Saturday, August 27, 2016

State responses to address domestic violence


Over the last two decades, Latin American countries have implemented several kinds of responses to the high numbers of domestic violence cases, and citizens have seen major advances in public interventions to tackle domestic violence. The continent has followed a shared human rights based framework with the adoption of the Belem do Para Convention in 1994. This Convention establishes a variety of measures to prevent, protect, address and sanction violence against women, which are adjudicated to the state. Articles 8 and 9 determine that the state must adopt a very large range of legislative, administrative and institutional programmes to combat violence against women. The approach taken in the Belem do Para Convention reflects the position of third wave of feminism which considers that “the personal is political” and opens the whole of social and private life to state intervention, independently of the types of states that exist in the countries. This position pays insufficient attention to power relations between state and society, and especially social groups in vulnerable situations, and ignores the fact that the law is also an instrument of the state to maintain and reproduce a given social order based on race, class and gender differences. In the case of justice institutions, several studies (Fries, 2008; Lagarde y de los Ríos, 2005; Inter American Commission on Human Rights, 2011; Tiroch, 2010) showed that these state authorities are “prejudiced by gender-based stereotyping to the extent that public officials adopted stereotypical attitudes and blamed the victims themselves, as well as their relatives, for their fate”. Again, instead of protecting and guaranteeing women’s rights, gender bias in institutions re-victimize women through institutional violence which in the end represents the main obstacle for women to get access to justice

 In the Latin America region, there are no studies that have identified trends regarding the way domestic violence is conceptualised and addressed. There are only partial studies, focused on a specific country, and on specific state policies to address domestic violence against women. The criminalisation of domestic violence is the most common response of state authorities, pushed and relayed by international legislation, jurisprudence and institutions. 

But the criminalisation of domestic violence is a major point of contradiction and discussion between academics, policy-makers and activist groups. The supporters of the criminalisation of domestic violence consider it an essential step because of the symbolic value of ‘punishment’. The imprisonment of aggressors is considered to be the most efficient way for the state to protect women. The main opponents of this position see it as an instrument by the ruling class to maintain its power, block the emancipation of women and also victimize women who suffer violence (Alvarez 2003)8 . Among the countries that have included domestic violence in their criminal codes, to different extents, are Mexico, Panama, Uruguay, Costa Rica, the Dominican Republic, Peru and Brazil (CONAVIM 2009a). Another legal mechanism that has been implemented by some Latin American states consists of treating domestic violence through systems of alternative justice. These include ‘community-based mediation or arbitration projects to new specialized or fast-track courts, all aimed at increasing access to justice, especially for the low income population’ (Macauley 2005: 212). An example is the specialized women’s police stations (JECrims) in Brazil, in which ‘the principles of speed, informality, self-representation, oral argumentation and direct plaintiff/defendant interaction with the judge’ are central (2005: 218). It was found that the bulk of domestic violence cases brought forward by women were considered ‘minor’ offences which could be resolved through conciliation. A major critique is that such a system decriminalises and normalizes violence, by suggesting that even the strongest forms of aggression conducted by one party can be resolved by conciliation. Another problem is the inclusion of the police as the first port of call for women victims: 30% of the cases do not get past the police station, and the extent of the violence is often toned down in official reports. The major critique by feminists of this more informal ‘second track’ in the judicialization of domestic violence, normally treated in lower-level courts, is that it does not take into account the gendered nature of domestic violence and fails to protect women from the full extent of the aggressions they suffer. Although the JECrims made domestic violence more visible by moving the conciliation process into the public arena, they have turned crime into an act of simple delinquency such as a ‘traffic fine (2005: 221)’. 

The methods of conciliation and mediation are another critical point of discussion. In the legislative frameworks of Argentina, El Salvador, Mexico and Nicaragua, the use of conciliation and mediation methods is explicitly excluded, whereas conciliation in other countries remains part of the set of possible state responses to domestic violence. Again according to Macauley (2005), in countries such as Chile, Colombia and Peru, conciliation strategies are strongly related to the influence of the Catholic Church and the consideration that family unity must be protected over and above the integrity of women. An evaluation of such conciliation measures in Colombia revealed them to be insufficient because the interventions did not tackle the question of the vulnerability of women in relation to state institutions, or the profound power inequalities between the sexes (Duque & Peña 2004). In Chile, the law of Intra-family Violence is conceived from a human rights and family perspective (Araujo et al. 2000), and does not include a gender-based approach, but in 2008 the Chilean State finally promoted special courts to prosecute intra-family violence crimes, and also created a division to protect victims of intra-family crimes (Larrain 2008). Until then conciliation through the Family Court was the main procedure to claim any abuse from family members. In terms of the provision of protection services, the Belém Do Pará Convention obliges states to create mechanisms to provide direct, free and specialised assistance to victimized women. These services should include legal support, emergency phone lines, psychological support and health care. As an example of this strategy to improve the treatment of victims, countries implemented protocols to train healthcare personnel to detect violence against women and provide the right type of support (Rioseco Ortega 2005; Castillo & Prado 2010).

Although Mexico for a long time had no formal legislation in the field of violence against women at all, it was together with Venezuela one of the first countries to adopt an ecological approach to address domestic violence in its legislation. This means that Mexico developed a comprehensive strategy to tackle domestic violence in which different institutions and mechanisms are put in place and expected to coordinate with each other, with a focus on measures in the fields of prevention, protection, attention and sanction. 
A specific intervention that has managed to incorporate this ecological approach can be found in the General Law on Women’s Access to a Life Free from Violence enacted in Mexico in 2007. The law presents domestic violence as a form of violence resulting from the predominance of a machista culture in Mexico which has permeated the interactions between women and men at the individual, community and societal levels. That is why the law establishes a set of measures aiming to prevent, punish and eradicate violence against women; promote women’s human rights; transform the unequal and violent conditions in which women are living; and coordinate state responses at the federal, local and municipal levels (Martínez Vergara 2007; Pérez Contreras & de Montserrat 2008). 

The combination of interventions - at the individual, relationship, community and societal level - is expected to reduce more effectively the risk levels that leave women in a vulnerable situation that might lead them to have to face a gender-based violent situation. Today, ten countries in Latin America and the Caribbean9 have implemented a similarly comprehensive legislation (ECLAC 2014).

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