Women and Justice: Keywords

Domestic Case Law

OLG Karlsruhe Beschluß vom 17.1.2019, 2 Ws 341/18 (Sexuelle Nötigung: Drohung mit der Beendigung einer Beziehung für den Fall der Weigerung der Durchführung sexueller Handlungen) Oberlandesgericht Karlsruhe (Karlsruhe Court of Appeals) (2019)

Domestic and intimate partner violence, Sexual violence and rape

A 17-year-old girl engaged in sexual acts with an online acquaintance she had met only twice because he threatened to end the relationship if she refused. The Court ruled that threatening to end a relationship can constitute a threat of substantial harm and thus sexual coercion if the relationship has a high emotional value to the victim. Specifically, the Court noted that whether the termination of a relationship constitutes substantial harm depends on the individual perception of the victim, and not on the perception of a reasonable average person.

Ein 17-jähriges Mädchen nahm sexuelle Handlungen mit einem Online-Bekannten vor, den sie nur zweimal getroffen hatte, weil er drohte, die Beziehung zu beenden, wenn sie diese Handlungen nicht vornehmen würde. Das Gericht entschied, dass die Drohung, eine Beziehung zu beenden, eine Drohung mit einem empfindlichen Übel und somit sexuelle Nötigung darstellen kann, wenn die Beziehung für das Opfer einen hohen emotionalen Wert hat. Das Gericht stellte insbesondere fest, dass die Frage, ob die Beendigung einer Beziehung ein empfindliches Übel darstellt, von der individuellen Wahrnehmung des Opfers abhängt und nicht von der Wahrnehmung einer vernünftigen Durchschnittsperson.

Onesphory Materu v. The Republic Court of Appeal of Tanzania at Tanga (2009)

Sexual violence and rape

Salma Yusuf, a fourteen year old girl, alleged that the appellant police officer, Onesphory Materu, had raped her inside a police cell with a promise to release her (made in writing) after the fact. The trial court found the police officer guilty of rape and convicted him to a sentence of thirty years imprisonment, twenty four strokes of the cane and an order that he pays Shs.700,000 compensation to the complainant. The police officer had appealed for the second time and the court had to consider two grounds: (1) whether the victim was in fact telling the truth; and (2) that the court erred in relying on the “release note” as evidence of the crime. On the first matter, the court noted that inclusion of Section 127 (7) of the Evidence Act as amended by the Sexual Offences Special provisions Act, Number 4 of 1998 means that the only burden imposed on the court is “to give reasons that it is satisfied that a child of tender years or the victim of the offence is telling nothing but the truth”. There is no longer a requirement for the court to warn itself of the dangers of basing a conviction on the uncorroborated evidence of a child where a sexual offence is involved. On the second matter, the court noted that the appellant did not object to the entry into evidence of the note, so there can be no merit in objecting to it now. The conviction and sentencing was upheld.

Seif Mohamed El-Abadan V. The Republic Court of Appeal of Tanzania at Tanga (2009)

Gender violence in conflict, Gender-based violence in general

The victim was raped by a doctor on 14 November 2006 at Magunga Hospital in Korogwe District. The appeal asserted that the witness in the trail was not credible. The appellate Court concluded that it was unable to “find a ground for denting the credibility of the complainant” and “not having found any contradictions in the evidence of PW1, the victim of the sexual assault by her doctor, the appellant” . The Court recognises sextortion and goes on to say: “We agree with the learned judge that ‘ it is treacherous for one to stray away from a professional calling and turn against one amongst the very lot who bestowed their trust unto the person.’ In this case, it was treacherous for the appellant doctor to rape his patient, PW1.”

Ally Hussein Katua v. The Republic Court of Appeal of Tanzania at Tanga (2010)

Sexual violence and rape

The appellant claimed that the charge of sexual exploitation was defective and that the evidence of the complainant Rehema Athumani should not have been believed and acted upon (allegedly because of a “history of mental illness and confusion”). The Court determined that although normally the element of lack of consent ought to be reflected in a charge of rape, but with the inclusion of section 130 (2) (e) of the Penal Code, consent is no longer relevant where the victim is under eighteen years of age and in this case, there was no dispute that the victim was aged 17 at the time of the crime (and therefore covered by the law). The Court noted that “Paragraph (d) above would particularly be important in highlighting the fact that the appellant being a traditional healer took advantage of his position and committed rape on PW1 as we shall demonstrate hereunder.” Furthermore, the Court recognised that an aggrieved party may appeal on a matter of law (not including severity of sentence) but not on a matter of fact, and “strictly speaking, in our reading and appreciation of the evidence on record there is no serious point of law involved in this appeal”, only matters of fact.

Chile v. Nelly Viviana Condori Nicolas Oral Criminal Court (2006)

Trafficking in persons

The female defendant was charged with trafficking in person for the purpose of sexual exploitation. The defendant used an employment agency in Peru to offer Peruvian women waitress jobs at her residence in Chile. She would assist them in crossing the border and would pay travel costs. Upon arrival, the victims were kept at the defendant’s residence and were forced to provide sexual services to clients arranged by the defendant. The defendant also kept the victims’ passports so that they would be unable to leave until their debts were paid. The defendant was found guilty and sentenced to six months of imprisonment.

Al acusado se le inculpó de trata de personas con fines de explotación sexual. El acusado utilizó una agencia de empleo en Perú para ofrecer trabajos de meseras peruanas en su residencia en Chile, prometiendo que los ayudaría a cruzar la frontera y pagaría los gastos de viaje. A su llegada, las víctimas fueron mantenidas en la residencia del acusado y fueron obligadas a proporcionar servicios sexuales a los clientes organizados por el acusado. El acusado también se quedó con los pasaportes de las víctimas para que no pudieran salir hasta que se pagaran sus deudas. El acusado fue declarado culpable y condenado a seis meses de prisión.

Prerana v. State of Maharashtra Supreme Court of India (2002)

Sexual violence and rape, Trafficking in persons

After a police raid on a brothel, four pimps were arrested and twenty-four women and girls were taken into custody. The magistrate ordered a medical examination to, among other things, determine the women's ages. The magistrate then ordered that the women 18 and over be released, and a few days later ordered the minor girls to be released. The magistrate explained that the girls had expressed a desire to be released. The Court held that this act was in violation of the Juvenile Justice Act, that only a child welfare board could determine how the girls were to be released. The Court then set forth guidelines for courts dealing with girls taken from brothels in the future. This case is significant because victims of trafficking may need counseling and other medical services in order to prevent their re-victimization.

Legislation

The Revised Criminal Code of the Federal Democratic Republic of Ethiopia (2004)

Abortion and reproductive health rights, Domestic and intimate partner violence, Female genital mutilation or female genital cutting, Forced and early marriage, Gender-based violence in general, Harmful traditional practices, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

The Ethiopian Criminal Code criminalizes most forms of violence against women and girls including physical violence within marriage or cohabitation (Article 564), Female Genital Mutilation/ Circumcision (Articles 565-6), trafficking women (Article 597), rape (Articles 620-28), prostitution/exploitation of another for financial gain (Article 634), and early marriage (Article 648). The Criminal Code outlaws abortion, except in cases of rape or incest, risk to the life of the mother or fetus, severe or incurable disease or birth defect, a mother who is mentally or physically incapable of raising a child, or “grave and imminent danger” that can only be addressed by terminating the pregnancy.

Reports

2010 Trafficking in Persons Report (2010)

Sexual violence and rape, Trafficking in persons

The U.S. State Department's 10th annual Trafficking in Persons Report covers the status of efforts against human trafficking in countries around the world, including the United States, and highlights key trends in human trafficking.

Trafficking for sexual exploitation: Victim protection in international and domestic asylum law (2011)

Sexual violence and rape, Trafficking in persons

Research Paper No. 206 by Tyler Marie Christensen for the United Nations High Commissioner for Refugees (April, 2011).

Articles

The United Nations Responses to the Sexual Abuse and Exploitation of Women and Girls by Peacekeepers during Peacekeeping Missions (2008)

Sexual violence and rape