Warning: This case deals with topics that are especially grave and may cause trauma invoked by memories of past abuse. If you have experienced violence and need assistance, please refer to this list of country help lines provided by UN Women.
X’s partner, D.S., joined the Timor Leste Defence Force in July 2009, and after joining the armed forces, started to use violence. Their child was born in January 2011.
D.S. subjected X to escalating physical violence, including severe beatings when he was drunk. On one occasion he threatened her with a machete. X was too ashamed to report the violence to the authorities, but she confided in her brother-in-law. Her mother saw a subsequent attack and made reports to the village authorities, but they took no action and did not report the situation to the police. X also made reports to the Defence Force about the domestic violence, they made D.S. sign a declaration that he would not use violence against X again. They made it clear that they considered this to be a private family matter, and did not refer the matter to the police.
The violence continued to escalate. D.S. used a piece of wood to hit X on the head. She covered her head with her hands to protect herself, D.S. continued to hit her with the wood. She went for help to the Defence Force headquarters, and explained the history of domestic violence, an official there took her statement and took some photographs. On returning to her home, Defence Force officials made D.S. sign another paper acknowledging that he had hit X, and that he would not hit her again. The Defence Force officials also beat D.S. up. Finally, during an incident in November 2011, D.S. kicked X to her knees, and kicked her in the head while wearing his military boots. She lost consciousness, and when she regained consciousness, X was approaching her again – she was genuinely fearful for her life, grabbed a kitchen knife, and stabbed D.S. once in the chest as he came towards her. He died immediately.
Immediately, X reported what had happened to the police and was taken into custody. She was not advised of her right to legal counsel or to remain silent, however, the police took her statement. X was represented at her initial bail hearing and subsequently at trial by a succession of public defenders that she had not met previously, and the preparation of her case suffered because of this. Prejudicial statements were made about her in the media while she awaited her trial.
Even though she was still breastfeeding her child, she was separated from him, and arrangements made for his care that she did not agree to. No consideration was given to keeping them together, either by permitting her to be bailed pending trial – she was not a flight risk – or allowing him to stay with her in custody. X was convicted of murder in 2012 and sentenced to 15 years’ imprisonment.
“When handing down its decision, one of the judges told the author: “We are giving a prison sentence of 15 years because you have taken the life of one of the nation’s people (in reference to the status of D.S. as a member of the Defence Force). As a wife, you must protect your husband.” The court found that the author had intended to kill D.S. and that there had never been any previous problems between them, despite evidence to the contrary provided by the author and further corroborating evidence from D.S.’s sister. Nor did the Court take into account the author’s evidence that she had picked up the knife only after D.S. had kicked her in the knees and the forehead, knocking her to the ground.”
She appealed against the conviction, and was granted a re-trial on the basis that her defence of self-defence had not been considered appropriately. However in the re-trial, the same judges heard the case again and made substantially the same decision.
X sent her communication to the CEDAW Committee on 16 February 2015. She was granted a partial pardon and released on 17 September 2015.
What was the decision?
The CEDAW Committee considered two questions:
“first, whether the State party fulfilled its obligations under the Convention and, in particular, whether it discharged its duty of due diligence in connection with the protection of the author from domestic violence before the events of 25 November 2011 and in its treatment of the author in relation to those events; and second, whether the judiciary and other organs in the State party carried out their mandates, without discrimination based on sex, to ensure that the author received a fair trial, without bias, discrimination or gender stereotyping.”
The CEDAW Committee found that Timor-Leste had violated X’s rights on both questions, by “their failure to address the issue of ongoing domestic violence, in the collection of evidence, the treatment of the author, the support and counsel that she received, the treatment of her testimony and the sentencing decision relating to a vulnerable breastfeeding mother, failed to discharge their obligations under articles 2 (c), (d) and (f) and 15 of the Convention.”
This case recognises that a victim of domestic violence can use the defence of self-defence: in this case, the applicant was responding to an immediate threat to her life. This case also confirms that consideration should be given to alternatives to custody for a breastfeeding mother – and therefore is consistent with the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (known as ‘the Bangkok Rules’) which were adopted by the UN General Assembly in December 2010. The Bangkok Rules fill a long-standing lack of standards providing for the specific characteristics and needs of women offenders and prisoners.
- For the text and commentary to the Bangkok Rules click here.
- For a short and accessible guide to the content of the Bangkok Rules click here.
- Women’s Access to Justice for Gender-Based Violence: ICJ Practitioners’ Guide (2016)