The Disciplinary Commission of the General Council of the Judiciary (CGPJ) decided on July 26 to file the disciplinary procedure promoted by the Clara Campoamor Association against the judge of Vitoria who, in the course of a judicial procedure, asked a woman, victim of two sexual assaults by her ex-partner:
-Did you close your legs properly?
-Did you close the entire area of the female organs properly?
The decision was taken by 6 votes in favor and 1 against, that of the president of the Observatory against Domestic and Gender Violence of the CGPJ itself, Ángeles Carmona, who has announced a dissenting separate vote from the majority decision.
Unfortunately, the case analyzed by the highest governing body of the Spanish justice system is not isolated nor is it the "pioneer". On the other side of the Atlantic Ocean, in September 2014, a judge of the Canadian Federal Court of Justice named Robin Camp, asked the following questions to a 19-year-old victim of rape:
-Couldn't you have kept your knees together?
-Did you lower your butt so he couldn't penetrate you?
After numerous complaints filed by jurists, the magistrate publicly apologized to the victim and to all women for his shameful conduct and voluntarily decided to attend gender awareness workshops, but the "spontaneous" repentance of the judge did not prevent the Canadian Judicial Council from recommending the immediate removal of the magistrate from his position, considering his conduct: "deeply and manifestly destructive to the concept of impartiality, integrity and independence." Finally, in March 2017, Judge Camp submitted his resignation.
The 20th century will go down in history for achieving equality in law between women and men, but the great challenge of the 21st century is the conquest of real equality, which stands as a chimera, in light of the discriminations that still splash all conceivable social spheres.
Making the principle of equality real does not allow neutrality, a constitutional approach must be adopted and gender stereotypes and prejudices must be overcome from justice, because they are the basis of discrimination against women. Their presence in justice systems has very harmful consequences and can prevent access to justice in all areas of the law, particularly affecting victims and survivors of violence. Stereotypes distort justice and lead to decisions based on preconceived beliefs and myths, rather than facts. The application of prejudices affects the credibility of the statements, arguments and testimonies of women as parties and as witnesses in the proceedings.
Therefore, in all cases involving asymmetrical relationships, prejudices and stereotypical gender patterns, it must be judged with a gender perspective as a reference criterion in the administration of justice of all jurisdictions. This is ordered by Article 4 of the Organic Law of Equality 3/2007, which positivizes the interpretation in favor of the equality of the sexes -"favor aequalitatis"-, in light of international jurisprudence on human rights, endorsed by Judgments of the European Court of Human Rights, as well as the numerous Opinions of the Committee for the Elimination of Discrimination against Women of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
On July 18, 2014, the Cedaw Committee issued its report in relation to the complaint filed by the citizen Ángela González Carreño against the Spanish State, concluding that Spain had violated several precepts of the CEDAW and recommending providing mandatory training to judges on gender stereotypes, the convention, its Optional Protocol and the general recommendations of the Committee.
The case of Ángela González is that of a victim of gender violence who had filed 51 complaints before courts and police stations against her ex-husband, for very serious threats, aggressions and attempted kidnapping, and also to avoid unsupervised visits of the common daughter of the marriage. But her complaints were not heeded and her daughter Andrea, with only 7 years old, was murdered by her father with a shot. Ángela's story is surely the most tragic description of the violence that institutions exert against victims of male chauvinist violence. Therefore, Spain was condemned by the UN.
The same Cedaw Committee has also repeatedly warned against the judicial distortions produced by gender stereotypes projected in sexual crimes, when those who judge apply the role of "the ideal victim" based on the prejudice of the "implicit sexual consent" of women, which translates procedurally into an added requirement to the victims (mostly women), who must prove a physical, contumacious, clear and definitive resistance to the act of rape in order to be judicially credible. In law, there is a long history of stereotypes about women witnesses as "intrinsically liars" or as "intrinsically unreliable" and therefore it is believed that they are more likely to lie when testifying in cases of sexual violence.
Asking the victim of a sexual crime if she closed her legs properly, distills stereotyping, evidences a lack of training in gender matters and a worrying ignorance of the law and the international jurisprudence cited. In addition, the very formulation of the question is in itself re-victimizing and contrary to the provisions contained in Law 4/2015, of April 27, of the Statute of the Victim of Crime. It involves subjecting victims of gender crimes to an extra requirement that is not found in other crimes. Let's think, for example, of the case of a victim of an attempted homicide crime. The question would be unthinkable:
-Did you try to dodge the trajectory of the fired bullet with all your strength?
In any case, the discipline to be imposed should not fall so much on the judge who formulated the regrettable question, but on who has the maximum responsibility and exclusive competence in the matter of gender training of the Spanish judiciary and omits its compliance, which is the General Council of the Judiciary itself.
Judges can and should be drivers of social changes to advance in Equality through our actions and judicial resolutions.
There are two ways to administer justice: to do it formally and mechanically and to do it with equity and a gender perspective. The first perpetuates the systemic social asymmetries between sexes, the second, however, walks towards an egalitarian society.
A Justice without a gender perspective is not Justice, it is something else.
Gloria Poyatos Matas, Magistrate of the Superior Court of Justice of the Canary Islands
Article published in Huffingtonpost.com