Envío Digital
Central American University - UCA  
  Number 388 | Noviembre 2013



The reform of Law 779 sends society a very negative message

This specialist in women’s human rights shares her thoughts about Law 799, its history, its contents and its recent reform.

Azahálea Solís

The “Comprehensive Law against Violence toward Women” (Law 779) was passed unanimously by the National Assembly on June 22, 2012, and went into effect the next month. Barely a year and three months later, on September 25, 2013, the law was reformed almost unanimously, among other reasons to include mediation.

A few days earlier, we in the women’s movement expressed our rejection of mediation in a public document that included the following idea: “The prohibition of mediation in the law was based on an analysis of the realities in which crimes of violence against women are committed… Before Law 779, mediation was promoted regardless of the seriousness of the crimes. And evidence shows that after agreements were reached the aggressors reinforced their abusive practices against the women and subjected them to reprisals. Far from halting the violence, mediation caused it to intensify, leading to greater damage and, in the worst of cases, the woman’s death. The social message the State is sending out with this reform is deadly, because in addition to that restitution implying the promotion of impunity, it also turns the State and all its operators into the inevitable accomplices of the violence. This is because depite knowing that the mediation mechanism doesn’t work for this type of anti-legal conduct, it indulges and deliberately favors the perpetrators of the crime, therefore leaving the women involved totally defenseless.”

This law has a 30-year history

It’s important to analyze the negative significance of the reforms, but before doing so it’s even more important to place the law in its historical context. This isn’t an imported or a canned law, as some have said or as its detractors have wanted to present it. This law is the fruit of the Nicaraguan women’s movement’s longest struggle. Both its contents and its name have a 30-year history of efforts and struggles by two generations of Nicaraguan women.

The demand for a law such as this one emerged very early in the eighties, during the revolution. When the first women’s centers and collectives were formed in Masaya, Managua and Matagalpa, a very real and frequent problem that until then had been hidden, silenced, started to emerge into the public arena: the high rates of violence women were suffering in their own homes. As it was a period of great polarization and everyone was taking sides for or against the revolution, those who were against it said that women beginning to speak openly and publicly about the violence they were suffering was a product of the “degeneracy” brought by the revolution. Far from it. It was the product of the will of many women to highlight the serious problems they were experiencing, problems that weren’t at all new and were experienced as much by women married to rightwing men as to revolutionary “heroes.” In those years the words expressed by Peruvian socialist and feminist Flora Tristán more than a century earlier became public knowledge: workers oppress their women the same way the bourgeoisie oppress the workers; women are the workers’ subordinates just as workers are their boss’ subordinates.

Women fight for their
rights in the Constitution

This demand for a response to the violence against women appeared on the public stage in 1983-1984, coinciding with the November 1984 general elections, in which we also voted for representatives to the Constituent Assembly that would produce our country’s new Constitution. Those representatives were given the mandate to draft the new Magna Charta over the next two years: 1985 and 1986. The newly elected government decided to also subject the text to a massive grassroots consultation. To that end an innovative process was organized: constitutional town hall forums.

According to the report issued by Comandante Carlos Núñez Téllez, then-president of the National Assembly, 75 forums were held all over the country in which thousands of people debated the issues and offered contributions. These forums were organized by sector: farmers, artists, merchants, workers, journalists, peasants, women, etc. The women’s forums were very intense and relevant, with heated debates and a lot of initiatives. In all those forums the women insisted that men participate in household chores, that women stop being seen as their husband’s sexual object, that those running homes abandoned by men be recognized as heads of household with all the corresponding rights… They called for the right to abortion, and not just therapeutic abortion, which was still legal at that time. They also demanded, and have been demanding ever since, a law to punish the violence they were suffering in their homes. They didn’t talk about “intra-family violence” or “domestic violence.” They referred very clearly to “violence against women.”

Once the forums had been concluded and the debate over the definitive constitutional text moved to the parliament, the Sandinista women were the main spokespeople for the demands the women had made in the forums. When Comandante Núñez presented the final draft of the Constitution, he declared that women’s demands against violence and for respect for their life and integrity within the home, which had appeared with such insistence and force in the forums, had been included in article 36. That article, which we still have in our Constitution, reads as follows: “All individuals have the right to respect for their physical, psychic and moral integrity. No one shall be subjected to tortures, procedures, punishments or cruel, inhuman or degrading treatments.” It’s a text rooted in the Doctrine of Universal Human Rights, and when we read it today we only relate it to violence or torture for political reasons, although in Nicaragua it grew out of the women’s demands against the violence exercised against them in their homes. It is a historical fact: this constitutional article was the concrete and immediate result of what so many women had expressed in the open forums, although it’s naturally broader and refers to any type of violence suffered by any individual in any circumstance.

Looking at women and legislation

With the Constitution in place, two important juridical events were held in 1988. The first was the “Women and Legislation” assembly, which included a good number of women who worked either for the State or in civil society—known as “mass organizations” back then. For the first time in our history, that assembly included a systematization of how women’s rights were or were not being guaranteed in all Nicaraguan legislation: the Labor Code, the Penal Code, etc. We organized the available data to learn more about the phenomenon of violence against women, and then, like now, it was the National Police that had the most data at hand. We systematized the reality of violence that women had been speaking openly about for years but was only beginning to be denounced in the newspapers: where it happened, how it happened, with what frequency, what happened afterward… The results were alarming.

After that event we held another larger one with a Latin American scope: the “Women and Legislation” congress. Some 200 women from Latin America and Spain attended to juridically debate the existing legislation on women in all its dimensions. The most advanced juridical arguments of the period were heard in that congress. When the issue of violence against women was addressed, we decided a specific law needed to be created to deal with it. We saw that the Penal Code was insufficient, largely because it only addressed crimes that occurred outside the home, not inside. There were also other deficiencies. For example, the regulation that punished the crime of rape defined the person who commits that crime as “he who lies with a woman without her consent.” While it was clear that it could be the boyfriend, husband or partner, how is non-consent to be understood if the legislation also includes what is called “the conjugal duty”? Another example: the regulation defined the crime of rape as “against a woman.” In those years I was a military attorney and a military judge. As a number of cases of sexually abused boys reached my desk, we had to classify the cases as “sodomy” because there was no other route for punishisng them. And if there was some kind of kinship between the abuser and the boy we classified it as “incest.” The congress concluded that a finer line needed to be drawn in the legal classifications and that reforms to the Penal Code were required. And it again became clear that a specific law was needed to punish violence against women.

Instead of a law on violence,
the Penal Code was reformed

Instead of making that specific law, however, the Penal Code itself was reformed in 1992 via the “Penal Code Reforms Law” (Law 150). In general terms Law 150 was a good law that corrected everything in the Penal Code referring to sexual abuse, sexual harassment and crimes against women that was out of sync with reality and detrimental to women. But it contained a major aberration: although it was initially proposed to make abortion legal in cases in which a rape resulted in pregnancy, that proposal was voted down; all that remained in the law was that if the pregnancy was the product of rape, child support for the newborn could be demanded of the perpetrator. Despite everything, I don’t think that legal aberration was ever even applied in practice.

In between those major events of 1988 and 1992 came the 1990 elections, in which the revolution was voted out of office. In the first years after that there was a strong ideological bias against some laws approved during the revolution, such as the one permitting the dissolution of a marriage at the request of only one party. The election campaign mounted by the National Opposition (UNO), the 14-member coalition opposing the FSLN, included a proposal to repeal that law. Once in the National Assembly, however, they decided first to analyze what it was producing, what was happening with unilateral divorce. With only a cursory investigation it was shown that women were making the most use of this new legal instrument, and were doing so precisely to get out of violent situations in their homes. In the end the law wasn’t changed.

One very relevant fact during that period—we’re talking about 1992—was that the original bill to reform the Penal Code on the issue of violence was backed by all women National Assembly representatives, independent of their political stripe. They all rallied around it because it addressed an issue that affected all women. Azucena Ferrey, who had previously been a counterrevolutionary leader, was at that time president of the National Assembly’s Women’s Commission, while FSLN guerrilla commander Leticia Herrera was the vice president. Despite the vast ideological distance between them, their findings on the reforms were issued by consensus. That historical event is now virtually forgotten, but it was enormously important to the Nicaragua’s women’s movement at the time.

The Penal Code is reformed again in 1996

In 1994 Latin America approved the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, known as the Belem de Pará Convention for the place in Brazil where it was signed. Nicaragua ratified the Convention and two years later, the same National Assembly elected in the 1990 elections that had put an end to the revolution passed the “Law of Reforms and Additions to the Penal Code to Prevent and Punish Domestic Violence” (Law 230). It contained new advances on the same issue in an attempt to provide better responses to the same problem. For example, it recognized psychological damage to women as a crime and established protective measures for women victims of violence in their homes.

In 1997, a year after Law 230 was passed, we did an evaluation to see how it and Law 150 were being applied. Together with the Network of Women against Violence, the Supreme Court of Justice and the Women’s Institute, we went through the judicial districts of the entire country, with the participation of the appeals courts, district courts, local judges and National Police Stations. What we found was that both laws fell short because they didn’t address the “exes.” Reality showed that a large number of cases of violence against women involved ex-boyfriends, ex-husbands and ex-partners. We also observed with concern an abundance of cases of economic violence in which men prevented woman from working or studying or appropriated the woman’s salary or belongings. Neither law addressed these issues.

As you can see, I’m talking about a long time, from 1984 to 1997. This history shows us that Law 779 has a history, and isn’t either canned or imported. It was born of endogenous reality, of facts and of demands of Nicaragua’s women’s movement, both structured and unstructured. It was born of demands that many women agreed upon over the course of many years.

Two comprehensive laws on
violence against women proposed

Now let’s come up to the present day. With our in-depth demand for a specific law that would address all aspects of violence against women in a more comprehensive manner still unfulfilled, the María Elena Cuadra Movement of Women Workers, together with a number of other organizations, presented a bill to the National Assembly in the second half of 2010 that would finally make that law a reality. It was announced that the legislative branch would approve it on November 25 of that year, International Day against Violence toward Women, but even though the right conditions existed, the date passed without its approval. Soon afterward, the Supreme Court announced that it planned to send the National Assembly its own bill on the issue, which it did in early 2011.

It was evident to us that the FSLN’s National Assembly bench would work to push the Court’s proposal through, but we in the women’s movement insisted that the best of both bills be combined and approved. I think that was the correct position and between March and June 2011 we managed to ensure that it prevailed. The Assembly’s Justice Commission, chaired by Liberal representative José Pallais, and the Commission of Women and Children, chaired by former President Arnoldo Alemán’s daughter María Dolores, worked together to select the best from the two texts. For example, the “object” of Law 799 is textually from the María Elena Cuadra proposal, and the prohibition of mediation was taken textually from the Court’s proposal. Article 1 and the first paragraph of article 2 were also taken from María Elena Cuadra, while the second paragraph of article 2 came from the Court, and so on all the way through the text. Our analysis of the final bill showed that the two proposals were woven together in a way we considered very professional. Moving from the FSLN’s initial intention, which was to approve the Court’s proposal, to the final result, combing the two bills into Law 779, was possible because of the correlation of political forces at that moment: the FSLN didn’t have the National Assembly majority it has today.

Law 779 unanimously passed
by an FSLN-dominated legislature

Over a year later, on June 22, 2012, under the new National Assembly resulting from the 2011 elections in which the FSLN won an absolute majority, Law 779 was unanimously approved by all parliamentary representatives. I think that approving the combined legal text was a decision by the current government to gamble on a kind of “showcase” law because when governments go to the international human rights bodies they need to present their laws and like to boast of all the rights those laws protect. Law 779 was an excellent showcase law.

Let’s read its first article: “The object of this law is to act against the violence exercised against women with the purpose of protecting women’s human rights and guaranteeing them a life free of violence that favors their development and wellbeing in accordance with the principles of equality and nondiscrimination; and establish comprehensive protection measures to prevent, punish and eradicate violence and provide assistance to women victims of violence, promoting changes in the sociocultural and patriarchal patterns that underpin the relations of power.” Any government gets top marks, ten out of ten, for a law that has that objective. The same is true for the second article, because it erases the idea of the “place” of violence by no longer talking about domestic violence or intra-family violence, but rather violence against women in all public arenas and in the private sphere. The law continues to get a high grade if we look at the measures, the principles, the rights… It’s an excellent law and any government could be proud of it.

But the current government couldn’t just use Law 779 only as a “showcase” because we in the Nicaraguan women’s movement passionately embraced the law and made it our own. How could we not since it had cost us 30 years of sustained work, providing data, checking facts, preparing arguments and dedicating our energy to it? Today, despite the reform, which we in the women’s movement reject, we have decided to continue making Law 779 ours so it can be turned into an instrument that defends the rights of all Nicaraguan women.

How did the reform to
Law 779 come about?

The law went into effect on July 22, 2012. In the two ensuing months various suits of unconstitutionality were filed against it, as is legally permitted in Nicaragua. But no one knew anything about them until February 2013, when several officials of state institutions sent photocopies of them to our offices. It was a very helpful move, absolutely unusual; in fact unprecedented. What happened to make them send these documents to us? They wanted us to realize there was a split in the Supreme Court: some justices thought the law should be declared unconstitutional and others disagreed because it would create a political problem. They even invited the women’s movement to publicly support Supreme Court President Alba Luz Ramos, who defended Law 799, because she was being besieged by the machista justices in the Court. We explained that our work wasn’t to support her but to demand that the law be applied and the State provide resources to make that possible.

They finally informed us that some reform to the law was inevitable: either the Assembly would reform it, introducing mediation, or the Court would have to declare it unconstitutional, accepting the validity of the suits against it. In other words, reforming it was the only way to keep the law on the books. In fact, the Court sent the Assembly instructions to partially reform the law.

The Court does an about-face

At that point we launched a campaign to explain that mediation as a legal instrument isn’t good or bad in itself but is inappropriate for issues of violence against women. We quickly realized, however, that the reform being pushed through would go beyond introducing mediation. Among other things, it would assign responsibilities to officials who aren’t trained to deal with the problematic of violence. More important still, it would give the executive branch the power to regulate the law.

At this point it’s useful to recall what the Supreme Court said when it presented its original bill. It said textually: “One of the difficulties or limitations in the existing laws is that they punish the modality of violence that occurs in the domestic or intra-family arena, assuming that the protected subject is the family; it thus does not protect the woman, whether she survives or is in imminent danger of death as a result of the violence against her. There is no response to physical, psychological, sexual, patrimonial or institutional violence and habitual mistreatment that ensures effective protection by the State for the survivor of violence. The deaths of women come after inadequate punishment or after mediation.” The Court said this in its presentation of motives in 2011, yet two years later, with no study and no legal argument, it totally changed its position.

The Ortega government
bullies its way again

The government model we now have in our country is expressed in the way Law 779 was reformed. When it was learned that various suits of unconstitutionality had been filed against the law, several FSLN officials in the branches of government—the Supreme Court president, the women’s ombudsperson and the assistant prosecutor general—as well as four FSLN legislators came out against reforming the law and against mediation. Even National Assembly secretary Alba Palacios stated that Law 779 would not be reformed. It seems that at the outset there still wasn’t a defined position in the governing party. But by the end there was, and the order was sent down to all FSLN legislators to vote for the reform.

All but four on the opposition bench, some of whom had expressed positions in favor of the reform and others against it, also voted for it, perhaps out of fear of being seen as not heeding the Catholic Church hierarchy’s argument that Law 779 was an attack on the family, on religious values, on faith… The opposition legislators did the governing party a huge favor by voting for the reform, protecting it from appearing as the real author. An intelligent opposition would have left the FSLN on its own to clearly bear the responsibility. Didn’t the opposition legislators realize that the reform they approved not only contemplates mediation to “safeguard family unity” but also establishes that it is the country’s President who will regulate Law 779?

What happened some months ago when the National Assembly debated the new Family Code is being repeated with this disposition tagged onto the reform by the President’s office. Right in the middle of the debate, the executive unexpectedly had its representatives introduce the creation of the Family Cabinets into the Code, which is a juridical aberration because if the government wanted to create these structures, it should have done so in a law of a social nature, not in a Code. Those Cabinets are now functioning, even though the Code has not been definitively approved, meaning that they do not yet legally exist.

With this precedent, we can foresee the executive attributing responsibilities to the Cabinets in the regulations related to mediation in cases of violence, which means that these party organizations will be sticking their nose into women’s private lives. It would be a new expression of the social control that characterizes this government.

Putting Law 779 in today’s political context

Law 779 is called “comprehensive” but to be genuinely comprehensive it still needs to incorporate some spheres in which women suffer violence, such as obstetric violence, which wasn’t contemplated. And if it had to be reformed, it should have been to introduce such missing elements, including addressing in greater depth all of the educational aspects that help prevent violence. To merit being called “comprehensive,” Law 779 must also propose a comprehensive reform of the educational system to educate in equality. The law’s emphasis was more on penal and procedural aspects. But that being the case, why regulate the law? What is the regulation the executive branch plans to issue going to include? The President has constitutional faculties to regulate all laws, but those that are regulated are administrative laws—tax laws, traffic laws—to specify the most everyday procedures. But Law 779’s administrative aspects are already clearly regulated so it doesn’t merit a regulatory law.

We must therefore put the reform to Law 779 in today’s political context: who has the power and what model of power it has. The Supreme Court changed its opinion because it received the order to do so from the presidency. And the FSLN legislative bench received and followed that same order. Only taking this into account can we understand how legislators who rationally were in unanimous agreement with a just law changed their position so quickly.

No one argued legal issues,
they just parroted church values

The easiest expedient is to put all the blame on the Church, which would have no possibility of imposing its criteria in a political model different to this one. The Church has a right to voice its opinion; bishops, priests and pastors have the right to do so because they’re Nicaraguan citizens. The problem is that their opinions are put above the Constitution and human rights and their aim is to impose them on all of society. The problem is also that legislators follow the bishops’ opinion, as we saw in the interventions by opposition legislators like Pedro Joaquin Chamorro and María Eugenia Sequeira regarding the reform of Law 779.

The article to introduce mediation was approved by almost all legislative representatives, those of the FSLN and those of the opposition, with only four—the PLC’s two and the MRS’s two—voting against. In the parliamentary debate, neither the FSLN representatives nor those of the opposition offered legal arguments or based their opinions on human rights doctrine. Their only argument was the obligation of women to save family unity. Opposition representatives who call themselves “democratic” presented arguments that had absolutely nothing to do with democracy. They argued family unity and the values the Church was defending. They forgot article 69 of our Constitution, which says: “No one can elude the observance of the laws or impede others from exercising their rights and fulfilling their duties by invoking religious beliefs or dispositions.”

Both in the parliament and in the public debate in the media, those who wanted to reform the law used religious beliefs as an argument. They put no emphasis on women’s right to life and liberty, or even their right to decide whether or not they want to mediate. They only emphasized that it falls to the woman to safeguard family unity. And that’s not even correct: the family is the responsibility of all its members. Only in the women’s movement and in some groups with a progressive mentality did we hear rational juridical arguments based on the social reality.

What will mediation mean
for women who suffer violence?

Now let’s examine what mediation is or could be for women who suffer violence. To do this, I think it would help to understand that a woman subjected to violence in her home is a woman who is somewhere between torture and empowerment. US feminist Rhonda Coppelon has demonstrated that the violence women endure within their own home is similar to torture. She bases her argument on the characteristics of the crime of torture in international law. The elements characterizing an act as torture are severe pain or physical or mental suffering, intentionality and prohibited purposes such as obtaining information, punishing, intimidating and destroying the victim’s personality. Coppelon compares those elements to the ones that occur in situations of violence in the home and concludes that they coincide. If this is the case; if violence causes pain, intimidates and destroys the woman’s personality, in what conditions would she be able to mediate?

To play an adequate role in any mediation, the woman would need to be in a situation of empowerment, of dominion over her life and her own being. Have we seen empowered Nicaraguan women in mediation cases? Not in our experience or our own practice.

Various cases that demonstrate the circumstances in which women enter into mediation have even appeared in the media. Before the reform was approved, women’s organizations demonstrated that 30% of the femicides committed in the country in 2012 followed initial mediation between the murderer and his victim. This evidence is why any analysis of the validity of mediation must take the torture-empowerment axis into account.

Mediation as the
“privatizing of justice”

When the reform was proposed, some jurists also argued that accepting mediation in cases of violence against women was a form of “privatizing justice” as it transferred to the woman the decision of whether or not to continue a judicial process. Given that acts of violence are offenses against public order that affect all of society, women are being burdened with the responsibility of putting an end to a problem that should be assumed by the State.

In offenses against public order, not even the victim’s pardon of the victimizer is accepted because it is understood that the felony affects all of society and the one who suffered it at a personal level doesn’t have the faculty to pardon it. Even earlier, in 2001-2002, various lawyers filed suits against mediation in crimes of common violence with the same argument: it privatizes justice. Mediation is even more questionable in crimes of violence against women.

Mediation principles

Four principles must be taken into account in any mediation process. Two of them are basic: equality between the parties and voluntariness,. Let’s cross those two principles with the characteristics of torture experienced by women abused in their own home. When there’s torture can there equality between the parties and willingness?

A third principle on which mediation is based is opportunity. But we know that by the time a woman comes in to file a charge of violence there have already been many prior opportunities to resolve the problem. Those of us who’ve worked on this issue know that any femicide began with a shove, any murder of a woman began with a graze wound.

The fourth principle sees mediation as an alternative conflict resolution method. But violence against women isn’t a conflict, it’s aggression; it’s the negation of their dignity as human beings, a violation of their human rights. Mediation makes sense in conflicts over property or economic conflicts, but not in violence against women.

Conditions that could make mediation useful

In the current juridical debate in Spain it is being argued that mediation could be useful in cases of violence against women if the women are empowered and if four conditions exist. The first condition is that the woman clearly recognizes she has been the victim of a crime and doesn’t view mediation either as reconciliation or as assuming responsibility for maintaining family unity. The second is that the victimizer recognizes he has committed a crime and doesn’t justify his actions. These two conditions are basic.

The other two are that the mediators have specialized training—which isn’t the case in Nicaragua—and that the mediation process is given follow-up, including obligatory treatment for the victim. But the way mediation is understood in Nicaragua, the first two conditions, which are essential, disappear: we mediate, we fix things up and voilà, it’s like nothing ever happened…

The conditions established by the reform

The reform to Law 779 establishes that mediation only occurs when the judicial process is already underway and takes place before the prosecuting attorney or the judge. It can also only be done once, the woman must voluntarily accept it and it can only be used in “less serious” cases, understood in the law as those punishable with sentences of five years or less in prison. But that covers virtually all cases, because there are five-year sentences for physical violence, psychological violence, patrimonial violence, labor violence, intimidation, threats, abduction of children, sexual harassment… Mediation is allowed for all these crimes with the exception of rape and, naturally, femicide, because there’s nothing left to mediate and no woman to mediate it with…

The reform also establishes that mediation can be done only when the aggressor is a first offender. Do they take us for fools? Being a “recidivist” means having a suit totally concluded with a firm sentence, i.e. a charge has been filed, an investigation done, an accusation lodged, a trial conducted, a sentence handed down, an appeal heard and a new sentence issued or quashed. Only then, once there’s a firm sentence is someone considered to have a prior conviction for violence and can therefore be considered a recidivist.

This is the process established in the law: The woman files her charge with the National Police’s Special Police Stations for Women. The police then investigate the charge and turn the case over to the Prosecutor General’s Office, which also investigates the charge, makes the accusation, and sends the accused to court. The judge is in charge of seeing that justice is done, applying the law. According to the law, then, both the Police and the Prosecutor General’s Office are responsible for the investigation, with the latter orienting the Police and being responsible for the accusation.

We don’t have mediators
trained for situations of violence

With the reform, if the woman voluntarily accepts mediation, she must do it with the man and before that case’s prosecuting attorney or judge once the process is underway. But judges and prosecuting attorneys aren’t trained to mediate adequately. There is installed capacity for mediation in the country, but in relation to other issues. The Supreme Court has a conflict resolution division with people trained as mediators, and there are also other mediation centers, but the majority of those mediators are lawyers, who tend to think in terms of legal processes. In cases of violence, however, a mediator has to focus on protection of rights, leaving the parties to decide. What a mediator has to guarantee is that one party not impose itself over the rights of the other.

The installed capacity in the country is basically to mediate in administrative, civil and labor aspects. There’s less capacity to mediate in criminal aspects. And the capacity to mediate now in cases of violence against women is very limited because this kind of mediation has particularities other crimes don’t have. Courts specialized in violence have recently been created, training judges for the purpose, but they still have little practical experience and the reform has given the power to direct the mediation to many officials who aren’t trained for that task.

The focus of attention to violence has changed from women’s empowerment to “pro-family”

The reform doesn’t give the Special Police Stations for Women any role in the mediation, but it wouldn’t be a bit strange to find those special police advising women to opt for mediation. In fact, they’ve already done that, convincing women to mediate in the name of “family unity.” Until 2006 Nicaragua had a system of attention to women in cases of violence designed by the women’s movement in conjunction with the Women’s Institute, the judicial branch and the National Police. The current National police chief, Aminta Granera, was one of the people who played a leading role in the creation of the Women’s Police Stations.

That system of attention to violence began disappearing in 2007 when the FSLN government started to tell those police stations not to process any charges of violence received from the women’s movement centers. But those centers are the very ones with the most experience in treating violence. They use an empowerment-based approach, convinced that women have the capacity to escape the cycle of violence if they’re given the right tools and instruments. With the orientation coming from the presidency, however, the system of attention that had been built started weakening, finally collapsed and now doesn’t even exist.

The government’s line has been very negative: it changed the focus from empowerment and the women’s personal integrity to the imposition of a “pro-family” focus in which the priority is to save family unity. There was also an attempt to do this during the Bolaños government (2001-2006) but at that time it never went past the discourse stage because there was no capacity to push through such a change of focus. The FSLN government, however, has had both the capacity and the will to do so. This is the context that would make it no surprise to see the Special Police Stations for Women favoring or suggesting mediation, because they’ve now had it pounded into their head that family unity must be prioritized. If they play that role, they’ll be acting outside the law, because they have no authority to do it.

Although the system we built with the State has collapsed, Nicaragua still has a huge installed capacity to support women in the effort to get free of violence. The main focus of the women’s centers has been to work from a perspective of empowerment rather than welfare assistance. There was, and still is, a general tendency toward a paternalistic approach, treating women like minors, incompetents. But it has been demonstrated that empowerment gives women the possibility of getting out of situations of violence. It’s up to the women to escape the violence, but they need instruments.

What now?

What are we in the women’s movement going to do now that Law 779 has been reformed? For one thing, we’re going to file a suit of unconstitutionality against mediation in cases of violence against women, demonstrating that it goes against equality and personal security, which are constitutional rights. As has occurred in other cases, we can use whatever ruling the Court issues in this case to feed debate and reflection in public arenas. There is also the possibility of taking the issue to the Inter-American and United Nations systems, presenting many cases in which we can demonstrate that femicides have followed mediation. What I’m not yet so sure about is whether we should tell women not to mediate. The reform establishes that mediation is voluntary. What we must do is make the State responsible for what has happened. Having no mediation eliminated the possibility of women being blackmailed, pressured or obliged to mediate. Now women are less protected.

What they’re saying and what’s true

Let’s look now at a series of false accusations they’ve flung at Law 779. Some have said, and continue to say, that women are being protected too much and the men get short shrift. But that protection has juridical logic: the unequal and unbalanced power relations in society and in couples require that women be given greater protection. In some countries, the punishment for a business that hires a foreigner in an illegal manner is greater than if it hires a national in the same manner because the foreigner is considered to be less protected than if he or she were living at home, and is thus more vulnerable than the national, who has more possibilities for support in the country. Similarly, a worker is more protected than a business in labor law because the business is considered to have greater economic power, which must be legally compensated by upping the worker’s power. If this is the case in labor law, business law and economic law, why shouldn’t juridical mechanisms that seek more equality within the couple be applied? It isn’t illegal and it doesn’t amount to favoring women. It’s something established in human rights doctrine that teaches us that we must encourage equality through laws when there are obstacles to it.

Some also said, and still say, that the punishments in Law 799 are too great, that the law is excessively punitive. Let’s bear in mind that parricide was punished with a lower sentence than first-degree murder in the Penal Code in effect between 1974 and 2008. The sentence was greater for killing a stranger than for killing a near relative. What was the message that law sent? That you can kill relatives or women, that it’s “cheaper” to kill them than an unknown person. That regulation is illogical because we should assume that the responsibilities to protect and care for each other are greater among relatives than strangers, and thus the punishments should also be greater. Law 779 isn’t unduly punitive because of the sentences imposed by the type of violence. In any case, what this law makes clear is that there are more responsibilities with respect to family members; there’s a duty to protect them.

Some also said, and still say, that Law 779 has increased the violence against women; that there’s more violence now than in previous years. I don’t believe it. I recall the huge number of “crimes of passion” that appeared in the newspapers some 30 years ago. Review La Prensa from the seventies and you’ll see how much women’s blood was on the events pages. Killings triggered by “an outburst of passion” were very frequent. It’s false that there were no femicides; they were just passed off as “crimes of passion.” No one calls it that anymore; journalists and society as a whole have been learning. In Law 779 this type of murder is called femicide. What that does is remove the varnish that glossed over these crimes, making them acceptable for reasons of “passion.”

And then there are those who said, and still say, that Law 779 orders men to be thrown in jail the minute the woman charges them, without any investigation. That’s false. The law does order emergency measures in urgent situations; for example if a man is seen seriously threatening a woman and her children with a weapon, he has been caught red-handed committing a crime and needs to be arrested. Even a civilian can make a citizen’s arrest to avoid greater harm. In other cases, the man is ordered to leave the house and restrained from coming anywhere near the woman. He’s never arrested immediately after a charge is filed, but there were many precautionary measures before this law.

Others said, and still say, that loads of men were imprisoned for not paying child support after Law 779 went into effect. Also false. What’s true is that getting men to pay child support for children they fathered has been a very serious problem in this country. What would actually be the problem in jailing all the irresponsible men who spend their life “putting children in” women then not taking care of those children? I specifically didn’t say “having” children because they don’t “have” them. They just “put” them, to use their own braggart term, then take no financial or other interest in them afterward.

Still others said, and continue to say, that women take advantage of Law 779 to hurt men and leave them “in the street,” even when they haven’t committed any abuse or violence. In my view, anyone who wants to take advantage of a law and has the power to do so probably will. It happens with any law. But I think that these “bad” women who take advantage of the law are found more in the collective imagination than in real life. Ranchera and tango lyrics always talk about unfaithful, deceitful, betraying women… The idea that such women are taking advantage of the law repeats ideas that have been in the social imaginary for a very long time. But who really abandons the home and does the betraying in the vast majority of cases? I once gave a course for male and female police officers from the Women’s Police Stations all over the country, and observed that the whole time they kept talking about the “family unity” they had to defend. So I decided to survey them. It turned out that of the 35 officers in the workshop, not a single one came from a united nuclear family. All had been abandoned by their father and raised by their mother, a grandmother or an aunt… Although every last one of them came from a broken family, they all had in their head the idea of defending the united nuclear family.

The three components of a law

We need to remember that laws are always insufficient. They’re only norms, and the juridical sphere is broader than legal norms. In the juridical sphere it’s required that those who apply the norm have the capacity to do so and that the society in which it is applied holds to the values it expresses.

Three elements must always be considered in law: the formal component (the law’s text), the structural component (the authorities who apply the law) and the political-cultural component (the society in which the law is applied). And those three elements are closely related. Laws totally alien to a country’s development and culture simply don’t come up. And the laws that do get passed are applied in accord with the country’s culture. Not all authorities apply the same law the same way, and not all judges apply it equally, even when dealing with the same case and the same evidence. It’s necessary to work not just on making laws, but also on educating people to change the culture in which it’s going to be applied. In Nicaragua we have to educate to ensure that the permissiveness and naturalization of macho attitudes begin to disappear. We have to educate ourselves to become outraged by the violence against women.

We took a major step forward,
then a harmful step backward

I think that awareness of what violence against women means has advanced a lot in Nicaragua, but more progress is still needed. According to the latest National Demography and Health Survey, done in 2006-2007, one in every ten women surveyed recognized having experienced physical, psychological and sexual violence. Other investigations show that one in every three Nicaraguan women is living with some kind of violence and half of all those who have lived with a spouse have experienced physical, psychological or sexual violence. There is no weightier argument against mediation than the reality of the society in which we live. How are women going to go to mediation if it isn’t conceived from the perspective of the human rights of empowered women, but rather from a vision of women subjected to processes of torture who, on top of that, are burdened with the obligation to save family unity?

It’s not about comparing whether the legislation of other countries accepts mediation or not. Other countries’ legislation only serves as a technical reference for us. We have to compare ourselves with Nicaragua. We took a big step forward with Law 779 after a long history of struggle. And when society backpedals after taking such a step, it’s harmful to the collective self-image, to society itself. With no serious arguments, no study, no appraisal based on reality, we took a step backward, and that’s very serious.

Powerfully negative messages
have powerfully negative results

I have a hypothesis: On October 26, 2006, Nicaraguan society received an awful message with the criminalization of therapeutic abortion. Beyond the fact that abortions have continued to be performed in our country despite that prohibition, the message the FSLN and Liberal legislators sent that day is that women’s lives are worth less and that women don’t even have the capacity or right to make their own decisions when their life is at risk. That’s a powerfully negative message.

It’s no coincidence that the viciousness of the murder of women has been increasing in recent years. There has always been violence against women and murders of women, but there wasn’t the blind rage we see today. I’m not saying the message from the criminalizing of abortion is the only explanation; I’m just saying it was a powerfully negative one.

Sending society the message now that a law that protects women must be reformed even though it’s so recent and is barely being applied is an equally terrible message. I believe it’s also going to have a negative impact.

The two sides of security:
Protection and prevention

To conclude I want to point out that the right to security is an inalienable human right. The Universal Declaration of Human Rights says that life, liberty and security are all inalienable rights. Our own Constitution also establishes the right to personal security among individual human rights. That being the case, personal security has two sides: protection and prevention. The protection side appears when one of our rights has been abused, so a legal and administrative mechanism must exist that allows us to be compensated for it. But security also involves prevention; legal mechanisms that guarantee that our rights won’t be abused in the first place. The guarantee of personal security is nothing other than being able to live free of violence.

The right to be able to go to the police to charge someone who has abused us isn’t enough. We also have to ensure the right not to have to go to the police because women are guaranteed a life without violence, guaranteed that everyone in society knows we’re human beings who shouldn’t be abused and have the right to life and integrity. I believe that having introduced mediation into Law 779 is violates the right to guaranteed personal security. And that’s very serious. For me it’s the most negative part of the reform that includes mediation in cases of violence against women. It’s the most serious of the messages our society has received.

Azahálea Solís is a feminist and a member of Nicaragua’s women’s movement.

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