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Wednesday, May 31, 2023

Domestic Violence Law Takes Effect

Is it fair to punish an abusive husband more severely than an abusive wife? Can Costa Rica’s overloaded and often inefficient justice system effectively prosecute newly categorized crimes against women such as repeated humiliation?

These questions, among others, have followed the Law to Penalize Violence against Women throughout its eight-year path through the Legislative Assembly, and although the law finally took effect Wednesday, they remain unanswered.

The law’s detractors say it’s unconstitutional and goes too far; its supporters say it’s a long-overdue step toward protecting women in a country where a domestic violence epidemic has embarrassed Costa Rica “before the world and before God,” according to former President Abel Pacheco (TT, Jan. 30, 2004).

The law’s most vocal proponent, former Women’s Affairs Minister and legislator Gloria Valerín, says the country’s history of gender inequity makes legislation specifically targeting women necessary.

“You can’t treat as equals those who aren’t equals,” she told The Tico Times. “(That’s) the worst form of injustice.”

However, the law’s foremost opponent, Libertarian Movement legislator Antonio Barrantes, says the law violates constitutional rights and was approved only because legislators were afraid to publicly oppose a law protecting women.

“We vote on titles now, not laws,” he said.

Both sides of the debate have their eyes on how the law will be implemented.

A special commission headed by National Women’s Institute (INAMU) president Jeanette Carrillo and made up of representatives from the Public Security Ministry, Prosecutor’s Office, Justice Ministry, prison system and other government agencies has met several times to prepare for the new law’s entry into force, and will continue to meet monthly to evaluate its implementation, Carrillo told The Tico Times last week, shortly after a crowd of women’s rights activists rose to its feet upon watching President Oscar Arias sign the law.

“Finally, we did it!” said a jubilant Vice-President and Justice Minister Laura Chinchilla, who lobbied in favor of the bill during her term as a legislator (2002-2006) –though she, too, emphasized that she and other law-enforcement authorities have their work cut out for them in the days ahead.

A Look at the Law

Support for a new, stricter law to punish violence against women grew among the staff of the Women’s Institute in the late 1990s, thanks in part to dissatisfaction with the 1996 Domestic Violence Law. The law – which did not differentiate between male and female victims and prescribed preventive measures, but not punishments, for aggressors – did not do enough to address women’s problems and was even used against women by abusive partners, according to Valerín.

INAMU social worker Mayrene Sánchez, who has worked with victims of abuse for 15 years, said that under the old law, abusive men sometimes preempted a complaint by their wives by asking for protective measures for themselves. In addition, it took women a long time to begin taking advantage of the protections the law does afford them – when it first took effect, the Judicial Branch received only 1,000-2,000 requests for restraining orders per year, now up to 45,000, Sánchez said.

This process, along with INAMU’s hotline for abused women, eventually incorporated into the existing 911 service, allowed the government to amass statistics about a previously under-studied problems, Valerín said. With momentum gathering, the Law to Penalize Violence against Women was introduced in 1999 and, after five preliminary votes in favor on the assembly floor and five rejections by the Constitutional Chamber of the Supreme Court (Sala IV), three times because of procedural errors, it was finally approved in second and final debate April 12.

During those eight years, spates of domestic violence continued to show why legal reform was necessary, most notably a series of events in 2004 that included an abused Costa Rican woman being granted political asylum in the United States because of insufficient protections here that allegedly allowed her partner to violate a restraining order on nearly a dozen occasions.

The same month, a man who had been arrested three times on the same day a few weeks prior for violence against his family, but released each time, returned to shoot and kill three of his children, injure a fourth and shoot his pregnant companion in the abdomen before killing himself (TT, Jan. 30, 2004). (Both the mother and baby survived.)

In its final form, the law “sanctions forms of physical, psychological, sexual and patrimonial violence against adult women… specifically in relationships of marriage, declared or not.” In contrast with the Domestic Violence Law, the new law outlines not preventive measures, but punishments, for sexual, physical, psychological and property-related abuse.

It calls for 20-35 years in jail for any man convicted of murdering his partner, the same amount the Criminal Code dictates for murder of a spouse but nearly double the 12-18 years now applied to second-degree murder; six months to two years for a man convicted of “repeatedly and in a public or private manner, insulting, devaluing, ridiculing, shaming or terrorizing” his partner; and 12-18 years for a man who rapes his partner, with increases of up to a third for such offenses against pregnant women or for transmitting a sexual disease to the victim. A man convicted of raping someone other than his partner still faces the 10- to 16-year sentence in the Criminal Code.

The law also creates jail sentences for men who steal, damage or limit women’s access to their property, and for men who violate their restraining orders granted through the Domestic Violence Law.

Sánchez explained that the Domestic Violence Law is still in effect, and will complement the new law by providing restraining orders to protect women while their cases are being processed.

Too Far or Not Enough?

According to critic Barrantes, in a country where surveys suggest nine of 10 men are unfaithful and the divorce rate is skyrocketing, the law will give women tools to go after their partners’ money and property. He said the law’s language is general and uncertain, and gives too much discretion to judges to whom the law gives the power to dole out jail sentences.

For example, he criticized Article 26 of the law, which establishes jail terms of two to four years for men who use “threats, violence, intimidation, blackmail, persecution or abuse” to force their partners to “do, stop doing, or tolerate something they’re not obligated to do.” He said the word “something” leaves the law too open to interpretation.

He said male legislators may have been afraid to speak up against the law simply because they feared being called “machista,” despite the law’s unconstitutionality.

According to Barrantes, the only lawmaker to vote against the bill last month, a woman will be able to fabricate allegations against a man with the backing of a third party that could be a parent or other family member, and under the law, if the prosecutor doesn’t process the charges, he or she could be accused of not doing his or her job.

“There should be presumed innocence. This is proving innocence,” he said.

Sánchez said she highly doubts women will use the law in this way.

“It’s not like that, because it’s a criminal law. All the processes in the Criminal Code will apply, and it won’t be so easy to punish a man,” she said, adding that her concerns lie in the other direction – that not enough women will use the law. “If it took us so much time with the Domestic Violence Law for women to start asking for restraining orders… that means we need a process of education and training about access for this law.”

For Sánchez, the law doesn’t go far enough.

“We’re really worried about what’s going to happen with cases of women (abused) by their ex-husbands, ex-boyfriends. This law doesn’t cover that,” she said, referring to a Sala IV decision that said the original version of the law, which applied to all women in “relationships of power or trust,” was too vague. “If we analyze the deaths so far this year, most of the women died at the hands of their exes.”

Carrillo told The Tico Times that one of the keys to addressing the problem of violence against women in the years to come will be providing services for a long-neglected group: abusive men.

Though the new law includes jail time for new crimes such as humiliation, and increases in jail time for existing crimes like rape, it also includes an innovative focus on “alternative measures” such as counseling and community service.

However, the government does not yet offer much support for men, according to Sánchez – and while this problem is certainly on authorities’ radar screen, there’s a long way to go, she said.

“Logically, all the institutions involved (in the commission to implement the law) are working on this, but it will take a little while,” she said.

Next: A look at the government’s services – or lack thereof – to help abusive men.



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