Roberta Clarke | Advancing women’s access to justice across the Americas

The International Day for the Elimination of Violence against Women, which is on November 25, reminds us that women’s right to justice is an essential component of the right to live free from violence and discrimination. Without justice, equality remains out of reach. This annual moment invites us to reflect on the progress made in guaranteeing access to justice for women, girls, and adolescents, as well as on the persistence of gender-based violence and the challenges to effective prevention and response approaches.

The Americas and the Caribbean have, historically, been a stage for profound transformations in women’s access to justice. As a result of the advocacy of women’s movements and the collaboration with states, much progress has been made on policy and law reform as well as in the extension of services.

At least 14 countries have enacted comprehensive laws to address and protect against various forms of gender-based violence, while 19 have criminalized femicide or gender-related killing of women. Several countries have also undertaken legal reforms to recognise forms of violence that occur in specific settings and to enhance protection against them. For instance, some states now recognise political violence, sexual harassment in public spaces, obstetric violence, and technology-facilitated violence.

SIGNIFICANT CHALLENGES

Despite these advances, significant challenges remain. Some are structural, such as the persistence of poverty, patriarchal cultural patterns and impunity, while others are related to the inadequate implementation of policies that directly affect the prevention, investigation, punishment, and reparation of cases of gender-based violence against women.

Since the Cotton field v. Mexico case, the Inter-American Court of Human Rights has emphasised that states must act with due diligence in preventing gender-based violence against women. This duty is heightened when other factors of discrimination intersect such as age, ethnic or racial origin, socioeconomic status, sexual orientation, among others. Yet, in many contexts, the denial or minimisation of discrimination and violence against women continues to weaken efforts towards prevention.

At the same time, reporting is a key element of access to justice since this act should trigger the criminal justice system and protection for survivors to seek support and redress. However, most survivors do not file a complaint. According to the United Nations, less than 10% of the women worldwide who seek help for gender-based violence cases turn to the police. This is particularly alarming considering that most gender-related killings of women in the region happen within the context of a relationship with a current or former intimate partner, accounting for more than 60% of cases.

There are many reasons why women and girls choose not to report. In addressing the barriers to reporting, state authorities should ensure a safe environment for filing a complaint and one which protects against retaliatory and violent acts by perpetrators. Following the due diligence duty, states must promptly receive and register victims’ complaints, ensure the provision of interpretation services when needed, and guarantee conditions of safety and privacy throughout the process.

Comprehensive-care services for survivors are still not available or accessible to everyone. Too often, access depends on factors such as location, economic situation, language, or other factors that should not determine women’s and girls’ access to protection and support.

LACK OF GENDER PERSPECTIVE

Another major challenge lies in the lack of a gender perspective in the investigation, prosecution, sanction, and reparation of cases of gender-based violence. Some prosecutors and judges still operate based on discriminatory roles and gender stereotypes, which hinder access to justice and ultimately revictimise women. For example, cases involving the violent deaths of women with a history of domestic violence are sometimes investigated as homicides or even as suicides.

The absence of this perspective can lead to revictimisation and explains why so many survivors abandon legal proceedings. This, in turn, fuels distrust in institutions, which are then perceived not as protectors of rights but as second aggressors, particularly in cases of sexual violence. In addition, comprehensive and transformative reparations are rarely understood as an integral part of the justice process let alone approached with a gender perspective. Legal systems across the region tend to focus on the punishment of the perpetrators, which is important, but often overlook the reparation of survivors.

Indeed, the challenges are many and the threats of the past are more present than ever. However, through collective effort, collaboration between states and civil society, and the courage of survivors, we have achieved the progress we see today. Let this be the starting point that allows us to see justice through the eyes of women in all their diversity, ensuring that justice is not a concession but a rightful claim.

The Inter-American Commission on Human Rights (IACHR) works to promote and protect the human rights of women, girls, and adolescents. In the framework of November 25, the commission will publish a practical guide to mainstreaming gender and intersectionality in cases of violence and discrimination against women. In the following months, it will also issue a thematic report on access to justice for women, girls, and adolescents in Latin America and the Caribbean. We trust that these forthcoming efforts will help strengthen judicial responses across the region.

Commissioner Roberta Clarke is rapporteur on the rights of women at the IACHR. Send feedback to cidh-prensa@oas.org