The Commission values the cooperation shown by the States of the Hemisphere in responding to the questionnaire, and which demonstrates their commitment to achieving the ideals of juridical equality and nondiscrimination towards women. As noted in this report, many States have added women's rights to the national agenda, creating new institutions, plans and specific policies, legal mechanisms of affirmative action in political participation and, in general, significant advances in promoting and protecting women's rights. There is a growing perception in the region that effective democracy calls for greater participation by women in decision making and that access to the public life of a nation is not achieved solely through the nondiscriminatory exercise of the right to vote.
Despite the undoubted progress reported by the countries, serious problems persist in the region. Women have not yet achieved full juridical equality in every country in the region. Discrimination de jure is a flagrant violation of the international commitments freely assumed by the States and, although formal equality does not guarantee the elimination of instances of discrimination, recognizing it makes it possible to encourage transformations in society, thereby enhancing the authority of this right. According to the information received, certain countries possess, in greater or lesser measure, laws that restrict and/or discriminate against the civil rights of women in marriage with respect to the administration of assets of each spouse or other types of assets; in representation of the conjugal home or head of household; in the exercise of parental authority; in establishing the conjugal domicile, or the possibility of remarriage; in the need for express or tacit authorization of the husband to work and open a business; or in the right to ownership of property.
The preamble to The Convention of Belém do Pará states that "violence against women constitutes a violation of their human rights and fundamental freedoms, and impairs or nullifies the observance, enjoyment and exercise of such rights and freedoms." Article 2 of the same Convention adds that "Violence against women shall be understood to include physical, sexual, and psychological violence that is perpetrated or tolerated by the State or its agents regardless of where it occurs". The State has the obligation, therefore, in accordance with this international instrument and Article 1.1 of the American Convention--and the rights established therein--to act with due diligence to prevent violations of human rights and to take remedial action whenever violations do occur. This implies that, even in the case of conduct not originally attributable to the State, a violation of these rights may entail responsibility on the part of the State "not because of the act itself, but of the lack of due diligence to prevent the violation or to respond to it as the Convention requires." (I.A.Ct.H.R., Case of Velásquez Rodríguez, judgment of July 29, 1988, Ser. C. No. 4, paragraph 172.)
At the meeting of experts on the Status of Women in the Americas on November 7, 1997, organized by the Special Rapporteur of the Inter-American Commission on Human Rights, dealing with the problem of violence against women was identified as a priority. Although this problem, given its magnitude and seriousness, has led to the creation of institutions, mechanisms, and various legislative initiatives, norms that violate the guarantee of equality before the law and due process continue to exist. In many criminal codes, values such as honor, social decency, virginity, chastity, and good morals prevail over values such as the mental and physical integrity of the woman and her sexual liberty, thereby impeding the due protection under the law of victims of such crimes, or compelling them to prove that they resisted in the case of the crime of rape, or subjecting them to interminable procedures that perpetuate victimization.
The Commission wishes to draw the State's attention to the fact that the situations such as those described in which women who are the victims of violence are left unprotected still exist because of a lack of adequate legislation or because the legislation in force is not observed. In many countries, women who are the victims of family violence cannot rely on appropriate criminal laws since domestic violence is not considered a crime, or else the complaints are unsuccessful, with the process generally ending with the aggressor being set free. There are situations in which women victims of sexual violence do not have access to civil action for damages since the dignity of the individual is considered a juridical interest not susceptible to inclusion as a pecuniary interest. Apparently, in this latter case, the damage is viewed as having an abstract element with a moral component "the dignity of the victim", without also taking into account that the individual's mental and physical integrity has been harmed or affected as well as her freedom and privacy. In addition, the concept of moral damages is covered in other areas of the criminal code and is susceptible to restitution through civil action. The Commission wishes to recall that Article 7.g of the Convention of Belém do Pará establishes that the States must "establish the necessary legal and administrative mechanisms to ensure that women subjected to violence have effective access to restitution, reparations or other just and effective remedies." Equally important is the fact that woman campesinos, minors, and indigenous women are particularly vulnerable to situations in which they are left unprotected and exposed since they have fewer means of defence.
On the question of persecution and sexual harassment, the information received by the Commission showed that only in exceptional circumstances is such behavior regulated in the domestic legislation of the States, with it being restricted in one case to the public sector and in another to labor legislation. Many countries report, however, on the presence of draft legislation to eventually incorporate sexual harassment into national legislation.
The responses to the Commission's questionnaire reveal that although women account for over one half of the population in the hemisphere, this is not reflected in decision making levels in the political, social, economic, and cultural spheres.
In their reports, the States refer to serious problems in terms of material resources, a situation that undermines the protection of rights relating to health, employment, and education. The Commission is aware of the problem of resources but is not convinced that the rights of women have been adequately considered in the establishment of national priorities and the assignment of resources.
The Commission has been able to confirm the existence of valuable education programs that include gender perspective aimed at overcoming social and cultural traditions that continue to circumscribe equal opportunities for women. The Commission considers programs of this kind essential for heightening awareness in the region of the rights of women and for ensuring that such rights can be exercised.
According to the responses forwarded by the States on health and reproductive health, the Commission was able to confirm serious deficiencies in statistics, generally owing to a lack of resources and suitable infrastructure. The Commission is able to verify serious problems of access to basic information, proper health and social care, as pointed out in superb reports prepared by the Pan American Health Organization on violence and health47, as well as studies undertaken by the World Bank48, and the Inter-American Development Bank49 on domestic violence and health. These international organizations undertook major initiatives and strategies to prevent, reduce, and raise the visibility of violence against women.
In the area of labor legislation, most States in the region have laws of varying legal rank that prohibit discrimination in the work place. However, there are sharp disparities in the compensation levels of men and women for the same work. In some situations, women are assimilated with minors, a situation which in itself constitutes a violation of the principle of nondiscrimination and recognition of juridical personality.
47. Report entitled "Advances in the Eradication of Violence against Women," 1997, PAHO, Washington, D.C. Research project initiated in 1996 "Critical Path of Women Affected by Intrafamily Violence," under way in seven countries in Central America. Publication "Violence against Women and Children: Analysis and Proposals from the Perspective of Public Health", Women, Health, and Development Program, 1993, PAHO.
48. World Bank Discussion Paper 255, "Violence Against Women: The Hidden Health Burden," L. Heise, J. Pitanguy, and A. Germain, 1994, Washington, D.C.
49. Seminar "Domestic Violence in Latin America and the Caribbean, Program and Policies, ATN 5657, Unit for Women in Development, Inter-American Development Bank, 1997, Washington, D.C.