CHAPTER XI
THE HUMAN RIGHTS OF ECUADOREAN WOMEN
Within Ecuador there is vigorous dialogue, debate and action in the field of women's rights. Numerous organizations within both the public and private sectors have worked to raise social awareness of women's rights, to promote legal reform, and have achieved important advances in the areas of education, health and employment.(1) Other themes that have been central to the national debate are the participation of women in political life, the problem of violence against women, and the role of national legislation and policy.
The Government informed the Commission in its March 19, 1997 submission that it had incorporated a set of policies and goals based on the priorities articulated during the Fourth World Conference on Women (Beijing 1995) into the National Development Plan. These are aimed at diminishing poverty, eliminating violence against women and increasing the participation of women in development, political life and decisionmaking. The National Women's Headquarters has designed a set of policies to promote equal opportunities for women, policies which have a normative character for the public sector and serve as a reference for the private sector. The Rural Women's Headquarters of the Ministry of Agriculture and Livestock, with the assistance of international and nongovernmental organizations, has promoted a number of programs designed to train rural women, and provide the assistance necessary to start community projects to improve their standard of living. The Government characterized the attitude of the public sector as having experienced a positive change in favor of applying norms to protect the rights of women.
The issues those working with women's rights have raised before the Commission relate generally to the status of women within Ecuadorean law and society. One of the central protections established by the American Convention on Human Rights is the obligation undertaken by each State Party, pursuant to Article 1.1, that every right and freedom set forth shall observed without distinction by, among other reasons, sex. Article 24 further provides that every individual enjoys the right to equal protection before and of the law.
The Constitution of Ecuador in turn provides in Article 22.6 that:
The legal equality of the sexes is hereby declared. Women enjoy equal rights and opportunities with men in all orders of public, private, and family life, especially in respect of civil, political, social and cultural matters. The State shall adopt the necessary measures to ensure the effective exercise of this right and to eliminate all discrimination.
The civil code establishes the full juridical capacity of women in conditions equal to men, regulates unions of fact, and establishes the juridical capacity of women in marriage, suppressing the legal authority previously held by men over women ("potestad marital").(2)
Notwithstanding these advances, some legislative anachronisms remain. For example, there are still articles in the Criminal Code which refer to the "honor" or "honesty" of the female victim as a requirement for the typification of an offense.(3) In such instances, the objective of the law is not the protection of the woman's life or physical integrity; rather, the law is functioning to regulate the sexuality of the woman as an expression of "honesty, family honor and public morality."(4) The law also typifies rape only when: the victim was under 12 years of age; or the victim was physically, mentally or for some other reason unable to resist; or where the perpetrator used force or intimidation against the victim.(5) This typification essentially requires that victims resist, risking life or physical integrity to meet the definition of the crime.
In practice, while the status of women in Ecuadorean law and society has evolved, there remain instances of discriminatory treatment which hinder the ability of women to fully and equally enjoy their human rights. Women and children are disproportionately affected by the conditions of poverty which afflict a majority of the population. In the sphere of education, it has been reported that, although females attended primary and secondary school in greater numbers than males, more males received higher education. However, this situation appears to be changing for the better. The Government reported in its March 19, 1997 submission that, according to a 1995 study done by the National Counsel of Universities and Politechnic Schools, women represented 53.3% of the students in CONUEP member schools and men represented 46.7%. The literacy rate in Ecuador is high and continues to grow; however, it continues to be higher for men than for women.(6) Although the law provides that education is to be made available to all under equal conditions, girl-children are reportedly steered toward curricula and careers which limit their future opportunities. Those who have provided information to the Commission have complained with special emphasis about the continued use of negative stereotypes concerning women which perpetuate the unequal relations between women and men.
In the sphere of employment, representatives of women's rights groups indicated to the Commission that women's opportunities for work were conditioned in perceptions of their "appropriate" role in society -- that women were limited in their choices by the use of negative stereotypes. Certain limitations, such as the prohibition of night work for women, have been remedied through changes to the Code of Work. As the Government noted in its March 19, 1997 submission, 1991 reforms had extended maternity leave from 8 to 12 weeks, established that employers could not fire employees due to pregnancy, and required employers of more than 35 female employees to establish day care programs. However, other restrictions, such as the prohibition of certain types of work deemed dangerous for "women and minors" continue. Governmental and nongovernmental institutions working with women's rights have indicated that some of these provisions are obsolete and should be changed. The Commission has received reports concerning sexual harassment and abuse in the workplace and in educational institutions.
Additionally, it has been reported that, although the Code of Work requires equal pay for equal work, in reality, women routinely receive lower wages than men for performing the same work.(7) As the Government agreed in its observations on the present report, women remain under-represented in the work force. Although the total number of women in decision making positions in the private sector is growing, as a percentage of the whole that growth is very limited.(8) In its observations, the Government stated that although the equal pay for equal work requirement was observed, in general, in the public sector, it was not observed in the private sector where the salary differential harmed women. The Government observed that in some cases employers favored hiring male employees in order to avoid the requirements of the maternity leave provisions.
Article 23 of the American Convention guarantees the right to participate in public affairs in one's country, and "to have access, under general conditions of equality, to the public service of his country." Article 51 of the Constitution of Ecuador provides that Ecuadorean citizens, men and women, have an equal right to participate in elections and to be elected. The Law of Political Parties further provides that membership within a party may not be conditioned on a discriminatory basis. As the Government acknowledged in its observations on the present report, although there has been a gradual rise in the involvement of women in the sphere of political participation, they remain seriously under-represented. Participation of women in the structure of political parties is reported as 13.4% at the provincial level, and 8.4% at the national level.
As a result of the 1996 elections, Rosalia Arteaga was elected to the Vice-Presidency of Ecuador. Currently, four of the 70 Provincial Deputies serving are women, and all of the 12 National Deputies are men. In its March 19, 1997 submission, the Government informed the Commission that two women had been appointed as Cabinet Ministers in the present Administration. The percentage of women elected to municipal and provincial positions as representatives is approximately 5%.(9) A number of women serve in executive positions in the public administration. As of 1996, it was reported that one woman justice had been appointed to the Supreme Court. Figures issued by the Superior Court of Quito in 1994 indicated that there were few women overall serving in the judiciary.(10) As of 1994, it was reported that women held 4.3% of the ambassadorial positions within Ecuador's foreign service.(11)
Violence against Women
As the Commission has previously indicated, violence against women is a generalized problem throughout the hemisphere. It affects all levels of society, and includes among its manifestations rape and other forms of sexual violence, domestic violence of both a physical and psychological nature, and sexual harassment in the workplace and other institutions. In the case of Ecuador, while studies to date have been limited, they are nonetheless suggestive of the extent of the problem. A 1992 study by the Centro de Planificación y Estudios Sociales of three of the marginal urban sectors of Quito found that 64% of the women reported having been assaulted by their husband or companion. A CEDATOS poll taken in 1994 of women in Quito and Guayaquil disclosed that 58% of the women interviewed knew a female relative or friend who had been the victim of violence. 82% of the instances the women referred to had taken place in the home.(12)
The governmental and nongovernmental sectors have collaborated to produce notable advances in the protection of the right of women to be free from violence. In 1994, the Government established Bureaus for Women and the Family (Comisarías de la Defensa de la Mujer y de la Familia). The National Women's Headquarters (DINAMU) is in charge of coordinating the work of the Comisarías, which were operating on a pilot basis in Guayaquil, Esmeraldas, Quito, Cuenca and Portoviejo. The María Guare Foundation reported that during its first year, the Bureau in Guayaquil received complaints from 6,101 individuals (96% of whom were women).(13) Just over 75% of these complaints involved incidents of violence at the hands of a spouse or domestic partner. During its first six months of operation, the Bureau in Quito received 5,820 complaints, all related to physical mistreatment.(14) However, while the Bureaus can receive complaints, it lacks the authority to act on them. The Government noted in its observations on the present report that there were now six Comisarías operating in areas throughout the country.
NGO's and other private sector organizations have played a critical role in assisting women and children who have been subjected to violence. NGO's have provided services including: training for public and private sector personnel, integrated health services for women who have been subjected to violence, refuge for battered women and children, and alternative legal services for women in need. In a number of areas the DINAMU and the NGO's are coordinating in their efforts to promote women's rights and provide them with required services. For example, following the establishment of the Comisarías, the DINAMU sponsored a series of meetings for new personnel and members of NGO's working in this field, both for training and to exchange experiences.(15) The UNFPA, UNICEF and the Panamerican Health Organization are also actively working on this issue with their local counterparts in Ecuador.
On July 5, 1995, a coalition of NGO's delivered a draft Law against Violence to Women and the family to the President of the National Congress. In December of 1995, the Law Against Violence to Women and the Family entered into force. Again, the DINAMU and the NGO's collaborated in favor of advancing the protection of women and the family. The DINAMU assisted in the various phases of the process, from the elaboration of the law, to sensitizing members of Congress to its importance, to coordinating efforts among the NGO's.(16) As the Government characterized it in its observations, the purpose of the law is to effectuate the principle of equality within the private sphere, and to protect the physical, mental and sexual freedom of women and their family members through the prevention and punishment of such violence. Among its effects, the law criminalizes spousal abuse, gives the courts authority to remove an abusive spouse from the home, and creates family courts. It also requires the establishment: of policies and programs to prevent and erradicate violence against women and the family; places of refuge and treatment for victims; programs to rehabilitate offenders; specialized training incorporating gender perspective for judicial and law enforcement personnel; and a national level data bank to develop informational resources on this problem.
Notwithstanding the outstanding advances made in this area, women continue to encounter obstacles to the full realization of their right to be free from violence. The typification of rape mentioned above sends women the dangerous message that heroic resistance is required when threatened with this crime, and prevents some women from filing complaints. Reports suggest that, although rape is a common offense, it is seldom prosecuted. This result is attributed to a number of factors, including the juridical and procedural systems used.(17) Article 25 of the American Convention on Human Rights guarantees every person "the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights" under domestic law or under the Convention. Legal barriers to the right to judicial protection such as those identified are clearly incompatible with the Inter-American Convention.
In September of 1995 Ecuador deposited its instrument of ratification of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women (Convention of Belém do Pará). The Commission expects that the positive measures adopted by the State with the encouragement and collaboration of many NGO's will be followed by further action to implement this new commitment.
RECOMMENDATIONS
The Commission recommends:
That the State adopt all measures necessary to ensure that women who have been subjected to discrimination, or to any other violation of their rights protected under the American Convention, have simple and prompt recourse to effective judicial protection.
That the State take additional steps aimed at modifying the social and cultural patterns of conduct of men and women, including the design and implementation of educational programs, in order to counteract prejudices and practices based on perceptions of the inferiority or superiority of either sex, and stereotyped roles for men and women.
That the State continue and amplify measures to promote the participation of women in decision-making at all levels in the public and private spheres.
That the State continue and expand the efforts made to train police and other law enforcement officials on the right of women to be free from violence, and on the specific causes, consequences and required responses to violations of this right. Measures must also be taken to ensure the prevention of rape, sexual abuse and other ill-treatment of women in official custody.
That the State research and report on the prevalence of violence against women, and domestic violence in particular, as a means of identifying priority areas to respond to the needs of the women, men and children who are affected.
That the State take the legal or administrative measures necessary to ensure that complaints concerning violence against women are promptly and properly investigated; that the perpetrators are subjected to the appropriate judicial processes; and that victims receive fair compensation.
That the State take measures to ensure that women subjected to violence have access to the resources required to attend to their physical and psychological needs, particularly medical care.
That the State take all appropriate measures to amend or repeal existing legislation and to modify legal and other practices which permit or sustain the practice of violence against women. For example, this would imply legislative action to repeal any legal provisions which refer to the "honesty" of the victim in the typification of a criminal offense. It also requires the adoption of all measures necessary to ensure that women who have been subjected to violence have effective access to judicial remedies, especially to protective measures.
Notes______________________
1. Comite Ecuatoriano de Cooperación con la Comisión de Mujeres [de la OEA] [CECIM], Diagnóstico de la Situación de la Mujer en el Ecuador, 7 (Quito, 1994).
2. Boletín Red contra la Violencia, No. 5, at 12, Sept. 1994.
3. See, Article 509 Criminal Code; Articles 505-507 speak of attempts against the sexual modesty or chastity of a woman ("pudor").
5. Article 512, Criminal Code.
6. In 1982 13.1% of men and 19.7% of women were reported to be illiterate. In 1990, 9.5% of men and 13.8% of women were reported to be illiterate. CECIM, supra n. 1, at 19-20.
7. A study done by the Fundación Esquel for UNICEF has been cited as stating that women's wages are 22% lower than men's wages.
8. CECIM, supra n. 1, at 30-31. From 1982 to 1990, the percentage of self-employed women rose 7% -- from 14.54% to 22.19% of the total, and the percentage of women working as employers or active shareholders rose 4% -- from 15.38% to 19.91%.
10. There were no female members of the Supreme Court, and female members of the Superior and District Courts comprised only 2.8% of the total. The percentage of female judges presiding in other types of courts ranged between 7% and 14%, with the exception of the labor and landlord-tenant courts, where female judges constituted approximately 34% and 50% of the total number of judges, respectively. Id., at 209.
13. CEDHU, "Derechos del Pueblo," No. 90, at 11, noviembre de 1995.
15. CEDHU, "Derechos del Pueblo," No. 92, at 3, marzo de 1996.
17. Diagnóstico, supra, at 186 (recalling that, of the cases of rape denounced between 1984 and 1988, only one third were actually tried).