United Kingdom (2004), England and Wales Court of Appeal

United Kingdom (2004), England and Wales Court of Appeal

P & M v. Secretary of State for Home Department
[2004] EWCA Civ 1640

The first appellant sought asylum in the United Kingdom because she feared that she would be subject to domestic violence in a state where authorities tolerate violence against women. The second appellant appealed for asylum based on the fear that she would be subjected to female genital mutilation. Although the Court granted both requests for asylum, it specified that not all cases of either domestic violence or FGM would necessarily qualify for protection.

“Both P and M contend that there is a lack of state protection of women in Kenya that amounts to discrimination that is due to entrenched societal attitudes towards Kenyan woman... P was entitled to asylum in this country because…of the violence that both she and her children had suffered over the years at the hands of her husband...for her to be returned to Kenya would contravene… Articles 3 and 8 of the ECHR.” (Quoted form Original Judgment)

Australia (2002), High Court

Australia (2002), High Court

Minister for Immigration and Multicultural Affairs v. Khawar
[2002] HCA 14 S128/2001

The woman seeking asylum claimed that Pakistan failed to provide protection against domestic violence, which constitutes a form persecution. The Court found failure to protect can be considered persecution if the criminal conduct of private citizens is condoned by the state.

“Ms Khawar's case is that she was a victim of serious and prolonged domestic violence on the part of her husband and members of his family, that the police in Pakistan refused to enforce the law against such violence or otherwise offer her protection, and that such refusal is part of systematic discrimination against women which is both tolerated and sanctioned by the state.”(Quoted form Original Judgment)

Botswana (2007), High Court

Botswana (2007), High Court

Masusu v. Masusu
(CAHLB-000001-07) [2007] BWHC 149 (6 July 2007)

The appellant appealed a decision made by the Customary Court of Appeal, which granted the marital home to her husband. The High Court found that the Tswana law discriminated against women by automatically faulting the wife for filing a divorce. The Court ordered the home be sold and the profits given to the wife.

“There is, in this country a supreme law, namely the Constitution, and it grants all persons both equality before the law and equal protection of the law. The suggestion that a woman can be punished by being denied a portion of the matrimonial property just because she failed to tolerate her husband’s intolerable behaviour is totally unacceptable… Notions may well be part of Customary law… but all laws must tested against the Constitution and if found wanting, they must be struck down.” (Quoted form Original Judgment)

Bulgaria (2008), European Court of Human Rights

Bulgaria (2008), European Court of Human Rights

Bevacqua and S. v. Bulgaria
Application no. 71127/01 (Sect. 5) (Eng)

The appellant-wife was subject to domestic violence at the hands of her husband, and filed for divorce and custody of their child. However, authorities were slow in processing the case, and the woman and her son lived in constant fear of harassment by the husband over the course of the proceedings. The Court found that Bulgaria violated Article 8 of the ECHR.

“The Court observes that because of its very nature and purpose, an application for interim custody measures must normally be treated with a certain degree of priority…the cumulative effects of the District Court’s failure to adopt interim custody measures without delay in a situation which affected adversely the applicants...and the lack of sufficient measures by the authorities during the same period in reaction to Mr N.’s behaviour amounted to a failure to assist the applicants contrary to the State positive obligations under Article 8 of the Convention to secure respect for their private and family life.” (Quoted form Original Judgment)

United Kingdom (2007), European Court of Human Rights

United Kingdom (2007), European Court of Human Rights

C. v. the United Kingdom
Application no. 45773/99 (Sect. 4) (Eng)

In this case, the appellant-mother had had her children removed from her care. The children were taken away while they were with their mother at an emergency shelter facility, following a domestic violence incident. Subsequently, the appellant filed an application under the Human Rights Act 1998 seeking the children's return home.

“The High Court judge ruled on outstanding applications. The orders freeing for adoption were revoked by consent and an interim care order was made in favor of the local authority with a care plan reuniting the applicant and the children.” (Quoted form Original Judgment)

Bosnia & Herzegovina (2007), European Court of Human Rights

Bosnia & Herzegovina (2007), European Court of Human Rights

Šobota-Gajić v. Bosnia and Herzegovina
Application no. 27966/06 (Sect. 4) (Eng)

Despite having several rulings in her favour, national authorities failed to facilitate the applicant’s reunion with her son. Thus, she alleged that the State violated Article 8 of the Protection of Human Rights and Fundamental Freedoms.

“In this context, the Court has repeatedly held that Article 8 (Convention for the Protection of Human Rights and Fundamental Freedoms) includes a right for parents to have measures taken that will permit them to be reunited with their children and an obligation on the national authorities to take such action… the Court also reiterates that, in a case like the present one, the adequacy of a measure is to be judged by the swiftness of its implementation as the passage of time can have irremediable consequences for relations between the children and the parent who does not live with them.”(Quoted form Original Judgment)

United Kingdom (2007), England and Wales Court of Appeal

United Kingdom (2007), England and Wales Court of Appeal

Patel v. Patel
[2007] EWCA Civ 384

The appellant argued that the sentence he received for violating his committal order was excessively harsh, and sought to reduce the penalty. However, the judge rejected this argument on the grounds that the cumulative effect of the appellant’s violent behaviour against his wife and children warranted the punishment.

“The case is one in which the history was manifestly serious and relevant. The husband's denial of the breaches and total absence of any remorse was also relevant...Two things make the November incidents considerably more serious. The first is the cumulative effect of the successive incidents and the second, above all, is the fact that the wife was entitled in November to regard herself as under the protection of the suspended committal order imposed in October, for which the husband plainly had not the slightest regard.” (Quoted form Original Judgment)

Botswana (2007), Court of Appeal

Botswana (2007), Court of Appeal

Sekoto v. Director of Public Prosecutions
(CLCB -037-06) [2007] BWCH 12 (25 January 2007)

The appellant appealed his conviction for the murder of his live-in girlfriend and his sentence of 12 years imprisonment. The Court upheld the sentence, noting the increasing incidence in Botswana of former lovers killing their partners and affirming that the courts should impose appropriately stiff sentences as a deterrent.

“The growing phenomenon of jilted lovers killing their partners is fast becoming a nightmare in this country…the point that the courts must play their part in stamping out this phenomenon… cannot be stressed strongly enough. The deceased was brutally murdered simply because she sought to exercise her right to terminate her relationship with the appellant and because she sought to exercise her choice of finding a new lover.” (Quoted form Original Judgment)

South Africa (2005), Constitutional Court

South Africa (2005), Constitutional Court

Omar v. Government of the Republic of South Africa and Others
(CCT 47/04) [2005] ZACC 17; 2006 (2) BCLR 253 (CC); 2006 (2) SA 289 (CC) (7 November 2005)

The appellant alleged that section 8 of the Domestic Violence Act 116 of 1998 was unconstitutional. On appeal, the Court held that this section does not violate the rights of access to the courts but rather serves to provide a mechanism to ensure compliance with protection orders.

“This matter deals with the constitutionality of section 8, measured against the rights to freedom and security of the person, a fair trial and access to courts, as protected in the Constitution... The context and purpose of the Act is again relevant in this regard… the complainant needs immediate protection by the police. There is no time once again to approach a court…The provision in section 8 for a warrant of arrest linked to the issuing of a protection order is clearly intended to provide a mechanism to ensure compliance with protection orders and to protect complainants against further domestic violence.” (Quoted form Original Judgment)

Turkey (2009), European Court of Human Rights

Turkey (2009), European Court of Human Rights

Opuz v. Turkey
Application no. 33401/02

The applicant argued that Turkish authorities failed to protect her and her mother from domestic violence, which ultimately resulted in the death of the latter. The ECHR held that Turkey violated Articles 2, 3, 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and ordered the state to pay the victim non-pecuniary damages and costs.

“The applicant has been able to show… that the domestic violence affected mainly women and that the general and discriminatory judicial passivity in Turkey created a climate that was conducive to domestic violence…the State's failure to protect women against domestic violence breaches their right to equal protection of the law.” (Quoted form Original Judgment)

United States (2005), Inter-American Commission on Human Rights

United States (2005), Inter-American Commission on Human Rights

Jessica Gonzales et al. v. United States of America
Case 1490-05, Report No. 52/07, Inter-Am. C.H.R., OEA/ Ser.L/ V/II.130 Doc. 22, rev. 1 (2007)

Jessica Gonzales' three children were killed when local police failed to enforced a restraining order against her estranged husband. The Supreme Court of the United States ruled that no affirmative duty exists on the part of the government to enforce a protective order. In a bold move, she took the case to the IACHR which returned an admissibility decision and affirmed her assertion that she had exhausted all domestic avenues in her search for justice.

“The Commission concludes that it has the competence to examine the Petitioners’ allegations and that the petition is admissible for the alleged violation of Articles I, II, V, VI, VII, XVIII, and XXIV of the American Declaration and in the accordance with the Commission’s Rule of Procedure.”(Quoted form Original Judgment)

United Kingdom (2006), High Court of England and Wales

United Kingdom (2006), High Court of England and Wales

Reading Borough Council v. D & Ors
EWHC 1465 Fam

The judgment draws a distinction between information and documents, allowing the police to use the information gathered from disclosure in their criminal investigation, but requiring court permission to use the documents.

“Part of the protection of children and an officer's role in a child protection unit covers the removal of a child from danger. It may also include seeking appropriate bail conditions to ensure that a child does not come into contact with someone charged with an offence whom there is reasonable cause to believe may harm the child… I am satisfied therefore that DC Johnson can use the information but not the documents disclosed to him for both child protection and criminal investigation purposes. However to use the documents he had to seek the court's permission. As I have stated, I readily give that permission.”(Quoted form Original Judgment)

Hungary (2003), CEDAW

Hungary (2003), CEDAW

A.T. v. Hungary
CEDAW/C/32/D/2/2003

The appellant was subject to domestic violence and serious threats at the hands of her common law husband for four years. In this case, she sought justice and fair compensation for her suffering. Moreover, she claimed that the State party violated both the letter and spirit of CEDAW. The Committee found that the State party violated Articles 2, 5, and 16 of the Convention.

“The State party has admitted that the remedies pursued by the author, were not capable of providing immediate protection to her against ill-treatment by her former partner and, furthermore, that legal and institutional arrangements in the State party are not yet ready to ensure the internationally expected, coordinated, comprehensive and effective protection and support for the victims of domestic violence.” (Quoted form Original Judgment)

Brazil (2000), Inter-America Commission on Human Rights

Brazil (2000), Inter-America Commission on Human Rights

Maria da Penha v. Brazil
Case 12.051, Report No. 54/01, OEA/Ser.L/V/II.111 Doc. 20 rev. at 704 (2000)

This case was a landmark decision in terms of the IACHR hearing an individual complaint of human rights violations. The Court concluded that Brazil had violated the appellant’s right to a fair trial and judicial protection. The Court recommended prompt compensation for the victim, and the adoption of measures at the national level to eliminate tolerance by the state of domestic violence against women.

“A general pattern of negligence and lack of effective action by the State in prosecuting and convicting aggressors... creates a climate that is conducive to domestic violence, since society sees no evidence of willingness by the State, as the representative of the society, to take effective action to sanction such acts… The Federative Republic of Brazil is responsible for violation of the right to a fair trial and judicial protection, guaranteed in Articles 8 and 25 of the American Convention.” (Quoted form Original Judgment)

United States (2000), U.S. Court of Appeals for the Ninth Circuit

United States (2000), U.S. Court of Appeals for the Ninth Circuit

Estate of Maria Teresa Macias v. Mark Ihde
219 F.3d 1018 (9th Cir. 2000)

After the death of Mrs. Macias at the hands of her abusive husband, her family filed a case alleging that her constitution rights had been violated. This initial claim was dismissed after the Court found that murder was not a "constitutional deprivation". The Court of Appeals reversed this judgment, on the grounds that the violation of equal protection was the constitutional deprivation, not murder.

“The alleged constitutional deprivation in this matter was the alleged denial of equal police protection to Mrs. Macias… The district court erred in concluding that the alleged constitutional deprivation was the murder of Mrs. Macias. The district court also erred in dismissing the action without determining whether the Appellees' conduct deprived Mrs. Macias of her right to equal protection.” (Quoted form Original Judgment)

Canada (1999), Supreme Court

Canada (1999), Supreme Court

R. v. Godoy
[1999] 1 S.C.R. 311

Police officers responded to a call made from the defendant’s home, whereupon they forced their way into the premises and arrested the defendant who had been beating his wife. Initially, it was held that the arrest was illegal, since the officer’s presence on the private property was unauthorized. However, the Supreme Court held that the duty of the police to respond to emergency calls justified such an intrusion.

“The police duty to protect life is engaged whenever it can be inferred that the 911 caller is or may be in some distress, including cases where the call is disconnected before the nature of the emergency can be determined. The importance of the police duty to protect life warrants and justifies a forced entry into a dwelling in order to ascertain the health and safety of a 911 caller. This interference is authorized at common law as it falls within the scope of the police duty to protect life and safety.” (Quoted form Original Judgment)

United States (1984), Connecticut District Court

United States (1984), Connecticut District Court

Thurman v. City of Torrington
(595 F. Supp. 1521 D. Conn. 1984)

The plaintiff sued the city, arguing that the police department had violated her constitutional right to equal protection under the law. She claimed that officers failed to enforce her estranged husband's probation orders, and ignored his assaults against her. The jury awarded her significant damages, and following the case, many police departments strengthened their policies on responding to domestic violence.

“If officials have notice of the possibility of attacks on women in domestic relationships or other persons, they are under an affirmative duty to take reasonable measures to protect the personal safety of such persons in the community. [A] police officer may not knowingly refrain from interference in such violence... Such inaction on the part of the officer is a denial of the equal protection of the laws.” (Quoted form Original Judgment)

Kenya (2006), High Court at Nairobi

Kenya (2006), High Court at Nairobi


Esther Nangwanaa Nandi v. Jones Chewe Bobo
[2006] eKLR , Divorce cause 84 of 2005

The appellant sought the dissolution of her marriage on the grounds of cruelty; the respondent assaulted her, locked her out of their matrimonial home, and forced her to have sex with him while he was drunk. The Court found that the petitioner’s testimony was believable, and therefore dissolved the marriage.

“From her uncontroverted testimony it is proved that the acts of cruelty were of very serious nature and caused danger to her life and health. They are definitely those acts which could not be accepted as a wear and tear of a married life and of living together in thick and thin. They are also not isolated incidents. In the premises I do find that the Respondent is guilty of acts of cruelty and adultery and thus the Petitioner is entitled to have an order of dissolution of the marriage.” (Quoted form Original Judgment)

Nepal (2002), Supreme Court

Nepal (2002), Supreme Court

Forum for Women, Law and Development (FWLD) vs. His Majesty’s Government/Nepal (HMG/N)
Writ No. 55 of the year 2058 BS (2001-2002)

In this landmark case, the Supreme Court acted in order to uphold the equality of married women. The decision to recognize marital rape as unconstitutional was framed in the context of a series of international conventions such as CEDAW and ICCPR. Additionally, the Court referred to religious texts, and concluded that Hinduism does not condone such violence as marital rape.

“Women do not lose human rights because of marriage. So long as a person lives as a human being he/she is entitled to exercise those in-born and natural human rights. To say that the husband can rape his wife after the marriage is to deny independent existence, right to live with self-respect and right to self-determination.” (Quoted form Original Judgment)

United Kingdom (1998), Court of Appeal

United Kingdom (1998), Court of Appeal

R. v H
[1999] 1 Cr. App. R.(S.) 470, *470

Among other offences, the appellant was found guilty of raping his estranged wife. The Court sentenced him to ten years imprisonment, but this appeal reduced his term to seven years because the Court found that the appellant recognized the seriousness of his actions.

“Since the sentence was passed upon him this man has come to a full realisation of what he has done... and the way in which he has abused his wife, who is to be, in many ways, commended for the understanding and forgiving attitude which she has adopted towards him.”(Quoted form Original Judgment)