This module is a resource for lecturers
Case study 1: Reforming the defence of provocation
In England and Wales, as well as other common law jurisdictions, provocation as a defence to murder has long caused controversy. On the one hand, the defence readily accommodated the contexts within which jealous and controlling men killed women who were leaving them or had committed infidelity. On the other hand, the defence largely failed to accommodate the desperate experiences of women who killed a long-term abusive male partner. In 2010, the defence of provocation was replaced by a new partial defence of loss of control, with the aim to ensure that evidence of sexual infidelity does not provide the basis for reducing the culpability or punishment for murder.
"One of the first cases to test the boundaries of the sexual infidelity provision was that of Jon Jacques Clinton. Clinton killed his wife in November 2010 after she allegedly admitted to having sex with multiple men and sniggered at the prospect of Clinton committing suicide as a result of their relationship breakdown. Clinton had previously discovered messages on his wife's Facebook profile containing sexual innuendos and discovered that her personal status was listed on Facebook as 'separated'. It was these images, her listed status as well as her alleged admissions of sexual infidelity that Clinton argued led to his loss of self-control and use of lethal violence. Clinton was convicted of murder as the trial judge determined that, given the new requirement to exclude evidence of sexual infidelity as a basis for a plea of loss of control, there was no other evidence to justify leaving the partial defence for the jury to consider. On appeal, however, the Court of Appeal held that the provision does not wholly exclude evidence of sexual infidelity as irrelevant, where a defendant raises a plea of loss of control. The court stated that where sexual infidelity evidence is one part of a wider and more complex 'provocation narrative', the defendant can still raise a plea of loss of control. It will be where evidence of sexual infidelity is the sole basis for a plea of loss of self-control that the partial defence must fail. The decision in Clinton has since raised concerns as to the ongoing likelihood of 'jealous man' defences continuing to have credence in English law."
Source: Fitz-Gibbon, Kate, and Horder, Jeremy (2015). Five years after the end of provocation, jealous male killers still receive leniency. London: The Conversation.
Case study 2: The case of Y - an account of a public defender
"I was assigned to defend Y, a 40-year-old woman earlier this year. She was detained after her partner X - who was a 45-year-old man, well-trained and twice her weight - had called the police to report that she had caused him a wound in his back with a knife. Before her first appearance in court, when we had our first interview, she told me that she had caused that injury in self-defense, after a new attack from her drunk partner. She mentioned having gone at least three times in the last few years to the same police station to report gender-based violence but, despite this, she had never received any protection from the State. The previous night, after an argument because he wanted to have sex when he arrived home drunk and she refused, he had threatened her to go to find some ropes to tie and force her to do it. She told me - and then stated before the judge - she had felt scared, so her only reaction to prevent him from doing that, was to take a small knife from the kitchen and stab him.
In the hearing, I asked for the dismissal of the case based on her statement and the information about the previous violent situations she had reported in the past, which I asked the judge to certify. The judge rejected the dismissal, arguing that she didn´t have any witnesses to prove her 'story' and that she didn´t have any injury -as he did- so the self-defense clause wasn´t applicable. In my country, the clause of self-defense, which keeps the original wording of the Criminal Code (dating back to the early 20 th century), requires the defense to be contemporary to the attack. This requirement is usually not adequate to respond to prolonged gender-based violent situations, where the attack against the woman may not be contemporary, but the general context and the background may justify her action, as I believe was the case here.
I asked that decision to be reviewed by the Court of Appeals. Before the hearing, I asked a specialized section of our office, the Commission on Gender Issues, to produce a report about the situation of Y. The experts of its staff analyzed in detail all the previous situations of violence she had reported and the (lack of) responses from the criminal justice system, concluding that she was in a condition of 'permanent risk' and that when she defended that Saturday night, regardless of whether the attack against her was happening or not at that precise moment, she was defending herself from a long-term gender violence of which she had been victim. I also prepared an in-depth study of international and regional human rights-based standards regarding gender-based violence and States duties to address it which I believed would support my argument. The Court of Appeals, after analyzing the report and the arguments of my appeal motion, which the three judges shared, overruled the first instance judge's decision and dismissed the case against Y."
Source: Presentation by a participant at the UNODC Expert Group Meeting on The Quality of Legal Aid Services in Criminal Justice Systems, Vienna, 26-28 September 2018.
Case study 3: The pains of imprisonment for incarcerated mothers
Gabi is an indigenous woman sentenced to ten years in prison for drug trafficking in Mexico.
"At that time, it seemed an honest job to me because I could feed my children. Marihuana was brought to our village, so we had to clean it and pack it. People in our community are happy when they can work on this kind of jobs; even children and eldest people are involved. In our community there is no any other means to make a living. For us it was like if we were selling bread".
When Gabi was imprisoned, her children were left without protection. One of them remained under the custody of an aunt and the remaining two were hosted by governmental authorities.
"I see my son just once in a week, and despite the fact that the visits are very short, I am really happy when I see him".
"Having my son in jail was very hard, mainly because of the food. At some point, a person from the public authorities asked me whether I wanted my son to be sent to a public custody centre where he could be well treated, since my son suffers from cerebral paralysis. That made me hesitate a lot and it was something that concerned me. I did not want to be away from him, but I knew it would be positive".
"Some of my mates here in jail have been bailed, however I cannot seek such measure because I committed a federal crime. I tried to explain to them that if they let me stay out of jail with my son I would not run away. My son is sick, so he needs health care attention and I would not become a fugitive while my son is sick"
Orfa is a Guatemalan national woman who was arrested in Mexico for cocaine trafficking while she was carrying her baby.
"The lady from immigration told me that they were going to take my child away from me". In Mexico, children under three years old can stay in jail with their mothers.
"I always try to smile whenever I am talking to my family through the phone; I do not want them to realize that I am sad. I won't be here forever".
"I have learnt many things regarding violence against women, and it is something I would like to help other women to overcome, so they can learn from my experience".
Source: The Stories of Women Incarcerated for Drug Related Crimes (2018). Produced by the Washington Office on Latin American and Equis: Justicia para las mujeres.
Case study 4: Miguel Castro-Castro Prison vs. Peru
Peru witnessed its bloodiest internal armed conflict in 1980-2000 between the State and the communist armed group Sendero Luminoso (Shining Path), which aimed to overthrow the Government and set up a communist regime. As a consequence of the conflict, hundreds of Shining Path members were incarcerated in prisons spread around the Andean country.
In 1992, Alberto Fujimori led a coup d'état, shutting down the national Congress and setting out the war against Shining Path as a priority of his Government. Following the coup d'état, human rights violations were enacted to stem subversion, including in prisons were Shining Path supporters were incarcerated.
In this context, the Fujimori Government launched the 'Operative Transfer 1', with the ostensible aim of transferring 135 women inmates incarcerated at Block 1-A of Miguel Castro Castro Prison, who had been accused or sentenced for terrorism and membership of the terrorist group Shining Path.
For three days in May 1992, the police and special units of the Peruvian army, bombarded Block 1-A of the Prison as well as Bock 4-B, which held male detainees, to prevent the women from fleeing to this block.
41 persons were killed and 185 were injured. The surviving female detainees were subsequently subjected to various forms of torture and sexual violence. The case was brought before the Inter-American Court of Human Rights (IACHR), which recorded the following forms of torture and sexual violence: rapes; vaginal revisions without any medical care and undertaken by male police agents; threats regarding sexual acts; insults with violent sexual connotations; physical shocks against pregnant women; solitary confinement for months; use of forced nakedness; and denial of feminine hygiene products.
The IACHR concluded that the real aim of the Operative was not to transfer prisoners and, rather, the Operative constituted an attempt on the lives of defenceless detainees. In its judgment, the IACHR pointed out that:
"[w]hen analysing the facts and their consequences, the Court will take into account that the women were affected by the acts of violence differently than the men, that some acts of violence were directed specifically toward the women and others affected them in greater proportion than the men."
During the proceedings, victims and their families testified before the IACHR and gave the following statements, as reflected in the IACHR's judgment:
Eva Sofia Challco Hurtado was seven months pregnant at the time of the facts. After the military intervention, she was handcuffed and forced to lie on the floor for hours, along with other women 'that were bleeding and wet', where she was kicked despite her pregnancy.
In June 1992, she gave birth to a premature baby in the Hospital of Ica. Due to the constant threats against her safety in the custodial facility, she requested her family to take care of her child, with whom she had only stayed for five days. The experience she endured has had effects on her son's health: he suffers from alterations to his nervous system, whereby he cannot resist strong emotions or feel happiness.
Madelein Escolástica Valle Rivera and several other prisoners, some of whom were pregnant, took refuge in pavilion 4-B the day of the facts. Prison snipers shot at them, and many prisoners died trying to reach pavilion 4-B.
The following day Madelein Escolástica Valle Riverawas transferred along with other inmates to the criminal centre of Cachiche in Ica. During her one year detention in this facility she was beaten by the police and, along with other female prisoners, suffered from direct harassment from the director of the criminal centre, who constantly threatened them and beat them when they performed their so-called 'inspections'.
Along with other injured persons, Nieves Miriam Rodríguez Peralta was transferred to a hospital after these events, where she was kept naked, covered only with a sheet. While in hospital women were watched over by three armed custodians, and the denied medical care. The denial of medical care led to the death of María Villegas. Another woman, Nieves Miriam, was repeatedly denied physical rehabilitation. After more than a year, she was taken to a specialized centre, where her atrophied muscles were diagnosed as irreversible.
Gaby Balcázar Medina was also transferred to the hospital, after the Operative, where she received neither medical attention or food. She was not allowed to bath, take care of her personal hygiene, or use the bathroom in private. She was also kept naked in front of armed soldiers. Gaby Balcázar Medina also declared that when she arrived at the Police Sanity Hospital, one of the female inmates was being subjected to a finger vaginal 'inspection', simultaneously performed, with extreme abruptness, by several hooded persons.
The legal representation of the victims stated in its Brief of Pleadings that "several women were seriously injured but were able to resist and arrive alive at the hospital, where they were raped by hooded individuals who were supposedly going to examine them upon their arrival. They were not offered any medical attention and some of them died as a consequence of that."
Source: Inter-American Court of Human Rights (2016). Miguel Castro-Castro Prison v. Peru.
Case study 5: Kainat's ordeal
In 2007, 13-year-old Kainat was sexually assaulted by four men in her rural village. Members of Kainat's own family ordered her to be killed to rid themselves of the perceived shame the attack had brought upon them, but the teenager's immediate relatives refused to turn their back on Kainat and vowed to support her as she took the step of fighting for justice in defiance of customary laws that have been in place for centuries … The years that have passed since Kainat's ordeal have proved no less difficult, with her family forced out of their village due to threats of violence. Her father and one of her brothers were beaten, while another brother was found murdered. Kainat's pursuit of her case through a legal system that places the burden of proof on the victim ended with her alleged attackers being acquitted.
Kainat and her family, who now live in a cramped two-bedroom apartment, say they have, "lost everything". "They told me I am not a real man", Kainat's brother, Sabir, explains ... "[that] you failed to follow your tradition, you failed to kill your sister".
[T]he judge described Kainat's accusations as, "a product of her own fantasy". Kainat's lawyer, who has handled several rape cases, recognizes the serious prejudice influencing the work of the courts: "the presumption is that the woman is a liar, that she is not very intelligent and her testimony is not worth its salt," he said. "If she belongs to a poor section of society, then it is double jeopardy".
Source: United Nations Special Representative of the Secretary-General (SRSG) on Violence against Children (2015). Safeguarding the rights of girls in the criminal justice system . New York: Office of the Special Representative of the Secretary-General on Violence against Children.
Case study 6: The specific vulnerability of girls in prison
'AS' was 14 years old when she ran away from home for two days, to be with an older man. For this act, which would not be criminal were she an adult, or if she were a boy, AS was sentenced to one year in maximum security adult penal facility. Here, she was detained with adult women who were convicted of serious offences.
From the first night of her detention, and throughout her six-month term in this facility, AS was the subject of sexual advances by an adult female prisoner. She was also the victim of physical and verbal abuse by correctional staff and other inmates.
After six months AS was transferred to a facility built to accommodate male inmates whose cases were before the court. There, she was locked into a ten by six-foot cell for twelve straight days and was only let out to bathe in the mornings and evenings. As with the previous prison, warders at this facility were very mean to prisoners, beating them with batons and mop sticks, and giving them advice on how to commit suicide. In this facility AS witnessed the suicide of a fellow inmate, who herself was beaten by male warders and whom she had befriended. AS fell into deep depression and was among three inmates who attempted suicide.
Source: Walker, Karyl (2013). Horror of a 14-year-old girl in prison: Teen runs away for two days, spends year locked away. Kingston: Jamaica Observer.
Case study 7: Tasty Nightclub Raid
In 1994, Police raided a nightclub that was known to be popular with members of the LGBTI community. An LGBTI activist, and a regular patron of the club, described 'Tasty' as follows:
"You went down a laneway and the thumping music would get louder. It was a place for gays, lesbians, trans people, drag queens, artists - it was a place for freaks!" (Van Houwelingen, cited in Di Pasquale, 2014).
The ostensible purpose for the raid was to search for drugs. Armed with firearms, police entered the nightclub, locked the doors, and detained 463 patrons for seven hours, during which patrons were stripped and subjected to intimate body searches.
The raid was the subject of a successful class action and, in 2014, nearly twenty years after the events took place, the police force involved issued a public apology to the LGBTI community, acknowledging that this had been "a very painful episode experienced by members of the LGBTI community".
This apology provided an opportunity to reflect on the important role that police can play in providing protection and access to justice for members of the LGBTI community, with the police force involved identifying that there is important work to be done in building trust, and in eliminating the discriminatory practices of the past:
"there's a lot of work that … needs to continue before we can claim to be an exemplar - an unimpeachable leader in this area. We know there is under reporting of homophobic, biphobic and transphobic incidents and offences. We understand that in order for these reporting rates to increase - the LGBTI community needs to have confidence their reports will be taken seriously and their complaints treated respectfully".
Among the measures taken to increase trust and confidence among LGBTI communities was the establishment of a LGBTI Portfolio Reference Group, comprising a large number of community organizations that represent the views and interests of LGBTI individuals.
Source: Victoria Police News, " Tasty Nightclub Apology", 5 August 2014; Victoria Police, Working with Community, 12 July 2018; Ron Van Houwelingen, cited in Chris Di Pasquale, "Remembering the Tasty nightclub raid 20 years on", Redflag, A Voice of Resistance, 14 August 2014.
Case study 8: Gender stereotypes and judicial decisions
"In Karen Tayag Vertido v. The Philippines, the CEDAW Committee considered how sexual stereotypes of both women and men had contributed to the decision of the trial judge to acquit Jose B. Custodio of raping Karen Tayag Vertido. In addition to examining stereotypes of women and how they had influenced the evaluation of Vertido's testimony, the Committee analysed the reasoning of the trial judge for implicit assumptions about men/masculinities. It was this detailed analysis, which led the Committee to conclude that the acquittal of the accused - a man in his sixties - had also been influenced by the stereotype that older men lack sexual prowess, the assumption being that they are not capable of rape."
Source: Cusack, Simone (2013). Gender Stereotyping as a Human Rights Violation Geneva: OHCHR, p. 23.
Case study 9: The rights of women prisoners
Source: Kilroy, Debbie (2005). Memoir: Power With Sisters Inside Griffith Review, Edition 3.
Case study 10: Gender stereotypes and victim testimony
A conviction of rape was upheld, on appeal, after the court challenged the stereotype that women are untruthful and therefore likely to fabricate allegations of sexual assault:
"It is noteworthy that the same caution is not required of the evidence of women and girls in other offences. Besides there is neither scientific proof nor research finding that we know of to show that women and girls will, as a general rule, give false testimony or fabricate cases against men in sexual offences. And yet courts have hitherto consistently held that in sexual offences testimony of women and girls should be treated differently."
Source: Kenyan Court of Appeal, Mukungu v. Republic  2 EA 482, paras. 11-14
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