Appellant-mother challenged the order of the District Court, awarding child custody to appellee-father and giving her the same visitation rights that appellee had when appellant had custody. The Supreme Court of Wyoming affirmed the order because domestic violence suffered by appellant at the hands of a boyfriend in front of the children was a change in circumstances that warranted a change in custody to protect the parties’ children. Wyo. Stat. Ann. § 20-2-113(a) provides that “the court shall consider evidence of spousal abuse or child abuse as being contrary to the best interest of the child.” Although the abuse of mother was not technically “spousal” abuse because they were not married, the Supreme Court of Wyoming agreed with the District Court that the statute applied to non-marital domestic relationships. Therefore, domestic violence experienced by the mother warranted a change in custody to protect the children from potential abuse and was in their best interest.
Women and Justice: Keywords
Domestic Case Law
Roberts v. Dudley Washington Supreme Court (2000)
Appellant-employer filed an appeal from a decision of the Court of Appeals, which reversed a ruling entered in the Superior Court, granting appellant’s motion for partial summary judgment and dismissing appellee-employee’s wrongful discharge claim. The Supreme Court of Washington affirmed the appellate court’s decision, holding that appellee properly stated a cause of action for the tort of wrongful discharge based on the clearly articulated public policy against sex discrimination in employment. When appellee was on unpaid maternity leave, appellant discharged appellee, claiming that the position was no longer available due to a business slowdown. Appellant re-advertized the position one year later, but when appellee applied she was refused reemployment. Appellee claims the reason given for her discharge (i.e., economic slowdown) was pretextual, whereas the real reason for her discharge was that she was pregnant. Appellee filed a claim for common law wrongful discharge in violation of the public policy against sex discrimination. Although an indefinite employment contract is generally terminable at will, an exception to the at-will rule exists in the form of a common law cause of action in tort for wrongful discharge of an employee where the discharge contravenes a clear mandate of public policy. In this case, public policy against gender discrimination is grounded in the constitution, statute, and prior court decisions. Therefore, the Supreme Court of Washington affirmed the judgment of the Court of Appeals, as appellee properly stated a cause of action for the tort of wrongful discharge based on the clearly articulated public policy against sex discrimination in employment.
Hat Six Homes, Inc. v. State Wyoming Supreme Court (2000)
Strickland v. Prime Care of Dothan United States District Court, M.D. Alabama, Southern Division (2000)
State v. Swanson Connecticut Superior Court (2000)
Defendant argued that it was unconstitutional for a court to issue a protective order that resulted in barring a person from his home as a result of an arrest for domestic violence. Under Gen. Stat. § 46b-38c, a court is authorized to issue a protective order to include “provisions necessary to protect the victim from threats, harassment, injury or intimidation by the defendant including but not limited to, an order enjoining the defendant from (1) imposing any restraint upon the person or liberty of the victim; (2) threatening, harassing, assaulting, molesting or sexually assaulting the victim; or (3) entering the family dwelling or the dwelling of the victim.” Here, the court had issued a protective order for the defendant’s wife. The defendant argued that the statute violated his substantive due process rights because he was precluded access to his home and property and became subject to enhanced criminal penalties and liabilities. The court found that even though the defendant had a due process interest, the statute was intended to protect victims and not, rather, punish defendants. The court noted that the state had a legitimate interest in providing this protection. Thus, the court found the statute to be constitutional and a court may bar a defendant from his home in a domestic violence situation.
Chambers v. Trettco, Inc. Michigan Supreme Court (2000)
Mitchem v. Counts Supreme Court of Virginia (2000)
Mitchem filed a motion for judgment against her former employer, Counts, alleging wrongful discharge in violation of the common law following her refusal to have a sexual relationship with him, as well as several instances of 13. She argued that her discharge violated Virginia’s policy “that all persons . . . are entitled to pursue and maintain employment free of discrimination based upon gender.” The trial court held that the amendments to the Virginia Human Rights Act “eliminated the VHRA as a source of public policy to support a common law cause of action for wrongful termination. The trial court also held that Code §§ 18.2-57, -344 and -345 do not articulate public policies that support a common law action for wrongful termination. The court dismissed Mitchem’s action with prejudice, and Mitchem appealed from this judgment. On appeal, Mitchem withdrew parts of her previous claim, arguing that she was discharged from employment due, not to gender but rather, to the fact that she would not consent to her employer’s demands that she violate sections of the Virginia code prohibiting fornication, lewd and lascivious cohabitation, and was discharged for failing to “consent to commission of a battery upon her person.” The court addressed whether Code §2.1-725(D) “bars a common law action for wrongful termination based on public policies not reflected in the VHRA, when the conduct alleged in the motion for judgment also violates a public policy reflected in the VHRA.” That section states, “Causes of action based upon the public policies reflected in this chapter shall be exclusively limited to those actions, procedures and remedies, if any, afforded by applicable federal or state civil rights statutes or local ordinances.” The court noted that the statute only abrogated common law causes of action for wrongful discharge based on public policies in the VHRA; common law causes of action for wrongful discharge based on public policies not in the VHRA are not prohibited by the section. The Court upheld the trial court’s dismissal of plaintiff’s wrongful discharge claim based on the public policy of “refusing to consent to commission of battery upon her person” – since if she had consented, there would have been no battery. However, it reversed the trial court’s holding as to wrongful termination based on public policy in Code §§ 18.2-344 and -345, which prohibit fornication, and lewd and lascivious behavior respectively.
U.S. v. Morrison Supreme Court of the United States (2000)
The Court examined whether the Commerce Clause or the Fourteenth Amendment gave Congress the authority to enact portions of the Violence Against Women Act ("VAWA") of 1994. In a 5-4 decision, the Court held that Congress lacked the authority to enact portions of the Act that allowed victims of gender-based violence to sue their attackers in federal court rather than state court. The Court held that Congress could not draw on the Commerce Clause for authority because violence against women was not an activity that substantially affected interstate commerce. The Court also held that the Act did not redress harm caused by state action and therefore did not fall under Congress's 14th amendment power. In his dissent, Justice Souter argued there was sufficient evidence to establish the effect of violence against women on interstate commerce.
Doe v. University of Illinois United States Court of Appeals for the Seventh Circuit (2000)
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.
Manuel Enrique Peralta Cabrera c/ Eulogio Chino Poma Sala Penal (2000)
Defendant was charged with homicide and rape of a woman, in violation of Articles 251 and 308 of the Penal Code. Defendant admitted to having raped the victim, but claimed that he did not kill her, claiming he left her alone after he finished raping her. The trial court found there was sufficient evidence to convict the defendant of both crimes. The appellate and supreme courts affirmed the ruling.
El imputado fue acusado de homicidio y violación de una mujer, en violación de los Artículos 251 y 308 del Código Penal. El acusado admitió haber violado a la víctima, pero afirmó que no la mató, alegando que la dejó sola después de que terminó de violarla. El tribunal de primera instancia determinó que había pruebas suficientes para condenar al acusado de ambos delitos. Los tribunales de apelación y supremo confirmaron la decisión.
Miguel Flores López c/ Cresencio Vedia Quispe Sala Penal (2000)
Charges were brought against defendant for the aggravated rape of a 20-year old handicapped woman, suffering from muscular atrophy. According to the victim, who was the defendant's sister-in-law, the defendant entered her room, threw her on the bed, raped her and left. The defendant allegedly raped the victim a number of more times, resulting in pregnancy. The defendant then allegedly attempted unsuccessfully to induce victim's abortion, at which time the victim reported the incidents to her father. The trial court ruled in favor of the defendant, holding the victim's testimony to be too inconsistent and contradictory to secure a conviction. The appellate and Supreme Court, disagreed, holding that there was sufficient evidence for a conviction.
Se presentaron cargos contra el acusado por la violación agravada de una mujer discapacitada de 20 años de edad que sufría de atrofia muscular. Según la víctima, quien era la cuñada del imputado, el imputado entró a su habitación, la tiró sobre la cama, la violó y se fue. El acusado supuestamente violó a la víctima varias veces más, lo que resultó en un embarazo. Luego, la acusada supuestamente intentó sin éxito inducir el aborto de la víctima, momento en el que la víctima informó de los incidentes a su padre. El tribunal de primera instancia decidió a favor del acusado y consideró que el testimonio de la víctima era demasiado inconsistente y contradictorio para asegurar una condena. La apelación y la Corte Suprema no estuvieron de acuerdo, sosteniendo que había pruebas suficientes para una condena.
Facundo Tito Pocomani c/ Félix Mamani Tite Sala Penal (2000)
Defendant appealed a conviction for raping his 15-year old niece as many as three times, rape which resulted in her pregnancy. Defendant argued that the evidence against him was circumstantial and insufficient, and alleged that the victim had engaged in sexual relations with another man, from which the pregnancy resulted. The Court held that there was sufficient evidence not only of the fact that the victim was a minor at the time of the rape, but that force and intimidation had been used by the defendant. The Court affirmed the defendant's conviction.
El acusado apeló una condena por violar a su sobrina de 15 años hasta tres veces, violaciones que resultaron en su embarazo. El imputado argumentó que las pruebas en su contra eran circunstanciales e insuficientes, y alegó que la víctima había mantenido relaciones sexuales con otro hombre, de las cuales resultó el embarazo. El Tribunal sostuvo que existían pruebas suficientes no solo del hecho de que la víctima era menor de edad en el momento de la violación, sino que el acusado había utilizado la fuerza y la intimidación. El Tribunal confirmó la condena del acusado.
Hilda Ana Merlo Vásquez c/ Hernán Ramos Méndez Sala Penal (2000)
Alleged victim claimed that defendant pushed her down the stairs and raped her while she was unconscious. The trial court ruled in favor of the defendant, finding there was insufficient evidence to convict him of committing grave bodily injury, harassment and rape. The Appellate Court affirmed acquittals for grave bodily injury and harassment, but reversed the acquittal for rape, finding that there was sufficient medical evidence for a conviction. Medical testimony indicated that the victim had recently engaged in sexual relations, but that after the victim had fallen down the stairs, she would have been in so much pain that consensual sexual relations would have been highly unlikely. The Supreme Court affirmed the appellate court's ruling.
La presunta víctima afirmó que el acusado la empujó escaleras abajo y la violó mientras estaba inconsciente. El tribunal de primera instancia decidió a favor del acusado, al considerar que no había pruebas suficientes para condenarlo por loa legados crímenes de cometer lesiones corporales graves, acoso y violación. El Tribunal de Apelaciones confirmó las absoluciones por lesiones corporales graves y acoso, pero revocó la absolución por violación y encontró que había pruebas médicas suficientes para una condena. El testimonio médico indicó que la víctima había tenido relaciones sexuales recientemente, pero que después de que la víctima se hubiera caído por las escaleras, habría sentido tanto dolor que las relaciones sexuales consensuales hubieran sido muy poco probables. La Corte Suprema ratificó la decisión de la corte de apelaciones.
Julia Arhuata de Flores c/ Mario Flores Flores Sala Penal (2000)
Defendant was charged with repeatedly raping his two underage daughters. The victims alleged that they did not report the incidents immediately because their father threatened them against doing so. Witnesses testified that the defendant was regularly drunk and abusive. The trial court found him guilty of rape. The appellate and supreme courts affirmed the conviction.
El acusado fue acusado de violar repetidamente a sus dos hijas menores de edad. Las víctimas alegaron que no denunciaron los hechos de inmediato porque su padre las amenazó que no lo hicieran. Los testigos declararon que el acusado se emborrachaba y maltrataba con regularidad. El tribunal de primera instancia lo declaró culpable de violación. Los tribunales de apelación y supremo afirmaron la condena.
Lucio Rojas Lizarazu c/ Víctor Gandarillas Galarza Sala Penal (2000)
Defendant was convicted of the rape of a minor age 14 to 17, in violation of Article 309 of the Penal Code. The defendant admitted to having engaged in sexual relations with the victim, but claimed the relations were consensual, and apologized for his actions. Taking into account the defendant's apology and previous record of good conduct, defendant received a prison sentence of only 4 years. Both parties appealed, but the appellate court affirmed the trial court ruling, finding that the victim had failed to produce evidence of force which would carry a heavier sentence. The Supreme Court affirmed, holding that the defendant had seduced the minor, but that it had not been shown that he used force.
El acusado fue condenado por la violación de una menor de 14 a 17 años, en violación del Artículo 309 del Código Penal. El acusado admitió haber tenido relaciones sexuales con la víctima, pero afirmó que las relaciones fueron consensuadas y se disculpó por sus acciones. Teniendo en cuenta la disculpa del acusado y el historial previo de buena conducta, el acusado recibió una sentencia de prisión de solo 4 años. Ambas partes apelaron, pero el tribunal de apelaciones confirmó el fallo del tribunal de primera instancia, encontrando que la víctima no había presentado evidencia suficientemente fuerte para conllevara a una sentencia más severa. La Corte Suprema afirmó, sosteniendo que el imputado había seducido al menor, pero que no se había demostrado que hubiera usado la fuerza.
International Case Law
Malawi African Association and Others v. Mauritania African Commission on Human and Peoples' Rights (2000)
Between 1986 and 1992 violence escalated between the northern Mauritanian population and the southern black ethnic groups. The Northern Mauritanian population's military raided the south, detained hundreds of individuals, imposed curfews, and inflicted various forms of violence and intimidation. The complaint notes that men from the southern black ethnic groups were subjected to forms of torture and humiliation (such as the "jaguar" where a "victim's wrists are tied to his feet . . . [,] then [he] is suspended from a bar and kept upside down, sometimes over a fire, and is beaten on the soles of his feet") while the women were "simply raped." The Commission determined that the mass rape and other forms of violence violated the African Charter, in particular Article 6. Article 6 states that "every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law." The Commission requested that the respondent state compensate the victims of the violations and carry out an assessment of the "deep-rooted causes" of the "degrading practices" (it did not specify whether it considered these practices to include rape).