Paper Rights – by Ana Pecova (Nexos)

~ This essay was originally published on June 1, 2016 ~

María is a 24 year-old Mayan woman, who lives in extreme poverty in a rural community in Yucatán state. She has a psycho-social disorder. In 2012 she was raped by a man with close ties to her family and became pregnant. Accompanied by her mother, María filed charges against her rapist. The local prosecutor never issued a restraining order, and her rapist continued to spend time around her. A year later, María was raped again by the same man, and again became pregnant. The local prosecutor not only refused to accept responsibility, but also rejected a second attempt at filing charges, alleging that María had a romantic relationship with her rapist. The judge who heard the case concluded that María “let herself be raped” because her “mental retardation” did not allow her to distinguish “between right and wrong.” With the help of social organizations, the case is now under review. Meanwhile, María has spent four years searching in vain for justice.

Ximena is a Spanish woman. In 2004, she married a Mexican man and gave birth to a son. Several years later, the couple decided to divorce. In the custody hearing, the judge ruled against her, arguing that Ximena did not follow traditional family values. For the judge, Ximena did not fulfill the role of a “Mexican mother” and did not understand, as Mexicans do, the concepts of love, solidarity, and family. A circuit court judge who reviewed an appeal upheld the original decision granting custody to the father, based on the argument that it was best for a son to be raised by his father. Ximena has spent more than two years incommunicado from her child.

Illustration: Kathia Recio

Illustration: Kathia Recio

Lack of access to justice affects thousands of women in Mexico, and each case is different depending on social, economic, and cultural variables. Women face long, slow, inefficient processes involving prosecutors, attorneys, and judges who operate on the basis of stigmas and prejudices and systematically fail to incorporate the perspective of gender in their work. All of these factors contribute to the revictimization of women and make their access to justice virtually nonexistent. These institutional failures also affect men, obviously, but what the previous examples seek to demonstrate is that women nevertheless face repeated obstacles related to the fact that they are women, regardless of their age, class, education, or origin. That is why violence against women is gender violence: because the fact they are women—with all that implies in this society—they are in a vulnerable and disadvantaged position that erodes their ability to enjoy their full legal rights.

In a country where seven women are killed each day, and four of every ten have experienced domestic violence, there are only 150,000 official complaints each year for the legally-defined types of gender violence. Of those complaints, only 11 percent result in investigations, and only 2.4 percent result in convictions. One of the principle reasons that so few complaints are filed is the general distrust of institutions. Distrust that, of course, seems justified when one examines the operation of the current system of justice. Rather than requiring women to file reports when the deck is stacked against them, it is essential that we change the system so that doing so is not so difficult.

If it is true that women in Mexico are now granted full legal rights, that is a privilege that they only enjoy on paper, not in practice. The country has a fairly comprehensive constitutional code that, thanks to the human rights reform of 2011, is also grounded in international human rights law, covering not only international treaties, but also sentences, recommendations, and reports. It has been seven years since the Interamerican Court of Human Rights ruled in González et al. v. Mexico, better known as the Campo Algodonero (Cotton Field) case, finding that by international standards Mexico had seriously failed in its efforts to prevent, investigate, and punish cases of violence against women. Shortly after the Campo Algodonero ruling came IACHR rulings in the cases of Inés Fernández and Valentina Rosendo, two indigenous women who suffered serious human rights violations, including sexual torture, at the hands of the Mexican military. At the national level there have also been emblematic rulings, such as the Supreme Court ruling in favor of Mariana Lima in 2015.

These rulings have been paradigmatic and important. But such rulings are not the endpoint of the process. Rather, they are the beginning of a critical phase that must guarantee that the harm is repaired. They must open the way for actions that seek to address the same conditions that enabled the violations of those women’s rights. That is to say, violence must be prevented. For this to happen, nevertheless, the country needs institutions that carry through and implement the rulings.

If we look at our current reality, it is impossible to avoid the impression that little has changed since those emblematic rulings were issued. Gender violence continues to mark our daily existence. Is this because nothing has changed? Because after those rulings, nothing more was done? No.

The Mexican state has invested, over the past 10 years, enormous amounts of resources—both human and material—to combat discrimination and promote gender equality. I would venture that this investment surpasses any in history. In the public sector, the state has opened a considerable number of units, committees, and organizations that seek to promote a gender perspective in public life, and the budget for this grows year after year (for example, the National Institute for Women, Inmujeres, was budged 198 million pesos at its creation in 2001, and received 801 million pesos in 2013). “Gender equality” is now incorporated in the National Development Plan and has been maintained as an absolute priority for the past three presidential administrations. Under the umbrella of gender equality, the resources destined to addressing violence are substantial.

Incorporating a gender perspective in public life and in the work of government institutions is, without a doubt, essential to promoting meaningful equality. But once the official strategy is analyzed closely, it appears to lack a clear vision.

The judiciary, for example, has taken important steps to incorporate a gender perspective in its work. In 2013, the Supreme Court created the Protocol to Judge with a Gender Perspective, a judicial tool that seeks to support judges in the task of delivering justice with a gender perspective, in line with the highest national and international standards. Three years later, the Protocol has been cited in a minimal number of cases. Rather than becoming a tool that helped create awareness about the factors that place women in disadvantaged situations, the gender perspective is often perceived as a threat to the principal of “impartiality” on the part of the judges. It is believed that using the Protocol’s methodology implies, in some form, altering the legal practice and going beyond what is allowed. The training courses that have been provided on the subject have been few, brief, and inconsistent, and they have become an excuse for not applying a gender perspective in the delivery of justice. On more than a few occasions, it has been said that “we do not know what gender perspective is, but we are being trained on it.”

Demanding a full accounting from the judicial system is difficult without access to the rulings. And, as the report “Diagnostic concerning access to rulings” published by EQUIS Justice for Women, not a single state judiciary has fulfilled its obligations regarding transparency on the issue, as rulings remain difficult to access despite being public documents.

Parallel to the Protocol, the Mexican Association of Justice Providers (AMIJ) has promoted a plan to introduce gender perspectives in the justice system through the creation of Gender Units in the country’s courts that would function as institutional mechanisms to create strategies for promoting gender equality. Ideally, the Gender Units would have an important role not only in eliminating discrimination within the judicial system, but also within the process of delivering justice. The results of a national review of the situation in the Gender Units undertaken by EQUIS Justice for Women through freedom of information requests demonstrate that the implementation of this policy has struggled to deliver the promised results. Three years after the plan was launched, all the courts have some mechanism, typically a committee or commission that manages issues of gender, but only eight courts have a formally constituted Gender Unit. The difference between the mechanisms and the formal units is that the latter enjoy a degree of autonomy that allows them to undertake meaningful activities. Moreover, many of the mechanisms that seek to promote a gender perspective are buried deep within the complex judicial structure, something that limits their potential and effectiveness. In many cases, those in charge of them have a year or less of experience with gender and women’s rights issues. There are mechanisms that do not have their own budgets, and are therefore unable to launch any type of initiative. Only seven of the 32 mechanisms have an operating plan and none has tools to monitor and evaluate the impact of their work.

The judicial system is not the only one that has struggled to implement practices to eliminate discrimination against women and improve their access to justice. One policy designed to respond to the obstacles faced by women who are survivors of violence are the Justice Centers for Women. The centers were created in 2011 under the aegis of the National Commission to Prevent and Eradicate Violence Against Women (CONAVIM) and seek to concentrate all the services a woman survivor would need under the same roof. The model has the potential to promote cross-sector and interdisciplinary work, both between government agencies and civil society, and to offer a specialized, sensitive, professional attention to women.

Nevertheless, the implementation of this policy is currently facing various challenges. First, its financing comes from two distinct, and not necessarily linked, sources within the Interior Ministry (Segob). Therefore, any attempt to demand an accounting of the impact of the policy is destined to fail. It is Segob that defines the success of the objectives, mostly based on the criteria of whether the physical space of the center is constructed, and not necessarily relative to its impact on the lives of women. The 27 centers that currently exist in 20 states all operate under distinct models and structures. Their operations face the same challenges of professionalization of personnel, as their staff members have not necessarily been trained to address the needs of women who have suffered violence. The staff continue to have the same deficiencies they had before joining the center.

And at the same time as we are trying to consolidate these Justice Centers, the federal government is launching a new policy called Ciudad Mujer (City of Women) that effectively duplicates many of the functions already filled by the centers, in particular their role in providing access to justice. And the new policy originated in the Development Ministry (Sedesol), which is not specialized in women’s issues, and has now moved—along with former Sedesol director Rosario Robles, to the Ministry of Agrarian, Land, and Urban Development (SEDATU). The new policy is welfare-oriented and does not necessarily respond to the actual needs of women in the regions where these “cities” are being opened.

What is more, there is a third program, the Pink Room that is also run by SEDATU and works under the hypothesis that much of the violence occurs due to the lack of space in homes and that what is necessary is the creation of a “safe space” where women can hide with their children. Beginning with the name, the operational stereotypes are evident, and it must be noted that a “safe space” in itself is not the right solution to this sort of problem.

This analysis of the numerous efforts that have been made to combat gender-based violence reveals the importance of improving how public policies are designed. They cannot continue to be formulated behind the closed doors of government offices. We all—the government, academics, civil society—have a role to play in ending the phenomenon of violence against women. But above all, we also have the responsibility to create channels for listening and including in the formulation of policy the voices of women, particularly those who have experienced violence. The design of policies must, furthermore, be accompanied by evaluation mechanisms that follow, monitor, and assess the institutional efforts. The solution is not necessarily the creation of “new” laws and policies, but in assuring that those that already exist function adequately. It is necessary to stop the trend toward “propose but not implement.” If we do not, Mexico will continue to be a country where laws and institutions are meaningless. A place where rights only exist on paper.

Ana Pecova is the Executive Director of EQUIS Justice for Women. This essay was originally published under the title “Derechos de Papel” and is available at: http://www.nexos.com.mx/?p=28495

Translation by Michael Lettieri, Trans-Border Institute.

About Michael Lettieri

Program Officer at the Trans-Border Institute

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