THE RIGHTS OF WOMEN
1. The principles of equality and non-discrimination are essential to democratic government under the rule of law and a fundamental condition for the full observance of human rights. For this reason, the Inter-American Commission on Human Rights (the "Commission," the "IACHR" or the "Inter-American Commission") assigns special importance to the rights of women in the hemisphere, as reflected in the designation of a special rapporteurship for women's rights. The "Report on the status of women in the hemisphere" was submitted by the Special Rapporteur and approved during the 98th session of the IACHR. It should be noted that the Colombian State submitted an extensive and detailed document, in response to the questionnaire that was sent out as part of the preparation of this report on the status of women. The document submitted by the State will be cited, as appropriate, in this Chapter.
2. The IACHR notes that major strides have been made in the observance of women's rights in Colombia. Nonetheless, despite the constitutional provisions and the legislation in force, information has been received that indicates that gender-based discrimination continues to affect women, resulting in the diminution of the full enjoyment of their human rights.
3. During its on-site visit, the Commission received complaints that indicate that women are in a difficult situation in Colombia, as they suffer particularly serious effects of the violence that affects the entire country, and of one of its consequences, internal forced displacement. This Report will also analyze the problems of domestic violence and the lack of adequate access to reproductive health programs, with respect to which it is alleged that women do not receive adequate protection from the State.
B. LEGAL FRAMEWORK
1. International Provisions
4. As was noted in previous Chapters of this Report, the American Declaration on the Rights and Duties of Man provides:
5. In a similar vein, Article 1 of the American Convention on Human Rights (the "Convention" or the "American Convention") provides that the States Parties to it, "undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex..." Also, Article 3 of the American Convention guarantees: "Every person has the right to recognition as a person before the law." Article 24 of the American Convention stipulates: "All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law."
6. The United Nations International Covenant on Civil and Political Rights provides at Article 26:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion....
7. The Convention on the Elimination of All Forms of Discrimination Against Women has been ratified by Colombia, incorporated into its legislation by Law 041/81 and regulated by Decree 1398/90. Article 2 of that Convention indicates that:
States Parties condemn discrimination against women in all its forms [and] agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women.
8. In addition, the Colombian State has ratified the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women ("Convention of Belém do Pará"), which has been incorporated into the national legislation by law 248/95. Article 1 of that Convention provides that:
2. Domestic Legal Provisions
9. The 1991 Colombian Constitution recognizes the full equality of women and men. Article 13 provides:
10. Article 43 of the 1991 Constitution provides that:
11. The trend towards equality between women and men in Colombia began in 1932, when Law 28 derogated certain provisions in the Civil Code that had limited the legal capacity of women. That law ended the legal incapacity of married women, granting them full civil capacity. The law maintained the notion of conjugal society while, at the same time, terminating the husbands exclusive right to administrate common property. By virtue of legislative act No. 3 of 1954 and by Decree 2820 of 1974, women acquired full political rights, as well as equality of rights and obligations with respect to men.
12. The IACHR has been informed that sex-based discrimination persists in Colombia in various spheres of life, such as employment, education, and participation in public affairs. The situation of each of these spheres has evolved in different ways. The Commission will thus consider each separately.
13. The figures indicate that education has been one of the areas in which the greatest strides have been made towards equality between women and men in Colombia. An increase in the average number of years of schooling for women has been reported. For example, women 24 years and older had an average of almost 4 years of primary education in 1978; this figure increased to almost 6 years in 1993. Illiteracy among women has diminished significantly (from 40.2% in 1951 to 11.6% in 1993), bringing female illiteracy very close to male illiteracy levels (which declined from 35% to 10.7% in the same period).( 1 ) Among the advances, the following can also be noted: continuance of the trend toward greater women's enrollment in the various levels of education, which is currently approximately 50%; fewer female drop-outs at the various levels of formal education; greater participation of women among teaching personnel at the various levels of the educational system (although this participation declines at the higher levels of education).( 2 )
14. During the 1990s, major efforts have been undertaken to develop the constitutional mandates regarding universal access to basic education, and regarding the participation of civil society in education. It should be noted that the Ten-Year Education Plan for 1996-2005 defined as an objective the challenge of overcoming all situations of sex-based discrimination or isolation, in terms of women's access to and ability to remain in the educational system.
15. Despite the advances and achievements, motives for concern persist as to specific issues, such as illiteracy. Women 24 years and older, who are part of the economically active population, continue to receive less education than men in the same population group. This situation has a detrimental effect on access to employment, as women are in a worse position than men as regards their training to perform competitively.
16. According to data received by the IACHR, 51.7% of the university population in Colombia is made up of women. Nonetheless, it should also be observed that a high proportion of the students enrolled in certain programs of study considered "traditionally female" are still women. For example, in 1992, 65.3% of the education students were women, compared to 27.6% of those enrolled in engineering.( 3 ) In addition, there is a considerable decline in the number of women as higher levels of instruction are reached: the percentage of women among those who choose pre-school teaching is 96.3%; primary, 76%; secondary, 44.2%; and higher education, 22.6%.( 4 )
17. In Colombia, the Office of the Presidential Adviser for Women, Youth, and the Family and the Ministry of Education have initiated a series of activities to promote gender equality in education. Of special note among these is a research project supported by the United Nations Children's Fund ("UNICEF") entitled "Producing textbooks from a gender-equity perspective." This research project studies the representation of the genders in textbooks, which are analyzed for discrimination based on both the manner and number of times persons of different sexes appear in the text and illustrations. Based on this experience, a manual for raising awareness was designed and has been used in the training of teachers, school officials, and textbook publishing companies.( 5 ) The State has also announced plans for coordinated work between the Ministry of Education and the National Directorate for Equality for Women (Dirección Nacional de Equidad para las Mujeres) toward the creation of a culture of true equality in education, in quantitative as well as qualitative terms.
18. The Commission considers that stereotypes regarding the traditional social roles of men and women help perpetuate gender-based discrimination. For this reason, the IACHR values the positive initiatives undertaken by the Colombian State to eliminate those stereotypes. The Commission will continue to follow closely the development of policies and programs that address the remaining challenges to equal access to education between men and women in Colombia.
2. The Workplace
19. The Convention on the Elimination of All Forms of Discrimination Against Women, which now forms part of the domestic law of Colombia, provides as follows, at Article 11(1):
20. Colombian legislation includes several provisions aimed at eliminating discrimination against women in the workplace. These provisions include Law 13 of 1972, which prohibits segregation of citizens in obtaining employment. They also include Decree 1398 of 1990, regulating Law 51 of 1981, which approved the Convention on the Elimination of All Forms of Discrimination Against Women. This decree provides:
21. Despite the constitutional and statutory provisions, and the country's economic strength, the status of women in the labor market has not improved in recent years. The Commission has received information that indicates that unemployment for women in September 1995 stood at 12.6%, compared to 6.5% for men. One way to explain this situation has to do with women's lower educational levels, and with employers' preference to hire men instead of women, given equal qualifications, for certain types of work.( 6 )
22. The Commission also has received information suggesting that women from urban areas continue to have access only to positions and areas of activity that enjoy less socioeconomic prestige, lower income, and fewer labor guarantees. This situation would explain the increased participation of women in positions such as non-remunerated workers and domestic workers, as well as the increase in the number of women working in the urban informal sector. Also meriting special mention is the lack of correspondence between women's educational levels and the type of positions to which they gain access.( 7 )
23. Women rural workers are in an even more disadvantaged situation, not only vis-à-vis men, but also as compared to urban women. According to data received by the IACHR, women rural workers have a higher rate of poverty, face greater workplace burdens in exchange for less remuneration, have low levels of job training, are affected to a greater extent by unemployment, and are among the most vulnerable social sectors in the situation of agrarian crisis, violence, and armed conflict affecting the country.( 8 )
24. The Constitutional Court issued several important decisions regarding womens rights in the workplace in 1997. The Constitutional Court held that the provisions regarding equal protection required that pregnant women be granted special treatment in the workplace. On these grounds, the Court held that pregnant women could not be dismissed during the term of their pregnancy nor during the three months following childbirth.( 9 ) In another decision, the Court struck down legislation which prohibited women from working during the night, also on equal protection grounds.
25. The Commission finds this new jurisprudence to be extremely positive. The IACHR is nonetheless concerned about the situation of discrimination that affects women in relation to work in Colombia, and thus considers it necessary for the State to pay special attention to effective enforcement of the provisions in force in this area. The State has recognized the critical situation of women in the labor market. In this regard, the State has pointed to the fact that the Ministry of Labor and the National Directorate for Equality for Women work to gain equal access for women to State programs, such as the Development Ministrys Plan to Support Small and Medium-Sized Businesses and other similar programs.
3. Participation in Public Affairs
26. The American Convention, at Article 23(c), guarantees access for all citizens, in equal conditions, to public service in their country. Article 40 of the Colombian Constitution provides that the State shall "guarantee the adequate and effective participation of women in the decision-making levels of the public administration."
27. Another legislative initiative is Law 188 of 1994, which created the National Bureau for Women's Equity (Dirección Nacional para la Equidad de la Mujer), a permanent State office that is in charge of State policy on women. It is now fully operational, and members of Colombia's women's movement are participating in the capacity of advisers.
28. Women make up 50.4% of the population of Colombia. Nonetheless, women's participation in national politics is not commensurate with that figure. For example, in the last two presidential elections, there were five women out of a total of 30 candidates; only one received more than 1% of the vote. The official figures indicate that of all the governors and mayors in 1994, only 6% were women. In the 1994-1998 period, 12.2% of the members of the Chamber of Representatives are women, reflecting an increase of 7.8% over the previous period. In the Senate, 93.2% of the seats are held by men, and 6.8% for women, showing a slight decline from the respective figures of 92% and 8% for the 1990-1994 period.
29. In the central administration, women have a high level of representation, with 59% of all posts, but that figure diminishes in the case of positions of power and decision-making posts. At the level of directorships, the proportion is 19% women and 81% men; among the advisers, the difference is less marked, with 43% women and 57% men. Finally, the most favorable ratios are found in implementing and operational posts, in which women account for 74% of the total.( 10 ) Despite all the foregoing, the Commission emphasizes that two highly important ministerial positions, the Ministry of Foreign Affairs and the Ministry of Justice, were entrusted to women at the time of its on-site visit of December 1997.
30. Women are involved at almost every level of the Colombian justice system. In addition, however, women's participation in the judiciary is uneven. Upon analyzing the distribution of posts, one finds that in 1993, 42% of the civil, labor, and family judges in Bogotá were women. When this figure is broken down, however, half were in the family courts, 38.2% in the civil courts, and just 11.8% in the labor courts.( 11 ) Despite some notable involvement in the judiciary, it must be observed that women are not represented in the higher echelons of this branch of government.
31. The figures mentioned above reflect a significant disproportion to the detriment of women, especially in qualitative terms. This observation is made with the full awareness that, compared to other countries in Latin America, this disproportion is less accentuated in Colombia.
32. The legal regime in Colombia contains very clear provisions with respect to the equality of men and women. Although this does not guarantee the end of discrimination, it does make it possible to give impetus to the reforms needed in society to attain the full enjoyment of rights for both sexes, in equal conditions. In this regard, the IACHR trusts that the Colombian State will continue implementing the policies needed to overcome the current situation, in the framework of its obligations under international and domestic law.
D. VIOLENCE AND ITS EFFECTS
33. The large number of acts of violence against women in the Americas has awakened the interest of the States, resulting in support for the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women ("Convention of Belém do Pará"). This instrument came into force on March 5, 1995, and to date has been ratified by 27 states, including Colombia. Article 2 of that Convention states:
Violence against women shall be understood to include physical, sexual and psychological violence:
34. Colombia incorporated the Convention of Belém do Pará into its domestic law by Law 248 of 1995. Later, the Constitutional Court of Colombia, in the exercise of its constitutional review powers, declared that law constitutional on September 4, 1996, in Decision C-408/96. Also noteworthy are the partial steps taken through Law 294 of 1996 to prevent, remediate, and punish family violence. Despite legislative progress, the Commission's analysis of various sources leads it to consider that violence against women in Colombia persists and is worsening. Following is an analysis of the main contexts in which such acts of violence are detected.
1. Internal Armed Conflict
35. According to information received by the IACHR during its on-site visit to Colombia, in addition to the serious problem of the increase in the number of displaced women as a result of the internal armed conflict, there are numerous complaints regarding murders, injuries, unlawful deprivation of liberty, and intimidation by the various armed actors. At the same time, it has been denounced that the women who lead organizing efforts in different parts of the country are victims of intimidation intended to force them to abandon a given region or to cease in their organizational activities.( 12 )
36. In the respective Chapter of this Report, the Commission has analyzed the situation of women as a group specially impacted by internal forced displacement. The data compiled by the Office of the Human Rights Ombudsman reveals that:
37. The increase in the number of women-headed households among rural homes has forced women to assume responsibility for meeting the basic needs and ensuring the very survival of the family group. These changes must be faced in extreme circumstances, such as threats to the lives of members of the family group.
38. The figures reflect an alarming reality: every two days a woman dies in Colombia for political reasons. Based on the information received by the Commission, from October 1995 to September 1996, 172 women were killed as a result of political violence, 12 were victims of forced disappearance, 35 were tortured, and 33 suffered threats and assassination attempts. In addition, it has been reported that, in the same period, the Army, Police, and other security forces were responsible for the deaths of 15 women, and for the forced disappearances of two women. According to this information, paramilitary groups killed 47 women and disappeared seven. The data also shows that 33 women were killed by armed dissident groups.( 14 )
39. The Commission views the situation of women in Colombia, as victims of the violence generated by the armed conflict, with great concern. By virtue of its domestic legislation and the international human rights commitments it has adopted, the Colombian State is under an obligation to adopt initiatives to reduce the impact of this situation, until it is finally eradicated. The IACHR will observe the development of such measures, pursuant to the functions entrusted to it by the instruments of the inter-American system and other applicable international norms.
2. Domestic and Sexual Violence
40. In general, the victims of domestic violence are women, and Colombia is no exception. The Commission notes that domestic violence generates responsibility for the State when the State fails to comply with its obligation of due diligence under the Convention of Belém do Pará and the American Convention. That obligation comprises the implementation by the Sate of reasonable preventive measures, as well as an adequate response to acts of domestic violence.( 15 ) In this section, the Commission will analyze the problems related to domestic violence and acts of sexual violence against women in Colombia.
41. Law 294/96 on family violence provides at Article 20 that the police authorities have an obligation to assist victims of family abuse in order "to hinder the repetition of the acts, remediate the physical and psychological sequelae, and prevent retaliation for such acts." To this end, it prescribes specific measures that should be adopted by the authorities, such as accompanying the victim to the nearest assistance center, her home, or some safe place; providing advice with respect to preserving the evidence of the acts of violence, and in terms of the victim's rights and the government services available in such circumstances. The same law prescribes precautionary measures, such as eviction of the assailant, and the requirement that the assailant undergo counseling and therapy and make reparation out of his own funds for the harm caused.
42. The Commission notes the adoption of this law is a positive step towards the observance, in Colombia, of the human rights that tend to be undermined by domestic violence. The Colombian State was consulted by the Commission's Special Rapporteur for Women's Rights regarding the practical obstacles to obtaining access to the protection afforded by the law. In its response, the State first clarified that Law 294/96 is still new legislation. The State then stated:
43. Despite legislative progress and the efforts of the public and private sectors, the official figures reveal that violence against women in Colombia continues to occur at alarming levels, with a tendency to worsen. Such is the case that, in 1993, the Institute of Legal Medicine of Colombia issued reports on 15,503 cases of non-fatal injuries due to family violence, reported in the departmental capitals. This figure climbed to 19,706 in 1994, and 23,288 in 1995.
44. In Colombia, as in many other countries, most acts of domestic violence are still considered to be a private matter. Consequently, they are not reported, and it is not possible to determine the full extent of the problem.( 17 ) According to information received by the Commission, less than half of battered women seek assistance, and only 9% of the women lodge a complaint with the authorities.( 18 ) The Commission also received information according to which neither the State nor society is sufficiently sensitive to the need to tackle the problem of domestic violence. Impunity for the perpetrators of acts of domestic violence against women is practically 100%.( 19 )
45. Sexual violence in Colombia is also a matter of special concern to the IACHR. In 1995, the Institute of Legal Medicine of Colombia issued 11,970 opinions in investigations of sexual crimes nationwide. Of the victims, 88% were women, for a rate of 34 women per 100,000 population.( 20 ) According to the information received, it is estimated that there are some 775 rapes of adolescents annually, and that the rate of rape for this age group is 3.5 per 1,000 women. Nonetheless, only 17% of the victims denounce such acts. It should be noted that of all such attacks on women over 20 years of age, 47% are by relatives.( 21 )
46. The Commission should emphasize that, as in other cases, the Colombian State has proceeded to update its domestic legislation to address the problematic situation described. Under a recent change in Colombian legislation, the punishments for crimes against sexual liberty and human dignity have been increased. These crimes currently include the categories of rape, sexual abuse and statutory rape. The crime of violent sexual intercourse (acceso carnal violento) is titled rape and is punishable by four to 10 years in prison. In a positive move, Law 360/97 repealed the Criminal Code provision by which the criminal action for all of the offenses mentioned was extinguished if the perpetrator married the victim.
3. Reproductive Health
47. The information provided to the IACHR indicates that in general terms the health status of Colombian females has improved in recent decades. In effect, life expectancy at birth for women has increased from 52 years, in the 1950s, to 72 years in the 1990s. This significant progress is attributed to the improvement in the quality of life, increased education levels, the spacing of births, and the expanded supply of services.( 22 )
48. The Colombian Constitution recognizes that health is a public service, and that the State is responsible for guaranteeing everyone access to health services. Article 42 of the Constitution, complemented by Resolution 08514/86 of the Health Ministry, recognizes the right of every couple and of every individual to decide responsibly the number of children they will have, and the opportunity to do it. For its part, Law 100 of 1993 establishes family planning as part of mandatory basic health services which must be made available on a free and universal basis.
49. Notwithstanding what is mentioned in the previous paragraph, the Commission considers it necessary to refer to abortion, as it constitutes a very serious problem for Colombian women, not only from a health perspective, but also considering their rights as women, which include the rights to personal integrity and to privacy.
50. The Criminal Code in force in Colombia, at Chapter III, defines abortion as a crime against life and personal integrity. The penalty established at Article 343 of the Criminal Code is one to three years in prison for a woman who performs an abortion on herself or has someone else perform it. The IACHR observes that abortion is even criminalized in those cases in which a woman has become pregnant as the result of rape or non-consensual artificial insemination (Article 345 of the Criminal Code on "Specific Circumstances").
51. According to the information provided to the IACHR, despite the provisions cited, in Colombia some 450,000 abortions are performed annually.( 23 ) The criminalization of abortion, together with the inadequate techniques and unhygienic conditions in which abortions are performed, make it the second leading cause of maternal mortality in Colombia.( 24 ) According to statistics provided by the State, 23% of maternal deaths in Colombia result from poorly administered abortions.( 25 )
52. The Commission has been able to perceive the reality of Colombian women through various sources of information, including from official sources, international agencies, and non-governmental organizations, as well as the testimony of the victims themselves. The situation of women in Colombia as victims of several types of violence is particularly worrisome for the Commission. The Commission thus reiterates its concern, echoing various organs of the international community,( 26 ) and calls on the Colombian State to adopt effective measures to redress the current situation.
Based on the foregoing, the Commission formulates the following recommendations to the Colombian State:
The Committee expresses its concern over the situation of women who, despite some improvements, continue to be subject to de jure and de facto discrimination, in all spheres of economic, social and public life. It notes in this regard that violence against women remains a major risk to their right to life which needs to be more effectively addressed. It is also concerned over the high mortality rate of women resulting from clandestine abortions.
Human Rights Committee, CCPR/C/79/Add.76, May 5, 1997, par. 24, at 7.