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Not quite equal under the law

By Charo Quesada

On paper, Latin America is almost a model of equitable and gender-neutral justice. Nearly all governments in the region have signed and ratified international agreements guaranteeing access to the courts and equality under the law, regardless of sex.

This could lead people to conclude that everyone can now rest easy: politicians because they have affixed their signatures to the agreements, men because they believe that the law is a sufficient guarantor or women’s rights, and women themselves because they trust that these advances mean that they are finally be equal before the law.

But according to a new United Nations study on the on gender and equality in 16 Latin American countries, in practice the situation is not so reassuring. Though armed with the law, when a woman who has been the victim of any kind of abuse or crime seeks justice, she often encounters an obstacle course. The judicial facilities where she must file her complaint are hard to reach and inadequate. In many instances these facilities even lack privacy, so that the claimant must discuss her problem within earshot of strangers. The public defenders that are supposed to handle these complaints tend to be overworked and under trained. In countries that have recently adopted oral trials and judicial proceedings (as opposed to the traditional written system), women must also fight for credibility in courtroom settings still dominated by male judges and attorneys. Many judges do not understand the obligations involved in applying the law equitably. Moreover, the new case law in this area is not organized systematically, so that courts tend to issue inconsistent verdicts.

Faced with these intimidating obstacles, some women abandon their claims and resign themselves to an unjust outcome.

High-quality justice. “All the international agreements require equality. Judiciary systems in particular are required to make judges comply with these rules, but many judges are not aware of them,” said Alda Facio, director of the Programme on Women, Justice and Gender of the U.N.’s Latin American Institute for the Prevention of Crime and the Treatment of Offenders (ILANUD, its acronym in Spanish). Facio and the program’s deputy director, Rodrigo Jiménez, recently presented their 16-country study on equitable justice at the IDB.

Based on interviews with dozens of judges, other judicial authorities and women who head public institutions in Latin America, the study paints a picture of modest advances framed within the need for long-term progress-a situation not unlike that of many other developing regions. “Progress has been made in getting the wheels of justice to turn more quickly, but not in achieving justice of high quality,” the study states.

Women lose out. One of the study’s findings is that women tend to receive maximum sentences for drug trafficking, while men who traffic in the same amounts may even go free if they cooperate with the justice system. Paternity laws, which are crucial for many female heads of household, are applied unevenly throughout the region, and they offer little flexibility in ways to make child support and alimony payments. There are tremendous gaps in applying domestic violence legislation, which emphasizes protecting the victim at the expense of preventing and resolving the problem over the long term. In countries such as Bolivia and Guatemala, where indigenous women tend not to be as bilingual as men, many women serve long jail sentences without knowing why, simply because they lacked interpreters during the legal proceedings.

These are some of the examples Facio and Jiménez cited in order to illustrate that the commitment to equitable justice for women lags far behind in practice, despite the fact that women constitute a majority of Latin America’s population. Overall, 50.30 per cent of the region’s population is female, while males constitute 49.30 percent. Moreover, 28.80 percent are of women are female heads of household and 23 percent are single mothers.

“Even the feminist movements have put more emphasis on legislation and less on the judicial system,” Jiménez pointed out. “But the judicial systems have no policy regarding gender, and there are no standards for incorporating a gender perspective.” This means that many judges are not even aware that they are applying the law inequitably. According to the study, only 7 percent of the countries surveyed have analyzed their performance in this area. So-called “gender commissions,” which are established to address these problems, are only effective if women in a particular country are in a powerful position at the time.

Sometimes judges are unaware of applicable criteria for the same types of cases, both in their countries and elsewhere. “In Costa Rica, poorly systematized case law means that one court may apply the same criteria in different ways, which turns the court’s ruling into ‘a question of luck,’” Facio says.

Recommendations. Facio and Jiménez have high hopes that the international agreements will be enforced, because “there is tremendous interest in human rights in the region, which in turn is the way to instill a gender perspective.” As Facio says, “In our 12 years of work, we have seen incredible changes thanks to the growing number of judges who are more sensitive to gender.”

One of these changes has taken place in Costa Rica, as a result of the new paternity law that took effect three years ago. “Paternity tests are the man’s responsibility,” Facio explained. “The man must take a genetic test at the government’s expense, and if the test shows that the child is his, he incurs obligations from the moment the mother registered that child as his with the office of vital records. From that point forward his travels are restricted, such as any unauthorized travel outside the country. This measure has even pushed down Costa Rica’s birthrate,” she said.

Facio and Jiménez also recommend that in-depth studies be conducted, and that international case law agencies be established to provide judges with information about gender-based perspectives. Other suggestions include organizing conferences for judges, creating high-level gender commissions, working with civil society, and creating more advisory agencies that focus on women.

“I’m an optimist,” Jiménez says. “This has a tremendous future. But our initial theoretical discourse needs to emphasize compliance with international agreements and compliance with the law.”