By Margarita Martinez
Friday, November 30, 2001
Though international treaties on women's rights are recognized in Latin America and laws are on the books, courts in Argentina, Chile, Colombia, Mexico and Peru don't always uphold them. Chile is the worst; Colombia better, a new study says.
BOGOTA, Colombia (WOMENSENEWS)--One court in Chile ruled that a female soccer referee couldn't continue working because her job was too dangerous. Another tribunal in Mexico made it logistically impossible for a raped womanto obtain an abortion. Another in Peru refused to grant a woman a divorce on the grounds of abandonment, even though her husband had left her 10 years earlier.Judicial decisions of high courts in five countries of Latin America in the last decade show that macho attitudes continue to permeate jurisprudence, even as governments in the region have adopted progressive legislation, saysa recently published study.
The research, conducted by law faculties and nongovernmental organizations in Argentina, Chile, Peru, Colombia and Mexico and coordinated by the New York-based Center for Reproductive Law and Policy, compared judicial decisions concerning women's rights from 1989 to 1998 and cited the most important decisions of 1999 and 2001.
"The most conservative country is Chile and in Mexico, the conception of men's honor influences the decisions of sexual freedom of a woman. The most liberal country is Colombia, Argentina has mixed results and the courts in Peru are weak after the authoritarian government of (former President Alberto) Fujimori," said Luisa Cabal, coordinator in Latin America and the Caribbean for the Center for Reproductive Law and Policy.
Researchers on the five countries, meeting in Bogota in mid-November for the launch of the study published in the book "Body and Law," said they were encouraged that these countries have adopted legislation to protect the reproductive and sexual rights of women. These countries are home to 65 percent of the Spanish-speaking population of the region.
In the 1990s three international conventions recognized the rights of women to control their sexuality and reproduction. These were the conventions in Vienna on human rights in 1993, in Cairo on population and development in 1994 and in Beijing on women in 1995. The Rome Statute of 1998 on the International Criminal Court referred to rape as a crime against humanity.
Most of these international instruments have been adopted by Latin American countries, but the region's judiciary has too many times ignored the underlying principles, the lawyers said.This comparative study, the first ever to focus on judicial decisions as well as legislation, showed that even if the laws are on the books, they are not always and consistently applied.Lidia Casas, one of the authors of the study and professor of law at Universidad Diego Portales of Chile, said that her country's judges need to be educated on women's rights issues and the laws on the books need to be updated and amended.
Chile, she said, remains the only country in the region that doesn't permit divorce. Nor does it have statutes prohibiting sexual harassment.
Pregnant woman in Chile are still occasionally expelled from school and college because, as Casas explained, the relevant legislation contains no effective sanctions for violating women's rights.She also criticized the Chilean laws that give men the legal right to manage some of women's property.In Argentina, the judicial decisions vary between the more progressive decisions in Buenos Aires and the more conservative practices found in the provinces, said Maria Jose Lubertino, president of the Social and PoliticalInstitute of Women and professor of the University of Buenos Aires.
Even though all the provinces in Argentina have included laws against family violence and the criminal code was reformed in regard to sexual crimes, violence often goes unpunished, the report said. One of the remaining legal inequities in Argentina--that if a rapist married the woman he attacked, he was not liable for prosecution--was recently modified.
Argentina’s courts also denied the legal existence of a homosexual non-profit organization because they don't consider the organizations healthy for society, the report said. The legal existence of the association eventually was recognized by the executive branch because of political pressure.
In Mexico, women's rights are seen through the lens of men's honor, as in the case of a low-ranking military officer who lost his job for sleeping with the wife of his superior. The court upheld the firing on grounds the sexual liaison had tainted the senior official's honor.
The report cited a well-known case reflecting conservative attitudes in Mexico where a young woman who was raped and impregnated was pressured by the courts not to have an abortion, though abortion is legal in such cases and she had sought one. The baby was born.
"The court is still the pillar of conservatism, even though the laws havechanged," said Isabel Vericat, founder and coordinator of the ONG Epikeia, an organization whose Greek name means justice with equity.
In Peru the courts have been weakened by the 10-year authoritarian government of self-exiled President Alberto Fujimori, now living in Japan. However, the women's movement is strong and well-organized, said researcher Giulia Tamayo. She is coordinator of the Action and Public Information program of the Spanish section of Amnesty International and professor at the Universidad Catolica del Peru.
The women's movement fought against government-sponsored sterilization programs, which aimed to reduce the birth rate in poor communities. Insome cases, sterilization was done without the woman's consent.
Of all the five countries, Colombia has the best record of courts defending and upholding women's rights, in accordance with the Constitution of 1991 that created the Constitutional Court, said Julieta Lemaitre, professor of Universidad de los Andes.
"Maybe the only important step that is left in the defense of women's rights is the fight against the absolute criminalization of abortion," said Lemaitre.
Abortion is illegal in all Latin American countries except Cuba, Puerto Rico and Guyana.
Cabal, the coordinator of this effort to make the judiciaries more responsive to women, said the battle for women's rights is only beginning.
"If this (these violations of womens' rights) is what we have seen in the high courts that have direct contact with the legislation adopted in theinternational treaties, it's worrying what might be happening in the lower courts with decisions that never reach higher instances," Cabal said.Margarita Martinez is a free-lance writer in Colombia, writing about thecivil conflict and social trends.
For more information, visit:
Center for Reproductive Law and Policy:http:// www.crlp.org
The book "Cuerpo y Derecho" was published only in Spanish, but a summary in English will be available next year on the CRLP Web page.