress, or fraud, the government must show that the spouse or intimate partner was a non-consenting participant in the interstate travel. Despite evidence that there were various occasions during the several-months-long interstate journey where Ms. Johnson was outside of Dowd’s presence and did not seek assistance from others or attempt to escape, the court found that Ms. Johnson was not a willing participant in the extended journey, and that sufficient evidence supported a finding that Dowd violated the federal statute. That evidence included Dowd’s persistent actual and threatened physical, sexual, and psychological abuse, and threats of retribution against Ms. Johnson’s family if she left him. Accordingly, Dowd’s conviction was upheld.



Joslyn v. State Indiana Supreme Court (2011)

Domestic and intimate partner violence

Stephanie Livingston moved in with Richard Joslyn, her third cousin, following a breakup with her youngest son’s father.  She lived with him for six months and struggled with alcohol.  She learned later that Joslyn recorded a video of them engaging in sexual intercourse but has no memory of the act.  Later she moved in with her mother and applied ex parte for a protective order under the Indiana Civil Protective Order Act.  The court issued the order which “prohibited Joslyn from having any contact with Livingston.”  A deputy served Joslyn with a copy of the order by attaching it to the door of his residence.  The deputy “did not indicate on the return of service form that a copy of the order was also mailed to Joslyn’s last known address as required by Indiana Trial Rule 4.1.”  Later, Livingston noted several instances in which Joslyn watched her, left notes at her mother’s front door, asked her friends about her whereabouts, crashed her friend’s vehicle, and hid in a crawl space under her home.  In December, the State charged Joslyn with “class C felony stalking, four counts of class A misdemeanor invasion of privacy and a class A misdemeanor resisting law enforcement.  The case went to trial by jury.  The jury found Joslyn guilty of all counts, except the resisting law enforcement count.   Joslyn appealed, and challenged “the sufficiency of the evidence to support his convictions, arguing the State did not prove he was properly served with the protective order.”  The Court of Appeals affirmed the convictions.  It found that Joslyn’s admission that he received notice left at his home was “sufficient to permit his conviction for invasion of privacy and stalking.”  The court noted that the statutes defining stalking and invasion of privacy require notice of an order, but the fact that the process server may not have sent a copy to his house by first class mail as required under Indiana Trial Rules is insufficient to overturn his convictions.  The court noted that the purpose of the Indiana Civil Protection Order Act is to “promote the protection and safety of all victims of domestic violence and prevent future incidents.”  It found that overturning a conviction due to an error in civil process, even when the court had issued the order and defendant had actual notice of the order, would be contrary to that purpose.



McCormick v. School District of Mamaroneck United States Court of Appeals for the Second Circuit (2004)

Gender discrimination

Two school districts scheduled their girls’ high school soccer season in the spring and the boys’ high school soccer in the fall. The effect of that schedule was that boys but not girls were able to compete in the regional and state championship games. Parents of the female students sued the school districts pursuant to Title IX of the Education Amendment of 1972 and 20 U.S.C. section 1681 (“Title IX”), which requires schools, among others, to provide equal athletic opportunities to its male and female students. The appellate court held that the schools violated Title IX when they scheduled girls’ soccer in the spring because it denied female students an equal athletic opportunity. The court noted that because the females could not compete in championship games, it implied that the schools did not value their athletic abilities as much as it valued the boys’ athletic abilities, which is illegal.



In the Matter of Dwayne M. Brown Indiana Supreme Court (1998)

Sexual harassment

The court upheld an elected clerk’s three-year suspension from the practice of law for various acts, including sexual advances toward female employees in the clerk’s office.  Six female employees made allegations that he sexually harassed them.  Respondent attempted to argue that his actions toward the employees did not meet the standard for “13” as defined by the EEOC.  The Court found that it did not need to rely on a federal agency’s definition to “find that the respondent’s creation and perpetuation of a work environment infected with inappropriate and unwelcome sexual advances violated Prof. Cond. R. 8.4(d).”  It found that his acts were “prejudicial to the administration of justice,” whether or not they met a legal definition of 13.  Furthermore, he did not testify at the hearing or otherwise rebut the evidence, but merely contended that the allegations by former employees were untrue.  It therefore suspended him from the practice of law for three years.



U.S. v. Rowland United States Court of Appeals for the Tenth Circuit (2004)

Sexual violence and rape

Rowland was charged in a one-count indictment with possession of a firearm and ammunition after former conviction of a felony. One of the former convictions was sexual battery. The district court determined that the felony of sexual battery under Oklahoma law constituted a crime of violence under the Federal Sentencing Guidelines, and, as such, could be used to enhance his felon in possession of a firearm sentence. Rowland appealed his conviction, specifically contesting the characterization of his prior conviction for sexual battery as premised upon conduct constituting a crime of violence. On appeal, the circuit court noted that Oklahoma’s sexual battery statute presupposed lack of consent, which implicated serious potential risk of physical injury to another. The court then went on to explain that physical injury need not be a certainty for a crime to pose a serious risk of physical injury; the possibility that a crime may be completed without injury is irrelevant to the determination of whether it constitutes a crime of violence which can be used to increase a base offense level for firearms offense conviction. Under this analysis, the court held that sexual battery, under Oklahoma law, implicates a concomitant serious risk of physical injury, and therefore Rowland’s sexual battery conviction was a “crime of violence” that could be used to enhance his sentence.



Gregory v. Daly United States Court of Appeals for the Second Circuit (2001)

Gender discrimination

Plaintiff alleged that she was subjected to a hostile work environment and that when she complained, her employer fired her in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). Plaintiff argued that her executive director subjected her to sexual ridicule, advances, and intimidation. He also intensified his harassment in response to her complaints, deprived her of work responsibilities, undermined her ability to do her job, and ultimately fired her. The lower court dismissed her case. On appeal, however, the Second Circuit Court of Appeal reversed that decision. It found that Plaintiff could reasonably have found her workplace to be both physically and sexually threatening, based on her allegations about the executive director. It reasoned that the alleged environment could have hurt Plaintiff’s job performance, discouraged her from remaining on the job, or kept her from advancing in her career. Thus, the court concluded, the conduct alleged was contrary to Title VII’s objective of promoting workplace equality. The appeals court also found that Plaintiff could proceed with her case against her employer for retaliation because he fired her after she complained about his behavior.



Griffin v. City of Opa-Locka United States Court of Appeals for the Eleventh Circuit (2001)

Sexual harassment, Sexual violence and rape

A. Griffin was employed as a billing clerk in the City of Opa-Locka’s water department in 1993. Shortly after hiring Griffin, the city hired Earnie Neal as its City Manager. After taking office, Neal immediately began sexually harassing Griffin. He called her derogatory names, aggressively pursued her, and made inappropriate advances. He performed some of these acts in front of the Mayor and City Commissioner. Griffin continually resisted his advances and attempted to go on with her daily routines in fear of being fired. Eventually, Neal raped Griffin in her apartment after insisting he drive her home after an event put on by the city. Griffin waited several months to come forward about the rape, and the lawsuit ensued. Griffin sought damages against the City for 13 and sexual assault under Title VII; the Florida Civil Rights Act; 42 U.S.C. § 1983, and state tort law. She also alleged claims against Neal. At trial, a jury found that Neal sexually harassed Griffin, that the harassment was a custom or policy of the City, Neal raped Griffin under color of law, the City was deliberately indifferent in hiring Neal, and found against Neal on all tort claims. The subsequent damage award amounted to $2 million dollars. On appeal, the Eleventh Circuit agreed with the district court that Neal was acting under the color of law and that 13 was the on-going, accepted practice at the City and that the City Commissioner, Mayor, and other high ranking City officials knew of, ignored, and tolerated 13. But because the record did not establish that the jury below found the City had a custom or policy of allowing rape or that the rape incident was part of the custom or pattern of 13, the court found that the suit lacked all essential aspects of a § 1983 case against the City. As such, the verdict and judgment against the City for rape under § 1983 was vacated. All other charges against the City were affirmed. The $1.5 million dollar verdict against the City was reversed. The City was still found liable for 13 due to the hostile work environment it fostered, as well as deliberate indifference in the hiring of Neal.



Doe v. University of Illinois United States Court of Appeals for the Seventh Circuit (2000)

Sexual harassment, Sexual violence and rape

Jane Doe attended University High School in Urbana, Illinois. Although University High was a public school, it was affiliated with the University of Illinois, which had the responsibility for overseeing the school’s administration. From January 1993 through May 1994, while a student at University High, Jane was a victim of an ongoing campaign of verbal and physical 13 perpetrated by a group of male students at the school. Doe and her parents complained on numerous occasions to officials of both the high school and the University of Illinois. The school officials suspended a few of the students and transferred one out of Doe’s biology class, but did nothing else to prevent further instances. Some administrators even suggested that it was Doe’s fault. In 1995, Doe and her parents filed suit against the University of Illinois and other individual officials of University High and the University of Illinois, alleging a violation of, among other things, Title IX. The United States District Court for the Central District of Illinois dismissed Doe’s Title IX claim. On appeal, the Seventh Circuit remanded the case, holding that Jane Doe alleged a valid claim under Title IX, and that a Title IX recipient may be held liable for its failure to take prompt, appropriate action in response to student-on-student 13, as was the case here. The court reasoned that Title IX prohibits discriminatory government conduct on the basis of sex when it occurs in the context of State-run, federally funded educational programs and institutions. In particular, Title IX provides that no person in the U.S. shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. Prior to this case, it was well settled that 13 of a student in a federally funded educational program or activity, if it is perpetrated by a teacher or other employee of the funding recipient, can render the recipient liable for damages under Title IX. What was less clear was whether a school can be liable for failing to take prompt, appropriate action to remedy known 13 of one student by other students. Although inconsistent with three other circuits, the court ultimately held that a Title IX fund recipient may be held liable for its failure to take prompt, appropriate action in response to student-on-student 13 that takes place while students are involved in school activities or otherwise under the supervision of school employees, provided the recipient’s responsible officials actually knew that the harassment was taking place. The failure to promptly take appropriate steps in response to known 13 is itself intentional discrimination on the basis of sex. Since Jane Doe alleged such a failure, she properly alleged the sort of intentional discrimination against which Title IX protects. Doe’s case was then remanded to the district court for further proceedings consistent with the court’s opinion.



Benjamin v. McKinnon Court of Appeals Fourth District (2008)

Domestic and intimate partner violence

The plaintiff sought a protection order against the defendants, a father and son, for orders of protection. The trial court awarded an order of protection against the son, but not against the father. The Court of Appeals considered whether there was a family relationship between the plaintiff and the defendants that permitted issuing an order of protection under the state law and decided that there was a family relationship because the plaintiff’s son had been married to the defendants’ daughter and sister respectively. They relied on previous case law that had found a sufficient relationship between families related by blood. Thus, the Court affirmed the order of the trial court, upholding the order of protection against the son and denying the father’s motion for sanctions.



Trayling v. Board of Fire and Police Commissioners Court of Appeals Second District (1995)

Sexual harassment

Karen McGloon was employed by the village fire department as a secretary. Guy Trayling was a lieutenant with the fire department and worked in the same office as McGloon. On one occasion Trayling kissed McGloon on the cheek and on another he put his han


Castle Rock v. Gonzales Supreme Court of the United States (2005)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The Court held that a policeman could not be sued under 42 U.S.C. 1983 for failing to enforce a restraining order. Jessica Gonzales was granted a restraining order against her husband during their divorce proceedings. In violation of the restraining order, Gonzales's husband took her three children, and despite repeated efforts by Jessica to have the order enforced, the police took no action. During this time, Gonzales's husband killed the couple's three children. The Court reasoned that because Colorado law did not make enforcement of a restraining order mandatory, there was no individual right to its enforcement. This case was admitted before the Inter-American Commission on Human Rights (as Gonzales v. United States) and is awaiting a decision on the merits.



State v. Human Rights Commission Court of Appeals Fourth District (1989)

Gender discrimination, Sexual harassment

Lynda Savage filed a complaint against the Illinois Department of Corrections alleging that she had been sexually harassed by her immediate supervisor, Nicholas Howell, and discharged in retaliation. Howell would describe women by their physical attribut


U.S. v. Morrison Supreme Court of the United States (2000)

Gender-based violence in general

The Court examined whether the Commerce Clause or the Fourteenth Amendment gave Congress the authority to enact portions of  the Violence Against Women Act ("VAWA") of 1994. In a 5-4 decision, the Court held that Congress lacked the authority to enact portions of the Act that allowed victims of gender-based violence to sue their attackers in federal court rather than state court. The Court held that Congress could not draw on the Commerce Clause for authority because violence against women was not an activity that substantially affected interstate commerce. The Court also held that the Act did not redress harm caused by state action and therefore did not fall under Congress's 14th amendment power. In his dissent, Justice Souter argued there was sufficient evidence to establish the effect of violence against women on interstate commerce.



Northtown Ford v. Illinois Human Rights Commission Court of Appeals Fourth District (1988)

Employment discrimination, Gender discrimination

The Illinois Human Rights Commission (HRC) filed a suit against Northtown Ford alleging discrimination against an employee who had been terminated with regard to sick leave benefits and salary, sex discrimination for reduction in salary, and retaliation. The administrative law judge entered a judgment in favor of the employee for salary claims and sick leave benefits, and the HRC affirmed. The Court of Appeals decided that the employee was allowed to amend the complaint because the amended claim was reasonably related to the original claim.



U.S. v. Virginia Supreme Court [United States] (1996)

Gender discrimination

The Court was asked to determine the constitutionality of Virginia's decision to only admit men to the Virginia Military Institute (VMI), asking women to instead enroll at the all-women Virginia Women's Institute for Leadership (VWIL). In a 7-1 decision, the Court held that banning women from VMI was in violation of the 14th amendment. The Court held that Virginia had failed to give adequate reasoning for its decision to not admit women, and that women would not receive the same level of instruction at VWIL that they would receive at VMI.



People v. Whitfield Court of Appeals Fourth District (1986)

Domestic and intimate partner violence

The defendant plead guilty to violating an order of protection and sentenced to conditional discharge for a period of 12 months. Within that year, the State tried to revoke the conditional discharge alleging that the defendant had again harassed his ex-wife. The circuit court of the county revoked the discharged and sentenced the defendant to twelve months’ probation with the condition of two days’ imprisonment and sixty hours of community service. The defendant appealed the change in sentence in the Court of Appeals arguing that following his ex-wife in an automobile did not constitute harassment and that the Illinois Domestic Violence Act violates the Fourteenth Amendment. The Court of Appeals rejected the constitutional argument because it cannot be made on appeal if it was not originally made at trial court, and also ruled that the act constituted harassment after examining the definition within the context of the law. Thus, the Court upheld the order of the circuit court.



Existencia del Delito de Violacion Supreme Court of Mexico

Sexual violence and rape

The Court held that for the crime of rape to have occurred, only penetration was necessary, not ejaculation. The Court also held that when two or more people conspire to commit rape, only one person need penetrate to hold all parties guilty of rape as long as the other people were involved in the steps leading up to the rape. The Court further held that when a husband rapes his wife, it is necessary for her to press charges before he can be charged with the crime. However, if her husband conspires with other men to rape her, then she need not press charges for her husband to be charged with the crime.

 

La Suprema Corte de Justicia de la Nación determinó que para que el crimen de violación sexual se considere consumado para propósitos legales, sólo penetración es suficiente, no eyaculación. La Corte también determinó que cuando dos o más personas conspiran para cometer una violación, sólo la penetración de la víctima por una persona es suficiente para contabilizar a todo el grupo culpable por la violación si todos participaron en los pasos y preparaciones para efectuar el acto. Cuando un esposo viola a su esposa, ella necesita presentar cargos contra él antes de que se le pueda encontrar culpable por el crimen. Sin embargo, si el esposo conspira con otros hombres para violar a su esposa, ella no necesita presentar cargos para que el sea encontrado culpable por el crimen.  

 



Rapto Inexistente Supreme Court of Mexico

Sexual violence and rape

The Court made several clarifications related to the crime of abduction. First, the court held that because the crime of abduction required the intent to segregate the victim from her customary mode of life and insert her in another, the crime of abduction does not take place when a man takes a woman temporarily for the purpose of sexual abuse. The Court reasoned that the temporary removal of the woman by the man did not constitute its own crime, but instead was an element of the separate crime of rape. The Court also held that the simple act of changing locations with a woman did not constitute abduction, especially when there was no evidence of restraint against her will.

 

La Corte hizo acalariones con respecto a el delito de secuestro. Primero, el tribunal sostuvo que debido a que el delito de secuestro requería la intención de separar a la víctima de su modo de vida habitual e insertarla en otro, el delito de secuestro no se ejecuta cuando un hombre toma temporalmente a una mujer con el propósito de tener relaciones de abuso sexual. El Tribunal razonó que la remoción temporal de la mujer por parte del hombre no constituía su propio delito, sino que era un elemento del delito separado de la violación. El Tribunal también sostuvo que el simple hecho de cambiar de lugar con una mujer no constituía un secuestro, especialmente cuando no había evidencia de restricción contra su voluntad.



Rapto y Estupro Son Delitos Independientes Supreme Court of Mexico

Sexual violence and rape

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

 

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

 



R. v. Mills Supreme Court of Canada (1999)

Sexual violence and rape

The Supreme Court of Canada upheld a recently enacted rape shield law. Mills, a defendant in a rape case, challenged the law, arguing it violated sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms. The Supreme Court found that the law gave sufficient discrepancy to judges to ensure that the rights of a defendant in a rape case were not violated.



Legislation

Criminal Offenses: Child Pornography Prohibited

Statutory rape or defilement

This statute prohibits production, reproduction, distribution, transfer and knowing possession of child pornography through any medium, device or format.



Criminal Offenses: First Degree Sexual Assault

Sexual violence and rape

A person is guilty of first degree sexual assault if he or she engages in sexual penetration with another person, and the accused: not being the spouse, knows or has reason to know that the victim is mentally or physically incapacitated; or the accused uses force, coercion, stealth, or surprise; or engages in medical treatment or examination for sexual purposes.



Criminal Offenses: First Degree Child Molestation Sexual Assault

Statutory rape or defilement

A person is guilty of first-degree child molestation sexual assault if he or she engages in sexual penetration with a person 14 years of age or under.



Domestic Relations: Domestic Abuse Prevention (General Laws of Rhode Island)

Domestic and intimate partner violence

The definition of domestic abuse in Rhode Island includes (i) attempting to cause or causing physical harm, (ii) placing another in fear of imminent serious physical harm, (iii) causing another to engage involuntarily in sexual relations by force, threat of force, or duress, and (iv) stalking or cyberstalking when the perpetrator and victim are present or former family members, including stepparent and dating relationships.



Criminal Offenses: Stalking (General Laws of Rhode Island)

Stalking

This statute makes it illegal to harass or to knowingly and repeatedly follow another person with the intent to place that person in reasonable fear of bodily injury. Under the statute, stalking is a felony, punishable by imprisonment for not more than five years, by a fine of not more than $10,000, or both.



Labor and Labor Relations: Wage Discrimination Based on Sex (General Laws of Rhode Island)

Employment discrimination, Gender discrimination

To prevent wage discrimination, Rhode Island’s equal pay law provides that no employer shall discriminate between the sexes in the payment of wages. However, merit-based variations in pay including, but not limited to, those based on skill, experience, and number of hours worked are not prohibited. Any attempt to contract around the equal pay law will be void.



Code of Virginia: Standards for court-authorized sterilization of certain persons (Va. Code § 54.1-2977)

Forced sterilization

Under certain defined circumstances, Virginia law permits sterilization for children and adults incapable of informed consent. The procedures for children incapable of informed consent are outlined in Code of Virginia § 54.1-2975 and the procedures for adults are outlined in § 54.1-2976.



Code of Virginia: Property Rights of Married Women (Va. Code § 55-35)

Gender discrimination, Property and inheritance rights

This Virginia law provides that a married woman shall have the right to acquire, hold, use, control and dispose of property as if she were unmarried. 



Code of Virginia: Rape (Va. Code § 18.2-61)

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

This Virginia law defines rape as sexual intercourse with a complaining witness, or causing a complaining witness to engage in sexual intercourse with any other person, regardless of the existence of a spousal relationship and such act is accomplished (i) against the complaining witness's will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness's mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim.



Code of Virginia: When cause of action shall be deemed to accrue in certain personal actions (Va. Code § 8.01-249(6))

Sexual violence and rape, Statutory rape or defilement

This section of the Virginia Code provides that a cause of action resulting from sexual abuse during incapacity or infancy accrues upon the later of (1) the removal of incapacity or infancy or (2) when facts of the injury and its causal connection to the sexual abuse is first communicated to the person by a licensed physician or psychologist. 



Code of Virginia: Personal action for injury to person or property generally (Va. Code § 8.01-243(D))

Statutory rape or defilement

This section of the Virginia Code provides that a cause of action resulting from sexual abuse during incapacity or infancy accrues upon the later of the removal of incapacity or infancy or when facts of the injury and its causal connection to the sexual abuse is first communicated to the person by a licensed physician or psychologist. 



Code of Virginia: Arrest without a warrant authorized in cases of assault and battery against a family or household member and stalking and for violations of protective orders; procedure, etc. (Va. Code § 19.2-81.3)

Domestic and intimate partner violence, Sexual violence and rape, Stalking

This Virginia law allows officers to make an arrest without a warrant in certain cases of assault and battery, or stalking, against a family or household member. Instead of a warrant, the arrest must be based on probable cause, the officer’s personal observations, the officer’s investigation, or a reasonable complaint from a witness.



Code of Virginia: Stalking; penalty (Va. Code § 18.2-60.3)

Stalking

Virginia law prohibits that any person, except law enforcement officers acting in the capacity of the official duties, and registered private investigators acting in the course of their legitimate business, who on more than one occasion engages in conduct with the intent to place, or when that person knows or reasonably should know that the conduct places another person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person or to that other person’s family or household member is guilty of a Class 1 misdemeanor. If the person contacts or follows or attempts to contact or follow the person after being given actual notice that the person does not want to be contacted or followed, such actions are a prima facie evidence that the person intended to place that other person, or reasonably should have known that the other person was placed, in reasonable fear of death, criminal sexual assault, or bodily injury to himself or a family or household member.



Code of Virginia: Civil Action for Stalking (Va. Code § 8.01-42.3)

Stalking

Under Virginia law, a victim has a civil cause of action against an individual who engaged in stalking conduct prohibited under Code of Virginia § 18.2-60.3, regardless of whether the individual has been charged or convicted for the alleged violation, for the compensatory damages incurred by the victim due to the conduct plus the costs for bringing the action. A victim may also be awarded punitive damages in addition to compensatory damages.



Code of Virginia: Jurisdiction; Consent for Abortion (Va. Code § 16.1–241(W))

Abortion and reproductive health rights

This Virginia law provides the judges of the juvenile and domestic relations district court jurisdiction over petitions filed by a juvenile seeking judicial authorization for a physician to perform an abortion if a minor elects not to seek permission from an authorized person.  This statute further specifies that after a hearing, a judge can issue an order authorizing a physician to perform an abortion, without the consent of any authorized person, if the judge finds that (i) the minor is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independent of the wishes of any authorized person, or (ii) the minor is not mature enough or well enough informed to make such decision, but the desired abortion would be in her best interest.



Code of Virginia: Abortion (Va. Code § 18.2 et seq.)

Abortion and reproductive health rights

Under Virginia law, it is a Class 4 felony to cause destruction of a unborn child, abortion, or miscarriage through medical procedure, drugs, or other means. There is an exception for physicians who are licensed by the Board of Medicine to practice medicine and surgery, to terminate a pregnancy or assist in performing an abortion or causing a miscarriage during the first trimester of pregnancy, among other exceptions.  Informed written consent is required for an abortion under Virginia law, subject to civil penalties.  It is also a Class 3 misdemeanor to encourage an individual to have an abortion prohibited by Virginia law.



Code of Virginia: Equal Pay Irrespective of Sex (Va. Code Ann. § 40.1-28.6)

Employment discrimination, Gender discrimination

This Virginia law prohibits employers from discriminating between employees on the basis of sex by paying less wages to employees of a certain sex than employees of the opposite sex for equal work on jobs that require equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a differential based on any other factor other than sex.



Virginia Human Rights Act (Va. Code Ann. §§ 2.2-3900-03) (2014)

Employment discrimination, Gender discrimination, Property and inheritance rights

Virginia’s Human Rights Act outlines the policy of the Commonwealth to “[s]afeguard all individuals within the Commonwealth from unlawful discrimination because of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability, in places of public accommodation,” including in education, real estate, and employment. The Act defines the “unlawful discriminatory practice” and “gender discrimination” as conduct that violates any Virginia or federal statute or regulation governing discrimination based on race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability. The terms “because of sex or gender” or “on the basis of sex or gender” or similar terms in reference to discrimination in the Code and acts of the General Assembly include pregnancy, childbirth or related medical conditions. Women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all purposes as persons not so affected but similar in their abilities or disabilities.



Cavanaugh v. Cavanaugh (2014)

Domestic and intimate partner violence, Sexual harassment, Stalking

An man appealed his restraining order, which prevented him from contacting his ex-wife, arguing that the lower court did not properly establish a finding of domestic abuse despite his ex-wife’s testimony that he repeatedly used vulgar and threatening language towards her, at times placing her in fear of physical harm. The Rhode Island Supreme Court upheld the restraining order and underlying finding of domestic abuse, citing the definition of domestic abuse in Title 15, Chapter 15 of the General Laws of Rhode Island: “Among the acts specified in . . . the statute as constituting ‘domestic abuse’ is ‘stalking,’ [which means] ‘harassing another person.’” Because the court found that the ex-husband was “harassing” (and thus “stalking”) his ex-wife, the ex-husband’s conduct fell within the plain meaning of the statute defining domestic abuse. This case is important because it provides that the “unambiguous language” of Rhode Island’s domestic abuse statute does not require a finding of actual physical harm or threats of physical harm as a predicate for domestic abuse—other harassing language is enough.



Offenses Pertaining to Schools (Title 16, Chapter 38, General Laws of Rhode Island)

Gender discrimination, LGBTIQ

Discrimination on the basis of sex is prohibited in all public colleges, community colleges, universities, and all other public institutions of higher learning in the state that are operated by the board of governors for higher education. This prohibition applies to employment, recruitment, and hiring practices, employment benefits, admissions, curricular programs, extracurricular activities including athletics, counseling, financial aid including athletic grants-in-aid, student medical, hospital, and accident or life insurance benefits, facilities, housing, rules and regulations, research, and all other school functions and activities. Notwithstanding these prohibitions, schools may do the following: (i) maintain separate but comparable restrooms, dressing, and shower facilities for males and females, including reasonable use of staff of the same sex as the users of these facilities; (ii) provide separate teams for contact sports or for sports where selection for teams is based on competitive skills, provided that equal athletic opportunities which effectively accommodate the interests and abilities of both sexes are made available; (iii) maintain separate housing for men and women, provided that housing for students of both sexes is as a whole both proportionate in quantity to the number of students of that sex that apply for housing and comparable in quality and cost to the student; and (iv) permit the establishment and operation of university based social fraternities and sororities.



Rhode Island Fair Housing Practices Act (Title 34, Chapter 37, General Laws of Rhode Island)

Gender discrimination, LGBTIQ, Property and inheritance rights

The Rhode Island Fair Housing Practices Act prohibits housing practices that discriminate based on gender identity or expression, which is defined to include a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self-image, gender-related appearance, or gender-related expression; whether or not that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person's sex at birth.



Minor Electronically Disseminating Indecent Material to Another Person - "Sexting" Prohibited (Title 11, Chapter 9, General Laws of Rhode Island)

Statutory rape or defilement

Rhode Island law prohibits minors from knowingly and voluntarily and without threat or coercion using a computer or telecommunication device to transmit an indecent visual depiction of himself or herself to another person. Minors who transmit indecent images of themselves will not be subject to sex offender registration.



Duty to Report Sexual Assault (Title 11, Chapter 37, General Laws of Rhode Island)

Sexual violence and rape, Statutory rape or defilement

Under Rhode Island’s statute criminalizing sexual assault, anyone other than the victim with  knowledge or reason to know that a first-degree sexual assault or attempted first-degree sexual assault is taking place or has taken place shall immediately notify the police. Anyone who knowingly violates this statute is guilty of a misdemeanor punishable by imprisonment for no more than one year, a $500 fine, or both (§ 11-37-3.3.).



Uniform Act on Prevention of and Remedies for Human Trafficking (Chapter 11, General Laws of Rhode Island)

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

This law makes it a felony to knowingly engage in, or benefit from, knowing participation in recruiting, enticing, harboring, transporting, providing, or obtaining by any means another person, intending or knowing that the person will be subjected to forced labor in order to commit a commercial sexual activity. The statute also mandates the creation and composition of a council on human trafficking to provide victims services, analyze human trafficking in Rhode Island, conduct a public awareness campaign, coordinate training on human trafficking prevention and victim services for state and local employees. It creates an affirmative defense to prostitution charges for victims of human trafficking, enumerates aggravating factors, and outlines criminal procedure details.



Sexual Assault - Prior sexual conduct of the complainant - Admissibility of Evidence (Title 11, Chapter 37, General Laws of Rhode Island)

Sexual violence and rape, Statutory rape or defilement

If a defendant who is charged with sexual assault intends to introduce evidence at trial that the victim has engaged in sexual activities with other persons, he or she must give prior notice to the court of the intention to introduce such evidence. The notice must be given orally and out of the hearing of any other spectators or jurors. Upon receiving such notice, the court must order the defendant to make a specific offer of the proof that he or she intends to introduce, and the court will rule on the admissibility of the evidence before it can be offered at trial. The purpose of this “rape shield” statute is to encourage victims to report crimes without fear of inviting unnecessary probing into the victim’s sexual history.



Sexual Assault - Prior sexual conduct of the complainant - Admissibility of Evidence (Title 11, Chapter 37, General Laws of Rhode Island)

Sexual violence and rape, Statutory rape or defilement

If a defendant who is charged with sexual assault intends to introduce evidence at trial that the victim has engaged in sexual activities with other persons, he or she must give prior notice to the court of the intention to introduce such evidence. The notice must be given orally and out of the hearing of any other spectators or jurors. Upon receiving such notice, the court must order the defendant to make a specific offer of the proof that he or she intends to introduce, and the court will rule on the admissibility of the evidence before it can be offered at trial. The purpose of this “rape shield” statute is to encourage victims to report crimes without fear of inviting unnecessary probing into the victim’s sexual history.



23 Pa. C.S.A. § 6101, Protection from Abuse Act (1990)

Domestic and intimate partner violence

This statute provides for Protection From Abuse Orders (“PFA Orders”). These PFA Orders act as a safeguard to victims and their children from a family/household member who is abusing them. The Protection from Abuse Act also provides for absolute confidentiality between a victim and a domestic violence counselor/advocate to encourage open and honest dialogue.



23 Pa. C.S.A. § 3701, Domestic Relations - Alimony and Support (1990)

Divorce and dissolution of marriage, Property and inheritance rights

The determination of the nature, amount, and duration of alimony is based on the court’s weighing of several factors. Among the factors considered by the court in its alimony determination are the following: (1) the relative earnings of the parties; (2) the ages and the physical, mental, and emotional conditions of the parties; (3) the sources of income of both parties, including, but not limited to, medical, retirement, insurance, or other benefits; (4) the expectancies and inheritances of the parties; (5) the duration of the marriage; (6) the contribution by one party to the education, training, or increased earning power of the other party; (7) the extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child; (8) the standard of living of the parties established during the marriage; (9) the relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment; (10) the relative assets and liabilities of the parties; (11) the property brought to the marriage by either party; (12) the contribution of a spouse as homemaker; (13) the relative needs of the parties; (14) the marital misconduct of either of the parties during the marriage; (15) the Federal, State, and local tax ramifications of the alimony award; (16) whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 to provide for the party’s reasonable needs; and (17) whether the party seeking alimony is incapable of self-support through appropriate employment.



23 Pa. C.S.A. § 5301, Domestic Relations - Child Custody (2010)

Divorce and dissolution of marriage

In making custody and visitation decisions, Pennsylvania courts look to various factors in determining what is in the “best interest of the child.” The factors weighed by the court include: (1) the well-reasoned preference of the child, based on the child’s maturity and judgment; (2) the need for stability and continuity in the child’s education, family life and community life; (3) which parent is more likely to foster a relationship between the noncustodial parent and the child; (4) each parent’s history of violent or abusive conduct; and (5) specific criminal convictions. The court will only award sole custody when it is in the best interest of the child. Shared custody will only be awarded if: (1) one or both parents apply for it; (2) the parents have agreed to shared custody; or (3) the court determines it is in the best interest of the child. It is within the court’s discretion to require the parents to attend counseling sessions. Further, the court may review and consider recommendations from the counselor in making the final custody decision.



23 Pa. C.S.A. § 3501, Domestic Relations - Property Division (1990)

Divorce and dissolution of marriage, Property and inheritance rights

Pennsylvania is an equitable distribution state, which means the court will “equitably and fairly” divide, distribute, or assign the marital property between the parties, regardless of marital misconduct. “Marital property” generally means all property acquired by either spouse during the marriage. All property acquired by a spouse during their marriage is presumed to be marital property regardless of how title is held. In making its “equitable and fair” division of marital property, the court will weigh numerous factors, which include: the length of the marriage; any prior marriage of either party; the age, health, station, amount, and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; the contribution by one party to the education, training, or increased earning power of the other party; the opportunity of each party for future acquisitions of capital assets and income; the sources of income of both parties, including, but not limited to, medical, retirement, insurance, or other benefits; the contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker; the value of the property set apart to each party; the standard of living of the parties established during the marriage; the economic circumstances of each party at the time the division of property is to become effective; the federal, state and local tax ramifications associated with each asset to be divided, distributed or assigned; the expense of sale, transfer, or liquidation associated with a particular asset; and whether the party will be serving as the custodian of any dependent minor child(ren).



23 Pa. C.S.A. § 3301, Domestic Relations - Grounds for Divorce (1990)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Under Pennsylvania law, a divorce can be either “fault-based” or “no-fault.” Grounds for a “fault-based” divorce include the following: abandonment (unmoving spouse has left the home) without a reasonable cause for a period of one or more years; adultery; cruel and barbarous treatment (unmoving spouse has treated movant in a way that puts his/her life or health at risk); bigamy (movant’s spouse married movant without first divorcing his/her spouse); imprisonment for two or more years; or movant’s spouse has acted in a way that made movant’s life unbearable or extremely difficult. Grounds for a “no-fault” divorce include the following: insanity or a serious mental disorder that resulted in confinement in a mental institution for at least 18 months immediately before the commencement of a divorce action; or where a complaint has been filed alleging that the marriage is “irretrievably broken.” When the grounds for divorce is that the marriage is “irretrievably broken,” the court may find that there is a “reasonable prospect of reconciliation.” If the court makes such a finding, it will continue the matter for up to 120 days, but not less than 90 days, unless the parties agree to a longer period. During this continuation period, if either party requests it, the court will require up to a maximum of three counseling sessions.



Alabama Code Title 26. Infants and Incompetents § 26-21-4 (2014)

Abortion and reproductive health rights

Since 1987, Alabama has had a judicial bypass law, which allows pregnant minors to obtain a court’s permission to have an abortion without parental consent. In 2014, the Alabama legislature passed House Bill 494 to amend the law. The original judicial bypass statute provided for an ex parte hearing with only the judge, the minor, and her attorney present. The 2014 amendments added to the proceedings parties who are permitted or required to “examine” the minor and represent the interests of the unborn child, the state, and the minor’s parents.  It would have also allowed the appointment of a guardian to represent the interests of the fetus. The District Court of the Middle District of Alabama found these amendments unconstitutional and severed them from the judicial bypass law in Reproductive Health Services v. Marshall (2017).



Alabama Code Title 13A. Criminal Code § 13A-11-72 (2015)

Domestic and intimate partner violence

In 2015, Alabama amended its gun legislation to prohibit anyone who has been convicted of a misdemeanor offense of domestic violence or is subject to a domestic abuse protective order from possessing a firearm. The amended statute provides: “No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence, misdemeanor offense of domestic violence, violence offense as listed in Section 12-25-32(14), anyone who is subject to a valid protection order for domestic abuse, or anyone of unsound mind shall own a firearm or have one in his or her possession or under his or her control.”



Domestic Violence Prevention Act (Chapter 29 of the General Laws of Rhode Island) (1956)

Domestic and intimate partner violence, Sexual violence and rape

The Domestic Violence Prevention Act was originally enacted in 1956 to recognize the importance of domestic violence as a serious crime against society and to establish an official response to domestic violence cases that stresses the enforcement of laws to protect victims and communicate that violent behavior is not excused or tolerated. In passing the Act, the legislature specifically provided that its intent was that the Act can be enforced without regard to whether the persons involved are or were married, cohabitating, or involved in a relationship. Accordingly, the act defines victims to include “spouses, former spouses, adult persons related by blood or marriage, adult persons who are presently residing together or who have resided together in the past three years, and persons who have a child in common regardless of whether they have been married or have lived together, or persons who are, or have been, in a substantive dating or engagement relationship within the past one year which shall be determined by the court's consideration of the following factors: (1) the length of time of the relationship; (2) the type of the relationship; and (3) the frequency of the interaction between the parties.”



Reports

Report of the Special Rapporteur on violence against women its causes and consequences on her visit to the United States of America (2011)

Domestic and intimate partner violence, Sexual violence and rape

Report by Rashida Manjoo, Special Rapporteur on violence against women, its causes and consequences, on her mission to the United States of America (2011).



Handbook for Legislation on Violence Against Women (2010)

Gender discrimination

Department of Economic and Social Affairs, Division for the Advancement of Women



Minority Rights: International Standards And Guidance for Implementation (2010)

Gender discrimination

Report by the Office of the United Nations High Commissioner for Human Rights (OHCHR)(2010).



Women's control over economic resources and access to financial resources, including microfinance (2009)

Property and inheritance rights

UN Women 2009 World Survey on the Role of Women in Development (2009).



From Protection to Punishment: Post-Conviction Barriers to Justice for Domestic Violence Survivor-Defendants in New York State (2011)

Domestic and intimate partner violence

A study on the barriers to justice faced by women survivors of violence who enter the criminal system as defendants in New York State.