Women and Justice: Topics: Acid violence, Domestic and intimate partner violence, Femicide

Domestic Case Law

Cправа № 482/297/21 (Case No. 482/297/21) Миколаївського апеляційного суду (Mykolaiv Court of Appeal) (2021)

Acid violence, Domestic and intimate partner violence, Femicide

For years, the appellant lived with his civil wife in the same apartment (in Ukraine, the term 'civil marriage' means cohabitation of a man and a woman without official marriage registration). While intoxicated one evening, he began to accuse his wife of cheating on him with other men and degrading his honor and dignity as a man. After a verbal conflict, the man, decided to kill his wife. In order to cause the most severe physical pain, he purposefully poured sulfuric acid from a bottle on his wife and verbally wished for her death, causing serious chemical burns. In addition, the acid fell on her minor son, which burned him. The court of first instance sentenced the man to eight years imprisonment for attempted murder, as well as causing bodily injury to the wife and her son. Also, the court imposed the obligation on the appellant to pay for the costs of their treatment. The appellant filed an appeal, arguing that the first-instance court wrongly characterized his actions because he did not want to kill his wife, but only cause her bodily injury. The Court of Appeal left the sentence unchanged, citing the following facts: when the appellant poured acid on the victim, he expressed his desire for her death; he poured the acid on her head and face, which are vital organs; and, according to the conclusion of the experts, the man poured most of the acid in the bottle on the victim.

Скаржник роками проживав зі своєю цивільною дружиною в одній квартирі (в Україні термін "цивільний шлюб" означає спільне проживання чоловіка та жінки без офіційної реєстрації шлюбу). Одного вечора, перебуваючи у стані алкогольного сп’яніння, він почав звинувачувати свою дружину в тому, що вона зраджує йому з іншими чоловіками та принижує його честь і гідність як чоловіка. Після словесної сварки чоловік вирішив убити свою дружину. З метою заподіяння сильного фізичного болю, він цілеспрямовано облив дружину сірчаною кислотою з пляшки та на словах побажав їй смерті, спричинивши серйозні хімічні опіки. Крім того, кислота потрапила на її неповнолітнього сина, від чого він отримав опіки. Суд першої інстанції засудив чоловіка до восьми років позбавлення волі за замах на вбивство, а також заподіяння тілесних ушкоджень дружині та її сину. Також суд поклав на скаржника обов'язок оплатити витрати на їх лікування. Скаржник подав апеляцію, вважаючи, що суд першої інстанції неправильно кваліфікував його дії, оскільки він не хотів вбити свою дружину, а лише заподіяти їй тілесні ушкодження. Апеляційний суд залишив вирок без змін, посилаючись на такі факти: коли скаржник облив потерпілу кислотою, він висловив бажання, аби вона померла; він вилив кислоту на її голову та обличчя, які є життєво важливими органами; та, відповідно до висновку експертів, чоловік вилив на потерпілу більшу частину кислоти із пляшки.

Republic v. Ratemo High Court of Kenya (2018)

Acid violence, Domestic and intimate partner violence, Femicide

The accused appeared at his former girlfriend’s kitchen window from outside and poured an acid-like substance on her. The substance was later determined to be sulfuric acid. The victim suffered first and second degree burns over 60% of her body, which resulted in a complication in the form of pneumonia in both lungs and caused her death. The court found that the prosecution proved its case beyond reasonable doubt and convicted the accused of murder. The court decided not to impose the death penalty and instead sentenced the accused to 15 years imprisonment because he was a first-time offender, it was an “offence of passion”, he was 22 years old, and he had a one-month-old child.

Public Prosecutor v. Various Parties Court of Appeal of Antwerp (2016)

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

An 18-year old woman died from injuries sustained during acts of exorcism (involving use of boiling water, acid, and beating) carried out at the request of her parents by a healer, a few months after she told her mother that she had homosexual feelings. At first instance, the acts were qualified as torture, and the fact that the victim was in a particularly vulnerable situation (mentally and physically) was considered an aggravating factor. Both the healer and the parents were sentenced by the lower court to prison terms (based on Article 417bis and 417ter of the Penal Code (torture)), but the court held that any possible discriminatory motive based on sexual orientation (which it considered unproven anyway) could not affect the criminal qualification, because the Penal Code does not provide for discrimination as an aggravating factor for torture. Contrary to the lower court, which qualified the acts as torture, the Court of Appeal did not qualify the acts as torture (as the intention of the defendants was not to punish the victim), but as blows and injuries intentionally inflicted without the purpose of manslaughter but leading to death under Article 401 of the Penal Code. In addition, the Court found that the aggravating factors included the failure to protect a vulnerable person (Article 405bis) and the fact that acts were committed by the parents of the victim had been the motive for the exorcism. The healer and both parents were sentenced to jail.

Mbatudde v. Uganda Court of Appeal at Kampala (2010)

Acid violence, Domestic and intimate partner violence

The victim died from concentrated sulfuric acid burns covering over 60% of his body. On the night of his death, the deceased’s female partner, the appellant, and baby spent the night with him. On the night of the attack, his landlords heard screaming coming from the apartment. When they arrived, they saw the victim, who said he did not know who attacked him, and the Appellant, who did not appear to have any burns. The appellant argued that she did not commit the attack and that they both had been attacked by a third party, possibly a former partner of the appellant. On appeal, she argued that the trial court had improperly convicted her solely based on circumstantial evidence and that the death sentence should be mitigated. The Court of Appeal rejected these arguments and upheld the conviction and sentence because of the particularly heinous nature of acid attacks.

Syson Muganga v. Uganda Court of Appeal at Kampala (2008)

Acid violence, Gender-based violence in general

The trial court found the appellant guilty of attempted murder for splashing acid on the female complainant. The appellant allegedly knocked on the victim’s door on July 28, 2001, and splashed “a corrosive substance.” The trial court relied on testimony from a security guard and the victim, who knew her attacker from school. On appeal, the appellant argued that the trial judge erred in confirming the life imprisonment sentence. The Court, after reviewing the testimony identifying the appellant, her motive, and the “vulnerable parts of the victim’s body” that were burned, found that the life sentence was reasonable for the “outrageously despicable and sadistic act.”

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

Acid violence

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

Sekandi Hassan v. Uganda Supreme Court of Uganda (2007)

Acid violence, Domestic and intimate partner violence

Appellant was convicted of murder and sentenced to death. The deceased, a 16-year-old girl, lived with her mother and brother. For approximately a year, the deceased would sneak out and have sexual intercourse with appellant, a married man who lived approximately 200 meters away from the deceased. A week before the incident, the deceased told her mother that appellant had impregnated her. This greatly displeased her mother, and she reported this to LCs officials. On the night of the incident, the deceased’s mother noticed appellant at her residence before appellant and the deceased left for the night. The next morning, the deceased was found lying by the side of the road about one mile from her home. She was in critical condition and had severe acid burns. Unable to speak, she wrote her information on a piece of paper, including her name and the name of the person who brought her to her location (appellant). She died later that day, and a medical examiner found the cause of death to be severe burns and pulmonary edema. Appellant was later arrested and convicted. He appealed the conviction, arguing that the conviction rested on weak circumstantial evidence and that his alibi deserved re-evaluation. On appeal, the Supreme Court ruled against appellant. They found that the case against appellant relied on the credibility of the deceased’s mother and brother, who, due to proximity and prior acquaintance, knew appellant very well. The court also found that the fact that the deceased’s mother was pursuing actions against appellant gave him a motive for the murder, so as to avoid a possible defilement charge. In sum, the court held that there was ample evidence to convict appellant over his alibi and hence dismissed the appeal.

Legislation

Ley 599 de julio 24, 2000 (Código Penal Colombiano) (2000)

Abortion and reproductive health rights, Acid violence, Domestic and intimate partner violence, Femicide, Gender-based violence in general

This law serves as the basis for the Colombian Criminal Code, it enumerates conducts that constitute crimes and their sanctions. The code sets forth several gender-related crimes. Article 104A criminalizes femicide, meaning the killing of women because they are female. Article 123 sanctions people who forcibly terminate a pregnancy. Article 187 prohibits forcing in-vitro treatments on women against their will. Article 229 regulates domestic violence offenses. Articles 208 and following criminalize rape and establish aggravating circumstances including, among others, if the victim is under 14 years old, if the victim is incapable of defending him or herself, if the abuser used violence and if the abuse was held within the household. Article 116 A prohibits the use of chemical agents or corrosive substances that cause injuries or harm when they come into contact with human tissue. Finally, for some crimes, the code treats as an aggravating circumstance the fact that the victim is a woman. Law 1719 of June 18, 2014 modified and expanded these provisions.

Esta ley que contiene el Código Penal colombiano enumera las conductas que constituyen delitos y sus sanciones. El código establece varios delitos relacionados con el género. El artículo 104A tipifica como delito el feminicidio, es decir, el asesinato de mujeres solo por el hecho de ser mujeres. El artículo 123 sanciona a las personas que obligan a la mujer a interrumpir su embarazo. El artículo 187 prohíbe realizar tratamientos in vitro a mujeres en contra de su voluntad. El artículo 229 regula el delito de violencia doméstica. Los artículos 208 y siguientes tipifican como delito la violación y establecen circunstancias agravantes que incluyen, entre otras, que la víctima sea menor de 14 años, que sea incapaz de defenderse por sí misma, si el abusador usó violencia y si el abuso se llevó a cabo dentro del hogar. El artículo 116 A prohíbe el uso de agentes químicos o sustancias corrosivas que causen lesiones o daños cuando entren en contacto con tejidos humanos. Finalmente, para algunos delitos, el código trata como circunstancia agravante el hecho de que la víctima sea mujer. La Ley 1719 de junio 18, 2014 modificó y amplió algunas de estas disposiciones.

The Criminal Law (Amendment) Act 2013 (2013)

Acid violence, Sexual harassment, Sexual violence and rape, Stalking, Trafficking in persons

The Criminal Law (Amendment) Act, 2013 was passed in the aftermath of the Nirbhaya case wherein a female student was gang-raped in December 2012. The Act amended several provisions of the Indian Penal Code, Indian Evidence Act, and the Criminal Procedure Code. By way of this amendment, several new offenses have been recognized and incorporated into the Indian Penal Code, including acid attack (Section 326 A & B), voyeurism (Section 354C), stalking (Section 354D), attempt to disrobe a woman (Section 354B), sexual harassment (Section 354A), and sexual assault which causes death or injury causing a person to be in persistent vegetative state (Section 376A). The Act also amended the already existing offenses to make them more stringent. Notably, the definition of rape in Section 375 was broadened to include acts in addition to penetration. Also, Section 370 was replaced with Section 370 and 370A. The amended section incorporated the definition of trafficking as provided in the UN Trafficking Protocol while excluding “forced labour.” Also see the Criminal Law (Amendment) Act 2018 for additional amendments to rape and sexual violence crimes.

Reports

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

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

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

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

Acid violence

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

International Case Law

“White Van" (Paniagua-Morales et al.) v. Guatemala Inter-American Court of Human Rights (1998)

Acid violence

The IACHR submitted this case to the Court to determine whether Guatemala had violated the American Convention on Human Rights by "acts of abduction, arbitrary detention, inhuman treatment, torture and murder committed by agents of the State, of Guatemala against eleven victims," some of them women. The Court held that Guatemala violated Articles 1(1), 4(1), 5(1), 5(2), 8(1) and 25 of the American Convention on Human Rights, as well as Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture. The Court ordered Guatemala to investigate and punish those responsible for the violations, and to pay reparations to the victims and their next of kin.

La Comisión Internacional de Derechos Humanos presentó este caso a la Corte para determinar si Guatemala había violado la Convención Americana sobre Derechos Humanos por "actos de secuestro, detención arbitraria, trato inhumano, tortura y asesinato cometidos por agentes del Estado de Guatemala contra once víctimas", algunos de ellas mujeres. La Corte sostuvo que Guatemala en efecto violó los artículos 1 (1), 4 (1), 5 (1), 5 (2), 8 (1) y 25 de la Convención Americana sobre Derechos Humanos, así como los artículos 1, 6 y 8. de la Convención Interamericana para Prevenir y Sancionar la Tortura. La Corte le ordenó a Guatemala investigar y sancionar a los responsables de las violaciones, y pagar compensación a las víctimas y sus familiares.