One might think that machismo is incompatible with justice, because it is an institution specialized in the protection of people's rights that must ensure the eradication of all forms of discrimination.
One might also think that the Judiciary, as administrator of a power of the State and sentinel of compliance with the law, has a mandatory training plan in gender matters to counteract the macho contamination inhaled from all social spheres.
But that would be a wrong thought...
The machismo that kills is engendered in a soft social base historically underestimated.
A base that is generated and regenerated through each sexist advertisement and each act of macho violence amplified with technologies that are ductile channels of propagation, to disturbing extremes. It is regenerated in every home where gender roles prevail, despite the integration of women into a labor market, which also discriminates against them. And it is regenerated in educational tools with a language and a history where only men live.
The judicial career is not a watertight, isolated or immune to macho prejudices. Judges are born, educated and oppose in the same patriarchal society as other professions. Therefore, machismo also prevails in justice, where it extends bidirectionally, endogenously (inwardly), or exogenously (outwardly). The latter is perhaps the most dangerous because of the negative impact it has on citizens. A macho justice is incompatible with an equitable justice.
The confirmation of endogenous machismo is in the scarce female representation in the judicial summit and also in the photograph of justice that each year illustrates the opening of the judicial year, in which there is no trace of women, despite the fact that at present, women sign more than half of the judgments handed down in this country, where they occupy 52'4% of all judicial positions and 62'5%, in the age group under 51 years, according to statistics from the General Council of the Judiciary (CGPJ). (2). This image, a symbol of the judicial glass ceiling, is an insult to the dignity of female judges, because it makes them invisible with a message of denial of their important contribution to Spanish justice.
But exogenous machismo is the most damaging, because it permeates judicial decisions and neutralizes their equitable effect. Here are half a dozen real examples from different instances and jurisdictions:
1-The Miniskirt ruling (05/23/1990 Criminal Chamber of the Supreme Court). The High Court confirmed, without any hesitation, the judgment 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 businessman Jaime Fontanet by her dress". In this judgment, the businessman was sentenced to a fine of 40,000 pesetas for a crime of indecent assault on 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.
2- "There is no sexual harassment, if the victim does not resist sufficiently" (Judgment of 02/09/1995-Social Chamber of the Superior Court of Justice of Galicia). The clerk of a video store sued her boss for sexual harassment, having been proven that her employer touched the clerk's buttocks against her will on one occasion and that he made continuous sexual allusions to the operator and caused physical contact that made her uncomfortable. The lawsuit was upheld in the social court but later the Superior Court of Justice of Galicia revoked it considering that the worker "had not been sexually assaulted by the employer" because it was required, "a clear, conclusive and immediate refusal, by the affected woman, to the maintenance of said situation, through acts that highlight the total and absolute rejection of the employer's attitude".
Fortunately, the Constitutional Court, in its judgment No. 224/1999, of December 13, 1999, revoked the Galician resolution, denying that the erotic insinuations were tolerated by the operator and recalling that a single refusal by the victim is sufficient for there to be sexual harassment.
3- "Calling the ex-wife a fox is not an insult" (Judgment of 06/17/2011 of the Provincial Court of Murcia). In the judgment of first instance, a man was convicted of threatening his ex-wife. The judge used as evidence two calls made by the man insulting his ex-partner in rude terms (calling her "fox") and threatening her with death (he even said that he would see the complainant "in the cemetery in a pine box"). However, on appeal, another judge of second instance considered that there was nothing that sufficiently proved that the accused used expressions of contempt for the dignity of the woman or that were an expression of a position of dominance or demanding submission. Even, the judge pointed out that the expression "fox" used by the man in the conversations was not used in terms of contempt or insult, but as a description of an animal that must act with special caution, in order to detect risks against itself.
4- "Reduction of the sentence to a soldier convicted of injuries to his wife for his decorations in Afghanistan" (Judgment of 06/08/2012 of the Military Chamber of the Supreme Court). The Supreme Court reduced the disciplinary sanction imposed on a soldier who assaulted his wife for considering that his military decorations and his participation in the peace mission in Afghanistan were not taken into account. The sergeant was criminally convicted by the Spanish courts for hitting his wife, who suffered several bruises due to the aggression. As a consequence of this conviction, he was disciplined to 9 months and one day of suspension from the army, a measure that he appealed judicially. The Military Chamber of the Supreme Court described the sanction as disproportionate because the sergeant's decorations, badges and honorary mentions, as well as his participation in peacekeeping missions in Afghanistan, where "the use of armed force is frequent", were not duly valued.
5- "Woman with high-risk pregnancy who is denied benefits for Risk during Pregnancy" (Judgment of 07/01/2015 of the Social Court No. 3 of Las Palmas). The worker, a saleswoman by profession, with a high-risk pregnancy that required absolute rest, filed a lawsuit requesting the payment of benefits for risk during pregnancy that had been denied. The Social Court dismissed the lawsuit on the grounds that the high-risk pregnancy does not fit into the protection route of the benefits claimed. The worker filed an appeal that was upheld by the judgment of April 29, 2016 issued by the Social Chamber of the Superior Court of Justice of the Canary Islands (Las Palmas), recalling that the benefits claimed are exclusive to the female gender, given their direct link with the biological state of pregnancy, and an integrating interpretation of the applicable gender regulations must be made, since the impossibility of working derives from an objective risk directly linked to her state of gestation (high-risk pregnancy). This is a diagnosis directly related to the state of pregnancy, incompatible with the provision of labor services in general, and more specifically with the provision of services specific to the professional category of the operator (1).
6- "Deprivation of remuneration supplement to a judge by reason of her pregnancy and maternity" (Judgment of 03/25/2014 Contentious-Administrative Chamber of the Superior Court of Justice of the Basque Country). Recently, the Constitutional Court, in its judgment No. 162/2016 of October 3, 2016, taught us how to judge with a gender perspective, revoking a resolution that had unfortunately validated the deprivation of a remuneration supplement to a judge on leave due to being enjoying various licenses in relation to maternity. The Constitutional Court reminds us in this judgment:
"The legally established permits and licenses due to gestation and subsequent childbirth as connected with the protection of the health and integrity of the fetus and the mother, cannot be equated to the rest of the permits and licenses. The principle of non-discrimination on grounds of sex obliges to compensate for the disadvantages that pregnancy, by affecting women exclusively unlike men, may cause in their economic and professional rights. The protection of the biological condition and health of the working woman must be compatible with the preservation of her professional rights, so that the undervaluation or damage caused by pregnancy or successive maternity constitutes a case of direct discrimination on grounds of sex".
The antidote against judicial machismo is called specialized training in gender and must cover the entire professional life of the judge, from access to the career until retirement. Only in this way can justice be administered with a gender perspective. And it must be applied not only in the courts specialized in violence against women, but in all jurisdictions, because women sue or are sued in all jurisdictional areas and in all instances. A macho justice is not justice.
(1)- The judgment of the TSJ of the Canary Islands (Las Palmas) of April 29, 2016 (rec. 121/2016) is not final, as it has been appealed in Cassation for the Unification of Doctrine before the Supreme Court.
Gloria Poyatos Matas Magistrate of the Superior Court of Justice of the Canary Islands
Article published in The Huffington Post
