Confronting Codified Sexism Colombia Last updated 14 Nov 101 Latin American Law

Schedule 21-Nov Legal education in LatAm (reading) 23-NovVIRTUAL FRIDAY 28-NovProf Oquendo (no reading) 30-NovAssignment 28 (corporate law) 5-Dec Visit with Prof Oyarce (Peru) (reading) 7-DecVisit with Prof Reyes (Colombia) (reading)

Today’s topics Activism of Colombia’s Constitutional Court –Gender-specific legislation Civil marriage only in woman’s domicile Marriage void if woman abducted –Standard of review What level of justification Search for justifications –Remedy Interpretation of legislation to be gender neutral Rewriting of offending legislation Sources of law

Model for borrowing Gain perspective Discover truths Impose / power Value of knowing other legal systems Judicial review of sexism

Colombia Country Reports on Human Rights Practices Bureau of Democracy, Human Rights, and Labor (2007)2006 Women in politics: –Political quota: women in 30% of appointed government posts (5 women in the 13-member cabinet, 3 on the 23-member Supreme Court; 11 women in 102- member Senate, including its president / 16 women in the 166-member House of Representatives) Violence against women: –Rape, including spousal rape, jail terms from 8-15 years for violent sexual assault. (14,246 cases of suspected sex crimes, including rape, many cases unreported Women in workplace: –New law prohibits harassment in workplace: sexual harassment, verbal abuse or derision, aggression, and discrimination Women in economy: –President's advisor for equality of women: 5,973 gov’t microcredit loans to women, in the amount of five million dollars (12 billion pesos). Who is ahead – US or Colombia? Same Wellborn

Colombian Palace of Justice Bogota

Colombian Constitutional Court (2006) Declares unconstitutional the legislature’s blanket criminalization of abortion Holds abortions cannot be punished if: (1)the pregnancy constitutes a grave danger to the pregnant woman’s life or health; (2)the fetus has serious genetic malformations; (3)the pregnancy is the result of rape or incest. Otherwise, abortion still illegal (but now tolerated) And … Taryn Kadar

Colombia’s Constitution (1991) …

Constitution of Colombia (1991) Preamble TITLE I Fundamental Rights TITLE II Rights, Guarantees and Duties TITLE III Population and the Territory TITLE IV Democratic Participation and Political Parties TITLE V Organization of the State TITLE VI Legislative Branch TITLE VII Executive Branch TITLE VIII Judiciary Branch TITLE IX Elections and the Electoral Organization TITLE X Supervisory Bodies TITLE XI Territorial Organization TITLE XII Economic and Financial Regime TITLE XIII Constitutional Amendment

Equal protection …

Constitution of Colombia (1991) Article 13. All individuals are born free and equal before the law and are entitled to equal protection and treatment by the authorities, and to enjoy the same rights, freedoms, and opportunities without discrimination on the basis of gender, race, national or family origin, language, religion, political opinion, or philosophy. The state will promote the conditions necessary in order that equality may be real and effective will adopt measures in favor of groups which are discriminated against or marginalized. The state will especially protect those individuals who on account of their economic, physical, or mental condition are in obviously vulnerable circumstances and will sanction any abuse or ill-treatment perpetrated against them. US Constitution Amendment XIV (1868) Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall … deny to any person within its jurisdiction the equal protection of the laws. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Constitution of Colombia (1991) Article 13. All individuals are born free and equal before the law and are entitled to equal protection and treatment by the authorities, and to enjoy the same rights, freedoms, and opportunities without discrimination on the basis of gender, race, national or family origin, language, religion, political opinion, or philosophy. The state will promote the conditions necessary in order that equality may be real and effective will adopt measures in favor of groups which are discriminated against or marginalized. The state will especially protect those individuals who on account of their economic, physical, or mental condition are in obviously vulnerable circumstances and will sanction any abuse or ill-treatment perpetrated against them. US Constitution Amendment XIV (1868) Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall … deny to any person within its jurisdiction the equal protection of the laws. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Constitution of Colombia (1991) Article 43. Women and men have equal rights and opportunities. Women cannot be subjected to any type of discrimination. During their periods of pregnancy and following delivery, women will benefit from the special assistance and protection of the state and will receive from the latter food subsidies if they should thereafter find themselves unemployed or abandoned. The state will support the female head of household in a special way. US Constitution ERA (1972) Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Section 3. This amendment shall take effect two years after the date of ratification.

Constitution of Colombia (1991) Article 43. Women and men have equal rights and opportunities. Women cannot be subjected to any type of discrimination. During their periods of pregnancy and following delivery, women will benefit from the special assistance and protection of the state and will receive from the latter food subsidies if they should thereafter find themselves unemployed or abandoned. The state will support the female head of household in a special way. US Constitution ERA (1972) Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Section 3. This amendment shall take effect two years after the date of ratification.

Apply Colombian constitution to gender-specific code provision … (what court?) “This was a strange pair of cases” Sam Wellborn

Article 125: “Marriages shall take place before the municipal judge of the woman’s vicinity in the presence of two witnesses.” Why included in Civil Code of 1887? Compare to the US – ex post vs ex ante Taryn Kadar Sam Wellborn

Gonzalez Bernal v. Art. 126 Constitutional analysis (or pseudo-science façade?) Remedial (affirmative action) Private discrimination (horizontal effect) Discriminatory (suspect category) Legislative provision Strict scrutiny (prima facie forbidden: government must advance clear reasons, pressing objectives) Intermediate scrutiny (preference substantially related to objectives) Lower scrutiny (Constitution protects plurality, autonomy, personality, association) Less rigorous scrutiny (categories advance permissible goal) Non-discriminatory (neutral category) Compare US judicial review –Sam Wellbonn

Article 125: “Marriages shall take place before the municipal judge of the woman’s vicinity in the presence of two witnesses.” Why do civilians abhor a vacuum? Sam Wellborn Article 125: “Marriages shall take place before the municipal judge of the vicinity of either of the spouses in the presence of two witnesses.”

What grade would you give court opinion? Taylor Noland

Gonzalez Bernal (Col Const Ct 2000) Antecedents Challenged law Complaint Considerations: Court has jurisdiction over case (I) Issue is whether sexual criteria valid (II) Legislature has authority to regulate marriage (III - IV) “Vicinity” in law means “domicile” (V - VI) Standards of review vary (VII - IX) Court invalidates rule that marriage only in woman’s domicile (X - XIII) Court rewrites provision to be gender-neutral (XIV - XIX) Court rewrites another provision to be consistent (XX) Decision (I - III) Concurrence Laws should be presumed valid, and if unconstitutional, should be declared null, without further legal existence (I - III) Facts? Analysis? Persuasive? Guidance? Social effect?

Gonzalez Bernal: “Of course, these possible justifications [protect the woman from being whisked away and uphold the social tradition that bride’s parents pay for wedding] are inadmissible in a constitutional order that recognizes the equality in the sexes.” Average marriage age ColombiaUnited States Women Men

Abduction of grooms … Colombia Civil Code Article 140(6) Ridiculous? Taryn Kadar

Remedial (affirmative action) Private discrimination (horizontal effect) Discriminatory (suspect category) Legislative provision Strict scrutiny (prima facie forbidden: government must advance clear reasons, pressing objectives) Intermediate scrutiny (preference substantially related to objectives) Lower scrutiny (Constitution protects plurality, autonomy, personality, association) Less rigorous scrutiny (categories advance permissible goal) Non-discriminatory (neutral category) Parra Parra v. Art. 140(6) (Col. Const Ct 2001) Taryn Kadar

Parra Parra: “We therefore hold the contested provision conditionally unconstitutional. We leave the challenged phrase in place with the understanding that … either spouse may sue for the annulment of the marriage … under Article 140(6).”

SECUESTROS 1996 – 2006 Secuestros según situación de la víctima SITUACI ÓN DE LA VÍCTIMA AÑO DE PLAGIO TOTAL% Situa ción Liberado ,59 % Rescatado ,80 % Cautivo ,74 % Muerto en cautiverio ,42 % Liberado presión ,44 % Fuga ,58 % Liberado por mediación humanitar ia ,44% Total general ,00% % Anual4%7%12%14%15%13%12%9%6%3% 100%

Sources of law … Constitution Legislation Legislative history International treaties Jurisprudence Doctrine Custom Public policy

End

Panamanian code provisions declared unconstitutional Article 1167 limited the freedom of married women to sign a contract with their spouses Articles 1192 whereby men are solely granted the administration of the property acquired in married life Article 112a, which established that a married woman is obliged to follow her husband, wherever he takes up his residence; Article 35 of the Family Code, which established that a divorced woman is not allowed to remarry, within 300 days after the date of the dissolution of her marriage Articles 1007 and 1008 of the Administrative Code, which established that a “de facto” separation of a woman from her husband was only accepted when there was a justified reason, and that if her husband duly alleged in a lower court, the woman’s tendency to perversion, she should be placed in an honest house, or in grave cases, in a reformatory;

Wilson v. Bellamy NC common law of IIED (like “code”): gang rape at frat party is not actionable (not extreme and outrageous / contributory negligence)

Constitution of Colombia (1991) Article 43. Women and men have equal rights and opportunities. Women cannot be subjected to any type of discrimination. During their periods of pregnancy and following delivery, women will benefit from the special assistance and protection of the state and will receive from the latter food subsidies if they should thereafter find themselves unemployed or abandoned. The state will support the female head of household in a special way. US Constitution ERA (1972) Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Section 3. This amendment shall take effect two years after the date of ratification.

Constitution of Colombia (1991) Article 43. Women and men have equal rights and opportunities. Women cannot be subjected to any type of discrimination. During their periods of pregnancy and following delivery, women will benefit from the special assistance and protection of the state and will receive from the latter food subsidies if they should thereafter find themselves unemployed or abandoned. The state will support the female head of household in a special way. US Constitution ERA (1972) Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Section 3. This amendment shall take effect two years after the date of ratification.