Women and Justice: Keywords

Domestic Case Law

M. v. The State Supreme Court of Appeal of South Africa (Hoogste Hof van Appèl van Suid Afrika) (2013)

Sexual violence and rape, Statutory rape or defilement

A man in South Africa was convicted of raping his adopted daughter over the course of a sexually abusive relationship that lasted several years and was sentenced to 15 years in prison. The judge overruled claims that the victim had given consent, holding that the victim’s lack of resistance did not qualify as active consent. Furthermore, the judge held that that the perpetrator had knowingly employed sexual grooming techniques to leverage the victim into sexual acts. In refuting the perpetrator’s claims that he believed the victim to be consenting, the judge in this case took an important step in defending victim’s rights and acknowledging the complicated power dynamics that often underlie sexual crimes. This case opens the path for victims of similarly complex patterns of sexual abuse to come forward and claim their rights, providing vital recourse for the many victims of sexual crimes in South Africa.

'n man in Suid-Afrika is skuldig bevind aan die verkragting van sy aangenome dogter oor die verloop van 'n seksueel beledigende verhouding wat 'n paar jaar geduur het en was tot 15 jaar in die tronk gevonnis. Die regter het die beweerings dat die slagoffer toestemming gegee het, van die hand gewys en gesê dat die slagoffer se gebrek aan weerstand nie as aktiewe toestemming kwalifiseer nie. Verder het die regter ook bevind dat die oortreder willens en wetens seksuele versorging tegnieke gebruik om die slagoffer in seksuele dade te hefboom. In die weerlê van die oortreder se eise dat hy geglo het dat die slagoffer toestemming gegee het, het die regter in hierdie geval 'n belangrike stap ter verdediging van slagoffers se regte geneem en het erkenning gegee aan die ingewikkelde krag dinamika wat dikwels agter seksuele misdade lê. Hierdie saak maak die pad oop vir slagoffers van soortgelyke komplekse patrone van seksuele mishandeling om vorentoe te kom en aanspraak te maak op hul regte, wat belangrike beroep bied vir die talle slagoffers van seksuele misdade in Suid-Afrika.

International Case Law

Interights (on behalf of Husaini and Others) v. Nigeria African Commission on Human and Peoples' Rights (2005)

Custodial violence, Gender discrimination, Gender-based violence in general, Harmful traditional practices

Interights, an international human rights organization, filed a complaint before the Commission on behalf of several complainants, arguing that Nigeria's Islamic Sharia courts had violated their rights to a fair trial and due process. The main complainant, S.H., a nursing mother, was sentenced to death by stoning for adultery. She was tried under Sharia law, according to which adultery is punishable by death. The petitioners also included A.L., a woman sentenced to similar punishment for adultery, and B.M., an unmarried woman who received 100 lashes as punishment for zina (voluntary premarital sexual intercourse). In response to the complaint, the Chairman of the African Commission sent an urgent appeal to Nigerian President Olusegun Obasanjo, urging him to suspend further implementation of the Sharia penal statutes and convictions under those laws pending the outcome of the complaints before the Commission. In response to the Chairman's urgent appeal, the Secretary General of the African Union formally brought the matter to President Obasanjo. The President's Chief of Staff wrote to the Chairman of the African Commission that while the federal government could not suspend the operation of Sharia law, the administration would ensure that the "right to life and human dignity" of S.H. and the others would be adequately protected. Before the court ruled on admissibility of the complaint, the complainant moved for withdrawal of the complaint, and it was withdrawn from the Commission.

Doebbler v. Sudan African Commission on Human and Peoples' Rights (2003)

Custodial violence, Gender discrimination, Gender-based violence in general

Eight female students of the Nubia Association of Ahilia University were arrested for engaging in immoral activities that violated the public order, in contravention of Sudan's Criminal Code, which incorporates Islamic Sharia law. The immoral activities the women committed consisted of "girls kissing, wearing trousers, dancing with men, crossing legs with men, sitting with boys, and sitting and talking with boys." The women were punished with fines and between 25 and 40 lashes. The lashing took place in public by use of a wire and plastic whip. The wire and plastic whip were unclean, the lashing was not under the supervision of a doctor, and the women were bareback in public while they were lashed. The complaint asserted that the punishment violated Article 5 of the African Charter on Human and Peoples' Rights, which guarantees the right of individuals to human dignity and prohibits cruel, inhuman or degrading punishment and treatment. The Commission found that the lashing violated article 5 of the African Charter. It requested that Sudan abolish the punishment of lashing and compensate the women for their injuries.

J. v. Peru, Report No. 76/11, Case 11,769A Inter-American Commission on Human Rights (2011)

Custodial violence

In April 1992, the Petitioner was arrested during a raid by DINCOTE, the counter-terrorism branch of the Peruvian police. The police believed that the Petitioner was a member of the Sendero Luminoso, a communist militant group in Peru. During the raid, the Petitioner was blindfolded, beaten and raped by some of the police officers. When she protested the sexual violence, the officers beat and kicked her. After the raid, the officers took the Petitioner to a DINCOTE facility, where she was detained for more than a year in cells infested with roaches and rats. While detained, DINCOTE officers deprived the Petitioner of access to her attorney, forced her to urinate in a can in the presence of two male officers, and doused her with cold water if she resisted their orders. The Inter-American Commission on Human Rights (the “IACHR”) found that the Peru violated the Petitioner’s rights by failing to conduct a serious investigation of her claims, even though her claims “fit a pattern known to have existed at that time” and involved violence (¶ 207). According to the IACHR, Peru had a duty to investigate the Petitioner's claims of rape, including ordering medical tests and examinations, to either corroborate or disprove her claims. The IACHR concluded that Peru, inter alia, violated the rights recognized in articles 5(1), 5(2) and 11 of the American Convention on Human Rights (the “American Convention”), as well as Article 1 and 6 of the Inter-American Convention to Prevent and Punish Torture. Noting its well-established precedent that “rape committed by members of the security forces of a state against the civilian population constitutes, in any situation, a serious violation of the human rights protected by Articles 5 and 11 of the American Convention,” the IACHR established that rape is particularly reprehensible when it perpetrated by a state agent against a detainee, because of the victim’s vulnerability and the agent’s abuse of power (¶ 188). In addition, noting that various reports had shown a pattern of rape and sexual abuse against women by members of Peru’s security forces, the IACHR found that such sexual violence was part of a “broader context of discrimination against women” (¶ 65).