Women and Justice: Keywords

Domestic Case Law

司法院釋字第791號解釋摘要 (J.Y. Interpretation 791) Taiwan Constitutional Court (2020)

Gender discrimination, Sexual violence and rape

Article 239 of the Taiwan Criminal Code stipulates, "Anyone who has a spouse and commits adultery with another person shall be punished by imprisonment for a term not exceeding one year. The same applies to those who commit adultery." This Interpretation overrules J.Y. Interpretation No. 554 (2002), which affirmed the constitutionality of the Criminal Code’s restriction on individual sexual freedom on the grounds that such freedom was subject to restriction for the purpose of protecting the marriage and family. In this Interpretation, the Court expanded the scope of sexual autonomy under Article 22 of the Constitution and held that the infringement of the rights to sexual autonomy and of individual privacy by the criminalization of adultery fail the proportionality test in the Constitution’s Article 23. The Court found Article 239 unconstitutional because it restricted an individual's freedom to decide whether and with whom to engage in sexual activity. However, the state should generally limit the punishments for illegal acts to those detrimental to social order or public welfare. Therefore, while adultery is undoubtedly detrimental to the obligation of fidelity in a marriage and the feelings and expectations of the other party, it is not clearly detrimental to the social order or public welfare. Further, adultery mainly occurs in private. The process of discovery, prosecution, and trial inevitably interferes with personal privacy, driving the state's public power straight into the very private space of the people. Therefore, the Court found that the regulation causes more significant damage than the interest it intends to protect. This case is important not only in its recognition of a constitutionally-protected right to sexual autonomy and its emphasis on individual privacy but also because the Criminal Code provisions on adultery reportedly had been applied disproportionately against women and also to pressure women not to pursue sexual assault charges, which could lead to the woman becoming charged with adultery.

刑法第239條規定：「有配偶而與人通姦者，處1年以下有期徒刑。其相姦者亦同。」本解釋推翻司法院第554號解釋(2002)，關於保障婚姻和家庭而限制個人性自主權利之合憲性解釋。憲法法庭認憲法第22條所保障性自主權之限制，與憲法第23條比例原則不符，應自本解釋公布之日起失其效力；於此範圍內，本院釋字第554號解釋應予變更。因而宣告此一規定違憲。此規定立法目的係限制個人得自由決定是否及與何人發生性行為之性行為自由。然基於刑法謙抑性原則，國家原則上應以侵害公益或大眾福祉之違法行為為限。因此，通姦行為固已損及婚姻關係中之忠誠義務及對方之感情與對婚姻之期待，但尚不致明顯損及公益或大眾福祉。再者，通姦行為多發生於個人之私密空間內，其發現、追訴、審判過程必然侵擾個人生活私密領域，致國家公權力長驅直入人民極私密之領域。因此，系爭規定所致之損害大於其目的所欲維護之利益，而有失均衡。本案宣告違憲之重要性不僅在於對於憲法上所保障的性自主權及隱私權的再次確認，更是因為刑法通姦罪適用上對於女性比例上多於男性被告，及適用上經常迫使女性放棄追溯之實證結果，而不符合憲法所保障之意旨。

P.J.K. v. O.K.K. High Court of Kenya at Kabarnet (2019)

Divorce and dissolution of marriage

The petitioner asked for dissolution of marriage with the respondent. In June 2011, the petitioner went on a foreign peacekeeping mission as a member of the Kenya Air Force. When she returned at the end of the month, she found that the respondent had cohabited with, married, and impregnated another woman. The respondent gave the petitioner an ultimatum between a polygamous marriage or divorce despite the their monogamous civil marriage. The petitioner stated that she had lived separately from the respondent for six years because he tried to force her to enter into a polygamous marriage when she intended to engage into only a single marriage. The court held the respondent guilty of cruelty against the petitioner and found that the marriage had, on account of the respondent’s behavior and the long separation of over six years, irretrievably broken down. The court granted the dissolution of marriage.

Public Ministry and Civil Party Kakonya Minamu v. Bahige Kanywabahize & Kahamire Nzigire Court of Greater Instance of Bukavu (1989)

Divorce and dissolution of marriage

Tthe “Civil Party” brought a case against his “ex-wife” and Bahige Kanywabahize “Bahige”, or together with the ex-wife, the “Accused”, for abandoning the conjugal home and adultery. The Civil Party and his ex-wife cohabitated as a married couple until she decided to leave their home, obtained a divorce from the Tribunal for the City of Bukavu, and decided to get married to Bahige. The Civil Party claims his ex-wife abandoned him with the intent to marry Bahige. The Civil Party seeks customary reimbursement of the dowry he paid to his ex-wife (6,000 zaires, a goat, two cases of beer, a case of Fanta, a can of a local drink called Kasiksi and a hoe) and damages of 150,000 zaires from the Accused under the Congolese Family Code. The Tribunal determined the Civil Party was not entitled to the customary reimbursement of dowry since his spousal rights ceased upon divorce; adultery and abandonment of the conjugal home occurring subsequent to a duly obtained divorce are not subject to sanction. (Available on pages 144-46 on linked site.)

Sir Domtinet Bolngar v. Madam Nalem Louise Supreme Court of Chad (2005)

Divorce and dissolution of marriage, Property and inheritance rights

Sir Domtinet Bolngar brought a divorce claim to the civil tribunal of N’jamena on the basis of the prolonged rupture of their joint life and adultery committed by his wife. The Court pronounced a shared fault divorce and ordered an equal split of the couple’s joint goods. The Court of Appeal of N’jamena partially reversed the court’s decision and held that the divorce was exclusively caused by Sir Domtinet Bolngar‘s fault since the adultery of Madam Nalem Louise was never proven. The Court also awarded 3 million in damages to Madam Nalem Louise. Sir Domtinet Bolngar appealed the decision claiming he caught his wife red-handed at 5 am and that judges fail to assess the prejudice that he suffered. However the judges of the Supreme Court held that a simple narration of the facts did not constitute sufficient proof to charge Madam Nalem Louise with adultery, and therefore charged Sir Domtinet Bolngar with the court fees.

Monsieur G.A. v. Dame Z. Supreme Court of Benin (1973)

Divorce and dissolution of marriage, Gender-based violence in general

Monsieur G.A. requested a divorce for his wife’s “desertion of the marital home.” His wife pleaded that her husband and husband’s son mistreated her and her children because they believed she had committed adultery, making it impossible for her to stay in the home. She requested damages for raising their common children alone. The first court rejected her claim for not stating a claim, and awarded her husband a divorce for her desertion of the marital home. But, the court also granted her 141,000 Fr as alimony. She appealed the case. The Court of Appeal of Cotonou (Chamber of Local Law) held that the adultery was not proven (based on rumor) and acknowledged the violence she suffered at the hands of her husband’s son. She was hence awarded 90,000 Fr in damages. Monsieur G.A. took the case to the Supreme Court. He claimed that his wife disobeyed him in refusing to follow him to a new place after he was transferred for work. He also withdrew his request for divorce and asked for his wife to return home with him. The Court relied on evidence that the husband presented himself: a letter where his mother-in-law asked him to stop his son from beating up her daughter and grandchildren. The Court held that in such a case custom rules allow the wife to leave the marital home. Moreover, the husband did not prove that he changed the conditions that drove her from their house. Consequently, the Supreme Court rejected the plaintiff’s claim, ordered him to bear costs, and finalized the divorce.

S.Y. contre T.M. Tribunal de grande instance Ouagadougou (1999)

Divorce and dissolution of marriage

A Burkinabe woman (T.M.) sought legal separation from her husband (S.Y.) on the grounds of adultery. Legal separation was granted on the grounds that S.Y. had committed adultery (it had been agreed that the marriage would be monogamous). The judge concluded that the sole responsibility for the separation lay with S.Y. Custody of the children was given to T.M. The principle of legal separation is rarely considered by the Burkinabe courts. The judgement provides that legal separation can be requested on the same grounds as divorce, namely mutual consent or the fault of either spouse. The effect of legal separation is to end ‘cohabitation duties.’ However, certain marital duties such as loyalty and support continue. Legal separation allows a woman to formally separate from her husband while leaving the possibility of reconciliation (information provided in academic commentary).

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

Domestic and intimate partner violence

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

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.

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

Divorce and dissolution of marriage, Domestic and intimate partner violence

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

司法院大法官會議第554號解釋 (J.Y. Interpretation No.554) Constitutional Court of Taiwan (2002)

Gender-based violence in general

The Taiwan Constitutional Court overturned this decision in J.Y. 791. This case allowed the legislature to enact a law restricting freedom of sexual behavior within the system of marriage (such as by making adultery punishable under criminal law), but only if the restrictions are not overly severe in violation of the principle of proportionality embodies in Article 23 of the Constitution. In particular, the offense must be indictable only upon complaint, and no complaint may be instituted if the spouse has connived against or forgiven the offending party for the offense.

立法機構可以制定法律來限制婚姻制度內的性行為自由（如規定通姦行為應受刑法處罰），但前提是這種限制不能過於嚴厲，以至於違反憲法第23條揭示的比例原則。 尤其，該犯罪行為必須於提出告訴時是可以起訴的，且如果配偶縱容或原諒行為人的犯罪行為，則不得再行提出告訴。

Nkabane v. Nkabane High Court of Lesotho (1987)

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

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

Theko v. Theko High Court of Lesotho (1982)

Divorce and dissolution of marriage

The plaintiff-wife sought the dissolution of her marriage to the defendant on the grounds of his previous marriage under the Sotho custom. The Court declared the marriage to be null and void on the grounds that the plaintiff agreed to the marriage through fraud, believing that the defendant was unmarried at the time and would not have agreed to the marriage if she had known the truth.

Sentence of the Constitutional Court 936-95 Constitutional Court [Guatemala] (1996)

Gender discrimination

Court held that a criminal law that punished female adultery more severely than male adultery was unconstitutional, in violation of the idea of equality among persons, as well as equality between married people.

El tribunal sostuvo que una ley penal la cual castigaba el adulterio femenino más severamente que el adulterio masculino era inconstitucional y violaba la idea de igualdad entre las personas, así como la igualdad entre las personas casadas.

International Case Law

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

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

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