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ARGENTINA

In its report to the Human Rights Committee, the Government of Argentina notes that a number of international human rights instruments (including the Covenant, the Universal Declaration of Human Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, and the International Covenant on Economic, Social and Cultural Rights) have been accorded constitutional status as a result of the constitutional reforms of 1994 (paragraph 7). The Government also affirms that Article 16 of the Constitution guarantees equality before the law for all inhabitants of Argentina (paragraph 6) while Article 75(23) provides that Congress must "legislate and promote positive measures guaranteeing genuine equality of opportunity and treatment, and the full enjoyment and exercise of the rights recognized by this Constitution and by the international human rights treaties in force, particularly in respect of children, women, older persons and disabled persons" (paragraph 12). Despite these constitutional guarantees of equality, CLADEM and Equality Now are concerned that violence against women, trafficking in women and prostitution, inadequate reproductive health services and the criminalization of abortion, as well as the low level of women’s participation in politics, leave Argentina short of full compliance with its obligation to respect the rights of women guaranteed by the Covenant.

This submission was prepared by the Latin American and Caribbean Committee for the Defense of Women’s Rights (CLADEM), in consultation with Equality Now.

CLADEM and Equality Now are deeply concerned that the Government fails to make mention of violence against women in its report to the Committee despite the high level of violence against women in Argentina and the lack of adequate legal protection available to victims of violence.

According to data collected for the United Nations Inter-Agency Campaign on Women’s Human Rights in Latin America and the Caribbean, 1820 cases of domestic violence were filed in the country in 1997 ( Rosa Alastuey, an officer with the Domestic Violence Prevention and Assistance center (a program within the Directorate for Family and Children’s Affairs), reports that domestic violence is "an endemic problem" (Annex A). The Women’s Social and Political Institute notes that 25% of all women in Argentina, regardless of age or income group, are subject to systematic violence (Annex B). In the city of San Miguel de Tucumán, 70 percent of the 25 - 30 assault cases handled per month by the Victim Counseling Center involve violence against women (Annex A). Despite this evidence, the province of Tucumán discontinued or cut funding to domestic violence prevention and victim care programs (Annex A).

CLADEM and Equality Now note and welcome the adoption of the Domestic Violence Protection Act (Federal Law 24416) in 1995 which broadly defines domestic violence as "Injuries or physical or psychological abuse sustained by one member of a family group at the hands of another" (Annex C). Although the law now makes it easier for victims to report abuse by allowing either oral or written complaints to be lodged before judges competent to deal with family matters, it limits judicial response to court orders that either order the exclusion of the perpetrator from the family home (Article 4a); prohibit access by the perpetrator to the victim's home or to his or her place of work or study (Article 4b); return to the family home, at the victim's request, any individual who has been compelled to leave it for reasons of his personal security, with the exception of the perpetrator (Article 4c); or regulate the payment of maintenance and contact with dependent children (Article 4d). The law is silent on the subject of offenders who refuse to abide by a court order. Specifically, it does not outline measures for the enforcement of court orders as well as criminal penalties and procedures for violations of orders (Annex C). Further, although Federal Law 24417 does provide a legal framework for action, six provinces – including Tucum< n, Salta, Buenos Aires, C\ rdoba, La Pampa and Santa Cruz –have yet to endorse it or enact their own legislation. Since federal law does not apply in provincial jurisdictions, women in provinces having no domestic violence legislation are unprotected. CLADEM and Equality Now are also concerned that as domestic violence is not explicitly mentioned in the Penal Code of Argentina, courts can only take criminal action after violence results in a crime (i.e. assault or worse) under the Code (Annex D).

With regard to sexual violence, CLADEM and Equality Now note that an estimated 5,000 to 7,000 cases of rape are reported each year in Argentina while the numbers of convictions for sexual crimes range from 400 to 500 per year (gender/argentina.htm). According to a news article published by La Capital on September 8, 2000, one in every four Argentine women is systematically abused in one way or another. Only 10% of sexual violence cases are ever reported and of these, only 10% are prosecuted (Annex B). According to Maria Jose Libertino, President of the Women’s Social and Political Institute (IPSM), the low number of reported cases highlights the lack of trust in the ability of the judicial system to offer redress (Annex A): "Women know they will be revictimized by the justice system and that rapists and criminals will not be effectively punished."(Annex A).

CLADEM and Equality Now welcome the amendment of various Penal Code provisions that previously exempted rapists from criminal prosecution through marriage with their victims. CLADEM and Equality Now note, however, that the Penal Code does not specifically refer to marital rape as an indictable offense. Further, Article 132 of the Penal Code provides for an exemption in criminal penalties through a form of negotiated settlement (Annex E). CLADEM and Equality Now are concerned that the law not only characterizes sexual violence crimes as merely "a conflict" between the perpetrator and victim, but also allows courts to consider a pre-existing emotional relationship between the perpetrator and victim as a mitigating factor. Although the law provides that such settlements can only be obtained freely and in "conditions of equality", CLADEM and Equality Now assert that equality is impossible between rapists and their victims.

CLADEM and Equality Now consider that the failure of the Government to effectively protect women from violence and statutory provisions that provide leniency to rapists and other sex criminals constitute a violation of the right to equality and to equal protection under the law guaranteed by Articles 3 and 26 of the Covenant. CLADEM and Equality Now urge the Committee to question the delegates about measures taken to protect women and girls from violence and the provision of services for victims of violence.

In paragraph 237 of its report to the Committee, the Government notes that the National Council for Children and the Family is responsible for coordinating "help mechanisms for children at risk, living in the street, exploited at work or suffering any other impairment of their dignity." In paragraph 241, the Government states that the "Council for Children and the Family unanimously approved a new program designed to help children forced by adults to engage in begging, working, prostitution, or crime." CLADEM and Equality Now are concerned, however, about the commercial sexual exploitation of women and girls and abour the lack of such programs in the interior of the country. Although Articles 125, 126 and 127 of the Penal Code prohibit sexual exploitation, particularly of minors (Annex F), the involvement of women, children and adolescents in prostitution is widespread and cannot be dismissed as an isolated occurrence. According to the United Nations Inter-Agency Campaign on Women’s Human Rights in Latin America and the Caribbean, child and teenage prostitution of both sexes has risen notably (www.undp.org/rblac/gender/index.html). In the city of Buenos Aires, in 1997, there were 10,000 women prostitutes; 3,000 were working in the street and 7,000 within establishments. Of the latter, 82% involves exploitation by third parties (www.undp.org/rblac/gender/index.html).

Children and adolescents are actively recruited by organized prostitution rings consisting of both large and small businesses, as well as individual operators of various brothels and nightclubs. The organized nature of prostitution is evident in a number of ways: recruitment structures and systems that target children and adolescents of both sexes; internal trafficking between rural and urban areas; cross-border trafficking of women (usually minors) from other Latin American countries; close links to the drug trade in some cases; and close links to nightclubs or other nightspots. Children often work alongside adults and engage in various forms of prostitution including female, male, homosexual, and transvestite. Most girls and women are also dependent on "boyfriends" or intemediaries who handle arrangements with operators and appropriate most of their earnings.

A joint study conducted by UNICEF and the Culture and Women Center in Chaco, Córdoba, Buenos Aires, Neuquén, Misiones and Puerto Madryn concluded that "judicial intervention is nearly nonexistent or notoriously inefficient when it takes place at all. There are no special programs dealing with the sex trade. Even those who work with children at risk –NGOs, the Church, halfway houses, shelters, hospitals, etc.– seem to have a hard time acknowledging the issue" (Annex G) According to a news article published in El Ciudadno on September 5, 2000, several prostitutes reported that local police officials occasionally harassed their clients into handing over money that was intended as payment for their services (Annex H).

Although poverty is a major factor in the proliferation of prostitution, the demand for commercial sexual services must also be taken into account. In this regard, street children are a particularly high–risk population. A June 1995 study of living conditions and survival strategies in street children conducted by CONICET in the city of Rosario found 333 children aged 6 to 18 working the streets. An update in October 1995 found 496 children and showed that the number of girls, set at 17.1 percent by the initial study, had risen to 25.35 percent. In 71.1 percent of cases, the money they earn is brought home to pay for basic necessities.

CLADEM and Equality Now consider that the failure of the Government to take action to protect women and girls from sexual exploitation is a violation of the right to equal protection of the law set forth in Article 26 of the Covenant and a violation of a child’s right to protection set forth in Article 24.

Article 19 of the Constitution of Argentina states: "Judging private acts which do not in any way offend public order or morals or harm others is reserved solely for God and shall be exempt from the authority of magistrates". In paragraph 148 of its report to the Committee, the Government states that Article 19 "grants all men the prerogative of making free choices about their actions, deeds, bodies, lives, and all that appertains to themselves alone". Despite this provision, abortion is a crime in Argentina under Articles 85 through 88 of the Penal Code and is listed among "crimes against life." Women who consent to or obtain an abortion face up to 4 years imprisonment (Annex I, Article 88). Abortion providers face up to 10 years imprisonment if the procedure was carried out without the woman’s consent (Annex I, Article 85), or up to four years imprisonment if it was carried out with the woman’s consent (Annex I, Article 85).

Abortion is permitted only for therapeutic reasons or in case of rape if the woman is idiot or mad (Annex I, Article 86). Although the law does not require authorization from the courts, most physicians routinely request it. As a result, by the time this is obtained the procedure cannot be performed. Abortion for victims of rape is never granted unless the victim is idiot or mad, and the severity of abortion legislation prevents its use even in cases of pregnant children. According to a news article published by El Ciudadano on September 27, 2000, a 10-year old victim of sexual abuse was not permitted to obtain an abortion and had to carry her baby to term. (Annex J).

With regard to clandestine abortions, courts require that medical practitioners report patients admitted for abortion complications instead of protecting patient confidentiality (Annex K). This may result in women not seeking medical treatment or concealing the true causes of their injuries. Women of means have easier access to safe abortion services delivered by qualified physicians, often for a steep fee, while poor women must resort to backstreet abortions.

The severity of Argentina’s abortion legislation increases the incidence of unsafe abortions and contributes to Argentina’s high maternal mortality rate. According to a report by the National Women’s Council in July 2000, the leading cause of maternal mortality is complications from abortion. This accounts for fully 1/3 of all maternal deaths and the trend has been growing through the past decade.

Argentina has no national policy or legislation concerning reproductive health. Only 7 (out of 23) provinces, four municipalities and the autonomous City of Buenos Aires have enacted legislation or bylaws recognizing reproductive rights, usually in the form of sexual and reproductive health or planned parenthood programs. In Buenos Aires, Law 418 on Reproductive Health and Responsible Procreation allows reversible or non–abortive methods of contraception (Annex L, Article 7(c)). The use of tubal ligation and vasectomy for family planning purposes is prohibited (Annex L). Other provinces and municipalities are debating such provisions. Article 91 of the Penal Code, which provides for a prison sentence of between three and ten years for a grievous assault resulting in the loss of the ability to breed or conceive, is used to prohibit women from getting voluntary tubal ligations and to penalize women who are voluntarily sterilized as well as the doctors who perform the operations (Annex M). While no public hospital will perform the illegal tubal ligation procedure, private clinics perform them for fees ranging from US$500 - $1200, according to a report published in La Capital on September 19, 2000.

The absence of reproductive health laws and programs has several implications. With a few exceptions, most private and public health insurance plans do not cover contraceptives. A 1998 report by the Pan American Health Organization indicates that teenage pregnancies are on the rise and currently account for 20 percent of all births. According to a news article published by La Capital on August 8, 2000, 30 percent of all babies born in Rosario (a province of Santa Fe) are born to mothers under 19. According to a news article published by Página 12 published on June 8, 1998, girls under 20 account for 26.5 percent and 1.2 percent of all births in public and private hospitals, respectively (Annex N). This figure illustrates both greater frequency of teenage pregnancy in disadvantaged sectors and better access by middle– and upper–class women to family planning and/or safe abortion services. Indeed, many more abortions are performed by private clinics (8.5%) than public hospitals (2.6%). Such disparity illustrates the fact that women of means have easier access to safe abortion services delivered by qualified physicians, often for a steep fee, while poor women must resort to backstreet abortions.

CLADEM and Equality Now submit that forced maternity constitutes cruel, inhuman and degrading treatment in violation of Article 7 of the Covenant. The Committee has commented in regard to Article 23 that, "The right to found a family implies, in principle, the possibility to procreate and live together" (General Comment 19). The right to procreate is inseparable from the right not to procreate, thus the prohibition of tubal ligation along with the criminalization of abortion violate Article 23 of the Covenant.

CLADEM and Equality Now also submit that the high rate of maternal mortality attributable to unsafe, illegal abortions threatens women’s right to life guaranteed by Article 6 of the Covenant. The prohibition of abortions even for pregnant children violates Article 24 of the Covenant which guarantees every child "the right to such measures of protection as are required by his status as a minor, on the part of the family, society and the State. Further, the requirement that

medical professionals report patients admitted for abortion complications may result in women providing inaccurate or incomplete information to health care providers, or not seeking necessary medical treatment. CLADEM and Equality Now assert that this constitutes a violation of Articles 6 and 17 of the Covenant that guarantees the right to life and privacy respectively. Also, as the Committee has noted in General Comment 28 on Article 3, the imposition of a legal duty upon doctors and other health personnel to report cases of women who have undergone abortion also interferes with Article 3 of the Covenant.

Article 37 of the Constitution of Argentina guarantees the full exercise of political rights by providing equal access to elected public office and party positions. Quota law 24012/91 requires a 30 percent minimum threshold for female political candidacies to the national legislature. Female candidates must also have a reasonable chance of being elected. Slates failing to meet these conditions are not allowed to stand (Annex O). These provisions, however, only apply to the federal level and the self-governing City of Buenos Aires. While most provinces enforce the federal elections law, only 11 out of 23 have enacted similar legislation at the provincial level. Even where such laws exist, the 30 percent minimum threshold is not guaranteed due to a conflict with laws regulating the composition of slates within party tickets (internal ballot winners named to the party ticket - Annex P). The voting system imposed by party ticket legislation disadvantages women candidates as it requires that seats go to candidates with the most votes in case of a tie. Further, there is no indication that the State intends to expand quota systems into other areas, such as political parties, the union movement, or professional associations.

Although women now account for 30 percent of all members of the Chamber of Deputies, only 1 of the 72 seats in the Senate is occupied by a woman. In the national Executive Branch, only 2 of 8 portfolios –the Ministry of Social Development and the Ministry of Labour – are held by a woman. In the provinces no woman has ever been elected as Chief Executive, and only a handful hold a cabinet portfolio. Women are usually found in lower–rank positions.

Women in the union movement account for only 4 percent of the national leadership, notably in the Commerce and Services Federation, the Insurance Union, the Banking Union, and the Mechanics Union (SMATA). Women hold the top post of General Secretary in the Flight Attendants Union, the Teachers’ Union, and the Models’ Guild. Women hold the rank of Deputy Secretary in the United Entertainment Workers’ Guild and the Security Personnel Union of Argentina. Only eight unions have a Women’s Department. Despite growing numbers of women joining professional associations, there have been no corresponding increases in the number of women joining decision–making bodies. In the Argentine Dental Association, for example, women accounted for 14.07 percent of Board members and 9.09 percent of Steering Committee members who held office from 1989 to 1999. Yet, of 9,226 Association members, fully 7,630 were women (Annex Q).

CLADEM and Equality Now are concerned about the absence of political will on the part of the Government of Argentina to adopt measures ensuring greater numbers of women in federal and provincial office or extending application of quota laws to political parties, the union movement, or professional associations, contrary to the equal right of women to take part in the conduct of public affairs enshrined in Articles 3 and 25 in the Covenant.