Women and Justice: Keywords

Legislation

Ley 20.066 (Establishing the Law on Domestic Violence) (2005)

Domestic and intimate partner violence

Its objective is to prevent, sanction, and reduce domestic violence and protect victims, especially woman, elders, and children. It defines domestic violence as physical acts and physical abuse committed by a person having a family bond with the victim. The Family Tribunal has jurisdiction over cases where the conduct does not qualify as a crime (according to the Criminal Code) and no prison penalties may be imposed. Article 4 states that enforcement of this law is within the purview of the Minister of Women and Gender Equity.

Su objetivo es prevenir, sancionar y reducir la violencia intrafamiliar y proteger a las víctimas, especialmente a mujeres, ancianos y niños. Define la violencia doméstica como los actos físicos y el abuso físico cometidos por una persona que tiene un vínculo familiar con la víctima. El Tribunal de Familia tiene jurisdicción sobre los casos en que la conducta no califica como delito (según el Código Penal) y no pueden imponerse penas de prisión. El Artículo 4 establece que la aplicación de esta ley es competencia de la Ministra de la Mujer y la Equidad de Género.

Domestic Case Law

Kalibobo v. Uganda Court of Appeal at Kampala (2001)

Gender-based violence in general, Sexual violence and rape

The trial court sentenced the 25-year-old Appellant to 17 years in prison after finding him guilty of raping a 70-year-old widow from a neighboring village. The trial court rejected the defense that he was not in her village at the time of the rape. The trial court found that in November 1998 the Appellant broke into the home of the victim, who confronted him with a panga (machete). While raping her after disarming her, the victim called out and the Appellant, worried about being caught, fled with her panga. The police found the panga in his home the next day and he was arrested. The Appellant contested his sentence, arguing that it was manifestly harsh because he has a wife, two children, and two young brothers to care for. The State contended that the sentence was appropriate because of the victim’s age and family circumstances. The standard for appellate court interference is a sentence that is “manifestly excessive or low in view of the circumstances of the case.” The Court noted that the crime of rape, particularly the rape of “grandmothers,” is prevalent in the area and very serious. The Court held “[t]he appellant raped an old lady. That was bad. However, considering all the circumstances of the case, we think that a sentence of 17 years imprisonment was manifestly so excessive as to cause a miscarriage of justice” and reduced the sentence to seven years.



Rex v. Motsoene High Court of Lesotho (2005)

Sexual violence and rape

The defendant was charged with violating the Sexual Offence Act of 2003 for the attempted rape of a 71-year-old woman. The trial evidence showed that the victim’s daughter intervened and was able to stop the rape after the defendant threw the victim to the ground but before he could commit the actual rape. As such, the defendant maintained at trial that he was innocent because the Sexual Offences Act of 2003 did not criminalize attempted rape. The High Court disagreed with the defendant’s interpretation of the Sexual Offenses Act. The Court held that, in order to sustain a conviction for attempted rape, the prosecutor simply had to provide evidence of the defendant’s intent to commit rape and any actions taken to commence the actual crime. Here, the defendant struggled with the victim, threw her to the ground, and stated his intention to have sex with her against her will. Consequently, the Court found the defendant guilty of attempted rape.



International Case Law

Sawhoyamaxa Indigenous Community v. Paraguay Inter-American Court of Human Rights (2006)

Abortion and reproductive health rights, Gender discrimination, International law, Property and inheritance rights

This case involved issues involving the exposure of vulnerable members of indigenous communities, particularly children, pregnant women, and the elderly. A petition was filed against Paraguay on behalf of the Sawhoyamaxa Indigenous Community, alleging violations of, among other things, the right to fair trial and judicial protection, the right to property and the right to life. The petition noted that these violations placed children, pregnant women and the elderly in particularly vulnerable situations. The Court found Paraguay to be in violation of Articles 1(1), 2, 3, 4(1), 8, 19, 21 and 25 of the American Convention on Human Rights. The Court ordered Paraguay to formally and physically convey to the Sawhoyamaxa their traditional lands, to establish a community development fund, to pay non-pecuniary damages, to provide the Sawhoyamaxa with basic necessities until their lands were restored, to provide the Sawhoyamaxa with the necessary tools for communication to access health authorities, and to domestically enact legislation creating a mechanism for indigenous communities to reclaim their traditional lands.