CHAPTER V

THE RIGHTS OF WOMEN

A.        Introduction

268.          Long-entrenched forms of discrimination have denied Guatemalan women their right to partake fully of the benefits of national development and participate as equals in decision-making circles.  Unable to exercise their economic and labor rights to the fullest, women continue to be under-represented on almost all fronts.  Guatemalan women are disproportionately poorer than Guatemalan men and have less access to education and health care, with the result that maternal mortality and malnutrition are high.[300]  Indigenous women and women trapped in extreme poverty endure multiple forms of discrimination and social exclusion.  While the human development index for the population as a whole is 0.54, the index for women is approximately one-third that figure (0.17).[301]   As the Peace Agreements indicate, the discrimination and exclusion that women still suffer affects not just their rights but also the development of Guatemalan society as a whole.  And in that sense, the discrimination that Guatemalan women experience is an obstacle to the growth of the democratization process and to consolidation of the rule of law in that country.

269.          The Guatemalan State has taken the first essential step, which is to undertake international and national commitments to respect and ensure women’s rights.  The priority challenge that Guatemala faces is to close the wide gulf between the commitments it has made and the discrimination that Guatemalan women continue to suffer in their daily lives.  If women’s fundamental rights are to be ensured, immediate attention must be focused on juridical reform and on improving women’s access to justice.  Effective measures must be taken that reflect, in practice, the commitments that the State has undertaken, such as mainstreaming the gender perspective into all aspects of the policies and decisions adopted by the State, earmarking sufficient resources to make this possible, better coordinating policies vis-à-vis women’s rights, and holding State agents accountable when they fail to perform the State’s obligations in respect of equality and nondiscrimination.

270.          The end of the armed conflict and the signing of the Agreement for a Firm and Lasting Peace[302] opened up new political spaces.  Today, women are beginning to have a hand in shaping national objectives and have been particularly instrumental in spearheading the drive to put together the juridical and institutional framework needed to conquer long-entrenched forms of gender-based discrimination.  Using the commitments undertaken in the Peace Agreements as a basis and in partnership with civil society, the State has adopted a number of initiatives, such as the Women’s Dignification and Promotion Act, the Law on the Prevention, Punishment and Eradication of Intrafamilial Violence, the Social Development Act, the National Policy on the Promotion and Development of Women and the Equal Opportunity Plan.  The State has also enhanced the institutional mechanisms for promoting and protecting women’s rights by creating such entities as the Office for the Protection of Indigenous Women, the Women’s Forum, the Presidential Secretariat for Women, and the National Coordinator for the Prevention of Intrafamilial Violence (CONAPREVI). 

271.          But the positive commitments undertaken by the State stand in sharp contrast to the relatively trifling measures taken to put those commitments into practice.  Guatemalan women come up against enormous obstacles in exercising even their most basic rights and continue to suffer from discrimination both in law and in practice.  For example, despite reforms in the law, anachronistic laws that discriminate on the basis of gender are still on the books.  If the law itself embodies unfair gender-based distinctions, then the principle of equality can hardly be said to be guaranteed; indeed, the law perpetuates subordination.  Violence against women remains a major human rights problem and human safety problem.  Women who have experienced or been threatened with that type of violence still encounter multiple barriers when they turn to the courts for protection and judicial guarantees. 

272.          In its observations on the present report, the State indicated that one element that should be mentioned within the framework of advances with respect to women is the execution of the National Policy for Women’s Promotion and Development, and the Equal Opportunities Plan.  Under the Policy and Plan, the institutions of the State have developed important actions according to very concrete objectives.  Among these, the Guatemalan Government emphasizes the incorporation of the classification of gender in the budget allocation for governmental institutions, which gives visibility to the funding granted in favor of women.  In the future, this action will have a strong impact and repercussion with respect to the advancement and promotion of women in the national sphere.  In general terms, the State further indicated that important advances had been reported in various areas, particularly with respect to the economic and social sphere, and spaces for coordination, dialogue and participation.  The Commission has not received more specific information in this regard.

B.        The status of women under Guatemalan law

273.          As previously noted, while positive reforms in the law have been adopted, such as the Law on the Dignification and Promotion of Women, anachronistic laws that make unfair, gender-based distinctions remain on the law books.  The persistence of these discriminatory provisions thwarts the very progress that the new laws are intended to achieve.  Many of these anachronistic provisions perpetuate discrimination.  The changes that these laws require must be crafted by representatives of civil society and, in some cases, by the architects of State policy.  Given the situation, in the Commission’s view the reform proposals are not being given the attention necessary to get them enacted into law quickly. 

274.          In criminal law, this Commission, members of the United Nations Human Rights Committee and representatives of civil society[303] have all urged that priority attention be given to Article 200 of the Criminal Code, which provides that criminal action shall be extinguished in cases of rape or other serious sexual offenses if the offender marries the victim.  This provision does not comport with the object and purpose of the Law to Prevent, Punish and Eradicate Intrafamilial Violence and the State’s international obligations.  In 1997, the Commission expressly recommended to all member States that such provisions be abolished[304] and published a specific recommendation to this effect in its Fifth Report on the Situation of Human Rights in Guatemala. 

275.          Also, under Decree 79-97, while many sexual crimes, including rape, are defined as indictable offenses, the law also stipulates that the victim must bring charges. The requirement that the victim brings the action means that in reality, such crimes are not automatically indictable offenses; instead, such crimes are only prosecuted and punished if the victim brings a case or if the prosecutor chooses to prosecute the case.[305]

276.          Furthermore, Articles 179 and 180 of the Criminal Code continue to speak of abuse of “decency” or “good morals” as one of the elements that must be established to prove the commission of certain sexual crimes.  As this Commission and others have pointed out, such language is intended to protect a legal principle but not women’s rights.  In practice, such language tends to be interpreted and applied in such a way as to blame the victim or put the victim on trial rather than to ensure that the perpetrator is punished.[306]

277.          Within the Civil Code, Articles 89 and 299 still create gender-based distinctions that fly in the face of the State’s obligations vis-à-vis nondiscrimination and equal protection under the law.  Article 89 governs the authorization of marriage and establishes a minimum age for marriage with parental consent:  14 for females and 16 for males.  Women’s organizations, this Commission and the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) have called upon the State to reform this aspect of the law.[307]  The Code also provides that women must wait 300 days after the dissolution of one marriage or union before entering into another.  Article 299 concerns legal guardianship of minors and provides that the order of preference of guardianship shall be the paternal grandfather, the maternal grandfather, the paternal grandmother and the maternal grandmother. 

278.          While the Labor Code in general contains separate legal provisions governing the work of women and the work of children, some provisions place women on the same level as children.[308]   The heading of Title Four, second chapter, is “Work of Women and Minors.” Article 147 of that chapter reads as follows:  “The work of women and minors must be appropriate to their age, health or physical condition, and intellectual and moral development.” Article 139 classifies women in the same category as minors by requiring that the work of women and minors in the agricultural sector be recognized.   The Commission has also been informed that while the social security system requires that pensions be paid to the widows of male workers, no provision is made for pensions being paid when working women enrolled in the social security system die.  The reports indicate that a bill has been introduced on this subject.

279.          Another commitment that has yet to be honored is the criminalization of sexual harassment, pursuant to the provisions of the Agreement on the Identity and Rights of the Indigenous Peoples, signed in 1995.  While a number of bills on this subject have since been presented, they appear to have become stalled in the legislative committees assigned to study them.  Women’s organizations have repeatedly pointed out that enactment of those laws is a priority and have called for an end to the delaying tactics surrounding this issue.

280.          Among the legal advances achieved in the last two years is the Social Development Act, enacted in 2001.  It takes a global approach to development and establishes a framework to better mainstream women into then process of economic, social, political and cultural development.  It upholds the right to full exercise of maternity and paternity, the right to comprehensive health care, to decide the number of children one will have and at what intervals, to reproductive health care and family planning programs.   Other recent initiatives are the Municipal Code under which a commission on the family, women and children must be established within each municipal board, and the Law on Development Councils, which promotes women’s participation in the National Council for Rural and Urban Development and in the departmental development boards.  In 2001, Guatemala took the important step of ratifying the Optional Protocol of the Convention on the Elimination of All Forms of Discrimination against Women. 

281.          During its on site visit, however, the Commission received reports to the effect that these advances have not been followed by other changes that are essential to remedy the systematic discrimination that continues to prevent women from fully exercising their basic rights.  The fact that the State has not adopted the measures necessary to abolish laws that discriminate on the basis of gender is a particular cause for concern.

282.          The rule of law and respect for basic rights must be preserved by means of a legal system that guarantees those very rights.  If the legal system itself codifies unfair, gender-based distinctions, it becomes a source of discrimination that perpetuates women’s subordinate status.  In general terms, the Commission has put it as follows:

Discrimination de jure is a flagrant violation of the international commitments freely assumed by the States and, although formal equality does not guarantee the elimination of instances of discrimination, recognizing it makes it possible to encourage transformations in society, thereby enhancing the authority of this right.[309]

C.        Women’s representation and participation in shaping State policy

283.          The status of women under Guatemalan law, analyzed in section B, supra, largely reflects the perceptions and experience of those responsible for crafting and enacting law and policy.  When one ventures beyond the realm of the mechanisms created specifically to deal with the issue of women’s rights, one finds that women continue to be grossly under-represented in terms of electoral participation and positions in elective public office.  To cite just a few examples, in the executive branch of government women hold three of the 13 cabinet posts.  In the legislative branch, only ten of the 113 deputies are women.  Women hold only six of the 22 executive offices at the departmental level.  At the local level, only three of the nation’s 330 mayors are women.  None of the general secretariats of the established political parties are headed by women.

284.          Women’s participation in political parties has been described as “very limited and virtually nonexistent.” There is no provision in the law to address the need for equal participation of men and women within political parties.[310]  Women’s organizations have made the need for legal and policy measures to increase women’s participation in political positions a priority.  Bills have been introduced, including one by the National Women’s Office.  Yet Congress has failed to adopt measures to move forward on this front.  As the Commission has written in general terms:

The under-representation of women in government throughout the Americas demonstrates the need for further state action, in conjunction with initiatives of civil society, to bring about true respect for the right of women to participate in political life in compliance with international norms.  As the regional and international communities have recognized, achieving the free and full participation of women in all spheres of public life is an obligation which may well require the adoption of special measures of affirmative action designed to effectuate equality of opportunity for women and men.[311]

285.          The State has also failed to propose immediate and specific measures to clear away the obstacles preventing so many women from taking part in the political process by casting their vote.  While long-entrenched stereotypes and discrimination have been obstacles for women’s participation,[312] other more pragmatic barriers have also conspired to prevent women from voting, such as the lack of official identification papers or voter rolls.  Of the registered voters, approximately 57% are men and 43% women.[313]  Reports indicate that around 30% of the women who are eligible to vote are not registered,[314] especially in indigenous and rural communities.[315]  While bills intended to tackle these issues have been drafted since the 1999 elections, nothing has as yet been accomplished in this regard.

286.          There have been new changes in participation in politics at the local level.  As already noted, the Municipal Code requires the establishment of a Commission on the Family, Women and the Child in every municipal council.  The Development Councils Act promotes women’s participation in the Council on Rural and Urban Development and in the departmental-level development councils.  The appreciation of the role that women play in those venues is a welcome development and an important first step.  Nevertheless, during the Commission’s visit, women’s organizations voiced strong concern over application-related issues, especially the provision contained in Article 72 of the Rules of Procedure of the Council on Rural and Urban Development requiring women’s organizations that do not yet have legal status to acquire that status and be accredited within six months in order to be able to participate in the various levels of the Development Councils.  Women’s organizations argued that in practice this requirement precludes, rather than includes, local organizations that do not have the means to retain the services of attorneys to handle the accreditation process. 

287.          While the levels of representation in public posts have increased very little, modest gains have been seen in women’s representation on the bench.  Overall, 27% of judges and magistrates are women; 41% of judicial support personnel and 34% of court administrative personnel are women. The most recent data show that women’s participation in the judicial branch is up 2% over the previous year.[316]

288.          One promising initiative related to the role women play in other spheres of politics has been the creation of the Office of Gender Equality in the National Civil Police Service (PNC).   This office is in charge of building and promoting an awareness of gender-related issues within the police force and incorporating that awareness into the services it provides.  In discharging its mission, it provides training for staff and authorities on matters related to gender-associated violence and gender equality.  According to a recent report, a study was done on the question of gender equality within the PNC itself.  The curriculum of the PNC Training Academy features courses on domestic violence and gender equality.  Still, women represent only a small percentage of the police force (around 10%) and very few have made their way to positions with decision-making authority (the numbers at that level fall far short of 1%).  It is hoped that these initiatives will end the stereotyping and gender-based inequalities evident in the patterns of assigning functions, training and interpersonal relations.[317]

289.          Indigenous women face multiple forms of discrimination.  Therefore, the creation of the Office of the Public Defender for Indigenous Women is a promising initiative.  During its visit, the Commission was given information about the activities that this office performs, including the training of leaders in Huehuetenango; dissemination of the National Policy for the Promotion and Development of Guatemalan Women and the Equal Opportunity Plan 2001- 2006; reporting of information about the Convention on the Elimination of All Forms of Discrimination against Women and enforcement of that instrument; lobbying for the inclusion of gender equality in proposed legal reforms at the local and national levels, and the work the Ombudsman’s Office does to guarantee the observance of commitments undertaken at the international, regional and national levels with regard to women’s rights.

290.          In State policy on women’s rights, the Guatemalan Peace Agreements have been instrumental in spurring the creation of new mechanisms for promoting and protecting those rights.  Those initiatives have largely been put together in consultation with civil society and in response to the priorities that civil society has singled out, and feature ongoing consultations on the application of the respective policy.  Examples of such initiatives include the National Policy for the Promotion and Development of Guatemalan Women and the Equal Opportunity Plan for 2001-2006, prepared through consultations with civil society.  These spell out the measures, programs and projects that the State agencies responsible for women’s fulfillment in equality are to use.  Today’s challenge is to realize those objectives.

291.          As for the agencies responsible for promoting and protecting women’s rights, in 2000 the Presidential Secretariat for Women was created to promote women’s general development, propose public policies and to ensure that the State’s obligations are fulfilled at the regional level and nationwide, with State institutions and civil society institutions participating in partnership.  The National Agency to Coordinate Prevention of Intrafamilial Violence and Violence against Women was established in 2000.  Other agencies playing an important role include the Office of the Public Defender for Indigenous Women, the National Women’s Office and the Women’s Forum, which provide a space essential for women’s participation.[318]   The Office of the Human Rights Ombudsman also has a unit devoted to defending women’s rights.

292.          With respect to the Office of the Defender for Indigenous Women, the State noted that it has extended the coverage of its services, thanks to the establishment and expansion of its regional offices in the last two years.  As an example of its expanded scope, the State noted that, when this Office began its activities, it had only one indigenous legal adviser to handle all cases or complaints registered and that, thanks to a series of coordinated efforts with private and public universities, it had now brought 20 women of various ethnic origins into the Legal and Social Sciences career, and they have already completed their legal degrees and are now working in the various regional offices of the DEMI.  The Commission appreciates the important function of the Office of the Defender in protecting and promoting women's rights, and in particular in providing legal and social advisory services.  At the same time, the Commission considers that, given the subordinate position of women within Guatemalan society, their limited access to education and to political participation, as well as the high rates of violence against women, these measures are far from sufficient.

293.          However, according to national and international reports, the efficacy of those mechanisms is severely limited by a lack of coordination, a lack of funding for many initiatives, and a lack of means to properly ensure institutional continuity in the design and execution of policy in this sphere.[319]  Women’s organizations have called for an agency endowed with the authority and resources needed to coordinate State policy on the subject of women’s rights, and to assign resources to the existing agencies in an amount sufficient to enable them to discharge their missions.

D.        Violence against women

294.          As recognized in the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará), violence against women is an expression of discrimination based on the historically unequal power relations between women and men.  When it ratified the Convention, the Guatemalan State undertook to act diligently to prevent that form of violence and to respond to it.  In particular, the State has the obligation to investigate acts of violence and to prosecute and punish the guilty parties, whether that violence occurs in the home or is the work of State agents. 

295.          According to recent reports, the incidence of spousal abuse, sexual violence, sexual harassment and abuse, incest and other forms of intrafamilial violence is high.  A study done of complaints of violence against women at three different places found that 63% concerned intrafamilial violence:[320] 39% of the cases were under investigation and 35% had been closed without prosecution; 17% of the complaints were withdrawn, and 5% were resolved in an out-of-court settlement.  The authors of the study concluded that few cases got as far as prosecution and punishment.[321]  Similarly, the statistics from the Office of the Public Prosecutor for Women reveal that more than half the cases denounced over a recent period of time were closed without prosecution and very few ever went to trial.[322]   The State has been advised that the Police continue to be reluctant to intervene on situations involving domestic violence, which means that additional training is needed.[323]

296.          While precise statistics are difficult to obtain, the Commission has received information to the effect that although the number of murders involving female victims has risen, these cases have not been properly investigated nor have the guilty parties been punished.[324]  The statistics on this subject are very inadequate, so that additional efforts must be made to find and publicize accurate statistics on violence against women.

297.          The Law to Prevent, Punish and Eradicate Intrafamilial Violence (Decree 97-96) reflects Guatemala’s obligations under the Convention of Belém do Pará and other relevant instruments of the inter-American and United Nations systems.  In 2000 and 2001, this legal framework was enhanced with the adoption of the rules governing application of the law and the creation of the Agency to Coordinate the Prevention, Punishment and Eradication of Intrafamilial Violence and Violence against Women (CONAPREVI), whose function is to coordinate institutions active in this area.  According to recent reports, those guarantees must be enforced through energetic measures aimed at putting the principles into practice.

1.         Women’s access to the courts in cases involving gender-based violence

298.          On the subject of gender-based violence and discrimination, the Commission is still very concerned about the de facto and de jure obstacles that women encounter when they seek judicial protection of their rights.  The failings of the legal system and of the administration of justice and ignorance of the law have been cited as some of the major impediments to better observance of women’s rights in Guatemala.[325] 

299.          Concerning violence against women, for example, intrafamilial violence has not been criminalized.  Thus, when a women is the victim of violence within the home, the seriousness of the offense is measured by the number of days needed for the physical injuries to heal; the psychological aggression or aggression of other types, even abuse, are not taken into account in the definition of violence against women in regional and national norms.  Nor is the sequence of the attacks.[326]  One deputy prosecutor explained that:

Intrafamilial violence does not constitute a crime; therefore, no case can be brought unless there are physical injuries.  If physical injuries are involved, the length of time needed for the injuries to heal must be determined in order to decide whether or not to prosecute.  However, when a woman shows no signs of injury, nothing can be done.[327] 

300.          Another deputy prosecutor put it as follows:  “Intrafamilial violence has to be handled by the family courts, because family members can settle the matter.”[328]  Civil society institutions have repeatedly called for legal reform on this matter and have introduced bills to those ends.

301.          As to the problems encountered in practice, during its visit in March 2003, the Commission was told time and time again that women who want to report a case of family violence invariably have to contend with the “pendulum effect”: in other words, when a woman turns to the authorities for help, this in itself triggers another episode of violence; the authorities’ reaction comes too little, too late.  Compounding the problem is the fact that poor women have little access to justice, because free legal counsel is unavailable. 

302.          As for other types of violent crimes, including rape, the reports continue to indicate that several essentials are missing:  technical expertise, determination in compiling evidence, and follow-through to prosecution and punishment.[329]  These reports contain criticisms of prosecutors’ failings and mistakes, which they say make the work of judges that much more difficult, cause delays in the administration of justice, and can even result in crimes going unpunished.[330]  Of the 8,989 complaints that the Office of the Public Prosecutor for Women had received by late 2001, only three resulted in convictions.[331]

303.          Apart from the failings of the legal and judicial systems, representatives from the State sector and from civil society point to a number of obstacles of a different type that also prevent women from accessing the courts.  Among these are their sociocultural condition of subordination, their workload within and outside the home, poor education, economic dependency and a lack of access to information about their rights and the resources within the machinery of the State.[332] 

304.          In conclusion, both the law and practice are failing women when it comes to gender-based violence, as both are thwarting the application of effective mechanisms of judicial protection and guarantees.  In some cases, the applicable law does not adequately describe or punish the crimes.  All too often court personnel either do not know or do not understand what the State’s international obligations are as regards women’s rights.  To make matters worse, in cases involving violence inflicted upon women, police and court personnel alike are very prone to avoiding the kind of judicial measures that would necessitate prosecution and punishment of the perpetrators.

E.         Women’s rights in the labor area

305.          Although the number of women active in the job market has increased steadily, they are still being paid much less than their male counterparts for the same work.  Rather than narrowing, the pay gap has become even wider over the last decade.[333]  Whereas in 1989 a woman’s average salary was 87% of a man’s, in 2000 she was earning just 59% of what he earned.  Reports indicate that the disparity between men and women on the pay scale becomes more and more pronounced as the level of education rises.  The figures available indicate an average salary of Q 1,842.77 for a man and Q 1,005.19 for a woman.[334]

306.          During its March 2003 visit, the Commission received updated information from various entities indicating that employers, and even the Government at times, continue to discriminate against women in the assembly industry and the live-in domestic workers sector.[335]   While in principle women working in assembly plants enjoy the same legal protection that men working in those industries enjoy, there are complaints of abuses in the assembly sector in the form of forced overtime, poor working conditions and harassment, combined with a lack of proper inspection and supervision by the Ministry of Labor.  Women working as domestics, for their part, are as a rule denied the minimum rights to which they are entitled, yet Congress has not enacted the reforms that will provide them with equal protection under the law.[336]

307.          A large percentage of women work in the informal sector of the labor market, exposing them to additional perils.  The IACHR has received information from State and non-State sectors about the measures taken to propose reforms to the Labor Code aimed at establishing greater equality between men and women.  However, it has still not received reports of any concrete results.  Even the State’s own representatives say that while the Guatemalan Social Security Institute and the Ministry of Labor are in charge of workers’ social security and occupational health issues, in practice the regulation and application of standards of protection in those areas is a “dead letter”.[337] 

308.          The State has supplied information about certain measures that the Ministry of Labor’s Department for the Promotion of Working Women is taking.  It reports that in 2002, that department provided 252 work inspectors with training in gender equality in labor relations and about the enforcement of the workers’ labor rights.   The State also reported that in mid 2002, that department began to systematize complaints of violations of labor laws that the Office of the Inspector General for Labor had received from women working in the assembly sector.  It said that complaints were filed against an average of 110 companies per month; 38 companies were listed as repeat offenders; others had been investigated and the inspectors had issued their recommendations.  As for the situation of women working as domestics in private households, the State reported that the same department is doing a study on the involvement of children and adolescents in the domestic labor sector, to expose it as one of the worst forms of child labor.  The State also reported on efforts being made to make available information on labor rights and resources, by distributing 25,000 information bulletins at various offices of the Ministry of Labor.  The bulletins give instructions on how to file complaints of human rights violations.  Naturally, there is a strong correlation between the amount of education and advancement in the labor market. As will be discussed in Section F.1, below, women who never attended school or received less than three years of schooling outnumber the men in the same category; women account for an even larger percentage of the illiterate population.  These low levels of education, combined with other factors of exclusion, mean fewer opportunities on the job market.

F.         Disparities in access to essential services

309.          Poverty takes a much harder toll on women in Guatemala.  As the State itself has written: 

social inequality in Guatemala is rooted in history and basically affects vulnerable groups such as the rural population, ethnic groups, women, older persons and children. In this context, it is women that are most affected by discrimination, exclusion and oppression and this situation has had an impact on the social development of Guatemala.[338]

310.          Indigenous women have been especially marginalized and are denied access to such basic services as education and health care, the administration of justice and political participation.  In its work, the Office of the Public Defender for Indigenous Women has pointed out that the indigenous woman is the victim of oppression on three fronts, as she suffers discrimination because she is a woman, because she is indigenous, and because she is poor.[339]  The indigenous woman is still being denied equal access to basic services.   These many types of discrimination stifle her growth and development.

311.          The State reports that its poverty-reduction strategy features not just increased spending on social matters and public infrastructure, but also stepped up efforts to make its public services more efficient and accessible to everyone, equally.[340]  Full application of this strategy continues to be one of the major challenges the State has before it.

1.         Education

312.          Greater access to education, for girls and boys alike, is one priority that is the key that unlocks personal fulfillment and national development. The limitations vis-à-vis access to elementary education –mainly in the form of insufficient funding, poverty and factors related to social exclusion- continue to be a source of serious concern as regards boys and girls alike.  While the “positive correlation between education and earnings is indisputable and universal,”[341] Guatemalan children continue to suffer a pronounced disadvantage in this regard.

313.          The illiteracy rate in Guatemala is high,[342]  but the rate of illiteracy among women is considerably higher than it is among men.  While 76% of adult males have had some years of schooling, only 60% of adult women can say the same.[343]  The illiteracy rate is much higher among indigenous women, reaching no less than 70% in Alta Verapaz and Quiché.[344]  Since 1995 there has been no real increase in the number of girls enrolled in school.  Only one out of every eight girls enrolled in elementary school will finish the sixth grade.[345]  The declared school dropout rate for girls in rural areas is 81.5% and in urban areas 50%.[346]  Only 17 of every 100 girls complete elementary school; in rural areas, 66% drop out of school before completing the third year.[347]   Some 38% of adult women have completed elementary school, and 17% have completed secondary school.  Only 4% have a higher education.[348]

314.          The State has launched a number of initiatives to begin to deal with these disparities, including the girls’ stipend program covering the basic costs of the essentials needed to attend school.  While the program began with only 5,211 girls back in 1996, that figure had climbed to 71,386 by 2001.[349]  Still, this has not been enough to effect a substantial increase in enrollment figures, and the program has had to contend with its own budgetary limitations and the like.  Gender equality has become a component of the educational reform and curriculum transformation process, so that teaching materials and plans are now being geared toward establishing equality between boys and girls.[350]

315.          On this point, the State reported in its observations that the Ministry of Education created a Subcommittee on Gender within the Advisory Committee on Education Reform. The State intends thereby to ensure that gender equity is reflected in school textbooks and in the national school curriculum generally, taking into account intercultural and multicultural aspects as well, and this has been the subject of a full process of dialogue, consultation and consensus building nationwide with the various social sectors.  The ultimate objective of the Reform is to ensure that, through proper education, future generations will turn away from sexist and discriminatory conduct, and help to build a culture of equality and equity.  Similarly, the Ministry of Education has expanded the scholarship program for girls; in 2002 alone, this program benefited 75,000 girls, most of whom were studying in rural areas.

316.          The scope and reach of programs designed to lessen the disparities in access to education will have to be greatly expanded in order to satisfy the unmet need.  The disparities in access to secondary and higher education is another problem that must be corrected, especially to guarantee equal access to all types of curricula, and to technical and professional training.

2.         Access to health care and reproductive health care services

317.          Health policy and health services for women continue to focus on their reproductive functions, at the expense of more comprehensive approaches.[351]  Despite the apparent emphasis on reproductive health care, the maternal mortality rate in Guatemala continues to be described as “alarming”, with 153 deaths for every 100,000 live births,[352]  a figure all the more disturbing because so many of the deaths were preventable.  The reports state that approximately 53% of the deaths are from hemorrhage, 14% from infection, 12% from hypertension, and 10% from abortion-related complications.[353]  

318.          Early pregnancy continues to be a major problem with girls between the ages of 15 and 19.  By age 19, almost 30% have become pregnant.  The fact that this figure has not declined significantly in the last 15 years is indicative of the absence of sex education and the scarcity of family planning services available to young women.[354]  Early pregnancy poses a variety of risks.  Apart from the obvious health risks is the increased risk of unsafe abortions and the interruption of schooling.[355]

319.          Reproductive health plans have undergone major changes.  While they have come up against a variety of obstacles, ranging from sociocultural behavioral idiosyncrasies to functional limitations, reproductive health care is a component of the national health care agenda.  And, as noted in Section B above, the Social Development Act recognizes the right to exercise maternity and paternity, to have access to family planning services and to decide for oneself how many children to have and at what intervals; it also classifies single-parent households as families.

320.          According to the UNDP national report on human development, "Guatemala: Human Development, Women and Health, 2002", gender appears as a conditioning factor of health in many ways: households headed by females tend to spend more on health than those headed by men; women show a greater incidence of disease and accidents, and yet they are less likely to be absent from work for health reasons, which provides another reflection of gender inequality in the labor market; and there is little understanding of family planning techniques, particularly among rural and indigenous women.[356]  In terms of the accessibility of health services, that report indicates that in Guatemala this depends on household income, and that use of public or private health insurance is more common among higher income groups, while the pharmacy has become the primary health provider for the poor,[357] i.e. for the 56.2% of the Guatemalan population living below the poverty line.[358]

321.          In its observations on this report, the State, while recognizing that there are still shortcomings in the quality of services, points to significant advances in terms of broadening the coverage of health services, noting that the Ministry of Health and Social Assistance has committed itself, as part of the national policy on women, to provide equitable, efficient, effective and high quality care with full respect for gender equity and for social and cultural relevance, as part of reforming the sector, with particular attention to the most disadvantaged groups, and giving priority to women and girls of the Mayan, Xinca and Garifuna peoples.  The Ministry of Health, recognizing the national situation, has planned concrete actions relating to women, and has included in its work plans efforts to give effect to the Social Development Policy; the Poverty Reduction Strategy; the Peace Accords; the social matrix within the Government Plan; and the National Women's Policy and its respective plan.

322.          The State has reported, without providing further details, that progress has been made in ensuring women's access to health services through such measures as: the reproductive health program, maternal and neonatal care, training and human resource development for comprehensive care of childhood diseases; a responsible paternity and maternity program, programs to reduce maternal mortality, and programs to provide care to children and adolescents.  As well, it cited food security programs; programs to promote mental health and to combat alcoholism, smoking, drug addiction and family violence; programs for the elderly and disabled; healthcare programs for migrants; programs to prevent sexually transmitted diseases and HIV/AIDS.  As well, the Guatemalan Social Security Institute has implemented programs such as a nutritional supplement for mothers and children, a mothers' helpers program, and reproductive health programs.

323.          Finally, the State provided information on a mixed initiative, led by the Government and women's organizations, to establish the State Platform on Women, the object of which is to ensure that all actions on behalf of women are consolidated into a State policy, and in this way will have continuity and a more direct and broader impact.  The Commission welcomes this initiative which, if it succeeds, should constitute an important tool of coordination among the different players in the sector, to the benefit of Guatemalan women.

G.        Conclusions and recommendations

324.          The anachronistic and unfair gender-based distinctions that some laws still make do not comport with the object and purpose of the positive commitments adopted by the State and must be corrected without delay.  The law must respect and uphold the principles of equality and nondiscrimination.  The recent strategies adopted by the State to tackle the de jure and de facto discrimination against women reveal that sufficient attention and resources must be devoted to the subject to ensure nondiscrimination.  The measures adopted show that additional reforms are both feasible and essential. 

325.          Two more priority challenges must be dealt with in order for the State and civil society to be able to ensure to women the full exercise of their rights.  First, the administration of justice must become a more accessible and effective recourse for the women who turn to it seeking protection of their basic rights.  Second, the necessary policies, programs and services must be established and strengthened so that the provisions adopted to safeguard women’s rights can materialize into concrete measures.

326.          The international and regional communities can play a vital role in supporting the promotion and protection of women’s rights.  That support can be in the form of financing, but it can also be in the form of sharing information and best practices aimed at bringing about positive change.

327.          Based on the foregoing analysis and conclusions, the Commission is recommending that the State:

1.       Take specific measures to introduce the legislative reforms needed to eliminate instances of de jure discrimination such as those previously mentioned, which have been identified at both the international and national levels as being discriminatory.    One example is to mainstream the gender perspective into the design and enforcement of all laws, policies and programs.

2.       Bolster women’s participation and representation in elective positions and elsewhere where decisions are made.

3.       Take additional measures to improve coordination among the State institutions charged with protecting women’s rights and between those institutions and civil society; ensure that adequate material and human resources are assigned to agencies such as the National Women’s Office, the Office of the Public Defender for Indigenous Women and the Presidential Secretariat for Women, which are especially charged with the protection of women’s rights.

4.       Increase the resources earmarked for application of the National Policy on the Promotion and Development of Women and the Equal Opportunity Plan.

5.       Step up efforts to instruct State personnel, in all areas of government, about women’s rights and their corresponding obligations; expand existing personnel training programs, especially for members of the National Civil Police Service and the Public Prosecutor’s Office in charge of receiving complaints.  The goal is to enlighten them about the causes and consequences of gender-based violence so that that they might better and more quickly respond to the victims of such violence.

6.       Devote priority attention to eliminating the de jure and de facto  barriers that obstruct women’s access to effective remedies and means of judicial protection, especially in the area of violence against women; step up efforts to practice due diligence in the investigation, prosecution and punishment of violations of women’s rights.

7.       Invest additional human and material resources in educational plans aimed at informing the public about the causes, characteristics and consequences of gender-based violence, in particular intrafamilial violence, and instruct girls and women about their rights and the resources available to protect them.

8.       Strengthen labor legislation and job inspection services to protect women’s right to fair and equal working conditions and a healthy work environment; guarantee equal pay and benefits and take particular care to safeguard the rights of women and girls working in the domestic services sector.

9.       Reinforce strategies aimed at giving girls access to elementary education, and make the completion of elementary school the minimum standard by, inter alia, expanding the incentives programs offered to induce girls to remain in school.

10.     Take additional measures to provide comprehensive health care services, including family planning services, to protect women’s right to the integrity of their person.