Women and Justice: Keywords

The court emphasized that in order to prove a domestic violence cause of action, the plaintiff must prove that she has been subject to a behavior pattern that fits within the domestic violence cycle. Such behavior pattern consists of three stages: (1) the growing tension stage; (2) the acute aggression stage; and (3) the kindness or affection stage. The third stage is followed by the aggressor’s regret and then by the reconciliation, which in turns leads to another assault and then to the repetition of the cycle. This third stage is crucial in order to recognize whether there is a systematic situation of violence and to prove the elements of this cause of action.

La Corte enfatizó que para presentar con éxito una causa de acción legal por violencia doméstica, la demandante debe probar que ha estado sujeta a un patrón de comportamiento que se ajusta al ciclo de violencia doméstica. Dicho patrón de comportamiento consta de tres etapas: (1) la etapa de tensión creciente; (2) la etapa de agresión aguda; y (3) la etapa de bondad o afecto. A la tercera etapa le sigue el arrepentimiento del agresor y luego la reconciliación, que a su vez conduce a otro asalto y luego a la repetición del ciclo. Esta tercera etapa es crucial para reconocer si existe una situación sistemática de violencia y para probar todos los elementos que constituyen esta causa de acción.

The claimant brought a claim of damages for unlawful termination of employment because she alleged she was terminated before her two-year contract had run despite a positive one-year evaluation. She claimed her contract was not renewed because she made reports of sexual harassment by her supervisor to the police. However, that report was made four months after the claimant was informed of the decision not to renew her contract. The court also determined that her contract was a one-year contract. As a result, her claim was dismissed. However, the court “condemn[ed] in the strongest possible terms the exploitation and degradation of women by predatory male behavior in the workplace” and found that the respondent “has an obligation to not sweep these grave allegations under the rug.” The court urged an investigation into the alleged conduct by claimant’s supervisor and for the respondent to “duly penalize such behavior if substantiated, in keeping with Belize’s national and international obligations to protect the rights of women and children from sexual exploitation under treaties such as the Convention on the Elimination of All Forms of Violence and Discrimination Against Women.”

The claimant accompanied one of respondents, a co-worker “J.”, on a work-related trip. Throughout the business trip, J. made sexual innuendos towards the claimant and when his advances failed, he physically beat her. He booked a single hotel room, while the claimant believed she would have her own room. As a result, the claimant was forced to sleep on the floor and returned to Kenya two days later, while J. continued to the conference. Upon the claimant’s return, she received multiple threatening emails from J. and her employment was terminated as of May 24, 2010 for alleged “misconduct” for not travelling to the conference. Her salary for May was unpaid. Although there were numerous legal issues decided in this case, including jurisdiction, the key issue was whether the claimant was subjected to gender-based discrimination and thus unlawfully terminated, and what, if any, entitlement is due to her. The Industrial Court determined that J.’s conduct toward the claimant, no matter where it had occurred, clearly amounted to gender-based violence against an employee, and that his conduct “had the effect of nullifying or impairing the equality of opportunity or treatment in employment, based on her sex.” The Industrial Court awarded P total compensation of Kshs 3,240,000, which included general damages for sexual harassment, and unfair and wrongful termination of Kshs 3,000,000. This case is important to demonstrate Kenyan courts afford protection against sexual violence in multiple ways, including equal opportunity and human rights legislation, labor legislation, civil remedies and criminal law. In addition to Kenyan employment law, the Industrial Court also relied on the 1993 UN Declaration on the Elimination of Violence against Women, the International Labour Organization, as well as other forms of jurisprudence to support eradicating violence and sexual discrimination against women in the workplace. The decision noted that while the Constitution of Kenya was not yet in effect and thus not directly applicable when the case was tried, Articles 1, 3 and 5 of the 1948 UN Universal Declaration of Human Rights were included in the Kenyan Constitution and thus were applicable at the time the case occurred.

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. The Mexican Supreme Court has previously determined the social benefits to which a former public safety employee is entitled at the time of her termination. The social benefits and salary must be paid upon termination and must account for both the period before and after an unjustified termination for pregnancy. The Mexican Constitution (Article 123, section B, item XI, subparagraphs (a) & (c)) recognizes the rights of pregnant women. These include social benefits during pregnancy. Consequently, the impairment that results from the termination must be paid and includes: (a) medical bills and payments made to private medical institutions due to the lack of social security benefits and (b) the payment of the full salary from the last month before birth as well as the two months after it, unless there is a court ruling in relation to unpaid wages. This provision of the Mexican Constitution, as well as other provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Inter-American Convention on the Prevention, Punishment And Eradication Of Violence Against Women “Convention of Belém do Pará” compels the courts to rule with a gender perspective in order to ensure justice for this historically vulnerable social group. (Amparo Directo Administrativo 121/2016: http://sise.cjf.gob.mx/SVP/word1.aspx?arch=1320/13200000186095880003003....)

Esta tesis aislada es un ejemplo relevante de la jurisprudencia de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son relevantes a todos los casos resueltos por dicho tribunal. Además, dichos criterios pueden ser persuasivos en casos similares que surjan en otros tribunales federales. La Corte Suprema de México ha determinado previamente los beneficios sociales a los que tiene derecho un ex-empleado de seguridad pública en el momento de su despido. Los beneficios sociales y el salario deben pagarse a la terminación y deben tener en cuenta tanto el período antes como el de después de una terminación injustificada por embarazo. La Constitución mexicana (Artículo 123, sección B, artículo XI, subpárrafos (a) y (c)) reconoce los derechos de las mujeres embarazadas. Estos incluyen beneficios sociales durante el embarazo. En consecuencia, el deterioro que resulta de la terminación debe pagarse e incluye: (a) facturas médicas y pagos realizados a instituciones médicas privadas debido a la falta de beneficios de seguridad social y (b) el pago del salario completo del último mes anterior al nacimiento, así como los dos meses posteriores al mismo, a menos que exista un fallo judicial en relación con los salarios impagos. Esta disposición de la Constitución mexicana, así como otras disposiciones de la Convención sobre la Eliminación de Todas las Formas de Discriminación contra la Mujer (CEDAW) y la Convención Interamericana para Prevenir, Sancionar y Erradicar la Violencia contra la Mujer "Convención de Belém do Pará" obliga a los tribunales a gobernar con una perspectiva de género para garantizar la justicia para este grupo social históricamente vulnerable.

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.”

“HUMAN TRAFFICKING. IF A VICTIM OF THIS CRIME, IN ONE OF THE FIRST STATEMENTS, MAKES AN ALLEGATION AGAINST THE DEFENDANT, INCLUDING A NARRATIVE OF THE FACTS, AND SUCH STATEMENT IS CORROBORATED BY FURTHER EVIDENCE, SUCH EVIDENCE SHOULD BE REGARDED AS ACCURATE EVEN IF THE VICTIM SUBSEQUENTLY RETRACTS THE ALLEGATIONS.”

This isolated thesis is a relevant example of gender perspective case law, as the criteria issued by the collegiate tribunal is binding on such tribunal. In addition, such criteria may also be persuasive in similar cases arising in other federal courts. In this case, the federal court determined that it is a well-known fact that Mexican society discriminates against sex workers. In light of the stigma that sex workers carry, they are subject to continuous pressure from different societal actors, including their nuclear family, to refrain from providing statements or to withdraw initial statements regarding crimes committed against them. The collegiate tribunal held that when a sex-worker case comes before a court, the court must consider a gender perspective in its ruling. As a result, courts must use all available mechanisms in order to obtain irrefutable proof from the victim. The tribunal based its ruling on Article 2(c) and (d) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW): “(c) to establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; (d) to refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation.”

“LA TRATA DE PERSONAS. SI UNA VÍCTIMA DE ESTE CRIMEN, EN UNA DE LAS PRIMERAS DECLARACIONES, HACE UNA ALLEGACIÓN CONTRA EL DEFENDIENTE, INCLUYENDO UNA NARRATIVA DE LOS HECHOS, Y DICHA DECLARACIÓN ES SUSTENTADA CON EVIDENCIA DICHA EVIDENCIA SE MANTENDRA COMO VALIDA INCLUSO SI LA VICTIMA RECANTA SU TESTIMONIO."

Esta tesis aislada es un ejemplo relevante de la jurisprudencia de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son vinculantes para dicho tribunal. Además, dichos criterios también pueden ser persuasivos en casos similares que surjan en otros tribunales federales. En este caso, el tribunal federal determinó que es un hecho bien conocido que la sociedad mexicana discrimina a las trabajadoras en base a su sexo. En vista del estigma que las trabajadoras sexuales ejercen, están sujetos a la presión continua de diferentes actores sociales, incluida su familia nuclear, para que se abstengan de emitir declaraciones o de retirar declaraciones iniciales sobre los delitos cometidos contra ellas. El tribunal colegiado sostuvo que cuando un caso de trabajadora sexual se presenta ante un tribunal, el tribunal debe considerar una perspectiva de género en su decisión. Como resultado, los tribunales deben usar todos los mecanismos disponibles para obtener pruebas irrefutables de la víctima. El tribunal basó su decisión en el Artículo 2 (c) y (d) de la Convención sobre la Eliminación de Todas las Formas de Discriminación contra la Mujer (CEDAW): “(c) establecer la protección legal de los derechos de las mujeres en igualdad de condiciones con los hombres y asegurar a través de los tribunales nacionales competentes y otras instituciones públicas la protección efectiva de las mujeres contra cualquier acto de discriminación; (d) abstenerse de participar en cualquier acto o práctica de discriminación contra las mujeres y garantizar que las autoridades e instituciones públicas actúen de conformidad con esta obligación."

Lerionka Ole Ntutu was survived by multiple wives, sons, and daughters. After his sons filed an application asking the High Court to issue to them the letters of administration to administer their father’s estate, their sisters and stepsisters filed an objection and claimed their inheritance. The sons contested the objection, arguing that the distribution of their father’s estate was governed by Masai customary law, which did not recognize the right of daughters to claim an inheritance from their father’s estate. The judge in the first instance found that, because Ntutu was Masai and lived in an area excluded from the Succession Act, his estate should be divided accorded to Masai custom. The judge thus held that none of the daughters could inherit from their father’s estate. In ruling on the daughters’ appeal, the Court of Appeal invoked international treaties and covenants, including CEDAW, in finding that the daughters of the deceased person in that case were entitled to a share of his estate. On appeal before the High Court, the definitive question before Lady Justice K. Rawal was whether the Court should apply the Law of Succession Act or the customary law of the Masai community. The High Court was satisfied that, even if the Law of Succession Act allowed Ole Ntutu’s community to apply customary law in the distribution of his estate, any tenet of such customary law that would abrogate the right of daughters to inherit the estate of a father would be repugnant to justice and morality and could not be applied. The High Court thus ruled that Ole Ntutu’s daughters were entitled to inherit their father’s land.

Edith Mmusi and her sisters, all over 65 years of age, brought a case against their nephew, Molefi Ramantele, who claimed to have rightfully inherited the home that was occupied by Mmusi and her sisters and tried to evict them. The sisters contested the eviction, arguing that they had paid for the home’s upkeep and expansion costs. The applicable customary law, that of the Ngwaketse tribe, dictated that the family home of a deceased individual was to be reserved to the last born male child. The rest of the property was to be divided among the children, regardless of gender. The Lower Customary Court found in favor of the nephew; the Higher Customary Court held in 2008 that the home belonged to all of the children; and the Customary Court of Appeal, to which both parties appealed, held that the home should be inherited by the nephew. The High Court noted that the issue of law being considered was whether the Ngwaketse customary law, to the extent that it denied the applicants the right to inherit the family residence intestate, "solely on the basis of their sex, violate[d] their constitutional right to equality under section 3(a) of the Constitution. In 2012, the High Court awarded the home to the sisters, ruling that the local customary laws prioritizing male inheritance were not in keeping with the promise of gender equality enshrined in the Constitution of Botswana and in international conventions such as CEDAW, thereby recognizing for the first time the right of women in Botswana to inherit property. In 2013, the Court of Appeal upheld the decision of the High Court, observing that “Constitutional values of equality before the law, and the increased leveling of the power structures with more and more women heading households and participating with men as equals in the public sphere and increasingly in the private sphere, demonstrate that there is no rational and justifiable basis for sticking to the narrow norms of days gone by when such norms go against current value systems.” This case was a landmark case that effectively ended the patriarchal inheritance system in Botswana. The High Court decision is available here.

The petitioner filed a claim to the Turkish Constitutional Court stating that trial and appellate courts’ refusal to allow her use her pre-marriage surname after marriage violated her right to protection of her private life and discriminated against her based on her gender. Article 187 of the Turkish Civil Code requires married women to use their husband’s surname after marriage, which created complications in the petitioner’s professional life since she was known by her pre-marriage name. On appeal, the Constitutional Court applied both Turkish law and international law to find that a person’s right to a name, including their surname, is an inalienable right. The Court looked to precedent from the European Court of Human Rights in finding that protection of a person’s name including person’s surname is covered by Article 8 (respect for private and family life). The Court also found that the protections afforded by Article 17 of the Turkish Constitution overlapped with the protections in Article 8 of the European Convention on Human Rights. Consequently, the Court concluded that, since the right to one’s name is protected in the Turkish Constitution and within the scope of international agreements to which Turkey is a party—including the European Convention of Human Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, and the International Covenant on Civil and Political Rights—men and women are entitled to equal rights to use their pre-marriage last name.

The Plaintiff interviewed with the education officers of the Education Office of the Hulu Langat District to become an untrained teacher. During the interview, the Plaintiff was asked questions pertaining to her general knowledge, personal details, problem solving skills and residential address. She was not asked about her pregnancy status. The Plaintiff was accepted for the position and presented herself at an instructional meeting as instructed. At the meeting, she was told to report for duty immediately. Subsequently, an education officer asked whether anyone at the meeting was pregnant. Once the Plaintiff admitted that she was pregnant, her placement memorandum was withdrawn. The High Court held that it was not relevant whether or not there was a binding contract, as the the Defendants’ decision interfered with the Plaintiff’s right to be employed, which is contrary to Article 8(2) of the Federal Constitution, which provides that there shall be no discrimination on the ground of gender in the appointment of any office or employment under a public authority. This Article of the Federal Constitution was adopted to comply with Malaysia’s obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The High Court declared that using pregnancy as a factor in employment is a form of gender discrimination under the Malaysian Constitution, applying CEDAW in interpreting Article 8(2) of the Constitution, because of the basic biological fact that only a woman has capacity to become pregnant.

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

Una minoría parlamentaria solicitó a la Corte Constitucional que declare inconstitucional un decreto del Ministerio de Salud que determinaba la disponibilidad de métodos de planificación familiar y permitía la distribución de anticonceptivos de emergencia por los centros nacionales de salud. El tribunal constitucional señaló que el “derecho a la vida” es fundamental en la Constitución chilena. Rechazó los argumentos científicos de que la anticoncepción de emergencia no afecta la vida de un embrión concebido pero no nacido. En una opinión disidente, un juez señaló que los derechos que protegen los derechos reproductivos de la mujer estaban consagrados en la CEDAW, en conflicto con la decisión del Tribunal Constitucional. La decisión de la Corte Constitucional no impidió toda la distribución de anticonceptivos de emergencia en Chile, pero prohibió su distribución en clínicas y hospitales que forman parte del sistema nacional de salud. La decisión del tribunal constitucional fue efectivamente cancelada en enero de 2010 por la Ley No. 20.418, promulgada por la presidenta Bachelet, que permitía la distribución de píldoras anticonceptivas de emergencia en centros de salud públicos y privados, incluso a personas menores de 14 años sin el consentimiento de los padres. La ley también requiere que las escuelas secundarias promulguen programas de educación sexual.

The sons of Lerionka Ole Ntutu filed to prevent Ntutu’s married daughters from receiving their inheritance of his estate Section 82(4) (b) of the Kenyan Constitution. Under Kikuyu customary law, only unmarried daughters were allowed an inheritance. The presiding judge held that this claim was illegitimate, stating that the law cannot deprive a person of their rights only on the basis of sex and marital status. The judge followed the precedent set by the ruling in Rono v. Rono, Kenya Court of Appeal, 2005, in circumscribing customary law to prevent violations of justice, morality, and other written law. This case marked another important step in upholding women’s rights and human rights law over harmful customary practices towards women.

A petition to replace the existing limitations on dowry size in the Interim Constitution of Nepal (2007) with a prohibition of all dowries based on the mandate for gender equality in Article 11 of the Constitution and international conventions such as CEDAW was quashed on grounds that there was not sufficient proof that allowing limited dowries was discriminatory. However, in recognition of the social harm caused by large dowries including impoverishment, competitiveness, and negative views of women, the Court directed that current laws limiting dowries be enforced more effectively and that sensitization on the harmful aspects of dowries be implemented. This ruling demarcates the limits of petitioning for gender equality against traditional and constitutional law while still showing the willingness of the Court to promote women’s rights through means outside the Constitution.

A petition to require consent from the woman’s husband in a law in the Constitution of the Kingdom of Nepal allowing women to have an abortion on fetuses of less than 12 weeks cited CEDAW conventions mandating equality between men and women on matters relating to family planning. The Court dismissed the petition emphasizing that CEDAW is intended to promote and protect women’s rights and to consider the wording of equality in such absolute terms would, in fact, be contrary to this original intent. With this ruling, the Supreme Court of Nepal shows remarkable dedication to protecting and empowering women as the primary goal in interpreting legal conventions on women’s rights.

The issue here was whether A should get a residence permit to Finland because of family ties. He had entered into marriage with his cousin B in Syria in 2004 who was 15 years old at the time and had lived in Finland since 1996. The Directorate of Immigration (now Finnish Immigration Service) denied A's application for residence permit. According to Section 114(1) of the Finnish Aliens Act (301/2004, as amended) (the "Aliens Act"), a residence permit is issued on the basis of family ties to a family member of a refugee or an alien who has been issued with a residence permit on the basis of the need for subsidiary protection or humanitarian protection, or who has enjoyed temporary protection if: (i) the sponsor lives in Finland or has been issued with a residence permit for the purpose of moving to Finland; and (ii) the applicant is not considered a danger to public order, security or health. According to Section 4 of the Finnish Marriage Act (234/1929, as amended) (the "Marriage Act"), (i) a person under 18 years of age shall not marry, (ii) The Ministry of Justice may, however, for special reasons grant a person under 18 years of age a dispensation to marry. Before the matter is decided, the custodian of the applicant shall be reserved an opportunity to be heard if his or her whereabouts can be determined with reasonable measures. The Directorate of Immigration considered that the marriage was against Finnish law and not valid. Hence A could not be considered a family member in accordance with the Aliens Act. The Administrative Court reversed the Directorate of Immigration's decision. It held that the marriage was made under Syrian law and the fact that B was under age according to the Finnish law did not matter in this case. Also taking into account the religion, culture and traditions of B and her family, the Court found that issuing permit of residence would not be against the interest of the child. On appeal from the decision of the Administrative Court, the Supreme Administrative Court concluded that the fact that some countries allow underage marriages does not mean that such marriages can be the basis for a residence permit in the same way as are marriages between consenting adults. Although Section 115(1) of the Marriage Act generally recognizes the validity of marriages concluded in other countries, the law contains an exception where the application of a foreign provision would have an outcome contrary to Finnish public policy (ordre public (Section 139 (2) of the Marriage Act). Taking into account Article 1(1) of the Convention on Consent to Marriage, Minimum Age For Marriage, and Registration of Marriages; Article 23(3) of the International Covenant on Civil and Political Rights (ICCPR); and Article 16(1)(6) and (2) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Court held that it was not possible to use culture to justify marrying B to a person whom she is claimed to have met when she was a small child and taking her into a country where she does not have any family ties. Marrying a child and applying for permit of residence on the basis of this marriage can be seen as intention to evade the provision on entry into or residence in the country (Section 36(2) of the Aliens Act). On these grounds, the Supreme Administrative Court held that the decision of the Administrative Court would be revised and the decision of the Directorate of Immigration would be enforced.

The petitioner-wife sought dissolution of her marriage on the grounds of abuse by the respondent-husband, who repeatedly physically abused her and threatened her with physical force when she tried to stop him from drinking. She also asked for maintenance for the couple's daughter. The Court granted the dissolution of marriage and noted that the types of mistreatment the petitioner suffered at the hands of her husband constituted gender-based violence as defined by the Declaration of the Elimination of Violence Against Women because it was based on the unequal power relations between the husband and wife and caused the petitioner serious psychological suffering.

Karen Tayag Vertido, an employee of the Davao City Chamber of Commerce and Industry in the Philippines, was raped by a former President of the Chamber in 1996. The case remained at the trial court level for eight years before the Regional Court of Davao City acquitted the defendant in 2005. The Court scrutinized Vertido’s testimony with “extreme caution,” and challenged her credibility on the ground that “an accusation of rape can be made with facility.” The Court specifically declined to apply Filipino Supreme Court precedent cases establishing that failure to escape does not negate the existence of rape, stating that Vertido had ample opportunities to escape her attacker. In her complaint to the Committee on the Elimination of Discrimination Against Women, Vertido argued that the Court’s actions subjected her to revictimization and violated articles 2(c), 2(f), and 5(a) of the Convention on the Elimination of All Forms of Discrimination Against Women and CEDAW General Recommendation 19, which obliges a State to modify or abolish existing laws, regulations, and practices that constitute discrimination against women. The Committee held that the State Court erred in relying on gender-based myths and stereotypes about rape and rape victims in Vertido’s case, and stressed that there should be no assumption in law or practice that a woman gives her consent where she had not physically resisted unwanted sexual conduct. The Committee recommended that the State provide Vertido with appropriate compensation, review the definition of rape under existing law to ensure that lack of consent is a essential element of the crime of rape, remove any requirement that sexual violence be committed by violence or force, and require appropriate training for judges, lawyers, and law enforcement officers in understanding crimes of rape and other sexual offenses.

K, an Aboriginal woman from the Rae-Edzo community in the Northwest Territories (N.W.T.) of Canada, bought a house from the N.W.T. Housing Corporation, with S her common law partner, as co-owners of the property. S subjected K to domestic violence, including economic abuse, over the subsequent three-year period. Following a request from S, a then board member of the Housing Authority, and without K’s knowledge, the N.W.T. Housing Corporation on instruction from the Rae-Edzo Housing Authority removed K’s name from the Assignment of Lease, making S the sole owner of the property. S then evicted her from the property while she sought protection in a shelter. K filed proceedings against S in the N.W.T. Supreme Court seeking compensation for domestic violence and loss of use of her home, fraudulently obtained by S, aided and abetted by the N.W.T. Government. S subsequently died, following which K’s lawyer initiated proceedings against his estate and the N.W.T. Housing Corporation. They offered K a monetary settlement but K refused as her key concern was regaining the property. The Supreme Court dismissed both proceedings for “want of prosecution.” Costs were imposed against K and subsequent appeals were unsuccessful. K filed a third action related to her interest in and right to the leasehold title and possession of the property. The property had then been sold and the Court dismissed the matter. K brought a communication to the CmEDAW alleging violations by Canada of Articles 1, 2(d), 2(e), 14(2)(h), 15(1)-15(4), 16(1)(h) of CEDAW by allowing its agents – the N.W.T. Housing Corporation and the Rae-Edzo Housing Authority – to discriminate against her on the grounds of sex, marital status and cultural heritage and failing to ensure that its agents afford women and men equal rights in respect of ownership and enjoyment of property. The Committee found that Canada was responsible for K losing ownership of the property, in violation of Articles 2(d), 2(e), and 16(1)(h) of CEDAW, read with Article 1. However, it found that Canada had not violated Articles 14(2)(h) or 15(4), as there was no evidence K had been discriminated against as a rural woman or prevented from residing in another property in the community. The Committee recommended that Canada compensate K and provide her with appropriate housing. It also recommended recruiting and training more Aboriginal women to provide legal aid and reviewing the legal aid system to ensure Aboriginal women who are victims of domestic violence have effective access to justice.

R.K.B.’s employer dismissed her but not the male colleague whom she was accused of having an affair with, and threatened to “spread rumours about her relationships with other men” to pressure her to sign a document, attesting that she had been paid all her benefits upon termination. R.K.B. filed a claim to the Kocaeli 3rd Labour Court against her employer alleging unfair termination based on gender stereotypes. The Court decided that the termination of her contract was not justified but not dismissing the male colleague was not discriminatory. R.K.B. appealed to the Court of Cassation, which dismissed the appeal without reference to gender discrimination. The CEDAW held that the Turkish court violated Articles 5(a), 11(1a) and 11(1d) of CEDAW by basing their decisions on gender stereotypes, tolerating allegations of extramarital relationships by male employees but not by female employees. It recommended adequate compensation to be paid to R.K.B, issued the State to take measures to implement laws on gender equality in the work environment; and to provide training to judges, lawyers and law enforcement personnel on women’s rights and gender-based stereotypes. The decision is of particular importance in a country where almost 80% of women are unemployed (Richinick) and where women’s participation in the labor force has been declining. It also stresses that mere adoption of laws is not enough to protect rights – implementation is the key. The decision also emphasizes the role of the courts (and not the executive branch) as ultimately responsible for rights’ violation.

While the victim was sleeping, her partner Sebastian Javier Parra Godoy attacked her by striking her in the head. She suffered near-fatal head injuries as a result of the blow. On February 5, 2013, the criminal court in the province of Angol found Mr. Godoy guilty of the crime of attempted intimate femicide. In their ruling, the judges explicitly referenced the fact that the case presented a case of gender-based violence. It concluded that that Parra Godoy had acted as a result of traditional views considering women as subordinate perpetuating stereotypes of violence and coercion. The court stated that in such cases, international standards of human rights such as the Inter-American Convention to Prevent, Punish and Eradication of Violence Against Women and the general recommendations of the Committee on the Elimination of Discrimination Against Women (CEDAW) should apply. The prosecutor Raul Espinoza explained that the main challenge of the case was the absence of direct evidence because the only potential witnesses were the victim, who was sleeping at the time of the attack and who suffered neurological damage which affected her memory, and the victim’s autistic son, who was mentally handicapped. To bring the case, he relied instead on strong circumstantial evidence.

Mientras la víctima dormía, su compañero Sebastián Javier Parra Godoy la agredió golpeándola en la cabeza. Sufrió heridas en la cabeza casi fatales como resultado del golpe. El 5 de febrero de 2013, el juzgado penal de la provincia de Angol declaró culpable al señor Godoy del delito de intento de femicidio íntimo. En su decisión, los jueces hicieron referencia explícita al hecho de que el caso presentaba un caso de violencia de género. Concluyó que Parra Godoy había actuado como resultado de opiniones tradicionales que consideraban a las mujeres como subordinadas y perpetuaban estereotipos de violencia y coacción. El tribunal señaló que en tales casos deben aplicarse estándares internacionales de derechos humanos como la Convención Interamericana para Prevenir, Sancionar y Erradicar la Violencia contra la Mujer y las recomendaciones generales del Comité para la Eliminación de la Discriminación contra la Mujer (CEDAW). El fiscal Raúl Espinoza explicó que el principal desafío del caso fue la ausencia de evidencia directa porque los únicos testigos potenciales eran la víctima, quien se encontraba durmiendo al momento del ataque y quien sufrió daño neurológico que afectó su memoria, y el que el hijo de la víctima tenía autismo, una discapacidad mental. Para presentar el caso con éxito, se basó en cambio en pruebas circunstanciales sólidas.

Ms. V.K., a Bulgarian citizen residing in Poland, sought to obtain a divorce from her husband after years of physical, emotional and economic abuse. Following a series of incidents in which her husband physically abused and intimidated both mother and children, Ms. V.K. took her children and left Poland for Bulgaria in order to hide from her husband and to seek protection and support from her family and the State. Once in Bulgaria, Ms. V.K. filed an application pursuant to the State’s Law on Protection against Domestic Violence, asking for an immediate protection order against her husband, invoking the Convention (CEDAW) and other human rights treaties. The District Court issued the order for immediate protection, but rejected Ms. V.K.’s application for a permanent protection order. On appeal, the Regional Court upheld the decision of the District Court. After exhausting all available domestic remedies, Ms. V.K. lodged a complaint with the CEDAW Committee alleging that the State had failed to provide her with effective protection against domestic violence, in violation of the Convention. She further claimed that the absence of a special law regarding the equality of women and men in the State, and the lack of recognition of violence against women as a form of discrimination, interfered with her human rights. Upon consideration, the Committee found that the refusal of the State’s courts to issue a permanent protection order against Ms. V.K.’s husband, along with the unavailability of shelters for battered women, violated the State’s obligation to effectively protect her against domestic violence. The Committee further concluded that the refusal of the State’s courts to issue a permanent protection order against Ms. V.K.’s husband was based on discriminatory notions of what constitutes domestic violence.

An Afro-Brazilian woman suffered a high-risk pregnancy and was repeatedly denied timely care at public health facility, before dying of a digestive hemorrhage following delivery of her stillborn fetus. Her death is not an isolated case; Brazil's maternal mortality rates are disproportionately high for a country of its economic status and the chances of dying in pregnancy and childbirth are greatest among indigenous, low-income, and Afro-descendant women. The husband of the deceased then filed a civil claim for material and moral damages, and twice requested the judicial mechanism of injunctive relief (tutela antecipada), which requests the judge to anticipate the protective effects of a decision. The first request was ignored and the second denied. The mother of the deceased then submitted a complaint to CEDAW Committee, alleging that the Rio de Janeiro State violated her daughter’s right to life and health under the Convention (CEDAW). The State contended that the evidence offered no link between the deceased’s gender and the possible errors committed, and that such errors therefore did not fall within the definition of discrimination set out in the Convention. Upon consideration, the Committee found that the death of the deceased must be regarded as maternal, that the deceased was denied appropriate services in connection with her pregnancy, that the State failed to fulfill its obligations under the Convention pursuant to the right to health, and that the State’s lack of appropriate maternal health services has a differential impact on the right to life of women. The Committee directed the State to take the following steps: compensate the deceased’s family, ensure women’s right to safe motherhood and affordable access to adequate emergency obstetric care, provide adequate professional training for health workers, ensure that private health care facilities comply with national and international standards on reproductive health care, and ensure that sanctions are imposed on health professionals who violate women’s reproductive health rights.

A vítima, uma mulher afro-brasileira que sofria com uma gravidez de risco, foi morta em razão do descaso do sistema público de saúde do Estado do Rio de Janeiro, após diversas negativas de atendimento apropriado a ela, ocasionando sua morte e de seu filho natimorto. Sua morte não se trata de um caso isolado. Com efeito, as taxas de mortalidade de gestantes são desproporcionalmente altas para um país com o status econômico do Brasil. Nesse aspecto, o risco de mortalidade durante a gravidez ou durante o parto é maior entre a população indígena, de baixa renda e afrodescendentes, o que explica o porquê desse caso ser relevante. O marido da vítima entrou com Pedido de Reparação de Danos Morais e Materiais e com dois pedidos de Tutela Antecipada, a fim de antecipar os efeitos da decisão. Contudo, o primeiro pedido de tutela antecipada não foi analisado pelo Judiciário, enquanto o segundo pedido foi negado. Em vista da ineficiência do Poder Judiciário brasileiro, a mão da vítima submeteu uma reclamação ao Comitê da CEDAW, sob o argumento de violação dos direitos à vida e à saúde de sua filha por parte do Estado do Rio de Janeiro. O Estado do Rio de Janeiro, por sua vez, argumentou acerca da inexistência de conexão entre o gênero da vítima e os possíveis erros médicos ocorridos, não sendo aplicável a definição de discriminação estabelecida pela CEDAW. Quando da análise do caso, o Comitê entendeu que: (i) a morte da vítima deveria ser considerada uma “morte materna” evitável, uma vez que foi negado atendimento apropriado relativo à gravidez da vítima; (ii) o Estado do Rio de Janeiro falhou em garantir o direito à saúde no termos da Convenção da CEDAW; e (iii) a ausência de atendimento médico adequado às gestantes por parte do Estado impacta diferentemente no direito à vida das mulheres. O Comitê ainda estabeleceu medidas a serem tomadas pelo Estado do Rio de Janeiro, tais como compensação à família da vítima, garantia do direito da mulher em ter uma gestação segura e atendimento obstétrico adequado, realizar atendimento adequado aos profissionais da saúde, garantir que o atendimento médico atenda o padrão nacional e internacional relativo à saúde reprodutiva, bem como garanta que as penalidades sejam imposta aos profissionais de saúde que violem os direitos reprodutivos das mulheres.