Women and Justice: Topics: Domestic and intimate partner violence, Female infanticide and feticide, Femicide

Domestic Case Law

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. 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.



Fallo c85566 Supreme Court of Buenos Aires (2002)

Female infanticide and feticide

A married woman with three children was allowed to undergo a therapeutic abortion for an anencephalic fetus for health reasons. To do so, she had to file a request with the hospital and the court, which had a formal hearing to determine that the rights of the fetus were being respected and that the procedure was strictly for health reasons. The decision was appealed to a higher court, which affirmed the family court’s decision. They cited international law to support the decision, citing both the mother’s rights to raise a family as she saw fit and the rights of the anencephalic fetus. Along with Argentinean Supreme Court, the most cited laws were the Convención de los Derechos del Niño and the Convención Americana sobre los Derechos Humanos. While this ruling may not seem progressive by American standards, abortion is still essentially outlawed in Argentina.

 

A una mujer casada con tres hijos se le permitió someterse a un aborto terapéutico para un feto anencefálico por razones de salud. Para hacerlo, tuvo que presentar una solicitud ante el hospital y el tribunal, que tuvo una audiencia formal para determinar que se respetaban los derechos del feto y que el procedimiento era estrictamente por razones de salud. La decisión fue apelada ante un tribunal superior, que confirmó la decisión del tribunal de familia. Citaron el derecho internacional para respaldar la decisión, citando tanto los derechos de la madre de criar a una familia como consideraba oportuno como los derechos del feto anencefal. Junto con la Corte Suprema argentina, las leyes más citadas fueron la Convención de los Derechos del Niño y la Convención Americana sobre los Derechos Humanos. Si bien esta decisión puede no parecer progresista para los estándares estadounidenses, el aborto aún está esencialmente prohibido en Argentina.



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

Female infanticide and feticide, Femicide, Harmful traditional practices

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



Legislation

Law No. 13.104/2015 (“Lei do Feminicídio”) (2015)

Female infanticide and feticide, Femicide

On March 9, 2015, Brazil’s existing criminal code was amended to criminalize femicide, with sentencing ranging from twelve to thirty years of imprisonment. The new legislation defined femicide as a sex-based homicide committed against women, with the involvement of domestic violence, discrimination or contempt for women. The crime is aggravated if the victim is a pregnant woman, a woman within the first three months of maternity, a girl under the age of fourteen years or a woman over sixty years of age. Besides amending the existing criminal code, the new legislation also amended Law no. 8.072/1990, adding femicide to the list of heinous crimes.



International Case Law

Diene Kaba v. Canada Human Rights Committee (2008)

Domestic and intimate partner violence, Female infanticide and feticide, Forced and early marriage, Harmful traditional practices

Diene Kaba was severely beaten by her husband when she intervened to prevent the clitoral excision of her six-year-old daughter. Both mother and daughter fled Guinea and arrived in Canada where Kaba claimed refugee status for herself and her daughter on the grounds of membership of a particular social group as single women and victims of domestic violence, and in view of the serious risk of her daughter’s excision. The Immigration and Refugee Board (IRB) refused to grant refugee status for lack of credibility. Kaba then applied for an exemption to the permanent resident visa requirement on the basis of humanitarian and compassionate considerations, as well as a pre-removal risk assessment. The IRB rejected both applications and ordered her removal from Canada. Kaba included supporting documents in each application, including reports confirming the risk of excision in Guinea and a letter from her uncle in Guinea that attested to her husband’s threats to harm Kaba if he ever saw her again, or kill her if she did not return his daughter to him. Kaba’s husband had subsequently obtained a court order forcing Kaba’s brother and mother to do everything possible on pain of severe penalties to return his daughter to him in Guinea. The affidavits for the order show that Kaba’s daughter faced certain excision and forced marriage upon her return to Guinea. In her complaint to the Committee, Kaba cited violations of several articles of the International Covenant on Civil and Political Rights, including article 7 prohibiting torture and cruel, inhuman, and degrading treatment or punishment. The Committee held that there was no question that subjecting a woman to genital mutilation amounted to treatment prohibited under article 7 of the Covenant, and although Kaba’s daughter was fifteen at the time the Committee addressed the communication, the context and particular circumstances of her case demonstrated a real risk of genital mutilation upon her forced return to Guinea.