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Monitoring Alternative Report from El Salvador to the International Covenant on Civil and Political's rights
   

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ALTERNATIVE REPORT TO THE

INTERNATIONAL PACT ON CIVIL AND POLITICAL RIGHTS

FROM A GENDER PERSPECTIVE[1]

CLADEM/Brazil

 

 

I.                    EXECUTIVE SUMMARY

 

In Brazil there is a serious lack of respect for the most elemental human rights of women, who account for more than half of the population.  In the area of serious violations of women’s human rights, the following stand out: 1) violence against women; 2) sexual exploitation and the trafficking of women; 3) violation of sexual and reproductive rights; 4) violation of the right to civil documentation; 5) violation of rights in the family setting; and 6) violation of the right to participate in politics.  Some of the main aspects of these violations that comprise the core issues of this report are summarized below.

1) Violence against women.- Despite the fact that most Brazilians acknowledge that it is a very serious problem, violence against women is still not adequately addressed by the Brazilian State, due to the ineffectiveness of the legislation and the inability to guarantee women protection and reparations, as well as to change the culture of inequality and discrimination.  According to Perseu Abramo Foundation data for 2002, each 15 seconds a woman is beaten in Brazil.  In spite of everything, some efforts of the Executive and Legislative Branches coincide with the demands of civil society to approve a specific law, which is needed to ensure the international standard established by the Belém do Pará Convention.  In the National Congress, Substitute Bill 4559/04, presented by the federal government, is in process. Last August 24, the bill was approved by the Social Security and Family Commission, and is now in process with high priority. It will still be analyzed by the Finance & Tax, and Constitutional, Justice, & Citizenship (CCJ) committees.  Soon afterward, it will be voted upon by the full Congress.

2) Sexual Exploitation and Trafficking of Women. Despite the fact that Brazil has ratified several international agreements that make it possible to suppress and punish the sexual exploitation and trafficking of women, which are also classified as crimes in the Brazilian penal code, impunity and the involvement of police, military personnel, and civilians increases the vulnerability of Brazilian women, mainly poor children and adolescents and young indigenous women.  Therefore, combining gender, ethno-racial, age and socioeconomic factors to commercial interest, the phenomena is enormously complex.   It is more frequent in the poorest regions of Brazil and has been insufficiently addressed by the State.  Although there is a National System for Combating the Sexual Exploitation of Children and Adolescents, which has a nationwide, toll-free telephone line at its disposition for taking calls and channeling complaints, and monitoring the police, this system is precarious and incapable of reducing the hidden aspect of the problem.

 

3) Violation of sexual and reproductive rights. Regarding reproductive rights, it can be stated that currently,  the main demand of Brazilian women is the legalization of abortion, classified as a crime in the Brazilian Penal Code.  Abortion is the fourth most frequent cause of maternal death and a matter of social justice.  Despite its illegality, the practice of abortion is widespread in Brazil, and its impact differs for poor women who do not have the resources to pay for the procedure in clandestine clinics.   It is estimated that one million clandestine abortions are performed annually in Brazil, which produces serious damage to the health and lives of women, and affects public spending due to the hospitalization of women resulting from unsafe practices.  On the other hand, legal abortion in cases of sexual violence, one of the exceptions not punishable according to the Penal Code (the other is risk to the life of the mother), goes no further than juridical rhetoric.  The inexistence and invisibility of providers of this service are related to the strong religious influence in Brazilian society and the unequivocal violation of the principle of laity of the State. Pressured by international commitments and the results of the 2004 I Conference on Public Policy concerning Women, in 2005 the federal government instituted a Tripartite Commission (executive and legislative branches and civil society) to review the punitive legislation on abortion.  A bill that decriminalizes and legalizes abortion in Brazil was sent to Congress by the administration with the support of civil society led by the Brazilian Conference for the Right to Legal and Safe Abortion, on September 27, 2005.

4) Violation of the right to civil documentation. The high rates of under documentation in public records shows deficit of citizenship existing in Brazil.  In spite of the fact that legislation establishes that registration is free to persons officially declared to be poor, access to this right is not universal.  It is estimated that 20 of the 170 million Brazilians are undocumented.  In addition to economic factors, other cultural factors related to the patriarchal tradition that the father should be the one to register a child play a part in under or late registration of births.  In the poorest regions, where infant mortality rates are higher, the popular belief that one should wait to see if the child survives his/her first year of life also contributes to under or late registration.  Statistics for the year 2003 indicate that 40% of the rural population has no civil documentation, and that 60% of this group is made up of women.  The federal government has conducted campaigns and the National Mobilization of Public Records Program which, together with civil society, carried out numerous activities in 2003 and 2004. 

5) Violation of rights in the family setting. The juridical equality of men and women was established in article 5 of the 1998 Federal Constitution.  Article 226 of the Federal Constitution established equality in the family, stating that the rights and responsibilities related to married couples are equally applicable to men and women.  Law 10.406, of January 10, 2000 (new Civil Code) breaks with the legacy of discrimination against women established in the 1916 Civil Code, which legalized the gender hierarchy and reduced the civil rights of women.  The code omitted some urgent issues and was negligent in reediting some perceptions based on discriminatory morality.  For example, it did not address important, everyday, factual situations involving women, such as genetic developments, technological revolutions and homosexual relations.     Although the Judicial Branch is sensitive to the social emergency of new values, like other state and social institutions, it reproduces ideas and social stereotypes, with a predominant tendency toward patriarchal ideology, marked by expressions that reveal the attribution of social roles according to gender. 

6) Violation of the right to participate in politics. According to electoral statistics of the Superior Electoral Tribunal, in 2000, women accounted for 50.48% of the national electorate.  In the Legislative Branch, the quota policy has proven to be a useful instrument, though it is limited in scope.  In 1994 (before the quota legislation) the percentage of female candidates in Brazil was 7.18%; in 2002, (with the adoption of the quota law) this percentage rose to 14.84%, according to information from the Superior Electoral Tribunal itself.  Despite representing 52.14% of all Direct Administration civil servants, women have higher representation in low positions in the hierarchy.  In the Judicial Branch, until 2000 there had been no women in the Superior Tribunals.  In 1998, the participation of women was only 2%, increasing to 8.2% in 2001.  It is worth noting that in the first and second lower courts, the 30% participation of women is due to the fact that these positions are filled by public competition and not by political appointment, as is the case in higher courts.    

Finally, in the context of the serious violations of human rights covered by the core issues previously summarized, the incorporation of the perspectives of race, ethnic group, and regional inequality is still fundamental.  This means that in addition to the specific vulnerability resulting from gender, Brazilian women have an accentuated degree of vulnerability to violations of their rights, since they suffer double or triple discrimination when racial, ethnic, and socioeconomic inequality factors are added to the gender factor.  Discrimination implies poverty, and poverty implies discrimination.


 

 

ALTERNATIVE REPORT TO THE

INTERNATIONAL PACT ON CIVIL AND POLITICAL RIGHTS

FROM A GENDER PERSPECTIVE[2]

CLADEM/Brazil

 

II – INTRODUCTION

 

In the evaluation of the women’s movement, an outstanding aspect was the integration developed throughout the period prior to 1988, while efforts were being made to progress in the constitutional area.  This process culminated with the preparation of the “Letter from Brazilian Women to the Constituents”, in which the main demands of the women’s movement were considered, following an extended national discussion and debate. The result of the competent integration of the movement during the constituent work was the incorporation of the majority of the demands formulated by the women in the text of the 1988 constitution.  The 1988 Federal Constitution symbolizes the juridical framework of the democratic transition and the institutionalization of human rights in the country.

As Leila Linhares Barsted observes: “The Brazilian feminist movement was a fundamental actor in this process of legislative and social change, denouncing inequalities, proposing public policies,  acting together with the Legislative Branch and also, in the interpretation of the law.  Since the mid 70’s, the Brazilian feminist movement has fought for equal rights of men and women, the ideals of Human Rights, defending the elimination of all forms of discrimination, in the law as well as in social practices.  In fact, the organized action of the women’s movement in the preparation of the 1988 Federal Constitution served to find the propitious occasion to gain new rights and analogous obligations of the State, such as acknowledgement of equality in the family, repudiation of domestic violence, equality among sons and daughters, recognition of reproductive rights, etc.”[3]

            Regarding constitutional achievements, the success of the women’s movement can be clearly demonstrated through articles of the Constitution   which, among other things, ensure: a) the equality of men and women in general (article 5, I) and specifically in the family setting (article 226, paragraph 5); b) the acknowledgement of a stable union as a family unit  (article 226, paragraph 3, regulated by Laws 8.971, of December 29, 1994 and 9.278 of May 10, 1996);  c) the prohibition of discrimination in the labor market due to gender or marital status (article 7, XXX, regulated by Law 9.029 of April 13, 1995, which prohibits requiring pregnancy and sterilization certificates, as well as other discriminatory practices for purposes of obtaining or maintaining a juridical labor relation); d) special protection for women in the labor market, by means of specific incentives (article 7, XX, regulated by Law 9.799, of May 26, 1999, that inserts rules on women’s access to the labor market in the Consolidation of Labor Laws); e) family planning as a freely made decision of the couple, with the State responsible for providing educational and scientific resources for exercising this right (article 226, paragraph 7, regulated by Law 9.263 of January 12, 1996, which is concerned with family planning in the area of overall, integral health care); and f) the duty of the State to restrain violence in the area of family relations (article 226, paragraph 8, with the establishment of obligatory reporting of cases of violence against women treated by public or private health services anywhere in national territory, in accordance with Law 10.778 of November 24, 2003). In addition to these advances, Law 9.504 of September 30, 1997 is worth noting; it establishes election rules, skating that each party or coalition must reserve a minimum of thirty percent and a maximum of seventy percent for the candidacies of each sex.  Additionally, the crime of sexual harassment is dealt with for the first time in Law 10.224 of May 15, 2001.

            In the Brazilian experience, it must be noted that the advances achieved internationally have spurred internal changes.  In this sense, the impact and influence of documents is worth highlighting, such as the 1979 Convention on the Elimination of Discrimination against Women, the 1993 Declaration and Action Program of the World Conference on Human Rights in Vienna, the Action Plan of the 1994 World Conference on Population and Development in Cairo, the 1994 Inter-American Convention to Prevent, Punish and Eradicate Violence against Women, and the Action Platform of the 1995 World Conference on Women in Beijing.  These international instruments inspired and oriented the women’s movement to demand local implementation of advances attained on the international level. 

In the juridical-regulatory area, the post-1988 period is marked by the adoption of extensive national laws to protect human rights, added to which is the Brazil’s increasing adherence to the main international treaties on the protection of human rights.  In this way, the 1988 Federal Constitution is a celebration of the reinvention of the Brazilian juridical regulatory framework in the field of human rights protection.

Despite significant advances made in the constitutional and international spheres, at times reinforced by scattered infra-constitutional legislation that reflects the contemporary demands and wishes of women, a sexist and discriminatory view of women still exists in the Brazilian culture, impeding women from exercising their most fundamental rights with full autonomy and dignity.  It is worth noting that, concerned about seeking solutions to this reality, the federal government held the 1st National Public Conference for Women in July of 2004 in Brasilia, gathering nearly 2000 women from all regions of the country.  Moreover, supported in the proposals approved at this conference, the Special Secretary for Policies for Women (SPM/Presidency of the Republic) launched the National Policy Plan for Women.  

According to data from the Brazilian Institute of Geography and Statistics, (IBGE – PNAD 2003)[4], of the 173,966,052 total inhabitants of Brazil, 89,108,243 are women (51.2%). The Brazilian population is concentrated in urban areas (84.3%), where 76,080,540 women reside (51.8% of the urban population, which is 85.4% of the female population). Barely 15.7% of the Brazilian population lives in rural areas, 47.7% of whom are women (13,027,703 women live in rural areas, which is 14.6% of all women).

 

III. CORE ISSUES

 

III.1. VIOLENCE AGAINST WOMEN – Articles 6 and 7 of the IPCPR

Article 226, § 8 of the 1988 Federal Constitution establishes that “the State will ensure assistance to each family member, creating mechanisms to inhibit violence in family relations.” 

Regarding violence against women in Brazil, the majority of women do not sport sexual violence, due to harassment or fear, especially when it occurs in a domestic setting or within the family, which indicates a “hidden figure”. Physical, sexual and psychological violence against women is a manifestation of historically uneven power relations between men and women, supported and perpetuated by underlying cultural issues. Violence against women may occur by means of physical aggression (beatings, murder); sexual aggression (rape, sexual coercion, incest, sexual harassment) and emotional abuse (threats, privation, mistreatment and discrimination). 

One out of every four women in Brazil has already been a victim of domestic violence.  According to the International Development Bank, violence takes up close to 10.5% of the GNP of Brazil. According to available statistics and records of police stations specializing in crimes against women, 70% of the incidents occur in the home and the aggressor is the woman’s own husband or partner; more than 40% of the violence results in seriously bodily injury as a result of punches, slaps, kicks, burns, beating, and strangulation[5]. Nearly 70% of Brazilian women who are murdered are victims in the setting of their domestic relations[6]; according to the Nacional Human Rights Movement investigation, 66.3% of those accused of murdering women are their partners.

A lack of national information on the incidence of violence against women impedes precise evaluation of the Brazilian reality, due to the inexistence of adequate monitoring and evaluation instruments to obtain knowledge on the national phenomenon. It also hampers making proposals and the establishment of national policies guaranteeing women’s rights.  In addition to the lack of information, there is also a lack of systematic data broken down by sex, impeding a precise view of violence against women.

Despite being a participating state in the Inter-American Convention to Prevent, Punish and Eradicate Violence against Women (“Convención de Belém do Pará”) since 1995, Brazil still does not have specific legislation on prevention, punishment, and eradication of violence against women.  Law 9099/95, instituted by special criminal courts to deal with less serious crimes, punishable by no more than two years of imprisonment.  Law 9099/95 considers crimes such as mild physical injury  (initial paragraph of article 129 of the Penal Code) and threats (article 147 of the Penal Code) as minor criminal offenses, punishable by no more than one year of imprisonment – which represents a reverse to the extent that it leaves domestic and family violence against women, which are defined as being against the public order in the terms of the Convención de Belém do Pará, to be dealt with privately.  However, this solution has been unsatisfactory, whether because of the notion that violence against women can be conceived to be minor criminal offenses and not as a serious violation of human rights; or the naturalization and legitimization of this pattern of violence, reinforcing a hierarchy between the genders.  To the extent that conciliation and compromise are favored, and proceedings are frequently suspended as well, this violence is often taken lightly in the Criminal Justice system. The law functions inefficiently, promoting a certain tolerance toward domestic violence, to the extent that the aggressor is condemned to pay a basic basket or do community service for a short time – which can affect the woman herself who has been the victim of violence, since her aggressor companion stops acquiring food for the home to pay the basic basket determined judicially.  Cases of violence against women in Brazil are viewed with doubt, whether as a domestic quarrel, an act of vengeance or animosity of the victim, or even as the fault of the victim herself (who, due to her behavior, must have deserved a violent response).

The creation of Police Stations for the Defense of Women in the governmental area is the main public policy on the defense of women against violence.  However, they are not enough to attend to the majority of Brazilian women.  In 2002, there were 307 Specialized Police Stations in all of Brazil – the majority concentrated in the southeast region.  Additionally, several gaps in the service provided by existing Police Stations show the precarious implementation of this policy and lack of preparation of their staff regarding gender, since in general, they repeat prejudice and discriminatory techniques in attending to the victims.  The majority of health services are not prepared to attend to women who are victims of violence, particularly cases of sexual violence – only a small number of public hospitals offer the service of interruption of pregnancy resulting from rape, as established by law. 

In 2001, the Brazilian State was denounced by the Inter-American Commission on Human Rights for negligence and omission in relation with domestic violence in case 12.051 (the Maria da Penha Maia Fernandes case) according to Report No. 54/01, dated April 16, 2001[7].   In a claim sent to the Inter-American Commission by CLADEM and CEJIL on August 20, 1998, it was alleged that the Brazilian State was tolerant toward violence committed by the then husband of the victim in their home, during years of marital cohabitation, which culminated in attempted murder and aggression in May and June of 1983, – violence which left the victim paraplegic and suffering from other health problems as well.  In the petition, reference was also made to the tolerance of the State for not having taken the necessary measures for processing and punishing the aggressor for more than 15 years, in spite of the claims filed. The Inter-American Commission on Human Rights denounced the Brazilian State for human rights violations to the detriment of Maria da Penha Maia Fernandes, concluding that this violation follows a pattern of discrimination regarding tolerance toward domestic violence against women in Brazil due to the ineffectiveness of judicial action.  The Inter-American Commission on Human Rights recommended that the Brazilian State:

1.      Rapidly and effectively complete criminal proceedings against the person responsible for the aggression against, and attempted murder of, Maria da Penha Maia Fernandes.

2.      Conduct a serious, impartial and exhaustive investigation to determine responsibility for irregularities and unjustified delays that impeded the rapid and effective of the person responsible, as well as taking administrative, legislative and judicial measures. 

3.      Without affecting actions which could be taken against the person responsible, adopt the necessary measures for the State to ensure that the victim receives adequate symbolic and material compensation for the violations established, particularly for failing to offer rapid and effective recourse; for leaving the case in impunity for more than fifteen years; and for impeding the possibility of timely civil compensation.

4.      Continue and intensify the reform process to avoid tolerance on the part of the State and discriminatory treatment regarding domestic violence against women in Brazil.  The Commission particularly recommends the following: 

a)     Measures to train and sensitize judicial personnel and specialized police so that they understand the importance of not tolerating domestic violence;

b)     Simplify criminal judicial procedures to reduce processing time, without affecting the rights and guarantees of due process;

c)      The establishment of rapid, effective, extra-judicial ways of solving conflicts within families, as well as sensitivity relating to the seriousness and criminal consequences of violence;

d)     Increase the number of special police stations for the defense of women’s rights, granting them the special resources necessary to process claims effectively and investigate all reports of domestic violence, as well as lending support to the Public Ministry in the preparation of judicial reports;

e)     Include units aimed at understanding the importance of respect for women and their rights recognized in the Belém do Pará Convention in their curriculum, as well as intra-family conflict management. 

5.      Present a report on compliance with these recommendations to the Inter-American Commission on Human Rights for the purposes established in article 51(1) of the American Convention, within 60 days of the presentation of this report to the State.

        However, 4 years after the ICHR’s merit decision (Report n. 54/01 of April, 2001), the Brazilian State still has not totally followed the recommendations formulated by the ICHR. It barely complied with recommendation no. 1 (with the conclusion of the process in the national area and imprisonment of the person responsible for the aggression against, and attempted murder of, Maria da Penha). Regarding recommendation n. 4, of June 3, 2004, by means of Decree no. 5.099, regulations were established for law no. 10.778, of November 24, 2003 (which established obligatory reporting in cases of violence against women treated by public or private health services); in 2004, Law no. 10.886 was approved, classifying the crime of domestic violence in article 129, paragraph 9 of the Penal Code, establishing sentences of six months to one year for the aggressor in these cases.   Action was also taken on recommendation 4. “a”, with a project carried out by the Office of the Special Secretary on Policies for Women, the Office of the Nacional Secretary of Public Safety and entities for the defense of women’s rights, coordinated by the NGO CEPIA/RJ, to train civilian police in the five Brazilian regions starting in 2002.  However, there was no progress related to recommendations nos.  2 and 3, or the specific recommendations of no. 4 (a,b,c,d,e).

In November of 2004, Bill 4559/2004, which was to create mechanisms to suppress domestic and family violence against women, was presented to the National Congress; it is still in process[8].  Bill 4.559/04 defines domestic and family violence against women as “any action or conduct based on gender relations that causes death, harm, physical, sexual, psychological, moral or material damage”.  Additionally, it determines female directors of public policy and coordinated action for the prevention and eradication of domestic violence against women.  This project sets forth the creation of a specific procedure, within Law no. 9.099, for cases of domestic violence, in addition to proposing the creation of jurisdictions specialized in this type of violence.  In its transitory rulings, it establishes that the Union, the Federal District, Territory and States can create Special Jurisdictions and Tribunals with civil and criminal competence for Domestic and Family Violence against Women.  The proposal even considers referring women subjected to violence and their dependents to protection programs and services, guaranteeing their rights to keep their children and property.    

However, Bill 4559/2004 upholds Law 9099/95 for crimes with sentences of up to 2 years, which motivated civil society to prepare a substitute bill to perfect the Project.  Considering that the procedure of Law 9099/95 is not an adequate instrument for dealing with violence against women, several public hearings were held to discuss the problem and existing and/or necessary public policies to combat violence against women, as well as to debate the bill.  On August 16, 2005, the National Seminar “Violence against Women: a Final Point” was held to discuss matters related to violence against women and the substitute for Bill 4559/04.  On August 24, the bill was approved by the Commission on Social Security and Family and it has been given high priority.  It will still be analyzed by the Finance & Tax and Constitution, Justice & Citizenship (CCJ) commissions. It will then be voted on by the full Congress.

Substitute Bill no. 4559/04 is intended to remove crimes concerned with domestic and family violence against women from Law 9099/95.  It sets forth the creation of a Tribunal for Domestic and Family Violence against Women, with public proceedings, competence for civil and criminal proceedings, refusal of representation only before a judge who can disallow it; prohibition of the application of pecuniary and basic basket sentences; and the establishment of a fine in case of failure to comply with the sentence. The substitute bill also sets forth the perspective of gender and race/ethnic background in the diagnosis, recording of data, training and educational programs; as well as special assistance for children who live with violence; reinforcement for police stations which serve women, and training for military and civilian police.  The substitute bill also sets forth the possibility of including victims in assistance programs and victim and witness protection programs, measures for job transfers in the case of government employees, and labor stability during a six-month leave of absence; it provides for protective emergency measures and the obligatory creation of psychological-social and juridical attention centers, refuges, specialized police stations, nuclei of ombudsman, health services, specialized centers for medical-legal expertise, and education and rehabilitation centers for aggressors. 

 

III.2. SEXUAL EXPLOITATION AND TRAFFICKING OF WOMEN – Articles 7 and 8 of the IPCPR

Article 227, §4 of the Federal Constitution establishes the punishment of any form of abuse, violence and sexual exploitation of children and adolescents.  There is no specific reference to the trafficking of women in the Constitution.  

Regarding the suppression and punishment of trafficking and sexual exploitation, in addition to the human rights treaties ratified, Brazil ratified the following international instruments: the Convention and Final Protocol for the Suppression Traffic in Persons and the Exploitation of the Prostitution of Others (1949 Convention); the UN Convention against Transnational Organized Crime (Palermo Convention 2000) and its Protocol to Prevent, Punish and Eradicate the Traffic of Persons, especially Women and Children (ratified by Brazil in 2003).

The Statute on Children and Adolescents (Law 8.069/1990), regulated by article 227, initial paragraph, and §4 of the Federal Constitution, contains legal provisions for the prevention, suppression and punishment of traffic and sexual commercial exploitation of children and adolescents in articles: 82 (infantile and juvenile prostitution – prevention); 83 to 85 (traffic in children and adolescents - prevention); 240 and 241 (infantile and juvenile pornography – suppression and punishment); 251 (traffic – suppression and punishment) and 258 (prostitution and pornography – suppression and punishment).

The traffic and exploitation of women is classified as a crime in articles 227 to 231 of the Brazilian Penal Code (Decree Law 2848/1940). These crimes are considered in Title VI of the Code, titled “Two Crimes Against Decency”.  Once more, the need to reform the criminal legislation to include the crime of traffic and sexual exploitation of women as a crime against the individual is reiterated. It is against a woman’s dignity and not a crime against decency.

Article 231 of the Brazilian Penal Code, recently modified by law 11.106, approved on March 28, 2005, deals specifically with traffic in persons for the purpose of sexual exploitation.  This legislative change was an important victory for Brazilian civil society.  Until 2005, article 231 of the Penal Code only dealt with the conduct of facilitating or international traffic in women for the purpose of commercial sexual exploitation. Starting in 2005, anyone can be a passive subject of the crime, regardless of his/her sex.  The concept of internal traffic in persons was also added.  The new penal description now reads: “article 231 – promote, serve as an intermediary, or facilitate the entry into national territory of a person engaged in prostitution or the departure of a person to engage in it abroad” and “article 231-A – promote, serve as an intermediary, or facilitate in national territory, the recruitment, transfer, lodging or reception of a person who is going to engage in prostitution”. In spite of this important reform, article 231 is still included in Title VI of the Penal Code, “Two Crimes Against Decency”.

Traffic for the purpose of commercial sexual exploitation of women, children and adolescents is a complex phenomenon with combined gender, age and socioeconomic factors.  It is a practice that is expanding, but that, due to its criminal and highly masked nature, is protected by a “hidden figure”.   The International Organization for Migration estimates that each year nearly 4 million people are victims of traffic in the world[9].  The main victims of traffic in human beings are women and girls.  For this reason, there are no data on traffic and sexual exploitation of men and boys, impeding any comparison between genders.  However, the majority of the captors are male, 59%, ranging in age from 20 to 56[10].

            The PESTRAF (Investigation of Traffic in Women, Children and Adolescents for the Purpose of Commercial Sexual Exploitation in Brazil) indicates a close relation between poverty and commercial sexual exploitation, since the traffic routes are found in greater numbers in the poorest regions of Brazil[11], revealing that the northern region has a greater concentration of traffic routes (76), followed by the northeast region, with a small difference in total routes found (69), and the southeast (35), midwest (33) and southern (28) regions .

            The investigation revealed a total of 241 traffic routes. 110 routes are for internal traffic (intermunicipal and interstate routes), 93 of these primarily involving adolescents.  In turn, international traffic uses 131 routes, of which 120 focus only on women[12].  The routes for other countries are mainly used for traffic in adult women, while the internal routes are used more for adolescents. 

            Among the identified cases of women and adolescents trafficked in Brazil,  53% involved adults, where the most common age range was from 23 to 24; and 47% were adolescents, aged mainly between 16 and 17[13].

            In 2003, the Office of the Special Secretary for Human Rights of the Presidency of the Republic assumed the coordination of the Nacional System to Combat the Sexual Exploitation of Children and Adolescents that was instituted in 1997 and maintained until then by the Multiprofessional Brazilian Association for the Protection of Children and (ABRAPIA). This program has a nationwide, toll-free telephone number at its disposal, through which people can present claims.  By 2001, the system had received 10,102 (ten thousand one hundred two) calls, 1,796 (one thousand seven hundred ninety-six) of which were claims with sufficient information to allow an investigation to be opened.  For that reason, they were immediately transferred to the security institutions of the 27 units of the Federation.  Twelve states reported the measures taken in the cases reported.

            Despite the fact that the PESTRAF indicated that the greatest concentration of traffic routes for sexual exploitation are found in the northern and northeastern regions, among all the claims received by the ABRAPIA, 50.75% come from the southeast region and 26.48% from the northeast[14].

Additionally, the ABRAPIA established that 13.28% of the claims report that the captor is a relative of the victim and most frequently the victim’s own mother.  Of the children exploited, 78.56% are female, of which 71.66% are between 12 and 18 years old, and in 7% of the claims, they are under 11 years of age[15].

 

III.3. VIOLATION OF SEXUAL AND REPRODUCTIVE RIGHTS – Articles 6 and 7 of the IPCPR

The 1988 Federal Constitution recognizes equality between men and women, mentioning health as one of their rights.  Article 196 of the Constitution states that “health is the right of everyone and the duty of the State, guaranteed through social and economic policies aimed at the reduction of the risk of disease and other impediments to universal and equitable access to actions and services for promoting, protecting, and recuperating it”.  In the chapter on protection of the family, specifically article 226, paragraph 7, the Constitution, based on the principle of human dignity, status that family planning is the “free decision of the couple, with the State responsible for providing educational and scientific resources for exercising this right (...)”.

            This constitutional provision was regulated by the so called Law on Family Planning – Law no. 9.236 of 96 – that, in its article 2, defines it as a “set of regulations on fecundity that guarantees equal rights of constitution, limitation or increase of the offspring on the part of the woman, the man, or the couple”.  The law, in its article 4 establishes that planning should be oriented toward prevention and education and by the guarantee of equal access to available information, means, methods and techniques to regulate fecundity.  Among the actions set forth by article 3 of the Law are: assisted conception and contraception; prenatal care; childbirth, postpartum period, and neonatal care; control of sexually transmitted diseases; and checkups and prevention of cancer of the cervix, uterus, breast and penis.  In spite of the fact that the approval of this law was a victory for the feminist movement, as seen in article 3 described previously, abortion is not considered among its family planning methods in case of unwanted pregnancy.

            Abortion, as a crime against life, is covered in articles 124 to 128 of the 1940 Brazilian Penal Code.  A woman who provokes an abortion herself or consents to someone to an abortion provoked by someone else (article 124) is penalized as well as a person who provokes and abortion, with or without the consent of the woman (articles 125 and 126 respectively).  The Penal Code, however, excludes punishment in two cases: abortion necessary when there is no other way to save the life of the mother and in the case of a pregnancy resulting from rape, as long as it is performed with the consent of the mother.  The sentence for the woman ranges from 1 to 3 years of detention and for a person who performs an abortion, from 1 to 10 years of prison. 

            In Brazil, however, as in the majority of Latin American and other developing countries, the practice of abortion is not restricted to legal hypotheses.  According to the report “Unsafe Abortion”, prepared by the Feminist Health Network, total clandestine abortions in 2000 may have numbered from 750 thousand to 1.4 million. These numbers indicate that “the illegality [of abortion] has not impeded them [from occurring], but has worsened the conditions in which they are performed and increased the inherent risks of the practice”[16].

            According to data from the Ministry of Health’s Information on Mortality System, based on the declaration of deaths[17], the interruption of pregnancy, spontaneous or provoked, has not produced as many deaths as in past decades.  According to the Feminist Network, “among other reasons, that decrease (...) may be associated with the drop in fecundity rates that occurred in the 80’s and more widespread use of contraceptive methods by women”[18]. However, it is worth noting that there was a deceleration in this decrease in the 90’s, and even a slight increase in the number of deaths due to abortion in 1994 and 1995.

Cuadro de texto: Source: Benfram, 1998

 

Cuadro de texto: CHART 1 – NUMBER OF DEATHS PER ABORTION Brazil, 1979-1998

 

 

 

This graph shows that “despite the lack of information surrounding records on abortion, the official mortality is high.  Every three days, a woman died from abortion in 1998 (the last with information available).  There were 3.58 deaths for every 100,000 live births (in the United Status there are 0.4 deaths), or one for each 25,000 live births”[19].

            Therefore, it can be seen that abortion in Brazil constitutes a public health problem and a social justice issue.  Women with financial resources are cared for in safe conditions, while women economically less advantaged are cared for in clandestine or unsafe conditions.[20].

Among women who have unsafe abortions, special attention should be given to young women from 15 to 19 years old.  In 2002, according to data from the Report on the Feminist Health Network’s Report of the Sexual and Reproductive Health of Adolescents, “16.6% of sexually active adolescents had already been pregnant or their partners had been pregnant.  Pregnancy is most frequent among adolescents between 15 and 17 years old (78.7%) and in socioeconomic class D (20.1%)[21]”; due to the fact that this is the sector of the public that does not have the resources for safe abortion.

            Data from the Ministry of Health’s DATASUS command attention: “[i]n 1999, in 27% of the births in the Unified Health System (SUS), the mothers were adolescents, with a significant number of post-abortion dilatation and curettage procedures in young women between 15 and 19 years old.  This proportion (childbirths in adolescents/total childbirths paid by the SUS) shows an increasing tendency since 1993[22]”.  It is for no other reason than that “in Brazil, the 5th most frequent cause of death among adolescents; or 6% of total deaths among young people, is abortion or complications during childbirth[23]”.

It should be noted that the National Confederation of Health Workers (CNTS) proposed the argument of Incompliance of the Fundamental Precept (ADPF) before the Federal Supreme Court (STF) for the court to establish the concept that therapeutic early delivery of an anencephalic fetus (with the absence of a brain) is not abortion, and thereby give pregnant women in this situation the right to interrupt the pregnancy without judicial authorization or any other type of specific permission from the State[24]. According to the CNTS, “these early deliveries do not characterize the crime of abortion classified in the Penal Code. (...) [since] in the case of abortion, “the death of the fetus must be the direct result of abortive means, with necessary proof of the causal relationship, as well as potential of the fetus for life outside the uterus”, which does not exist in cases of fetuses with anencephalia[25]”. A pregant woman who carries an anencephalic fetus in her womb should have the option of a therapeutic early delivey under protection of constitutional rights that inmunize her conduct from the incidence of repressive, ordinary legislation, indicating the violation of three basic women’s rights: the dignity of the human being; the legality, liberty, and autonomy of will; and the right to health[26].

Until now, there has been no decision on the merit of this case, but if the STF decides in favor of the merit of the cause, the right to choose will be given to all women: those who want to interrupt the pregnancy by means of the aforementioned practice of therapeutic early delivery, as well as those who want to continue their pregnancy with an anencephalic child.  Not only that; all of them, rich or poor, will be able to exercise this right to choose calmly, since the hospitals of the public health network must care for those who choose the first option. 

            Regarding maternal mortality, it should be mentioned that “maternal deaths correspond to nearly 6% of the deaths of women from 10 to 49 years old in Brazil[27]”. According to the Feminist Health Network’s Maternal Mortality Report, current data indicate that “in 1998, in Brazil there were 63.4 maternal deaths for each one hundred thousand live births”.  However, if correction factors are applied to diminish the impact of the lack of information, “in that year [1998], the number really should be nearly 127 per one hundred thousand live births”[28].

            An admirable initiative of the current federal administration was the installation of a Tripartite Commission, with the objective of reviewing the punitive legislation on the voluntary interruption of pregnancy, a commitment assumed by the Brazilian State at the United Nations Conferences in (1994) and Beijing (1995).  The Tripartite Commission formed by participants from the Executive and Legislative Branches and Civil Society prepared a bill to decriminalize and legalize abortion in Brazil, which should be presented to the National Congress in the month of September of 2005.

            In March of 2005, the Ministry of Health launched the Nacional Policy on Sexual and Reproductive Rights that sets forth actions oriented toward family planning for the 2005 to 2007 period.  The aforementioned policy has three main approaches: expansion of the supply of reversible (non-surgical) birth control methods available; greater access to voluntary surgical sterilization; and the introduction of assisted human reproduction in the Unified Health System.  At the same time, the Ministry of Health has invested in education, such as the distribution of manuals and information cards for public policy agents, health workers, and the general public.

            Together with the plan, the federal government launched a Technical Standard on “Humanized Attention to Abortion” that, according to Leila Adesse[29],  proposes an expansion strategy for access to quality services in the period following an abortion, made up of five essential elements: 1) clinical attention in accordance with ethical and legal standards aiming to foster greater knowledge among health professionals on juridical matters related to the practice of abortion in Brazil, in addition to reflection on the ethical principles of autonomy, welfare, non-maleficence and justice, which should be guides in health care; 2) reception and information as part of humanized attention in the period following an abortion, in response to the needs of the women, whether emotional, social or physical in nature.  It becomes the responsibility of the entire health care team to guarantee the right to information, privacy, and humanized attention to women during the practice of abortion; 3) practice coordinated with other women’s health care clinics, such as in fertility treatments, attention for adolescents, prevention of HIV/AIDS, and others; 4) guarantee of reproductive planning in the period following an abortion, since experience shows that the possibility of repeat abortions is greater  among women who are not aware that, unlike the postpartum period, the recuperation of fertility after an abortion is almost immediate; and finally, 5) creation of a partnership between the community and health professionals that contributes to the mobilization of resources to prevent unwanted pregnancies and tend to the needs of the women inscribed in the health services.

 “The Technical Standard on Humanized Attention to the practice of Abortion is not only a guide for attention during the period following a quality abortion, but an ethical and legal reference to assist women and health services and professionals” concludes Adesse[30]. In summary, the regulation is “a guide for the quality of attention, since it ‘includes aspects related to its humanization, inciting professionals to maintain an ethical position, guaranteeing respect for the human rights of the women, regardless of their moral and religious precepts, and aims to give health professionals and services subsidies so that they can offer not only immediate care to women in cases of abortion, but also complete care, putting alternative contraception methods at women’s disposal to avoid repeat abortions’”[31].

            Additionally, the government revised and updated the 1999 Technical Standard "Prevention and Treatment of Harm Resulting from Sexual Violence against Women and Adolescents". According to Drezzet, this revision was “one of the most important initiatives for the protection of thousands of Brazilian women who face one of the most brutal forms of violation of human rights in sexual violence”[32]. It appears to him that sexual violence is no longer seen simplistically, as a “police case”, but confronted from a broader perspective, as a public health problem[33].

            According to Drezzet[34], two of the most important protocols were reviewed: the one on assistance in the field of emergency contraception, very important to prevent pregnancy alter sexual violence, with levonorgestrel having been adopted as the method of choice, as it is advanced and safe; and that related to sexually transmitted diseases and viral hepatitis, preparing one of the most complete and efficient protocols on the prevention and systematic investigation of these diseased.  The specialist notes that “the care with which the problem of HIV infection is treated in the second edition of the Technical Standard.  The risk of violent contamination imposed on these women, much greater than previously thought, is now faced with the prophylactic use of antiretrovirals”.

            Finally, the most controversial matter reviewed in the Technical Standard was the obligatory nature of the Police Occurrence Bulletin for the performance of a legal abortion.  The new edition of the Technical Standard eliminates the preparation of the Occurrence Bulleting, since its obligatory nature “has no legal backing, not only because article 128 of the Penal Code guarantees the right to abortion in case of rape, without conditioning it to compliance with any formality, but also because it is penal law itself which grants the woman who is the victim the exclusive right to decide to authorize the persecution of the criminal or not[35]”. Moreover, as Pimentel and Belloque note, if we take into account that “the occurrence bulletin is not even a guarantee of the truth or falsity of the affirmations contained in it”[36]. Considering the need to guarantee juridical safety to the health professionals involved in legal abortion, by means of instruction No. 1508 of 09/01/5, the federal government established the “Procedure for the Justification and Authorization or Interruption of Pregnancy in cases established by law” as a condition for the adoption of any means of interrupting a pregnancy in the SUS, with the exception of cases representing risk to the mother.  This procedure is composed of four phases formatted as Reports attached to the medical record, which are: 1) Detailed Report; 2) Medical Report; 3) Responsibility Report; 4) Informed Consent.                      

III.4. VIOLATION OF THE RIGHT TO CIVIL DOCUMENTATION - Articles 16 and 24 of the IPCPR

Civil documentation is fundamental for the full exercise of citizenship.  A birt