OEA/Ser.L/V/II.110
Doc.52
9 March 2001
Original:  Spanish

THIRD REPORT ON THE SITUATION OF HUMAN RIGHTS IN PARAGUAY

 CHAPTER VIII

WOMEN’S RIGHTS

          A.          INTRODUCTION

          1.          Even though the principles of equality and non-discrimination are recognized in practically all international instruments for the protection of human rights,^[1] as well as in the regional instruments,^[2] it has been necessary to adopt several universal and regional instruments that specifically protect women’s rights.^[3] All of these establish the principle of equality, as well as the prohibition on discrimination, and charge the state with a series of obligations aimed at putting this principle into practice.

          2.          The principle is even set forth in the United Nations Charter, whose preamble states:  “We the Peoples of the United Nations Determined ...  to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small....” Even though the principles of equality and non-discrimination have been recognized by the international community in an act as fundamental as the United Nations Charter, and in most of the treaties for the protection of human rights, and even though all the civilized nations recognize its essential importance for democratic life and the rule of law, this recognition does not always translate into effectiveness.  For example, while women have entered public life, and are increasingly able to participate in it, access to decision-making positions is still scant.  This can be seen in government, private enterprise,^[4] and even in international organizations.^[5]

          3.          The importance of this issue was also highlighted in several specialized conferences, including the Vienna World Conference on Human Rights held in 1993, and the Fourth World Conference on Women held in Beijing, in 1995.  In this context, the Inter-American Commission on Human Rights attributes special importance to the rights of women in the hemisphere.  Accordingly, the Commission appointed special rapporteur on women’s rights,^[6] who submitted a report on the status of women in the Americas that was approved by the Commission during its 98th session.^[7] In addition, the Commission has dedicated a special chapter to the question of women’s rights in its latest reports on the situation of human rights in various countries.^[8]

          4.          As noted elsewhere,

The promotion and protection of women's rights is very much related to the question of discrimination against women in the enjoyment of human rights.  While gender discrimination persists, women cannot fully enjoy their human rights.  For this reason, international legislation bases the protection of women’s rights mainly on the principle of non‑discrimination and on the principle of the equality of men and women.^[9]

          5.          Even though Paraguay has made major strides from the legislative standpoint to protect the human rights of women, there subsists in the legal framework -- but especially in practice -- numerous discriminatory situations.  In this chapter the Commission analyzes the legal structure, both national and international, binding on the Paraguayan State, as well as Paraguay’s progress in this area. Also analyzed are the problems related to violations of the principle of non-discrimination against women, specifically in respect of violence, work, health, education, and prisons.

          B.          LEGAL REGIME

          1.          International instruments

          6.          As indicated above, the instruments of the inter-American human rights system, like those of the universal and other regional human rights systems, have the principle of equality and non-discrimination as one of their fundamental pillars.

          7.          In the inter-American system, the American Declaration on the Rights and Duties of Man provides at Article II: “All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor.”  In addition, Article XVII of the American Declaration provides: “Every person has the right to be recognized everywhere as a person having rights and obligations, and to enjoy the basic civil rights.”

          8.          Similarly, the American Convention on Human Rights, ratified by Paraguay in 1989, establishes at Article 1: “The States Parties to this Convention 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....”  Article 3 of the Convention notes: “Every person has the right to recognition as a person before the law.”  Article 24 of the same instrument provides: “All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law.”

          9.          The Inter-American Convention on the Prevention, Eradication and Punishment of Violence Against Women, known as the “Convention of Belém do Pará,” ratified by Paraguay in 1995, defines violence against women as “... any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or private sphere.”

          10.          Finally, in the inter-American sphere, the Protocol of San Salvador, ratified by Paraguay in 1997, also contains the non-discrimination obligation at Article 3: “The State Parties to this Protocol undertake to guarantee the exercise of the rights set forth herein without discrimination of any kind for reasons related to race, color, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social condition .”

          11.          In the universal system, the International Covenant on Civil and Political Rights, ratified by Paraguay in 1992, establishes 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, political or other opinion, national or social origin, property, birth or other status.”

          12.          The Convention on the Elimination of All Forms of Discrimination against Women, ratified by Paraguay in 1987, defines discrimination against women 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....”  That Convention adds, at Article 2, 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.”

          2.          Domestic law provisions

          13.          The Paraguayan Constitution of 1992 recognizes the full equality of women and men.  It provides at Article 46: “All residents of the Republic are equal as far as dignity and rights are concerned. No discrimination is permitted. The State shall remove all obstacles and prevent those factors that support or promote discrimination.”  In addition, Article 47 of the Constitution establishes that the State shall guarantee all inhabitants equal access to justice, equality before the law, equal access to non-elective public posts, and equal opportunity to participate in the benefits of nature, material goods, and culture.  Article 48 of the Constitution expressly sets forth equal rights for men and women, indicating: “Men and women have equal civil, political, social, and cultural rights. The State shall foster the conditions and create the mechanisms adequate for making this equality real and effective by removing those obstacles that prevent or curtail its realization, as well as by promoting women's participation in every sector of national life.”

          14.          In terms of protection for women against domestic violence, at Article 60 of the Constitution the State assumes the obligation to promote policies whose purpose is to prevent violence in the family.

          15.          As regards health, the Paraguayan Constitution establishes at Article 68: “The State shall protect and promote human health as a fundamental right of each person and in the best interests of the community. No one shall be deprived of public assistance....”

          16.          In the area of education, Article 73 of the Constitution establishes the right of all persons to receive comprehensive and permanent education in the context of the community’s culture. Article 74 guarantees the right to learn and equal opportunity in access to the benefits of humanist culture, science, and technology, without discrimination of any kind.

          17.          As regards the right to work, the Constitution provides at Article 86: “Every inhabitant of the Republic has the right to a legal job, freely chosen, which he performs under decent, fair conditions....”  Article 88 sets forth the principle of non-discrimination in the work place, establishing: “No discrimination will be permitted against workers for reasons of race, sex, age, religion, social status, and political or union preference.”  In addition, Article 89 of the Constitution refers specifically to women’s right to work, indicating: “Workers of both sexes have the same labor rights and obligations, but maternity shall be subject to special protection and shall include health care services and the appropriate leave, which shall not be less than 12 weeks. A woman may not be removed from her work during pregnancy or during her maternity leave.”

          18.          As can be observed, the main legal provisions applicable in Paraguay, both international and domestic, enshrine the principles of equality and non-discrimination as the basis for women’s enjoyment of human rights in Paraguay.

          C.          PROGRESSIVE MEASURES

          19.          As has been seen, in recent years the Paraguayan State has adopted major legal reforms to protect women’s rights and to try to eliminate discrimination against women.  Internationally, one of the most important legislative advances was Paraguay’s ratification in 1995 of the Inter-American Convention on the Prevention, Eradication and Punishment of Violence Against Women.  At the domestic level, since 1989 important steps have been taken to achieve legal equality and to create a practical commitment to gender equity.  Since 1992, much of the legislation that discriminated against women has been amended.  The Constitution, Civil Code, Labor Code, Criminal Code, and Electoral Code were all amended for the purpose, among others, of achieving equal opportunity for the sexes.

          20.          Examples include the 1992 Constitution which, as mentioned above, contains several articles specifically on equality of the sexes and prohibits and protects against discrimination.  In addition, it explicitly establishes protection from family violence.  The Labor Code defines sexual harassment as just cause for unilateral termination of the contract by the worker.  In addition, Article 128 of the Labor Code states that “in all cases in which this Code refers to the worker and employer, it shall be understood as to include women workers and women employers.  Women shall enjoy the same labor rights and have the same obligations as men.”

          21.          The new Criminal Code has been in effect since 1998; it sets forth an advanced version of women’s rights.  It characterizes domestic violence as a criminal offense^[10] and specifically describes several sex crimes that have a detrimental impact mainly on women.^[11] Fundamental advances have been made in terms of the references that had existed to female honor as a circumstance to be taken into account when judging sex crimes.  The Electoral Code was amended to include the quota system and thereby increase women’s participation and representation in public life in Paraguay.  The reform of the Electoral Code establishes that neither sex can account for more than 60% of the initial lists of the tendencies or internal movements that vie for party decision-making positions or that prepare to compete with other parties. Accordingly, there should be alternation of men’s and women’s names from the outset.^[12]

          22.          In addition to the constitutional and legislative advances, the Paraguayan State created the Secretariat for Women’s Affairs in 1993.  This Secretariat is established under the Office of the President, and is entrusted with government policy on equal opportunity.  It has developed a policy of engaging in discussion and joint work with several women’s organizations, and an incipient process is under way to establish secretariats for women’s affairs in the departmental governments.^[13]

          23.          Another stride in the policy of equality was the presentation of the National Plan for Equal Opportunity for Women, 1997-2001, which constitutes the state’s main commitment to having a government administration geared to fostering gender equity and doing away with its own actions that could discriminate against women.  The objective of this Plan is to serve as a real guide for the performance of the public sector.  After launching the Equality Plan, the Secretariat for Women’s Affairs organized strategic planning workshops with officials from several public offices to give direction to its implementation. In addition, several sectoral plans have been approved, such as the Plan for the Prevention, Punishment, and Eradication of Violence Against Women, as well as agreements with several ministries and public institutions to coordinate sectoral actions for equal opportunity from the state.^[14]

          24.          Despite the major legislative advance just analyzed, some provisions do not fully answer to the principle of equality, or are not consonant with the gender perspective that has emanated from the international treaties protecting women’s rights.  One example of lack of equality is to be found in the labor law provision extending social security benefits to the wives or common-law wives of male workers, but not to the husbands or common-law husbands of female workers.  One example of a law not in line with the gender perspective as set forth in the major relevant international treaties is the criminal law provision that characterizes domestic violence as a criminal offense, but imposes only a fine.  These problems will be analyzed in the following paragraphs.

          D.          DISCRIMINATION IN GENERAL

          25.          Despite the legislative reform effort in Paraguay, some problems persist related to de jure discrimination.  The first is the failure to criminalize discrimination, even though the Constitution expressly establishes the State’s obligation to guarantee equality of all persons before the law, as well as the prohibition on and protection from discrimination.

          26.          In addition to the discrimination suffered by women through the law, there persist in Paraguay a series of practices that result from the social discrimination by reason of sex.  Accordingly, despite the quota laws, women still have low political representation^[15] and scant access to decision-making circles.^[16]  Similarly, poverty has a special impact on women; it has affected mainly rural and indigenous women, many of whom are forced to emigrate to bordering countries, where they reside illegally.^[17]

E.          VIOLENCE

          27.          Situations of violence against women persist in Paraguay.  The two most common types of violence against women are sexual violence and domestic violence.  Even when such forms of violence against women are not perpetrated by state agents, their occurrence can trigger state responsibility when the state fails to implement reasonable preventive measures, duly investigate the acts of violence, or punish the persons responsible.

          28.          In this respect, it has been noted that some 5,000 cases of violence go unreported each year, and almost 25% of all violent crime occurs in the home, and the victims are mainly women.^[18] The same report indicates that considering only the cases of sexual and domestic violence reported from January to September 1999 (murder and attempted murder, rape, attempted rape and sexual abuse, sexual harassment and physical abuse), 86% of the victims are women, 50% of them under 18.  Of the perpetrators, 93% are men.  These data show that sexual and domestic violence continue to pose a grave problem to Paraguayan women.^[19]

          1.          Abuse and sexual exploitation

          29.          As regards sexual violence, the report on the human rights situation of women prepared by the Comisión de Mujeres del Paraguay (Paraguayan Women’s Commission) for the Commission, indicates that in the first months of 1999 there was one rape every 2.4 days.  In 1998, the press reported one rape every three days.  That year, in almost 30% of the cases of rape of women over 18 years of age the assailant was the father or guardian, a relative, or an otherwise familiar person.  Of women under 18 years, 45.2% corresponded to this same category of perpetrators; in 22% of these cases, the assailant was the father or guardian.^[20]

          30.          As regards sexual harassment, in 1999, several accusations were reported, many of them in primary and secondary schools.  Male teachers account for most of the persons accused of this crime.  State officials have also been accused of the same conduct.^[21] While in many cases administrative inquiries and judicial proceedings have been instituted, there is no estimate of the extent of hidden sexual harassment, which is generally much greater than the cases reported.  The sexual exploitation of girls under 18 years of age is also serious. This issue is analyzed in the chapter on children’s rights (supra).

          31.          In the legislative area, while there have been some progress, already expressed in this report, problems persist with the legal characterization of sexual crimes.  For example, with respect to the crime of sexual coercion, the law establishes that the penalty can be attenuated at the judge’s discretion when “based on the relationship of the victim with the perpetrator, there are attenuating circumstances.”^[22] This could reinforce discriminatory values according to which the burden is on the victim to prove that she is not guilty of having provoked the sexual coercion.  This also implies a barrier to judging rape in the relationship between husband and wife. Along the same lines, Article 130 of the Criminal Code punishes the sexual abuse of defenseless persons with a penalty of up to three years, and increases the penalty to 10 years only if coitus is shown; attenuating circumstances can be shown if there is a relationship between victim and perpetrator.

          2.          Mistreatment

          32.          In the case of physical abuse, the General Bureau of Records of the National Police^[23] indicates that in the first months of 1999 there were 221 cases of bodily injury to women by their husbands or partners.  The report mentions that this figure reflects only a share of the cases of physical abuse, as many cases go unreported out of fear of reprisals or due to ignorance of one’s rights.  In addition, the Commission received information indicating that in Paraguay there are no battered women’s shelters.

          33.          Another serious problem in Paraguay is the murder of women. Figures indicate that one woman was murdered every 12 days, on average, in 1998.  In more than 83% of the cases, the killer was the husband, a relative, or an acquaintance.^[24] It is also reported that most of the cases remain in impunity.^[25]

          34.          The Draft Law on Domestic Violence Against Women, submitted to the National Congress in December 1998, has yet to be adopted.  It is being studied by the legislation and human rights committees of the Congress.  The Commission already expressed its concern over the failure to adopt this legislation during its on-site visit.^[26] Nonetheless, the Commission wishes to note that while discrimination against women answers to stereotypes long-rooted in society, which cannot be modified by the mere existence of laws, the adoption of adequate legislation is not only a very important step, but also essential and compulsory in order for the State to abide by its international commitments.

          35.          A large number of cases of violence involve girls under 18 years.  This is analyzed in greater depth in the chapter on the rights of children (supra).  Nonetheless, the Commission wishes to highlight here that according to the information received, 58.5% of the females who reported sexual exploitation were under 16 years old,^[27] and that a growing number of girls are victims of sexual exploitation.^[28]

          36.          While the new Criminal Code, in effect since 1998, includes Article 229, which characterizes family violence as a criminal offense and specifically addresses several sex crimes that affect mainly women and children, several of the definitions in this Code are insufficient, as are the penalties they establish.  The definition of family violence in the Civil Code now in force excludes forms of violence other than physical, in violation of the Convention of Belém do Pará,^[29] and establishes that the violence must be “habitual.”^[30] This requirement stands in the way of adequate protection for women, which might prevent a recurrence and further harm to the victim.  In addition, the punishment for this offense is a fine, leaving the perpetrator free.

          37.          As indicated, even though the State intends to combat violence against women, and with this in mind has amended several laws, in practice sexual and physical violence against women, in both private and public spaces, continues to be a grave problem in Paraguay.

          F.          WORK

          38.          Despite the reforms to the Labor Code to benefit women, segregation and discrimination in the work place continue.  The situation of general poverty in Paraguay affects all workers.   Nonetheless, discrimination in employment is such that women are forced to accept the worst jobs and lowest pay.^[31] This is also related to the fact that women have higher illiteracy. It has been noted that women earn approximately one-third to one-half of men’s earnings with the same level of schooling.^[32]

          39.          An ECLAC study shows that unemployment is higher among women than men.  This difference grows over time.  Accordingly, in 1990 the unemployment rate for youths ages 15 to 24 was 14.7% for men and 16.5% for women, while in 1998 it was 11.5% for men and 14.1% for women.  For the 25-to-34 year age group, unemployment was 5.0% for men and 4.7% for women in 1990, while in 1998 it was 3.9% for men and 5.8% for women.^[33]

          40.          One important aspect of the labor situation of women is represented by unpaid women’s work. The percentage of women in the economically active population increases from 22% to 77.1% if one includes the work of women engaged on an occasional basis in farming and women working at home but not for pay.^[34]  Discrimination persists in the labor legislation regulating domestic work.  The Labor Code provisions, which are not respected, establish that women domestic workers cannot receive less than 40% of the minimum salary, and that the work-day may be as long as 12 hours.  This provision has major repercussions for women, for as noted above, a large percentage of the female economically active population (25%) is engaged in remunerated domestic service, while only 0.4% of the male economically active population is so employed.^[35]

          G.          HEALTH

          41.          Even though Article 68 of the Paraguayan Constitution guarantees the right to health as a fundamental right of which no one may be deprived, in practice a large number of women have no access to basic health services; this situation is worse among peasant women, most of whom have no protection for their right to health.^[36]  The regulations of the Social Security Institute are discriminatory, as male workers can extend health insurance benefits to their wives or common-law wives, but women workers cannot do the same with their husbands or common-law husbands.^[37] In addition, two typically-female professions, private teachers and remunerated domestic service, are not covered by the benefits of the Social Security Institute, as they have no retirement benefit.^[38]

          Reproductive Health

          42.          One issue of great concern to the Commission is maternal morbidity in Paraguay, which reflects the level of poverty and exclusion of women.  According to a UNICEF report, Paraguay has the third-worst maternal mortality. Official figures indicate a decline in maternal morbidity.  The 1996 report of the Ministry of Public Health and Social Welfare indicates that in that year maternal mortality was 123 per 100,000 live births. In 1997, the figure declined to 102 per 100,000.  The same report indicates that underregistration was 44.7% in 1996 and 45.4% in 1997.  Therefore, for 1997 the estimated rate was 187 per 100,000 live births.^[39] These figures, however, contrast with other sources of information that place maternal mortality at 190 per 100,000, without taking account of underregistration, estimated at more than 50%.^[40]

          43.          The above-mentioned UNICEF document, presented in 1998, notes the following as important points in relation to this issue:  (a) Of all maternal deaths, 75% have to do with inefficiency in the health services. The quality of service provided is limited, and inadequate treatment persists.  (b) Forty percent (40%) of pregnant women who sought institutional care were unable to satisfy this right due to mistreatment, high cost, and poor quality of care.  (c) Only 36.2% of rural women receive health care from qualified medical personnel.

          44.          It has been noted that this is intimately related to the low budget allocated to the health sector.  For Paraguay as a whole, there are seven physicians for every 10,000 inhabitants, and one hospital bed per 1,000 inhabitants.  In addition, the State has not waged an effective campaign to disseminate family planning methods that reaches the largest possible number of women, as a means of controlling maternal morbidity, especially among peasant women.  Nonetheless, there is no legislation nor public policy advocacy proposing specific prevention or care.^[41]

          H.          EDUCATION

          45.          The disparity in illiteracy rates continues to be significant.  The percentage of women who are illiterate is much greater than men.  Six of every 10 illiterate persons in Paraguay are women, mainly in the rural areas, and there are high drop-out rates, especially for girls.^[42] It is important to note that a large part of the female population does not speak Spanish;^[43] for women this is often an obstacle to taking advantage of social and economic opportunities.

          I.          WOMEN PRISONERS

          46.          During its on-site visit to Paraguay, and afterwards, the Commission received information on the conditions of detention at the Buen Pastor women’s prison, which holds 167 adult women and 37 girls and young women ages 13 to 20 years.  Thus, it has been noted that the biggest problems related to the human rights violations faced by the women detained there are related to subhuman disciplinary punishments, sexual abuse and rape, lack of medical care, provision of medicines (especially tranquilizers) without medical prescription, drug trafficking, and prolonged preventive detention.^[44]

          47.          The women prisoners also suffer other specific forms of discrimination, if one compares the conditions of confinement of women and men.  In contrast to male inmates, only those who are married or have a common-law relationship of at least five years’ duration can receive private visits.  In addition, the lesbian prisoners suffer discrimination based on sexual orientation, for which they are punished.  In addition, the women prisoners do not have access to adequate medical care, and even though the prison laws prohibit male officers, there are male prison guards. This is closely related to the reports of rape by guards.^[45]

          J.          RECOMMENDATIONS

          48.          Mindful of the foregoing analysis and the specific problems posed, the Commission makes the following recommendations to the Paraguayan State:

1.       Given impetus to the legislative changes still needed to attain complete protection from discrimination for women.

2.       Implement programs aimed at solving the problem of violence against women, and to provide care and counsel for the victims.

3.       Foster adequate measures to attain equality between men and women in the work place.

4.       Promote the participation of women in public positions, particularly in decision-making positions.

5.       Make adequate health services, as well as programs with information and services for reproductive health, available to women, especially poor and indigenous women.

6.       Promote bilingual education, especially in rural areas, and incorporate education for human rights in the curricula at all levels, establishing non-sexist education and the right to equality and non-discrimination as fundamental for the enjoyment and exercise of human rights.

7.       Take the necessary preventive measures to avoid the worsening of prison conditions for women inmates, and measures to improve their situation, in particular to accord them the same rights as men, especially visitation rights.

8.       Promote positive measures aimed at making effective the principle of non-discrimination in all spheres of the public and private life of women, through information and education programs aimed at eliminating sexist stereotypes.