Few things are more demoralizing than injustice done in the name of authority and law
Concepción Arenal (1820-2893)
The history of women is the history of chronic discrimination.
Violence against women and girls is an extreme manifestation of inequality and a tool, sometimes deadly, to maintain their subordinate status. It is a serious social, global problem with international impact, causing more deaths than any known war. According to the "Global Study on Homicide 2011" conducted by UNODC, almost 50% of female victims died at the hands of family members or partners, compared to 6% in the case of men.
The different faces of gender violence can only be understood with an international perspective, because they cross borders and transcend from the private to the public sphere, which has given rise to a new form of violence forged in the shelter of new democracies: Institutional gender violence. The high harmfulness of this type of violence, executed from the institutional entrails of the public sphere, has made it a matter of Human Rights expressly prohibited by CEDAW, the Istanbul Convention and the Belem do Pará Convention, among other international tools that deal with sanctioning States that practice it, and almost none are spared.
Institutional gender violence is one of the most perverse forms of aggression, because whoever exercises it does so under the legitimate protection of the Rule of Law
With the arrival of legal equality to this side of the world, we managed to uninstall stereotypes from the laws, but they still persist in people. Prejudices are at the service of an irrational function and are immune to laws. They move in another dimension, their transmission is not legal but social, so once they pass through our perceptive fabric, we identify them as our own way of thinking and we no longer see them as a problem that requires legal or other remedy.
Institutional gender violence is one of the most perverse forms of aggression, because whoever exercises it does so under the legitimate protection of the Rule of Law, which multiplies its devastating impact, socially and individually, and increases its virulence exercised by those who are supposed to protect the victims, turning the Administrations into a "second aggressor" that finishes off the psychological destruction of the person. Practical examples of this type of violence number in the hundreds around the world, from South Africa to Canada, and it can occur from any institutional sphere, in all its administrative hierarchies.
Globalization has had a visibility effect on administrative violence through the dissemination of communications from the CEDAW Committee or the judgments of the European Court of Human Rights and the Inter-American Court of Human Rights, which adopt a different judicial approach placing the gender perspective at the center of the legal analysis of each case, starting from a right that is not neutral and a society that is not either.
For this reason, the CEDAW Committee condemned Spain for failing to comply with this convention in its communication No. 47/2012 (Ángela González Carreño Case), recommending mandatory training for judges and competent administrative personnel on violence and gender stereotypes. More recently, the European Court of Human Rights, in its judgment of July 25, 2017 (Carvalho Pinto de Sousa Case) determined that Portugal had incurred multiple discrimination (on the grounds of sex and age) derived from stereotypes.
The judgment resolved the appeal filed by a Portuguese citizen who, after suffering medical negligence that left her, among other consequences, urinary incontinence and inability to have sexual relations, claimed compensation for damages that was substantially reduced by a judgment of the Supreme Court of Portugal, including among the legal considerations that "given the age of the plaintiff (50 years) she should only take care of her husband" and that "she is at an age when sex is not as important as in her youth; its significance diminishes with age." The fact is that the same Supreme Court in similar cases, where the plaintiffs were quinquagenarian men, had recognized much higher compensation considering that sexual limitations were for men a "tremendous shock".
A few days ago, a before and after has been marked in International Gender Justice. This has been done by the judgment of March 8, 2018 issued by the Inter-American Court of Human Rights (Case V.R.P. vs Nicaragua), with unprecedented forcefulness, in which this country is condemned for failing to comply with various precepts of the Belém do Pará Convention by incurring institutional gender discrimination, including sexual discrimination, against a 9-year-old girl.
These are the most relevant facts of the case.
- The minor (V.R.P.) was the daughter of a well-known lawyer and lived with her mother and her three older brothers.
- According to the girl, between the months of September and October 2000, when she was 8 years old, her father took her twice to a place known as "Las Flores", where he gave her coffee that made her dizzy and drowsy. When she woke up, she noticed that her father was cleaning her anal area while pulling up her pants.
- Months later, the mother took the minor to a medical consultation due to the difficulties she had in defecating and the pain in the anal region. Two different doctors determined that she had a ruptured hymen, ulcers in the anus, tears in the mucosa in the anal region, lesions in the cervix and also the human papillomavirus and condylomas in the perianal region. Due to the injuries, she underwent cryotherapy and anoplasty in the entire perianal circumference. The specialists concluded that the girl was a victim of sexual abuse and had suffered anal penetration.
- The mother reported the father to the court for the crime of sexual assault. Based on the medical evidence presented and the victim's testimony, described as "coherent, clear and well-founded", the defendant was preventively arrested.
- Within the framework of the investigation, it was ordered to receive 21 testimonial statements and the performance of another medical examination of the minor by a medical board composed of a pediatrician, a surgeon and a gynecologist so that, together with the forensic doctor, they would carry out a medical assessment, to which the psychiatrist, the judge and the secretary of the judicial office were added.
But as stated in the commented judgment, this medical examination incurred in a series of serious irregularities incompatible with the reinforced diligence and special protection required in investigations for sexual violence against minors. In the first place, it is highlighted that the medical examination was carried out in a place similar to "the morgue" of a hospital, with aluminum plates. The girl was exposed naked before a large group of people.
The forensic doctor was not a professional specialized in minors, and had a "grotesque and vulgar unethical" behavior that made the girl very nervous, who was not allowed to put a blanket underneath to relieve her injuries, addressing her with these words: "The girls from the countryside come here, open their legs and I do the exams and they don't complain. What will happen when I go to examine the anus?". The girl screamed and cried and resisted the medical examination and the professional tried to continue against her will, to the point that the judge reminded the minor that if she did not collaborate "her dad would be released". Finally, the examination was suspended, stating as the cause "the negativity of the minor"
- The minor coincided in the judicial facilities with her aggressor at least, on one occasion, according to the judgment.
- Another of the tests agreed upon in the instruction was a judicial ocular inspection and reconstruction of the facts, requesting the minor to recount again what happened with her father and go through the same places to which she had been taken by her aggressor, she was dressed in the same clothes and was made to reproduce the same position in which she was when the events happened.
- The psychological evaluation of the minor concluded that she suffered psychic affectation of a post-traumatic stress disorder, accompanied by a significant picture of depression, and that there were emotional indicators of shame, fear, feelings of guilt, related to the stressful housing, compatible with chronic sexual assault. The assigned psychiatrist issued another report in which it was stated: "She will need, almost always, until she reaches her biological and emotional maturity, help from a psychotherapist since the damage received in the physical and psychic sphere is of lasting sequelae and injuries, she may develop suicidal ideation or sink into endogenous depression".
-During the trial by a Jury Court, there were several suspensions without reasonable cause that lengthened the process. The accused had three defense lawyers, including the defendant who made use of his own defense, however, the prosecution only had one lawyer who, having requested another advising lawyer, was denied. In addition, some of the members of the jury received packages on several occasions, through the defense lawyers of the defendant. Also the president of the Court received a sealed envelope offered in public by one of the defense lawyers who asked him to be read in private by the jurors.
- On April 13, 2002, the Jury Court issued its verdict declaring the defendant innocent of the crime of rape, ordering his release.
- The minor's mother filed an appeal for annulment due to the irregularities of the procedure, which was dismissed on August 9, 2005. Similarly, she filed an appeal, which was rejected on October 24, 2007. She also filed several complaints against the actions of the forensic doctor, the prosecutor and the judge in charge of the process. But those same people filed actions against the mother and her relatives for crimes of slander and libel and the lawyers who legally supported these actions were related to the defendant. Among them, the brother of the forensic doctor, who was a person known by the accused and testified in his favor as a witness.
- Finally, the mother, the minor and the rest of the siblings had to flee from Nicaragua to the United States where they were granted asylum. In her new residence, the girl began psychiatric treatment due to "her severe symptoms related to the sexual abuse she suffered" and had to be hospitalized on April 1, 2008, due to the psychiatric treatment.
Based on the horrifying factual account described, the Inter-American Court condemned the State of Nicaragua as responsible for the violation of the rights to personal integrity, judicial guarantees, private and family life and judicial protection, both by action and omission. The state obligation to guarantee, without discrimination on grounds of sex and gender, as well as due to the victim's condition as a person in development, the right of access to justice was not fulfilled and revictimizing acts carried out by officials to the detriment of the minor constituted institutional violence qualified as cruel, inhuman and degrading treatment
The Court condemned the infringing state to a variety of measures aimed at the "restitutio in integrun" of the victims ranging from compensatory compensation for the damages caused and for future treatments and studies of the minor, to the mandatory adoption of protocols for the investigation of cases of sexual violence against minors; specialized training of civil servants and creation of the figure of the lawyer for girls, boys and adolescents who provides specialized and free legal assistance to victims of crimes in criminal matters.
The end of this judicial chronicle shows that we live in the culture of simulated equality, sustained on sexist roles and prejudices that also penetrate our institutions
The end of this judicial chronicle, which could be the script of a children's drama with pyrrhic victory, shows us without ambiguity that we live in the culture of simulated equality, sustained on sexist roles and prejudices that also penetrate our institutions giving rise to irrational decisions based on preconceived beliefs about the "appropriate" behavior of women in each context. But this is combatable through specialized training, which must be implemented in all public institutions, and especially in the judicial field to achieve justice with a gender perspective, as the Criminal Chamber of the Spanish Supreme Court has done a few days ago in its judgment of May 24, 2018 in which "applying the gender perspective for the first time", condemns for attempted murder, instead of homicide, a man who stabbed his wife eight times. Judging with a gender perspective is to seek fair solutions to unequal situations.
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, on the other hand, moves towards a truly egalitarian society.
By Gloria Poyatos, published in The Huffingtonpost