The defendant was charged the defilement of the complainant, a 17-year-old girl. In his defence, the accused claimed that he could not get an erection (albeit, apparently, only after the magistrate raised the question himself). During the proceedings, a woman stood up in court and volunteered to ascertain whether the accused could obtain an erection. One week later, the magistrate, prosecutor, court interpreter, accused, complainant, and the woman who had volunteered met in the magistrate’s chambers to witness whether the woman could touch the defendant sexually until he obtained an erection. The magistrate observed, after approximately 30 minutes of sexual contact, that the accused’s “penis got a bit hard but not very hard.” Following a complaint from the complainant’s parent, the High Court was requested to review the conduct of the magistrate to determine the veracity of the complaint. At this point, the magistrate had not reached a verdict. By way of a preliminary conclusion, the High Court noted that “this illegal show seemed to come out of the blue” and found that the manner of investigation into the accused’s ability to obtain an erection was “raised by the magistrate, thereby making the [High] Court conclude that there were extra judicial discussions” between the accused and the magistrate. The Court also expressed serious concern about secondary victimisation, given that the sexual act occurred in the presence of the complainant. The Court then outlined its reasons for arriving at its ultimate decision, focusing on two matters: the existence of bias and judicial stereotyping. Regarding the first issue, the Court cited caselaw from across common law jurisdictions and the European Court of Human Rights relating to actual or perceived bias. Regarding the second issue, the Court highlighted the significant dangers associated with gender stereotyping on the part of the judiciary. The Court emphasised that judges should be alive to the concerns of victims of sexual offences, specifically that gender stereotypes harm such victims and contribute to further violations of their rights. Presiding officers are obliged to ensure that the courts offer equal access to men and women. In this context, it was emphasised that it matters not only how judges conduct themselves, but also how their conduct could be perceived during a trial. A judicial officer has to be aware of the negative results of displaying condescension toward women in court. In this case, the complainant was concerned about judicial bias, corruption, and/or collusion with the accused. The decision implied that the magistrate’s conduct could have arisen from his bias against, and stereotyping of, the complainant as a complainant in a sexual offence case. The Court highlighted that the judiciary could not condone the perpetuation of “structural gender-based violence, where courts instill fear in women and girls who are victims of sexual offences, using the criminal justice system.” Therefore, in order to create a discrimination-free judicial system that victims can rely on, it is incumbent on the judiciary to remain cognisant of its own biases and stereotypes, especially in the context of victims of sexual offences, and conduct cases in a manner which counteracts such biases and stereotypes. In conclusion, the High Court ordered a retrial under a different magistrate, and that the complainant and her family be provided with the resources needed to ensure her attendance at court. The Court referred (i) the magistrate’s conduct in the trial and (ii) the wider question of gender bias among judicial officers to the Judicial Service Commission. Finally, the Court recommended that the Chief Justice, through the judiciary’s training committee, should develop training programmes to avoid a matter like this re-occurring in the future.
Women and Justice: Keywords
Domestic Case Law
R. v. Yusuf Willy (Criminal Review No. 6 of 2021/Criminal Case No. 183 of 2021) High Court of Malawi (2022)
Decisión nº 002-16 de Corte de Apelaciones de Violencia contra la Mujer (Número de Expediente: CA-1708-14VCM) Corte de Apelaciones de Violencia contra la Mujer (Court of Appeals for Violence Against Women) (2016)
The defendant was convicted for the crimes of human trafficking and association to commit crimes on May 15, 2014 in the state of Nueva Esparta. In its decision, the lower court said that in cases of rape and trafficking of persons, anyone who has been accused of having a relationship or knowledge of such crime could be deprived of liberty during trial, if it is deemed appropriate by the authorities. In the defendant’s case, he was accused of seducing and luring the female victim into the island of Margarita, where she was subjected, tortured, drugged, and raped. The defendant appealed the decision, alleging that it violated his right to be judged in freedom. The Court of Appeal for Violence Against Women on January 8, 2016 dismissed the appeal action and ratified the decision of the lower court and determined that the apprehension of the accused before his conviction did not represent a violation of the law. The appellate court ratified the criteria of the lower court according to which those defendants who are linked to the act of people trafficking and gender violence can be arrested before issuing a conviction decision, if deemed appropriate by the authorities.
Squire v. R. Court of Appeal (2015)
On 24 May 2013, the applicant was found guilty of the abduction and rape of a 14-year-old girl. He had a good relationship with the parents of the girl and thus was a trustworthy person to her. The applicant’s first appeal application was denied. He renewed his application and the Supreme Court of Criminal Appeal granted the application. This time his conviction was quashed, the sentences were set aside, and the Court ordered a new trial at the next sitting of the Circuit Court. The applicant criticized the quality of the representation given by his counsel at the trial, arguing that his attorney did not provide an adequate defense and did not take full instructions from him. The attorney defending the applicant at the first trial argued that the applicant was properly defended, that the prosecutor also submitted that the defense was adequate and that, as the case turned on the contest of credibility between the complainant and the applicant, the jury’s verdict would have been the same, regardless of any omission by the defense counsel at the trial. Despite the seriousness of the alleged crime, the Court held that the applicant was denied the substance of a fair trial and quashed the conviction, setting aside the sentences, without doing a balancing test between the rights of the 14-year-old girl who was a victim of a crime, and the sex offender’s due process rights.
Ancich v. Ancich Arizona Court of Appeals (2009)
Father and Mother were divorced in 2003 and were granted joint custody of their son, Z. In January 2008, Mother sought an order of protection against Father covering her house, her mother’s house, and Z’s school, claiming that Father, a police officer, had committed domestic violence against her, and had intimidated Z to a point where he left a suicide note. After an evidentiary hearing, the family court found sufficient evidence to support an order protecting Mother. The court found, however, evidence was insufficient to cover Z in the order, and thus removed Z’s school from coverage. Father appealed, arguing that the order was wrongly entered because only Mother’s side of the story “had been heard,” to which the court responded that the family court was entitled to resolve conflict in evidence. The court determined that Mother’s account was more convincing, and thus rejected Father’s argument. Father also argued that because of the protective order, he must check his service weapon at the end of every shift and asked for it again at the beginning of every shift. As a result, he could not perform security work in off-duty hours. The court did not consider the argument because Father failed to cite any legal authority in support of a need for him to perform off-duty security work. Finally, Father argued that the protective order would diminish his right to participate decision-making about Z. The court found the argument unconvincing because father was free to reach Mother via e-mail or phone. Accordingly, the court affirmed the family court’s grant of a protective order covering Mother.
International Case Law
Soňa Šimková v. Slovakia European Court of Human Rights (2005)
The applicant married Mr. S. in 1994, and had a daughter with him in 1995. Since that time, the applicant and Mr. S. never lived in a common household. In 1996, the District Court pronounced the dissolution of marriage, which became final in 1997, and gave custody to the applicant. Mr. S. was ordered to contribute to child maintenance. In 1996, the applicant brought an action against Mr. S. with the District Court, seeking an order that he contribute to her maintenance as his spouse. After multiple hearings, appeals, and remittance to the District Court, the District Court finally ruled in 2002 that during the relevant period, Mr. S. had been obliged to contribute to the applicant’s maintenance. The Regional Court dismissed both parties’ appeals. In 1997, the applicant lodged an action with the District Court seeking an order that Mr. S. contribute to her post-divorce maintenance, as she was unable to provide for herself alone. After another lengthy process of hearings, appeals, remittance, and re-examination, the District Court ruled in 2002 that Mr. S. had been obliged to contribute to the applicant’s maintenance. Upon Mr. S.’s appeal, the Regional Court modified the judgement in 2003 and detailed new amounts Mr. S. must pay. In 2000, the applicant lodged a petition with the Constitutional Court complaining of undue delays in the above two sets of proceedings and two other sets of proceedings. The court found that the District Court had violated her right to a hearing without unjustified delay in the above actions. However, at that time, the Constitutional Court lacked jurisdiction to draw legal consequences from the finding. The applicant then argued the above proceedings violated her right to the “reasonable time” requirement in Article 6 Section 1 of the European Convention. The Government admitted that this right had been violated. The court held that there had been a violation of this requirement, and that the respondent State must pay the applicant damages.
Y. v. Slovenia European Court of Human Rights (2015)
Applicant is a citizen of Ukraine who came to Slovenia as a teenager with her family. Applicant alleged that when she was 14 a family friend repeatedly sexually assaulted her. The police investigated and an expert in gynecology examined the applicant. After complaints and a letter from the State Prosecutor’s Office to the local police a criminal complaint was issued. The ensuing investigation and trial extended over a period of eight years. During that time the defendant was allowed to repeatedly cross examine the applicant. Moreover, a lawyer with whom the applicant had shared confidential information about the case was allowed to represent the defendant. The defendant was acquitted, the applicant was referred to civil court for damages, and the applicant received a settlement from the government for the undue delays in the proceedings. The Court found that Slovenia violated the European Convention of Human Rights in two ways. Slovenia violated Article 3 when it failed to promptly investigate and prosecute the complaint of sexual abuse. Furthermore, Slovenia violated Article 8 because it failed to sufficiently protect the applicant’s personal integrity and privacy in the proceedings.
Legislation
Section 23 of the Criminal Justice Administration Act states that proceedings regarding accusations of certain crimes shall be held in camera (privately). These crimes include rape, grievous sexual assault, marital rape, sexual intercourse with a person under age sixteen, indecent adult, or involvement in prostitution.
Alabama Code Title 26. Infants and Incompetents § 26-21-4 (2014)
Since 1987, Alabama has had a judicial bypass law, which allows pregnant minors to obtain a court’s permission to have an abortion without parental consent. In 2014, the Alabama legislature passed House Bill 494 to amend the law. The original judicial bypass statute provided for an ex parte hearing with only the judge, the minor, and her attorney present. The 2014 amendments added to the proceedings parties who are permitted or required to “examine” the minor and represent the interests of the unborn child, the state, and the minor’s parents. It would have also allowed the appointment of a guardian to represent the interests of the fetus. The District Court of the Middle District of Alabama found these amendments unconstitutional and severed them from the judicial bypass law in Reproductive Health Services v. Marshall (2017).
In 2015, Alabama amended its gun legislation to prohibit anyone who has been convicted of a misdemeanor offense of domestic violence or is subject to a domestic abuse protective order from possessing a firearm. The amended statute provides: “No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence, misdemeanor offense of domestic violence, violence offense as listed in Section 12-25-32(14), anyone who is subject to a valid protection order for domestic abuse, or anyone of unsound mind shall own a firearm or have one in his or her possession or under his or her control.”