Women and Justice: Keywords

International Case Law

Chile v. Javier Sebastián Parra Godoy Angol Criminal Court (2013)

Gender violence in conflict

While the victim was sleeping, her partner Sebastian Javier Parra Godoy attacked her by striking her in the head. She suffered near-fatal head injuries as a result of the blow. On February 5, 2013, the criminal court in the province of Angol found Mr. Godoy guilty of the crime of attempted intimate femicide. In their ruling, the judges explicitly referenced the fact that the case presented a case of gender-based violence. It concluded that that Parra Godoy had acted as a result of traditional views considering women as subordinate perpetuating stereotypes of violence and coercion. The court stated that in such cases, international standards of human rights such as the Inter-American Convention to Prevent, Punish and Eradication of Violence Against Women and the general recommendations of the Committee on the Elimination of Discrimination Against Women (CEDAW) should apply. The prosecutor Raul Espinoza explained that the main challenge of the case was the absence of direct evidence because the only potential witnesses were the victim, who was sleeping at the time of the attack and who suffered neurological damage which affected her memory, and the victim’s autistic son, who was mentally handicapped. To bring the case, he relied instead on strong circumstantial evidence.

Mientras la víctima dormía, su compañero Sebastián Javier Parra Godoy la agredió golpeándola en la cabeza. Sufrió heridas en la cabeza casi fatales como resultado del golpe. El 5 de febrero de 2013, el juzgado penal de la provincia de Angol declaró culpable al señor Godoy del delito de intento de femicidio íntimo. En su decisión, los jueces hicieron referencia explícita al hecho de que el caso presentaba un caso de violencia de género. Concluyó que Parra Godoy había actuado como resultado de opiniones tradicionales que consideraban a las mujeres como subordinadas y perpetuaban estereotipos de violencia y coacción. El tribunal señaló que en tales casos deben aplicarse estándares internacionales de derechos humanos como la Convención Interamericana para Prevenir, Sancionar y Erradicar la Violencia contra la Mujer y las recomendaciones generales del Comité para la Eliminación de la Discriminación contra la Mujer (CEDAW). El fiscal Raúl Espinoza explicó que el principal desafío del caso fue la ausencia de evidencia directa porque los únicos testigos potenciales eran la víctima, quien se encontraba durmiendo al momento del ataque y quien sufrió daño neurológico que afectó su memoria, y el que el hijo de la víctima tenía autismo, una discapacidad mental. Para presentar el caso con éxito, se basó en cambio en pruebas circunstanciales sólidas.

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.

Reports

Exclusion of women from the legal profession in the United States of America, the United Kingdom, and South Africa (2012)

Employment discrimination, Gender discrimination, Harmful traditional practices

Although great strides have been made in breaking down the barriers that have previously kept women from being able to have the same rights and privileges to work in the legal profession that men enjoy, there is still progress to be made.

Nowhere to Turn: Failure to Protect, Support & Assure Justice for Darfuri Women (2009)

Gender discrimination, Sexual violence and rape

By Physicians for Human Rights with Harvard Humanitarian Initiative.

"The Ten-Dollar Talib" and Women's Rights: Afghan Women and the Risks of Reintegration and Reconciliation (2010)

Gender-based violence in general

Human Rights Watch, July 13, 2010.

Domestic Case Law

Law & Advocacy for women in Uganda v. Attorney General Constitutional Court of Uganda (2010)

Female genital mutilation or female genital cutting, Harmful traditional practices

Petitioners challenged the tribal practice of female genital mutilation and argued that it is inconsistent with the Ugandan Constitution. They argued that the practice is cruel, inhuman, and degrading, and endangers the right to life and privacy under the Constitution. The two issues before the court were whether the petition raised any matter for constitutional interpretation and whether the practice of female genital mutilation should be declared as null and void under the constitution. At trial, petitioners produced unchallenged affidavits supporting the fact that female genital mutilation was practiced crudely, wantonly, and without anesthesia, causing permanent damage and trauma to the victim, including incontinence, paralysis, and even death. The court first held that the petition did raise serious questions for constitutional interpretation. Second, the court held that, while the Constitution protects free exercise of cultural or religious custom, such exercise must not infringe on human dignity or the right to be free from cruel, inhuman, or degrading treatment. Thus, the court held that female genital mutilation was inconsistent with the provisions of the Constitution, and thus declared the custom void.

KHO 2005:87 Supreme Administrative Court (2005)

Forced and early marriage, Harmful traditional practices

The issue here was whether A should get a residence permit to Finland because of family ties. He had entered into marriage with his cousin B in Syria in 2004 who was 15 years old at the time and had lived in Finland since 1996. The Directorate of Immigration (now Finnish Immigration Service) denied A's application for residence permit. According to Section 114(1) of the Finnish Aliens Act (301/2004, as amended) (the "Aliens Act"), a residence permit is issued on the basis of family ties to a family member of a refugee or an alien who has been issued with a residence permit on the basis of the need for subsidiary protection or humanitarian protection, or who has enjoyed temporary protection if: (i) the sponsor lives in Finland or has been issued with a residence permit for the purpose of moving to Finland; and (ii) the applicant is not considered a danger to public order, security or health. According to Section 4 of the Finnish Marriage Act (234/1929, as amended) (the "Marriage Act"), (i) a person under 18 years of age shall not marry, (ii) The Ministry of Justice may, however, for special reasons grant a person under 18 years of age a dispensation to marry. Before the matter is decided, the custodian of the applicant shall be reserved an opportunity to be heard if his or her whereabouts can be determined with reasonable measures. The Directorate of Immigration considered that the marriage was against Finnish law and not valid. Hence A could not be considered a family member in accordance with the Aliens Act. The Administrative Court reversed the Directorate of Immigration's decision. It held that the marriage was made under Syrian law and the fact that B was under age according to the Finnish law did not matter in this case. Also taking into account the religion, culture and traditions of B and her family, the Court found that issuing permit of residence would not be against the interest of the child. On appeal from the decision of the Administrative Court, the Supreme Administrative Court concluded that the fact that some countries allow underage marriages does not mean that such marriages can be the basis for a residence permit in the same way as are marriages between consenting adults. Although Section 115(1) of the Marriage Act generally recognizes the validity of marriages concluded in other countries, the law contains an exception where the application of a foreign provision would have an outcome contrary to Finnish public policy (ordre public (Section 139 (2) of the Marriage Act). Taking into account Article 1(1) of the Convention on Consent to Marriage, Minimum Age For Marriage, and Registration of Marriages; Article 23(3) of the International Covenant on Civil and Political Rights (ICCPR); and Article 16(1)(6) and (2) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Court held that it was not possible to use culture to justify marrying B to a person whom she is claimed to have met when she was a small child and taking her into a country where she does not have any family ties. Marrying a child and applying for permit of residence on the basis of this marriage can be seen as intention to evade the provision on entry into or residence in the country (Section 36(2) of the Aliens Act). On these grounds, the Supreme Administrative Court held that the decision of the Administrative Court would be revised and the decision of the Directorate of Immigration would be enforced.

Use of Paternal Family Name Case Constitutional Court of South Korea (2005)

Gender discrimination

Petitioners applied for constitutional review of Article 781(1) of the Civil Code which stated that "a child shall follow the family name of the father." The Constitutional Court held that the civil code provision requiring a child to follow the father's family name is unconstitutional. The court held that "such unilateral requirement to follow the father's family name and disallow use of the mother's name violates individual dignity and sexual equality." In addition, the court held that "forcing one to use only his original father's family name and not allowing a name change infringes on the individual's right to personality." The concurring opinion stated that the civil code provision also results in discrimination against women, and found no legislative purpose for such discrimination. (Article 36(1) of the South Korean Constitution guarantees individual dignity in marriage and family.)

P. and M. v. Secretary of State for the Home Department Court of Appeal of United Kingdom and Northern Ireland (2004)

Domestic and intimate partner violence, Female genital mutilation or female genital cutting, Harmful traditional practices

The first appellant, P, was seeking asylum from being returned to Kenya on the grounds of a fear of persecution because of the violence that both she and her children had suffered from her husband in Kenya, especially as domestic violence tends to be accepted in Kenya and the police had not effectively protected her against her husband. The second appellant, M, seeks asylum on the grounds of fearing that she would be subjected to female genital mutilation at the hands of her father, who is a member of the Mungiki sect that practices FGM, and who had already previously performed FGM on her mother, causing her mother's death. The Court allowed both appeals for asylum, but did stipulate that not all cases of either domestic violence or FGM would automatically give rise to a claim to protection and asylum.



Ashok Kumar v. Birakishore High Court of India (2004)

Gender discrimination, Harmful traditional practices

A father alleged that his son-in-law had kidnapped his daughter. The daughter showed that she was of age and had married of her own free will. The court held that a family can have no control over who an adult chooses to marry.