This is an appeal against the decision of the High Court of Kota Kinabalu that had affirmed the sentences imposed by the Sessions Court of Kota Kinabalu on the Appellant. At the Sessions Court, the Appellant was charged with the 3 counts of rape of a fifteen-year-old girl, and at the conclusion of the trial, the Sessions Court found him guilty of attempted rape on the first count; and guilty of the offences of rape on the remaining 2 counts. The Sessions Court sentenced him to 4 years’ imprisonment for the first charge, and 11 years’ imprisonment for the other charges, all of which were to run consecutively. The Appellant stated in his appeal, as mitigation factors, that the victim and the Appellant were lovers, and that the sexual acts were consensual, that the complainant at the time of the commission of the offenses was almost 16 years old, and that the complainant has had sexual experiences with other men previously. The Court of Appeal held that the punishment imposed by the Sessions Court was fair and commensurate with the seriousness of the offenses committed by the Appellant, and the sentences were affirmed. In addition, the Appellant’s statement that the victim and the Appellant were lovers, and that the sexual acts were consensual were not deemed as mitigating factors by the Court since the victim was a minor, and the Appellant was 25 years old. In addition, the Court of Appeal stated that the Appellant’s claim that the victim had sexual experiences with other men was mischievous, irrelevant to the case, and far from attracting the sympathy of the Court, and was viewed by the Court as a lack of remorse by the Appellant with respect to his crime.
Women and Justice: Keywords
Domestic Case Law
Peilis Bin Sami (Appellant) v. Public Prosecutor (Respondent) Court of Appeal Sitting at Kota Kinabalu, Sabah (2012)
Seif Mohamed El-Abadan V. The Republic Court of Appeal of Tanzania at Tanga (2009)
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.”
Public Prosecutor v. Sapar Bin Badau Intermediate Court of Brunei (1995)
The defendant was charged with two charges of rape of his daughter, under section 375 of the Penal Code. According to the complainant, her father first raped her when she was 12 years old and he raped her about 9 to 12 times in a month. The court found that the evidence did not support the complainant’s allegation that she was raped by the defendant, and that her evidence was uncorroborated. The court further found that the complainant had not been telling the truth in several instances, which made her evidence questionable. The court highlighted that, although the complainant claimed she was raped about 500 times by her father since 1989, nobody ever saw the parties together in one of their rooms, nor the complainant in a distressed condition. The court found it dangerous to convict the defendant by relying solely on the uncorroborated evidence of the complainant. The court acquitted the defendant of the two charges and discharged him.
United States v. Sawyer, 733 F.3d 228 (7th Cir. 2013) Court of Appeals Seventh District (2013)
Defendant Datqun Sawyer was convicted of sex trafficking in violation 18 U.S.C. § 1591(a). On appeal, Sawyer admitted to forcing at least seven teenage girls he knew to be minors to work as prostitutes for his benefit but challenged his conviction on grounds that the jury was improperly instructed. Sawyer argued that the jury should have been instructed to acquit if the Government did not prove beyond a reasonable doubt that he knew or intended his criminal conduct to affect interstate commerce. The Court held that the clause in 18 U.S.C. § 1591 requiring the defendant’s conduct to affect interstate commerce merely establishes the basis for Congress’s power to legislate and is not subject to any mens rea requirement. The Court explained it would be unreasonable for Congress to limit its enforcement ability to the “trifling number” of sex-traffickers who know or intend their conduct to impact interstate or international commerce as understood under Constitutional law. As such, the Court held that a conviction under 18 U.S.C. § 1591(a) does not require proof of the defendant’s knowledge of the implications of his conduct on interstate commerce.
HKSAR v. KKK High Court of the Hong Kong Special Administrative Region Court of First Instance (2011)
Defendant, a male, was charged with six counts of rape and one count of indecent conduct towards a child under the age of 16. All the crimes were committed against Defendant’s three daughters. Defendant pled guilty to all charges. The victim of four charges of rape was his eldest daughter, whose rapes occurred over a three year period, when she was between 12 and 14. The other two rape charges occurred against a younger daughter, who is a twin, when she was 10 and 11. The other twin girl was the victim of the indecent conduct charge. One rape of the eldest daughter took place in the presence of her mother, who was also naked, adding to the humiliation and dominance that Defendant was attempting to exude. The eldest daughter even became pregnant as a result of one of the rapes and was forced to have an abortion, while only being 14 years old. The Court sentenced Defendant to 23 years and seven months’ imprisonment. It analyzed the cold and callousness with which Defendant committed his crimes and the seriousness of the crimes. The Court described Defendant’s crimes as “horrific,” noting that Defendant “treat[ed] his children as though they were less than human, as just sexual objects who existed solely to satisfy his lust . . . .” The Court further stated that “language seems quite a poor medium for conveying the depth of feeling that these crimes generate. Words such as ‘revulsion’ and ‘despicable’ seem quite inadequate in expressing the court’s and society’s denunciation of his conduct. . . . [W]hat this defendant did is wholly contrary to the values by which Hong Kong people live and the courts will reflect and affirm that fact by not just making statements condemning that conduct but by imposing sentences sufficiently severe and substantial to protect and preserve those values.”
Marwa v. Republic Court of Appeal of Tanzania (2008)
A secondary school teacher, convicted of raping a student and sentenced to thirty years imprisonment, appealed for the second time on the grounds that he had been framed. The Court found no justification for doubting the evidence of the witness, especially as the results from the medical examination corroborated her testimony. The Court also noted that his claim of being framed was insupportable, as there was no justification for the other witnesses to lie against him. Finally, the Court pointed out that the lack of an order for compensation offended the mandatory provisions of Section 13(1) of the Penal Code. The appeal was dismissed and the teacher ordered to pay shs. 500 000 in compensation to the student.
CDB v. DJE Wyoming Supreme Court (2005)
After pleading guilty, appellant-father was convicted of several counts of sexually abusing his daughter. Appellee-mother filed a petition to terminate father’s parental rights to the daughter, and the District Court terminated his parental rights pursuant to Wyo. Stat. Ann. § 14-2-309(a)(iii) and (a)(iv). The Supreme Court of Wyoming upheld the decision. In terminating appellant-father’s parental rights, the Supreme Court held that the fact of incarceration, by itself, is not per se evidence of unfitness. However, incarceration is a reality that severely impacts the parent-child relationship and, therefore, cannot be ignored. The length of appellant’s incarceration of 47 years makes it extremely improbable that appellant would ever be able to care for the ongoing physical, mental or emotional needs of the daughter. Most importantly, appellant was convicted on several counts of sexually abusing his daughter, and there can be nothing that makes a parent more intrinsically unfit than abusing his child.
Commonwealth v. Kerrigan Superior Court of Pennsylvania (2007)
Daniel Kerrigan sexually abused A.R., the 7-year-old daughter of his live-in girlfriend, for 3 years. The abuse was discovered when A.R. was diagnosed with genital warts when she was 10 years old. The court held that the transmission of HPV and genital warts satisfies the serious bodily injury requirement of the crimes of Rape of Child (Serious Bodily Injury) and Involuntary Deviate Sexual Intercourse with a Child (Serious Bodily Injury) because HPV is a permanent disease, can lead to cervical cancer, and may be transmitted to A.R.’s future sexual partners or children.
Oscar Eugenio Paniagua Batochi s/ Coacción Sexual en San Juan Neponuceno Sala de Acuerdos los Señores Ministros de la Excelentísima Corte Suprema de Justicia Sala Penal (2005)
The Supreme Court, Penal division, upheld the conviction of a defendant who raped his stepdaughter under threat of death or grievous injury. The Court held that the conviction was consistent with Article 54 of the National Constitution, Article 19 of the American Convention on Human Rights ("Pact of San Jose"), Article 24 of the International Pact of Civil and Political Rights, Article 19 of the Convention on the Rights of the Child, Article 3 of the Code of Children and Adolescents, and Article 1 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women.
La Corte Suprema, División Penal, confirmó la condena de un acusado que violó a su hijastra bajo amenaza de muerte o lesiones graves. La Corte sostuvo que la condena era compatible con el Artículo 54 de la Constitución Nacional, el Artículo 19 de la Convención Americana sobre Derechos Humanos ("Pacto de San José"), el Artículo 24 del Pacto Internacional de Derechos Civiles y Políticos, el Artículo 19 del Convención sobre los Derechos del Niño, Artículo 3 del Código de la Niñez y Adolescencia y el Artículo 1 de la Convención Interamericana para Prevenir, Sancionar y Erradicar la Violencia contra la Mujer.
International Case Law
L.C. v. Peru CEDAW Committee (2011)
An 11-year-old girl was repeatedly raped by a 34-year-old man. As a result, she became pregnant and consequently attempted to commit suicide by jumping from a building. She survived the suicide attempt but sustained serious injuries which required emergency surgery. The hospital declined to perform the surgery based on the risk posed to the pregnancy, and refused to perform an abortion despite that therapeutic abortion is legal in Peru and that the pregnancy posed a danger to her physical and mental health. As a consequence, she was completely paralyzed from the neck down. The Center for Reproductive Rights and the Center for the Promotion and Defense of Sexual and Reproductive Rights filed a human rights petition on behalf of her against Peru before CEDAW alleging violations of Articles 1, 2 (c) and (f), 3, 5, 12 and 16 (e) of CEDAW by failing to implement measures that guarantee a woman’s ability to obtain essential reproductive health services in a timely manner. The Committee upheld the claim and asked Peru to provide L.C. reparation, including physical and mental rehabilitation, and issue necessary measures so that no other woman is denied her right to comprehensive healthcare and therapeutic abortion. This decision demonstrate a willingness on the part of the CEDAW to view the denial of reproductive rights as a discrimination issue and is flagged as an innovative juridical resource for reforming abortion laws.
Reports
"They are Destroying Our Futures" Sexual Violence Against Girls in Zambia's Schools (2012)
A report by the Avon Global Center for Women and Justice at Cornell Law School, Women and Law in Southern Africa-Zambia, and the Cornell Law School International Human Rights Clinic examining the problem of sexual violence against girls in school in Zambia.