What is femicide?
In recent years, we have seen greater public awareness with regard to violence against women--especially violence that occurs between romantic partners or former partners--and the reaction of the judicial system in these matters. We have also seen increased debate on the revision of the legal/penal framework applied in sanctioning such conduct in Chile. In 2007, among a wide range of proposals presented for consideration by the Legislature with regard to this problem, one of the most controversial, in legal and political terms, has been a bill to create a special penal code to sanction feminicide, (1) which is understood as homicide of women committed by their current or former partners.
For over a decade, however, feminist literature (2) and the women's movement have used the concept of femicide or feminicide to describe--and initially to draw attention to--murders of women who were killed because of their sex in a socio-cultural context that relegates them to subordinate positions, roles or functions, a context that therefore exposes them to multiple forms of violence. Meanwhile, the recent debate on Chile's political scene and in the country's media tends to restrict the concept to one sort of femicide called "intimate femicide," which describes the murder of a women by a man with whom the victim had or was having an intimate relationship, shared a family or with who she lived. Nonetheless, the political notion of femicide has a much larger scope, including other forms, such as sexual femicide in which the perpetrator may be a stranger. The common element among these killings is the sexual violence exercised against the victims, as in the massive and well-known cases of Mexico (Ciudad Juarez) and Guatemala, which are made worse by the de facto impunity that surrounds them, a consequence of the profound shortcomings or outright negligence in the judicial system of those States. This type of femicide includes murder preceded by rape or other forms of sexual violence, (3) including those crimes committed during armed conflict, the murder of sex workers, etc.
The notion of femicide therefore includes crimes committed in the so-called "private" sphere as well as the "public" sphere, which follows the definition of violence against women in the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (the Convention of Belem do Para). In Article 1, the Convention states that "violence against women shall be understood as any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or the private sphere" (emphasis added).
The concept set forth in the Convention of Belem do Para incorporates the notion of "gender" and, indeed, this convention was the first international human rights treaty to use this term in the way that it had been used by the social sciences since the 1970s, although the convention did not define "gender." In the universal system, the Rome Statute of the International Criminal Court incorporated the term "gender" and defined it as referring "to the two sexes, male and female, within the context of society." (4) While this limited definition has been criticized from a range of perspectives, (5) it does emphasize the common element found in the many different theories on the concept of gender: the social construction that underlies the understanding of femininity and masculinity in a given context.
Therefore, gender violence (or gender-based violence or violence for reasons of gender) includes the category of violence against women--the most widespread and persistent form of gender violence--but gender violence is not limited to women. (6) It may also be perpetrated against those who have a gender identity or a sexual orientation that differs from the dominant orientations or identities our societies, such as lesbians, homosexuals, transsexuals, intersex or transgender individuals, and certain forms of violence can also specifically effect men, who follow or are forced to follow dominant gender models (as in the forced enlistment of young boys in the military).
In any case, gender-based violence, in its different manifestations, including sexual violence, has a disproportionate impact on women. For this reason, the Committee on the Elimination of Discrimination Against Women has indicated that violence against women is also a form of discrimination against women because they are the target of violence due to their gender or because this violence effects them to a far greater extent.
2. "Gendering the Sentence" (8) of Gender Violence
The general obligation to guarantee human rights emanates from the international treaties on the matter, including the obligation to adopt legislative measures that ensure the enjoyment of these rights. Human rights are made reality through the adoption of new laws and through the reversal or reform of existing regulations that may be incompatible with a given treaty. Especially when the right to life and to physical and psychological integrity are concerned, these legislative measures also include the penal code that aims to sanction the acts that are violations of these rights.
As the multiple manifestations of violence against women have been recognized relatively recently as serious violation of human rights, the pertinent legislative measures are still evolving. In terms of the penal code, these measures include overturning discriminatory content, such as in the matter of sex crimes, which allow for partial pardons in certain cases of violence against women. (9) They also include specific new sanctions for violent conduct within the family (as acts of "intra-family
violence" in Chile and elsewhere in the region) and in the community, like human trafficking or sexual harassment. (10)
Most of these new laws are "gender neutral," which means that despite the fact that they address forms of violence that primarily affect women, the criminal code is written in a such way that both the victim and the aggressor could be of either sex. This is the case of sexual crimes, for example: statistics show that most of the victims are women and girls, but the penal code does not specify a gender. In recent years, however, some legislation has suggested that this traditional concept of neutrality be abandoned in relation to crimes of violence against women, especially with regard to violence in the private, domestic or intra-family sphere, given the magnitude and severity of this type of violence and its consequences.
One of the various regulatory models suggested and implemented around the world is the Swedish Penal Code, which in 1998 incorporated the classification of "gross violation of a woman's integrity" in Chapter 4 "On Crimes against Liberty and Peace":
Section 4a: A person who commits criminal acts as defined in Chapters 3, 4 or 6 against another person having, or have had, a close relationship to the perpetrator shall, if the acts form a part of an element in a repeated violation of that person's integrity and suited to severely damage that person's self-confidence, be sentenced for gross violation of integrity to imprisonment for at least six months and at most six years.
If the acts described in the first paragraph were committed by a man against a woman to whom he is, or has been, married or with whom he is, or has been cohabiting under circumstances comparable to marriage, he shall be sentenced for gross violation of a woman's integrity to the same punishment. (Law 1998:393) (11)
The Swedish code therefore presents a specific category for addressing violence against women within heterosexual relationships, without altering the sentence, which is the same for any other case of violence within a "close" relationship at the time of the crime or any time prior. On one hand, this alternative privileges the symbolic impact of the penal code, drawing attention to the violence endured by women in heterosexual relationships, which is widespread, quite severe and has a serious social impact; it also emphasizes the importance of the legal system's reaction to this violence. On the other hand, it has some practical impacts, as well, like simplifying the compilation of statistical information disaggregated by gender. It also makes it easier to monitor the actions take by the justice system and jurisprudence with regard to this sort of violence against women. These practical aspects are fundamental because statistical information is essential for the development of adequate policies to prevent violence against women, including the determination of risk factors, among other information. (12) Likewise, the application of criminal law is gaining recognition for the effective and adequate prosecution and punishment of crimes of violence against women.
More recently, we have seen a different option followed by the Spanish system under the Organic Law on Comprehensive Measures of Protection Against Gender Violence (Law 2004). (13) This law includes aspects related to labor, education, health and advertising and requires the Penal Code to incorporate harsher sentences for certain acts of violence committed by a man against "his wife or the woman with whom he is or has been involved in a similar emotional relationship, even if they did not live together," (14) which has been called "gendering the sentence."
Not only does this legislation specify the gender of the victim and the aggressor (like the Swedish example), it also punishes more severely the violent conduct of a man against a women spouse/partner or former spouse/partner, than the violent conduct of a woman against a man who is or was her spouse/partner or the aggressor of either sex in the case of a same-sex relationship. (15) In fact, since these specific cases are not included in this law, they fall under the regular criminal code. The justification for this difference is found in the Explanation of Motives which states that "for the citizenry as a whole, for women as a group, and especially for those women who have endured this type of violence, the Law demands a strong and unwavering stand by taking solid action to establish these abuses as specific crimes." (16) Not only does the Spanish law define specific crimes (like the Swedish law), it also imposes different sentences based solely on the gender of the victim and the perpetrator, which has given rise to debate on the constitutionality of the law. (17)
The bill for the law to criminalize femicide currently being discussed in Chile, on the other hand, appears to follow the existing legislation, as it merely adds the concept of femicide to the classification of parricide, applying the same sentence in both cases. (18) In this fashion, the bill avoids the debate on the constitutional merit of differential sentencing, but preserves the symbolic and formal impact that is the goal of those who are promoting this bill. In this regard, the Chilean law would be similar to the way in which femicide has been classified in Costa Rica, which is to date the only country that has a separate law criminalizing femicide (19) but which still receives the same sentence that the Costa Rican Penal Code recommends for homicide in cases of family relationship or cohabitation, with only one explanation given with regard to common-law spouses or cohabiting partners. (20)
3. Specific Protection: A Form of Exclusion?
The different examples of law presented above all agree on the inclusion of specific crimes to sanction violence against women in heterosexual relationships, abandoning the traditional, formally neutral, model in the description of crimes. The justification of this sort of special legislation--whether through special laws as in Spain and Costa Rica or through specific types of crime incorporated into the Penal Code, as in Sweden or the pending legislation in Chile--is found in the magnitude, severity and seriousness of the consequences of this particular manifestation of gender violence against women. Given these considerations, the need for specific penal action does not seem to present problems, unless there is differential punishment, as in the controversial Spanish model.
Another factor in the legal and political analysis of feminicide or femicide is also relevant: whether or not it is a good idea to legalize these concepts and the impact of such legalization on their political use, especially considering the fact that certain legal definitions would indicate different phenomenon. In this regard, for example, both the Costa Rican law and the proposed law in Chile only address (partially) what has been called "intimate femicide," excluding the cases of women who were killed by others close to them or in other contexts. This notion of femicide is different from that common in Mexico and other Central American countries--sexual femicide --which is also now being contemplated as deserving of specific legislation. (21) In the case of Mexico, the Committee on the Elimination of Discrimination against Women (CEDAW) has recommended accelerating the approval of the amendment to the Penal Code that defines feminicide as a crime. (22)
The obligation of each State to act with due diligence in the face violence against women includes adopting all the necessary measures to deal with this violence, bearing in mind the specific characteristics of the country in question. Clearly, with regard to the murders of the women in Ciudad Juarez and Guatemala--which are exceptionally brutal and in most cases continue to go unpunished--the respective States should respond appropriately, including by strengthening the judicial system and the legal processes of criminal investigation and sanctioning of crimes. In other countries--such as Chile or Costa Rica--the priorities may be different.
However, the risk of a classification that sets a special sentence only on certain forms of violence against women, without a clause that--in general terms--punishes this same violence when directed at others, can eventually give rise to restrictions or exclusions that may be hard to justify. The Spanish legislation restricts "gender violence" to violence occurring at the hands of a current or former heterosexual couple, i.e., by the man against the women. Violence occurring between same-sex couples--who may be legally married in Spain--is not punished in the same fashion, even though in such a case the same sort of violence may occur within the context of an intimate relationship. In this regard, the Swedish Penal Code is more interesting, by containing both possibilities in the same article and merely giving special emphasis to violence against women in heterosexual relationships but without excluding others from the same protection from violence.
A similar risk is implied in the definitions of intimate femicide described earlier in the case of Costa Rica and Chile: their restrictions can result in the exclusion of protection for individuals in other sorts of intimate or family relationships. In particular, in the case of Chile, we are looking at legislation on acts of "intra-family violence" which includes homosexual relationships (23) except for the most extreme form of violence, which would be limited to heterosexual relationships. Similarly, the legislative proposals that would sanction sexual feminicide face similar restrictions under which the murders of transvestites would not be included but must be tried as common crimes, despite being a clear expression of gender violence.
These aspects are of considerable importance and require specific formulations in the penal codes that will comprehensively define the expressions of gender violence while recognizing the need for legislation that "genders the sentence" for symbolic/legal purposes, as well as the need for improved action by and supervision of the justice system in these cases. To the extent that violence against women is recognized as a form of discrimination, laws that seek to punish it are also anti-discrimination legislation. These laws must therefore be carefully worded to make sure that legislation intended to help women overcome discrimination does not actually produce new forms of discrimination, also for reasons of gender, but this time against smaller groups: those of sexual orientations or identities that are, quite simply, dissident.
(1.) The bill for the law to "Modify the Penal Code and Law No 321, of 1925, to sanction 'femicide' and increase the sentences applicable to this crime" (Boletin: 4937-18) was presented to the Legislature in April 2007. This article only addresses the classification of femicide, without examining other aspects of the bill.
(2.) Use of this word became especially widespread after the publication of Jill Radford and Diana Russell's book Femicide: The Politics of Woman Killing (New York: Twayne Publishers, 1992). This article primarily uses the term "femicide" because it appears in the bill (in the Spanish, femicidio), despite the fact that in many Latin American countries, the term "feminicide" (feminicido) is preferred. In our region, there is some theoretical debate on whether "femicide" is suited to describe these crimes, since certain authors argue that this word only describes the act of killing a woman (the female equivalent of homicide), while the term "feminicide" includes the motivation based on gender or misogyny. Other authors add that feminicide includes the element of de facto impunity or the State's failure to take action on these crimes, emphasizing the responsibility of the State in this regard or extending them to include aggression that does not necessarily provoke the victim's death. For further discussion, see: Consejo Centroamericano de Procuradores de Derechos Humanos. I Informe regional: Situacion y analisis del femicidio en la region centroamericana (San Jose, Costa Rica: Instituto Interamericano de Derechos Humanos, 2006) pp.33-41.
(3.) In the femicide cases discovered during 1999 and 2000 in Alto Hospicio, Iquique, Chile, the initial reaction of the police and the judicial system was also strongly questioned. In this regard see Jimena Silva, Angeles del Desierto. Implicancias de los contratos sociales-sexuales en los crimenes de la comunidad Alto Hospicio, Iquique, Chile (Antofagasta: Universidad Jose Santos Ossa, 2003).
(4.) Art. 7.3 of the Statute.
(5.) See Valerie Oosterveld, "The Definition of 'Gender' in the Rome Statute of the International Criminal Court: A Step Forward or Back for International Criminal Justice?" Harvard Human Rights Journal 18, Spring 2005.
(6.) Spain's Law of Comprehensive Measures of Protection Against Gender Violence (December 28, 2004) includes a restricted definition of gender violence. Art. 1.1 states that "The current Law aims to take action against violence--as a manifestation of the discrimination, the situation of inequality and the power relations of men over women--that is used against women by those who are or have been their spouses or with whom they have been involved in a similar emotional relationship, even if they did not live together." This description thus limits gender violence to violence perpetrated against women in certain, specific relationships.
(7.) General Recommendation No. 19 of the Committee on the Elimination of Discrimination against Women (CEDAW).
(8.) As described by Maria Acale Sanchez in La discriminacion hacia la mujer por razon de genero en el Codigo Penal (Madrid: Editorial Reus, 2006) p. 11.
(9.) Such as clauses that recommended sentencing according to the victim's "reputation" or when the aggressor proposes marriage after the assault or in the case of adultery by a woman being considered a crime.
(10.) While not a crime in Chile, sexual harassment is a crime in Mexico, the Dominican Republic, Honduras, Ecuador, Venezuela and Brazil (Anuario de Derechos Humanos 2008).
(11.) English-language version of the Swedish Criminal Code available online at http:// www.legislationline.org/.
(12.) However, this is lacking in most Latin American countries, including Chile.
(13.) Organic Law 1/2004, December 28.
(14.) There are crimes of serious injuries (Art. 148), abuse (Art. 153), threats of harm that are not considered a crime (Art. 171) and coercion (Art. 172).
(15.) In this regard, in Chile the current legislation on intra-family violence not only proposes the same sentence but also does not differentiate the genders of the victim and the aggressor, and thus, this legislation has also been applied to homosexual couples living together. For example, on January 8, 2007, the La Serena Court of Appeals rejected an appeal of the sentence of guilty issued by the Combarbala Court against a man who habitually abused his male partner and the man's disabled son (RUC 060028438-K).
(16.) Explanation of the motives of Organic Law 1/2004, part III.
(17.) In light of the many complaints that this law is unconstitutional, Spain's Constitutional Tribunal must issue a ruling; in any case, it may be several years before a decree is issued.
(18.) The project proposes replacing the current Art. 390 of the Penal Code with the following: "He who, with knowledge of their relationship, kills his father, mother or child or any other of his ancestors or descendents or kills the man with whom he is or was joined as a spouse or cohabiting partner or through any other intimate relationship, will be committing the crime of parricide and will be punished with the greatest possible sentence in its highest degree to prison in perpetuity. The same sentence will be given for femicide to he who, recognizing the relationship that unites them, kills the woman with whom he is or was joined as a spouse or cohabiting partner or through any other intimate relationship."
(19.) In Art. 21 of Law No 8589 on the Criminalization of Violence Against Women (2007).
(20.) Art. 21 of Law No 8589 on the Criminalization of Violence Against Women states: "Femicide. A prison sentence of 20 to 35 years will be given to whosoever kills a woman with whom he/she has had a relationship of marriage, whether in a declared union or not." However, the Penal Code in Art. 112 states: "Specified homicide. A prison sentence of 20 to 35 years will be given to whosoever kills: 1. His/her ancestor, descendent or spouse, biological sibling or common-law spouse, if they have one or more children in common and have been living together as a couple for over two years prior to the act" (emphasis added, Anuario de Derechos Humanos 2008).
(21.) In Mexico, the proposal for the decree "that adds to the Second Book of the Federal Penal Code the Twenty-eighth Title, 'On Gender Crimes,' and Articles 432, 433 and 434 to classify the crime of feminicide and adds number 35 to article 194 of the Federal Code of Criminal Procedure and point VI to article 2 on the Federal Law Against Organized Crime" was presented December 7, 2004 and approved unanimously by the Chamber of Deputies on April 2006. The description of femicide is also included in the initiative of the "General Act on Access of Women to a Life without Violence." However, this regulation was finally approved (in February 2007) without the special criminalization of feminicide, which was replaced with other measures against "feminicidal violence."
(22.) In the concluding comments of the Committee on the Elimination of Discrimination against Women to the sixth periodic report of them Mexico, the Committee made the following recommendation: "15. In the light of its general recommendation 19, the Committee urges the State party to take without delay all necessary measures to eliminate violence against women by any person, organization or enterprise, as well as violence committed by, or resulting from, actions or omissions by State agents, at all levels. The Committee urges the State party to accelerate the adoption of the amendment of the Penal Code to define the specific crime of femicide, and to proceed with the speedy adoption of the proposed General Act on Access of Women to a Life without Violence...."
(23.) See note 15.
The author is a Chilean lawyer, a research fellow at the Department of Penal Sciences in the Universidad de Chile's Law School, and a Ph.D. candidate in Public Law at the Universidad Autonoma de Barcelona. This article was originally published in the Anuario de Derechos Humanos 2008 by the Centro de Derechos Humanos (CDH, Center for Human Rights) in the Universidad de Chile's Law School and was also presented at the Seminar "Femicidio en Chile; tipificar para erradicar" held by the Red Chilena contra la Violencia Domestica y Sexual (Chilean Network Against Sexual and Domestic Violence) November 23, 2008.
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|Author:||Vasquez, Patsili Toledo|
|Publication:||Women's Health Journal|
|Date:||Jan 1, 2009|
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