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ACCESS TO JUSTICE FOR WOMEN VICTIMS OF
VIOLENCE II. INADEQUACIES IN THE JUDICIAL RESPONSE TO CASES OF VIOLENCE AGAINST WOMEN: OBSTACLES TO THE FULFILLMENT OF THE OBLIGATION TO PRACTICE DUE DILIGENCE AND COMBAT IMPUNITY
A. Administration of justice: inefficacy and impunity in cases involving violence against women
123. This section examines how the administration of justice system has responded to incidents involving violence against women, using the States’ international obligations as its frame of reference. The IACHR is mindful of the efforts that States have made to adopt a legal and political framework through which to address gender-based violence, one that features a variety of judicial protective resources and institutions. However, while the formal existence of the law and policy is one thing, their practicality and effectiveness in remedying acts of violence against women is altogether another. The IACHR has found that the judicial response to cases involving violence against women is notably deficient and hardly on a par with the severity and incidence of the problem.
124. The pattern in a number of countries is one of systematic impunity in the judicial prosecution of and proceedings on cases of violence against women. This is because the vast majority of these cases are never effectively investigated and punished or proper redress provided. The impunity that attends these human rights violations perpetuates a social acceptance of gender-based violence, which in turn feeds women’s sense of insecurity and their abiding mistrust of the administration of justice system. Given these deficiencies, the number of trials and convictions in no way measures up to the severity of the problem.[167] This challenge and its consequences were consistently cited by the representatives of the States, the administration of justice systems, civil society, academia and women belonging to differing ethnic and racial groups who participated in the present project’s implementation. It has also been borne out by the information the Commission has received through the various mechanisms of the inter-American system.
125. The IACHR has also established that violence and discrimination against women are still accepted practices in the American societies, as evidenced by how officials in the administration of justice systems respond to women victims of violence and handle their cases. The tendency is to regard cases of gender-based violence as domestic disputes that would be better settled without the State’s intervention.
126. This section highlights gaps, irregularities and deficiencies in the investigation, prosecution, trial and punishment of cases involving violence against women, and in the conduct of judicial officials. It also examines the obstacles in the way of effective State protection against imminent acts of violence and explores a number of problems that deter women from filing complaints in cases involving acts of violence, above all the inadequate treatment that victims too often receive when they turn to judicial protective institutions. The report singles out a number of structural problems within the justice systems that have adverse consequences for the prosecution of cases involving violence against women and the proceedings. The section then examines the special needs of indigenous and Afro-descendant women to effectively turn to the justice system.
1. Gaps and irregularities in the investigation of cases involving violence against women127. The IACHR notes that a variety of factors conspire to undermine proper investigation of cases involving gender-based violence. First, the institutions conducting the investigations cause unwarranted delays. They tend not to regard these cases as priorities and, as a result, are slow to take the necessary steps to move the investigation forward. The failure to investigate the reported cases is in part a function of discriminatory socio-cultural patterns that discredit women victims and feed the perception that these crimes are not priorities.
128. Then, too, gaps and irregularities in the investigative procedures per se thwart the prosecution of such cases and the eventual punishment of the crimes committed. Other deficiencies include the failure to take evidence that is key to ascertaining the identity of the guilty parties; authorities who are neither competent nor impartial in their conduct of the investigations; emphasis on physical evidence and testimony to the exclusion of evidence of other types; the scant credibility attached to the victims’ claims; and the improper treatment of women victims and members of their families when they endeavor to cooperate in the investigation into the facts. This combination of problems and deficiencies in the investigation of cases of violence perpetrated against women means that in the end, the number of cases that are actually investigated and go to trial pales by comparison to the number of complaints filed.
129. The IACHR has established violations of the American Convention and other international instruments caused by unwarranted delays in investigating cases of violence against women, the very kind of case that the Commission’s thematic reports have singled out as a critical problem. In the Maria da Penha Fernandes case,[168] the Commission determined that the State had violated articles 8 and 25 of the American Convention and Article 7 of the Convention of Belém do Pará; the investigation of the battering had dragged on for more than 17 years, constituting an unwarranted delay in the administration of justice vis-à-vis these incidents of domestic violence. The Commission wrote that:
More than 17 years have elapsed since the launching of the investigation into the attack on the victim Maria da Penha Maia Fernandes and to date, based on the information received, the case against the accused remains open, a final ruling has not been handed down, and remedies have not been provided for the consequences of the attempted murderer of Mrs. Fernandes… The Commission concludes that the police investigation completed in 1984 provided clear and decisive evidence for concluding the trial and that the proceedings were delayed time and time again by long waits for decisions, acceptance of appeals that were time-barred, and unwarranted delays. Moreover, in the view of the Commission, the victim/petitioner in this case has fulfilled the requirement related to procedural activity with respect to the Brazilian courts, which is being handled by the Office of the Public Prosecutor and the pertinent courts, with which the victim/complainant has cooperated at all times. In the view of the Commission therefore, the characteristics of the case, the personal situation of persons involved in the proceedings, the level of complexity, and the procedural action of the interested party cannot explain the unwarranted delay in the administration of justice in this case (…).[169]
130. The González Pérez Sisters case, the Commission observed at the time, was one of complete impunity since more than six years after the date on which the human rights violations were committed and reported, the State had still not fulfilled its duty to prosecute and punish those responsible and to compensate the victims for the harm and losses that the rapes caused.[170] The Commission took the opportunity to reaffirm a basic tenet of human rights that is particularly pertinent to investigations into acts of violence against women: investigations must be conducted by competent and impartial authorities. When the authorities conducting investigations into these cases are neither trained in nor sensitive to gender-related issues, or fail to cooperate with one another, the investigations are needlessly delayed and matters are overlooked, which in the end is detrimental the case. The assailants in this case were members of the Army which meant, as the Commission noted, that "the investigation was transferred to the military courts, which clearly ha[d] no competence with respect to the matter and lack[ed] the impartiality necessary to establish the facts in accordance with due process."[171] During its visits to Mexico and Guatemala, the Women’s Rights Rapporteurship observed that the authorities in charge of investigations into incidents of violence against women were neither competent nor impartial, which considerably foreshortened any possibility that these cases would ever be prosecuted and the guilty parties punished.
131. As for the competence of the investigative bodies, during its trip to Guatemala in 2004 and its follow-up visit in 2006, the Rapporteurship learned that the national civil police and the public prosecutor’s office –the two institutions in charge of investigating cases of violence against women- often do not collaborate by sharing information, which only slows investigations into these cases.
132. In its report on the situation of women’s rights in Ciudad Juárez, Mexico, the IACHR observed gender biases in the conduct of the prosecutors and investigators working cases involving violence against women, biases that demeaned the women victims throughout the investigation process:
(…) almost as soon as the rate of killings began to rise, some of the officials responsible for investigation and prosecution began employing a discourse that in effect blamed the victim for the crime. According to public statements of certain highly placed officials, the victims wore short skirts, went out dancing, were “easy” or were prostitutes. Reports document that the response of the relevant officials to the victims’ family members ranged from indifference to hostility.[172]
133. By the date of the publication of this report, the IACHR has admitted eight petitions in which the petitioners are alleging unwarranted delays in the investigation into murders of women in the area of Ciudad Juárez, Mexico and Guatemala. Each case alleges that the investigations have dragged on for almost five years, and still no suspect has been identified, much less a guilty party convicted and sentenced.[173] The Commission’s report on the violence against women in Ciudad Juárez pointed out that the investigations of the killings and other crimes moved slowly and were riddled with irregularities.[174]
134. The Commission has also learned that incidents of mistreatment of relatives of women victims of violence are on the rise. Family members are inadequately treated when they attempt to obtain information about or cooperate in the investigation. The kind of treatment they receive violates their right of access to justice and Articles 1 and 2 of the United Nations Code of Conduct for Law Enforcement Officials. The United Nations Code of Conduct provides that in the performance of their duties, law enforcement officials "shall respect and protect human dignity and maintain and uphold the human rights of all persons."
135. The IACHR has also been apprised of two different types of violations that authorities commit when women are reported missing or disappeared: 1) they fail to launch an immediate search for the victim, and 2) they blame the victim for what happened, thereby implying that the missing woman is somehow undeserving of state efforts to locate and protect her. This type of state response is particularly egregious in the case of minors, and was brought to the Commission’s attention when it processed individual cases having to do with the situation in Ciudad Juarez, Mexico, and Guatemala and during its in loco visits to other countries.
136. In regards to the gaps and irregularities that affect the investigation of cases of violence against women, the IACHR has confirmed that during the investigation of the vast majority of these cases, key types of evidence to establish the truth are not collected. On the one hand, the IACHR has identified the absence of physical, scientific and psychological evidence to establish the facts, which can bring a case to a standstill and hinder the prosecution’s ability to make its case. On the other hand, the IACHR has verified that the majority of evidence-collection efforts related to acts of violence against women focus on physical and testimonial evidence, neglecting other types of evidence that can be crucial to establishing the facts, such as that of a scientific and psychological nature. The IACHR also observes the lack of protocols to describe the complexity of these cases in regard to evidence and an itemization of the minimum evidence that needs to be gathered to properly substantiate a case.
137. For example, during the Rapporteurship’s recent follow-up visit to Guatemala, its members met with staff of those units in the Public Prosecutor’s Office that are in charge of investigating various crimes against women, including crimes of intrafamily violence. The prosecutors observed that in cases of domestic assault, much more weight was attached to evidence of physical injuries. In its report on the Colombian armed conflict’s impact on women, the IACHR expressed concern over the "chain of custody"[175] in cases involving violence and its exclusive emphasis on preserving physical evidence.
138.
The
IACHR has verified that evidence other than physical evidence and
testimonies needs to be weighed to prove cases of violence against
women, particularly those related to sexual violence. The Rules of
Procedure and Evidence of the International Criminal Court address
several factors that can inhibit a victim from physically resisting a
sexual aggression, even when the act has not been consented, and how
these factors must be
139. The IACHR has received reports of delays in gathering evidence in the wake of an assault, which poses critical challenges to collecting adequate testimony and expert evidence. The IACHR has also been informed that evidence provided by victims or their relatives is not introduced into the overall body of evidence in cases involving women victims of violence. Another frequent complaint was that States refuse to provide information on an investigation’s progress. Additionally, a partialized gathering and processing of evidence as well as the absence of skilled personnel to conduct the required processes has been registered.
140. For instance, a telling example involving El Salvador was brought up during one of the Rapporteurship’s working meetings, where the findings of a study conducted by the nongovernmental organization Las Dignas were introduced. The study concluded that the vast majority of investigations into sex offenses are not scientific in nature and protocols and methods for investigation of these crimes are lacking.[180]
141. Overall, justice systems do not adequately protect women victims’ dignity and privacy during the investigation process. These women end up being re-victimized by the lack of sensitivity to their plight, their sex, and the seriousness of the facts alleged. During the working meetings that the Rapporteurship organized, an example from Nicaragua was brought up where it was noted that in Nicaragua, the authority who receives the original complaint –generally the police- asks the victim to undergo examination by the Institute of Legal Medicine and a psychologist so that they can use their expert opinions as evidence. In general, however, these people are discredited by the assailant, who orders that a battery of other tests be taken.[181] In Honduras, a research study describes the problem as follows:
The double victimization of women who file complaints for sex offenses is obvious from the moment the complaint is first filed with the authorities. As a rule, no physical space is set aside where such complaints can be filed in a manner that guarantees the complainant’s privacy and security. Most such statements have to be made in open areas where the curiosity and staring of individuals unrelated to the investigation compound the complainant’s sense of vulnerability. It is utterly incomprehensible why a statement or testimony should have to be given six times over in the presence of various actors who, although members of differing institutions, are nonetheless part of the same criminal justice system.[182]
142. Then, too, the establishments where victims receive support and assistance are not always able to guarantee their privacy. Victims may have to wait long periods before being attended. Victims are questioned in public by multiple officials, including one or two police officers, a prosecutor, a forensic physician, a clerk, a judge, a defense attorney. Yet throughout all this they are never informed of the judicial process in general.
143. Problems of this kind are examined in a research study done by the Observatory for a Violence-Free Life in Ecuador [Observatorio para Una Vida Libre de Violencia en el Ecuador], with support from the Consejo Nacional de Mujeres and the Fondo de Justicia y Sociedad (Fundación ESQUEL-USAID).[183] The study followed 50 cases of sex offenses and intrafamily violence in five communities in Ecuador. One of the chief findings was that many women victims feel mistreated by the administration of justice system. When they file their complaints, they then have to undergo a number of invasive examinations and repeat their testimony over and over again. Most cases of intrafamily violence and sexual abuse occur in private and leave no physical evidence, with the result that the case rests solely on the word of the victim against that of her assailant. In such cases, the justice system is more inclined to believe the assailant. The forensic medical examinations are not always helpful in establishing the facts because those who perform them are not trained in cases involving violence against women and the findings may simply be a physician’s subjective interpretation.
144. The Commission has observed principles applicable to the prosecution of cases of violence against women, which grant prosecutors considerable latitude in deciding which crimes they will seek indictments for and which they will not. This latitude can result in the influence of discriminatory socio-cultural patterns in a prosecutor’s decision of which crimes to investigate. The Commission examined this problem in its report on the impact of the Colombian armed conflict on women. There, a number of sources, including the Ombudswoman for Children, Women and the Family, communicated to the Rapporteurship its concern over the incorrect application of the principle of opportunity, whereby in cases involving violence against women, prosecutors have the authority to decide which cases they will investigate and seek indictments for and which they will not, and for which crimes.[184] Given so much latitude on occasion, a prosecutor’s personal beliefs and attitudes can play a pivotal role in the decision he or she makes.
145. The incorrect application by the prosecutor’s offices of the principle of opportunity in some countries does not take into account the vulnerability or defenselessness of women victims of violence. Nor does it consider the fact that women who are raped or subjected to other forms of violence may feel compelled to remain silent because they fear their assailant’s reprisals and/or community ostracism. This situation and the dangers posed by allowing prosecutors this degree of discretion were mentioned by the experts at the working meetings organized by the Rapporteurship, during the discussions on Paraguay[185] and Guatemala.[186] A research study on Chile’s criminal justice system and the handling of cases involving gender-based violence describes the problem as follows:
Prosecutors appear to seek indictments only in those cases where they feel certain that a conviction can be won. In determining whether a case can be won, prosecutors tend to look more at the strength of the evidence in a case, and less at the seriousness of the facts under investigation. These are dubious criteria since, for example, sex-related criminal cases are, by nature, not cases where victory is a certainty. Because of the emphasis placed on the certainty of victory, the criminal justice system has not done enough to solve crimes of this type, which are, by nature, different from other crimes.[187]
146. Research on the situation in Chile, Honduras, Ecuador and Guatemala found that the percentage of sex offenses that go to trial is extremely small in these countries. The reasons cited include the inefficacy of the investigations conducted by the public prosecutor’s office and the tendency to take to trial only those cases in which the evidence is considered to be sufficient to win a conviction.[188] One persistent problem cited is the fact that the public prosecutor’s offices solely rely on evidence like medical reports of physical injuries and the testimony of witnesses, without efficiently compiling "evidence that can be used to prove and reconstruct the crime." Very little protection is provided to victims and witnesses during the proceedings. A research study conducted in Bolivia on discrimination against women within the administration of justice system found that prosecutors tend to associate sexual violence with physical violence, thereby downplaying the severity of a sexual assault.[189]
2. Flaws in the prosecution and punishment of cases involving violence against women147. The problems with the investigation of cases involving violence against women are further compounded by the inefficacy of the criminal justice systems in prosecuting and punishing such cases. The Commission has found that certain discriminatory socio-cultural patterns influence the conduct of officials at all levels of the judicial branch, with the result that even today, the very few cases that actually go to trial and end in convictions are in no way reflective of the number of complaints filed and the prevalence of the problem. The Commission’s work has found that violence and discrimination against women are still condoned in society in this hemisphere, as evidenced by the way in which officials in the administration of justice system respond to women victims of violence and treat their cases. Even today, the tendency is to regard cases involving violence against women as private, domestic disputes, low priorities, and areas into which the State should not intrude.
148. The following statements made during the Rapporteurship’s working meetings capture the view of the majority of experts consulted during this project as to the systemic barrier that culture represents when women in their countries file complaints of violence:
The patriarchal culture helps shape the mentality of many of our peoples. Violence against women is in fact a symptom, but not the disease. Women will not have equal access to justice and violence against women will not be eliminated until a new mentality is cultivated, one that regards women as equals and not inferiors. The mindset today is the root cause of violence against women.[190]
The changes made thus far are for the good, but we have not yet transformed society.[191]
149. In its cases, the Commission has recognized the presence of this cultural problem and how it impacts the conduct of judicial officials. Accordingly, the Commission has reminded the States of their obligation to address it adequately. As noted earlier, in the Maria da Penha Fernandes case,[192] the IACHR applied the Convention of Belém do Pará and found that, in addition to the violations in the individual case, there existed in Brazil a pattern of discrimination evidenced by the condoning of domestic violence against women, with the result that the judicial branch was ineffective in prosecuting and punishing such cases. The Commission underscored that the State’s due diligence obligation involved more than a duty to prosecute and convict; it also involved a duty to "prevent these degrading practices."[193]
150. Under item 7 of the questionnaire[194] that the IACHR sent to the States concerning gender-based violence and discrimination, the States were asked what were their greatest accomplishments and challenges in implementing laws and public policies to prevent, punish and eradicate discrimination and violence against women. In their responses, a number of States pointed to the cultural problem as one of the challenges that influenced the conduct of State officials, and described it as follows:
The cultural and silent acceptance of male domination.[195]
The most entrenched obstacle to the prevention, protection and punishment of violence against women is the persistence of sexist imaginaries that are highly tolerant of violence against women.[196]
Traditional stereotypes, attitudes and expectations of society continue to pose challenges.[197]
Maintaining training and refresher courses for police and court personnel to eradicate the sexist practices that encumber the exercise of the right to justice in the case of women victims of violence.[198]
A major challenge that OVW [Office of Violence against Women] faces is one of perception. Historically, the criminal justice system treated domestic violence as a private, family matter. Only in the past two decades has spousal and partner violence been acknowledged as a crime requiring the full force and attention of the criminal justice system (…) Another challenge that OVW faces is addressing the cycle of violence. Many states are beginning to recognize the impact of domestic violence on children. Numerous studies have noted the impact that witnessing domestic violence has on children. These studies indicate that children who are exposed to domestic violence often exhibit higher levels of behavioral, social and emotional problems that children who have not witnessed such violence.[199]
Implementation of the following measures is critical to the prevention, punishment and eradication of violence and discrimination against women: (…) e) permanently rooting out discriminatory concepts and values in the law; in the case of sex offenses, examples might include such concepts as chastity, honesty, or the possibility of circumventing criminal punishment if the offender marries the victim; f) training those who work in the justice system (those attached to the public prosecutor’s office, police, forensic physicians, public servants and technicians) to be respectful of women’s human rights and sensitive to the gender perspective; g) including the gender perspective in children’s early education, and promoting the creation of public policies free of gender stereotypes and sexism (…) Domestic violence is legitimized and endures in large part because of the cultural practices underlying gender relations, which are commonly based on “myths, stereotypes of inferiority, male dominance, women’s submission and control of women by men.”[200]
The fact is that in our country, the law is changing faster than socio-cultural gender patterns in Peruvian families. In effect, these patterns, which have become beliefs, myths and prejudices, continue to influence the way in which the male and female identities are shaped, with each sex having its own roles but unequal status. These factors become obstacles to democratic relations within families and cut short women’s progress at every stage in life.[201]
Challenges include the cultural beliefs, the religious education about the roles of men and women, the ambivalence of victims of abuse to seek redress and lack of financial and human resources.[202]
Challenges include cultural beliefs that perpetuate gender stereotyping that sometimes results in violence and discrimination against women.[203]
151. Other influences include a set of socio-cultural values and ideas that are premised on women’s inferiority by virtue of their biological differences and reproductive capacity. These influences, too, are detrimental to the prosecution of women’s cases within the justice systems and contribute to the perception that discrimination and violence against women are private affairs and low priorities.[204] These discriminatory socio-cultural patterns influence the behavior of attorneys, prosecutors, judges and other officials in the administration of justice system in general, and the police. They have a negative effect on the judicialization of these cases and effective enforcement of court orders. They are also one of the reasons why so few convictions are won in cases involving violence against women. The Convention of Belém do Pará and the CEDAW have underscored the link between violence against women and discrimination, and the way in which certain stereotypes and social and cultural practices that are premised on women’s inferiority to men can have a negative influence on the conduct of public officials.[205]
152. Experts and magistrates from the region have described the problem of gender-based discrimination in court proceedings as follows:
Most representatives of the governments of the region, the NGOs and regional and country-specific studies agree with this assertion and that the great majority of the problems with enforcement of domestic violence laws and with prosecution of the most serious cases can be traced to the patriarchal beliefs and values of the responsible authorities: beliefs and values –recognized or not, conscious or not- such as: domestic violence is a private matter; the family should always stay together, if a woman is mistreated or abused, she asked for it, and so on.[206]
The obvious trend toward enacting laws intended to eliminate discrimination and protect the basic rights of all persons is not matched by a similar trend in the judiciary, where the decisions delivered tend to be based on moral and religious systems that put form over substance and where laws are interpreted narrowly, feeding the roots of discrimination and inequity in the region.[207]
153. Research studies that the justice systems themselves have conducted at the national level have also described and analyzed this very problem. One such study, on the justice system in Bolivia, was ordered by the justices on Bolivia’s Supreme Court[208] and found that discrimination against women permeated everything that judges, attorneys and litigants do –both men and women in different areas. This is particularly true in cases of intrafamily violence and sexual violence.[209] The research found that:
The percentages of gender bias encountered are significant and are a function of the discriminatory laws in force and the androcentric culture expressed by judges, attorneys and litigants –male and female alike. They all assume that the superiority of men is the natural order of things and that it is natural for men to be violent, thus legitimizing male violence. This thinking is not confined to the private realm; it is pervasive in the public-professional realm as well, and manifests itself in the attitudes and the reasoning in judicial decisions that weigh the conduct of men and the conduct of women differently. It is also present in the factual and legal arguments used by attorneys and litigants, male and female alike.[210]
154. The research conducted in Bolivia also found that gender-based discrimination was a factor in 100% of rape cases, that the cases are tried on the basis of moral considerations and social mores rather than protection of the victim’s human rights. It also found that property-related and economic crimes committed against women have more priority than violence cases. A research study ordered by Paraguay’s Supreme Court[211] found varying degrees of discrimination in the prosecution of cases of violence against women, particularly on the part of male and female prosecutors and examining magistrates, who are not sensitive enough to complaints filed by women victims of domestic violence:
The mediation of the judge –male or female- is of fundamental importance for proper application of the law. The frustration felt by the victims of domestic violence interviewed was obvious as they recounted the insensitivity with which the magistrates received their complaints. Their sense of frustration and disappointment increases when the judge –whether male or female- refuses to hear or receive their complaint or when they are asked the wrong questions or no questions at all. Although no one ever said so, this may be one of the reasons why women so frequently give up on their own cases. For a victimized woman to even file a complaint, she has often had to overcome circumstances that outsiders who do not feel her pain cannot even imagine, which is why it is so important that women receive qualified, patient, direct and respectful assistance and guidance from the judge. In the end, the judge’s authority to weigh the credibility of the complaint relies entirely on his or her mediation skills.[212]
155. The influence exerted by discriminatory socio-cultural patterns may cause a victim’s credibility to be questioned in cases involving violence, or lead to a tacit assumption that she is somehow to blame for what happened, whether because of her manner of dress, her occupation, her sexual conduct, relationship or kinship to the assailant and so on. The result is that prosecutors, police and judges fail to take action on complaints of violence. These biased discriminatory patterns can also exert a negative influence on the investigation of such cases and the subsequent weighing of the evidence, where stereotypes about how women should conduct themselves in interpersonal relations can become a factor.[213]
156. In its report on the situation in Ciudad Juárez, the Rapporteurship described how these socio-cultural patterns can be at work in judicial and police proceedings.[214] The report observed that at around the time that the murder rate began to climb, some of the officials in charge of the murder investigations and prosecution of the perpetrators began to use the language of ‘blame the victim’. The report found "a notorious practice on the part of officials of discrediting the victims -- by pointing to the length of their skirts, or that they went out at night, or even that they were ‘easy’ or prostitutes."[215] The reaction of the authorities to the victims’ relatives reportedly ranged from indifference to hostility. The Commission has admitted six cases alleging attitudes of this type on the part of judicial authorities vis-à-vis alleged women victims of violence.[216] 157. Through the individual petitions filed with the inter-American system, the IACHR’s thematic hearings and research on the issue, the IACHR has learned that the interpretation of evidence in cases involving violence against women can be biased.[217] For example, in its decision on the Maria da Penha Fernandes case, the Commission describes the acceptance of domestic violence by state officials and the negative impact it had on this case. During the legal proceedings they failed to take into account the unmistakable and resounding proof that the police investigation had uncovered, thereby unnecessarily delaying the assailant’s punishment.[218]
158. The IACHR has also learned of a number of assumptions and criteria influenced by personal beliefs that prosecutors use to determine whether the evidence in a case involving violence against a woman is sufficient to serve as the basis of an investigation. The use of these assumptions and criteria has a discriminatory impact on women. For example, on the occasion of the working meetings organized by the Rapporteurship, a number of experts voiced concern over what little credibility prosecutors and representatives of the public prosecutor’s office give to women victims in cases involving gender-based violence. They assume that if a complainant withdraws a complaint, she was not credible. The IACHR observes that conclusions of this type reflect an ignorance of the reasons why a victim may decide not to pursue cases of this type, which include social stigmatization, her economic dependence, and her fear of reprisals.[219] The research studies done in Chile and Honduras feature examples that illustrate the problem:
The factors that may explain why so few cases go to trial are, in part at least, a mishandling of the characteristics peculiar to investigations of sex offenses in general, and the characteristics of the victims of those crimes, especially when the time comes to evaluate their credibility. Axial, for example, is illustrative of the situation that occurred in the case of two girls under the age of 12, who were sexually assaulted by their father over a number of years. The reports produced by the SML (Legal Medicine Service) found clear evidence of sexual activity. The psychiatric reports indicated sexual abuse and all the statements with professionals from the Victims Unit indicated that the violence was severe. The accused was held in preventive custody for a long period of time. As the months passed, however, and the loss of his earning power began to be felt, the girls retracted their statements in the CAVAS. The prosecution decided not to take the case to trial and terminated it invoking its “authority not to pursue a case.” The thinking was that the girls were lying and could not stand up under questioning at trial. The Victims Unit thought differently. It believed that the case should go to trial without the girls, because there was sufficient expert evidence.[220]
One of the problems cited by the prosecutors interviewed in Tegucigalpa was pursuing cases that complainants have already “abandoned”; this ties in with a number of factors, among them the economic means to mobilize and move the individual and witnesses, intimidation or threats on the part of the accused, or the use of extrajudicial avenues to settle the family dispute, such as mediation before other bodies. Our view is that such cases should not be considered abandoned, since the problems with the system in terms of double victimization and the difficulties of getting a court hearing at no cost and on an equal footing, are more often the reasons why a victim is unable to see her case through to the end.[221]
159. During the working meetings, the Rapporteurship was informed of phrases and concepts used by judges presiding over trials involving cases of violence against women, indicative of a bias in the prosecution of these cases in favor of the assailant. At a meeting of experts that the IACHR organized on Central America, one representative of Costa Rica’s Office of the Ombudsperson for Women introduced, by way of example, a documented case in which a woman filed a rape complaint and the judge’s finding was that "the only victims in this case were the sexual assailants, who did not know that they were assaulting a woman with mental problems."[222] Interviews conducted by the United Nations Latin American Institute for the Prevention of Crime and the Treatment of Offenders (hereinafter "ILANUD") as part of its projects to get the gender perspective into the administration of justice found that women judges may be fearful of ruling in favor of aggrieved women, so as to avoid being accused of being "feminist" or having to face up to the abuses that they themselves are suffering.[223] By the same token, male judges are fearful of appearing effeminate or less manly.[224]
160. For a study done in Ecuador on how cases involving women’s rights are handled in the criminal justice system, interviews were conducted with the persons in charge of running legal services and the attorneys working for those services on how judges weigh evidence. The study found that: "Judges do not attach the same importance to sex offenses or intrafamily crimes that they attach to other types of crime, like drug or murder cases. They don’t treat them the same."[225] One of the attorneys interviewed said the following:
Age, without a doubt. We had an experience with one judge who was reputedly “super-sensitized…. But some years ago this very same judge dismissed a rape case on the grounds that the victim had consented, when in fact the victim was a deaf mute child and was 12 years old at the time. So, yes, there are culturally-charged biases.[226]
161. Among the dangers and threats that have been troubling for the IACHR is the fact that various judicial bodies are encouraging the use of conciliation during the investigative process, as one means of solving crimes of violence against women, especially in cases of domestic violence.[227] Yet it is internationally recognized that conciliation and mediation is inadvisable in such cases.[228] Many experts and international organizations have underscored the dangers of using conciliation as a means of settling cases of violence, especially domestic violence.[229] They have pointed out that by allowing a crime of this type to be settled by conciliation, the crime becomes a subject of negotiation and transaction between the victim and her assailant. Conciliation 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. In a number of countries it has become clear that the agreements reached in the framework of mediation compound the physical and emotional risks for women given the unequal power relationship between the victim and her assailant.[230] As a rule, the assailant does not honor the agreement and the agreement itself does not address the causes and consequences of the violence.[231]
162. The judicial culture is in need of the kind of sustainable reform that will enable women to obtain de jure and de facto access to justice. Training programs for public officials, members of the judiciary, the police and community agents need to be created and strengthened. And despite the proliferation in training programs targeted at officials in the administration of justice system and the police,[232] the IACHR has noted that the impact of these programs has been uneven. Many have not had a sustainable impact, as they have not become established institutions or do not boast accountability mechanisms, both factors needed to effect meaningful change. The major challenges for these programs’ impact have been described as follows:
Training programs targeted at police, judges and officers of the court have in practice shown their enormous limitations and limited effectiveness, as they have not been matched by organizational, budgetary, normative changes, monitoring and evaluation mechanisms that guarantee that the implementation of these programs will not hinge solely on the determination of individuals and that they will become institutionalized in ways that bring about substantive changes in practices and genuine cultural transformations.[233]
163. In order to result in sustainable changes, the IACHR highlights that these programs should be vested with the needed mechanisms to guarantee their institutionalization and efficacy. States have to take steps to sanction public officials who violate women’s rights during criminal proceedings. The public needs to be educated from an early and formative age of the problem of violence against women to prevent the creation of stereotypes that relegate women to a subordinate position.
164. It is just as critical to strengthen policies to prevent the abuses and the various forms of violence that state authorities perpetrate against women during judicial proceedings, as an express and immediate obligation articulated in Article 7 of the Convention of Belém do Pará. Thus far, most prevention policies at the state level focus on public awareness campaigns and outreach programs to disseminate information to the general public about violence and discrimination against women as separate problems. To be effective, prevention strategies need to address the risk factors at the family and social levels that foster in judicial personnel a tolerance for violence against women. The direction that prevention strategies must take has been described as follows:
Prevention strategies need to be geared toward reducing the risk factors and increasing the protective factors. The risks include structural factors like job instability, poverty or massive migration triggered by economic crises in regions or countries and requiring global intervention with medium-term results; social factors like isolation or lack of networks; family factors such as the background of family violence that each partner brings to a marriage; or individual factors such as drug or alcohol abuse, aggressiveness or cultural values that legitimize the use of violence and abuse of power.[234]
165. By the same token, the IACHR is troubled by the fact that the focal point of existing prevention campaigns continues to be domestic violence, to the exclusion of other forms of violence that occur in other realms. Prevention policies have to take all forms of violence against women into account and the context in which that violence occurs, in keeping with the Convention of Belém do Pará and other international human rights instruments.
3. Ineffectiveness of preventive mechanisms in protecting women from violence
166. On the matter of prevention and protection, the IACHR has found that state authorities –the police in particular- are not fully complying with their duty to protect women victims of violence against imminent threats. The most serious problems are with enforcement and follow-up of restraining orders or other preventive measures ordered. The situation is particularly severe in the case of intrafamily violence. The inaction on the part of State authorities is in part explained by their tendency to disbelieve the allegations made by women victims of violence and their perception of intrafamily violence as a private and low-priority affair. In many cases, women have been killed even after seeking the State’s preventive protection; in some cases, restraining orders were issued to protect women but then not properly enforced or monitored.
167. The United Nations Special Rapporteur on violence against women, its causes and consequences (hereinafter "United Nations Rapporteur on violence against women") has recently expressed concern over the conduct of police and their failure to intervene to prevent acts of violence and implement protective orders, and has ranked this among the chief obstacles to the practice of due diligence at the global level.[235] This kind of behavior fosters impunity and because of it crimes of this kind go on and are repeated over and over again. Conduct of this kind is a breach of the States’ obligation to practice due diligence to prevent violence against women. When a restraining order is not enforced, a woman can continue suffering acts of violence that can result in a homicide against her and her children. Frequently, when restraining orders are not enforced, a woman repeatedly suffers violence, which can result in homicide against her and her children. As previously stated, the duty of the States to practice due diligence applies to State and non-State actors alike, and is particularly critical in cases where the States know that acts of violence are a real and immediate threat.
168. As for the specific conduct of the police, various research studies have found that the police do not regard the problem of violence against women as a priority among criminal offenses and tend not to believe the victims when they report threats of imminent violence, even when specialized units have been established and a number of training programs introduced to make police more sensitive to gender issues: The police need more training because they sometimes think that domestic problems should be settled at home. They say things like “they’ll settle this at home.” What they don’t see is that the problem has already gone public…[236]
Some police officers interviewed also underscored these considerations, saying that “If a woman leaves a party at three in the morning with three men and she tells you that they raped her, can she be believed? Many women file complaints as a cover-up for infidelity.”[237]
169. A United Nations Development Fund for Women (hereinafter "UNIFEM") and ECLAC-sponsored research study on the English-speaking countries of the Caribbean and presented during the working meeting organized by the Rapporteurship, found that police authority was rarely used to ensure implementation of the law, particularly in cases of incest and child abuse.[238] The study also makes the point that patriarchal norms about the privacy of family affairs persist and are accepted among police officers. Through the American Civil Liberties Union (ACLU), which works to advance and promote civil rights, the IACHR has learned of incidents where the police in a number of states in the United States do not enforce restraining orders and do not take action even when the victims ask that these orders be enforced.[239]
170. The IACHR has also been informed that States frequently take the position that victims are themselves responsible for monitoring the preventive measures, which leaves them utterly defenseless and in danger of becoming the victim of the assailant’s reprisals, even when these women victims were diligent in exercising their right to file a complaint about the failure to enforce the measure. For example, the Commission is disturbed by the fact that on the follow-up visit made to Guatemala in 2006, representatives of the Public Prosecutor’s Office expressed the view that the beneficiary of the precautionary or preventive measures is responsible for ensuring their effectiveness when family-court judges and magistrates do not effectively monitor their enforcement and police fail to act. Then, too, on the visit made to Guatemala in 2004, the Rapporteurship received information on two cases in which the murdered women had restraining orders on their person at the time they were killed; it was also told that 31% of the women murdered had been threatened beforehand.
171. Judges and prosecutors weigh certain factors when issuing and following up on restraining orders and other precautionary measures. Unfortunately, little if any consideration is given to the risk to the victim; much more consideration is given to the impact that the order will have on the aggressor. For example, one research study conducted in Chile on the behavior of judges when ordering precautionary measures found that in the case of sex offenses, the criterion used is the danger the aggressor poses to society but not the safety of the victim.[240] The Commission has also been informed of difficulties with the enforcement of protective measures ordered caused by delays on the part of those operating the justice system or a lack of coordination between police and the public prosecutor’s office.[241]
4. Barriers which victims encounter when seeking judicial protection
172. Particularly disturbing to the Commission is the fact that women victims of violence tend not to turn to the justice system for protection and are chronically mistrustful of the justice system’s ability to solve their problems. These attitudes can in part be attributed to the re-victimization that women experience when they attempt to report what they have suffered; the lack of protections and judicial guarantees to safeguard their dignity, security and privacy and that of the witnesses during a case; the financial cost of judicial proceedings and the geographic location of judicial bodies that take complaints. The Commission is also troubled by the lack of information available to women victims and their family members about how to access the justice system to seek protection and prosecution of their cases.
173. Research studies done in four countries in the region - Chile, Guatemala, Honduras and Ecuador - identify reasons why the justice |