Women and Justice: Keywords

The appellant, M.N., was charged with attempt to procure abortion, contrary to Section 158 of the penal code, which provides the “any person who, with intent to procure miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever is guilty of a felony and is liable to imprisonment for fourteen years.” Four witnesses testified for the prosecution, including complainant, who was 15 years old, told the court that the appellant, who was her teacher, invited her to his home on several occasions and made advances at her. She also testified that they eventually had sexual intercourse, which led to her pregnancy, and that the appellant provided a “doctor”, who was never arrested or charged, to procure an abortion. The complainant’s grandmother, one of the witnesses, testified that she also observed the “doctor”, but gave a different account of his actions than the complainant’s. The complainant later gave birth to a healthy baby. The appellant denied having a sexual relationship with the complainant and attempting to procure an abortion. The court held that the trial court convicted appellant based on its suspicion that he was responsible for the complainant’s pregnancy and that he provided the “doctor” who attempted to procure an abortion, but that suspicion was insufficient to sustain the conviction. The High Court thus set aside the conviction and sentence.

The petitioner filed for divorce, stating that only days after their wedding, the respondent began to subject her to aggressive verbal and psychological abuse that continued via telephone even after he emigrated to the United States. After the respondent returned to Ecuador, the abuse became physical. Once he severed a portion of her finger with a knife. The Provincial Court of Justice of Azuay declared their marriage dissolved. The respondent appealed, arguing that the court committed legal errors by failing to apply the correct evidentiary standard. The National Court of Justice affirmed the lower court’s decision, noting that such judgments are protected by a presumption of correctness. The Court noted that Ecuador is a signatory of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). With regard to the petitioner’s testimony detailing her abuse, the Court stated that the character of cyclical domestic violence makes it difficult for victims to detail every incident. The pattern of violence described by the petitioner was sufficient evidence for the court to grant her a divorce. (External link to search page of Ecuador National Court of Justice website.)

La demandante solicitó el divorcio, afirmando que solo días después de su boda, el demandado comenzó a someterla a agresivos abusos verbales y psicológicos que continuaron vía telefónica, incluso después de él que emigró a Estados Unidos. Después de que el demandado regresó a Ecuador, el abuso se volvió físico. Una vez le cortó una parte del dedo con un cuchillo. La Corte Provincial de Justicia del Azuay declaró disuelto su matrimonio. El demandado apeló, argumentando que el tribunal cometió errores legales al no aplicar el estándar probatorio correcto. La Corte Nacional de Justicia confirmó la decisión del tribunal de primera instancia, señalando que tales sentencias están protegidas por una presunción de corrección. La Corte señaló que Ecuador es signatario de la Convención sobre la Eliminación de Todas las Formas de Discriminación contra la Mujer (CEDAW). Con respecto al testimonio de la peticionaria que detalla su abuso, la Corte señaló que el carácter de la violencia doméstica cíclica dificulta que las víctimas detallen cada incidente con particularidad. El patrón de violencia descrito por la víctima fue prueba suficiente para que el tribunal le concediera el divorcio. (Enlace externo a la página de búsqueda del sitio web de la Corte Nacional de Justicia de Ecuador).

The appellant was found guilty of raping his stepdaughter AAA six times by the Regional Trial Court and the Court of Appeals. As a result, AAA gave birth to a baby in 2001. On appeal, the appellant argued that the prosecution failed to prove his guilt beyond reasonable doubt, stating that (1) there was no sign that AAA was outraged and defended her honor with courage and (2) of the three instances of intercourse he admits to, such instances were consensual and between lovers. The Supreme Court dismissed the appeal for the following reasons: (1) victim’s failure to shout or offer tenacious resistance does not mean the victim was consenting, and victim’s physical resistance is not an element of proving rape, and (2) a romantic relationship does not negate rape. The required elements of rape under Article 266-A of the Revised Penal Code, (I) accused had carnal knowledge of the victim and (II) accomplished the act through force or intimidation, or when the victim was deprived of reason or unconscious, or under age 12, or demented. The court found that the prosecution proved all elements by providing: AAA’s credible testimony, the results of AAA's medical examination, the appellant's use of a knife and bolo to threaten physical violence, and his moral influence as stepfather over AAA. The court sentenced the appellant to reclusión perpetua and ordered him to pay P225,000 in moral damages, civil indemnity, and exemplary damages to AAA.​

The appellant was found guilty by the Regional Trial Court and the Court of Appeals of raping a 13-year-old girl by dragging her to a nearby farm, raping her and later threatening her with retaliation if she did not stay silent. The appellant appealed, pointing to inconsistencies in the number of times the victim testified as being raped and arguing that the prosecution was not able to prove his guilt beyond reasonable doubt. The Supreme Court affirmed the conviction. According to the court, the victim making inconsistent statements about the number of times the appellant raped her did not harm her credibility, given the fear and distress the victim suffered, and the frequency is also not an element of the crime. The required elements of rape under Article 266-A of the Revised Penal Code are: (1) offender had carnal knowledge of a woman and (2) he accomplished such act through force or intimidation, or when she was deprived of reason or unconscious, or when she was under 12 years of age, or demented. The medical examination and victim’s credible testimony meets the first element. The element of force or intimidation is met by the fact that the appellant dragged her and pushed her to the ground to abuse her. The appellant also intimidated her after the act. Thus, the required elements of rape under Article 266-A of the Revised Penal Code are met. The appellant’s alibi or denials were weak and uncorroborated.

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.

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.

The respondent, an allegedly homosexual citizen of Pakistan, arrived in Australia on a visitor visa in 2007 and applied for a protection visa. To be recognized as a refugee, the respondent had to show that he had a well-founded fear of being persecuted due to his race, religion, nationality, membership of a particular social group, or political opinion. The respondent argued that, as a homosexual man, he belonged to a particular social group that was persecuted and subject to harm in Pakistan. The respondent’s protection visa application was initially denied, and the Refugee Review Tribunal (Tribunal) affirmed this decision. The Tribunal found that while homosexuals in Pakistan constitute a protected group, the respondent was not actually a homosexual because he safely make a three-week visit to Pakistan before traveling to Australia and failed to seek asylum on a recent visit to the UK. On appeal, the Federal Court found that the Tribunal’s decision was based on illogical reasoning. The Minister for Immigration and Citizenship appealed the Federal Court’s decision to the High Court. In a majority decision, the High Court overturned the Federal Court’s decision, finding that the Tribunal’s reasons for not believing the respondent was actually a homosexual were sound.

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.

The defendant, an 18-year-old uncle of the complainant, was criminally charged for housebreaking with intent to rape and raping his 12-year-old niece. The complainant alleged that the defendant, on three separate occasions, came to the complainant’s home and raped her. The complainant’s mother found out after take the complainant to a clinic, which confirmed that she was pregnant, and confronting the defendant through the headman, as tradition dictates. According to the defendant, the complainant invited him to her home and agreed to have sex with him for money, specifically N$6. Given the conflicting testimony, the High Court of Namibia (“High Court”) found that the prosecution failed to prove the housebreaking with the intent to rape and rape charges beyond a reasonable doubt. In explaining its reasonable doubt, the Court cited the facts that complainant did not mention until her cross-examination that her uncle in fact gave her money on the day of the first rape, that she did not wake her seven-year-old brother or otherwise raise an “alarm” when her uncle arrived at her hut at night, and that she continued to withhold information from her mother “after her mother created a secure environment and the accused failed to execute his threat” to beat the complainant if she told anyone. Still, the Court did not believe the defendant’s testimony that his niece was a “great temptress.” Instead of homebreaking with intent to rape and rape as charged by the State, the High Court convicted the defendant under section 14, sexual offences with youths, of the Immoral Practices Act, 21 of 1980, which carries a maximum penalty of 10 years imprisonment and/or a fine not exceeding N$40,000. The Court found that the State proved the three elements of that offense: the defendant (1) committed a sexual act with a child under the age of 16 (2) when he was more than three years older than her and (3) not married to her. Although the defendant claimed that he did not know the complainant’s age, the High Court held that, in order to avoid conviction, the defendant had the burden of proving that the complainant deceived him regarding her age. The defendant failed to provide such proof.

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.

On appeal, the Supreme Court affirmed the lower court’s judgment that appellant 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.