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ALTERNATIVE REPORT

APPLICATION OF THE INTERNATIONAL PACT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN CHILE,

To be presented to the Committee on Economic, Social and Cultural Rights of the United Nations in its 33^rd period of sessions, Geneva, November 2004.

EXECUTIVE SUMMARY:

The alternative report presented below was developed by the Liaison in Chile of the Latin American and Caribbean Committee for the Defense of Women’s Rights (CLADEM).  The purpose of the report is to highlight the axes of concern and priorities related to the realization of Women’s Economic, Social and Cultural Rights within the Chilean national context.

The document places a special interest on five topics:

I.        The protection and demandability of the economic, social and cultural rights in the Chilean constitutional environment.  This point refers to the effective protection system of the Economic, Social and Cultural Rights in the realm of internal legislation, specifically regarding the constitutional protection of the fundamental guarantees, identifying the formal and material inefficacy of the system.

II.     Women’s right to employment freely chosen and accepted.  Article 6 IPESCR. This point details the reality of the Chilean women regarding their access to employment, synthesizing the existing norms on equal opportunities in the job market, the reality of feminine work in a labor market with a tendency to the flexibilization of the market and the shortfall in the State control system in relation to the compliance of the labor laws.

III.   Women’s right to equal and satisfactory salaries and employment conditions.  Article 7 IPESCR.  This chapter examines the matters that limit women’s exercise of the right to a salary, such as the salary gap and it refers also to sexual harassment at work and its lack of regulations.

IV.  Women’s right to Social Security. Article 9 IPESCR. It analyzes the Social Security system in force in Chile, particularly the pensions’ regime, and points out the effects that its application produces in the feminine labor force, in terms of reproducing the gender inequality of an unfair employment market.

V.    Protection of the family, of the mother and of the girls and boys. Article 10 of IPESCR.  In this chapter we analyze the general panorama of women as part of a family, referring to women’s lack of protection in the traditional and non-matrimomial family, the current situation of violence against women, the protection norms of maternity and the legislative projects in process.  Additionally, it describes the new approach of the regulations regarding infancy and adolescence.

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ALTERNATIVE REPORT

APPLICATION OF THE INTERNATIONAL PACT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN CHILE,

To be presented to the Committee on Economic, Social and Cultural Rights of the United Nations in its 33^rd period of sessions, Geneva, November 2004.

I.                        THE PROTECTION AND DEMANDABILITY OF THE ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN THE CHILEAN CONSTITUTIONAL ENVIRONMENT

In Chile, the Economic, Social and Cultural Rights are protected on a Constitutional level.  The 1980 Political Constitution of the Republic, in its Chapter III “Of the Constitutional Rights and Duties”, contains in its Article 19 the list of rights and fundamental guarantees and contemplates protection norms, sine qua non for its efficient enforcement.

The instrument of juridical protection of the fundamental rights in domestic law is the so-called Protection Recourse, an action set forth constitutionally to impugn arbitrary or illegal actions or omissions that deprive, perturb or threaten the legitimate exercise of rights established in Article 19 of the Constitution[1]

However, the Protection Recourse contemplated by the internal norms is not ideal for the protection and demandability of the fundamental rights, because it has substantial limitations, from two points of view:

In the first place, it is only limited to the tutelage of certain rights. Actually, the economic, social and cultural rights listed in Article 19, that are protected by this action are contemplated in its following numerals:[2] 2^nd, Guarantee of equality before the law[3]; 8^th, the right to live in a pollution-free environment; 9^th, final point, the right of the people to choose a health system (State or private); 11^th, freedom of teaching; 16^th, freedom of employment, exclusively in relation to freedom of employment, its free election, freedom to contract and the right to collective negotiations; 19^th, Freedom to be a part of a syndicate; 21^st, Guarantee of economic freedom; 22^nd, the right to non-discrimination by the State in economic matters; 23^rd, Freedom to acquire domain over any type of goods; 24^th, the right to property; 25^th, freedom to create and disseminate the arts and the copyrights.

Therefore, the Right to an Education, the Right to Social Security, the Right to the Protection of the Family, which is not even contemplated in the catalog of fundamental rights, are absolutely deprived of an effective Constitutional protection; furthermore, the protection of the rights listed above is expressly limited by the Constitutional norm itself; for example, the Right to Live in a Pollution-Free Environment is only covered by the Protection Recourse when “it is affected by an arbitrary and illegal act, imputable to a specific authority or person.” Thus, the health injuries provoked, for example, by the high atmospheric contamination that affects the cities of the country and which origin cannot be attributed to an act of a specific authority or person, are not included in the scope of the Protection Recourse.  In relation to the Right to the Protection of Health, this is only protected when it comes to choosing a Health System, in such a way that, as has been pointed out in a number of Supreme Court of Justice rulings, each time there is a denial to render medical services by a health establishment due to lack of means to supply it, the State is exonerated from responsibility in the consequences that such denial produces, inasmuch that “the denial of attention on the part of the Medical Service based on the lack of means to provide it, deprives it of the abusive or lack of justification condition and it is also not illegal, since the law conditions the rendering of the services to the recourses available to the establishment.”[4] [5]

On the other hand, the recourse procedure is regulated by a 1992 Supreme Court ruling[6] arrived at with participation of all its branches, on the procedure of the Protection Recourse, dictated in use of its Economic Faculties,[7] which contravenes the Constitutional norm of Article 74, which reserves the norms on judicial proceedings to the Organic Constitutional Law, which requires a high quorum in Congress for its dictation and violates the disposition of Article 19 Nº 26, which guarantees the people “the assurance that the legal precepts that by mandate of the Constitution regulate or complement that guarantees that the latter establishes… …may not affect the rights in their essence nor impose conditions, taxes or requisites that impede their free exercise”.

Finally, the Agreed Ruling imposes admissibility requirements that the Constitution did not consider and that restrict enormously the exercise of the action.  For starters, for its interposition it is required to accredit the legitimate interest of the affected party; furthermore, a large amount of national jurisprudence has indicated that it does not proceed regarding judicial resolutions, not even those dictated in proceedings emanated from the disciplinary and economic faculties of the tribunals,[8] more so, it establishes a fatal (sic) term of prescription of the action of 15 days counted as of the infraction, which is contrary to the law, since these are rights that essentially  do not prescribe.

II.                      THE RIGHT OF WOMEN TO EMPLOYMENT FREELY CHOSEN AND ACCEPTED. Article 6 IPESCR.

At the international level, Chile ratified the Convention on the Elimination of all Forms of Discrimination against Women; however, the Convention’s Facultative Protocol is still pending ratification. Chile has also ratified a number of International Labor Organization (ILO) Conventions, among which is Convention Nº 111, related to the Discrimination in Terms of Employment and Occupation.

At the domestic level, the Political Constitution of the Republic, even though it does not guarantee the Right to Employment, it does consecrate the Freedom of Work, both in relation to the right to free contracting as well as the free election of employment, taking charge of establishing the prohibition of any discrimination not based on personal capability or suitability.[9]

The Labor Code regulates dependent work and in its Book II, Title II, refers to the protection of maternity and the maternal jurisdiction.

Within this context, in the year 2001 and with occasion of the labor reforms established in Law 19,759, regarding equal opportunities in employment, a number of modifications was introduced, among which the modification of Article 2 of the Labor Code stands out, which extended the notion existing until then related to the acts of discrimination, including within these, the acts which object is to annul or alter the equality of opportunities or treatment in employment and occupation.

There exists, therefore, within the Chilean juridical order, a formal protection of the right to employment under equal conditions without discrimination based on sex.

Nevertheless, in spite of the advances in the implementation of equal opportunities and larger insertion of women into the employment market policies, there still persist factors of gender inequality, mainly associated to access to remunerated employment and to the employment conditions per se.

A reflection of this are the figures of occupation and unemployment.  According to the 2002 population census, the economically active population is 5’877,149, the economically active feminine population is 34.8% and the employed women amount to 35.03% of the economically active population, 1’782,003 women.

Likewise, in the areas of occupation, as per the same Census, “the segmentation of the occupations according to sex persists. Most women continue performing work that is socially considered feminine.” Out of the total women occupied, 33% is concentrated in the categories of service and technical workers, 11.5% in the category of office employees and 13% in the category of professionals.  Only 32.7% of the management posts in the public administration and the companies are occupied by women and more than 80% of the working women do so in activities of the tertiary sector (social, personal and commercial services). The only occupational categories in which women present larger percentages than men are domestic service with 16% and family non-remunerated with 2.5%, those with the most precarious labor conditions.[10]

Regarding unemployment, during the May-July 2004 quarter, it reached 9.7%, which equals 589,000 unemployed persons, for a current workforce of 6’097,000.  The unemployment figure in women reached 10.8% showing an increase of 0.9% compared to the same period in 2003.  In the case of men the unemployment was 9.1%[11]

According to a recent International Labor Organization (ILO) report on Chile, 35% of the Chilean workers do not have a work contract and 70% of employment is regular or precarious, according to the income criteria, existence of a contract and social security.  In quintile I (poor and indigent) precarious work reaches 94%.

Chile is certainly not outside the flexibilizing current of the labor market; however, the norms favor concretely the business flexibility proper of the neo-liberal model.  The norms in force and especially those in legislative projects[12] share the characteristic of allowing the employer the unilateral application of norms and special juridical statutes.  Actually, the Labor Code contemplates several forms of flexibility, such as the firing flexibility[13], by which the employer may unilaterally terminate the work contract based on ample reasons that the law itself establishes; norms of functional flexibility, given that the work contract may, according to the law, contemplate the rendering of services of various kinds[14] and norms that permit extending or modifying the ordinary daily work schedule.[15]

The flexibility trend in Chile has led to the de-regulation of the labor market; its flexibility alters the normal or traditional labor relation, which is replaced by the atypical employment, whilst the levels of legal protection continue bound to the “normality” of traditional employment.[16]  Outsourcing, sub-contracting[17] and the atypical employment produce the existence of precarious work conditions and the birth of a contingent of unprotected workers, lacking labor stability, without access to social security and syndicates[18].  As indicated by a study performed by the Women’s Study Center,[19] “the so-called flexibility that the businessmen have installed in Chile has been fundamentally a recourse to deprive the labor force of all labor and social protection.”

Within this context, the larger insertion of women into employment and the dissemination of atypical employment forms evidence the gender inequalities regarding the employment conditions for the working women, since it is precisely them the ones that in a larger scale enter this particularly unprotected labor offer, this because it allows them to access a source of income and at the same time perform the roles that traditionally have been assigned to them.

The cited study concluded: “… among the flexible employments analyzed in the case study, those that are permeable to the concept of business flexibility clearly prevail. The options for the workers constitute in most cases the dependent variable; i.e., the possibility of opting for how you want to work can only be installed within the tight framework of the adaptation requirements of the companies to the changing internal and external conditions.”

“The cases analyzed reinforce the idea that even though the current flexibility and labor option patterns open spaces for the employment insertion of women, they do not offer a real opportunity to establish gender relations.  Within the framework of a labor and social institutionalism that supports the traditional normal relation, the majority of the current flexible employments make possible only a segregated insertion of women into the remunerated market, in little-valued occupations and with limitations career-wise, whilst at the same time fostering the traditional arrangement between the sexes in the reproductive sphere. The flexible employments for women “can be considered a modernized form of the traditional gender order, naturally without questioning it. (Baker and Stolz-Willig 1995).”

One of the most unprotected sectors is that of the temporary agricultural workers or temps, “dependent workers contracted daily by shifts”[20] In Chile, out of the 400,000 temps in the agricultural area, 265,000 are employed in the growth of fruits and 50% are women.  Some of the demands of the temporary workers, by means of their syndicate organizations[21] are in relation to the timely and adequate exercise of the supervision and control functions of the compliance of the labor laws on the part of the Ministry of Labor, especially regarding the indiscriminate use of highly toxic pesticides and plague-controlling chemicals with an insufficient control by the State.[22]

Another important axis of concern related to the compliance of the Chilean State’s obligations in the protection of employment is associated with the supervision of the respect for the labor norms.

Chile has not ratified Convention Nº 81 of the International Labor Organization (ILO) on Labor Inspection. On the other hand, according to the General Summary of the Labor Bureau, organism in charge of the control and supervision of the compliance of the labor norms, in the year 2003, the number of supervisors for the whole territory of the republic was 781, each one of them on average performed 271.8 supervisions, that is, from Monday to Friday, each supervisor performed 1.04 supervisions.  Albeit the summary does not provide the number of denouncements received, it indicates having received 1’818,511 consultations[23].  In this way, the lack of human resources and the consequent precariousness of the exercise   of the functions pertaining to the service are obvious.

It is surprising that in the Labor Bureau itself, 55.52% of the employees is under contract, i.e., they are not part of the payroll and their work contracts are for a fixed term.[24]

III.                   WOMEN’S RIGHT TO A SALARY AND FAIR AND SATISFACTORY EMPLOYMENT CONDITIONS. Article 7 IPESCR.

This right is protected and recognized both in the Convention on the Elimination of all Forms of Discrimination against Women, as well as in the Convention Nº 100 of the ILO related to the equality of remuneration between the masculine and feminine manual labor for an equal value work.  Both international instruments have been ratified by the Chilean State.

At the national level, this right is guaranteed in the Political Constitution of the Republic, in Article 19, Nº 16, especially as an acknowledgment of the freedom of employment and its protection, to the extent that its second section sets forth “Every person has the right to free contracting and to the free election of employment with a fair retribution.” The same disposition in its section 3, even though it does not explicitly refer to the discrimination against women, prohibits “any discrimination that is not based on personal capability and suitability.”

Likewise, the Chilean Labor Code focuses on remunerations and their protection in Book I, Title I in Chapters V and VI.  Nevertheless, in spite of the recognition of this right in the legislation, the persistency of the disparity in matters of remunerations is a strong indicator of generic inequality.

According to the information collected in the 2002 Economic Characterization Survey (CASEN), from the analysis of the total of national averages of income disaggregated by sex, by quintile of autonomous income, we can conclude that the gender gap in terms of income reaches 36.47%.  The  most considerable difference appears in the V quintile, in which the income received by women is equal to 54% of the masculine income, which evidences a gap of 46%; in the IV quintile the women’s income represents 74.4% of the men’s income; in the III quintile women’s income represents 80.3% of the masculine income; in the II quintile of the poor population, feminine income corresponds to 91.9% of the  masculine one, whilst in the I quintile, of minor income, there is a difference, in the case of women their income is equivalent to 85.9% of that of men.[25]

From another perspective, taking into account the data collected by the Remunerations and Manual Labor Costs disaggregated by sex, performed by the National Institute of Statistics (INE) at the request of the Women’s National Service (SERNAM) in May 2000, the gender gap, remuneration-wise, is higher than 30%.

The salary gap experiments variations in accordance with the occupational group being analyzed, showing a larger difference between the management staff, where it reaches 37.3%.  This category is the one in which women manage to obtain higher remunerations; in the case of the professionals it amounts to 23.7%, whilst when looking at the administrative staff and the non-qualified workers the gap shown is equivalent to 18.5%.  Likewise, it is possible to observe the levels of disparity as per branch of economic activity, noting that both for women as well as for men, the highest levels of income are achieved in the sectors of Mining, Financial Services and Power, Gas and Water, sectors in which precisely the remuneration gap is more accented between men and women, which in the case of the first sector, women receive a salary that on average is equivalent to 60.2% of that obtained by men in the same activity.  Commerce follows with 68.3%, Financial Services with 70.5%, and Industry with 71.3%.  The gap decreases in the case of the Communal, Social and Personal Services, reaching 83%, occupational category in which lower income is received.[26]

It is important to point out that according to the information obtained, in none of the categories examined have women managed to equal men’s income.

Regarding the protection of the right to a remuneration, the internal legislation contemplates a minimum salary that is readjusted each year by means of a law enacted for this purpose, generating heated discussions between the Government and the other social actors, Businessmen and Workers.

Law 19.956, enacted on June 30, 2004, as of July 1^st, raised the minimum income from 115,648 to 120,000 monthly pesos (equivalent to US$ 197) for the workers 18 years old up to 65 years of age.  The Central Unitaria de Trabajadores (Workers’ Union) had demanded increasing the minimum salary to 145,000 pesos, with the purpose of making it equal to the lowest level of the public sector’s remunerations scale; however, the proposal was not accepted by the Executive.  Finally, the minimum salary’s increase was in practice 4,352 pesos, 3.8% in comparison with the prior period.[27]

Nevertheless, the study “New Poverty Threshold for Chile”[28] affirms that the “Threshold of Minimal Satisfaction” for a home with two adults and two children is 125,000 pesos per capita, indispensable for the basic needs of food, housing, services, clothes and recreation.

In relation to women’s right to fair and satisfactory employment conditions, currently the Chilean legislation does not possess any norms that contemplate and sanction sexual harassment.

There is a bill on the matter[29] that initiated its procedure in Congress in 1994 and to date is still being discussed in the Senate on a second Constitutional procedure.

Originally the bill contemplated establishing the figure of sexual harassment not restricted only to the workplace, by means of the incorporation of modifications to the Labor Code and the Administrative Statute, but rather also establishing a modification to the Penal Code tending to incorporate a new penal type sanctioning sexual harassment as a fault, proposition that was declined by the Constitution, Legislation and Justice Commission of the House of Representatives.  The bill was later wholly substituted by means of an indication presented by the Executive.[30]

The bill currently being processed, approved by the House of Representatives, includes some modifications to the Labor Code, as well as to Law Nº 18.834 on Administrative Statute and to Law Nº 18.883 regarding the Administrative Statute for Municipal Officers.

In relation to the modifications proposed to the Labor Code, the bill contemplates including sexual harassment as another of the behaviors considered discriminatory, indicated in Article 2, incorporating also a definition by establishing among the causes for termination of employment indicated in Article 160 the “conducts of sexual harassment, understanding by such a unilateral conduct, physical or verbal, of a sexual nature, without the consent of the required party and that produces or threatens to produce damage to his/her health or in his/her employment opportunities or his/her labor situation,” whilst at the same time including among the  dispositions that put in order the elaboration of the internal regulations of the company, norms that tend to guarantee the mutual respect among the workers, as well as the obligation of setting forth within the minimum dispositions that the internal regulations must contain, a procedure aimed at channeling the denouncements of the victims affected by sexual harassment conducts.

With respect to the modifications to the Administrative Statute and the Administrative Statute for Municipal Officers, the bill incorporates among the prohibitions to which both the public employees as well as the municipal officers are subject, the performance of any conduct that attempts against the dignity of the other officers, considering as conducts of this type the sexual harassment described in the terms provided by the new cause of Article 160 of the Labor Code.

According to a study undertaken in Santiago in 1993, 20% of the female workers were victims of sexual harassment.[31]  However, the bill has been going around Congress for ten years without it having been approved to date.  On the other hand, in spite of the fact that it considers that the conducts that constitute sexual harassment can be produced in any labor situation, not restricting them to the relationship between a superior and a subordinate, it only circumscribes sexual harassment to the workplace.

IV.                  WOMEN’S RIGHT TO SOCIAL SECURITY. Article 9 IPESCR.

At the international level Chile has ratified the Covenants 35, 36, 37 and 38 of the International Labor Organization related to social security.

At the domestic level, the Political Constitution of the Republic in its Article 19 Nº 18, orders that the State must guarantee the access of any and all persons to the enjoyment of uniform services both by public as well as by private institutions, having to supervise the adequate exercise of Social Security.[32]

The Chilean Social Security System is of a contributive and general nature for all the affiliated persons.  The incorporation to the regime is mandatory for the male and female dependent workers of the public and private sector, no matter what type of activity they perform, whilst in the case of the independent workers the adscription to the system is voluntary.  The exception is made up by the members of the Armed Forces, Police and penitentiary personnel in uniform, which have their own social security system.

Likewise, the regime comprises the existence of an assistance system aimed at people that cannot access social security services due to being in poverty or indigence conditions, through the granting of assistance health services, pensions and family services.

Regarding the coverage of the services, these are granted by means of social securities, except in the case of the pensions system established in Decree Law Nº 3.500.  The health and work risks services are structured based on the distribution financial regime, whereas those comprised in the pension’s regime are structured through the individual capitalization regime.[33]

Decree Law 3.500 published in the Official Gazette on November 13, 1980 set forth an old age, disability and survival Pensions System under the financial regime of individual capitalization.  The incorporation to the system is mandatory as of January 1, 1983 and the affiliation is performed automatically regarding those workers that on that date enter for the first time the labor life; for the others it is voluntary.[34]

In the individual capitalization regime all the affiliated persons must contribute 10% of their remuneration or taxable monthly income,[35] plus an additional variable contribution that fluctuates between 2.01% and 2.55%[36], aimed at financing the administrative expenses of the system and the insurance premium that the Pension Funds Administrator (AFP) contracts for the event in which the balance in the individual account of the affiliated person does not permit financing the disability or survival pensions originated by his/her demise or disability.

All the affiliated persons that have the legal age requested, 60 and 65 years old for women and men respectively, as well as counting with the quotas or balance in the individual capitalization account, have the right to an old-age pension.[37]

All the affiliated persons not pensioned off on account of old age and those persons that still have not reached the legal ages requested that, as a consequence of disease or weakening of their physical or intellectual strength suffer a permanent deterioration in their work capabilities,[38] have the right to a disability pension.

On the other hand, the regime contemplates survival pensions originated upon the demise of a contributing affiliated or pensioned-off person, in favor of his/her legal beneficiaries.

Now then, the social security situation of women in Chile only reflects the unequal conditions of her incorporation into the labor market, which, added to the characteristics themselves of a pensions regime based on individual capitalization, translates into their largest de-protection vis-à-vis the system.

In effect, factors such as the precariousness of the contractual and employment situation, lower income, a larger unemployment rate, intermittence in the labor activity, fewer years of contribution and larger life expectancy, cause that the contributions made by women to their individual account be lower than those of men, thus generating as a result that women access lower pensions.

It is worthwhile pointing out that Chile is a country in advanced demographic transition, with a progressive increase of the older adult population, a fact that relates directly to the larger life expectancy of women, attended the feminine majority of that adult population equivalent to 56.7% in respect of the 43.3%[39] of men, for which reason an adequate elaboration of public policies aimed at containing this segment of the population is necessary.

According to the data collected in the CASEN 2000 Survey, it is possible to note that in matters of social security contributions, women, especially those of lesser income, make up one of the groups most deprived of protection and whose access to social security is lower.

“The salaried women of the first income quintile are the ones that present greater precariousness in their employments because only 39.7% of them have a contract, with the consequent labor insecurity that this represents and the absence of social security and the right to health attention.  If we take into account the information obtained as of the CASEN Survey of 1996 and 1998, in which the women in this same situation were 46.7% and 41.1% respectively, it is evident that a progressive deterioration has occurred in the employment conditions of women in situation of greater poverty”.[40] According to the age segments, the largest proportions of occupied women that contribute towards their social security are concentrated in the 30 to 44 years of age bracket (45.6%).

Another axis of concern is the situation of the women that make up the informal employment market and those that are dedicated to the domestic work and child care. “The women that during their whole life remain in the care of their home and family without participating in the labor market, are a group highly prone to falling in poverty situation during their old age, since they generally are considered dependents of their spouses, which only permits them to aspire to a widow’s pension”[41] This situation is aggravated when we are dealing with de facto unions due to their scarce recognition in the domestic legislation.

V.                     PROTECTION OF THE FAMILY, THE MOTHER AND THE GIRLS AND BOYS. Article 10 IPESCR.

Chile ratified the Convention on the Elimination of all Forms of Discrimination against Women, the Convention to Eliminate, Sanction and Eradicate Violence against Women, the Convention for the Rights of the Boys and Girls and Covenant Nº 3 of the International Labor Organization on Women’s Employment Before and After Birth.

Article 1 section 2 of the Chilean Political Constitution rules: “The family is the fundamental nucleus of society” and its section 5 explicitly consecrates the protection of the family by indicating that it is the duty of the State to provide protection for the family and be inclined towards its strengthening.

In Chile, the norms related to Family are scattered in various legal bodies, such as the Civil Code, the Intra-Family Violence Law,[42] the Minor’s Law,[43] the Law on Family Abandonment and Food Pensions,[44] the Civil Marriage Law,[45] among others, in such a way that there is no systematic treatment within a sole normative body that regulates the different institutions of the Family Law.

The Chilean legislation does not contemplate a disposition that defines the Family for the effects of its regulation and the protection of its members’ rights.  Actually, the Civil Code only defines the family in its Article 815,[46] section 3, regarding the regulation of the royal rights of use and habitation, indicating: “The family comprises the spouse and the children, both those that exist at the moment of the constitution, as well as those that come later, and this even when the user or the inhabitant is not married nor has he recognized any child at the date of the constitution.” In this sole legal definition of family, given by the legislator in the context of the regulations of the property rights on the goods, it is clearly understood that the civil legislation only recognizes the matrimonial family, disregarding any other forms of family.

On the other hand, albeit it is true that the New Civil Marriage Law came to give a long awaited for solution, in order to settle the problem of the matrimonial breakups, by instituting the bonding divorce.  For a change, it established once again the exclusion of other forms of non-matrimonial families; Article 1 of this law indicates: “The family is the fundamental nucleus of society.  Marriage is the main base of the family”. From the tenor of this disposition, marriage appears as the necessary condition of the family, the cited norm states the recurring tendency to make invisible the De Facto Union, maintaining the persons that compose it unprotected.

According to the demographic Census of the year 2002, 8.9% of the people older than 15 years of age make up a de facto union.  Given the social context this could have been the opportunity to generate a legislation in accordance with the Chilean reality and grant due recognition to the de facto unions.

The Chilean juridical order regulates in detail the matrimonial family model but there is no regulation of the juridical effects of other non-matrimonial family forms.  From a juridical perspective, the de facto union is not even recognized as a family form and the only norms that refer to the de facto unions, without recognizing them explicitly, and of a clearly discriminatory nature, are:

The Intra-Family Violence Law, which only grants the title of the denouncement for causes of intra-family violence to the “partner” of the aggressor; the Law of Work Accidents and Professional Diseases and Decree Law Nº 3.500, which regulate the granting of survival pensions and grant this right to the partner that has been the mother of a recognized child under the condition of having lived at his expense; the Law of Mandatory Automobile Insurance or Personal Accidents, which grants the right to request the indemnification in order of precedence, to the spouse, the children under age, the children of legal age, the parents and the mother of the victim’s children (woman partner) and the Civil Procedural Code in its Article 108, which authorizes the partner to occupy the place of the victim and intervene in the criminal process when the victim cannot do it personally.  Nevertheless, the norm also establishes a priority order placing the partner in third place and giving preference to the spouse and the children and ascendants, which translates in practice into the partner being excluded from the criminal process.

In consequence, in Chile the members of a non-traditional union, of a de facto union, lack due protection on the part of the State, which is manifested in a number of situations; for example, the male or female partner does not have in Chile legacy rights with respect to the goods of the dead partner; in matters of social security health he/she cannot be a family dependent of the contributor; neither is it possible to add the income of the partners to accredit income and access the housing subsidy, since this is only possible between spouses.

In the sphere of the matrimonial family, the existence of the discriminatory bias is also evident in the legislation. In Chile, the patrimonial regime, legal and supplementary of the will of the parties in the matrimonial contract is the one of the Conjugal Society. Therefore, it follows that if there is no express agreement of the bride and groom at the time of matrimony, the patrimonial regime shall be the one of the Conjugal Society.

The conjugal society impedes the administration of the common goods and in general of her own goods, obtained during marriage, by the woman.  Actually, Article 1749 of the Civil Code points out that the husband is the “head” of the Conjugal Society and as such, administrates the social goods and those of his wife; furthermore, in that same role, he exercises the rights of his wife, who participates in a society and who gets married under this system.

More so, Article 1752 of the Civil Code literally indicates: “The woman by herself has no rights whatsoever over the social goods during the Society, except in the cases of Article 145”.[47]

The National Political Table on Citizen’s Safety, a consulting inter-sector organ of the Executive created with the object of generating a National Policy on Citizen’s Safety, has incorporated Intra-Family Violence as one of the topics of Citizen’s Safety, which certainly represents an advancement regarding the current approach of the Chilean State to the question of domestic violence and suggests the future implementation of public policies to focus on the issue.

The Intra-Family Violence Law currently in force has been the object of serious criticisms from several points of view: in the first place, the spirit of the Law tends to seek the “agreement” between the parties and the victim usually accepts the conciliation for fear and economic convenience, more than for the real desire of reconciliation with the aggressor. The law does not refer to penalties, but rather to sanctions or measures, as a form of highlighting the civil nature of the statute; the measures considered are the obligatory attendance to therapeutic programs or family orientation therapies for a maximum of six months, but these sanctions are essentially transitory, like the measures to protect the offended party and do not last for more than 60 days, except the precautionary measures, also of a temporary nature, but that can be decreed for a maximum term of 140 days.  To these difficulties in the execution of the process we can add the slowness with which the notices are served, the lack of training on this issue of the judicial officers, the scarce direct participation in the process of the judges, and the lack of the tribunals’ necessary infrastructure to safeguard the privacy of the victims.

Currently a reform of the Intra-Family Violence Law is under way.  Some of the advancements that the project contains are:

It considers sexual violence as Intra-Family Violence; it extends the notion of family given by the original law by increasing the spectrum of family relations to which the law will be applied, with the purpose of covering the larger number of possible hypothesis;[48] it obliges the Judge to dictate in a timely manner the cautionary measures necessary for the protection of the victim and her family group in case there are risk assumptions, such as the existence of minors affected by the violence or if the offended party is pregnant; the cautionary measures cease to be facultative if certain risk assumptions come true, which would authorize protective measures and the intervention of the police contemplated in the law, remaining at the discretion of the court the determination of its duration, modification or extinction; it contemplates a sort of indemnification in favor of the victim; the sanctions applicable can be imprisonment, night reclusion, or fines; it also contemplates accessory sanctions, such as therapeutic assistance; it creates the intra-family violence offense, reprogramming the Intra-Family Violence concept, emphasizing more the abusive content of the conduct than its result.

However, the project has substantial defects.  For starters, it maintains the jurisdictional competence of intra-family violence within the private civil environment and just like the current norm, it contains, from a gender perspective, a neutral definition of domestic violence that turns out to be excessively ample and unspecific by defining it as “any and all maltreatment that affects the physical, psychic or sexual integrity of whomever has, with respect to the aggressor, the quality of relative by consanguinity or by affinity along the whole straight line or in the collateral up to the fourth degree inclusive, adopter, adoptee or spouse, whether he lives or not in the same house and the age or condition of the affected party notwithstanding”. This disposition maintains as protected juridical good the family as an institution since it contemplates not only gender violence, but also the inter-generational one, which leads to not recognizing domestic violence as a form of gender discrimination that consequently must be treated as the object of a public policy.  The truth is that it is the women who confront a violence that is the expression of her subordination position vis-à-vis men, an issue that the legislation does not understand as a public problem and therefore neither does it contemplate the implementation of public policies for the prevention of domestic violence.

The Law under study, albeit it contemplates prison penalties, night reclusion and fines, pertaining to the penal environment, maintains the competence of the judicial processes in the civil arena (within the Family Courts) and therefore it is guided by principles common to it, such as the party procedural impulse, and the possibility of resolution of the judicial conflict by means of jurisdictional equivalents.  Moreover, it contemplates the possibility that the judge suspends conditionally the dictation of a sentence up to a year, prior compliance with certain requirements.

From the perspective of the aggressor, on a civil court he does not possess the procedural guarantees pertaining to the criminal trial system, in spite that he might be the object of deprivation of liberty.  In this sense the dissident vote of the Supreme Court Ministers in the report of the bill, expresses that “they were of the opinion of informing unfavorably the bill being examined because in their concept, the conflicts originated by the commission of intra-family violence maltreatment, given its nature, is not an issue that should be located in the civil courts, for which reason it is not advisable to insist in this location.  The conclusion above is aided by the experience achieved through the application of the dispositions of the intra-family violence law in the current civil courts (sic).”[49]

In spite that the kinship situation and the relationship of dependence aggravate a number of penal types, in the case of domestic violence, these family ties or relationship between the aggressor and the victim are, for the current and under discussion legislation, an element that determines a lesser reproach from the juridical perspective.

In relation to maternity, in the domestic law several norms are contemplated for its safeguard; for example,  in penal matters the abortion committed against the woman’s will is sanctioned; in the health environment, the pregnant woman has the right to free control of her pregnancy and dental care, milk quotas and complementary nourishment in case she is underweight. The Teaching Organic Constitutional Law, in its current second article points out: “Pregnancy and maternity shall not constitute impediments to enter and remain in the education establishments of any level whatsoever.  The latter must, also, grant the pertinent academic facilities.”

But the generality of the maternity protective norms are related to the work environment.  The Labor Code in its Book II, Title II prohibits conditioning the contracting, permanence, promotion or mobility of the employment to the inexistence of pregnancy; it contemplates norms on pre- and postnatal leaves and maternal jurisdiction; it consecrates the right to a maternal allocation, to the modification of the tasks considered as harmful for the health of the pregnant woman without a reduction of her remuneration; the mother’s right to feed her children under two years of age and it contemplates norms on parental permits in the case of sickness of a child.  Law 19.299 assures women the maternal subsidy.

The domestic labor legislation sets forth the obligation for the companies that contract more than 20 female workers, of paying them or providing Day Care Centers to look after and feed their children under two years of age. Actually, according to ENCLA 2002 (the national survey on the labor climate), 74% of the companies have less than 20 female workers.

Currently several bills on the issue are being presented. In October 2000 a bill on Sexual and Reproductive Rights[50] was introduced into Congress by means of a parliament motion.  Article 11 of the text acknowledges the persons’ right of freely making decisions regarding procreation and prohibits all forms of violence, coercion, and discrimination of any nature whatsoever in the exercise of this right.  Nevertheless, the initiative is still not in the discussion stage in the National Congress.

Another legislative project contains a reform of Article 199 of the Labor Code, which will restrict parental permits and which has already been approved by the House of Representatives.[51]  The message from the Executive to Congress states that “As part of this global proposal, this bill proposes rationalizing the use of public resources by means of re-designing the subsidies for curative labor disabilities and for serious sickness of the child under one year of age.”