ACCESS TO JUSTICE FOR WOMEN VICTIMS OF VIOLENCE
IN THE AMERICAS

II.       INADEQUACIES IN THE JUDICIAL RESPONSE TO CASES OF VIOLENCE AGAINST WOMEN:  OBSTACLES TO THE FULFILLMENT OF THE OBLIGATION TO PRACTICE DUE DILIGENCE AND COMBAT IMPUNITY

A.     Administration of justice:  inefficacy and impunity in cases involving violence against women

123.          This section examines how the administration of justice system has responded to incidents involving violence against women, using the States’ international obligations as its frame of reference.  The IACHR is mindful of the efforts that States have made to adopt a legal and political framework through which to address gender-based violence, one that features a variety of judicial protective resources and institutions.  However, while the formal existence of the law and policy is one thing, their practicality and effectiveness in remedying acts of violence against women is altogether another.  The IACHR has found that the judicial response to cases involving violence against women is notably deficient and hardly on a par with the severity and incidence of the problem. 

124.          The pattern in a number of countries is one of systematic impunity in the judicial prosecution of and proceedings on cases of violence against women.  This is because the vast majority of these cases are never effectively investigated and punished or proper redress provided.  The impunity that attends these human rights violations perpetuates a social acceptance of gender-based violence, which in turn feeds women’s sense of insecurity and their abiding mistrust of the administration of justice system.  Given these deficiencies, the number of trials and convictions in no way measures up to the severity of the problem.[167]  This challenge and its consequences were consistently cited by the representatives of the States, the administration of justice systems, civil society, academia and women belonging to differing ethnic and racial groups who participated in the present project’s implementation.  It has also been borne out by the information the Commission has received through the various mechanisms of the inter-American system.

125.          The IACHR has also established that violence and discrimination against women are still accepted practices in the American societies, as evidenced by how officials in the administration of justice systems respond to women victims of violence and handle their cases.  The tendency is to regard cases of gender-based violence as domestic disputes that would be better settled without the State’s intervention.

126.          This section highlights gaps, irregularities and deficiencies in the investigation, prosecution, trial and punishment of cases involving violence against women, and in the conduct of judicial officials.  It also examines the obstacles in the way of effective State protection against imminent acts of violence and explores a number of problems that deter women from filing complaints in cases involving acts of violence, above all the inadequate treatment that victims too often receive when they turn to judicial protective institutions.  The report singles out a number of structural problems within the justice systems that have adverse consequences for the prosecution of cases involving violence against women and the proceedings.  The section then examines the special needs of indigenous and Afro-descendant women to effectively turn to the justice system.  

1.         Gaps and irregularities in the investigation of cases involving violence against women

127.          The IACHR notes that a variety of factors conspire to undermine proper investigation of cases involving gender-based violence.  First, the institutions conducting the investigations cause unwarranted delays.  They tend not to regard these cases as priorities and, as a result, are slow to take the necessary steps to move the investigation forward.  The failure to investigate the reported cases is in part a function of discriminatory socio-cultural patterns that discredit women victims and feed the perception that these crimes are not priorities.

128.          Then, too, gaps and irregularities in the investigative procedures per se thwart the prosecution of such cases and the eventual punishment of the crimes committed.  Other deficiencies include the failure to take evidence that is key to ascertaining the identity of the guilty parties; authorities who are neither competent nor impartial in their conduct of the investigations; emphasis on physical evidence and testimony to the exclusion of evidence of other types; the scant credibility attached to the victims’ claims; and the improper treatment of women victims and members of their families when they endeavor to cooperate in the investigation into the facts.  This combination of problems and deficiencies in the investigation of cases of violence perpetrated against women means that in the end, the number of cases that are actually investigated and go to trial pales by comparison to the number of complaints filed. 

129.          The IACHR has established violations of the American Convention and other international instruments caused by unwarranted delays in investigating cases of violence against women, the very kind of case that the Commission’s thematic reports have singled out as a critical problem.  In the Maria da Penha Fernandes case,[168]  the Commission determined that the State had violated articles 8 and 25 of the American Convention and Article 7 of the Convention of Belém do Pará; the investigation of the battering had dragged on for more than 17 years, constituting an unwarranted delay in the administration of justice vis-à-vis these incidents of domestic violence.  The Commission wrote that: 

More than 17 years have elapsed since the launching of the investigation into the attack on the victim Maria da Penha Maia Fernandes and to date, based on the information received, the case against the accused remains open, a final ruling has not been handed down, and remedies have not been provided for the consequences of the attempted murderer of Mrs. Fernandes…  The Commission concludes that the police investigation completed in 1984 provided clear and decisive evidence for concluding the trial and that the proceedings were delayed time and time again by long waits for decisions, acceptance of appeals that were time-barred, and unwarranted delays.  Moreover, in the view of the Commission, the victim/petitioner in this case has fulfilled the requirement related to procedural activity with respect to the Brazilian courts, which is being handled by the Office of the Public Prosecutor and the pertinent courts, with which the victim/complainant has cooperated at all times.  In the view of the Commission therefore, the characteristics of the case, the personal situation of persons involved in the proceedings, the level of complexity, and the procedural action of the interested party cannot explain the unwarranted delay in the administration of justice in this case (…).[169]

130.          The González Pérez Sisters case, the Commission observed at the time, was one of complete impunity since more than six years after the date on which the human rights violations were committed and reported, the State had still not fulfilled its duty to prosecute and punish those responsible and to compensate the victims for the harm and losses that the rapes caused.[170]  The Commission took the opportunity to reaffirm a basic tenet of human rights that is particularly pertinent to investigations into acts of violence against women:  investigations must be conducted by competent and impartial authorities.  When the authorities conducting investigations into these cases are neither trained in nor sensitive to gender-related issues, or fail to cooperate with one another, the investigations are needlessly delayed and matters are overlooked, which in the end is detrimental the case.  The assailants in this case were members of the Army which meant, as the Commission noted, that "the investigation was transferred to the military courts, which clearly ha[d] no competence with respect to the matter and lack[ed] the impartiality necessary to establish the facts in accordance with due process."[171]   During its visits to Mexico and Guatemala, the Women’s Rights Rapporteurship observed that the authorities in charge of investigations into incidents of violence against women were neither competent nor impartial, which considerably foreshortened any possibility that these cases would ever be prosecuted and the guilty parties punished. 

131.          As for the competence of the investigative bodies, during its trip to Guatemala in 2004 and its follow-up visit in 2006, the Rapporteurship learned that the national civil police and the public prosecutor’s office –the two institutions in charge of investigating cases of violence against women- often do not collaborate by sharing information, which only slows investigations into these cases.

132.          In its report on the situation of women’s rights in Ciudad Juárez, Mexico, the IACHR observed gender biases in the conduct of the prosecutors and investigators working cases involving violence against women, biases that demeaned the women victims throughout the investigation process:

(…) almost as soon as the rate of killings began to rise, some of the officials responsible for investigation and prosecution began employing a discourse that in effect blamed the victim for the crime.  According to public statements of certain highly placed officials, the victims wore short skirts, went out dancing, were “easy” or were prostitutes.  Reports document that the response of the relevant officials to the victims’ family members ranged from indifference to hostility.[172]

133.          By the date of the publication of this report, the IACHR has admitted eight petitions in which the petitioners are alleging unwarranted delays in the investigation into murders of women in the area of Ciudad Juárez, Mexico and Guatemala.  Each case alleges that the investigations have dragged on for almost five years, and still no suspect has been identified, much less a guilty party convicted and sentenced.[173]  The Commission’s report on the violence against women in Ciudad Juárez pointed out that the investigations of the killings and other crimes moved slowly and were riddled with irregularities.[174]

134.          The Commission has also learned that incidents of mistreatment of relatives of women victims of violence are on the rise.  Family members are inadequately treated when they attempt to obtain information about or cooperate in the investigation.  The kind of treatment they receive violates their right of access to justice and Articles 1 and 2 of the United Nations Code of Conduct for Law Enforcement Officials.  The United Nations Code of Conduct provides that in the performance of their duties, law enforcement officials "shall respect and protect human dignity and maintain and uphold the human rights of all persons."

135.          The IACHR has also been apprised of two different types of violations that authorities commit when women are reported missing or disappeared:  1) they fail to launch an immediate search for the victim, and 2) they blame the victim for what happened, thereby implying that the missing woman is somehow undeserving of state efforts to locate and protect her.  This type of state response is particularly egregious in the case of minors, and was brought to the Commission’s attention when it processed individual cases having to do with the situation in Ciudad Juarez, Mexico, and Guatemala and during its in loco visits to other countries.

136.          In regards to the gaps and irregularities that affect the investigation of cases of violence against women, the IACHR has confirmed that during the investigation of the vast majority of these cases, key types of evidence to establish the truth are not collected.  On the one hand, the IACHR has identified the absence of physical, scientific and psychological evidence to establish the facts, which can bring a case to a standstill and hinder the prosecution’s ability to make its case.  On the other hand, the IACHR has verified that the majority of evidence-collection efforts related to acts of violence against women focus on physical and testimonial evidence, neglecting other types of evidence that can be crucial to establishing the facts, such as that of a scientific and psychological nature.  The IACHR also observes the lack of protocols to describe the complexity of these cases in regard to evidence and an itemization of the minimum evidence that needs to be gathered to properly substantiate a case.

137.          For example, during the Rapporteurship’s recent follow-up visit to Guatemala, its members met with staff of those units in the Public Prosecutor’s Office that are in charge of investigating various crimes against women, including crimes of intrafamily violence.  The prosecutors observed that in cases of domestic assault, much more weight was attached to evidence of physical injuries.  In its report on the Colombian armed conflict’s impact on women, the IACHR expressed concern over the "chain of custody"[175] in cases involving violence and its exclusive emphasis on preserving physical evidence.

138.          The IACHR has verified that evidence other than physical evidence and testimonies needs to be weighed to prove cases of violence against women, particularly those related to sexual violence.  The Rules of Procedure and Evidence of the International Criminal Court address several factors that can inhibit a victim from physically resisting a sexual aggression, even when the act has not been consented, and how these factors must be


considered within the context of a judicial process.[176]  According to the rules, these factors may include: "force, threat of force, coercion or taking advantage of a coercive environment" which might have undermined the victim’s ability to give "voluntary and genuine" consent.[177]  As the European Court of Human Rights ruled in the case of M.C. v. Bulgaria, certain circumstances might impede the victim from physically resisting sexual abuse, including the environment of coercion created by the assailant.  The result can be an absence of "direct" proof or witnesses of the sexual aggression.[178]  Therefore, medical-legal reports that confine to physical observations, such as determining whether the victim’s hymen was still intact, are only part of a group of evidence that must be evaluated to clarify the facts in a sexual violence crime.[179]

139.          The IACHR has received reports of delays in gathering evidence in the wake of an assault, which poses critical challenges to collecting adequate testimony and expert evidence.  The IACHR has also been informed that evidence provided by victims or their relatives is not introduced into the overall body of evidence in cases involving women victims of violence.  Another frequent complaint was that States refuse to provide information on an investigation’s progress.  Additionally, a partialized gathering and processing of evidence as well as the absence of skilled personnel to conduct the required processes has been registered.

140.          For instance, a telling example involving El Salvador was brought up during one of the Rapporteurship’s working meetings, where the findings of a study conducted by the nongovernmental organization Las Dignas were introduced.  The study concluded that the vast majority of investigations into sex offenses are not scientific in nature and protocols and methods for investigation of these crimes are lacking.[180]

141.          Overall, justice systems do not adequately protect women victims’ dignity and privacy during the investigation process.  These women end up being re-victimized by the lack of sensitivity to their plight, their sex, and the seriousness of the facts alleged.  During the working meetings that the Rapporteurship organized, an example from Nicaragua was brought up where it was noted that in Nicaragua, the authority who receives the original complaint –generally the police- asks the victim to undergo examination by the Institute of Legal Medicine and a psychologist so that they can use their expert opinions as evidence.  In general, however, these people are discredited by the assailant, who orders that a battery of other tests be taken.[181]  In Honduras, a research study describes the problem as follows:

The double victimization of women who file complaints for sex offenses is obvious from the moment the complaint is first filed with the authorities.  As a rule, no physical space is set aside where such complaints can be filed in a manner that guarantees the complainant’s privacy and security.   Most such statements have to be made in open areas where the curiosity and staring of individuals unrelated to the investigation compound the complainant’s sense of vulnerability.  It is utterly incomprehensible why a statement or testimony should have to be given six times over in the presence of various actors who, although members of differing institutions, are nonetheless part of the same criminal justice system.[182]

142.          Then, too, the establishments where victims receive support and assistance are not always able to guarantee their privacy.  Victims may have to wait long periods before being attended.  Victims are questioned in public by multiple officials, including one or two police officers, a prosecutor, a forensic physician, a clerk, a judge, a defense attorney.  Yet throughout all this they are never informed of the judicial process in general.

143.          Problems of this kind are examined in a research study done by the Observatory for a Violence-Free Life in Ecuador [Observatorio para Una Vida Libre de Violencia en el Ecuador], with support from the Consejo Nacional de Mujeres and the Fondo de Justicia y Sociedad (Fundación ESQUEL-USAID).[183]  The study followed 50 cases of sex offenses and intrafamily violence in five communities in Ecuador.  One of the chief findings was that many women victims feel mistreated by the administration of justice system.  When they file their complaints, they then have to undergo a number of invasive examinations and repeat their testimony over and over again.  Most cases of intrafamily violence and sexual abuse occur in private and leave no physical evidence, with the result that the case rests solely on the word of the victim against that of her assailant.  In such cases, the justice system is more inclined to believe the assailant.  The forensic medical examinations are not always helpful in establishing the facts because those who perform them are not trained in cases involving violence against women and the findings may simply be a physician’s subjective interpretation.

144.          The Commission has observed principles applicable to the prosecution of cases of violence against women, which grant prosecutors considerable latitude in deciding which crimes they will seek indictments for and which they will not.  This latitude can result in the influence of discriminatory socio-cultural patterns in a prosecutor’s decision of which crimes to investigate. The Commission examined this problem in its report on the impact of the Colombian armed conflict on women.  There, a number of sources, including the Ombudswoman for Children, Women and the Family, communicated to the Rapporteurship its concern over the incorrect application of the principle of opportunity, whereby in cases involving violence against women, prosecutors have the authority to decide which cases they will investigate and seek indictments for and which they will not, and for which crimes.[184]  Given so much latitude on occasion, a prosecutor’s personal beliefs and attitudes can play a pivotal role in the decision he or she makes. 

145.          The incorrect application by the prosecutor’s offices of the principle of opportunity in some countries does not take into account the vulnerability or defenselessness of women victims of violence.  Nor does it consider the fact that women who are raped or subjected to other forms of violence may feel compelled to remain silent because they fear their assailant’s reprisals and/or community ostracism.  This situation and the dangers posed by allowing prosecutors this degree of discretion were mentioned by the experts at the working meetings organized by the Rapporteurship, during the discussions on Paraguay[185] and Guatemala.[186]  A research study on Chile’s criminal justice system and the handling of cases involving gender-based violence describes the problem as follows:

Prosecutors appear to seek indictments only in those cases where they feel certain that a conviction can be won.  In determining whether a case can be won, prosecutors tend to look more at the strength of the evidence in a case, and less at the seriousness of the facts under investigation. These are dubious criteria since, for example, sex-related criminal cases are, by nature, not cases where victory is a certainty.  Because of the emphasis placed on the certainty of victory, the criminal justice system has not done enough to solve crimes of this type, which are, by nature, different from other crimes.[187]

146.          Research on the situation in Chile, Honduras, Ecuador and Guatemala found that the percentage of sex offenses that go to trial is extremely small in these countries. The reasons cited include the inefficacy of the investigations conducted by the public prosecutor’s office and the tendency to take to trial only those cases in which the evidence is considered to be sufficient to win a conviction.[188]  One persistent problem cited is the fact that the public prosecutor’s offices solely rely on evidence like medical reports of physical injuries and the testimony of witnesses, without efficiently compiling "evidence that can be used to prove and reconstruct the crime."  Very little protection is provided to victims and witnesses during the proceedings.  A research study conducted in Bolivia on discrimination against women within the administration of justice system found that prosecutors tend to associate sexual violence with physical violence, thereby downplaying the severity of a sexual assault.[189]

2.         Flaws in the prosecution and punishment of cases involving violence against women

147.          The problems with the investigation of cases involving violence against women are further compounded by the inefficacy of the criminal justice systems in prosecuting and punishing such cases.  The Commission has found that certain discriminatory socio-cultural patterns influence the conduct of officials at all levels of the judicial branch, with the result that even today, the very few cases that actually go to trial and end in convictions are in no way reflective of the number of complaints filed and the prevalence of the problem.  The Commission’s work has found that violence and discrimination against women are still condoned in society in this hemisphere, as evidenced by the way in which officials in the administration of justice system respond to women victims of violence and treat their cases.  Even today, the tendency is to regard cases involving violence against women as private, domestic disputes, low priorities, and areas into which the State should not intrude. 

148.          The following statements made during the Rapporteurship’s working meetings capture the view of the majority of experts consulted during this project as to the systemic barrier that culture represents when women in their countries file complaints of violence:

The patriarchal culture helps shape the mentality of many of our peoples.  Violence against women is in fact a symptom, but not the disease.  Women will not have equal access to justice and violence against women will not be eliminated until a new mentality is cultivated, one that regards women as equals and not inferiors.  The mindset today is the root cause of violence against women.[190]

The changes made thus far are for the good, but we have not yet transformed society.[191]

149.          In its cases, the Commission has recognized the presence of this cultural problem and how it impacts the conduct of judicial officials.  Accordingly, the Commission has reminded the States of their obligation to address it adequately.  As noted earlier, in the Maria da Penha Fernandes case,[192] the IACHR applied the Convention of Belém do Pará and found that, in addition to the violations in the individual case, there existed in Brazil a pattern of discrimination evidenced by the condoning of domestic violence against women, with the result that the judicial branch was ineffective in prosecuting and punishing such cases.  The Commission underscored that the State’s due diligence obligation involved more than a duty to prosecute and convict; it also involved a duty to "prevent these degrading practices."[193] 

150.          Under item 7 of the questionnaire[194] that the IACHR sent to the States concerning gender-based violence and discrimination, the States were asked what were their greatest accomplishments and challenges in implementing laws and public policies to prevent, punish and eradicate discrimination and violence against women.  In their responses, a number of States pointed to the cultural problem as one of the challenges that influenced the conduct of State officials, and described it as follows:

The cultural and silent acceptance of male domination.[195]

The most entrenched obstacle to the prevention, protection and punishment of violence against women is the persistence of sexist imaginaries that are highly tolerant of violence against women.[196]

Traditional stereotypes, attitudes and expectations of society continue to pose challenges.[197]

Maintaining training and refresher courses for police and court personnel to eradicate the sexist practices that encumber the exercise of the right to justice in the case of women victims of violence.[198]

A major challenge that OVW [Office of Violence against Women] faces is one of perception.  Historically, the criminal justice system treated domestic violence as a private, family matter.  Only in the past two decades has spousal and partner violence been acknowledged as a crime requiring the full force and attention of the criminal justice system (…) Another challenge that OVW faces is addressing the cycle of violence.  Many states are beginning to recognize the impact of domestic violence on children.  Numerous studies have noted the impact that witnessing domestic violence has on children.  These studies indicate that children who are exposed to domestic violence often exhibit higher levels of behavioral, social and emotional problems that children who have not witnessed such violence.[199]

Implementation of the following measures is critical to the prevention, punishment and eradication of violence and discrimination against women: (…) e) permanently rooting out discriminatory concepts and values in the law; in the case of sex offenses, examples might include such concepts as chastity, honesty, or the possibility of circumventing criminal punishment if the offender marries the victim; f) training those who work in the justice system (those attached to the public prosecutor’s office, police, forensic physicians, public servants and technicians) to be respectful of women’s human rights and sensitive to the gender perspective; g) including the gender perspective in children’s early education, and promoting the creation of public policies free of gender stereotypes and sexism (…) Domestic violence is legitimized and endures in large part because of the cultural practices underlying gender relations, which are commonly based on “myths, stereotypes of inferiority, male dominance, women’s submission and control of women by men.”[200]

The fact is that in our country, the law is changing faster than socio-cultural gender patterns in Peruvian families.  In effect, these patterns, which have become beliefs, myths and prejudices, continue to influence the way in which the male and female identities are shaped, with each sex having its own roles but unequal status.  These factors become obstacles to democratic relations within families and cut short women’s progress at every stage in life.[201] 

Challenges include the cultural beliefs, the religious education about the roles of men and women, the ambivalence of victims of abuse to seek redress and lack of financial and human resources.[202]

Challenges include cultural beliefs that perpetuate gender stereotyping that sometimes results in violence and discrimination against women.[203]

151.          Other influences include a set of socio-cultural values and ideas that are premised on women’s inferiority by virtue of their biological differences and reproductive capacity.  These influences, too, are detrimental to the prosecution of women’s cases within the justice systems and contribute to the perception that discrimination and violence against women are private affairs and low priorities.[204]  These discriminatory socio-cultural patterns influence the behavior of attorneys, prosecutors, judges and other officials in the administration of justice system in general, and the police.  They have a negative effect on the judicialization of these cases and effective enforcement of court orders.  They are also one of the reasons why so few convictions are won in cases involving violence against women.  The Convention of Belém do Pará and the CEDAW have underscored the link between violence against women and discrimination, and the way in which certain stereotypes and social and cultural practices that are premised on women’s inferiority to men can have a negative influence on the conduct of public officials.[205]

152.          Experts and magistrates from the region have described the problem of gender-based discrimination in court proceedings as follows:

Most representatives of the governments of the region, the NGOs and regional and country-specific studies agree with this assertion and that the great majority of the problems with enforcement of domestic violence laws and with prosecution of the most serious cases can be traced to the patriarchal beliefs and values of the responsible authorities:  beliefs and values –recognized or not, conscious or not- such as: domestic violence is a private matter; the family should always stay together, if a woman is mistreated or abused, she asked for it, and so on.[206]

The obvious trend toward enacting laws intended to eliminate discrimination and protect the basic rights of all persons is not matched by a similar trend in the judiciary, where the decisions delivered tend to be based on moral and religious systems that put form over substance and where laws are interpreted narrowly, feeding the roots of discrimination and inequity in the region.[207]

153.          Research studies that the justice systems themselves have conducted at the national level have also described and analyzed this very problem.  One such study, on the justice system in Bolivia, was ordered by the justices on Bolivia’s Supreme Court[208]  and found that discrimination against women permeated everything that judges, attorneys and litigants do –both men and women in different areas.  This is particularly true in cases of intrafamily violence and sexual violence.[209]  The research found that:

The percentages of gender bias encountered are significant and are a function of the discriminatory laws in force and the androcentric culture expressed by judges, attorneys and litigants –male and female alike.  They all assume that the superiority of men is the natural order of things and that it is natural for men to be violent, thus legitimizing male violence.  This thinking is not confined to the private realm; it is pervasive in the public-professional realm as well, and manifests itself in the attitudes and the reasoning in judicial decisions that weigh the conduct of men and the conduct of women differently.  It is also present in the factual and legal arguments used by attorneys and litigants, male and female alike.[210]

154.          The research conducted in Bolivia also found that gender-based discrimination was a factor in 100% of rape cases, that the cases are tried on the basis of moral considerations and social mores rather than protection of the victim’s human rights.  It also found that property-related and economic crimes committed against women have more priority than violence cases.  A research study ordered by Paraguay’s Supreme Court[211] found varying degrees of discrimination in the prosecution of cases of violence against women, particularly on the part of male and female prosecutors and examining magistrates, who are not sensitive enough to complaints filed by women victims of domestic violence:

The mediation of the judge –male or female- is of fundamental importance for proper application of the law.  The frustration felt by the victims of domestic violence interviewed was obvious as they recounted the insensitivity with which the magistrates received their complaints.  Their sense of frustration and disappointment increases when the judge –whether male or female- refuses to hear or receive their complaint or when they are asked the wrong questions or no questions at all.  Although no one ever said so, this may be one of the reasons why women so frequently give up on their own cases.  For a victimized woman to even file a complaint, she has often had to overcome circumstances that outsiders who do not feel her pain cannot even imagine, which is why it is so important that women receive qualified, patient, direct and respectful assistance and guidance from the judge.  In the end, the judge’s authority to weigh the credibility of the complaint relies entirely on his or her mediation skills.[212]

155.          The influence exerted by discriminatory socio-cultural patterns may cause a victim’s credibility to be questioned in cases involving violence, or lead to a tacit assumption that she is somehow to blame for what happened, whether because of her manner of dress, her occupation, her sexual conduct, relationship or kinship to the assailant and so on.  The result is that prosecutors, police and judges fail to take action on complaints of violence.  These biased discriminatory patterns can also exert a negative influence on the investigation of such cases and the subsequent weighing of the evidence, where stereotypes about how women should conduct themselves in interpersonal relations can become a factor.[213]

156.          In its report on the situation in Ciudad Juárez, the Rapporteurship described how these socio-cultural patterns can be at work in judicial and police proceedings.[214]  The report observed that at around the time that the murder rate began to climb, some of the officials in charge of the murder investigations and prosecution of the perpetrators began to use the language of ‘blame the victim’.  The report found "a notorious practice on the part of officials of discrediting the victims -- by pointing to the length of their skirts, or that they went out at night, or even that they were ‘easy’ or prostitutes."[215]  The reaction of the authorities to the victims’ relatives reportedly ranged from indifference to hostility. The Commission has admitted six cases alleging attitudes of this type on the part of judicial authorities vis-à-vis alleged women victims of violence.[216]

157.          Through the individual petitions filed with the inter-American system, the IACHR’s thematic hearings and research on the issue, the IACHR has learned that the interpretation of evidence in cases involving violence against women can be biased.[217]  For example, in its decision on the Maria da Penha Fernandes case, the Commission describes the acceptance of domestic violence by state officials and the negative impact it had on this case.  During the legal proceedings they failed to take into account the unmistakable and resounding proof that the police investigation had uncovered, thereby unnecessarily delaying the assailant’s punishment.[218] 

158.          The IACHR has also learned of a number of assumptions and criteria influenced by personal beliefs that prosecutors use to determine whether the evidence in a case involving violence against a woman is sufficient to serve as the basis of an investigation.  The use of these assumptions and criteria has a discriminatory impact on women.  For example, on the occasion of the working meetings organized by the Rapporteurship, a number of experts voiced concern over what little credibility prosecutors and representatives of the public prosecutor’s office give to women victims in cases involving gender-based violence.  They assume that if a complainant withdraws a complaint, she was not credible. The IACHR observes that conclusions of this type reflect an ignorance of the reasons why a victim may decide not to pursue cases of this type, which include social stigmatization, her economic dependence, and her fear of reprisals.[219]  The research studies done in Chile and Honduras feature examples that illustrate the problem: 

The factors that may explain why so few cases go to trial are, in part at least, a mishandling of the characteristics peculiar to investigations of sex offenses in general, and the characteristics of the victims of those crimes, especially when the time comes to evaluate their credibility.  Axial, for example, is illustrative of the situation that occurred in the case of two girls under the age of 12, who were sexually assaulted by their father over a number of years.  The reports produced by the SML (Legal Medicine Service) found clear evidence of sexual activity.  The psychiatric reports indicated sexual abuse and all the statements with professionals from the Victims Unit indicated that the violence was severe.  The accused was held in preventive custody for a long period of time.  As the months passed, however, and the loss of his earning power began to be felt, the girls retracted their statements in the CAVAS.  The prosecution decided not to take the case to trial and terminated it invoking its “authority not to pursue a case.”   The thinking was that the girls were lying and could not stand up under questioning at trial.  The Victims Unit thought differently. It believed that the case should go to trial without the girls, because there was sufficient expert evidence.[220]

One of the problems cited by the prosecutors interviewed in Tegucigalpa was pursuing cases that complainants have already “abandoned”; this ties in with a number of factors, among them the economic means to mobilize and move the individual and witnesses, intimidation or threats on the part of the accused, or the use of extrajudicial avenues to settle the family dispute, such as mediation before other bodies.  Our view is that such cases should not be considered abandoned, since the problems with the system in terms of double victimization and the difficulties of getting a court hearing at no cost and on an equal footing, are more often the reasons why a victim is unable to see her case through to the end.[221]

159.          During the working meetings, the Rapporteurship was informed of phrases and concepts used by judges presiding over trials involving cases of violence against women, indicative of a bias in the prosecution of these cases in favor of the assailant.  At a meeting of experts that the IACHR organized on Central America, one representative of Costa Rica’s Office of the Ombudsperson for Women introduced, by way of example, a documented case in which a woman filed a rape complaint and the judge’s finding was that "the only victims in this case were the sexual assailants, who did not know that they were assaulting a woman with mental problems."[222]  Interviews conducted by the United Nations Latin American Institute for the Prevention of Crime and the Treatment of Offenders (hereinafter "ILANUD") as part of its projects to get the gender perspective into the administration of justice found that women judges may be fearful of ruling in favor of aggrieved women, so as to avoid being accused of being "feminist" or having to face up to the abuses that they themselves are suffering.[223]  By the same token, male judges are fearful of appearing effeminate or less manly.[224]

160.          For a study done in Ecuador on how cases involving women’s rights are handled in the criminal justice system, interviews were conducted with the persons in charge of running legal services and the attorneys working for those services on how judges weigh evidence.  The study found that: "Judges do not attach the same importance to sex offenses or intrafamily crimes that they attach to other types of crime, like drug or murder cases.  They don’t treat them the same."[225]  One of the attorneys interviewed said the following:

Age, without a doubt.  We had an experience with one judge who was reputedly “super-sensitized…. But some years ago this very same judge dismissed a rape case on the grounds that the victim had consented, when in fact the victim was a deaf mute child and was 12 years old at the time.  So, yes, there are culturally-charged biases.[226]

161.          Among the dangers and threats that have been troubling for the IACHR is the fact that various judicial bodies are encouraging the use of conciliation during the investigative process, as one means of solving crimes of violence against women, especially in cases of domestic violence.[227]  Yet it is internationally recognized that conciliation and mediation is inadvisable in such cases.[228]  Many experts and international organizations have underscored the dangers of using conciliation as a means of settling cases of violence, especially domestic violence.[229]  They have pointed out that by allowing a crime of this type to be settled by conciliation, the crime becomes a subject of negotiation and transaction between the victim and her assailant.  Conciliation is premised on the notion that the parties at the table are operating from equal bargaining positions, which is generally not true in cases of intrafamily violence.  In a number of countries it has become clear that the agreements reached in the framework of mediation compound the physical and emotional risks for women given the unequal power relationship between the victim and her assailant.[230]  As a rule, the assailant does not honor the agreement and the agreement itself does not address the causes and consequences of the violence.[231]

162.          The judicial culture is in need of the kind of sustainable reform that will enable women to obtain de jure and de facto access to justice.  Training programs for public officials, members of the judiciary, the police and community agents need to be created and strengthened. And despite the proliferation in training programs targeted at officials in the administration of justice system and the police,[232] the IACHR has noted that the impact of these programs has been uneven.  Many have not had a sustainable impact, as they have not become established institutions or do not boast accountability mechanisms, both factors needed to effect meaningful change.  The major challenges for these programs’ impact have been described as follows:

Training programs targeted at police, judges and officers of the court have in practice shown their enormous limitations and limited effectiveness, as they have not been matched by organizational, budgetary, normative changes, monitoring and evaluation mechanisms that guarantee that the implementation of these programs will not hinge solely on the determination of individuals and that they will become institutionalized in ways that bring about substantive changes in practices and genuine cultural transformations.[233]

163.          In order to result in sustainable changes, the IACHR highlights that these programs should be vested with the needed mechanisms to guarantee their institutionalization and efficacy.  States have to take steps to sanction public officials who violate women’s rights during criminal proceedings.  The public needs to be educated from an early and formative age of the problem of violence against women to prevent the creation of stereotypes that relegate women to a subordinate position.

164.          It is just as critical to strengthen policies to prevent the abuses and the various forms of violence that state authorities perpetrate against women during judicial proceedings, as an express and immediate obligation articulated in Article 7 of the Convention of Belém do Pará.  Thus far, most prevention policies at the state level focus on public awareness campaigns and outreach programs to disseminate information to the general public about violence and discrimination against women as separate problems.  To be effective, prevention strategies need to address the risk factors at the family and social levels that foster in judicial personnel a tolerance for violence against women.  The direction that prevention strategies must take has been described as follows:

Prevention strategies need to be geared toward reducing the risk factors and increasing the protective factors.  The risks include structural factors like job instability, poverty or massive migration triggered by economic crises in regions or countries and requiring global intervention with medium-term results; social factors like isolation or lack of networks; family factors such as the background of family violence that each partner brings to a marriage; or individual factors such as drug or alcohol abuse, aggressiveness or cultural values that legitimize the use of violence and abuse of power.[234]

165.          By the same token, the IACHR is troubled by the fact that the focal point of existing prevention campaigns continues to be domestic violence, to the exclusion of other forms of violence that occur in other realms.  Prevention policies have to take all forms of violence against women into account and the context in which that violence occurs, in keeping with the Convention of Belém do Pará and other international human rights instruments. 

3.         Ineffectiveness of preventive mechanisms in protecting women from violence

166.          On the matter of prevention and protection, the IACHR has found that state authorities –the police in particular- are not fully complying with their duty to protect women victims of violence against imminent threats.  The most serious problems are with enforcement and follow-up of restraining orders or other preventive measures ordered.  The situation is particularly severe in the case of intrafamily violence.  The inaction on the part of State authorities is in part explained by their tendency to disbelieve the allegations made by women victims of violence and their perception of intrafamily violence as a private and low-priority affair.  In many cases, women have been killed even after seeking the State’s preventive protection; in some cases, restraining orders were issued to protect women but then not properly enforced or monitored. 

167.          The United Nations Special Rapporteur on violence against women, its causes and consequences (hereinafter "United Nations Rapporteur on violence against women") has recently expressed concern over the conduct of police and their failure to intervene to prevent acts of violence and implement protective orders, and has ranked this among the chief obstacles to the practice of due diligence at the global level.[235]  This kind of behavior fosters impunity and because of it crimes of this kind go on and are repeated over and over again.  Conduct of this kind is a breach of the States’ obligation to practice due diligence to prevent violence against women.  When a restraining order is not enforced, a woman can continue suffering acts of violence that can result in a homicide against her and her children.  Frequently, when restraining orders are not enforced, a woman repeatedly suffers violence, which can result in homicide against her and her children.  As previously stated, the duty of the States to practice due diligence applies to State and non-State actors alike, and is particularly critical in cases where the States know that acts of violence are a real and immediate threat. 

168.          As for the specific conduct of the police, various research studies have found that the police do not regard the problem of violence against women as a priority among criminal offenses and tend not to believe the victims when they report threats of imminent violence, even when specialized units have been established and a number of training programs introduced to make police more sensitive to gender issues:

The police need more training because they sometimes think that domestic problems should be settled at home.  They say things like “they’ll settle this at home.”  What they don’t see is that the problem has already gone public…[236]

Some police officers interviewed also underscored these considerations, saying that “If a woman leaves a party at three in the morning with three men and she tells you that they raped her, can she be believed?  Many women file complaints as a cover-up for infidelity.”[237]

169.          A United Nations Development Fund for Women (hereinafter "UNIFEM") and ECLAC-sponsored research study on the English-speaking countries of the Caribbean and presented during the working meeting organized by the Rapporteurship, found that police authority was rarely used to ensure implementation of the law, particularly in cases of incest and child abuse.[238]  The study also makes the point that patriarchal norms about the privacy of family affairs persist and are accepted among police officers.  Through the American Civil Liberties Union (ACLU), which works to advance and promote civil rights, the IACHR has learned of incidents where the police in a number of states in the United States do not enforce restraining orders and do not take action even when the victims ask that these orders be enforced.[239]

170.          The IACHR has also been informed that States frequently take the position that victims are themselves responsible for monitoring the preventive measures, which leaves them utterly defenseless and in danger of becoming the victim of the assailant’s reprisals, even when these women victims were diligent in exercising their right to file a complaint about the failure to enforce the measure.  For example, the Commission is disturbed by the fact that on the follow-up visit made to Guatemala in 2006, representatives of the Public Prosecutor’s Office expressed the view that the beneficiary of the precautionary or preventive measures is responsible for ensuring their effectiveness when family-court judges and magistrates do not effectively monitor their enforcement and police fail to act.  Then, too, on the visit made to Guatemala in 2004, the Rapporteurship received information on two cases in which the murdered women had restraining orders on their person at the time they were killed; it was also told that 31% of the women murdered had been threatened beforehand.

171.          Judges and prosecutors weigh certain factors when issuing and following up on restraining orders and other precautionary measures.  Unfortunately, little if any consideration is given to the risk to the victim; much more consideration is given to the impact that the order will have on the aggressor.  For example, one research study conducted in Chile on the behavior of judges when ordering precautionary measures found that in the case of sex offenses, the criterion used is the danger the aggressor poses to society but not the safety of the victim.[240]  The Commission has also been informed of difficulties with the enforcement of protective measures ordered caused by delays on the part of those operating the justice system or a lack of coordination between police and the public prosecutor’s office.[241]

4.         Barriers which victims encounter when seeking judicial protection

172.          Particularly disturbing to the Commission is the fact that women victims of violence tend not to turn to the justice system for protection and are chronically mistrustful of the justice system’s ability to solve their problems.  These attitudes can in part be attributed to the re-victimization that women experience when they attempt to report what they have suffered; the lack of protections and judicial guarantees to safeguard their dignity, security and privacy and that of the witnesses during a case; the financial cost of judicial proceedings and the geographic location of judicial bodies that take complaints.  The Commission is also troubled by the lack of information available to women victims and their family members about how to access the justice system to seek protection and prosecution of their cases.

173.          Research studies done in four countries in the region - Chile, Guatemala, Honduras and Ecuador - identify reasons why the justice system is so little used in cases of violence against women:

The four studies found that the complaints the system receives represent only a small percentage of the acts of violence (physical or sexual) committed against women in each country.  The nature of these crimes, the social attitudes about them, the way in which the authorities react to these cases, the environment in which the complaints have to be filed, the criteria for selecting which cases will be prosecuted, the manner in which the technical examinations are conducted, the fact that women victims have no one to serve as “advocates” to provide them with support, the difficulties encountered in accessing institutions, the victims’ vulnerability within the system, the little response they receive, the duration of the cases, and so on, are just some of the factors that explain this figure, which we believe is higher than the same figure for other crimes.[242]

174.          Salient among the factors that influence the way in which the judicial authorities treat women victims of violence is the acceptance and socialization of violence and discrimination against women as normal behaviors within the social structure, and the belief that the problem of violence against women is essentially a private matter. 

175.          During its in loco visits, one of the most serious problems that the Rapporteurship encountered was the treatment that women victims of violence receive when they attempt to avail themselves of judicial remedies.  During its visit to Colombia, the Rapporteurship was told that women victims of violence are fearful of being re-victimized by the justice system and are suspicious of the justice system’s ability to investigate, punish and redress what Colombian women have endured as a result of the armed conflict. [243]  Other factors that make Colombian women reluctant to report acts of violence is their fear of being socially stigmatized by making the crime public and their unfamiliarity with the judicial recourses available to them.[244]

176.          During its visit to Guatemala, the Rapporteurship took testimony to the effect that in many cases, the various authorities charged with investigating and prosecuting crimes of violence committed against women, have been disrespectful to the relatives of the victims, revealing the way in which discriminatory stereotypes operate in practice.  The Rapporteurship described the situation as follows:

These attitudes range from a lack of sensitivity to the situation of the person concerned to openly hostile and discriminatory attitudes that devalue the person. They may, for example, blame the victim and her family for they way they live, the clothes they wear, or the time they spend outside their home; further, the definition of many of these crimes as “crimes of passion” without due investigation reflects a pattern of discrimination. This lack of respect for the dignity of the victims or their families has the effect of “re-victimizing” them.[245]

177.          In its report on the situation of violence against women in Ciudad Juárez, the Rapporteurship pointed out that when victims’ family members tried to get information on cases, the response of the authorities ranged from indifference to hostility.[246]  The IACHR has admitted eight cases involving this all-too-common behavior.  These cases also allege that the authorities demeaned the victims and mistreated members of their families when they asked state authorities for information on the progress made in the investigations or tried to cooperate with them.[247] 

178.          A study on gender discrimination in the administration of justice in Bolivia found that women no longer turn to the justice system for a variety of reasons, including the lack of identification papers, a preconceived notion that it must be costly to work through the judicial system, the time they need to invest to go through with proceedings, fear of losing the case and the possibility of reprisals on the part of the aggressor.  They also believe that the administration of justice is politicized and can be bought.[248]  During the subregional meetings organized by the IACHR, it was clear that the lack of identification papers severely limits victims’ access to the judicial system,[249] and is particularly problematic for migrant women.[250]  To address these problems, more support and assistance options have to be available to victims during the processing of cases involving violence against women.  They also need other advocacy options during court proceedings.  All this in order to enable women to use the judicial system to report acts of violence and be treated respectfully by state authorities.[251]

179.          In the past, the Commission has observed that women victims of violence may be disinclined to turn to the courts to seek justice because they fear being ostracized in their communities and feel a sense of shame when reporting the facts.  For example, one of the critical factors in the Commission’s decision in the case of Raquel Martín Mejía[252] was the fact that she, her family and her community would have been impacted had she turned to the courts to redress the human rights violations she suffered.  The victim told the Commission that when she tried to file a complaint with the Oxapampa police concerning her husband’s kidnapping and murder, she could not bring herself to report the fact that she herself had been raped because:

As she states in her testimony, after having been raped she "was in a state of shock, sitting there alone in her room".  She was in no hurry to file the appropriate complaint for fear of suffering "public ostracism".  "The victims of sexual abuse do not report the matter because they feel humiliated.  In addition, no woman wants to publicly announce that she has been raped.  She does not know how her husband will react.  [Moreover], the integrity of the family is at stake, the children might feel humiliated if they know what has happened to their mother."[253]

180.          Given this situation, campaigns are needed to make the general public aware of the seriousness of these crimes and to encourage women to report them.
 

5.       Structural problems within the justice systems that affect the prosecution of cases involving violence against women

181.          The IACHR has identified a number of structural problems within the justice systems that impair the prosecution of cases involving violence against women and other human rights violations.  Examples include the absence of institutions for the administration of justice in rural, poor and marginalized areas; the lack of court-appointed attorneys for victims of violence who are indigent; the lack of human and financial resources with which to address the persistent and structural problems; the institutional failings of the public prosecutors offices and the police who investigate the crimes; and the lack of specialized units within the public prosecutors offices, the police and the courts and with the technical skills and specialized expertise required for such cases.  Yet another important obstacle is that the data systems needed to compile statistics on incidents and cases of violence against women are scarce and are not coordinated with each other.  Data systems are essential in order to be able to analyze possible causes and trends and to evaluate the response of the justice system to acts of violence against women.

182.          The judicial presence and state advocacy services available to women victims nationwide is inadequate, which means that victims have to draw on their own economic and logistical resources to file a complaint and then participate in judicial proceedings.  Therefore, the IACHR highlights the importance of community resources such as justices of the peace and community ombudspersons and that these have mechanisms and resources to provide basic services to women victims of violence in rural, marginal and poor areas, as well as information on legal procedures, support with administrative procedures, and legal assistance to victims in judicial proceedings.[254] 

183.          The IACHR has learned that the number of institutions competent to receive complaints of violence against women has increased markedly, yet there is no cooperation among them, which creates confusion and makes it more financially difficult for women victims to pursue their cases.  States are making efforts to reverse this trend,[255] but those efforts still fall short of what women victims of violence need. 

184.          Women of means have far greater access to the justice system than do economically disadvantaged women.  In their replies to the questionnaire, some States said that pro bono legal services were being provided to victims.[256]  The IACHR, however, notes that given the severity and prevalence of the problem of violence against women, recognized as being one of the priority challenges, more pro bono legal services are needed.  At the present time, it is difficult to determine whether these programs are in fact answering the victims’ needs.

185.          In general, the IACHR notes shortages in human, financial and technical resources that seriously affect the investigation, prosecution and punishment of cases of violence against women.  The Commission has received information about the excessive workload that all the institutions involved are carrying, the inadequate budgets, the lack of equipment and human resources needed to conduct a thorough investigation and prosecution, including personnel specialized in the area of violence against women.  The public prosecutors offices, the police and the courts have neither the economic nor human resources essential to conducting effective investigations and prosecuting the cases through to the sentencing phase.  This problem is particularly acute in rural, marginal and poor areas.  For example, during the Rapporteur’s visit to Guatemala in 2004, the IACHR described the institutional weaknesses in the following terms:

Amongst the weaknesses, the authorities themselves point out that they have inadequate resources in terms of staff, infrastructure, equipment, and budget, for carrying out their work of investigating and prosecuting crime. The investigation and trials are based almost entirely on testimony; there is a blatant lack of physical or scientific evidence. The men and women who run the justice system confirm that many cases get no further than the investigation stage because of the lack of proof, and in those cases that do get as far as trial, the lack of physical or scientific evidence with which to corroborate the statements, throws the reliability of the process into question.[257] 

186.          A number of countries in the region have set up special units within the government attorneys offices, public prosecutors offices, the courts and the police,[258]  However, these units do not have specialists on staff or the economic resources needed to function effectively.  One example identified during the project’s implementation was in Bolivia, where Family Protection Brigades have been established to provide assistance to victims of domestic violence who report some imminent threat.  The IACHR learned of an evaluation done of the Brigades’ work.  The findings are very reflective of what these specialized units can accomplish and the challenges they face in various countries.[259]  On the positive side, these brigades can arrive on the scene and provide basic assistance to victims faster than a non-specialized police unit.  However, there are systemic challenges:  80% of the staff are working long hours; they do not have the necessary office materials and furnishings; the level of training and awareness of the personnel is not what it should be, and the assigned staff are rotated so often that training efforts cannot be sustained.[260]  During the follow-up visit made to Guatemala in July 2006, the Women’s Rapporteurship found that the police homicide unit that investigates murders where the victim is female does not have the human, financial and technical resources needed to perform its job effectively.

187.          The IACHR has also learned that basic and advanced training programs are often not available for personnel like forensics experts, who play a key role in developing scientific evidence and introducing it in court.  The vast majority of the forensics personnel do not have the specialized training needed for cases involving violence against women, where forensic evidence is crucial because the body of evidence in such cases is so complex.  However, in their responses to the questionnaire, the States report that some efforts to provide the needed training are underway. [261]  The Commission is urging that these efforts be expanded in the future, given the magnitude and severity of the violence problem. 

188.          In the administration of justice systems, the IACHR has also observed faults and weaknesses in processing and recording data on cases involving violence against women.  These faults and weaknesses are compounded by the fact that the statistics from every quarter of government grossly underestimate the magnitude of the problem of gender-based violence.  The Commission has expressed concern over the fact that violence against women, of all kinds and in all contexts, is much more common than is believed, than what the media report, and what the official statistics and records suggest.[262]   As long as such problems exist, public policy in the area of justice will never accurately mirror the severity and prevalence of violence against women.   The United Nations has emphasized recently the importance of judicial statistics in the sphere of violence against women:

Although criminal court cases represent a very small and non-representative sample of cases of violence against women, court statistics are important.  They can contribute to understanding the response of the criminal justice system to violence against women. In particular, the effectiveness of laws and sanctions designed to protect women can be assessed through statistics that track repeat offenders.  However, in many countries, feedback from the courts to the ministry of justice is inadequate. [263]

189.          The faults and weaknesses in the area of statistical data on cases of violence against women were reflected in the States’ answers to question 21 on the IACHR’s questionnaire.[264]  The question asked was: "Can it be identified how many complaints have been received in the last 5 years of violations of the rights of women, above all in cases of discrimination and violence? How many of these cases have reached the Sentencing stage?".  A number of States like Brazil, the Bahamas and Belize stated outright that they do not have that information.  Others supplied a variety of statistics, all in different formats, compiled by various government units.  Argentina, for example, submitted statistics from the judicial branch of government, from the Office of the Director General for Women’s Affairs of the City of Buenos Aires, and from the Buenos Aires Provincial Court Attorney’s Office.  Venezuela’s figures came from the Office of the National Ombudsperson.  Peru submitted figures from the Family Court, while Mexico’s figures were compiled by the Federal District’s Government Attorney’s Office, the states’ government attorney’s offices and the National Human Rights Commission.  

190.          During its in loco visits, the IACHR has found that judicial bodies have difficulty producing uniform and reliable national statistics on cases of gender-based violence, with the result that the problem of violence against women becomes invisible.  This lack of reliable statistics also hinders development of public policies in the judicial area that match the severity and magnitude of the problem.  By way of example, following its visit to Guatemala the Rapporteurship observed that:

We can see from the absence of studies or statistics on the prevalence of family or domestic violence and from the lack of information on the prevalence of sexual crimes that mostly affect women that the issue of violence against women is largely ignored.[265]  

191.          The Inter-American Commission of Women of the Organization of American States has written the following about this problem: "The absence of gender-disaggregated data and statistics on the incidence of violence makes the elaboration of programs and the monitoring of progress very difficult.  The lack of data impedes efforts to design specific intervention strategies."[266]      The United Nations has also established recently that:

Accurate and comprehensive data and other documentation are crucial in monitoring and enhancing State accountability for violence against women and for devising effective state responses.  States’ role in promoting research, collecting data and compiling statistics is addressed in police instruments.[267]

192.          The vast majority of the public prosecutors offices and specialized units in the national government attorney’s offices only have data on cases reported in the countries’ capitals. The Rapporteurship observed this problem during its in loco visits to Guatemala and Colombia.  A research study on Honduras describes this problem in the following terms:

It is important to bear in mind that the total number of complaints of crimes of this type (violence against women) that the public prosecutor’s office received nationwide was 2,898 in 2002 and 4,255 in 2003.  From this we can infer that in these two years, only 4% of the total number of complaints received are actually taken to trial by the Office of the Special Prosecutor for Women.  However, the data from the Special Prosecutor’s Office are only for the capital; the public prosecutor’s office does not have discrete data sets on a national level that show exactly how many cases of crimes involving violence against women went to trial each year nationwide.[268]

193.          The IACHR is concerned by the disorganized proliferation of state efforts to compile data on these incidents and the fact that the various agencies are all using different formats.  Coordination among institutions is poor and sectors (government, administration of justice, health, international and regional organizations, academia and civil society) have to do more to share information.  While in their responses to the questionnaire a number of States indicated that various government departments and units are compiling data on the problem of violence against women,[269] the information provided does not report what mechanisms they are using to coordinate and share their data.  Furthermore, the official statistics that the States supplied to the Commission show that such data are not always classified by such key variables as sex, race and ethnic origin, and are not compiled and analyzed from a perspective that is sensitive to either victims or their sex. 

194.          There seems to be little grasp or appreciation of how the various forms of violence perpetrated against women –physical, psychological and sexual- interrelate.  For example, in homicide cases involving female victims, the investigations frequently fail to gather any information about any sexual abuse that may have been committed when the victim was murdered.  This problem is compounded by a reluctance on the part of female victims of violence to report sexual abuse or rape, for fear that they will be ostracized by their communities or because they dread the lack of respect and indifference that they may encounter from the judicial authorities, or because they simply do not know where they should go to file a complaint.
 

6.    Access to justice for indigenous and Afro-descendant women:  discrimination and racism

195.          Violence, discrimination and the obstacles to adequately access justice are even more challenging[270] for indigenous and Afro-descendant women, who are particularly exposed to human rights violations based on racism.[271]  The Commission has found that the obstacles such women must overcome to be able to avail themselves of adequate and effective remedies to redress the violations they suffer are even more daunting because such women must contend with a combination of various forms of discrimination: discrimination by virtue of their sex, discrimination based on their ethnic or racial original and/or discrimination by virtue of their socio-economic condition.[272]

196.          Racism is commonly thought of as the basis of one form of discrimination, a difference in behavior dictated by a person’s origin.  It manifests itself over and over again in everyday interpersonal relations.  Racism permeates all social behavior, personal as well as institutional.  By varying degrees and in different ways, it is part of the ideological construct that spawned the dominance and inequality and that helps keep it alive.[273]

197.          This section illustrates the special needs that indigenous and Afro-descendant women have.  States are not taking them into full consideration when implementing their judicial action policies.  It is imperative that States develop programs to compile information –statistics, research studies and studies examining the specific needs of these women- in order to ensure their rights particularly in the area of justice.

a.         Indigenous women

198.          In the Americas, between 45 and 50 million persons belong to more than 400 indigenous peoples who preserve their own languages, world views and socio-political organizational structures. Over fifty percent of these are women, most of them victims of double discrimination:  discrimination by virtue of being a woman, and discrimination by virtue of being indigenous. Indigenous women are members of culturally different societies, with a strong attachment to their ancestral lands and the resources there.  It is an attachment that exists, in part at least, because that land and those resources are their principal means of subsistence; it is also because the land and its resources are integral parts of the indigenous people’s view of the natural order.

199.          From a variety of sources and through implementation of the inter-American system’s mechanisms, the IACHR has compiled information on the obstacles that indigenous women encounter in attempting to access the justice system.[274]  These obstacles are generally a function of the social exclusion and ethnic discrimination that they have historically suffered.  The problem that women encounter is compounded by the geographic remoteness of indigenous territories.[275]  To be able to access the justice system, indigenous women may have to walk for days, overland or by water, to get to the nearest city to report the violence they have suffered.  This also poses evidentiary problems.  Indeed, an indigenous woman’s problems do not end when she reaches the city, because there she will likely encounter obstacles of another sort: financial problems, a lack of information, discomfort with an urban environment.  A lack of command of the language of the court is also routinely cited as one of the factors that makes access to justice difficult for indigenous women.[276]

200.          Indigenous women’s access to justice implies, on the one hand, access to the justice administered by the State and also a recognition of and respect for indigenous law.  Both systems must be respectful of internationally recognized human rights.  The IACHR has said that States need to institute and apply a judicial system that is responsive to the countries’ cultural diversity.  They also need to institute mechanisms that effectively recognize and promote indigenous law, mechanisms that fit their traditional norms and that are based on international human rights standards.[277]

201.          In the report on the merits of the case of the González Pérez Sisters,[278] the Commission developed the concept of rape as torture and a violation of women’s right to a private life.  It pointed out the specific obstacles that indigenous women encounter when seeking judicial protection.  The Commission concluded that report by underscoring that the pain and humiliation that the women experienced was aggravated by the fact that they were indigenous women who did not know the language of their assailants and the authorities involved in the process, and by the fact that they were ostracized by their own community because of the crime committed against them.[279]

202.          The State of Mexico acknowledged "the institutional violence, the indifference and discrimination suffered by indigenous women at the hands of personnel associated with health institutions and instances to impart justice, poorly trained and insensible to the poverty conditions and cultural diversity of these women".[280]

203.          The Commission has expressed particular concern over the violence that indigenous women in Colombia and Guatemala have had to endure and the attendant impunity. The situation of indigenous women in Colombia is made all the worse by the armed conflict being fought on their ancestral lands and the difficulties they encounter when they report acts of violence and discrimination.[281]  During a visit to Colombia, the Rapporteurship was able to establish that the protection of indigenous women’s rights correlates directly with the possibility they have of living freely on their ancestral lands.  For the indigenous peoples, the armed conflict has brought massacres, assassinations, especially of their traditional leaders and authorities, kidnappings and massive displacements from the ancestral lands.[282]  The Rapporteurship has also received testimonies from Colombian indigenous women:

[d]enouncing sexual aggressions perpetrated by the armed actors participating in the conflict, to the detriment of indigenous women. The same women who offered these testimonies indicated that the discriminatory attitude of the aggressor worsens this type of aggression, already alarmingly serious. They explained that patrols of the different armed groups occupying indigenous lands kidnap indigenous women, collectively use them sexually, and then abandon them, protecting themselves by the impunity of their acts.[283]

204.          These acts are frequently never reported, because the assailants are in control of the territory where these crimes occur.  The victimized women are understandably mistrustful of the justice system because they believe that the crimes will never be investigated and the assailants will never be punished.  Compounding the problem is the fact that the women do not know where to go to file their complaints.

205.          Access to justice is still a major problem for the indigenous women of Guatemala, where the indigenous peoples’ marginalization is undeniable.[284]  The Commission has observed that discriminatory acts prejudicial to indigenous women by virtue of their ethnic origin are deeply rooted in some quarters of the national life.  The IACHR has examined the situation of indigenous women in Guatemala and the particular obstacles that these women confront when attempting to avail themselves of judicial remedies to redress acts of violence and discrimination perpetrated against them.[285] The Commission has found that in many countries of the region, indigenous women have no way of making themselves understood in their own language, whether they are before the bar as victims or accused of committing a crime.

206.          The information compiled by the IACHR indicates that acts of racism against indigenous women in Guatemala are a daily fact of life with which they have to contend.  The ethnic discrimination is present everywhere in these women’s lives:  socially, politically, economically and culturally, in the treatment they receive on the street, at the workplace, in school, in the courts and elsewhere.  The information received reveals conclusively that indigenous women are the constant targets of insult, called by demeaning labels like "Indias" or "Marias," the latter being a reference to the only work that the person making the offensive comment believes that indigenous women are able to perform, which is that of a domestic.  The Commission was also told that Guatemalan indigenous women frequently are barred from entering public places merely because they are wearing their traditional garb.  This constitutes segregation on ethnic grounds.  The Commission has established that discrimination against indigenous peoples is so deeply rooted that indigenous women themselves have difficulty recognizing the acts of prejudice and discrimination committed against them.

207.          As for investigation and punishment of acts of discrimination, in 2005 two convictions were handed down for the crime of discrimination against indigenous women.  The number of complaints of such discrimination that have been filed with the courts has increased.  In the case of investigation and punishment of acts of violence committed against indigenous women, impunity continues to be the general rule; most who work in the justice system are monolingual.  Translations of judicial proceedings are incomplete.  Evidence is difficult to obtain; the proceedings are long, costly and exhausting for the victims, most of whom live in dire poverty.  Then, too, women often do not have identification papers.  Geography, too, can become a factor limiting indigenous women’s access to judicial protection.  The Commission was told that among indigenous peoples themselves, the tendency is to deny indigenous women their rights, with the result that indigenous women frequently do not believe they can rely on their own justice systems to redress the crimes committed against them.  The obstacles that indigenous women encounter in getting access to justice are compounded in the case of incarcerated indigenous women, who become the victims of violence perpetrated by other women prisoners or by state authorities.  These indigenous women have no way of filing a complaint or of seeking redress for the wrongs committed against them.[286]

b.         Afro-descendant women

208.          Afro-descendant women may face unique challenges when seeking judicial protection.  The history of Afro-Colombians has been one of discrimination, exclusion, invisibility and social disadvantage, a combination of problems compounded in the case of women.  The IACHR has observed that in the particular case of Afro-Colombian women, they are victims of discrimination within and outside their communities, not just because they are Afro-Colombian but also because they are women.[287]  Public authorities discriminate against these women because of their gender, their race and their poverty, a situation described as follows:

Discrimination is a control device to keep disadvantaged groups in a position of subordination.  It is a critical mechanism in controlling these groups… Violence is central to discrimination, since violence is one of the worst consequences of discrimination and also one of its key factors.  All forms of discrimination have to be rejected in order to make headway in eradicating gender-based discrimination.[288]

209.          Some studies put the Afro-descendant population in the region at over 150 million, which represents approximately 30% of the total.[289] They, along with the indigenous peoples, are the poorest in the hemisphere.[290]  According to studies done by the World Bank, the census data and household surveys reveal that race and ethnicity are basic factors in determining the social exclusion and poverty with which indigenous peoples and Afro-descendants must contend.  In many countries there is a strong correlation between race and ethnicity and access to such vital social services as education, health and social protection services.

210.          The studies cited in this report concur that the vast majority of Afro-descendants are among the region’s poorest people[291] even though data on the Afro-descendant population is in general lacking.  As ECLAC wrote:

The data problem also touches the Afro-descendant population directly.  Long ago the countries of the region that have an Afro-descendant population began to put together categories that had the effect of diluting this population into various groups or segments.  For example, in some countries they have been classified under the heading of ethnic group or even directly as an indigenous group.  In countries like Brazil, Costa Rica and Honduras, there is just one question about origin.  While in Brazil the respondent identifies him or herself by “color or race,” in Costa Rica self-identification is by the “culture” to which one belongs; in Honduras, self-identification is by “population group” (Garifuna and/or Black Carib).  In Guatemala, self-identification is on the basis of the ethnic group that the respondent believes he or she belongs to, while in Ecuador the respondent is asked what does he or she consider himself or herself to be, and can choose from a number of options:  indigenous, black, Afro-Ecuadorian, mestizo, mulatto and other. (Rangel, 2005)[292] … Furthermore, when conducting demographic censuses not all countries of the region ask about this trait in the case of their Afro-descendant population.  When the census does not examine the race or color variable, the respondent is pegged to other factors, such as income level, level of education, awareness of being black, the “none-of-the-above” tendency, all of which makes it difficult if not impossible to compare data between countries.  Without reliable data, without indicators and periodic measurements, the kinds of political decisions calculated to deal with the discrimination problem cannot be taken. The figures also have an unmistakable political element, since for those affected it means that their invisibility is being reversed and they are being recognized along with everyone else.

For States and governments, the handling of the figures is often association with a denial of racism, discrimination and xenophobia.  In recent years most countries in the region have added questions to the censuses and household surveys to ask about identification, group membership or language, which is a vast improvement over decades past.[293]

211.          A bulletin published by the World Bank [294] wrote that although the Afro-Latin community as a whole lives in the poorest regions and has the lowest paid jobs, the burden of discrimination is even heavier for Afro-descendant women because their multiple roles both inside and outside the home are not adequately reflected in their social status, employment and wages.

212.          So discrimination exacts a heavier toll from Afro-descendant women than Afro-descendant men because the former combine the gender component and the race/ethnicity factor, which only serves to reinforce their segregation.  When examining access to justice in the case of Afro-descendant women, the differences within this population group have to be considered.  These differences range from their view of the natural order, traditions and culture, economic position, geography, and other factors.

213.          The difficulties that Afro-descendant women will have in availing themselves of judicial remedies to redress acts of violence and discrimination committed against them will depend on some of the factors listed above.  Afro-descendant women who live in marginalized, rural areas in small, tightly clustered social groups that still preserve their languages, traditions and customs and sometimes even their own systems of justice, will have to contend with problems of geographic accessibility, an inability to communicate with judicial authorities in their own languages, a knowledge of the process, and a lack of economic means.  These are the very same problems that indigenous women face.  And like indigenous women, Afro-descendant women will have to contend with discrimination on two levels:  one based on their gender and the other based on their race.

214.          Theirs is not unlike the situation of Afro-descendant women in urban areas, where the difficulties they will face in availing themselves of effective judicial remedies, have to do with their economic disadvantage and skin color. In those areas where the economic factor and social exclusion have been conquered, the difficulties are generally related to skin color. [295]

215.          Among the challenges faced by Afro-descendant women, are the institutional violence perpetrated by judicial authorities who do not understand their vision of the natural order, and their traditions and culture.  A judicial culture needs to be fostered that is tolerant of difference and diversity.[296]  Poverty is particularly prevalent among these women, which means that States must be ready to provide them with pro bono legal services to enable them to access the judicial protective bodies.  They also need more information about the recourses available to them within the justice system and about their rights.

216.          The recommendations that the experts made to the IACHR included circulation of information on the discrimination that these groups have historically suffered and that violates their rights; development of policies and programs that promote inclusion, so that these groups are able to exercise their legal guarantees and get effective judicial protection, and so that judicial authorities are respectful of their rights.  The experts also recommended the development of affirmative action policies to conquer race- and gender-based structural inequalities.

B.         Laws:  problems with their design, interpretation and application

217.          The IACHR has found two levels of obstacles in the civil and criminal laws that hinder the effective investigation of cases of violence against women.  The first has to do with gaps and deficiencies in the laws, a lack of standardization and the presence of discriminatory concepts that place women at a decided disadvantage.  The second kind of obstacle is with the judicial authorities’ failure to enforce or properly apply the body of existing laws.

1.         Gaps and deficiencies in the law

218.          With regard to gaps in the law, the IACHR has found that many countries’ civil laws do not yet make provision for the various manifestations of violence committed against women –physical, psychological and sexual- identified in the Convention of Belém do Pará.  Nor do they make allowance for the contexts in which these forms of violence occur that are outside the family (social, urban, institutional, and job-related).  The laws focus mainly on domestic and intra-family violence[297] to the exclusion of the other contexts in which violence against women occurs.  This leaves women defenseless against the other manifestations of violence that lie beyond the realm of family. 

219.          Nor do the laws appear to make provision for reparations for women victims of violence.  Reparations have to be taken into consideration, so that women who have been victims of violence may be compensated for the harm caused.  It is important to note here that the States still entertain a homogenous image of women as a group for whom public policy should be crafted.  This carries over into the legal realm, with the result that the particular needs of various groups of women, like Afro-descendants and indigenous women, are not addressed, especially when they try to avail themselves of judicial remedies with the proper attendant guarantees.

220.          As for deficiencies, the IACHR has found that the principal objective of the laws continues to be preservation of the family unit rather than protection of its members’ rights to live free from violence and discrimination.  When instituting policies aimed at protecting the family, the particular needs that the members of the family have when it comes to prevention and protection are, by and large, ignored.  The Latin American and Caribbean Committee for the Defense of Women's Rights (hereinafter “CLADEM”) described this problem in an evaluation of the body of law in the Andean subregion:

The main approach taken in the laws and policies intended to address the problem of family violence is to protect the family more than the individual.  This is very detrimental to women, who are the greatest victims in this problem, and happens because domestic violence is not viewed as a human rights issue and the gender perspective is not considered.[298]

221.          The IACHR also observes the persistence of inadequate provisions and in some cases discriminatory content within some laws and criminal and civil codes, reflected in the following aspects: definitions of rape that require the use of force and violence rather than lack of consent; the treatment of rape as a crime against decency and not as a violation of a woman’s right to bodily integrity; termination of criminal proceedings if the victim withdraws a complaint; and inadequate penalties for crimes involving violence against women.[299]  These provisions have not been adapted to conform to the object and purpose of certain international human rights instruments like the Convention of Belém do Pará.  By way of specific examples, in some States like Nicaragua, Panama Uruguay and Venezuela, there are still legal provisions that allow perpetrators of sexual crimes to elude justice if they agree to marry the victim.  The IACHR is deeply disturbed by this problem and has expressed the following:  

In many criminal codes, values such as honor, social decency, virginity, chastity, and good morals prevail over values such as the mental and physical integrity of the woman and her sexual liberty, thereby impeding the due protection under the law of victims of such crimes, or compelling them to prove that they resisted in the case of the crime of rape, or subjecting them to interminable procedures that perpetuate victimization.[300]

222.          Laws within the same national legal framework may contain conflicting provisions, thereby creating confusion.  For example, in Paraguay there are contradictions between the provisions of the Penal Code and those of Law 1600 on domestic violence.[301]  Whereas Law 1600 offers a number of alternatives for filing a complaint involving an act of violence –the police, health clinics or justices of the peace- the Penal Code provides that the public prosecutor’s office must have a direct hand in entering complaints, or that complaints may be filed with the public prosecutor’s office or the police.  The variety of alternatives is confusing to victims, especially those who have had no prior experience with or knowledge of judicial procedure.

2.         Flawed application and interpretation of the laws and implementation of government programs

223.          The Commission has verified that in some American States, a variety of factors can prevent State officials from properly applying the laws that protect women.  One of the most important is the lack of regulations to implement legislation, the absence of clear procedures and training programs to enable public officials to correctly interpret and apply the law when prosecuting cases involving violence against women, the excessive workload that law enforcement agencies are carrying and the general public’s unfamiliarity with the law and how to interpret it.  A genuine commitment is needed from the States, backed up by sufficient financial and human resources, to ensure that the existing laws are properly applied and implemented.  

224.          During the working meeting that the Women’s Rapporteurship organized in the Southern Cone countries, the CLADEM representatives in Uruguay did a thorough analysis of Uruguay’s Domestic Violence Law[302] in order to illustrate the problems that attend the application of laws intended to combat violence against women in the Americas.[303]  Various significant aspects of the law were discussed, such as the possible judicial avenues that victims can use (both civil and criminal) and their right to mandatory legal counsel.  However, a list of factors impairing application of the law was also discussed.  Those factors included:  a) the excessive caseload of the courts everywhere in the country; b) the fact that social and judicial operators (police, magistrates, defense lawyers and prosecutors) are not adequately trained in the problem of violence against women and are unfamiliar with the international legal obligations that the State has undertaken; and c) the fact that women do not know their human rights under domestic and international law.

225.          As pointed out in previous sections of this report, the IACHR has found that public servants applying the law, especially public servants working in the administration of justice system, are still under the influence of discrimination against women and treat them as inferiors.  By way of example, the following is a description of what can happen when cases of violence against women are prosecuted in Guatemalan criminal courts:

The penalties given in cases involving assaults against women tend to be lighter, based on the tendency in criminal law to give lesser sentences, to prosecute fewer crimes, to turn a blind eye to behaviors that violate constitutionally protected rights or to choose not to prosecute them, especially crimes that are violations of sexual freedom.[304]

226.          This problem underscores the need to institutionalize training programs in gender issues and make them mandatory for public officials like police officers, prosecutors and judges, and the need to correctly apply the laws on this subject.  The focus of these programs must be to provide instruction on the existing legal and administrative framework –laws, preventive protective measures and available judicial recourses- and their proper application, always from a gender perspective.  Measures need to be taken to penalize public officials who violate women’s human rights.

227.          The IACHR has learned that some judges are reluctant to apply and interpret international human rights treaties as part of domestic law, particularly those that apply to women’s cases.  The problems with application of the body of law intended to combat violence against women are part of a more generalized problem with proper implementation and interpretation of international treaties.  CLADEM has described these irregularities in the following terms: 

The governments’ lack of commitment; political instability; at the national level, the prevalence of a juridical culture that is not friendly to international human rights law, especially in matters of gender-based discrimination; a lack of familiarity with the significance, content and importance of those treaties on the part of the parliamentarians who approved them; a resistance to substantive change, to budgetary investments in that area, and to acceptance of accountability mechanisms; the weakness of institutional mechanisms; the power of conservative and fundamentalist religious sectors like some quarters of the Catholic Church; too little lobbying and pressure from organized sectors of society. [305]

228.          In this sense, it is indispensable that judges interpret international human rights treaties in accordance with international standards.  Yet a considerable number of countries have not yet ratified or taken steps to ratify such binding international human rights instruments as the Convention of Belém do Pará (United States, Canada and Cuba) and the Optional Protocol of the CEDAW (Chile, Cuba, El Salvador and the United States).[306]

229.          On the other hand, it is also important to undertake an evaluation and periodic follow-up of State laws to guarantee that public servants apply them correctly, particularly members of public prosecutor’s offices and the judicial branch.  The IACHR observes that the implementation of evaluation mechanisms of laws to prevent violence against women is not very common.  It is also uncommon to see an external review of the actions of prosecutors’ offices and of justice officials, as well as a measurement of their actions in terms of indicators based on efficiency and results.   

230.          Women cannot possibly claim their rights unless they know what they are.  Therefore, the IACHR emphasizes the importance of developing programs to educate the general public about human rights and the judicial recourses available to file complaints.  Paraguay’s General Secretariat for Women’s Affairs described this problem to the IACHR in the following terms:

Although Paraguayan women now have a better understanding of their rights, are effectively participating and have access to information about their rights, the empowerment that those rights represent is one of the principal challenges for those who work for equality of opportunity and equal treatment for men and women.[307]

231.           The lack of information about the judicial recourses available and the fact that violence and discrimination against women are still accepted in American societies, have kept down the number of complaints of acts of violence against women.  ISIS International has described the problem as follows:

Women do not know what their rights are.  Women in general, but particularly women of little means, do not understand their rights and are unfamiliar with the mechanisms available to them to assert those rights.  Violence against women continues to be a widespread and culturally accepted practice.  Laws are a means of regulation but cannot by themselves effect the cultural change needed to eradicate violence against women. [308]

232.          Yet despite their persistence and severity, violence and discrimination against women continue to be low-priority issues in national programs.  The IACHR is understandably concerned by the States’ apparent lack of commitment, the kind of commitment that is backed up with the financial and human resources needed to correctly apply and implement existing legislation.  Because of that lack of commitment, the budgets assigned to implement the law and launch the government programs that will drive the process forward are inadequate.  In its response to the questionnaire, the Mexican State described the problem of inadequate funding and the lack of political commitment to implement public policies:

One challenge is that local governments and various officials in the federal government do not have a real political commitment to women’s rights.  One hears complaints, for example, about activities being cut and about the diminishing relevance of efforts made to create gender equity units in the secretariats and institutions of the federal government in order to introduce the gender perspective everywhere …. The headway made with health, education and employment policies collides with institutional structures and cultural resistance on the part of the bureaucracies charged with applying these policies.  Therefore, in-depth change needs to be fostered in the predominant institutional cultures within public institutions.[309]

233.          The States provided the IACHR with figures on the budgets assigned to conduct programs geared specifically to improving the situation of women.  Almost without exception, the figures the States provided were for the budgets of government agencies dedicated to women’s affairs, and not the other areas of government. This reveals that women’s issues are still perceived as isolated problems that do not need to be addressed in a coordinate fashion by different state sectors.

234.          From the information supplied, it is evident that the States do not yet appreciate the economic and social costs that the problem of violence against women can have.  As the United Nations put it, the costs of violence against women, apart from the human costs, go "beyond lowered economic production and reduced human capital formation but also include the costs associated with political and social instability through intergenerational transmission of violence, as well as the funds required for programmes for victims/survivors of violence."[310]  In 1993, the World Bank concluded that in developed and developing countries alike, rape and domestic violence accounted for one out of every five healthy days of life lost to women between the ages of 15 and 44.[311]  This reduces women’s ability to earn a living and participate in public life.  Furthermore, the children of such women are at a significantly greater risk of health problems, poor school performance and behavioral problems.[312] 

235.          The IACHR has been told of government programs whose purpose is to provide support services to women victims of violence and help them secure court protection of their rights.  It is an internationally accepted fact that specialized and multidisciplinary support is essential when women become the victims of violence, to help them cope with the physical and psychological injuries sustained.[313]  The Pan American Health Organization, working in partnership with other international organizations, has identified the following services that women victims of violence –regardless of its form- will require:

Providing basic and interdisciplinary care: this includes medical care, psychological counseling and assistance through support or self-help groups.  Providers must also be familiar with the other services and resources available in their community, in order to be able to refer the survivor to services not provided at the health or other service center, such as legal services, economic assistance and protection, among others … Having a guide to the resources available in the public and private sectors that provide assistance and pro bono legal services to women who want to file complaints in court.[314]

236.          However, government programs that provide multidisciplinary services to victims of violence do not necessarily function smoothly.  Problems include the programs’ failure to coordinate and collaborate; deficiencies in the delivery of the interdisciplinary services that the victims need; the programs do not have the resources to guarantee that they will remain in operation; and their geographic coverage is limited.  The latter poses a particular difficulty for women who live in marginalized, rural and poor areas.  The Inter-American Commission of Women has described this problem as follows:

Some progress has obviously been achieved in recent years in the provision of services for abused women and children; hotlines; emergency assistance, including legal services; shelters; special health services; and counseling. However, in most countries, the amount of services available bears no relationship to the demand for these services.[315]

237.          The Commission has also learned of a number of programs designed to provide care to women victims or violence.  They are run by nongovernmental networks and organizations that specialize in violence against women. The majority are receiving support from international organizations.  A variety of organizations provide psycho-social care to victims and information on judicial proceedings and legal advocacy.  They also play a key role in training state employees at all levels and provided needed information and services in the area of gender and reproductive rights.  The ISIS network has described these initiatives as follows:

Methods have been devised and tested using the experiences that women’s organizations have found at centers administering basic care to women victims of violence.  A number of non-governmental organizations have become active in services of this type, mainly with international cooperation.   These centers offer counseling and/or medical, psychological, legal and social assistance, and their coverage depends on how well funded they are.  Support or self-help groups are also being created.[316]

238.          During its visit to Colombia, the Rapporteurship observed that the organizations working to defend women’s rights play a vital role in providing the services required by women victims of violence in areas occupied by armed elements, areas in which the State and its services have a limited presence that is not commensurate with current demand:

In addition to working to protect the civil, political, economic, social and cultural rights of women, these organizations play a vital role in the services area and in documenting cases.  In areas where armed elements are present, these organizations tend to victims of violence and provide reproductive health services.  The organizations engaging in activities of this type include the Iniciativa de las Mujeres por la Paz, the Liga de Mujeres Desplazadas, the OFP, the Asociación Nacional de Mujeres Campesinas, Negras e Indígenas (hereinafter “ANMUCIC”) and PROFAMILIA, and others.  The United Nations Development Programme (hereinafter the “UNDP”) told the Rapporteur during the visit that the important work being done does not receive the public recognition it deserves.[317]

239.          The IACHR underscores the need to legitimize, protect and support the work of nongovernmental organizations that provide interdisciplinary services to victims of violence by providing information on how to file complaints when women become the victims of violence and how to seek and obtain effective judicial protection.

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