The Integral Law Against Violence Against Women, passed last month, has as its principal antecedent the legislative initiative promoted by the Network of Women Against Violence, which in 1995-1996 proposed a bill that eventually became Law 230, sanctioning domestic violence.
That law was later incorporated to the New Penal Code of 2007, but has been subject to criticism from women’s organizations, particularly because it weakened the National Police’s role and gives judges arbitrary authority to use mediation procedures. The result was an increase in impunity and the re-victimization of women.
That prompted a strong call for new legislation, which came about earlier this year with the Integral Law Against Violence Against Women and the reforms to Law 641.
The manner in which the new legislation was passed is, however, an expression of the current state of affairs between the Sandinista government and civil society. This relationship, among other things, has been characterized by a sharp reluctance to recognize the leadership role that women’s organizations have played in promoting and defending women’s rights over the years.
Despite the fact that there were 14 women’s organizations that drafted the bill and brought it before the Justice Committee in the National Assembly, it wasn’t until the current president of the Supreme Court of Justice brought in a second draft version that this Committee proceeded to consult a reduced group of women’s organizations and NGOs.
From the moment the first draft bill was presented under the leadership of the Maria Elena Cuadra (MEC) Women’s Movement in October 2010, until the final approval of the law in February 2012, the women’s organizations that work for the prevention of violence kept up a steady defense of this initiative, even when we weren’t invited to participate in the dialogue that allowed us to influence the process of revision and approval.
Despite the difficulties mentioned above, Nicaraguan feminists celebrate the approval of the law, not only because it is the product of historic demands by organized women, but also because the law itself represents a significant advance in the establishment of the duties of the law in the different state institutions in order to prevent and punish violence against women.
An analysis of the main aspects of the Integral Law
The protected rights in the Integral Law Against Violence Against Women ensure the freedom and sexual and reproductive integrity of women. That provides feminists organizations with a legal ASIDERO of great relevance in the fight against all kinds of violence that puts women’s autonomy at risk from individuals, state institutions and public officials, who endanger women’s rights either by action or omission.
The objective of the Integral Law establishes that it is the state’s duty to protect the human rights of women and act against gender violence, whose causes stem from the prevalence of unequal relations of power between men and women.
As such, the state takes responsibility for promoting change in the socio-cultural patterns that reproduce inequality among women and men and replicate violence against women.
The governing principles of the Integral Law, according to the Political Constitution of the Republic and to international treaties signed by the State, reaffirm full equality between women and men. It provides the right to live free of discrimination, the right to live a life without violence, the right to effective access to justice, the right to protection from the State and the right to redress victims of violence. This last aspect, which was not included in previous legislation, represents an achievement for women.
The scope of the law also represents great step forward. In addition to including interpersonal relationships, inter-familiar relations—including couples and those relations developed in the community—it also addresses the interaction between women and government officials when it comes to women’s access to justice.
Basically, for the first time ever, violence against women is recognized in the exercise of public function. Thus, public officials can be sanctioned if they break the law. The inclusion of a new chapter to Law 641 typifies forms of violence against women. As a result, in addition to physical, psychological, sexual and hereditary violence, the Integral Law also includes femicide as the most extreme form of violence against women.
Identifying femicide as the most extreme form of violence that men perpetrate against women as part of unequal relationship of power represents another significant step forward with this law because it establishes the adaptation of specific measures to prevent, investigate, and punish femicide, as part of the policies of citizen security. In doing this, the State recognizes that gender violence is a continuum which must be dealt with in a timely manner before it leads to the assassination of women.
Yet in regarding the sanctioning of penalties, legislators still need to explain their reasons for distinguishing between femicides that takes place in a public or private space. In both cases, a women is being killed.
There also needs to be clarification on the circumstances of the crime as considered by the commission on femicides. Recognizing misogyny (i.e. hatred toward women as the cause of the crime), includes a section that associates scorn for the victim’s body with the criminal’s satisfaction of his sexual instincts, reasserting the wrong belief that this violence is a form of sex crime and not an act of domination that violates women’s freedom.
The State’s integrated action is another advance. In Article III, Chapter I, the State is obligated to formulate public policies for the integral protection of victims of violence to ensure quick, open, and effective access to public services. The State also has to create an action plan for the prevention, sanction, attention, and eradication of violence. Even though the last term turns out to be grandiloquent in front of such a prominent problem, it requires the involvement of various actors and sectors in society.
It is of primary importance to establish the State’s duty to guarantee the economic, professional, and technological resources that will make sure that the competent bodies meet the agreed mandate to prevent gender violence, sanction criminals, and provide attention to the victims. Nonetheless, it will be through the process of formulation of the national policy that we will be able to verify if such a mandate is assumed with transparency by the current government of Nicaragua.
The creation of new, state-run shelters for battered women is one of the greatest challenges facing the government under the new law. For the past two decades, the only shelters in Nicaragua have been supported and operated by private women’s organizations that work in this field with the sponsorship of international cooperation to the development groups.
At the same time, the state will also be challenged to protect women’s personal goods and family belongings, since oftentimes when women break the relationship with their abusers, the perpetrators tend to misappropriate women’s goods as a form of revenge and blackmail.
Articles 12 and 16 of the law refer to the sanctions that will have to apply to public officials— including members of the military or the police—who commit violence against women. There are sanctions established at the personal level for people who intimidate or threaten a woman with whom they may have had any type of relation, and sanctions at the institutional level for people who maliciously, intentionally or negligently delay, hinder or refuse state attention or legal access to woman.
Another relevant aspect of this law is that it prevents the same state official from giving attention to the victim and the aggressors in the same place at the same time (as occurred previously). It also prevents state officials who had been punished for or accused of committing some kind of violence from attending to victims.
In an effort to prevent gender violence, the State commits itself to encouraging the media to not use the images of women as sexual objects or encourage violence against women. It is worth mentioning that this is an historical demand of feminists that has gone unheard even in the state-controlled media outlets; thus it is expected that the national policy will clearly establish the measures that the Nicaraguan State has to enforce this.
The application of precautionary and preventive measures is covered in Chapter III, representing a step ahead in the definition of the duties of the National Police, the Public Prosecutor, and the Judicial Power, which all require a clear understanding of the serious nature of gender violence, political will and resources to be applied appropriately and efficiently.
Despite the legislative advances mentioned above, it is very concerning that some of the preventive measures include providing psychological or psychiatric attention to the aggressor when the judge deems it necessary. According to that line of thinking, aggressors are considered individuals with “mental disorders”— a premise that contradicts the recognition that gender violence has its roots in the unequal relations of power between men and women.
The implications and mechanisms that the State will use to ensure that aggressors provide the victims of violence with the resources for their support are not clear, in case there is a relation of dependency.
Another great advance in the law is the creation of District Penal Judges specialized in violence, which represents a big challenge for the judicial power. The law also defines the role of the Police for Women and Children, establishing the State’s duty to guarantee enough resources for the operation budget and specialized training for personnel.
The law also empowers police chiefs and officials to issue capture orders for perpetrators of violence against women. This indicates that lawmakers are responding to pressure from women’s groups to make law enforcement more agile in instances of violence against women.
Another relevant part of the law is Article 46, which bans mediation arrangements in crimes stipulated in the Integral Law. Regarding this, it took women’s organizations arduous work to reject mediation, whose result was re-victimizations, lack of access to justice by the victims, and the increase of impunity.
The Gordian Knots of the new law
Title VIII refers to the reform to Law 641 in the Penal Code and contains at least three references that show the weak understanding of the causes of gender violence by some magistrates and legislators of both genders. Article 150 defines the pain and suffering that alter people’s physical and psychic health and integrity, but at the time of defining serious injuries, the article describes only visible and permanent scars on the face or on any other part of the body of a person of the opposite sex.
It is worth looking into the prejudices that this section hides since visible scars, being on the face or any other part of the body, does not take into account damage to personal integrity or the indelible psychological marks that go beyond visible injuries.
Subparagraph (c) in Article 169 is as serious as the one above. This section refers to those victims particularly vulnerable due to illnesses and physical or mental disability who are unable to resist. Therefore, it can be inferred that those victims who do not have any of these conditions will have to demonstrate that they resisted violence and that under no circumstance did they allow it, as Judge Juana Mendez suggested concerning the case of violence committed to Fátima Hernández by Farinton Reyes.
In spite of the frequent cases of sexual abuse committed by catholic priests and evangelical pastors against girls, boys and teenagers of both sexes, the current Law does not claim as an aggravating factor of the violation, sexual abuse and rape of a minor when serving as a spiritual guide/leader.
It is paradoxical for the Integral Law to ponder a pregnancy resulting from a rape as an aggravating factor, while the government insists on penalizing abortion under any circumstance, infringing with this the right for women to have sexual and reproductive freedom as the right to be protected by the present Law.
Finally, the First Chapter under Title VII, which defines the mechanisms for the implementation of preventive attention and protective measures for female victims of gender violence in Article 51, creates the national commission against violence against women, solely integrated by State institutions and leaving the possibility of “inviting” organizations from civil society.
Since women’s organizations are taking the leading role in the fight against gender violence, there is no justified reason to exclude them from participating in the process of formulating, implementing and following -up of the integral policy for prevention, attention and sanction of violence against women.
As we feminists know, it is true that all our rights do not fit into one law. Yet this one represents an important starting point in our daily effort to be able to gain substantive equality. That is why Nicaraguan feminists will be paying close attention to the State’s compliance with its commitment to the application of the law.
Maria Teresa Blandon is a member of the Feminist Movement of Nicaragua and is director of the Feminist Program “La Corriente.” Blandon has a Masters in Gender and Development.
Editor’s Note: This article was translated from its original Spanish by Alejandra Guzmán, who can be contacted at [email protected] for translation services.