MECHANISM OF THE FOLLOW UP OEA/Ser.L/II.7.10
CONVENTION BELEM DO PARÁ (MESECVI) MESECVI-III/doc.57/11
THIRD CONFERENCE OF STATES PARTIES 24 February 2011
March 24-25, 2011 Original: Spanish
FOLLOW-UP REPORT ON THE RECOMMENDATIONS MADE
BY THE CEVI IN THE EVALUATION STAGE OF THE
FIRST MULTILATERAL EVALUATION ROUND
The Committee of Experts (CEVI) of the Mechanism to Follow up on Implementation of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, “Convention of Belém do Pará” (MESECVI) presents below the Follow-up Report on the Recommendations made to the States Parties on the final country reports and on the Hemispheric Report. When these documents have been presented to the Third Conference of States Parties, the First Multilateral Round of the MESECVI, begun in 2005, will be concluded.
The first stage consisted of evaluation. Competent National Authorities (CNA) of each State Party replied to the questionnaire adopted by the CEVI. Based on those replies, the CEVI prepared preliminary reports, which were forwarded to the CNAs for comment. The Committee considered them again and adopted the final country reports and Hemispheric Report. Both contain recommendations to the States Parties as to how the Convention could best be implemented. Lastly, the reports were presented to the Second Conference of States Parties of the MESECVI, held in Caracas, July 9 and 10, 2008, marking the end of the evaluation stage and the start of the stage to follow up on implementation of the recommendations.
In this second stage, the CNAs reported to the CEVI on implementation of its recommendations. To facilitate the reporting process, the CEVI adopted a document containing thirty-eight (38) indicators, both quantitative and qualitative, covering the four topics evaluated in the Round: legislation, regulations, and national plans; access to justice; national budgets; and information and statistics. The CEVI adopted these indicators, according priority to those to which replies were most likely to be received from the States, so that results could be measured. Seventeen (17) States Parties participated at this stage: Argentina, Barbados, Belize, Chile, Colombia, Costa Rica, Dominica, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Jamaica, Mexico, Paraguay, Peru, and Suriname.
Usage of an indicator document proved to be of benefit in the production of this report. Defining the elements of each indicator enabled the level of implementation by the States Parties to be measured with greater precision and more specific and objective replies obtained. This facilitated the systematization of best practices and challenges faced by States in implementing the Convention.
In this report, the thirty-eight (38) indicators have been reorganized into nine sections. Also presented are tables containing results updated as of December 2009. Each systematized section contains comments on outcomes obtained, matters are emphasized where States need to strengthen their actions, and best practices observed are highlighted by the Committee in some States that may serve as examples for the other participants in the Round. The CEVI took account of the conclusions of this process in preparing the following questionnaire, emphasizing the areas posing greatest challenge.
In concluding this First Multilateral Evaluation Round, the CEVI wishes to express its satisfaction with the work done and outcomes obtained. As the technical organ of the MESECVI, it reiterates its commitment to cooperation, in every way possible, so as to ensure optimal implementation of this Convention. Only through cooperation on everyone’s part can unqualified respect be achieved for the human rights of all women to life lives free from violence.
1. EXISTENCE OF NATIONAL LEGISLATION DESIGNED TO ADDRESS THE DIFFERENT MANIFESTATIONS OF VIOLENCE AGAINST WOMEN
The legislation on violence against women includes the concept of gender-based violence, in accordance with the definition given by the Convention.
The recommendation was made since, in their reports, most States referred to their legislation and policies on violence against women insofar as it pertained to family, intra-family, or domestic violence, making evident the limited scope of Article 1 of the Convention.
The purpose of this indicator was to explore the extent to which the States had implemented the recommendation to use the broad definition of violence against women established in the Convention of Belém do Pará.
The CEVI emphasizes as a best practice the legislation on violence against women modernized as comprehensive laws against violence, thus facilitating unified and consistent treatment of the different forms of violence against women in public policy, justice, research, and compilation of data and statistics. This so as to ensure that its implementation is based on shared principles and on coordination of the different agents for its enforcement.
In the framework of the First Evaluation Round, the CEVI applauds the enactment of new comprehensive laws on violence against women in Mexico (2007), Venezuela (2007), Guatemala (2008), Colombia (2009), and Argentina (2009), which define violence against women based on their gender in accordance with the definition contained in the Convention of Belém do Pará.2/
However, in this stage, it was found that this legislation remains only partially implemented, since some States continue to base its implementation on laws on intra-family, family, or domestic violence. One State even characterizes the legislation as violence against women, when in reality it is intra-family violence since it is applicable specifically when the perpetrator is married to or in a de facto marriage with the victim. Laws on family violence are highly valuable for the protection of women. However, the CEVI considers that concentration of State government effort only on this form of violence, rather than those perpetrated within the community and by the State, leaves women utterly unprotected in the public sphere.
Legislation on violence against women encompasses psychological, physical and sexual, patrimonial and economic violence, as well as other forms of violence.
Both the Convention of Belém do Pará and Recommendation 19 of the Committee on the Elimination of Discrimination against Women (CEDAW) include physical, psychological, and sexual violence as forms of violence. Economic violence – meaning denial of access to basic resources or control of them – was first recognized in the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (2003), and has subsequently been developed in African and Latin American law, in the latter, as patrimonial violence. Today, physical, psychological, sexual, and economic violence are manifestations recognized in the report of the UN Secretary General on violence against women (2006).3/
It may be concluded from their reports that the States have partially implemented the indicator. With regard to types of violence, only Colombia, Guatemala, and Mexico have incorporated the four types of violence in their legislation. Costa Rica included the four types in its Law Criminalizing Violence against Women (2007), but a judgment of the Constitutional Chamber of the Supreme Court declared unconstitutional the articles on physical and psychological abuse.4/ In the case of Honduras, the four forms are recognized in the framework of its comprehensive law against domestic violence, not in a broader context of violence against women.
The level of implementation is patchier still if we consider that, in addition to recognizing the four forms of violence, the indicator requires recognition of the spheres in which it occurs (public or private), as well as possible perpetrators (private individuals or the State). Most replies either did not evaluate this point or acknowledge that violence in the family sphere is addressed, but not in the sphere of the community or State. Accordingly, the CEVI considers that the States should provide protection in these areas as soon as possible, and report on their progress in the next evaluation round.
Existence of legislation on trafficking in persons.
Under Articles 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (hereinafter Palermo Protocol), trafficking in persons is defined as:
Recruitment, transportation, transfer, harbouring or receipt of persons;
Use of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person,
For the purpose of exploitation. Exploitation includes, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
As indicated in the Hemispheric Report, the CEVI found that many countries had legislation on trafficking in persons, although, in many cases, it had not been adjusted to the standards of the Palermo Protocol. In several cases, it was found that trafficking in persons and forced prostitution were confused.
Comparing the findings of the Hemispheric Report with those for this report, the CEVI notes the efforts of some States to adjust their legislation to the international standards on trafficking in persons. Guatemala (2009) enacted a law on trafficking in persons and sexual exploitation, whereas Argentina (2009) has included it in its comprehensive laws on violence. In other cases, however, it is found that the definition is not in keeping with the Palermo Protocol, since it includes the elements of recruitment, transportation, and coercion, but only partially includes the element of exploitation as the purpose of said recruitment and transportation. Most legislation mentions sexual exploitation, omitting forced labor or services, servitude, etc. In the case of Dominica, it was found that only the elements of unlawful recruitment and transportation are included, making it a definition of smuggling, rather than trafficking.
Chile and Haiti have bills to criminalize trafficking in persons that are in keeping with the provisions of the Palermo Protocol.
Existence of legislation on sexual harassment at work, in educational or health establishments, and anywhere else.
Recommendation 19 of CEDAW defines sexual harassment as “…unwelcome sexually determined behaviour as physical contact and advances, sexually coloured remarks, showing pornography and sexual demand, whether by words or actions.”7/ According to the Committee, such conduct can be humiliating and may constitute a health and safety problem..8/
For its part, the Convention of Belém do Pará identifies sexual harassment in the workplace, as well as in educational institutions, health facilities or any other place, as a form of violence that occurs in the community. The Hemispheric Report indicates that 14 States had included all or some elements of that definition in their national legislation.
For this report, 11 States reported that sexual harassment had been criminalized in their legislation. Some incorporated it as a crime in their codes of penal procedure, whereas others considered it an administrative infraction. The CEVI notes that the type of sexual harassment most included in legislation is sexual harassment in the workplace, whereas a minority included health facilities and centers of education. Additionally, Barbados, Costa Rica, and Haiti have bills that would prevent and punish it or, in the case of Costa Rica, to bring existing legislation into line with international standards. In other cases, such as Argentina,9/ sexual harassment is criminalized if perpetrated in a government setting, and the law on comprehensive protection of women considers it a form of sexual violence. In Colombia, sexual harassment is criminalized without reference to where it occurs.
Legislation includes rape and other sexual abuse in marriage or de facto unions.
The Convention of Belém do Pará defines rape, abuse, and sexual abuse as forms of violence that occur within the family or domestic unit or within any other interpersonal relationship. It removed this type of violence from invisibility since, because it was a “private matter,” it was not reported, prevented, criminalized, or punished.
As indicated in the Hemispheric Report, the CEVI found that a minority of States criminalized sexual rape within marriage or de facto marriage either as an autonomous offense or as an aggravating factor of the crime of sexual rape. It is well known that, in the case of the Caribbean, sexual rape within marriage is criminalized only in cases of legal or de facto separation, if the couple is in undergoing divorce, or protection measures are in place for the wife.
In this report, the CEVI finds that this indicator has been partially implemented. As for the Hemispheric Report, major progress is noted in legal recognition of sexual rape within marriage or de facto marriage as a form of violence to be prevented and punished. In that regard, Jamaica (2008), Guatemala (2009), Argentina (2009), and Suriname (2009) have shown progress since the Evaluation Round, having criminalized sexual rape in their national legislation. Haiti reported that it was preparing a bill on this subject that would be introduced this year.
However, although more States have now incorporated provisions to prevent or punish this crime, limitations in their legislative treatment thereof remain. For example, one definition of sexual rape limits it to oral, anal, or vaginal access. In other cases, sexual rape is included, but not sexual violence or other forms of sexual abuse within marriage. Some States criminalize sexual rape within marriage but do not include it when it occurs in de facto marriage; or sexual rape is criminalized when it occurs during separation or divorce, but not in existing marriages or de facto marriages.
Therefore, the CEVI insists on the inclusion in national legislation of sexual rape and other forms of sexual abuse within marriage or de facto marriage, based on sexual rape as broadly defined in the inter-American system,11/, which includes penetration by other parts of the aggressor’s body or objects. Legislation must also take account of cohabiting partners or couples in a de facto marriage, whose relationship is ongoing and who are not separating or divorcing, and must cover any other form of abuse or sexual violence other than sexual rape.
Explicit ban in the legislation on using alternative methods of conflict resolution, rather than judicial proceedings, in cases of violence against women.
Although it was not included in the First Round questionnaire, in the Hemispheric Report, the CEVI noted with concern that different States reported that methods were available for conciliation or agreement between the victim of violence against women and her aggressor, or for exoneration of the aggressor from punishment if he married the victim, or application of the discretionary power principle [principio de oportunidad]. States usually have such measures to reduce the number of cases that reach the courts, in order to reduce their already excessive case load.
However, the use of such measures in cases of violence against women is counterproductive in enabling victims to have access to justice and in the permissive message sent to society. The Inter-American Commission of Human Rights has emphasized that by allowing this crime to be the subject of negotiation and transaction is premised on the notion that the parties at the table are operating from equal bargaining positions, which is generally not true in cases of intrafamily violence.13/ The Pan American Health Organization (PAHO) also found that this imbalance of power in conciliation agreements increases women’s physical and emotional risk, that aggressors generally do not comply with agreements, and that they do not address the causes and consequences of violence itself.14/
The CEVI reports herein that only Mexico (2007) and Argentina (2009) explicitly prohibit the use of these methods. Some States have such mechanisms in place; others make no mention of the matter, and others waive compliance therewith in a limited number of cases. Cases of the latter are Chile (when prior reports of violence against the aggressor have been made) and Peru (where such methods are prohibited at the public prosecutor and extrajudicial levels, but not at the judicial).
The CEVI reiterates to the States Parties the importance of eliminating the use of such methods in proceedings in cases of violence against women, and of amending their legislation to ensure justice for women.
2. PROTECTION MEASURES AT THE REQUEST OF THE VICTIM, THIRD PARTIES, OR EX OFFICIO, BEFORE AND DURING JUDICIAL PROCEEDINGS
Existence of legislation on protection measures at the request of the victim, third parties, or ex officio, before and during judicial proceedings.
Judicial proceedings have the means to guarantee the safety of women victims of violence and that of the witnesses.
Number of protection orders granted in cases of violence against women, compared to the number of protection orders requested.
Article 7.f of the Convention of Belém do Pará indicates that the States undertake establish fair and effective legal procedures for women who have been subjected to violence which include, among others, protective measures, a timely hearing and effective access to such procedures. However, that obligation is far from fully implemented. The IACHR has ascertained the existence of this problem and emphasized that the inaction on the part of the State authorities is partially attributable to suspicion of the allegations made by women victims of violence and their perception that such matters are private and low priority.16/
In the Hemispheric Report, the CEVI emphasized that the States did not report whether they had evaluated the implementation of such measures, how promptly they actually were issued, or their effectiveness, leading to the presumption that none are in place. It also noted that several States did not have specific regulations in the event the party requesting the measures was a woman victim of violence.
Therefore, it developed an indicator on the existence of protection measures, establishing as examples measures when the victim is at risk, when there is a background of previous violence, avoidance of confrontation with the aggressor, availability of appropriately safe places for protection during the trial, protection at home, police protection, restraining orders on the aggressor, and so on.
The CEVI reports herein that most States have legislation providing for protection measures for victims of violence in general, or for women victims of violence in particular. Such provision is made both in codes of penal procedure and in comprehensive laws on violence and/or laws on domestic violence. Haiti and Suriname reported that they did not yet have such legislation, but did have bills incorporating such measures.
With regard to the scope of such protection measures, it was found that they have been partially implemented, and that they focus on the victims. Some States Parties have provisions that include the children when the victim is a mother, or the mother or the parents when the victim is a minor. However, with the exception of Guatemala (2009), legislation does not include the victims’ witnesses as subjects of protection orders. The Hemispheric Report indicated some States mentioned protection of witnesses in connection with special provisions for them. However, such measures were not cited in the evaluation reports or the follow-up reports.
It was also noted that the States are able to report the number of protection orders granted to women compared to the number of orders requested. The figures provided are for 2005 to 2008. This indicates that recent figures are available, which will make it possible to monitor progress with the implementation and effectiveness of protection orders. The CEVI noted with concern that in two cases, Belize and Colombia, data referred only to the capital of the Republic, but not to the provinces or departments. Additionally, in several cases, total numbers are provided, not disaggregated by gender, so that it was difficult to know how many of the orders requested and/or granted refer to cases of violence against women. In others, protective measures are concentrated in cases of intra-family or domestic violence, and protection measures granted in other cases of violence against women are not reported.
Therefore the CEVI again reiterates the importance not only of effective protective measures but also of developing databases and statistics on the number of protection orders requested in cases of violence against women, the number of orders granted, and any additional information corroborating their effectiveness.
3. NATIONAL PLANS
Definition of indicator 1.3.a17/
Macro-policies on violence against women that establish integral inter-sector services for preventing and eradicating it
Public policies constitute principles, norms, and objectives indicating a course of action in connection with a problem or issue, and must be explicitly formulated in legal, administrative, and technical instruments. They are sanctioned by the Sate as guidance for the behavior of a specific development sector and of citizens’ lives.18/
Article 7 of the Convention of Belém do Pará establishes the obligation of the States to adopt policies to prevent, punish, and eradicate violence against women. The CEVI found, as indicated in the Hemispheric Report, that the States do not have public policies on violence against women, but rather action plans (in general, for equal opportunity) or isolated national strategies. Although important, such initiatives have neither the scope nor effect of public policy and do not imply a joint, coordinated effort by the State, organizations working in this area, and society.
Therefore, the CEVI reiterated to the States the need for comprehensive, inter-sector public policies on violence against women in its broad sense, involving government sectors and civil society. To implement this recommendation, a strengthened national women’s mechanism will be needed, with budgets, personnel, and authority at the highest government level to coordinate the implementation of these policies.
In this follow-up stage, it has again been found that the States Parties do not mention the element of intersectoriality in their public policies and that they focus on intra-family or domestic violence, and not on violence against women. Only 10 States indicate that they have comprehensive public policies. However, not all of them provide information on the scope of these policies, connections between the different government sectors and civil society, or the objectives or expected outcomes as regards prevention and punishment of violence against women in its broad sense. The CEVI again reiterates the importance of such policies, and recommends to the States that they implement one and report on the progress in that regard in the next evaluation round.