Women and Justice: Topics: Sexual violence and rape

Domestic Case Law

The Queen v. Baptiste Supreme Court of Grenada and the West Indies Associated States (2013)

Sexual violence and rape

The defendant pled guilty to rape and holding a woman at knifepoint until she was able to fight him off and escape.  The defendant was before the court for sentencing.  The court began by observing that “over the past few years the courts have been disposed to sentence persons convicted of rape to terms of imprisonment of between 7-10 years.”  Here, the only mitigating factor was the defendant’s guilty plea.  The aggravating factors included physical and psychological harm, use of a weapon and violence, and prior convictions.  Considering these factors, the court sentenced the defendant to a term of eight years imprisonment.



Between S.A.J. and S.P.J. Supreme Court of Grenada and the West Indies Associated States (2014)

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

In a pending divorce case, the trial court entered an order for the parties to “refrain from molesting, harassing, besetting, intimidating and/or threatening and carrying out physical or other abuse of the other.”  The wife subsequently accused the husband of sexual molestation and violating the court’s order.  The court explained that “an allegation of sexual molestation in any form is very serious and the onus is on the wife to prove to the Court beyond a reasonable doubt that the husband breached the Order by committing the acts of sexual molestation as alleged.”  The court held that the “wife has failed to discharge this burden” because:  (i) there was no evidence from any corroborating witness; (ii) there was no corroborating evidence from the doctor who examined the wife; (iii) both parties chose not to cross-examine the deponents who swore to the affidavits in the committal application; and (iv) “the husband’s version of the events on 5th March is equally plausible as the wife’s” version of events.



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.



Musumhiri v. State High Court of Zimbabwe (2014)

Sexual violence and rape, Statutory rape or defilement

The 47-year-old male applicant requested bail pending the appeal of his conviction and 15-year sentence for raping the 16-year-old complainant. The applicant appealed, arguing that the intercourse was consensual because the victim did not scream or immediately report the rape after a witness stumbled upon the incident. The applicant had to show, among other things, the likelihood of success of his appeal to obtain bail. The court dismissed the bail application after rejecting the state's concession that the applicant had a meritorious appeal because complainant's failure to scream or to immediately report the rape cast doubts upon her lack of consent. Citing research about cultural inhibitions on gender violence victims, the court concluded that silence could not be equated to acquiescence. With women often held culturally as custodians of appropriate sexual conduct, and with the responsibility for sexual restraint being placed on a woman, regardless of her age or power imbalances, the court found it understandable that the complainant failed to make an immediate report. The court noted that a young girl may not make a voluntary report because her cultural context makes it difficult for her to do so without being re-victimized. Consequently, the proposition that the victim's initial silence implied consent was untenable and could not be ground for bail.



Mapingure v. Minister of Home Affairs Supreme Court of Zimbabwe (2014)

Abortion and reproductive health rights, Sexual violence and rape

A month after the rape, the appellant’s pregnancy was formally confirmed, she then informed the investigating police officer of her pregnancy who referred her to a public prosecutor. She was told by the prosecutor that she had to wait until the rape trial had been completed to have her pregnancy terminated. At the direction of the police, she returned to the prosecutor’s office four months later and was advised that she required a pregnancy termination order. The prosecutor requested that a magistrate certify the termination. The magistrate said he could not assist because the rape trial had not been completed. She eventually obtained the necessary magisterial certificate nearly six months after the rape, the hospital felt that it was no longer safe to carry out the termination procedure. The appellant carried to full term and gave birth to a child. The applicant brought an action against the Ministers of Home Affairs, Health and Justice for damages for the physical and mental pain, anguish and stress she suffered and care for the child until the child turned 18. The basis of the claim was that the employees of the three Ministries concerned were negligent in their failure to prevent the pregnancy or to expedite its termination. The particulars of negligence were itemized. Her claim was dismissed. The questions for determination on appeal were (i) whether or not the respondents’ employees were negligent in responding to the appellant, (ii) if they were, whether the appellant suffered any actionable harm as a result of such negligence and, (iii) if so, whether the respondents were liable for damages for pain, suffering, and the care of her child. The Supreme Court held, on appeal, that the State was liable for failing to provide the appellant with emergency contraception to prevent the pregnancy and ordered it to pay damages. However, the court dismissed the claim that the State was liable for failing to ensure a timely termination of the pregnancy and in turn that they were liable to pay for the care of the child. The case was referred back to the High Court for a determination of the amount of damages.



S. v. Cayouette Supreme Court of Virginia (1992)

Sexual violence and rape, Statutory rape or defilement

The defendant sexually abused the plaintiff between 1969 and 1978 when she was 5-14 years old. The plaintiff turned 18, the age of majority in Virginia, in 1982. She first received information from her psychologist regarding the causal connection between the childhood sexual abuse and the severe emotional harm she manifested in March 1990, and she subsequently filed a lawsuit against defendant for the abuse in July 1991. However, the trial court dismissed the lawsuit as untimely. The issue before the Virginia Supreme Court was whether, upon the lapse of the time fixed in the statute of limitations and the tolling statute (the grace period before the statute of limitations begins), the defendant acquired a right protected by due process guarantees notwithstanding a recent statute by the legislature with provisions to: (a) retroactively apply a ten-year statute of limitations . . . in cases in which the statute of limitations had expired . . . and (b) to create a twelve-month period during which such cases could be filed regardless of when the cause of action accrued. In affirming the lower court’s ruling the Virginia Supreme Court reaffirmed its well-established principle that the legislature possesses the power to enact retrospective legislation only if the statute is not destructive of vested rights. Here, defendant’s statute of limitations defense was a vested right. Infant plaintiff suffered an injury in that "she experienced positive, physical or mental hurt" each time defendant committed a wrongful act against her "and her right of action accrued on that date." The last such act was committed in 1978. Because plaintiff was 14 years old at that time, the statute of limitations was tolled until she attained her majority in 1982. The two-year time limitation expired in 1984. At that time defendant right to a statute of limitations defense vested and could not be repealed by subsequent legislation. The court therefore affirmed the lower courts’ ruling that defendant had acquired a right protected by due process guarantees and plaintiff’s suit was untimely.



Niese v. City of Alexandria Supreme Court of Virginia (2002)

Sexual violence and rape

The plaintiff alleged that she was raped several times by a police officer who had been assigned to help her deal with her son’s behavioral issues.  The plaintiff reported the rapes to municipal mental health and domestic abuse entities, and she alleged that these entities violated their statutory duty to report these incidents or take further action.  Consequently, the plaintiff sued the Alexandria Police Department for intentional tort and negligent hiring.  The issue before the Court was whether the sovereign immunity doctrine barred the plaintiff from suing municipal entities for both intentional torts and negligence in failing to act upon plaintiff’s reports and in hiring and retaining the offending officer. The Virginia Supreme Court affirmed the lower court’s dismissal of the action as barred by sovereign immunity, explaining that a municipality is immune from liability for negligence associated with the performance of “governmental” functions, which include maintaining a police force and the decision to retain a specific police officer.  It declined to adopt an exception to sovereign immunity for the tort of negligent retention, as it had done in the context of charitable immunity.  The Court observed that whether a municipality is liable for an employee’s intentional torts was an issue of first impression in Virginia, but the Court relied on Fourth Circuit precedent to conclude that sovereign immunity applies in this context.  Finally, the Court held that the then-applicable statute requiring officials to make a report whenever they have “reason to suspect that an adult” has been “abused, neglected, or exploited” imposed a discretionary duty and not a ministerial duty upon the individuals subject to the reporting requirements and thus dismissed the claim. (i.e., ministerial duties make actions necessary when conditions for their performance arise while discretionary duties make actions optional, subject to the official’s judgment.)



Molina v. Commonwealth of Virginia Supreme Court of Virginia (2006)

Sexual violence and rape

The defendant appealed his convictions for rape and sodomy, arguing that there was insufficient evidence to convict him and that the victim was incapacitated due to voluntary intoxication.  The victim suffered from bipolar disorder and substance abuse. She was found non-responsive and half-naked behind a convenience store with rape-related injuries. She had high amounts of cocaine and alcohol in her blood, but low amounts of her prescribed lithium.  She stated that she had kissed the defendant but did not consent to sexual intercourse and had no recollection of intercourse with the defendant.  The defendant claimed the intercourse was consensual.  The issue before the Court was whether defendant could be convicted for rape because of the victim’s incapacity if such incapacity was not a permanent condition but a transitory condition such as voluntary intoxication. In affirming the conviction, the court explained that “[n]othing in the statutory definition itself limits the definition of ‘mental incapacity’ to a permanent condition,” but rather the statute defines incapacity to mean a condition existing “at the time of the offense” that “prevents the complaining witness from understanding the nature or consequences of the sexual act.”  Accordingly, the Court held that “mental incapacity” could extend to a transitory circumstance such as intoxication because the nature and degree of the intoxication went beyond the stage of merely reduced inhibition and reached a point where the victim did not understand “the nature or consequences of the sexual act.” Consequently, the Court upheld the convictions.



Jacques v. State Supreme Court of Rhode Island (1995)

Sexual violence and rape

The defendant appealed a 12-year prison sentence, arguing that his sentence was excessive given that there was no evidence he used violent force or penile penetration. However, the court held that the defendant failed to show the sentence imposed on him by the trial court was excessive or that any serious disparity existed between his sentence and any other sentence imposed for similar convictions, citing the fact that the Supreme Court found he violated Rhode Island’s sexual assault statute even though he did not commit penile penetration or use violent force (“the type of penetration is unimportant under the sexual-assault statute . . . The fact that only digital penetration occurred does not lessen [the victim’s] fear and humiliation.”).



State v. Rivera Supreme Court of Rhode Island (2010)

Sexual violence and rape, Statutory rape or defilement

A bus driver was convicted of sexually assaulting three developmentally disabled women, two of whom were passengers on the defendant’s bus route. On appeal, the defendant challenged his conviction on several grounds, one of which was that the trial court erred in precluding him from questioning the victim’s mother about a previous incident that suggested the victim was promiscuous. The court held that the defendant was not entitled to question the victim’s mother about the incident, because the defendant did not notify the trial justice beforehand of his intention to probe into the victim’s conduct or otherwise seek a hearing with the court about the admissibility of such evidence.



Rreshpja v. Gonzalez United States Court of Appeals for the Sixth Circuit (2005)

International law, Sexual violence and rape, Trafficking in persons

The plaintiff-appellant, a citizen of Albania, arrived in the United States with a fraudulently obtained non-immigrant visa after a man attempted to abduct her in her home country. The Immigration and Nationalization Service initiated removal proceedings against her. During those proceedings the plaintiff requested either a grant of asylum or the withholding of removal and protection under the Convention Against Torture, arguing that she is at risk of being forced to work as a prostitute if she were to return to her home country. The immigration judge denied her application, as did the Board of Immigration Appeals. The Sixth Circuit affirmed the denial because the plaintiff was unable to show that she was a member of a particular social group that faced persecution in her home country.



Kalaj v. Holder United States Court of Appeals for the Sixth Circuit (2009)

Sexual violence and rape, Trafficking in persons

The plaintiff-appellant, an Albanian citizen who entered the United States on a non-immigrant visa, fled her home country after facing three attempted kidnappings that she believed would have led her into forced prostitution. After escaping the third attempt, her uncle arranged for her to obtain a fake passport to enter the United States. After she applied for asylum with the Immigration and Nationalization Service, she was notified that she was subject to removal as an alien not in possession of valid entry documents. Both an immigration judge and the Board of Immigration Appeals denied her application for asylum. The Sixth Circuit affirmed these denials, finding that the plaintiff was unable to demonstrate that she was a member of a persecuted social group and unable to show that the Albanian government was unwilling or unable to protect her.



Mathis v. Wayne County Board of Education United States Court of Appeals for the Sixth Circuit (2012)

Sexual violence and rape, Statutory rape or defilement

The plaintiff-appellants’ sons were members of their middle school basketball team who were victims of sexual harassment by their teammates. The harassment ranged from arguably innocent locker room pranks to sexual violence. The plaintiffs sued the Wayne County Board of Education, alleging that the school board was deliberately indifferent to student-on-student sexual harassment in violation of Title IX of the Civil Rights Act. The District Court denied the defendant’s motion for judgment as a matter of law and awarded the plaintiffs $100,000 each in damages. The Sixth Circuit affirmed, holding that the plaintiffs had established the following elements of a deliberate indifference claim: that the sexual harassment was so severe, pervasive, and objectively offensive that it could be said to deprive the plaintiff of access to the educational opportunities or benefits provided by the school; that the funding recipient (i.e. the board of education) had actual knowledge of the sexual harassment, and the funding recipient was deliberately indifferent to the harassment.



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. Vries Supreme Court of Namibia (2001)

Sexual violence and rape, Statutory rape or defilement

The accused was charged with raping a 10-year-old girl (the “complainant”). The trial judge convicted the accused of attempted rape, finding that the prosecution did not prove penetration beyond a reasonable doubt. The prosecutor was not satisfied with the sentence and appealed to the Supreme Court, seeking a conviction for rape. The Supreme Court agreed with the trial court that penetration had not been proven beyond a reasonable doubt. However, the Supreme Court stressed that the slightest unwanted penetration of a woman’s genitalia by a man’s genitalia is sufficient to constitute the crime of rape.



Monomono v. The State High Court of Namibia (2017)

Sexual violence and rape, Statutory rape or defilement

The appellant was convicted of rape under the Combating of Rape, Act 8 of 2000 (the “Act”) in the Regional Court for inserting his finger into the vagina of his friend’s eight-year-old daughter (the “complainant”). This insertion caused bruising to the complainant’s vagina that lasted longer than 72 hours. The complainant’s hymen, however, remained intact. The appellant was sentenced to 15 years in prison, of which five were conditionally suspended. On appeal, the appellant argued that he had not committed rape under the Act because he had not penetrated the complainant’s “vagina” as that term is defined under the Act, but rather touched the areas around her vagina. Accordingly, he argued that, at most, he had committed indecent assault, and therefore his sentence should be reduced. The appellate court denied the appeal and upheld the original sentence, finding that the labia minora, labia majora and the para-urethral fort all form part of the complainant’s genital organs and therefore satisfy the definition of “vagina” within the Act.



A.F. re: Self-Satisfying Measure Corte Suprema de Justicia de la Nación (Supreme Court of Argentina) (2011)

Abortion and reproductive health rights, International law, Sexual violence and rape, Statutory rape or defilement

A.F. sought an abortion for her 15-year-old daughter, A.G., whose stepfather raped and impregnated her.  The courts of first and second instance rejected A.F.’s petition because Argentina’s criminal code permits abortion in cases of sexual assault of a mentally impaired woman and A.G. is not mentally impaired.  The appellate court, however, authorized the abortion, holding that the relevant statute should be read broadly to encompass all pregnancies resulting from sexual assault.  Following the abortion, the local guardian ad-litem and family representative (“Tutor Ad-litem y Asesor de Familia e Incapaces”) challenged the appellate court’s decision on the basis that the appellate court’s broader interpretation of the statute violated constitutional protections for the fetus as well as protections found in treaties to which Argentina is a signatory.  Despite the abortion having already been performed, the Supreme Court agreed to adjudicate the matter given its importance and affirmed the appellate court’s ruling, noting that (1) certain of the referenced treaties had been expressly amended to permit abortions resulting from sexual assault and (2) any distinction between victims of sexual assault who are mentally impaired in relation to those who are not is irrational and therefore unconstitutional.  



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.



Ah-Chong v. The Queen Supreme Court of New Zealand (2015)

Sexual violence and rape

Appellant Ah-Chong was convicted of assault with intent to commit sexual violation by rape.  As a defense, Ah-Chong claimed that the victim consented to the sexual activity.  The trial judge gave the jury instructions that they had to be satisfied beyond a reasonable doubt that the defendant had no reasonable grounds to believe that consent existed.  The appellant argued that the jury instructions were wrong, claiming that there were two separate mens rea elements: one for the assault and one for intention to rape.  The Supreme Court previously held in L v R that only a reasonable belief of consent, even if mistaken, could provide a defense to the charge of sexual violation by rape.  The appellant argued that a mistaken belief of consent constitutes a defense to the charge of assault, even if the belief was unreasonable.  The Court rejected this jury instruction.  The trial judge correctly informed the jury that based on the complainant’s account of the event, there was no possibility of finding a mistaken belief in consent relating to the assault, but not the intention to rape.  The Court extended the analysis from L v. R, holding that the mental element for attempted rape was satisfied if there was a mistaken and unreasonable belief that consent was present.



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. 29/Pid/B/2017/PN.Tul Tual District Court (2017)

Sexual violence and rape

The Defendant committed the offence of creating and disseminating pornographic material. The Defendant threatened the victim with physical harm and forced the victim to take off her clothes to allow the Defendant to film her. The victim put up verbal resistance that prompted the Defendant to slap her and to forcibly take off the victim’s clothes. The Defendant then proceeded to take pictures of the naked body of the Defendant then forced the victim to perform oral sex on the Defendant. The Supreme Court decided that the Defendant was guilty of creating pornography which explicitly showed nudity and sentenced the Defendant to imprisonment for one year and three months and a fine of Rp. 500,000,000. If the fine is not paid then the Defendant will face further imprisonment for an additional three months. Under Indonesian Law only acts that involve vaginal penetration are defined as rape.



Decision No. 29/Pid/B/2017/PN.Tul Tual District Court (2017)

Sexual violence and rape

The Defendant committed the offence of creating and disseminating pornographic material. The Defendant threatened the victim with physical harm and forced the victim to take off her clothes to allow the Defendant to film her. The victim put up verbal resistance that prompted the Defendant to slap her and to forcibly take off the victim’s clothes. The Defendant then proceeded to take pictures of the naked body of the Defendant then forced the victim to perform oral sex on the Defendant. The Supreme Court decided that the Defendant was guilty of creating pornography which explicitly showed nudity and sentenced the Defendant to imprisonment for one year and three months and a fine of Rp. 500,000,000. If the fine is not paid then the Defendant will face further imprisonment for an additional three months. Under Indonesian Law only acts that involve vaginal penetration are defined as rape.



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.



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

Employment discrimination, Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The appellant was convicted of raping a 16-year-old female colleague and was sentenced to eight years in prison.  The Court of Appeal granted a retrial because the trial court had “erred in failing to give a proper/adequate direction to the jury.”  Under Section 92(3)(a) of Belize’s Evidence Act, a trial court has discretion to “warn the jury of the special need for caution” where the only evidence against a person charged with rape is the word of the victim.  Where a judge exercises such discretion, he or she must provide the reasons for cautioning the jury.  The trial judge did caution the jury in the case, but the Court of Appeal found he had erred by not warning the jury that the complainant had lied during her testimony and by not pointing out the complainant’s admission that she had been raped was made only after being threatened by her father.  The Court of Appeal also found that the trial judge should have warned the jury that the complainant “may have had some kind of relationship with the Appellant.”



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

Sexual violence and rape

The appellant was convicted of abduction and rape and sentenced to 12 years’ imprisonment.  The complainant was kidnaped from a car, driven to a remote location, and raped multiple times by two men.  Upon arrival at the remote location, the police chased after the two men, but only caught and arrested one of the men – the appellant.  The complainant testified that the appellant wore a stocking mask, and although he had spoken to her many times the night of her kidnaping, she did not recognize him until his stockinged face was illuminated by a car light.  This identification was not made until a few days after the police arrested the appellant.  The Court of Appeal quashed the convictions because the trial judge did not direct the jury on issues related to voice identification in general or concerns related to the timing of complainant’s identification.  The Court of Appeals also faulted the prosecution for not conducting a controlled identification procedure to test the complainant’s ability to identify the appellant by the sound of his voice.  The Court did not however order a retrial because it found the evidence to be “insufficient to justify a conviction by any jury which had been properly directed” due to the “glaring evidential gaps”.  



The Queen v. D.A. Supreme Court of the Northern Territory (2017)

Sexual violence and rape

The complainant, a 32-year-old nurse, woke up to the sound of someone breaking into her house in the early hours.  She screamed and struggled for 20 minutes as the perpetrator attempted to have sexual intercourse with her, eventually succeeding.  The victim managed to call the police as the perpetrator was masturbating, which caused the perpetrator to flee the scene.  The accused, who was 16 years old at the time of the offense, pleaded not guilty to having sexual intercourse with the victim without the victim’s consent while knowing or being reckless as to the lack of consent.  DNA tests revealed a match between the DNA of the perpetrator and the sperm found in the victim.  The accused challenged the admissibility of the DNA test, arguing that he did not properly consent to the test.  The court held that the benefit the public would gain from admitting the DNA evidence outweighed any undesirability of admitting the evidence, such as encouraging improper police conduct.  Accordingly, the evidence was ruled admissible.



Ministério Público v. [Undisclosed Parties], 43/13.4JAPRT.P1 Tribunal da Relação de Porto (Court of Appeal of Porto) (2016)

Sexual violence and rape

The Public Prosecutor (Ministério Público) brought charges against defendant, “B” (name omitted from public record), for the crime of rape for having anal sex with the victim, without the victim’s consent. The Lower Court found B guilty. B appealed, arguing that the victim facilitated the anal penetration, and therefore the court should find that the victim consented. The Appellate Court found that, although the victim facilitated penetration, the victim did so to preserve his integrity, which does not qualify as consent. The Appellate Court affirmed the Lower Court’s decision finding B guilty of rape under section 164 of the Penal Code.



Ministério Público v. [Undisclosed Parties], 6/08.1ZRPRT.P1 Tribunal da Relação de Porto (Court of Appeal of Porto) (2014)

Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

The Public Prosecutor (Ministério Público) filed charges of human trafficking and sexual exploitation of minors against the defendants, “B” and “C” (names omitted from public record). Evidence demonstrated that B and C would transport women and minors from Italy to Portugal and hold them against their will to work as prostitutes at adult entertainment facilities. The Lower Court found B and C guilty on charges of both human trafficking and sexual exploitation of minors, which constitute separate crimes under the Portuguese Penal Code. B appealed to the Appellate Court, arguing that she could not be sentenced twice for the same conduct. The Appellate Court affirmed the Lower Court’s decision, and held that the crimes of human trafficking and of sexual exploitation of minors violate different rights of the victims, which warrants the stacked sentences of both crimes as provided under Sections 160 and 175 of the Penal Code.



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.



Sexual Crimes Court, New Chapter 25 Establishing Criminal Court “E” – Title 17 – Liberian Code of Laws Revised

Sexual violence and rape, Statutory rape or defilement

The Sexual Crimes Court, New Chapter 25 Establishing Criminal Court “E” – Title 17 – Liberian Code of Laws Revised (the “Law”) establishes a Sexual Offences Court and Special Divisions of Circuit Courts. The Law gives exclusive jurisdiction to these courts for dealing with the prosecution of sex crimes. These courts have the authority to prohibit publication of a victim’s personal information. This includes the right to expunge their names from public records. Additionally, the Law grants these courts the ability to provide interim relief to protect victims. In this respect, the Law specifically refers to the ability of the court to ensure that child victims are placed in protective custody.



Tequah v. Paye Supreme Court of Liberia (2014)

Sexual violence and rape

The Appellants were accused and convicted of armed robbery and gang rape. The trial court found that the Appellants raped the victim at gun point. The Supreme Court of Liberia upheld that under circumstances of violence or threats of violence to have sexual intercourse with a person, there is a presumption that the person being violated or threatened did not consent. In such circumstances, the burden of proving affirmative consent from the victim is on the accused.



Gardea v. R. Supreme Court of Liberia (2014)

Sexual violence and rape

The Appellant was convicted of raping his step-daughter on three occasions and sentenced to life imprisonment. He appealed the decision on the basis of lack of evidence. The prosecution’s case relied on evidence provided by the victim (deceased at the time of the trial), her nine-year-old sister, and a medical professional who examined the victim at the hospital immediately after she was raped. The defence argued that evidence provided by the victim immediately before her death was hearsay. The court held that, while under Liberian law hearsay cannot form the basis of a criminal conviction, “a dying declaration” (i.e., when a victim provides evidence concerning her or his attacker whilst at impending death in extremis) can be admitted as evidence and is not hearsay. The court also pointed out that, despite her young age, the victim’s sister’s evidence, which was admitted, was not hearsay because she was a direct witness to the attack and was subject to comprehensive cross examination. Finally, the court rejected the defence’s claims that the medical professional who inspected the victim in the hospital was not an expert witness because of her credentials that included a medical degree and over ten years of experience treating children victims of sexual violence. 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 Zurich Canton v. X., BGE 129 IV 81 Supreme Federal Court (2002)

Sexual violence and rape, Trafficking in persons

The defendant, X., procured women for the purpose of prostitution from a recruiter operating in Thailand.  She deliberately chose women from poor and disadvantaged backgrounds because of their greater vulnerability and their perceived inability to resist demands made by X. On February 14, 2000, the Zurich District Court convicted X on charges relating to the promotion of prostitution of others under Article 195(3) of the Penal Code (Switzerland), but found the defendant not guilty in relation to trafficking in persons, assault, and other prostitution related offenses.  Her conviction resulted in a sentence of two-and-a-half years of imprisonment and a fine of CHF 10,000. On January 24, 2001, the Zurich Court of Appeal, found X. guilty of multiple counts of trafficking in human beings (under Article 196 of the Criminal Code), promotion of prostitution (under Article 195(3) and (4) of the Criminal Code), and for offenses relating to bribery (Articles 288a and 305). X.’s prison sentence was increased to four and a half (4.5) years and the fine of CHF 10,000 was affirmed. X. appealed to the Supreme Federal Court for the annulment of the decision made by the Zurich Court of Appeal. The Supreme Federal Court confirmed the decision of the Zurich Court of Appeal, adding that any consent that may have been given by any of the trafficked women after they had been trafficked and were present in Switzerland would have been irrelevant.



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.



X. v. A., 6B_962/2010 Federal Court (2011)

Gender-based violence in general, Sexual violence and rape

A. was a drug-addicted prostitute working in the Sihlquai area in Zurich who agreed to perform certain sexual acts with client X. for a remuneration of Fr. 50. X. took A. to a rented room outside of the city of Zurich where X. beat A. with a whip and forced her to perform violent and humiliating sexual acts. A. claimed not to have agreed to perform these acts with X., while X. countered that they were part of the agreed transaction. X. was sentenced by the Baden District Court to imprisonment for sexually abusing A. X. appealed the verdict and the Canton Aargau Supreme Federal Court dismissed the appeal, finding the preconditions of sexual assault fulfilled. The Supreme Federal Court determined that, even if A. voluntarily agreed to perform certain sexual acts with X., she did not consent to the violent acts and she could not express her refusal in any other manner than verbally and through limited physical resistance. The Supreme Federal Court also found that the client X. could not expect the victim A. to agree to such violent sexual practices, even for remuneration.



Sentencia nº 965 de Tribunal Supremo de Justicia Tribunal Supremo de Justicia (2012)

Sexual violence and rape, Statutory rape or defilement

A mother was charged with sexual abuse of her own son and daughter.  The trial court issued an order of detention pending trial.  When the mother brought an extraordinary constitutional petition seeking protection against the order, the court of appeals declined to hear the petition on the ground that such a petition can heard only after ordinary remedies have been exhausted.  On appeal to the Supreme Court, the mother argued that the underlying order of detention suffered from various constitutional defects, mainly that special courts have exclusive jurisdiction to hear cases involving sexual violence against a girl and that the trial court therefore lacked jurisdiction.  (The mother argued, moreover, that she was being prosecuted and detained in order to prevent enforcement of her visitation rights—this after she had already been deprived of them the two years prior.)  The Supreme Court affirmed the appellate decision, noting that the mother had not exhausted any of the three remedies still available to her:  motion for reconsideration, motion for substitution, and an ordinary appeal. 



Sentencia nº 407 de Tribunal Supremo de Justicia Tribunal Supremo de Justicia (2016)

Sexual violence and rape, Statutory rape or defilement

A man invaded his neighbor’s house at night while two girls (12 and 17 years old) and their grandmother slept, and sexually assaulted the two girls.  The trial court convicted him of sexual abuse and physical violence.  After the court of appeals affirmed the conviction, the defendant brought a cassation appeal to the Supreme Court, arguing that the court of appeals erred by (1) selectively giving weight only to certain testimony of the victims and their grandmother, while ignoring exculpatory evidence; and (2) finding facts without articulating grounds for each finding.  Noting that weighing of evidence and fact finding are the exclusive domain of the trial court and that appellate review must be limited to assessment of the sufficiency of the evidence, the Supreme Court denied the appeal, expressly rejecting it as an attempt to replay the appeal below. 



Sentencia nº 542 de Tribunal Supremo de Justicia Tribunal Supremo de Justicia (2015)

Sexual violence and rape, Statutory rape or defilement

A teenage girl reported she had been sexually abused by a man.  A medical exam confirmed she had suffered involuntary anal penetration on the date of her report.  At trial, however, the girl testified that she was in a sexual relationship with a boyfriend at the time of the alleged abuse, another girl had advised her to blame the defendant in order to protect the boyfriend, and the defendant was innocent.  Her father corroborated her testimony, explaining that she recanted her accusations when he told her “where the defendant was being held.”  Noting “contradictions” in the girl’s and father’s testimony (e.g., the girl did not know the full name or the address of the boyfriend or the other girl), the trial court gave “no weight” to the recantation, indicating that it was the product of “manipulation.”  Instead, based on the medical evidence and the testimony of witnesses who responded to the girl’s initial report, the trial court convicted the defendant.  The court of appeals affirmed.  On a cassation appeal to the Supreme Court, the defendant argued that (1) the trial court failed to articulate the grounds for finding each element of the offense, and (2) the conviction was incongruous because there was no evidence identifying him as the perpetrator other than the girl’s own now-recanted statements.  The Supreme Court vacated the conviction and ordered a new trial, ruling that the trial court had made certain findings about the alleged crime without citing a basis in the record.  Notably, after a lengthy discussion of the importance of protecting victims from “secondary victimization” in the legal process, the Court authorized the trial court to read the girl’s testimony from the first trial into the record of the new trial, in lieu of requiring her to submit to live re-examination.    



Sentencia nº 752 de Tribunal Supremo de Justicia Tribunal Supremo de Justicia (2016)

Sexual violence and rape

A female motorcycle taxi driver was diverted by a male passenger to a remote location, where he knocked off her helmet with a blow to the head and used a broken bottle and threats to force her to perform oral sex.  Prosecutors charged him with (1) physical violence, (2) psychological violence, (3) sexual violence, and (4) threats.  Notably, prosecutors dropped the physical and psychological violence charges, explaining that (1) the helmet had protected the victim from any “visible injuries legally diagnosable through a medical examination,” and (2) it was not possible to show that she was “psychologically impacted by the events,” given that they “occurred for the first time and not in a manner continuous or permanent in time.”  The defendant pled guilty to sexual violence and threats, and was sentenced to 100 months of imprisonment.  On a constitutional appeal to the Supreme Court, the defendant argued that sexual violence and threats were impossible to prove in the absence of physical or psychological violence.  The Supreme Court rejected the appeal.  Citing various sources, the Court declared that “the nucleus of the crime of sexual violence is the infringement of a woman’s right to decide upon her sexuality voluntarily and freely.”  The Court noted, moreover, that threats were a form of violence sufficient to prove sexual violence under the statutory definitions.  This case is important because it makes clear that neither physical nor psychological violence is required in order to establish the commission of sexual violence.    



Sentencia nº 393 de Tribunal Supremo de Justicia Tribunal Supremo de Justicia (2016)

Sexual violence and rape, Statutory rape or defilement

A 13-year-old girl reported having consensual sex with her 26-year-old boyfriend.  He was charged under a statute that outlaws sexual relations, even without violence or intimidation, to the detriment of a woman who is “vulnerable” because of her age.  The trial court convicted the defendant, finding the girl “vulnerable” based on psychological evaluations.  On appeal, the court of appeals focused on the girl’s “discernment” to “decide concerning an active sexual life.”  The court of appeals then found the girl not “vulnerable” in light of her testimony that she consented to the alleged crime.  The court thus vacated the conviction.  The court of appeals also found that the psychological evaluations had “nothing to do with” the issue, because they did not focus on the girl’s “discernment,” but rather on her emotional state, which, in any event, was caused by “rigid standards and values” at home and the “the presence of a controlling feminine figure” (her mother), and not by the relationship with the boyfriend.  Because the couple had been dating for four months before deciding “by mutual accord” to have sex, the court found that the boyfriend had not taken advantage of the girl.  Prosecutors then brought a cassation appeal to the Supreme Court, arguing that the court of appeals had misinterpreted and misapplied the statute.  Although the Supreme Court also focused on the “degree of discernment or maturity possessed by the victim to make decisions regarding her sexual freedom,” the Court also held that the girl’s emotional state was essential to the analysis of her vulnerability and her ability to give “free consent,” because “emotions are determinants” that “directly influence human behavior.”  The Supreme Court thus remanded the case to a new appeals panel, with directions to rehear the defendant’s appeal in a manner consistent with the Court’s opinion.    



Sentencia nº 235 de Tribunal Supremo de Justicia Tribunal Supremo de Justicia (2016)

Sexual violence and rape

In the predawn hours of a Sunday morning, police officers came upon a cab parked in a secluded location.  A woman (apparently an adolescent) emerged from the car naked and told the officers she was being raped by the driver, who was found with his pants down.  Prosecutors charged the driver with attempted sexual violence.  After the driver pled guilty and was sentenced to 50 months of imprisonment, the victim appealed the classification of the offense and prosecutors opposed the appeal.  Based on evidence in the record, the court of appeals modified the conviction to sexual violence, doubling the time of the prison sentence.  On the driver’s cassation appeal, the Supreme Court held that, by upgrading the conviction beyond the driver’s plea, the modification denied the driver the opportunity to present a defense and thus violated his right to due process.  The Supreme Court accordingly vacated the modification and remanded the case for rehearing of the victim’s appeal. 



Sentencia nº 660 de Tribunal Supremo de Justicia (Número de Expediente: C15-3) Tribunal Supremo de Justicia (2015)

Sexual violence and rape, Statutory rape or defilement

A 12-year-old girl with the cognitive ability of a nine-year-old reported that she had had consensual sex with her boyfriend and separately with his roommate, both adult males.  A medical exam confirmed she had engaged in intercourse.  The roommate came forward to the police, saying that he wished to clear his name and felt “remorse” because he “had been with” the girl.  The two men were charged under a statute that outlaws sexual relations, even without violence or intimidation, to the detriment of a woman who is “vulnerable” because of her age.  A girl under 13 is per se vulnerable under the statute.  At trial, the girl’s mother and a psychologist testified that the girl had told them that she falsely accused the defendants because the real perpetrator, who had subsequently died, had threatened her.  But the psychologist further explained the girl’s contradiction was the product of cognitive limitations and did not mean that the defendants were innocent.  For his part, the roommate admitted that he had made the above-quoted statements to the police, but added that he made them under coercion.  Based on that admission, the trial court convicted the roommate and sentenced him to over 17 years of imprisonment.  The roommate appealed, arguing that the trial court failed to articulate the grounds for finding each element of the alleged offense.  The appellate court denied the appeal in a conclusory opinion.  On a cassation appeal, the Supreme Court agreed with the roommate’s argument, vacated the appellate decision, and remanded the appeal for rehearing before a different appellate court.   



Clark v. Clinton-Johnson Supreme Court of Liberia (2015)

Sexual violence and rape

The Act Creating Criminal Court E, Section 25.3(a), requires magistrates to forward a case alleging a sexual offense to the circuit court within 72 hours of arrest without first investigating the charge. However, the Constitution of Liberia, Article 21(f), requires courts in general criminal matters to conduct an investigation, known as a preliminary examination, within 48 hours to determine whether a prima facia case exists, thereby prohibiting preventively detaining the accused. The petitioner was arrested for rape, and the magistrate forwarded the case to the circuit court without first conducting a preliminary examination. The Supreme Court of Liberia held that forwarding such a case to the circuit court under the Act does not violate the Constitution, notwithstanding the additional time and its potential characterization as preventive detention, because magistrate courts are not equipped to protect witnesses from public exposure and the psychological harm resulting from directly facing the defendant. The objective of promoting witness protection having outweighed the additional time required by forwarding such cases to the circuit court, the Constitution is not violated, and Section 25.3(a) stands.



Application by Court of First Instance Court to Annul a Certain Criminal Provision Constitutional Court (2016)

Sexual violence and rape, Statutory rape or defilement

The Turkish Criminal Code, Article 103, Number 5237, provides sentencing for child sexual abuse without graduating the sentence in proportion to the child’s age. The Bafra High Criminal Court applied to the Constitutional Court to annul this provision, and the Court annulled the following two provisions: (1) child sexual abuse carries a sentence between eight and fifteen years; (2) child sexual molestation carries a sentence between three and eight years. The Court reasoned that the legislature may consider the country’s moral values and social and cultural structure in determining the punishment, and while heavier sentences for crimes against younger children who are more vulnerable to sexual assault would be reasonable, the Court opined that in some cases the crime and the punishment might not be proportional, which would violate the “state of law” principle. Therefore, the Court annulled the sentencing guidelines, effective six months following publication in the Official Gazette.



Warren v. R. Court of Appeal (2015)

Sexual violence and rape, Statutory rape or defilement

The applicant was convicted in the Circuit Court of Kingston for the offences of indecent assault, incest and assault. Later, a single judge granted leave to appeal and granted legal aid to the appellant. The prosecution conceded that the learned trial judge erred in imposing a sentence of 15 years imprisonment in respect of the incest charge, under the Child Care Protection Act of 2004, because the appellant was actually charged under the Incest (Punishment) Act, which establishes as maximum penalty for the crime is five years. As a consequence, the appeal against the sentence was allowed on the incest charge and this was set aside and substituted for five years imprisonment. The Court didn’t take into account, nor studied, the possibility of amending the indictment due to the specific circumstances and seriousness of the case, that is, the fact that the appellant sexually assaulted an underage girl on more than one occasion, and also, according to the evidence, threatened her to kill her if she made him go to prison.



Hall v. R. Court of Appeal (2014)

Sexual violence and rape, Statutory rape or defilement

The appellant was charged for carnal abuse of a girl under the age of 12 years and buggery. On 20 April 2009, the appellant was convicted for carnal abuse (but not for buggery). On 9 November 2010 the appellant filed for leave against the conviction and the sentence. He argued in his appeal that the trial judge was obliged to give the jury a separate and distinct warning related to the dangers of convicting relying solely on the uncorroborated evidence from children (in addition to the warning she gave them in relation to the dangers of convicting relying solely on the uncorroborated evidence of complainants in sexual cases).  However, the Court decided that it’s entirely within the discretion of the trial judge to determine (taking into account the content and manner of the witness’ evidence, the circumstances of the case and the issues raised), whether to give any warning at all, and if so, in what terms. As a result, in exercising her discretion, the judge decided the girl’s age did not warrant a specific, separate warning other than the one given related to the danger of acting on uncorroborated evidence in a sexual case.



Blake v. R. Court of Appeal (2015)

Sexual violence and rape, Statutory rape or defilement

The applicant pleaded guilty before the Circuit Court of Westmoreland for the offence of having sexual intercourse with a girl under the age of 16, in violation of section 10(1) of the Sexual Offences Act. He was in a serious relationship with the underage girl, but the matter was brought to the attention of the police when the complainant discovered she was pregnant and there was a dispute regarding the defendant’s paternity (tests showed he indeed was the father). He then argued that he was lured and tempted by the complainant, who would attend to his shop in revealing clothes and make sexual advances to him. The grounds for the defendant’s application was that the four-year sentence was manifestly excessive and that the judge was obliged to indicate, as a matter of law, the sentence that would have been imposed if the applicant had been convicted at trial and use that as a starting point for taking into account the fact that the applicant had plead guilty. In addition, his counsel highlighted as mitigating factors: the girl was just six months away from the age of consent and the sexual intercourse was consensual. His counsel also argued that the judge did not take into consideration the character and antecedents of the applicant, as well as the classic sentencing principles of retribution, deterrence, prevention and rehabilitation. However, the Court decided that, although the indication of a starting point for sentencing would have been desirable, they do not see the omission as being fatal to the reasoning underlying the sentencing. They also highlighted that it’s clear that Parliament has recognized this offence as a serious one, and their commitment against it. This case is particularly important because the Court stated that Jamaica has particular difficulties in dealing with offences involving young girls constantly being abused and exploited by older men, and that they have to get the message out that the children must be allowed to transition into adulthood without any molestation. Furthermore, the court stated that the pregnancy of the girl must not be taken as a mitigating factor, because that would send the message that a man who gets the girl pregnant is likely to be treated more favorably by the Court. Finally, the Court insisted that these pronouncements, in the context of the alarming local circumstances, should be guiding principles in sentencing these matters and cases.



Fletcher v. R. Court of Appeal (2015)

Sexual violence and rape, Statutory rape or defilement

On 29 July 2009, the applicant was convicted in the Home Circuit Court for rape of a 17-year-old girl. She claimed that he hauled her to the back of an abandoned house while asking her indecent questions and threatening her, and then proceeded to forcibly have sexual intercourse with her. He confirmed that they had had sexual intercourse in the yard of a building, but claimed they were in a long-term relationship. As to prove this, a witness testified that the applicant introduced the complainant to her as his girlfriend. However, her testimony was contradictory and unclear. His application for leave to appeal was heard and refused by a single judge of the Supreme Court of Criminal Appeal. He then renewed application for leave to appeal, arguing that the learned trial judge failed to adequately address questions raised by the jury during their deliberations, only giving them broad and general directions concerning their role and legal duty. His application for leave to appeal was again refused by the full Court. The application was denied because the court determined that the lower court made an accurate comparison of precedents offered, and that the trial judge’s jury direction was appropriate and within the acceptable parameters of what has become known as the Watson direction (as established by the English Court of appeal in the case R v. Watson). The judge was found to have avoided giving the jury any hint of pressure, correctly advised them to apply both their individual and collective experiences, and urged them to share their perspectives, but also to be willing to adapt to the other’s view if they agreed.



Squire v. R. Court of Appeal (2015)

Sexual violence and rape, Statutory rape or defilement

On 24 May 2013, the applicant was found guilty of the abduction and rape of a 14-year-old girl. He had a good relationship with the parents of the girl and thus was a trustworthy person to her. The applicant’s first appeal application was denied. He renewed his application and the Supreme Court of Criminal Appeal granted the application. This time his conviction was quashed, the sentences were set aside, and the Court ordered a new trial at the next sitting of the Circuit Court. The applicant criticized the quality of the representation given by his counsel at the trial, arguing that his attorney did not provide an adequate defense and did not take full instructions from him. The attorney defending the applicant at the first trial argued that the applicant was properly defended, that the prosecutor also submitted that the defense was adequate and that, as the case turned on the contest of credibility between the complainant and the applicant, the jury’s verdict would have been the same, regardless of any omission by the defense counsel at the trial. Despite the seriousness of the alleged crime, the Court held that the applicant was denied the substance of a fair trial and quashed the conviction, setting aside the sentences, without doing a balancing test between the rights of the 14-year-old girl who was a victim of a crime, and the sex offender’s due process rights.



NJA 2016 s. 819 Högsta domstolen (Supreme Court) (2016)

Sexual violence and rape

Two men were traveling in a car with a sleeping woman.  While the woman was still asleep, and under the influence of narcotics, the defendants raped her.  Both were convicted of rape.  One of the defendants appealed his conviction to the Supreme Court, which found that, because the defendant raped the woman and subsequently helped his co-defendant move the woman from the front to the back seat of the car for the purpose of raping her, he was properly convicted.  Swedish law classifies multiple acts of rape from multiple persons as aggravated rape.  Here, the defendants committed some of the acts together and the individual acts in succession, so the acts were viewed as aggravated rape.



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).



NJA 2015 s. 1024 Högsta domstolen (Supreme Court) (2015)

Sexual violence and rape

Defendant, an 18-year-old man, was convicted of rape and sentenced to one year in prison. The question for the Supreme Court was whether the jail sentence was too long, given the defendant’s age. The Supreme Court noted that that the punishment for rape of the “normal degree” (Sw. normalgraden) is between two and four years’ imprisonment.  Normally, courts reduce jail sentences by fifty percent when the defendant is 18 years old.  However, for long jail sentences, the courts have discretion to further reduce the punishment.  The court also recognized that punishments other than jail sentences also may be considered. Given the crime, the court determined that community service was inappropriate, but reduced the defendant’s sentence to probation and three months’ imprisonment.  Though rape is a serious offense, the Supreme Court adhered to the principle that imprisoning young individuals should be avoided, to the extent possible.



RH 2010:6 Svea hovrätt (Svea Court of Appeal) (2010)

Sexual violence and rape

The defendant was charge with sex crimes, including: (1) rape of woman A, (2) sexual coercion and rape of woman B, and (3) sexual coercion and attempted rape of woman C.  It was alleged that the defendant assaulted all three women while he was highly intoxicated.  The district court convicted the defendant on all charges, but the Court of Appeal reversed the convictions on the charges related to women B and C.  Regarding woman A, however, the Court of Appeal affirmed defendant’s conviction because, at the time of the rape, woman A was in a helpless condition and asleep from intoxication.  Although the defendant argued that he should not be held liable because he was intoxicated, the court rejected his defense.  The Court of Appeal recognized that the law classifies rape as less severe if there is no penetration, or that the penetration was brief and interrupted after the victim wakes up and objects to having intercourse, no such mitigating circumstances were present. Consequently, the defendant was convicted of rape of the “normal” degree (Sw. av normalgraden).



NJA 2017 s. 316 Högsta domstolen (Supreme Court) (2017)

Sexual violence and rape, Statutory rape or defilement

K.K. had sexual intercourse with a 14-year-old child. The issue before the court was whether KK had reasonable reason to believe that the child was under the age of 15 and, thus, whether the sexual act constituted rape against a child.  The child (Sw. målsäganden) initially lied about her age to K.K. but, according to her own testimony, she revealed her true age to KK before they had sex.  The Supreme Court concluded that the child’s age was unclear and, in any event, that her testimony was not trustworthy because the defendant’s attorney was not present when she was initially questioned and she was not subject to cross examination. As a result, the Supreme Court held that evidence was insufficient to support a conviction.



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.



Mougdiel S.M., Case No. APN-135-15 Tribunal de Sentencia de Ahuachapan (2015)

Sexual violence and rape, Statutory rape or defilement

This case is an appeal from a judgment by a lower court.  Judge Delmy Elizabeth Mejia Salazar found Alvin, a 27-year-old farmer originating from Concepcion de Ataco, guilty of attempted rape of a minor (11 years old) in violation of articles 159 and 172 of the El Salvadoran criminal code, and sentenced Alvin to seven years imprisonment.  In the underlying case, the victim testified that Alvin forced her into a crawling position, raped, and sodomized her.  On appeal, Alvin argued that the sentencing judge did not properly apply article 179 of the criminal code of procedure as the evidence presented by the forensic expert did not show any injuries in support of a finding of rape and/or sodomization.  On appeal, the court emphasized that the medical examination was conducted a month and a half after the attempted rape and sodomization, which provided sufficient time for any injuries to heal.  The court further stated that article 159 of the penal code does not require the use of violence and indicated that not every attempted violation will leave physical evidence (e.g., if the victim has a passive reaction to the aggression which does not result in the use of force).  Additionally, Alvin did not deny attempting to sexually assault the victim by putting her in a crawling position.  Thus, the appellate court upheld the trial court’s ruling and sentence, which was shorter than the eight years imprisonment recommended by the relevant statute.



F.A.P.A., Case No. 191-09-2016 Tribunal de Sentencia de Chalatenango (2016)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

F.A.P.A., the defendant, was a 54-year-old unmarried Salvadoran farmer residing in La Reina, El Salvador. At the time of the allegations giving rise to the case, he was receiving treatment for epilepsy.  An evening, F.A.P.A. visited his niece.  F.A.P.A. and his niece, a minor, were sitting on a couch watching television when his niece’s mother left the room to attend to her other children.  During that time, F.A.P.A. engaged in sexual behavior with his niece against her will by touching her genitals and kissing her in the mouth.  F.A.P.A. was subsequently arrested by Salvadoran police officers for sexually harassing his niece.  F.A.P.A. later confessed to these underlying facts.  Section 165 of the El Salvadoran Penal Code states a person is liable for sexual harassment when that person (1) engages in sexual behavior involving phrases, touching , signs, or other unequivocal conduct of a sexual nature or content, (2) the action is undesired by the person who receives it, (3) the action does not constitute a more serious sexual offence, (4) in the case of a person of legal age, the action is repeated, and (5) the action is intentional.  The court found that F.A.P.A.’s confession of intentionally touching his niece’s genitals and kissing her against her will satisfies the elements of sexual harassment.  Although F.A.P.A. was being treated for epilepsy, the court found that he was capable of distinguishing right from wrong and acted consciously.  The court found F.A.P.A. guilty of sexual harassment punishable by two years imprisonment.  However, in lieu of the prison sentence, the court exercised its discretion under articles 77 and 79 of the Penal Code and sentenced F.A.P.A. to two years of probation with the following restrictions: (1) prohibition from leaving the country; (2) prohibition from approaching the victim or her family; (3) prohibition from ingesting intoxicating drinks; and (4) will be under probationary surveillance.



Luis Alonso G.P., Case No. 145-2016-3 Tribunal Segundo de Sentencia de San Salvador (2017)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

In May 2015, a girl purchased bread from Defendant Luis Alonso, a 50-year-old baker, at his home.  While the girl was at Luis’ home, Luis physically attacked her and stated that he would “rape her.”  Although Luis did not carry out his threat, he threatened the girl that if she reported him, she would pay and that he would continue to harass her and physically assault her every time he saw her on the street.  In February, 2016, the girl was approached by Luis in a small town in Ciudad Delgado and was afraid that Luis would sexually assault her again so she reported the previous events to patrolling officers.  The patrolling officers arrested Luis for sexual harassment.  Section 165 of the El Salvadoran Penal Code provides that a person is liable for sexual harassment—punishable by three to five years imprisonment—when that person engages in unwanted sexual conduct involving phrases, touching, signs or other unequivocal sexual conduct that does not in itself constitute a more serious offense.  The court found that the defendant Luis Alonso sexually harassed the girl in violation of article 165.  The court replaced the three-year prison sentence with 144 days of community service and ordered that Luis pays the victim a civil penalty of $300.



Juan Carlos F.G., Case No. 18-2016-3 Tribunal Segundo de Sentencia de San Salvador (2017)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

Defendant Juan Carlos, a member of a gang known as the Mara Salvatrucha (MS), was arrested for sexually harassing and detaining a 16-year-old girl.  The victim was waiting for a bus an early afternoon when the defendant snatched her bag, attempted to kiss her, grabbed her by the neck, and forced her into a restaurant.  When the victim attempted to run away, the defendant pursued her and forcibly took her into a house where the defendant detained her in a room.  An anonymous individual in the neighborhood informed the police that the defendant was holding a girl captive.  Police officers entered the house and arrested the defendant.  Section 165 of the El Salvadoran Penal Code  provides that a person is liable for sexual harassment when that person engages in unwanted sexual conduct involving phrases, touching, signs or other unequivocal sexual conduct that does not in itself constitute a more serious offense.  Sexual harassment is punishable by three to five years of imprisonment.  Section 165 further provides that sexual harassment against a child under the age of 15 is punishable by eight years imprisonment.  Additionally, Section 148 of the El Salvadoran Penal Code provides that a person is liable for deprivation of freedom when that person deprives another of his or her individual liberty.  The crime of deprivation of freedom is punishable by three to six years imprisonment. The court found that the defendant sexually harassed the victim in violation of article 165 and deprived the victim of her freedom in violation of article 148.  Because the defendant performed multiple crimes, he was sentenced to 10 years 8 months of imprisonment. Three years of this sentence are attributable to sexual harassment, five years attributable to deprivation of freedom, increased by 1/3 for depriving a minor under the age of 18 of her liberty.  



Prosecutor's Office v. A.P. Ustavni Sud Bosne i Hercegovine (Constitutional Court of Bosnia and Herzegovina) (2004)

International law, Sexual violence and rape, Trafficking in persons

In 2002, the Basic Court in Doboj convicted A.P. of Trafficking of Minors for the Purpose of Prostitution under Article 188 of the Criminal Code of the Republika Srpska.  The Court sentenced A.P. to two years’ imprisonment and prohibited him from operating a catering business for five years.  A.P. appealed his conviction to the Supreme Court of the Republika Srpska and then to the Constitutional Court of BiH.  He argued his right to a fair trial under the Constitution of BiH and the European Convention on Human Rights had been violated because he did not have an opportunity to cross-examine the victims at his trial.  Instead, the statements of the victims were read aloud in court.  The Constitutional Court of BiH found that, despite A.P. not having an opportunity to cross-examine the victims, his right to a fair trial had not been violated.  First, the victims were not present at A.P’s trial because they are foreign nationals who no longer resided in the Republika Srpska.  Second, the victims gave their testimony in person during preliminary criminal proceedings, and A.P. was allowed to refute the statements at his trial.  Third, the judgment of the Basic Court was not based solely on the victims’ statements, but also on the testimony of a third witness – who had paid to have sex with one of the victims at A.P.’s establishment – and material evidence.  

Decision available in English here.



Prosecutor's Office v. Nermin Ćupina Ustavni Sud Bosne i Hercegovine (Constitutional Court of Bosnia and Herzegovina) (2006)

Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

In 2002, Nermin Ćupina (“Ćupina”) recruited two underage girls and one woman and forced them, through threats of violence to them and their family members, to provide sexual services for money.  Each day, the victims were forced to earn KM 400 through prostitution, all of which Ćupina kept.  The Court of BiH sentenced Ćupina to 12 years’ imprisonment, which it added to Ćupina’s four-year prison sentence from the Cantonal Court in Mostar, resulting in a single sentence of 14 years’ imprisonment after credit for time served.  In addition, in accordance with Article 110 of the Criminal Code of BiH, the Court of BiH confiscated the material gain Ćupina acquired through his criminal enterprise.  The court, relying on the findings of an expert, established that Ćupina made at least BAM 100,000 in 2002 by prostituting the victims.  The court also concluded that because neither Ćupina nor his wife had regular income during 2002, the construction of an apartment valued at BAM 61,481.55 was financed entirely from Ćupina’s criminal enterprise.  The Court of BiH confiscated the apartment and ordered Ćupina to pay the remainder of the estimated material gain, BAM 38,518.45.

Decision available in English here.  



Prosecutor's Office v. Tasim Kučević Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2009)

Sexual violence and rape, Trafficking in persons

Between May 2003 and June 2005, Tasim Kučević (“Kučević”) and his common law wife, Meliha Pjević (“Pjević”), procured and exploited at least six women by forcing them to dance and serve cocktails at their hotel and provide sexual services to customers.  Through advertisements for dancing positions in Spain and Serbia, the couple enticed four women from Russia and Ukraine to come to Serbia; the victims were then trafficked to BiH.  By taking advantage of a Bosnian woman’s drug addiction and a Romanian woman’s illegal immigrant status in BiH, Kučević and Pjević forced two other women into prostitution at the same hotel.  Eight of Kučević’s acquaintances supervised the women, guarded the hotel, and ran the prostitution business.  In 2007, the Court of BiH convicted Kučević and Pjević of Organized Crime in conjunction with Pandering.  In 2009, a panel of the Appellate Division convicted Kučević and Pjević of Organized Crime in relation to Trafficking in Persons in violation of Articles 250(3) and 186(1) of the Criminal Code of BiH.   The panel, taking into consideration extenuating and aggravating factors, sentenced Kučević and Pjević to 12 and six years’ imprisonment, respectively.  The two were also forced to forfeit the material gain from their criminal enterprise, BAM 286,440.  Lastly, the eight men who assisted Kučević and Pjević in trafficking and exploiting the women were convicted of the same charges and sentenced to between three months’ and four years’ imprisonment.

Second instance verdict available in English here.



Prosecutor's Office v. Mario Ćosić Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2016)

Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

From mid-2007 until September 2012, Mario Ćosić and four acquaintances enticed at least six women to travel to BiH to work at a restaurant Ćosić operated.  Ćosić himself would often travel to Serbia to recruit women.  Once in BiH, the women – nationals of Moldova, Serbia, Ukraine, and Russia – were forced to provide sexual services for money at the restaurant.  In addition, a seventeen-year-old waitress employed by Ćosić provided sexual services for guests in exchange for money, half of which Ćosić kept.  Ćosić was charged with International Enticement to Prostitution under Article 187(1) of the Criminal Code of BiH and Enticing a Juvenile into Prostitution under Article 210(4) of the Criminal Code of the Federation of BiH.  In December 2016, Ćosić, facing up to 40 years in prison, entered a plea agreement to the above charges, under which he will serve 20 months in prison.  One of Ćosić’s coconspirators, Miroslav Čosić, similarly pleaded guilty to International Enticement to Prostitution in exchange for a six-month prison sentence.



Prosecutor's Office v. Radovan Stanković Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2007)

Gender violence in conflict, International law, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

In the summer of 1992, during an assault on the non-Serb civilian population of Foča in the early months of the Bosnian War, Radovan Stanković, a member of the Republika Srpska Army, established a small detention center for women at an apartment known as “The Brothel.”  He and others brought at least nine non-Serb females, most of whom were minors, to the apartment and detained them there.  Between August and November 1992, Stanković repeatedly raped one woman and her underage sister and incited other soldiers who visited the apartment to rape the detainees.  In addition, Stanković forced the victims to perform physical labor, including cooking for the soldiers, washing the soldiers’ uniforms, and bathing the soldiers.  In 2002, Stanković was arrested by the NATO peacekeeping force, KFOR, and transferred to the ICTY.  The ICTY referred Stanković’s case to the Court of BiH in 2005.  One year later, the Court of BiH convicted Stanković of Crimes against Humanity (enslavement, imprisonment, torture, and rape) under Article 172(1) of the Criminal Code of BiH and sentenced him to sixteen years imprisonment.  In 2007, a panel of the Appeals Division increased the prison term to twenty years.  Stanković appealed his sentence, which the ICTY and The Hague Court of Appeal upheld.  This case is notable because it was the first time the ICTY referred a case to a court of national jurisdiction.

Second instance verdict available in English here.



Prosecutor's Office v. Gojko Janković Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2007)

Gender violence in conflict, International law, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Between April 1992 and November 1993, during the Bosnian War, Gojko Janković, a paramilitary leader within the Srpska Republika Army, participated in a widespread and systematic attack on the non-Serb civilian population of Foča.  Janković’s unit methodically captured civilians, detained them separately according to gender, and killed dozens of men.  During this time, Janković raped at least five girls and women; the soldiers under his command raped scores more.  In addition, Janković and a co-perpetrator kept two teenage girls in sexual slavery at a nearby house for over one year.  In 2005, Janković voluntarily surrendered and was transferred to the International Criminal Tribunal for the Former Yugoslavia (“ICTY”).  Shortly thereafter, the Referral Branch of the ICTY referred Janković’s case to the Court of BiH.  In 2007, the Court of BiH found Janković guilty of Crimes against Humanity under Article 172(1) of the Criminal Code of BiH and sentenced him to 34 years imprisonment.  In 2010, Janković appealed his conviction to the ICTY, arguing the Court of BiH convicted him under a law, the Criminal Code of BiH, which did not exist at the time his crimes were committed.  The ICTY denied his appeal.

Second instance verdict available in English here.



Prosecutor's Office v. Radmilo Vuković Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2008)

Gender violence in conflict, Sexual violence and rape

In 2007, the Court of BiH found Radmilo Vuković, a member of the Republika Srpska Army, guilty of War Crimes against Civilians under Article 173(1) of the Criminal Code of BiH for raping a Bosnian woman at least six times between June and August 1992, the early months of the Bosnian War.  In 2008, a panel of the Appellate Division acquitted Vuković of these charges, finding the testimonies of the claimant and her sister to be inconsistent and thus not credible.  First, the Court noted factual inconsistencies between the testimony of the claimant and her sister (e.g., the date of the first assault, whether the claimant told her mother of the assault).  Second, the Court found the testimonies of the claimant and her sister were inconsistent with prior statements they had given in 1994 and 2001.  Third, the Court noted that two defense witnesses testified that Vuković and the claimant were cohabiting partners engaged in an extramarital affair before the Bosnian War (however, the claimant denied any relationship).  Lastly, the Court questioned why the claimant did not obtain an abortion to terminate the pregnancy resulting from the alleged rape once she was in safe territory.  This case is notable because of the demanding standard set by the court regarding the testimony of rape victims: “The testimony of the injured party must not raise any suspicion as to its exactness and truthfulness, credibility and integrity of the witness exactly because the act of rape, as a rule, is never attended by a witness who might decisively support the testimony of the injured party.”  This case is also notable because the Court considered the claimant’s decision to not have an abortion to be evidence that a rape had not occurred.

Second instance verdict available in English here.



Prosecutor's Office v. Predrag Kujundžić Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2010)

Gender violence in conflict, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

From the spring of 1992 to the autumn of 1993, during the Bosnian War, Predrag Kujundžić, a commander in the local military and later police force, led several attacks against non-Serb civilians in Doboj.  During that time, he incited, aided, and abetted the murder, rape, imprisonment, and persecution of non-Serb civilians.  In addition, from June to December 1992, Kujundžić forced a Muslim minor into sexual slavery by use of force and threats to kill the victim’s mother and younger sister.  Kujundžić repeatedly raped the victim, forced her to have sexual intercourse with soldiers, and controlled every aspect of her life.  In 2009, the Court of BiH found Kujundžić guilty of Crimes against Humanity under Article 172(1) of the Criminal Code of BiH.  The Court found several aggravating circumstances present in Kujundžić’s case, including Kujundžić’s status as a commander, the motives for the attack, the large number of victims, and the fact that the victim of rape and sexual slavery was a minor.  The Court accordingly sentenced Kujundžić to 22 years imprisonment.  A panel of the Appellate Division later reduced his prison sentence to 17 years.

Second instance verdict available in English here.



Prosecutor’s Office v. Ćerim Novalić Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2011)

Gender violence in conflict, Sexual violence and rape

In September 1992, during the Bosnian War, the Army of BiH attacked Serb houses in the village of Džepi.  During this assault, Ćerim Novalić and an unidentified soldier entered a home to see if the couple was hiding Serbs.  While the unidentified soldiers interrogated the husband about his neighbors of Serb ethnicity, Novalić forced the wife into an upstairs room and raped her.  In 2010, the Court of BiH found Novalić guilty of a War Crime against a Civilian under Article 173(1) of the CC BiH and sentenced him to seven years imprisonment.  The following year, a panel of the Appellate Division of the Court of BiH revised Novalić’s conviction, finding him guilty under Article 142(1) of the Criminal Code of the Socialist Federal Republic of Yugoslavia, the law in effect at the time of Novalić’s crime.  The Appellate Panel considered the “extremely humiliating manner” in which Novalić raped the victim – her underage children and mother-in-law were in an adjacent room and her husband was downstairs – and increased his sentence to eight years and six months imprisonment.  This is the upper-end of the typical prison sentence mandated by the Court of BiH for one count of rape during the Bosnian War.

Second revised verdict available in English here.



Prosecutor’s Office of Bosnia and Herzegovina v. Slavko Lalović Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2012)

Gender violence in conflict, Sexual violence and rape

In August 1992, during the Bosnian War, Slavko Lalović served as a security guard at an elementary school turned into a prison for unlawfully detained civilians in Kalinovik.  While on duty, Lalović allowed two soldiers from the Republika Srpska Army to enter the makeshift prison and rape a detained woman.  Lalović also treated detainees inhumanely on several occasions.  In 2011, the Court of BiH found Lalović guilty of War Crimes against Civilians under Article 173(1) of the Criminal Code of BiH.  The following year, a panel of the Appellate Division revised Lalović’s sentence, convicting him under the law in effect at the time the crimes were committed, Article 142(1) of the Criminal Code of the Socialist Federal Republic of Yugoslavia.  Lalović’s five-year prison sentence remained unchanged.  Notably, this is one of the few instances in which a person in a position of authority was found guilty by the Court of BiH of aiding and abetting a rape as a war crime during the Bosnian war.  

Second instance verdict available in English here.



Prosecutor’s Office v. Veselin Vlahović Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2014)

Gender violence in conflict, Sexual violence and rape

Between 1992 and 1995 during the Bosnian War, Veselin Vlahović a member of the Serbian paramilitary forces, committed various crimes against humanity against the civilian non-Serb population of Sarajevo, including murder, rape, physical and mental abuse, robbery, and enforced disappearance.  His crimes were so horrific that he was known by victims as the “Monster of Grbavica.”  In 2010, Vlahović was arrested in Spain and extradited to BiH.  In 2013, the Court of BiH found Vlahović guilty of sixty different crimes against humanity, including 35 murders and 11 rapes, as well as torture, imprisonment, and looting.  He was sentenced to forty-five years imprisonment.  In 2014, the Court of BiH acquitted Vlahović of one of the 60 counts of the indictment and reduced his prison sentence to 42 years.  Notably, Vlahović’s original prison sentence of 45 years was the maximum possible penalty and is the longest sentence handed down by the Bosnian war crimes court.

Second instance verdict available in English here.



Prosecutor’s Office of Bosnia and Herzegovina v. Bogdanović Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2015)

Gender violence in conflict, Sexual violence and rape

In May 1993, during the Bosnian War, Velibor Bogdanović, a member of the Croatian Defence Council, and five unidentified soldiers ransacked the home of a couple in Mostar.  The group stole jewelry from the home and took the husband to the local prison where he was unlawfully detained for 30 days.  In addition, Bogdanović raped the wife.  In 2011, the Court of Bosnia and Herzegovina (“BiH”) found Bogdanović guilty of War Crimes against Civilians under Article 173(1), as read together with Article 180(1) and Article 29, of the Criminal Code of Bosnia and Herzegovina (“CC BiH”).  In July 2015, the Constitutional Court of BiH overturned Bogdanović’s conviction, finding that it had been based on an inapplicable law.  And in September 2015, the Appellate Division of the Court of BiH revised Bogdanović’s sentence, finding him guilty of the criminal offense of War Crimes against Civilians under Article 142(1) of the Criminal Code of the Socialist Federative Republic of Yugoslavia.  The Court imposed the minimum sentence on Bogdanović – five years imprisonment – reasoning that the accused was a married father, that he had been 22-years-old at the time that he committed the crime, that he had committed no criminal offense since the war, and that he had apologized to the victim after the war and offered her assistance.

Revised second instance verdict in English available here.



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.



Levenstein v. Frankel Constitutional Court (2018)

Sexual violence and rape, Statutory rape or defilement

The case was initially brought to the High Court by individuals who had suffered childhood sexual molestation by the deceased, a prominent financier and philanthropist, in the 1970s and ‘80s. The applicants were unable to pursue criminal charges due of the effect of s18(f) of the Criminal Procedure Act 1997, which imposed a 20-year statute of limitations for most sexual offences (excluding rape, sexual trafficking, and using a child or a mentally disabled person for pornographic purposes). However, the High Court found s18(f) to be unconstitutional. The Constitutional Court affirmed, removing the statute of limitations for prosecuting all sexual offences.



AA v. Attorney General's Office, Case No. 328/2011 Criminal Appeals Court 2º Tº (2011)

Sexual violence and rape

The 28-year-old accused (AA) was sentenced to seven years and six months in prison by the Trial court for the crimes of rape, kidnapping and robbery. On March 27, 2011, AA approached the 18-year-old victim (BB) at a bus station and threatened her with a knife. BB offered him money, but AA put a knife to her throat and took her to a nearby field where he sexually assaulted her several times during several hours of the night, hit her repeatedly and also videotaped a sexual assault with his cellphone. AA then tied up BB and, before leaving her in the field, used BB’s cellphone to text her mother the location where BB could be found. He stole the cellphone and sold it at a fair. On July 22, 2011, AA was arrested. In his possession police found a memory card with pornography and the video of BB’s rape. The Appeals Court dismissed the appeal and affirmed the decision of the Trial Court. The Appeals Court amended the qualification of the crimes to aggravated. The Appeals Court also rendered opinion that the sentence imposed by the Trial Court should have been more severe due to the proven dangerous nature of AA.



AA v. Attorney General's Office, Case No. 6/2009 Criminal Appeals Court 2º Tº (2009)

Sexual violence and rape, Statutory rape or defilement

The accused (AA) was sentenced to three years and six months in prison by the Trial Court for the continuous sexual abuse of a 15-year-old girl (BB) and her kidnapping. AA sexually abused BB once a week since she was 11 years old. When BB was 15 years old, AA called her over to his house under false pretenses and then locked her inside against her will for six hours and raped her.  AA was drunk and when he got distracted, BB was able to escape and find a neighbor to help her.  The trial court determined that there was enough evidence to prove the kidnapping and that the sexual abuse was continuous.  The Appeals Court dismissed AA’s appeal affirming the decision of the Trial Court with the exception of its finding the rape as continuous sexual abuse. Based on the facts of the case, the Appeals Court qualified the sexual abuse as repetitive instead of continuous.  It also determined that AA’s inebriation was voluntary, and thus has no bearing on the sentencing.



AA v. Attorney General's Office, Case No. 359/2013 Criminal Appeals Court 1º Tº (2013)

Sexual violence and rape, Statutory rape or defilement

The accused (AA) was sentenced to four years in prison by the Trial Court for aggravated sexual abuse of a minor (BB). AA and the mother of BB had a common law marriage. AA had been sexually abusing BB since she was eight years old and started raping her when she turned 11.  At age 14, BB became pregnant as a result of rape committed by AA.  BB’s mother discovered AA’s abuse and filed the criminal complaint.  AA admitted being the victim’s “lover.”  The court considered the fact that AA took advantage of his domestic relationship with BB’s mother and abused his victim during the night aggravating circumstances.  AA’s confession was an attenuating circumstance reducing the sentence imposed.  The Appeals Court dismissed AA’s appeal and affirmed the decision of the Trial Court, ruling that there was enough evidence presented to establish the facts of the case.



2016 (A). No. 1731 Supreme Court of Japan (2014)

Sexual violence and rape, Statutory rape or defilement

The defendant committed acts of obscenity upon a young girl.  He alleged that it was only for a monetary purpose—to record the act and give the record to his acquaintance in return for receiving a loan —and that he had no sexual intent.  The defendant appealed the High Court’s ruling that sexual intent is not required to establish a prima facie case of indecent assault, which is proscribed by Article 176 of the Japanese Penal Code.  He argued that the High Court’s finding was inconsistent with a judicial precedent holding that sexual intent is an element for the crime.  The Supreme Court, upon noting that the scope of sexual crimes cannot be properly determined without taking into account the views of contemporary society, found that, in the present day, the focus should be on the existence, details, and extent of sexual damage caused to a victim rather than an assailant’s intent.  Thus, the Supreme Court, sustained the High Court’s finding and overturned the 47-year-old jurisprudence. The Court found that, while it could not deny that there may be a situation in which the sexual intent of a perpetrator becomes an important factor in finding the crime, it was not reasonable to uniformly require the existence of such a factor for the crime of indecent assault.  



Miloslav v. The People Supreme Court for Zambia (2014)

Sexual violence and rape

The appellant was charged with the offence of indecent assault on a female contrary to Section 137(1) of the Penal Code, Chapter 87 of the Laws of Zambia. The victim worked for the appellant as a maid when she was indecently assaulted. The appellant advanced four grounds of appeal: (i) the trial court erred when (i) it found the appellant had a case to answer at the close of the prosecution’s case; (ii) it convicted the appellant of the offence in the absence of corroborative evidence; (iii) the trial court erred when it convicted the appellant on the evidence of the victim who suffered from unsoundness of mind without satisfying itself that the victim understood the nature of an oath and was capable of giving rational testimony; and, (iv) it held that the findings in the medical report supported the prosecution’s evidence and when it held that the appellant had corroborated the evidence of the victim when he admitted touching the victim. The Court dismissed all grounds for appeal on the following bases: (i) the Court was satisfied that the victim’s testimony was presented in a very coherent manner and that the three ingredients of the offence had been established and that the victim’s testimony was not discredited at all; (ii) there was medical evidence which corroborated the crime as well as evidence that the victim did not consent to the indecent assault; (iii) the victim’s testimony was very consistent and was given with ‘lucid clarity’, therefore there was nothing in the victim’s testimony that could have compelled the trial court to conduct a voir dire; and, (iv) there was medical evidence which corroborated the victim’s testimony and there was no evidence of a romantic relationship between the parties which would indicate consent. Further, the Court held that, because of the ‘master and servant’ nature of the relationship, the minimum sentence of 15 years imprisonment was inappropriate and should be set aside and replaced by a sentence of 20 years imprisonment with hard labor effective from the date of conviction.



The People v. Mugala High Court for Zambia (2012)

Gender-based violence in general, Sexual violence and rape

The accused was charged with one count of rape contrary to Sections 132 and 133 of the Penal Code, Chapter 87 of the Laws of Zambia. The accused denied the charge. However, following the trial (during which the prosecution called five witnesses, and after considering the evidence of the accused which was given on oath), the trial magistrate found the accused guilty and convicted him of the subject offence. The case was then remitted to the High Court for sentencing pursuant to Section 217 of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia. Before passing any sentence, the Court was required to satisfy itself that the relevant legal and procedural provisions had been observed by the trial court. The Court held that there was medical evidence in support of the violent nature of the act as well as other corroborative evidence, such as the distressed state of the victim when she reported the act.  Furthermore, the Court concluded there was sufficient evidence in support of the identification of the accused by the victim including the trial magistrate’s finding that the victim was a truthful witness. On the totality of the evidence, the High Court held that the trial judge’s finding of guilt and the conviction was ‘anchored on firm ground’ and, therefore, concluded that it should be upheld. The High Court sentenced the accused to 25 years imprisonment with hard labor effective from the date of arrest.



Sikazwe v. The People Supreme Court for Zambia (2012)

Sexual violence and rape, Statutory rape or defilement

The appellant was charged with incest contrary to Section 159(1) of the Penal Code but was convicted of the lesser charge of indecent assault contrary to Section 137(1) as amended by Act No. 15 of 2005, Cap 871, as the medical evidence ‘left a lot to be desired’ (as described by the Magistrate). However, when the matter was sent to the High Court for sentencing, the sentencing judge substituted the charge of indecent assault with incest and sentenced the appellant to 20 years imprisonment with hard labor. The appellant appealed this conviction and sentence on the basis that the Magistrate “erred in law and fact when he tried and convicted the appellant without the Director of Public Prosecutions’ consent.” In support of this argument, the appellant noted that the instructions of the Director of Public Prosecutions were to try the appellant for rape not incest. Therefore, in the absence of express consent by the Director of Public Prosecutions as required by Section 164 of the Penal Code, Cap 871, the trial court had jurisdiction neither to hear the matter nor to proceed to convict the appellant on indecent assault and sentence him to 20-year term for incest. The Supreme Court reviewed the letter from the Director of Public Prosecutions and noted that, while the first paragraph gave the impression that he had sanctioned the prosecution to go ahead with the charge of incest, the remainder of the letter made it clear that he had also sanctioned the appellant’s prosecution on a charge of either rape or defilement. The Supreme Court also noted that the latter could potentially enable a conviction of indecent assault under the relevant provisions of the Penal Code. Thus, the Supreme Court confirmed that the Director of Public Prosecutions rightly guided the prosecution and the court below to invoke whichever of these provisions as necessary. Moreover, the Supreme Court stated that the Magistrate rightly concluded that ‘the medical evidence left a lot to be desired.’ Ultimately, it concluded that the appellant was not guilty of the offence of rape, but that he was guilty of the offence of indecent assault contrary to Section 137 of the Penal Code and that the sentencing judge was mistaken to sentence the appellant for incest. The Supreme Court quashed the incest conviction, but still upheld the conviction for indecent assault and imposed a 20-year prison sentence.



Habeenzu v. The People Supreme Court for Zambia (2012)

Sexual violence and rape

The appellant was charged in the Subordinate Court of attempted rape contrary to Section 137 of the Penal Code, Chapter 87 of the Laws of Zambia. The statement of offence read defilement, contrary to Section 138 of the Penal Code. The appellant was convicted of indecent assault, a minor offence per Section 181(2) of the Criminal Procedure Code. The appellant appealed on two grounds. First, the statement of offence was defective, as (i) it did not specify the offence by section and subsection of the provision of the law contravened, and (ii) it was amended late which was unjust. Second, on the available evidence, a court could not have properly convicted appellant for attempted rape or indecent assault because the allegation of attempted rape impliedly includes both an allegation of assault and of indecency; on the facts, there was only an element of indecency (and not assault). The Supreme Court rejected both grounds of appeal on the basis that: (i), indecent assault, attempted rape, rape and defilement are offences of the same genus and therefore a defendant charged with attempted rape may be convicted of a lesser related charge like indecent assault; (ii) the appellant had an opportunity to defend himself in relation to the alternative charge, so there was no constitutional violation of the fairness of the trial; and (iii) the findings of fact were in accordance with the evidence on the record, as the appellant was ‘caught in the act’ and there was medical evidence of injuries sustained by the victim. Accordingly, there was no reason to interfere with the findings of fact or the minimum sentence of 15 years’ imprisonment imposed by the sentencing judge. The Court dismissed the appeal.



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.



M.M. v. Minister of Home Affairs & 2 Others Supreme Court of Zimbabwe (2014)

Abortion and reproductive health rights, International law, Sexual violence and rape

This case was brought by the complainant, who was attacked and raped by robbers at her home.  She immediately reported the matter to police and requested a medical practitioner to prescribe emergency contraception.  The medical practitioner said he required the presence of a police officer to do so.  Because she was advised at the police station that the officer who had dealt with her case was not available, the victim returned to the hospital, where she was refused treatment without a police report.  The next day she went to the hospital with another police officer and was informed that the prescribed 72 hours had already elapsed.  When the complainant was confirmed pregnant, she indicated to the prosecutor that she wanted her pregnancy terminated, but was told that she had to wait until the rape trial had been completed.  She finally obtained the necessary magisterial certificate, but when she sought the termination, the hospital matron felt that it was no longer safe to carry out the procedure.  After the full term of her pregnancy, the complainant brought an action against the Ministers of Health, Justice and Home Affairs for pain and suffering endured as well as maintenance of the child.  The High Court dismissed her claim that the employees of the respondents had been negligent in their failure to prevent the pregnancy, and subsequently to facilitate its termination.  She appealed the decision to the Supreme Court, which determined the claim by applying the test for negligence, finding the doctor negligent for having failed to take reasonable steps to prevent the pregnancy and the police negligent for failing to timely take the victim to the doctor for her pregnancy to be prevented.  The Supreme Court recognized the relevance of regional and international human rights norms and standards, making reference to various provisions relating to the reproductive rights of women in CEDAW and the Maputo Protocol, but held that, pursuant to Constitutional terms, these cannot operate to override or modify domestic laws until they are internalized and transformed into rules of domestic law.  Furthermore, the Supreme Court determined that it was the responsibility of the victim of the alleged rape to institute proceedings for the issuance of a magisterial certificate allowing the termination of her pregnancy.  Ultimately, the Supreme Court partially allowed the appeal and granted the complainant general damages for pain and suffering arising from failure to prevent her pregnancy.  Although conceding that Zimbabwe’s Termination of Pregnancy Act is “ineptly framed and lacks sufficient clarity as to what exactly a victim of rape is required to do when confronted with an unwanted pregnancy,” the Supreme Court dismissed the complainant's claim for damages for pain and suffering beyond the time her pregnancy was confirmed and for the maintenance of her minor child, as the authorities could not be liable for not assisting her to terminate the pregnancy because they do not have any legal duty to initiate and institute court proceedings on her behalf. 



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.” 



TC/0003/17 Constitutional Court (2017)

Femicide, Gender discrimination, Gender-based violence in general, International law, Sexual violence and rape

Due to the increase of femicide crimes in the Dominican society, the Constitutional Court proclaimed the termination of violence against women in all its forms as it is a violation of the Constitution. The proclamation was made in commemoration of the murder of Mirabal, Minerva, Patria and María Teresa, political opponents of the regime of Rafael Trujillo, and in accordance with the international agreements executed in defense of women's rights, as well as the laws issued against gender violence, sexual violence and femicide. 

 

Debido al aumento de los delitos de femicidio en la sociedad dominicana, el Tribunal Constitucional proclamó el cese de la violencia contra la mujer en todas sus formas, incluyéndolo como una forma de violación de la Constitución. Dicha proclamación se realizó en conmemoración del asesinato de Mirabal, Minerva, Patria, y María Teresa, quienes fueron opositores políticos del régimen de Rafael Trujillo. La proclamación está en conformidad con los acuerdos internacionales celebrados en defensa de los derechos de las mujeres y con las leyes emitidas contra la violencia basada en género sexual, violencia sexual en sí, y femicidio.



Case of Joao María Dos Santos Supreme Court (1997)

Sexual violence and rape, Statutory rape or defilement

S.J.D.S and M.J.D.S (16 and 13 years old) were sexually abused by their father, Joao María Dos Santos on several occasions.  The victims testified that they were forced to have sexual relations with their father.  The accused admitted that he raped them.  The accused was sentenced to 16 years in prison.  His sentenced was confirmed by the Supreme Court in 1997.



Case of Alejandro Candia Criminal Appeals Court (2011)

Sexual violence and rape, Statutory rape or defilement

Two minor children, an eight-year-old boy and a twelve-year-old girl, were raped by their father, once and multiple times over several years, respectively.  The defendant was sentenced to 20 years in prison, but the Criminal Appeals Court reduced the sentence to 19.6 years in prison on October 11, 2001, after finding that the 20-year sentence was impermissible under Paraguay’s sentencing guidelines.



Case of W.F.C.M. and L.M.S.V., No. 556 Supreme Court (2005)

Gender-based violence in general, Sexual violence and rape, Statutory rape or defilement

L.M.S.V. and W.F.C.M were accused of sexual coercion against the victim L.del R.A., an 18 year old woman, who was sexually coerced by the two accused males with a knife.  The accused, who were minors, were sentenced to 3 years in prison.  L.M.S.V appealed and the Court of Appeals confirmed the lower court sentence.  Finally, L.M.S.V challenged the decision before the Supreme Court which partially overturned the decision.  The Supreme Court found that because L.M.S.V. was a minor at the time of the crime and, in order to hold minors criminally responsible, minors must have sufficient psycho-social maturity (“madurez sico-social”) to understand the criminality of their actions, the sentence should be reduced to two years in prison.  The court also ordered that during the probation period, L.M.S.V. must live no less than 10 kilometers away from the victim.



Case of Guido Arturo Villalba and Other Supreme Court (2016)

Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Clorinda Mora Romero was sentenced to jail for seven years and six months because the lower court of Asunción found that she was guilty  with her co-defendant Guido Arturo Villalba of human trafficking with the purpose of sexual exploitation.  She appealed the sentence, and the Court of Appeals rejected her motion, confirming the lower court sentence.  Finally, she challenged the decision before the Supreme Court, which dismissed the action in 2016.



Case of Juan Alveiro Gómez Supreme Court (1997)

Sexual violence and rape

In 1994, a married woman was sexually abused and raped by Juan Aveiro Gómez in her home.  Law 104 (dated December 17, 1990) modified Paraguay’s penal code to punish the rape of a married woman with prison.  The Criminal Appeals Court sentenced the defendant to 12 years in prison.  However, the Supreme Court reduced the sentence to eight years in prison on February 20, 1997.



Case of Derlis Mauro Rodríguez Rojas Criminal Appeals Court (2002)

Sexual violence and rape, Statutory rape or defilement

The child victim was sexually abused by Derlis Mauro Rodriguez.  The parents of the victim stated that the child was found with the defendant in an abandoned house while he was touching her.  Medical reports confirmed the defendant had been sexually abusing the victim.  The defendant was sentenced to fifteen years in prison, which was confirmed by the Criminal Appeals Court on April 16, 2002.



Case of Florencio Arias, et al. Criminal Appeals Court (2003)

Sexual violence and rape, Statutory rape or defilement

A nine-year-old girl was sexually abused by her father, Florencio Arias, on several occasions.  The defendant was sentenced to 10 years in prison, which was confirmed by the Criminal Appeals Court on April 25, 2003.



Rex v. Simelane High Court (2017)

Sexual violence and rape, Statutory rape or defilement

The accused was charged with rape of his seven-year-old granddaughter between the months of August to October 2008. The prosecution alleged that the accused did intentionally have unlawful sexual intercourse with a female seven-year-old minor who is incapable of consenting to sexual intercourse. The complainant, her brother who was sharing a bedroom with her during the rapes, the complainant’s aunt who the complainant first told of the rapes, a neighbor who had been told of the accused’s actions by his wife, the doctor who examined the complainant, and the constable all testified for the prosecution. The accused denied the charges and argued that all of the witnesses were lying, specifically that the children had been coached by the police. The Court discussed the elements that the Crown must prove in order for the accused to be found guilty of rape, namely (1) the accused must be identified; (2) there must be sexual intercourse; and (3) there must be lack of consent by the complainant. The accused was found guilty of rape. In sentencing, the Court found that the Crown proved that there were aggravating factors under Section 185(bis) of the Criminal Evidence Act (1938), namely, (1) the victim was a minor of a tender age; (2) the accused sexually assaulted the victim on more than one occasion; and (3) the accused stood in locus parentis to the victim and this abused the relationship of trust. The Court found the witnesses credible and found the accused guilty as charged.



A.S. v. J.O.B. and J.I.O. Court of Cassation (2008)

Sexual violence and rape, Statutory rape or defilement

The Court of Cassation confirmed a Court of Appeal judgment in a case of the rape of a minor where the question at issue was whether rape was to be considered to have taken place, in violation of Article 375 of the Penal Code, even if penetration was incomplete given the incomplete physical development of the child. The Court confirmed that rape is any act of sexual penetration of whatever kind and with whatever object that is committed on a person who does not consent to it.



J.E.R.A. v. Attorney General's Office Supreme Court (2009)

Sexual violence and rape

The defendant in this case sexually assaulted his stepdaughter, who was 12-years-old at the time. The defendant was sentenced to 15 years in prison for rape. During his appeal, the defendant argued that the trial court failed to legally assess all the evidence presented. During her initial testimony, the victim declared that it was her stepfather who had caused the sexual abuse apparent in her psychological and physical examinations. However, she recanted two months later and stated that the abuse had actually been inflicted by her boyfriend. Nonetheless, the trial court convicted the victim’s stepfather. On appeal the Court found no error. It reasoned that the timing between the contradictory declarations and, most importantly, the nature of the second declaration indicated that the first testimony was correct. The Court found that such a declaration was a product of the stepfather’s pressure as it lacked many details and appeared disingenuous. The Court dismissed the procedural challenge and confirmed the sentence. 

 

En este caso, el acusado agredió sexualmente a su hijastra, que tenía 12 años en ese momento. El acusado fue condenado a 15 años de prisión por violación. Durante su apelación, el acusado argumentó que el tribunal de primera instancia no evaluó legalmente todas las pruebas presentadas. En su testimonio inicial, la víctima declaró que fue su padrastro quien había causado el abuso sexual aparente en sus exámenes físicos y psicológicos. Sin embargo, ella se retractó dos meses después y declaró que el abuso había sido infligido por su novio. No obstante, el tribunal de primera instancia condenó al padrastro de la víctima. En la apelación, La Corte no encontró ningún error. Razonó que el momento entre las declaraciones contradictorias y, lo más importante, la naturaleza de la segunda declaración indicaban que el primer testimonio era correcto. El Tribunal determinó que la segunda declaración era producto de la presión del padrastro, ya que carecía de muchos detalles y parecía poco sincera. El tribunal terminó la apelación y confirmó la sentencia como decisión final.



J.A.C.Z. v. Attorney General's Office Supreme Court (2010)

Sexual violence and rape

The defendant in this case took a female victim by the mouth, put her against the wall and sexually abused her. Following trial he was sentenced to 10 years of imprisonment on for rape. His appeal advanced two primary arguments. The first argument was that the evidence presented in the case was contradictory and was not sufficiently reliable to convict him of rape. While some witnesses’ statements showed that the defendant grabbed the victim by the mouth, other witnesses suggested that he took her by the back. The Court dismissed this argument, finding that the relevant fact is that the accused used force to make the victim have sexual intercourse with him, and that fact constitutes the crime of rape. The defendant’s second argument was that physical exams of the victim revealed that she had an intact hymen. The defendant argued that the exam demonstrated the lack of any sexual abuse on his part. The Court disagreed and found that sexual abuse, included forced penetration, does not necessarily result in the breaking of a hymen. Therefore, the rape conviction was confirmed by the Supreme Court. 

 

El acusado en este caso agarró a la víctima por la boca, la puso contra la pared, y abusó sexualmente de ella. Después del juicio, él fue sentenciado a 10 años de prisión por violación. Su apelación adelantó dos argumentos principales. El primer argumento fue que las pruebas presentadas en el caso eran contradictorias y no eran lo suficientemente confiables para condenarlo por violación. Mientras que las declaraciones de algunos testigos mostraron que el acusado agarró a la víctima por la boca, otros testigos sugirieron que la tomó por la espalda. El Tribunal desestimó este contradiccion y concluyó que el hecho relevante es que el acusado utilizó la fuerza para que la víctima tuviera relaciones sexuales con él, y ese hecho automáticamente constituye el delito de violación. El segundo argumento de la acusada fue que los exámenes físicos de la víctima revelaron que tenía un himen intacto. El acusado argumentó que el examen demostró la falta de abuso sexual por su parte. El tribunal no estuvo de acuerdo y encontró que el abuso sexual, incluida la penetración forzada, no necesariamente resulta en la ruptura de un himen. Por lo tanto, la condena por violación fue confirmada por el Tribunal Supremo.



R.R.R. v. Attorney General's Office Supreme Court (2013)

Sexual violence and rape

The defendant invited a 16-year-old girl for a walk to a park, but refused to take her home when she requested. He instead took her to another residence and, along with other individuals, sexually assaulted her using force, insults and intimidation. The defendant was subsequently sentenced to 15 years imprisonment for rape. He appealed the sentence alleging that the facts demonstrated establish that the accused had only “sexual relations” with the victim and Honduras criminal law, rape necessitates acts beyond sexual relations; specifically, penetration, which he claimed was not demonstrated in the facts. The Court reasoned that “sexual relations” was not limited to penetration, but included penetration. Therefore the Court rejected the appeal. The case was dismissed and the sentence upheld.

 

El acusado invitó a una niña de 16 años a caminar al parque, pero se negó a llevarla a su casa cuando lo solicitó. Él, en cambio, la llevó a otra residencia y, junto con otros individuos, la agredió sexualmente usando la fuerza, insultos, e intimidación. El acusado fue posteriormente condenado a 15 años de prisión por violación. Apeló la sentencia alegando que los hechos demostrados establecen que el acusado solo tenía "relaciones sexuales" con la víctima y con la ley penal de Honduras, la violación requiere actos más allá de las relaciones sexuales. Específicamente, la violación require la penetración, que según él no se demostró en los hechos. El Tribunal razonó que las "relaciones sexuales" no se limitaban a la penetración, sino que meramente incluían la penetración, sin ser un hecho exclusivo. Por lo tanto, el Tribunal rechazó la apelación. El caso fue desestimado y la sentencia fue confirmada.



Affaire Songo Mboyo Tribunal Militaire de Garnison Mbandaka (2007)

Gender-based violence in general, International law, Sexual violence and rape

In December 2003, members of the Congolese army (FARDC) under the command of Lieutenant-Colonel Bokila Lolemi stationed in the village of Songo Mboyo mutinied over unpaid wages.  They targeted the local population and committed mass rapes across two nights with as many as 119 victims.  Lolemi was charged with crimes against humanity for rape of 32 women by forces under his command and effective control.  The court of first instance was the Military Garrison Tribunal of Mbandaka, which found 7 of the 12 defendants guilty, including Lolemi. Lolemi was found to have failed to exercise appropriate control over his soldiers and prevent the mass rapes, which he knew or should have known his soldiers were committing.  The decision was appealed to and confirmed by the Military Court of Equateur. Though the defendants denied the rapes, the courts disagreed, citing survivors’ testimony and medical reports. This case is significant because it is one of the first instances of a Congolese Military Court directly applying the Rome Statute (in addition to DRC law n ° 024/2002 of November 18, 2002).  The decision was issued by the same court and in the same year as the Mutins de Mbandaka case.  The case is also significant because it represented the first time that government soldiers were put on trial for rape as a crime against humanity or war crime, a fact which is significant because the FARDC are believed to be responsible for a large proportion of sexual attacks in the DRC in recent times.  The decision therefore struck a blow against military impunity for such crimes. (Lower court decision available at: https://www.legal-tools.org/doc/166854/pdf/)



Plaintiff S99/2016 v. Minister for Immigration and Border Protection Federal Court of Australia (2016)

Sexual violence and rape

This case considered whether the Australian Minister for Immigration owed a duty of care to procure the safe and legal abortion for the Applicant refugee who arrived unlawfully in Australia from Africa (personal identifying information is redacted). After being resettled as a “transitory person” on Nauru, she was raped while unconscious during a seizure and became pregnant. Specifically, the Applicant sought an injunction preventing her abortion from occurring in Papua New Guinea where it would not be safe and legal and instead sought to be returned to Australia for the procedure. The Court granted the injunction to prevent the Applicant’s abortion from being performed in Papua New Guinea or any location where a participant could be subject to criminal liability. The Court held that the Minister for Immigration and the Australian Government owed the applicant a duty of care, which required them to “exercise reasonable care in the discharge of the responsibility that they assumed to procure for her a safe and lawful abortion.” However, the Court declined to require that the Minister bring the Applicant to Australia for the procedure. In reaching this decision, the Court considered the risks of the applicant seeking an abortion in Papua New Guinea, including the illegality of abortions, the poor quality of medical care, the Applicant’s dependence on Australia, and the Applicant’s medical needs. The Court also considered the imminence of harm and the insufficiency of damages as a remedy for this harm.



Harmon v. GZK, Inc. Court of Appeals of Ohio (2002)

Employment discrimination, Gender discrimination, Sexual harassment, Sexual violence and rape

The plaintiffs worked at a restaurant operated by GZK. They alleged that a cook who worked with them repeatedly made lewd and sexually violent comments toward them, as well as touched them inappropriately without consent. The plaintiffs also alleged that a supervisor also made inappropriate sexual comments and groped them as he pretended to accidentally brush against them. They testified that they had brought this behavior to the attention of the management. The plaintiffs filed suit in the Montgomery County Court of Common Pleas, claiming sexual harassment, negligent supervision and retention, intentional infliction of emotional distress, and retaliatory discharge. The Court granted summary judgment in favor of their employer and the manager, but the Court of Appeals of Ohio reversed on all charges except the retaliatory discharge, finding genuine issues of material fact as to whether evidence of the cook and the manager’s inappropriate behavior rose to the level of creating a hostile work environment. 



Ex Parte Alabama Department of Youth Services Alabama Supreme Court (2003)

Sexual harassment, Sexual violence and rape

Plaintiffs, minor female children in the custody of Alabama’s Department of Youth Services (“DYS”), brought an action against DYS and its executive director, in which they alleged that the defendants failed to adequately respond to “a sexually hostile education environment” and sexual abuse and harassment. The plaintiffs brought federal claims under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. (“Title IX”) and 42 U.S.C. § 1983 (“§ 1983”), and state-law claims of intentional infliction of emotional distress, negligent hiring and supervision of employees, and intentional misrepresentation. The trial court denied the defendants’ motion to dismiss the claims based on various immunity arguments. The defendants filed a petition for writ of mandamus directing the Alabama Supreme Court to dismiss the complaint. In ruling on the defendants’ petition, the Alabama Supreme Court considered each claim for immunity. First, the Alabama Supreme Court held that DYS was not entitled to sovereign immunity under the Eleventh Amendment for claims brought under Title IX. Second, the Alabama Supreme Court found that the executive director was not entitled to federal qualified immunity for the § 1983 because the complaint alleged that he had notice of the sexual harassment and abuse yet failed to protect the plaintiffs from further harm. Finally, the Alabama Supreme Court considered the sovereign immunity provision of the Alabama constitution and found that dismissal of the plaintiffs’ state-law claims against the executive director in his official capacity was proper. Nonetheless, the Alabama Supreme Court found that the doctrine of state-agent immunity did not warrant dismissal of the plaintiffs’ state-law claims against the executive director in his individual capacity.



N.C. v. Caldwell Alabama Supreme Court (2011)

Sexual violence and rape, Statutory rape or defilement

N.C., a minor, filed a personal injury action against her physical education teacher, her school principal, and the Tallapoosa County Board of Education. N.C. alleged that after her seventh grade physical education class, she was pulled into the boys’ locker room and raped by A.H., a 12th grade student whom her teacher, Caldwell, had appointed as a teacher’s aide. N.C.’s complaint alleged that Caldwell had actual knowledge that A.H. was sexually harassing students and had negligently or wantonly supervised N.C. and the other students in her class. Caldwell, the principal, and the Board filed motions for summary judgment, arguing that N.C.’s claims were barred by the doctrine of state-agent immunity. N.C. opposed entry of summary judgment against only Caldwell. The trial court reasoned that the Alabama Supreme Court “has been particularly reluctant to hold an educator responsible for sexual misconduct by another” and granted summary judgment in favor of Caldwell based on stage-agent immunity. On appeal, the Alabama Supreme Court considered an exception to state-agent immunity: “a State agent shall not be immune from civil liability in his or her personal capacity . . . when the State acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.” The Alabama Supreme Court found that Caldwell was exercising judgment in the discharge of his duty to supervise students at the time of the rape, which occurred after the dismissal bell had rung. Nonetheless, the Alabama Supreme Court held that there was a genuine issue of material fact as to (i) whether Caldwell actually appointed A.H. as a student aide, and, if so, whether he acted beyond his authority in doing so, and (ii) whether Caldwell ignored and failed to report allegations of sexual harassment from other female students about A.H.. The Alabama Supreme Court also found that there was a genuine issue of material fact as to whether Caldwell was aware that A.H. was sexually harassing other female students and, if so, whether he failed to respond to the allegations. The Alabama Supreme Court concluded that these issues of material fact precluded summary judgment and accordingly reversed the trial court.



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.



Vizzi v. State Florida 3rd District Court of Appeal (1986)

Gender discrimination, Sexual violence and rape

Vizzi, an assistant public defender, was defending his client charged with sexual battery, kidnapping, and false imprisonment and referred to the victim as “a woman who’s trash, gutter filth.” After being admonished by the court, Vizzi proceeded to call the victim “a whore, a two-bit whore.” The prosecutor petitioned the court to instruct Vizzi not to call the victim a prostitute again and the trial court ruled, based on Florida’s Rape Victim Shield Statutes, that Vizzi was not permitted to attack the character of the victim by delving into her prior sexual behavior (other than prior sexual activity that the victim had with the defendant) or by calling the victim a prostitute, whore, or words of similar meaning. Vizzi later called the victim an “exhibitionist” and questioned the victim with respect to her “perform[ing] tricks with customers.” The trial court held Vizzi in contempt for violating its prior order and sentenced him to 5 days of jail time. The appellate court upheld the contempt order based on Vizzi’s failure to comply with the trial court’s ruling.  



Ward v. State Supreme Court of Florida (2008)

Sexual violence and rape

The state sought involuntary commitment of the defendant as a sexually violent predator under the Jimmy Ryce Act. The Act, enacted in 1999, provided for civil commitment procedures for “all persons currently in custody who have been convicted of a sexually violent offense . . . as well as to all persons convicted of a sexually violent offense in the future.” The defendant had been convicted of rape in 1969 and 1976. In 2004, he was sentenced to prison for burglary charges. He argued that the Act did not authorize his commitment since he had not been convicted of any sexually violent offense since the effective date of the Act. The trial court disagreed and the Florida Supreme Court affirmed, finding that the “current confinement period need not be for a sexual offense as long as the individual has been convicted of a sexually violent offense sometime in the past.” 



Phiri v. Smallholder Coffee Farmers Trust Industrial Relations Court of Malawi (2007)

Employment discrimination, Sexual harassment, Sexual violence and rape

The plaintiff, Phiri, was a security guard. She was employed on a fixed term renewable contract, renewable upon satisfactory performance. On December 26, 2005, near the end of her employment term, one of Phiri’s colleagues attacked her and attempted to rape her, only stopping after being apprehended when the plaintiff shouted for help. The plaintiff reported the incident to her employer’s management. In response, the company’s management accused her of misconduct for revealing to the public what the company considered an internal matter. On December 31 2005, the company fired the plaintiff citing the expiring fixed term contract for support. The plaintiff brought her case in front of the Industrial Relations Court of Malawi (the “Court”). The Court found that she had reason to believe her contract would have been renewed and that the company’s failure to renew her contract was based on the attempted rape incident. According to the Court, the company’s action breached an implied term of Phiri’s employment contract relating to mutual trust and confidence as well as the company’s obligation under the contract to protect female employees. The Court found that this incident was sexual harassment. Until recent amendments to the Employment Act, the labor laws of Malawi did not address sexual harassment. The closest Malawi’s labor regulation came to prohibiting sexual harassment in the workplace was § 5 of the Employment and Labor Relations Act read with § 20 of Malawi’s Constitution, which prohibits unfair discrimination in all forms. Despite the lack of a legal provision specifically addressing sexual harassment, the Court found that inappropriate sexually based behavior (e.g. sexual advances) creates a hostile work environment and leads to unfair labor practices. Therefore, the Court found Phiri’s dismissal invalid and held that the company violated Phiri’s “right to fair labor practices, the right to work, her right to safe working environment and personal dignity” (p 4).



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. 



Kisingiri v. Uganda High Court at Kampala (2016)

Sexual violence and rape

The appellant was convicted of having carnal knowledge of a person against the order of nature (i.e., homosexual sex acts, in this case anal sexual intercourse) in violation of section 145 of the Penal Code Act.  On appeal, appellant’s counsel emphasized the State offered no evidence of penetration, that corroboration is necessary in cases of sexual offenses, and the compromised credibility of several material prosecution witnesses, including a complainant.  Four years before the trial when he was 17 or 18, the complainant testified that he went to the Appellant’s home for a party, which never happened.  Instead, the Appellant gave the complainant a glass of wine and the complainant blacked out.  The next thing he remembered was anal bleeding and seeing the defendant entering the room.  The complainant testified that he was too ashamed to ask what happened.  The following day went to the doctor, who told the complainant that it seemed that he had been sodomized and gave him medication.  The appellate judge agreed with the trial judge that this did not amount to direct evidence of a sexual act.  Four years later in 2013, the complainant told Reverend Solomon Male about the assault after hearing him on the radio.  The police then searched the appellant’s home where they found chloroform, which the complainant was not examined for at his 2009 doctor’s appointment.  Both the trial and appellate judges noted that the fact that the complainant did not tell any of his housemates about his bleeding or assault at the time cast doubt on his account.  While medical evidence is not required for sexual assault cases, the court here was concerned that it found no evidence at all of sexual assault.  The Court found that the trial judge erred in finding that the complainant’s failure to report the assault in 2009 was “a natural reaction” as a result of shame, especially because no psychologist or behavioral specialist testified at trial.  The appellate court quashed the defendant’s conviction and sentence after finding that the prosecution failed to prove the first element of the offense, penetration, beyond a reasonable doubt.  The appellate court also mentioned a key witness’, Pastor Solomon Male’s, publication of “malicious information of sodomy” against Ugandan pastor Robert Kayanja, which is a reference to an incident in which a boy who had accused Kayanja of sodomy withdrew his accusations and said that Male and several of his colleagues paid him and other boys to accuse the minister.  In that case, Male and his clergy colleagues were convicted of conspiring to destroy Kayanja’s name and professional reputation.



Uganda v. Akute AKA Ouma High Court at Arua Holden at Adjumani (2008)

Sexual violence and rape

The 38-year-old female complainant identified the defendant as the soldier who slapped her, tore her hair and clothes, and threatened her with a gun before repeatedly raping her in his truck from approximately 8:00 PM until 5:00 AM the next morning.  The defendant denied her claims, but two soldiers stationed near the assault corroborated her statements.  The judge, citing the complainant's demeanor and experience as a mother, believed the her testimony about the assault despite the lack of medical evidence.  The judge sentenced the defendant to seven years imprisonment in addition to the year already served.



Uganda v. Okiring High Court at Mbale (2011)

Sexual violence and rape

The complainant was carrying a bag of maize on the back of her bicycle.  When the bag fell off, the defendant and two of his colleagues offered to help.  Two then raped her and the third stole her bicycle.  They fled when a friend of the complainant came up the road on his motorcycle.  The victim recognized her attackers and identified them to the police.  She also went to the hospital for a medical examination.  The defendant denied the charges and claimed never to have seen the victim before court proceedings began.  The trial court found credible the complainant and the prosecution’s other corroborating witnesses, which included the complainant's male friend who found her immediately after the rapes, local council members, and police.  The Court made clear that the lack of medical evidence was not dispositive.  As a first time offender who had served over three years awaiting trial, the Court sentenced the defendant to an additional 18 months imprisonment.



Uganda v. Kusemererwa High Court at Fort Portal (2015)

Sexual violence and rape, Statutory rape or defilement

At issue in this case is the distinction between rape, simple defilement, and aggravated defilement in the Uganda Penal Code.  The crime of defilement, created in 1990, prohibits having or attempting sexual intercourse with a girl under 18 years of age and carries a maximum penalty of life imprisonment.  Defilement is considered aggravated if the girl is under 14 years old, the offender has HIV/AIDS, the offender is the victim’s parent or guardian, the girl has a disability, or the offender is a serial offender, and it carries a maximum penalty of death.  There is no consent requirement for defilement because children cannot consent to sexual intercourse.  The Penal Code section prohibiting rape describes it as “unlawful carnal knowledge of a woman or girl without her consent” (emphasis added) or if consent is obtained through any force, threat, or intimidation.  The maximum penalty for rape is death.  The victim in this case was 16 when the defendant had unlawful carnal knowledge of her without her consent.  The defendant argued that he should be charged with simple defilement instead of rape because rape only applies to an adult woman who can give consent.  The State argued that the statutes give the State discretion to choose between the charges.  Citing other cases in which the State charged for rape instead of defilement because the defendant used excessive force, the State argued that this case the charge of rape was justified.  The Court found that these cases were decided before Parliament had fully settled the statutory details of rape, simple defilement, and aggravated defilement.  Now that the law is settled, the law does not allow rape charges for children because of the element of consent; unlawful sexual intercourse with children must be prosecuted as defilement.



Kalibobo v. Uganda Court of Appeal at Kampala (2001)

Gender-based violence in general, Sexual violence and rape

The trial court sentenced the 25-year-old Appellant to 17 years in prison after finding him guilty of raping a 70-year-old widow from a neighboring village.  The trial court rejected the defense that he was not in her village at the time of the rape.  The trial court found that in November 1998 the Appellant broke into the home of the victim, who confronted him with a panga (machete).  While raping her after disarming her, the victim called out and the Appellant, worried about being caught, fled with her panga.  The police found the panga in his home the next day and he was arrested.  The Appellant contested his sentence, arguing that it was manifestly harsh because he has a wife, two children, and two young brothers to care for.  The State contended that the sentence was appropriate because of the victim’s age and family circumstances.  The standard for appellate court interference is a sentence that is “manifestly excessive or low in view of the circumstances of the case.”  The Court noted that the crime of rape, particularly the rape of “grandmothers,” is prevalent in the area and very serious.  The Court held “[t]he appellant raped an old lady.  That was bad.  However, considering all the circumstances of the case, we think that a sentence of 17 years imprisonment was manifestly so excessive as to cause a miscarriage of justice” and reduced the sentence to seven years.  



Uganda v. Umutoni High Court at Kampala (International Crimes Division at Kololo) (2014)

Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

The accused was charged with human trafficking and aggravated child trafficking for transporting minor girls, who were promised supermarket jobs in Uganda, from Rwanda to Uganda for the purposes of forced unpaid household labor and prostitution.  The accused pleaded not guilty and maintained that she transported the girls to Uganda with their parents’ permission for a holiday.  The Court found her guilty of the charges related to two of the girls, but found that one of the girls was over the age of majority (19 years old).  The Court sentenced the accused to two concurrent terms of imprisonment: eight years for aggravated child trafficking and five years for trafficking in persons.  



Wanasolo v. Uganda High Court at Mbale (2015)

Sexual violence and rape, Statutory rape or defilement

Appellant, a school librarian, was accused of multiple instances of indecent assault, rape, and sodomy by several students.  At least one student accused the appellant of “grooming” him for homosexuality.  On appeal, the Court found that the trial court erred by dismissing the appellant’s evidence before he presented it, refusing to let him call witnesses, and allowing her biases to interfere with the appellant's right to a fair trial.  The High Court overturned the verdict and set aside the sentence.



Frudenthal v. Israel Supreme Court (sitting as the Court of Criminal Appeals) (2003)

Gender-based violence in general, Sexual violence and rape, Trafficking in persons

The appellant appeals his conviction for trafficking in persons for the purposes of prostitution in violation of Penal Law sec. 203A(a), pimping for prostitution, and threats and false imprisonment.  The appellants’ two co-conspirators reached plea agreements with prosecutors.  The appellant generally admits the underlying facts of the case, but argues on appeal that these facts do not amount to trafficking in persons but rather pimping for prostitution, which has a lower sentence.  The appellant “acquired” the two complainants in November of 2001 and brought them to a facility in Tel Aviv operated by the first co-conspirator for the purpose of employing them as prostitutes. Appellant “imprisoned the complainants in the facility, took their passports, and abused them physically.” The first co-conspirator supervised the complainants, forced them to work as prostitutes, and collected fees. In or around February 2002, the first co-conspirator transferred the complainants to the custody and supervision of the appellant. The appellant housed the complainants in his apartment and managed all aspects of their work as prostitutes, from arranging clients to fee collection. The appellant made each complainant pay him part of her profits for food and rent.  The complainants were not allowed to leave the apartment without the appellant’s permission and supervision.  The appellant argued that the lower court erred by not applying a narrow definition of “purchase” as used in property law.  The Supreme Court held that section 203A(a) prohibits any deal intended to create a property relationship in which a person acquires rights in another human being. The meaning of the phrases “sale and purchase” in section 203A(a) refer to any deal, in exchange for any consideration, that grants a person any kind of property right in another human being who serves as the object of the deal. It is immaterial whether the business arrangement is under the guise of ownership, rental, borrowing, partnership, or any other means of creating a property interest in a person. The Court held that the appellant’s actions clearly constituted a business arrangement that created a property interest in a human being and that, therefore, these circumstances met the legal criteria for the crime of trafficking in persons. 



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.  



Rex v. Makebe High Court of Lesotho (2011)

Sexual violence and rape

The complainant alleged that the defendant raped her.  The defendant vehemently denied the allegations and testified that the sex was consensual.  The High Court treated the defendant’s claim of consent as an affirmative defense ruling that he had the burden of proving consent. The Court found that the defense was unable “through cross examination, to show that the sex was consensual” (p. 4). Consequently, the Court convicted the defendant of rape. This was a landmark case because it essentially shifted the burden of proof in rape cases. Instead of requiring the prosecution to prove a lack of consent, the court made the defendant prove that the victim consented to the sexual encounter.    



Rex v. Latsi High Court of Lesotho (2007)

Sexual violence and rape

While considering the appeal of a rape conviction, the High Court condemned the trial court’s failure to punish the defendant in accordance with the severity of his crime. The Court found that where a trial court finds sufficient evidence of rape, the sentence should be more than a mere “slap on the wrist.”  The court stated that “rape is always serious even without aggravating circumstances” because the victim’s “virginity has been assaulted and undoubtedly her dignity and reputation have been compromised blighting her prospects for marriage” (p. 1). The Court found that those factors should always be considered before a sentence is imposed. The Court affirmed the conviction and increased the defendant’s prison sentence from five to ten years.  



Raposholi v. Commissioner of Police High Court of Lesotho (2007)

Custodial violence, Sexual violence and rape

The plaintiff sued the government for false arrest and assault. The plaintiff, who worked for the government as an accounts clerk, claimed she was robbed by two armed men while she was transporting government funds. The next day, the police arrested her. The plaintiff alleged that she was taken to a police post, stripped down to her underwear, placed on her back, beaten, and interrogated, while the officers beat her and poured water over her head. The High Court determined that the plaintiff’s arrest was lawful but the torture was not. A medical certificate entered into evidence showed that plaintiff had injuries when she was released from police custody.  Because there was no proof that she had those injuries before she was detained, the Court found that the plaintiff was entitled to relief.  



Rex v. Motsoene High Court of Lesotho (2005)

Sexual violence and rape

The defendant was charged with violating the Sexual Offence Act of 2003 for the attempted rape of a 71-year-old woman. The trial evidence showed that the victim’s daughter intervened and was able to stop the rape after the defendant threw the victim to the ground but before he could commit the actual rape. As such, the defendant maintained at trial that he was innocent because the Sexual Offences Act of 2003 did not criminalize attempted rape. The High Court disagreed with the defendant’s interpretation of the Sexual Offenses Act. The Court held that, in order to sustain a conviction for attempted rape, the prosecutor simply had to provide evidence of the defendant’s intent to commit rape and any actions taken to commence the actual crime.  Here, the defendant struggled with the victim, threw her to the ground, and stated his intention to have sex with her against her will. Consequently, the Court found the defendant guilty of attempted rape.  



Rex v. Lenyolosa High Court of Lesotho (2003)

Sexual violence and rape, Statutory rape or defilement

The defendant was convicted for sexual assault and attempted rape of his 16-year-old niece. The appellate court upheld the conviction, but overturned the sentence imposed by the trial court. The appellate court held that the lower court failed to consider aggravating factors, including the close relationship between the parties. Given the prevalence of sexual assault in Lesotho, the court determined that jail sentences needed to serve as a deterrent for both the perpetrator and the general public.  According to the court, “a very loud and clear message must be sent to all those who consider themselves with power and right to abuse or rape girls and women, that they will be dealt with the seriousness their unlawful actions demand” (p. 5).  The Court sentenced the defendant to two years imprisonment with one year suspended for five years, unless the defendant commits another violent offense.



Supreme Court Decision 2014Do17346 Supreme Court of South Korea (2015)

Sexual violence and rape

Defendant illegally had sex on four occasions with a girl (aged 14 years at the time) with an intellectual disability, whom he met through an online chat room. He used a cell phone to record a video clip of his sexual intercourse and to take nude pictures of the Victim. Under the Act on the Protection of Children and Juveniles against Sexual Abuse, the Prosecutor indicted Defendant on charges of having illicit sex with a disabled juvenile and producing juvenile pornography. The trial and appellate courts found Defendant guilty, and Defendant appealed to the Supreme Court. The Supreme Court held that “judgment competency” means the ability to rationally discern between what is right and wrong, and “decision-making capacity” means the ability to control one’s behavior. Whether such abilities are lacking can be determined by factoring in not only an expert’s opinion on that issue but also objective evidence, such as testimonies of witnesses on the daily verbal expressions and behaviors of the child or juvenile, and circumstances that led to the charge, including the child’s or juvenile’s speech and behavior. The Court held that the Article 8(1) of the Juvenile Act severely punishes those who have illicit sex with a disabled child or juvenile who has judgment competency much weaker than ordinary children and juveniles, and who lack the ability to exercise the right to sexual self-determination. Furthermore, the Court held that Article 11(1) of the Juvenile Act punishes those who produced, imported, or exported child or juvenile pornography. The Court held that even if there may have been implied consent by Victim, such consent could not be viewed as an act of a child or juvenile with sufficient judgment competency who voluntarily exercised the right to sexual self-determination on an informed or educated basis. In affirming the lower court’s decision, the Supreme Court dismissed the appeal.



Avendano-Hernandez v. Lynch Court of Appeals for the Ninth Circuit (2015)

Gender discrimination, Gender-based violence in general, Sexual violence and rape

Plaintiff was a transgender woman from Mexico who was subjected to sexual assault and rape by Mexican police and military throughout her life. In 2006, she was arrested in America for driving under the influence. In 2007 she was deported to Mexico. After suffering more mistreatment in Mexico, Avendano-Hernandez returned to the U.S. and appealed for asylum under the United Nations Convention Against Torture. She reentered the United States in May 2008 and was arrested three years later for violating the terms of probation imposed in her 2006 felony offense for failing to report to her probation office. Plaintiff applied for withholding of removal and relief under the Convention Against Torture but the immigration judge denied her request for failing to show that the Mexican government would more likely than not consent to or acquiesce in her torture, which was confirmed by the Board of Immigration Appeals. On appeal, the Ninth Circuit reversed the decision with respect to the Convention Against Torture application because it was enough for Avendano-Hernandez to show that she was subject to torture at the hands of local officials. Additionally, the immigration judge relied on recent anti-discrimination legislation; however, the judge did not consider the legislation’s effectiveness. Therefore, Plaintiff should be given relief under the Convention Against Torture.



Teamsters Local Union No. 117 v. Washington Dept. of Corrections Court of Appeals for the Ninth Circuit (2015)

Gender discrimination, Gender-based violence in general, Sexual harassment, Sexual violence and rape

Female prisoners in Washington prisons alleged sexual abuse by the prison guards. As a remedial remedy, the Department of Corrections designated 110 positions as female-only. These female-only positions include observing female prisoners in sensitive locations, such as showers, as well as performing pat downs. The union of correctional officers sued the Department for Title VII violations for sexual discrimination in employment. The district court granted summary judgment for the Department. The Circuit Court affirmed citing sex as a bona fide occupational qualification for those positions given that sexual abuse is present in prisons and positions which require observing prisoners in sensitive areas or tasks can be performed by females only in order to protect female prisoners from abuse.



Supreme Court Decision 2004Do3161 Supreme Court of South Korea (2004)

Sexual violence and rape

Defendant molested and videotaped a four-year-old girl and three-year-old girl. The court below, based on videotapes and victims’ testimony, rendered a guilty verdict. Defendant appealed. The main issues were (1) the admissibility of a videotape that contained conversations between a private person and another person other than a defendant and recorded by a private person and (2) the criteria for determining whether young children's testimony is admissible. As to the first issue, the Court decided that unless a defendant agreed to admit a videotape as evidence, the statement in the videotape was admissible only if (1) the videotape was original, or a photocopy of an original that was not artificially edited and (2) each of the statements on the videotape were acknowledged as the same as that made by the original statement maker by his/her testimony at a preparatory hearing or during a public trial according to Article 313(1) of the Criminal Procedure Act. Based on testimonies, the Court acknowledged each statement on the videotape as the same as that made by the original stator at a preparatory hearing and decided that the videotape was admissible as evidence. As to the second issue, the Court decided that the admissibility of young child's testimony should be decided not only by age, but also by his or her individual and specific intellectual level, after examining the contents of the testimony and the child’s attitudes during the testimony and determining whether facts of past experiences lie within the scope of things that can be understood or judged by the child. Accordingly, the Court found the judgment below of "guilt" based on the evidence was appropriate and found no violation of the evidence rules in confirming the facts and the legal principles as to the credibility of the young children's testimony or failure to conduct a complete review. The Court dismissed the appeal.



Yunnan Province v. Enguang Yang, Wenjian Li People’s Procuratorate of Honghe Harniyizu District Court (2014)

Forced and early marriage, Sexual violence and rape, Trafficking in persons

The defendants Yang and Li trafficked 17 Vietnamese women who were prostitutes in Vietnam to Yunnan Province, China. Yang and Li pretended to be clients and brought the women to hotels and restaurants where they kidnapped the women and transported them to China. The defendants offered the women to villagers in remote rural area of Yunnan Province, China and forced the women to marry buyers by force or threats. Under Article 48 and Article 240 of Criminal Law of the People’s Republic of China, the two defendants were sentenced to the death penalty and their private property was confiscated by the court. The women were provided with assistance to return to Vietnam.



Doe v. Hagenbeck United States District Court for the Southern District of New York (2015)

Gender discrimination, Gender-based violence in general, Sexual harassment, Sexual violence and rape

The plaintiff is a female former cadet at the United States Military Academy at West Point, where she claimed that she was forced to resign after her third year due to rampant sexual hostility. In May 2010, she was raped while at West Point after she took sleeping pills and she also cites several other instances of sexual assault and harassment, claiming that members the Sexual Assault Review Board at West Point failed to punish the perpetrators. The District Court found that the plaintiff had properly stated an equal protection claim under the Fourteenth Amendment of the United States Constitution, affording women the same protections under the law as men. The District Court also found that hearing the claim was not precluded by Feres Doctrine, which typically bars tort claims under the Federal Tort Claims Act and constitutional claims against superior officers incident to military service, since the rape was not a service-related injury and hearing the claim would not compromise the legislative or executive functions of government, including the disciplinary role of the Executive Branch over the nation's military. Therefore, the court denied the defendant’s motion to dismiss.



Decision 2005Do8130 Supreme Court of South Korea (2006)

Sexual violence and rape, Trafficking in persons

The Defendant was running a massage parlor that had hidden rooms with beds where a young female employee massaged the whole body of a male customer. The female employee, usually wearing a short skirt and a short-sleeved tee, would undress the male customer, grab his sexual organ with her hands with lotion on, touch the body part just like engaging in a sexual intercourse, and ultimately let him ejaculate. The issue was whether the act of the female employee in the Defendant’s parlor could be considered as "acts that are similar to sexual intercourse" under Article 2 (1) 1 sub paragraph Na of the Act on the Punishment of Acts of Arranging Sexual Traffic. The Act, which aimed to eradicate prostitution and protect the human rights of the victims of prostitution, did not distinguish “sexual intercourse” from “acts that are similar to sexual intercourse”. The Supreme Court interpreted "acts that are similar to sexual intercourse" as stipulated in the above Act to refer to acts of penetrating the body through the mouth or the anus, or at least acts for gaining sexual satisfaction similar to sexual intercourse. Then the Court went through a comprehensive evaluation of the circumstances, including the place where such act was conducted, the clothes the people were wearing, the body parts that were touched, the specific content of the act, and the degree of the resulting sexual satisfaction to decide whether the female employee’s act could be considered as “acts that are similar to sexual intercourse”. The Supreme Court held that the female employee’s act could be deemed as an act of bodily contact for gaining sexual satisfaction similar to sexual intercourse, and therefore dismissed the appeal by the Defendant.



Hill v. Cundiff Court of Appeals for the Eleventh Circuit (2015)

Sexual harassment, Sexual violence and rape

Doe, a 14 year old eighth grader, was raped at school by 15 year old eight grader CJC who had a prior history of sexual harassment at school. The school’s policy on sexual harassment was to accept only three types of evidence as demonstrative of sexual harassment: catching the harasser in the act, physical evidence of the harassment, or an admission of guilt by the harasser. Doe was instructed by a teacher’s aide to lure CJC into a bathroom as a “rape-bait” sting to catch him in the act of sexual harassment. There, CJC anally penetrated Doe against her will before teachers could arrive to catch CJC pursuant to their plan. Doe filed a complaint against the school board and school administrators with a myriad of claims including a 42 U.S.C. §1983 claim for violation of the Equal Protection Clause. While the district court granted summary judgment in favor of the principal and school officials on the §1983 claims, the United States Court of Appeals for the Eleventh Circuit reviewed the case de novo and reversed the summary judgment. The Eleventh Circuit determined that the principal deprived Doe of equal protection through his deliberate indifference to inadequate sexual harassment policies. The Court also reversed the grant of summary judgment in favor of the school officials who suggested and acquiesced to the sting operation: the court found that they were not entitled to immunity because any reasonable government official would know that the plan violated the U.S. Constitution’s Equal Protection Clause.



Supreme Court Decision 2015Do6980 Supreme Court of South Korea (2015)

Sexual violence and rape

Defendant was roaming the street after drinking alone at night. He followed Victim (a 17-year-old girl) getting off the bus and walking alone. Upon nearing a desolated place, Defendant approached the Victim, while wearing and mask, holding both of his arms high to hug her. Sensing someone behind her, the Victim turned around and yelled “What are you doing?” to which the Defendant remained still and stared for a few seconds before retreating. Defendant was indicted on attempting to assault a child or juvenile which is in violation of the Act on the Protection of Children and Juveniles against Sexual Abuse. The first instance court found the Defendant guilty but the appeals court reversed the first instance judgment and acquitted Defendant. The Prosecutor then appealed to the Supreme Court. The Supreme Court held the crime of indecent act by force includes an indecent act committed after making the other party unable to resist by use of violence or threat and the act of assault itself is considered as an indecent act, and such assault is not confined to the extent of suppressing the other party’s will. An indecent act refers to an act that deviates from sexual moral norms causing a victim to feel shame or disgust, and violating the victim’s sexual freedom. Whether such crime is established should be carefully determined by factoring in: the victim’s reciprocity, gender, and age; relationship between the victim and perpetrator prior to the act; circumstances leading to the act; means and method used to commit the act; objective circumstances; and sexual moral norms at the time. In addition, the crime of attempted indecent act by force is established when the act of violence with the intention to commit an indecent act does not lead to actual commission of indecent act, and this legal principle applies to cases of “indecent act by surprise” where the act of assault in itself is acknowledged as an indecent act. Accordingly, Defendant was charged of violating the Act on the Protection of Children and Juveniles against Sexual Abuse.



Supreme Court Decision 2013Do7787 (2015)

Sexual violence and rape

Defendant (a Private First Class officer in the army) met Victim (a 10-year-old girl in the 4th grade) through an online gaming site. While video chatting, Defendant repeatedly requested Victim show her body from the waist down. Victim showed her private parts on several occasions to Defendant while video chatting. The military prosecutor indicted Defendant on the charge of sexual abuse under the former Child Welfare Act. Two courts acquitted the Defendant and the military prosecutor appealed to the Supreme Court. The Supreme Court held that “sexual abuse” refers to sexual harassment, sexual assault, cruel acts, etc. which cause a victimized child to feel shame, and can undermine a child’s health and welfare or harm a child’s normal development. The Court also held that whether an act constitutes “sexual abuse” should be determined objectively according to social norms by factoring in specific circumstances, such as: (i) intent, gender, and age of the offender and victimized child; (ii) whether the victimized child had knowledge on sexual values and ability to exercise the right to sexual self-determination; (iii) relationship between the offender and the victimized child; (iv) background leading up to the act; (v) detail of the committed act; and (vi) impact of such act on the victimized child’s personality development and mental health. The Supreme Court reversed the lower court’s judgment because Victim, who was just 10 years old, lacked knowledge on sexual values and did not have the ability to protect herself; therefore, she was not capable of exercising the right to sexual self-determination. Defendant took advantage of Victim’s ignorance and naivety for his own sexual satisfaction. Even if Victim complied with Defendant’s demand without expressing any resistance and did not experience physical/psychological pain due to Defendant’s act, Victim could not voluntarily and earnestly exercise the right to sexual self-determination. As such, Defendant’s act committed against Victim constituted sexual abuse.



Process No. 23508 (Nelson Armando Otalora Cardena) Supreme Court of Justice (2009)

Sexual violence and rape

In 2002, Ms. Sandra Patricia Lamprea Duque, a 23 year old Colombian woman, reported that she was raped by Nelson Otalora, the accused. The rape was part of multiple instances of mistreatments, threats, harassments and economic exploitations that lasted for eight years between 1994 and 2002. Due to statutory limitations, the accused was only charged with rape which took place in 2002. The Court of First Instance acquitted the accused based on the reasoning that Sandra Patricia had had a relationship, albeit a difficult one, with the accused and therefore the act at issue could not be ascertained as without consent. The Court of Second Instance found the accused guilty and sentenced him to imprisonment on the reasoning that occurrence of violence renders historical sexual intimacy and lack of resistance during the act at issue irrelevant. The Court also concluded that the credibility of the victims of sexual violence could not be questioned by the court based on previous sexual relations, that lawyers must respect fundamental human rights and that a victim of sexual violence should not be “re-victimized” by legal professionals during legal proceedings involving sexual violence. The Court noted, however, that lack of consent could not be inferred from a dysfunctional relationship, as was the case between the aggressor and the accused.



New South Wales v. Lepore High Court of Australia (2003)

Sexual violence and rape

This decision concerned three separate cases of assault: New South Wales v. Lepore, Samin v. Queensland, and Rich v. Queensland. Each case involved the abuse of students by public school teachers. The victims alleged that the educational authority was liable on the basis of a non-delegable duty of care. The Court found the argument unpersuasive and overly broad: “The proposition that, because a school authority's duty of care to a pupil is non-delegable, the authority is liable for any injury, accidental or intentional, inflicted at school upon a pupil by a teacher, is too broad.” The victims also sought damages from the government on an alternative theory of vicarious liability. The Court considered related decisions by the Supreme Court of Canada and the House of Lords where educational authorities were held vicariously liable for the conduct of their employees. The Court asserted that vicarious liability for the criminal conduct of an employee exists where the employee was acting as agent, servant, or representative of the employer when the incident occurred. The Court ordered a new trial in the case of Lepore, and dismissed the appeals of Samin and Rich.



Banditt v. R High Court of Australia (2005)

Sexual violence and rape

The relevant offense occurred when the appellant broke into and entered the home of the complainant, who was asleep. The appellant had sexual intercourse with the complainant without her consent. The appellant was convicted in a jury trial. The appellant challenged his conviction based on an instruction provided by the trial judge to the jury concerning the meaning of “reckless.” The appellant claimed that the instruction was insufficient, arguing that recklessness “is satisfied by "a discrete mental state which is, 'Even if I knew, I would continue. It does not matter to me'." The High Court held that the jury instruction was proper as administered and dismissed the appeal.



U1993.941/2V Western High Court (1993)

Sexual violence and rape

The defendant was found guilty of rape and sentenced to four months imprisonment. The defendant had intercourse with a physically and mentally disabled woman who was the sister of the woman with whom he cohabited. The victim had limited power in her arms and legs and difficulties moving and walking. She was also mentally handicapped. At trial, the woman testified that she tried to push the defendant away from her although she did not scream. The Court upheld the lower court’s acquittal of the defendant of aggravated rape because the intercourse did not occur under threat of violence. However, the Court found the defendant guilty of having forced intercourse with a disabled woman (Penal Code § 218) because her condition rendered her unable to resist the defendant and the defendant was aware of this because of his prior acquaintance with her. The Court awarded the woman 15,000 DKK as compensation.



W.J. and L.N. v. Amkoah, Jamhuri Primary School, The Teachers Service Commission and the Attorney General (Petition No. 331 of 2011) High Court of Kenya at Nairobi (Constitutional and Human Rights Division) (2011)

International law, Sexual violence and rape, Statutory rape or defilement

In July 2010, W.J. and L.N, 12- and 13-year-old female students at Jamhuri Primary School, were invited to the home of their teacher, Astarikoh Henry Amkoah. Amkoah forced the girls to perform household chores and later attempted to defile W.J. in the restroom and defiled L.N. in the hall. On several occasions later that month, Amkoah raped both girls. The girls’ education was severely interrupted by the trauma of Amkoah’s attacks and L.N. dropped out of school completely. Ultimately, Amkoah was acquitted in criminal court. In this suit filed by their guardians, W.J. and L.N. sued claiming that Amkoah’s actions unconstitutionally interfered with their rights to health, education, and dignity, and claimed that the school and state should be vicariously liable for the teacher’s actions. They invited the court to look at the claims from the perspective of a tort in negligence and as a human rights violation. However, the violations took place prior to the adoption of a revised 2010 Constitution, so the Court was required to rely partially on the 1963 Constitution which did not include those same guarantees. Still, the 1963 Constitution offered a right to freedom and security of the person. Additionally, the Convention on the Rights of the Child, adopted through Kenya’s Children Act, promises children the right to be free from sexual or physical violence, the right to receive an education, and the right to dignity. As a result, the Court was able to rely on the guarantees of the Children Act. Moreover, Justice Ngugi recognized the 2010 constitutional right to dignity as a continuing right, meaning that while the initial crime may have occurred prior to the 2010 Constitution’s adoption, the continuous nature of the effects of sexual violence on an individual’s dignity make the provision applicable in this case. Here, the Court determined that the criminal acquittal would not serve as a bar to the action because of the differing standards of proof in a criminal and a civil trial. Importantly, the Court decided that “any educational or other institution in which teachers or other care givers commit acts of sexual abuse against those who have been placed under their care is vicariously liable for the wrongful acts of its employees.” The court noted that because children are particularly vulnerable, it is appropriate to impose strict liability on “those in charge of educational and other institutions . . . for abuses committed by those whom they have placed in charge of vulnerable groups such as minors in educational institutions” and held the four named plaintiffs—the teacher, the school, the teachers service commission, and the state—jointly and severally liable for damages of KSH two million for W.J. and KSH three million for L.N.



The State, Mai and others v. The State, Abdul Khaliq and others Supreme Court of Pakistan (2011)

Sexual violence and rape

In this highly publicised case, the Supreme Court considered ten matters - eight are appeals by the victim against the acquittal of the accused rapists; one appeal has been filed by the convicted and the one is a suo moto action of the Court recalling the judgement in the gang-rape case that acquitted five of the six accused. Fourteen men were indicted in the gang rape of Mukhtar Mai in 2002, undertaken in revenge for an alleged breach of decorum by her brother and sanctioned by a panchayat (village council). Ultimately, eight of the accused were acquitted due to lack of evidence, and the remaining six were given death sentences by the trial court. The High Court then acquitted five of the six and converted the death sentence of the last accused to a life sentence. The petition of the victim asserts that, amongst other things, it is erroneous to hold that the delay in lodging of a complaint is fatal to the prosecution case. The petition also asserts that it is erroneous to hold that the testimony of a rape victim requires corroboration. In this case there was a conclusive medical report confirming rape and the rape did not take place in private (as a matter of fact, the victim was thrown out of the room partially undressed for all to see). The Court set aside the acquittals and sentenced them on each count to imprisonment for ten years, running concurrently.



The Case of Amina Ahmed Sessions Court, Vehari Multan (2014)

Sexual violence and rape

Two men were sentenced to death for the rape and murder of a 15-year-old girl in 2011. The court acquitted two suspects due to lack of conclusive evidence. The victim, Amina Ahmed, had gone missing from her home in Luddan village on December 26, 2011. Her dismembered body was found three days later and an autopsy confirmed that the victim was gang-raped and murdered. Luddan police arrested four suspects within 72 hours. During interrogation, two of the accused (Zareef and Faisal), confessed that they had kidnapped the girl and raped her for three days as “part of their new-year celebrations”. The accused said they murdered the victim and later dismembered her body on the belief that the victim was a prostitute. After two and a half years of proceedings, the Sessions Court found them guilty of the rape and murder and sentenced them to death. They were also fined Rs300,000 each, to be paid to the legal heirs of the victim as compensation.



Zimele Samson Magagula v. Rex Supreme Court of Swaziland (2012)

Sexual violence and rape, Statutory rape or defilement

Appellant appealed his conviction of rape of a 4 year-old girl on the ground that the victim was the sole witness and her young age made her unreliable. The Supreme Court dismissed the appeal, finding that the victim’s consistent testimony of the rape and corroborating evidence from a medical examination was sufficient to uphold the verdict.



2007 (A) No. 1223 Supreme Court of Japan (2008)

Sexual violence and rape

The defendant broke into the house of the victim and, after indecently touching her, tried to escape. The victim was accidentally injured during the escape. The defendant was charged with the crime of Forcible Indecency Causing Injury. The Supreme Court concluded that, even though the injury was not directly caused by assault or intimidation, the defendant could be convicted of Forcible Indecency Causing Injury because the assault was committed closely before or after the indecent act.



Supreme Court Decision 2002Do51 Supreme Court of South Korea (2012)

Sexual violence and rape

The Defendant raped the Victim in a car on several occasions. In addition to raping the Victim, the Defendant threatened the Victim and committed violence against the Victim. The lower court dismissed the rape charges filed by the Victim, finding that the six-month statute of limitations under Article 230 Item I of the Criminal Procedure Act had passed. The Supreme Court of South Korea reversed, noting that Article 2 (1) 3 of the Act on the Punishment of Sexual Crimes and Protection of Victims ("the Sexual Crimes Act") defines rape under Article 297 of the Criminal Act as a sexual crime and extends the statute of limitations to one year. While the Supreme Court reversed the lower court’s dismissal of the rape charges, it noted that since only the Victim can bring rape charges, any violence or threats of violence used in connection with the rape are elements of the crime of rape and cannot be prosecuted separately.



Onesphory Materu v. The Republic Court of Appeal of Tanzania at Tanga (2009)

Sexual violence and rape

Salma Yusuf, a fourteen year old girl, alleged that the appellant police officer, Onesphory Materu, had raped her inside a police cell with a promise to release her (made in writing) after the fact. The trial court found the police officer guilty of rape and convicted him to a sentence of thirty years imprisonment, twenty four strokes of the cane and an order that he pays Shs.700,000 compensation to the complainant. The police officer had appealed for the second time and the court had to consider two grounds: (1) whether the victim was in fact telling the truth; and (2) that the court erred in relying on the “release note” as evidence of the crime. On the first matter, the court noted that inclusion of Section 127 (7) of the Evidence Act as amended by the Sexual Offences Special provisions Act, Number 4 of 1998 means that the only burden imposed on the court is “to give reasons that it is satisfied that a child of tender years or the victim of the offence is telling nothing but the truth”. There is no longer a requirement for the court to warn itself of the dangers of basing a conviction on the uncorroborated evidence of a child where a sexual offence is involved. On the second matter, the court noted that the appellant did not object to the entry into evidence of the note, so there can be no merit in objecting to it now. The conviction and sentencing was upheld.


Supreme Court Decision 2009Do2576 Supreme Court of South Korea (2009)

Sexual violence and rape

The Defendant was a part-time elementary school teacher who conducted health examinations for students. After checking the pulse of a student, the Defendant placed his hands inside the student’s clothes and touched her breasts. The lower court did not find this conduct to constitute “disgraceful conduct” against minors under thirteen years of age as provided by Article 8-2 (5) of the Act on the Punishment of Sexual Crimes and Protection of Victims, holding that the Defendant did not possess a subjective motive “to stimulate, stir up, and satisfy his sexual desires.” The Supreme Court reversed and remanded, holding that the subjective motive of the offender is not relevant in determining the crime of disgraceful conduct against minors. Instead, the Defendant’s conduct constitutes disgraceful conduct if his actions make an ordinary average person, in the victim’s same position, objectively feel sexual shame or offense. Additionally, the actions must be contrary to sound sexual moral norms, and thereby must have a negative effect on the victim’s mental growth. Finding that the lower court made an error in applying the law, the Court remanded the case to the Seoul High Court.



Assange v Swedish Prosecution Authority [2011] EWHC 2849 High Court of Justice (2011)

Sexual violence and rape

Mr. Assange visited Sweden to give a lecture. He had sexual relations with two women there. In the home of the injured party, Assange deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state. It is an aggravating circumstance that Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, still consummated unprotected sexual intercourse with her. The sexual act was designed to violate the injured party's sexual integrity. Mr. Assange was accused of rape. Allegedly, the women agreed to sex on the condition Mr. Assange wear a condom. He did not do so throughout intercourse. Although the English courts had previously ruled that one cannot give conditional consent, in order to be able to allow extradition to Sweden, the Supreme Court ruled that his actions would constitute a crime under English law – thus allowing conditional consent to become valid in English law.



Supreme Court Decision 2008Da89712 Supreme Court of South Korea (2009)

Employment discrimination, Gender discrimination, Sexual harassment, Sexual violence and rape

The Plaintiff worked as an employee for a corporation in which the Defendant served as a supervisor. The Defendant, who had the authority to hire and fire employees, singled out the Plaintiff frequently for her passive nature and alleged inferior job skills. On numerous occasions, the Defendant forced the Plaintiff to touch his penis and engaged in other various acts of sexual misconduct. The lower court found that the Defendant’s sexual misconduct constituted an invasion of the Plaintiff’s right to self-determination. Additionally, the lower court found the employer, the Defendant-Corporation, liable for the supervisor’s sexual misconduct. The Supreme Court of Korea affirmed, finding the supervisor and employer liable. Under Article 756 of the Civil Act, an employer can be held liable for an employee’s action if the act is “related to the employee’s execution of the undertaking (for which he is employed).” Thus, the Supreme Court noted that when an employee injures another intentionally, even if the act is not related to the employee’s undertaking of his job responsibilities, employer liability still attaches if the misconduct is “apparently and objectively related” to the employer’s work. Additionally, if an employee commits an intentional act such as sexual misconduct, the court noted employer liability attaches where the misconduct was objectively related to the execution of the employer’s work. Noting the Defendant-employee’s authority to fire and hire employees, as well as his ability to punish the Plaintiff for resisting his unwelcome sexual advances, the Supreme Court held that the Defendant-employee took advantage of his superior position over the Plaintiff and therefore committed the sexual misconduct in a situation proximate, in terms of time and place, to his job responsibilities. Therefore, the court found the lower court correctly applied the law in finding employer liability, as the sexual misconduct was objectively related to the Defendant’s job duties.



R(F) v. DPP [2014] Q.B. 581 Queen's Bench (2014)

Sexual violence and rape

The claimant, who did not wish to become pregnant, consented to her husband, whom she had married in an Islamic ceremony, having sexual intercourse with her on the basis that he would withdraw his penis before ejaculating. He decided that he would not withdraw, just because he deemed the claimant subservient to his control, she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly her consent was negated. She became pregnant as a result. Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuation of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina. In law, this combination of circumstances falls within the statutory definition of rape. In this case, following the conditional consent established in Assange, he was found guilty of rape.



Supreme Court Decision 2009Do3580 Supreme Court of South Korea (2009)

Gender discrimination, Gender-based violence in general, Sexual violence and rape

The Victim, born a male, identified as a female while growing up and was diagnosed with gender identity disorder. At the age of twenty-four, the Victim underwent a sex-change operation and was diagnosed as a transsexual by a psychiatrist. The Victim had cohabited with a male for ten years and had lived as a female for the past thirty years after the operation. Under Korean law, the victim of the crime of rape must be female. Thus, the central issue of the case pertained to the appropriate standard in determining the legal gender of a rape victim. The Supreme Court affirmed the lower court’s decision, holding that the Victim was a female under the law. In making this decision, the court noted that it must conduct a comprehensive evaluation of the biological, psychological and social factors, rather than merely relying on biology. Thus, in determining an individual’s gender, the Supreme Court noted that lower courts must consider the individual’s own sense of identity, including an individual’s behavior, attitude and characteristics. Additionally, courts must look to factors such as the individual’s discomfort regarding his or her biologically assigned gender, the individual’s sense of belonging and identity, whether the individual wants to obtain the genitals and other sexual characteristics of the opposite sex, whether a psychiatrist has diagnosed the individual as having transsexualism and whether the individual has received psychiatric treatment and hormone therapy, which failed to cure such symptoms. Lastly, courts must look at factors such as whether the individual has adapted to the opposite sex mentally and socially, has undergone sex reassignment surgery, identifies with such gender, wears the clothes and carries him or herself as the opposite sex, and whether others accept the changed gender. In this case, the Victim identified herself as a female and did not associate herself as a male, underwent a sex-change operation, and lived her life as a female for over thirty years after the operation. Thus, the court concluded the Victim was a female, and a rape was committed with knowledge that the Victim was a female.



R v. Bree [2008] Q.B. 131 Court of Appeal of the United Kingdom and Northern Ireland (2008)

Sexual violence and rape

The complainant had been severely intoxicated while the defendant had sex with her. It was found that in order for sex to be consensual the victim must have the capacity (the ability) to say no. If one is so inebriated as to be incapable of refusing intercourse, such intercourse is rape. If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant's state of mind, if intercourse takes place, this would be rape. However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape.



RO v. R Supreme Court of New South Wales (Court of Criminal Appeal) (2013)

Sexual harassment, Sexual violence and rape

This case concerns the sentencing of a sexual offender. The offender was convicted of eight counts of sexual intercourse and indecent assault against a sixteen year old girl. The defendant appealed his sentence, arguing that the judge erred in his determination that the victim “suffered significant psychological damage as a result of the offense.” On appeal, the Court found that the lower court erred in making the finding of “substantial” harm. The Court further held that the victim’s “psychological damage was multifactorial and that in the absence of medical evidence which separated out the effects of these offences,” the lower court’s determination of substantial psychological harm resulting from the offenses was inappropriate.



R v. Jheeta [2008] 1 W.L.R. 2582 Court of Appeal of the United Kingdom and Northern Ireland (2008)

Sexual violence and rape

The defendant and the complainant had been involved in a sexual relationship for some time when the complainant started to receive threatening text messages and telephone calls. The complainant, who was unaware that the defendant was sending the messages, confided in the defendant and allowed him to contact the police on her behalf. He did not do so but over a long period sent her text messages purporting to be from a succession of police officers dealing with the bogus investigation, and he obtained £700 from the complainant for security protection which he pretended to arrange. Eventually the complainant wanted to break off the relationship with the defendant, but on approximately 50 occasions over a four-year period the defendant, posing as a police officer, sent text messages telling the complainant that she should have sexual intercourse with him, and that she would be liable to a fine if she did not. The complainant complied, although she would not have done but for those messages. Subsequently, the complainant approached the police, following which the defendant was arrested. During a police interview the defendant admitted that he had been responsible for the fictitious scheme and that on numerous occasions the complainant had not truly consented to intercourse. Since the complainant had been persuaded by deceptions, the court held the defendant guilty of rape.



Furaha Michael v. The Republic Court of Appeal of Tanzania at Mwanza (2010)

Gender-based violence in general, Sexual violence and rape

The appellant was charged and convicted of rape. He was sentenced to 30 years imprisonment and ordered to pay compensation to the victim of shillings 300,000 upon completion of his sentence. His first appeal was unsuccessful, so he appealed a second time, claiming that he was not properly identified, breach of criminal procedure and the fact that the court did not allow him to call a defence witness. The Court found no merit in the appeal and upheld the conviction. It applied and followed the case of Selemani Makumba versus R Criminal Appeal, Court of Appeal of Tanzania at Mbeya 1999 (unreported). The Appellate Court considered whether or not the complainant had been raped by the appellant and concludes that “True evidence of rape has to come from the victim, if an adult, that there was penetration and no consent, and in the case of any other woman where consent is irrelevant, that there was penetration...”



The Case of Fauzia Parveen Supreme Court of Pakistan (2013)

Sexual violence and rape

Proceedings were initiated on basis of a press clipping dated 4th November, 2013, indicating the gang rape of a deaf dumb woman, Mst. Fauzia Parveen who took it upon herself to go to the Magistrate when no one believed her and submitted an application for a medical examination (which was ultimately granted and conducted clearly revealing evidence of rape). The Court determined that the facts support the allegation of rape and also that the police were negligent in dealing with the matter and tried to cover up their negligence. The Court notes that, regardless of the inconsistency regarding the number of men who raped the victim, “as per the medical report the happening of the incident cannot be denied”. Quite importantly, the Court seeks accountability for the incident and confirms police negligence in handling the complaint (e.g., the victim’s statement was not properly documented by the investigating officers). The Court goes so far as to say, “Prima facie, we are of the opinion that the police has been influenced on account of extraneous reasons, because no action has been taken either by the police or the high ups, despite the fact that the matter was brought to their notice.” The Court directed the Inspector General Police, Punjab to initiate an independent investigation and criminal proceedings against the negligent police officers and involved officials.



People’s Procuratorate of Ruian City Zhejiang Province v. Li Intermediate People’s Court of Wenzhou (2014)

Sexual violence and rape

Li was charged of crime of rape for raping the victim Zhang at her drunk. Li gets to know Zhang through wechat, a social app, three weeks before he asked Zhang out for dinner. After Zhang was drunk, Li took her to a hotel and had sex with her. The trial court finds Li guilty. Li appealed, arguing he and Zhang are in a relationship and there is no evidence Zhang was drunk at that night. There is also doubt about the examination of the sample collected from Zhang’s vagina and therefore it cannot be used as evidence against Li. Furthermore, Li has nephrosis and cannot have an erection, therefore he could not possibly rape Zhang. The appellate court finds that the raping fact is proved by not only the sample examine result, but also witness testimony, video recording and victim statement, and therefore are reliable. There is no evidence showing Li and Zhang are in a relationship. And that according to expert’s opinion, nephrosis would not have effect on sexual erection. Therefore, the conviction is affirmed.


Jerome Arscott v. R Court of Appeals of Jamaica (2014)

Sexual violence and rape

A young woman was sexually assaulted by a male police officer who encountered the woman while he was picking fruit behind her house. The officer followed the woman into her home, where he exposed his genitals and attempted to penetrate the woman’s vagina despite her resistance. Afterwards, the woman successfully identified him in an identification parade and he was subsequently charged with the offences of assault with intent to rape and indecent assault, for which he was convicted at trial and sentenced to nine months hard labor imprisonment. At sentencing, the trial judge found that the aggravating nature of the sexual offence outweighed the defendant’s mitigating circumstances, such as his status as a police officer. The officer appealed the sentence on the ground, inter alia, that his sentence was manifestly excessive and ought to have been non-custodial. The Court of Appeal dismissed the officer’s appeal because it agreed with the trial judge’s balancing approach, and noted that the maximum penalty that could have been imposed was three years of hard labor imprisonment. Moreover, the Court agreed with the trial judge’s statement that to a impose a non-custodial sentence for a case of sexual assault against a woman would send a wrong signal to both members of the police force and the general population in a society, such as Jamaica, where gender-based violence is prevalent.



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.



Liu v. Zhu Court of Huilai County, Guangdong Province (2013)

Divorce and dissolution of marriage, Sexual violence and rape, Sexual harassment

The plaintiff Liu alleged that she had a illegitimate son with a Yang when she was working in Sichuan province. Soon after that, she was having another child with a Chen. Since Chen was not going to perform his duty as a father, Liu decided to give birth to the child and raise it herself. Several months later, Liu’s first son, Yang was introduced by a matchmaker to the respondent as an adopted son. Out of the strait situation Liu faces, she agreed. Several days later, the respondent Zhu proposed since the son is too naughty and needs his mother to look after him, it is better that Liu came along. Liu came and Zhu’s little brother asked Liu to marry Zhu, and they will pay her 100,000 as gift, but Liu need to take care of Zhu. Liu agreed. After the wedding, Liu found out the respondent was disabled and sit on a wheelchair, having no sexual capability. However, the respondent kept sexually harassing the plaintiff. Plaintiff argued that she was cheated to get married, and Zhu lacks sexual ability, therefore she sued for divorce. The court finds that although the marriage is facilitated by a matchmaker, the two have lived together for many years and have developed some feelings for each other. Plaintiff’s arguments are not supported by any evidence, thus are not considered by the court.


R v. Noel Campbell, Robert Levy Court of Appeals of Jamaica (2007)

Sexual violence and rape

While walking on the sidewalk on her way to work, a young woman was forced into a gully where she was raped and robbed at gunpoint by two men in the early hours of the morning. At trial, the two men were convicted after the woman had seen and recognized both defendants out in public after the rape and subsequently reported them to the police. The defendants appealed the conviction on the grounds that, inter alia, the trial judge had failed to adequately warn the jury of the dangers of relying on uncorroborated evidence in rape cases and also that the trial judge had failed to adequately assess the woman’s identification evidence. The Court rejected the appeal, citing precedent that, in sexual assault cases, where the only defense is mistaken identity and the court is satisfied with the complainant’s identification, traditional sexual assault warnings regarding corroborated evidence need not be given to the jury.



Zhao Fei, Yang Fang v. Cao Yin, Cao Chaoran, Luo Shihui etc. Hechuan District Court, Chongqing (2014)

Sexual violence and rape, Femicide

In 2012, the deceased respondent, Cao Yin cheated the deceased victim, Zhao Jing, to a Tap Water Company for interview, and arranged Zhao to start to “work”. On the next day, Cao tied Zhao up and brought her to the duty office of the company, forcing her to have sex with him. After that, afraid of being caught, Cao killed Zhao. Cao was caught finally by the police. In 2013, Cao was sentenced to death by First Intermediate Court of Chongqing. The judgment has been affirmed by the Supreme Court of Chongqing and Supreme Court of PRC. Cao has been executed. The plaintiff alleged that after Cao Yin’s death, his successors first in order shall be responsible for the damages caused. The plaintiff also sues against the Tap Water Company for their lack of due diligence. The court finds that, among the four respondents, all of whom are the successors first in order of Cao Yin, Cao Chaoran and Luo Shihui clearly quit their right of inheritance. Therefore, only the other two are responsible.


Campbell (Peter) v. R Court of Appeals of Jamaica (2008)

Sexual violence and rape

While taking a taxi to school, a 13-year-old girl was forcibly raped by the taxi driver, whom she had previously encountered. After learning about the incident, the girl’s mother reported the driver to the police and he was subsequently convicted at trial for rape and sentenced to 15 years imprisonment at hard labor. At trial, the driver’s defense was one of alibi—a denial of his involvement in the offence. When instructing the jury on the definition of rape, the trial judge omitted a discussion on the element of intent to rape, which would have required the jury to find that the defendant intended to have sexual intercourse with the girl without her consent. On appeal, the driver argued, inter alia, that this omission of an element of rape from the jury instructions rendered his conviction unsatisfactory. However, the Court rejected this argument because the driver’s defense did not challenge whether the girl had consented to the intercourse, instead he argued that he had no intercourse with the complainant. According to the Court, the question of intent to rape is only relevant in cases where there is an issue as to whether or not the complainant had consented, and thus because the driver’s defense was one of alibi, and not consent, the Court concluded that it was not necessary for the trial judge to provide an expanded definition of rape.



DW v. R Court of Criminal Appeal (New South Wales) (2014)

Sexual violence and rape, Statutory rape or defilement

Appellant in this case was convicted of various sexual offenses against his minor daughter, the complainant, including charges of possessing child pornography. During the course of the trial, a recording of a conversation between the appellant and complainant had been entered into evidence. The recording detailed a sexually inappropriate conversation between the parties. At the trial level, this piece of evidence was deemed “reasonably necessary for the complainant’s lawful interest in protecting herself” from abuse by the father and was therefore allowed in as evidence. Appellant asserted that the recording was entered in error. The Court held that even if the recording was in fact entered in error, there was “no substantial miscarriage of justice and the appellant has not lost a real chance of acquittal.” Therefore, the appeal was dismissed.



Richard Barrett v. R Court of Appeals of Jamaica (2009)

Sexual violence and rape

A 16-year-old girl was walking home from school when a man drew a gun on her, forced her into his home and raped her. At trial, the judge—acting as trier of fact—found the man guilty of illegal possession of a firearm and rape. Because the incident was not corroborated, the judge characterized the case as an issue of credibility. The defense attempted to discredit the girl’s credibility by pointing to discrepancies between her testimony in court and her original statements to the police. While the trial judge had acknowledged that the testimony was inconsistent, the judge also acknowledged that the girl’s rape was a traumatic experience and thus her statements to the police were given under exceptional circumstances. The Court agreed with the lower court that discrepancies are to be expected in cases of this nature and so long as they are minor discrepancies, the witness may still remain credible.



Montero v. R Court of Criminal Appeal (New South Wales) (2013)

Sexual violence and rape, Statutory rape or defilement

The complainant, age 15, was sexually assaulted while staying at the applicant’s home. The applicant was convicted of the sexual offense and appealed the conviction. The applicant argued that the judge inappropriately used the location of the offenses, the applicant’s home, as an aggravating factor. The Court held that the application of this sentencing factor was appropriate as it concerns the violation of a visitor’s “reasonable expectation of safety and security.” The Court held that the sentencing judge did not err in terms of the administration of the sentence.



Public Prosecutor v. Intol Bin Langgar Intermediate Court of Brunei (1993)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The defendant was charged with two charges of rape of the complainant, a 14 year old female, punishable under section 376(1) of the Penal Code, and two charges of unlawful carnal knowledge with a girl under 16 years old, an offence under section 2 of the Unlawful Carnal Knowledge Act (Cap. 29). DNA and other forensic evidence indicated that the defendant was the biological father of the complainant’s child. While that evidence alone could not prove rape, the complainant’s evidence, consisting largely of her testimony, was found credible despite minor discrepancies in the testimony of her various witnesses. The court held that the prosecution had proved beyond the reasonable doubt the four charges against the defendant, and he was accordingly convicted. The court sentenced the defendant to 10 years imprisonment on the first and second charge, and four years imprisonment on the third and fourth charge, to run concurrently. A total sentence of imprisonment was 10 years was imposed.



People v. Brials Court of Appeals First District (2000)

Sexual violence and rape, Statutory rape or defilement

Brials and another defendant were convicted of the sexual assault and unlawful restraint of an 11-year-old girl. In their appeal, the defendants contended that the conviction for aggravated criminal sexual assault based on commission during the felony of unlawful restraint should be reduced to a conviction for criminal sexual assault because unlawful restraint is a lesser-included offense and should not be used as an aggravating factor. The Court of Appeals affirmed the convictions, but remanded to the trial court to resentence. Because unlawful restraint was already an inherent factor in criminal sexual assault, it could not also be used as an aggravating factor. Thus, the defendants could only be convicted of criminal sexual assault.



Public Prosecutor v. Yaha Bin Mansor High Court of Brunei (1991)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The defendant pleaded not guilty to (i) two charges of attempted rape and (ii) two charges of rape, punishable under section 376 of the Penal Code. The prosecution withdrew the fourth charge during the trial. The court noted that since the complainant was under the age of 14 at the time of each alleged incident, her consent was not relevant. As the court found no corroboration of the complainant’s evidence, it had to rely upon her credibility. The court found that the complainant was exaggerating when she claimed that the defendant attempted to rape her. The court did not agree that he did more than commit an act of indecency under Section 354 P.C., which contains the offence of assault or criminal force used on a woman with intent to outrage her modesty. The court acquitted the defendant of attempted rape and rape, but convicted him of the offence of indecency for all three charges. He was sentenced to three years and four strokes for each of the three charges, which are cumulative and consecutive sentences. The defendant was ordered to serve a total of nine years and suffer a total of 12 strokes, with a reduction for time already spent in custody.



Daria W. v. Bradley W Court of Appeals Third District (2000)

Sexual violence and rape

The petitioner filed for an order of protection for her minor child against the respondent, Bradley W., the child’s father. On appeal, the defendant argued that the trial court made a mistake in applying section 606(e) of the Marriage Act to admit the minor child’s hearsay statements alleging sexual abuse by the father. The Court of Appeals looked at two different statutes that could apply to the legal issue, and according to the rule of statutory construction the more specific statute governed, which is what the trial court had followed. The Court decided that they were in no position to question the trial court’s conclusions, so they affirmed the judgment.



Public Prosecutor v. Besar Bin Ahmad Intermediate Court of Brunei (1996)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The defendant pleaded not guilty to raping a 16 year old female, punishable under section 376(1) of the Penal Code, and the alternative charge of attempted rape, punishable under section 376(2) of the Penal Code. The court was satisfied that the complainant’s complaint to her mother was made by her at the earliest possible moment, which was consistent with her complaint to the police and other evidence, therefore corroborating the complainant’s evidence. The court found the complainant credible, and accepted her evidence indicating that she did not consent. In addition, the complainant was examined by a doctor, who found numerous injuries and concluded in her report that there was some injury to the complainant’s vulva, which may be due to attempted sexual intercourse. The court found, however, that the doctor did not seem sure whether penetration occurred. Regarding whether there was penetration, the court found the complainant’s evidence unreliable, and therefore reasonable doubt. The court convicted the defendant of attempted rape and voluntarily causing hurt. The court imposed sentences of 10 years imprisonment and 12 strokes.



Detention Action v. Secretary of State for the Home Department (SSHD) High Court of the United Kingdom and Northern Ireland (2014)

Sexual violence and rape, Trafficking in persons

DFT, or Detained Fast Track, involves the placement of asylum seekers in detention while the outcome of their claim is determined. The claimants identified numerous issues in the DFT system with respect to female asylum-seekers and asserted that “the [DFT] system as operated created an unacceptable risk of unfairness for asylum seekers” and especially for vulnerable populations. These populations include pregnant women and trafficked women, who may find the detention period traumatic and who are likely to present complex cases. The Court held “that the DFT as operated carries with it too high a risk of unfair determinations for those that may be vulnerable applicants,” but emphasized that detention periods in and of themselves are not unlawful.



Public Prosecutor v. Abdullah Bin HJ Yakub High Court of Brunei (1991)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The defendant pleaded not guilty to two charges of raping a 14 year old female, under sections 376(1) and (2) of the Penal Code, and having carnal knowledge of a female under the age of 16 years, under Section 2 of the Unlawful Carnal Knowledge Act, Cap. 29. The fact of sexual intercourse was not disputed. However, because the complainant was under 14 years old when the offences occurred, her consent was not relevant to the charge of rape. Nonetheless, because of her consent, the defendant was acquitted of the charge of aggravated rape. The court convicted the defendant of rape, and imposed a sentence of four years imprisonment and six strokes. The court also convicted the defendant of having carnal knowledge of a female under the age of 16 years, and imposed a sentence of three years imprisonment and six strokes. The sentences of imprisonment were concurrent, with the defendant to serve four years total. The sentences of whipping were consecutive, with the defendant to receive 12 strokes total.



T.M. et. al. v. Miroslava T. T. et. al. Austria Supreme Court (2009)

Sexual violence and rape, Trafficking in persons

The defendants were held guilty of violating several provisions of the Austrian Criminal Code after the lower court found that they acted as a criminal organization to recruit victims by means of extortion, massive violence, penalties for not performing sex work and threats and arranged for the victims’ transfer and accommodation in brothels in Austria. After an appeal on procedural grounds, the Austrian Supreme Court upheld the convictions.



Public Prosecutor v. Billy Metussin High Court of Brunei (1993)

Gender discrimination, Gender violence in conflict, Gender-based violence in general, Sexual violence and rape, Statutory rape or defilement

The defendant pleaded not guilty to one charge of attempted rape of an 11 years and 10 months old female, under section 376(1) of the Penal Code. The court found that the complainant gave different versions as to the events that occurred. It found the complainant’s evidence unreliable. The court concluded that the complainant was the initiator of the events that led to the attempted intercourse. The court found that there was an attempt at sexual intercourse. In view of medical evidence that revealed that the hymen was intact and that ejaculation may have occurred outside the complainant, the court found doubt as to whether penetration occurred. The court highlighted that consent was not a defense to rape as the complainant was under the age of 14 at the time at issue. Nonetheless, consent becomes relevant to punishment, as a minimum sentence is prescribed for rape which occurs “without the consent of the victim”. The court found that the complainant gave her consent to the defendant’s attempt to have sexual intercourse with her and that she gave a real consent, not vitiated by immaturity or by any of the other factors specified in section 90 P.C. The court convicted the defendant of attempted rape and imposed sentences of one year imprisonment and three strokes.



Republic v Arawaia Court of Appeal of Kiribati (2013)

Sexual violence and rape

Mr. Arawaia plead guilty to indecent assault and defilement involving the repeated rape of the 12 year old grand daughter of his wife. When the girl told her grandmother, Mr. Arawaia’s wife, of the rapes, Mr. Arawaia apologized. Later Mar. Arawaia wanted the victim to sleep with him, and the victim’s grandmother told her to do so. The victim was again raped by Mr. Arawaia. The High Court, in sentencing Mr. Arawaia, considered Mr. Arawaia’s early plea, the seriousness of the case, and also Mr. Arawaia’s apology to the girl. Ms. Beiatau, arguing for the Republic, appealed on the grounds that the sentence was manifestly inadequate. Ms. Beiatau argued that due to the rising prevalence of sexual offences in Kiribati, sentencing guidelines were needed. She further contended that the High Court erred in considering Mr. Arawaia’s apology to the girl a mitigating factor. Relying on Kimaere v The Republic, a Kiribati Court of Appeal decision from 2005, and sentencing standards set in New Zealand and Australia, the Kiribati Court of Appeal found that a five year prison sentence was an appropriate starting point in defilement cases. The Court noted that where multiple offenses are considered, it is more important to proportion the entire length of the sentence to the entirety of the defendants conduct, rather than worrying about adding together the sentences for each offense. Determining that Mr. Arawaia’s conduct justified a prison sentence of seven to eight years, the Court then discounted his sentence, for his early plea, to an increased total of five years. The Court found Mr. Arawaia’s apology to have been incorrectly considered a mitigating factor. The Court also held that the starting point for the indecent assault charges would have been two and a half years before discounting for mitigating factors



Maria N. et. al. v. Ferenc D. Austria Supreme Court (2011)

Sexual violence and rape, Trafficking in persons

The defendant was convicted of trafficking in persons for the purpose of prostitution after the lower court found that he lured the victims from Hungary into Austria under the false pretext that they could work as cleaners in an Austrian Hotel and then threatened them with injury or death to force them to work as prostitutes. The Austrian Supreme Court upheld the conviction on appeal.



Public Prosecutor v. HJ Bidin Din HJ MD Noor High Court of Brunei (1995)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The defendant pleaded not guilty to five charges of rape of an approximately 13 year old female, under section 376 of the Penal Code. The court emphasized that these were rapes only because of the complainant’s age, not because any force was used against her. The court noted that the fact that a rape is committed with consent does not lower the standard of proof which is required of the act itself. The court reasoned that it would be dangerous to convict in reliance on the complainant’s evidence, which had several inconsistencies. Additionally, the testimony of an examining doctor showed that the complainant’s evidence was suspect. The complainant denied having had sexual intercourse with anyone in the date range at issue, which did not agree with the evidence of the examining doctor, which the court accepted. The court found that if she cannot be believed as to that, it could not rely on her uncorroborated evidence on any of the charges. The defendant was acquitted of all five charges and the court ordered his discharge.



People’s Procuratorate of Tianchang City Anhui Province v. Wang Chuanbao, Qu Qinchen People’s Court of Tianchang (2014)

Statutory rape or defilement, Sexual violence and rape

The defendants Wang Chuanbao and Qu Qinchen were charged of crime of rape for repeatedly raping the victim Wang, and crime of coercive indecency for violently digging and touching Wang’s genitals. The prosecutor alleges that according to Article 25 section 1, Article 236 section 1 and Article 237 section 1 of Criminal Law of PRC, Chuanbao and Qinchen raped and molested Wang “with violence or threats”, constituting the crime of rape and coercive indecency. Chuanbao argues that he did not have sex with Wang, and all the evidences are hearsay evidence, thus is not guilty. Qinchen argues that he did not commit the crime of coercive indecency because taking off the trousers of the victim is to have sex with Wang. After Wang refused to do so, Qinchen stopped raping her and has no mens rea to molest her. The court finds that the fact the Chuanbao and Qinchen raped Wang had also been proved by the testimony of Qinchen’s girlfriend, one of the witnesses, therefore is founded. The act of coercive indecency is regarded as absorbed by the act of rape and thus would not be convicted separately under this crime.


Robert Rowe v. R Court of Appeals of Jamaica (2014)

Sexual violence and rape

A 13 year old female complainant was raped in the home of the male defendant, where the complainant was a regular visitor. Despite rejecting the defendant’s monetary compensation to remain silent, the complainant did not disclose the incident until two weeks later when a third party noticed that she appeared to be depressed. At trial, the defendant was convicted by a jury for the offences of rape and indecent assault for which he was sentenced to 12 years and 2 years imprisonment, respectively, to be served concurrently. The jury had been instructed to base its decision on the credibility of the witnesses. On appeal, the defendant argued, inter alia, that there was a presumption of doubt on which the trial judge ought to have instructed the jury regarding the complainant’s credibility. According to the defendant, the complainant had several opportunities to promptly speak to a third party after the incident but did not do so, which should have called the truth of her testimony into question. The Court of Appeal dismissed the appeal because it was in the jury’s discretion whether to believe the complainant. Moreover, the Court, in dictum, noted that it is established that many victims of sexual crimes remain silent for a considerable length of time before making disclosures to third parties, and notwithstanding the lapse of time, the perpetrators of these crimes have nevertheless acknowledged the truth of the allegations made against them.



Public Prosecutor v. Khairul Bin Haji Dagang Intermediate Court of Brunei (1994)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The defendant pleaded not guilty to two charges of rape of a 14 year old female and a 24 year old female, under section 376 of the Penal Code. Regarding the first charge, the court accepted the first complainant’s evidence. Corroboration that she did not consent included fresh abrasions found by a doctor on the defendant’s arms and chest, the crying and distress of said complainant as observed by several witnesses very soon after the incident and the promptness of the complaints made by her. The court held the defendant guilty of having sexual intercourse with said complainant against her will or without her consent, imposing a sentence of seven years imprisonment and six strokes. The court also accepted the second complainant’s evidence. Corroboration that she did not consent included her sad condition and her crying as observed by a witness immediately after the incident, and the complaints she made to said witness, her mother, brother and the police. The court found that the defendant said threatening words which had put her in fear of death or hurt. The court held the defendant guilty of aggravated rape of said complainant, imposing a sentence of nine years imprisonment and 14 strokes. The sentences as to each rape were to run consecutively.



Mkandla v. The State High Court of Zimbabwe (2002)

Sexual harassment, Sexual violence and rape

The appellant was convicted of two counts of rape for allegedly raping the complainant, a 12 year old female, on two separate occasions. He was sentenced to a total of 20 years imprisonment, with half suspended for five years on condition of good behavior. The trial judge and court both found the complainant credible. The court found that the conviction of rape on count two should stand due to circumstantial evidence, which indicated penetration; however, not on count one, which included all of the essential elements of attempted rape, but insufficient proof of penetration so as to constitute rape. The conviction on (i) count one was quashed and reduced to one of attempted rape and (ii) count two was confirmed. The sentences imposed by the trial court were set aside and substituted with seven years of imprisonment on count one and 10 years of imprisonment on count two. Of the total 17 years imprisonment, eight years was suspended for four years on condition that the appellant in that period does not commit any offence involving rape or an offence of a sexual nature and for which he is convicted and sentenced to imprisonment without the option of a fine.



United States v. Cortes-Castro, 511 Fed. Appx. 942 (11th Cir. 2013) Court of Appeals Eleventh District (2013)

Sexual violence and rape, Trafficking in persons

After the Department of Homeland Security learned that Ernesto, Alberto and Israel Cortes Castro, were smuggling women from Mexico into the U.S. for forced prostitution, they were charged with conspiring to traffic women for prostitution by force or coercion in violation of 18 U.S.C. § 1594(c) and other substantive trafficking crimes. The Defendants plead guilty to the conspiring charge in exchange for the dismissal of the other charges. The factual proffer submitted with the plea agreements stated that the Defendants agreed to establish a sex-trafficking business in the U.S. in which women would be transported from Mexico and prostituted in exchange for money. It also detailed the methods employed by the Defendants to defraud, force and coerce women into prostitution. The district court accepted the plea agreements and sentenced the Defendants to 180 months of imprisonment, an upward variation from the 108-135 month range provided by the advisory guidelines. According to the district court, the upward variation was justified by the “unusually heinous, cruel, brutal and degrading” nature of their conduct. Additionally, the court ordered the Defendants to pay $1,239,200 in restitution losses to the victims. On appeal, the Defendants challenged the upward variation and the restitution award. The Eleventh Circuit Court of Appeals found that the district court had not abused its discretion by sentencing the Defendants to terms 45 months over the advisory guidelines range because they had “enslaved, demeaned and debased immigrant women” forcing them into prostitution for several years and subjecting them to mental, physical and emotional abuse. The Court further held that the district court reasonably determined that an upward variation was required to address the “abhorrent nature” of the crimes. Finally, the Court held that the district court did not err in granting the restitution award because the victims were statutorily entitled to compensation and such award was based on factual information in the factual proffer and the presentencing report.



The State v. Imbayarwo High Court of Zimbabwe (2013)

Sexual harassment, Sexual violence and rape

The accused was convicted of two counts, rape and robbery, as he allegedly raped the complainant and threatened to kill her if she told anyone. The two counts were taken as one for the purpose of imposing a sentence of 20 years imprisonment. He received an effective prison term of 17 years. The court noted that the conviction of rape was not at issue; instead, it was the conviction of robbery and the trial judge’s sentencing approach at issue. The court was not convinced that the essential elements of robbery were established regarding the accused’s taking of a cellphone and his subsequent actions, as the circumstances under which the cellphone was surrendered were not clear. Therefore, the facts supported a conviction of theft, not robbery. The court found that the trial judge should not have treated both counts as one for the purpose of sentencing. The court confirmed the conviction of rape, with a sentence of 12 years imprisonment with labor. The robbery conviction was set aside, and substituted for theft of a cellphone, with a sentence of six months imprisonment with labor.



United States v. Chang Da Liu, 538 F. 3d 1078 (9th Cir. 2008) Court of Appeals Ninth District (2008)

Sexual violence and rape, Trafficking in persons

Ming Yan Zheng and her husband Chang Da Liu opened a brothel in Saipan, the capital of the Commonwealth of the Northern Mariana Islands (“CMNI”). They recruited employees in China by advertising for positions as waitresses, nightclub performers and service workers. The materials promised wages of between $3,000 and $4,000 and required applicants to pay a $6,000 processing fee. Upon their arrival to CMNI, the employees were forced into prostitution. Six of the victims reported the situation to the FBI which resulted in Zheng and Liu’s convictions for conspiracy, sex trafficking, foreign transportation for prostitution and transportation of persons in execution of fraud. On appeal, Zheng challenged her conviction on several grounds, inter alia, that the court lacked jurisdiction to prosecute her. Zheng argued that the Federal Government lacked authority to prosecute her because Section 501 of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (“the Covenant”) limited the application of the criminal statutes under which she was convicted in the CMNI. According to Zheng, Section 501provides an exhaustive list of the provisions of the U.S. Constitution which apply to the CMNI. As such, she could not be prosecuted under the criminal statutes used to prosecute her because they were enacted under the commerce clause and that territorial clause, which provisions are not listed in Section 501 of the Covenant. The Court found Zheng’s argument to be lacking because Section 501 sets forth the Constitutional provisions which apply in the CNMI as if it were a state. By contrast, the commerce clause and the territorial clause apply to Congress and regulate its ability to enact legislation applicable to the CMNI. As such, the Court held that Congress had authority to legislate over the CMNI, and that the court had jurisdiction over Zheng. The Court pointed out that although Congress has authority to legislate over the CMNI, the Covenant does limit Congress’s powers with respect to legislation enacted after the Covenant’s effective date. For such legislation, the Court must balance the federal interest served by the legislation against the degree of intrusion into the CMNI’s local affairs. However, the Court found that the federal interest in combating international sex trafficking through the U.S. territories outweighs the intrusion into the CMNI’s local affairs.



Mpande v. The State High Court of Zimbabwe (2011)

Sexual harassment, Sexual violence and rape

The appellant was convicted of one count of rape for allegedly raping a 3 year old child who had been left in his care, and infecting her with syphilis, a sexually transmitted infection. He was sentenced to 18 years imprisonment, with three years suspended for five years on condition of good behavior. The appellant appealed against the sentence. The court emphasized that courts are required to consider numerous factors, and have wide discretion, in sentencing. The trial court noted that the appellant’s case was aggravated because he was “in a protective relationship with complainant”, who was a very young child. The court agreed with the trial judge’s sentencing approach, noting that the appellant was extremely lucky that he did not get a harsher sentence. The court reasoned that an appeals court will only interfere with the trial court’s sentencing discretion where there is misdirection or a manifestly excessive sentence. As this had not been shown and as the relevant statute prescribes a higher sentence than the one imposed, the appeal was without merit and was dismissed.



United States v. Flanders, 752 F.3d 1317 (11th Cir. 2014) Court of Appeals Eleventh District (2014)

Sexual violence and rape, Trafficking in persons

Defendants Flanders and Callum engaged in a scheme to lure aspiring models to South Florida, drug them with Benzodiazepines, film them engaging in sexual acts and distribute the film for profit. The two were convicted on conspiracy charges and multiple counts of inducing women to engage in sex trafficking through fraud and benefitting from that scheme. The two were sentenced to a total imprisonment term of life, including sixty month terms for the conspiracy charge and life terms for each of the sex-trafficking charges to run consecutively to each other. On appeal Flanders challenged his conviction on sufficiency of the evidence grounds. He claimed the conspiracy conviction could not be sustained because there was insufficient evidence of an agreement between the Defendants or of an overt act in furtherance of the conspiracy. The Court held that evidence that Flanders represented himself as a Bacardi agent and a fictitious female employee of a modeling agency, together with evidence that Callum referred to the fictitious female employee and used phrases Flanders used to lure the models, was sufficient to establish an agreement amongst the Defendants to defraud the victims and constituted overt acts in furtherance of the agreement. Additionally, the Defendants challenged their convictions on double jeopardy grounds, claiming that convictions under 18 U.S.C. §1591(a)(1) and (a)(2) were multiplicitous. The Court held that Section 1591(a)(1) requires the prosecution to prove that the defendant was criminally responsible for the recruitment or enticement of a person with the knowledge that such person will be fraudulently induced to engage in a commercial sex act. By contrast, Section 1591(a)(2) only requires participation in a venture which has recruited a person for such purposes and that the defendant receive valuable benefit from his participation. Applying the Blockburger test, the Court held that the each subsection of the trafficking statute requires proof of different elements that the other does not and that convictions under each subsection do not result in a violation of the Double Jeopardy Clause of the U.S. Constitution.



The State v. Tirivanhu High Court of Zimbabwe (2010)

Sexual harassment, Sexual violence and rape

The accused was convicted of three counts of contravening s 65 of the Criminal Law (Codification and Reform) Act Cap 9:23, for allegedly raping the complainant, aged 12 years, on three different occasions. He was sentenced to five years imprisonment, with three years suspended on condition of good behavior and the remaining two years suspended on condition he performed 840 hours of community service. The court found that case law clearly demonstrated that rape can only be committed when there is penetration. Evidence of the slightest penetration is sufficient. As the accused failed to penetrate the complainant on the first and third occasions, the court found that he should not have been convicted of rape on counts one and three, but only attempted rape. The court overturned the convictions for rape on counts one and three, which were substituted for attempted rape. The court upheld the imposed sentence, but it reduced the community service sentence to 630 hours.



United States v. Mozie, 752 F.3d 1271 (11th Cir. 2014) Court of Appeals Eleventh District (2014)

Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Defendant James Mozie ran prostitution ring from his house, commonly known as the Boom Boom Room by his customers. Mozie recruited vulnerable teenage girls by posing as a modeling agent, luring them to the Boom Boom Room, and forcing them to have sex with him and his customers. In 2011, law enforcement agents raided the Boom Boom Room and Mozie was subsequently charged with one count of conspiring to commit child sex trafficking in violation of 18 U.S.C. § 1594(c), eight counts of child trafficking in violation of 18 U.S.C. § 1591(a) and one count of producing child pornography in vilation of 18 U.S.C. § 2251(a). The jury convicted Mozie of all ten counts and he was sentenced to the guideline-recommended sentence of life imprisonment. On appeal, Mozie claimed his conviction under 18 U.S.C. § 1591(a) violated the Fifth Amendment’s Due Process Clause. Mozie argued that the statute is facially unconstitutional because it allows the government to obtain a conviction without proving beyond a reasonable doubt that the defendant knew his victim was a minor. The Court held that the statute is not unconstitutional because it requires the Government to prove beyond a reasonable doubt that the defendant had a reasonable opportunity to observe the victim. If such element is proven, then the Government need only prove that the defendant recklessly disregarded that victims age. The Court explained that the Due Process clause does not prevent Congress from criminalizing reckless conduct, especially in the context of statutory rape and other measures to protect young children from sexual exploitation. Additionally, Mozie contended that his conviction should be reversed because his indictment was constructively amended by the district court. Mozie’s indictment alleged conjunctively that he knew and recklessly disregarded his victims’ age. The district court, however, instructed the jury that they could convict Mozie “if they found he either knew his victims were minor or recklessly disregarded the fact that they were minors.” The Court held that there was no constructive amendment of the indictment because when an indictment charges in the conjunctive, the jury instructions may properly be framed in the disjunctive.



Banda v. The State High Court of Zimbabwe (2002)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The appellant was found guilty of allegedly raping the complainant, aged 5 years and 11 months. He was sentenced to 10 years imprisonment, with two years suspended on condition of good behaviour. He appealed against both the conviction and the sentence. The questions at issue were (a) whether the crime of rape was committed and (b) whether the complainant’s evidence was corroborated. The court highlighted that much of the complainant’s evidence was supported by the appellant’s wife. The trial court concluded that there was legal penetration. The court found, however, that mere contact without any slightest penetration does not amount to legal penetration. The court found that the appellant could not be guilty of rape, but only attempted rape. The conviction of rape was reduced to attempted rape. The court pointed out that the trial court erred on the side of leniency in sentencing. The court found that the sentence was still appropriate and did not interfere with it.



Pasvani v. The State High Court of Zimbabwe (2011)

Sexual harassment, Sexual violence and rape

The appellant, a Catholic priest, was convicted of two counts of rape as defined in section 65(1) of the Criminal Law [Codification and Reform] Act (Chapter 9:23), for allegedly raping the complainant, aged 23 years. He was sentenced to ten years imprisonment, with two years suspended on condition of good behavior. The appellant appealed his conviction. The evidence showed speculation about a possible love relationship between the parties. The court noted that the complainant wrote a letter to the appellant, which was not properly addressed during the trial. The court found that the letter should have been carefully addressed at trial. The court held that the trial judge should not have convicted the appellant. The conviction was quashed and the sentence was set aside.



Chimanikire v. The State High Court of Zimbabwe (2006)

Sexual harassment, Sexual violence and rape

The appellant was convicted of one count of rape for allegedly raping the complainant, a 16 year old female. The State argued that the appellant coerced and subdued the complainant into having sex with him without her consent. The appellant claimed that the sexual intercourse was consensual. He was sentenced to a term of eight years imprisonment, with two years suspended on condition of good behavior. The appellant appealed against the conviction. The court indicated that the nature and circumstances of the sexual encounter were in dispute, finding that it was clear from the complainant’s testimony that she was and continued to be in love with the appellant. The court further found that the State’s evidence did not counter the possibility that consensual sexual intercourse took place between the parties. The court held that the State failed to establish the appellant’s guilt beyond a reasonable doubt at his trial. Accordingly, the appeal was allowed. The conviction was quashed and the sentence was set aside.



Tirivanhu Ndoziva v. The State High Court of Zimbabwe (2011)

Sexual harassment, Sexual violence and rape

The appellant was convicted of two counts of rape for allegedly raping two girls, aged 4 and 8 years, respectively. He was sentenced to 10 years on each count, with five years suspended for five years on condition of good behavior. The appellant appealed against the convictions and the sentences. It was accepted that the two girls were sexually interfered with, which both confirmed through testimony. Both girls were (i) examined by a doctor, who observed attenuation of the hymen and a deep notch on both girls and (ii) able to identify the appellant as the perpetrator to the police. The court was satisfied with the identification, finding that the appellant was correctly convicted. The appellant argued that the sentence was too harsh. The court found that numerous factors were considered before sentencing. It held that the appellant did not use gratuitous violence, and was entitled to some leniency. The court ruled that the sentence imposed was unduly harsh and induced a sense of shock. The sentence was overturned and substituted for 10 years imprisonment, with two years suspended for five years on condition the appellant does not within this period commit any offence of a sexual nature for which he is sentenced to imprisonment without the option of a fine.



KKO 2013:96 Supreme Court of Finland (2013)

Sexual violence and rape

The issue here was related to the evaluation of evidence and the question whether the sexual intercourse in question was coerced. In this case, A and X had engaged in sexual intercourse which, according to A’s testimony, she was coerced into following physical approaches and violence by X, the male defendant. A had asked X to stop the approaches and attempted to resist him both physically and verbally. X had not complied but instead continued to engage in sexual conduct. A contended that due to the distress and fear caused by the events and the fact that she was physically significantly smaller than X she was no longer able to resist X’s approaches. A stated that the only thing she could think about at that point was that she did not want to get a sexually transmitted disease from X and, therefore, handed X a condom for him to use. After this, A and X had sexual intercourse. X contended that the intercourse was consensual. X further claimed that he could not have understood, in particular after A had given him a condom, that he was coercing A to have sexual intercourse. In its evaluation of the evidence, the Supreme Court stated that it held A’s description of the events reliable as her account was supported by the facts presented to the Court and since X’s description of the events had changed during the process, thereby reducing his credibility. X had, however, further claimed that even if the description of events given by A was accurate, the elements of the crime of coercion into sexual intercourse were not present in the case. As set forth in Section 3 of Chapter 20 of the Finnish Criminal Code (39/1889, as amended) (the “Criminal Code”), the crime of coercion into sexual intercourse is a rape that, in view of the slight degree of violence or threat of violence and the other particulars of the offence is deemed, when assessed as a whole, to have been committed under mitigating circumstances. The elements of rape under the Criminal Code include the requirement that a person forces another person into sexual intercourse by the use or threat of violence, and the Court affirmed that a breach of the victim’s right of self-determination is central to this requirement. The Court held that A had resisted X’s actions but had been coerced into sexual intercourse by X through the use of violence and the resulting fear and helplessness that A experienced. The Court further held that the fact that a victim ceases to resist, physically or verbally, an offender’s approaches cannot be interpreted as inferred consent to sexual intercourse by the victim. More specifically, the Court stated that even if the offender assumed that the victim had changed her mind, this does not remove intent on the part of the offender absent such change of mind being clearly expressed by the victim. The Court held that A’s handing over the condom, under the circumstances that this event took place, did not constitute such expression of a change of mind. Therefore, the Supreme Court held that there was sufficient evidence to prove X guilty of coercion into sexual intercourse. X was sentenced to 10 months of probation and to pay damages to A.



Cece v. Holder, 733 F.3d 662 (7th Cir. 2013) Court of Appeals Seventh District (2013)

Gender discrimination, Sexual violence and rape, Trafficking in persons

Cece, a young Albanian woman fled Albania to avoid trafficking and prostitution rings which target young women living alone. While living alone in Korce, Cece caught the attention of one of the leaders of a well-known prostitution ring. He followed, harassed, and threatened Cece. Her reports of the assault to the authorities were perfunctorily dismissed. Thereafter, Cece fled to the United States (“U.S.”) using a fraudulently procured Italian passport, whereupon she filed for asylum and withholding of removal within the one-year statutory period. Her claim was based on fear of returning to Albania as a young woman living alone. The immigration judge granted Cece’s asylum claim finding that her fear of returning to Albania was well founded because she belonged to a particular social group composed of “young Albanian women who are targeted for prostitution by traffickers” and that the government of Albania was unable or unwilling to protect such women. The Board of Immigration Appeals vacated the judge’s decision, holding that the judge erred in finding that Cece had established membership in a particular social group. On appeal, the Seventh Circuit Court of Appeals found that Cece was a member of particular social group cognizable under 8 U.S.C. § 1101(a)(42)(A) and therefore eligible for asylum. Specifically, the Court found that the particular social group identified by the immigration judge – young Albanian women living alone and thus vulnerable to being trafficked – met the immutability requirements of 8 U.S.C. § 1101(a)(42)(a) because it is based on common characteristics that members of the group either cannot change or should not be required to change.



United States v. Afolabi, 508 Fed. Appx. 11 (3d Cir. 2013) Court of Appeals Third District (2013)

Sexual violence and rape, Trafficking in persons

Afolabi was convicted in district court on twenty two counts relating to her participation in a visa fraud and human trafficking scheme. From October 2002 through September 2007, Afolabi and her family trafficked over twenty West African girls into the U.S. and forced them into unpaid labor. At trial, the prosecution introduced evidence of the physical, psychological, and sexual abuse the girls endured at the hands of Afolabi and her family in the U.S. and Togo. Specifically, the prosecution used evidence of abuse in Togo to establish the involuntary nature of the girls’ servitude. On appeal, Affolabi claimed the court erred in admitting evidence of acts occurring prior to the indictment period. The Third Circuit Court of Appeals held that the evidence was properly introduced because the evidence of prior bad acts in Togo met the requirements of Federal Rule of Evidence 404(b). The Court held that the evidence had a proper evidentiary purpose because it served to illustrate a plan or scheme to coerce the girls into servitude in the U.S. The Court further held that such evidence was relevant because it could contribute to the jury’s determination of the girls’ inability to leave. Additionally, the Court found that any potential prejudice resulting from the Togo evidence did not substantially outweigh its probative value especially in light of the limiting instruction provided by the trial judge.



Expediente 12-000123-1283-PE Tribunal de Apelación de Sentencia Penal. Segundo Circuito Judicial de San José (2013)

Sexual violence and rape

The prosecutor is appealing a ruling of not guilty in a sexual abuse case. The not guilty ruling had been based largely on inconsistencies between the initial testimony of the victim and her testimony at trial. This court found that, because the victim was not provided appropriate and comfortable conditions to give oral testimony (she was made to testify in front of a public audience and with the defendant in view), her testimony entailed a re-victimization, which influenced her ability to provide complete and accurate facts. On this basis, the court remands the case to be re-heard at the lower court.

 

El fiscal apela la determinación "no culpable" en un caso de asalto sexual. La decisión de la corte fue basada en gran parte en inconsistencias entre el testimonio inicial de la víctima y su segunda declaración en el juicio. La corte concluyó que como la víctima no tuvo las condiciones apropiadas para dar testimonio oral (la obligaron a testificar en frente de una audiencia pública que además incluía al acusado), su testimonio en sí representaba una forma de revictimización, lo cúal influenció su abilidad de relatar los hechos con exactitud. Basado en esto, la corte remanda el caso para que sea procesado de nuevo en el tribunal de primera instancia.



Expediente 07-200123-0306-PE Tribunal de Apelación de Sentencia del Tercer Circuito Judicial de Alajuela, Sección Tercera (2013)

Sexual violence and rape

The public defender is appealing a conviction of sexual assault on behalf of his client. The appeal argues that (1) the facts alleged are imprecise and ambiguous (e.g., how is it possible to restrain someone’s arms while touching them at the same time?) and (2) the sexual contact was consensual because there was no evidence of the victim’s fighting back, she didn’t scream for help, had no injuries or physical signs of assault. Given the alleged failure to show that the contact was not consensual, the public defender argues that a charge of sexual harassment would be more appropriate, since the defendant was the victim’s employer. The court rejected the appeal, stating that the burden is not on the victim to show physical or objective signs of nonconsent; rather, the burden is on the defendant to show that the victim consented, which he failed to do. The court notes that victims are not obligated to display certain actions or behaviors to prove they did not consent to sexual contact. The court also notes that it is important to analyze each case on an individual basis, and not to reinforce stereotypes regarding victims’ behaviors. The court also dismissed the argument regarding the imprecise nature of the facts presented at the initial proceeding on the basis that the incident occurred six years ago, when the victim was 18 years old.

 

El defensor público está apelando la convicción de asalto sexual de su cliente. La apelación propone que, (1) los hechos alegados son imprecisos y ambiguos (por ejemplo, ¿cómo es posible contener los brazos de alguien y tocarlos sexualmente al mismo tiempo?) y (2) el acto sexual fue consensual porque no hay evidencia de que la víctima se resistiera, gritara pidiendo ayuda, o tuviera lesiones u otras marcas físicas de asalto. Dado el fallo en mostrar que el acto no fue consensual, el defensor público propone que un cargo de acoso sexual sería más apropiado, ya que el acusado era el empleador de la víctima. La corte rechazó la apelación concluyendo que la carga legal de probar que hubo falta de consenso mútuo en el acto sexual, no está en la víctima. La carga probatoria cae en el acusado, quien tiene que mostrar que la víctima consintió al acto sexual, lo cuál él falló en demostrar. La corte agregó que las víctimas no están obligadas a mostrar actos específicos o ciertos comportamientos para demostrar que no consintieron al acto sexual. Es importante analizar cada caso individualmente y no intensificando estereotipos con respecto a los comportamientos esperados de una víctima. La corte también rechazó el argumento con respecto a la imprecisión de la evidencia física discutido en el procedimiento inicial referente a que los actos ocurrieron seis años atrás cuando la víctima tenía 18 años de edad.



Massaquoi v. Republic of Liberia Supreme Court of Liberia (2014)

Sexual violence and rape, Statutory rape or defilement

On appeal, the Supreme Court affirmed the lower court’s judgment that appellant, Power Massaquoi, was guilty of rape and reduced his sentence from life imprisonment to 50 years imprisonment. The victim, an 11-year-old girl, stated that the appellant, 38, forced her into his room and had nonconsensual sexual intercourse with her. The court affirmed the lower court’s admission in evidence of the testimony of the victim’s mother, who testified that she saw blood on the victim’s skirt and questioned the victim about the incident. The court held that the testimony qualified as an exception to the hearsay rule because statements are generally admissible “to determine the trustworthiness and reliability of statements made by child victims of abuse.” In addition, the court affirmed the lower court’s admission in evidence of the expert testimony of a physician’s assistant. The court held that even though the physician’s assistant did not have a medical degree, he qualified as an expert because of his experience with and knowledge of victims of sexual violence. The court noted that social workers trained in these areas would qualify as expert witnesses.



People of the Philippines v. Anacito Dimanawa Supreme Court of Philippines (2010)

Custodial violence, Sexual violence and rape, Statutory rape or defilement

The appellant was convicted of statutory rape of his daughter. The appellant claimed the rape had not happened because the daughter was not home, and that she was not a credible witness. The Supreme Court agreed with the findings and conclusion of the trial and appeals courts that rape was committed by the appellant. The Supreme Court noted that the testimony of a child-victim is to be given full weight and credence. The Supreme Court noted that respect for elders is deeply rooted in Filipino children and recognized by law such that there is a presumption that the child testified truthfully. Moreover, the concurrence of the age of the victim and her relationship to the offender warranted upgrades to the sentencing penalty.



Fallah v. Republic of Liberia Supreme Court of Liberia (2011)

International law, Sexual violence and rape, Statutory rape or defilement

On appeal, the Supreme Court affirmed the lower court’s judgment that appellant, Musa Solomon Fallah, was guilty of rape and upheld his sentence of life imprisonment. The appellant had been convicted previously, but the Supreme Court vacated that conviction in 2007 and ordered a de novo trial on the grounds that the appellant lacked adequate representation. The complainant, a nine-year-old girl, alleged that the appellant gagged and raped her. On appeal, the appellant contended that the testimony of the victim should be excluded from evidence because the testimony was conducted in camera. The victim testified in a closed room that allowed cross-examination by the defendant and visual access for jurors. The court held that the victim’s testimony was admissible, stating that if “a potential child victim witness would suffer ‘serious emotional distress’ and might just not be able to communicate within a reasonable fear free environment if put on the stand in the presence of the accused abuser to introduce courtroom testimony” then an in camera witness presentation is appropriate. The appellant's constitutional right to confront his accuser was preserved because he was afforded opportunity to listen to testimony and cross-examine the witness. In addition, the court referenced U.S. law on in camera testimony, citing U.S. Supreme Court cases to support its decision. The court stated: “It is the rule of general application in our jurisdiction that unless expressly contrary by the laws in vogue, common law and usages of the courts of England and of the United States, other authoritative treaties, principles and rules set forth in case law and in Blackstone and Kent Commentaries, when applicable, are deemed as Liberian Laws.” Finally, the Court held that medical testimony establishing rape, the testimony of the complainant, the appellant's admission that the complainant spent the nights in question with him, and unchallenged testimony claiming that the appellant had offered the complainant's family money in exchange for keeping the rape a secret were more than a sufficient "mountain of evidence" to sustain the conviction. It is not necessary, the Court stated, for the prosecution to produce an eye witness, "direct proof", or evidence eliminating every single possible alternative in order to meet their burden of proof beyond a reasonable doubt.



People of the Philippines v. Rodolfo de Jesus Y Mendoza Supreme Court of Philippines (2013)

Sexual violence and rape, Statutory rape or defilement

The appellant was found guilty of the crime of statutory rape of his daughter. On appeal, the appellant argued there was insufficient physical evidence of the rape. The Supreme Court noted that the results of the physical examination did not discount the possibility that the daughter was raped. The Supreme Court further noted that rape of a minor under 12 years of age is statutory rape. It explained that (a) in statutory rape, only the following two elements must be established: 1) carnal knowledge or sexual intercourse; and 2) that the woman is below 12 years of age and (b) both of those elements had been established.



Nimely v. Paye, et al. Supreme Court of Liberia (2011)

Sexual violence and rape, Statutory rape or defilement

On appeal, the Supreme Court reversed the lower court’s judgment that appellant was guilty of rape. The complainant alleged that the appellant had sex with her when she was 13 years old and he was 18 years old. She alleged that the appellant invited her to his room, gagged her, and had sexual intercourse with her. Her brother’s wife forced open the door after the complainant failed to answer her phone call. The complainant's brother then called the police. The appellant admitted to police that he and the complainant had sex. The court found the appellant guilty of rape because the elements of Liberian statutory rape law are (1) sexual intercourse, (2) the perpetrator is at least 18 years of age, and (3) the victim is less than 18 years of age. However, the court reversed his conviction because the trial court relied on inaccurate information in determining the appellant’s age. The appellant testified that he was 17 years old at the time of the rape. Documents such as a passport or birth certificate were unavailable. The court held that in the absence of any rebuttal evidence by the prosecution, the court must accept that the appellant was 17 years old and therefore a juvenile when he had sex with the complainant. Under Liberian law, a juvenile cannot commit a crime, but is instead considered a juvenile delinquent. If a case involves a juvenile delinquent who is over 16 years of age and is accused of conduct that would constitute a felony carrying a sentence of life imprisonment or death if committed by an adult of at least 18 years of age, then the circuit court must consider the best interests of the Republic and the juvenile to determine whether to exercise its jurisdiction over the matter and preside over the case or choose to refer it to the juvenile court. However, the circuit court did not make this determination. Rather, it proceeded with the trial as though the the appellant was an adult and sentenced him to life imprisonment as an adult. Therefore, the Supreme Court reversed his conviction and remanded him to the custody of his parents until the age of 21.



People of the Philippines v. Bernabe Pareja Y Cruz Supreme Court of Philippines (2014)

Sexual violence and rape, Statutory rape or defilement

The appellant was convicted of two counts of statutory rape. The appellant sought to overturn the conviction on the ground that the victim’s testimony was riddled with inconsistencies. The Supreme Court set forth the recognized rule that the “assessment of the credibility of witnesses is a domain best left to the trial court judge… and when his findings have been affirmed by the Court of Appeals, these are generally binding and conclusive upon this Court.” While there are recognized exceptions to this rule, the Supreme Court found no substantial reason to overturn the identical conclusions of the trial and appellate courts on the witnesses’ credibility and affirmed.



Rogers v. Republic of Liberia Supreme Court of Liberia (2009)

Sexual violence and rape, Statutory rape or defilement

On appeal, the Supreme Court reversed the lower court’s judgment that appellant, Allen Rogers, was guilty of rape. The 11-year-old complainant alleged that the appellant kidnapped her and a boy for two months, raping her daily during this time period. She testified that the appellant threatened to kill her if she talked about the rape. In his defense, the appellant testified that the week before the alleged kidnapping occurred, he knelt down to pray and heard the voice of someone he called Evee. Evee told him “your two children have come.” He then met the complainant and the other child. He took them to the town advisor, who said that the appellant could keep them at his house. The appellant was found guilty of statutory rape and given the maximum sentence of life imprisonment. The court reversed the conviction because the appellant did not receive adequate representation. His representation was inadequate because the public defender assigned to his case failed to call corroborating witnesses and counsel “knew, or ought to have known that the lone testimony of the appellant was not sufficient to establish his innocence. Thus, his failure to have ensured that other witness[es] appear to testify for the appellant was a serious dereliction of duty.” In Liberia, “the uncorroborated testimony of the accused person is not sufficient to rebut proof of guilt.” Therefore the court reversed the appellant's conviction and remanded the case for a new trial.



People of the Philippines v. Antonio Mendoza Y Butones Supreme Court of Philippines (2005)

Sexual violence and rape, Statutory rape or defilement

The appellant was convicted of rape of his daughter. The Supreme Court affirmed the conviction, noting that the appellant failed to proffer a credible defense, instead merely denying the accusations. To the contrary, there is a recognized presumption of credibility when a daughter accuses her father. The conviction was upheld.



Counsellor, et al. v. Republic of Liberia Supreme Court of Liberia (2008)

Harmful traditional practices, Sexual violence and rape, Statutory rape or defilement

On appeal, the Supreme Court affirmed the lower court’s judgment that appellants, Living Counsellor, Wisdom Counsellor, and Righteous Counsellor, were guilty of rape. Their four female victims ranged from ages 7 to 12. The victims were introduced into the Kingdom Assembly Church of Africa, or the “Never Die Church,” so named because it promised followers eternal life on earth. It also promoted free sexual relations among its members. The victims testified that they were beaten and raped by members of the church. The court stated that “the evidence adduced during the trial show that rape is institutionalized in the Never Die Church. The testimonies given by the prosecution witnesses also points to a situation where the victims were living in a condition of servitude almost identical to slavery.” The appellants argued that “they did not rape the girls but that they only share love with their sisters because they have no earthly mother or father but only Wonderful Counsellor.” They argued that their conviction should be overturned because they were also charged with gang rape, but the trial judge failed to instruct the jury on that charge. Still, their conviction was upheld because they were convicted of rape nonetheless.



Supreme Court Decision 2009Do2576 Supreme Court of South Korea (2009)

Sexual violence and rape

The Supreme Court found the act of an elementary school teacher (“Defendant”) conducting a health examination to constitute “disgraceful conduct” as stipulated in Article 8-2(5) of the Act on the Punishment of Sexual Crimes and Protection of Victims (against minors aged 13 and below). The Supreme Court stated that even though the Defendant may not have subjective motive or purpose to “stimulate, stir up, and satisfy his sexual desire because such act was made in front of the students going with her, the Defendant’s act can be evaluated as disgraceful conduct.”



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

Sexual violence and rape

Pretty, an eight-year-old girl, was on an errand with her friend Violet, a seven-year-old girl. Along the way the inebriated defendant, Manroe, grabbed both girls, stuffed their mouths with cotton, and had sexual intercourse with both of them against their will. After he completed these acts, he threatened to kill them if they told anyone what transpired. Four days after the crime, Pretty’s mother noticed that Pretty was walking rather awkwardly, and upon inspection, discovered cuts on Pretty’s private parts. Her mother then filed a report at the police station and took Pretty to a hospital, where a doctor issued a medical report. The trial court, concerned with the reliability of the testimony of Pretty, a child of tender years, conducted a voire dire and determined that she was not capable of understanding the purpose of taking the oath. Therefore, the court required corroborating evidence of the rape to be presented. The trial court found that Manroe had been properly identified and that the medical report corroborated the rape, and accordingly, convicted Manroe of defilement. On appeal, Manroe argued, inter alia, that the medical evidence was insufficient because the crime was reported late and there was no date stamp on the medical report. The High Court noted that corroborating evidence need not be corroboration in the strict sense of the law, but needed to be “something more” than the victim’s testimony. Despite Pretty’s examination occurring four days after the crime, the High Court found that the medical report, having been issued by a licensed medical professional, properly corroborated the crime and therefore, upheld Manroe’s conviction.



HKSAR v. KKK High Court of the Hong Kong Special Administrative Region Court of First Instance (2011)

Sexual violence and rape

Defendant, a male, was charged with six counts of rape and one count of indecent conduct towards a child under the age of 16. All the crimes were committed against Defendant’s three daughters. Defendant pled guilty to all charges. The victim of four charges of rape was his eldest daughter, whose rapes occurred over a three year period, when she was between 12 and 14. The other two rape charges occurred against a younger daughter, who is a twin, when she was 10 and 11. The other twin girl was the victim of the indecent conduct charge. One rape of the eldest daughter took place in the presence of her mother, who was also naked, adding to the humiliation and dominance that Defendant was attempting to exude. The eldest daughter even became pregnant as a result of one of the rapes and was forced to have an abortion, while only being 14 years old. The Court sentenced Defendant to 23 years and seven months’ imprisonment. It analyzed the cold and callousness with which Defendant committed his crimes and the seriousness of the crimes. The Court described Defendant’s crimes as “horrific,” noting that Defendant “treat[ed] his children as though they were less than human, as just sexual objects who existed solely to satisfy his lust . . . .” The Court further stated that “language seems quite a poor medium for conveying the depth of feeling that these crimes generate. Words such as ‘revulsion’ and ‘despicable’ seem quite inadequate in expressing the court’s and society’s denunciation of his conduct. . . . [W]hat this defendant did is wholly contrary to the values by which Hong Kong people live and the courts will reflect and affirm that fact by not just making statements condemning that conduct but by imposing sentences sufficiently severe and substantial to protect and preserve those values.”



Kalenga v. The People Supreme Court for Zambia (2012)

Sexual violence and rape

Kalenga, the Defendant, told his 70 year-old grandmother, the Victim, that he had collected some firewood in the bush and offered to give her some. When she followed him into the bush, she found that no firewood had been collected, and instead, Kalenga took off his clothes and had intercourse with her without her consent. The Victim returned home and reported the crime to the head of the village and then to the police. While in police custody, he denied the charge, but admitted to having gone into the bush to collect firewood. At trial the Defendant did not testify. The Trial Magistrate found the Victim’s story to be corroborated by the fact that no firewood had been collected and found no reason why the Victim would fabricate such a story involving her grandson. As this evidence went unchallenged by Kalenga, the Trial Magistrate convicted him. The Trial Magistrate committed Kalenga for sentencing to the High Court, which sentenced him to 16 years imprisonment with hard labor. Kalenga appealed to the Supreme Court on the grounds that there was no finding of corroborative evidence. The Supreme Court agreed with the trial court that his admission to escorting the Victim into the bush, the lack of motive of the Victim to lie, and the unlikelihood of mistaken identity constituted “something more” to corroborate the Victim’s testimony. The Supreme Court further found the age of the Victim to be an aggravating circumstance and increased his sentence from 16 years to 20 years.



Hara v. The People Supreme Court for Zambia (2014)

Sexual violence and rape, Statutory rape or defilement

The Defendant, Hara, broke into the house of a twelve-year-old girl, forced her down and raped her. He pleaded guilty to defilement, a crime with the sentence of fifteen years to life imprisonment, and was sentenced to thirty years imprisonment with hard labor. Hara appealed the sentence on the grounds that (1) thirty years was too severe absent any aggravating circumstances (i.e. the victim did not sustain any physical injuries, become infected with a sexually transmitted disease or become pregnant) and (2) the lower court did not take into account mitigating circumstances (i.e. the defendant was a first time offender who readily plead guilty). Reasoning that “young girls are no longer safe even in their homes”, the Supreme Court rejected the Hara’s arguments that the absence of factors, such as physical injuries and pregnancy, should reduce his sentence. The Supreme Court further held that the lower court properly considered the Hara’s status as a first time offender, and therefore, the Supreme Court upheld his thirty-year sentence.



Gudu Masuku v. The State High Court of Zimbabwe (2004)

Sexual harassment, Sexual violence and rape

The appellant was convicted of raping the complainant ten years before she reported it to anyone and eleven years before she reported it to the police. He was sentenced to three and half years of imprisonment, with two years suspended on condition of good behavior. Although the trial judge found the complainant credible, the court found that she was not consistent in her evidence. It emphasized the trail court’s finding that she was suffering from post- traumatic stress disorder and her delay in reporting. As there was no independent evidence beyond the complainant’s testimony, the court could not hold that (i) the danger of false or erroneous implication was excluded beyond reasonable doubt or (ii) the state proved its case beyond reasonable doubt. Thus, the conviction was quashed and the sentence was set aside.



VSAI v. Minister for Immigration & Multicultural & Indigenous Affairs Federal Court of Australia (2004)

Sexual harassment, Sexual violence and rape

A citizen of Eritrea sought protection on the basis that she feared persecution in Eritrea, where she would either be (i) conscripted into, and subject to rape and abuse by, the army or (ii) prosecuted for failure to report for conscription. Although she presented evidence that rape, sexual abuse and impregnation by military officers was committed against draftees, including at the camp to which she would be assigned, as well as evidence showing incidents of parents killed whilst resisting the drafting of their daughters, a delegate of the Refugee Review Tribunal denied the application. The court found that the Tribunal misdirected itself by not asking whether rape, sexual abuse and impregnation by military officers was deliberate or pre-meditated conduct, exposure to which the applicant could not be expected to tolerate. The court set aside the Tribunal’s decision and the matter referred back to the Tribunal.



State v. Airline Limited Court of Appeal of New Zealand (2010)

Employment discrimination, Sexual violence and rape

A commercial airline pilot was dismissed after making an unscheduled overnight stop and having sexual relations with a cabin crew member. The pilot appealed to the Employment Court. The Employment Court declined to suppress the pilot’s name from the public record. The court held that the Employment Court was not wrong to find that the public’s right to know outweighed the pilot’s reputational interests, and dismissed the appeal.



Prosecutor of Pattani Province v. Rashane Noosuwan and party defendant (No. 1917/2550) Supreme Court of Thailand (2007)

Sexual violence and rape

The plaintiff claimed the co-defendants and a party of five, together, committed battery against the victim, who is a twenty-six year old female, forcefully performed public indecency by grabbing the victim’s breasts, forced the victim to put the defendants’ genitalia parts in her mouth and gang raped the victim alternately. The second defendant denied raping the victim, contending he only forced his genitalia part in the victim’s mouth and grabbed the victim’s breasts. The Supreme Court held that this is overall a crime of gang rape. For the second defendant to force his genitalia part inside the victim’s mouth and grab the victim’s breasts during the gang rape reflected that the second defendant was a principal of first degree in the gang rape. The second defendant did not have to participate in the rape itself.



SZAIX v. Minister for Immigration & Multicultural & Indigenous Affairs and Refugee Review Tribunal Federal Court of Australia (2006)

Sexual harassment, Sexual violence and rape

A citizen of Indonesia sought protection on the basis that she feared persecution on the grounds of race, religion and membership of a particular social group, alleged to be either Indonesian women or Chinese Christian women in Indonesia. The appellant was raped in Indonesia. The Refugee Review Tribunal concluded that perpetrators of sexual assault in Indonesia do not engage in rape as a means of persecuting ethnic Chinese women (or women) as a particular social group. The court found that the Tribunal did not fully consider the applicant’s arguments that she feared persecution from local authorities for reporting the rape and the applicant was granted leave to amend her application to raise that ground and any other new grounds.



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.



Prosecutor of Nakorn Ratchasima Province v. Piman Pollachote (No. 2398/2553) Supreme Court of Thailand (2010)

Sexual violence and rape

On the night of the crime committed, several perpetrators had gang raped the victim, at which the defendant was present. The defendant later drove the victim from the scene of the crime, and raped the victim along the way. The issue presented in front of the Supreme Court was whether the defendant was liable for gang rape when the defendant merely knelt down and was unclothed beside the victim at the gang rape. The Supreme Court held that the circumstances of the case as presented shows that the defendant was ready to gang rape the victim if had the chance. The defendant therefore was considered a principal in first degree in the gang rape.



Kumar v. Minister for Immigration & Multicultural Affairs Federal Court of Australia (2002)

Sexual harassment, Sexual violence and rape

A married couple, both of Indian ethnic origin and citizens of Fiji, sought protection for fear of persecution on the grounds that the wife was abducted and raped because of her Indian ethic origins and because of her husband’s local political activity. The Refugee Review Tribunal did not accept that the wife was raped for reasons of her Indian ethnic origins, nor her husband’s support for the FLP. The court affirmed.



Prosecutor of Naan Province v. Kohn Rokprai (No. 16001/2553) Supreme Court of Thailand (2010)

Sexual violence and rape

The plaintiff claimed that on the night the crime took place, the victim went to sleep around 9PM in the same bug screen as the victim’s father, the victim’s mother and her sister. Around midnight, the victim felt someone had pressed her down, undressed her pants and forced an object into her genitalia. The victim tried to push the perpetrator away. The victim felt that the person on top of her was a male, but felt too scared to open her eyes. She was perpetrated for approximately twenty minutes. The issue in this case was whether or not the defendant’s action was rape. The Supreme Court held that the circumstances of the case showed that the victim did not give consent. She tried to resist, but failed. Because the defendant was the only male in the bug screen, the victim might have suspected the defendant to be the perpetrator and felt too scared to resist or let others know. The Supreme Court held that the defendant forced his genitalia into the victim’s genitalia without consent, and that such action of the defendant constituted rape, as prescribed by section 276 paragraph 1 of Criminal Code.



SVFB v. Minister for Immigration & Multicultural & Indigenous Affairs Federal Court of Australia (2004)

Female genital mutilation or female genital cutting, Gender-based violence in general, Harmful traditional practices, Sexual harassment, Sexual violence and rape

A citizen of Nigeria sought protection for fear that she would be subject to female genital mutilation. The Refugee Review Tribunal found that female genital mutilation constitutes serious harm amounting to persecution, but that on the facts, there was no real risk that the applicant would be subjected to female genital mutilation.



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.



Phillips v. The Queen High Court of Australia (2006)

Gender-based violence in general, Sexual violence and rape

This appeal was based on the contention that there had been a wrong decision on a question of law concerning the admissibility of evidence in a sexual assault case. The appellant, Phillips, was convicted on several counts of rape and unlawful carnal knowledge and on one count of assault with intent to commit rape. The counts involved multiple teenage victims. Similarities existed across the victim’s stories and evidence was admitted concerning each victim. The Criminal Code stated that "an indictment must charge 1 offence only and not 2 or more offences," also stating that “Charges for more than 1 indictable offence may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose." The appellant contended that the offenses did not reflect “offences of the same or similar character,” arguing that trial of the eight charges at once had been unduly prejudicial to his case. The High Court held that “prejudice to the fair trial of the appellant was substantial” and made a formal order for retrial.



Weheliye v. Minister for Immigration & Multicultural Affairs Federal Court of Australia (2001)

Femicide, Gender-based violence in general, Sexual violence and rape

A citizen of Somalia sought a protection order on the basis that she feared persecution due to her status as young, a Somali and a woman. The application asserted that she had been sentenced to death by stoning for adultery in Somalia. The Refugee Review Tribunal denied the application, finding the applicant not credible and holding that neither married nor divorced Somalia women constituted a protected group. The court held that the Tribunal erred because it did not examine whether the law against adultery was applied and administered in Somalia in a discriminatory manner.



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.



SYLB v. Minister for Immigration and Multicultural and Indigenous Affairs Federal Court of Australia (2005)

Sexual violence and rape

A married couple, citizens of Yugoslavia and ethnic Albanians, sought protection on the basis that the wife feared persecution in Kosovo. The wife was raped by a Serbian soldier. The Refugee Review Tribunal concluded that the applicants each had a well-founded fear of persecution in Kosovo at the time they fled, but that those conditions no longer existed. The court concluded that the Tribunal misunderstood the legal test to be applied for the purpose of determining whether the female applicant was unwilling, due to a well-founded fear of persecution, to avail herself of the protection of her country.



R v. AM Court of Appeal of New Zealand (2010)

Sexual violence and rape, Statutory rape or defilement

The appellant was convicted on charges for sexual offenses (including rape) against his three granddaughters. He was sentenced to a total of 15 years imprisonment for the lead offence of rape, with no minimum period of imprisonment. The Solicitor-General appealed on the ground that a minimum sentence of half the nominal sentence should have been imposed as a matter of law. The Court decided to update the sentencing guidelines for sexual offenses. It established (i) that the entire circumstances of the offense must be taken into account during sentencing and (ii) the following factors: planning and premediation, violence, detention and home invasion, vulnerability of the victim, harm to the victim, multiple offenders, scale of offending, breach of trust, hate crime, degree of violation, mistaken belief in consent, prior consensual activity and the views of the victim. It also established the following incarceration periods for the crime of rape: (i) Rape Band I consist of 6-8 years for offenses that do not trigger these factors because the encounters and degree of violation are brief; (ii) Rape Band 2 consist of 7-13 years for moderate levels of premediation and violence, involving two or three factors increasing culpability; (iii) Rape Band 3 consist of 12-18 years for serious culpability factors; and (iv) Rape Band 4 consist of 16-20 years for the most serious offenses, which will likely consist of multiple offenses. For non-rape, “unlawful sexual connection” (“USC”) cases, the following incarceration periods were established: (i) USC Band 1 consist of 2-5 years; (ii) USC Band 2 consist of 4-10 years; and (iii) USC Band 3 consist of 9-18 years, following the general guidelines of culpability defined above. Applying these standards to the case, the court held that a minimum period of imprisonment of seven and a half years (50 percent) should be imposed. The case is notable because the Court for the first time endeavored to give integrated sentencing guidelines for sexual offenses and – as part of this exercise – reviewed and updated its previous approach to rape offenses.



R v. Dawson Court of Appeal of New Zealand (2012)

Sexual violence and rape

The appellant was convicted of seven charges for raping two females. He was sentenced concurrently to 14 years imprisonment, with a minimum period of imprisonment of seven years, calculated as 12 years for each offense, plus an uplift of 12 months to reflect the separate rapes of two victims, plus other adjustments. The Solicitor-General appealed on the ground that the uplift to reflect separate rapes of two victims should have been higher than 12 months, and an end sentence of 16 to 18 years would have been correct. The court reasoned that this argument was essentially that a 14 year sentence was manifestly inadequate. Based on the facts, the court found that, while on the low end, this sentence did not meet this standard.



Sentencia Número 677 (Ruling 677) Provincial Court of Madrid (2012)

Sexual violence and rape, Trafficking in persons

In 2010, Spain amended its Penal Code by enacting Article 177 to prohibit human trafficking. Spain did so in response to international human rights agreements regarding human trafficking. This ruling was the first conviction under this new article. Two women reported to authorities that the defendants had lured them from Paraguay under false pretenses, forced them to work as prostitutes, and physically and emotionally assaulted them. The Provincial Court of Madrid found that the defendants' actions constituted: 1) crimes against the rights of foreign nationals (Article 318 bis), 2) human trafficking for purposes of sexual exploitation (Article 177 bis), 3) solicitation by coercion to commit prostitution (Article 188.1), and 4) sexual assault (Article 179). According to the court, the fact that the defendants promoted, encouraged, or facilitated illegal immigration with the intention of using the women for prostitution was enough to find criminal sexual exploitation. The court found the victims’ testimony to be credible, realistic, and consistent, and used their testimony as the base for this decision.

 

En 2010, España modificó su Código Penal al promulgar el artículo 177 para prohibir la trata de personas. España lo hizo en respuesta a los acuerdos internacionales de derechos humanos relativos a la trata de personas. Esta sentencia fue la primera condena en virtud de este nuevo artículo. Dos mujeres informaron a las autoridades que los acusados las habían atraído desde Paraguay con falsas pretensiones, las obligaron a trabajar como prostitutas, y las agredieron física y emocionalmente. El Tribunal Provincial de Madrid determinó que las acciones de los demandados constituían: 1) delitos contra los derechos de los extranjeros (artículo 318 bis), 2) trata de personas con fines de explotación sexual (artículo 177 bis), 3) solicitud por coacción para cometer prostitución (artículo 188.1), y 4) agresión sexual (artículo 179). Según el tribunal, el hecho de que los acusados promovieron, alentaron o facilitaron la inmigración ilegal con la intención de utilizar a las mujeres para la prostitución fue suficiente para encontrar la explotación sexual criminal. El tribunal determinó que el testimonio de las víctimas era creíble, realista, y coherente, y utilizó su testimonio como base para esta decisión.



Solicitor-General v. Ahmed Court of Appeal of New Zealand (2009)

Sexual violence and rape

The respondent was convicted of sexual violation by unlawful sexual connection (forcible oral sex) and as accessory to rape, and sentenced to four years imprisonment, calculated as 18 months for assisting to carry out the rape, four years for the unlawful sexual connection, plus some downward adjustments. The Solicitor-General argued that the court should have considered the rape as the primary offense and therefore started with a base of 8 years minimum period of imprisonment. The court found that the sentencing approach adopted by the Judge understated the seriousness of the respondent’s role in the overall offending and that seven years imprisonment was the appropriate sentence.



LM v. The Queen Supreme Court of New Zealand (2014)

Sexual violence and rape

Section 144 of the Crimes Act 1961 “provides for the prosecution of New Zealanders for conduct which, if it had occurred in New Zealand, would be contrary to specified provisions of the Crimes Act involving sexual offending against children and young people.” The appellant, a New Zealander, was found guilty of a sex crime against a child. The crime was committed in Russia and the other offender in the case was a Russian man. At issue on appeal was whether the aforementioned law allowed for “the prosecution of a New Zealander (being LM) on the basis of party liability for “offending” where the principal “offender” is not a New Zealander.” The Supreme Court dismissed the appeal, holding that the appellant was in fact liable as a principal and noting that a miscarriage of justice had not occurred. Furthermore, the Court stated that a “wrong decision” regarding party liability “does not warrant the allowing of the appeal.”



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.



Rape Defined As Heinous Crime for Sentencing Purposes: Habeas Corpus No. 81.288-1 (in Portuguese) Brazilian Federal Supreme Court (2003)

Sexual violence and rape, Statutory rape or defilement

The Brazilian Federal Supreme Court (Supremo Tribunal Federal or “STF”) denied the petition for writ of habeas corpus of Valdemiro Gutz, who had been convicted by the Superior Court of Justice – Santa Catarina of raping his two, minor daughters, both under the age of fourteen, over a period of five years. Although Gutz had been sentenced to 16 years and 8 months in jail for his crimes, the lower court subsequently reduced Gutz’s sentence by one-quarter, pursuant to Presidential Decree 3.226/99 (“Decree”). The lower court determined that the reduction was not barred by Article 7, Section 1 of the Decree, which states that a reprieve shall not apply to those convicted of “heinous crimes and those of torture, terrorism, illegal trafficking.” In response to the reduced sentence, the public prosecutor argued that Gutz’ crime fell within the “heinous crimes” exception to sentence reductions. The Service of Criminal Review of the State of Santa Catarina subsequently filed for writ of habeas corpus, arguing that crimes of rape and sexual assault do not fall within the scope of the “heinous crimes” exception except where serious bodily injury or fatality results. The Court examined the legislative language and treatment of rape, sexual assault, and other crimes, with respect to qualifying such crimes as “heinous.” The majority of the Court held that the legislation already had classified rape as a heinous crime. The Court denied the writ, and Gutz’s sentence remained without reduction.



Sexual Assault Against a Minor is a Presumed Violent Act: Habeas Corpos No. 74.983-6 (in Portugeuse) Brazilian Federal Supreme Court (1997)

Sexual violence and rape, Statutory rape or defilement

The Brazilian Federal Supreme Court (Supremo Tribunal Federal or “STF”) denied the petition for writ of habeas corpus of Mario Somensi, upholding the constitutionality of Article 224(a) of the Penal Code which establishes a presumption of violence in sex crimes against minors. Somensi was convicted of rape and child abuse, and was sentenced to a prison term of eight years for rape and one year and ten months for child abuse. In his appeal and writ, Somensi argued he had committed no violence and that the presumption of violence set forth in Article 224(a) of the Penal Code was unconstitutional. The Court first noted that the provision in question predated Brazil’s 1988 Constitution and could not be found “unconstitutional” with respect to its construction. Rather, the Court examined its compatibility with the 1988 Constitution and found that the purpose of the presumption – to protect minors who legally are incapable of offering consent – was consistent with and expressed by the broad statement in Article 227 § 4 of the Constitution that “[t]he law shall severely punish abuse, violence and sexual exploitation of children and adolescents.” The STF held that the presumption did not violate constitutional principles, even when the presumption embraced what otherwise would be a factual matter requiring evidentiary proof.



Claimant v. the Minister of Justice District Court of the Hague (2010)

Gender violence in conflict, Gender-based violence in general, Sexual violence and rape

The claimant was born in Somalia and left the country when her home was destroyed and four men attempted to rape her. The claimant sought residence in the Netherlands as a refugee under Immigration Act 2000. She argued that women in Central and Southern Somalia were systematically exposed to inhuman treatment. The claimant submitted reports that abuse and rape of women, by civilians and armed groups, was frequent, and that displaced women were particularly vulnerable during their flight. Gang rape was widespread, and victims (including young girls and boys) were selected at random. Further, rape is almost never prosecuted and the victims are discriminated against because they are seen as “unclean.” The report further stated that women in Somalia do not have access to justice and receive no protection from authorities. Human Rights Watch and UN reports also described women as suffering the brunt of abuse and repression cultivated by al-Shabaab’s decrees, including forced marriage, female genital mutilation (“FGM”) and gender-based violence. The District Court opined that women are in a vulnerable position in Central and Southern Somalia and, therefore, run the risk of suffering violence and human rights violations, and cannot obtain effective protection. They are therefore a group worthy of protection from inhuman treatment and torture.



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.



Achiula v. Republic Court of Appeal of Tanzania (2012)

Sexual violence and rape, Statutory rape or defilement

The appellant’s conviction of rape and subsequent sentence of thirty years imprisonment was upheld by the High Court. He had allegedly raped an underage girl on several occasions, manipulating her with monetary bribes and threats. The appellant appealed this decision, claiming that the voire dire examination of the underage victim had been insufficient to ensure that she understood the meaning and duty to tell the truth, and that her evidence was thus not credible. He also argued that because there was no proof to corroborate the age of the victim, the charge of rape was not established. The Court dismissed the appeal, finding that the victim had demonstrated sufficient intelligence and understanding to justify the reception of her evidence. The Court also dismissed the appellant’s citation of the lack of proof of the victim’s age, pointing out that the victim’s age had been accepted as a matter of course during the trial. Finally, the Court decided that there was sufficient evidence of penetration, pointing out that “True evidence of rape has to come from the victim, if an adult, that there was no penetration and no consent, and in case of any other woman where consent is irrelevant that there was penetration."



Ally Hussein Katua v. The Republic Court of Appeal of Tanzania at Tanga (2010)

Sexual violence and rape

The appellant claimed that the charge of sexual exploitation was defective and that the evidence of the complainant Rehema Athumani should not have been believed and acted upon (allegedly because of a “history of mental illness and confusion”). The Court determined that although normally the element of lack of consent ought to be reflected in a charge of rape, but with the inclusion of section 130 (2) (e) of the Penal Code, consent is no longer relevant where the victim is under eighteen years of age and in this case, there was no dispute that the victim was aged 17 at the time of the crime (and therefore covered by the law). The Court noted that “Paragraph (d) above would particularly be important in highlighting the fact that the appellant being a traditional healer took advantage of his position and committed rape on PW1 as we shall demonstrate hereunder.” Furthermore, the Court recognised that an aggrieved party may appeal on a matter of law (not including severity of sentence) but not on a matter of fact, and “strictly speaking, in our reading and appreciation of the evidence on record there is no serious point of law involved in this appeal”, only matters of fact.



Marwa v. Republic Court of Appeal of Tanzania (2008)

Sexual violence and rape, Statutory rape or defilement

A secondary school teacher, convicted of raping a student and sentenced to thirty years imprisonment, appealed for the second time on the grounds that he had been framed. The Court found no justification for doubting the evidence of the witness, especially as the results from the medical examination corroborated her testimony. The Court also noted that his claim of being framed was insupportable, as there was no justification for the other witnesses to lie against him. Finally, the Court pointed out that the lack of an order for compensation offended the mandatory provisions of Section 13(1) of the Penal Code. The appeal was dismissed and the teacher ordered to pay shs. 500 000 in compensation to the student.



B 990-11 Supreme Court of Sweden (2011)

Sexual violence and rape

A man who possessed 39 drawn pornographic images in manga style was acquitted from a charge of possession of child pornography on the grounds that holding this possession as illegal would unreasonably limit freedom of expression. Swedish child pornography laws outlaw actual photographic material as well as drawn images. The purpose of this law is to protect children from offensive materials, to avoid anyone using child pornography to snare children into sexual situations, and to protect their likeness being shared in pornographic materials. The court argued, however, that because a conviction would mean a restraint in the defendant’s freedom of expression, the court must present a serious reason for why pornographic manga-styled cartoon images actually have the potential to harm a child in any of these ways. Because the images were not made in any child’s likeness and because manga is an expression of Japanese culture, the court ruled that the restraint on the defendant’s freedom of expression would be too great if he were convicted and the images were held to constitute child pornography.



R. v. J.A Supreme Court of Canada (2011)

Gender-based violence in general, Sexual violence and rape

This appeal involved the interpretation of “consent” under the sexual assault provisions of the Criminal Code of Canada. The Supreme Court of Canada in its seminal decision in 1999 in R. v. Ewanchuk unanimously confirmed that consent to sexual activity must be active, voluntary and revocable, meaning that a woman can say “no” at any time. Further, the Supreme Court in Ewanchuk held that consent cannot be implied, whether from a complainant’s dress or the fact that she said “yes” on an earlier occasion. R. v. J.A. involved a woman who reported that she was sexually assaulted by her common-law spouse where the accused strangled the complainant into unconsciousness. When the complainant awoke, she found herself bound and being anally penetrated. The accused argued that the complainant consented “in advance” to the strangulation and anal penetration that took place while she was unconscious. In its judgment, the Supreme Court held that “an individual must be conscious throughout the sexual activity in order to provide the requisite consent” and that “the definition of consent…, requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy the requirement.”



Steve Brian Ewanchuk v. Her Majesty the Queen Supreme Court of Canada (1999)

Sexual violence and rape

The accused engaged in increasingly inappropriate sexual behavior toward the 17 year old complainant whom he was interviewing for a job. The teenager reported feeling afraid and stated that she repeated “no” at each advance. Despite the teen’s refusals, the accused continued to touch the complainant. The trial court acquitted the accused of sexual assault charges based on implied consent and the acquittal was upheld in the Court of Appeal. An appeal to the Supreme Court of Canada followed, in which the Supreme Court considered whether the trial court judge (1) erred with regard to his conception of consent and (2) whether the defense of “implied consent” was appropriate to this case. The Supreme Court of Canada found that the accused’s behavior did constitute sexual assault and noted that the trial judge erred in the determination that the teenager implicitly consented, stating, “the question of implied consent should not have arisen.” Specifically, the Supreme Court of Canada determined that the trial court had relied on stereotypes about women, including the problematic idea that women are “in a state of constant consent to sexual activity,” and asserted that these stereotypes “no longer find a place in Canadian law.”



Jan Oompie Kolea v. The State Supreme Court of Appeal of South Africa (2012)

Gender-based violence in general, Sexual violence and rape

Mr. Kolea was convicted of repeatedly raping a woman with another man and sentenced to 15 years in prison under s 51(2) of the Criminal Law Amendment Act 105 of 1997 (the Act). When Mr. Kolea appealed the ruling and the sentence it was found that his conviction should in fact be read under s 51(1) of the Act which imposes a minimum sentence of life in prison when the victim was raped more than once by more than one person. Mr. Kolea was duly sentenced to life in prison and his appeal was dismissed. This case broke a previous trend of judges neglecting to impose life sentences under s 51(1), instead giving lighter sentences under s 51(2) even in the case of multiple rapes. The real threat of life imprisonment is a crucial precedent to set in South Africa, where rape is common and often overlooked or punished with leniency.



Tumwesigye Kasim v. Uganda Court of Appeals of Uganda (2009)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

This appeal was limited to sentencing only. Appellant was convicted of defilement of a six-year-old girl and was sentenced to 14 years imprisonment. Appellant was a teacher at the victim’s school. The school held a special program for students during school holidays. During this program, appellant took the victim into his office at school and had sexual intercourse with her. Despite his warning not to tell anyone, the victim told her brother, who told her parents. A medical examiner confirmed that she had been defiled. On appeal, appellant argued that the sentence of 14 years was too harsh. In support, he argued that he was the sole breadwinner for 11 dependents, including two lame dependents and four orphans. Appellant also argued that since the victim was a very young child, she had already gotten over the trauma of the defilement. The court upheld the sentence and ruled against appellant. The court found that, as a teacher, he had a duty to protect the victim, but instead chose to ravish her, disgracing himself, his profession, and society.



Mushabe Abdul v. Uganda Court of Appeals of Uganda (2007)

Sexual violence and rape, Statutory rape or defilement

Appellant was convicted of defilement of a four-year-old girl. The victim was sent to a well to fetch water for her family. On the victim’s way to the well, appellant grabbed the victim, threw her to the ground, and forcibly had sexual intercourse with her. He then fled but was later arrested. At trial, appellant denied the charges and claimed that the victim’s father had framed him. The trial court rejected his claim and sentenced him to 14 years imprisonment. On appeal, appellant requested a sentence reduction from 14 years to eight years. The court of appeals dismissed the appeal, holding that the 14-year sentence was not inappropriate or excessive, and that, in light of the circumstances, there was no reason to reduce the sentence.



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.



Viswanathan v. State Rep. By Inspector of Police Supreme Court of India (2008)

Sexual violence and rape

A young woman was riding home from work when she was attacked and raped by a group of men. While the woman was able to identify three of her assailants, due to falling unconscious, she was unsure of who had raped her. No Test Identification Parade was held. Upon examination, she was found with no bodily injuries. The Trial Court convicted six men finding common intention to commit gang rape. The Supreme Court affirmed in part and reversed in part. Three of the convictions could not be upheld because of the victim’s failure to identify them. The significance of this case, however, is the Court’s recognition that identifiable physical injury is not necessary to prove rape; the circumstances in which a victim is found can be sufficient. And the recognition that not all of the convicted must have committed the actual rape but need only have the intention to commit gang rape.



Sabwe Abdu v. Uganda Supreme Court of Uganda (2010)

Sexual violence and rape, Statutory rape or defilement

Appellant was convicted of defilement of a girl less than 18 years old and was sentenced to 12 years imprisonment. Trial testimony established that while the 13-year-old girl and her younger sister were fetching water at a well, appellant, disguised as a ghost, ordered the two to remove their dresses, blindfolded them, and led them through a swamp to some bush where he had sexual intercourse with the older sister. He then left the sisters in the bush overnight, and the sisters’ father was unable to find them. Appellant then went to the father’s house and told him that he could use his witchcraft powers to find the sisters if the father paid him two goats and two chickens. Upon payment, appellant went back to the brush and brought the sisters to his home, claiming that they needed treatment. While at Appellant’s home, the older sister told her father that appellant had raped her. At trial, the court rejected appellant’s defense that a ghost had abducted the sisters and he was merely using his witchcraft powers to help find the girls. Instead, the court relied on the sisters’ testimony, who claimed that they recognized appellant’s voice. The Supreme Court upheld the conviction and sentence. First, the court found that appellant lived only a quarter mile away from the sisters and used to come to their home and speak to their father, thus supporting the assertion that the sisters were able to identify appellant through voice recognition. Second, the court found that appellant’s witchcraft defense could not be reasonably believed and that the fact that he immediately located the sisters upon payment supported the inference that he was the one who brought them there.



Shivaji @ Dadya Shankar Alhat v. The State of Maharashtra Supreme Court of India (2008)

Sexual violence and rape, Statutory rape or defilement

A man led a nine-year-old girl to a hill where he raped, strangled and murdered her. The girl’s sister testified that she saw her sister leave with the man and the mother later recovered the girl’s body from the hill and filed the police report against the accused. He was convicted and sentenced to death under Sections 376 and 302 of the Indian Penal Code. The man appealed, claiming that he should not be sentenced to death on circumstantial evidence alone. The High Court dismissed the appeal. The Supreme Court affirmed, holding that circumstantial evidence establishes the guilt of the accused, forming the conviction, but does not bear any relation to the sentencing. The Supreme Court defers discretion to trial judges in arriving at a proper sentence dealing with the subtleties of each case.



Sgt. Canbera Dickson v. Uganda Court of Appeals of Uganda (2010)

Sexual violence and rape

This is an appeal challenging a rape conviction and sentencing of 15 years imprisonment. Appellant, an army sergeant, went to a village and used a gun to murder his maternal uncle. On the same day, he led his victim, a widow of appellant’s late brother, to an abandoned house and raped her at gunpoint. Three days later, the victim reported the incident and was medically examined. Because she recently had a baby, the medical examiner was unable to find any physical damage to her body. Appellant appeals on two main grounds: (1) without medical proof of penetration, the victim’s accusation requires corroboration to stand; (2) the sentence of 15 years was excessive. On appeal, the court accepted the prosecution’s argument that, because the victim was a new mother and was being held at gunpoint, it was very unlikely that she would have been physically damaged from the penetration or struggle. The court also followed prior precedent that held that, in certain criminal cases, corroboration was not necessary for a conviction. Concerning sentencing, the court also agreed with the prosecution. The court found that appellant had been given a gun by the military to protect the people of Uganda, but instead appellant used that gun to terrorize and rape the victim. Because of those circumstances, the court refused to be lenient, but rather increased appellant’s sentence to 25 years.



State of Rajasthan v. Madan Singh Supreme Court of India (2008)

Sexual violence and rape

The Trial Court convicted a man of raping a ten-year-old girl and sentenced him to ten years of imprisonment under Section 376(2)(f) of the Indian Penal Code. On appeal, the High Court reduced his sentence to seven years considering the convicted had already suffered a custodial sentence of six years, was young, and the only breadwinner in a family with two children. The Supreme Court, however, reversed the High Court’s reduction of the sentence because it fell below the statutory minimum. The Supreme Court held that the measure of punishment in a rape case cannot depend on the social status of the victim or the accused. It must depend on the conduct of the accused, the state and age of the victim, and the gravity of the criminal act. Crimes of violence upon women are to be severely dealt with. The proviso to Section 376(2) specifies that the court may, for special and adequate reasons, impose a sentence of less than ten years. However, the Supreme Court in the present case, found there to be no justifiable extenuating or mitigating circumstances available that would justify imposing a less-than-minimum sentence.



Mugasa Joseph v. Uganda Court of Appeal of Uganda (2010)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

This appeal was limited to sentencing only. Appellant was convicted of defilement of a baby girl and was sentenced to 17 years imprisonment. Appellant was a relative of the child and was known as a teacher of Christianity. Appellant requested a more lenient sentence of 10 years. The Court of Appeals ruled against Appellant and increased his sentence to 25 years, citing the policy consideration that, despite the fact that defilement can be punishable by death, individuals still continue to defile babies. Thus, the court used this case as an opportunity to send a message to society that “violating the rights of child females must stop.”



In re A-T United States Executive Office for Immigration Review (EOIR) (2011)

Female genital mutilation or female genital cutting, Forced and early marriage, Gender discrimination, Harmful traditional practices, International law, Sexual violence and rape

After over six years in immigration court, an immigration judge reversed his previous judgment to give a woman from Mali asylum protection in the United States. As a child in Mali, the woman was subjected to female genital mutilation (FGM). She studied in the United States; her father then ordered her back to Mali to marry her first cousin, despite the fact that she already had three children in the U.S. Fearing forcible marriage and rape for herself and forced FGM for her daughters, the woman applied for asylum. The immigration court denied her request initially in 2004. On appeal, the Board of Immigration Appeals reasoned that FGM is a one-time occurrence, making future persecution unlikely. However, in 2008, the Attorney General intervened, pointing to the interconnectedness of sexual violence and the possibility of future persecution. The Attorney General directed that the case be reconsidered, and after a new trial, the judge granted the woman asylum, indicating that the threat of spousal rape alone was enough to constitute persecution. The case is important for asylum applicants, because violent acts like FGM are no longer to be considered isolated events unlikely to lead to further persecution.



R. v. Ewanchuk Supreme Court of Canada (1999)

Sexual violence and rape

The female complainant was repeatedly touched in a progressively intimate manner by the accused, despite the fact that she clearly said “no” on each occasion. Any compliance by the complainant with the accused’s advances was done out of fear, as she believed that they were locked inside the accused’s trailer. The conversation that took place between the two in the trailer clearly demonstrated that the accused knew that the complainant was afraid and that she was an unwilling participant. The complainant filed suit against the accused for sexual assault in the Alberta Court of the Queen’s Bench. Despite the trial judge’s acceptance of the complainant’s testimony regarding her lack of consent, the judge acquitted the accused on the basis of “implied consent”; the Court of Appeal affirmed. On the issue of whether the trial judge erred in his understanding of consent in sexual assault, and on whether the defense of “implied consent” was proper, the Supreme Court of Canada held that there was error and ordered that an appeal from that decision be allowed.



Mashita Katakwe v. Hakasenke High Court of Zambia (2006)

Gender discrimination, Gender violence in conflict, Sexual harassment, Sexual violence and rape, Statutory rape or defilement

Rosaria, a thirteen-year-old schoolgirl, was raped by defendant teacher, and consequently contracted a venereal disease. The rape occurred in the defendant's home, which Rosaria entered with the intent of picking up some past school papers that the defendant had failed to bring to school on multiple occasions. After bringing this incident to the Head Teacher's attention, it was uncovered that the defendant had done this before, that measures had been taken to warn or protect students from the defendant, that the defendant had only received a verbal warning, and that the previous student victim had transferred to another school. In his defense, the defendant claimed that he was in a relationship with Rosaria, to which she consented, as evidenced by a Valentine's Day card that Rosaria had given him. The High Court held that the defendant breached the duty of care that he owed to his pupils and was therefore negligent, noting that it is the duty of a school teacher to care for his pupils, as would a father for his family. The Court reasoned that school teachers are in a position of moral superiority, and a young schoolgirl's "consent" is fictitious in light of the ethics compelling a teacher to not engage in sexual relations with schoolgirls, a young girl's cognitive inability to truly consent, as well as Section 138 of the penal code, which states that defilement of a girl under the age of 16 is an offense. Notably, the Court held that society's indignation of this type of behavior ought to be reflected in the amount of damages awarded. The Court entered a judgment in favor of Rosaria for K 45,000,000 for her pain and suffering, medical expenses, aggravated damages, and mental torture. Furthermore, the Court held that the School, Ministry of Education, and the Attorney General are vicariously liable for this judgment, noting that the government is responsible for all school going children in the care of its agents, including teachers like the defendant.



R. v. Smith Ontario Court of Appeal (2005)

Gender-based violence in general, Sexual violence and rape

The appellant was convicted of two counts of making obscene material, one count of possessing obscene material for distribution, and two counts of distributing obscene material through internet websites. The materials in question, consisting of audiovisual material and written stories, depicted acts of violence perpetrated against women by men. Although no explicit sexual act was depicted in the audiovisual material, the images included depictions of nude women with their genitalia exposed and with weapons protruding from their bodies. The written stories, however, depicted explicit sex and violence. The trial judge imposed a $100,000 fine and a period of probation, during which the appellant was prohibited from accessing the internet or residing in any place where internet access was provided. The appellant appealed both his convictions and sentence. The Court of Appeal judge ruled that he would allow the appeal, set aside the convictions on four of the five counts and ordered a new trial on those counts. With respect to the written stories, the judge dismissed the appeal, set aside the original sentence and probation order, and imposed a $2,000 fine.



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.


R. v. Arcand Court of Appeal of Alberta (2010)

Gender-based violence in general, Sexual violence and rape

The complainant was raped by the accused, a distant relative, while unconscious in her home. Prior to the incident, out of kindness, the complainant had taken the accused to her home and had offered to let him stay with her. Just before the assault, the two were sitting on a bed talking, drinking, and watching television. The complainant then passed out, and she awoke to find the accused having sexual intercourse with her. She pushed him off and brought suit against him for sexual assault. The trial judge found the accused guilty of sexual assault. Although there is a three-year minimum sentence for serious sexual assault, the judge took the recommendation of defense counsel and sentenced the accused to 90 days imprisonment, to be served intermittently, plus three years probation. The State appealed the sentence, arguing that it should have been in the three- to four-year range. In evaluating the appropriate application of the proportionality principle to sentences for sexual assault, the Court of Appeal reasoned that the Supreme Court had never endorsed the concept of a harmless rape or other major sexual assault. The court held that non-consensual sexual intercourse under any circumstances constituted a profound violation of a person’s dignity, equality, security of person and sexual autonomy, and that under the circumstances of the instant case, the offense should have been sentenced as a serious sexual assault. However, the court also ruled that, having regard to all relevant considerations, a downward departure from the three-year minimum sentence is justified. Finding that the original sentence was inadequate, the court granted the appeal and concluded that a fit and proper sentence would be two years imprisonment plus two years probation.



Vistos los autos: “Review of fact by an Appeal court in the cause of Anonymous” Supreme Court of Argentina

Sexual violence and rape

Anonymous had been continually sexually abused and raped by her father since 2001 at the age of twelve. An Argentinean trial court had sentenced the father to eighteen years in prison for abusing his daughter, but this decision was overturned by an Argentinean appellate court, believing the father was not clearly guilty and his punishment was, thus, incommensurate with the crime. The Supreme Court overturned the appellate court decision, stating that there was clear guilt on the father’s part, repeated cries for help by Anonymous, and that the appellate court showed a lack of regard for the facts and the suffering of Anonymous. The case was remanded for new sentencing.

 

Anónimo había sido continuamente abusada sexualmente y violada por su padre desde 2001 a la edad de doce años. Un tribunal de primera instancia argentino había condenado al padre a dieciocho años de prisión por abusar de su hija, pero esta decisión fue revocada por un tribunal de apelación argentino, creyendo que el padre no era evidentemente culpable y que su castigo era, por lo tanto, incompatible con el crimen. La Corte Suprema anuló la decisión de la corte de apelaciones, declarando que había una clara culpabilidad por parte del padre, repetidos gritos de ayuda por parte de Anonymous, y que la corte de apelaciones mostró una falta de respeto por los hechos y el sufrimiento de Anonymous. El caso fue remitido para nueva sentencia.



Md. Kalam v. The State of Bihar Supreme Court of India (2008)

Sexual violence and rape, Statutory rape or defilement

A man convicted of raping a six-year-old girl appealed his sentence of 10 years, alleging the child’s testimony should not have been accepted without corroboration. He also insisted his sentence was too harsh. A child’s testimony is acceptable as long as the court carefully evaluates it. Both the trial court and the High Court did this and found the child’s evidence reliable. The Supreme Court denied his appeal regarding the girl’s testimony but lessened his sentence to 5 years imprisonment with fines.



OTS v. No Defendant Mendoza Supreme Court (2006)

Gender-based violence in general, Sexual violence and rape

A mentally handicapped young woman was allowed to have an abortion per article 86 of the Argentinean Penal Code. The woman was impregnated through rape. Because of the woman’s mental disorders and medication issues, it was impossible to ensure a viable child and a healthy mother. This decision also declared that article 86, which allows for abortion in the case of non-viability, can be employed at a doctor’s discretion without formal court proceedings.

A una joven con discapacidad mental se le permitió abortar su embarazo, conforme con el artículo 86 del Código Penal Argentino. La mujer fue impregnada por violación. Debido a los trastornos mentales y los problemas de medicación de la mujer, era imposible garantizar un hijo viable y una madre sana. Esta decisión también declaró que el artículo 86, que permite el aborto en caso de no viabilidad, puede emplearse a discreción de un médico sin procedimientos judiciales formales.



Moti Lal v. State of M.P Supreme Court of India (2008)

Sexual violence and rape

A man raped a woman while she guarded her husband’s agricultural field. The woman and her husband filed a police report, and the man was arrested and convicted under §§ 450 and 376(1) of the Indian Penal Code and § 3(1)(xii) of the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act. The offender appealed his conviction on the grounds that the prosecution relied too heavily on the victim’s testimony. The Court denied his appeal. Emphasizing the stigma associated with incidents of rape, the Court reaffirmed Indian courts’ presumption that rape victims who file reports are telling the truth.



Matter of N., R. F. Sexual Abuse San Carlos de Bariloche Supreme Court (2010)

Gender-based violence in general, Sexual violence and rape

A seventeen-year old girl won her court petition for an abortion despite the fact that there was no issue of fetus viability. The minor had suffered repeated sexual abuse at the hands of her father and uncle for the past six years. The court reaffirmed constitutional and human rights protections for fetuses against abortions, but explained that the right to life is not protected from conception to death with the same intensity. In this case, the fact that the pregnant minor had suffered repeated sexual abuse, had passed a psychological evaluation, and was only 11 weeks pregnant were sufficient reasons to override the presumption of protection for the fetus.

 

Una niña de diecisiete años ganó su petición en la corte para un aborto a pesar del hecho de que no había ningún problema de viabilidad del feto. La menor había sufrido repetidos abusos sexuales a manos de su padre y su tío durante los últimos seis años. El tribunal reafirmó las protecciones constitucionales y de derechos humanos para los fetos contra los abortos, pero explicó que el derecho a la vida no está protegido desde la concepción hasta la muerte con la misma intensidad. En este caso, el hecho de que la menor embarazada había sufrido abuso sexual repetido, había pasado una evaluación psicológica y tenía solo 11 semanas de embarazo era razón suficiente para anular la presunción de protección para el feto.



Shekara vs. State of Karnataka Supreme Court of India (2009)

Sexual violence and rape

A man induced a girl to have intercourse with him on a false promise to marry her and then threatened to kill her and her mother. School records showed that the girl was less than 16 years of age. The Court held the man could not be convicted of rape for his false promise, but he could be convicted for the use of criminal force on a woman with intent to outrage her modesty. This case demonstrates that men can be criminally convicted for lying to a woman in order to have intercourse with her.



Matter of S., R. A., E. O. A. y A., R. A. Buenos Aires Supreme Court (2006)

Gender-based violence in general, Sexual violence and rape

In this case, a defendant who had been sentenced to twenty five years for kidnapping, among other crimes, appealed his conviction, contending that he had committed lesser kidnapping (plagio) instead of the more serious crime of premeditated kidnapping (rapto) of which he was convicted. The court decided to uphold his conviction, despite the fact that there was only coercion involved. The “lessening of sexual integrity” against the will of the victims made the defendant guilty of the greater crime of rapto under article 130 of the Argentinean Penal Code.

 

En este caso, un acusado que había sido condenado a veinticinco años por secuestro y otros delitos, apeló su condena, alegando que había cometido secuestro menor (plagio) en lugar del delito más grave de secuestro (rapto) premeditado del cual fue condenado. El tribunal decidió defender su condena, a pesar del hecho de que solo hubo coerción. La "disminución de la integridad sexual" contra la voluntad de las víctimas hizo que el acusado fuera culpable del mayor delito de rapto en virtud del artículo 130 del Código Penal argentino.



State of Rajasthan v. Hemraj & Anr Supreme Court of India (2009)

Sexual violence and rape

The Supreme Court held that a woman present for a gang rape did not share the common intention to rape and, therefore, could not be convicted of rape. According to §§ 375 and 376 of the Penal Code, only a man can commit rape, making it impossible for a woman to be convicted of a gang rape. This case is important because it raises the issue of how or when to hold women responsible for sexual violence against other women.



Christensen v. Royal Sch. Dist. Washington Supreme Court (2005)

Sexual violence and rape, Statutory rape or defilement

Plaintiff-child and parents sued defendant-school district, principal and teacher, alleging that teacher had sexually abused the child and the district and principal were negligent in hiring and supervising the teacher. In a responsive pleading, defendant-school district and principal asserted as affirmative defense that plaintiff’s voluntary participation in the sexual relationship with defendant teacher constituted contributory fault. The trial court certified to the Supreme Court of Washington a question whether a 13-year-old victim of sexual abuse, who brought a negligence action, could have contributory fault assessed against her under the Washington Tort Reform Act. The Supreme Court of Washington held that, as a matter of law, a child under the age of 16 could not have contributory fault assessed against her for participating in sexual activities. Plaintiff lacked the capacity to consent and was under no legal duty to protect herself from sexual abuse. Societal interests embodied in the criminal laws protecting children from sexual abuse applied equally in the civil arena when harm was caused to the child by an adult perpetrator of sexual abuse or a third party in a position to control that person’s conduct. Furthermore, the idea that a student had a duty to protect herself from sexual abuse at school by her teacher conflicted with the well-established law that a school district had an enhanced and solemn duty to protect minor students in its care.



Trumbull v. State Wyoming Supreme Court (2009)

Sexual violence and rape, Statutory rape or defilement

Defendant appealed a judgment of the District Court that convicted him of two counts of third-degree sexual assault under Wyo. Stat. Ann. § 6-2-304(a)(ii) (2005) for sexual improprieties involving his 10-year-old daughter, arguing that the evidence was insufficient to support his convictions and that the district court erred in imposing sentence. The Supreme Court of Wyoming affirmed defendant’s conviction, but reversed and remanded the case to the District Court for further proceedings on other grounds. The Supreme Court of Wyoming held that, where a statute criminalizing sexual contact contains an element of sexual gratification, it is not enough to establish that the defendant merely touched the sexual or intimate parts of an individual. The law at issue requires the presence of intent of sexual arousal, gratification, or abuse. However, an oral expression of intent is not required to establish a defendant’s intent, but may be established through defendant’s conduct and circumstances of physical contact. Intent of sexual gratification may be inferred from touching the complainant on more than one occasion, and committing the act after no adults were remaining in the house. In this case, defendant’s intent could be inferred from his “massaging” the clothed victim on two occasions, during which he touched her on her “legs, arms, boobs, privates, butt, and girl spot.”



CDB v. DJE Wyoming Supreme Court (2005)

Sexual violence and rape, Statutory rape or defilement

After pleading guilty, appellant-father was convicted of several counts of sexually abusing his daughter. Appellee-mother filed a petition to terminate father’s parental rights to the daughter, and the District Court terminated his parental rights pursuant to Wyo. Stat. Ann. § 14-2-309(a)(iii) and (a)(iv). The Supreme Court of Wyoming upheld the decision. In terminating appellant-father’s parental rights, the Supreme Court held that the fact of incarceration, by itself, is not per se evidence of unfitness. However, incarceration is a reality that severely impacts the parent-child relationship and, therefore, cannot be ignored. The length of appellant’s incarceration of 47 years makes it extremely improbable that appellant would ever be able to care for the ongoing physical, mental or emotional needs of the daughter. Most importantly, appellant was convicted on several counts of sexually abusing his daughter, and there can be nothing that makes a parent more intrinsically unfit than abusing his child.



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.



In re Civil Commitment of W.X.C. New Jersey Supreme Court (2010)

Sexual violence and rape

Defendant burglarized two homes several times and raped two women, one at knifepoint and one with the threat of a gun, living in them. The defendant also walked into a nursing home, dragged a female resident into a bedroom and demanded that she perform oral sex on him. The defendant subsequently entered a plea agreement involving twenty-four years in prison with a twelve-year period of parole ineligibility. During the defendant’s sentence, the New Jersey legislature enacted the Sexually Violent Predator Act (N.J.S.A. 30:4-27.26). Towards the end of the defendant’s sentence, the State filed a petition to have him civilly committed. The defendant challenged the petition and argued that he was not provided with sex offender treatment while incarcerated, and thus, commitment would violate his due process rights. Id. at 185-86. The civil commitment court rejected this challenge and found that the Sexual Violent Predator Act is not unconstitutional on its face as applied to an individual who did not receive treatment while incarcerated. The court then found the defendant was a sexually violent predator and committed him. On appeal, the defendant argued that the Act is unconstitutional because it is used as a vehicle for further punishment. The court found that the Act was not punitive and serves to deter and prevent sexual violence.



Bangladesh National Women Lawyers Association v. The Cabinet Division Bangladesh Supreme Court (2011)

Gender-based violence in general, Harmful traditional practices, Sexual harassment, Sexual violence and rape, Trafficking in persons

In an application under Article 102 of the Constitution, the Bangladesh National Women's Lawyers Association (BNWLA) petitioned the Supreme Court of Bangladesh (High Court Division) to address the exploitation and abuse endured by child domestic laborers in Bangladesh. The BNWLA argued that child domestic workers are subjected to economic exploitation, physical and emotional abuse, and the deprival of an education in violation of their fundamental constitutional rights. In support of these arguments, it presented multiple reports of extreme abuse suffered by child domestic workers. In deciding this case, the Court reviewed the current laws in Bangladesh, including the Labour Act, 2006, which fails to extend labor protections to "domestic workers," including children, and lacks an effective implementation and enforcement system. The Court directed the government of Bangladesh to take immediate steps to increase its protection of the fundamental rights of child domestic workers including prohibiting children under the age of twelve from working in any capacity including domestic settings; supporting the education of adolescents; implementing the National Elimination of Child Labour Policy 2010 and applying the Labour Act, 2006 to domestic workers. Additionally, the Court directed the government to monitor and prosecute incidents of violence against child domestic workers, maintain a registry of domestic workers and their whereabouts to combat trafficking, promulgate mandatory health check-ups and strengthen the legal framework relating to child domestic workers.



In re Civil Commitment of S.S. New Jersey Superior Court (2011)

Sexual violence and rape

Here, the court affirmed a judgment involuntarily committing the petitioner to a Special Treatment Unit as a sexually violent predator under the Sexually Violent Predator Act (N.J.S.A. 30:4-27.24). Under this act, the state must prove by clear and convincing evidence that an alleged offender is a “sexually violent predator and currently suffers from a mental abnormality or personality disorder that makes him highly likely to engage in acts of sexual violence if not confined.” In this case, the defendant had been indicted for aggravated sexual assault of five pre-teen females, five counts of kidnapping, two counts of terroristic threats, two counts of robbery, two counts of unlawful possession of a weapon, and two counts of possession of a weapon for an unlawful purpose. The court found that the state’s use of expert testimony that the petitioner’s condition predisposed him to sexual violence established by clear and convincing evidence that he is a high risk to re-offend unless confined.



Commonwealth v. Conklin Pennsylvania Supreme Court (2006)

Sexual violence and rape

Defendant was convicted of involuntary deviate sexual intercourse, aggravated indecent assault, incest, indecent assault, indecent exposure and corruption of a minor. The defendant had sexually abused his daughter from the ages of six to nine. The nature of the defendant’s crimes required a determination if he was a sexually violent predator under Megan’s Law II (42 Pa. C.S.A. § 9792). At trial, a licensed clinical social worker and Board member assessed the defendant and concluded that he met the criteria of a sexually violent predator. The defendant’s evaluator was not a psychiatrist or psychologist, but the trial court found him qualified to testify as to the defendant’s status by his experience and training. The court found that the defendant was a sexually violent predator based upon the social worker’s conclusions. On appeal, the defendant argued that he could only be found to be a sexually violent predator by a psychiatrist or psychologist. The court noted that the criteria to assess in making the determination if a person is a sexually violent predator are: whether the offense involved multiple victims; whether the individual used excessive means to achieve the offense; the nature of the sexual contact; the relationship to the victim; the age of the victim; if the offense included any unusual cruelty; the victim’s mental capacity; and any history of prior offenses. The court found that a social worker could assess these factors; it was not necessary for a defendant to be evaluated by a psychiatrist or psychologist.



Commonwealth v. Meals Pennsylvania Supreme Court (2006)

Sexual violence and rape

Here, the defendant pleaded guilty to sexual offenses, namely that he sexually assaulted two daughters of his live-in girlfriend and threatened the younger daughter that he would harm her mother if she reported the assaults. A member of the Sexual Offenders Assessment Board assessed the defendant and found him to be a sexually violent predator under Megan’s Law II (42 Pa. C.S.A. § 9795). The court found that the defendant was a pedophile and was a sexually violent predator. The Superior Court subsequently reversed this finding, reasoning that the evidence did not support the defendant’s classification, and the state appealed. On appeal, the court found that the Superior Court improperly required the diagnosis of pedophilia to require more than proof of sexual assault on children. The court reversed this and found that proof of sexual assault on children sufficed to warrant a finding of pedophilia and the defendant was properly classified as a sexually violent predator.



Commonwealth v. Fuentes Pennsylvania Superior Court (2010)

Sexual violence and rape

Defendant appealed a ruling that he was a sexually violent predator, suffering from an antisocial personality disorder. Defendant sexually assaulted a sixteen year-old girl and threatened to kill her if she reported the assault. He was subsequently arrested and entered a negotiated guilty plea. At the defendant’s Megan’s Law hearing and sentencing, a doctor, who was a member of the Sexual Offenders Assessment Board, found that the defendant had an antisocial personality disorder and that he was likely to engage in sexually violent activity if not confined. In response to the defendant’s appeal, the Superior Court noted that the “determination of a defendant’s SVP status may only be made following an assessment by the Board and hearing before the trial court.” The court noted that the Board member’s opinion was evidence in of itself of the defendant’s sexually violent nature, and it upheld the assessment.



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.



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.



N.C. v. P.R. Caldwell Alabama Supreme Court (2011)

Sexual violence and rape, Sexual harassment

N.C., a minor, filed a personal injury action against her physical education teacher, her school principal, and the Tallapoosa County Board of Education. N.C. alleged that, following her 7th grade physical education class, she was pulled into the boys’ locker room and raped by A.H, a 12th grade student who her teacher, Mr. Caldwell, had allegedly appointed as a teacher’s aide. N.C.’s complaint alleged that Mr. Caldwell had actual knowledge that A.H. was sexually harassing students and negligently or wantonly supervised N.C. and the other students in her class. Mr. Caldwell, the principal, and the Board filed motions for summary judgment, arguing that N.C.’s claims were barred by the doctrine of State-agent immunity. N.C. opposed entry of summary judgment only against Mr. Caldwell. The trial court found that the doctrine of immunity is strong and the Supreme Court “has been particularly reluctant to hold an educator responsible for sexual misconduct by another.” On that ground, the trial court granted summary judgment in favor of Mr. Caldwell on the basis of Stage-agent immunity. On appeal, the court considered an exception to the law of State-agent immunity, which provides that “a State agent shall not be immune from civil liability in his or her personal capacity . . . when the State acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.” N.C. argued that there was a genuine issue of material fact as to whether Mr. Caldwell acted beyond his authority: (1) when he allegedly failed to properly supervise A.H.; (2) when he allegedly allowed A.H. to act as a teacher’s aide; and (3) when he ignored and failed to report previous claims by other female students. The appellate court held that there was a genuine issue of material fact as to whether Mr. Caldwell actually appointed A.H. as a student aide, and, if he did, whether he acted beyond his authority in doing so. The court also found that there was a genuine issue of material fact as to whether Mr. Caldwell was actually aware that A.H. was sexually harassing other female students and, if he was, whether he failed to respond to the allegations. Thus, the appellate court concluded that the trial court erred in entering summary judgment for Mr. Caldwell.


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.



Feddiman v. State Delaware Supreme Court (1989)

Sexual violence and rape

Here, the defendant appealed a conviction for assault, kidnapping and rape. The defendant argued that he could not be convicted of eight separate counts of rape for one victim, as this would constitute double jeopardy. The court disagreed and affirmed the superior court’s finding that the fact that there were variations in the sexual acts, there was physical movement of the victim between acts, and there was time between each offense.



Com. v. Boucher Supreme Judicial Court of Massachusetts (2002)

Sexual violence and rape

Here, the defendant had pled guilty to rape of a child and assault and battery on a child.  Before he was about to be released from custody at the completion of his sentences, the State filed a petition to commit him as a sexually dangerous person under Gen. L. C. 123A, §§1, 12, as someone who has been convicted of a “sexual offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses if not confined to a secure facility.”  Id. at 275.  The trial judge dismissed the State’s petition as it found the State failed to show beyond a reasonable doubt that the defendant was likely to commit new sexual offenses unless confined.  The court found that the State had to show a risk of committing a new offense of at least fifty percent, or, more likely than not.  The State appealed.  Here, the court was faced with defining the word “likely” as used in Gen. L. C. 123A, § 1 in defining a sexually dangerous person as someone “likely to engage in sexual offenses if not confined to a secure facility.”  Id. at 274.  The court noted that to determine what is “likely,” the court must consider the seriousness of the threatened harm, the relative certainty that the harm will occur, and the possibility of successful intervention to prevent the harm.  Id. at 276.  Further, “likely” indicates more than a mere possibility or probability, but it is not bound to a statistical definition such as “at least fifty percent.”  Id. at 277.  Further, the statute does not indicate it has to mean more likely than not.  As such, the court found the trial court erred in its interpretation of “likely” and it remanded the case.



Ex parte Alabama Department of Youth Services Supreme Court of Alabama (2003)

Custodial violence, Sexual harassment, Sexual violence and rape

Jane Doe 1 and Jane Doe 2, female minor children in the custody of Alabama’s Department of Youth Service (“DYS”), brought an action against DYS and its executive director, alleging federal claims of sexual harassment and abuse under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. (“Title IX”) and 42 U.S.C. § 1983, and state claims of intentional infliction of emotional distress, negligent hiring and supervision of DYS employees, and intentional misrepresentation. Defendants’ filed a motion to dismiss the claims based on various arguments for immunity, which the trial court denied. Defendants filed a petition for writ of mandamus directing the Circuit Court to dismiss the complaint. In ruling on Defendants’ petition, the Supreme Court considered each claim for immunity. First, DYS claimed it was immune from liability under the Eleventh Amendment. The Court, however, held that, because Congress enacted Title IX not only pursuant to its Article I powers, but also pursuant to its Fourteenth Amendment, § 5, power, Congress successfully abrogated the Eleventh Amendment immunity of the states from suits in federal and state courts for violations of Title IX. Second, the executive director argued he was entitled to federal qualified immunity from the § 1983 claim, since he was a government official. The Court disagreed, citing law holding that there is no state interest in protecting government officials accused of sexually molesting a child. Because the plaintiffs alleged that the executive director failed to protect them from harm even after he received notice of the sexual harassment and abuse, he did not have a clear legal right to dismissal of plaintiffs’ § 1983 claim on the ground of federal qualified immunity. Third, the Court found that, based on the sovereign immunity provision of the Alabama constitution, dismissal of plaintiffs’ state-law claims against the executive director in his official capacity was proper. However, the Court found that the doctrine of state-agent immunity did not warrant dismissal of plaintiffs’ state law claims against the executive director in his individual capacity.



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.



State v. Little, 127 Conn.App. 336 Connecticut Court of Appeals (2011)

Sexual violence and rape

Here, the defendant had a prior conviction of sexual assault in the third degree.  He was sentenced to two years of prison with three years probation.  Under Gen. Stat. § 54-252, the defendant was required to register as a sex offender with the sex offender registry unit of the state policy.  Id. at 338.  While the defendant initially registered after his release from prison, he later failed to comply with all of the registration reporting requirements.  Id.  Specifically, he failed to return an address verification form.  The defendant had moved and six months later, contacted the registry office to send correspondence to his new address so he could update his registry.  Id.  The defendant since remained in compliance with registry requirements.  Nonetheless, the court affirmed the trial court’s conviction that the defendant failed to comply with sex offender registration requirements.



Interpretative recourse High Court of Cassation and Justice (2005)

Sexual violence and rape

Due to inconsistencies in the application of the Romanian law criminalizing forced sexual relations with family members of opposite sex through constraint or taking advantage of the victim’s inability to defend herself or express her will, the High Court of Cassation and Justice has been called upon by the General Prosecutor to establish the legal qualification of the facts representing both rape and incest. Following analysis of the relevant legal aspects, the court decided that such cases shall be considered as rape against a family member simultaneously with incest and shall be sanctioned accordingly.



State v. Friedrich Wisconsin Supreme Court (1987)

Sexual violence and rape

Defendant was convicted of two counts of second-degree sexual assault for assaulting his 14-year old niece by marriage.  The Wisconsin Supreme Court held that the trial court correctly refused to allow a psychologist for the defense to testify that the defendant did not fit the psychological profile of incestuous sex offenders.  It held that testimony regarding defendant’s sex acts against minors was admissible.  It also held that testimony by an adult woman of defendant’s 13, although an error, was harmless error.  The court agreed that the testimony of the two individuals regarding sex acts against minors was admissible because it showed a “general scheme or motive to obtain sexual gratification from young girls” under Wisconsin evidentiary law.  It agreed that admitting the testimony of the woman who alleged 13 was error since it did not similarly show a general scheme, but that admission was harmless error since it was not possible that the error contributed to the defendant’s conviction.  The court noted that the trial court applies a two step process to determine whether evidence of other crimes is admissible, looking at whether it falls into one of the exceptions listed in the applicable statute, and second determining whether prejudice outweighs the probative value of the evidence.  Additionally, in sex crime cases involving children, the court noted that there is “greater latitude of proof as to other like occurrences.”



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.



KKO 2011:1 Supreme Court of Finland (2011)

Sexual violence and rape

The issue here was whether violation of official duty of a doctor was considered sexual abuse under the Finnish Criminal Code (39/1889, as amended) (the "Criminal Code"). A was the working doctor when B went for a breast ultrasonography. A had touched B's breast with bare hands and complemented her on her breasts. A had also massaged gel on the breasts with his hands and several times touched B's breasts. A had also, after getting permission from B, suckled the breasts in order to get excretion. The District Court and the Court of Appeal held that the procedure was not appropriate but did not amount to sexual abuse. The questionbefore the Supreme Court was whether the procedure had a sexual purpose.  According to  Chapter 20 Section 5(1) of the Criminal Code, a person who abuses his or her position and entices another into engaging in sexual intercourse or another sexual act or submitting to such an act should be sentenced for sexual abuse. The Court held that the procedures that A performed deviated from established and medically recommended practice. As a whole the procedure was done in a way that strongly indicated the purpose of sexual arousal or satisfaction. The fact that B had reacted only afterwards was not significant. The Court held that doctor and patient are not in an equal position and the fact that a patient agrees to a medical examination does not imply that the patient would give up her sexual self-determination. The Court saw that A had misused his position as a doctor and found A guilty of sexual abuse and violation of an official duty in accordance with Chapter 40 Section 9(1) of the Criminal Code. The Court found that this was only a single incident towards a consenting adult and sentenced A to pay 80 days-fine and damages to B of 1,200 Euros.



KKO 2010:1 Supreme Court of Finland (2010)

Gender discrimination, Sexual harassment, Sexual violence and rape

The issue here was whether A, the CEO of a company for which the victims worked, was guilty of sexual abuse, of a work safety offense, and of employment discrimination. A had performed sexual acts on his subordinates while they were resting in the break room. These acts included touching intimate parts such as breasts and bottom. The District Court and the Court of Appeal held A guilty of these charges, and A appealed to the Supreme Court.  The Supreme Court considered whether the public prosecutor had a cause of action given that the injured party had not reported the offense within the statute of limitations period.  According to Chapter 20 Section 11 of the Finnish Criminal Code (39/1889, as amended) (the "Criminal Code"), the public prosecutor may not bring charges for the offenses referred to in Sections 3 or 4 or Section 5(1)(2) or 5(1)(4), unless the injured party reports the offense for the bringing of charges or unless a very important public interest requires that charges be brought.The Court held that since A was the victim's supervisor, important public interest required the case to be brought to court by the prosecutor. Turning to the merits of the case, the Court found that A had abused his position in violation of Chapter 20 Section 5(1) of the Criminal Code.  It therefore held A guilty of sexual abuse towards B, C, D and E.  In addition, the Court upheld A's convictions for a work safety offense under Chapter 47 Section 1(1) of the Criminal Code and Section 27 of the Finnish Occupational Safety and Health Act (738/2002, as amended).  Finally, the Court upheld A's conviction for employment discrimination in violation of Section 8(2)(4) of the  Finnish Equality Act (609/1986, as amended), in accordance with Chapter 47 Section 3(1) of the Criminal Code.



KKO 2004:60 Supreme Court of Finland (2004)

Sexual violence and rape

The issue was whether the victim pointing out the rapist was sufficient evidence to hold someone guilty, taking into account the circumstances at the time of recognition. B was coming home late at night from a restaurant. On the way home B was raped. After the incident B tried to find the rapist. B met a friend C who happened to be in the companion of A. B recognized A as the rapist. All the parties where intoxicated at the time. A left the scene immediately when B started accusing A. There was not enough DNA evidence to be found to determine the identity of the rapist. At the District Court hearing B recognized A as the perpetrator. A pleaded not guilty but the District Court and later the Court of Appeal sentenced A to 1 year and 10 months prison for rape. The question in front of the Supreme Court was whether B pointing out A as the perpetrator was enough evidence to hold A guilty. The Court had no doubt that B was raped. The Supreme Court held that there were uncertainties including the parties' intoxication and the fact that B after identifying A reinforced the characteristics of the perpetrator. This could indicate that these were more observations about A and not about the actual rapist. B's recognition could not be held as the only evidence proving A guilty since it could not be seen as reliable. Also the Court held that according to the new witnesses D and E and the testimony by C, A could not possibly have had the time to reach the crime scene and back to where A was reported been seen. The court held that B's recognition could not be held as reliable evidence and the fact that A left as soon as B pointed out him as the perpetrator could not be seen as evidence proving A's guilt. According to the Supreme Court the evidence was not sufficient to prove A guilty. The charges were dismissed. Reliability of evidence is regulated under Finnish law pursuant to Chapter 17 Section 2(1) of the Finnish Code of Judicial Procedure (4/1734, as amended) (the "Code of Judicial Procedure"). The Code of Judicial Procedure provides that after having carefully evaluated all the facts that have been presented, the court shall decide what is to be regarded as the truth in the case. The court shall evaluate the evidence by: (i) deliberating the value of the evidence and (ii) resolving whether the presented evidence is sufficient. The court practices free deliberation which is limited by the need for careful evaluation and the fact that the assessment has to be grounded on objective criteria. The judge uses his/hers empirical rule and additional facts on the evidence evaluation. In criminal cases the burden of proof is on the prosecution and the plaintiff (Chapter 17 Section 1(2) of the Code of Judicial Procedure).



State v. L.D. Cluj Court of Appeal (2006)

Gender-based violence in general, Sexual violence and rape

The accused L.D. entered into the house of an 80-year-old woman, exercised physical violence against her, and raped her. The woman died as a result of the violence, and L.D. was convicted for homicide. Related to the rape the trial court considered that due to the lack of the victim’s complaint (a condition precedent for criminal investigations in case of rape) L.D. could not be convicted of rape. In the appeal submitted by the prosecutor, the Appeal Court held that although in normal circumstances the lack of a victim’s complaint will prevent criminal investigations of an alleged rape, in special cases, where the victim died, the criminal investigations shall start ex-officio. As any person needs to be treated with dignity during criminal investigations, the memory of the victim needs to be treated in the same way. The Appeal Court explained that the right of a person to file a criminal complaint for rape had been hindered by an unpredictable and invincible event, the death of the victim of the rape.



Commonwealth v. Fiebiger Supreme Court of Pennsylvania (2002)

Sexual violence and rape

Marcia Jones was killed by Anthony James Fiebiger and his friend.  Fiebiger and his friend decided that they wanted to go to Grandview Park to molest and rape somebody.  They encountered Marcia and asked her if she wanted to go with them to the park to smoke marijuana.  Once in the park, Fiebiger choked Marcia until she fell to the ground; the two men removed her clothing while punching and kicking her.  Fiebiger attempted to have intercourse with Marcia but was unable to maintain an erection, so he abused her with a tree branch.  The court held that Fiebiger’s statement that he attempted to have intercourse with Marcia but was unable to was sufficient evidence for a jury to infer that he achieved some degree of penetration, which, however slight, is sufficient to fulfill that element of rape.  Thus, the evidence supported the finding of the aggravating factor that the murder was committed in perpetration of a felony.



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.


Commonwealth v. Kerrigan Superior Court of Pennsylvania (2007)

Sexual violence and rape, Statutory rape or defilement

Daniel Kerrigan sexually abused A.R., the 7-year-old daughter of his live-in girlfriend, for 3 years.  The abuse was discovered when A.R. was diagnosed with genital warts when she was 10 years old.  The court held that the transmission of HPV and genital warts satisfies the serious bodily injury requirement of the crimes of Rape of Child (Serious Bodily Injury) and Involuntary Deviate Sexual Intercourse with a Child (Serious Bodily Injury) because HPV is a permanent disease, can lead to cervical cancer, and may be transmitted to A.R.’s future sexual partners or children.



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.”



Vizzi v. State Florida 3rd District Court of Appeal (1986)

Sexual violence and rape

Carl Vizzi, an assistant public defender, in defending his client who was charged with sexual battery, kidnapping and false imprisonment, referred to his client’s victim as “a woman who’s trash, gutter filth.” After being admonished by the court Mr. Vizzi proceeded to call the victim “a whore, a two-bit whore.” The prosecutor petitioned the court to instruct Mr. Vizzi not to call the victim a prostitute again and the trial court ruled, based on Florida’s Rape Victim Shield Statutes, that Vizzi was not permitted to attack the character of the victim by delving into her prior sexual behavior (other than prior sexual activity that the victim had with the defendant) or by calling the victim a prostitute, whore or words of similar import. Vizzi later called the victim an “exhibitionist” and questioned the victim with respect to her “perform[ing] tricks with customers.” The circuit court held Vizzi in contempt for violating its prior order and sentenced him to 5 days of jail time. The District Court of Appeal upheld the contempt order based on Vizzi’s failure to comply with the circuit court’s ruling.


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.



People v. Liberta New York Court of Appeals (1984)

Sexual violence and rape

The defendant's wife filed a criminal complaint against him, claiming that he raped her. He moved to dismiss the charge because, under New York Penal Law section 130.35 (“Section 130.35”), which contained a marital exemption, a husband could not be convicted of raping his wife.  The trial court granted Defendant’s motion and dismissed the indictment based on the marital exemption.  The Appellate Division reversed the decision of the trial court and remanded the case for trial.  The Court of Appeals affirmed the judgment of the Appellate Division, finding Section 130.35 was unconstitutional due to the marital exemption provision.  “Where a statute draws a distinction based on marital status, the classification must be reasonable and must be based upon ‘some ground of difference that rationally explains the different treatment.’”  The court found that there was no rational basis for distinguishing between marital rape and non-marital rape and thus declared the marital exemption unconstitutional.  The court reasoned that the marital rape exemption denies married women equal protection of the laws guaranteed by the New York and United States Constitutions.  Further, the court stated, “Rape is not simply a sexual act to which one party does not consent.  Rather, it is a degrading, violent act which violates the bodily integrity of the victim and frequently causes severe, long-lasting physical and psychic harm.  To ever imply consent to such an act is irrational and absurd.  A marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity.  A married woman has the same right to control her own body as does an unmarried woman.” 



Dittrich v. Woods United States Court of Appeals for the Sixth Circuit (2011)

Sexual violence and rape

Thomas Dittrich was accused of having a three-month relationship with his daughter’s thirteen-year-old classmate, the Complaintant. The relationship began when the Complaintant went to Dittrich’s house to visit his daughter, and quickly progressed into a mutual intimate relationship. When the Complaintant’s parents uncovered the relationship, they immediately intervened and a criminal suit was filed against Dittrich. At trial, Dittrich’s family, the Complaintant, and other third parties testified about his conduct with Complaintant. Dittrich’s family recounted his history of domestic violence, to which Dittrich’s attorney did not object. Dittrich also tried to examine Complaintant about her sexual history, but could not overcome Michigan’s rape shield law by offering proof as to his proposed evidence. The jury convicted Dittrich on seven counts of criminal sexual conduct, sentencing him to 95-180 months’ imprisonment. Dittrich appealed to the Michigan Court of Appeals and then to the Michigan Supreme Court, on claims that (1) he was denied effective counsel due to his attorney’s failure to object to his family’s domestic violence testimony, and (2) the court, by denying his motion to examine Complaintant about her sexual history, violated his right to confrontation. Both courts denied relief. In 2007, Dittrich petitioned for a writ of habeas corpus, alleging both ineffective assistance of counsel and a violation of his confrontation right. The district court granted the writ, holding the confrontation violation was harmless, but Dittrich did receive ineffective assistance of counsel. The state appealed that decision and Dittrich cross-appealed on the confrontation claim. The Sixth Circuit reasoned that to prove ineffective assistance of counsel, one must demonstrate that counsel’s performance was deficient, and that the deficient performance prejudiced the defense. Although the court found that Dittrich’s counsel’s performance was deficient, they ruled that the deficiency did not prejudice the defense due to the overwhelming evidence against Dittrich. As to the confrontation claim, the court reviewed Dittrich’s request based on whether the error had substantial and injurious effect or influence in determining the jury’s verdict. The court held that Dittrich’s proposed inquiries into the Complaintant’s sexual history would have been of minimal value. Thus, the court’s decision to exclude the evidence did not have a “substantial and injurious effect” on the jury’s verdict. The court reversed the district court’s grant of habeas relief on Dittrich’s ineffective-assistance claim and affirmed its rejection of his right-to-confrontation claim.



Doe v. Penzato United States District Court for the Northern District of California (2011)

Sexual violence and rape, Trafficking in persons

Plaintiff Jane Doe (“Doe”) filed a lawsuit under a pseudonym and alleged 23 causes of action including human trafficking, sexual battery, forced labor and involuntary servitude against Defendants Mr. and Mrs. Penzato. Mrs. Penzato had offered Doe $1,500 per month, free room and board, and transportation to the United States in exchange for child care and housekeeping services. Doe accepted the offer and moved to San Francisco, California. Doe alleged that during her employment Defendants physically assaulted her, sexually molested her, threatened her with cancellation of her visa, and abused or exploited her in various other ways. She eventually left the Penzatos’ household and moved to a transitional housing residence for female victims of violence. Doe filed a motion for a protective order and requested permission to proceed with the lawsuit under a pseudonym. Doe argued that this was necessary to avoid additional psychological trauma due to the sensitive and personal nature of her claims. Further, she argued that the use of a pseudonym would help maintain the safety and anonymity of her fellow transitional housing residents. Defendants argued that because they were publically accused of sexual abuse, human trafficking, and forced labor, Doe should also be publicly exposed. Defendants also argued that they would be prejudiced by the extra effort they would have to take to keep her identity a secret. The court granted Doe’s motion and allowed her to proceed under a pseudonym, holding that Doe’s need to remain anonymous outweighed Defendants’ arguments and the public’s interest in knowing her identity. The court noted the strong interest in protecting sexual assault victims’ identities—to encourage them to report the assaults without fear of being stigmatized as a sexual assault victim.



People v. Chipikili Subordinate Court of the First Class for the Lusaka District (2010)

Sexual harassment, Sexual violence and rape

The accused, a teacher, was accused of sexually assaulting a nine-year-old girl while administering an examination to her. The girl testified that she had reported to the school where she was to be enrolled for aptitude tests. She was taken to a classroom where she found herself alone with the teacher. She said that while she was writing the exam, the teacher hugged her from behind and began fondling her breasts. She moved to another seat and finished the exam. He then lifted her up and told her that she was going to help him, but she pushed him away and ran to the principal's office. The teacher denied the charges, arguing that the girl was a slow learner and was mentally disturbed. When he took the stand at the trial, however, he frequently contradicted himself. On the one hand, he stated that people outside would have seen what happened through the windows and that there were other pupils in the class at the time. On the other hand, he said that the alleged assault could have happened so quickly that nobody would see and noted that the schools closed in December, which meant that no other pupils were in class in January when the girl took the exam. Weighing the evidence and taking into account the contradictory testimony of the accused, the Resident Magistrate found that the prosecution had proved its case beyond a reasonable doubt. She therefore convicted the teacher of indecently assaulting the young girl.



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.



U.S. v. Rowland United States Court of Appeals for the Tenth Circuit (2004)

Sexual violence and rape

Rowland was charged in a one-count indictment with possession of a firearm and ammunition after former conviction of a felony. One of the former convictions was sexual battery. The district court determined that the felony of sexual battery under Oklahoma law constituted a crime of violence under the Federal Sentencing Guidelines, and, as such, could be used to enhance his felon in possession of a firearm sentence. Rowland appealed his conviction, specifically contesting the characterization of his prior conviction for sexual battery as premised upon conduct constituting a crime of violence. On appeal, the circuit court noted that Oklahoma’s sexual battery statute presupposed lack of consent, which implicated serious potential risk of physical injury to another. The court then went on to explain that physical injury need not be a certainty for a crime to pose a serious risk of physical injury; the possibility that a crime may be completed without injury is irrelevant to the determination of whether it constitutes a crime of violence which can be used to increase a base offense level for firearms offense conviction. Under this analysis, the court held that sexual battery, under Oklahoma law, implicates a concomitant serious risk of physical injury, and therefore Rowland’s sexual battery conviction was a “crime of violence” that could be used to enhance his sentence.



Griffin v. City of Opa-Locka United States Court of Appeals for the Eleventh Circuit (2001)

Sexual harassment, Sexual violence and rape

A. Griffin was employed as a billing clerk in the City of Opa-Locka’s water department in 1993. Shortly after hiring Griffin, the city hired Earnie Neal as its City Manager. After taking office, Neal immediately began sexually harassing Griffin. He called her derogatory names, aggressively pursued her, and made inappropriate advances. He performed some of these acts in front of the Mayor and City Commissioner. Griffin continually resisted his advances and attempted to go on with her daily routines in fear of being fired. Eventually, Neal raped Griffin in her apartment after insisting he drive her home after an event put on by the city. Griffin waited several months to come forward about the rape, and the lawsuit ensued. Griffin sought damages against the City for 13 and sexual assault under Title VII; the Florida Civil Rights Act; 42 U.S.C. § 1983, and state tort law. She also alleged claims against Neal. At trial, a jury found that Neal sexually harassed Griffin, that the harassment was a custom or policy of the City, Neal raped Griffin under color of law, the City was deliberately indifferent in hiring Neal, and found against Neal on all tort claims. The subsequent damage award amounted to $2 million dollars. On appeal, the Eleventh Circuit agreed with the district court that Neal was acting under the color of law and that 13 was the on-going, accepted practice at the City and that the City Commissioner, Mayor, and other high ranking City officials knew of, ignored, and tolerated 13. But because the record did not establish that the jury below found the City had a custom or policy of allowing rape or that the rape incident was part of the custom or pattern of 13, the court found that the suit lacked all essential aspects of a § 1983 case against the City. As such, the verdict and judgment against the City for rape under § 1983 was vacated. All other charges against the City were affirmed. The $1.5 million dollar verdict against the City was reversed. The City was still found liable for 13 due to the hostile work environment it fostered, as well as deliberate indifference in the hiring of Neal.



Doe v. University of Illinois United States Court of Appeals for the Seventh Circuit (2000)

Sexual harassment, Sexual violence and rape

Jane Doe attended University High School in Urbana, Illinois. Although University High was a public school, it was affiliated with the University of Illinois, which had the responsibility for overseeing the school’s administration. From January 1993 through May 1994, while a student at University High, Jane was a victim of an ongoing campaign of verbal and physical 13 perpetrated by a group of male students at the school. Doe and her parents complained on numerous occasions to officials of both the high school and the University of Illinois. The school officials suspended a few of the students and transferred one out of Doe’s biology class, but did nothing else to prevent further instances. Some administrators even suggested that it was Doe’s fault. In 1995, Doe and her parents filed suit against the University of Illinois and other individual officials of University High and the University of Illinois, alleging a violation of, among other things, Title IX. The United States District Court for the Central District of Illinois dismissed Doe’s Title IX claim. On appeal, the Seventh Circuit remanded the case, holding that Jane Doe alleged a valid claim under Title IX, and that a Title IX recipient may be held liable for its failure to take prompt, appropriate action in response to student-on-student 13, as was the case here. The court reasoned that Title IX prohibits discriminatory government conduct on the basis of sex when it occurs in the context of State-run, federally funded educational programs and institutions. In particular, Title IX provides that no person in the U.S. shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. Prior to this case, it was well settled that 13 of a student in a federally funded educational program or activity, if it is perpetrated by a teacher or other employee of the funding recipient, can render the recipient liable for damages under Title IX. What was less clear was whether a school can be liable for failing to take prompt, appropriate action to remedy known 13 of one student by other students. Although inconsistent with three other circuits, the court ultimately held that a Title IX fund recipient may be held liable for its failure to take prompt, appropriate action in response to student-on-student 13 that takes place while students are involved in school activities or otherwise under the supervision of school employees, provided the recipient’s responsible officials actually knew that the harassment was taking place. The failure to promptly take appropriate steps in response to known 13 is itself intentional discrimination on the basis of sex. Since Jane Doe alleged such a failure, she properly alleged the sort of intentional discrimination against which Title IX protects. Doe’s case was then remanded to the district court for further proceedings consistent with the court’s opinion.



R. v. R. House of Lords (1992)

Sexual violence and rape

The defendant appeals his conviction for attempted rape on the grounds that a husband cannot rape his wife.   The House of Lords overturned the old common law rule that marriage automatically gave consent for sexual intercourse and held that a husband could be convicted of rape or attempted rape of his wife where she withdrew her consent to intercourse.



Regina v. Olugboja Court of Appeal (Criminal Division) (1982)

Sexual violence and rape

The defendant was convicted of rape and appealed on the grounds that there could only be an absence of consent if the victim's mind had been overborne by fear of death or duress.   The victim only began to struggle in earnest after penetration had occurred. The Court held that it is not necessary for the prosecution to prove that what appeared to be consent was actually submission induced by fear, force or fraud, but only that the jury should be instructed to focus on the victim's state of mind immediately before the act of sexual intercourse, in light of all the circumstances.  The conviction was affirmed.



Director of Public Prosecutions, Transvaal v. Minister for Justice and Constitutional Development and Others Constitutional Court [South Africa] (2009)

Sexual violence and rape, Statutory rape or defilement

Two men convicted of child rape challenged the constitutionality of the Sexual Offenses Act's amendments to the existing Criminal Procedure Act (CPA).  The amendments permit child victims and witnesses of sexual offenses to participate in modified court proceedings to facilitate testimony.  The lower court declared the amendments to the CPA constitutionally invalid.  The Constitutional Court reversed the ruling, holding  that (1) courts must inquire into the need to appoint  an intermediary in sexual offense trials whenever children  are expected to testify, regardless of whether the state raises the issue; (2) courts may exercise discretion whether to hold proceedings in camera; and (3) courts must give reasons for refusing to allow the use of intermediaries or other safeguards.



Disclosure of the Identity of Sex Offenders Convicted of Acquiring Sexual Favors from Minors in Exchange for Monetary Compensation Constitutional Court of South Korea (2003)

Sexual violence and rape

The petitioner, convicted of having sexual intercourse with a minor in exchange for payment, filed a lawsuit in the Seoul Administrative Court against the Commission on Youth Protection ("Commission"), requesting that the Commission revoke its decision to publicly disclose the petitioner's identity (name, age, birthdate, vocation and address, with summary of the crime).  The Administrative Court thereafter filed a request to the Constitutional Court for constitutional review of the provisions of the Juvenile Sex Protection Act ("the Act").   The Constitutional Court held that the provisions of the Act which required the Commission to disclose the personal information (name, age, occupation, address) of the sex offenders convicted of purchasing sex from minors, is constitutional.  The Court held that the Act intends to effect crime prevention, and to protect minors from sexual offenses, "thereby protecting their human rights and helping them to grow up to be sound members of society."



Egglestone v. The State (2008)

Sexual violence and rape

A high school teenage girl from an impoverished neighborhood consented to undergo job training as a receptionist at the appellant's escort agency. She alleged that during her training, the appellant held her against her will, and raped and sexually assaulted her. The appellant argued that his conviction should be overturned because the victim had consented.  The court dismissed the kidnapping charges, but upheld the rape and sexual assault charges. The court acknowledged that although the victim consented to parts of the training (i.e. wearing lingerie and taking up residence at the employer's compound), she did not consent to sexual intercourse with the appellant.  The court also noted that because of the appellant's age (twice that of the victim) and his promise of employment, he exercised a dominant position over the victim that made it difficult for her to refuse his advances.



R v. Mkhatshwa Supreme Court of Swaziland (2007)

Sexual violence and rape, Statutory rape or defilement

The appellant was convicted of raping his 12 year old daughter and sentenced to 22 years imprisonment. The Court upheld the sentence in light of the heinous nature of rape as a crime and the importance of society sending a message of severe condemnation of the crime.



K. v. Ministry of Safety and Security Constitutional Court of South Africa (2005)

Sexual violence and rape

K. sued to recover damages from the Minister of Safety and Security from being raped and assaulted by three uniformed and on-duty police sergeants.  The High Court held that the actions of the police officers fell out of the scope of their employment and that the Minister could not be held vicariously liable for their conduct.  The Court held that although the police officers' actions were obviously a clear deviation from their duty, there was a sufficiently close relationship between their employment and the wrongful conduct to hold the Minister liable. 



Rex v. Mfanzile Mkhwanazi High Court of Swaziland (2003)

Sexual violence and rape, Statutory rape or defilement

The accused was charged on two counts of rape of a 14 year old girl and of an 11 year old girl. The Court noted that in cases where the complainants are young and may be prone to flights of imagination leading to false accusations, the accusations should only be doubted in so far as the child's capacity for recollection and observation seem questionable.  In this case, the children were found to be trustworthy and the accused convicted of both counts. 



Masiya v. Director of Public Prosecutions (Pretoria) Constitutional Court of South Africa (2007)

Sexual violence and rape, Statutory rape or defilement

Mr. Masiya was charged with the rape of a nine-year-old girl; at the trial, evidence came out that he had penetrated the girl anally which required a conviction for indecent assault rather than rape.  The High Court, however, amended the common law definition of rape to include anal penetration as well and made the definition gender-neutral.  Mr. Masiya appealed. The Constitutional Court affirmed the High Court and held that the definition of rape must be extended to include nonconsensual anal penetration of females; the Court did say that for the court to extend the definition to include male rape would encroach onto the legislature's prerogative.



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.



W.N. v. The State (2008)

Sexual violence and rape, Statutory rape or defilement

The appellant, a minor, was sentenced to 10 years for the rape of a fellow classmate and appeals his sentence on the grounds that it was too excessive. The lower court sentenced the appellant-defendant to direct imprisonment rather than probation after hearing testimony about the appellant's unrepentant nature and lack of parental supervision. The Supreme Court of Appeal upheld the decision, finding that correctional supervision would have lacked the appropriate punitive impact demanded by the offense and deterrent effect.



Public Prosecutor v. Mr. Eakkapong Supreme Court of Thailand (2006)

Sexual violence and rape

The accused took the underage victim from her parents. The Court determined that the offense of sexual assault and the offense of wrongfully taking the accused for the purpose of sexual assault are separate offenses.



State v. Yali (1) National Court of Justice (2006)

Sexual violence and rape

A 41 year-old assailant raped his 17 year-old sister-in-law. The court established the sentencing guidelines for rape cases, holding that the starting sentence should be 10 years and the maximum sentence should be 15 years, unless aggravating circumstances allow a longer sentence, which includes life imprisonment. The defendant in this case received a 12 year sentence.



State. v. Jackson (1997)

Sexual violence and rape, Statutory rape or defilement

Jackson was charged with the attempted rape of S., a 17-year-old girl when he tied her wrists and attempted to have intercourse with her.   She fought him off and managed to escape the car and subsequently was examined by a doctor who found some evidence of unlubricated sexual contact, but no conclusive evidence of penetration. Jackson appealed on the grounds of the cautionary rule, encouraging that accusations of rape be handled cautiously to prevent false convictions. The Court held that the cautionary rule was based on outdated stereotypes against women and that in criminal cases, the burden is on the State to prove the guilt of the accused beyond a reasonable doubt, without an application of a general cautionary rule. The Court adopted the formula used in England whereby a judge could choose, on a case by case basis, to use caution only in cases where it was proven that the complainant was untrustworthy for some reason, e.g. had made previous false complaints or bore the defendant a grudge. 



B. v. Director of Public Prosecutions House of Lords (2000)

Sexual violence and rape, Statutory rape or defilement

The appellant, a 15 year old, was charged with inciting a girl under 14 years old to commit an act of gross indecency for asking a 13 year old girl to perform oral sex with him several times; the girl repeatedly refused.  The defense argued that the appellant honestly believed the girl was over 14 years old.  The prosecution submitted the offense was one of strict liability.   The Lords held that a reasonable belief, even if mistaken, as to the victim's age was a defense to the charge



State v. Yali (2) National Court of Justice (2005)

Sexual violence and rape

In a case of rape, the court examined whether or not the element of lack of consent was present in order to establish the elements of the rape charge. The court considered the following factors: the testimony of the parties, the use of force or threat of force, any evidence of consent, the circumstances and behavior of the parties surrounding the incident, time before the victim lodged a complaint, and the medical evidence.



State. v. J.M. (2002)

Sexual violence and rape, Statutory rape or defilement

The appellant, M., was tried before a regional magistrate for the rape of his six-year-old daughter during 1989. He was convicted and sentenced to ten years imprisonment, which he appealed. The Court held that, especially given the age of the complainant at the time, the question of a consensual sexual relationship is moot and further stipulated that the sexual history of the complainant is not relevant in a charge of rape, unless the Court specifically judges it to be so.



M.Z. (Rape, Stigma, UNHCR Advice) Kosovo UK Asylum and Immigration Tribunal (2002)

Sexual violence and rape

The applicant arrived in the UK in January 2000, claiming asylum on arrival, and appealed a decision to have her removed to Kosovo following the refusal of her claim to asylum after she was raped by a Serbian soldier.  The Tribunal acknowledged that adequate facilities for rape victims exist in Kosovo but in light of the stigma attached to rape victims and the applicant's very real fear that her husband would leave her on finding out about the rape, granted her request for asylum.



Oscar Eugenio Paniagua Batochi s/ Coacción Sexual en San Juan Neponuceno Sala de Acuerdos los Señores Ministros de la Excelentísima Corte Suprema de Justicia Sala Penal (2005)

Sexual violence and rape

The Supreme Court, Penal division, upheld the conviction of a defendant who raped his stepdaughter under threat of death or grievous injury. The Court held that the conviction was consistent with Article 54 of the National Constitution, Article 19 of the American Convention on Human Rights ("Pact of San Jose"), Article 24 of the International Pact of Civil and Political Rights, Article 19 of the Convention on the Rights of the Child, Article 3 of the Code of Children and Adolescents, and Article 1 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women.



State. v. Mahomotsa (2002)

Sexual violence and rape, Statutory rape or defilement

The accused was charged and convicted on two separate counts of rape for raping two 15-year-old girls more than once and sentenced to six years imprisonment on the first and ten years imprisonment on the second count.  On appeal, the defense was put forward that the sentence was too severe because of mitigating circumstances in that the victims did not suffer serious physical or psychological injuries and that both victims had previously been sexually active. The Court dismissed the appeal and held that the sentences were, in fact, too lenient, especially as the victims' previous sexual history was irrelevant and also that the extent of harm to the victims matters less because rape is a basic violation of dignity.  The sentence was increased to 8 years for the first count and 12 years for the second.



R. v. K House of Lords (2001)

Sexual violence and rape, Statutory rape or defilement

The appellant, K, was convicted of a single count of indecent assault against a girl aged 14; his defense was that the intercourse between the two was consensual and that she had told him she was 16.   The House of Lords allowed the appeal on the grounds that the appellant's honest belief that the complainant was over the age of 16 was a defense to the charge of indecent assault.



Exp. No.1348-2004-AA/TC Constitutional Tribunal (2004)

Sexual violence and rape

A male schoolteacher was accused of sexually abusing one of his female students, a third-grader, and was removed from his job pending the outcome of his trial. He filed a constitutional challenge to his removal, arguing that it violated his due process right to a presumption of innocence, as enumerated in Article 2 of the Peruvian Political Constitution. The court of first instance agreed with the teacher, ordering the school system to reinstate him. The school system argued that the Law of Teachers ("Ley de Profesorado") allows for termination of a teacher without a conviction. The Constitutional Tribunal held that while professionals normally cannot be removed from a job until proven guilty, the interest of protecting minor children outweighed the interest of the teacher in this case. The Court held that the teacher's removal was consistent with Article 34 of the Convention on the Rights of the Child, and Article 2 of the Interamerican Convention on the Prevention, Punishment and Eradication of Violence Against Women, as well as numerous other Peruvian laws.



SONKE Gender Justice Network v. Malema Equality Court for the District of Johannesburg (2009)

Gender discrimination, Sexual harassment, Sexual violence and rape

The respondent made comments at a political rally regarding the consent of the complainant in Jacob Zuma's rape trial. Specifically, he opined that a rape victim would leave early in the morning, but the complainant in this case had stayed for breakfast and requested money for a taxi. The plaintiff, a gender justice organization, sued him for hate speech, unfair discrimination, and harassment of women. The court found that the respondent's comments were based on prohibited grounds as outlined in South Africa's Equality Act, specifically sex and gender. The court also found the comments expressed by the respondent constituted "generalizations about women, rape, and consent which reinforce[d] rape myths." Moreover, the respondent's words suggested "that men need not obtain explicit [sexual] consent from women." The court found the respondent liable for hate speech and harassment.  For these reasons, the court concluded the respondent infringed the rights of women and ordered him to pay a fine and make a public apology.



R. v. Malone Court of Appeal (Criminal Division) (1998)

Sexual violence and rape

The appellant appealed his conviction on the count of rape for allegedly having sexual intercourse with the complainant without her consent when she was too drunk to put up any physical resistance.   The Court upheld the conviction and the sentence on the grounds that the complainant's evidence was sufficient for a jury to find that the appellant was reckless as to the question of the complainant's consent, even if he did not know at the time that she was not consenting.



Regina v. Iroi High Court of Solomon Islands (2004)

Sexual violence and rape

A victim was forced into a drain and sexually assaulted by assailant. The court relied on the Penal Code and case law for the law establishing that force is not a necessary element of rape, but it can be evidence of lack of consent. Rape is "unlawful sexual intercourse with a woman or girl, without her consent, or with consent if that consent is obtained by force or threats or intimidation of any kind." The defendant was found guilty.



Van Eeden v. Minister of Safety and Security (2002)

Sexual violence and rape

The appellant was assaulted, raped and robbed by Andre Gregory Mohamed, who had escaped from prison where he was facing 22 charges for indecent assault, rape and armed robbery. The appellant sued the State for damages, arguing that the police owed her a legal duty to take reasonable steps to prevent Mohamed from escaping and causing her harm and that they had negligently failed to comply with such duty.  The Constitutional Court applied its recent holding in Carmichele v. Minister of Safety and Security and held that the state is obliged both by the Constitution and by international law to protect women from violence and the police should be held liable for its negligence in not taking reasonable action to prevent Mohamed's escape, especially in light of the fact that they knew that Mohamed was a dangerous serial rapist who was likely to commit further offenses against women should he escape. The court affirmed the state's liability for any damages suffered by the applicant.



Carmichele v. Minister of Safety and Security Constitutional Court of South Africa (2001)

International law, Sexual violence and rape

The applicant was sexually assaulted by a man who was awaiting trial for the attempted rape of another woman. Despite the seriousness of the alleged crime and the fact that the man had a prior rape conviction, the police and prosecutor had recommended that the man be released pending trial. The applicant sued the Minister for damages, arguing that the police and prosecutors had negligently failed to comply with a legal duty they owed to her to take steps to prevent the man from causing her harm. The High Court dismissed the applicant's claim and the Supreme Court of Appeal affirmed, holding that the police and prosecution did not owe her a duty of protection. On appeal, the Constitutional Court set aside the orders of the lower courts and remanded the case to the High Court for trial. It held that the State is obligated by the Constitution and international law to protect the dignity and security of women and in the circumstances, the police recommendation for the assailant's release could amount to wrongful conduct giving rise to liability. The Court also held that prosecutors, who are under a duty to place before the court any information relevant to the refusal or grant of bail, may be held liable for negligently failing to fulfill that duty.



Van Zijl v. Hoogenhout (2004)

Sexual violence and rape, Statutory rape or defilement

The appellant suffered years of sexual abuse by her uncle, the respondent, during her childhood.   She sued him for damages at the age of 48 and the respondent claimed that her suit should have been brought within one year of her attaining her majority. The Court held that the victim of sexual abuse as a child who only in adulthood acquired an appreciation of the responsibility of the abuser for the abuse may sue the abuser within three years of acquiring that appreciation.



A. and B. v. Eastern Health Board High Court of Ireland (1997)

Gender-based violence in general, Sexual violence and rape, Statutory rape or defilement

C. was a 13 year-old girl who became pregnant as a result of rape allegedly by a family friend and was now in State care.  The health board sought a court order to allow her to travel outside the State to obtain an abortion because abortion was illegal in Ireland except where the pregnancy formed a real and substantial risk to the woman's life. The Court granted the health board's order permitting C. to travel outside the State to obtain an abortion. The Court based its decision on the fact that the girl's risk of suicide presented a real and substantial risk to her life, entitling her to an abortion within Ireland as well.  



Ochieng v. Republic High Court of Kenya of Kisii (2008)

Sexual violence and rape, Statutory rape or defilement

The appellant was charged and convicted of defilement and indecent assault of a six-year-old girl.  He was sentenced to 10 years imprisonment on the first count and five years imprisonment for the second.  He appealed on the grounds of insufficient evidence to sustain a conviction and an excessive sentence. The Court affirmed the convictions because the six-year-old complainant described the incident in detail, the medical evidence was corroborative, and the appellant's abrupt and unexplained disappearance after the incident was also properly considered corroborative evidence.  The Court also held that the sentences were not excessive. 



Rapto Inexistente Supreme Court of Mexico

Sexual violence and rape

The Court made several clarifications related to the crime of abduction. First, the court held that because the crime of abduction required the intent to segregate the victim from her customary mode of life and insert her in another, the crime of abduction does not take place when a man takes a woman temporarily for the purpose of sexual abuse. The Court reasoned that the temporary removal of the woman by the man did not constitute its own crime, but instead was an element of the separate crime of rape. The Court also held that the simple act of changing locations with a woman did not constitute abduction, especially when there was no evidence of restraint against her will.

 

La Corte hizo acalariones con respecto a el delito de secuestro. Primero, el tribunal sostuvo que debido a que el delito de secuestro requería la intención de separar a la víctima de su modo de vida habitual e insertarla en otro, el delito de secuestro no se ejecuta cuando un hombre toma temporalmente a una mujer con el propósito de tener relaciones de abuso sexual. El Tribunal razonó que la remoción temporal de la mujer por parte del hombre no constituía su propio delito, sino que era un elemento del delito separado de la violación. El Tribunal también sostuvo que el simple hecho de cambiar de lugar con una mujer no constituía un secuestro, especialmente cuando no había evidencia de restricción contra su voluntad.



Attorney General v. X. and Others Supreme Court of Ireland (1992)

Gender-based violence in general, Sexual violence and rape

X was a 14 year-old girl who became pregnant and suicidal after being raped.  Her parents tried to take her to England in order to obtain a first-trimester abortion that was illegal in Ireland but the Attorney General obtained an interim injunction from the High Court restraining the girl and her parents from leaving the country for a period of nine months or from arranging an abortion for her. The family appealed.  The Supreme Court held that the Constitution's prohibition on abortion did not prevent a suicidal 14 year-old, pregnant as the result of rape, from obtaining an abortion in Ireland, because the suicide was a substantial risk to the life of the pregnant girl. The Court also struck down the injunction prohibiting the girl from leaving the country.



Wafula v. Republic High Court of Kenya at Bungoma (2005)

Sexual violence and rape, Statutory rape or defilement

The appellant was charged and convicted of raping the complainant, a girl of 15 years, with his friend.  The appellant appealed on four grounds: (1) that the complainant was so young that the court needed to have first satisfied itself that the complainant possessed sufficient intelligence to justify the reception of her evidence, (2) that the court convicted him solely based on the testimony of one witness, (3) that the sentence was manifestly harsh and unfair, and (4) that the prosecution in this case failed to adhere to the requirement that a charge of rape must contain the words "unlawful" and "without consent". The Court dismissed the first three grounds, stating that 15 years did not make the complainant too young to give uncorroborated evidence, as would otherwise be required in sexual offenses.  However, the Court quashed the conviction because the rape charge did not contain the words "unlawful" and "without consent," which are necessary to any charge of rape.



Rapto y Estupro Son Delitos Independientes Supreme Court of Mexico

Sexual violence and rape

The Court affirmed that abduction and statutory rape were different crimes. The Court reasoned that statutory rape could take place without an abduction, and abduction could take place without resulting in statutory rape. The Court explained that when the victim is taken away by a male for the purpose of sexual abuse or marriage, statutory rape occurs at the moment of sexual activity, while abduction occurs at the moment she becomes segregated from her customary mode of life.

 

La Corte afirmó que el secuestro y la violación eran delitos diferentes. El Tribunal razonó que la violación estatutaria podría tener lugar sin un secuestro, y el secuestro podría tener lugar sin que se produjera una violación estatutaria. El Tribunal explicó que cuando un hombre se lleva a la víctima con fines de abuso sexual o matrimonio, se produce una violación legal en el momento de la actividad sexual, mientras que la abducción ocurre en el momento en que la victima se separa de su modo de vida habitual.

 



People v. Jem Court of Criminal Appeals (2000)

Sexual violence and rape

The defendant was convicted of four counts of sexual assault against a 15 year-old girl. He appealed on the grounds that the judge did not instruct the jury as to the danger of convicting the accused in the absence of corroboration of the victim's testimony. The Court rejected the appeal and held that the Criminal Law (Rape) Amendment leaves it to the judge's discretion whether to issue a warning about corroboration or not. 



Mwaura v. Republic Court of Appeal of Kenya at Nakuru (2007)

Sexual violence and rape, Statutory rape or defilement

The accused was charged with defilement of a girl under the age of 14 years, and was convicted and sentenced to 14 years imprisonment.  He appealed for leniency on the grounds that he was remorseful, suffering from acute pneumonia and only 17 years of age at the time of the incident. The Court upheld the sentence finding that the sentence of 10 years for defilement of a girl and 5 years for indecent assault is not excessive and no circumstances existed to justify mitigating the sentence.



Achoki v. Republic Court of Appeal of Kenya at Kisumu (2011)

Sexual violence and rape

The appellant was charged with three criminal violations in connection with his and his coconspirators' robbery of the complainant and corresponding violence: (1) aggravated robbery with violence, (2) rape of the complainant's niece during the robbery, and (3) possession of suspected stolen property.  The trial court found the appellant guilty on all counts, but the first count was reduced to simple robbery.  The trial court sentenced him to ten years imprisonment for robbery, ten years imprisonment for rape, and 12 months for handling suspected stole goods, to be served concurrently. Without citing a specific reason for reducing the aggravated robbery with violence charge, the trial magistrate noted that the complainant testified that she was not injured in the robbery.  The appellant first appealed to the High Court, which found the appeal had no merit and that the appellant was guilty of aggravated robbery with violence.  The High Court vacated the conviction and 10-year sentence for simple robbery and imposed the death sentence for robbery with violence.  In this appeal to the Court of Appeal (Kisumu), the appellant raised four concerns: (1) whether he was improperly identified as the robber and rapist because the attack took place at night when it was dark, (2) whether the first appellate court properly re-evaluated the evidence, (3) whether the High Court's substitution of simple robbery with aggravated robbery with violence was proper, and (4) whether the State was required to file a cross-appeal to entitle the High Court to substitute the simple robbery conviction with aggravated robbery with violence.  The High Court documents show that the appellant was warned more than once and that at the earliest opportunity the State Counsel would seek to increase the sentence to capital robbery, but the appellant decided to proceed with the appeal.  Quoting its precedent, the lower courts' records, and the Criminal Procedure Code Sec. 354, the Court of Appeal rejected all aspects of the appeal and upheld the death sentence for robbery with violence.



Rex v. Rankhebe High Court of Lesotho (1987)

Gender-based violence in general, International law, Sexual violence and rape, Statutory rape or defilement

The accused was convicted of raping an 11 year-old girl. In considering sentencing, the High Court upheld the conviction and, citing South African and English law, noted the presumption that girls under the age of 12 are considered too young to give their consent to intercourse, but in cases involving girls between the ages of 12 and 16 the prosecution must demonstrate that there was non-consent for the accused to be convicted of rape. If a girl of 12 to 16 years old does consent to sexual intercourse with a man, then the man should be found guilty of defilement or statutory rape under the Women and Girls Protection Proclamation No. 14 of 1949. [Note: The Convention on the Rights of the Child defines a child/minor as any person under 18 years of age in the absence of domestic laws. Generally, minors do not have the capacity to give consent.]



S. v. Katamba Supreme Court of Namibia (1999)

Sexual violence and rape, Statutory rape or defilement

The State appeals the decision in the High Court to acquit the accused of all charges of rape and abduction of an 11 year old by taking her away from her guardian with the intent to have sexual intercourse with her.  The Court reversed the acquittal and found the accused guilty on the charges of rape and abduction and affirmed an earlier judgment that the cautionary rule discriminates against women in violation of the Constitution and should only be used at a judge's discretion in extreme cases where there is some valid reason to question a complainant's veracity



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.) 



Rex v. Tauhali and Mashea High Court of Lesotho (1999)

Sexual violence and rape

Both of the accused were convicted of raping a 25-year-old woman when each took turns helping the other to rape the complainant. Two women who were with her tried to drive off the accused, but they threw rocks at the women and chased them off. The Court noted that the punishment for rape carries a maximum sentence of life imprisonment and a minimum sentence of five years imprisonment when there are no mitigating or aggravating factors. Aggravating factors include (1) violence in addition to the violence of the rape, (2) use of a weapon to intimidate or physically harm, and (3) repeated rape. The Court upheld the conviction and overturned the previous sentence of five years each to eight years, finding that gang rape calls for a higher sentence. In its discussion of the elements of rape, the Court noted that if one perpetrator held a woman down while another raped her, then the first would also be guilty of rape. In addition, in contradiction of international standards, the Court stated that women lack the necessary anatomy to commit rape and therefore can only be guilty of rape by assisting a male perpetrator. 



State of Andhra Pradesh v. Gangula Satya Murthy Supreme Court of India (1996)

Sexual violence and rape

The Supreme Court of India found that the High Court had insufficient reason to overturn a rape conviction, holding that rape cases should be tried with the "utmost sensitivity" and the court must look at the "totality of the background" of the case.



Suleiman v. Republic High Court of Kenya at Machakos (2004)

Sexual violence and rape, Statutory rape or defilement

The appellant was charged with rape and defilement and alternatively with indecent assault for having carnal knowledge of the complainants under the guise of treatment as an herbalist/witch doctor.  He was convicted of indecent assault and sentenced to four years imprisonment and hard labor. He appealed the conviction on grounds of insufficient evidence and undue harshness of the sentence. The Court held that a rape conviction requires penetration and lack of consent on the part of the victim; defilement only requires penetration but not lack of consent.  Evidence of penetration can be inferred from sexually transmitted infections; medical examinations are not required to sustain a conviction.  Appellant's defense that he was framed was dismissed as it was improbable that the complainants would subject themselves to rape to avoid paying him.



Kamwendo v. Republic High Court of Malawi (2004)

Sexual violence and rape

The accused was convicted of rape and sentenced to a custodial term of imprisonment of 18 months.  He appeals on the grounds that the lower court erred in convicting him in contradiction of the Medical Report that found it was a fabricated rape. The Court dismissed the appeal finding that the complainant's story was corroborated by the evidence and did not therefore require the Medical Report's corroboration as well and also that the Medical Report is not to be taken as conclusive evidence of penetration.  The evidence also showed that the intercourse the appellant had with the complainant was non-consensual because the consent was fraudulently obtained.



State of Himachal Pradesh v. Raghubir Singh Supreme Court of India (1993)

Sexual violence and rape, Statutory rape or defilement

While traveling to her house, an 8/9 year-old girl was separated from her father and sister while in her family's fields.  The defendant kidnapped and raped her under a nearby mango tree.  The Supreme Court reversed a High Court's acquittal and found the defendant guilty of rape.  The Supreme Court stated that the conviction could be upheld solely on the victim's testimony, despite her age, if it is believable and there is no evidence to discredit its trustworthiness.



Ali v. Republic Court of Appeal of Kenya at Mombasa (2006)

Sexual violence and rape

The appellant was charged with rape and alternatively with indecent assault. He was acquitted of rape but convicted of indecent assault and sentenced to 10 years imprisonment with hard labor. The complainant is a local brewer of an illicit beverage called "changaa," which she was arrested for on November 12, 2002. She offered a bribe to the arresting officers, but could not pay the price they demanded (5,000 KSH). At the police station, the officers accepted the 1,000 KSH bribe she had offered earlier and released her to get another 4,000 KSH to exchange for the five liters of changaa she was arrested for possessing. The police officers sent her home with the appellant, who threatened her with a knife and raped her. The trial court found the complainant credible and very honest, but acquitted the accused on the rape charge because sexual offenses require corroboration. In this case, the magistrate judge stated that the complainant's testimony needed to be corroborated with medical evidence or by the police officers who released the complainant with the appellant. However, this was an error of law, as the superior court and Court of Appeal both stated in their decisions on the accused's appeals. The Court upheld the conviction on the ground that while sexual offenses usually require corroboration of the complainant's testimony, in cases where the judge is satisfied of the complainant's veracity or where the complainant's testimony can be corroborated with circumstantial evidence, a conviction can be made. The Court of Appeal added that, in its view, the appellant's acquittal on the charge of rape was incorrect.



Republic v. Chiledzelere High Court of Malawi (2007)

Gender-based violence in general, Sexual violence and rape

The accused was convicted of attempted rape and sentenced to five years imprisonment with hard labor for accosting the complainant and assaulting her with the intent to have intercourse with her before he was prevented from doing so by the arrival of the witness. The appeal was dismissed because the accused's actions in fondling the complainant and tearing her underwear provided clear evidence of his intent.  The sentence was upheld because of the aggravating factors that the accused was told that the complainant was a married woman and the traumatic effect of the tearing of the woman's underwear.  [Note: International legal standards do not discriminate on the basis of marital status in determining the gravity of a rape.]



State of Maharashtra v. Kewalchand Jain Supreme Court of India (1990)

Sexual violence and rape

A police inspector contrived to have the fiance of a young girl locked up, and after doing so, went to her hotel room and raped her. The Supreme Court refuted the notion that testimony of a victim of sexual violence requires corroboration and found that courts should not be reluctant to accept the evidence of a rape victim, if under the totality of the circumstances appearing on the record of the case the victim does not have a strong motive to lie.  A rape victim's evidence is to receive the same weight that would be given to any victim of physical violence.  The Supreme Court noted that corroboration of the testimony of a woman who is a victim of sexual violence is not required except in extremely rare circumstances.



Mulundi v. Republic Court of Appeal of Kenya at Machakos (2005)

Gender violence in conflict, Sexual violence and rape, Statutory rape or defilement

The appellant was convicted of defilement of a girl under the age of 14 years and sentenced to 14 years imprisonment with ten strokes of the cane.  The appellant appealed his conviction and the sentence as being excessive for a first offense. The Court dismissed the appeal of the conviction as the complainant identified the appellant and medical evidence is no longer necessary to convict an accused if the evidence was sufficiently cogent.  The "defilement" conviction was substituted with rape and the appellant was sentenced to ten years imprisonment.  



Republic v. Hwangwa High Court of Malawi (2008)

Sexual violence and rape, Statutory rape or defilement

The appellant was convicted of defiling a 12-year-old girl and appealed the conviction on the grounds that the intercourse was consensual and that he believed the complainant was older than 12 years at the time. The Court dismissed the appeal and noted that the evidence was sufficient to prove a lack of consent but also that, at 12 years old, the complainant was too young to give consent. The Court also noted aggravating factors, including that the appellant had intercourse with the complainant on multiple occasions and the appellant had threatened the complainant against telling her parents. 



State of Orissa v. Naiko Supreme Court of India (1992)

Sexual violence and rape

A woman was kidnapped in broad daylight, taken to a forest, then gang-raped. The defense argued that the woman's injuries were not severe enough for her to have resisted multiple rapists. The Court held that a woman need not present evidence of resistance to support a charge of rape.



Murunga v. Republic Court of Appeal of Kenya at Nakuru (2008)

Sexual violence and rape

The appellant was charged and convicted of three counts of robbery with violence and one count of rape, with the charge of rape stating that the appellant "jointly with another not before the court" had carnal knowledge of the complainant. The trial court sentenced him to death for robbery with violence, which is a capital offense.  He appealed on the grounds that the rape charge was defective and that the police violated his constitutional rights because they held him for 24 days without bringing him to court.  The High Court dismissed his first appeal. However, hearing his second appeal, the Court of Appeal held that multiple men cannot jointly commit the offense of rape against one woman, so the offenders cannot be charged jointly.  The Court quashed the appellant's conviction for rape because each offender should have been charged on a separate individual count of rape.  The Court also quashed the robbery with violence conviction and sentence because the Constitution (sec. 72(3)) requires police to bring detainees accused of a capital offense to court within 14 days, but in this case police improperly held the appellant for 24 days without cause before bringing him to court.  The Court dismissed the state counsel's arguments that the length of the appellant's detention was a moot issue because he failed to raise it in earlier proceedings.  The Court stated that it is the responsibility of the prosecuting authorities to justify any delay and a judge's duty to raise issues of unlawful detention if the defendant does not.



Republic v. Makaluni High Court of Malawi (2002)

Sexual violence and rape

The accused was convicted of rape and sentenced to four years' imprisonment.  The sentence was appealed by the judge who reviewed the lower court's decision because the reviewing judge found the sentence inadequate. The Court upheld the sentence, stating that it was not so excessively inadequate as to merit interference and taking note of the factors used in determining sentences for rape offenders: violence used to commit the rape, a repeated rape, a carefully planned rape, whether the defendant has previous convictions for rape or other serious offenses, whether the victim was subjected to any further sexual indignities, whether the victim was very young or very old, and the physical and mental effects upon the victim. The factors to warrant a harsher sentence were not judged to be present in this case, and the sentencing judge's decision was within his discretion.



State of Punjab v. Ramdev Singh Supreme Court of India (2003)

Gender-based violence in general, Sexual violence and rape

A case of sexual assault where the accused was acquitted. The State appealed and the court determined that lack of physical evidence of rape and previous sexual activity on the part of the victim cannot be grounds for acquittal and the court restored the conviction. Also, the testimony need not be corroborated with additional evidence as long as there i