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 III.      ANALYSIS OF THE INFORMATION RECEIVED FROM MEMBER STATES AND NONGOVERNMENTAL ORGANIZATIONS

          Introduction

          As of the Commission's 98th regular period of sessions, Special Rapporteur Dean Grossman had received responses to the questionnaire from the following member states: Argentina, Belize, Brazil, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, Guatemala, Guyana, Jamaica, Panama, Paraguay, Peru, Mexico, and Uruguay, as well as responses from 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).  These responses were received between December of 1996 and December of 1997.)  While the Commission was meeting during its 98^th period of sessions, responses were received from Canada and Venezuela.

          The Commission wishes to recognize these States and organizations for their work in responding to the questionnaire, which sought very comprehensive information across a wide range of issues affecting the status of women.  The responses received demonstrate the very real commitment on the part of member states throughout the hemisphere to advancing that status, while recognizing that much work remains to be done.  The Commission notes that the responses received varied in their breadth and depth, ranging from only a few pages to over 100 pages.  The present report is based on the responses received, and corresponds to that extent to the level of information provided.

          The Commission has also benefitted from receiving information about ongoing projects being conducted by other entities within the inter-American system.  The Rapporteur has received information from the PAHO, which has identified the search for gender equity in health and human development as a priority.  PAHO, through its Regional Program for Women, Health and Development, is working in favor of lessening the gap that restricts women's  access to and control of resources necessary to protect their health, and has mobilized extensive resources to support work at the national level to combat gender violence.  The Rapporteur has also received information from the Inter-American Development Bank, which, through its Women and Development Unit is engaged in programs addressing the role of women in civil society and institution-building, as well specific activities focusing on the causes and consequences of gender violence.  The IIDH, for it parts, has provided information and important collaboration, through its Program on Gender and Human Rights, throughout the elaboration of the project.

          The following analysis is intended to be initial in scope, to identify certain trends and priorities in the region, and to establish a basis for future inquiry and action.  It focusses on the issues which emerged as most vital, and about which the Commission received substantive submissions of information. [26]

          A.      INSTITUTIONAL MEASURES, NATIONAL POLICIES AND JUDICIAL GUARANTEES FOR THE PROMOTION AND/OR PROTECTION OF THE RIGHTS OF WOMEN: (Articles 2, 17, 25, and 26, American Declaration; Articles 1, 2, 8, and 25, American Convention; Articles 7 and 8, Convention of Belém do Pará)

          The responses received from the States reveal that, within the framework of the hemispheric process of transition to democracy, major initiatives were developed to promote participation by women, without discrimination in public life, and to achieve full recognition of their rights as established in international instruments.  With this in mind, various countries in the region established institutions with the authority to coordinate, formulate, and implement policies on women's rights that resulted in national plans and programs for the promotion, research, and dissemination of information and legal initiatives to protect the rights of women.

          This process fulfills the terms of Article 1 of the American Convention of Human Rights, whereby the States Parties undertake to respect the rights and freedoms recognized therein and to guarantee the exercise of these rights by all individuals, without discrimination.  Article 2 of the Convention establishes that the States have the obligation to "adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms."

          For instance, between 1984 and 1987, Argentina created within the purview of the country's Executive Branch the Subsecretariat of Women, reporting to the Ministry of Health and Social Action; the Directorate of Women, which reports to the Ministry of Foreign Affairs and Worship; and the Women's Health and Development Program, which falls under the Ministry of Health and Social Action.  Decree 219 of 1995 established the National Council of Women, attached to the Office of the President, which began functioning in 1991 as a Council for Coordinating Public Policy in charge of supervising the application of the International Convention on the Elimination of All Forms of Discrimination against Women.  Under the Legislature, a Bicameral Commission was created to promote the elimination of all discrimination against women.  In Bolivia, the Directorate of Gender and Family Matters was established in 1993, attached to the Vice Ministry of Gender, Generational and Family Matters, for the purpose of designing standards and policies to achieve gender equality and to create institutions that guarantee equality of opportunities.  In Brazil, the National Council of Women's Rights (CNDM) was established in 1985, under the Ministry of Justice.  In Canada, the federal government and the territories and provinces have a Minister or Secretary of State Responsible for the Status of Women, as well as agencies which work with other Ministries to advise on gender analysis, public policies and legislative reforms.  There are also government programs designed to support the involvement of nongovernmental organizations and the community in this sphere.  In Chile, the National Women's Service (SERNAM) was established in 1991, with responsibility for formulating and coordinating policies to improve the situation of women.  In Colombia, the National Directorate of Equity for Women was created to implement gender policy in the country.  In Costa Rica, the Commission for attention to and Prevention of Intrafamily Violence was established.  In addition, the 1990 Law on the Promotion of Social Equality for Women provided that the Ministry of Justice, in coordination with the National Center for the Development of Women and the Family, would promote programs to guarantee protection and guidance for the victims of aggression and work towards its prevention.  In Ecuador, the National Directorate of Women was established in 1994.  Its functions include promoting and coordinating training programs with a gender perspective.  In Guatemala, the National Office of Women (ONAM) was created under the Ministry of Labor and Social Security, and in 1996 a project of technical and political support for women and judicial reform was initiated.  One of its many functions is to prepare drafts reforms to the Civil Code as well as draft legislation to amend the Electoral and Political Party Act.  In Mexico, the National Program for Women was initiated to advance the promotion and full participation of women in society, with opportunities equal to those of men.  In Panama, the Ministry of Health initiated an integrated health promotion plan for women through the Women, Health, and Development Program.  In Paraguay, the Secretariat of Women was created in 1992 as an agency which, working closely with Ministries and other independent agencies, has set up mechanisms to achieve equality.  In Uruguay, a Technical Office to support Victims of Family Violence has been functioning under the Ministry of the Interior since 1992.  Also established was the National Institute of Women for the integration and development of the rights of women in national policies.  In Peru, the Ministry for the Promotion of Women and Human Development was established to coordinate government plans and programs.  In Venezuela, the National Council of Women (CONAMU), a dependency of the Presidency, acts to coordinate and implement programs, projects and campaigns to raise social awareness of the diverse problems affecting women.

          The issue of intrafamily violence is a priority aim of many of these institutions, a number of which were in fact established specifically to address this serious human rights violation.  These institutions have also been responsible for presenting legal initiatives on many occasions with a view to achieving full equality for women.  At the same time, in some countries, such as Argentina [27] , Brazil [28] , and Colombia [29] , these institutions have implemented programs at different levels to assist and provide guidance to women who have been the victims of domestic violence.  In other countries, such as Bolivia [30] and Guatemala [31] , the establishment of national plans aimed at proposing standards governing the situation of women has been adopted as a methodology.

          In light of the reports received, the Commission is also pleased to note that new ways and means for participation by civil society have increased the interaction between State entities and nongovernmental organizations.  This leads in the first place to a better understanding of the problems facing women; in the second place, to more active involvement by the private sector in legislative and social proposals.

          B.       CIVIL AND POLITICAL RIGHTS OF WOMEN

          1.       Civil Capacity (Articles 2 and 17 of the American Declaration; Articles 1, 3, and 24, American Convention)

          In a number of countries in the region, standards are being adopted to achieve equality between men and women in the area of civil capacity.

          In Argentina, law 23,264 was approved in 1985 to amend the previous Civil Code provisions covering parental authority and filiation.  In 1987, the family law regime was amended to give both spouses equal standing before the law.  In Belize, women enjoy full capacity to acquire, administer, and dispose of property and to assume rights and obligations [32] .  In Bolivia, the Political Constitution of the State and the Civil Code recognize the human personality and juridical capacity of all individuals without distinctions based on sex.  In Brazil, the Federative Constitution of 1988 incorporated regulations representing a major step forward for women's rights by establishing equality between men and women before the law and with respect to rights and obligations.  In Canada, the Canadian Charter of Rights and Freedoms of 1985 guarantees equality before the law without discrimination.  In Chile, through the 1989 reform, progress was made on the subject of the capacity of women who had previously enjoyed relative incapacity since they had been classified with minors.  In Colombia, the Constitution prohibits discrimination of any kind against women.  According to the Civil Code and subsequently approved legislation, married women have ceased to be deemed incompetent and now possess equal rights and obligations.  In Costa Rica, the Civil Code recognizes full legal capacity on equal conditions with men to contract, administer, and dispose of assets of the conjugal union.  In Ecuador, the Civil Code does not contain any discriminatory provisions with respect to the legal capacity of women in general.  There is equality with respect to acquiring, contracting, disposing, and administering conjugal assets.  In Guatemala, the Civil Code establishes that spouses have equal capacity in certain respects to acquire, administer, and dispose of the assets of the conjugal union [33] .  In Guyana, the 1980 Constitution provides for equal rights without distinction between men and women [34] .  In Honduras, in the questionnaire submitted by the Centro de Estudios de la Mujer (CEM‑H), it is reported that the Civil Code recognizes that spouses have equal capacity to administer and dispose of conjugal assets.  In Jamaica, in general women enjoy the same legal capacity as men with respect to acquiring, administering, and disposing of assets and entering into contractual relationships [35] .  Mexico recognizes gender equality in its Constitution, stating that men and women are equal before the law.  Similarly, the Civil Code for the Federal District establishes that men and women have equal legal capacity, which applies to the administration and organization of the family.  In Panama, the Constitution and the Civil Code recognize the full capacity of women on equal conditions with men.  Prior to 1994, there were provisions in the Commercial Code that discriminated against women, but these were declared unconstitutional by the Supreme Court.  In Paraguay, the National Constitution and the Civil Code confer full capacity on married and unmarried women, on conditions of equality with men.  These provisions also apply to the administration of conjugal assets and the exercise of parental authority.  Uruguay grants full capacity to women under its Constitution and in its civil legislation.  In Peru, the Civil Code establishes that each spouse may exercise any profession or business permitted by law, with the express or tacit consent of the other spouse.  As to legal status in marriage, spouses enjoy equal rights and obligations under the Civil Code.  In the Dominican Republic, the Civil Code recognizes full capacity for women [36] .  In El Salvador, the Family Code establishes equality of rights and duties for spouses.

          Despite these advances, problems still exist in the region with respect to full equality for women in the area of civil capacity.  These negative circumstances are generally found in the following areas:

          a.       Restrictions on the exercise of a profession or on work by women insofar as the authorization of the husband is required.  In their responses to the questionnaire, Bolivia, Guatemala, Panama, Peru and the Dominican Republic reported that restrictive laws are in force.

          b.       Differentiation between men and women with respect to the authorization to contract marriage (Bolivia, Brazil), or to remarry (Mexico, Costa Rica).

          c.       Inequality between men and women in acquiring, administering, and disposing of assets of the conjugal union.  In Argentina, assets whose origin cannot be determined are administered by the husband.  In Chile, the husband in certain cases administers the assets of the union as well as those of his wife.  In Brazil, a married woman does not have the same capacity as her husband to administer certain assets.  In Ecuador, unless otherwise stipulated, the husband is presumed to administer the assets of the conjugal union.  In Guatemala, the husband is the administrator of the conjugal assets.  In the Dominican Republic, the husband administers the conjugal assets and those of his wife.

          d.       Differences between men and women with respect to parental authority.  To cite an example, in Chile, parental authority is exercised by the father and is conferred upon the mother only in his absence.

          e.       Classification of women with minors in labor legislation, for example, in Bolivia, Costa Rica, Ecuador, and Guatemala.

          f.       Restrictions on a woman's right to property.  In the Dominican Republic there is a restriction that prevents women campesinos from owning plots of land under the Constitution itself.

          g.       Differences of treatment between women and men with respect to certain criminal offenses, for instance, in the case of adultery in El Salvador and Venezuela [37] .

          h.       Differences with respect to access to the administration of justice, diminished penalties or the absence of penalties when the victim is a woman.  Bolivia, Brazil, Costa Rica, Ecuador, Panama, and Paraguay, report in their responses varying degrees of inequality in this particular area.

          2.       Political Rights (Articles 20 and 24, American Declaration; Article 23, American Convention)

          Women hold political rights on equal conditions with men under the Constitutions and the domestic legislation of the countries in the region.  General elections have provided women with great opportunities given the potential that they may provide an incentive for political parties to vie with one another for their votes.  To date, however, the proportion of women who hold positions in public life in the region is still very low.

          In the face of this situation, some countries have begun to pass legislation that ensures a certain minimum representation by women in the institutional structure of the state.  Accordingly, laws have been adopted for the purpose of establishing minimum quotas of participation by women in politics.  Argentina, Bolivia, Brazil, and Costa Rica should be noted in this regard.

          In Argentina, the proportion of women holding elected office was favorably affected by the national law on quotas in 1991, with the percentage of women in the National Congress standing at 31.9%.  In 1996, Bolivia passed a similar law, and 22% of the representatives in the Congress are women.  In 1995, Brazil approved a law requiring political parties to ensure that women hold 20% of elected offices.  In Costa Rica, under an Electoral Code reform that took effect in 1996, the bylaws of political parties must contain mechanisms to ensure that women account for at least 40% of the party structures and the lists of candidates put forward.

          In general, most countries in the region report that participation by women in levels of decision making in the three branches of government is still low.

          In Argentina, in the executive branch, there is one women minister (Ministry of Education), and two women in charge of Secretariats (Environment and Civil Service).  In Bolivia, only one of a total of 10 ministries is headed by a woman.  A similar situation is found in departmental governments, municipalities, cities and other recently created control bodies.  In Brazil, it is estimated that 20 of the country's 350 Secretariats of State are filled by women.  There have been four women ministers since 1994.  In Chile, women hold relatively few positions at the executive level in ministries and in local, state, provincial, and departmental governments, with the proportion being somewhat higher in the case of mayors (27 of 334) and town council members (273 of 2,130).  In Colombia, women account for 6.8% of senators and 12.2% of representatives in Congress, the percentage being higher in the central government, with a high representation overall except at the decision-making level.  In Costa Rica, in the executive branch, there are two women ministers (Minister of Cultural Affairs, Youth, and Sports, and the Minister of Justice) and four Deputy Ministers (Education, Health, Justice, and Labor).  In the legislative branch, seven of 57 representatives are women.  In Ecuador, in 1996 none of the 12 nationally elected representatives were women, and at the provincial level, there were 64 elected representatives of whom four were women.  The absence of women is also evident in other areas at the executive level.  In Guatemala, three of the 28 cabinet ministers are women, and of a total of 330 mayors, three are women.  In many countries in the region, participation by women in the higher levels of the judiciary is low, and virtually nonexistent at the Supreme Court level.

C.      RIGHT TO LIFE, PERSONAL INTEGRITY, AND HEALTH

          1.       Right to life (Article 1, American Declaration; Article 4, American Convention; Articles 1, 3 and 4, Convention of Belém do Pará)

          The responses from the States demonstrate that there are no laws whose purpose is to formally discriminate against women from a legal standpoint in the protection of these important rights.  With respect to the protection of the woman's life, however, the Inter-American Commission has been able to confirm that there are no accurate statistics in any of the countries showing the causes of feminine mortality.

          In accordance with the information submitted, the Commission has been able to establish that a high proportion of maternal mortality is attributable to abortion, with levels of 29.1% in Argentina and 26% in Chile.  It has also been able to confirm that a high proportion is also due to pregnancy and child birth.  For Bolivia, child birth accounts for 58% in urban areas and 63.5% in rural areas, and pregnancy 26.8% in urban areas and 20.4% in rural areas; for Chile, the figure is 39.7%.  For Peru, maternal mortality averages 261 deaths per 100,000 births.  Peru is third behind Bolivia and Haiti.  In rural areas, the maternal mortality rate is double the rate in urban areas.  In the Dominican Republic the maternal mortality rate is 185 per 100,000 live births.

          2.       Right to Personal Integrity and Protection from Violence against Women (Article 1, American Declaration; Article 5, American Convention; Articles 3 and 7, Convention of Belém do Pará)

          In the different countries in the region, legislation has been adopted and steps have been taken to afford protection from violence against women.  In Argentina, law 24,417 was passed for Protection against Family Violence in 1994, and the Convention of Belém do Pará was ratified in 1996.  In Belize, special legislation on domestic violence was passed in 1992 (Domestic Violence Act), and the Convention of Belém do Pará was ratified in 1996.  In Bolivia, Law 1,674 on Domestic or Family Violence was adopted in 1995, and the Convention of Belém do Pará was ratified in 1994.  In Brazil, the Federative Constitution of 1988 incorporated an explicit commitment by the State to create mechanisms to address and repudiate violence in the family, and the Convention of Belém do Pará was ratified in 1995.  In Canada, the elimination of systemic violence against women has been a government priority, as a principal objective of the Federal Plan for Gender Equality.  In 1993, the Canadian Panel on Violence Against Women reported the results of its extensive study on the dimensions and impact of violence against women.  Federal action has included the Family Violence Initiative which provides economic resources to nearly 3000 projects and the establishment of emergency shelters and housing for battered woman and their families.  In Chile, the Intrafamilial Violence Act was passed in 1994, protecting all members of the family group that may have suffered aggression or mistreatment by any other family member, and the Convention of Belém do Pará was ratified in 1996.  In Colombia, there is special legislation that punishes violence against women within the family, law 294 having been adopted in 1996 to prevent, remedy, and punish intrafamily violence, and the Convention of Belém do Pará having been ratified that same year.  In Costa Rica, Law 7,586 on domestic violence at the national level was passed in 1996, and the Convention of Belém do Pará was ratified in 1995.  In Ecuador, women's precincts were created in 1994.  The law on Violence against Women and the Family was passed in 1995, and the Convention of Belém do Pará was ratified in 1995.  In Guatemala, the Law for the Prevention, Punishment, and Eradication of Intrafamily Violence was passed in October 1996 and the Convention of Belém do Pará was ratified in 1995.  In Guyana, violence against women is classified as a crime punishable under the Domestic Violence Act of 1996.  Also, the Convention of Belém do Pará was ratified in 1996.  In Honduras, the Convention of Belém do Pará was ratified in 1995, and at the completion of the questionnaire by the Commission, a law on domestic or intrafamily violence was in the process of being adopted.  In Jamaica, cases of physical violence are punishable under the Offenses against the Person Act; some of its provisions relate specifically to crimes against women.  In Mexico, an Intrafamily Violence Protection and Assistance Act  was enacted in 1996.  In Panama, the Convention of Belém do Pará was ratified in 1995, and intrafamilial violence and mistreatment of minors were classified as crimes by Law 27 of 1995.  In Paraguay, the Convention of Belém do Pará was ratified in 1995 [38] .  In Uruguay, violence against women is regulated by Law 16,107 or the Citizen Safety Act, and the Convention of Belém do Pará was ratified in 1996.  In Peru, the Convention of Belém do Pará was ratified in 1996, and Law 26,260/93 was passed, regulating family violence.  In El Salvador, Decree 902 of the Intrafamily Violence Act was issued in 1996.  Venezuela ratified the Convention of Belém do Pará in 1995.

          From a legislative or regulatory standpoint, regulations and services have also been established in different countries in the region to make it possible and/or easier to file complaints in cases of violence.  Since the mid-1980s, Brazil has developed and implemented assistance services through offices and precincts set up to provide protection for women across the country.  Starting in the 1990's, other countries have adopted similar mechanisms.  In Argentina, a Specialized Police Unit was set up within the Federal Police to assist judges and victims of family violence [39] .  In Chile, Caribinero (police) personnel receive training in how to assist and protect victims.  In Colombia, the women's precincts and legal offices for the family and other bodies take complaints of intrafamily violence.  In Costa Rica, police officials are required to intervene de oficio at the request of the victim or third parties, including entering the victim's home, to apprehend the aggressor, and many even testify as witnesses during the trial.  Also, the Delegación de la Mujer of the Ministry of Justice may file complaints and offer legal assistance.  Ecuador set up women's precincts in 1994.  In Mexico, Therapy Centers to care for the victims of intrafamily violence, that report to the Attorney General (Procuraduría General) of the Federal District, were set up commencing in 1996.  Also in Mexico, the Technical Judicial Police established a center to provide care to victims of violence and a Department to take Complaints of Sexual Abuse.

          As well, the Commission received information on legislation that makes it possible for judges to grant protection, including prohibiting the aggressor from entering the victim's home and approaching the victim's place of work as well as temporary decisions on payments for food and maintenance for children.  In varying degrees this is the situation in Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, Guyana, and Jamaica.

          Notwithstanding the merits of these developments, the responses to the IACHR questionnaire shows that serious problems of a general nature exist, that are exacerbated by a lack of resources, poverty, and the marginalization of broad sectors of the population in the region.  In this respect, the following points need to be stressed:

          a.       There continues to be an absence of appropriate personnel or a failure to train personnel properly to process complaints of violence.  For instance, in its response, Ecuador reports that for this very reason it is difficult to follow up on investigations of domestic violence and to conclude judicial proceedings [40] .  In other countries, there is no information on subsequent status of cases after complaints have been filed (i.e. Chile, Guatemala, Honduras, Mexico, Paraguay, Peru and Venezuela), or there is no suitable training for police officials, judicial authorities, and professional health workers in treating women who are the victims of violence (i.e. Honduras, Guatemala).

          b.       The existence of legal limitations that restrict women from exercising their rights.  In some countries, for instance, domestic violence is seen as a crime which must be brought as a private action, or limited and understood as pertaining to the private sphere as is the case for instance in Brazil [41] and Ecuador [42] .  In other countries, domestic violence is not considered a crime but a health problem (Guatemala).

          With respect to crimes that are of special interest to women, such as rape, statutory rape, abduction, and sexual abuse, the responses show that specific criminal classifications exist in Argentina (crimes against decency), Bolivia and Peru (crimes against sexual freedom), Brazil (crimes against good morals), Chile (crimes against family order and public morality), Colombia (crimes against freedom and sexual decency), Costa Rica, Ecuador, Guatemala, Guyana, Honduras, Jamaica, Mexico, Paraguay, El Salvador, Uruguay and Venezuela that similarly classify this conduct, protecting juridical interests related to public decency and morality.

          One widespread problem concerning these crimes is that the right being protected in the legislation of several of these countries continues to be "honor", which means that only "decent women" may be victims, for example, of rape.  Rape by one's spouse is not classified as a crime uniformly across the region, and the laws governing persecution or sexual harassment are minimal.  Based on the information provided, legislation exists only in Argentina in the public sector, in Costa Rica under a national law, in Mexico under a labor law and in the public sector, and in Peru under labor legislation.

          One other matter of importance that adversely affects the rights referred to in this section has to do with inspections and body searches conducted of women who are detained in jail, or visiting prisoners.  This procedure practiced as security measure on entry into a penitentiary in some countries in the region is only regulated in exceptional instances to ensure respect for mental and physical integrity and require the presence of specialized medical personnel (see Law 65 of 1993, Colombia, and its implementing regulations, 1995).  In responding to the questionnaire, some countries did not supply information on existing legal safeguards for this procedure (Argentina), or indicated that it is practiced without specifying whether or not it is regulated with respect to the requirements mentioned earlier (Brazil, Uruguay, Peru, Venezuela).

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NOTES