The chapter is divided into two parts.
Part I consists of three sections. The first section, Conceptual Framework and Data, defines and conceptually analyses gender violence; it also includes statistical data that complement and illustrate the dimensions of the problem. Section Two, Existing Legislation, offers a critical outline of existing international, regional, and national gender violence laws, to facilitate the complex task of legislation. The third section, Recommendations and Conclusions, defines the considerations and obligations of legislating to eradicate gender violence.
Part II, Legislative Proposal, offers concrete legislative models designed to prosecute and prevent gender violence.
Violence against women is defined in Article 1 of the Declaration on the Elimination of All Forms of Violence Against Women as:
At first glance, this definition seems deceptively clear. However, further examination reveals several nuances and raises fundamental questions. For example, what is violence? Is gender violence a sexual act or may it be a manifestation of a power imbalance? What is a power imbalance? Does gender violence occur only in the context of formally defined hierarchical relations or can it also occur within relations of an apparently equal stature? What are the causes of gender violence and who are its primary victims?
A group of experts convened by the United Nations Division for the Advancement of Women in 1994 attempted to answer some of these questions. First, they described violence:
They also recognised that gender violence relates more to issues of power than sexuality:
Reliable data on gender violence are scarce. As a phenomenon largely restricted to the private sphere, reporting gender violence has historically been a taboo issue. As a result of growing gender awareness, more people --particularly women-- have become increasingly willing to recognise and report gender violence. As more statistics on gender violence become available, an increasingly negative picture emerges attesting to the prevalence and intensity of the problem.
Existing data indicate that an overwhelming number of women are victims of gender violence. For many, gender violence begins in childhood and continues throughout their lifetimes. Table 4.1 illustrates the various forms that violence may take throughout the life cycle of a woman.
Gender violence throughout the life cycle
Source: Lori L. Heise with Jacqueline Pitanguy and Adrienne Germain, Violence Against Women:
The Hidden Health Burden, World Bank Discussion Papers #255, Washington DC, 1994, p. 5.
Sexual abuse in childhood or adolescence is reported, for instance, by one-third of women in Barbados, Canada, Netherlands, New Zealand, Norway and the United States. In addition, as table 4.2 indicates, one to two-thirds of victims of sexual abuse in Panama, Mexico, Chile and the United States of America were under 15 years of age, while between 18-32% were under the age of 10.
Ages of victims of sexual crimes in selected countries
Source: Lori L. Heise with Jacqueline Pitanguy and Adrienne Germain,
Violence Against Women:
As regards adults, studies in Chile, Mexico, Papua New Guinea and the Republic of Korea indicate that two-thirds or more of married women have experienced domestic violence. In the Caribbean 30% of women surveyed say they have been battered. Reports from Canada, New Zealand, the United Kingdom and the United States suggest that about one in six women is raped in her lifetime. The statistics on violence are clearly alarming; moreover, table 4.2 revealed that contrary to common belief, most violence against women is not committed by strangers. table 4.3 eloquently illustrates the persuasiveness of violence against women committed by their own partners.
Percentage of adult women who have been physically assaulted by an intimate partner
Source: United Nations (1995), The World's Women 1995: Trends and Statistics. New York: United Nations Publications.
Chart 6.13, p. 160.
More than half of all murders of women in Bangladesh, Brazil, Kenya, Papua New Guinea and Thailand are committed by present or former partners. Cross-national evidence from Africa, South America, the Melanesian Islands and the United States reveals that marital violence is a leading cause of female suicide. Data from Latin America and the Caribbean, as illustrated in table 4.4, confirm that as many as six out of ten women have suffered physical or psychological abuse by their intimate partner.
Prevalence of wife abuse in selected countries
Source: Lori L. Heise with Jacqueline Pitanguy and Adrienne
Germain, Violence Against Women:
Because research on gender violence in Latin America and the Caribbean is just beginning, the full extent of the problem remains unknown, and existing statistics should be considered as conservative estimates at best. As gender violence emerges as a critical issue throughout the region, it is imperative that more comprehensive data be gathered. Information is fundamental for deepening the understanding and assessing the scope of gender violence, and for devising solutions.
The principal characteristic of gender violence is that it occurs against women precisely because of their womanhood. Gender-based violence involves power imbalances where, most often, men are the perpetrators and women the victims. In addition, it is recognised that the power relations between men and women that produce gender violence also reproduce gender violence.
While women are usually the immediate victims of gender violence, the consequences of gender violence extend beyond the victim to the society as a whole. Gender violence threatens family structures; children suffer emotional damage when they watch their mothers and sisters being battered; two-parent homes may break up, leaving the new female heads of household to struggle against increased poverty and negative social repercussions. Psychological scars often impede the establishment of healthy and rewarding relationships in the future. Victims of gender violence may vent their frustrations on their children and others, thereby transmitting and intensifying the negative experiences of those around them. Children, on the other hand, may come in the future to accept violence as an alternative means of conflict resolution and communication. It is in these ways that violence is reproduced and perpetuated.
Gender violence is not exclusively a woman's concern. It is both a cause and consequence of gender perceptions. Gender violence affects mens perceptions of women, women's perceptions of men, and men's and women's perceptions of themselves. In affecting the emotional and economic development of the family, gender violence may ultimately influence the development of nations and regions. Because gender violence impacts on all of society, it behoves society to seek solutions. To the extent that it is the State's recognised role to sanction certain norms that protect individual life and dignity and maintain collective peace. It is the State's obligation to develop and implement measures that redress gender violence. One such measure would include passage and enforcement of appropriate legislation.
GENDER VIOLENCE: EXISTING LEGISLATION
1. INTERNATIONAL LAW
As manifested by United Nations General Assembly (UNGA) resolutions on the subject, gender violence has become a matter of international concern. In 1992, the Committee on CEDAW (the Convention for the Elimination of Discrimination Against Women) issued General Recommendation 19 which examined the subject of violence. In December of that year, the UNGA passed Resolution 47/95 requesting the Committee on the Status of Women to draft the Declaration on the Elimination of Violence against Women. That Declaration was adopted by the UNGA in Resolution 48/104 in 1993. In March 1994, the Commission on Human Rights passed resolution 1994/45 appointing a Special Rapporteur on violence against women who submitted a preliminary report in November 1994. In addition, in December 1994, the UNGA adopted Resolution 49/165 containing measures to prevent acts of violence against women migrant workers.
Central to the discussion on gender violence, and especially in the context of drafting national legislation, is General Recommendation 19, the Declaration on the Elimination of Violence against Women and the appointment of the Special Rapporteur. These, together with a brief outline of the relevant section of the Beijing Declaration and Platform of Action are discussed in greater detail below.
General Recommendation 19
Issued in 1992 at the 11th session of the Committee on CEDAW, General Recommendation 19 is the product of a scholarly and extensive analysis of violence against women. Because the Recommendation originated from the work of a committee designated under a binding international convention, it has higher persuasive legal significance than a resolution of the United Nations General Assembly. Furthermore, the reporting requirement indicated in CEDAW makes the member states party to CEDAW answerable.
General Recommendation 19 requires member states to adopt measures, including legislation, to combat violence against women. It obliges states to inform the UN of the situation of violence against women in their nations and the measures taken at the national level to eradicate such violence. After its exhaustive examination of CEDAW, the Committee concluded that:
The Recommendation, then, allowed the subject of violence to be inserted formally and explicitly into CEDAW without having to amend the treaty itself.
General Recommendation 19 provides for a comprehensive obligation to eliminate discrimination in all its forms in addition to the specific obligations acquired by States parties under Articles 5-16 of CEDAW. Paragraph 24 recommends specific measures to overcome gender-based violence, either by public or private act, including:
1) gender-sensitive training
2) compilation of statistics
3) media respect for women
Paragraph 24 further recommends that the states parties report on gender violence, including information on the legal, preventive and protective measures taken to overcome the problem and assessments of the effectiveness of such measures.
Declaration on the Elimination of Violence Against Women
The Declaration on the Elimination of all Forms of Violence Against Women, adopted in 1993 by the UN General Assembly, is the first international human rights instrument to deal exclusively with violence against women. The Declaration provides the first comprehensive definition of violence against women. In addition, the Declaration distinguishes itself by its scope and the recognition that violence is as much a socio-cultural issue as it is a legislative one. The Declaration recognises that violence against women occurs in all social strata, cultures, peoples, nations, and regions, and explicitly refers to the urgent need to extend and ensure rights and principles of equality, liberty, integrity, and dignity, as they apply to all women and to all individuals.
Eight rights of women are specified in Article 3 of the Declaration:
Although rights 1 through 6 had been included in General Recommendation 19, rights 7 and 8 did not explicitly appear in its text. Instead, the Recommendation included the right to equal protection according to humanitarian norms in time of international or internal armed conflict and the right to equality in the family.
The Declaration also requires specific state actions. Article 4(c) demands that states exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons. Article 4(k), moreover, requires that States collect, compile and make public certain statistics and data. While the Declaration is very comprehensive, it should take the form of a multilateral treaty and be transformed into a convention in order to establish its binding character.
Special Rapporteur on Violence against Women to the Commission on Human Rights
In March 1994, at its 50th session, the Commission on Human Rights (CHR) passed Resolution 1994/45 appointing a Special Rapporteur on Violence against Women. The Special Rapporteur was empowered to seek and receive information, recommend measures, ways and means, and work closely with other special rapporteurs, special representatives, working groups and independent experts of the CHR and its Sub-Commission on Prevention of Discrimination and Protection of Minorities and with treaty bodies. The Commission requested the Special Rapporteur to report on her work on an annual basis, beginning at its 51st session.
The Special Rapporteur submitted a preliminary report on violence against women to the CHR in November 1994. This report outlined the problem of violence against women in all its forms and manifestations. The Special Rapporteur made specific reference to her mandate and methodology, the causes and consequences of violence against women, international legal standards and the problems arising from violence in the family, in the community and perpetrated or condoned by the State.
In accordance with paragraph 10 of CHR Resolution 1994/45, the Special Rapporteur reported plans to undertake a number of field missions in connection with the first and second reports, expected in 1996 and 1997. This constitutes a significant development because it confers on the Special Rapporteur an important role in the defence of the rights of women. In the absence of enforceable mechanisms to protect women from violence, the mandate and moral authority of the Special Rapporteur has allowed her to act as an informal monitor of state compliance.
Beijing Conference of 1995
The Beijing Declaration and Platform for Action deals explicitly with the subject of violence against women. It declares that violence against women is an obstacle to the achievement of the objectives of equality, development and peace and it urges all nations to recognise and address the problem. It recognises that violence against women may occur within the family or be committed by either the general community or the State. In addition, the Declaration condemns specific types of violence, such as forced sterilisation and forced reproduction, that have affected women in situations of armed conflict and/or women belonging to minority and other persecuted groups.
The Beijing Declaration recognises that violence against women manifests the historically unequal power relations between men and women that have led to domination over and discrimination against women and to the prevention of women's full advancement. While recommending a multidisciplinary approach to the problem, the Declaration urges governments and other actors to promote an active and visible policy of mainstreaming a gender perspective in all policies that affect women and men.
The Declaration enunciated three strategic objectives for governmental action. First, Governments should take integrated measures to prevent and eliminate violence against women. These measures include ratification and implementation of those human rights conventions pertaining to the issue of women. In addition, governments are urged to adopt and enforce laws that punish or take other effective measures against police, security forces or any other agents of the State who engage in acts of violence against women in the course of the performance of their duties. In this context, it recommended that the Commission on Human Rights renew the mandate of the Special Rapporteur on Violence Against Women when her term ends in 1997 and, if warranted, update and strengthen it. Furthermore, the Beijing Declaration asks national and local governments, community organisations and other agencies to provide funds for campaigns and develop programmes to combat violence.
Second, Governments and other national and international agencies should study the causes and consequences of violence against women and the effectiveness of preventive measures. The third objective demands that Governments eliminate trafficking in women and assist victims of violence associated with prostitution and trafficking.
The Beijing Declaration constitutes a significant step forward. The participating governments unequivocally stated:
Other relevant instruments
In addition to the 1991 General Recommendation 19 of the CEDAW Committee, the 1993 Declaration on the Elimination of Violence against Women, and the 1995 Beijing Declaration and Platform of Action, several other international human rights instruments protect women from gender violence. A brief historical overview is provided below.
The Universal Declaration on Human Rights declares, in Article 1, that "all human beings are born free and equal in dignity and rights. Articles 2, 3 and 5 of the Universal Declaration further establish that:
The non-discrimination clause, combined with Articles 3 and 5, indicates that any form of violence against women -- which may include threats against life, liberty or security, torture, or cruel, inhumane, or degrading treatment -- does not conform to the principles of the Declaration and, therefore, constitutes a violation of the international obligations of member states.
The Nairobi Forward-Looking Strategies for the Advancement of Women, which was approved at the 1985 World Conference for the Examination and Evaluation of the Achievements of the United Nations Decade of the Woman, incorporates considerations directly related to violence against women. This Conference elevated the debate to the international level, paving the way for the topic of gender violence to become recognised as an international problem and helped the achievement of equality, development, and peace.
Since then, the United Nations has organised several meetings of gender violence experts. The UN has also worked to bring this issue to the attention of groups such as the Commission on the Juridical and Social Condition of Women, Economic and Social Council's Division for the Advancement of Women, and the Office of Statistics. In addition, the Eighth Congress of the United Nations on the Prevention of Crime and Treatment of Delinquency, held in 1990, approved a resolution urging member states to formulate and apply policies, measures, and strategies within and without the justice and penal systems to address the problem of violence in the home. The General Assembly adopted this stance in Resolution 45/114.
A 1991 meeting of gender violence experts determined that existing instruments failed to take gender violence into due consideration, or to specifically define gender violence. The group observed that the lack of a clear concept in this matter made it difficult to effectively apply international human rights norms; consequently, the group worked to create the Declaration on the Elimination of Violence against Women. The Commission on the Legal and Social Condition of Women analysed the Declaration extensively during its thirty-sixth session, with a view to recommending its adoption by the General Assembly. As indicated earlier, the Declaration was adopted in 1993 by the General Assembly of the United Nations and today constitutes the most comprehensive principles on the issue of gender violence.
2. REGIONAL LAW
The Inter-American Convention to Prevent, Punish, and Eradicate Violence Against Women of the Organisation of American States (OAS) constitutes the central piece of regional legislation on gender violence in Latin America and the Caribbean. The Convention has been ratified by 13 countries (Bahamas, Barbados, Bolivia, Costa Rica, Dominica, Ecuador, Guatemala, Honduras, Panama, Paraguay, Saint Lucia, St. Kitts and Nevis, and Venezuela) and signed by nine others (Argentina, Brazil, Chile, Dominican Republic, El Salvador, Guyana, Mexico, Nicaragua, and Peru). Four countries (Columbia, Cuba, Haiti and the United States) have neither signed nor ratified the Convention. This Convention covers most forms of gender violence and is legally binding on the ratifying states. Greater efforts must be made to ensure that ratifying states enact enabling legislation and that the remaining countries ratify and implement the Convention.
The Inter-American Convention has three main objectives:
Article 7 of the Inter-American Convention urges signatory parties to condemn all forms of violence against women and to adopt policies directed toward preventing, punishing and eradicating said violence in the following manner:
The OAS Convention, unlike most national laws, does not attempt gender neutrality. It has been found that laws dealing with violence that refer to the victim and aggressor in neutral terms generally reproduce, rather than eradicate, gender violence. For this reason, the OAS Convention addresses issues from a perspective of gender inequality. In doing so, the Convention aims to adjust to the imbalance of the situation so that the "pendulum" will eventually settle in the middle. To meet the obligations established by the Convention, laws must indicate that the objective is to eradicate gender violence; to be effective, such laws must clearly identify the victims of this type of violence. Family violence laws, therefore, must clearly note the gender of the victim and the aggressor, normally female and male respectively.
In addition to specifying the gender of the aggressor and victim, measures or positive actions must be taken to eliminate the cause of most gender violence power imbalances between men and women. Correction of real or perceived power imbalances is fundamental to the elimination and prevention of gender violence, both in the socio-cultural and in the legislative dimensions. Furthermore and most significantly, it must be noted that the need to correct power imbalances in no way detracts from or substitutes the importance of simultaneously legislating and implementing punitive measures against the distinct manifestations of gender violence wherever and whenever they may occur.
A group of experts that discussed measures to eliminate violence against women in families and in society concluded that:
The issue of gender violence should be a priority on the Latin American and Caribbean regional agenda. The regional legal response to this problem must do more than just prohibit gender violence. The eradication of gender violence throughout the region is a long-term process that requires rehabilitation as well as criminalization, education as well as punishment, and research as well as action.
3. NATIONAL LAW
It is important to recognise that Latin America and the Caribbean is the first, and as of now, the only region in the world in which all countries have ratified the Convention on the Elimination of All Forms of Discrimination Against Women. However, as the Economic Commission for Latin America and the Caribbean noted, "this action should not be misunderstood (to mean) that the nations have: (i) adapted their legislation to the demands of the Convention in all areas, (ii) implemented policies and adopted positive actions to eliminate de facto discrimination, or (iii) met their obligation to inform the Committee for the Elimination of Discrimination Against Women [of the status of gender violence in their nations]." In fact, all countries have yet to adapt, implement and report it as national law.
Furthermore, with few exceptions, no legislation in the Latin American and Caribbean region treats gender violence in an integral fashion. Legislation fails to consider the history of the region and social ramifications, even though it may recognise the individual's right to physical integrity. While all national legal codes provide some degree of legal remedy for one or more forms of gender violence, these remedies are generally inadequate. For instance, the treatment of rape and statutory rape under the existing legislation is insufficient to deal with the myriad of variations of gender violence that are recognised today. Therefore, with the notable exceptions of Trinidad and Tobago (1986) , the Bahamas (1992), Guyana (1991), and Barbados (1992), all of which have recent sexual offences legislation, the majority of states should undertake radical reform of this section of their penal codes, enacting separate legislation specifically for the issue of domestic violence. On the other hand, even fewer penal codes or other bodies of law punish sexual assault or harassment in the workplace or in educational institutions.
On the issue of domestic violence, the Law for the Prevention of Violence against Women and Family was approved in Ecuador in November 1995 and published in the Official Registry no. 839 in December, 1995. The National Office for Women and the Commission for Women, Children and the Family of the National Congress were fundamental in the formulation and passage of the law. It provides for protection to the physical and psychological integrity and sexual freedom of women, by means of preventing and penalising intra-familial violence. The law takes into account the prevention of violence, rehabilitation of victims and reeducation of victimisers, and provides as well for the establishment of support services, such as shelter and counselling. By way of sanctions it provides for up to 7 days of prison and compensation payment for damages. In addition violation of sanctions can result in prison terms of 1-6 months. As regards reporting arrangements, family judges, women or family police, "Intendentes", service corps, national commissars and political lieutenants are identified as competent authorities report domestic violence cases. They can receive information from the victim and from others who choose to report a case within 48 hours of becoming aware of it. Also, the competent authority has 48 hours to formalise the report for investigation purposes.
Other examples of national legislation on domestic violence can be found in Colombia and Bolivia. Law 294 to prevent, remedy and penalise intra-familiar violence, was approved on July 16, 1996 by the Colombian National Congress. In addition to providing measures for victims and familys protection and assistance, it establishes sanctions of one to two years of prison for intra-familial violence acts. In Bolivia article 276 of the Penal Code, which provided impunity for aggressions and violence within the family was abolished. A new Law against Domestic and Family Violence was approved by the Congress in December 1995.
While it is true that penal codes and/or other legislation in Latin America and the Caribbean refer to family violence, forced prostitution, and trafficking of women, these may be inadequate. For example, some special laws on family violence fail to protect women because they are based on questionable or erroneous assumptions. These laws may stipulate that for women to be eligible for protection from gender violence, women's actions must fit a specific category, such as self-defence, an event that usually does not occur because of the nature of the crime. In other cases, victims of gender violence may themselves be prosecuted. Some penal codes punish the victims of crimes of incest, adultery and abortion, rather than the victimisers. Revictimization adds to women's reluctance to denounce gender violence, thereby contributing to the maintenance and perpetuation of the behaviour underlying gender violence. The lack of damaging consequences provides little incentive for the perpetrator to modify or stop the unacceptable behaviour.
Analysis of national legislation suggests that gender violence is limited to a few isolated acts not attributable to a common cause or gender structure. For example, gender violence is labelled "sexual" where the law is less traditional, and "against decency and good behaviour" where the law is more traditional. The above descriptions of violence against women demonstrate an indifference to the values that should be protected. The main issue with respect to gender violence is neither decency and good behaviour nor sexual freedom but rather the fundamental value of respect for the physical, sexual and psychological integrity of the individual.
National legislation has failed to prevent and/or eradicate gender violence because, unlike international and regional legislation, national laws do not take gender into consideration. They assume equality between spouses or partners instead of considering the real gender-based power imbalances that lead to gender violence. For example, the new Brazilian and Colombian constitutions recognise the state's duty to impede family violence but do not specifically refer to gender. The expressions "family violence," "conjugal violence," "domestic violence," or "intra family violence" are too neutral; available information confirms that the problem is usually not ill treatment inflicted upon the husband, but upon the wife. The use of gender-neutral expressions obscures the asymmetrical power relations between the victims and aggressors; more significantly, it leaves open the interpretation that the blame resides equally with both partners, a premise that is clearly misplaced given that violence is never justified. While a neutral position may seem more inclusive extending equal protection to women and men, the lack of specificity prevents an understanding of the problem in its true dimensions. Hence, gender-neutral terminology in legislation can be counter productive.
Violence rooted in unequal power between men and women may also include frequent infliction of harm that is justified or exonerated by custom, tradition, religion, or by the relationships surrounding the crime even if the inflicted harm is considered criminal by law. Some examples are marriage rape, justified by conjugal duty; beating or killing of wives, excused where a man's virtue and honour are at stake; rape of prostitutes, accepted by virtue of their profession. At the same time, certain actions that violate patriarchal traditions are criminalized. Some examples are penalization of induced abortion and/or voluntary sterilisation and penalization of certain sexual preferences. The emphasis should be on violence -- on the unacceptability of imposition and coercion -- rather than on the sexual relations themselves. It is the context of sexual relations that should concern society and determine its response. Violence is never an acceptable context for any kind of human relations. Therefore, the exclusion of the husband from consideration of rape violates this principle by assuming that marriage is exempt from the rule of non-violence. To rectify this legal oversight, penal codes should consider as aggravated rape all situations in which the aggressor in a sexual assault is married or related to, or is a guardian or other person trusted by the victim.
The administrators of justice, among them the police, prosecutors and judges, have not reacted appropriately to gender violence. Moreover, some laws fail to punish perpetrators, and legislation, by and large, ignores the prevention of violence, the rehabilitation of victims and the re-education of victimisers. Laws that aim to protect victims often fail to provide for the establishment of the necessary support services, such as safe houses and counselling. Several countries have introduced laws but without fostering sufficient levels of understanding and commitment. Future legislation must take into account the two most fundamental elements for effectively redressing gender violence: prevention and rehabilitation.
RECOMMENDATIONS AND CONCLUSIONS
Legislating to eliminate all forms of gender violence is a complex task. Can one or several pieces of legislation deal with all manifestations of gender violence? What types of laws can effectively eliminate gender violence in a system that has historically kept women subordinate to and undervalued by their fathers, husbands, brothers, or even sons? What is required to redress a situation in the short term that has existed in and since the distant past?
If legal systems have reinforced structures and prejudices that are detrimental to women's value and status, then elimination of gender violence requires the qualitative reform of these systems. In this way, the power imbalances that generate gender violence may be redressed. All legislative measures meant to prevent, eradicate, or punish gender violence must recognise the following:
It is clearly imperative that states legislate against and commit to the eradication of gender violence.
The existing international legal regime requires states to halt and eradicate gender violence. In Latin America and the Caribbean, the Inter-American Convention to Prevent, Punish, and Eradicate Violence Against Women explicitly refers to this duty. This Convention is binding on the ratifying parties, and much work remains to be done both to bring national legislation in line with the Convention and to guarantee the full co-operation of all OAS member states with the Convention.
The letter and intent of Inter-American Convention are clear. Measures for protection and defence must conform to and reflect in reality the manifestations of gender violence. Therefore, although it is understood that it applies to both men and women, gender violence legislation should refer specifically to women as the victims of gender violence. Women, after all, comprise the overwhelming majority of victims of gender violence.
As legislators begin to address this most distressing and pervasive issue, Part II of this chapter offers legislative proposals designed to combat and eradicate gender violence. The proposals derive their mandate from international legislation on the issue, primarily CEDAW and the Inter-American Convention, as well as from the Declaration on the Elimination of All Forms of Violence Against Women. Violence is not acceptable at any level, global, national or individual. Legislation may not eliminate gender violence; however, effective application of such laws will certainly lay the appropriate foundations for building societies free of violence against women.
GENDER VIOLENCE: LEGISLATIVE PROPOSAL
Some suggestions for legislation to protect women from gender based violence are presented below. Legislation is directed toward addressing problems in two spheres:
All violence should give rise to moral outrage and legal penalties. Violence constitutes unjustified and illegal conduct, whomever the victim may be. Violence against women is especially reprehensible. This is because the legal and judicial treatment of such violence has often been given inappropriate media attention and justified by an attitude that is disrespectful and discriminatory towards women both as individuals and as subjects of law.
Norms to prevent and punish violence against women in all its forms must therefore be adopted in a legal and social context that totally delegitimizes any attitude or conduct that places women in a position that is inferior to men.
The first step is to recognise constitutionally the absolute equality of rights, opportunities and abilities of men and women and the immediate applicability of the international treaties and documents on non-discrimination ratified by the country.
The model presented in this section should serve to enable each State to locate and fill in any gaps in its legal system as regards the ratification of international instruments, the content of the Constitution or the adoption of specific laws in this area.
As in the case of the proposals and models put forward in earlier chapters, it is likely that some of the proposed articles are already reflected in countries' legal systems. It will be the task of legislatures, taking into account the proposals made here and the scope of anti-discrimination legislation in their countries, to take appropriate measures to adapt and strengthen national legislation, moving towards a body of law that is based on the most scrupulous respect for the equality of all persons, irrespective of their sex.
"All individuals, whether men or women, are equal before the law, free from discrimination on grounds of birth, race, sex, religion, opinion or any other personal or social status or circumstance."
"All men and all women have the right to life, liberty and security of person."
"No one shall be subjected to torture or to cruel, inhuman or degrading treatment."
"Duly ratified international treaties form part of the domestic legal system."
"The public authorities have the obligation to guarantee the equality of all citizens and to take the necessary steps to eliminate any form of discrimination and violence, including ratifying and complying with international treaties aimed at eradicating the various forms of discrimination and violence."
"Judges and courts shall interpret the law according to the provisions of the Constitution and of ratified international treaties."
The inadmissibility of any form of discrimination and the obligation of States to ensure equality of women and men in the exercise and enjoyment of all economic, social, cultural, civil and political rights are reaffirmed by numerous international instruments, including:
(i) The Convention on the Elimination of All Forms of Discrimination against Women;
(ii) The International Covenant on Civil and Political Rights;
(iii) The International Covenant on Economic, Social and Cultural Rights
(iv) The Universal Declaration of Human Rights;
The following legislative proposal is designed to ensure compliance with and the application of the above-mentioned international instruments, particularly articles 1, 2, 3, 5, 6 and 11 of CEDAW, articles 2, 3, 7, 17, 18, 19, 22, 23 and 24 of the International Covenant on Civil and Political Rights, articles 2, 3, 7, 8 and 10 of the International Covenant on Economic, Social and Cultural Rights, articles 1, 2, 3, 5, 6, 12, 16, 17 and 23 of the Universal Declaration of Human Rights and articles 1 to 9 of the Inter-American Convention.
II.4 LEGISLATIVE PROPOSALS
II.4.1 Domestic Violence
Education and Information
1. The Ministry of Education shall establish appropriate mechanisms for guaranteeing equality of educational opportunities for girls and women.
2. In particular, the Ministry shall establish means for guaranteeing equal access by girls and women to sources of information on assistance, grants and subsidies for education.
The Ministry shall also take the necessary steps to avoid discrimination in the teaching and learning of subjects included in official curricula and syllabuses.
The Ministry of Education, in co-operation with the Commission for Gender Equality, shall draw up curricula that take into account, respect and promote equality between the sexes.
1. Domestic violence means acts of psychological, physical, property and sexual abuse committed against a women member of the family unit by a member of that unit.
2. Acts of violence committed by a man against the woman who is the mother of his offspring is considered domestic violence even if there is no matrimonial bond or stable de facto union between them.
For the purposes of this Law, the family unit comprises the spouses, or the partners in a de facto union, and any minor or disabled children, as well as the parents of the couple if they live in the same home.
For the purposes of this Law:
1. Psychological violence means any act or omission intended to degrade or control the actions, behaviour, beliefs and decisions of a female member of the family unit by means of intimidation, manipulation, direct or indirect threats, humiliation, insults, false accusations, vigilance, persecution or isolation or any other action which impairs her emotional health, her self-determination or her personal development.
2. Physical violence means any mistreatment committed by act or omission which wilfully puts at risk or impairs the woman's physical integrity.
3. Property violence is any act or omission that involves damage, loss, modification, theft, destruction, withholding or misappropriation of objects, work tools, personal documents, property, securities, economic rights or financial resources of a woman member of the family unit.
4. Sexual violence means any act which violates the sexual freedom of any member of the family unit through the use of force, intimidation, coercion, blackmail, deception or any other procedure which prevents or limits free will.
When there are indications of domestic violence, irrespective of whether preliminary criminal proceedings have been instituted, the competent judicial authority may, before examining any relevant evidence, order any of the following precautionary measures:
2. The adoption of these precautionary measures is not an impediment to the continuation of judicial proceedings to determine whether the conduct that gave rise to judicial protection constituted a crime.
The precautionary measures shall cease at the end of a period to be established by the judge. However, the victim may request that the measures be lifted before this time and the judicial authority may issue an order to this effect if it deems appropriate.
Protection of the Victim
1. In filing a complaint, a woman who has been the victim of domestic violence has the right:
(e) To receive specialised victims' services care.
1. The same protection and rights established in this Law shall be enjoyed by all women victims of violence, irrespective of whether they may be immigrants, refugees or members of an ethnic minority.
2. In order to guarantee the protection of victims belonging to one of the categories described in the preceding paragraph, such women shall have the right to be assisted by an interpreter during the complaint proceeding if the victim, the complainant, the official receiving the complaint, the public prosecutor's office or the judge so request.
Jurisdiction and Entitlement
Criminal judges shall have jurisdiction in matters dealt with in this Law and to order the measures of protection referred to in article 7 thereof, without prejudice to the possibility of establishing, in accordance with article 15(h), specialised judicial organs to handle the matters defined herein.
The following shall be entitled to apply for the measures of protection described in article 7:
1. The procedures for filing a complaint and applying for, ruling on and executing precautionary measures shall be established by means of rules and regulations.
2. Such rules shall take into account the victim's right to privacy and the principles of simplicity and speed of proceedings, so as not to leave the victim unprotected. In any case, such procedures shall meet the following criteria:
(a) The complaint may be made at any judicial or police unit.
(c) The victim's oral complaint shall suffice to set the procedure in motion.
The Ministry of Justice, in co-operation with the Commission for Gender Equality and with the Ministry of Social Affairs and the Ministry of the Interior, shall take appropriate measures for the protection and guidance of victims of domestic violence. Such measures shall include:
(a) Training judicial and police officials to deal appropriately with victims of domestic violence.
The Government shall draft and adopt, within a period of six months from the publication of this Law, the rules and regulations referred to in article 14.
All legal provisions that conflict with the provisions of this Law and with those of the Convention on the Elimination of All Forms of Discrimination against Women, ratified on ..., are hereby repealed.
Proposal for adapting the Penal Code to Situations of Domestic Violence
"The member of a family unit who in any way impairs the physical integrity or physical or mental health of a woman member of that unit shall be liable to the penalty of ..., even if such impairment does not require medical or surgical treatment."
"When violence is committed against a woman member of the family unit by another member of that unit, the aggravating circumstance of membership of the family unit shall be applied to crimes against persons not characterised in the preceding article."
"The same aggravating circumstance shall apply when the aggressor commits an act of violence against the mother of his children, even if there is no matrimonial bond or stable de facto union between the aggressor and the victim.
"Bearing in mind that the objective of criminal penalties is rehabilitation and without prejudice to the penalties of imprisonment imposed for committing the crimes characterised above, the judge shall order rehabilitation measures for the offender as established in this Code and in procedural legislation."
"When violence is committed against a woman member of the family unit by another member of that unit, the aggravating circumstance of family membership shall be applied to the crimes of rape, abduction, sexual abuse and any other crime that violates the physical and psychological integrity and sexual freedom of persons."
"The existence of a matrimonial bond or a stable de facto union, on the terms established in the Civil Code, between the victim and the aggressor in no case absolves the aggressor or attenuates his responsibility for the crimes referred to in the preceding article."
"The penalties and aggravating circumstances indicated in the preceding articles shall be imposed, in their respective cases, even if the acts were committed with the victim's consent, if such consent was obtained by intimidation, threats or abuse of seniority."
"An ascendant or an adult brother who has sexual intercourse, involving penetration of the vagina, anus or mouth with the penis or any other instrument, with a descendant or a sister aged over 12 and under 18 years, even with her consent, shall be subject to the penalty of ...".
"All crimes against the physical and psychological integrity and sexual freedom of persons shall be officially prosecutable."
In addition, all articles or provisions which introduce variations either in the characterisation of the crime or in the penalty or its application, based on discriminatory, non-egalitarian perceptions of the situation and rights of men and women, should be repealed.
II.4.2 Violence in the Community - Sexual Crimes
Most manifestations of violence against women in the community are in fact recognised and characterised as crimes, irrespective of whether they constitute gender violence against women or simply acts of violence against men and women. Such acts include homicide and physical injury, which are characterised in all Latin American penal codes. However, in order to be able to really protect women from these forms of violence, it is important to review the codes to identify cases where women have no legal protection because this type of crime is attenuated or even condoned if it occurs within marriage or if the injuries are not such as to render the victim unfit for paid employment. This is the case because some Latin American penal codes require that the victim be left incapacitated for work before the crime of injury can be said to exist. Since women who are housewives are not regarded as "workers", the injuries they receive do not incapacitate them for work, which means that they often have no legal protection. In other cases, the husband is exonerated if he murders his wife on grounds of adultery.
Many so-called "sex" crimes are also characterised as crimes "against decency and public morality". In order for such crimes to really be punished in proportion to the harm caused, codes must reflect the notion that the legal property thus protected is not something as subjective and disrespectful towards the female person as "public morality". Crimes committed in violation of sexual freedom are crimes because they violate the victim's physical and psychological integrity, and these are legal property deserving of protection.
A number of suggestions as to the elements that should be taken into account in amending the legislation on the crime of rape are made below. Similar considerations should be taken into account in amending the legislation on other crimes such as statutory rape, corruption of minors, abduction, etc.
Suggested Amendments to the Penal Code for Sexual Crimes
Crimes of a sexual nature could be included under the heading "Crimes against the physical and psychological integrity and sexual freedom of persons."
"Anyone who has sexual intercourse with a person of either sex involving penetration of the vagina, anus or mouth with the penis or any other instrument shall be subject to the penalty of ... in any of the following cases:
(a) If the victim is under 12 years of age.
(b) If the victim is insane.
(c) If the victim is unable to resist.
(d) If physical violence, intimidation or position of seniority are used."
"If the sexual intercourse referred to in the preceding article takes place with a child under 12 years of age, partial penetration shall be deemed sufficient grounds for considering that rape has occurred."
"In no case shall any attenuating circumstance be applied to the perpetrator on the basis of value judgements or considerations as to the victim's private life."
"Without prejudice to the application of other aggravating circumstances, the fact that the rapist is a carrier of sexually transmitted diseases shall increase the penalty for the crime of rape."
"The same aggravating circumstance shall apply to statutory rape and to sexual abuse where touching has occurred."
"All crimes against the physical and psychological integrity and sexual freedom of persons shall be official prosecutable."
"The victim of such crimes shall have the right, in particular:
"The following shall be subject to the penalties of ...:"