Women and Justice: Keywords

Domestic Case Law

TC/0003/17 Constitutional Court (2017)

Femicide, Gender discrimination, Gender-based violence in general, International law, Sexual violence and rape

Due to the increase of femicide crimes in the Dominican society, the Constitutional Court proclaimed the termination of violence against women in all its forms as it is a violation of the Constitution. The proclamation was made in commemoration of the murder of Mirabal, Minerva, Patria and María Teresa, political opponents of the regime of Rafael Trujillo, and in accordance with the international agreements executed in defense of women's rights, as well as the laws issued against gender violence, sexual violence and femicide.

Debido al aumento de los delitos de femicidio en la sociedad dominicana, el Tribunal Constitucional proclamó el cese de la violencia contra la mujer en todas sus formas, incluyéndolo como una forma de violación de la Constitución. Dicha proclamación se realizó en conmemoración del asesinato de Mirabal, Minerva, Patria, y María Teresa, quienes fueron opositores políticos del régimen de Rafael Trujillo. La proclamación está en conformidad con los acuerdos internacionales celebrados en defensa de los derechos de las mujeres y con las leyes emitidas contra la violencia basada en género sexual, violencia sexual en sí, y femicidio.

Mandla Mlondlozi Mendlula v. Rex Supreme Court of Swaziland (2013)

Femicide, Gender-based violence in general

Appellant was convicted of murdering his girlfriend and sentenced to 20 years imprisonment. Appellant appealed that the sentence was too harsh and severe and that it induced a sense of shock. Appellant presented mitigating factors that he was married with four minor children to support, the sole breadwinner, a first offender, and deserved to be given a second chance in life. The Supreme Court dismissed the appeal after considering the interest of society, the seriousness of the offense, the fact that the crime was premeditated, and the fact that the killing was gruesome and brutal. The Supreme Court further stated that sentence was fair “particularly in the upsurge in the killing of women as well as the need to impose deterrent sentences which would provide the safeguard against this onslaught.”

Somiso Mbhamali v. Rex Supreme Court of Swaziland (2013)

Femicide, Gender-based violence in general

Appellant was sentenced to 20 years imprisonment for the murder of his elderly aunt and appealed for 10 years of his sentence to be suspended because the appellant believed the victim was a witch and could kill him with the power of witchcraft. The Supreme Court upheld the original sentence and held that a perpetrator’s belief in witchcraft is not a mitigating factor when computing an appropriate sentence for murder. While a genuine belief in witchcraft could be treated as an extenuating circumstance in certain instances, murder committed because of a belief in witchcraft would not be mitigated by the belief.

Bheki Amos Mkhaliphi v. Rex High Court of Swaziland (2013)

Gender-based violence in general

Appellant convicted of murdering a woman and sentenced to 18 years imprisonment. Appellant appealed the verdict and sentence, claiming that he did not possess the requisite intent to kill and mitigating circumstances that he was 35-years old, a first offender, gainfully employed and a breadwinner supporting two children should reduce his sentence. The High Court dismissed his appeal finding that the stab wounds to the victim demonstrated intent to kill and that the mitigating circumstances were properly weighed when the sentence was determined. The Court further stated, “Violence against women is a matter of great concern to the community at large and sentences imposed on perpetrators should reflect its rightful indignation at such crimes.”

Case Number E.1999/35, K.2002/104 Constitutional Court of Turkey (2002)

Domestic and intimate partner violence, Gender-based violence in general

The Constitutional Court found that the legislature could take necessary measures to reduce violence within families. Articles 1.1 of the Law on the Protection of the Family allows judges to take measures against one spouse, not both, and not against the children or members of the family, if a spouse has subjected another family member to domestic violence. The Gulyaly Peace Court found that because the Articles did not provide for an injunction or penalty if a child committed a violent act, rather than a spouse or parent, the Articles violated the principle of equality. Relying on Article 41 of the Turkish Constitution, which focuses on the family as the foundation of Turkish Society and gives the legislature the power to protect the family unit, the Constitutional Court found that Article 1.1 does not violate the Constitution because it protects the family unit and ensures peace within a family unit. The Court also found that the provision did not violate the Turkish equality principle, because the legal status of spouses differs from that of other family members and just cause exists to treat such groups differently.

Erdogu v. Canada Federal Court of Canada (2008)

Gender-based violence in general, Honor crimes (or honour crimes)

Ms. Erdogu, a Turkish national, fled to Canada and filed a claim for refugee protection to escape persecution for her political and religious activity in Turkey. Because she was both an ethnic and religious minority (Kurdish/Alevi), she was arrested in Turkey on a number of occasions, during which she was detained, interrogated, beaten, and sexually molested. Further, she claimed to be at risk because a violent ex-boyfriend had informed her father of the former couple’s sexual relationship, leading her father to declare his intent to kill her in order to preserve the family’s honor. Ms. Erdogu’s application was denied, and she applied for judicial review of that decision. The judge noted that the documentary evidence clearly demonstrated continuing problems with the Turkish government’s efforts to address the issue of honor killings, finding that the officer who had made the initial decision on Ms. Erdogu’s case had failed to consider such evidence. Because of the high risk of honor killing that Ms. Erdogu faced, and due to the officer’s failure to justify his denial of her initial application for protection, the judge ruled that judicial review would be allowed, and that the decision on Ms. Erdogu’s application was to be set aside and redetermined by another officer.

In re Civil Commitment of S.S. New Jersey Superior Court (2011)

Sexual violence and rape

Here, the court affirmed a judgment involuntarily committing the petitioner to a Special Treatment Unit as a sexually violent predator under the Sexually Violent Predator Act (N.J.S.A. 30:4-27.24). Under this act, the state must prove by clear and convincing evidence that an alleged offender is a “sexually violent predator and currently suffers from a mental abnormality or personality disorder that makes him highly likely to engage in acts of sexual violence if not confined.” In this case, the defendant had been indicted for aggravated sexual assault of five pre-teen females, five counts of kidnapping, two counts of terroristic threats, two counts of robbery, two counts of unlawful possession of a weapon, and two counts of possession of a weapon for an unlawful purpose. The court found that the state’s use of expert testimony that the petitioner’s condition predisposed him to sexual violence established by clear and convincing evidence that he is a high risk to re-offend unless confined.

International Case Law

Sandra Jankovic v. Croatia European Court of Human Rights (2009)

Gender-based violence in general

The applicant brought a claim in Split Municipal Court for protection against being disturbed in occupying her room. After years the applicant finally gained possession of the room and then was assaulted by several individuals. Although the applicant tried to get a criminal case brought, it was dismissed by the domestic courts. She then brought a complaint relying on Articles 3 and 8 of the Convention before this Court. The applicant argued that the national authorities failed to afford her adequate protection against violence inflicted by private individuals, which was an Article 8 violation. The Court agreed that Article 8 applied due to the circumstances under which she had been attacked and found that Article 8 had been violated due to the delay of the authorities in prosecuting the crime.

Reports

Avon Global Center 2013 Women and Justice Conference Report (2014)

Acid violence, Gender discrimination, Female genital mutilation or female genital cutting, Harmful traditional practices, Gender violence in conflict, Forced and early marriage, Gender-based violence in general

In December 2013, the Avon Global Center hosted its annual conference in New York, NY on "State Responsibility to End Violence Against Women: The Due Diligence Principle and the Role of Judges."

Special Rapporteur on Violence Against Women Thematic Report (2010)

Gender-based violence in general

Special Rapporteur on Violence Against Women, Its Causes and Consequences submitted a thematic report on reparations to women subjected to violence in conflict and post-conflict. April 19, 2010.

Charts

Analysis of Jurisprudence Involving Sexual and other Gender-Based Violence During Conflict (2010)

Gender-based violence in general

This chart summarizes and analyzes gender-based violence cases before international war crimes tribunals and special courts.

Articles

Access to International Criminal Justice for Victims of Violence Against Women Under International Family Law (2009)

Gender-based violence in general

Mohamed Y. Mattar, 23 EMORY INT'L L. REV. 141 (2009).