Women and Justice: Topics: Forced and early marriage, Forced sterilization, Gender violence in conflict, International law, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Legislation

Schweizerisches Strafgesetzbuch/Swiss Penal Code, Article 264e: War Crimes (2019)

Forced and early marriage, Forced sterilization, Gender violence in conflict, International law, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Art. 264e provides for a criminal penalty of not less than three years for any person who commits certain specified offenses in connection with an armed conflict, including (among other things) raping a person of the female gender protected by international humanitarian law or, after she has been forcibly made pregnant, confining her unlawfully with the intent of affecting the ethnic composition of a population, forcing a person to tolerate a sexual act of comparable severity or forcing a person protected by international humanitarian law into prostitution or to be sterilized.  In especially serious cases, and in particular where the offense affects a number of persons or the offender acts in a cruel manner, life imprisonment may be imposed. In less serious cases, imprisonment of not less than one year may be imposed. Unofficial English translation available here.



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

Forced sterilization

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



Abortion and Sterilization Act (1975)

Abortion and reproductive health rights, Forced sterilization

The Abortion and Sterilization Act (the “Act”) was adopted from South Africa and prohibits abortions, except in extreme circumstances where either: (i) the mother’s life is in danger; (ii) not having an abortion would constitute a serious threat to the mother’s mental health; (iii) there is a serious risk that the child will be born with physical and/or mental defects; or (iv) the child is a product of rape or incest. It also criminalizes performing abortions, except in the circumstances listed above. Finally, the Act states the circumstances in which sterilizations may be performed, including on people incapable of consent. 



Law No. 26 of 2000 - Establishing the Ad Hoc Human Rights Court (2000)

Forced sterilization, Gender violence in conflict, Gender-based violence in general, International law, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Article 9 defines crimes against humanity to include violent acts such as rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization or other forms of sexual violence.



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); andincrease punishment for sexual violence to up to 15 years, if such acts resulted in serious consequences.


Rome Statute of the International Criminal Court International Criminal Court (1998)

Femicide, Forced and early marriage, Forced sterilization, Gender discrimination, Gender violence in conflict, Sexual violence and rape, Trafficking in persons

The intention behind the Rome Statute of 2002 (“Rome Statute” or “Statute”) in establishing the International Criminal Court (“ICC”) is to prosecute the most serious crimes of international concern and to end impunity.  The Rome Statute is significant in being the first international criminal law instrument that recognises forms of sexual violence, such as rape, sexual slavery, enforced prostitution, and enforced sterilization, as distinct war crimes.  This legal instrument is also novel in prescribing gender-based crimes as the basis of war crimes or crimes against humanity committed during armed conflicts.  In particular, the Statute gives the ICC jurisdiction over gender-based crimes if they constitute acts of genocide.  In this case the crimes, such as rape, can be an integral part of the destruction inflicted upon the targeted groups and may be charged as genocide.  The Prosecutor must further apply and interpret the Statute in line with internationally recognised human rights, including women’s human rights and gender equality.  The States Parties should also consider the need to appoint judges with legal expertise on violence against women or children.



Law No. 06/019 of 20 July 2006, Modifying and Completing the Decree of 6 August 1959 Relating to the Congolese Penal Procedure Code (2006)

Female genital mutilation or female genital cutting, Forced sterilization, Gender-based violence in general, Sexual harassment, Sexual violence and rape, Statutory rape or defilement

This law requires the courts to secure the privacy and dignity, as well as physical and psychological well-being of victims of sexual violence during proceedings.  However, it does not detail any specific measures to be undertaken.  The law also stops courts from inferring sexual consent from silence or lack of resistance and prevents courts from taking into consideration a victim’s sexual history in ascertaining a defendant’s guilt.



Domestic Case Law

Secretary, Department of Health and Community Services (NT) v. JWB and SMB High Court of Australia (1992)

Forced sterilization

The court held that the applicants, as joint guardians of a 14-year-old child with a severe mental disability, were allowed to authorize the sterilization of the child without a court order, provided that (i) the circumstances were so compelling that the welfare of the child justified such an invasive procedure and (ii)  there was no possibility of the child acquiring the capacity to decide for herself. Generally, it was established that children with the maturity and intelligence to fully understand proposed treatment can make such a decision even though they have not reached the age of adulthood. Parents or guardians of children who do not have sufficient capacity or maturity or intelligence to decide, can make such a decision on behalf of their children, provided that the treatment is in the child’s best interest. However, the parental ability to consent to sterilization is limited to circumstances in which sterilization is required to treat some malfunction or disease. In relation to non-therapeutic purposes, a court order is required to authorize sterilization.



J.B. v. Landero Supreme Court of Belize (2018)

Forced sterilization

The claimant underwent an exploratory surgery at age 21 to assess the cause of abdominal pain associated with bleeding.  During that surgery the doctor removed her womb and left ovary without her consent or a second opinion.  The defendants accepted liability and the court was asked to assess damages for breach of duty and for pain and suffering.  Under Belize law, the court must restore the claimant to “the position in which she would have been, had it not been for the negligent act.”  The claimant’s psychologist explained the psychological impact on the claimant for her loss of “femaleness” and her struggles with “depression, guilt, and feelings of worthlessness.”  To quantify her damages, claimant referred the court to awards for infertility in a “woman with severe depression and anxiety” in Guidelines for the Assessment of General Damages in Personal Injury Cases.  The claimant also pointed to a few foreign cases that quantified similar damages.  The defense urged the court to be cautious since these cases arose from jurisdictions “which do not share similar social, economic and industrial conditions to Belize.”  Defense counsel also attempted to distinguish the physical damage in the cases cited by claimant.  The court considered both the fact that claimant’s pecuniary prospects had not changed, as well as her loss of biological motherhood and the psychological damage from loss of her female reproductive organs, and awarded $250,000 in damages.



Government of the Republic of Namibia v. LM and Others Supreme Court of Namibia (2014)

Forced sterilization

 In 2014, the Supreme Court of Namibia (“Supreme Court”) affirmed the High Court of Namibia’s (“High Court”) decision in LM and Others v. Government of the Republic of Namibia that sterilization procedures require informed consent.  The three respondents sued the Namibian government, alleging that doctors at state hospitals forcibly sterilized them without their consent in violation of their constitutional rights.  They claimed that the forced sterilizations left them unable to bear children, ruined their marriage prospects, constituted discrimination against them based on their HIV status, and caused ongoing pain and suffering. The defendants argued that the plaintiffs’ claims lacked merit because they consented to the procedures. The court found that the alleged “consent” was deficient because the defendants failed to prove that they adequately informed the plaintiffs of the consequences of sterilization, or that the plaintiffs clearly and knowingly consented to the procedures before they went into labor.  However, the Court found no evidence that the complainants were sterilized because of their HIV status and dismissed that claim. Emphasizing the serious personal nature of the decision, the Supreme Court stated that the decision to be sterilized “must be made with informed consent, as opposed to merely written consent” (¶ 3).  The Supreme Court stated that the choice to undergo a sterilization procedure must lie solely with the patient noting that “there can be no place in this day and age for medical paternalism when it comes to the important moment of deciding whether or not to undergo a sterilisation procedure.” (¶ 106).  The Supreme Court also denounced the practice of obtaining “consent” for sterilization during labor noting that patients may not fully appreciate the consequences of giving their consent when experiencing the immense pain involved in labour.  The Supreme Court also agreed with the lower court that plaintiff-respondents did not provide any evidence that they were sterilized because of their HIV status.



Ruth Nahmani v. Daniel Nahmani Supreme Court of Israel (1996)

Forced sterilization, Gender discrimination, Gender-based violence in general

A married couple was unable to conceive child naturally. They underwent in-vitro fertilization in Israel for purposes of implanting the fertilized ova in a surrogate mother in the United States. Before the ova could be implanted in a surrogate mother, however, the husband left the wife. The wife applied to the Israeli hospital for release of the fertilized ova, intending to move forward with the surrogacy plan in the United States. The husband opposed the release of the ova. The court held that the husband was estopped from opposing the surrogacy procedure, because he had consented to it and the wife reasonably relied on his consent by going through with the fertilization process. In addition, Jewish heritage is a cornerstone of the Israeli legal system, which values the procreation of children. Relatedly, the right to have children under Israeli law is secondary to the desire not to have unwanted children.



El Tribunal Constitucional de Chile Constitutional Court of Chile (2007)

Forced sterilization

A parliamentary minority requested that the Constitutional Court declare unconstitutional a Ministry of Health decree that determined the availability of family planning methods and permitted distribution of emergency contraception by national health centers.  The constitutional court noted that the “right to life” is fundamental under the Chilean Constitution. It rejected scientific arguments that emergency contraception did not affect the life of a conceived but unborn embryo.  In a dissenting opinion, one judge noted that the rights protecting the reproductive rights of women were enshrined in CEDAW in conflict with the Constitutional Court’s decision.  The Constitutional Court’s decision did not prevent all distribution of emergency contraception in Chile, but banned it from being distributed by clinics and hospitals that are part of national health system. The constitutional court decision was effectively overruled in January 2010 by Law No. 20.418, promulgated by President Bachelet, which permitted distribution of emergency contraceptive pills in both public and private health centers, including to persons under 14 without parental consent.  The law also requires high schools to enact sexual education programs.



Cheung v. Canada Canada Court of Appeal (1993)

Forced sterilization

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



International Case Law

V. C. v. Slovakia European Court of Human Rights (2011)

Forced sterilization

VC, a Romani woman, was forcibly sterilized in a state hospital in Eastern Slovakia during a cesarean section. While she was in the height of labor, hospital staff insisted that she sign a consent form for sterilization, without informing her about what the procedure entailed. She was only told that a future pregnancy could kill her and was pressured to immediately undergo the procedure. VC did not understand what she was agreeing to but fearing for her life, she signed the form. After learning that the sterilization was not medically necessary, VC filed a civil lawsuit in Slovakia. All her petitions were rejected, and she filed a complaint against Slovakia at the ECtHR The Court found a violation of Articles 3 and 8 of the ECHR, i.e. the right to freedom from inhuman and degrading treatment and the right to private and family life respectively. The court noted that sterilization is never a lifesaving procedure and cannot be performed without the full and informed consent of the patient even if doctors believe that future pregnancy may pose a risk to the woman. However, it did not address whether such conduct was a violation of the right to non-discrimination (Article 14), thus falling short of addressing the crux of the problem: racial stereotypes. The ruling is the first of its kind issued by the ECHR, and will have the major effect of bringing justice to the potentially thousands of Roma women who were sterilized without their consent in Central and Eastern Europe.



A.S. v. Hungary CEDAW Committee (2006)

Forced sterilization

Andrea Szijjarto was sterilized without her informed consent by a Hungarian hospital during an emergency cesarean section procedure. While in a state of shock due to blood loss, Szijjarto was asked to provide her written consent to tubal ligation by signing an illegible hand-written note describing the procedure in terms she did not understand. Szijjarto charged the hospital with negligence in failing to obtain her full and informed consent to the coerced sterilization. Both the town and county courts held that the hospital was at least partially negligent in its legal duties to Szijjarto, but rejected her claim and appeal for failure to prove a lasting handicap and causal relationship between permanent loss of reproductive capacity and the conduct of the hospital’s doctors. The Committee on the Elimination of Discrimination Against Women held that Hungary violated Szijjarto’s rights under article 10(h) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) on access to information on family planning, article 12 guaranteeing women appropriate medical services in connection with pregnancy, and paragraph 1(e) of article 16 on a woman’s right to freely choose the number and spacing of her children. The Committee recognized the serious consequences of coercive practices including forced sterilization under its General Recommendation No. 21, and held that the Hungary had violated Szijjarto’s right to information on family planning and the sterilization procedure. The Committee also held that lack of informed consent constituted a breach of the obligation under article 12 and General Recommendation No. 24 to ensure the delivery of acceptable medical services in a manner that respects a woman’s dignity. Accordingly, the Committee recommended the State provide compensation to Szijjarto and amend its Public Health Act allowing doctors’ discretion to administer sterilization procedures when “appropriate in given circumstances.”



Slovak Republic, Constitutional Court, Decision No. 194/06-46, 2006 Constitutional Court of the Slovak Republic (2006)

Forced sterilization

Mrs. I.G., Mrs. R.H. and Mrs. M.K. (the claimants of Roma ethnicity) were sterilized while giving birth to their children.  The claimants initiated criminal proceedings on the grounds of unlawful sterilization, claiming that their consent (or informed consent in the case of R.H.) was not given.  Criminal proceedings were stopped by the regional prosecutor with the conclusion that no unlawful act had been committed.  The claimants filed a formal complaint against the decision, in part claiming that the investigation did not examine the substantive material issue, the lack of consent to sterilization.  This formal complaint was dismissed by the regional prosecutor. The claimants petitioned the Constitutional Court to address the decision to discontinue criminal proceedings by the regional prosecutor; they claimed among other things the breach of their right to private and family life  and of their right to privacy.  The Constitutional Court held that sterilization was not a “life-saving” procedure, as claimed by the regional prosecutor and the hospital.  Therefore, the explanation given by the regional prosecutor for the discontinuation of criminal proceedings on these grounds was unfounded.  The Constitutional Court further held that the investigation did not exhaust all possible avenues, and completely ignored the issue of consent.  This and the subsequent dismissal of the complaint amounted to inhumane or degrading treatment of the claimants affecting their private and family lives.  The Constitutional Court awarded each claimant 50,000 SK (EUR 1,659.70) in damages and ordered the regional prosecutor to re-examine the issue.



Maria Mamerita Mestanza Chavez v. Peru Inter-American Commission on Human Rights (2003)

Forced sterilization

Forced sterilization.  A complaint was raised against Peru for the forced sterilization of Mestanza Chavez, forced sterilization which eventually caused her death. The complaint alleged that she was pressured into sterilization as part of a government objective to curve the population numbers of poor, Indian and rural women. After the sterilization, Mestanza Chavez fell ill from complications and eventually died.  The complaint alleged the violation of Articles 4, 5, 1, and 24 of the American Convention on Human Rights,  Articles 3, 4, 7, 8, and 9 of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women, Articles 3 and 10 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights, and Articles 12 and 14(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The parties reached a friendly settlement under which Peru agreed to investigate and punish those responsible for the forced sterilization, pay the victim's next of kin moral and corollary damages, pay the victim's medical expenses to her next of kin, provide her children with free primary, provide secondary and public university education to the victim's children, and pay money for the victim's spouse to purchase a home. Peru also agreed to amend its reproductive laws to eliminate any discriminatory policies within such laws.