CHAPTER VII
WOMEN'S RIGHTS
A. INTRODUCTION
1. The principles of equality and non-discrimination are essential elements of a democratic system governed by the rule of law, which is a fundamental condition for the full observance of human rights. Despite the will expressed by many states to advance in protecting women's rights, there is often a yawning gap between the theory and the reality. Taking this into account, the Inter-American Commission on Human Rights assigns special importance to women's rights in the hemisphere; the relevance of this issue was highlighted internationally at the World Conference on Human Rights held in Vienna in 1993, and at the conference on women's rights held in Beijing in 1995. In that regard, the Commission appointed a special rapporteur on women's rights; the rapporteur submitted a report on the situation of women in the Americas that was approved by the IACHR at its 98th session.[1] In addition, the Commission has dedicated a special chapter to the subject of women's rights in its most recent reports on the situation of human rights in various countries.[2]
2. The promotion and protection of women's rights is very much related to the question of discrimination against women in the enjoyment of human rights. While gender discrimination persists, women cannot fully enjoy their human rights. For this reason, international legislation bases the protection of women's rights mainly on the principle of non-discrimination and on the principle of the equality of men and women.
3. Even though the Peruvian State has adopted major legal reforms to protect women's rights and to try to eliminate the forms of discrimination, yet certain legal norms subsist that entail discrimination. In this chapter, the IACHR, after outlining the international and national legal framework for women's rights, presents reports from the Peruvian State on the matter, and analyzes the problems related to two specific issues: discrimination and violence against women.
B. LEGAL REGIME
1. International legal framework
4. The instruments of the inter-American system of human rights, like those of the universal systems and other regional systems for the protection of human rights, are characterized by one of their fundamental pillars being the principle of equality and non-discrimination.
5. In the inter-American system, the American Declaration of the Rights and Duties of Man provides at Article II: "All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed, or any other factor." Similarly, the American Convention on Human Rights, ratified by Peru in 1978, provides at Article 1: "The States Parties to this Convention undertake to respect the rights and freedoms recognized herein 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 race, color, sex...." The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, "Convention of Belém do Pará," ratified by Peru in 1996, defines violence against women 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 the private sphere."
6. In the United Nations system, the Convention on the Elimination of All Forms of Discrimination Against Women, ratified by Peru in 1982, defines discrimination against women as "... 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..."; it adds at Article 2 that "States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women...."
2. Domestic legal framework
7. The Peruvian Constitution indicates, at Article 2, that "All persons have the right: ... to equality before the law. No one may be discriminated against for reason of origin, race, sex, language...." As regards the right to work, at Article 23 the Constitution provides: "Work, in its various forms, is the subject of priority attention by the State, which protects, in particular, mothers, minors, and disabled persons who work...." And at Article 26: "In the labor relationship, the following principles are respected: 1. Equal opportunity without discrimination...."
8. As can be observed, the main norms applicable in Peru, both international and national, enshrine the principles of equality and non-discrimination as the basis for women to enjoy their human rights in Peru.
C. PROGRESSIVE MEASURES
9. The Peruvian State, as mentioned earlier, has adopted important legal reforms to protect women's rights to try to eliminate discrimination against women. At the international level, one of the most important legislative advances is the recent ratification by Peru, in 1996, of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women. As for domestic provisions, first, Article 24 of the Civil Code, in force, transformed into a right the obligation of married women to take the husband's last name appended to their own.[3] Second is the Law Against Family Violence, No. 26,260, promulgated in 1993, and later amended by Law No. 26,763 of 1997. This law establishes the State policy of eradicating violence, creates mechanisms for protecting victims, and defines the role that should be played by social organizations to defend women and children.
10. From the standpoint of practical advances, it is important to highlight the creation, by the Peruvian State, of the Ministry for the Promotion of Women and Human Development (PROMUDEH), and the general advances suggested by various indicators. Thus, for example, the Gender-related Development Index (GDI) used by the UNDP,[4] indicates that in recent years greater equality as between men and women has been brought about in three main areas: life expectancy, educational coverage, and income.
D. DISCRIMINATION
11. Notwithstanding the effort made by the Peruvian State in this respect, and the consequent important advances, situations of discrimination against women persist in Peru in areas such as education, work, marriage, and politics. This situation is all the more difficult for indigenous women (infra).
12. In the area of education, for example, the disparity in illiteracy continues to be significant. The percentage of illiteracy among women is much higher than among men.[5] Furthermore, it is significant that according to another index, the Gender Empowerment Measure (GEM), Peru appears to have slipped in recent years in terms of the degree of political participation and economic power of women as compared to men.[6]
13. In its observations on the draft of this report, Peru has described the situation with respect to women's rights, providing some figures that demonstrate the degree of "participation of women in the different areas of public life in Peru." In this respect, the State reported that from 1995 to 1998, women were designated to head up five ministries (7.5% of all such appointments). In addition, it is noted that women occupy 30% of the high-level management jobs in the public administration, while the percentage is 15.7% in the decentralized public institutions. The State adds that, for example, of the diplomatic officials, 14.55% are women, and that women account for 13.59% of the ambassadors. In another area, women have been allowed into the National School of the Merchant Marine, and gender issues are becoming part of the school curriculum. In addition, the State indicated that in order to promote women's participation in the exercise of power, the organic law on elections and the municipal elections law incorporated a rule according to which women have to account for at least 25% of the candidates.
14. As regards civil rights, some provisions still in force continue to violate women's right to non-discrimination. Previously, a married woman needed to have her husband's authorization in order to work outside the home, while the husbands could do so freely. This provision was changed by Article 293 of the current Civil Code, pursuant to which each spouse requires the consent of the other to work. In this respect, it has been noted that in practice this provision is applied exclusively to women, and that consequently it failed to solve the problem.[7] Furthermore, the civil capacity of unmarried women who have lived in consensual union is quite limited compared to the civil capacity of married women. In this regard, the laws do not grant concubines the right to community property when the partner dies, and only exceptionally are they given the right to seek alimony when they have been abandoned.[8]
15. On the question of labor rights, it should be noted that the 1993 Constitution did not expressly include labor rights of women recognized by the previous Constitution, such as the right to equal opportunity for access to work in general, thereby reducing this right exclusively to labor relations, and the right of women and men to equal pay for equal work. On not including the right of women and men to equal pay for equal work, Peru ignored Recommendation No. 90 of the International Labor Organization (ILO), and the provisions of ILO Convention 100, which enshrines that right. In this connection, the IACHR observes that downgrading such rights from constitutional rank is tantamount to opposing the trend to accord them recognition at the highest level of the legal order. In its comments on the draft report, Peru argues that the Constitution includes a general prohibition on discrimination. The Commission considers, however, that a generic anti-discrimination provision does not suffice to implement the ILO recommendations.
16. Furthermore, the Peruvian government derogated Law No. 2,851, which established rights for pregnant women, such as prenatal and post-partum leave, the right to one hour daily to nurse their children, the right to additional compensation in the case of unjustified dismissal or workplace accident, and the right to nurseries in the workplace, among others. As for dismissal attributable to pregnancy, women continue to have the right to ask to be reinstated, but there is no presumption in favor of the woman that the dismissal was due to her pregnancy. To the contrary, the woman bears the burden of proof, which in practice makes the right to reinstatement inoperable. In this way, in respect of labor law, not only was discrimination against women exacerbated, but in addition, pregnant women were left with practically no protections.[9]
17. As can be seen, despite the creation of a ministry entrusted with seeing to the human rights of women, there has been backsliding in legislation, and problems of discrimination against women persist in Peru that have yet to be resolved by the Peruvian State.
E. VIOLENCE
1. Domestic and sexual violence
18. Violence against women is a clear expression of gender discrimination. The two most common kinds of violence against women are sexual violence and domestic violence. Even though these aspects of violence against women are not committed by state agents, their occurrence gives rise to the responsibility of the State when it fails to implement reasonable preventive measures, does not duly investigate the incidents of violence, or fails to punish the persons responsible.
19. In the area of sexual violence, the IACHR was informed during its on-site visit that in Peru there is one rape every two hours, on average, and that paradoxically the number of persons detained on rape charges is declining with each passing day. The Commission was told that there is no clear and effective state policy for preventing sexual violence, or for providing services and treatment to the victims, within or outside the confines of the criminal proceeding.[10] The IACHR was also told that the rape of an adult woman in Peru is an "offense subject to reconciliation," as there is an exemption from the penalty for rapists who then contract marriage with the victim. This exemption clearly minimizes the offense and suggests that rape is considered a purely sexual offense, a private matter, and not a crime that affects all society insofar as it violates fundamental rights that the State should protect. The IACHR has stated, with respect to situations such as that mentioned: "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."[11] When commenting on the draft report, the State pointed out that the 1999 reform to the Criminal Code has done away with the private cause of action for offenses involving rape, rape of persons who are unconscious or unable to put up resistance, rape of persons under authority or surveillance and seduction. It also noted that "in addition, the indication that one liable for seduction shall be exempt from the penalty imposed on rapists if he marries the victim, has been suppressed; in no case is an exemption from the penalty possible for rapists, whatever the victim's age."
20. Also of concern to the Commission are the complaints it has received on situations of violence against women in the public health services. As the Commission was told, the forms of violence range from degrading treatment, verbal offenses, indifference, and negligence to rape and violence against pregnant women and women who are suspected of having had an incomplete abortion. In addition, according to the various versions, there is institutional discrimination in health care for women, which has become a practice that is tolerated and enjoys impunity, given the institutional cover-up in response to complaints, and women's reluctance to lodge complaints for fear of provoking a hostile response on the part of health care providers.[12]
21. As noted, even though the State has the intent to end violence against women,[13] and has promulgated laws with this in mind,[14] in practice, sexual and physical violence against women, in both the private and public spheres, continues to be a serious problem in the Peruvian State.
2. Reproductive health
22. Even though the reproductive health programs that have been developed with full respect for the human rights set forth in the American Convention and in all other human rights instruments are valued positively by the IACHR, the issue of reproductive health in Peru is a matter of grave concern to the Commission, especially with respect to the policy of family planning through Voluntary Contraceptive Surgery (AQV: Anticoncepción Quirúrgica Voluntaria). Law No. 26,530, promulgated in September 1995, established the National Family Planning Program, and implemented sterilization as a family planning method. Pursuant to this law, the Ministry of Health began an intensive campaign to raise awareness, through health fairs, to induce women to make use of irreversible contraceptive methods in an effort to control the birth rate, especially in peasant women.
23. In principle, the Commission considers that a campaign to disseminate family planning methods is a positive action, so long as it is voluntary family planning. Nonetheless, in Peru, according to information received from several sources, the actions involving "voluntary contraceptive surgery" have led to cases of forced sterilization. For example, the Ombudsman's Office told the IACHR, during its on-site visit to Peru, that it had received 168 complaints regarding forced sterilizations.
24. As of March 1998, the State undertook to make corrections to the program, some health fairs were eliminated, and in this way the number of users of AQV dropped. However, according to information received by the Commission during its on-site visit, massive and often forced sterilizations continue in Peru. The Office of the Human Rights Ombudsman has spoken out against the following shortcomings: lack of prior and complete information about contraceptive methods; threats with fines and imprisonment if the women do not agree to be sterilized; lack of diligence and sanitation in the surgical procedures; lack of follow-up as a result of which many women become ill in the wake of the operation, and some have even died; and discrimination in the implementation of the AQV, insofar as the campaign is directed mainly to women, not to fertile men.[15] Peru has indicated in its observations to this report that the Office of the Human Rights Ombudsman has made a series of recommendations on this issue that are being implemented by the Government.
25. One case pending before the IACHR in which the flaws and generally critical situation of women's reproductive rights in Peru are alleged is that of María Mamerita Mestanza. A peasant woman, she died one week after having been subjected to sterilization. According to the complaint, not only was the procedure forced on her, but she did not receive the post-surgical care that could have saved her life. The case is now being processed by the IACHR.
26. The Commission considers that when a family planning program ceases to be voluntary and turns women into a mere object of control so as to make adjustments to population growth, it loses its raison d'etre and instead poses a danger of violence and direct discrimination against women.
F. RECOMMENDATIONS
27. Bearing in mind the foregoing analysis and the specific problems raised, the Commission makes the following recommendations to the Peruvian State:
1. Amend Articles 20, 293, 416, 724, and 822 of the Civil Code and all other provisions or practices that entail discrimination against married or unmarried women.
2. Effectively guarantee the principle of equal pay for equal work as between men and women, and once again expand the right to equal opportunity so as to include access to work.
3. Regulate protection of maternity in the area of work, giving women the same rights they had prior to the derogation of Law No. 2,851.
4. Disseminate the information on the Convention of Belém do Pará, the rights protected by it, and the mechanisms of supervision; and implement reasonable measures to prevent and respond to acts of sexual and domestic violence, establishing effective guarantees so that victims can denounce rapists.
5. Ensure extensive enforcement of the Law against family violence, No. 26,260 of 1993, so as to guarantee full protection for women's human rights and take the actions required to make this law effective.
6. Adopt measures aimed at ensuring respect for women's rights in public health services, such as: training in human rights for health care providers, developing mechanisms to eradicate the covering up of offenses in the health care establishments, and setting up offices to receive complaints in the hospitals and health centers.
7. Carry out the recommendations made by the Office of the Human Rights Ombudsman in its "Report on the Application of Voluntary Surgical Contraception: the cases investigated by the Office of the Ombudsman regarding forced sterilizations."
Notes_______________
[1] See IACHR, Report on the Status of Women in the Americas, IACHR, Annual Report 1997, p. 1023 and ff. The IACHR recognizes the important contribution in this area by the Inter-American Commission of Women (CIM) within the institutional framework of the OAS.
[2] See, e.g., IACHR, Report on the Situation of Human Rights in the Dominican Republic, 1999; Third Report on the Human Rights Situation in Colombia; and Report on the Situation of Human Rights in Mexico, 1998.
[3] Centro de la Mujer Peruana Flora Tristán, Reporte sobre la vigencia de los derechos humanos de las mujeres en el Perú. Prepared by: Silvia Loli E. Lima, March 1996.
[4] United Nations. United Nations Development Program. Human Development Reports 1995, 1996, 1998, and 1999, Gender-related Development Index. To understand the GDI, one must first explain the Human Development Index, or HDI. The HDI is the index used by the United Nations Development Program to try to gauge the countries' integral development, by taking the average of the differences as between men and women.
[5] Illiteracy rates continue to be uneven: While approximately 6% of men are illiterate, the percentage is about 16% for women.
[6] Id. The GEM measures the relative power of men and women in the country's political and economic activity. Three variables are also used: the first is a composite of two indices, the percentage of men and women in administrative and managerial positions, and the percentage share of each sex in professional and technical jobs; the second is the percentage of legislative seats held by men and women; and the third is the income, to gauge the power of economic resources as between men and women.
[7] Centro de la Mujer Peruana Flora Tristán, Reporte sobre ... las mujeres en el Perú, op. cit.
[8] Id. Along the same lines, see also Articles 415, 416, 724, 730, and 822 of the Peruvian Civil Code.
[11] IACHR, Report on the Status of Women in the Americas, Annual Report 1997, p. 1047.
[12] CLADEM, CRLP, and DEMUS, Entre el Olvido y la Manipulación. Derechos Reproductivos y Políticos de Salud. Excerpts from Reporte Sombra, June 1998.
[13] In its observations on the draft report, the State mentioned several programs that have been implemented at different levels of the State, in order to bring an end to the problem of violence against women. It is noted, among other things, that the year 2000 is "the Year to Struggle against Family Violence"; the creation of a multisectoral plan that provides for integral projects for the prevention and treatment of family violence; the project "Formación de Grupos pro Mujer y Mesas Locales para la Atención de Violencia Familiar," whose objective is to integrate the actions of the grass-roots organizations and the work of local institutions. The Commission is very pleased to learn of these plans, and hopes that their objectives can be met.
[14] In its comments on the draft report, the State noted that several laws have been issued with respect to family violence, including: Law 27,007, which authorizes the Family Prosecutor to reach pre-trial settlements in the area of family violence; Law 26,842, "General law on Health," which considers family violence a mental health problem; and Law 27,115, which establishes a new procedure in relation to offenses against sexual liberty, which shall be kept confidential, withholding the victim's name.
[15] Office of the Human Rights Ombudsman, Informe sobre la Aplicación de la Anticoncepción Quirúrgica Voluntaria: Los casos investigados por la Defensoría del Pueblo, Lima, January 1998.