REPORT OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS ON THE STATUS

OF WOMEN IN THE AMERICAS

 

 

          EXECUTIVE SUMMARY

 

          The Inter-American Commission on Human Rights appointed Member Dean Claudio Grossman Special Rapporteur on women's rights during its 85th period of sessions, with a mandate to analyze and report on the extent to which member state legislation and practices which affect the rights of women comply with the obligations established in the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights.  These instruments provide broad guarantees of equality and freedom from discrimination to all individuals, as do the constitutions of the member states.  However, as the member states have recognized, and the Commission has become increasingly aware, discriminatory legislation and practices persist which prevent women from fully exercising the rights to which they are entitled.

 

          The Special Rapporteur presented his report to the Commission, which approved it during its 98th period of sessions, on March 6, 1998.  The report begins with an orientation on the institutional and legal framework of the inter-American human rights system and how its mechanisms may be utilized to address deficiencies at the national level which impede the ability of women to exercise their rights. The report then explains the methodology of the Rapporteur’s study and analysis, and sets forth initial findings derived from the information gathered on a core set of issues, including: institutional and legal guarantees at the national level; the question of juridical capacity; the right to take part in the public affairs and service of one's country; the right to life, physical integrity, and to be free from violence; and the right to equal protection and to be free from discrimination.

 

          The report concludes by setting forth the recommendations of the Commission aimed at: remedying instances of de facto and de jure discrimination which impede the ability of women to fully exercise their rights; addressing the consequences of such discrimination; and developing further initiatives in pursuit of these objectives within the regional system.  Chief among these are recommendations that member states immediately initiate action to identify and reform legislation and practices which have the purpose or effect of discriminating on the basis of gender in order that all such instances are eliminated prior to the year 2000.  Further, it is crucial that member states evaluate the legal recourses provided under domestic law in order to develop and reinforce their capacity to provide available and effective remedies to women who have been subjected to gender discrimination. The report recommends that the Commission focus its work with respect to the rights of women in particular on the question of violence against women and the inter-American human rights system.

 

          Beyond the present report and recommendations, this initiative was designed to raise awareness of the approaches to promoting and protecting women's rights that exist in the inter-American sphere, and to further develop working links between relevant state and non-state actors and the Commission. 

 

          The Commission wishes to recognize the contribution of Argentina, Belize, Brazil, Canada, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, Guatemala, Guyana, Jamaica, Panama, Paraguay, Peru, Mexico, Uruguay and Venezuela, as well as the nongovernmental organizations: Instituto de Estudios de la Mujer "Norma Virginia Guirola de Herrera" CEMUJER (El Salvador) and the Centro de Estudios de la Mujer - Honduras CEM-H (based in Tegucigalpa), in providing substantive responses to the project questionnaire upon which this report is based.  The Commission appreciates the interest and collaboration received from these States and organizations, from the experts with whom the Rapporteur has consulted, and from other entities of the system, such as the Inter-American Commission of Women and the Pan-American Health Organization, and understands it to be a reflection of the region-wide priority that has been accorded to advancing the status of women.

 

          The human rights obligations assumed by states as a result of membership in the Organization of American States provide a basis for action at the national level.  In a democratic system, responsibility for guaranteeing the protection of individual rights necessarily rests first and foremost at the domestic level.  The Commission's appointment of a Special Rapporteur, his analysis of national law and practice, and the recommendations issued represent a focused effort to build on and reinforce initiatives at the national level, and to work with member state governments and civil society in enhancing the situation of women's rights in the Americas. The Rapporteur extends his appreciation to Elizabeth A. H. Abi-Mershed, Senior Specialist, and Laura Langberg, Project Consultant, for their assistance in preparing this report.

 

          INTRODUCTION

 

          In 1994, the Commission renewed its commitment to ensuring that the rights of women in each OAS member state are fully respected and ensured by appointing a Special Rapporteur on the issue.  While the constitutions of the member states of the OAS formally recognize the equality of women and men, the Commission had become increasingly aware that an examination of national legal systems and practices revealed the persistence of discrimination based on gender in both law and in fact.

 

          Dean Claudio Grossman was appointed Special Rapporteur on women's rights by the plenary of the Commission during its 85th period of sessions to study how member state legislation and practices which affect the rights of women comply with the fundamental obligations of equality and nondiscrimination established in the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights.  The present report sets forth the initial findings of that study, identifying instances of de facto and de jure discrimination against women within the member states of the OAS, and issuing recommendations aimed at assisting those states in enhancing compliance with their inter-American human rights obligations.  This is the first time the Commission has adopted a comprehensive study of the status of women's rights in the hemisphere.

 

          Chapter I provides an orientation on the institutional and legal framework of the inter-American human rights system and the approaches and mechanisms it offers, with emphasis on how they may be utilized to address issues affecting the ability of women to exercise their rights.  Chapter II reviews the activities of the Special Rapporteur in preparing the study and report, and explains methodology of the project.  Chapter III sets forth initial findings derived from the information gathered, organized around a set of core issues: institutional and legal guarantees at the national level; the question of juridical capacity; the right to take part in the public affairs and service of one's country, including the right to stand for election; the right to life, physical integrity, and to be free from violence; and the right to equal protection and to be free from discrimination.  Finally, Chapter IV sets forth recommendations aimed at remedying instances of de facto and de jure discrimination which impede the ability of women to freely and fully exercise their rights, at addressing the consequences of such discrimination, and at developing further initiatives within the regional system to facilitate these objectives.

 

          I.        THE INTER-AMERICAN HUMAN RIGHTS SYSTEM AND THE RIGHTS OF WOMEN

 

          A.      The Inter-American Legal and Institutional Framework

 

          Respect for the fundamental rights of each individual, on the basis of the principles of equality and non-discrimination, is a cornerstone of any democratic system, and a fundamental principle underlying the Organization of American States.  The preamble of the OAS Charter affirms the goal of a consolidating, "within the framework of democratic institutions, [] a system of individual liberty and social justice" based on respect for the essential rights of women and men.  Article 3.k reaffirms, as a basic principle of the Organization, "the fundamental rights of the individual without distinction as to race, nationality, creed, or sex."

 

          The inter-American human rights system establishes and defines a set of basic rights, obligatory standards of conduct to promote and protect those rights, and the organs that monitor their observance. [1]   The American Convention on Human Rights (Pact of San José) and the American Declaration of the Rights and Duties of Man, the principal normative instruments of the system, explicitly prohibit discrimination on the basis of sex.  (See infra section I.A.1.) The American Convention is binding upon the States Parties thereto through ratification. [2]   The American Declaration is a source of legal obligations as the instrument which sets forth the human rights obligations of member states to the OAS Charter, as well as through customary international law with respect to many of its provisions. [3]   To strengthen the normative framework of protection and promotion of the rights of women, the General Assembly of the OAS adopted the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará).  This recent Convention, which entered into force in March of 1995, now has 27 States Parties, and provides that petitions complaining of violations may be presented before the Inter-American Commission on Human Rights.  (See infra section I.A.2.) [4]

 

          The Inter-American Commission on Human Rights ("Inter-American Commission" or "Commission"), as the principal organ of the OAS charged with the promotion and protection of human rights in the Americas has a special role to play in furthering compliance with the Charter principle of respect for the fundamental rights of each person on the basis of the principles of equality and nondiscrimination.  Section I.B, infra, provides an overview of the mechanisms through which the Commission discharges its mandate.  The Inter-American Court of Human Rights, established by the American Convention on Human Rights ("American Convention"), exercises advisory jurisdiction to interpret human rights norms in effect in the Americas.  The advisory opinions of the Court provide authoritative interpretation of legal issues concerning human rights instruments applicable in the Americas.  The Court exercises compulsory jurisdiction to interpret and apply the provisions of the American Convention in cases where the States Parties concerned have expressly declared their acceptance of that competence. [5]

 

          The regional system also benefits from the work of the Inter-American Commission on Women.  Created in 1928, it was the very first official intergovernmental agency in the world expressly created to ensure recognition of the civil and political rights of women. [6]   Its legacy includes active involvement in the establishment of the first systemic norms in favor of the rights of women: the Inter-American Conventions on the Nationality of Women (Montevideo, Uruguay 1933), the Granting of Political Rights to Women (Bogotá, Colombia 1948), and the Granting of Civil Rights to Women (Bogotá, Colombia 1948). [7]   Recently, the CIM played the decisive role in drafting and presenting the text of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women.

 

          Looking at the history of the hemisphere to the present, it is clear that the challenge of consolidating truly participatory democracy to which the member states of the OAS have committed themselves and the Organization requires strengthening the participation of all social sectors in the political, social and economic life of each nation.  As the member states have recognized, discrimination in law and in fact continues to hinder the ability of women to fully contribute to this crucial undertaking. [8]   The Commission notes with satisfaction that member states have established as priorities strengthening the role of women in society, further developing mechanisms for the advancement of women, and incorporating gender analysis in the design and implementation of public policy. [9]   As this report bears out, the designation of priorities at the regional level both builds upon and reinforces action taking place at the national level.

 

          Enhancing the participation of women in national society is necessarily an integral part of the work plan of various other entities of the OAS, as is the case with the Unit for the Promotion of Democracy (UPD), which most recently cosponsored a seminar on women and political participation in December of 1997.  For its part, the Permanent Council of the OAS announced the establishment of a new initiative to coordinate efforts in this sphere in November of 1997.  Further, the member states are including their commitment to the advancement of women as an important theme in preparations for the Summit of the Americas to take place in Santiago de Chile in April of 1998.

 

          1.       Principles of nondiscrimination and equal protection underlying the constitutive instruments of the regional human rights system

 

          The instruments of the inter-American human rights system, like those of the universal and regional systems generally, are based on broad principles of equality and nondiscrimination.  While the present report focuses on the principal regional instruments, it necessarily draws upon the larger international framework, in particular, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights ("ICCPR"), the International Covenant on Economic, Social and Cultural Rights ("ICESCR"), the Convention on the Elimination of All Forms of Discrimination Against Women ("the Women's Convention"), and customary international law.

 

          Articles 1 and 2 of the Universal Declaration affirm that "all human beings are born free and equal in dignity and rights," and that every person is therefore entitled to the rights and freedoms set forth "without distinction of any kind" including sex.  The general legal obligations set forth in, inter alia, Articles 2.1, 3, 4.1 and 26 of the ICCPR and Articles 2.2 and 3 of the ICESCR, which require all parties to refrain from discrimination on enumerated grounds including gender are developed and amplified in the provisions of the Women's Convention. The latter sets forth in Article 1 that the term "discrimination against women"

 

          •        shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms....

 

The definition covers any difference in treatment on the basis of sex which:

 

          •        Intentionally or unintentionally disadvantages women;

 

          •        prevents recognition by society as a whole of the rights of women in the public and private spheres; or,

 

          •        prevents women from exercising the human rights to which they are entitled.

 

Article 2 requires States Parties to pursue, "by all appropriate means and without delay, a policy of eliminating discrimination against women" which includes the duty to refrain "from any act or practice of discrimination against women and to ensure that public authorities and institutions [] act in conformity with this obligation," as well as the duty to adopt the legislative and other measures required "to modify or abolish existing laws, regulations customs and practices which constitute discrimination against women." 

 

          The American Convention on Human Rights, like other principal international and regional human rights treaties, is based on broad principles of non-discrimination and equal protection of and before the law.  Article 1 of the Convention provides that each State Party undertakes to "respect and ensure the rights and freedoms" set forth "and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of, inter alia, sex.  Where a recognized right is not already protected by legislative or other means, a State Party is obliged to take the measures necessary to give it effect (Article 2). 

 

          The Convention protects a broad range of civil and political rights.  The right to be recognized as a person before the law is set forth in Article 3.  The right to equal protection of and before the law is established in Article 24, and is manifested more specifically in Article 17, concerning "rights of the family," which specifies that "States Parties shall take appropriate steps to ensure the equality of rights and the adequate balancing of responsibilities of the spouses as to marriage...."  While the Convention allows for the suspension of certain rights during emergency situations which meet the criteria stipulated in Article 27, such measures may not discriminate on the basis of, inter alia, sex. [10]

 

          The American Declaration sets forth the rights that member states not party to the American Convention pledge to uphold pursuant to ratification of the OAS Charter.  It remains a source of obligation for all member states. [11]   The Declaration recognizes the right of each person to be "equal before the law and to have the rights and duties established in th[e] Declaration, without distinction as to race, sex, language, creed or any other factor."  Like the American Convention, the Declaration recognizes a broad range of rights, although its provisions are less fully developed, and differ in certain respects from those of the former.  The right to equality before the law is established in Article II, and the right to recognition of one's juridical personality and civil rights is set forth in Article XVII.

 

          These core instruments have been augmented by: the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Pact of San Salvador), the Protocol to Abolish the Death Penalty, the Inter-American Convention to Prevent and Punish Torture, the Inter-American Convention on Forced Disappearance of Persons, and, most recently, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará).  Of these, only the Protocol on Economic, Social and Cultural Rights has yet to enter into force.  This remains an important objective, given that the quest for women to achieve the full and equal enjoyment of their rights requires the effective implementation of all categories of rights, consistent with their indivisibility.  The Pact of San Salvador makes explicit certain rights which are not fully enjoyed by women, such as the right to work under just, equitable and satisfactory conditions (Article 7).

 

          2.       The Convention of Belém do Pará

 

          The Inter-American Convention on Violence against Women, known as the "Convention of Belém do Pará," is unique.  Within the regional system, the development and entry into force of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women represents the re-envisioning of inter-American human rights law to apply in a gender-specific way.  The adoption of the Convention reflected a powerful consensus among both state and non-state actors that the struggle to eradicate gender violence requires concrete action and effective guarantees. [12]   This initiative both influenced and drew from the recognition of violence against women as a human rights violation at the 1993 World Conference on Human Rights, the adoption of the UN Declaration on the Elimination of Violence against Women later that year, and the further developments of the Fourth World Conference on Women in 1995.  Notwithstanding that the Convention of Belém do Pará is the newest of the inter-American human rights instruments, it is the most widely ratified, with 27 States Parties.

 

          The Convention of Belém do Pará recognizes that violence against women is a manifestation of the historically unequal power relations between women and men.  Violence against women is defined in Article 1 as:

 

          •        any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or private sphere.

 

          The Convention's elaboration of violence against women is firmly grounded in the basic rights already recognized in the inter-American human rights system, including the rights to life; physical and mental integrity, personal liberty; and to equal protection of and before the law.  Article 5 recognizes that violence prevents and nullifies a woman's exercise of other fundamental rights, and provides that: "Every woman is entitled to the free and full exercise of her civil, political, economic, social and cultural rights, and may rely on the full protection of those rights as embodied in regional and international instruments on human rights."  The Convention further addresses the interrelationship between gender violence and discrimination, establishing in Article 6 that the right of women to be free from violence includes, inter alia:

 

          •        The right of women to be free from all forms of discrimination; and,

 

          •        The right of women to be valued and educated free of stereotyped patterns of behavior and social and cultural practices based on concepts of inferiority or subordination.

 

          Implementing and enforcing the right of women to be free from violence requires determining when gender-violence triggers state responsibility.  Article 7 of the Convention sets forth the principal undertakings of States Parties to ensure that their agents refrain from any "act or practice" of gender violence, and to "apply due diligence" to prevent, investigate and punish violence against women whenever it occurs.  States Parties must take the measures necessary to give effect to the objectives of the Convention, and women who have been subjected to violence must have access to available and effective recourse to obtain protective measures, or to seek restitution or reparation.

 

          The protection mechanisms set forth in Articles 10 through 12 are three-fold.  First, States Parties are required to report to the CIM on measures adopted and obstacles confronted in addressing gender violence.  Second, the Convention authorizes individuals to file petitions with the IACHR complaining of a violation of its principal undertakings.  The broad standing requirement replicates that contained in the American Convention: any person, group, or a nongovernmental organization legally recognized in a member state may file such a denunciation, which will then be processed by the Commission according to its Regulations. Third, a State Party or the Commission of Women may request that the Inter-American Court of Human Rights issue an advisory opinion on the interpretation of the Convention. [13]  

 

          As of the end of 1997, the Convention of Belém do Pará has only been invoked in one petition, which is currently being studied in accordance with the Commission's procedures.

 

          B.       The Protection mechanisms of the inter-American human rights system as applied to promoting and protecting the rights of women

 

          As the principal organ of the OAS mandated to promote and protect human rights in the hemisphere, the Inter-American Commission on Human Rights has a unique role to play in assisting the member states in their efforts to respect and ensure the rights of the individuals subject to their jurisdiction.  Among its many functions, the Commission is charged with:

 

          •        promoting awareness of human rights in the Americas;

 

          •        providing member states with advisory services in the field of human rights;

 

          •        monitoring the situation of human rights in each member state and carrying out on site observations;

 

          •        acting on individual petitions alleging human rights violations;

 

          •        preparing studies and reports; and,

 

          •        making recommendations to OAS member states for the adoption of progressive measures in favor of human rights.

 

One of the exceptional characteristics of the inter-American human rights system is the amplitude of its mandate and the diversity of mechanisms through which it can take action.

 

          1.       The individual petition system

 

          Any person or group can file a petition alleging the violation of the American Convention, Convention of Belém do Pará, or in the case of States not parties, the American Declaration.  While it is usually necessary to identify the victim so that the respective state can investigate and respond to the allegations, the identity of the petitioner may be kept in confidence.  The petition must be in writing, it must be signed, and it must set forth facts which tend to show the violation of a protected right.

 

          Once a petition is reviewed and the basic requirements to initiate processing are  deemed to have been met, the American Convention and the Commission's Statute and Regulations provide for a process to gather information.  This includes transmitting the relevant portions of the petition to the Government with a request for information in response.  The petitioner will have the opportunity to submit observations on any response, as well as additional information, and the Government will thereafter be requested to submit its own observations. This process may be repeated when necessary.  The Commission may, at the request of a party or its own initiative, convene both parties for a hearing to receive new information, testimony or legal arguments.  The Commission also has the competence to carry out an on site investigation of an individual case, although this is rare.

 

          In order for the Commission to admit a case under the American Convention, American Declaration, or the Convention of Belém do Pará, for consideration on the merits, it must be satisfied that certain requirements have been met.  First, and most importantly, because international and regional human rights systems are designed to be subsidiary to national systems, the party alleging the violation must have exhausted all available remedies under domestic law.  Exceptions may be made when the legislation of the state concerned did not provide due process, the party was denied access to those remedies, or when there was unwarranted delay in reaching a final judgment--in other words, if remedies were unavailable as a matter of law or fact.

 

          Second, a petition must be submitted in a timely manner.  In the case where a final judgment has been issued by a domestic court, the petition must be filed with the Commission within six months of notification.  Otherwise, it must be filed within a reasonable time from the occurrence of the situation denounced.  Third, the Commission will not examine a complaint which essentially duplicates a petition pending or previously settled by itself or by another international governmental organization of a similar nature.  Where a case is opened, but the basic requisites such as the foregoing are not shown to have been met, the Commission will declare the case inadmissible.

 

          At any stage during the processing, the Commission is authorized pursuant to Article 48.1.f of the Convention to facilitate the "friendly settlement" of the situation denounced if the parties wish to avail themselves of that procedure.  Generally, once the initial written proceedings have been completed, the Commission will notify both parties that it is placing itself at their disposal for this purpose for a fixed period of time.  If the parties are so disposed, the Commission will assist, for example, by arranging meetings, transmitting communications, and otherwise mediating negotiations.  Pursuant to the terms of Article 48.1.f, any agreement reached by the parties will be reviewed by the Commission to evaluate whether it is in accord with "respect for the human rights recognized" in the American Convention before the matter can be deemed to have been amicably resolved.

 

          When a case has not been resolved through friendly settlement, and is ready for decision, the Commission draws up an initial report of its findings referred to in Article 50 of the Convention to send to the State in question.  In cases where a violation has been established, the Commission sets forth recommendations to be implemented by the State, generally aimed at securing a full investigation of the facts, the prosecution and punishment of those determined responsible, and action to repair the consequences suffered by the victim. The State has a first confidential opportunity to take action on the recommendations, and is asked to report within a fixed time on the measures taken.  The Commission will evaluate any response received and decide between two alternatives.  It may adopt a final report, referred to in Article 51 of the Convention, to be sent to both parties, in which it will report on the extent of compliance with its recommendations, and, where necessary, issue recommendations with an additional period for action.  After that period has expired, the Commission will decide whether to publish the final report. [14]   As an alternative to adopting a final report, if the State in question has accepted the compulsory jurisdiction of the Inter-American Court, the Commission may decide to submit the case for adjudication.

 

          The Commission and Court also have the capacity to request that a State take protective action on an urgent basis.  Pursuant to Article 29 of its Regulations, in "urgent cases, where it becomes necessary to avoid irreparable damage to persons, the Commission may request that precautionary measures be taken to avoid irreparable damage in cases where the denounced facts are true."  The Commission may request that the Court order the adoption of provisional measures under similarly grave circumstances in a matter that has not yet been submitted to the Court for consideration.  This emergency action is taken without prejudice to any future decision on the merits of the situation denounced, and is generally taken to protect the life and/or physical and mental integrity of an individual.

 

          2.       Jurisprudence of the system addressing issues of gender

 

          The first analysis within the system expressly involving gender bias arose in the context of a request for an advisory opinion before the Inter-American Court.  In 1983, the State of Costa Rica asked the Court to examine the compatibility of several proposed amendments to its Constitution concerning nationality and naturalization.  One of the amendments would have given a foreign woman who married a Costa Rican special consideration in obtaining citizenship, but provided no corresponding consideration for a foreign man in that situation.  In its opinion, the Inter-American Court followed the basic jurisprudence of the European system in reasoning that a distinction in treatment is discriminatory if it "has no objective and reasonable justification." [15]   The Court determined that the preference for according a husband's nationality on his wife was based on the historical practice of conferring authority within matrimony and the family upon the husband/father, and was therefore "an outgrowth of conjugal inequality." [16]   Accordingly, the Court determined that the proposed distinction could not be justified, and was incompatible with the right to equal protection generally (Article 24), and with the requirement that States "take appropriate steps to ensure the equality of rights and the adequate balancing of responsibilities ... [in] marriage" (Article 17).

 

          The Commission's final report on the case of Raquel Martín de Mejía, adopted in March of 1996, addressed the question of rape as torture under the American Convention and under the Convention to Prevent and Punish Torture. [17]   The fact that the State concerned, Peru, contested the admissibility of the case, but never responded to the Commission's requests for information on the merits raised certain questions with respect to the burden and standard of proof.  Pursuant to Article 42 of its Regulations and its longstanding practice, when a government fails to provide information, the Commission may presume the facts alleged to be true to the extent they are not contradicted by other evidence.  The Commission took into account that the region of the country in question had been under a state of emergency and military control at the time of the facts, and that the practice of rape by members of the security forces in such areas had been extensively documented and reported on by intergovernmental and nongovernmental groups.  On the basis of the petitioners' claims and these other reports, measured against the criteria of "consistency, credibility and specificity," the Commission presumed the facts alleged to be true.

 

          In addressing the rape itself, the Commission determined that each of the three elements set forth in the Inter-American Convention to Prevent and Punish Torture had been met: (1) "an intentional act through which physical and mental pain and suffering is inflicted on a person;" (2) "committed with a purpose;" (3) “by a public official or by a private person acting at the instigation of the former."  The analysis relative to the first element takes into account both the physical and psychological suffering caused by rape.  The report notes the short and long term consequences for the victim, as well as the reluctance of many victims to denounce this violation.   

 

          In addition to determining that the rapes were inflicted against Raquel Mejía as torture, the Commission found that they violated her right to have her honor respected and her dignity recognized (Article 11).  Recalling the words of the UN Special Rapporteur against Torture, that rape affects women "in the most sensitive part of their personality" with the effects aggravated by the fact that "in the majority of cases the necessary psychological treatment and care will not ... be provided," the Commission characterized sexual abuse generally as "a deliberate outrage" to the dignity of women.

 

          The foregoing case may be compared to that of María Elena Loayza Tamayo, in which the Inter-American Court raised but declined to address certain questions in examining rape as a human rights violation. [18]   The Commission, having found Peru responsible for violations of multiple Articles of the American Convention pursuant to its review of the case, presented claims before the Court that the victim had been: arbitrarily and illegally arrested and detained; subjected to torture and inhuman treatment including rape by State agents; and that her right to a fair hearing and judicial protection had been violated.  According to the pleadings, she was held incommunicado for the first ten days of her detention, and was subjected to torture and inhuman treatment in order to coerce her to confess to having ties to Sendero Luminoso.  The submissions included sworn statements from the victim that, while held incommunicado, she had been raped by several State agents.  The Court found the State responsible for violations of the Articles cited by the Commission, and ordered the State to release the victim and pay the costs and reparations to be established in the next stage of the case.  At the same time, without setting forth any substantive examination, or articulating either the standard or burden of proof, the Court indicated that it could not find the alleged rape by State agents to have been proven. [19]  

 

          In October of 1996, the Commission adopted its final report on the Case of X and Y, which concerned a practice in Argentina of routinely requiring that female family members wishing to have personal contact visits with an inmate undergo vaginal inspections. [20]   A petition had been filed with the Commission in December of 1989, alleging that the wife of an inmate and their thirteen year old daughter had been subjected to such inspections without regard for whether there were special circumstances to warrant extraordinary measures.  Ms. X had filed a writ of amparo demanding that the inspections cease.  This writ was rejected at first instance, accepted on appeal, and then rejected by the Supreme Court of Argentina on the basis that the inspections were not flagrantly arbitrary under the terms of the law of amparo. 

         

          In balancing the interests of those subject to such searches against the state's interest in maintaining security within its prisons, the Commission characterized "a vaginal search [as] more than a restrictive measure as it involves the invasion of a woman's body."  "Consequently, the balancing of interests involved" must hold the government "to a higher standard."  In its report, the Commission set out a four part test to determine the lawfulness of a vaginal inspection or search: "1) it must be absolutely necessary to achieve the security objective in the particular case; 2) there must not exist an alternative option; 3) it should be determined by judicial order; and 4) it must be carried out by an appropriate health professional."   With respect to Ms. Y, who was thirteen years old at the time in question, the Commission found "it is evident that the vaginal inspection was an absolutely inadequate and unreasonable method."  The Commission determined that the facts denounced gave rise to State responsibility for violations of Articles 5 and 11, 25 and 8, and 1.1.

 

         continued...

 

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                                                         NOTES

 

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