ON THE SITUATION OF
THE RIGHTS OF WOMEN
1. The Guatemalan State and society have set an ambitious agenda to advance toward the full recognition and incorporation of the participation of women in public affairs and national development. This new agenda is reflected in various commitments of the peace accords, as well as in such subsequent legislative undertakings as the 1999 Law for the Dignity and Integral Promotion of Women. These new commitments are based on the recognition that women have been impeded from fully participating in these spheres by interrelated forms of discrimination, and that such participation is vital to the consolidation of a firm and lasting peace. They also take into account that women have been tremendously affected by the causes and consequences of the armed conflict, as targeted victims of the violence, as widows left to raise children alone, and as residents of the rural zones most affected by the conflict and the poverty and inequity it perpetuated and exacerbated.
2. This agenda has been defined with the active participation of women, initially through the Assembly of Civil Society during the negotiation of the peace accords, and subsequently, through the National Forum of Women and other mechanisms created to follow-up on the implementation of the commitments undertaken. As noted elsewhere in this report, one of the most significant virtues of the peace process – in terms of both the negotiation and the implementation of the accords -- has been the opening of political spaces to greater inclusion and participation, including by women.
3. The definition of a new agenda has been a necessary first step that must be complemented with decisive, sustained action to implement the commitments undertaken. As a coalition of nongovernmental organizations working in this sphere cautioned, the current situation may signify the realization of new opportunities for half the population, or the further postponement of their demands. The key challenge with respect to the normative advances achieved is to put the words into practice so as to ensure the efficacy of the rights concerned.
4. The quest to ensure that women can fully exercise their rights free of the obstacle of discrimination has exacted costs. Some of those struggling to take on stereotypes and vindicate basic rights have been targeted for threats, harassment and even attacks. The organization Mamá Maquín, for example, works to vindicate the rights of women in such basic areas as property ownership. As recounted in chapter VI, supra, members have been threatened and attacked in their office in the capital, as well as in the Ixcán. As is highlighted in that chapter, concerning the right to personal security, the State has not responded to these and other attacks against human rights defenders with the due diligence required under the American Convention. Meeting the challenges of the agenda for peace requires that such groups be able to participate in the strengthening of the democratic culture free of the chilling effect of repeated threats and reprisals.
A. Legal Framework
5. National law is currently characterized by a sharp contrast between the adoption of highly positive measures, such as the Law on the Dignity and Integral Promotion of Women on the one hand, and the persistence of anachronistic legal provisions that maintain unjustified distinctions based on gender, on the other. As will be noted below, a number of legislative initiatives to address such provisions have been proffered, but have yet to be acted upon.
6. The Constitution, for its part, sets forth general norms of non-discrimination and equal protection. Article 4 provides that “all human beings are free and equal in dignity and rights.” Men and women, regardless of their civil status, have equal opportunities and responsibilities. Accordingly, it provides, no one may be subjected to servitude, or any other conditions which diminish his or her dignity.
7. More specifically, Article 47 provides that the State shall protect the family, and shall promote its organization on the basis of marriage, the equality of rights of the spouses, responsible paternity, and the right to decide freely on the number and spacing of children. Article 52 provides that the State shall protect maternity, and ensure the strictest compliance with the rights and obligations that arise from it. Within its provisions concerning work, the Constitution establishes in Article 102(k) that, among the minimum social rights the State must ensure is the protection of the woman worker and the regulation of her working conditions. This Article also prohibits distinctions between married and single women in employment. Further, maternity shall be protected by law, and pregnant workers may not be required to perform functions placing the pregnancy at risk. Working mothers are required to be given one month of fully paid leave prior to the birth of a child, and 45 days after. During the breast-feeding period, mothers are entitled to two special breaks during the work day.
8. The peace accords include a comprehensive series of commitments concerning the rights of women. The Agreement on Socioeconomic Aspects sets forth broad legislative and programmatic obligations aimed at enhancing the participation of women in economic and social development. The State has committed itself to recognizing the equal rights of women and men in the home and workplace, and in social and political life, ensuring that women have equal access to land, credit and resources. Further, it is required to review legislation to eliminate all forms of gender discrimination with respect to the economic, social, cultural and political participation of women, and to ensure that the terms of the Convention on the Elimination of all Forms of Discrimination against Women are given full effect. It is also required to guarantee the right of women to organize and participate, on equal terms with men, in the senior decision-making levels of local, regional and national institutions, and to promote the participation of women in the public administration.
9. Further, the State is required to ensure equal access to education and training, the elimination of discrimination in educational curricula, and equal access to housing. In the sphere of health, the accord requires that women be ensured access to “information, prevention and health care services.” Priority in the sphere of health is to be given to mothers and children, and includes efforts to improve primary maternal care and to reduce the maternal mortality rate by half by 2000. In the labor sphere, the State is required, inter alia, to: review relevant legislation to ensure that it provides equality of opportunity; take steps to guarantee that women working in the agricultural sector are recognized and remunerated; and enact legislation designed to protect the rights of women who work as household employees.
10. The Agreement on Identity and Rights of Indigenous Peoples recognizes that indigenous women are subjected to double discrimination, both as women and as indigenous persons, further increasing their vulnerability. The State committed itself to codifying sexual harassment as a crime, and to treating the perpetration of a sexual crime against an indigenous woman as an aggravating factor. Additionally, the State was required to establish an “office of the defender for indigenous women” to provide advisory and social services. This accord, and those concerning resettlement and the socio-economic situation express a common commitment to eliminate discrimination against women with respect to access to land, credits and development projects. The Resettlement Agreement, discussed in chapter XIV, infra, provides for special protection for female-headed households, widows and orphans, and calls for the integration of a gender perspective in development strategy. Finally, the Agreement on the Strengthening of Civilian Power provides for increased opportunities for women to participate in that sphere. The Women’s Forum was created pursuant to the Agreement on the Timetable to follow-up on the implementation of the specific commitments.
11. In the context of the positive momentum that marked the inclusion of the foregoing commitments, three important legislative initiatives have been brought to fruition over the last several years, and will be discussed further below: the 1999 Law for the Dignity and Integral Promotion of Women, the 1996 Law to Prevent, Punish and Eradicate Intrafamilial Violence, and the reforms to the Civil Code undertaken in 1998 and 1999.
12. Finally, a number of State institutions have special responsibility in promoting and protecting the rights of women, including the National Office of Women, attached to the Ministry of Work and Social Welfare, and the Office of the Defender of Indigenous Women, created in 1999, and attached to COPREDEH. Additionally, the Ombudsman for Human Rights counts on the assistance of its Office of the Defender of the Human Rights of Women. Further, the Secretariat of Social Work of the Wife of the President has also played an important role in the progress achieved. More recently, the Presidential Secretariat of Women was created by Government Agreement 200-2000. It serves to advise on and coordinate matters of public policy. It has the objective of promoting, strengthening and developing initiatives in favor of legislation referring to women, real and effective equality between men and women, and the full participation of women in Guatemalan society. This Secretariat also runs the recently created Coordinator to Prevent, Punish and Eradicate Intrafamilial Violence and Violence Against Women [CONAPREVI]. The State reported that, as provided by law, the Women’s Unit of the Attorney general’s Office and the Office for Women of the Public Prosecutor must also fulfill tasks concerning the oversight and promotion of the rights of women.
13. The principles of non-discrimination and equal protection are pillars in any democratic system, and serve as fundamental bases of the OAS system. Article 3(l) of the OAS Charter sets forth the core principle that “the American States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed or sex.” Article 1 of the American Convention in turn sets forth the obligation of States Parties to respect and ensure all recognized rights and freedoms without discrimination on the basis of, inter alia, sex. Further, Article 24 recognizes the right to equal protection of and before the law, and Article 17 provides that the State shall ensure the equal recognition of rights and “adequate balancing of responsibilities” of spouses within marriage. The Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (“Convention of Belém do Pará”), which Guatemala ratified in 1995, recognizes the critical linkage between the right to be free from discrimination and the protection of other fundamental rights, most especially to be free from gender violence.
The purposes of the regional human rights system and the principle of
efficacy require that these guarantees be implemented in practice.
Accordingly, the American Convention requires that the domestic system
provide available and effective judicial recourse to persons alleging the
violation of their right to be free from discrimination.
Further, where domestic remedies prove unavailable or ineffective, the
inter-American system provides for the possibility of recourse through its
individual case system.
Guatemala is Party to a number of other international instruments which
provide important protections for the rights of women.
In broad terms, Articles 1 and 2 of the Universal Declaration of Human
Rights, and Articles 2 and 3 of both the ICCPR and ICESCR recognize the right to
equality and the prohibition of discrimination.
The Convention on the Elimination of All Forms of Discrimination against
Women, to which Guatemala has been a Party since 1982, reinforces the equality
and non-discrimination provisions of the International Bill of Rights by
defining discrimination against women, and requiring States Parties to adopt
specific measures to combat it.
In an encouraging development, on September 8, 2000, the President of the
Republic signed the facultative protocol to the CEDAW.
This is now under consideration by the Congress for approval and
B. Women, the Law and Access to Legal Recourse
16. As indicated, Guatemala has realized important progress in incorporating the participation of women in the process of defining how to reform laws and practices to better respond to the forms of gender discrimination that prevent women from fully exercising their rights. The complementarity and convergence of national and international obligations are particularly evident in the commitments and goals established in this regard in the last several years. Key undertakings, including the pertinent provisions of the peace accords, the Law for the Dignity and Integral Promotion of Women, the Law to Prevent, Punish and Eradicate Intrafamilial Violence, and reforms to the Civil Code, were drawn with express reference to the State’s obligations under such instruments as the Convention on the Elimination of All Forms of Discrimination against Women and the Convention of Belém do Pará. At the same time, other provisions which remain on the books are incompatible with national and international obligations in this area, but have either not been addressed or are the subject of proposals which have been under study by the Congress for up to several years.
17. The Law for the Dignity and Integral Promotion of Women is the broadest of the positive new measures. Basing itself on the recognition of the pluricultural and multilingual character of the country, it aims to promote (1) the integral development of woman and their participation in all levels of economic, political and social life; and (2) the development of the related rights set forth in national and international law. This law is essentially a framework for the adoption of specific measures in relation to: rights and responsibilities in family life; equity in education; access to technical education and professional training; equality in the sphere of labor; access to health care; the eradication of gender violence; and the participation of women in the spheres of culture and the media, the economy and political life. The mechanisms for compliance include the State’s assumption of the provisions as minimum standards, and commitment to adopt specific measures of implementation and to review legislation to reform discriminatory provisions.
18. The Law to Prevent, Punish and Eradicate Domestic Violence defines such violence as a human rights violation, and provides for the application of protective measures for victims -- independently of the sanctions set forth in the Criminal Code and Code of Oral Criminal Procedure. The Law provides mechanisms for responding to requests for protection, specifies the measures of protection that may be ordered, and indicates the obligation of the National Police to intervene in such cases. In its response to the draft report, the State reported that Legal Regulations to Prevent, Punish and Eradicate Intrafamilial Violence had been issued via Governmental Agreement 831-2000.
As the result of the processing of the case brought before the Commission
by María Eugenia Morales de Sierra and the Center for Justice and International
Law (case 11.625), the State adopted a series of much-needed reforms to the
Civil Code concerning the rights and duties of women and men in marriage.
The case challenged the compatibility of nine provisions of the Civil
Code that assigned roles to spouses within marriage with the provisions on
nondiscrimination and equal protection of the American Convention. Decrees
80-98 and 27-99, adopted as a result of the processing of this case, addressed
eight of the nine articles challenged.
Article 109, which had authorized the husband to represent the marital
union, was reformed to provide that such representation
corresponds equally to both spouses.
Article 110, which had attributed to the wife the special duty to care
for the home and children, was
modified in its second paragraph to
provide that both spouses have the
duty to care for minor children.
Article 115, which had provided the
exceptional circumstances under which a wife was permitted to represent the
union, was amended to provide that in case of a disagreement between spouses as
to such representation, a family judge will decide to whom it shall correspond
on the basis of the conduct of each partner.
Article 131, which had authorized the husband to administer marital
property, was reformed to provide that both spouses may administer
such property, either jointly or separately, and Article 255, which had
attributed similar authority to the husband with respect to the representation
of children and their property was modified to provide that both parents shall
exercise this authority, either jointly or separately.
Three Articles were repealed: 113, which had permitted a wife to pursue
work outside the home only if this did not prejudice her role as wife and
mother; 114, which had authorized a husband to oppose his wife’s activities
outside the home, as long as he provided for the household and his reasons were
sufficiently justified; and 133, which had specified the exceptional
circumstances under which a wife was permitted to administer marital property.
As a result of the State’s adoption of the reforms in question, the
Commission was able to certify an important measure of compliance with its
recommendations to repair the violation of the rights of María Eugenia Morales
The State’s action represents an extremely valuable step forward in its
commitment to eliminate de jure discrimination as part of its agenda to address
past discrimination and ensure women their full rights.
Nonetheless, because there remains a disequilibrium in the law with
respect to the heading and first section of Article 110, and with respect to
Article 317, the Commission could not certify full compliance and recommended
that action be taken to correct the balancing of the rights and responsibilities
22. These latter two provisions, and a number of others that affect women in the various spheres of life require resolution. As the Commission has indicated in general terms, “[d]iscrimination de jure is a flagrant violation of the international commitments freely assumed by the States and, although formal equality does not guarantee the elimination of instances of discrimination, recognizing it makes it possible to encourage transformations in society, thereby enhancing the authority of this right.”
23. The Commission’s attention has been drawn to three sets of provisions, in particular, which illustrate areas requiring urgent legislative reform. Within the Civil Code, for example, Articles 89 and 299 continue to create distinctions based on gender which appear to be in direct conflict with the State’s obligation of nondiscrimination and equal protection. Article 89 regulates the authorization for marriage, and establishes a minimum age, with parental consent, of 14 years for girls, and of 16 years for boys. It further establishes that women must wait 300 days following the dissolution of one marriage or union to enter into another, with no corresponding provision applicable to men. Article 299 concerns the guardianship of minors, and provides that preference shall be given to the paternal grandfather, maternal grandfather, paternal grandmother and maternal grandmother, in that order.
24. The Commission’s attention has also been brought to the fact that, while the Code of Work generally provides distinct legal provisions with respect to the work of women and minors, respectively, in a few provisions these are treated as equivalent. The heading of the fourth title, second chapter, is “work of women and minors.” Article 147, the lead article of the chapter, provides that “[t]he work of women and minors must be adjusted especially to their age, physical conditions or state, and intellectual and moral development.” Article 139 requires recognition of the work of women and minors (treated as indistinct) in the agricultural sector. In terms of other pending issues, various groups have indicated that Article 155 provides that employers of more than 30 women shall provide certain types of child care facilities, but provides no corresponding provision with respect to men. The Commission is also informed that, while the social security regime regulates the payment of pensions to widows of male workers, it does not regulate such payments in the case of the death of female workers covered within the system. Reports indicate that draft legislation has been developed on this point, but remains pending.
25. In the sphere of penal law, the persistence of Article 200 of the Criminal Code, which provides that criminal responsibility for rape or certain other sexual crimes is extinguished upon the perpetrator’s marriage with the victim, contravenes the object and purpose of the Law to Prevent and Eradicate Intrafamilial Violence. The Commission expressly recommended to all member states in 1997 that such provisions be derogated. Further, pursuant to Decree 79-97, although many sexual crimes, including rape, are defined as crimes of public action, the law nonetheless stipulates that they depend on the action of the party. The requirement of action by a party means that, in reality, these crimes are not subject to prosecution de oficio, but will only be duly prosecuted and punished pursuant to the action of the victim or at the discretion of the prosecutor. Further in relation to the penal sphere, in its response to the draft report, the State reported that two pieces of legislation aimed at typifying sexual harassment as a crime – one presented in 1998 and the other in 2000 – remained pending the issuance of an opinion by the congressional Commission for Legislation and Constitutional Points.
Representation of Women in Law and Policy-making Bodies of the State
26. The status and role of women in the law is, to an important extent, a reflection of the perceptions and experience of those responsible for designing and adopting legislation. While women comprise roughly half the population of Guatemala, they are scarcely represented in the Congress and other key decision-making positions of the State. At present, of a total of 113 members of Congress, 10 are women. This is a decrease from the previous Congress, in which 12 women held seats. The current rate of participation, at 8.8%, is one of the lowest in Latin America and the Caribbean. In the 1999 general elections, three women were elected mayor, of a total of 330. Within the current administration, one of 20 ministers, and 6 of 47 viceministers are women, and two of 13 members of the Supreme Court are women. In its observations on the draft report, the State recognized that the participation of women in decision-making positions remains very low. It presented information about the participation of women in the most recent elections indicating that, of the 1,409 women who ran as candidates at the local and national levels, 145 won positions.
27. As mentioned in chapter X, supra, a number of reforms have been proposed in the electoral regime and the Law on Elections and Political Parties, and have been under consideration for several years. Among these proposals is a reform to Article 212 which would require that any list of candidates include a minimum of 44% male or female candidates. There is another proposal, presented by the National Office of Women in 1998, aimed at establishing a quota requiring a 30% minimum participation by women candidates in contests for elected office. This would be similar to the kinds of “quota systems” established in countries including, inter alia, Argentina, Bolivia, Brazil, Colombia, Costa Rica, Ecuador, Mexico, Panamá, Paraguay, Peru, the Dominican Republic and Venezuela. In fact, the adoption of such positive measures has significantly increased the proportion of women elected to higher offices. While the Commission has not studied these particular proposals and takes no position on them, it has indicated in general terms that:
The under-representation of women in government throughout the Americas demonstrates the need for further state action, in conjunction with initiatives of civil society, to bring about true respect for the right of women to participate in political life in compliance with international norms. As the regional and international communities have recognized, achieving the free and full participation of women in all spheres of public life is an obligation which may well require the adoption of special measures of affirmative action designed to effectuate equality of opportunity for women and men.
C. Women, Work and Development
28. Women are excluded from many of the benefits of development by virtue of multiple forms of discrimination based on gender. For example, equal employment opportunities require equality in the possibilities to prepare for employment through education and training. As the data cited in chapter III, supra, indicates, a higher proportion of women to men never attend school or have less than three years of schooling, and a higher proportion are illiterate. These lower levels of education, coupled with other factors of exclusion, result in diminished access to opportunities in the spheres of labor and the economy. In calculating the “index of gender promotion,” which measures the level of advance in the position of women in society, the UN Development Program indicated that there remains a wide gap between women and men in the economic, political and professional spheres.
29. The “positive correlation between schooling and income is indisputable and universal.” Accordingly, it is crucial that the aim of the recently adopted Law on the Dignity of Women to remedy the gender-gap in education and training opportunities be fully implemented without delay.
30. Women also have the right to equal pay and benefits for equal work. While women have in recent years increased their participation in the work force, in both the formal and informal sectors, their salaries remain significantly lower than those of their male counterparts. On the positive side, it must be noted that the gap in certain sectors of the labor market appears to be narrowing. In the industry and services sector, for example, in 1980 it was estimated that women earned approximately 75% of what men earned, while more recent estimates stood at 85%. However, more marked disparities persist in other sectors. For example, while a relatively high proportion of women occupy administrative and professional positions, their average salary is roughly half or less than that of their male counterparts.
31. It must be noted that a high percentage of women work in the informal sector of the labor market, which subjects them to further disadvantages. Women comprise just under a third of the formal sector. While women working in the formal sector are covered by the social security system, the disparately high proportion of women working in the informal sector are not. Women are also subject to higher rates of unemployment than men.
32. One reason for women’s greater participation in the labor market is their growing employment in maquilas. The Commission’s attention has been drawn to allegations of abuse in this sector, including extended compulsory overtime hours, poor working conditions and harassment, coupled with the lack of adequate inspection and oversight by the Ministry of Labor. Another sector with respect to which the Commission has received allegations of violations is domestic work. Many women and young girls pertain to this sector, which is subject to practically no regulation or oversight by the State. Domestic workers are not subject to coverage of the social security system and rarely receive any benefits. Many work 60 hours or more per week, and a significant proportion of employers don’t respect the minimal vacation time required by law. Complaints of abuse and mistreatment abound; one study found that 17% of those who changed jobs did so because of abuse by the employer. While draft legislation has been proposed to provide important basic protections, it has remained under study for several years.
33. Women in the workplace have the right to be protected from discrimination based on marital status or maternity; pregnancy may not be used as a criterion for hiring or firing. The more limited information received by the Commission concerning the situation of working mothers is mixed. On the positive side, the Congress adopted a legislative reform in 1997 to ensure that the calculation of the time for retirement is made without subtracting time taken for maternity leave. This was a very positive measure, expressly implementing the State’s obligations under the Convention on the Elimination of all Forms of Discrimination against Women. On the other hand, the Commission has received information to the effect that the legal prohibition on firing pregnant employees is not subject to effective enforcement because the fine set for employers is so low that they consider it more efficient to violate the law and pay the penalty, and that the practice is prevalent.
D. Health and Reproductive Health
34. The ability of women to control their fertility has a fundamental bearing on her ability to enjoy a range of basic rights, most especially to protect her physical integrity, and plan her family life with her partner. Within the region, Guatemala has a relatively high fertility rate. The maternal mortality rate is 190 per 100,000 live births.
35. The median age for the birth of a first child has not risen in the past 20 years, and stands at roughly 20 years of age. By 19 years of age, 44% of women have been pregnant at least once. Of the pregnancies that occur each year, almost half occur in women between 15 and 24 years of age. The percentages are lower in urban areas and higher in rural areas and among the indigenous population. Indigenous women have an average of two babies more than ladino women, have markedly higher rates of infant mortality, and their births are attended by trained health professionals in only about 12% of cases. In Guatemala, as in other countries, there is a well documented link between increased years of education and delayed child-bearing, decreased number of children, decreased maternal and infant mortality, and increased likelihood that birth will be attended by a trained medical professional.
36. Access to family planning services is limited; roughly 38% of women between 15 and 24 years of age have used some form of birth control. A national study of maternal and infant health carried out in 1999 found that approximately 23% of married women expressed an unmet need for family planning services. Limitations on family planning information and services are related to limitations in access to public health care and education. As indicated in chapter III, supra, large sectors of the population, particularly in rural areas, do not have ready access to health services. Moreover, with respect to those who do have access, because there is no uniform State policy on family planning information, services reportedly depend on the capacity and attitudes of the particular providers. It may be noted that the current plan to reduce maternal and infant mortality does call for increased attention to family planning services in relation to that goal. In fact, more contraceptives are provided by nongovernmental organizations than by public health services.
37. Nor are the limitations on access to family planning information ameliorated by the provision of such information in schools or through education programs for the general public. Reports indicate that, to the extent that sexual education programs are available, they are offered to adolescents (many children don’t remain in school that long), and do not include family planning information. It is hoped and expected that the enactment of the Law for the Dignity and Integral Promotion of Women, which requires measures to enhance training for health personnel and access to integral health services including sexual and reproductive health, will be followed by concrete advances in this sphere.
38. A 1995 survey of maternal and infant health found that 65% of births in the previous five years had involved one or more risk factors, namely a mother under 18 years of age or over 35, less than two years between births, or a birth following three or more previous births. Early pregnancy, which is disproportionately common in Guatemala, brings with it risks for both mother and baby, which, with respect to the latter include higher rates of premature birth, low birth weight and mortality in the first year. UNICEF indicates that girls should not become pregnant prior to reaching age 18, because they are not physically ready for childbearing and because of the potentially harmful consequences. In 1999, the Ministry of Health implemented a national program of integral attention to adolescents, which includes sexual education and prevention of pregnancy within its coverage, although again, limitations in access to public health services mean that the coverage of such programs is similarly limited.
39. While abortion is illegal in Guatemala, it is reported that for every ten pregnancies there are three abortions, and that complications from abortions are the second most common cause of death among women. Therapeutic abortions are permitted, pursuant to the consent of the woman and the opinion of at least two doctors, where indispensable to save the life of the mother. Because abortions are otherwise subject to imprisonment, they can be extremely unsafe. The Ministry of Health has recognized that that this is a serious health problem for women.
40. The inability of many couples to readily obtain family planning services constitutes a severe constraint on their constitutional right to freely determine the number and spacing of children. Moreover:
[w]omen’s health and lives can be jeopardized when they have little hope of preventing pregnancy at too young an age, too advanced an age, at too frequent intervals, or when they suffer from other health problems. Although women may choose to become pregnant despite the risk, they should have access to the means to prevent pregnancy.
The disturbing levels of high risk births and maternal mortality, make clear the pressing necessity to move forward with comprehensive family planning policies.
E. Gender Violence
41. Violence against women is a phenomenon that crosses national boundaries and social strata. While it is certainly not unique to Guatemala, it is a profound problem in the country. Although it is difficult to estimate the depth and breadth of the problem with precision, it is reported that violence based on gender is a leading cause of death and disability among women between 15 and 44 years of age, and that roughly half of all women are subjected to domestic violence. The Law to Prevent, Punish and Eradicate Intrafamilial Violence offers a positive approach to this specific manifestation of gender violence. However, as discussed below, it is not yet fully implemented, and the deficiencies in the administration of justice discussed in chapter IV, supra, have a severe adverse impact on the ability of women to seek judicial recourse and protection.
The Armed Conflict and Violence against Women
42. In trying to understand the dimensions of the present reality of violence against women, reference must be made to the context of the armed conflict that lasted almost four decades and the way in which women were targeted as objects of violence. The Commission for Historical Clarification concluded that women comprised approximately a quarter of the direct victims of the human rights violations of the conflict. The reports of the Project for the Recuperation of Historical Memory and the Commission for Historical Clarification document how women were insulted and dehumanized, terrorized and tortured, raped, disappeared and massacred by State agents, most often soldiers and civil patrollers. Sexual violence, in particular, was used to demonstrate the power of the perpetrator and to humiliate the victim. Those who survived were left to deal with the physical and psychological consequences, including the stigma attached to rape, as well as pregnancy and sexually transmitted diseases.
43. Many women were widowed, lost children, and were left homeless and destitute as a result of the violations of the war. To provide a glimpse of such conditions, a survey in the Ixil region identified 1507 persons who had been widowed, 1314 of whom were women, most living in extreme poverty. A recent report indicated that the widows of those killed in the infamous Panzós massacre in 1978 live in absolutely destitute conditions, more than 20 years after the facts.
44. Women did not suffer in silence; rather, they played a unique and powerful role in responding to the violations visited upon their families and themselves in the conflict. As was the case in other countries marked by gross and systematic human rights violations during that era, the mothers, sisters and daughters of those targeted came forward to search for the disappeared. The Mutual Support Group (GAM), the National Coordination of Guatemalan Widows (CONAVIGUA) and the Association of Families of the Disappeared and Detained of Guatemala (FAMDEGUA) are just a few of the organizations formed primarily by women who risked everything in seeking to rescue their loved ones. The activism generated in response to the violations of the conflict played an important role in opening new spaces for the participation of women in public affairs.
Violence against Women in the Current Context, with Special Attention
45. The State and civil society have made some important advances in providing a legal framework within which to address the problem of intrafamilial violence, first through ratification of the Convention of Belém do Pará, and subsequently through the enactment of the Law on Intrafamilial Violence. This legal framework must now be integrated into a more comprehensive set of approaches that include more resources and attention to providing services for those affected by violence, including those necessary to seek and receive effective protection and recourse before the courts. While the Law to the Prevent, Punish and Eradicate Intrafamilial Violence presents a new legal approach to this problem, the judiciary tasked with enforcing it remains weakened by serious systemic deficiencies (see chapter IV, supra). The goal of preventing, punishing and eradicating violence against women requires addressing the causes of such violence, as well as providing effective legal recourse to deal with its consequences.
46. As recognized in the Convention of Belém de Pará, violence against women is an expression of the historically unequal power relations between women and men, and a clear expression of gender discrimination. Violence based on the gender of the victim is perpetrated in many forms, two of the most common of which are sexual violence and domestic violence. As noted above, the focus of recent advocacy and legislation in Guatemalan has been on the latter -- the violence that affects women in the home, within the family.
47. While it is known that the number of complaints concerning rape and intrafamilial violence filed in 1999 rose in comparison with previous years, one of the serious limitations on the design of effective responses to gender violence is the lack of clear data on the precise magnitude of the problem. The Director of the Domestic Violence Program of the United Nations Latin American Institute for the Prevention of Crime (ILANUD) estimated that half of all Guatemalan women suffer some form of violence, primarily physical. A representative of the nongovernmental Network of Nonviolence against Women estimated that every 46 minutes a woman is subjected to violence.
48. Having recognized the lack of precise data as a severe problem, in 1998 the Office of the Defender of Women’s Human Rights of the Ombudsman worked with State and non-state entities to design a unitary registration form to be used by the public entities responsible for receiving denunciations. The form was put into practice in early 1999, and offers great promise. However, reports as of late 1999 indicated that further work is required to make it an effective tool. Some entities were unaware of the form, some didn’t have it, some didn’t attribute much importance to it, and the level of detail and doubtful utility of some of the information requested discouraged completion.
49. Under the American Convention and the Convention of Belém do Pará, States Parties are required to use due diligence to prevent, investigate and punish violence against women, as well as to ensure the availability of effective legal protection and remedies for the victim. Guatemala’s response to intrafamilial violence reveals specific areas where further steps must be taken in order to provide victims with effective protection for their basic rights. MINUGUA carried out a comprehensive study on the State’s response to intrafamilial violence and rape in 1999. In examining how State personnel assigned to receive complaints of intrafamilial violence responded, MINUGUA identified a tendency on the part of many, particularly police officers, to blame the victim. One officer was quoted as expressing the view of many that “the principal cause of intrafamilial violence is the behavior of the woman.” Women reported receiving little information about how to file a complaint, and having to visit multiple offices to seek protective measures. On the positive side, the courts ordered protective measures in almost all the cases studied. However, in the vast majority of cases, the orders were issued in a pro forma manner, and did not correspond to the circumstances of the case. Further, the orders were not always effectuated; the National Civil Police didn’t report back to the judge on implementation, and judges didn’t verify compliance.
50. With respect to rape, the study reported that the clear majority of the victims interviewed reported having been treated well in filing their complaint to the local authorities. Four of the 21 interviewed reported having been denied assistance. Surprisingly, the study indicated that the creation of the Office of Attention to the Victim of the Public Prosecutor had not improved assistance to victims, principally because the staff was not sensitive to their needs and subjected them to further hardship. The most significant problems in the legal process were reported in (1) the collection of proof, particularly with respect to delays and deficiencies in gathering forensic evidence, and (2) the arrest and prosecution of the perpetrators. Of the 3 files from 1997, 12 from 1998 and 32 from 1999 reviewed in the study, 34 remained under investigation, and seven had reached the stage of sentencing. With respect to the cases that reached sentencing, all but one of the victims indicated dissatisfaction with the result.
51. Given the interrelated barriers to justice with respect to violence against women, many crimes are not denounced, adequate statistics are not kept, victims are blamed rather than assisted, and the State does not apply due diligence to investigate, prosecute and punish these violations. The lack of effective judicial response leaves victims with nowhere to turn for protection and vindication, thereby exacerbating and perpetuating the consequences of the violence. Moreover, the profundity of the problem and its consequences is not well understood, and society is not involved in demanding its resolution. The barriers faced by indigenous women are significantly higher, given the scarcity of police and judicial personnel who speak indigenous languages, and lack of interpreters, as well the limitations in access to judicial facilities and services in rural areas.
Conclusions and Recommendations
52. The important progress realized over the last several years in remedying problems of de jure discrimination and adopting new strategies to begin addressing de facto discrimination demonstrate that, with the allocation of sufficient attention and resources, further reforms are both feasible and essential. The persistence of a number of anachronistic and unjustified legislative distinctions based on gender contravenes the object and purpose of the positive new agenda that is being constructed. These should be corrected forthwith. The law must be made to respect the norms of equality and nondiscrimination. The quest of the State and civil society to ensure that women are able to fully exercise their rights requires meeting two further priority challenges. First, it is essential that the administration of justice be made more available and effective for women seeking the protection of basic rights. Second, the positive norms that have been adopted to safeguard the rights of women must be translated into concrete action through the establishment and strengthening of the necessary policies, programs and services.
53. In light of the foregoing analysis and conclusions, the Commission recommends that the State:
1. Take the steps necessary to carry out a comprehensive review of national legislation to continue the process of identifying provisions which establish unjustified distinctions based on gender.
2. Adopt the legislative and other measures necessary to advance without delay in the process of modifying or eliminating provisions, such as those discussed above, already identified as discriminatory.
3. Within the framework of ongoing efforts to strengthen the administration of justice, devote specific attention to the barriers in law and in fact that impede women’s access to effective judicial remedies and protection, particularly in the area of violence against women.
4. Establish the necessary mechanisms of coordination, technical assistance, training, monitoring and evaluation to ensure that the perspective of gender is incorporated in the design and execution of all spheres of law and policy; this should include amplifying existing mechanisms for the participation of civil society in the formulation and implementation of State initiatives affecting the rights of women.
5. Ensure the allocation of sufficient human and material resources to the entities, such as the National Office of Women, the Office of the Defender of Indigenous Women, the Office of the Defender of Women’s Human Rights of the Ombudsman, and the Presidential Secretariat of Women, tasked with special responsibility for the protection of the rights of women.
6. Strengthen strategies to ensure that girls have equal access to primary education, and to support the completion of primary school as a minimum standard, and to provide girls and women equal access to secondary education, and technical and professional training.
7. Design and implement educational initiatives for people of all ages, with a view to changing stereotypes and beginning to modify practices based on the idea of inferiority or subordination of women.
8. Strengthen labor legislation and labor inspection services to protect the right of women to just, equitable and healthy conditions of work; to ensure equity in pay and benefits; and, in particular, to safeguard the rights of women and girls employed in domestic work.
9. Adopt additional steps to provide integral health services, including the provision of modern family planning services, in order to protect the right of women to personal integrity, and the right of couples to determine the number and spacing of children.
10. Ensure that the impact and consequences of the acts of violence committed against women during the armed conflict are adequately reflected in the design and execution of the national reparation plan and other measures of reparation and rehabilitation.
11. Further develop the system for registering complaints of violence against women to ensure the adequacy of the form used to collect information and the availability of accurate data for the design of effective responses.
12. Invest additional human and material resources in education initiatives designed to inform the public about the causes, nature and consequences of gender violence, most especially intrafamilial violence, and to inform girls and women of their right to be free from violence and the measures available to protect that right; such initiatives should include information about the terms of the Law on the Prevention, Punishment and Eradication of Intrafamilial Violence and the Convention of Belém do Pará.
13. Intensify and amplify existing efforts to train officials, particularly those within the National Civil Police and Public Prosecutor’s Office responsible for receiving complaints, in the causes, nature and consequences of gender violence, with a view to increasing the sensitivity and efficacy of their response to victims.
14. Guarantee the availability and effective implementation of judicial measures to protect women who have been subject to or threatened with violence.
15. Provide additional training, technical assistance, material resources and oversight to the entities responsible – the National Civil Police, Office of the Public Prosecutor, technical personnel such as forensic specialists, and the judiciary -- to ensure that cases concerning violence against women are investigated, prosecuted and punished in accordance with the standard of due diligence of the American Convention and Convention of Belém do Pará.
Decreto Número 7-99, published in
Diario de Centro América, 9 April 1999.
Nacional sobre la Situación de los Derechos Humanos de las Mujeres
Guatemaltecas” [prepared by a coalition of 20 nongovernmental
organizations] -- actualización del informe presentado a la CIDH en su
visita en loco a Guatemala (8 August 2000) [Informe ONG 2000].
Decreto No. 97-96, of 24 Oct. 1996.
Decreto No. 80-98, Decreto No. 29-99, published
in Diario de Centro América,
23 December 1998 and 30 August 1999, respectively.
Article 1 defines such discrimination as:
any distinction, exclusion or
restriction made on the basis of sex which has the effect or purpose of
impairing or nullifying the recognition, enjoyment or exercise by women,
irrespective of their marital status, on a basis of equality of men and
women, of human rights and fundamental freedoms in the political, economic,
social, cultural, civil or any other field.
definition covers any difference in treatment on the basis of sex which
intentionally or unintentionally disadvantages women; prevents recognition
by society as a whole of the rights of women in the public and private
spheres; or, prevents women from exercising the human rights to which they
Among the initiatives with respect to which the Commission has received
information are efforts to reform the Law of Elections and Political
Parties, criminalize sexual harassment, reform the Organic Law of the
Guatemalan Institute of Social Security, create legal protections for
domestic workers, and reform the Law of Development Councils.
See generally Informe del Estado de Guatemala: “Recomendaciones de
la Comisión Interamericana de Derechos Humanos, relativas a la Condición
de la Mujer en las Américas (Dec. 1999).
The ninth, Article 317, which allows
certain classes of persons – inter
alia, the indigent, those with chronic health problems, those over 70
years of age, those absent from the country for more than one year, and
women -- to be excused from exercising certain types of guardianship, has
not been modified.
The Article maintains its original heading, “protection to the
wife,” and first paragraph, stipulating
that the husband owes certain duties of protection and assistance to the
See Report 4/01.
See notes 7 to 9, supra.
This was among the issues highlighted by the UN Committee on the Elimination
of Discrimination against Women in its review of the initial report of
Guatemala in 1994. See Annual
General Assembly Report of the Committee, 12/04/94, A/49/38, at para.
also Article 81 of the Civil Code, which recognizes this same age
See Coordinadora por los Derechos Económicos, Sociales y Culturales
[COODESC], “Mujer en el contexto de los derechos económicos, sociales y
culturales en Guatemala” (2000); see
generally, Informe ONG 2000, supra,
Informe ONG 1998, 2000.
In its response to the draft report, the State reported that the draft set
of reforms to the Code of Work proposed by Deputy Nineth Montenegro had been
presented to the plenary of the Congress in April of 2000.
In May, Deputy Montenegro had presented the draft “Law of
Protection for Work in Private Homes.”
Further, in June, the Presidency had presented draft legislation
concerning reforms to the Code of Work.
See IACHR, Report of the IACHR on the
Status of Women in the Americas, published in Annual
Report of the IACHR 1998, OEA/Ser.L/V/II.102, Doc. 6 rev., April 16,
1999, and as a separata, OEA/Ser.L/V/II.100, Doc. 17, Oct. 13, 1998,
recommendations at C.4.
In the judicial sphere, for example, the State has reported, of the total of
740 magistrates and judges, 157 are women.
United Nations Development Program (UNDP), Guatemala:
la fuerza incluyente del desarrollo humano (2000) p. 98.
See IACHR, “Considerations Regarding the Compatibility of
Affirmative Action Measures Designed to Promote the Political Participation
of Women with the Principles of Equality and Non-discrimination,” in Annual
Report of the IACHR 1999, OEA/Ser.L/V/II.106, Dec. 3 rev., Apr. 13,
2000, at chapter VI, section II.
See, for example, Mala N. Htun, “Women’s Leadership in Latin
America: Trends and Challenges,” (paper presented at the conference
“Politics Matter,” cosponsored by the Inter-American Development Bank,
the Inter-American Dialogue and the International Center for Research on
Women, 13 Nov. 2000), table 11.
Id., at section IV.
For example, concerns about limitations on women’s access to land and
credit are referred to in chapter XIV of the present report, infra.
UNDP, supra p. 16.
Inter-American Development Bank (IADB), Technical
Notes on Reproductive Health, Technical Note 1, p. 4 (citing
WISTAT, version 4; ECLAC 1998, Table 39; UNICEF 1999, Table 2.2.
UNDP, p. 17, table 1.2.
Id., pp. 63-64 (referring to the insufficient opportunities for
women in the formal sector, and the need for women to resort to
Id., at table A.26, see also
pp. 63-64, 124.
Id., pp. 63, 124.
See “Informe Nacional sobre la Situación de los Derechos Humanos
de las Mujeres Guatemaltecas” (1998) (Informe ONG 1998), p. 21; and
Informe ONG 2000, supra.
For example, Article 164 of the Code of Work stipulates that domestic work
is not subject to the limits of the normal work day.
See UNDP, p. 169, inset 6.2.
Id., p. 169, inset 6.2.
Informe, p. 61; see also Danilo Valladares, “Conflictos laborales
en maquilas,” Prensa Libre, 30 Oct. 2000 (noting, in particular, the
firing of pregnant workers in violation of national law, and lack of
adequate oversight by the Ministry of Work); “Trabajadores de maquilas se
quejan de maltrato,” Prensa Libre, 30 Oct. 2000 (citing Ombudsman for
Human Rights concerning receipt of complaints concerning violations in this
sector, and lack of Ministry oversight).
UNICEF, Statistics for Latin America and the Caribbean, “Guatemala:
Demography,” at www.unicef.org/lac.
PNUD, pp. 142-43.
Id., p. 143.
See IADB, Technical Notes,
supra, Technical Note 2, pp. 4-5.
See id., p. 4, table.
PNUD, p. 143.
Instituto Nacional de Estadística, Encuesta
Nacional de Salud Materno Infantil 1999.
This statistic represents a reduction of 2% from the previous
census in 1995.
Center for Reproductive Law and Policy (CRLP), An
Unfulfilled Human Right: Family Planning in Guatemala (2000), at
Executive Summary, section B.
Id., chapter III.A.
majority of contraceptives, approximately 36%, are provided by a private
organization, the Guatemalan Association for the Well-Being of the Family (APROFAM),
and only 25% are provided by the public sector.
See id., section II.E.
Instituto Nacional de Estadística, supra,
See Fact Sheet No. 23, Harmful Traditional Practices Affecting the Health of
Women and Children (Office of the UN High Commissioner for Human Rights
1997), at section E.
Abortion is codified as a crime in chapter III of the title of the Criminal
Code defining crimes against life and personal integrity.
See Articles 133-140,
CRLP, Executive Summary at A.
Article 137, Criminal Code.
See CRLP, Mujeres del Mundo (1997) p. 118, citing Plan Operativo 1996 of the Ministry, p. 1.
CRLP, An Unfulfilled Human Right, chapter IV.A.
CRLP, An Unfulfilled Human Right, supra,,
at Executive Summary, section A.
Commission for Historical Clarification (CEH), Guatemala:
Memory of Silence (1999), at Conclusions and Recommendations, para. 29.
REMHI, Guatemala: Never Again (1998),
[English edition] part 1, section 5, “From Violence to the
Affirmation of Women.”
UNDP, p. 183, inset 6.6, citing
Juan Carlos Ruiz, “Las viudas olvidadas,” Región:
América Central y el Caribe, Comité Internacional de la Cruz Roja,
enero 2000, at p. 18.
See generally, REMHI, supra;
CEH, Conclusions, para. 30.
The Public Prosecutor reported receiving just under 1400 complaints
concerning intrafamilial violence, and just under 600 concerning rape during
1999. In 1998, those numbers
were just over 600 and just over 400, respectively.
PNUD, , p. 112, table 4.8.
MINUGUA, Tenth Report on Human Rights,
A/54/526, 11 Nov. 1999, “Suplemento, Funcionamiento del Sistema de
Justicia,” paras. 39 (concerning the lack of data), 57 (concerning
Olga López Ovando, “Maltrato a la mujer es grave en Guatemala y el resto
de Latinoamérica,” Prensa Libre, 23 de noviembre de 1999.
Olga López Ovando, “Marcha contra la violencia,” Prensa Libre, 26 de
noviembre de 1999.
MINUGUA, supra, para. 40.
The study was based on interviews with victims, State officials, and members
of nongovernmental organizations working in this field throughout the
country, and a review of 55 case files.
Id., para. 41.
Id., para. 42.
The study noted that in most cases, the orders failed to specify the
duration of the measures, and expressed concern on this point in relation to
the right of defense, given that in only four of the cases had the presumed
aggressor even been cited to appear in court.
Id., para. 44.
Id., para 45.
Women reported having turned to the closest local authority, either the
National Civil Police, the justice of the peace or the Public Prosecutor. Id.para.
Id. para. 50.
Id. paras. 47-48.
In one of these, an attempted rape had been classified as a criminal
misdemeanor, with the perpetrator fined 100 quetzales. Id.para.
Id. para. 52.
See generally, Olga López Ovando, “Procesos en casos de violencia
contra la mujer no prosperan,” Prensa
Libre, 25 de novimbre de 1999 (noting that, notwithstanding the
existence of laws to protect women, cases of gender violence will not
prosper in the courts as long as the “macho culture” continues to
See MINUGUA, para. 43 (noting that the indigenous victims of
violence covered in its study who had been able to file denunciations all
spoke Spanish to a greater or lesser degree); see
generally, chapter IV(C) of the present report, supra (concerning advances and pending challenges with respect to
geographic and linguistic access to justice).