Women and Justice: Topics: Domestic and intimate partner violence, Property and inheritance rights

Legislation

Art. 28b of the Swiss Civil Code: Domestic Violence, Threats or Harassment (2019)

Domestic and intimate partner violence, Property and inheritance rights

This article provides that in order to obtain protection from violence, threats or harassment, a person (the “applicant”) may request a court to order the offending party to refrain from approaching the applicant or the applicant’s home, contacting and harassing the applicant, and frequenting specific locations. If the applicant lives in the same dwelling as the offending party, the applicant may ask the court to order the offending party to leave the dwelling for a specified period, which may be extended on one occasion for good cause. The statute further provides that, when justified by the circumstances, the court may require the applicant to pay reasonable compensation for his or her exclusive use of the dwelling, or, with the landlord’s consent, transfer the rights and obligations under the lease to the applicant alone. The statute requires the Swiss Cantons to designate an authority and to enact rules for the immediate expulsion of the offending party from the joint dwelling in urgent cases. Unofficial English translation available here.



Art. 28b of the Swiss Civil Code: Domestic Violence, Threats or Harassment (2019)

Domestic and intimate partner violence, Property and inheritance rights

This article provides that in order to obtain protection from violence, threats or harassment, a person (the “applicant”) may request a court to order the offending party to refrain from approaching the applicant or the applicant’s home, contacting and harassing the applicant, and frequenting specific locations. If the applicant lives in the same dwelling as the offending party, the applicant may ask the court to order the offending party to leave the dwelling for a specified period, which may be extended on one occasion for good cause. The statute further provides that, when justified by the circumstances, the court may require the applicant to pay reasonable compensation for his or her exclusive use of the dwelling, or, with the landlord’s consent, transfer the rights and obligations under the lease to the applicant alone. The statute requires the Swiss Cantons to designate an authority and to enact rules for the immediate expulsion of the offending party from the joint dwelling in urgent cases. Unofficial English translation available here.



Art. 28b of the Swiss Civil Code: Domestic Violence, Threats or Harassment (2019)

Domestic and intimate partner violence, Property and inheritance rights

This article provides that in order to obtain protection from violence, threats or harassment, a person (the “applicant”) may request a court to order the offending party to refrain from approaching the applicant or the applicant’s home, contacting and harassing the applicant, and frequenting specific locations. If the applicant lives in the same dwelling as the offending party, the applicant may ask the court to order the offending party to leave the dwelling for a specified period, which may be extended on one occasion for good cause. The statute further provides that, when justified by the circumstances, the court may require the applicant to pay reasonable compensation for his or her exclusive use of the dwelling, or, with the landlord’s consent, transfer the rights and obligations under the lease to the applicant alone. The statute requires the Swiss Cantons to designate an authority and to enact rules for the immediate expulsion of the offending party from the joint dwelling in urgent cases.



Schweizerisches Strafgesetzbuch/Swiss Penal Code, Article 213: Incest (2019)

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

Provides for criminal penalties of imprisonment for not more than three years or a monetary penalty for any person who has sexual intercourse with a blood relative in direct line or with a brother or sister, or a half-brother or half-sister.



Family Law Act of 1975 (2018)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Section 4AB defines family violence, covering within its scope violent, threatening or other behavior by a person that coerces or controls a member of the family or causes that member to be fearful. Further, 4AB(2) sets out a list of behaviors that may constitute family violence, including assault, stalking, repeated derogatory taunts, intentionally damaging or destroying property, and unreasonably withholding financial support. The Act provides for divorce and nullity of marriage if the marriage has broken down irreparably. Furthermore, section 65AA deals with parental orders. The court must, pursuant to section 60CG, facilitate the child’s best interest but also to the extent possible ensure that any parental order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence.



Domestic Violence Act and the Domestic Violence Regulations (1999)

Domestic and intimate partner violence

The Domestic Violence Act and the Domestic Violence Regulations promulgated thereunder offer complainants (any person in a domestic relationship who alleges she/he is the subject of domestic violence, including a child in the care of the complainant) the maximum protection possible from domestic abuse by imposing obligations on the police and other organs of state to prevent and assist the elimination of domestic violence (defined as including, inter alia, sexual abuse, physical abuse, stalking and harassment). Persons deemed to be in a domestic relationship include, inter alia, persons married by any law or custom, persons living (or who recently lived) together, parents of a child and parties in a romantic or sexual relationship. The Act allows any complainant to obtain a protection order against a respondent by application to the court and allows for interim orders to be granted without the respondent having received notice of such application in certain circumstances. When granting a protection order the court must make an order for the arrest of the respondent and may make an order to confiscate any weapons in the respondent’s possession.



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

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

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



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

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

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

 

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



The Domestic Violence Act (2007)

Domestic and intimate partner violence, Harmful traditional practices

The DVA protects and provides relief for victims of domestic violence. It defines and prohibits domestic violence in the form of physical, emotional, sexual, and economic abuse as well as acts of abuse derived from any cultural or customary practices that discriminate against or degrade women. Examples include, but are not limited to, forced virginity testing, female genital mutilation, pledging women and girls to appease spirits, forced marriage, child marriage, forced wife inheritance or sexual intercourse between fathers-in-law and newly married daughters-in-law. The penalty for committing an act of domestic violence as defined under section 3 is a fine not exceeding USD 5,000 and/or imprisonment for a period not exceeding ten years. The DVA also imposes duties on the police. Stations must have, where possible, one police officer with domestic violence expertise. Further, a police officer who receives a complaint of domestic violence must advise the complainant about how to obtain shelter or medical treatment and about their right to seek relief under the DVA. The DVA also requires that complaints made to police officers should be taken by officers of the same sex as the complainant, if complainant so requests.  Moreover, police officers have the authority to arrest a person suspected of committing an act of domestic violence without a warrant and bring that person before a magistrate within 48 hours. Finally, the DVA provides for protection and relief to survivors of domestic violence by enabling them to apply for a protection order when an act of domestic violence has been committed, is being committed, or is threatened. It also allows someone acting with the consent of the complainant to make an application for a protection order on his or her behalf with the leave of the court. A person who fails to comply with a protection order is guilty of an offense and liable for a fine not exceeding USD 200 and/or imprisonment for up to five years.



Constitution of Zimbabwe (Amendment No. 20) (2013)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Employment discrimination, Gender discrimination, Harmful traditional practices, Property and inheritance rights

Zimbabwe’s new 2013 Constitution addressed women’s rights and gender equality, and its bill of rights addressed damaging cultural and discriminatory practices. A gender commission was also established to accelerate the implementation of provisions related to women. More specifically, the Constitution recognized gender equality and women’s rights among Zimbabwe’s founding values and principles. It mandated that the State and all its institutions consider gender equality in laws and policy, to implement measures that provide care and assistance to mothers, and to grant women opportunities to work. The State must also prevent domestic violence, ensure marriages are consensual, and that there are equal rights in marriages. In the event of dissolution of marriage, the State must provide for the rights of spouses and children. The state is also obliged to afford girls and boys equal educational opportunities. The bill of rights specifically stipulates that women are equal to men, including deserving equal opportunities in political, economic, and social activities. Provision was also made for legislative seats reserved for women in the National Assembly. Finally, gender equality must be considered in making judicial appointments.



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.



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: 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.



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.



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. § 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.



The Combating Domestic Violence Act (2003)

Domestic and intimate partner violence

The Combatting of Domestic Violence Act (the “Act”) prohibits domestic violence, which it broadly defines to include physical abuse, sexual abuse, economic abuse, intimidation, harassment, entering the private residence of the complainant without consent, emotional, verbal or psychological abuse, and any threats of the above. Various types of relationships are also covered, including customary or religious marriages and relationships where the parties are not married. The Act amends the Criminal Procedure Act 1977, and allows courts to issue protection orders for victims and to punish perpetrators with a fine not exceeding N$8,000 and/or imprisonment not exceeding two years. 



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.”



Codice Civil (2019)

Domestic and intimate partner violence, Gender discrimination, Property and inheritance rights

The Italian Civil Code provides for succession and inheritance, each of which require equal treatment of male and female children (Book II, Title I). In cases in which the conduct of a spouse or co-habitant causes serious physical or mental harm to the other spouse or co-habitant, but the conduct does not constitute a criminal act, the court may issue a family order of protection. A judge may order the party concerned to stay away from the home, the spouse's place of work, the residences of extended family members, and the children's school (Book I, TItle IX, art. 342). The judge can also order the intervention of social services or a family mediation center.



Codice Penal (1930)

Domestic and intimate partner violence, Female genital mutilation or female genital cutting, Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The Italian Penal Code prohibits domestic violence (art. 572), female genital mutilation (art. 583), and harassment (art. 612). Punishable crimes against a person's freedom also include slavery and forced prostitution (art. 600), human trafficking (art. 601), and sexual violence (art. 609). Sexual acts coerced through violence, threats, or abuse of authority carry a prison sentence of five to 10 years. Aggravating factors in sexual violence cases include pregnancy, a victim under 14 years old, and use of a weapon. Sexual acts with a minor are not punishable when(1) the perpetrator is also a minor, (2) the minor is at least 13 years old, and (3) the age difference between the two is no more than three years (art. 609).



Código Penal (Penal Code) (2018)

Abortion and reproductive health rights, Domestic and intimate partner violence, Female genital mutilation or female genital cutting, Forced and early marriage, Gender-based violence in general, LGBTIQ, Sexual harassment, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Under section 142 (Crimes against people) of the Portuguese Penal Code, abortion is permitted if performed by a doctor and in the following scenarios: (1) risk of death or grave physical or mental harm to the mother; (2) the fetus is in risk of grave illness or malformation, up to the 24th week of pregnancy; (3) pregnancy was caused by rape or sexual assault, up to the 16th week of pregnancy; (4) by the mother’s choice, up to the 10th week of pregnancy. Article 118 provides that the statute of limitations on crimes of sexual violence and female genital mutilation against minors do not expire until the victim is at least 23 years old. Prostitution is not considered a crime in Portugal. However, the economic exploitation of prostitution by third parties is considered a crime under the Penal Code. A homicide that reveals “especial censurabilidade ou perversidade” (special censorship or perversity) is punishable with 12 – 25 years imprisonment. These special circumstances include a current or former spousal relationship between the perpetrator and victim, a sexual motive, and hate crimes including those based on sex, gender, sexual orientation, and gender identity. Article 144a bans female genital mutilation and imposes a prison sentence of two to 18 years. Articles 154b, 159, and 160 ban forced marriage, slavery, and human trafficking, respectively. Article 163 bans sexual coercion, which carries a sentence of one to eight years for coercing a significant sexual act. Article 164 punishes “violação”, which is forcible intercourse, with imprisonment for one to six years.



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

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

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



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

Domestic and intimate partner violence

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



Domestic Violence Act (2000)

Domestic and intimate partner violence, Property and inheritance rights

Belize enacted the Domestic Violence Act #19 in 2000 to provide greater protection and assistance to domestic violence victims.  It was enacted in recognition of the pervasive nature of domestic violence in Belize society in order to increase the resources available to deal with domestic violence cases.  The Domestic Violence Act defines domestic violence and governs protective orders, occupation orders, tenancy orders, other orders relating to counselling, the use of furniture and household effects, payment of rent, mortgage, utilities and compensation for any monetary loss due to domestic violence.  Where a protective order or interim protective order is violated, the individual violating the order may be liable to a fine of up to $5,000 or to imprisonment for up to six months.  (Section 21)



Married Persons (Protection) Act (2000)

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

Under the Married Person (Protection) Act, a married woman can apply for an order that she is not “bound to cohabit with her husband,” for legal custody of children under the age 16, and for maintenance.  A married woman’s application for one of these orders must include either a husband’s assault on her of requisite seriousness, desertion, cruelty, willful neglect to provide maintenance, the husband is a “habitual drunkard,” the husband had a venereal disease and insisted on sex, the husband compelled her to prostitution, or adultery.  The same orders are available to a husband, but on more limited grounds: the wife is a “habitual drunkard,” cruelty, adultery, or desertion.  The Supreme Court may still make an order for the judicial separation of a husband and wife and for the payment of alimony, which is separate from the legal options available under this Act.



Domestic and Family Violence Act (Northern Territory) (2017)

Domestic and intimate partner violence

The Domestic and Family Violence Act 2007 (NT) empowers the Magistrates’ Court to issue orders for the protection for victims of domestic violence.  A domestic violence order may impose restrictions on the ability of the person whom the order is against to contact, use violence against, damage the property of, threaten, stalk or harass the victim.  A domestic violence order may be issued to victims including: a spouse or former spouse of the perpetrator of the violence; a person who is or has been living with the perpetrator; a relative or former relative of the perpetrator; and a person who has or has had an intimate personal relationship with the perpetrator.  The domestic violence order may be sought by the victim (if over 15 years old), his/her legal representative, a police or child protection officer, or a court.  Knowingly breaching a domestic violence order is a criminal offence, punishable by up to 400 penalty units ($62,000 as of August 2018) or imprisonment for two years.  The domestic violence order remains in force for the period stated, but may be revoked earlier by the victim’s consent or a court order.



The Revised Criminal Code of the Federal Democratic Republic of Ethiopia (2004)

Abortion and reproductive health rights, Domestic and intimate partner violence, Female genital mutilation or female genital cutting, Forced and early marriage, Gender-based violence in general, Harmful traditional practices, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

The Ethiopian Criminal Code criminalizes most forms of violence against women and girls including physical violence within marriage or cohabitation (Article 564), Female Genital Mutilation/ Circumcision (Articles 565-6), trafficking women (Article 597), rape (Articles 620-28), prostitution/exploitation of another for financial gain (Article 634), and early marriage (Article 648). The Criminal Code outlaws abortion, except in cases of rape or incest, risk to the life of the mother or fetus, severe or incurable disease or birth defect, a mother who is mentally or physically incapable of raising a child, or “grave and imminent danger” that can only be addressed by terminating the pregnancy.



Domestic Violence (Amendment) Act 2017 (2017)

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

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


Equal Rights of the Customary Marriage Law of 1998 (1998)

Domestic and intimate partner violence, Dowry-related violence, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights

The Equal Rights of the Customary Marriage Law of 1998 (the “Law”) repeals previous Liberian marriage laws and provides various rights and protections for women within the context of marriage. These include:

  1. Entitling a wife to one-third of her husband’s property (Section 2.3).
  2. Providing that a husband must respect his wife’s human rights (Section 2.5).
  3. Affirming that a wife’s property acquired before and during the marriage is exclusively hers; she can deal with this property in her own name as she sees fit without consent of her husband (Section 2.6(a)).
  4. Confirming that every woman has a right to marry a man of her choosing (Section 2.10).
  5. Entitling a wife to one-third of her husband’s property when her husband dies (Section 3.2).
  6. Entitling a widow to remain on the premises of her late husband (or to take another husband of her choice and vacate the late husband’s premises) (Section 3.3).
  7. Entitling a widow to administer her husband’s estate by making a petition to the probate court of their jurisdiction (Section 3.5).

The law also prohibits some of the common harmful practices towards wives, including: 1)  husband taking a dowry from his wife or his wife’s parents (Section 2.2); 2) arranging for a girl under the age of 16 to be given in marriage to a man (Section 2.9); 3) compelling a widow to marry a member of her late husband’s family (Section 3.4(a)).



Lei Nº 11.340 (2006)

Domestic and intimate partner violence, International law

On August 7, 2006, Law No. 11.340 was enacted to create a new body of legal provisions tackling the issue of domestic violence against women in Brazil. Commonly known as “Lei Maria da Penha” (or Maria da Penha Act), the new law criminalized different forms of domestic violence against women, established stricter punishment for offenders, facilitated preventive arrests, and created other special protective and relief mechanisms for women, including special courts, designated police stations, and shelter for women. The new law, considered a landmark statute, was named after Maria da Penha, a Brazilian bio-pharmacist who became paraplegic after being shot and electrocuted by her husband. After nearly two decades of ineffective criminal prosecution, Maria da Penha took the case to the Inter-American Commission on Human Rights, where Brazil was ultimately criticized for its inefficient treatment of issues regarding domestic violence (case available here). In effect since 2006, the Maria da Penha Act has been praised by the United Nations as one of the most progressive laws in combatting domestic violence against women.



On the Amendments to the Criminal and Criminal Procedure Codes of Ukraine in order to implement the provisions of the Council of Europe Convention on preventing and combating violence against women and domestic violence (2017)

Domestic and intimate partner violence, Forced and early marriage, Forced sterilization, Gender discrimination, Gender-based violence in general, International law, Sexual violence and rape

The Criminal and Criminal Procedural Codes of Ukraine were amended in December 2017 to adopt provisions of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) adopted in 2011.  As a result of these amendments, forced marriage (i.e. forcing a person to marry or to continue being in a forced marriage, or to enter into a cohabitation without official registration of marriage, or to continue such cohabitation) is punishable by restraint of liberty for up to three years or imprisonment for the same period and domestic violence (i.e. deliberate systematic violence against a spouse or ex-spouse or other person with whom the perpetrator is in family or intimate relationship, leading to physical or psychological suffering, disorder of health, disability, emotional dependence) is punishable with public works for up to 240 hours or detention for up to six months, or restraint of liberty for up to 5 years or imprisonment for up to two years.  In addition, the amendments:

  • introduce new corpus delicti, such as “illegal abortion or sterilization” (i.e. performed by a person without medical education or without consent of the victim) which is punishable by imprisonment for up to 3 years;
  • establish punishment for rape of a spouse or ex-spouse or other person with whom the perpetrator is in a family or intimate relationship (imprisonment for up to 10 years); and
  • increase punishment for sexual violence to up to 15 years, if such acts resulted in serious consequences.


On Preventing and Combating Domestic Violence (No. 2229-VIII) (2017)

Domestic and intimate partner violence

The Domestic Violence Protection Act of Ukraine (the “Act”) introduces the concept of “domestic violence” which is defined to include action or inaction of physical, sexual, psychological or economic violence committed within a family or between relatives, or between former or current spouses or other persons who live (or lived) together as a family, irrespective of whether the person who committed domestic violence lives (or lived) together with the victim, as well as a threat of similar actions. The Act contains a series of governmental steps aimed at combatting domestic violence and improving the status of victims of domestic violence, which includes, without limitation, that the Ukrainian government maintain a unified state register of cases of domestic violence and sex-based violence and to establish a relevant call center, the adoption of immediate injunctions with respect to domestic violence offenders, provision of free of charge legal assistance to all victims in all cases of domestic violence, free medical, social and psychological help, and reimbursement of inflicted harm and damage to the victim’s physical and psychological health. The Act, through amendments to the Code of Administrative Offences Act, makes domestic violence or sex-based violence punishable by a fine in the amount of 20 non-taxable minimal wages or public works for the period from 30 to 40 hours or administrative detention for the period of up to seven days. If such actions are repeated within a year, the punishment is increased up to 40 non-taxable minimal wages, public works for the period of up to 60 hours or administrative detention for up to 15 days.



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

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

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



Civil Code of Iran (Marital Duties) (1969)

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

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



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

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

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



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

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

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



Anti-Stalking Control Law (Act No. 81 of 2000) (2000)

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

The Stalker Control Law prohibits acts of stalking, against a victim or the victim’s spouse, at the victim’s residence, place of employment or school.  In addition to broadly prohibiting stalking, the statute also includes lying in wait, demanding a meeting, violent acts, silent phone calls and sending dirty or explicit items, animal carcasses or sexually insulting materials. The Chief of Police may issue a warning, and the Public Safety Commission may issue a prohibition order, upon petition by the victim. To ensure its effectiveness, the statute provides for imprisonment with work or a fine to be imposed on people who repeatedly violate the Law or who violate a prohibition order.



Ley Contra la Violencia Domestica con sus Reformas (Law Against Domestic Violence and Reforms, 1997 and 2005) (2005)

Domestic and intimate partner violence

Legislative Decree No. 132-97 (the “Act”) declares that the State is committed to protecting the physical, patrimonial, and sexual integrity of women against any form of violence by their spouse, former spouse, partner, ex-partner or any similar relationship. The Act is significant because it was the first time the State passed a law requiring the protection of women against domestic violence. In addition, it called on the State to adopt public policy measures necessary to prevent, punish, and ultimately eradicate domestic violence against women.

 

El Decreto Legislativo N ° 132-97 (la "Ley") declara que el Estado se compromete a proteger la integridad física, patrimonial y sexual de las mujeres contra cualquier forma de violencia por parte de su cónyuge, ex cónyuge, pareja, ex pareja o cualquier relación similar. La Ley es importante porque fue la primera vez que el Estado aprobó una ley que exige la protección de las mujeres contra la violencia doméstica. Además, obliga al Estado a adoptar las medidas políticas y públicas necesarias para prevenir, sancionar y, en última instancia, erradicar la violencia doméstica contra las mujeres.

 



Legislative Decree No. 23-2013 (2013)

Domestic and intimate partner violence

As published in El Diario Oficial La Gaceta, the official newspaper of Honduras on April 6, 2013, Article 118-A defines femicide as a crime punishable by 30 to 40 years’ imprisonment.

 

Como se publicó en El Diario Oficial La Gaceta, el periódico oficial de Honduras el 6 de abril de 2013, el Artículo 118-A define el femicidio como un delito castigable con 30 a 40 años de prisión. 



Reform of Article 23 of the Law against Domestic Violence (Legislative Decree No. 66-2014) (2014)

Domestic and intimate partner violence

Legislative Decree No. 66-2014 guarantees to victims of domestic violence the right to investigate, search, receive, and disseminate information that allows the victim to prevent an aggressor from being protected by the State.

 

El Decreto Legislativo No. 66-2014 les garantiza a las víctimas de violencia doméstica el derecho a investigar, buscar, recibir y difundir información que permita a la víctima evitar que el agresor esté protegido por el Estado. 



Domestic Violence Act of 2010 (2010)

Domestic and intimate partner violence

The Domestic Violence Act of 2010 (the “DVA”) defines and prohibits domestic violence.  The penalty for domestic violence is imprisonment not to exceed two years or the payment of a fine not to exceed forty-eight currency points, or both.  At the Court’s discretion, the perpetrator may also have to provide monetary compensation to the victim.  Romantic and other familial relationships are “domestic,” and marriage is expressly not required.  Domestic violence complaints may be brought before local council courts (“LC courts”) pursuant to the procedures outlined in the DVA, which require that the LC refer the matter to the police and local magistrate court if the perpetrator is a repeat offender, the perpetrator is likely to continue to harm the victim, and the LC court’s opinion is that police and magistrate court involvement is warranted.  LC courts must also inform the police and magistrate if there are children involved in the domestic relationship.  Appeals and other procedural details about LC court proceedings can be found in the Local Council Act of 2006.  In complaints made to police officers, survivors have the right to give their statement to an officer of the same sex.  The DVA requires that magistrate courts follow the Family and Children Court Rules (from the Children Act of 2006) in domestic violence cases.  Finally, the DVA sets parameters for interim and permanent protection orders.  The DVA and the Penal Code do not criminalize a husband’s rape of his wife, or so-called “marital rape.”  A proposed bill, the Domestic Relations Bill of 2003, would criminalize such actions, but Parliament has repeatedly declined to pass it.  



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.”



Domestic Case Law

Z.D.C. v. E.M.S. Rechtbank van eerste aanleg te Antwerpen (Court of First Instance in Antwerp) (2017)

Domestic and intimate partner violence, LGBTIQ

The two accused were prosecuted for invading the home of the two victims and assaulting them, which temporarily prevented the victims from being able to work. The first accused organized the crime because she could neither accept the breakup with one of the victims nor the fact that the victim was in a relationship with a man. Additionally, the first accused created a false Facebook profile to make fun of one victim’s sexual orientation and to convince one victim to break up with the other. The Court found that the motive of the crime was, among others, the sexual orientation of the victims, which is an aggravating circumstance of the assault. The Court found that the facts regarding the first accused had been clearly established. However, the interrogation and the investigation did not provide the court with enough evidence to hold the second accused criminally liable. The Court convicted the first accused and imposed a sentence of three years imprisonment and a fine of EUR 100.00 (increased with the multiplication factor of 50, i.e., in total EUR 5000), but suspended for five years if the accused complied with the terms of probation.



The Queen v. Kilic High Court of Australia (2016)

Domestic and intimate partner violence

This domestic violence case involved an appeal against a sentencing decision. The defendant set fire to the victim when she was 12 weeks pregnant and caused serious injury. After the attack, she terminated her pregnancy due to the permanent nature of her injuries. The trial court sentenced him to 15 years imprisonment. On appeal by the defendant, the Court of Appeal decided that this was “manifestly excessive” compared to other cases of serious injury by fire and resentenced the defendant to 10 years and six months imprisonment. On appeal by the prosecution, the High Court of Australia held that the Court of Appeal had erred in decreasing the sentence and pointed out that there were not enough comparable cases of intentionally causing serious injury by fire and the few cases mentioned could not establish a sentencing pattern.



Munda v. Western Australia High Court of Australia (2013)

Domestic and intimate partner violence, Femicide

This domestic violence case involved an appeal against a sentencing decision. The defendant was found guilty and sentenced to five years and seven months imprisonment for the manslaughter of his spouse after a history of domestic violence against his wife and other family members. The trial court considered the defendant's circumstances of disadvantage – that he was an Aboriginal man and grew up in an environment that normalized violence and alcohol abuse – as mitigating factors. In the first appeal, the prosecution successfully argued that the sentence was manifestly inadequate, and the Court of Appeal increased the sentence to seven years and nine months. The defendant then appealed to the High Court of Australia, arguing that there were insufficient grounds for the Court of Appeal to interfere with the original sentence and ignore the mitigating factors considered in the original judgment, in particular his social disadvantage. The High Court dismissed the appeal, finding that the first appellate court gave proper weight to the defendant’s social disadvantages and acted properly within its discretion in the resentencing.



J. v. The Queen High Court of Australia (2018)

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

In 2015, the appellant was charged and convicted for committing five sexual offenses against his sister. The had purportedly occurred over  years,. Most of the charged offenses, sexual exploitation of a child and two rapes, occurred when the appellant was an adult, but prosecutors also charged him with an indecent assault committed when he was 11 or 12 years old and thus presumed to be incapable of the offense. To rebut this presumption, the prosecution offered evidence of the appellant’s earlier, uncharged acts of sexual violence against his sister beginning when he was five or six years old. In the first appeal, the Court of Criminal Appeal found that the prosecution’s rebuttal evidence was insufficient to overcome the doli incapax presumption for the indecent assault charge and the evidence was “too sparse” to sustain a conviction for the third count in the indictment. The court upheld the other three convictions. In this appeal, the High Court examined whether it was permissible for the prosecution to use evidence of the dismissed charges for “contextual” purposes related to the remaining three charges, each of which the appellant was convicted. In dismissing this appeal, the High Court found unanimously that the evidence was relevant because it illustrated the family background in which the appellant and his sister were raised and that it was admissible “relationship evidence.” The court found that without such contextual evidence, the sexual abuse claims could easily have been seen as implausible.



Decision of the Constitutional Tribunal, Case 2208/2013 Constitutional Tribunal (2013)

Domestic and intimate partner violence

The Court held that it was not empowered to impose measures that guaranteed the physical and psychological integrity of domestic violence victims when other tribunals and bodies established for that purpose were competent. However, plaintiffs have the right to make the requests from the competent courts to take necessary measures in order to enforce its orders, using persuasive or coercive means.

La Corte sostuvo que no estaba facultada para imponer medidas que garantizaran la integridad física y psicológica de las víctimas de violencia doméstica donde otros tribunales y organismos establecidos con ese fin eran competentes. Sin embargo, los demandantes tienen el derecho de hacer las solicitudes de los tribunales competentes para tomar las medidas necesarias para hacer cumplir sus órdenes, utilizando medios persuasivos o coercitivos.



Decision of the Constitutional Tribunal, Case 1961/2013 Constitutional Tribunal (2013)

Domestic and intimate partner violence, Gender discrimination

The Constitutional Tribunal held that the conduct of the municipal authorities forcing a victim of gender violence to reconcile with her aggressor under the threat of taking her children to a shelter violates the right of women to live free from violence. The Tribunal held that this conduct constituted undue harassment.

El Tribunal Constitucional sostuvo que la conducta de las autoridades municipales, obligando a una víctima de violencia de género a reconciliarse con su agresor bajo la amenaza de llevar a sus hijos a un refugio es contra el derecho de las mujeres a vivir libres de violencia. El Tribunal sostuvo que esta conducta constituía indebida acoso.



Decision of the Constructional Tribunal, Case 0033/2013 Supreme Tribunal: Criminal Bench (2017)

Domestic and intimate partner violence

The Supreme Tribunal confirmed the decision of the Appeal Court, which refused to review the decision of the First Instance Court that had allowed summary proceedings in a case of domestic violence and had sentenced the accused to two years of prison. The Supreme Tribunal held that the Court of Appeal had sufficiently reasoned its decision by holding that the judge of First Instance had correctly applied Article 272 of the Criminal Code, which provides for abbreviated proceedings and for the imposition of the maximum penalty suggested by the public ministry where the accused pleads guilty and agrees with the public ministry to abbreviated proceedings.  

El Tribunal Supremo confirmó la decisión del Tribunal de Apelación, que se negó a revisar la decisión del Tribunal de Primera Instancia que había permitido un proceso sumario en un caso de violencia doméstica y había condenado al acusado a dos años de prisión. El Tribunal Supremo sostuvo que el Tribunal de Apelación había razonado suficientemente su decisión al sostener que el juez de Primera Instancia había aplicado correctamente el Artículo 272 del Código Penal, que prevé un procedimiento abreviado y la imposición de la pena máxima sugerida por el ministerio público donde el acusado se declara culpable y está de acuerdo con el ministerio público para abreviar los procedimientos.



Resolución Nº 01439 - 2014, Expediente: 11-000056-0532-PE Tribunal de Apelación de Sentencia Penal II Circuito Judicial de San José (2014)

Domestic and intimate partner violence, International law

The Court established that for a cause of action based on a threat against a woman to meet the justiciability criteria pursuant to article 27 of the Law of Criminalization of Violence against Women (Ley de Penalización de Violencia contra la Mujer), it is necessary that the conduct be executed in a context of a (1) marriage or of (2) factual union.

La Corte estableció que para que una causa de acción basada en una amenaza contra una mujer cumpla con los criterios de justiciabilidad, en conformidad con el artículo 27 de la Ley de Penalización de Violencia contra la Mujer, es necesario que la conducta se haya ejecutado en un contexto de (1) matrimonio o de (2) unión de hecho.



Resolución Nº 00355 - 2016, Expediente: 12-110068-0671-TP Tribunal de Apelación de Sentencia Penal: III Circuito Judicial de Alajuela en San Ramón (2016)

Divorce and dissolution of marriage, Domestic and intimate partner violence, International law

The Court established a unified standard of the legal meaning of a “factual union” (unión de hecho). This term is used in the Law of Criminalization of Violence against Women (Ley de Penalización de Violencia contra la Mujer) and in the Family Code (Código de Familia). However, the definition is composed of different elements under each of these legislations. For example, in the Family Code’s definition, the requirement for the marital union to have lasted for a three-year term is considered unnecessary in order to protect the life, free will, physical integrity, and the woman’s dignity in a marriage or factual union. In the unified standard, the Court established that the necessary elements of a factual union are the following: (1) stability (which excludes periodic relationships); (2) publicity (which excludes furtive relationships); (3) cohabitation (which excludes superficial relationships); and (4) singularity (which excludes multiplicity). The Court recognized these elements and acknowledged that they were also recognized by the Convention of Belém do Pará, establishing that it is also considered domestic violence when the aggressor lives with the victim (cohabitation).

El Tribunal estableció una definición legal unificada del significado de una “unión de hecho.” Dicho término se utiliza en la Ley de Penalización de la Violencia contra la Mujer y en el Código de la Familia. Sin embargo, la definición se compone de diferentes elementos en cada una de estas legislaciones. Por ejemplo, en la definición del Código de la Familia, el requisito de que la unión matrimonial haya durado un período de tres años se considera innecesario para proteger la vida, el libre albedrío, la integridad física y la dignidad de la mujer en un matrimonio o en una unión de hecho. En la norma unificada, la Corte estableció que los elementos necesarios de una unión de hecho son los siguientes: (1) estabilidad (lo cual excluye las relaciones periódicas); (2) publicidad (lo cual excluye relaciones furtivas); (3) la cohabitación (lo cual excluye las relaciones superficiales); y (4) la singularidad (lo cual excluye la multiplicidad). La Corte reconoció estos elementos y reconoció que también fueron reconocidos por la Convención de Belém do Pará, estableciendo que también se considera violencia doméstica cuando el agresor vive con la víctima (convivencia).



Resolución Nº 00618 - 2018, Expediente: 12-021945-0042-PE Tribunal de Apelación de Sentencia Penal: II Circuito Judicial de San José (2018)

Domestic and intimate partner violence, International law

The court emphasized that in order to prove a domestic violence cause of action, the plaintiff must prove that she has been subject to a behavior pattern that fits within the domestic violence cycle. Such behavior pattern consists of three stages: (1) the growing tension stage; (2) the acute aggression stage; and (3) the kindness or affection stage. The third stage is followed by the aggressor’s regret and then by the reconciliation, which in turns leads to another assault and then to the repetition of the cycle. This third stage is crucial in order to recognize whether there is a systematic situation of violence and to prove the elements of this cause of action.

 

La Corte enfatizó que para presentar con éxito una causa de acción legal por violencia doméstica, la demandante debe probar que ha estado sujeta a un patrón de comportamiento que se ajusta al ciclo de violencia doméstica. Dicho patrón de comportamiento consta de tres etapas: (1) la etapa de tensión creciente; (2) la etapa de agresión aguda; y (3) la etapa de bondad o afecto. A la tercera etapa le sigue el arrepentimiento del agresor y luego la reconciliación, que a su vez conduce a otro asalto y luego a la repetición del ciclo. Esta tercera etapa es crucial para reconocer si existe una situación sistemática de violencia y para probar todos los elementos que constituyen esta causa de acción.



Dlanjwa v. Minister of Safety and Security Supreme Court of Appeal (2015)

Domestic and intimate partner violence, Property and inheritance rights

The appellant was shot by her husband, who subsequently committed suicide.  Her husband was employed by the South African Police Service, so she sued the Minister of Safety and Security for general damages, medical expenses, loss of earnings, and loss of support arising from her injuries and the deceased’s suicide. She also sued for loss of support on behalf of her infant triplets with the deceased.  The appellant alleged that the shooting and suicide were caused by, inter alia, the negligence of the station commander and/or certain police officials.  The appellant claimed that these police officers failed to (a) dispossess the deceased of the firearm, (b) initiate disciplinary steps against him, and (c) have him criminally charged despite her previous requests and their knowledge that the deceased abused alcohol, had a violent temper and suicidal tendencies, had assaulted her, pointed a firearm at her and threatened to shoot her and thereafter kill himself, which led her to obtain a protection order against him under the Domestic Violence Act 1998.  The Supreme Court of Appeal found that: (a) the police had a legal duty to investigate the appellant’s complaints once she reported that she feared for her safety; (b) the police negligently breached that duty by failing to take measures to protect the appellant from being injured by the deceased (and prevent the deceased from killing himself); and (c) the appellant had established wrongfulness on the part of the police due to the causal connection established between the police’s negligent breach of duty and the harm suffered by the appellant.  The court therefore upheld the appeal.



Naidoo v. Minister of Police Supreme Court of Appeal (2015)

Domestic and intimate partner violence

The plaintiff attempted to bring a charge of assault against her former husband under the Domestic Violence Act of 1998 (“the DVA”). She was incorrectly advised by a police officer that she required a protection order from the Magistrate Court before she could receive police assistance. She was then told by a second officer that her former husband would bring a similar charge of assault against her if she persisted. The plaintiff, along with her former husband, was arrested. She filed a claim for damages against, inter alia, the Minister of Police, arguing that (i) the officials involved were acting in the course and within the scope of their employment and (ii) the Minister of Police was vicariously liable for failing to comply with the DVA. The court agreed that the DVA requires the police to assist and provide the maximum protection possible to victims of domestic abuse.



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

Divorce and dissolution of marriage, Domestic and intimate partner violence

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

 

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



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

Domestic and intimate partner violence

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



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

Domestic and intimate partner violence

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



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

Domestic and intimate partner violence

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



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

Domestic and intimate partner violence, Femicide

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



State v. Gudyanga (2015)

Domestic and intimate partner violence

This was a review of a sentence imposed by a trial magistrate at the request of the regional magistrate. In the opinion of the regional magistrate, the sentence imposed by the trial magistrate was too harsh and a community service sentence would have been just in the case. The accused was charged with physical abuse as defined under the DVA. The 20-year-old accused assaulted the complainant, his18-year-old wife, over a denial of conjugal rights. He was sentenced to two months’ imprisonment with a further two months suspended. The issue to be determined on review was whether the trial magistrate, by imposing a custodial sentence on a repeat violator of the DVA, erred in the exercise of discretion. The court found no misdirection on the part of the magistrate, holding that a custodial sentence is not required because the purpose of the DVA was to bring families closer together. Rather, the court explained that judges should apply a multi-factor sentencing analysis that includes, among other factors, considering both the DVA’s purpose to bring families together and whether the accused was a repeat offender. The DVA makes repeat offenders liable for imprisonment not exceeding five years. Here, the accused was a repeat offender, and therefore, liable for a custodial sentence at the discretion of the trial magistrate.



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.



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.



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.



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. 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.



The State v. L.S. High Court of Namibia (2006)

Domestic and intimate partner violence

The accused murdered her newborn child and pleaded guilty to the crime. In determining her prison sentence, the judge took into account mitigating circumstances such as her young age (21 years old), the fact that the child’s father denied responsibility for the child, and the fact that her family nearly kicked her out of their home when she had her previous child. The judge also acknowledged that she was a first-time offender and showed remorse for the crime. However, he reiterated the seriousness of the crime and stated that he did not want his leniency in this case to serve as a message to other young women that infanticide was acceptable. He further stated that newborn infants have just as much a right to life as anyone else. For the murder, he sentenced the accused to three years imprisonment with 30 months suspended for five years on the condition that the accused not be convicted of murder during the suspension. For the concealment of the birth of her newborn child, the judge sentenced the accused to six months imprisonment to run concurrently with the murder sentence.



The State v. V.U. High Court of Namibia (2007)

Domestic and intimate partner violence, Sexual violence and rape

The accused conceived a child after incestuous sexual intercourse with her brother. After the child was born, the mother tied a scarf around its neck and buried it alive. At trial, she claimed that the child was strangled by its own umbilical cord and was already dead when she buried it. However, medical and forensic evidence showed that the child died from strangulation and suffocation due to the mother’s actions. She was convicted of murder. 



The State v. Dausab High Court of Namibia (2018)

Domestic and intimate partner violence, Femicide

The accused was convicted of pre-meditated murder and sentenced to life imprisonment after stabbing his girlfriend (“the victim”) 27 times and locking her in a room until she bled to death. Prior to murdering the victim, the accused sent her a text message describing how he would kill her. At trial, the court determined the crime was aggravated by the fact that the accused had a direct intention of murdering his girlfriend and did so in a domestic setting. In imposing a sentence, the court took into account retribution, prevention of crime, deterrence and reformation. The court further found that the accused did not care about the victim’s right to life, but rather his own wellbeing, that he “played victim,” and that he showed no remorse. The judge stated that it “is high time that men in relationships with women should understand that once a woman tells them that they are no longer interested in continuing with the relationship, she means just that and her views and feelings should be understood and respected.”



The State v. Swartz High Court of Namibia (2018)

Domestic and intimate partner violence, Female infanticide and feticide, Femicide

The accused stabbed and murdered a pregnant minor girl with whom he was in a relationship when he was approximately 18 and she was 15 years old. Their relationship was one filled with domestic abuse and violence. He was convicted of murder and assault with intent to do grievous bodily harm. He was also convicted of assault for unlawfully and intentionally threatening to kill the deceased’s grandmother, thereby causing her to believe that the accused intended, and had the means, to carry out his threat.



The State v. Iipinge High Court of Namibia (2018)

Domestic and intimate partner violence

The accused was convicted of culpable homicide for kicking his girlfriend to death, despite his claims that her death was caused by falling on a rock. In sentencing the accused to 10 years imprisonment, the court noted that violence against women is a serious problem in Namibia and that this should be taken into account in sentencing decisions as an aggravating factor.



The State v. Nkasi High Court of Namibia (2010)

Domestic and intimate partner violence, Female infanticide and feticide

The accused negligently killed his daughter by beating her to death with a stick, which he meant as punishment. He also intentionally shot and killed his son with a shotgun and attempted to shoot his wife. He was convicted of culpable homicide, murder, attempted murder, obstructing the course of justice, possession of a firearm without a license, and the unlawful possession of ammunition. The court sentenced him to 44 years imprisonment. With respect to the conviction for negligent homicide, the court found that parents do not have carte blanche to punish their children. The court also found that the accused’s previous acts of violence against his wife and children constituted aggravating circumstances. The court further emphasized the seriousness of domestic violence and noted that sentencing in such cases should serve as retribution for those harmed, including the community at large and as deterrence to others.



F.N. v. S.M. High Court of Namibia (2012)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The appellant and respondent are divorced parents of three children. At the time of the divorce, custody of the children was awarded to the respondent. The appellant then moved for an interim protection order, claiming that the respondent physically abused their minor children. A court granted the interim protection order on October 3, 2011, and awarded the appellant interim custody of the children, subject to visitation by the respondent, and ordered respondent to cease abusing the children. The Magistrate’s Court subsequently discharged the interim order on October 24, 2011, based on Section 12 of the Combating of Domestic Violence Act 4 of 2003, reasoning that the beatings were an isolated incident and were only meant to punish the children for bad behavior. The appellant challenged the discharge. The appellate court agreed with appellant and granted a final protection order effective through July 2013, which awarded the appellant custody of the children with visitation for the respondent on alternate weekends and holidays. In its decision, the appellate court stated the importance of rooting out the “evil that is domestic violence in order to give effect to the protection of the constitutional value of human dignity.”



M., L. del V. v. G., E.J. Tribunal de Familia de la Provincia de Jujuy (Family Court of the Jujuy Province) (2012)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Following the separation of the plaintiff, Ms. L. del V., from the defendant, Mr. G., the defendant failed to pay their daughter’s school tuition or English lessons, took all of the family’s working vehicles, and sporadically paid no more than 40% of stipulated child support.  The plaintiff further alleged that the parties’ attempt at a negotiated solution constituted extortion given that she would not receive any support until they reached an agreement.  The parties subsequently negotiated an agreement, which the plaintiff later found to be inadequate.  In finding for the plaintiff, the court found that the defendant’s conduct constituted economic violence defined as the failure to provide required assistance, particularly where the woman has dedicated herself to childrearing at the time of separation and that the repeated failure to provide required support following separation would have a severe effect on the mother and child.

 

Luego de la separación del demandante, la Sra. L. del V., del demandado, el Sr. G., el demandado no pagó la matrícula escolar o las clases de inglés de su hija, tomó todos los vehículos de trabajo de la familia y esporádicamente no pagó más del 40% de la pensión alimenticia estipulada. La demandante además alegó que el intento de las partes por una solución negociada constituía una extorsión, dado que ella no recibiría ningún apoyo hasta que llegasen a un acuerdo. Posteriormente, las partes negociaron un acuerdo, que luego el demandante consideró inadecuado. Al encontrar al demandante, el tribunal determinó que la conducta del acusado constituía violencia económica definida como la falta de asistencia requerida, en particular cuando la mujer se habia dedicado a la crianza de los hijos desde el momento de la separación y que la falta reiterada de proporcionar la asistencia necesaria después de la separación tendría un efecto severo en la madre y el niño.



R.M., L.R. v. C.A., A.D. (Denuncia por violencia familiar) Camara Civil (Civil Court) (2014)

Domestic and intimate partner violence, International law

Child protective services appealed a decision of the court of first instance denying its request to extend to Ms. R.M.’s children an order of protection against her partner on the basis that (1) Ms. R.M. did not request that protection and (2) weaknesses were found in the determination by the Office of Domestic Violence regarding the degree of risk faced by the children.  In overturning the trial court’s ruling, the appellate court (1) found that applicable rules permit a judge to take measures that put an end to the crisis in order to enable the victim of domestic violence to return to a daily routine free from the influence of violence and (2) noted that the Office of Domestic Violence reported that the situation presented a high degree of risk, including in relation to the children.  In addition, the appellate court noted that in the cases brought before the judiciary, judges must ensure that the principals and rights set forth in the Treaty on the Rights of Children are observed.

 

Los servicios de protección infantil apelan una decisión del tribunal de primera instancia que denegó su solicitud de extender a los niños de la Sra. R.M. una orden de protección contra su pareja sobre la base de que (1) la Sra. R.M. no solicitó que se encontraran protección y (2) debilidades en la determinación de la Oficina de Violencia Doméstica con respecto al grado de riesgo que enfrentan los niños. Al anular el fallo del tribunal de primera instancia, el tribunal de apelación (1) encontró que las reglas aplicables permiten que un juez tome medidas para poner fin a la crisis a fin de permitir que la víctima de violencia doméstica regrese a una rutina diaria libre de la influencia de violencia y (2) notó que la Oficina de Violencia Doméstica informó que la situación presentaba un alto grado de riesgo, incluso en relación con los niños. Además, la corte de apelaciones señaló que en los casos presentados ante el poder judicial, los jueces deben garantizar que se respeten los principios y derechos establecidos en el Tratado sobre los Derechos del Niño.



Causa nro. 44601/2010 Juzgado Nacional en lo Criminal de Instrucción nro. 17 (2015)

Domestic and intimate partner violence

Mr. M. R. committed successive acts of violence and made threats against his wife, Mrs. F.M.S.  Upon finding that the declarations made by Ms. F.M.S., photographs and medical reports constituted sufficient probative evidence, the court determined that Mr. M. R. committed simple aggravated assault based on the relationship between the parties and that the threats made against Mrs. F.M.S. were grave and imminent.  Accordingly, the court found sufficient cause to hold the defendant in preventative confinement.

 

El Sr. M. R. cometió varios actos de violencia e hizo amenazas contra su esposa, la Sra. F.M.S. Al descubrir las declaraciones hechas por la Sra. F.M.S., las fotografías y los informes médicos constituyeron pruebas probatorias suficientes. El tribunal determinó que el Sr. M. R. cometió un asalto agravado simple basado en la relación entre las partes y que las amenazas contra la Sra. F.M.S. Fueron graves e inminentes. En consecuencia, el tribunal encontró causa suficiente para retener al acusado en confinamiento preventivo. 



Causa Nº 4.792/13 Ex Juzgado de Instrucción Formal Quinta Nominación (2014)

Domestic and intimate partner violence, Femicide, Gender discrimination, LGBTIQ

Defendant Mr. H.R.A was convicted of aggravated homicide based on his prior ties and relationship with the victim, Ms. N.A. (his partner), whom he murdered with a gun.  Mr. H.RA. was sentenced to life in prison pursuant to Law No. 26,791, Article 80, which provides that “[l]ife imprisonment or confinement shall be imposed upon a person that murders an ascendant, descendent, spouse or ex-spouse or a person that kills another with whom he or she maintains a relationship, irrespective of whether they maintained a joint household.”  The defendant challenged the constitutionality of the statute, arguing that it violates principles of equal protection because it does not afford (or it is not clear that the statute affords) equal protection to similarly situated homosexual couples.  In rejecting the defendant’s challenge, the court notes (1) Supreme Court precedent making clear that holding legislation unconstitutional is a grave act that should be taken as a last resort and when it is clear that the legislation is clearly unconstitutional, and (2) the legislation in question sought to introduce as aggravating circumstances factors that had previously been ignored, extending the definition of the concept of “family” to include different family realities.

 

El acusado, el Sr. H.R.A fue condenado por homicidio con acciones agravadas debido a sus vínculos anteriores y su relación con la víctima, la Sra. N.A. (su pareja), a quien asesinó con un arma. El Sr. H.RA. fue condenado a cadena perpetua con conformidad con la Ley Nº 26.791, Artículo 80, que dispone que “se impondrá la reclusión o el encarcelamiento a una persona que asesine a un ascendiente, descendiente, cónyuge o ex cónyuge o una persona que asesine” otro con quien él o ella mantiene una relación, independientemente de si mantuvieron un hogar conjunto ”. El acusado impugnó la constitucionalidad de la ley, argumentando que violaba los principios de protección igualitaria porque no permite (o no está claro si el el estatuto otorga igual protección a las parejas homosexuales en situación similar). Al rechazar la impugnación del acusado, el tribunal señala (1) el Tribunal Supremo precedente, dejando en claro que mantener la legislación inconstitucional es un acto grave que debe tomarse como último recurso y solamente cuando está claro que la legislación es claramente inconstitucional, y cuando (2) la legislación en cuestión buscaba introducir como circunstancias agravantes factores que anteriormente se habían ignorado, extendiendo la definición del concepto de "familia" para incluir diferentes realidades familiares.



A., R.H. and other v. E.N. M Seguridad – P.F.A. and others Cámara Nacional de Apelaciones en lo Contenciosos Administrativo Federal (National Appeals Court for Federal Administrative Litigation) (2011)

Domestic and intimate partner violence, Femicide

The plaintiff daughters, R.H. and V.C., filed suit against the State government and certain police officials requesting damages for the loss of the lives of their mother, Mrs. S., and father, Mr. A.  The day after her decision to flee her home together with her daughters and reside with other family members, Mrs. S. filed a civil proceeding against Mr. A. for domestic violence.  Mr. A. was prohibited from approaching Mrs. S. and his daughters, and Mrs. S. obtained permission to remove her and her daughters’ personal belongings from their previous home while escorted by police officers.  While accompanied by police officers and her sister to remove the belongings, Mr. A. killed Mrs. S. with a knife and subsequently committed suicide.  In finding for the daughters in the case of Mrs. S., the appellate court identified the following factors in support of its finding: (1) the existence of a real and immediate risk that threatened the rights of Mrs. S. and her daughters that had the potential to materialize immediately and which was expressly referenced by the Office of Domestic Violence, (2) the risk related to a specific threat against a woman and was therefore particular, (3) the State knew of the risk or should have reasonably known of the risk and (4) the State could have reasonably prevented and avoided the materialization of the risk.

 

Las hijas de la demandante, RH y VC, presentaron una demanda contra el gobierno del estado y ciertos oficiales de policía que solicitaron daños por la pérdida de la vida de su madre, la Sra. S. y el padre, el Sr. A. El día después de su decisión de huir de la casa junto con sus hijas, la Sra. S. presentó un proceso civil contra el Sr. A. por violencia doméstica. Al Sr. A. se le prohibió acercarse a la Sra. S. y a sus hijas, y la Sra. S. obtuvo permiso para retirar a ella y las pertenencias personales de sus hijas de su hogar anterior mientras estaba escoltada por agentes de policía. Mientras estaba acompañada por oficiales de policía y su hermana para retirar las pertenencias, el Sr. A. mató a la Sra. S. con un cuchillo y posteriormente se suicidó. Al encontrar a las hijas en el caso de la Sra. S., la corte de apelaciones identificó los siguientes factores que respaldan su descubrimiento: (1) la existencia de un riesgo real e inmediato que amenazaba los derechos de la Sra. S. y sus hijas que tenía el potencial de materializarse de inmediato y que la Oficina de Violencia Doméstica hacía referencia expresamente, (2) el riesgo relacionado con una amenaza específica contra una mujer y, por lo tanto, era particular, (3) el Estado sabía del riesgo o debería haberlo hecho razonablemente conocido del riesgo y (4) el Estado podría haber prevenido y evitado razonablemente la materialización del riesgo.



M.L.A. S/Lesiones Leves Agravadas y Amanazas de Muerte Corte Suprema Justicia de San Miguel de Tucumán (2016)

Domestic and intimate partner violence

In a criminal proceeding for domestic violence, the prosecutor appealed a judgment in favor the of the defendant on the basis that the trial court failed to confer proper evidentiary status to victim statements, medical and other reports, and photographs taken by the Office of Domestic Violence, a division of the Argentine judiciary.  In finding for the government, the appellate court noted that while investigating matters relating to domestic violence is a difficult task given that the disputed facts generally take place in intimate settings or when only the victim and aggressor are present, a victim’s testimony has inherent probative value.  The appellate court noted that “the work of judicial staff and employees (doctors, social workers, psychologists, etc.) that actively participate in the counseling of victims of domestic or gender violence must not be hidden and much less ignored in their entirety (…) The interviews, reports, physical inspections and medical reports carried out by professionals of the judiciary branch must constitute an essential component of the investigation into the facts,” irrespective of the decision on whether to proceed with the prosecution of the alleged perpetrator.

 

En un proceso penal por violencia doméstica, el fiscal apeló una sentencia a favor del demandado sobre la base de que el tribunal de primera instancia no otorgó el estatus de evidencia adecuada a las declaraciones de víctimas, informes médicos y otras, y fotografías tomadas por la Oficina de Violencia Doméstica , una división del poder judicial argentino. En la búsqueda para el gobierno, el tribunal de apelaciones señaló que si bien la investigación de asuntos relacionados con la violencia doméstica es una tarea difícil dado que los hechos en disputa generalmente tienen lugar en entornos íntimos o cuando solo la víctima y el agresor están presentes, el testimonio de la víctima tiene un valor probatorio inherente . La corte de apelaciones señaló que “el trabajo del personal judicial y los empleados (médicos, trabajadores sociales, psicólogos, etc.) que participan activamente en el asesoramiento a las víctimas de violencia doméstica o de género no debe ocultarse y mucho menos ignorarse en su totalidad (... ) Las entrevistas, informes, inspecciones físicas e informes médicos llevados a cabo por profesionales del poder judicial deben constituir un componente esencial de la investigación de los hechos ", independientemente de la decisión de proceder con el enjuiciamiento del presunto autor.



[Undisclosed Parties] v. Ministério Público Tribunal da Relação de Coimbra (Court of Appeal of Coimbra) (2018)

Domestic and intimate partner violence

Appellant A (name omitted from the public record) challenged the district court’s (Tribunal da Comarca) decision which convicted him of domestic violence, for having inflicted physical and psychological injuries on his spouse, who later filed for divorce.  As provided under the Portuguese Penal Code, the crime of domestic violence occurs whenever a person—repeatedly or not—inflicts physical or psychological harm to their spouse or former spouse (Sec. 152).  The Appellant argues that the occurrence of the crime of domestic violence requires repeated episodes of physical or psychological harm for the marital relation to be damaged by the injuries of the spouse.  In this case, the Appellant argued that there was only one episode of physical and psychological injury, and he therefore should be tried for the lesser crime of inflicting bodily injury.  The appellate court held that the crime of domestic violence is not characterized by repeated episodes of harm, but rather by the gravity of the harms inflicted.  The appeal was denied.



Sentenza 25498/2017 Corte di Cassazione: Sezione VI Penale (Supreme Court: VI Criminal Section) (2017)

Domestic and intimate partner violence

A man was charged with the crime of mistreatment in the family pursuant to article 572 of the Italian Criminal Code and sentenced by the Court of Appeal to one year and four months of imprisonment for mistreatment, aggravated injury and threats against the cohabiting partner. The accused appealed the ruling holding that the charges referred to episodes occurred after the cessation of the cohabitation between him and the victim. However, the Supreme Court maintained that the end of cohabitation is irrelevant to the evaluation of ill-treatment between the members of the couple when the personal relationship was based on mutual solidarity and assistance, and resulted in the birth of a child. In fact, the parental obligations towards a child, for which the couple needs to relate with cooperation and mutual respect, survive despite the cessation of the cohabitation. Therefore, the Italian Supreme Court dismissed the appeal because the presence of a child increases the importance of the stability and longevity of the parents’ relationship.



Sentenza N. 10959/2016 Corte de Cassazione: Sezioni Unite (Supreme Court: Joint Sections)

Domestic and intimate partner violence, Femicide, Gender-based violence in general, International law, Sexual harassment, Sexual violence and rape, Stalking, Statutory rape or defilement

The Supreme Court, in deciding upon the applicability of certain procedural rules, confirmed the main international definitions of violence within gender relationships. Particularly, the local court dismissed the case against a man charged with the crimes of stalking and mistreatment in the family pursuant to articles 612-bis and 572 of the Italian Criminal Code, without giving any notice thereof to the person injured by the crime in accordance with Article 408 of the Italian Code of Criminal Procedure. In deciding the case, the injured person appealed the decision of the local court and requested the Italian Supreme Court to declare the dismissal of the case null and void. In deciding the procedural issue at hand, the Italian Supreme Court pointed out that the Italian criminal law has drawn the definitions of gender violence and violence against women mainly from international law provisions, which are directly enforced in the system pursuant to Article 117 of the Constitution. In this decision the Italian Supreme Court gave all the definitions of violence within gender relationships in consideration of international conventions and specifically European law, and concluded that such definitions, even if not directly included in domestic regulations, “are fully part of our national system through international law and are therefore enforceable.” According to this interpretation, the definitions of gender violence given by the Istanbul Convention on preventing and combating violence against women and domestic violence are directly applicable in the Italian legal framework. On this basis, the Court ruled that notice of dismissal of the case must always be served on the person injured by crimes of stalking and mistreatment in the family pursuant to articles 612-bis and 572 of the Italian Criminal Code, as those provisions relate to the gender violence notion set forth under the international and EU provisions applicable in the Italian legal framework.



S (CA338/2016) v. The Queen Court of Appeal of New Zealand (2017)

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

Appellant (who was 38 years of age at the time of the offences) appealed a sentence of imprisonment for kidnapping, disfiguring with intent to injury and wounding with intent to injure the complainant (who was 17 years of age at the time of the offences).  The complainant and appellant began a relationship after the complainant left the care of Child, Youth and Family (Ministry for Vulnerable Children).  The appellant accused the complainant of sexually assaulting his daughter. As punishment for the sexual assault and a condition for continuing their relationship, he convinced the complainant to allow him to break her finger with a rock. He subsequently subjected the complainant to other physical abuse, after which she fled to a neighbor for help.  The appellant argued at the Court of Appeal that a High Court Judge had wrongly withheld the defense of consent on the charge of wounding with intent to injure.  The Court dismissed the appeal and concluded that it was possible to eliminate the defense of consent depending on the specific facts of the case.  In this case, the Court found it permissible to eliminate the defense of consent because of the power imbalance between the parties, the fact that the complainant acquiesced because of a threat to their relationship, the gravity of domestic violence, and the severity of the injury.



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

Domestic and intimate partner violence, Employment discrimination, Gender discrimination

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



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

Domestic and intimate partner violence

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



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

Domestic and intimate partner violence

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



Longsworth v. The Queen Court of Appeal of Belize (2012)

Domestic and intimate partner violence

The appellant threw an accelerant on her husband, followed by a lit candle.  She then immediately attempted to douse the flames in water.  Her husband died and she was convicted of murder and sentenced to life imprisonment.  On appeal, the appellant attempted to introduce new evidence that she had suffered from Battered Women Syndrome (“BWS”).  This evidence was not available during the appellant’s trial because there were no qualified forensic psychiatrists available in Belize.  The Court of Appeal granted the appeal on the ground that (1) it was capable of belief; (2) it was relevant to the issues before the jury; (3) it would have been admissible at trial; (4) the trial attorney had been asked why no medical evidence was presented at trial; (5) the new evidence may have caused the jury to decide differently; (6) the evidence supports a defense of diminished responsibility and (7) it cast doubt as to the reasonableness of the verdict and admission of the evidence was in the interest of justice.  The court considered the findings of an experienced and distinguished professional in the field of forensic psychiatry who examined the appellant, interviewed witnesses, and reviewed trial documents and found that the appellant’s history and behavior was consistent with BWS.  The forensic psychiatrist concluded that the appellant had been physically, sexually, financially, and psychologically abused by her partner for nine years.  This abuse, together with the appellant’s response to the abuse, was found to be consistent with BWC.  The Court reduced the appellant’s sentence to eight years.  This case was the first time that a court in Belize admitted new evidence in relation to BWS and PTSD in connection with a defense of diminished responsibility. 



Gabourel v. The Queen Court of Appeal of Belize (2017)

Domestic and intimate partner violence, Sexual violence and rape

The appellant was convicted of grievous harm (was also charged but acquitted of rape) and was sentenced to a fine of $10,000 or in default a term of three years imprisonment, as well as being ordered to pay the complainant $3,000.  The appellant appealed, arguing that the trial judge erred in law by not giving a proper instruction to the jury on the issue of self-defense.  The Court of Appeal affirmed the conviction, finding “no miscarriage of justice,” where the jury “clearly accepted the version [of events] given by the complainant in relation to the offence of grievous harm, and rejected the version given by the appellant,” and a different self-defense instruction would not have changed the result.



Lawrence v. The Queen Court of Appeal of Belize (2018)

Domestic and intimate partner violence, Femicide

The appellant was convicted of the murder of his romantic partner of eight years and was sentenced to life in prison.  On the night of the murder, the appellant first beat his partner in front of her three children. One of children called the police to report the beating, but the police failed to respond to the residence.  Following the beating, the appellant left the house, but returned an hour later, broke into the house, and stabbed his partner to death.  The appellant then drove his partner to the hospital where he was subsequently arrested. At the appellant' trial, testimony revealed that the appellant was under the influence of drugs and alcohol at the time of the killing and had a history of domestic violence. The first issue before the Court of Appeal was whether the trial judge gave adequate instructions on the potential for intoxication to be taken into account when deciding whether there was an intent to kill for the purposes of the appellant’s defense.  The Court of Appeal found that such instructions given by the trial judge were adequate.  The next issue decided by the Court of Appeal was whether new evidence from a forensic psychiatrist based on a single interview with the appellant regarding the appellant’s mental health necessitated a new trial.  The Court of Appeal found the new evidence to be less than credible, but exercised discretion to substitute the original conviction of murder to a conviction of manslaughter and reduced the appellant’s sentence to 18 years.  In reducing the sentence, the Court of Appeal began with the range of sentences for murder applicable a street fight (being 15 to 20 years), although acknowledged that the instant case differed in that it was a “vicious attack on an unarmed victim.”  Taking into account appellant’s diagnosis of schizophrenia, the Court of Appeal began with a 15-year sentence and then added three years to reflect the aggravating factors of “the choice of weapon, the number of stab wounds, the presence of the children and the previous violence he inflicted on the deceased about an hour before the fatal incident” to arrive at the 18 year sentence ordered.



Carne v Wride & Carne v Nicholas Supreme Court of the Northern Territory (2012)

Domestic and intimate partner violence

The appellant Barry Carne was formerly in a relationship with L.S., the victim and the mother of his four children.  One day Carne entered L.S.’s home without consent, destroyed property, and confronted L.S..  During the altercation he grabbed and twisted L.S.’s right hand and fingers, causing her to fall in pain.  As a result he was charged with aggravated assault, and a domestic violence order was issued against him.  The domestic violence order restrained him from contacting, approaching, intimidating or harassing the victim and from exposing their children to domestic violence.  While the domestic violence order was in force, Carne again went to L.S.’s house.  After L.S. did not answer, he attempted to hang himself outside the home, only to be saved by his son, who was 14 at the time.  Carne was charged with breaching the domestic violence order, and pleaded guilty.  The sentencing magistrate sentenced him to eight months’ imprisonment for the breach and two months for the aggravated assault, to be served concurrently.  Carne appealed the sentence, claiming that it was manifestly excessive, and argued that the magistrate took into account irrelevant matters, in particular his suicide attempt.  The court of appeal considered the definition of “domestic violence” and whether Carne’s attempted suicide in front of the children was an attempt to cause mental harm to L.S. and/or her children.  The court held that the sentencing magistrate had not received sufficient evidence from the prosecution demonstrating that Carne had attempted the suicide in order to cause mental harm to L.S. and/or her children and, accordingly, it was not open to the magistrate to make such a finding.  The magistrate was required to exclude any other reasonable hypothesis, permitted by the facts, regarding the attempted suicide before concluding that the intent was to cause mental harm.  As such, the sentence was reduced to one month’s imprisonment.



Ministério Público v. [Undisclosed Parties], 469/13.3PBAMD.L1-9 Tribunal da Relação de Lisboa (Lisbon Court of Appeal) (2015)

Domestic and intimate partner violence

The Public Prosecutor (Ministério Público) brought charges of domestic violence against defendant, “Mr. XXX” (name omitted from public record), for recurrently calling victim, “Ms. ZZZ” (name omitted from public record), a “filthy pig” or a “mental retard.” The Lower Court found that the actions by Mr. XXX did not qualify as domestic violence under section 152 of the Portuguese Penal Code which requires repeated acts of physical or emotional abuse towards a spouse or ex-spouse. The Appellate Court overturned the Lower Court’s decision, affirming that the evidence proved repeated abusive conduct by Mr. XXX, and found that the crime of domestic violence occurred despite the fact that Mr. XXX and Ms. ZZZ were not married, as they had lead a life together for a period of time.



Ministério Público v. [Undisclosed Parties], 108/14.5JALRA.E1.S1 Supremo Tribunal de Justiça (Supreme Court of Justice) (2016)

Domestic and intimate partner violence, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

One month after marrying the victim, “BB” (name omitted from public record), the defendant, “AA” (name omitted from public record) coerced BB to become a prostitute so she could help with their financial problems. After BB engaged in sexual relations as a prostitute, AA began to physically assault BB and to threaten to kill her children, alleging that was enjoying being a prostitute. Concurrently, AA’s 15-year old daughter “CC” (name omitted from public record) moved in with AA and BB, and shortly thereafter, AA engaged in non-consensual sexual activities with CC for approximately six months. AA had previously convictions for robbery, physical harassment and child pornography, among others. The Superior Court of Justice found AA guilty of the crimes of promoting prostitution under section 169 of the Portuguese Penal Code, domestic violence under section 152 of the Portuguese Penal Code, sexual abuse of a person incapable of resistance under sections 164 and 177 of the Portuguese Penal Code and illegal possession of weapon, and sentenced AA to 16 years of imprisonment.



Ministério Público v. [Undisclosed Parties], 3/16.0PAPST.L1-9 Tribunal da Relação de Lisboa (Lisbon Court of Appeal) (2017)

Domestic and intimate partner violence

The Public Prosecutor (Ministério Público) brought charges against two spouses, as defendants, for domestic violence under section 152 of the Portuguese Penal Code. The Public Prosecutor alleged that in a particular episode, both spouses physically and verbally assaulted each other, and should therefore both be penalized for the crime of domestic violence. Both spouses had previously been convicted of charges of domestic violence. In this case, however, both the District Court (Tribunal da Comarca) and the Appellate Court found that although the Portuguese Penal Code does require physical or mental damages to a spouse or former spouse in order to be convicted of domestic violence, spouses cannot both be convicted of domestic violence if damages were caused reciprocally.



Ministério Público v. [Undisclosed Parties], 1184/14.6PIPRT.P2 Tribunal da Relação de Porto (Court of Appeal of Porto) (2017)

Domestic and intimate partner violence, Stalking

The Public Prosecutor (Ministério Público) brought charges of domestic violence against the defendant, “B” (name omitted from public record), for stalking his former girlfriend, the victim, “C” (name omitted from public record), after their relationship ended. Evidence produced during trial showed that B repeatedly sought to reconnect with C over the course of five months after the end of their relationship, which caused great anxiety and distress to C. Under Section 152 of the Portuguese Penal Code, domestic violence occurs whenever a defendant inflicts physical or psychological harm to a romantic partner or former partner. The District Court (Tribunal da Comarca) found the B not guilty of domestic violence. The Public Prosecutor appealed, and the Appellate Court (Tribunal da Relação) affirmed the District Court’s decision, holding that, although C did suffer anxiety from the attempts at contact made by B, B’s conduct was never humiliating, provocative, offensive or threatening, and therefore did not qualify as a crime of domestic violence.



Toopah v. RL Supreme Court of Liberia (1974)

Domestic and intimate partner violence, Femicide

The Defendant appealed a homicide conviction for the shooting of his wife arguing that the killing resulted from the discovery of her adultery and could; therefore, only amount to manslaughter. In a charge of homicide, the law requires a showing of malice (i.e., a murder committed with premeditation). Implied malice (i.e., murder committed in the “heat of passion;” without premeditation) is nullified by sufficient provocation. The Court found that the murder was premeditated because express malice was proven to the Court. Thus provocation was not considered and the conviction was upheld.



B. v. A., BGE 126 IV 124 Supreme Federal Court (2000)

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

A. met B. in St. Gallen in 1993. A. had to leave Switzerland at the end of 1995. They married in April 1996 in Ghana. In August 1996, A. was able to return to Switzerland. After his return, the relationship gradually became more oppressive and menacing toward B., for example, by pressuring B. for sexual intercourse.  B. gave in to his demands when she could no longer stand the intimidation. B. separated from A. on March, 28, 1998, and on July 20, 1998, A. was prosecuted for threatening, assaulting, and coercing B. The district and appellate courts in the Canton of St. Gallen sentenced A. to prison and condemned him to heavy penalties, including both imprisonment and damages. A. appealed to the Federal Supreme Court, under the claim that he was the husband of B. and not a rapist who lacked entitlement to approach B. The Supreme Federal Court rejected A.’s appeal.



Public Prosecutor of Canton Ticino v. A.A., 6S. 292/2004 Supreme Federal Court (2004)

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

A.A. and B.A., while estranged spouses but not having applied for legal separation, were living in the same house in two separate apartments, with A.A. paying for the rental of both units. The decision to live in the same house was accepted by B.A., as it allowed them to continue helping each other with everyday tasks and to oversee the children’s education together. On June 7, 2003, B.A. alleged that the two engaged in intercourse without B.A.’s consent. On May 24, 2004, the Canton Ticino Public Prosecutor indicted A.A. before the Court of Riviera for alleged sexual violence against his wife, B.A. On July 2, 2004, the Canton Ticino Court of Appeal dismissed the indictment of the Public Prosecutor, as B.A. had withdrawn the allegation of sexual violence committed against her by her husband. The Public Prosecutor appealed the decision before the Supreme Federal Court. Under Swiss law, sexual violence against a spouse can only be prosecuted where the victim has made allegations. The Supreme Federal Court, on the basis of the evidence collected in the course of the proceeding, and as argued by the Public Prosecutor, stated that the fact that the spouses were living in two separate apartments was not material, as they were nevertheless maintaining a “communion of life” status, which could be inferred from their mutual assistance, meals together, continued feelings of affection, and occasional sexual intercourses. Therefore, on the basis of such evidence, the Supreme Federal Court stated that the decision of the Court of Appeal to dismiss the indictment of A.A. was legitimate and rejected the Public Prosecutor’s appeal.



X. v. Y., BGE 131 IV 167 Supreme Federal Court (2005)

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

Y. was married to X. until 1993. After the divorce, he continued to live with his former wife until March 2001, when he moved into his own flat. The former spouses continued their sexual relationship until September 2, 2001, after which they finally separated. From September 21 to October 12, 2001, Y. sent X. a large number of messages demanding that she perform certain sexual acts and threatening her. X. finally consented to the sexual acts demanded - including sexual intercourse and filming a sex tape. X. was forced to film pornography and suffered sexual abuse for about two months. Initially, the Winterthur Court condemned Y. to sixteen (16) months in prison for sexual coercion and rape. On appeal, the prison sentence was reduced to four (4) months, but Y.’s culpability was firmly reiterated. Y. appealed to the Supreme Federal Court, claiming that the threats to X. were not as severe as the prosecution had claimed. This appeal was rejected by the Supreme Federal Court, and the sentence of four (4) months remained in place.



Public Prosecutor of Fribourg Canton v. B., BGE 132 IV 120 Supreme Federal Court (2006)

Domestic and intimate partner violence, Sexual violence and rape

A. (born in 1970) and B. (born in 1969) became engaged in 1996, and, two years after the engagement, they began to have regular sexual relations. On September 3, 2002, whilst under the influence of alcohol, the two engaged in intercourse in A’s house without her consent, with B. filming the act. These sexual encounters continued until 2004, when the Fribourg Cantonal Police seized the tapes recorded. The Canton of Fribourg Supreme Court convicted B. of first and second degree sexual coercion and rape and sentenced him to imprisonment. In 2004, and, on appeal, in 2006, A. was sentenced with a fine for having produced and manufactured, as the protagonist, violent pornography (paragraphs 3 and 3a Art. 197 Criminal Code). The couple appealed to the Supreme Federal Court, invoking mitigating circumstances covered by article 63 Criminal Code, citing the fact that both individuals were drunk when recording the first two tapes. The Supreme Federal Court noted that A. was not a minor under the age of 16; however, she had been subjected to acts of violence that were unacceptable. B. forced her to undergo disproportionate torture and degrading and inhuman acts that contravened her human rights. Thus, B.’s heavy prison sentence was confirmed by the Supreme Federal Court. Additionally, the Supreme Federal Court judged that sexual coercion (Art. 189 Criminal Code) and rape (Art. 190 Criminal Code) may occur even if the sexual act was atypical and did not consist of the penis penetrating a woman’s genitalia.



Sentencia nº 1325 de Tribunal Supremo de Justicia Tribunal Supremo de Justicia (2011)

Domestic and intimate partner violence, Gender-based violence in general, Harmful traditional practices, International law

An indigenous man was charged with physical violence and threats against his ex-partner (a non-indigenous woman), a violation of the Organic Law on the Right of Women to a Life Free of Violence (the “statute”), which created special courts with exclusive jurisdiction to hear cases under the statute.  The special court issued a restraining order in lieu of detention pending trial.  Prosecutors appealed.  While the appeal was pending, the man violated the restraining order.  The court of appeals vacated the restraining order and ordered detention.  On a constitutional appeal to the Supreme Court, the defendant argued that, because of his identity as an indigenous person, his community’s authorities had exclusive jurisdiction to hear the case.  The Supreme Court acknowledged that (1) the Organic Law on Indigenous Peoples and Communities creates special jurisdiction authorizing indigenous communities to resolve controversies arising among their members within their lands, (2) this special jurisdiction allows the communities to apply their own laws, and (3) the national courts must recognize the decisions of the communities.  But the Court also stressed that international conventions, the national constitution, and special laws (such as the statute) placed limitations on that jurisdiction.  The Court cited, for example, Article 9 of the ILO Convention on Indigenous and Tribal Peoples, which provides that “the methods customarily practiced by the peoples concerned for dealing with offenses committed by their members shall be respected,” but only “[t]o the extent compatible with the national legal system and internationally recognized human rights.”  More precisely, the Court noted that the statute itself established that indigenous authorities could serve as agents for receiving complaints of violence against women, but only without prejudice to the victim’s right to seek remedy in the special courts.  Based on that analysis, the Court held that the special courts have exclusive jurisdiction to hear cases under the statute, regardless of the defendant’s ethnic identify.  Notably, the Court ordered that its holding be published as binding precedent.   



Sentencia nº 357 de Tribunal Supremo de Justicia (Número de Expediente: CC15-173) Tribunal Supremo de Justicia (2015)

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

In 2013, a woman’s ex-partner wounded her with a machete and knife as she was arriving home at midnight.  When the victim’s sister intervened, the man punched the sister and ran off.  For his attack against his ex-partner, the man was charged with attempted homicide, a violation of both the general penal code and the Organic Law on the Right of Women to a Life Free of Violence (the “statute”).  For his attack against the sister, he was charged with physical violence, a violation of the statute.  Amended in 2014, the statute created special courts with exclusive jurisdiction to hear cases brought under the statute, but a subsequent Supreme Court decision clarified that all types of homicide offenses occurring prior to the amendment remained within the jurisdiction of ordinary courts.  During the preliminary hearing, the ordinary court found that the allegations did not support the attempted homicide charge but rather the offense of “minor injuries,” a violation of the statute.  Accordingly, the ordinary court ruled that it lacked jurisdiction and thus referred the case to the special court.  In turn, finding that the allegations did support a homicide charge, the special court also concluded that it lacked jurisdiction.  When the jurisdictional conflict was certified to the Supreme Court, it held that the special court had exclusive jurisdiction.  The Court explained that the classification of the “homicide” charge was of no consequence, because the charge against the sister vested jurisdiction in the special court over all related charges involving gender violence. 



NJA 2007 s. 547 Högsta domstolen (Supreme Court) (2007)

Domestic and intimate partner violence

The defendant was charged with multiple counts of assault and unlawful threats under the combined classification of aggravated violation of a woman’s integrity (Sw. grov kvinnofridskränkning). In the Court of Appeal, the defendant requested that the court allow evidence regarding the victim’s character.  The prosecutor and the victim objected, arguing that the evidence was meant only to tarnish the woman’s reputation and had no legal relevance to the present case.  As his proffer, the defendant claimed that the witnesses would testify that the woman was a pathological liar and that she committed fraud and extortion by threatening to report a relative for molestation if he did not pay her. The Court of Appeal excluded portions of the proffered evidence and the defendant appealed that decision. On review, the Supreme Court held that because the prosecution relied primarily on the victim’s testimony, her credibility was a key factor in the case.  As such, it determined that the Court of Appeal denied the defendant a fair trial by excluding the proffered character evidence. The Supreme Court reversed the conviction and remanded the case.



RH 2006:29 Hovrätten för Västra Sverige (Court of Appeal for Western Sweden) (2006)

Domestic and intimate partner violence

The defendant had been released on probation after having been convicted of aggravated violation of a woman’s integrity (Sw. grov kvinnofridskränkning) against a woman with whom he had a relationship. While on probation, the defendant assaulted the woman in her residence by striking her in the face and throwing her to the ground. The defendant had also left a message on the woman’s voicemail, threatening to kill her. The Court of Appeal for Western Sweden found that the defendant was guilty of assault and unlawful threat. The question before the court then became whether the crimes should be reclassified as aggravated violation of a woman’s integrity. The court held that because the defendant had previously been convicted of aggravated violation of a woman’s integrity, and the assault had been committed six months after the defendant was released on probation, the assault and the unlawful threat were to be viewed as continued and repeated violations of the woman’s integrity, and thus reclassified as aggravated violation of a woman’s integrity.



RH 2006:29 Hovrätten för Västra Sverige (Court of Appeal for Western Sweden) (2006)

Domestic and intimate partner violence

The defendant had been released on probation after having been convicted of aggravated violation of a woman’s integrity (Sw. grov kvinnofridskränkning) against a woman with whom he had a relationship. While on probation, the defendant assaulted the woman in her residence by striking her in the face and throwing her to the ground. The defendant had also left a message on the woman’s voicemail, threatening to kill her. The Court of Appeal for Western Sweden found that the defendant was guilty of assault and unlawful threat. The question before the court then became whether the crimes should be reclassified as aggravated violation of a woman’s integrity. The court held that because the defendant had previously been convicted of aggravated violation of a woman’s integrity, and the assault had been committed six months after the defendant was released on probation, the assault and the unlawful threat were to be viewed as continued and repeated violations of the woman’s integrity, and thus reclassified as aggravated violation of a woman’s integrity.



NJA 2013 s. 548 Högsta domstolen (Supreme Court) (2013)

Domestic and intimate partner violence, Sexual violence and rape

The defendant suspected that his then-wife was unfaithful.  In order to determine if his suspicion was correct, defendant forced his wife onto a bed, pulled her legs apart, and inserted two fingers into her vagina. During this ordeal, the defendant had also threatened her.  Despite the defendant’s alleged purpose, the Supreme Court found that his actions were sexual in nature and that they constituted rape.  Although sexual assault may be viewed as less severe if the victim wakes up and objects, that concept did not apply. Here, the defendant used actual and threatened violence in a manner that was humiliating to the victim and, as a result, the Supreme Court held that the crime was not to be classified as “less severe” (Sw. mindre grovt), but as a rape of the “normal” degree (Sw. av normalgraden).



RH 2004:48 Svea hovrätt (Svea Court of Appeal) (2004)

Divorce and dissolution of marriage, Domestic and intimate partner violence

During a four-month period, A.H. made several unlawful threats (Sw. olaga hot) toward his ex-wife. The question in the Court of Appeal was whether the unlawful threats constituted repeated violations of the ex-wife’s integrity and whether the threats were meant to seriously harm her self-esteem. The Court of Appeal acknowledged that the parties were going through a divorce, where both parties expressed hurtful words to one another.  As such, the Court of Appeal held that the unlawful threats did not constitute a violation of a woman’s integrity (Sw. kvinnofridskränkning).



RH 2003:11 Hovrätten för Västra Sverige (Court of Appeal for Western Sweden) (2003)

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

L-G.T. assaulted his girlfriend, S.S., two times during the time they lived together. The District Court found that the acts were meant to cause a serious violation of S.S.’s integrity. The Court of Appeal held that the number of acts must be more than two in order to constitute a repeated violation of the integrity, but that if the acts of violence were severe, the number of repeated acts necessary for conviction may be reduced.  Because the court found that the assaults at issue in this case were not severe, the court did not find the defendant guilty of violating his girlfriend’s integrity (Sw. grov fridskränkning).



RH 2016:29 Svea hovrätt (Svea Court of Appeal) (2016)

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

During the course of a three month-long relationship, M.H. assaulted A.I. four times. The question in the Court of Appeal was whether M.H. and A.I. lived together under circumstances that could be considered equal to a marriage and, if so, whether the repeated assaults should be classified a violation of a woman’s integrity (Sw. kvinnofridskränkning). The Court of Appeal held that they did not.  Because the couple did not share a household, the crime could not be considered as violation of a woman’s integrity. The Court of Appeal then assessed whether the couple were “closely related persons” (Sw. närstående), which would allow the assaults to be classified as aggravated violation of the integrity (Sw. grov fridskränkning). However, the Court of Appeal held that the relationship was too short for M.H and A.I. to be viewed as closely related persons and refused to convict M.H. of aggravated violation of the integrity.



NJA 1999 s. 102 Högsta domstolen (Supreme Court) (1999)

Domestic and intimate partner violence

B.B. was tried for repeatedly assaulted his girlfriend, L.L., in their home. The question the Supreme Court considered was whether previous assault convictions could be used to convict B.B. of a related crime – violation of L.L.’s integrity (Sw. kvinnofridskränkning).  The elements of violating of a woman’s integrity are as follows: (i) the defendant and the alleged victim are, or had been, in a relationship equivalent to a marriage, and (ii) that the acts constitute repeated violations of the woman’s integrity and have been intended to seriously harm her self-esteem. The Supreme Court noted that B.B. had been assaulting L.L. on an on-going basis and that B.B. had already been convicted for some of the assaults. Although the Supreme Court confirmed that all assaults generally could be taken into consideration – even the assaults for which B.B. had already been convicted – because some of B.B.’s assault convictions predated the law against violating a woman’s integrity, the law could not be retroactively applied to consider B.B.’s assault convictions.



NJA 2008 s. 1010 Högsta domstolen (Supreme Court) (2008)

Domestic and intimate partner violence

T.H. was accused of assault and unlawfully threatening (Sw. olaga hot) his girlfriend, L.K. The alleged assault consisted of dragging her by the hair and pressing a knife against her throat, while threatening to kill her. T.H. also allegedly threatened to bomb L.K.’s apartment, and he told her that he would kill her if she called the police. The Supreme Court held that although the elements were present to establish an assault and the making of an unlawful threat, the defendant was not necessarily guilty of both crimes. According to the court, if an act is considered closely connected, and also subordinate, to another act, the defendant may be convicted of only one of the acts. The Supreme Court held that the threat was the more serious crime and that the assault could possibly elevate the unlawful threat to an “aggravated” threat, but the Supreme Court declined to do so in this case. Instead, the court convicted T.H. only of making an unlawful threat. Two Supreme Court judges dissented, arguing that the threat should have been classified as aggravated.



NJA 2005 s. 712 Högsta domstolen (Supreme Court) (2005)

Domestic and intimate partner violence, Sexual violence and rape

L.G. was accused of violation of a woman’s integrity (Sw. kvinnofridskränkning), assault (Sw. misshandel) and rape of his wife, C.G.  Because the couple’s three children were present when the alleged abuse occurred, L.G. was also charged with violation of their integrity.  The Supreme Court found that C.G.’s statements were more credible than L.G.’s, partly because the couple’s three children concurred with C.G.’s version of events.  Accordingly, due to L.G.’s repeated violation of C.G.’s integrity, the Supreme Court found L.G. guilty of violating C.G.’s integrity.  Regarding the rape charge, however, the Supreme Court did not find sufficient evidence to convict L.G.  Aside from C.G.’s testimony – which left doubt as to the time of the alleged rape – there was no evidence to substantiate the rape charge.  Therefore, the Supreme Court held that the prosecution failed to prove the rape charge beyond a reasonable doubt.  Nonetheless, because the court determined that L.G. had assaulting C.G. and their children, the court sentenced L.G. to two years and six months imprisonment.



AP 2537/09 – Dalibor Perić Ustavni Sud Bosne i Hercegovine (Constitutional Court of Bosnia and Herzegovina) (2009)

Divorce and dissolution of marriage, Domestic and intimate partner violence

In 2004, the common-law marriage between Dalibor Perić (“Perić”) and his wife was terminated.  Perić’s ex-wife was granted custody of their two-year-old son, and Perić was ordered to pay BAM 100 per month in child support.  Over the next three years, Perić never paid child support, he verbally abused and physically assaulted his ex-wife and her parents resulting in two domestic violence charges.  In addition, he beat the child on several occasions.  In 2007, the mother of the child filed a motion to terminate Perić’s parental rights.  Two years later, the Basic Court in Bijeljina stripped Perić of his parental rights pursuant to Article 106 of the Family Law of the Republika Srpska.  The County Court of Bijelina dismissed Perić’s appeal and upheld the lower court’s ruling.  Perić then appealed to the Constitutional Court of BiH, arguing the ruling of the County Court violated his right to a fair trial and right to private and family life.  Because no draft decision received a majority vote, the Constitutional Court of BiH dismissed Perić’s appeal.

Decision available in English here.



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

Domestic and intimate partner violence, Trafficking in persons

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



Nduta v. Republic High Court of Kenya at Siaya (2015)

Domestic and intimate partner violence, Gender-based violence in general, Harmful traditional practices

The appellant appealed his conviction and sentence for injuring his wife, who he inherited according to customary practice after her husband died in 2002.  On November 8, 2013, his wife attempted to pack clothes to visit her children in Nairobi.  The appellant refused to let his wife travel and threatened to murder her.  The appellant cut both of his wife’s arms using a panga (machete), but she managed to escape to her nephew’s home.  The nephew saw the appellant armed with the panga and a knife before taking his aunt to the police station and later the hospital.  The appellant was convicted of Grievous Harm Contrary to Section 234 of the Penal Code and sentenced to seven years imprisonment.  He appealed, arguing that the trial court failed to consider that this was a mere domestic issue that could have been resolved by village elders.  The appellant asked for a non-custodial sentence citing the fact he was an elderly man (78 years old).  The High Court upheld the conviction and the sentence, noting, “The appellant’s actions amounted to violence against women.  It is my view a gender-based violence which the court cannot condone or tolerate and let perpetrators of violence against women and girls go unpunished.”  This case demonstrates the relationship between the criminal courts in Kenya and customary law. 



Republic v. C.W. High Court of Kenya at Siaya (2016)

Domestic and intimate partner violence

The defendant was accused of the killing of her husband. She entered into a plea agreement to reduce the charge of murder to manslaughter.  The deceased returned home on May 7, 2016, intoxicated and accused the defendant of infidelity.  A violent domestic fight ensued and the defendant used a kitchen knife to fatally stab the deceased.  The defendant was also injured by the deceased during the altercation.  The defendant asked the court for a non-custodial sentence based on a number of mitigating circumstances including the fact that the defendant is the primary caregiver of her three children with the deceased, aged five, three, and one.  Relatives and friends of the deceased confirmed that he was verbally and physically abusive to the defendant and the killing occurred in “the heat of the moment.”  Furthermore, the defendant had no prior record, demonstrated remorse, and the deceased’s family and the community had forgiven her and were willing to help her raise her children.  The High Court agreed that these factors merited a non-custodial status, adding that the defendant is both the accused and the victim, and was acting in self-defense even though she used excessive force.  The High Court handed down a three-year non-custodial sentence.  This case marks an important example of Kenyan courts treating victims of domestic violence with leniency where excessive force is used while defending themselves from their abuser.



Jezile v. State High Court of South Africa: Western Cape Division (2015)

Domestic and intimate partner violence, Forced and early marriage, Harmful traditional practices, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

The appellant was convicted in a regional magistrates' court of one count of human trafficking, three counts of rape, one count of assault with intent to cause grievous bodily harm, and one count of common assault against a 14-year-old schoolgirl, whom he had married in accordance with customary marriage laws. After she ran away from the appellant, the appellant took the complainant to Cape Town by taxi, where they resided with the appellant's brother and his wife. There, the incidents of rape and assault occurred. The appellant raised as one of his defenses and as a ground of appeal that the alleged rapes took place in the context of a customary arranged marriage, or ukuthwala. According to expert evidence, ukuthwala was an irregular form of initiating a customary marriage. Experts have stated that, in its traditional form, ukuthwala was consensual and innocuous, but there existed an 'aberrant' form in which young girls were abducted and often raped and beaten to force them into marriage. The magistrate held that the matter was not about ukuthwala and its place in our constitutional democracy, but about whether the state had shown that the accused had committed the offences he was charged with and, if so, whether he acted with the knowledge of wrongfulness and the required intent. The court held that child-trafficking and any form of abuse or exploitation of minors for sexual purposes is not tolerated in South Africa’s constitutional dispensation. Furthermore, it ruled that the appellant could not rely on traditional ukuthwala as justification for his conduct because practices associated with an aberrant form of ukuthwala could not secure protection under the law. Thus, the Court could not find that he did not traffic the complainant for sexual purposes or that he had committed the rapes without the required intention  ̶  even on the rather precarious grounds of appellant’s assertion that his belief in the aberrant form of ukuthwala constituted a 'traditional' custom of his community.



AA v. Attorney General's Office, Case No. 375/2007 Criminal Appeals Court 3º Tº (2007)

Domestic and intimate partner violence

The accused (AA) was sentenced to 20 months in prison by the Trial Court for crimes of domestic violence against his wife. AA filed an appeal to the Appeals Court arguing that the scope of the law against domestic violence applies only to victims that are deemed to be defenseless. AA argued that the victim BB was a member of the military and as such could not be deemed a defenseless person. The Appeals Court dismissed the appeal affirming the decision of the Trial Court.  The Appeals Court determined that the fact that the victim was a member of the military was irrelevant and that the acts of violence were appropriately analyzed considering only the aggressor.



AA v. Attorney General's Office, Case No. 327/2008 Criminal Appeals Court 1º Tº (2008)

Domestic and intimate partner violence

AA was sentenced to 12 months by the Trial Court of Tacuarembó for domestic violence deemed to be aggravated because the victim was a woman. AA and the victim had been living together in common law marriage since 2000, and in 2002 the victim reported on several occasions multiple instances of physical abuse as well as of psychological violence. In September 2003, the victim filed a complaint against AA for injuries inflicted to her neck and arm, which were verified by a public health doctor. The couple reconciled but thereafter got separated again. On January 1, 2004 the victim was on her way to visit a friend when AA intercepted her on the street and forcibly grabbed her left arm while pressing against her mouth a ring he was carrying until he broke her front tooth. Between December 2003 and January 2004 the victim had also reported threats and aggressions from AA. AA appealed to the Appeals Court but the Appeals Court dismissed the appeal affirming the decision of the Trial Court, ruling that the 12-month sentence was appropriate considering the evidence presented and the dangerous personality of AA.



AA v. Attorney General's Office, Case No. 413/2008 Criminal Appeals Court 2º Tº (2008)

Domestic and intimate partner violence

The accused (AA) was sentenced to 10 months with a suspended sentence by the Trial Court for the crime of domestic violence against his wife (BB). AA intimidated and committed continuous acts of violence against BB. The continuous and manipulative nature of this violence was deemed an aggravating circumstance by the Trial Court. AA appealed, arguing the Trial Court had improperly analyzed the evidence presented and that there was not enough evidence to convict him. The Appeals Court determined that the evidence on file needed to be analyzed in the context of the contentious relationship between AA and BB.  While AA argued that BB had mental problems, the court found this argument a mere pretext to deflect attention away from his own misconduct. The facts of the case showed that BB maintained the home and paid for AA’s expenses, a fact demonstrating that AA had an additional interest in BB other than one of affection. The doorman of the building where AA and BB lived testified that he once saw AA breaking things in a violent rampage, testimony contradicting AA’s statement that he was not destructive.  The Appeals Court found that there was sufficient evidence in the record to demonstrate AA’s guilt and affirmed the decision of the Trial Court.



Durand v. Prieto, Case No. 312/2017 Family Appeals Court 1ºT (2017)

Domestic and intimate partner violence

A trial court awarded Mariangeles Durand (Plaintiff) US$4,500 for actual damages and US$30,000 for emotional distress damages as a result of domestic violence committed by her common-law husband Luis Prieto (Defendant).  Defendant appealed arguing that, beyond Plaintiff’s testimony and a medical diagnosis based on that testimony, there was no proof that Defendant committed acts of domestic violence against Plaintiff and that Plaintiff’s depression and anxiety were the consequences of a preexisting medical condition.  Additionally, Defendant argued on appeal that the law does not recognize emotional distress damages in a common law marriage because the duty of fidelity and the duty to do no harm only arise from marriage. Finally, Defendant argued that Plaintiff consented to the acts of domestic violence acts and therefore there could be no damages.  The Family Appeals Court determined that domestic violence is a human rights violation: a victim cannot consent to be the victim of domestic violence and every person has a general duty to not harm another.  The Family Appeals court also ruled that the medical and psychological diagnoses were not hearsay. The Family Appeals Court dismissed the appeal and partially affirmed the decision of the Trial Court, concluding that Defendant breached a duty to Plaintiff and there was causation between the domestic violence and the damages suffered by Plaintiff.  However, it reduced the award of actual damages from $4,500 to $2,250 due to the fact that Defendant had already made payments to Plaintiff.



AA v. Attorney General's Office, Case No. 299/2010 Criminal Appeals Court 1º Tº (2010)

Domestic and intimate partner violence

The accused (AA) was sentenced to two years in prison by the Trial Court for aggravated domestic violence.  The court considered the aggravating circumstances to be the accused’s recidivism and the use of his strength to overpower his female victim.  AA had a history of domestic violence against his wife (BB).  Even though he had repeatedly assaulted BB and even stabbed her once, BB refused to file a complaint against him.  A family court judge imposed a restraining order against AA pursuant to which he could not get closer than 300 meters to BB and her children, but BB on several occasions allowed AA back in her home and near the children.  On October 7, 2008, AA came over to BB’s house with the intention of moving back in, but when BB said no AA locked her and her children in a room for two hours.  He did not physically assault them, but did threaten to kill them.  BB filed a complaint and AA was convicted of domestic violence.  AA appealed arguing that BB had subsequently withdrawn her criminal complaint against him and that this fact should be considered consent to his conduct. The Appeals Court determined that the victim’s withdrawal of her complaint was a consequence of “battered women’s syndrome,” and had no bearing on a criminal action.  The Appeals Court dismissed the appeal and affirmed the decision of the Trial Court.



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.



Regina v. Gua High Court of Solomon Islands (2012)

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

Macberth Gua was charged with the rape of his estranged wife of ten years.  The victim had not filed any divorce proceedings and there was no formal separation.  The defendant dragged the victim into his vehicle under the threat of violence and drove her to a remote location where he forced himself on her.  The defendant’s defense relied upon the antiquated common law maxim that a husband could not be liable for involuntary sexual intercourse with his wife (the “marital rape exception”), as her agreement to wed constituted an irrevocable consent to marital relations.  Moreover, Section 136 of the Penal Code of the Solomon Islands provides an excessively narrow definition of rape: “Any person who has unlawful sexual intercourse with a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by impersonating her husband, is guilty of the felony termed rape.”  The question before the High Court was whether a husband could be held criminally liable for raping his wife.  The answer provided by the High Court was in the affirmative, which ruled that marriage is now regarded as a partnership of equals, and that this principle of equality has been reflected not only in international conventions to which the Solomon Islands is a party, but is also entrenched in the provisions of the Constitution.  In its rationale, the High Court noted that one of the international conventions to which the Solomon Islands is a party is CEDAW, which, in Article 15, calls on all State parties to accord women equality with men before the law and, in Article 16, calls for the same personal rights between husband and wife.  As for the Constitution, Sections 3 and 15 of the Constitution guarantee women equal rights and freedoms as men and afford them protection against all forms of discrimination, including discrimination on the ground of sex.  The High Court thus held that the rule exempting husbands from liability for rape on their wives is no longer applicable, that it is no longer supported by common law, and that it is offensive to modern standards and principles of equality found in international conventions and the Constitution.  Notwithstanding the foregoing, unfortunately in the sentencing decision following Regina v. Gua, the sentencing judge stated that “this is a case which has occurred as a result of domestic problems between a husband and his wife.  It is not an offence that has been committed to gratify one’s own sexual desires.  There is an underlying cause for the commission of the offence – the termination by the victim of her marriage to the accused.  Hence, the accused is not solely to be blamed for this incident.  The complainant must also share the blame.” 



Case of Sebastian Ramirez Ledesma Supreme Court (1999)

Domestic and intimate partner violence

Sebastian Ramirez Ledesma was found guilty of murdering his father by the lower court.  The lower court sentence was confirmed by the Court of Appeals.  However, in 1997, the Supreme Court overturned the sentence and absolved the accused of all charges because he acted in self-defense.  On the day the events took place, Joaquin Ramirez, father of the accused was drunk and threatening to kill his wife, Francisca Ledesma de Ramirez.  Joaquin Ramirez regularly hit his wife.  In light of these circumstances, the accused intervened trying to defend his mother, which enraged his father.  Joaquin Ramirez took out a gun and fired three shots at the accused, missing him.  Then, Joaquin Ramirez continued the aggression against his wife.  Subsequently, the accused was able to grab the gun from his father.  When Joaquin Ramirez realized that his son took the gun, he took out a knife.  At this point, the accused fired the gun at his father, killing him.  The Supreme Court overturned the sentence because it found that the accused was acting in self-defense and also was trying to protect his mother. 



Case of Francisco Ramírez Irala Supreme Court (2011)

Domestic and intimate partner violence

In 2008, Francisco Ramírez Irala was found guilty of domestic violence against his wife.  The Justice of the Peace ordered the accused to refrain from living at their home or being within 300 meters of his house or any other place that represented a risk for the victim for a period of 60 days.  The accused appealed, and the sentence was confirmed.  Subsequently, the accused filed a request before the Supreme Court alleging that the sentence caused him great harm because he is a colonel in the military with an impeccable career and being evaluated for a promotion.  The Supreme Court rejected his motion.



Case of Emilio Garay Franco Supreme Court (1996)

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

Emilio Garay Franco was accused of murdering his mother, María Roque Franco González, in her home on August 3, 1983 at around 11:00 pm.  The weapon used to commit the crime was a knife.  The accused was sentenced to 30 years in prison.  The accused appealed the sentence, but the action was dismissed by the Supreme Court. The Court confirmed the sentence, noting “no hay delito más horrendo” ("there is no more horrendous crime”) than patricide.

 

Emilio Garay Franco fue acusado de asesinar a su madre, María Roque Franco González en su case el 3 de Agosto del 1983 alrededor de las 11 de la noche. El arma usada para cometer el crimen fue un cuchillo. El acusado fue sentenciado a 30 años de cárcel. Él apeló la sentencia pero la acción fue rechazada por la Corte Suprema, la cúal afirmó la sentencia y agregó que, “no hay delito más horrendo” que el parricidio.   



Case of Gilberto Arrúa González (No. 573) Supreme Court (2001)

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

Gilberto Arrúa González was accused of murdering his mother, Lidia Blanca González in her home on April 3, 1993 at around 7:00 pm.  The weapon used to commit the crime was a 21 cm long knife.  The police questioned Jorge Arrúa Godoy who testified that on that day his wife, the victim, and he returned to their home to find the accused, their son, drinking wine and listening to music on the patio of the house.  At one point, the defendant hit the radio with his hand, so his mother rebuked him, asking him to stop.  The defendant ignored her, and his mother grabbed him by his shirt and shook him.  In turn, the defendant’s father grabbed the victim by the arm, asking her to release his son.  When they released him, the defendant said “I will kill you all,” then ran into the kitchen where he grabbed the knife and tried to stab his father.  However, his mother stepped between them and the defendant fatally stabbed her.  The defendant was sentenced to 25 years in prison.  The accused appealed the sentenced but the Supreme Court confirmed the 25 year-prison sentence.



Rex v. Shongwe High Court (2008)

Domestic and intimate partner violence

The 54-year-old accused pleaded guilty to culpable homicide based on allegations that she unlawfully poured boiling water on her husband. He refused to seek medical attention for his injuries because he was embarrassed and he died six days later. The Court ordered a suspended sentence because the accused “had been and was being” viciously attacked by her husband and was escaping his attack. The Court based its judgment on a finding that there was a combination of extenuating factors present, including that the accused suffered from battered wife syndrome, the needs of the six remaining minor children for whom the accused is the sole caretaker and provider, that the accused had already served two years imprisonment before she was released on bail, and the deceased’s refusal to go to the hospital for treatment for fear of being ridiculed by other men.



C.M. v. B.M.B. Court of Appeal of Ghent (2003)

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

Following an assault by her husband (which was interrupted when he sustained a heart attack and had to be hospitalized), a woman temporarily moved into a small studio above the shop she rented and in which she worked. She brought divorce proceedings shortly after the assault, which resulted in a lower court restraining order on both parties. The husband was to be allowed to stay in the couple’s family house on the theory that this was the best solution financially and because the restraining order would make it impossible for the man to live in the studio in the rented commercial property as the wife worked there on a daily basis. On appeal, the wife requested that she be allowed to live in the family house, while the husband claimed that he should be allowed to stay there given his more limited financial means (a pension allowance). The husband did not deny the violence, but minimized the facts, while the wife claimed that there were already tensions before the assault and that her husband’s heart attack had saved her life.  The Court of Appeal held that despite the absence of other witness declarations, the existence of a medical certificate supporting the woman’s claims as to the assault provided sufficient evidence of violence by the husband. The fact that the violence only occurred once did not change this and nor did the outcome of the pending criminal investigation. The Court held that, in accordance with the law of 28 January 2003 on domestic violence, the family home was to be assigned to the victim of such violence as no exceptional circumstances existed here to decide otherwise, despite an alleged imbalance in the financial means of the parties. The request by the wife for a maintenance allowance to cover the husband’s rent was rejected because the husband did not prove that the wife had a higher income and that the divorce proceedings would likely lead to financial compensation by the wife to the husband for the use of the family house.



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.



The Queen v. Vernon Anthony Paddy The Eastern Caribbean Supreme Court in the High Court of Justice (Criminal Division) (2011)

Domestic and intimate partner violence, International law

Mrs. Paddy was a victim of ongoing domestic abuse by her husband of nine years; she hoped to move on and began communicating with other men, giving one of them her phone number.  Upon discovering that Mrs. Paddy wanted to get out of their marriage, Mr. Paddy attacked his wife, repeatedly beating her with a hammer.  Mr. Paddy was charged and convicted for causing grievous bodily harm with intent.  Mr. Paddy claimed to have been provoked by the conduct of the victim, but the Supreme Court found that the facts did not suggest such provocation, especially because the husband was aware that his wife suffered from multiple sclerosis and diabetes, and ruled it a premeditated attack.  In sentencing Mr. Paddy to eight years of imprisonment and financial responsibility for his wife’s medical expenses, the Supreme Court recognized that, under CEDAW, States are required to eliminate the many different forms of gender-based discrimination women confront by ensuring that all necessary arrangements are put in place that will allow women to actually experience equality in their lives.  The Supreme Court further observed that “it is now the duty of the courts to send out a strong message that domestic violence in any form will not be tolerated and that men do not have an unfettered license to batter women,” and that “[t]he only way the courts can effectively show this is by the sentences that are passed which are aimed at ensuring that the wrongdoer does not repeat the offence and that potential offenders get the message that society will not condone such behavior.”



Act on the Prevention of Spousal Violence and the Protection of Victims, etc. (Act No. 31 of 2001) (2001)

Domestic and intimate partner violence, Dowry-related violence

The Act on the Prevention of Spousal Violence and the Protection of Victims etc. (the “Act”) was enacted to prevent spousal violence. The Act aims to protect victims by establishing a system for notification, counseling, protection and support for self-reliance following an incident of spousal violence. The Act provides that the court shall, upon a petition from the victim, issue a restraining order, exclusion order and prohibition of telephone contact order (collectively, a “Protection Order”) where a victim is highly likely to experience serious psychological or bodily harm due to the actions of his or her spouse or domestic partner. The Act does not cover partners who are in a relationship but live separately. To ensure the effectiveness of the Protection Order, violations of the Act include imprisonment with work or fines.  Furthermore, the Act requires that citizens who detect spousal violence make efforts to a Spousal Violence Counseling and Support Center, temporary protection, support worker or a police officer. 



A.R.M.P. v. Attorney General's Office Supreme Court (2010)

Domestic and intimate partner violence

The defendant was seized by police officers at his parents’ domicile for domestic violence against his wife. During the arrest, the defendant proceeded to insult the victim, threaten her, grab her by the hair and spit on her face. The defendant was sentenced to two years of imprisonment on the count of domestic violence. During his appeal, the defendant had three arguments for repealing his conviction. First, as the defendant’s conduct was governed under both Honduras criminal law and Honduras Domestic Violence Act, he argued that only the most recent law, the Honduras Domestic Violence Act, should be applied. That more recent piece of legislation does not establish any criminal punishment. The Court disagreed, and found that the defendant used force and intimidation to cause emotional harm which is covered under the criminal statute. The defendants second argument was that certain statements offered as evidence against the accused were not sufficiently convincing to meet criminal law threshold and therefore could not sustain a count for domestic violence.  The Court concluded that this argument did not meet the threshold for rejection of evidence in criminal law. The defendant’s final argument was that the evidence showed that the facts discussed at trial indicated that his behavior was different those covered under the law on which the Tribunal’s decision were based. Nonetheless, as those facts also indicate force and intimidation resulting in psychological damage for the victim, no grounds for reversal of the decision were found. The conviction for domestic violence was confirmed and the decision was sustained. 

 

La policía capturó al acusado en el domicilio de sus padres por violencia doméstica contra su esposa. Durante el arresto, el acusado procedió a insultar a la víctima, amenazarla, agarrarla por el pelo y escupirle la cara. El acusado fue condenado a dos años de prisión por el cargo de violencia doméstica. Durante su apelación, el acusado tenía tres argumentos para revocar su condena. Primero, dado que la conducta del acusado violaba la ley penal de Honduras y la Ley de Violencia Doméstica de Honduras, argumentó que solo se debería aplicar la ley más reciente, la Ley de Violencia Doméstica. Esa legislación más reciente no establece ningún castigo penal. El tribunal no estuvo de acuerdo y encontró que el acusado utilizó la fuerza y la intimidación para causar un daño emocional que está cubierto por el estatuto penal. El segundo argumento del acusado fue que ciertas declaraciones ofrecidas como evidencia contra el no eran lo suficientemente convincentes para cumplir con el umbral de la ley penal y, por lo tanto, no podían sostener un recuento de la violencia doméstica. El Tribunal concluyó que este argumento no calificaba para el rechazo de pruebas en el derecho penal. El argumento final del acusado fue que la evidencia mostraba que los hechos discutidos en el juicio indicaban que su comportamiento era diferente a los contemplados en la ley en que se basaba la decisión del Tribunal. No obstante, dado que sus hechos también indican fuerza e intimidación que causaron daños psicológicos a la víctima, no se encontraron motivos para revertir la decisión. Se confirmó la condena por violencia doméstica y se sostuvo la decisión.

 



A.R.T. v. Attorney General's Office Supreme Court (2012)

Domestic and intimate partner violence

Mistakenly believing that a stranger was in his house, the defendant began insulting his wife and tried to beat her. He was prevented in succeeding in his attack after an intervention by their son. The defendant was consequently convicted of domestic violence and sentenced to 20 months in prison. Responding to the argument that a lack of force prevents his actions from satisfying the elements of domestic violence as codified in Honduras Penal Code, the Court responded that “intimidation” was within the elements of domestic violence. Furthermore, the Court held that that the accused failed to establish with particularity which elements were improperly decided. Therefore, it dismissed his appeal and confirmed the sentence.

 

Creyendo erróneamente que un extraño estaba en su casa, el acusado comenzó a insultar a su esposa y trató de golpearla. La intervención de su hijo previno el ataque. En consecuencia, el acusado fue declarado culpable de violencia doméstica y condenado a 20 meses de prisión. Respondiendo al argumento de que la falta de fuerza supuestamente impide que sus acciones satisfagan los elementos de violencia doméstica según lo codifica el Código Penal de Honduras, la Corte respondió que la "intimidación" satisface los elementos de violencia doméstica. Además, el Tribunal sostuvo que el acusado no pudo establecer con particularidad qué elementos se decidieron incorrectamente. Por lo tanto, desestimó su recurso y confirmó la sentencia.



Munda v. State of Western Australia High Court of Australia (2013)

Domestic and intimate partner violence

The accused, a 32-year-old Aboriginal man (Munda), killed his de facto wife during an argument by punching her in the face and head numerous times and ramming her head into the wall. Both were intoxicated, and Munda had used some cannabis. Munda had a history of alcohol and drug abuse. At the time of the incident Munda was subject to a lifetime violence restraining order prohibiting him from having any contact with the deceased. The order was imposed after a previous incident for which Munda was convicted of causing grievous bodily harm to the deceased. Munda and the deceased ignored the restraining order and chose to continue their relationship. Munda pleaded guilty to manslaughter and was sentenced to five years, three months’ imprisonment. The prosecution appealed on the ground that the sentence was manifestly inadequate. Munda was resentenced to seven years, nine months’ imprisonment. Munda appealed to the High Court. The High Court noted that a just sentence must accord due recognition to the human dignity of the victim of domestic violence and the interest of the community in the denunciation and punishment of a “brutal, alcohol-fuelled destruction of a woman by her partner.” While the High Court acknowledged that Munda had a drug / alcohol addition, it held that courts must exercise caution in characterizing or treating an offender as a ‘victim’ because it can lead adult perpetrators to wrongly believe that they are not truly responsible for their conduct, which can lead to a failure to properly protect the community. While the High Court acknowledged that Munda’s severe social disadvantages must be considered, that consideration must be balanced with the seriousness of the offense. The court noted that indulging in drunken bouts of domestic violence is an example of moral culpability to a “very serious degree” and that this was not reflected in the original sentence. The appeal was dismissed by a majority (Bell J dissenting).



Smythe v. Banks Family Court of Australia (2016)

Domestic and intimate partner violence

This case concerned parenting orders for the three children of the applicant mother and respondent father. The mother alleged that during her relationship with the father, he domestically abused her by shouting at her, denigrating her, physically assaulting her, and suppressing her financial autonomy. There was also evidence that the father was charged with a number of offences of assaulting his new partner (Ms. H). The Family Consultant described the father’s treatment of Ms. H and the applicant as “pathological” and “coercive controlling violence.” The court was satisfied that the children would be exposed to domestic violence within the father’s household and found that the presumption of equal shared parental responsibility did not apply. The court also found that the children’s need for protection from harm superseded their need for interaction with their father, their apparent wishes to stay with their father, and the presumption that the child’s best interests are served by an order allocating equal shared parental responsibility to both parents. The court ordered that the children live with the mother and limited the father’s contact with the children to four professionally supervised visits per year and occasional written communications. Outside of these parameters, the father was forbidden to contact his children.



Minister for Immigration and Citizenship v. SZONJ Federal Court of Australia (2011)

Domestic and intimate partner violence, Gender discrimination

The respondent was a victim of domestic violence at the hands of her husband for a number of years in her native country, Fiji. After unsuccessfully attempting to obtain assistance from local police, she fled to Australia and applied for a protection visa. To be recognized as a refugee the respondent had to show that Fiji’s failure or unwillingness to protect her was motivated by a reason listed in the Convention Relating to the Status of Refugees 1951 (Convention), in this instance, her membership in a particular social group. Respondent argued she belonged to the following social groups: women in Fiji, women in Fiji who have left their husbands, and women who refuse to conform to the social norms of Fijian Indo society. She argued that her membership in these groups meant that Fijian police would not protect her from her husband’s assaults if she returned to Fiji. The Refugee Review Tribunal (Tribunal) found: (i) there was no evidence that the Fijian authorities withheld state protection from the respondent based on her membership in these particular social groups; (ii) Fiji has laws against domestic violence; and (iii) Fiji had a police force and judiciary to give effect to its domestic violence laws. On appeal, the Federal Magistrate’s Court overturned the Tribunal’s decision, finding that the Tribunal erred by failing to explicitly evaluate whether Fiji’s laws were sufficient to protect a person in the respondent’s position. The Full Federal Court overturned the Federal Magistrate’s Court’s decision and upheld the reasoning of the Tribunal, holding that the test for refugee protection is not satisfied where (i) the persecution is by a non-state agent (here, the respondent’s husband) for a reason that has no connection to the Convention, and (ii) the state fails to prevent the persecution due solely to its inability to implement relevant laws due to lack of resources.

This decision disproves the previous position in AZAAR v. Minister for Immigration and Citizenship, Federal Court 2009.



Minister for Immigration and Citizenship v. SZONJ Federal Court of Australia (2011)

Domestic and intimate partner violence, Gender discrimination

The respondent was a victim of domestic violence at the hands of her husband for a number of years in her native country, Fiji. After unsuccessfully attempting to obtain assistance from local police, she fled to Australia and applied for a protection visa. To be recognized as a refugee the respondent had to show that Fiji’s failure or unwillingness to protect her was motivated by a reason listed in the Convention Relating to the Status of Refugees 1951 (Convention), in this instance, her membership in a particular social group. Respondent argued she belonged to the following social groups: women in Fiji, women in Fiji who have left their husbands, and women who refuse to conform to the social norms of Fijian Indo society. She argued that her membership in these groups meant that Fijian police would not protect her from her husband’s assaults if she returned to Fiji. The Refugee Review Tribunal (Tribunal) found: (i) there was no evidence that the Fijian authorities withheld state protection from the respondent based on her membership in these particular social groups; (ii) Fiji has laws against domestic violence; and (iii) Fiji had a police force and judiciary to give effect to its domestic violence laws. On appeal, the Federal Magistrate’s Court overturned the Tribunal’s decision, finding that the Tribunal erred by failing to explicitly evaluate whether Fiji’s laws were sufficient to protect a person in the respondent’s position. The Full Federal Court overturned the Federal Magistrate’s Court’s decision and upheld the reasoning of the Tribunal, holding that the test for refugee protection is not satisfied where (i) the persecution is by a non-state agent (here, the respondent’s husband) for a reason that has no connection to the Convention, and (ii) the state fails to prevent the persecution due solely to its inability to implement relevant laws due to lack of resources.



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

Domestic and intimate partner violence

The defendant was convicted of third-degree domestic violence, harassment, and harassing communications based on evidence that he attacked his ex-wife, Karen Kelly, while they were driving in a car. On appeal, the defendant argued that the trial court improperly admitted testimony from the treating physician concerning what Ms. Kelly told him as he was treating her broken nose. Specifically, the physician testified that Ms. Kelly told him that her injuries were caused by an “altercation with her husband while they were driving.” The defendant argued that the medical-diagnosis hearsay exception in Alabama Rule of Evidence 804(3) or Federal Rule of Evidence 804(3) did not apply because the statement did not concern the cause of Ms. Kelly’s injuries, but rather was a statement of fault. In concluding that the physician’s testimony was admissible under Rule 804(3), the court cited two prior decisions. First, the court considered Ex parte C.L.Y., 928 So.2d 1069 (Ala. 2005), in which 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 court considered United States v. Joe, 8 F.3d 1488 (10th Cir. 1993), in which the Tenth Circuit held that that “the identity 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 these cases, the court 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).”



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 and remanded with an order to reinstate prosecution.



State v. Hickson Supreme Court of Florida (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 admissible. The expert was permitted to testify about the syndrome in general or to answer hypothetical questions based on facts in evidence. If the defendant desired to present testimony from an expert who had examined her in order to opine directly about her case, the defendant would be required to submit to an examination by the state’s expert.  If the defendant chooses to have the expert testify generally about the syndrome or answer hypothetical questions, the state will not be allowed to have the defendant examined by the state’s expert but may produce its own expert to testify about generalities and hypotheticals.



Individual Application of M.Y. and E.A.Ö. Constitutional Court (2015)

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

Following the divorce of the applicant, E.A.Ö (the mother), and R.Y. (the father), the court gave custody of their daughter to E.A.Ö and limited the father’s visitation rights to certain dates and times indicated by the court.  E.A.Ö took her daughter to a Child and Adolescent Health and Disease Specialist (a psychiatrist) to address issues regarding the child’s aggressive sex-related movements and fears about witches and similar beings. The psychiatrist reported that the child had been a victim of sexual abuse by her father. The applicant filed a lawsuit before the Court of First Instance (family court) requesting that the court terminate the father’s visitation rights citing the evidence that the father might have sexually abused the daughter and might continue to sexually abuse her if he had access to her. E.A.Ö. claimed that the father posed a serious threat to the material and moral integrity of the child as well as E.A.Ö. While she was pursuing this claim, the Prosecution Office decided to not pursue criminal charges against the father citing a lack of evidence regarding the father’s sexual abuse of the child. Based on the Prosecution Office’s non-prosecution decision, the Court of First Instance decided against E.A.Ö leading to her application to the Constitutional Court. While, her application to the Constitutional Court was pending E.A.Ö. filed another lawsuit before the Court of First Instance and did not inform the Constitutional Court about this second lawsuit. In the second lawsuit, the Court of First Instance rendered an injunction decision, which prohibited any contact between the father and the daughter. Subsequently, the Constitutional Court rejected E.A.Ö.’s application because there was no longer any risk of danger to the daughter, since the Court of First Instance had already issued a protective order preventing the father from seeing the child. 



Individual Application of Gamze Armağan Constitutional Court (2015)

Domestic and intimate partner violence

A.Y. was married to H.Y. A.Y. believed that H.Y. was having an affair with Ms. Armağan. After a fight between the three of them, A.Y. requested a preventative and protective measure for a period of three months against H.Y. and Ms. Armağan because she feared violence from both of them. The competent court granted A.Y.’s request for a preventative and protective measure. Ms. Armağan appealed the protective measure. The Court of First Instance rejected her petition on the grounds that solid evidence regarding the occurrence of incidents or threats of domestic violence is not necessary when granting a preventative and protective measure. Ms. Armağan filed an individual application with the Constitutional Court. The Constitutional Court evaluated the case based on whether the lower courts had infringed Ms. Armağan’s right, under the Turkish Constitution, to a fair trial because of an unjust verdict and judgement. The Constitutional Court ruled that both grounds are inadmissible because (i) individual applications to the Constitutional Court do not serve as an appeal mechanism in order to overturn an undesirable decision of a Court of First Instance; and (ii) the justifications given by the Court of First Instance provided a sufficient basis for the preventive and protective measure in question. 



Individual Application of Özlem Tuncel Kaya Constitutional Court (2016)

Domestic and intimate partner violence

The applicant, Ms. Kaya, applied to the Office of Public Prosecutor (the “OPP”), claiming that she had been the victim of domestic violence. After investigating, the OPP charged the applicant’s husband with domestic violence and went to trial. However, during the trial, the applicant withdrew her claim and said that the bruises she had submitted as evidence were actually the result of an accident at the couple’s home. The OPP dropped the charges against the applicant’s husband. Two years later, the applicant filed another claim with the OPP alleging that her husband stole her jewellery and again subjected her to domestic violence.  The OPP notified the proper Court of First Instance for Family Affairs (the “Court of First Instance”). The Court issued a restraining order against the husband that prevented him from approaching the applicant and ordered that he pay alimony to her for four months. The government offered the applicant state housing for the victims of domestic violence, but she rejected the offer. The applicant was subjected to several more incidents of domestic violence. During that time, the OPP requested the Court of First Instance to issue a warrant for the arrest of the applicant’s husband. The Court of First Instance rejected the OPP’s request. The applicant appealed, but her appeal was dismissed because Ms. Kaya’s statements alone were not adequate evidence of domestic abuse. After Ms. Kaya appealed, the Constitutional Court ruled that Turkey had a duty to take affirmative steps to prevent further acts of domestic violence against the appellant and effectively investigate her claims in this case. However, after applying the legal framework addressing victims of domestic violence, the Constitutional Court ruled that Ms. Kaya’s fundamental rights under the framework had not been infringed. This decision is important because it demonstrates that even though there is a legal framework available for women affected by domestic violence, claims against state officials for failing to act on their duties under that framework need to be specific and supported by substantial evidence.



Sharma & Another v. Uganda Supreme Court at Mengo (2002)

Domestic and intimate partner violence

The appellants are brothers appealing their conviction for the murder of wife of the first appellant, Kooky Sharma.  The first Appellant and the deceased lived in a two-family building.  On the night of the murder, their neighbors heard two male voices and a woman crying “for a long time” inside the first appellant’s home.  The next day, the local council chairman learned of the victim’s death and visited the home.  The first appellant told him that the victim died of malaria.  The chairman was not satisfied with the explanation, noting that the victim’s clothing covered her entire body except for her face, and he prevented the first Appellant from immediately cremating the victim.  After the police examined the deceased’s body and found bruising, they opened a murder investigation and returned to search the first Appellant’s home.  There they found the male household cook lying unconscious in bed and badly beaten.  The police brought him to the hospital for treatment, but he disappeared by the time they returned to question him two days later and remained missing throughout the subsequent investigation and trial.  Medical examinations of the deceased conflicted with each other.  One medical examination of found bruising from electrical or acid burns and organ damage.  It found that the cause of death was “shock due to electrical burns with blunt injury.  Poison could not be ruled out.”  In another examination, the Senior Government Chemist found acaricide poison in the deceased’s liver, spleen, kidneys, and brain. The appellants appeal based on the discrepancies in the medical opinions regarding the cause of death.  The Court, explaining that judges may accept the evidence of one witness over another, held that the discrepancy was due to one doctor’s lack of experience and that the findings of the more experienced physician were reliable.  In addition, the second appellant, the deceased’s brother-in-law, also argued that the identification that led to his conviction was faulty and that the trial court failed to properly consider his alibi.  The Supreme Court found that the lower courts’ analysis seemed to require that the second appellant prove his alibi rather than require that the prosecution disprove it and so upheld the second appellant’s appeal.  The Court also expressed two grievances about the proceedings at the trial court.  The Court’s first complaint was that the defendants did not give sworn testimony but improperly were allowed to make unsworn statements guided by their attorneys.  The Court also reprimanded the attorneys for raising too many objections during trial and bogging down the proceedings.



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.



Kirungi v. Mugabe High Court at Kampala (2013)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The petitioner requests a divorce from the respondent and money to care for the parties’ daughter, for whom the petitioner is the sole caregiver. The parties were married in July 2008 in Uganda and then moved to Woburn, Massachusetts, USA.  The respondent husband physically abused his wife, especially when intoxicated.  During the time they lived together, the respondent usually slept in the sitting room.  For three years they lived apart, but were reconciled by relatives.  During the reconciliation, the parties had a daughter.  The respondent was never involved in caring for the child and eventually left the family home to live with his mother 45 minutes away.  The petitioner returned to Uganda where she is the sole parent and provider for her daughter.  The court granted the request for a divorce on the grounds of cruelty and desertion.  The court explained that the best interests of the child control all determinations relating to children.  The court granted the petitioner custody of the daughter and $400 (USD or the USh equivalent) per month from the respondent for their daughter’s maintenance.



Tibenderana v. Al-Torki High Court at Kampala (2015)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The petitioner father filed for divorce from the respondent mother and custody of their child.  After the birth of their child in 2007, the respondent left the matrimonial home without returning.  After over two years of absence, the petitioner filed for divorce.  The two elements of desertion are the actual absence of a spouse and their intent to abandon the union.  In this case, the respondent travelled internationally with the child at the petitioner’s expense and refused requests to move to Uganda once she obtained citizenship.  In 2011, she moved back to Uganda.  In 2012, the respondent requested an Islamic divorce, which she was granted, citing problems with the government of Saudi Arabia.  After the Islamic divorce, the parties continued to cohabitate with petitioner as the sole provider for the family, but the marriage was over.  Respondent moved to the United Kingdom for the child’s education and the petitioner paid the costs.  The petitioner also complained of physical assault, which he did not report to the police to protect his reputation.  He submitted documentation of his payments for living and education expenses, their marriage, the Islamic divorce, and his unanswered inquiries to respondent about their child.  The court agreed that these facts demonstrated an irretrievably broken marriage.  Citing the Children Act, which requires courts primarily consider the best interests of the child in custody determinations, the court granted custody of the child to the petitioner because the petitioner functioned as the sole provider for the family.



Uganda v. Ogwang High Court at Soroti (2015)

Domestic and intimate partner violence

The accused is charged with murdering his wife with a hoe.  The couple’s son lived nearby and heard his parents fighting.  He interrupted his parents’ fight and tried to stop it, but the accused grabbed a hoe and struck his wife in the head, which killed her.  The accused denied his son’s testimony and said his wife was attacked while out with him. The Court found the son’s testimony credible and rejected the accused’s statements.  The Court sentenced the accused to 40 years imprisonment.



Uganda v. Kamuhanda High Court at Fort Portal (2014)

Domestic and intimate partner violence

The accused was charged with murdering his father.  The accused’s mother testified that her husband, the deceased, repeatedly physically abused his wife and children.  After a day of drinking, the deceased chased his wife and children out of the house.  The deceased’s wife went to see her older son, Muhwezi.  Muhwezi took his mother to the local council chairman, who took her to the police.  After the police refused to do anything, the deceased’s wife and children spent the night at the local council chairman’s home.  The deceased was found dead in the family home the next morning.  Muhwezi confessed that he argued with his father and killed him in self-defense.  The prosecutor requested at least 40 years imprisonment, but the Court, citing researched on the effects of long-term domestic violence, sentenced the accused to two years imprisonment.



Uganda v. Kennedy High Court at Nakawa (2014)

Domestic and intimate partner violence

The accused pleaded not guilty to the charge of murdering his wife after an hours-long fight.  Medical evidence showed that the victim died of blunt force trauma and “increased incranial pressure.”  Family members and friends testified to witnesses numerous instances of the accused committed violence against the victim.  Explaining that domestic violence is one of the most pressing societal problems in Uganda today, the judge sentenced the defendant to 30 years imprisonment.



S. v. S. High Court of Namibia (2015)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Plaintiff filed for divorce from her abusive husband after he threatened to kill her. Under Namibian law, before a judge can issue a final divorce decree, the plaintiff must ask the defendant to restore his or her conjugal rights. This process effectively requires the filing spouse to give the other party, in this case an abusive husband, a chance to re-enter the marital home to restore his/her conjugal rights. The High Court of Namibia (“High Court”) recognized the danger of applying this requirement in domestic violence cases, where the respondent may use the judicially-mandated restitution of conjugal rights as an opportunity to access and further abuse the filing spouse.  In light of this risk, the High Court held that a spouse who files for divorce based on acts of domestic violence is exempt from the restitution of conjugal rights requirement.  



State v. Nghidini High Court of Namibia (2015)

Domestic and intimate partner violence, Statutory rape or defilement

The defendant, an 18-year-old uncle of the complainant, was criminally charged for housebreaking with intent to rape and raping his 12-year-old niece. The complainant alleged that the defendant, on three separate occasions, came to the complainant’s home and raped her.  The complainant’s mother found out after take the complainant to a clinic, which confirmed that she was pregnant, and confronting the defendant through the headman, as tradition dictates.  According to the defendant, the complainant invited him to her home and agreed to have sex with him for money, specifically N$6. Given the conflicting testimony, the High Court of Namibia (“High Court”) found that the prosecution failed to prove the housebreaking with the intent to rape and rape charges beyond a reasonable doubt.  In explaining its reasonable doubt, the Court cited the facts that complainant did not mention until her cross-examination that her uncle in fact gave her money on the day of the first rape, that she did not wake her seven-year-old brother or otherwise raise an “alarm” when her uncle arrived at her hut at night, and that she continued to withhold information from her mother “after her mother created a secure environment and the accused failed to execute his threat” to beat the complainant if she told anyone.  Still, the Court did not believe the defendant’s testimony that his niece was a “great temptress.”  Instead of homebreaking with intent to rape and rape as charged by the State, the High Court convicted the defendant under section 14, sexual offences with youths, of the Immoral Practices Act, 21 of 1980, which carries a maximum penalty of 10 years imprisonment and/or a fine not exceeding N$40,000.  The Court found that the State proved the three elements of that offense: the defendant (1) committed a sexual act with a child under the age of 16 (2) when he was more than three years older than her and (3) not married to her.  Although the defendant claimed that he did not know the complainant’s age, the High Court held that, in order to avoid conviction, the defendant had the burden of proving that the complainant deceived him regarding her age. The defendant failed to provide such proof. 



State v. Britz High Court (2013)

Domestic and intimate partner violence

In this case, the court overturned a “strikingly short” two-year sentence imposed on the defendant, who was convicted of attempting to kill his ex-girlfriend by stabbing her three times, including once near her eye, with a knife while she was holding her 2-year-old child. Despite the severity of the crime and finding that the defendant exhibited no remorse for his actions, the presiding magistrate only imposed a two-year jail sentence, citing the defendant’s personal circumstances as the sole breadwinner and caretaker for his three children and his ill grandmother.  Although trial courts have discretion to determine punishment, the High Court refused to confirm the sentence and would only confirm the conviction, citing the three principles of sentencing: the personal circumstances of the accused, the nature of the crime, and the interests of society. The Court directed the Registrar to provide a copy of this decision to the Prosecutor-General, explaining that while taking the defendant’s circumstances into account is proper, the two-year sentence was unjust because of the severity of the crime and the prevalence of violence against women and children. 



State v. Waterboer High Court (2013)

Domestic and intimate partner violence

The defendant was convicted of murder and violating the Combating Domestic Violence Act for killing his girlfriend after the police had warned him to stay away.  Before sentencing, the court noted that the defendant’s punishment had to reflect the “extremely serious” nature of his crime. The court stated that “[t]he sentence . . . must reflect the seriousness [with] which the court regards any such act of violence committed against women and all other vulnerable people in our society,” and imposed a 32-year sentence (¶¶ 10–11). 



State v. Naruseb High Court (2012)

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

Mr. Naruseb was tried for beating and raping his girlfriend A.S. (the third complainant), sexually abusing and beating their 5-month-old male and female twin children, and murdering his son by throwing him on the floor.  Medical experts testified that the injuries on the twins suggested sexual and other physical violence.  Denying the charges, the accused testified that A.S., the children’s mother, beat the twins and assaulted the accused. The accused also argued that there was no credible evidence of the crime and that the prosecution failed to meet its burden of proof because A.S. was the only eye-witness to the accused’s alleged crimes. The High Court of Namibia disagreed, finding the accused not credible and finding the A.S. credible, not least because the circumstantial and medical evidence supported her testimony. Citing precedent regarding single witnesses, the Court determined that a single eye-witness is sufficient to sustain a conviction if the witness (a) is credible, (b) gives her statement in a straight-forward manner, and (c) has no reason to falsely incriminate the accused.  In addition, an inference may be properly drawn from the fact that the accused and the complainant were the only two adults in the room between the time the complainant went to bed at night without injuries and when she awoke in the morning with injuries. This finding is significant for domestic violence cases, which often do not involve unbiased third-party testimony.  



State v. Naruseb High Court (2012)

Domestic and intimate partner violence, Statutory rape or defilement

Mr. Naruseb was tried for beating and raping his girlfriend A.S. (the third complainant), sexually abusing and beating their five-month-old male and female twin children, and murdering his son by throwing him on the floor.  Medical experts testified that the injuries on the twins suggested sexual and other physical violence.  Denying the charges, the accused testified that A.S., the children’s mother, beat the twins and assaulted the accused. The accused also argued that there was no credible evidence of the crime and that the prosecution failed to meet its burden of proof because A.S. was the only eye-witness to the accused’s alleged crimes. The High Court of Namibia disagreed, finding the accused not credible and finding the A.S. credible, not least because the circumstantial and medical evidence supported her testimony. Citing precedent regarding single witnesses, the Court determined that a single eye-witness is sufficient to sustain a conviction if the witness (a) is credible, (b) gives her statement in a straight-forward manner, and (c) has no reason to falsely incriminate the accused.  In addition, an inference may be properly drawn from the fact that the accused and the complainant were the only two adults in the room between the time the complainant went to bed at night without injuries and when she awoke in the morning with injuries. This finding is significant for domestic violence cases, which often do not involve unbiased third-party testimony.  



Lesia v. Lesia High Court of Lesotho (2013)

Domestic and intimate partner violence, Property and inheritance rights

Mrs. Lesia filed an application for relief against her husband, alleging that he abandoned his family, abused her, and was attempting to sell their home without her consent. She alleged that she built and paid for the home, and so sought to have her husband enjoined from selling it. The court issued an interim order granting the requested relief. The defendant disregarded the court order, continued his efforts to sell the home, and threatened to kill Mrs. Lesia if she kept interfering.  To justify his rejection of the court order, the defendant claimed that he was not married to Mrs. Lesia, and that she had no right to file any applications against him. The court upheld Mrs. Lesia’s right to seek judicial intervention and sentenced the defendant to 30 days in jail for willfully disobeying the court’s order.  



Rex v. Ntai High Court of Lesotho (2004)

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

The defendant was convicted of culpable homicide. The trial evidence showed that after spending an evening at a bar, the defendant beat his girlfriend to death. The defendant sought leniency at sentencing, arguing that he was drunk when he committed the offense.  The High Court found that although intoxication somewhat lessens the blameworthiness of a person, the courts should not consider it a mitigating factor. According to the Court, defendants “should not be allowed to escape appropriate punishment for their actions for reasons of drunkenness, especially where such actions exhibit an attitude of violence against women” (p. 3).  The Court sentenced the defendant to seven years imprisonment with half of the sentence suspended for five years if he was not found guilty of another violent offense during the suspension. This decision marked a shift in how intoxication was treated for purposes of sentencing in domestic violence cases in Lesotho.  



Petlane v. Petlane High Court of Lesotho (1999)

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

Mrs. Petlane, the plaintiff, sued her husband, alleging that he abused her regularly and caused her to leave their marital home. The plaintiff sought relief from the physical abuse, custody of the parties’ minor child, spousal support, and child support. The defendant did not allege an inability to provide for his wife and child, but insisted that they live together if he was going to provide that support.  First, the High Court found that it had jurisdiction because the parties had a civil marriage rather than a customary marriage, as the defendant claimed. Then the Court held that Mr. Petlane could not compel his wife to return home, which would risk more physical abuse, by refusing to support her financially. Because his abusive behavior drove her out of the marital home, the court ordered Mr. Petlane to make regular spousal and child support payments to Mrs. Petlane.



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.



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.



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

Domestic and intimate partner violence, Gender discrimination

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



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

Domestic and intimate partner violence, Gender discrimination

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



Jiangsu Province v. Erming Wang People’s Procuratorate of Quning District Court (2014)

Domestic and intimate partner violence

The defendant Wang “bought” a woman with intellectual disabilities, Yang, for RMB 10,000 to have a male heir. Wang chained Yang’s feet and hands and raped Yang several times. The imprisonment and rape lasted for 2 months until police rescued Yang. Quning District Court, Jiangsu Province found that defendant Wang trafficked the woman, imprisoned, and raped her. Therefore, according to Article 236 section 1 and Article 238 section 1 and Article 240 of Criminal Law of the People’s Republic of China, Wang was sentenced to ten years’ imprisonment.



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.



Sok v. Minister for Immigration and Citizenship High Court of Australia (2008)

Domestic and intimate partner violence

Sok, a Cambodian citizen, married an Australian woman who acted as his visa sponsor. A permanent visa is conditioned on the determination that the visa applicant is the spouse of the sponsor and that the parties have a genuine relationship. A delegate of the Minister for Immigration and Citizenship declined to grant Sok a permanent visa because the delegate “was not satisfied that the appellant [Sok] was the spouse of the sponsor.” Sok applied for a review of the refusal, later alleging that he was the victim of domestic violence by his sponsor. The case raised two questions: (1) whether the review Tribunal must consider Sok’s claim of domestic violence even though the claim was not raised until the refusal of his application and (2) whether the Tribunal can “decide that it is not satisfied that the alleged victim . . . suffered relevant domestic violence” without a hearing. The High Court sided with the appellant, holding that the Tribunal must consider the claim. The Court further held that the Tribunal cannot make a determination regarding the claim of domestic violence without allowing the appellant an opportunity to be heard.



Case No. 128/2011 Denmark Supreme Court (2012)

Domestic and intimate partner violence

The defendant was found guilty of acts of violence toward his sons, which included physical abuse and constituted a continued offense because the violence involved a number of uniform and continuous acts over a period of ten (10) years. Additionally, he was found guilty of threatening his wife with abuse and death. Prior to these offenses, the defendant had no criminal record. Initially, the High Court found the defendant guilty of acts of violence and abuse against his children and wife and sentenced to one year and three months of imprisonment. Subsequently, the Supreme Court reversed the High Court’s determinations that the defendant did not commit any abuse and the acts of violence did not constitute a continued offense as well as increased the length of the defendant’s imprisonment from ten (10) months to one year and three months.



U1987.960V Western High Court (1987)

Domestic and intimate partner violence

The defendant was found not guilty of brutal violence by the Municipal Court, but was sentenced to sixty days of conditional imprisonment. The defendant was accused of abuse when he knocked his wife over, tore at her clothes, hit her, pulled her hair, bit her, and tried to take photographs of her naked. The Municipal Court awarded her compensation of 4,000 DKK. Subsequently, the defendant appealed to the Western High Court for reduced liability for compensation. A majority of the court found that the wife was not entitled to compensation for two reasons: 1) the defendant was only sentenced to conditional imprisonment; 2) the defendant was found not guilty of brutal violence by the Municipal Court. A dissenting judge advocated awarding compensation because of the circumstances of the abuse and also because the defendant was found guilty of committing ordinary violence. Ultimately, the High Court denied compensation to the wife.



Case of Lucia Sandoval Prosecution Appeal Court (Fiscalía apelará del tribunal) (2014)

Domestic and intimate partner violence, Gender discrimination

On August 27, 2014 Lucia Sandoval was acquitted after the court found insufficient evidence of her involvement in her husband’s death. In 2011, Sandoval was charged for the intended homicide of her husband. She subsequently spent over three years in prison awaiting trial. The incident that formed the basis for the charges took place on February 11, 2011, when Lucia Sandoval informed her husband that she had filed a complaint of domestic violence and had obtained a restraining order against him, which required him to leave their home. Sandoval’s husband responded violently and threatened her with a gun. When Sandoval tried to escape, a physical fight ensued and the gun was fired, resulting in her husband’s death. Amnesty International Paraguay, the Committee of Latin America and the Caribbean for the Defense of Women’s Rights (CLADEM) and Catholics for the Right to Decide (CDD Paraguay) helped advocate as to Sandoval’s innocence. These organizations claimed that “the first failure of the judicial system was that protection measures [for] . . . Sandoval were not applied. The court gave the [restraining] order to Sandoval, instead of sending the notice to the Police for it to be given to [her] husband.” The organizations noted that Paraguay had passed a law against domestic violence in 2000 but contended that the law “does not comprehensively address the problem, no[r] does it allow for a coordinated and coherent system in the country to collect data about gendered violence.” It should be noted that in 2013, the Human Rights Commission at the United Nations recommended that Paraguay implement a law to “prevent, punish, and eradicate gender violence, as well as assure that complain[t]s of domestic violence are effectively investigated, with perpetrators being punished appropriately and the survivors receiving attention and compensation.” Background information available at http://blog.amnestyusa.org/americas/victory-in-paraguay-is-a-big-step-fo... http://www.cladem.org/paraguay/Lucia-Sandoval-absuelta.pdf http://www.justice.gov/eoir/vll/country/amnesty_international/2014/Peru.pdf https://www.youtube.com/watch?v=Hk6bjsNKmrM



Decision T-045 of 1995 Constitutional Court of Colombia (1995)

Domestic and intimate partner violence

The plaintiff filed a writ of constitutional challenge and requested the respondents, the plaintiff’s common-law partner for fifteen years and his current live-in partner, not disturb her home and that the house in which she was currently residing be granted to her. The trial court denied the relief sought on the grounds that the plaintiff could resort to other legal means such as liquidation of the partnership at will. The appeal court affirmed. The Constitutional Court denied the writ on lack of evidence showing torture or cruel, inhumane or degrading treatment. The Court did not equate a declaration of intent to sue (by the respondents over the property) to taking the law into one’s own hands, duress or threats against the person or family of the petitioner. The Court concluded that the plaintiff was independently employed and was not defenseless or subordinate to her former partner, and she had other legal means to enforce her rights.



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

Divorce and dissolution of marriage, Domestic and intimate partner violence

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



Jeffries v. R Supreme Court of New South Wales (Court of Criminal Appeal) (2008)

Domestic and intimate partner violence

The appellant in this case was convicted of multiple domestic violence offenses and sentenced to prison. The appellant sought an appeal on the basis that the judge in the lower court “erred in failing to consider special circumstances in relation to the question of accumulation” and also imposed a “manifestly excessive” sentence. In light of the seriousness of the appellant’s offenses, as well as his history of domestic violence against the victim in the case, the Court ordered the appeal dismissed. When dismissing the appeal, the Court noted the appellant’s “pessimistic . . . prospects of rehabilitation,” as well as general goals of deterrence and community safety.



R v. Hamid Supreme Court of New South Wales (Court of Criminal Appeal) (2006)

Domestic and intimate partner violence

The Respondent in this case faced a prison term of two years and six months based on his convictions for 9 counts of serious domestic violence offenses. The Respondent was also ordered to refrain from any harassment or threatening conduct toward the victims (or those in domestic relationships with the victims) for ten years. In response to the sentencing of the Respondent, “the Crown submitted that the sentences imposed upon the Respondent were manifestly inadequate.” The Crown noted that “a number of individual sentences were themselves inadequate given the objective seriousness of the crimes involved.” The Court emphasized the importance of both specific and general deterrence for domestic violence offenses and noted “[r]ecognition of the harm done to the victim and the community as a result of crimes of domestic violence is important.” The Court ultimately held that “the sentences imposed upon the Respondent were manifestly inadequate” and resentenced the Respondent.



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.



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

Domestic and intimate partner violence

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


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

Divorce and dissolution of marriage, Domestic and intimate partner violence

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


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

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

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



Mbuso Blue Khumalo v. Rex Supreme Court of Swaziland (2012)

Domestic and intimate partner violence, Sexual violence and rape

Appellant was convicted of rape with aggravating factors and sentenced to 12 years imprisonment. The appellant appealed the conviction and sentence arguing that a rape was impossible in part because the victim was his girlfriend. The Supreme Court dismissed the appeal and increased the sentence to 18 years imprisonment after considering the violent nature of the rape. The Supreme Court stated that a woman’s consent “must be real and given prior to the sexual intercourse” and the Court no longer recognized irrevocable consent, where consent is presumed merely because the victim is the girlfriend or wife of the perpetrator.



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

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

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



AZAAR v. Minister for Immigration and Citizenship (2009)

Domestic and intimate partner violence

The appellant’s claims concerned domestic violence perpetrated by her husband and assertions of inadequate state protection from such violence. The appellant claimed that she did not receive, and would not receive, effective state protection in Vanuatu from such violence “because of systemic discrimination against women resulting from cultural norms and practices.” Prior to review by the Federal Court, a lower court held that “it was not satisfied that there was a real chance of her being denied protection by the authorities in Vanuatu should she require it” although there was evidence of domestic violence and potential future harm. The lower court noted that the victim had not actually sought the protection of authorities. The Federal Court subsequently determined that any suggestion that victims of domestic violence must actually seek the protection of the authorities as “a prerequisite for a finding of absence of adequate State protection” was erroneous. Therefore, victims of domestic violence do not have to actually go to the police in order to substantiate claims of inadequate protection where other evidence, such as cultural norms and practices, would otherwise substantiate the claims.



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.”



The People v. Nyambe High Court of Zambia (2010)

Domestic and intimate partner violence

The Defendant, Mr. Nyambe, and the victim, Mrs. Nyambe, were married. Upon return from a fishing trip, Mr. Nyambe found Mrs. Nyambe in bed with another man and reacted by beating the other man. One month later, Mrs. Nyambe revealed that the reason she committed adultery was because Mr. Nyambe “was not a real man,” whereupon the two began to fight, and Mr. Nyambe struck Mrs. Nyambe with an axe and killed her. Despite the one month that had elapsed between the initial discovery of the adultery and the murder, the High Court found that the adultery still constituted provocation. However, under Zambian law, a murder defendant’s reaction must bear a reasonable relationship to the provocation to invoke that affirmative defense to reduce the conviction to manslaughter. The High Court found that the Defendant’s retaliation of striking his wife with an axe was not proportional to the provocation and convicted him of murder.



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

Domestic and intimate partner violence

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



1 BvR 300/02 Federal Constitutional Court (Bundesverfassungsgericht) (2002)

Domestic and intimate partner violence

Mr. Z appealed to the Court against an injunction issued against him by a lower court in expedited proceedings prohibiting him from approaching his partner and from re-entering the flat he shared with her on the grounds of protection from domestic violence. The Court did not allow the appeal on the grounds that the injunction did not breach a constitutional right of the claimant. The need for immediate short-term protection from further domestic violence justified the expedited nature of the proceedings.



Minister for Immigration & Multicultural Affairs v. Ndege Federal Court of Australia (1999)

Domestic and intimate partner violence, Sexual violence and rape

A citizen of Tanzania sought protection on the basis that she feared persecution as a married woman in Tanzania. The applicant had been raped by her husband and argued that Tanzanian authorities were unwilling or unable to protect female citizens. The Refugee Review Tribunal denied the application because there was no evidence that the husband’s violence was related to any protected status. The court affirmed, but nevertheless remitted to the Tribunal to consider whether the husband’s violence against the applicant had been motived by a Convention related reason, such as race, religion, nationality, political opinion or of her membership in a particular social group.



SZEGN v. Minister for Immigration and Multicultural and Indigenous Affairs Federal Court of Australia (2006)

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

A citizen of Fiji sought an extension of time to appeal a decision by a Federal Court Magistrate who affirmed a decision by the Refugee Review Tribunal to deny a protection visa. She alleged that she had a well-founded fear of persecution if returned to Fiji as a person who had been subjected to domestic violence by her former husband and as a member of the social group of “women at risk in Fiji.” The Tribunal found that while women had historically been at risk in Fiji, recent police forms and judgments suggested that she no longer had a reasonable fear of persecution. On appeal, she alleged that the Tribunal failed to provide her with a copy of certain country information as required by Australian law. The court found that the Tribunal was prepared to accept that the applicant was a member of a protected social group but did not accept that there was a lack of state protection. The court further found that the Tribunal adequately laid out the bases for its decision and that it did not rely on the material not provided to the applicant.



R v. S High Court of New Zealand (2012)

Domestic and intimate partner violence, Forced and early marriage, Sexual violence and rape

S was convicted for repeated violent rape within an arranged marriage over the course of 13 months. The court imposed a sentence of 13 years, six months imprisonment for the rape, with concurrent sentences for the lesser offenses, calculated as a 15 year base due to the violent nature of the acts and the vulnerability of the victim, with a downward adjustment for the respondent’s lack of prior convictions. The court declined to impose a minimum period of imprisonment, explaining that a minimum period of imprisonment is only warranted if the sentence imposed would be insufficient to hold one accountable, to denounce their conduct, or to protect others.



Jesus C. Garcia v. The Honorable Ray Alan T. Drilon, et al. Supreme Court of Philippines (2013)

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

The plaintiff successfully sought a Temporary Protection Order against her husband under Republic Act No. 9626 Against Women and Their Children. The husband appealed, claiming the Act to be unconstitutional and the order therefore invalid because the Act favored women over men as victims of violence and abuse to whom the State extends its protection. The Supreme Court held that the Act was valid, highlighting the unequal power relationship between women and men; that women are more likely than men to be victims of violence; and the widespread gender bias and prejudice against women, which all make for real differences justifying the law.



People of the Philippines v. Edgar Jumawan Supreme Court of Philippines (2014)

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

The appellant was convicted on two counts of marital rape. On appeal, the appellant argued that marital rape was not the equivalent of non-marital rape. This was the first documented case on marital rape to reach the Supreme Court. The Supreme Court rejected the appellant’s argument as essentially an attempt to revive old and now rejected standards that a husband could not be convicted of marital rape because of the “implied consent” of his wife. It found that under modern jurisprudence, the appellant’s argument would deny spouses equal protection under the constitution and that the elements and quantum of proof that support a moral certainty of guilt in rape cases should apply uniformly regardless of the legal relationship between the accused and his accuser.



PGA v. The Queen High Court of Australia (2012)

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

This case concerns charges of assault and rape brought against a husband, the appellant, for the rape of his wife in 1963. In an appeal to the High Court, the appellant sought immunity for the rape of his wife, arguing that marital rape was not illegal at the time the events took place. The appellant argued that his wife gave irrevocable consent to sexual intercourse upon their marriage in 1962 pursuant to the era’s common law. The Court considered existing laws and writings from the time period in question, questioning whether the aforementioned immunity ever actually existed and ultimately deciding that “if it did, it had ceased to do so sometime before 1963.” On the basis of this analysis, the Court dismissed the appeal.



Claimants (on their own behalf and on behalf of their minor children) v. the Secretary of State for Justice, Immigration and Naturalization Service District Court of the Hague (2010)

Domestic and intimate partner violence, Gender discrimination, Gender-based violence in general, Harmful traditional practices, Honor crimes (or honour crimes), Sexual violence and rape

The claimants, on behalf of themselves and their two minor daughters, sought residence permits under the Aliens Act 2000. The claimants stated that if they returned to Afghanistan, the mother and daughters would be subjected to inhuman treatment under Article 3 European Convention on Human Rights. The claimants noted that women were systematically disadvantaged and discriminated against in Afghanistan. Women were subject to violence throughout the country, including the claimants’ area of origin, and had no protection from the government (if they even had the opportunity of access to the courts). Women suffer domestic violence, sexual violence, honor crimes, and arranged marriage. Women do not have the same rights as men (even though the constitution states that men and women are equal), are seen as property, and have little to no access to education or health care. The District Court found the mother’s and daughters’ appeals well-founded and ordered the government to consider the applications.



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

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

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



Case Number E.2005/151, K. 2008/37 Constitutional Court of Turkey (2008)

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

The Constitutional Court held that a provision in the Turkish Penal Code that increases the penalty by half for the crime of laceration if committed against family members is constitutional. Although such a penalty treats family members differently than non-family members, the Court found that such differential treatment did not violate the equality principle under the Turkish Constitution. Under the equality principle, criminals who have committed the same offence may not be subject to the same penalty if they have different legal statuses. Here, the Court found that the Turkish Legislature, through the Turkish Penal Code, expressed a preference for family members, giving family members a different legal status and thus the provision did not violate the equality principle. In reaching its decision, the Court also noted that Turkey has taken “extensive legal and administrative measures” to prevent and reduce domestic violence in Turkey. Because the state must protect family members from danger and family members have a different legal status, the Court found that the provision increasing the term of imprisonment and fine for laceration against a family member is constitutional.



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

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

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



S. v. Abraham Alfeus High Court of Namibia. Main Division, Windhoek (2013)

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

Abraham Alfeus was convicted of murder with direct intent after admitting to shooting his intimate partner twice with a shotgun. The presiding judge, Naomi Shivute, read the ruling citing provisions of the Domestic Violence Act, Act 4 of 2003 and sentenced Alfeus to 30 years in prison. In the ruling Shivute stressed a need for stiffer sentences in response to extremely high levels of domestic violence against women and children in Namibia; including that it was a matter of protecting the constitutional right for human dignity, the rights of the victim, and in the interest of society generally. The judge’s ruling was meant to deter future domestic violence offenders and is an important precedent in Namibia where domestic violence runs rampant but is rarely prosecuted.



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

Domestic and intimate partner violence

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



Minister of Safety and Security v. Katise Supreme Court of Appeal of South Africa (2013)

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

Mr. Katise was arrested when police were called to his home and found that he had attacked his wife. Charges for domestic violence under South Africa’s Domestic Violence Act 116 of 1998 were eventually repealed and after suing for unlawful arrest and detention on the grounds that there was no warrant for his arrest, Mr. Katise was awarded damages. In an appeal, the judge overturned this ruling, citing s 40(1)(q) of the Criminal Procedure Act which allows peace officers to arrest anyone reasonably suspected of violating the Domestic Violence Act of 1998. The judge in this case took an important stand against leniency on domestic violence cases, giving peace officers far more latitude to protect the rights of women and furthering the protection of women’s rights in South Africa, a country marred by sexual violence.



File No. 7C/203/2006 District Court Prešov (2007)

Domestic and intimate partner violence

On August 4, 2006 Ms. M. G. (the “Claimant”) filed an action with the District Court Prešov against her husband, Mr. F. G. (the “Defendant”) requesting that his right to use the common household be revoked. The court ruled to revoke the Defendant’s common right to use the household and found the Defendant guilty of the criminal offence of making a dangerous threat under Section 360 (1) of the Criminal Code and sentenced him to imprisonment for six months. The Defendant, under the influence of alcohol, threatened to throw the Claimant off the balcony and forced her by violence to leave the house. During the trial, the Claimant’s allegations regarding the violent behavior of the Defendant were supported by the testimonies of both children of the disputing parties. According to an expert opinion, the Defendant was suffering from alcohol addiction and in need of medical treatment, which was later ordered by the court. Pursuant to Section 705a of the Civil Code, if further co-habitation with a spouse, divorced spouse or close person who is a common user of the same household becomes insufferable due to his / her physical or psychological violence or threats thereof, the court may, upon a petition, revoke or limit such violating party’s right to use such common household. In this case, the District Court in Prešov revoked the Defendant’s common right to use the household under the abovementioned provision of the Civil Code.


File No. 1T 107/01 District Court Martin (2001)

Domestic and intimate partner violence

Mr. X (the “Accused”) under the influence of alcohol physically assaulted his wife Mrs. Y (the “Aggrieved”) by hitting her head and face. Subsequently, the Accused physically assaulted the children of the Aggrieved from her first marriage. When the Aggrieved attempted to protect her children, the Accused beat her with his fists and kicked her. The Aggrieved and her children suffered various minor injuries which caused the inability to work for less than six days. The court ruled that the Accused had committed the criminal offence of attempted bodily harm under Section 221 (1) of the former Criminal Code , the criminal offence of violence against an individual or group of individuals under Section 196 (1) and Section 197a of the former Criminal Code and sentenced him unconditionally to imprisonment for six months. However, pursuant to Section 58 (1a) and Section 59 (1) of the former Criminal Code , the court suspended this imprisonment sentence for a probationary period of 15 months. Moreover, the Accused was obliged to pay damages to Aggrieved for the harm they suffered.



File No. 5T 33/2007-41 District Court Košice I (2007)

Domestic and intimate partner violence

Mr. X (the “Accused”) threatened to kill his ex-wife, Mrs. Y, (the “Aggrieved”) by cutting her throat and hitting her head with a hammer. Two days later, the Accused threatened to kill the Aggrieved and her whole family and thereby caused the Aggrieved to fear that he would carry out such threats. The court ruled that the Accused had committed the criminal offence of dangerous threat under Section 360 (1) of the Criminal Code and sentenced him unconditionally to imprisonment for sixteen months. The court ordered the Accused to serve his term of imprisonment in a minimum security correctional facility under Section 48 (2a) of the Criminal Code.



File No. 7T 167/03-121 District Court Košice II (2004)

Domestic and intimate partner violence

Over the course of seven years, Mr. X (the “Accused”) caused substantial physical and psychological suffering to his wife Mrs. Y and his daughter Ms. Z (jointly the “Aggrieved") including strangling, physical assaults, threats of killing, and constant humiliation. Furthermore, the Accused prevented his daughter from entering the apartment, where she lived with her parents. During the main trial, the Accused refused to testify and so did the Aggrieved Persons. However, the Court disposed of witness testimonies of the Aggrieved Persons provided at the preliminary hearing, according to which the spouses had permanent conflicts due to the alcoholism of the Accused. An expert opinion confirmed that the Aggrieved Persons had suffered from battering. The court found the Accused guilty of the criminal offence of battery of a close relative and entrusted person pursuant to Section 215 (1a) of the former Criminal Code and sentenced the Accused to imprisonment for a term of 2 years. However, pursuant to Section 58 (1a) and Section 59 (1) of the former Criminal Code, the court suspended this sentence for a probationary period of 3 years.



File No. 5T 3/07-114 District Court Košice - okolie (2007)

Domestic and intimate partner violence

Over the course of two years Mr. X (the “Accused”) abused his wife Ms. Y (the “Aggrieved”) by constantly humiliating and beating her. As a result, the Aggrieved experienced substantial psychological trauma. According to the Aggrieved, the aggressive behavior of the Accused occurred on a daily basis and despite her refusal of intercourse, the Accused forced her into sexual intercourse by use of violence. The daughter of the Aggrieved stated that she saw the Accused slapping and kicking her mother and after the Accused found a girlfriend, relations between him and the Aggrieved deteriorated and resulted in the decision of the Aggrieved to leave the common household with her daughter and search for professional psychological care. Expert opinions confirmed that the Aggrieved suffered psychological trauma of abused woman that resulted in loss of confidence, depressions, anxiety. The court found the Accused guilty of the criminal offence of battery of a close relative and entrusted person pursuant to Section 208 (1a) of the Criminal Code and sentenced him to conditional imprisonment for a term of 3 years with a probation period of 30 months. Furthermore, the Court issued the Accused a 5 meter restraining order.



File No. 6T 156/05-301 District Court Košice II (2008)

Domestic and intimate partner violence

Over the course of two months Mr. X (the “Accused”) threatened to kill his wife, Mrs. Y, (the “Aggrieved”) and to blow up the apartment. His actions and verbal assaults caused the Aggrieved to fear that he would carry out his threats. The Aggrieved and other witnesses attested to the Accused’s violent behavior. The Accused had previously been found guilty of similar violent acts for which the court had imposed a conditional sentence. The Aggrieved alleged that since the Accused was released from custody, his behavior had not changed and that he still had been insulting and threatening her. Other witness statements supported these accusations. According to an expert opinion, the Accused was emotionally unstable and in terms of his patriarchal understanding of the head of family, the Accused behaved towards the Aggrieved dominantly and without respect. The court found the Accused guilty of the criminal offence of violence against an individual or group of individuals pursuant to Section 197a of the former Criminal Code and imposed a sentence of imprisonment for 1 year.



File No. 13C/175/2003 District Court Bratislava II (2006)

Domestic and intimate partner violence

Ms. M. M. (the “Claimant”) filed an action with the District Court Bratislava II against her husband, Mr. Š. M. (the “Defendant”) to revoke his right to use the common household. This action was subsequently granted by the District Court Bratislava II, first in the form of a preliminary decision revoking the Defendant’s right to use the apartment and later as a final decision in the form of Decision No. 5 T 26/04. The court also found the Defendant guilty of the criminal offence of battery of a close relative and entrusted person and sentenced him to imprisonment. The Defendant had frequently insulted the Claimant, punched her, thrown pots at her and forced her by threats to have sexual intercourse with him, which made the Claimant afraid to use the common household with the Defendant. Although they were divorced, they had not agreed on a property settlement and thus, the apartment formed a part of the undivided co-ownership of spouses and the Defendant retained his rights to the apartment. Pursuant to Section 146(2) of the Civil Code, if further co-habitation with a spouse, divorced spouse or close person who is a common user of the same household becomes insufferable due to his / her physical or psychological violence or threats thereof, the court may, upon a petition, revoke or limit such violating party’s right to use such common household. In this case, the District Court Bratislava II revoked the Defendant’s right to use the apartment under the abovementioned provision of the Civil Code.



Decision No. 11/1995, File No. 6 Tz 17/94 Supreme Court of the Slovak Republic (1994)

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

Ms. V. Ž. (the “Aggrieved”) was sexually assaulted by her mother’s partner, Mr. M. P. (the “Accused”) who had lived with them in same household for more than 5 years. The Bratislava I County Prosecutor terminated criminal proceedings after the Aggrieved refused to testify and to give her consent to initiate the criminal prosecution. The Attorney General of the Slovak Republic challenged this termination arguing that the Aggrieved was not entitled to refuse her testimony or withhold permission to initiate criminal proceedings. The Supreme Court of the Slovak Republic ruled that by testifying against the Accused, a person with whom she has family like ties, she could suffer considerable harm herself, as the harm reflected upon the Accused could be perceived as a harm done to the Aggrieved herself and therefore she was in a position to refuse such testimony. The Attorney General challenged the decision and the Supreme Court admitted the insufficient assessment of the relevant criminal offence as only restraint of personal freedom and determined the relevant criminal offence as a combination of the criminal offences of sexual abuse and blackmail. Pursuant to Section 163a of the former Criminal Procedure Code , the initiation of criminal prosecution for these criminal offences was subject to the consent of the aggrieved person. Whereas, the Aggrieved was a minor and did not have full legal capacity to provide such consent, she should have been represented by her legal representatives, i.e., her parents. In this case, since her mother was the partner of the Accused, there was a high risk of conflict of interest. In such cases, the parents are replaced by other legal representatives, i.e., court appointed custodians. Since the Bratislava I County Prosecutor failed to observe these requirements, the Supreme Court superseded its resolution and ordered a new one to follow all of the findings made by the Supreme Court. According to current legislation, the prosecution of defendants of two related criminal offences, i.e., sexual abuse and blackmail, is no longer subject to the consent of the aggrieved person. Nonetheless, this Supreme Court Decision No. 11/1995 is applicable, especially in regard to the mandatory legal representation of aggrieved minors. Pursuant to Section 211 of the current Criminal Procedure Code, the prosecution of offenders of other criminal offences (e.g., copyright violations or theft) is still subject to the consent of the aggrieved person. Minors must be represented by their legal representatives not only in relation to giving consent, but in performing any relevant legal action. The relevant authorities shall always examine whether there is possibility of a conflict of interest and if so, exclude such representatives and ask the relevant court to appoint a custodian.



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

Domestic and intimate partner violence

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



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

Domestic and intimate partner violence, Dowry-related violence

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



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

Domestic and intimate partner violence

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



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.



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.



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

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

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



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

Domestic and intimate partner violence

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



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.



M v. M High Court of New Zealand (2005)

Sexual violence and rape, Domestic and intimate partner violence

This case concerns the Domestic Violence Act of 1995. Appellant sent emails, faxes, and oral communications to politicians and others, claiming that the respondent, her brother, raped her when she was 11. In Family Court, the judge concluded that the allegation of rape was unfounded and that appellant’s purpose for the communications was to shame the respondent and ruin his reputation, amounting to harassment or psychological abuse. The judge issued a protection order pursuant to the Domestic Violence Act of 1995, prohibiting appellant from further communications alleging the rape. On appeal, it was contended that, 1) the family court judge wrongly found that appellant’s behavior constituted psychological abuse or harassment, and 2) that the special conditions imposed in the protection order were unduly broad, infringing upon the appellant’s freedom of expression under the New Zealand Bill of Rights Act (NZBORA). The High Court rejected the first ground of appeal. As to the second, the High Court read the Domestic Violence Act narrowly, saying that the legislature could not have intended to pass a bill that would conflict with the NZBORA. The High Court would modify the Family Court Judge’s protection order only to qualify that appellant is not precluded from discussing the matter with other family members, attorneys, or law enforcement, thereby preserving her rights under NZBORA. The High Court also approved a Constitutional Court holding that the right of freedom of expression extends to a woman’s right to use her own name in connection with her status as a victim of sexual abuse.


Coates v. Bowden High Court of New Zealand (2007)

Domestic and intimate partner violence

Appellant F, the mother of three children, who was residing in New Zealand, sought a decision from a higher court concerning a previous custody decision that granted N, the father residing in Australia, custody rights. F contended that N had been physically abusive in the past toward the children, and that they were at risk of physical and psychological harm if in his custody. The High Court concluded that the children should be in New Zealand residing with their mother.



B., M.P. v. G., R.A. Lomas de Zamora Family Court #3 (2006)

Domestic and intimate partner violence

M.P.B. suffered repeated domestic violence and abuse at the hands of her husband R.A.G. In civil suit, M.P.B. was granted exclusive control of the spousal home and custody of her children. The court imposed a restraining order on R.A.G.; he was unable to go within 300 meters of the family home, his wife’s work, or the 9 and 12 year-old children’s school. This case is fairly punitive toward the father by Argentinean standards. The judge cited both Argentinean statutes and international human rights law in arriving at her decision.

 

M.P.B. sufrió repetida violencia doméstica y abuso a manos de su esposo R.A.G. En una demanda civil, a M.P.B. se le otorgó el control exclusivo de la casa del cónyuge y la custodia de sus hijos. El tribunal impuso una orden de restricción a R.A.G: no podía ir a menos de 300 metros del hogar familiar, del trabajo de su esposa o de la escuela de niños de 9 y 12 años. Este caso es bastante punitivo hacia el padre para los estándares argentinos. El juez citó tanto los estatutos argentinos como el derecho internacional de los derechos humanos al llegar a su decisión.



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.



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.


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.


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.



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.



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.



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.



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.



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.



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.



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.



Yemshaw v. Hounslow LBC United Kingdom Supreme Court (2011)

Domestic and intimate partner violence

The appellant (Y) appealed against a decision that the respondent local authority had been entitled to find that she was not homeless. Y had applied to the local authority for housing assistance, claiming that although her husband had not physically assaulted her or threatened to assault her she was scared that he would, and had left him. Under the Housing Act 1996 s.177(1) a local authority was obliged to rehouse a person where it was not reasonable for that person to continue to occupy accommodation if it would lead to domestic violence. The local authority decided that it was still reasonable for Y to occupy the matrimonial home. A review of that decision was unsuccessful as the panel considered the probability of domestic violence to be low. Upon appeal, the county court and the Court of Appeal concluded that the term "violence" in s.177(1) required some sort of physical contact. The issue in the instant appeal was whether the word "violence" in s.177(1) included other forms of violent conduct.



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.



Davis v. Johnson United Kingdom House of Lords (1978)

Domestic and intimate partner violence, Sexual violence and rape

The House of Lords ruled that in domestic violence cases, no distinction should be made between married and unmarried couples and that the Domestic Violence and Matrimonial Proceedings Act 1976 s.1 gave jurisdiction to all county courts to grant an injunction and exclude a violent person from the home, whether married or not, irrespective of any property right vested in the person excluded. However, this exclusion should only be temporary until other arrangements have been made. Such an injunction can be permanent, but will in most cases be temporary.



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.



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.



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.



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.



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.



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.



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.



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.



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.



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.



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.



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.”



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).”



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.



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.



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.



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.”



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.



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.



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.



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.



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’.”


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.



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.



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.


RH 1991:120 The Court of Appeal for Western Sweden (1991)

Domestic and intimate partner violence, Sexual violence and rape

["A person who, otherwise than as provided in Section 1 first paragraph (Author's note: rape), induces another person by unlawful coercion to undertake or endure a sexual act, shall be sentenced for sexual coercion to imprisonment for at most two years. (…)" Chapter 6, Section 2 of the Swedish Penal Code.] A woman was repeatedly forced, without the use of physical violence, to have sexual intercourse with her husband. In one instance the man tried to pull off the woman's pants after she had said that she did not want to have sexual intercourse with him. He then threatened her by saying he would forcibly open up her legs if she continued to refuse and twisted the woman's ankle, causing her substantial pain, as he attempted to keep her on the bed. The woman managed to run away from the bedroom and hold on to the door handle, thus making her husband unable to reach her. Instead, the man masturbated in front of the woman and then calmed down. The District Court found that in order to achieve sexual intercourse with the woman, the husband had used violence and threats. The woman had suffered pain, an injury to one foot, and probably also some bruising to her legs. The District Court found that the violence and the threats used could not be considered graver than those comparable to the coercion requirements in Chapter 6, Section 2 of the Swedish Penal Code and sentenced the husband to imprisonment for attempted sexual coercion. The Court of Appeal for Western Sweden upheld the District Court's ruling.



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.



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.



KKO 2003:76 Supreme Court of Finland (2003)

Domestic and intimate partner violence

The issue was whether plaintiff was entitled to compensation for anguish in connection with intimate partner violence. A (male) had assaulted E (female) in E's home and on the staircase in a way that caused brain injury and severe traumatic stress. The District Court and the Court of Appeal sentenced A for an aggravated assault and ordered A to pay damages for pain and suffering for 20,000 Finnish marks. The Courts rejected demands for compensation on anguish. The question before the Supreme Court was about the amount of damages and if E was entitled to damages arising from anguish. The Supreme Court evaluated the pain and suffering as a whole and ordered A to pay 14,000 Euros of damages. In court practice (rulings KKO 1989:141 and KKO 1999:102) an assault has not been held as an act that justifies damages on mental anguish. According to Chapter 5 Section 6 of the Finnish Tort Liability Act (412/1974, as amended) (the "Tort Liability Act"), the provisions of the Tort Liability Act on personal injury apply also to damages for the anguish arising from an offense against liberty, honour or the domestic peace or from another comparable offense. The Court held that since A broke into E's apartment, E was entitled to damages arising from offense against domestic peace which could be seen causing anguish. The Court ruled that A had to pay damages for anguish in the amount of 500 Euros.



VaaHO:2006:16 Court of Appeal of Vaasa (2006)

Domestic and intimate partner violence

The issue here was whether a partner's experience of domestic violence during her former relationships could be seen as a mitigating circumstance in connection with the partner's manslaughter of her new partner. A (female) had killed B (male) by making a deadly strike with a kitchen knife. Before the strike A had flailed the knife in a way which caused several marks on B's body. A and B were arguing on the night of the stabbing. A claimed that B had never before been violent towards A, but in A's former relationships A had experienced domestic violence. The District Court found that the fact that there was a plastic bag behind the living room sofa containing knives collected from the house could suggest that there was a threat of violence. It found that there were some indications of justifiable defense and sentenced A to prison for 8 years 6 months for manslaughter. The Court of Appeal held that B had attacked A unlawfully, causing A the need for self-defense. However, it found that the use of a knife in the situation was not justifiable, as A did not receive any grave wounds except for bruises. The Court found that A was guilty of excessive self-defense. According to Chapter 20 Section 3 of the Finnish Criminal Code (39/1889, as amended) (the "Criminal Code"), if the manslaughter, in view of the exceptional circumstances of the offense, the motives of the offender or other related circumstances, when assessed as a whole, is to be deemed committed under mitigating circumstances, the offender shall be sentenced for killing to imprisonment for at least four and at most ten years. The Finnish government proposal (94/1993) for the Criminal Code states that these kind of exceptional circumstances can be present when a wife has been constantly terrorized with violence by her husband and she kills him. The Court held that A had a traumatic background and had experienced domestic violence but that there had not been, according to A, any previous violence by B towards A. The Court did not consider this an exceptional circumstance. A was sentenced to five years in prison for manslaughter committed as excessive self-defense.



D.J. v. State Iasi Court of Appeal (2009)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The court of first instance decided the divorce of D.B.N. and D.J. on the ground of common fault and placed the minor child in the custody of her father.  D.B.N. appealed the decision to the Isai Tribunal, and the appeal court decided to place the minor child in the custody of D.B.N., her mother considering this to be in the best interest of the minor. It explained that the fact that the parents of D.J. were taking care of the minor did not represent sufficient reason for placing her in his custody, as wrongfully held by the court of first instance. The Court of Appeal rejected the appeal of D.J. against the decision of the Iasi Tribunal based on the fact that the minor is attached to her mother and to the domestic violence of her father both against the mother and the minor child.



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.” 



Prosecutors’ Office attached to the Iasi Tribunal and T.D. v. State Iasi Court of Appeal (2009)

Domestic and intimate partner violence

Both the Prosecutors’ Office attached to the Iasi Tribunal and the accused T.D. appealed the decision in first instance of the Iasi Tribunal regarding the conviction of T.D. for violence and manslaughter. The accused T.D. and the victim T.P. used to drink large quantities of alcohol. One night, following the victim’s refusal to prepare food, the accused hit her and the victim collapsed, hitting her head and throat on the stove. The accused continued hitting the victim and at the end lifted her and putted her on the bed. The victim was not able to get up from the bed for a few days, but she was conscious. However, her status deteriorated, and at the request of the accused, she was brought to hospital. Nonetheless, she died a few days later. The court of first instance convicted the accused for violence causing death (homicide), but case had been prosecuted under the charge of qualified murder. Therefore, in accordance with Romanian law, the Court of Appeal considered the decision of the first instance null and void, and re-sent the case to the court of first instance for re-hearing in line with the decision of the Court of Appeal.



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.”



R.M. v. State Bucharest Court of Appeal (2006)

Domestic and intimate partner violence

The accused R.M. was convicted for violence against his wife. In a second appeal submitted by the prosecutor, the Appeal Court held that the factual circumstances of the case were correctly retained by the inferior courts but the sentence did not take into account the aggravating circumstance that the victim was the wife of the accused person. The Romanian Criminal Code provides as an aggravating circumstance the fact that the criminal act has been done against a member of the family. The Appeal Court therefore decided to increase the sanction applied to R.M. based on the aggravating circumstance.



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.” 



G.M. v. G.S. Bucharest Sector 2 Court of First Instance (2008)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Following the divorce of G.M. and G.S., the later violently chased away the claimant and their minor daughter from the common domicile, acquired during their marriage. Due to these violent actions against his wife and their children, the court decided to re-integrate the claimant and to evacuate the accused from the common domicile until the partitioning of the common assets. The decision became final and binding for failure to appeal it. (full text decision on file with the Avon Global Center)



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.



NJA 2004 s. 97 Supreme Court of Sweden (2003)

Domestic and intimate partner violence

"A person who commits criminal acts as defined in Chapters 3, 4 or 6 against another person having, or have had, a close relationship to the perpetrator shall, if the acts form a part of an element in a repeated violation of that person's integrity and suited to severely damage that person's self-confidence, be sentenced for gross violation of integrity to imprisonment for at least six months and at most six years. (…)" Chapter 4, Section 4 a, paragraph 2 of the Swedish Penal Code.]  The Supreme Court ruled that a couple had a close relationship, in the sense required by law, even though they both had access to their own separate accommodations. The court found that the couple was to be considered to be in an established relationship as they, for a longer period (a year and a half), spent time with each other in a way comparable to what may be the case in a cohabiting relationship or between spouses. It was further found that the perpetrator had battered the woman he had a relationship with at six occasions and that he had also been guilty of assault. The court ruled that the actions had violated the woman's integrity and suited to severely damage the woman's self-confidence. The perpetrator was sentenced for gross violation of integrity to eight months imprisonment.



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.



NJA 2003 s. 144 Supreme Court of Sweden (2003)

Domestic and intimate partner violence

"A person who commits criminal acts as defined in Chapters 3, 4 or 6 against another person having, or have had, a close relationship to the perpetrator shall, if the acts form a part of an element in a repeated violation of that person's integrity and suited to severely damage that person's self-confidence, be sentenced for gross violation of integrity (…)." Chapter 4, Section 4 a, paragraph 2 of the Swedish Penal Code. The Supreme Court ruled that even though several assaults separately do not qualify as criminal acts as defined in Chapter 3, 4, or 6 of the Swedish Penal Code they may, if assessed together, be seen as seriously damaging to a person's self-confidence and the perpetrator may be sentenced for gross violation of a woman's integrity. In this case, a man had thrown a glass of juice in the face of the woman he lived with while she held their youngest child in her lap.  He also had assaulted her several times by, inter alia, kicking her legs and buttocks, taking firm grips of her neck, punching her neck and shoulder, stepping on her feet, knocking her over on the floor, taking her in a stranglehold, and threatening to kill her. Although only one of the assaults could be defined as a criminal act in accordance with Chapters 3, 4 or 6 of the Swedish Penal Code, the Supreme Court stated that it is necessary to take into account a person's entire situation when assessing gross violation of a woman's integrity. The Supreme Court further ruled that it is not necessary to establish that a person's self-confidence is actually injured but only that the acts are such as would typically lead to serious injury to a person's self-confidence.



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.



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.



Cour d’appel, Bruxelles No. 89/3060 Court of Appeals of Belgium (1979)

Domestic and intimate partner violence, Sexual violence and rape

The Brussels Court of Appeal recognized marital rape and found that the husband who used serious violence to coerce his wife into having sex against her wishes was guilty of the criminal offense of rape.  Furthermore, this act was neither subject to bail nor to a defense of misunderstanding.



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.”  



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.



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.” 



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. 



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.



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.


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. 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.


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.



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.



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.



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.



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.”



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.”



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.”



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.



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. 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. 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.



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.”


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.



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.”



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.



Taleo v. Taleo Senior Magistrate Court (1996)

Domestic and intimate partner violence

The Court examined whether or not the Magistrate's grant of a restraining order was unconstitutional. A victim of mestic violence moved out of the house after the incident and attempted to obtain a restraining order. The Court found that no rule gave the Magistrate jurisdiction to grant such orders, but, absent parliamentary intervention, the Magistrate can grant these orders even if they violate the constitution.


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.



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.



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.



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.



P. and M. v. Secretary of State for the Home Department Court of Appeal of United Kingdom and Northern Ireland (2004)

Domestic and intimate partner violence, Female genital mutilation or female genital cutting, Harmful traditional practices

The first appellant, P, was seeking asylum from being returned to Kenya on the grounds of a fear of persecution because of the violence that both she and her children had suffered from her husband in Kenya, especially as domestic violence tends to be accepted in Kenya and the police had not effectively protected her against her husband.   The second appellant, M, seeks asylum on the grounds of fearing that she would be subjected to female genital mutilation at the hands of her father, who is a member of the Mungiki sect that practices FGM, and who had already previously performed FGM on her mother, causing her mother's death. The Court allowed both appeals for asylum, but did stipulate that not all cases of either domestic violence or FGM would automatically give rise to a claim to protection and asylum. 



R. v. Immigration Appeal Tribunal and Another Ex Parte Shah (A.P.) House of Lords (1999)

Domestic and intimate partner violence

The two conjoined appeals both involve married Pakistani women who were forced by their husbands to leave their homes and seek asylum in the UK as refugees on the grounds that they fear being falsely accused of adultery and thus in danger of flogging or being stoned to death on being returned to Pakistan.   The Lords granted the appeals, giving the appellants refugee status, on the ground that the appellants are part of the particular group as women in Pakistan who fear being accused of adultery.



Omar v. Government of the RSA Constitutional Court of South Africa (2006)

Domestic and intimate partner violence

The Durban Magistrate's Court issued a protection order under the Domestic Violence Act 116 of 1998 prohibiting Mr. Omar from abusing his wife, Ms. Joolab, and their children.   When Mr. Omar allegedly breached the terms of that order, the warrant was executed but was subsequently suspended.   He applied to the High Court alleging that section 8 of the Act was unconstitutional and the application was dismissed. On appeal, the Court held that section 8 does not violate the rights of access to the courts and serves to provide a mechanism to ensure compliance with protection orders and protect complainants against further domestic violence. 



State v. Baloyi Constitutional Court of South Africa (2000)

Domestic and intimate partner violence

An army officer was convicted for breaching an interdict issued by a magistrate ordering him not to assault his wife or prevent her or their child from leaving their home.  He appealed to the Transvaal High Court which declared that Section 3(5) of the Prevention of Family Violence Act was unconstitutional to the extent that it placed the burden on him to disprove his guilt. The Constitutional Court overturned the High Court's judgment, finding that the purpose of an interdict was to protect the victim of domestic violence and indicate that society would not stand by in the face of spousal abuse.  As such, fairness to the complainant required that the enquiry proceedings be speedy and dispense with the normal process of charge and plea, but in fairness to the accused, the presumption of innocence would still apply to the summary enquiry. 



State v. Engelbrecht High Court of South Africa (2003)

Domestic and intimate partner violence

In determining sentencing for a woman convicted of murdering her spouse, expert testimony regarding battered woman syndrome is more relevant to the sentencing decision than to the assessment of the legality of the defendant's actions.  The court reviewed a line of cases involving women convicted of murdering their abusive partners.  Although the court cited a variety of mitigating factors that should be considered (e.g., the sustained nature of the abusive conduct, the presence of children in the home,etc.), it held that foremost is the actual effect sustained domestic violence has on women. As a result, the court found expert testimony confirming that the defendant suffered form the syndrome to be a "substantial and compelling" reason to suspend the defendant's sentence. 



State v. Ferreira and Others (2004)

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

The appellant, convicted of hiring two workers to kill her abusive husband, argued for a reduced sentence.  The court held that a lesser sentence is permitted only when there are "truly convincing" circumstances or where a life sentence is disproportionate or unjust. Expert testimony regarding battering and its effects showed how her behavior fit a well-known pattern for abused women.  The court found this testimony convincing and held that the appellant's  use of third parties to kill her husband did not invalidate her claim to be a victim of battering.  Additionally, the court held that appellant's failure to testify should have no effect on her credibility. The court reduced her sentence but declined to acquit the appellant because of the premeditated nature of the act.



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

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

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



J.Y. Interpretation No.559 (2003)

Domestic and intimate partner violence

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



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

Divorce and dissolution of marriage, Domestic and intimate partner violence

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



Chalmers v. Johns Court of Appeal (Civil Division) (1999)

Domestic and intimate partner violence

Mr. Johns, the appellant, and Ms. Chalmers, the respondent, began their relationship in 1972; it has become increasingly troubled, in part from the respondent's alcoholism, leading to Mr. Johns being charged with assault, of which he was later acquitted.   Ms. Chalmers obtained an occupation order requiring Mr. Johns to vacate their family home, which he appeals.   The Court held that the circumstances of this case were a mild form of domestic violence and an occupation order was an unjustifiably drastic measure to take and that occupation orders are only justified in exceptional circumstances.



Nkabane v. Nkabane High Court of Lesotho (1987)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Gender violence in conflict, Gender-based violence in general, Property and inheritance rights

The plaintiff wife sought a decree of divorce on the grounds of the defendant's desertion on the grounds that the defendant abused her and drove her out of the matrimonial home to live with another woman.   The Court found that the defendant was previously married through Lesotho customary law to the other woman at the time of the marriage to the plaintiff; thus, the defendant's marriage to the plaintiff was null and void. However, the Court declared that the relationship was a "putative marriage" for the purposes of dividing the plaintiff and defendant's joint property.



Vaux v. Vaux High Court of Malawi (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, International law, Property and inheritance rights

The petitioner-wife sought dissolution of her marriage on the grounds of abuse by the respondent-husband, who repeatedly physically abused her and threatened her with physical force when she tried to stop him from drinking. She also asked for maintenance for the couple's daughter. The Court granted the dissolution of marriage and noted that the types of mistreatment the petitioner suffered at the hands of her husband constituted gender-based violence as defined by the Declaration of the Elimination of Violence Against Women because it was based on the unequal power relations between the husband and wife and caused the petitioner serious psychological suffering.  



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

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

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



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

Domestic and intimate partner violence

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



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

Domestic and intimate partner violence

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



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

Domestic and intimate partner violence

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



Nandi v. Bobo High Court of Kenya at Nairobi (Nairobi Law Courts) (2006)

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

The petitioner-wife sought the dissolution of her marriage on the grounds of cruelty and adultery because the respondent assaulted her, locked her out of their matrimonial home, and forced her to have sex with him while he was drunk. The Court found that the petitioner's testimony was believable and established cruelty that endangered her life and health.  The Court therefore dissolved the marriage.  (Kenya domestic law does not explicitly recognize marital rape.) 



U1960.1075V Western High Court (1960)

Domestic and intimate partner violence, Sexual violence and rape

While in the process of obtaining a legal separation from his wife, the defendant broke into her bedroom and put her in a stranglehold until she surrendered to intercourse.   He was convicted of rape, thus recognizing marital rape within the definition of rape in the Penal Code.



U1984.253V Western High Court (1983)

Domestic and intimate partner violence, Sexual violence and rape

Over a period of fifteen months, the defendant kicked and beat his wife, forcibly sodomized her and introduced foreign objects into her rectum, which eventually contributed to her death.   Rejecting defendant's statement that his wife had consented to being beaten during intercourse, the Municipal Court found him guilty of assault and maltreatment and sentenced him to six years imprisonment.  The prosecution sought to increase the defendant's sentence.   The Court increased the defendant's sentence because of the aggravating circumstance of the long duration of grossly degrading sexual assault suffered by the victim. 



Cour d'appel de Rennes CT0011, 9 mai 2006, No. 634 Cour d'appel de Rennes (2006)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The family court awarded the marital home to Appellant's wife under Section 220-1 of the Civil Code, which provides that where one spouse threatens or perpetrates violence, the judge may rule that the couple should live apart, allocating the marital dwelling to the spouse who was not the perpetrator of the violence. Appellant appealed on the grounds that he had limited income, that the dwelling was his childhood home, that his wife had left voluntarily, and that she, a native of Algeria, had only married him for a French residence permit. The Court of Appeals found that there was ample evidence, such as medical reports, proving that the husband had committed violent acts against his wife on multiple occasions, that the wife had left the marital home because of such violence, and that there was no evidence that she had tried to terminate the marriage upon receipt of her residence permit. Furthermore, the Court stated that temporary housing in a women's shelter run by SOS Femmes was not tantamount to the wife's finding other lodging. The Court of Appeals therefore rejected the appeal and upheld the family court's decision to award the marital home to Appellant's wife.



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

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

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



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

Domestic and intimate partner violence

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



Naturaleza de compensación económica en divorcio Tribunales Superiores de Justicia de Chile (2006)

Divorce and dissolution of marriage, Domestic and intimate partner violence

In this divorce proceeding, the court reiterated that in situations in which one of the two parents, most commonly the mother, stays at home and thereby forfeits the opportunity to develop a career and earn a living wage, she is entitled to economic assistance from her husband if the marriage ends. This was especially relevant in this case, given that the husband had previously abused his wife, and after initially leaving him, she was forced to return to the marriage for economic reasons.



Sentencia 12142, Expediente 08-009174-0007-CO Sala Constitucional de la Corte Suprema de Justicia (2008)

Domestic and intimate partner violence

The Plaintiff sued a local prosecutor's office, alleging he was illegally detained and held, arbitrarily violating his constitutional right to personal liberty. Plaintiff's wife had filed a complaint against him with at the prosecutor's office, alleging spousal abuse, although she did not ask that he be detained. Plaintiff was asked to report to the prosecutor's office, at which time he was detained without being given reason for his detention. The prosecutors' office argued that the plaintiff was only held for eight hours, well within the 24 hours a prosecutor is allowed to hold someone without bringing charges. The Court rejected Plaintiff's allegations, finding that the plaintiff's rights had not been violated because his arrest was based on a suspected violation of Article 22 of the Criminal Law against Violence toward Women. The Court emphasized that spousal abuse was a matter not only of individual concern, but of societal concern. 

 

El demandante demandó a la oficina del fiscal local, alegando que fue detenido y retenido ilegalmente, lo cual violaba de forma arbitraria su derecho constitucional a la libertad personal. Anteriormente, la esposa del demandante había presentado una denuncia contra él en la oficina del fiscal, alegando abuso conyugal, aunque ella no habia pedido que lo detuvieran. Se le citó al demandante en la oficina del fiscal, momento en el cual lo detuvieron sin que se le diera una razón para la detención. La oficina de los fiscales justificó que el demandante solo estuvo detenido durante ocho horas, dentro de las 24 horas en total en que se le permite a un fiscal detener a alguien sin presentar cargos. El Tribunal rechazó las alegaciones del demandante y determinó que no se habían violado sus derechos porque su arresto se basó en una presunta violación del artículo 22 de la Ley Penal contra la Violencia hacia las Mujeres. La Corte enfatizó que el abuso conyugal era un asunto no solo de preocupación individual, sino también de preocupación de la sociedad.



Sentencia 12224, Expediente 08-010638-0007-CO Sala Constitucional de la Corte Suprema de Justicia (2008)

Domestic and intimate partner violence

Defendant asked the Court to release him from a three-month "preventative" jail sentence he was serving for sexually, physically and emotionally abusing his wife. He argued that he no longer posed a danger to his wife, thus the "preventative" jail measure was unnecessary. The Court disagreed, holding that the threat the defendant posed to his wife had not ceased. 

 

El acusado solicitó la liberaracion de una sentencia de "prevención" de tres meses que estaba cumpliendo por abusar sexual, física, y emocionalmente de su esposa. Argumentó que ya no representaba un peligro para su esposa, por lo que la medida "preventiva" de la cárcel era innecesaria. El tribunal no estuvo de acuerdo, sosteniendo que la amenaza que el acusado representaba no había cesado.



Sentencia 17692, Expediente 08-015875-0007-CO Sala Constitucional de la Corte Suprema de Justicia (2008)

Domestic and intimate partner violence

Criminal defendant, who was arrested for violating a protective order his wife had against him (thereby violating Article 43 of the Criminal Law Against Violence Toward Women), asked the Court to release him from a two-month "preventive" jail sentence, given that his wife was dropping the charges against him. The Court refused to grant the request, saying that despite the wife's refusal to cooperate, the prosecutor had sufficient probable cause to keep the defendant under arrest. 

El condenado criminal fue arrestado por violar una orden de protección que su esposa tenía contra él (lo cual fue una violacion del artículo 43 de la Ley Penal contra la Violencia hacia las Mujeres). Él solicitó a la Corte que lo liberara de una sentencia de prisión "preventiva" de dos meses, dado que su esposa había retirado los cargos en su contra. El tribunal se negó a conceder dicha solicitud y agrego que, a pesar de que la esposa se negara a cooperar, el fiscal tenía causa suficiente para mantener al acusado bajo arresto.



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

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

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



Y., C. I. c/ L., B. A. Fallo de la Sala F de la Cámara Nacional en lo Civil (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Reviewing a trial court decision that granted a divorce based on the actions of both parties, the Appellate Court rejected a husband's suit for divorce, and instead granted the divorce based on the wife's counter suit, holding that the marriage failed due to the husband's domestic abuse of his wife.

 

Al revisar una decisión del tribunal de primera instancia que otorgó un divorcio basado en las acciones de ambas partes, el Tribunal de Apelación rechazó la demanda de divorcio de un marido y, en su lugar, otorgó el divorcio basado en la demanda de la esposa, sosteniendo que el matrimonio fracasó debido al abuso doméstico del marido hacia su esposa.



Minister for Immigration and Multicultural Affairs v. Khawar High Court of Australia (2002)

Domestic and intimate partner violence

A Pakistani citizen and her children applied for protection visas in Australia. The issue was whether Pakistan failed to provide protection against domestic violence and if this failure can be considered persecution (allowing refugee status). The Court found that the woman could be considered a part of a persecuted "social group" because women are a "distinct and recognizable group" and that failure to protect can be persecution if there is 1) "criminal conduct of private citizens" and 2) "condonation [sic] of such conduct by the state or its agents, in circumstances where the state has a duty to protect against such harm."



Agripina Guzmán Paredes de Soliz c/ Alberto Soliz Carrillo Sala Civil (2006)

Domestic and intimate partner violence

Plaintiff appealed a lower court's ruling that there was insufficient evidence to convict her husband of psychologically and physically abusing her, in violation of Art. 130-4 of the Family Code ("Codigo de Familia"). The Court reversed the lower court's finding, holding that the lower court failed to give adequate weight to evidence that proved defendant had violated Art. 130-4 by physically and psychologically abusing his wife. The Court chided the lower court for placing the plaintiff in danger and for failing to carry out its duty to prevent violence against women.



Masusu v. Masusu High Court of Botswana at Lobatse (2007)

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

The appellant-wife sought and was granted a divorce from her husband on the grounds of domestic violence and that he did not financially support her or their two children. The wife appeals a decision by the Customary Court of Appeal granting the house to the respondent-husband on the grounds that under customary law, a wife who divorces her husband is at fault because a wife is supposed to remain in her marital home regardless of her husband's actions. The High Court found that the Customary Court's reasoning discriminated against women because it automatically faulted the wife for filing a divorce no matter what her husband did and ordered the marital home be sold and the profits given to the appellant-wife.   



Sekoto v. Director of Public Prosecutions Court of Appeal of Botswana at Lobatse (2007)

Domestic and intimate partner violence

The appellant appeals his conviction for the murder of his live-in girlfriend and his sentence of 12 years imprisonment.  The Court upheld the sentence, noting the increasing incidence in Botswana of former lovers killing their partners and opining that the courts should impose appropriately stiff sentences as a deterrent. 



Cour de Cassation Chambre criminelle, Rejet, 5 septembre 1990, No. 90-83.786 Cour de Cassation (Chambre criminelle) (1990)

Domestic and intimate partner violence, Sexual violence and rape

Appellant appealed his indictment for aggravated rape, assault, and torture and acts of barbarism against his wife, arguing that marriage creates a presumption of consent to sexual relations between spouses. The Court found that such a presumption is not conclusive and that Section 332 of the Penal Code, which defines rape as "[a]ny act of sexual penetration, whatever its nature, committed against another person by violence, constraint, threat or surprise," does not exclude the possibility of rape within a marital relationship where there is a lack of consent. Furthermore, the same reasoning applies to sexual abuse other than penetration. The Court thus recognized that rape and other sexual abuse can take place within a marital relationship.



Cour de cassation Chambre criminelle, Rejet, 7 avril 1998 No. 97-84.068 Cour de Cassation (Chambre criminelle) (1998)

Domestic and intimate partner violence

Appellant was convicted of aggravated assault against his wife under Section 222-13 of the Penal Code, which provides that violence against a spouse is an aggravating circumstance that adds to the gravity of the original offense. Appellant appealed his conviction on the grounds that at the time of the violence the two spouses lived separately according to the orders of their on-going divorce proceedings. The Court rejected the appeal, finding that application of Section 222-13 of the Penal Code, aggravation of assault if committed against a spouse, does not require co-habitation of the spouses.



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

Domestic and intimate partner violence, Gender violence in conflict

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



Reports

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

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

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



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

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

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



Violence is not Just a Family Affair: Women Face Abuse in Tajikistan (2009)

Domestic and intimate partner violence

Amnesty International Report EUR 60/001/2009, November 24, 2009.



He Loves You, He Beats You (2011)

Domestic and intimate partner violence

Report by Human Rights Watch documenting violence against women and girls by husbands, partners, and family members in Turkey, and the survivors' struggle to seek protection (2011).



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).



WHO Multi-country Study on Women's Health and Domestic Violence against Women (2005)

Domestic and intimate partner violence

Report by the World Health Organization documenting the prevalence of intimate partner violence and its association with women's physical, mental, sexual and reproductive health in 10 countries: Bangladesh, Brazil, Ethiopia, Japan, Peru, Namibia, Samoa, Serbia and Montenegro, Thailand and the United Republic of Tanzania (2005).


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.



International Case Law

M.P. v. Denmark Human Rights Committee (ICCPR) (2017)

Domestic and intimate partner violence, International law

M.P. originally was from Sri Lanka, and of Tamil ethnicity and the Hindu faith.  She claimed her family had strong ties with the Liberation Tigers of Tamil Eelam (“LTTE”).  Her father was killed and several of her brothers were subjected to violence due to the connection.  To gain protection, M.P. illegally entered Switzerland where she met her former husband and father of her two children.  Her husband was violent and abusive, and was convicted of domestic violence against her for which he was sentenced to three years imprisonment.  He was to be expelled to Sri Lanka upon his release, but forced M.P. and the children to accompany him to Denmark and make false statements to seek asylum.  M.P. was afraid of her husband, who physically assaulted her and the children and threatened to kill her and take their children away if she did no support his false version of reasons for seeking asylum.  He claimed he had been detained by the military and that M.P. had been sexually abused by the Sri Lankan army.  Danish authorities denied the family’s asylum request finding that M.P.’s husband had limited associations with LTTE.  He was returned to Sri Lanka after he assaulted another person in Denmark.  After he left, M.P. felt she could safely present the true grounds for seeking asylum in Denmark.  However, her application was rejected.  The Committee considered M.P.’s claim that forcibly removing her and her children would violate Denmark’s obligations under article 7 of the Covenant because she would be detained by authorities and beaten, raped and tortured due to her family’s alleged affiliation with LTTE.  The Committee noted its jurisprudence that the State’s role is to review and evaluate facts and evidence to determine whether a risk exists, unless the evaluation was clearly arbitrary or amounted to a denial of justice.  It then noted the findings of the Danish authorities that M.P. had not raised her family’s affiliation with LTTE before the Swiss authorities when seeking residence.  Further, it noted the finding that current background material on Sri Lanka provided no basis for believing that Tamils such as M.P. with no affiliation with LTTE whose family members had not been high-profile members of LTTE would risk persecution or abuse justifying asylum merely based on ethnicity.  Regarding claims by M.P. of alleged risk of harm by her former husband in Sri Lanka, the Committee noted that M.P. merely took issue with Denmark’s conclusions that she could seek protection if needed from her husband from Sri Lankan authorities.  The Committee concluded that the information provided did not demonstrate that M.P. would face a real and personal risk of treatment contrary to article 7 if she were deported to Sri Lanka.



R.R. v. Denmark Human Rights Committee (ICCPR) (2017)

Domestic and intimate partner violence, International law

R.R., an Iranian national, had left Iran for Italy with her husband and children due to her husband’s activities for the Kurdish Komeleh party.  While in Italy, they lived in an asylum center and then were provided with a dwelling.  They had difficulty paying rent as they could not find steady employment and her husband became addicted to narcotics.  Her husband subjected her and the children to domestic violence and she was forced into prostitution by her husband.  She left her husband and took her children.  She was diagnosed with bipolar disorder, depression, and cervical cancer, and received help from friends to pay for surgery.  Her youngest son suffered from heart disease.  She and her children left Italy and sought asylum in Denmark.  Danish authorities rejected her asylum application, finding that Italy should serve as her first country of asylum.  R.R. claimed that by forcibly returning her and her two children to Italy, Denmark would violate its rights under article 7 of the Covenant.  She stated that her family unit were particularly vulnerable as she was a single mother, she and her son required medical attention, and they risked facing inhuman and degrading treatment upon return to Italy, including a risk of homelessness and destitution, with limited access to the necessary medical care.  The Committee, acting under article 5(4) of the Optional Protocol, decided that the deportation of R.R. and her two children to Italy without proper assurances from Italy that it would renew her residence permit and issue permits for her children and that it would receive her family in conditions appropriate for her children’s age and the family’s vulnerable status to enable them to remain in Italy, would violate their rights under article 7 of the Covenant.  The Committee required Denmark to review her claim in consideration of its obligations under the Covenant and the need to obtain proper assurances from Italy.  While considering her request for asylum, the Committee requested that Denmark not deport her and her children.



Hashi v. Denmark Human Rights Committee (ICCPR) (2017)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Gender violence in conflict, International law

Hibaq Said Hashi left Somalia for fear of persecution by Al-Shabaab.  She was divorced from one man and married to a second man, but her former husband claimed they were not divorced and she was having sexual relations with another man, which caused Al-Shabaab to call for her to be stoned.  Her father helped her leave Somalia and then he was killed, and her current husband was sentenced to death.  She traveled to Italy by boat, was registered and determined she was pregnant, but she faced poor conditions in Italy so she left for Sweden to have her baby.  When she learned Swedish authorities planned to send her back to Italy, she and her son moved to Denmark where she applied for asylum.  She claimed that if she returned to Somalia she would be persecuted and if she returned to Italy she would face harsh living conditions and would not be able to provide for her son’s basic needs.  She was ordered to leave Denmark to return to Italy, which Denmark considered her first country of asylum.  Upon appeal, the Committee, acting under article 5(4) of the Optional Protocol, decided that the removal of Hibaq Said Hashi and her son to Italy without any assurances from Italy that it would receive her and her son in conditions suitable for her child’s age and family’s vulnerable status would violate their rights under article 7 of the Covenant.  The Committee required Denmark to review her claim in consideration of its obligations under the Covenant and the need to obtain effective assurances from Italy.  While considering her request for asylum, the Committee requested that Denmark not deport her and her son.



O.G. v. Russian Federation CEDAW Committee (2017)

Domestic and intimate partner violence, International law

O.G. was in a civil partnership with K. who used drugs and alcohol and had a gambling addiction.  After O.G. left him, he sent her harassing texts, attempted to visit her, and when she refused to let him in her building, he hit her.  She reported the events to a Crisis Center for Women.  K. was sentenced to four months of labor which was suspended to a six-month probation and ordered to pay $50.  After his release, he continued to send texts to O.G. threatening to kill her.  She filed seven criminal complaints with the police, who took no action claiming there was nothing they could do because K. would not come to the police station and he was not acting on his threats.  O.G. filed a complaint with CEDAW alleging that the Russian Federation failed to fully implement the Convention by not introducing legislation on domestic violence, and that the authorities had violated her rights under the Convention by not responding adequately to her claims or implementing protective orders to ensure her safety, not providing any effective remedy or psychological support, not conducting meaningful investigation, and allowing prosecution to be time barred due to a two-year statute of limitation.  The Committee decided in O.G.’s favor, rejecting the Russian authority’s argument that O.G.’s claim to be a domestic violence victim was unsubstantiated because he was not a member of her family at the time of the alleged violence, finding that there is no statutory time limit on how long after the end of a relationship a partner can claim that violence falls within this definition.  The Committee determined that Russia had not adopted comprehensive legislation to prevent and address violence against women, and noted recent amendments to national legislation that decriminalized battery under which many domestic violence cases are prosecuted due to the absence of a definition of “domestic violence.”  This failure to amend legislation relating to domestic violence directly affected O.G.’s access to remedies and protection.  The Committee determined Russia violated O.G.’s rights under articles 1, 2 (b)-(g), 3 and 5 (a) of the Convention. It recommended that Russia provide financial compensation to O.G., adopt comprehensive legislation to prevent and address violence against women, including domestic violence, reinstate criminal prosecution of domestic violence, introduce a protocol for handling domestic violence complaints at the police station level to ensure adequate protection, renounce private prosecution in domestic violence cases, ratify the Istanbul Convention, provide mandatory training for judges, lawyers and law enforcement personnel on the Convention and related documents, investigate allegations of gender-based violence against women promptly and provide safe and prompt access to justice, provide rehabilitation programs to offenders, and develop and implement effective measures with relevant stakeholders such as women’s organizations, to address stereotypes and practices that condone or promote domestic violence.  A written response and report on actions taken was due to the Committee within six months. (Available in English, Russian, Arabic, Chinese, French, Spanish.)



Case of Bălşan v. Romania European Court of Human Rights (2017)

Divorce and dissolution of marriage, Domestic and intimate partner violence, International law

Applicant is a Romanian citizen who alleged that her husband had been violent towards her and their children on numerous occasions.  The assaults intensified when the applicant initiated divorce proceedings against her husband.  The applicant’s husband assaulted and threatened her on multiple occasions, for which she required and obtained medical treatment.  She then used her medical records as proof when she lodged formal complaints against her husband at the prosecutor’s office.  She told prosecutors of the incidences of violence and the fact that her husband repeatedly locked her out of their shared residence.  The police did not pursue criminal charges and only imposed an administrative fine, holding that the applicant had provoked the disputes.  A similar pattern of abuse, medical attention, and contact with the authorities occurred over a period of months.  The applicant brought the case to the European Court of Human Rights alleging that the State “had failed to protect her from domestic violence and to hold the perpetrator accountable.”  The Court found that there were violations of Article 3 and Article 14 of the European Convention on Human Rights, which forbid torture and discrimination, respectively.  The Court found that the authorities were aware of the violence against the applicant, and thus they had an obligation to act on the complaints.  The applicant exhausted domestic avenues, but without success.  The state’s responses did not comply with international standards about required state action to violence against women and domestic violence. (Available in English, Romanian, and Croatian. English version is official.)



The Case of Durmaz v. Turkey European Court of Human Rights (2015)

Domestic and intimate partner violence

The applicant, Ümran Durmaz, is a Turkish national who was born in 1955 and lives in ?zmir, Turkey. The case concerned her complaint of the authorities’ failure to carry out an effective investigation into the death of her daughter. Ms Durmaz’ daughter, Gülperi O., died in July 2005 in a hospital in ?zmir – where she had been working as a nurse – after her husband had taken her to the emergency department, informing the doctors that she had taken an overdose of two medicines. The doctors pumped her stomach but were unable to save her. When questioned by the police, her husband, who worked at the hospital’s pharmacy, also stated that the couple had had a row on the same day and he had hit her. Gülperi O.’s father subsequently lodged a complaint with the prosecutor, stating that she had not been suicidal, and alleging that her husband was responsible for her death. In the course of the ensuing investigation, a forensic medical examination found no trace of medicines or other drugs in Gülperi O.’s blood or in other samples taken from her body, but it noted that there was an advanced oedema in her lungs. In February 2006, the prosecutor decided to close the investigation, concluding that Gülperi O. had committed suicide. An objection by Ms Durmaz – stating, in particular, that the prosecutor had failed to question her late daughter’s husband, despite the fact that by his own admission he had beaten her, and that the prosecutor’s conclusion ran contrary to the findings of the forensic examination – was dismissed by the courts. Relying in particular on Article 2 (right to life), Ms Durmaz complained that the investigation into the death of her daughter had been ineffective. In particular, further expert reports would have been required, and the prosecutor should have investigated whether the cause of Gülperi O.’s death could have been an internal hemorrhage caused by the blows inflicted by her husband.



Jessica Lenahan Gonzales v. United States Inter-American Commission on Human Rights (2011)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Jessica Gonzales petitioned that her human rights had not been protected. Previously the Supreme Court had ruled that her Due Process rights had not been violated after police didn't enforce a restraining order against her ex-husband, who subsequently murdered her three children. The Commission ruled that the state had not properly protected Jessica and recommended legislative reform to better protect women and children against domestic violence.



González Carreño v. Spain CEDAW Committee (2014)

Domestic and intimate partner violence

In 2003, a father murdered his seven-year-old daughter Andrea during a court-approved parental visitation. Ángela González, Andrea’s mother, had previously reported instances of physical abuse to the police on numerous occasions and sought court-ordered restraining orders against him to protect herself and her daughter. The father had refused to accept supervised visitations with his daughter. After killing his daughter, the father committed suicide. The mother brought suit in national court against Spanish authorities. The court ruled against her, deciding in April 2011 that the visit regime was sound and denied the case any constitutional relevance. As a result, the mother brought this complaint to the CEDAW Committee. The Committee found for the mother, stating that in deciding the parental visitation scheme the Spanish authorities should have taken into account the existing context of domestic violence in the family. Instead, the Spanish authorities had made a routine decision that this type of visitation scheme was appropriate without taking the specific facts of this case into consideration. The Committee held that the Spanish authorities thereby failed to take the best interest of the child into account. The Committee has repeatedly found that a State can be held responsible for acts of individuals if it fails to exercise necessary diligence in order to prevent violations of the CEDAW Convention. Specifically, Spain had violated articles 2 a), d), e) and f), 5 a) and 16 paragraph 1 of CEDAW. Additionally, CEDAW ruled that Spain must provide training to judges and other professionals to avoid similar failures in the future. Spain has since stated that it will introduce new mechanisms to protect children in gender violence cases, such as requiring judges to act with precaution in their decision-making.

En 2003, un padre asesinó a su hija Andrea, de siete años, durante una visita de padres aprobada por el tribunal. Ángela González, la madre de Andrea, había denunciado previamente casos de abuso físico a la policía en numerosas ocasiones y había solicitado órdenes de restricción ordenadas por el tribunal para protegerse a ella y a su hija. El padre se había negado a aceptar visitas supervisadas con su hija. Después de matar a su hija, el padre se suicidó. La madre presentó una demanda en el juzgado nacional contra las autoridades españolas. El tribunal falló en contra de ella, decidiendo en abril de 2011 que el régimen de visitas era sólido y negó al caso cualquier relevancia constitucional. Como resultado, la madre presentó esta queja al Comité de la CEDAW. El Comité determinó que la madre indicaba que, al decidir el plan de visitas de los padres, las autoridades españolas deberían haber tenido en cuenta el contexto existente de violencia doméstica en la familia. En cambio, las autoridades españolas habían tomado una decisión de rutina de que este tipo de esquema de visitas era apropiado sin tener en cuenta los hechos específicos de este caso. El Comité sostuvo que las autoridades españolas no habían tenido en cuenta el interés superior del niño. El Comité ha encontrado repetidamente que un Estado puede ser responsabilizado por actos de individuos si no ejerce la diligencia necesaria para prevenir violaciones de la Convención de la CEDAW. Específicamente, España había violado los artículos 2 a), d), e) yf), 5 a) y 16 párrafo 1 de la CEDAW. Además, la CEDAW dictaminó que España debe brindar capacitación a jueces y otros profesionales para evitar fallas similares en el futuro. Desde entonces, España ha declarado que introducirá nuevos mecanismos para proteger a los niños en casos de violencia de género, como exigir que los jueces actúen con precaución en su toma de decisiones.



Bevacqua and S. v. Bulgaria European Court of Human Rights (2008)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Following divorce and during extended custody proceedings in Bulgaria, B agreed to the father having contact with the child, S. However, he refused B’s contact with S. B recovered S from the kindergarten, which led to the father threatening her and eventually entering her home seeking to recover the child. B moved to a hostel for victims of domestic violence in another town, but the authorities threatened to prosecute her for abduction of S. Despite being asked by B to make an interim order concerning custody of S, the Bulgarian courts failed to do so. In order to avoid prosecution B agreed to care for S with the father in alternate months. S was subject to further violence by the father. She was granted custody of the child eventually, but the father was not prosecuted for his violence, or for subsequent violence against her. The ECtHR found violations of B and S’ right to respect for private and family life under Art 8 of the ECHR. The Court held that the Bulgarian court's failure to adopt interim custody measures without delay had adversely affected the well-being of S and insufficient measures had been taken in reaction to the father's behavior, however, the length of proceedings had not been unreasonable.



E.S. and Others v. Slovakia European Court of Human Rights (2009)

Domestic and intimate partner violence, Property and inheritance rights

E.S.’s ex-husband S was convicted of ill-treatment, violence and sexual abuse against E.S. and their daughters and sentenced to four years' imprisonment. E.S. requested an interim measure ordering S to move out of the council flat of which they were joint tenants. The domestic courts dismissed her request, finding it lack the power to restrict S’ right to use the property under the relevant legislation. The appellate courts upheld that decision noting that E.S. would be entitled to bring proceedings to terminate the joint tenancy after a final divorce decision and, in the meantime, she could apply for an order refraining S from inappropriate behavior. The Constitutional Court subsequently held that E.S.'s rights were not violated as she had not applied for such an order. However, it held that the lower courts had failed to take appropriate action to protect E.S.'s children from ill-treatment. It did not award compensation as it considered it provide appropriate just satisfaction by a finding of a violation. Following the advent of new legislation, E.S. made further applications and two orders were granted: one preventing S from entering the flat; the other awarding her exclusive tenancy. In the meantime, E.S. had had to move away from their home, family and friends and her children had had to change school. The ECtHR concluded that Slovakia had failed to fulfill its obligation to protect all of the applicants from ill-treatment, in violation of Articles 3 and 8. The alternative measure proposed by Slovakia, i.e. an order restraining S from inappropriate behavior, would not have provided the applicants with adequate protection against S and therefore did not amount to an effective domestic remedy. The ECtHR ordered the Slovak Republic to pay non-pecuniary damages of EUR 8,000.



Kalucza v. Hungary European Court of Human Rights (2012)

Domestic and intimate partner violence, Property and inheritance rights

K’s partner Gy.B. acquired ownership of K’s ex-husband share of their jointly owned flat and had it registered as his place of residence. K sought to have him evicted when their relationship ended, lodged numerous criminal complaints for rape, assault and harassment but Gy.B.was acquitted on four occasions and was convicted on only two occasions, released on parole and ordered to pay a fine. On three occasions K herself was found guilty of disorderly conduct, grievous bodily harm and assault. She also faced a trespassing charge brought by Gy.B. because she had the flat's locks changed. During the criminal proceedings, K made two requests for a restraining order against Gy.B. and both were dismissed on basis that she was also responsible for the bad relationship. Civil proceedings concerning ownership of the flat were also suspended while Gy.B.’s violent behavior against her continued and a medical report was drawn up recording her injuries with an expected healing time of eight to ten days. The ECtHR found that the Hungarian authorities had not taken sufficient measures for her effective protection, in violation of Article 8. The Court noted that it had taken the authorities too long - more than one-and-half years - to decide on K’s first restraining order request, undermining the reason behind such a measure which was to provide immediate protection to victims of violence. Sufficient reasons for dismissing the restraining order requests were not given, the courts relying simply on the fact that both parties were involved in the assaults, ruling out the possibility of a victim having acted in legitimate self-defense in the event of a mutual assault. The Court commented that restraining orders could have been issued against both parties and ordered Hungary to pay K non-pecuniary damages.



Angelique Lyn Lavallee v. Her Majesty the Queen Supreme Court of Canada (1990)

Domestic and intimate partner violence

Lavallee, a battered woman, killed her abusive partner after an argument in which he threatened her life. Lavallee utilized the expert testimony of a psychiatrist who testified in her defense regarding battered woman syndrome. Lavallee was ultimately acquitted. The Manitoba Court of Appeal overturned the acquittal, and the Supreme Court of Canada considered whether the expert testimony of the psychiatrist should have come before the court and whether the judge’s instructions on said testimony were appropriate. The Supreme Court held that the testimony was admissible “where the expert has relevant knowledge or experience beyond that of the lay person,” as in the case of battered woman syndrome, and where the testimony is relevant to understanding the “reasonableness” of the defendant’s perspective.



Case of Eremia v. The Republic of Moldova European Court of Human Rights (2013)

Domestic and intimate partner violence

E’s husband, a police officer, had been abusive towards her, often in the presence of their teenage daughters, whose psychological well-being was adversely affected as a result. A protection order had been issued against E’s husband upon E’s first request but was not respected by the husband and was partly revoked on appeal. E filed a criminal complaint and claimed being pressured by other police officers to withdraw the complaint. Although a criminal investigation was finally launched, and substantive evidence of the husband’s guilt was found, the prosecutor suspended the investigation for one year subject to the condition that the investigation would be reopened if the husband committed another offence during that time on basis that the husband had committed “a less serious offence” and “did not represent a danger to society.” The ECtHR found a violation of Article 3 in respect of E as