"I have worked so that in this country men find women everywhere and not only where they go to look for them". Clara Campoamor
Justice has always been a matter for men, and it still is...
Historically, it was a restricted area for women, who were prohibited by law from accessing the judicial and prosecutorial career until 1966, under the "powerful" reason "that these jobs are attitudes contrary to the sense of delicacy inherent in women."
Judging is a rational, formalistic, and detached discipline from the human. Perfectly calculated distancing as a generating element of "authority" through fear of the unknown.
Justice is an unknown and often unintelligible establishment, in the application and interpretation of a law with severe shortcomings in the female perspective, both in form and substance, with a very visual example of what has been said being the wording contained in the Penal Code of the crime of female genital mutilation, which, despite being exclusive to the female sex, is written in the masculine (art. 149 CP: "whoever causes another..."). On the other hand, the Spanish Civil Code has enshrined "the good father of the family" to define the standard of civil diligence, and the Commercial Code refers to the "orderly entrepreneur" in commercial matters, without forgetting "the good man" who can accompany the parties to the administrative conciliation act in the social jurisdiction. And where are the women?
The latest statistics from the General Council of the Judiciary [1] (CGPJ) show a "disturbing" fact. Female judges already make up 64% of the Spanish judiciary (under 50 years of age), despite there being no trace of them in the official photo of justice, where only men live, in an image that is worth more than 1,000 words. A judicial image typical of other centuries, which symbolically denies the merits, capabilities, and work of female judges and exhibits, without blushing, the insurmountable judicial glass ceiling. Invisible magistrates may have ambition, but not too much, which is why they remain in the courts where decisions of lesser judicial significance are made, while in the upper echelons their representation is purely anecdotal. [2]
But there are other, even more dangerous prejudices, those that permeate the sentences, turning them into elements of institutional discrimination, with an impact on citizens. A prejudiced or stereotyped justice is not justice, it is something else. Let's look at some examples:
-The Miniskirt sentence (05/23/1990 - Criminal Chamber of the Supreme Court). The High Court confirmed, without any hesitation, the sentence issued in February 1989 by the Lérida Court in which it was stated that the 17-year-old María José "may have provoked, if innocently, the employer by her clothing." In this sentence, the employer was sentenced to a fine of 40,000 pesetas for a crime of indecent assault with his employee for touching her breasts and buttocks over her clothes and for telling her that, in exchange for acceding to his sexual desires, he would renew her employment contract.
-Reduction of sentence for gender aggressor due to his military decorations. (Sentence of 06/08/2012 - Military Chamber of the Supreme Court). The High Court reduces the suspension imposed on a military man who assaulted his wife for considering that his military decorations and his participation in the peace mission in Afghanistan where "it is common to use force" were not taken into account.
-Sexual Abuse and not Sexual Assault because the girl (5 years old) did not resist. (Sentence of 03/02/17 - Provincial Court of Cantabria). The sentence condemns a man to three years and nine months in prison for sexually abusing for five years a minor neighbor who was only 5 years old when the abuse began. The facts are not considered as sexual assault, as requested by the Prosecutor's Office and the private prosecution, which requested nine and ten years in prison respectively, as it was not proven that the girl "offered physical resistance or protested, cried or screamed, but it was common for her to return to the house of this man who gave her gifts to please her (consoles, laptop, mobile phones)."
Making the principle of equality real does not allow neutrality, a constitutional approach must be adopted. This means integrating the gender perspective as a reference criterion in the administration of justice in all jurisdictions and also in the assessment of professional merits, integrating the time dedicated to family care, because this promotes co-responsibility and values another type of intelligence (emotional) that is not taught in universities.
Gender stereotypes are the basis of discrimination against women. Their presence in justice systems has detrimental consequences, particularly for victims of different forms of violence, and may even prevent access to effective judicial protection. Therefore, in all cases involving asymmetrical relationships, prejudices, and stereotypical gender patterns, judgment must be made with a gender perspective. This is not an option for the judge but an imperative legal mandate.
It is also essential to feminize justice, that is, to implement the feminine attitudes that the judicial establishment has always lacked, such as ethics or emotional intelligence. The feminization of justice requires not only an equitable representation of women in all hierarchies, to incorporate female experiences in decision-making, but also that judges be bearers, through their sentences, of a more humane, more egalitarian, and less mechanical justice.
Judicial decisions are enriched by the perspective of both sexes because that is the complete view of our society.
[1] http://www.poderjudicial.es/cgpj/es/Poder-Judicial/En-Portada/Las-mujeres-representan-ya-el-64-por-ciento-de-los-jueces-y-magistrados-en-activo-menores-de-50-anos
[2] Only 13% of the composition of the Supreme Court is female (11 women out of a total of 78 members). In the Constitutional Court, only 6 magistrates out of a total of 64 members have been known throughout its history. In the European Court of Human Rights, a Spanish magistrate has never been elected.