Women and Justice: Keywords

On August 27, 2014 Lucia Sandoval was acquitted after the court found insufficient evidence of her involvement in her husband’s death. In 2011, Sandoval was charged for the intended homicide of her husband. She subsequently spent over three years in prison awaiting trial. The incident that formed the basis for the charges took place on February 11, 2011, when Lucia Sandoval informed her husband that she had filed a complaint of domestic violence and had obtained a restraining order against him, which required him to leave their home. Sandoval’s husband responded violently and threatened her with a gun. When Sandoval tried to escape, a physical fight ensued and the gun was fired, resulting in her husband’s death. Amnesty International Paraguay, the Committee of Latin America and the Caribbean for the Defense of Women’s Rights (CLADEM) and Catholics for the Right to Decide (CDD Paraguay) helped advocate as to Sandoval’s innocence. These organizations claimed that “the first failure of the judicial system was that protection measures [for] . . . Sandoval were not applied. The court gave the [restraining] order to Sandoval, instead of sending the notice to the Police for it to be given to [her] husband.” The organizations noted that Paraguay had passed a law against domestic violence in 2000 but contended that the law “does not comprehensively address the problem, no[r] does it allow for a coordinated and coherent system in the country to collect data about gendered violence.” It should be noted that in 2013, the Human Rights Commission at the United Nations recommended that Paraguay implement a law to “prevent, punish, and eradicate gender violence, as well as assure that complain[t]s of domestic violence are effectively investigated, with perpetrators being punished appropriately and the survivors receiving attention and compensation.” Background information available at http://blog.amnestyusa.org/americas/victory-in-paraguay-is-a-big-step-fo... http://www.cladem.org/paraguay/Lucia-Sandoval-absuelta.pdf http://www.justice.gov/eoir/vll/country/amnesty_international/2014/Peru.pdf https://www.youtube.com/watch?v=Hk6bjsNKmrM

El 27 de agosto del 2014, Lucía Sandoval fue absuelta luego de que el tribunal no encontrara pruebas suficientes de su participación en la muerte de su esposo. En el 2011, Sandoval fue acusada del supuesto homicidio de su esposo. Posteriormente, pasaron más de tres años en prisión en espera de juicio. El hecho que sirvió de base a los cargos se produjo el 11 de febrero de 2011, cuando Lucía Sandoval informó a su esposo que había presentado una denuncia por violencia intrafamiliar y que había obtenido una orden de alejamiento en su contra, que le obligaba a abandonar su domicilio. El esposo de Sandoval respondió violentamente y la amenazó con un arma. Cuando Sandoval intentó escapar, se produjo una pelea física y se disparó el arma, lo que provocó la muerte de su esposo. Amnistía Internacional Paraguay, el Comité de América Latina y el Caribe para la Defensa de los Derechos de la Mujer (CLADEM) y Católicos por el Derecho a Decidir (CDD Paraguay) ayudaron a defender la inocencia de Sandoval. Estas organizaciones alegaron que “la primera falla del sistema judicial fue que las medidas de protección [para]. . . Sandoval no se aplicaron. El tribunal le dió la orden [de restricción] del marido a Sandoval, en lugar de enviar la notificación a la Policía para que se la entregue a [su] esposo” y así le informaran que no podía acercarse a ella. Las organizaciones señalaron que Paraguay aprobó una ley contra la violencia doméstica en el 2000, pero sostuvieron que la ley “no aborda el problema de manera integral, ni permite un sistema coordinado y coherente en el país para recopilar datos sobre violencia de género." Cabe señalar que en el 2013, la Comisión de Derechos Humanos de Naciones Unidas recomendó a Paraguay implementar una ley para “prevenir, sancionar y erradicar la violencia de género, así como asegurar que las denuncias de violencia intrafamiliar sean efectivamente investigadas, con los perpetradores siendo castigados adecuadamente y los sobrevivientes recibiendo atención e indemnización.” Información de antecedentes disponible en el sito web.

Husband challenged his wife’s capacity to initiate legal proceedings without his consent. The common law permitted a married woman to sue without the consent of her husband only if the woman attained approval from the court first. The High Court held that this common law requirement was unfair discrimination because it applied only to women and not to men, a violation of Sections 20 and 28 of the Constitution, which respectively state that “all persons are equal before and under the law” and that “women have the right to equal treatment with men.”

Cece, a young Albanian woman fled Albania to avoid trafficking and prostitution rings which target young women living alone. While living alone in Korce, Cece caught the attention of one of the leaders of a well-known prostitution ring. He followed, harassed, and threatened Cece. Her reports of the assault to the authorities were perfunctorily dismissed. Thereafter, Cece fled to the United States (“U.S.”) using a fraudulently procured Italian passport, whereupon she filed for asylum and withholding of removal within the one-year statutory period. Her claim was based on fear of returning to Albania as a young woman living alone. The immigration judge granted Cece’s asylum claim finding that her fear of returning to Albania was well founded because she belonged to a particular social group composed of “young Albanian women who are targeted for prostitution by traffickers” and that the government of Albania was unable or unwilling to protect such women. The Board of Immigration Appeals vacated the judge’s decision, holding that the judge erred in finding that Cece had established membership in a particular social group. On appeal, the Seventh Circuit Court of Appeals found that Cece was a member of particular social group cognizable under 8 U.S.C. § 1101(a)(42)(A) and therefore eligible for asylum. Specifically, the Court found that the particular social group identified by the immigration judge – young Albanian women living alone and thus vulnerable to being trafficked – met the immutability requirements of 8 U.S.C. § 1101(a)(42)(a) because it is based on common characteristics that members of the group either cannot change or should not be required to change.

This case concerns a decision of the Refugee Protection Division of the Immigration and Refugee Board. In response to an application for protection by Ms. Corneau, who sought protection from domestic violence perpetrated by her partner in Saint Lucia, the Board held that authorities in Saint Lucia were “capable of providing the applicant with adequate protection.” The applicant sought review of this determination. The Federal Court held that the Board’s finding was unreasonable, noting that “[t]he good intentions of a state to protect its citizens do not constitute state protection where in practice protection does not exist.” The Court stated that the Board failed to give adequate weight to contrary evidence and further noted that applicants for state protection are “not required to seek protection or assistance from non-governmental organizations or administrative agencies in order to rebut the presumption of state protection.”

SIS Forum (Malaysia) (“SIS Forum”) sought judicial review of the Minister of Home Affairs’ (“Minister”) decision to ban a book published by it, “Muslim Women and the Challenges of Islamic Extremism”. The book was a compilation of essays submitted during an international roundtable discussing challenges faced by Muslim women, including gender discrimination. The book was in circulation for two years before it was banned by the Minister for violating the Printing Presses and Publications (Control of Undesirable Publications) (No 5) Order 2008 (the “Act”). The Act prohibits publication of materials which are “prejudicial to public order”, among other things, and affords the Minister an absolute discretion to prohibit publication of any material contravening the Act. The High Court found that the Minister was unable to provide examples of how the book implicated public order issues by affecting public safety and tranquility of the community. Moreover, the book had been in circulation for 2 years and had not adversely impacted the safety and tranquility of the public. Accordingly, the High Court granted judicial review application for substantive relief to SIS Forum.

The court held that the Legislative Assembly of the National Capital Territory of Delhi lacked the power to amend central statutes, thereby declaring the Court Fees (Delhi Amendment) Act of 2012, through which the Delhi government had sought to increase court fees payable in Delhi, as void. The court reaffirmed that only the Parliament is empowered to amend or repeal central statutes by virtue of Article 246(4), and the procedure prescribed under the Constitution for obtaining presidential assent must be strictly followed. In addition, the court observed that the Amendment Act adversely impacts fundamental rights and results in violation of Article 38 and 39A of the Constitution of India on various count, such as reducing women’s access to court.

S was employed by Bull as a temporary secretary and was subsequently given a permanent placement responsible to the Marketing Manager, R. S resigned on the ground that she found working with him intolerable as R allegedly sexually harassed her. S never confronted S nor made any identifiable protests about his behavior with the exception of complaint she made about him telling dirty jokes to colleagues in her presence. But she had made complaints to her mother and colleagues at work. Although the tribunal decided that no single incident was serious enough to be capable of constituting sexual harassment, they did find that there had been a series of sexual inferences with a pervading sexual innuendo and sexist stance and that R realized that they were unwanted and were bullying in nature. With regard to the liability of Bull, the tribunal found that colleagues in the personnel department were well aware of the applicant's deteriorating health and that she had made complaints to other members of staff which had been dismissed. In those circumstances there should have been an investigation into the cause of the illness and the complaints that had been made. By failing to implement this, Bull committed a repudiatory breach of contract as they failed to deal with the issue of sexual harassment adequately. The tribunal concluded that the applicant was entitled to compensation for unfair dismissal by reason of sexual discrimination. The Employment Appeal Tribunal dismissed the appeal and added that whilst not “gross: the behavior of R towards S was most inappropriate in the workplace. The EAT placed the burden on the victim to place the harasser on notice that she does not welcome his conduct and endorsed the reasonable person perspective in assessing a victim’s rejection. The question at issue should be was the victim subjected to a detriment on the grounds of her sex. A one-off ace may suffice. The Court also directed tribunals to pay attention to the impact of totality of successive incidents, individually trivial.

Plaintiff was denied unemployment benefits by the Employment Security Board because prior to quitting her job, she did not notify her business manager that she was being sexually harassed by her supervisor. The plaintiff appealed. Plaintiff worked as a secretary for housekeeping and maintenance. For several months during her employment, the plaintiff’s supervisor made repeated sexual advances towards her by grabbing her, kissing her, and apologizing thereafter. Plaintiff complained once, but otherwise never complained to anyone other than her supervisor, and eventually quit her job out of fear of further unwanted sexual advances. She testified that she had never received a personnel policy, never knew of the existence of such a policy, and believed that she was to complain to her immediate supervisor. Notwithstanding, the Board found the plaintiff did not show that she had “good cause” to quit her job, since her business manager had no knowledge of the harassment. Under 21 V.S.A. § 1344(a)(2)(A), a party may not receive unemployment benefits where she quits voluntarily unless she shows she quit with “good cause.” On appeal, the court found that if there were a personnel policy in effect, there was no evidence that it was ever made known or available to the defendant’s employees. The court found that the plaintiff could not adhere to a policy (to notify a manager) that is not “sufficiently disseminated by the employer to employees.” Thus, the court reversed the Board’s conclusion and remanded the matter.

Appellant-employer filed an appeal from a decision of the Court of Appeals, which reversed a ruling entered in the Superior Court, granting appellant’s motion for partial summary judgment and dismissing appellee-employee’s wrongful discharge claim. The Supreme Court of Washington affirmed the appellate court’s decision, holding that appellee properly stated a cause of action for the tort of wrongful discharge based on the clearly articulated public policy against sex discrimination in employment. When appellee was on unpaid maternity leave, appellant discharged appellee, claiming that the position was no longer available due to a business slowdown. Appellant re-advertized the position one year later, but when appellee applied she was refused reemployment. Appellee claims the reason given for her discharge (i.e., economic slowdown) was pretextual, whereas the real reason for her discharge was that she was pregnant. Appellee filed a claim for common law wrongful discharge in violation of the public policy against sex discrimination. Although an indefinite employment contract is generally terminable at will, an exception to the at-will rule exists in the form of a common law cause of action in tort for wrongful discharge of an employee where the discharge contravenes a clear mandate of public policy. In this case, public policy against gender discrimination is grounded in the constitution, statute, and prior court decisions. Therefore, the Supreme Court of Washington affirmed the judgment of the Court of Appeals, as appellee properly stated a cause of action for the tort of wrongful discharge based on the clearly articulated public policy against sex discrimination in employment.

Here, the plaintiff worked as a staff pharmacist for the defendant for ten years. At a subsequent point, she became temporary pharmacy manager. Until the plaintiff was terminated thirteen months later, she was paid at a lower rate as a pharmacy manager than her male counterparts. She was told by the defendant that she would receive the difference in pay but never did. She complained numerous times and finally received a check for the pharmacy manager bonus that others received, but never received the thirteen months’ worth of additional pay. Prior to her termination, the plaintiff was questioned about two prescriptions that were fraudulently written—one while she was on duty and the other was written while a male pharmacist was on duty. The pharmacy technician immediately admitted that she falsified the prescription from when the plaintiff was on duty. The plaintiff denied knowledge of the fraud, but she was terminated based on her failure to secure the pharmacy. The pharmacy technician was also terminated. The male pharmacist however was not fired or disciplined for failing to secure the pharmacy area. At the time of the plaintiff’s termination, twenty of the twenty-one managers above the pharmacy manager level were male and all pharmacy technicians were female. The court found that the evidence was sufficient to show that the defendant discriminated against the plaintiff in terminating her. The court reasoned that a reasonable jury could have disbelieved the defendant’s reason for terminating the plaintiff; that the plaintiff’s base wage was lower than her male counterparts, and that there was discrimination based upon the fact that the male pharmacist on duty when another prescription was falsified was not disciplined or terminated. The court found an award of compensatory damages was supported by the evidence, but that punitive damages amounting to $1 million were not warranted because the defendant’s conduct was not so outrageous or egregious.

The petitioners sued to have several provisions of the Divorce Act declared void on the grounds that they discriminated on the basis of sex. The Court held that sections 4, 5, 21, 22, 23, 24 and 26 of the Divorce Act are void in so far as they discriminate on the basis of gender, so the grounds for divorce as listed are available to both sexes and the compensation for adultery, costs against a co-respondent, alimony, and settlement are applicable to both sexes.

A public interest litigation was initiated to change the definition of non-criminal sex from "hetero-sexual penile-vaginal" to "consensual sex between adults." The court granted the petition finding the criminalization of non-heterosexual sex violative of the constitution.

A 15-year-old girl, P, was allegedly sexually assaulted by three men. She immediately reported the attack to the police, but was kept waiting for hours at the police station and a medical center before being performed anal and vaginal palpations which caused her intense pain and despite complaining the sole anal nature of the attack. A social worker was sent to interview P's neighbors and relatives about her sexual history and morals during the investigation, leasing aside the three accused. The three accused were acquitted following a trial solely in Spanish despite the first language of P and several of the witnesses was Qom, and in which great reliance was placed on P's sexual history by the prosecution and the judge. P was not notified of her rights to participate in the trial nor of the outcome of the trial and she only became aware of the acquittal after two years and was unable to appeal. The Human Rights Committee found violations of Articles 2(3), 3, 7, 14(1), 17, 24, 26 of the Convention. The Committee found that the police, medical examiner and the court did not provide appropriate protections to P's age, discriminated against her in the emphasis that was placed on her sexual history, and denied her right of access to the courts when she was not informed of her legal rights. It also found that the events at the police station and the medical examination constituted inhumane or degrading treatment, and that the investigation had arbitrarily interfered with P's private life. The Committee called on the State to guarantee access for victims, including victims of sexual assault, to the courts in conditions of equality in the future. However the operative gender stereotypes, including that as a young women from a marginalized ethnic minority group, she was sexually promiscuous, which contributed towards the acquittal of the accused of the rape were unnamed, leaving the role of the stereotypes in discriminating against similar victims and their rights unaddressed.

Una niña de 15 años, P, presuntamente fue agredida sexualmente por tres hombres. Ella informó de inmediato del ataque a la policía, pero se mantuvo esperando durante horas en la estación de policía y en un centro médico antes de que se realizaran las palpaciones anales y vaginales, lo que le causó un dolor intenso, además ella especificó la naturaleza anal única del ataque. Se envió a una trabajadora social para entrevistar a los vecinos y familiares de P sobre su historial sexual y su moral durante la investigación, dejando a un lado a los tres acusados. Los tres acusados fueron absueltos después de un juicio únicamente en español a pesar del primer idioma de P y varios de los testigos era Qom, y en los que la fiscalía y el juez depositaron una gran confianza en la historia sexual de P. P no fue notificada de sus derechos a participar en el juicio ni del resultado del juicio y solo se enteró de la absolución después de dos años, cuando ya era muy tarde para apelar. El Comité de Derechos Humanos encontró violaciones de los artículos 2 (3), 3, 7, 14 (1), 17, 24, 26 de la Convención. El Comité determinó que la policía, el médico forense, y el tribunal no proporcionaron las protecciones adecuadas a la edad de P, la discriminaron por el énfasis que le pusieron en su historial sexual y negaron su derecho de acceso a los tribunales cuando no se le informó de sus derechos legales. También encontró que los eventos en la estación de policía y el examen médico constituían un trato inhumano y degradante, y que la investigación había interferido arbitrariamente en la vida privada de P. El Comité pidió al Estado que garantice el acceso de las víctimas, incluidas las víctimas de agresión sexual, a los tribunales en condiciones de igualdad en el futuro. Sin embargo, los estereotipos operativos de género, incluyendo que como mujeres jóvenes de un grupo minoritario étnico marginado, la tacharon como sexualmente promiscua, lo que contribuyó a la absolución de las acusadas de la violación no fue identificado, dejando el papel de los estereotipos en la discriminación contra víctimas similares y sus derechos no defendidos.

D, when pregnant, applied for employment as an instructor in a youth training centre with Stichting Vormingscentrum voor Jong Volwassenen (VJV). VJV considered D to be the best candidate for job, however, as the selection committee had been informed by D that she was pregnant VJV declined to offer her employment. The ECJ held that an employer who acts in the manner VJV did was in breach of the Equal Treatment Directive, and in direct contravention of the principle of equal treatment embodied in Articles 2(1) and 3(1) of Council Directive 76/207/EEC if he refuses to employ a female candidate based solely on the possible adverse consequences of her pregnancy, owing to rules on unfitness for work adopted by the public authorities, which assimilate inability to work on account of pregnancy and confinement to inability to work on account of illness. Further, the ECJ held that the application of the Equal Treatment Directive would not differ where in the circumstances described above no male applied for a post. If a woman is refused employment due to matters relating to her sex, for example pregnancy, it is always discriminatory

Job-sharing was introduced into the Irish Civil Service in 1984. Job-sharers work half the number of hours of full-time workers and are paid the same hourly rate. The scale of annual incremental salary increases for job-sharers are parallel to that for full-time workers with each point on the job-sharers scale representing 50% of the corresponding point on the full-time scale. 98% of job-sharers in the Irish Civil Service are women. According to the national referring tribunal a job-sharer can acquire the same experience as a full-time worker. When H and S transferred from job-sharing to full-time work they were initially assimilated to the same point on the full-time incremental scale as that which they had occupied on the job-sharers' scale. They were both subsequently reclassified at a lower point on full-time scale on the grounds that two years on the job-sharers' scale represented one year on the full-time scale. The questions posed to the ECJ by the Labor Court in Ireland arose from the decision by H and S to contest their reclassification. The Court took the view that workers who transferred from job-sharing, where they worked 50% of full-time hours and were paid 50% of full-time pay, to full-time work, were entitled to expect both the number of hours that they worked and the level of their pay to increase by 50%, in the same way as workers converting from full-time work to job-sharing would expect these factors to be reduced by 50%, unless a difference of treatment can be justified. Such development did not occur in this case, with the result that, as former job-shares are paid less than twice their job-sharing salary, their hourly rate of pay as full-time workers is reduced. Within the category of full-time workers, therefore, there is unequal treatment, as regards pay, of employees who previously job-shared, and who regress in relation to the position which they already occupied on the pay scale. In so finding, the Court observed that the use of the criterion of actual time worked during the period of job-sharing fails to take account, inter alia, of the fact that job-sharing is a unique category of work, given that it does not involve a break in service, or of the fact that a job-sharer can acquire the same experience as a full-time worker. Furthermore, a disparity is retroactively introduced into the overall pay of employees performing the same functions so far as both the quality and quantity of the work performed is concerned. In such a case, application of provisions of the kind at issue before the national tribunal result in discrimination against female workers which must be treated as contrary to Article 119 of the Treaty. The Court of Justice concluded that it would be otherwise only if the difference of treatment which was found to exist between the two categories of worker were justified by objective factors unrelated to any discrimination on the grounds of sex. It added that it is for the national tribunal to decide if any such objective factors exist.

Sexual harassment. Two of Mrs. Darby’s male supervisors, Mr. Daly and Mr. Smith, grabbed and sexually assaulted Mrs. Darby in the works manager’s office at Bracebridge. Mr. Smith threatened Mrs. Darby with a written warning when she attempted to get away from him, but she was eventually able to run away from the men. Mrs. Darby reported the incident, but the general manager did not take action against the men and Mrs. Darby subsequently resigned. An Industrial Tribunal upheld Mrs. Darby’s complaints of sex discrimination and unfair dismissal, awarding £3,900 to Mrs. Darby. Bracebridge appealed to the Employment Appeal Tribunal, and the Employment Appeal Tribunal dismissed Bracebridge’s appeal. The EAT found no error in the Industrial Tribunal’s finding of sex discrimination by Bracebridge, noting that the single incident of sexual harassment was sufficiently detrimental to Mrs. Darby and therefore no pattern of harassment was necessary to reach this finding. The EAT also noted that the incident took place in the workplace and was perpetrated by Mrs. Darby’s supervisors, further supporting a finding of sex discrimination under s.6(2)(b) of the Sex Discrimination Act. The EAT also found no error in the Industrial Tribunal’s finding of constructive dismissal (unfair dismissal) by Bracebridge, because the company failed to respond appropriately when Mrs. Darby reported the incident and Mrs. Darby left her position at the company as a result of Bracebridge’s failure to act.

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.

Ms. Arjona Camacho was dismissed from her position as a security guard at a juvenile detention center. The Social Court No. 1 of Cordoba in Spain found that her dismissal constituted discrimination on the grounds of sex, and referred to the European Court of Justice the question of whether EU law (specifically Article 18 of Directive 2006/54/EC) requires a national court to grant punitive damages, i.e., damages that go beyond the amount necessary to compensate the actual loss and damage caused by the discriminatory act, even when the concept of punitive damages does not exist within the legal tradition of that national court. The European Court of Justice found that, although punitive damages may be awarded under such circumstances, they are not required under EU law. If the national law does not provide a ground for the award of punitive damages, EU law does not independently provide such a right.

La Sra. Arjona Camacho fue despedida de su puesto como guardia de seguridad en un centro de detención juvenil. El Juzgado de lo Social Nº 1 de Córdoba en España determinó que su despido constituía una discriminación por motivos de sexo y remitió al Tribunal de Justicia de las Comunidades Europeas la cuestión de si la legislación de la UE (específicamente el artículo 18 de la Directiva 2006/54 / CE) exige una tribunal nacional para otorgar daños punitivos, es decir, daños que van más allá del monto necesario para compensar las pérdidas y daños reales causados ​​por el acto discriminatorio, incluso cuando el concepto de daños punitivos no existe dentro de la tradición legal de ese tribunal nacional. El Tribunal de Justicia de las Comunidades Europeas determinó que, aunque en tales circunstancias se pueden otorgar daños punitivos, no están obligados por la legislación de la UE. Si la legislación nacional no proporciona un motivo para la concesión de daños punitivos, la legislación de la UE no puede proporcionar dicho derecho de forma independiente.

UNFPA Report presenting the findings, analysis and recommendations from the Evaluation of the SGBV Crimes Unit, which has as its purpose to prosecute perpetrators of gender and sexual based violence, particularly rape, in Liberia (November 2010).