The Equal Opportunity Act aims to eliminate discrimination, sexual harassment, and victimisation to the greatest extent possible and to promote equality as far as reasonably practicable. It defines and prohibits discrimination in relation to various “attributes,” including sex, sexual orientation, marital status, and pregnancy. The prohibitions apply in a range of situations, including employment-related discrimination. Sexual harassment and victimisation are also defined and prohibited. The Act also regulates the operation of the Victorian Equal Opportunity and Human Rights Commission (“VEOHRC”), its powers, and the process by which people may bring disputes concerning violations of the Act to the Commission. After investigating a dispute, the VEOHRC may refer a matter to the Victorian Civil and Administrative Tribunal, which may order a person to refrain from further violating the Act or pay compensation to the applicant for loss, damage or injury suffered.
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The Abortion Law Reform Act allows a registered medical practitioner to terminate a pregnancy (perform an abortion) on a woman who is not more than 24 weeks pregnant. After 24 weeks, an abortion may still be performed if the medical practitioner believes it is appropriate in all the circumstances, and has consulted at least one other registered medical practitioner who reasonably agrees. It also permits the supply or administration of drugs to perform and abortion by a pharmacist or registered nurse in similar situations.
The Family Violence Protection Act aims to maximise safety for children and adults who have experienced family violence, and to prevent and reduce family violence to the greatest extent possible. It also aims to promote accountability for those who perpetrate family violence. The Act provides for police protection before court, family violence intervention orders (and their enforcement), and counselling orders.
The Charter aims to protect and promote the human rights set out in Part 2, including property rights and freedom from forced work (slavery), as well as the right to enjoy those human rights without discrimination. With respect to any proposed new law, the Victorian Parliament must prepare a “statement of compatibility,” which must examine the proposed law’s compatibility (or incompatibility) with the human rights protected in the Charter. While this statement has no effect on the validity of any law, it furthers the purpose of the Charter in promoting human rights. Further, under section 32 of the Charter, all statutory provisions must be interpreted in a way that is compatible with human rights (to the extent it is possible to do so consistently with their purpose). The Charter also allows the Victorian Equal Opportunity and Human Rights Commission to intervene in any court or tribunal proceeding in relation to the Charter.
The Crimes Act is the principal Victorian criminal legislation setting out a range of criminal offences and penalties. In relation to gender justice, the Act prohibits sexual violence and rape, stalking, sexual assault, rape, abortion (as amended by the Abortion Law Reform Act 2008) and female genital mutilation. The Act also prohibits attempts and conspiracies to commit these offenses, and sets forth applicable procedures and defenses. The Act previously contained a defense of “defensive homicide,” which was intended to, among other things, assist women who killed an abusive partner in self-defense. However, this defense was abolished in November 2014 on the basis that it was not operating as intended. The penalties for violations of the Act vary, and the principles in the Sentencing Act 1991 apply to sentencing in all courts except the Children’s Court.
The proceedings concerned the plaintiff’s entitlement to an interest in seven properties purchased by the defendant in his name during and after their nine-year relationship. The plaintiff brought a claim under Part 9 of the Property Law Act 1958 (Vic), requesting that the Court adjust the interests in the properties on the basis of her financial and non-financial contributions to the relationship. While the parties were not married, the court was satisfied that on the balance of probabilities, they were in a genuine domestic relationship, considering factors such as their co-habitation, financial independence and the fact they had a child. In determining the contributions of each party to the relationship, the Court noted that “full value” must be given to the role of either party as homemaker. The plaintiff was not required to demonstrate a link between her contributions as homemaker or parent and the value of the properties in question. The Court acknowledged that the defendant had assumed the full burden of the mortgage commitments of the properties, but also acknowledged that the plaintiff had principal responsibility for the care of her three children. The Court was satisfied that the parties’ contributions were equal, and adjusted the interests in the properties on this basis.
The plaintiff alleged that, during the course of her employment at construction firm Winslow Constructors, she was abused, bullied, and sexually harassed by Winslow employees and subcontractors. She alleged that Winslow was vicariously liable for the acts of its employees and subcontractors, or in the alternative, negligent in failing to provide a safe working environment. On the fifth day of the trial, Winslow admitted liability for negligence. The decision before the Court was the quantum of damages available to the plaintiff. The Court found that she had sustained very considerable psychiatric injuries and a jaw injury (due to teeth grinding) as a direct consequence of the bullying, abuse, and sexual harassment leveled at her by Winslow’s employees and subcontractors. The Court found that these injuries “have and will continue to diminish the quality of her life.” The Court awarded general damages AUD 380,000. Based on “virtually unanimous” evidence that the plaintiff would never work again, the Court also awarded her AUD 283,941.70 for past economic loss AUD 696,085.41 for future economic loss, to reflect her loss of future earning capacity.
The students enrolled at Castlemaine Steiner School Ltd (“Castlemaine”) for kindergarten and prep were originally approximately 75% boys and 25% girls. Castlemaine wished to offer more places to female students in order to maintain gender balance in their classes. Such conduct would constitute discrimination on the basis of gender in the provision of education and services under the Equal Opportunity Act 2010 (Vic) (“EO Act”), unless an exemption applies. Castlemaine sought an exemption under section 89 of the EO Act, contending that an exemption would enable it to promote social cohesion and gender balance, and would provide boys and girls opportunities to be with a meaningful number of children of their own gender. In assessing the application, the Victorian Civil and Administrative Tribunal (“VCAT”) noted that they were required to interpret the law, so far as it is possible to do so, compatibly with section 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). In addition, VCAT was required to consider whether the interests served by the exemption are sufficient to justify taking the relevant conduct out of the prohibitions of the EO Act. Ultimately, VCAT granted the exemption for the maximum period of five years, on the basis that the proposed exemption offered a reasonable chance of to achieving gender balance.
This decision concerned the appeal by Christian Youth Camps (“CYC”) against the decision of the Victorian Civil and Administrative Tribunal (“VCAT”) that CYC had unlawfully discriminated against Cobaw, an organisation concerned with youth suicide prevention. CYC, the operator of a camping facility at Phillip Island, had been established by the Christian Brethren Church and was opposed to homosexual activity on religious grounds. Cobaw had sought to rent CYC’s camping resort for the purposes of a weekend camp to be attended by homosexual young people. CYC had refused Cobaw’s request for accommodation. VCAT found that by refusing to accommodate Cobaw, CYC had unlawfully discriminated on the basis of sexual orientation in the provision of accommodation or services. CYC asserted that its refusal to accommodate the youths was necessary to comply with its religious beliefs or principles, and sought to invoke the religious exemption in sections 75(2) and 77 of the Equal Opportunity Act 1995 (Vic). VCAT found that CYC could not rely on the religious exemption as they were not a body established for religious purposes. While CYC had been established by the Christian Brethren Church, VCAT found that the CYC’s purposes and activities were not religious. The Court of Appeal dismissed CYC’s appeal and upheld VCAT’s decision. The Court of Appeal affirmed VCAT’s finding that the refusal to accommodate was made in the course of the conduct of a secular and commercial accommodation business. The Court of Appeal also upheld VCAT’s finding that CYC’s opposition to homosexual activity was a “rule of private morality,” which “carried with it no obligation to convince others to adopt the same rule.”
The plaintiff (under the pseudonym ‘Jane Doe’) brought proceedings to enforce the judgement of a United States district court against her former employers, Mr. and Mrs. Howard. The claims against them included involuntary servitude, forced labour, and human trafficking. Mr. Howard did not contest the claim and had since died. Mrs. Howard disputed the claim but failed to comply with court orders, then moved to Victoria and participated no further in the proceedings. The U.S. district court had found that the plaintiff was raped, sexually abused, and forced to work 80 hours or more per week, and entered a default judgment against Mr. and Mrs. Howard in the amount of US $3,306,468. The Supreme Court of Victoria held that all criteria for enforcing the U.S. judgment were satisfied. The fact that the U.S. judgment was a default judgment that could theoretically be set aside did not prevent it from being “final and conclusive.” While Mrs. Howard argued that the default judgment was procured by fraud and should not be enforced in Victoria, the Supreme Court found that Mrs. Howard had “no reasonable prospect of establishing” her defences, and entered summary judgment against Mrs. Howard for the equivalent of US $3,306,468, plus interest.
After pleading guilty to defensive homicide and being sentenced, the applicant appealed her sentence. The applicant’s violent and abusive partner, Mr. Mifsud, had compelled the applicant to kill the victim, Mr. Nankervis, by threatening to kill her family unless she killed Mr. Nankervis. The sentencing judge described the applicant’s offense as a “very grave example” of defensive homicide on the basis that Mr. Nankervis was innocent, Mr. Mifsud was absent at the time of the killing so the applicant could have gone to the police, and because the attack on Mr. Nankervis was extremely violent and disturbing. However, on appeal, the Court of Appeal found that the sentence (10 years imprisonment) imposed by the judge was manifestly excessive. The Court of Appeal had regard to the litany of cruel, humiliating, and violent acts that Mr. Mifsud had subjected the applicant to throughout their 12-month relationship, and Mr. Mifsud’s substantial criminal history. The Court of Appeal also considered the applicant’s youth (she was 19 at the time of the offense), her contrition in pleading guilty, and the effect of the violence on her state of mind, which made it “exceptionally difficult” for her to resist the requests of those in positions of influence. The Court of Appeal found that there was no basis for drawing an adverse inference from the disproportionate violence used to kill Mr. Nankervis. Instead, against the background of family violence, the violence was indicative of the applicant’s fear that Mr. Mifsud would kill her family.
The respondent had previously been sentenced to 16 months’ imprisonment after pleading guilty to six charges relating to sexually assaulting, stalking, and threatening to kill his ex-wife, as well as attempting to pervert the course of justice (saying that he would kill himself if the victim did not drop the charges against him), and violating a family-violence intervention order. The Director of Public Prosecutions appealed this sentence, arguing that it was “manifestly inadequate.” Upon consideration of the gravity of the offending conduct, its effect on the victim, and aggravating features such as the existence of the intervention order, the Court of Appeal reversed the sentence. The court found that the previous decision gave too much weight to mitigating factors, some of which should not have been taken into account at all, such as the judge’s finding that the respondent regarded “now at least the relationship as [being] over.” He was re-sentenced to two years and 11 months imprisonment with a non-parole period of two years.
The defendant had been found guilty of murdering his estranged wife in her home. This decision concerned his sentence. The court noted that “family violence” or “gender-based violence” are not separate crimes, but instead categorical descriptions of the relevant crime (here, murder), and that standard sentencing principles apply. The court condemned “family violence in the strongest possible terms” and stressed that general deterrence, denunciation, and just punishment were strong sentencing considerations. In accordance with the Sentencing Act 1991 (Vic), the court considered factors such as the gravity of the offense of murder, the premeditated nature of the offense, as well as the trauma that the victim’s death had imposed upon her family members and friends. The court also gave weight to the fact that a family-violence intervention order had been in place for the victim’s safety, and that the defendant showed no remorse and maintained his innocence. The court discussed the approach adopted by the police and the courts in relation to family violence, and noted that the evolution of society’s values in relation to the treatment of women must be taken into account in sentencing. The court sentenced the defendant to 30 years’ imprisonment (without parole-eligibility for 25 years).
The applicant and his wife had been married for 24 years, but had been separated for approximately eight years at the time of the offense. The applicant was convicted of several charges, including aggravated burglary, breach of a family intervention order, making a threat to kill, and common assault. The applicant had entered the victim’s home, breaching a family-violence intervention order, and threatened to kill the victim verbally and by holding a knife to her throat. The applicant also threatened to shoot his estranged wife with a genuine-looking imitation firearm. Following a trial, the applicant was found guilty and sentenced to 10 years’ imprisonment. On appeal, the applicant argued that the trial judge erred in admitting tendency evidence, that the sentence was manifestly excessive, and that the trial judge failed to take into account the “crushing effect” of the sentence. The Supreme Court affirmed the conviction and sentence, reasoning that “general deterrence is important in cases such as this of violence against domestic partners, so as to deter other like-minded individuals from similar offending.” The Court further reasoned that “sentences imposed for family violence should be set at a level which will send a message to those — predominantly men — who might offend violently against domestic partners or former partners or family members.” The Court also forwarded a copy of its decision to the Royal Commission on Family Violence, which was underway in Victoria at that time.
This decision concerned the admissibility in a murder trial of expert evidence regarding the effects of family violence. The defendant argued self-defense, claiming that because of the deceased’s physical and verbal violence towards him, he reasonably believed that he had to kill her in order to prevent her from killing or seriously injuring the defendant or his father. The expert evidence in question was a general report on family violence, which considered (among other things) the cumulative psychological and social effects of family violence on an abused person. The Court found that the evidence was admissible on the basis of section 9AH of the Crimes Act 1958 (Vic). This section of the Crimes Act was enacted on the recommendation of the Victorian Law Reform Commission in 2004, to ensure that juries have the benefit of the current state of knowledge regarding family violence. The Commission expressed the view that, although community awareness about family violence was improving, there was “widespread misunderstanding about the nature and dynamics of abusive relationships and their impact.”
The defendant was charged with murder by stabbing the deceased woman. The prosecution presented evidence that the accused had stalked the deceased for days, at school and at home, and he had threatened to kill the deceased. Four days before the murder, the deceased, her father, and her brother visited the home of the defendant and his brother, with whom the defendant lived, about the defendant’s harassment and stalking of the deceased. Witnesses testified that the defendant became angry at the accusations and falsely accused the deceased of following him. After, the defendant’s brother agreed, as the defendant’s guardian, to stop the defendant’s harassment and stalking of the deceased. At the murder scene, a road near the entrance to the deceased’s school, the police recovered the murder weapon, a bloody knife. After the murder, the defendant attempted suicide and was taken to a hospital where doctors found photographs of the deceased and a note indicating that the accused had pledged himself to commit suicide and to cause the death of the deceased at the same time. Based on the evidence, the court found the defendant guilty of murder and sentenced him to death.
The petitioner asked for dissolution of marriage with the respondent. In June 2011, the petitioner went on a foreign peacekeeping mission as a member of the Kenya Air Force. When she returned at the end of the month, she found that the respondent had cohabited with, married, and impregnated another woman. The respondent gave the petitioner an ultimatum between a polygamous marriage or divorce despite the their monogamous civil marriage. The petitioner stated that she had lived separately from the respondent for six years because he tried to force her to enter into a polygamous marriage when she intended to engage into only a single marriage. The court held the respondent guilty of cruelty against the petitioner and found that the marriage had, on account of the respondent’s behavior and the long separation of over six years, irretrievably broken down. The court granted the dissolution of marriage.
Baby “A” was born with both male and female genitalia. Kenyatta National Hospital issued the baby’s mother with various documents used in the process of carrying out genitogram tests, x-rays, and scans on the baby, and a question mark was entered in the column indicating the child’s sex. To date, the child has never been issued a birth certificate. The petitioners requested a declaration of the court that the Constitution protects and recognizes intersex children. The petitioners claimed that the entry of a question mark on the child’s medical treatment notes offended the child’s rights to legal recognition, eroded their dignity, and violated the right of the child not to be subjected to inhuman and degrading treatment. The petitioners argued that corrective surgery for intersex children was not necessary unless there was a therapeutic need to conduct the surgery. Finally, they argued that forced genital normalization, involuntary sterilization, unethical experimentation, medical display, reparative therapies, and conversion therapies often lead to irreversible changes to the body and interferes with a child’s right to family and reproductive health rights generally. The court, noting the “silent issues faced by intersex” people stated that an intersex children are “no different than any other” children with a constitutional right to legal recognition and the benefits of nationality, including the right not to face intersex discrimination. However, the court found that the respondent did not violate the petitioners’ fundamental rights and freedom because there was no evidence that the child’s mother had tried to obtain, and therefore had never been unlawfully denied, the child’s legal documents. The court first ordered the First Respondent to report to the court within 90 days about (i) the agency responsible for collecting data on intersex people, (ii) a legislative proposal for registering intersex people as a sexual category, and (iii) a legislative proposal for intersex “corrective surgery” regulations. Second, the court ordered the child’s mother to register the with the Third Respondent and file a copy of the approved registration with the court within 90 days.
The Special Comprehensive Law for a Violence-Free Life for Women (Ley Especial Integral para una Vida Libre de Violencia) (“LEIV”) establishes a framework for prosecuting and preventing acts of violence against women, and for providing assistance and support for victims of gender-based violence. The law establishes 11 new crimes that aim to sanction various aspects of gender-based violence in various forms: physical (femicide, aggravated femicide, obstruction of justice, induced or assisted suicide); psychological (inducement and promotion of sex acts through electronic media; unlawful dissemination of information, dissemination of pornography); economic (breach of duty of economic assistance, theft of birthright, theft of profits of economic activity); and speech (violent speech against women). Rape is prosecuted through the Penal Code. The Salvadorean Institute for the Advancement of Women (Instituto Salvadoreno para el Desarollo de la Mujer) (“ISDEMU”) is tasked with overseeing the implementation of the law and with establishing women’s shelters and other programs designed to help victims of domestic and gender-based violence.
La Ley Especial Integral para una Vida Libre de Violencia para las Mujeres (LEIV) establece una avenida para enjuiciar y prevenir actos de violencia contra las mujeres, y para brindar asistencia y apoyo a víctimas que hayan sufrido violencia por razón de género. La ley establece 11 nuevos delitos que tienen como objetivo sancionar varios aspectos de la violencia de género en diversas formas: física (femicidio, femicidio agravado, obstrucción de la justicia, suicidio inducido o asistido); psicológica (inducción y promoción de actos sexuales a través de medios electrónicos; difusión ilegal de información, difusión de pornografía); económica (incumplimiento del deber de asistencia económica, robo de derechos de nacimiento, robo de beneficios de la actividad económica); y discurso (discurso violento contra la mujer). La violación es procesada por el Código Penal, el cual es el código penal criminal. El Instituto Salvadoreño para el Adelanto de la Mujer ("ISDEMU") tiene la tarea de supervisar la implementación de la ley y establecer refugios para mujeres asi como otros programas diseñados para ayudar a las víctimas de violencia doméstica y de violencia en base de género.
This case is a cassation appeal from a lower court judgment. The judge found the defendant guilty of attempted femicide in violation of Article 45 of the Special Comprehensive Law for a Violence-free Life for Women (Ley Especial Integral para una Vida Libre de Violencia) (“LEIV”) and sentenced him to 10 years in prison. In the underlying case, the defendant rammed the plaintiff, his ex-girlfriend, with his car against the wall twice, causing her grave injuries. A court of appeals upheld the trial court’s verdict on the basis that (1) the LEIV was the appropriate law to apply (ins the Penal Code) and (2) there was sufficient evidence to prove that the defendant had the mental state required for a conviction of attempted femicide. The defendant further appealed the verdict to the cassation court on the grounds that the LEIV is innapplicable in that it regulates acts that are already regulated by the Penal Code, which conflicts with it Article 478. Additionally, he argues that Article 45 of the LEIV states that it is indeed a double regulation of the Penal Code and may not substitute it. He concludes his appeal by arguing that as per §1 of the Penal Code, it is the exclusive form of criminal regulation, which should have been applied. The court upheld the lower court’s rulings on the basis that the decision to charge the defendant under the LEIV (as opposed to the Penal Code) was based on a determination of the specific facts, and not as a matter of law. The court added that the appeal was based on theory of the law rather than on specific law-to-facts application. Furthermore, the defendant did not argue the specific facts, which, in his opinion, made the statute inapplicable to his case. The sentence was upheld.
Este caso es la apelación de la sentencia del tribunal inferior. El juez declaró al acusado culpable de intento de femicidio, en violación del Artículo 45 de la Ley Integral Especial para una Vida Libre de Violencia para la Mujer ("LEIV") y lo sentenció a 10 años en prisión. En el caso subyacente, el acusado embistió a la demandante, su ex novia, con su automóvil contra la pared dos veces, causándole graves heridas. Un tribunal de apelaciones confirmó el veredicto del tribunal de primera instancia sobre la base de que (1) el LEIV era la ley apropiada para aplicar (en el Código Penal) y (2) había pruebas suficientes para demostrar que el acusado tenía el estado mental requerido para una condena por intento de femicidio. El acusado apeló una vez mas el veredicto ante el tribunal de casación, alegando que el LEIV no era la ley aplicable, ya que regula actos que ya están regulados por el Código Penal, lo cual hace que entre en conflicto con el artículo 478. Además, el acusado argumenta que el artículo 45 de la LEIV se establece a si mismo como una doble regulación del Código Penal y no puede sustituirlo. Concluye su apelación argumentando que, según §1 del Código Penal, es la forma exclusiva de regulación penal, que debería haberse aplicado. El tribunal afirmó las decisiones del tribunal inferior sobre la base de que la decisión de acusar al acusado bajo el LEIV (en oposición al Código Penal) se basó en una determinación de los hechos específicos, y no como una cuestión de derecho legal. El tribunal agregó que la apelación se basó en la teoría de la ley y no en la aplicación específica de la ley a los hechos. Además, el acusado no argumentó los hechos específicos, lo que, en su opinión, hizo que la ley no fuera aplicable a su caso. La sentencia fue afirmada.
Appellate Court decision (271-2013, Camara de Segunda Instancia de la Tercera Deccion de Oriente) available here: http://www.jurisprudencia.gob.sv/DocumentosBoveda/D/1/2010-2019/2014/02/B6F78.PDF
Trial Court decision (262-2013, Tribunal de Sentencia de Union) available here: http://www.jurisprudencia.gob.sv/busqueda/showFile.php?bd=1&data=DocumentosBoveda%2FD%2F1%2F2010-2019%2F2013%2F11%2FB7B6F.PDF&number=752495&fecha=12/11/2013&numero=262-2013&cesta=0&singlePage=false
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