ACCESS TO JUSTICE FOR WOMEN VICTIMS OF
Project on access to justice for women in the Americas
1. During the last two years and thanks to the support from the government of Finland, the Rapporteurship of the Rights of Women of the IACHR undertook a series of activities to collect information, with the objective of obtaining an overview of the main challenges faced by women victims of violence when they attempt to access an ideal and effective judicial redress for the acts suffered. During this process, the activities organized were the circulation of a questionnaire to OAS Member States, experts from civil society, international agencies and the academic sector (included in Annex B). It also included the organization of five work meetings of experts during 2005 at the regional and subregional levels, celebrated in Washington, D.C. (April 19-20), Peru (August 1-2), Costa Rica (August 11-12), Argentina (September 11-12) and Jamaica (September 29-30). Additionally, the process was complemented by the findings of the work of the IACHR and the Rapporteurship in the sphere of human rights and the rights of women.
2. The IACHR received responses to the questionnaire from 23 OAS Member States: Antigua and Barbuda, Argentina, Bahamas, Belize, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, El Salvador, the United States, Guatemala, Jamaica, Mexico, Panama, Paraguay, Peru, the Dominican Republic, Saint Kitts and Nevis, Saint Vincent and the Grenadines, Saint Lucia and Venezuela. This questionnaire has been the most answered in the history of the IACHR.
3. The Rapporteurship also received information and documentation related to the questionnaire, by a series of organizations and experts in the subject. Several units of the Inter-American system contributed to these efforts including the Inter-American Commission on Women (CIM) and the Justice Studies Center of the Americas (CEJA). Additionally, information was received from Zarella Villanueva Monge, magistrate of the Supreme Court of Justice in Costa Rica, Emilse Ardaya from the Supreme Court of Justice in Civil Matters in Bolivia and from Maria Cristina Hurtado, Delegate Defender for Children, Women and Youth in Colombia. Information was also received from the Criminal Justice and Gender Program of the Instituto de Estudios Comparativos y Ciencias Penales (Guatemala).
4. Additionally, representatives from civil society organizations presented information, among them the American Civil Liberties Union (United States); the Center for Reproductive Rights (United States); the Centro para los Derechos Humanos “Miguel Agustín Pro Juárez” (Mexico); CLADEM – Comité de América Latina y el Caribe para la Defensa de los Derechos de la Mujer (Uruguay); Corporación Sisma Mujer (Colombia); the Fundación Pro Bono (Chile); FEIM - Fundación para el Estudio Investigación de la Mujer (Argentina); Human Rights Watch (United States) and the Comisión Mexicana para la Defensa y Promoción de los Derechos Humanos (Mexico). Experts on the subject also presented their observations and/or documentation, including Verónica Undurraga, lawyer and academic from the University of Chile; Andrea Laura Gastrón, investigator in the themes of gender and justice in Argentina; and Nicole Silvestre. The Rapporteurship expresses its gratitude over the information submitted, which evidences the increasing commitment in the region to implement and promote actions to improve the judicial protection from acts of violence against women.
2. Work meetings of experts at the regional and subregional level
5. The dissemination and circulation of the questionnaire was complemented by the organization of five work meetings of experts at the regional and subregional level during 2005 that took place in: Washington, D.C. (April 19-20), Peru (August 1-2), Costa Rica (August 11-12), Argentina (September 11-12) and Jamaica (September 29-30). The subregional workshops were organized in collaboration with the following entities that work to protect the rights of women in the Americas and their right to live free from violence: the Instituto de Defensa Legal (Peru), the Equipo Latinoamericano de Justicia y Género and the Centro de Estudios Legales y Sociales (Argentina); the Interamerican Institute of Human Rights (Costa Rica) and the United Nations Development Fund for Women (Jamaica).
6. The main objectives of the meetings were to collect information about the main challenges faced by women when they seek judicial protection when victims of violence, as well as to identify recommendations that could be issued by the IACHR to the Member States of the OAS to improve the judicial response to these acts.
7. During the meetings, in which approximately 130 experts participated, the participants explored in-depth the subject of access to justice from different viewpoints, including violence against women and discrimination; the discrimination of women within the administration of justice; the findings and lessons learned from studies on the subject; the degree of impact of the legal instruments at the international and regional level; the need for a multisectoral approach to achieve a real and effective access; and the use of the inter-American system. The experts reviewed and identified the existing barriers to an adequate judicial protection including those institutional, budgetary, geographic, cultural, linguistic, and economic, as well as integral and muti-disciplinary strategies to eliminate them. The participants also identified specific recommendations that the IACHR and the Rapporteurship can make to the OAS Member States to address the persistent challenges.
8. The Women’s Rapporteurship and the IACHR express their gratitude to the States, the organizations and individuals that participated in the regional and subregional meetings. Their collaboration represents the real commitment assumed by several sectors, including OAS Member States, to remedy the challenges that women still face when they report acts of violence and discrimination and to achieve an adequate sanction and redress of the acts suffered.
REPORT ABOUT THE SITUATION OF ACCESS TO JUSTICE FOR WOMEN IN THE AMERICAS: QUESTIONNAIRE
The present questionnaire has been prepared as part of the actual work plan of the Special Rapporteurship on the Rights of Women of the Inter-American Commission on Human Rights (IACHR). Its objective is to collect information about the main achievements and challenges women face to access justice in the Americas. The information provided will be analyzed and compiled in a report including concrete recommendations to OAS member States about measures that can be implemented to improve women’s access to justice in accordance with their regional human rights obligations.
The IACHR and the Rapporteurship on the Rights of Women pay special attention to the rights of women, fairness, gender equality and equity. Since its establishment in 1994, the Rapporteurship has carried out the work of the IACHR to protect the rights of women by means of publishing thematic studies, assisting in the formulation of new jurisprudence through the individual case system, and supporting the investigation of different themes that effect the rights of women in specific countries of the region by means of on-site visits and country reports.
The current work program of the Rapporteurship is designed to address a priority challenge for the rights of women throughout the Hemisphere: how to ensure that women can effectively access justice, particularly when they have been subjected to violence and discrimination. Throughout the year, the Rapporteurship is undertaking a collection-gathering process, including this questionnaire and a series of consultations, with the following objectives:
· To identify and analyze the key obstacles women face in obtaining effective access to justice in the region, most particularly women that have been subjected to violence and discrimination;
· To collect information about new strategies and best practices within the region to confront these obstacles, as well as information as to why certain promising strategies have failed to produce the desired results;
· Prepare an analysis including specific recommendations designed to assist the member states in achieving enhanced compliance with their obligations under regional human rights instruments to guarantee that women have effective access to judicial protection and guarantees.
This consultation process includes a variety of sectors, including government, civil society, regional and international organizations and the academic sphere, among others.
Responses to this questionnaire should be mailed no later than October 31, 2005 to:
Inter-American Commission on Human Rights
Organization of American States
1889 F Street, NW
Washington, DC 20006
The present questionnaire requests both quantitative and qualitative information. It is encouraged to submit reports and specific evaluations about the subject, graphs, statistical and budgetary information, among other types. As a matter of geography, we invite information applicable to the national, local, urban, and rural levels. In regards to federal countries, we request information about all States and Provinces. We invite you to present information specifically about the situation of women pertaining to groups particularly vulnerable to violence and discrimination such as afrodescendent, indigenous, young and elderly women, among others.
This questionnaire 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 in the private sphere. It is understood to include physical, sexual and psychological violence that occurs within the family or domestic unit or within any other interpersonal relationship, whether or not the perpetrator shares or has shared the same residence with the woman, including, among others, rape, battery and sexual abuse; that occurs in the community and is perpetrated by any person, including, among others, rape, sexual abuse, torture, trafficking in persons, forced prostitution, kidnapping and sexual harassment in the workplace, as well as in educational institutions, health facilities or any other place; and that is perpetrated or condoned by the state or its agents regardless of where it occurs.
Discrimination against women is defined 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.
The questionnaire consists of four parts:
· In the first part, it is encouraged to present a detailed panorama of the legislation, national plans, policies and programs designed to prevent, eradicate, and/or sanction discrimination and violence against women. The objective is to obtain a complete description of the judicial and legal system of each country including information about how international law is implemented at the national level.
· The second part is centered on the implementation and real application of the framework described in the first part. We encourage you to submit detailed information about practices, institutions, monitoring mechanisms, services and programs established to prevent, sanction, and/or eradicate discrimination and/or violence against women and to collect statistical information about those subjects. It is welcomed to submit information pertaining to different sectors such as justice, police, health, education, among others, and a description of coordination initiatives among these sectors, where applicable. The objective is to obtain information about the national budget and the percentage dedicated to gender issues in the areas of justice, health, education and safety, among other spheres.
· The third part requests detailed information about the administration of justice and the incorporation of gender issues in its functioning and actions. In this questionnaire, administration of justice is defined broadly, including the judicial branch (all of its instances, tribunals and administrative divisions), the police and forensic medicine services, located either in urban and/or rural zones, with national and/or local competency. You are welcomed to submit a detailed description of measures, plans, programs, evaluations, studies and specific divisions created to address violence against women and discrimination, including capacity-building initiatives for personnel.
· The fourth part requests recent statistical information, ideally received within the last 5 years, about the prevalence of violence against women and discrimination. In regards to violence, we invite you to present information about the different types of violence, including physical, psychological and sexual, within the family and in the public sphere. Regarding discrimination, we welcome statistics of incidents in the sphere of justice, labor, health and education, among others. It is encouraged to submit information about the complaints received by judicial instances, their procedural stage and the resolution of these cases.
Some of the indicators that will be used to measure advances are the following:
· Existence of system or registry of statistical, qualitative or quantitative information about incidents of violence against women or discrimination
· Percentage of the national budget assigned to implement programs and policies specifically oriented to improve the condition of women
· Participation of civil society organizations in the design of policies and programs to advance the rights of women
· Number of public officials with training and/or a specialty in violence against women and/or discrimination
· Statistics about different kinds of violence against women and/or discrimination
· Numbers of complaints received in the past 5 years about violations of the rights of women, above all in cases of violence and discrimination
I. LEGAL FRAMEWORK AND POLICIES TO PROTECT WOMEN AGAINST DISCRIMINATION AND VIOLENCE
1. What is the application process at the national level of binding Inter-American instruments such as the American Convention on Human Rights and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, and international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women? Can they be directly applied or is legislation required to facilitate the implementation process?
2. What are the existing legal norms to prevent and sanction discrimination and violence against women of national and/or local application? In the case of federal countries, are there similar norms in all states and provinces?
3. What types of violence and discrimination are included in these norms?
4. Is there a plan and/or national program to prevent, sanction and/or eradicate discrimination and/or violence against women? Are there national plans or programs to prevent, sanction and/or eradicate discrimination and/or violence against women at the local level?
5. Does the legal framework offer special protection to women pertaining to ethnic minorities, such as indigenous and afrodescendent women? What type of protection do indigenous and afro-descendent women receive, among others, within these laws?
6. What type of advances have been made in the past 5 years in the reform of the content of laws to prevent, eradicate and sanction discrimination and violence against women? What type of advances have been made in the past 5 years in the repeal of discriminatory laws?
II. INSTITUTIONS AND MECHANISMS TO IMPLEMENT LAWS AND POLICIES THAT ADVANCE THE RIGHTS OF WOMEN TO LIVE FREE FROM DISCRIMINATION AND VIOLENCE
7. What have been the greatest achievements and challenges in the implementation of laws and public policies to prevent, sanction, and eradicate discrimination and violence against women?
8. Describe the best and most innovative government practices to advance the rights of women and to improve their access to justice or the state response they receive. The answer can include examples of legal measures, reforms, publicity campaigns, and pilot programs, among others.
9. What mechanisms have been implemented to guarantee that a gender perspective is incorporated in the design and implementation of laws and policies in all spheres?
10. What types of monitoring mechanisms have been established to measure the progress in implementing laws and policies to advance the rights of women?
11. Is there a specific State entity that is in charge of protecting the rights of women? If there is one, what is its title, mandate, composition, and budget? What competencies does it have?
12. What types of services exist where victims of discrimination and violence can seek help, either in urban or rural areas? To what extent can the use of these services be quantified?
13. Is there any kind of system or registry of statistical, quantitative or qualitative information of incidents of violence against women or discrimination? Does the system disaggregate information on the basis of sex, age, race, ethnicity, educational level, among other factors?
14. What type of collaboration exists between different sectors (justice, health, education and others) to promote the rights of women and to attend violence against women?
15. What percentage of the national budget has been assigned to implement programs and policies specifically oriented towards improving the condition of women?
16. Are there any programs to facilitate access to justice for women particularly vulnerable to acts of discrimination and violence, for example young girls and women belonging to marginalized ethnic and racial groups, or economically disadvantaged, among others? Are there programs to facilitate that women living in rural areas access to justice in urban areas?
III. ADMINISTRATION OF JUSTICE
17. Are there tribunals specialized to address incidents of violence against women and/or discrimination?
18. Are there translation services to other languages spoken in the country? Are there programs for free?
19. What measures have the State taken to prevent, identify and correct the discrimination in the judicial system? For example, what type of capacity-building, education and sensitization programs have been created for justice officials, employees of judicial organs and the police to eliminate socio-cultural patterns that discriminate against women?
20. What are the actual figures of all types of violence against women at the national and local levels? What type of statistics are actually available for the different types of cases, including intra-family, sexual and psychological violence, among others?
21. Can it be identified how many complaints have been received in the last 5 years of violations of the rights of women, above all in cases of discrimination and violence? How many of these cases have reached the Sentencing stage?
22. What is the percentage of women that hold positions in second and third instance tribunals? In first instance tribunals? In administrative positions within the judicial branch?
23. Have institutions within the judiciary and the police been created to address gender issues? If so, what is their mandate and composition? What is their budget?
24. Has there been any evaluation of the judicial system response to cases with gender-specific causes?
25. Are there programs that systematize or review case law by theme, either public or private? Do these programs include a gender perspective?
26. Are there public legal assistance programs? Are these programs free? In what measure are these programs used in cases of discrimination or violence based on gender?
27. What type of training, education, and awareness-raising programs have been created for forensic medicine personnel to work with cases of violence against women? Is there specialized personnel within the forensic medicine system to work with cases of violence against women?
Statistics presented by the States on the Problem of Violence against Women
In their replies to the questionnaire, States provided data illustrating the high prevalence of violence against women nationwide. The information provided by States shows the variety of different formats used throughout the Americas to compile information on violence against women.
Among the most important figures provided:
- The Argentine State indicated that crimes of violence against women accounted for 78-83% of violent crimes in the 1999-2003 period.
- The Canadian State forwarded information indicating that between April 1, 2003 to March 31, 2004, 95,326 women and dependent children (58,486 women and 36,840 children) were admitted to 473 shelters across Canada, mainly for reasons of abuse. The Canadian State also reported that, according to the 2004 General Social Survey estimates, 7% of Canadians aged 15 or above previously or now living in a common law relationship suffered partner-inflicted violence in the past five years.
- In Chile, the new penal system received 67,873 reports of crimes against women in 2004, and during the 2001-2002 period, there were 84 gender-related murders of women, including murder by their partners. A study on the prevalence of violence against women in the country in 2001 also showed a greater incidence of severe physical violence than minor physical violence. Manifestations of severe violence reported by women who had suffered physical and/or sexual violence included: beatings with the fists (46.5%); kicking, dragging, or beating with other objects (25.3%); and the use of weapons (22.7%).
- The Costa Rican State cited a 2003 survey conducted nationwide by the University of Costa Rica that found that 58% of women in the country had suffered at least one incident of sexual and physical violence since the age of 16.
- The Salvadoran State reported receiving in 2005 a number of reports of different forms of violence: 359 of physical and psychological violence, 77 of psychological and sexual violence, 67 of psychological and financial violence.
- The State of the United States of America reported that in 2003, approximately half a million cases of domestic violence and some 200,000 rapes and cases of sexual aggression were reported to the national survey of victims of crime. Other Justice Department reports show that one third of homicides of women were perpetrated by their partners.
- The Jamaican State reported that for 2004, there were 141 homicides of women, 197 shootings, 916 cases of rape, and 409 cases of child abuse.
- The Mexican State reported that a survey with State support shows that in 2003, 46.6% of Mexican women aged 15 or above living with their partners reported having suffered some form of violence in the 12 months prior to the interview. The survey interviewed 34,184 women throughout the country, and represented women nationally, for the most part in 11 states: Baja California, Coahuila, Chiapas, Chihuahua, Hidalgo, Michoacan, Nuevo Leon, Quintana Roo, Sonora, Yucatan, and Zacatecas.
- In Paraguay, 1,227 cases of domestic violence were reported in the January-August 2005 period.
- The Peruvian State reported a total of 932 reports of sexual crimes in the 2003-2005 period registered in the Provincial Prosecutor’s Office regarding Family Issues in Lima, but this figure is not disaggregated by gender.
- The Dominican Republic State provided the following statistics: 23.9% of Dominican women have suffered some form of violence since the age of 15, 9.5% in the past 12 months. By 2004, 7,118 cases of violence against women had been reported.
However, several States reported a decline in the number of incidents of violence against women. The Belize State reported that the total cases of violence against women in 2004 had declined compared to 2003, from 1,240 to 962. The State of the United States reported that since 1993, rates of violence against women have declined. Some States, such as Antigua and Barbuda and Bolivia, reported that figures or statistics on incidents of violence against women are not available. Others, such as The Bahamas, reported that information is available, but it is not being disaggregated by victims’ gender. The Bahamas reported that national statistics reflect only some forms of violence against women, such as homicides.
 Canada’s General Social Surveys have been conducted each year by Statistics Canada (the State statistics center) since 1985. The surveys are designed to monitor changes in Canadians’ health and evaluate social assistance programs.
 Statistics reported in Family Violence in Canada: A Statistical Profile 2005, a report prepared by the Canadian Centre for Justice Statistics, under the federal family violence initiative, which contains updated information on the nature and prevalence of family violence in Canada.
 Metropolitan Area and IX Araucania region: Detection and analysis of intrafamily violence, based on the basic intrafamily research protocol of the World Health Organization, SERNAM, 2001.