By Keyword
Sexual Violence
Canada
R v. Ewanchuk, (February 25, 1999)
Supreme Court
Keywords: Sexual Violence
Brief Summary: This is an appeal from a dismissal against Ewanchuck for sexual assault. Although complainant made clear that Ewanchuk knew that she was afraid and an unwilling participant, the trial judge acquitted Ewanchuk on the defense of implied consent.
CEDAW: The Court recognized that having control over who touches one's body is at the heart of human dignity and autonomy. Justice L'Heureux-Dube held that CEDAW "requires respect for and observance of the human rights of women. Violence against women is as much a matter of equality as it is an offence against human dignity and a violation of human rights." Reliance on myths and stereotypes in order to deny a woman sexual autonomy is impermissible under CEDAW and the Canadian Charter of Rights and Freedoms.
Chan v. Canada (Minister of Employment and Immigration), (October 19, 1995)
Supreme Court
Keywords: Discrimination-Gender/Sex; Sexual Violence
Brief Summary: Appellant sought Convention refugee status based on the likelihood of her forced sterilization if she returned to China because of her breach of the one-child rule.
CEDAW: The Court accepted the premise that "the right...to decide freely and responsibly the number, spacing and timing of their children" was a basic human right recognized in international law in the ICCPR, and CEDAW to both of which Canada and China adhere.
Fiji
S v. Bechu, (December 2, 1999)
Magistrate's Court
Keywords: Discrimination-Gender/Sex; Sexual Violence
Brief Summary: Bechu was charged with rape of his former girlfriend contrary to ss 149 and 150 of the Fijian Penal Code. He admitted in a police interview that he had committed the offence and that he had done so because he was drunk. He pleaded not guilty on the grounds that he believed that the victim had consented to sexual intercourse.
CEDAW: The Court declared that women, being equal to men, must not be discriminated on the basis of gender. The holding chastised the lower Court, announcing: "Men should be aware of the provision of 'Convention on the Elimination of all forms of Discrimination against Women' (CEDAW), which our country had ratified in 1981. Under the Convention the State shall ensure that all forms of 'discrimination against women' must be eliminated at all costs. The Courts shall be the watchdog with this obligation. The old school of thoughts, that women were inferior to men; or part of your personal property, that can be discarded or treated unfairly at will, is now obsolete and no longer accepted by our society."
India
Sakshi v. Union of India & ORS, (May 26, 2004)
Supreme Court of India
Keywords: Sexual Violence-Sexual Abuse, Rape
Brief Summary: The case involved public interest litigation by a welfare organization concerning the India Penal Code's classification of various sexual offenses (namely those other than penile/vaginal penetration) as lesser offenses. The Court ultimately refused to strike down the provision but suggested that the legislature ought to respond to the problem.
CEDAW: The appellants referred to several conventions, including CEDAW, which were ratified by the state. Such ratification had "created a legitimate expectation" that the State would adhere to its international commitments. The existing interpretation of rape, sought to be imposed by the respondent authorities, was in complete violation of such International commitments as have been upheld by the court.
Full Text [No Link as of yet (LEXIS ONLY)]
South Africa
Camichele v. Minister of Safety and Security and Another, (August 16, 2001)
Constitutional Court
Keywords:Sexual Violence; Procedural Issues
Brief Summary: This began as an assault case. The present case deals with the duty of care police and prosecuting authorities owe to the victim of assault. The court failed to find a "special relationship between the prosecutor and plaintiff so that the breach of such duty would expose the plaintiff to a particular risk of harm different" than that posed to the general public
CEDAW: The court, in acknowledging South Africa's duty under international law to prohibit gender-based discrimination, cited CEDAW in a footnote and the language which sets forth private liability for failure to act. ("States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.")
International Courts
Kunarac, Kovac and Vukovic, (February 22, 2001)
ICTY
Keywords: Sexual Violence
Brief Summary: The Indictment charges both Dragoljub Kunarac and Radomir Kovac with enslavement as a crime against humanity under Article 5(c) of the Statute. The Tribunal had to determine what constitutes "enslavement" as a crime against humanity as it relates solely to the treatment of women and children and certain allegations of forced or compulsory labor or service.
CEDAW: The Tribunal took into consideration the 1979 Convention on the Elimination of All Forms of Discrimination against Women ("CEDAW"), which includes the obligation that states parties suppress "all forms of traffic in women and exploitation of prostitution of women" as well as the 1989 Convention on the Rights of the Child also specifically forbids trafficking in children. Unlike the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, the afore-mentioned treaties do not require a link between trafficking and prostitution.