CHILE
Combined second
and third report dated 9 March 1995 (CEDAW/C/CHI/2)
Chile, a country
that had experienced one of Latin America's lasting and progressive
democracies before 1973, and one of the most prolonged and reactionary
dictatorships from 1973-1990,1
began a process of redemocratization in 1990 with the inauguration
of the civilian government and the reopening of the Chilean
congress. The transition, however, has proceeded in the context
of a constitutional, legal, political and psychological legacy
from the dictatorship period, as well as constraints imposed
by the military's participation in the process.2
Thus, while Chile has embarked on the process of modernization
and often has been seen as a model of "political stability and
economic creditworthiness in the hemisphere,"3
the political reforms leading to the dismantling of post-authoritarian
institutions (such as the constitution) and addressing issues
related to the enjoyment of human rights, have proceeded slowly.
The dictatorship
period profoundly affected women and their social roles, and
the traditional images and expectations of women have not changed
during the transition period. Under dictatorship, the socially
conservative government based its policies on a traditional
conception of women's roles. The Pinochet regime discouraged
women's participation in the labor force and public life, promoted
their return to family life (such as by treating women workers
as a secondary force and discriminating against them in favor
of male workers), and emphasized their maternal duties. Until
1986, the Pinochet government upheld the marriage law (potestad
marital) giving rights to husband over wife and her property
based on the principle that the husband owed protection to his
wife in exchange for her obedience.4
However, the government's reinforcement of women's private sphere
role led to their assuming a new public role from the 1970s
onward: as the regime claimed to be defending the family, it
had to respond to women's denunciations of government's repression
against their family members. In fact, women's organizations,
such as the Families of the Detained and Disappeared and the
Families of Political Prisoners, stood at the forefront of the
human rights movement in Chile by raising social awareness and
protesting the brutalities of the dictatorship.5
Analysts agree that, although women initially participated in
these organizations in their traditional roles, with time many
women's groups of various orientations started developing a
sense of gender identity.
By the 1980s, the
women's movement became increasingly politicized and diverse,
and it included both anti-dictatorship human rights groups and
explicitly feminist organizations.6
But according to María Elena Valenzuela, the traditional
image of women - as uninterested in competing with men in public
life and politics - persists. Feminism continues to be seen
and is depicted as an anti-male movement that is not representative
of the majority of women.7
Nonetheless, Valenzuela also acknowledges that despite continuing
discrimination against women in various spheres of Chilean society,
the mobilization of the women's movement has, along with other
factors, resulted in a growing acceptance of the idea that true
democratization must include a transformation in gender relations.8
Chile's population
of 14 million is approximately ninety percent Mestizo (of mixed
native American and European ancestry), five percent European,
and five percent indigenous.9
The indigenous communities are Mapuche (also called Araucanian),
Aymara, Rapa Nui, Quechua, Colla, Alacalufe, and Yagán
(native people totaled 1.3 million in 1992). The official language
is Spanish (called Castellano in Chile). Approximately 76.7
percent of the population are adherents to Catholicism, 13.2
percent are Evangelical or Protestant, and the Jewish, Muslim
and Christian Orthodox communities, combined, are 4.2 percent.
Government and Politics
Chile has a presidential
political system with a bicameral legislature (Senate and a
Chamber of Deputies). The second democratically elected government,
the center-left Concertación de Partidos por la Democracia
(a coalition of the Christian Democratic Party, PDC; the Socialist
Party, PS; the Party for Democracy, PPD and other smaller parties)
of president Eduardo Frei Ruiz-Tagle, succeeded Patricio Aylwin
Azócar in March 1994. The presidential term is six years.
The next presidential election is scheduled for 11 December
1999.10 The formally independent
judiciary continues to be subject to considerable military influence.11
The political left
and right have traditionally disagreed about whether or not
there should be unelected senators, and concerning the role
and composition of the National Security, the electoral system,
and other institutional arrangements, but generally there has
been a consensus on the economic direction of the country and
strong preference for a liberal market economy. The left tends
to support granting the state more power to intervene in the
economy. Some of the current policy debates include the need
for reform of education and health systems.12
The Constitution
The military-designed
Constitution came into existence in 1980. In July 1989, following
a plebiscite on the Constitution, the opposition won some important
democratic changes including expansion of civilian representation
in the National Security Council. The number of elected senators
was increased from twenty-six to thirty-eight, and the process
for amending the Constitution was made easier.13
1973-1990 Dictatorship
On 11 September
1973, General Augusto Pinochet Ugarte and his secret police
overthrew the Marxist Salvador Allende government in a bloody
coup and initiated a period of harsh military rule (1973-1990),
in which, according to the "Rettig Report" released by the Truth
and Reconciliation Commission in 1991, 3,190 people were murdered
or "disappeared"14 and
hundreds were forced into exile.15
According to analysts, the 1973 military coup d'etat was a result
of the "breakdown of political institutions, ideological polarization,
economic crisis, US meddling and calls for military intervention
by some sectors of the society."16
The Transition from
Dictatorship/Human Rights
The transition to
civilian rule was organized and conducted, although under pressure
from emerging social forces, by the military regime. The transition
occurred in a context of eroding international and domestic
support for the dictatorship, the fading Cold War, and the reemergence
of political opposition. In the December 1988 plebiscite, the
dictator General Augusto Pinochet failed to win a majority that
would have guaranteed him another eight-year term. This led
to the December 1989 democratic elections which delivered victory
to the center-left Concertación candidate Aylwin.17
Observers agree
that generally the legacy of dictatorship was more positive
in Chile than in other countries of the region (Brazil, Argentina,
Central America and others), especially in the economic sphere.
The military junta left a fairly strong and decentralized economy
with a vibrant and diversified private sector.18
On the other hand, the continued military influence on Chile's
political life and the political right's veto power in the Senate
have constrained both post-dictatorship governments and prevented
them from addressing human rights issues and fundamental social
and political transformation. The Commission for Truth and Reconciliation
(the Rettig Commission) established in 1990, for instance, investigated
deaths and disappearances but excluded numerous cases of other
types of widespread and gross abuses, such as torture. In addition,
although the report increased society's awareness of the horrifying
abuses and led to the discovery of mass graves around the country,
the military has maintained that the abuses occurred in the
context of a "state of war" and were therefore justified by
the effort to fight terrorists.19
Even though approximately twenty lawsuits have been filed in
Chilean courts against Pinochet since January 1989 alone, the
1978 amnesty law, Pinochet's immunity as lifetime senator, and
the continued strong position of the military in Chile have
assured impunity and safety to Pinochet and the former torturers.20
Despite the democratic
elections, Pinochet (until his arrest last year; see The Case
Against Augusto Pinochet below) had remained a powerful and
influential figure in politics, seriously impairing the work
of the elected governments. For instance, President Frei's attempts
to carry out constitutional reforms have been vetoed by Pinochet's
supporters. Even thought both the Aylwin and Frei governments
have undertaken an extensive program of penal and judicial reform,
the military justice structure put in place by Pinochet has
remained virtually intact and has been a stronghold of authoritarianism.21
The Case Against
Augusto Pinochet
Nevertheless, in
an important development for the human rights movement both
in Chile and around the world, and an undoubted upset for former
military rulers, Augusto Pinochet was arrested in London in
October 1998, as he was recovering from back surgery. He was
arrested at the request of the Spanish government on behalf
of Spanish magistrate Baltasar Garzón.22
Garzón wants to put Pinochet on trial on charges of genocide,
murder, torture and kidnapping (including cases of Spanish citizens
and other foreign nationals) during the 1973-1990 dictatorship.
In March 1999, the British Law Lords ruled that, in spite of
his status in Chile, he does not have immunity and should answer
for cases arising after 1988 (when Britain signed the UN Convention
Against Torture). In April 1999, Home Secretary Jack Straw allowed
the extradition proceedings to go forward.23
As of May 1999, Pinochet faced a costly legal battle against
extradition to Spain. But some experts claim that even if Pinochet
is extradited to Spain, he is likely to be released for humanitarian
reasons, due to his age and health problems.24
While some in Chile
and abroad called the proceedings against Pinochet politically
motivated and a "transgression against the legal sovereignty
of Chile,"25 dictatorship
victims and human rights organizations, such as Amnesty International,
hailed the decision to finally bring Pinochet to justice after
twenty-five years as a groundbreaking case in human rights.
If the extradition proceedings go forward, the precedent will
make it possible for any country to bring heads of other states
before courts to answer for crimes they committed while in office.
26
Yet Chilean society
is divided on the question of what should happen to Pinochet.
According to an April 1999 poll by the Center of Studies on
Contemporary Reality (CERC), thirty-one percent of those interviewed
believed that Pinochet should stay in London, and forty-one
percent stated that he should be put on trial in Chile. Seventeen
percent of respondents wanted him to return to Chile and not
face prosecution. Other polls, however, found that fifty-five
percent of respondents thought that existing legal and political
conditions in Chile are not conducive to bringing the former
dictator to justice.27
The Catholic Church
The Roman Catholic
Church was a source of significant opposition to the Pinochet
regime and played a key role in the protection of human rights.
The Church supported human rights organizations by providing
social services and shelter to persecuted intellectuals and
politicians. With the restoration of democracy, the Catholic
Church has returned to traditional functions as provider of
pastoral and charitable services. However, it has retained its
role as a voice of what it defines as morality and exerts influence
on issues concerning education, morality, family relationships,
extramarital sex, birth control and abortion. For example, the
Church has advocated measures opposed to some of the progressive
initiatives by a government women's agency with ministerial
status created in 1991, the Sevicio Nacional de la Mujer (National
Women's Service; SERNAM), especially in the area of family and
social life, such as abortion, family planning and divorce.28
Freedom of Expression
Media
Human Rights Watch
(HRW) wrote in a November 1998 report that "Chile is not a country
in which journalists or opposition politicians are typically
physically harassed or harmed by individuals tied to the state
structures."29 But the
existence of many restrictive laws dating back to the dictatorship
era, as well as deeply rooted practices predating dictatorship,
remain in effect and constrain reporters. The existing laws
criminalize criticism of public officials, allow military tribunals
to put journalists on trial for sedition, and control television
broadcast licensing. A new press law has been stalled in parliament
for the last five years.30
Despite the fact that the laws rarely lead to prosecution, they
pose a continuing threat of legal action and journalists maintain
that it hampers their ability to work freely. In 1998-1999,
there have been several instances of harassment against journalists.
In January 1998, host of the TV news show "Plan Zeta," Rafael
Gumucio, and reporter for Cosas magazine, Paula Coddou, were
jailed for criticizing Supreme Court Chief Justice Servando
Jordán. Jordán also sued journalists José Ale
and Fernando Paulsen of the daily La Tercera, which led to their
indictment in January 1999.31
The April 1999 instance of censorship and the confiscation of
the "The Black Book of Chilean Justice" written by investigative
reporter Alejandra Matus, which details corruption, negligence
and nepotism under dictatorship, has spurred a public debate
about freedom of expression in Chile and led to protests by
several media outlets and the Chilean Journalists' Association.
Copies of the books were pulled off bookstore shelves by security
forces on the order by Judge Ismael Huerta following a lawsuit
filed by Justice Jordán.32
Notwithstanding
the signs of increasing public debate and protest against limits
on reporting, many editors still practice self-censorship and
the concentration of media ownership has been growing,33
which limits the scope of information available to the public.
Two media companies tied to conservative politics control almost
all newspapers in the country. The only independent papers,
La Epoca and Hoy, were closed because of financial problems
in 1998. According to the Committee to Protect Journalists (CPJ),
eighty-five percent of television news stories in Chile used
government sources as the main basis for reporting.34
Indigenous Communities
Indigenous people,
who constitute more than five percent of Chile's population
- with Mapuches community of one-million being the most numerous
- have been the poorest, most neglected and least integrated
groups in Chile. The Law for Protection, Support, and Development
of Indigenous Peoples adopted at the end of Aylwin's presidency
in 1993 was designed to rectify this situation. It provides
a legal definition of "indigenous person," makes racial discrimination
illegal, recognizes Indian communities as legal entities, provides
a framework for the protection of Indian lands and establishes
a scholarship fund for indigenous students. It also contains
a provision important for gender relations by requiring wife's
or conjugal partner's signature in sales of land.35
But government policies have been unclear on the question of
specific programs for Chile's indigenous communities, including
the Northern area populated by Aymara and Quechua-speakers,
and the Southern region inhabited by Mapuche Indians.36
Mapuches' Territorial
Disputes
Since February 1999,
several conflicts over land have erupted between indigenous
groups and logging companies, particularly in the South. The
dispute involves some 200,000 hectares of ancestral land that
is occupied by logging companies. Indigenous groups protested
the environmental damage caused by the companies, including
the destruction of old rare tree species.37
Environmental and indigenous groups have protested a remark
by a business leader and a member of the government Commission
to negotiate the dispute, Felipe Lamarca, who suggested as a
solution, "converting Mapuche Indians into entrepreneurs of
the logging business."38
In another dispute,
Mapuche communities, along with a network of social and ecological
organizations, have vigorously opposed the construction of the
Ralco hydroelectric dam on the upper Biobio river by the Spanish-Chilean
Endesa company. The construction requires the eviction of more
than eighty indigenous families of the Pehuenche community (Mapuche
group).39 Eight families
have refused to leave the land, and advocates have claimed that
the others were tricked or unfairly pressured to move against
their will. In March 1999, two elderly Mapuche sisters, Berta
and Nicolasa Quintreman, were put on trial at a military court
for their activities against the project. Moreover, the government
has put on trial on charges of "violent infiltration in an ethnic
conflict" and has expelled a Spanish and a US citizen and attempted
to expel a French citizen participating in the protests."40
The protesters have argued that voices of indigenous representatives
were not included in the planning process of the Ralco project,
which threatens the ancestral culture of the Pehuenche and amounts
to an "ethnocide."41
Aymaras and the
Environment
In the North, indigenous
Aymara groups and environmental activists asked President Frei
not to sign the decree which would remove from protection one-third
of the Lauca National Park, the largest nature reserve in Northern
Chile. The government wants to open the area for exploration
by mining companies of its copper, molybdenum, gold, silver,
sulfates and other minerals. Activists argue that the area is
home to a wide variety of plants and animals, including flamingos,
sea gulls, vicuñas, llamas, alpacas, and chinchillas.
Observers point
out that the indigenous populations held 31 million hectares
in Chile in 1540 and they have control over about 300,000 hectares
today. They argue that the existing land is not enough for survival
especially when forest logging activity damages the land and
environmental manipulation leads to the drying up of rivers.
According to Francisco Caquilpan Lincuante, President of the
Mapuche Corporation of Development and Communications, there
has been a trend of return of some indigenous Mapuches from
cities to the land. 42
Economic Situation
After almost fifteen
years of consistent economic growth and a decreasing rate of
inflation, since 1997 Chile has been in a recessive period as
a result of the Asian crisis. The economic growth rate decreased,
from 7.1 percent in 1997 to four percent in 1998, and during
the last quarter of 1998 economic activity fell by 2.8 percent.
The internal adjustment carried out by the government has been
accompanied by negative shocks in the principal export products.
The price of copper in international markets has fallen to the
lowest level in fifty years, the agricultural sector faces the
heaviest drought of the century, and there is a sharp decrease
in the fish catch. According to Carlos Massad, president of
the Chilean Central Bank, these trends are expected to improve
during the second half of 1999.43
Even though the
general macroeconomic situation of the country has improved
during the last fifteen years, Chile continues to have one of
the worst disparities of income distribution in the world. It
has only slightly improved in the last several years in the
urban areas but it has worsened in rural areas. The share of
the overall income for the poorest twenty-five percent in rural
areas has decreased from 9.3 percent in 1987 to 8.4 percent
in 1996.
The unemployment
rate rose from 5.3 percent at the beginning of 1998 to 7.5 percent
at the end of 1998. The government forecasts that these conditions
will improve if, as expected, the overall economy improves during
1999.
Worker Rights
According to the
1998 annual report by the International Confederation of Free
Trade Union (ICFTU), most Chilean labor laws originated in the
dictatorship period, and a draft of a new law has been stalled
in the parliament.44 But
the National Union Center (CUT; Central Unitaria de Trabajadores)
has criticized the government-introduced draft for its failure
to broaden the collective bargaining right to the public sector.
As of 1997, public employees in Chile were barred from forming
unions and can only join associations that do not engage in
collective bargaining or go on strike.45
The existing labor law makes it difficult to organize in many
sectors. Additionally, most workers have individual employment
contracts and employers retain the right to incorporate clauses
in the contract that bar employees in supervisory positions
from collective bargaining. Agricultural, construction and other
workers are defined as "temporary labor," which leaves them
with highly restricted collective bargaining rights dependent
on employers' discretion. CUT reported that anti-union practices
by employers increased in 1997, and included breaking down companies
into smaller units and instances of firing workers who participated
in collective bargaining.46
STATUS OF WOMEN
IN CHILE UNDER SPECIFIC CEDAW ARTICLES:
The following material
on the status of women under specific CEDAW articles was compiled
based on reports prepared by the following Chilean NGOs: Instituto
de la Mujer ("Preparación del Estado de Cumplimiento del
CEDAW"), Corporación de la Mujer La Morada, Comité
Latinoamericano y del Caribe para la Defensa de los Derechos
de la Mujer (CLADEM), and Foro Abierto de Salud y Derechos Sexuales
y Reproductivos ("Reporte Alternativo al III Informe Periódico
del Estado del Cumplimiento de CEDAW"). The information under
Article 14 on rural women was based in the subsection of the
Instituto de la Mujer's report prepared by Centro de Estudios
para el Desarrollo de la Mujer, CEDEM ("Mujeres Rurales").
CONVENTION ARTICLE
2 - POLICY MEASURES TO ELIMINATE DISCRIMINATION
Even though the
Chilean Constitution requires state agencies to respect and
encourage the enforcement of the rights contained in the constitution
and in the international treaties ratified by Chile, women's
NGOs claim that the tribunals have been slow to incorporate
these tools as elements for making their decisions.47
For example, in one of the cases presented by Instituto de la
Mujer's Report48 a girl
was expelled from a Catholic high school because she was pregnant.
In ruling on a lawsuit filed against the school, the Court issued
a decision that did not mention CEDAW, even though the plaintiff
cited the treaty in her complaint. Moreover, CEDAW is not well
known either among public workers or citizens in general.49
In 1990, the new
democratic government created the Servicio Nacional de la Mujer
(SERNAM), a government agency with the mission of designing
public policies oriented toward women, coordinating national
policies and actions with the other ministries, evaluating the
execution of the policies from the perspective of CEDAW, and
making and promoting studies about the situation of women and
family.50 In spite of
these stated objectives, SERNAM's effectiveness has been hampered
by the government's overall lack of gender awareness.51
CONVENTION ARTICLE
5 - SEX ROLES AND STEREOTYPING
In 1993, SERNAM
launched the national Plan de Igualdad de Oportunidades para
las Mujeres 1994-1999 (Plan for Equal Opportunities for Women
1994-1999). The objective of this plan was to guarantee equal
opportunity to women and men, and to bring about cultural change
toward the legitimization of equality as a social value. Even
though this plan opened a window for the creation of better
opportunities for women and eliminated most discriminatory legislation,
its mission has been hampered by the constraints of traditional
society. As a result, the program focuses primarily on the status
of women as it relates to conjugal and reproductive roles.52
CONVENTION ARTICLE
7 - POLITICAL AND PUBLIC LIFE
According to the
1998 United Nations Human Development Report, Chile occupies
the sixty-first place in the Gender Empowerment Measure Index
which ranks all the United Nations member nations.
Women's representation
in the House of Commons stands at ten percent, and in the Senate
it is four percent. Even though there is a draft law designed
to address the underrepresentation of women in the legislative
branch, the project has not been discussed since the executive
branch of the government has not made it a priority.53
CONVENTION ARTICLE
10 - EDUCATION
According to Instituto
de la Mujer, the Chilean educational system discriminates against
pregnant young women. Even though the official Circular 247(1991)
prohibits discrimination in educational institutions financed
by public funds, there have been cases of expulsion of female
students due to their pregnancy. Circular 247 is not applicable
in the private educational system, which allows discrimination
to go unchecked. Discrimination against pregnant women exists
in primary and secondary educational institutions, as well as
in higher education.54
Instituto de la
Mujer reported that a pregnant student from Universidad de Los
Andes was suspended for one year. In a lawsuit brought by the
student's family against the university, the court decided that
the institution had the right to expel the student. The court
declared that the student did not meet requirements established
by university statutes, since at the moment of being admitted
to the institution students are supposed to accept these regulations.
Article 27 of the regulations stipulate that students should
make an effort in reach the best scientific, cultural and moral
goals. If the school deems their behavior to violate these regulations,
it reserves the right to apply a penalty, including the cancellation
of admission. A bill addressing this problem was introduced
by a group of parliamentarians, but it has been stalled for
five years.55
CONVENTION ARTICLE
11 - EMPLOYMENT
The unemployment
rate at the beginning of the decade was 7.4 percent; the unemployment
rate for women was 9.2 percent, and men's unemployment stood
at 6.6 percent. Even though the female unemployment rate has
decreased proportionally with the decrease in overall unemployment
during this decade, the gap between female and male unemployment
rate has not changed significantly. In 1990, the female unemployment
rate was 1.39 times higher than the male unemployment rate,
reaching the highest difference in 1992. The unemployment rate
for 1992 was the third lowest of the decade, but the female
unemployment rate was 1.78 times higher than the male.56
On average, women
earn 70.3 percent of men's salary. This percentage decreases
with income. While women in the first quintile earn 70.3 percent
of men's income, women in the fifth quintile earn only 54.2
percent of the men's income.57
Even though the Constitution forbids gender-based discrimination
in employment, employers are allowed to stipulate gender requirements
in job descriptions.
CONVENTION ARTICLE
12 - HEALTH CARE AND FAMILY PLANNING
Family Planning
Even though health
services regulations require that women between fifteen and
forty- four years-old have access to contraceptive methods,
in practice women have access to contraceptives only after the
first pregnancy. Although the Ministry of Health officially
recognizes the importance of family planning, abortions are
not readily available in public institutions, even in cases
of rape. There is no coordination between hospitals that treat
women with abortion complications and the public health services
that provide contraceptive methods. In addition, there are no
family planning programs that provide public education, and
no information is available to women on how to avoid unwanted
pregnancy.58 Women can
request voluntary sterilization in public institutions, but
they must obtain authorization from their husbands.59
Health Insurance
According to an
Instituto de la Mujer report, there is an important degree of
discrimination in the access, permanency and rates charged to
women, especially those of reproductive age. Private companies
avoid accepting pregnant women or do not cover the cost of birth,
or they charge them higher rates. Women of reproductive age
face the possibility of having benefits worth one-fourth of
the benefits for men of the same age and in the same economic
situation. A significant number of women who try to enter in
the private insurance system are rejected by the insurance companies
due to their pregnancy since they are considered a "bad customer"
(mal negocio).60
Abortion
The Chilean abortion
law is one of the most restrictive in the world; only El Salvador
and Nepal have similar laws. The Chilean Criminal Code prohibits
all abortions, even when women's life is in danger, and it punishes
both the women who consent to abortion and the providers. Therapeutic
abortion was permitted in Chile from 1931 to 1989, but during
the last weeks of Pinochet's government, the Health Code exception
was modified based on the premise that "modern medicine" has
made therapeutic abortion unnecessary.61
Despite the illegality of abortion, the per capita number of
abortions in Chile is one of the highest in Latin America. Twenty-five
percent of maternal deaths are due to unsafe abortions, and
this number has been increasing since 1990.62
In the 1990s, there
have been two attempts to relax the abortion law. In 1991, the
ruling coalition Concertación de Partidos por la Democracia
introduced a project intended to reestablish the therapeutic
abortion allowed between 1931 and 1989. Between 1994-1995 an
NGO Open Forum on Reproductive Health and Rights developed a
legal advocacy project which would allow for abortion in cases
of incest and HIV/AIDS. Neither of these propositions has succeeded.63
Meanwhile, there
have been initiatives to increase the penalties for abortion.
In 1998, Senator Hernán Larraín submitted a proposal,
which was subsequently rejected, that would have modified the
Chilean Penal Code by imposing heavier penalties on both the
abortion providers and on women who seek abortion. Under this
law, abortion would have been considered a crime against the
life of a human being, a significantly weightier charge than
the current one, which is a crime against morality and family.
Additionally, the law would have allowed for conviction of third
parties involved in the abortion procedure and would have provided
incentives for women who "repented" after having an abortion.
Women who reported third parties and providers would have had
their own penalties lessened.64
The current law
makes it compulsory for physicians and hospital personnel to
report women who arrive at the hospital with health problems
caused by clandestine abortion. As a result of this law, about
eighty percent of abortion cases filed against women were reported
by their physician. This provision also increases the chance
of death as the possibility of jail inhibits women from going
to a hospital to treat abortion complications.65
According to Women
Behind Bars, a study conducted by the Center for Reproductive
Law and Policy and the Open Forum on Reproductive Health and
Rights, sixty percent of surveyed women accused of obtaining
abortions had no defense counsel at all. Eighty percent of criminal
prosecutions of women who obtained abortions were the result
of reports to the police by the public hospitals where they
sought treatment for abortion-related complications. Health
care providers forced some women to "confess" having had abortions
under threats that medical care would be withheld if they refuse
to do so. Of the women who had been prosecuted for undergoing
abortion, sixty-one percent were under the age of twenty nine,
forty nine percent were single, and only nine percent had finished
high school. Forty-seven percent of the women were employed
in low-paying jobs, such as domestic workers (twenty three percent)
and factory workers (twenty percent). "This just does not happen
to women who have the means to afford safe and discreet abortions
at private clinics," according to Gaby Oré Aguilar, a staff
attorney for the Center for Reproductive Law and Policy.66
The government has
continued to place a low priority on establishing and implementing
family and sex education programs in the schools. In 1996, the
Ministry of Education along with the Ministry of Health launched
a national sex education program in schools but suspended the
program just a few days after it was introduced, because of
the opposition by the Catholic Church.
HIV/AIDS
As of December 1997,
2,211 cases of AIDS had been officially reported in Chile. Of
these cases, nine percent are women. According to official statistics,
3,075 people are living with the HIV virus, but unofficial estimates
are that at least 14,000 Chileans live with HIV. The incidence
of HIV/AIDS is 16.8 per 100,000, and the rate of increase has
been greater among women than in men. The ratio of HIV/AIDS
cases of men to women dropped from 31.5:1 in 1990 to 10.5:1
in 1995, indicating a gradual feminization of HIV/AIDS.67
CONVENTION ARTICLE
14 - RURAL WOMEN
Social Security
The current social
security system is fully funded by individuals: individuals
deposit their contributions into personal accounts that are
administered and invested by private companies. They receive
retirement benefits in accordance with the amount in their personal
account. Under this system, salaried workers deposit ten percent
of their income and self-employed people can, if they want,
deposit ten percent of their declared income. Given that most
rural women are independent workers and cannot afford to contribute,
51.4 percent do not have sufficient resources in their account
by the time they reach retirement age. Rural women are also
more likely not to have access to the minimum pension provided
by the state since they have more "blank" periods of employment
(when they did not deposit in their personal account), or, if
waged, they lack the minimum 240 months of contribution required
for access to the benefit at retirement.68
Health
Mandatory social
security insurance covers cases of accidents at work and vocational
diseases which guarantees benefits to salaried workers and to
some self-employed workers. According to data from 1990, fifty-six
percent of agricultural workers do not receive these benefits.
However, the data are not disaggregated by gender. Moreover,
forty-six percent of rural women have no health insurance (1990).69
Access to Land
In 1992 the Ministry
of Resources, with funds from the World Bank, implemented a
program for solving the irregularities in property rights, which,
due to an agreement with SERNAM, benefit a significant number
of female heads of household. Among the beneficiaries, 39.3
percent are women. It should be noted, however, that women typically
have smaller properties than do men.70
CONVENTION ARTICLE
16 - MARRIAGE AND FAMILY LAW
Marriage
Most women are married
under the regime of sociedad conyugal. According to the Civil
Code, the husband is the head of the "conjugal association"
and manages the family's assets. This law does not allow women
to enter into a contract without her husband's authorization.71
As a result, women face major obstacles when they apply for
mortgage and request housing subsidies independent of their
husbands. The patria potestad of the Family Code accords the
father total control over the assets of underage children in
the absence of an agreement between the couple.72
In Chile, seventeen
percent of households are single-parent families and twenty-six
percent of the children do not live with both parents. Tribunals
for minors are dedicated mainly to regulating conflicts caused
by marriage ruptures.73
Unmarried couples are not legally recognized in Chile. In cases
of separation, the division of family assets depends on private
agreement or is at the discretion of the tribunals.74
Divorce
Chile is one of
the few countries in the world without a divorce law.75
Despite surveys indicating that 58.5 percent of the population
is in favor of legalizing divorce, According to Instituto de
la Mujer, this prohibition against divorce makes married and
separated women vulnerable to discrimination. Currently, seeking
an annulment is the only way to "divorce." Under this alternative,
the marriage is voided as if it had never existed. The annulment
procedure is only available for those who can afford the high
legal fees. According to the two shadow reports referenced at
the beginning of this section, annulment practices result in
discriminatory practices toward women and children.
A draft divorce
law has been debated in parliament since 1993, but opponents
are conducting a media campaign with strong support from the
Catholic Church and right wing parties.76
The Catholic Church has threatened to excommunicate Catholic
parliamentarians and senators if they support the divorce law.
GENERAL RECOMMENDATION
#19 - VIOLENCE AGAINST WOMEN
Domestic Violence
A law regarding
domestic violence was adopted in 1994. But according to Instituto
de la Mujer, this law centers on the protection of the family
in its traditional meaning rather than on women by themselves,
having as its main objective the rehabilitation of the aggressor
and the continuity of the family. The treatment of the issue
has been immersed in traditional family values, as the slogan
of the campaign was "no more violence between men and women,"
which obscures the fact that violence against women is a consequence
of the unequal power relations between men and women.77
Moreover, according
to La Morada, CLADEM, and Foro Abierto, the implementation of
the law presents significant problems.78
First, the non-existence of family tribunals has limited application
of the law: professionals involved in the process and women
who try to use the law are largely ignorant of its provisions.
Second, police personnel in charge of receiving the complains
are not well informed about the required procedures for carrying
out the investigations and, as a consequence, the process is
unnecessarily delayed for lack of adequate information on the
record. Moreover, the lack of appropriate facilities
inhibits treatment
of victims of violence. Third, sixty-five percent of the cases
end up in an agreement between the affected parties, a solution
that it is deficient in the absence of any kind of required
monitoring of the case.
A project to reform
the judicial system, including the creation of family tribunals,
has been introduced in the Parliament. These tribunals would
have jurisdiction in cases of domestic violence. Women's non-governmental
organizations fear that the tendency of the judges to arrange
an agreement between the parties would disadvantage women due
to the difference in bargaining power between men and women.79
Sexual Harassment
Currently there
is a draft law, which has been under discussion since 1995,
to address the problem of sexual harassment in the workplace.
The different factions in parliament have not agreed to extend
its application to other sectors, such as educational institutions,
prisons, and hospitals.80
PREVIOUS REVIEW
BY CEDAW:
Convention on the
Elimination of All Forms of Discrimination Against Women. Concluding
Observations of the Committee on the Elimination of Discrimination
Against Women: Chile (31 May 1995). The Committee on the Elimination
of Discrimination Against Women considered Chile's initial report
(CEDAW/C/CHI/1) on 18 and 24 January 1995.
Principal Subjects
of Concern:
- Existence of laws
which still contained discriminatory provisions, and of situations
in which women were at a disadvantage compared to men.
- The situation
of rural women who did not have access to the same opportunities
for the same services as those in the cities, as well as the
low percentage of women in positions of political responsibility;
maternal mortality resulting from clandestine abortions.
Suggestions and
Recommendations:
- Prepare its second
report according to the guidelines, containing complete, well-grounded
information that would reflect the real as well as the legal
situation of women, including the obstacles encountered, instead
of a report based mainly on legal references.
- Promote the elimination
of still existing discriminatory legal provisions, especially
in relation to the family and to bring Chilean legislation
into line with the Convention.
- Introduce legislation
providing for the right to legal divorce.
- Provide more complete
information, including relevant statistics, in its next report
on the implementation of each of the articles, especially
on topics such as violence against women, prostitution, political
participation, reproductive health, working conditions and
wages, the situation of "temporary" workers, women living
in poverty, the de facto situation of women in the family,
teenage pregnancy and the status of non-governmental organizations.
- Provide information
on steps undertaken to strengthen the National Office for
Women's Affairs (SERNAM), and on the implementation of the
equal opportunities plan.
- Revise the extremely
restrictive legislation on abortion, taking into account the
relationship between clandestine abortion and maternal mortality.
ACTIONS BY OTHER
HUMAN RIGHTS TREATY BODIES PERTAINING TO WOMEN'S HUMAN RIGHTS:
Concluding observations
of the Committee against Torture : Chile. 26/07/95. A/50/44,
paras. 52-61. (Concluding Observations/Comments)
No recommendations
concerning women were issued by this Committee.
Concluding observations
of the Committee on the Rights of the Child : Chile. 25/04/94.
CRC/C/15/Add.22. (Concluding Observations/Comments)
No recommendations
concerning women were issued by this Committee.
Endnotes:
1
Paul W. Drake and Iván Jaksic, "Introduction: Transformation
and Transition in Chile, 1982-1990," In: Paul W. Drake &
Iván Jaksic, eds. The Struggle for Democracy in Chile (Lincoln
and London: University of Nebraska Press, 1995), 1. back
2
Brian Loveman, "The Transition to Civilian Government in
Chile, 1990-1994," In: Paul W. Drake & Iván Jaksic,
eds. The Struggle for Democracy in Chile (Lincoln and London:
University of Nebraska Press, 1995), 303. back
3
Human Rights Watch, Freedom of Expression and the Public
Debate in Chile (November 1998), on-line, available at: http://www.hrw.org/reports98/Chile/,
accessed 3 May 1999. back
4
María Elena Valenzuela, "The Evolving Roles of Women
under Military Rule," In: Paul W. Drake & Iván Jaksic,
eds. The Struggle for Democracy in Chile (Lincoln and London:
University of Nebraska Press, 1995), 162. back
5
Ibid., 167; Brian Loveman, "The Transition to Civilian
Government in Chile, 1990-1994," In: Paul W. Drake & Iván
Jaksic, eds. The Struggle for Democracy in Chile (Lincoln and
London: University of Nebraska Press, 1995), 324-325. back
6
María Elena Valenzuela, "The Evolving Roles of Women
under Military Rule," In: Paul W. Drake & Iván Jaksic,
eds. The Struggle for Democracy in Chile (Lincoln and London:
University of Nebraska Press, 1995), 171. back
7
Ibid., 183-184. back
8
Brian Loveman, 327. back
9
Lonely Planet, Destination Chile & Easter Island, on-line,
available at: http://www.lonelyplanet.com/det/sam/chile.htm,
accessed 4 April 1999. back
10
Gustavo Gonzalez, "Rights-Chile: Public Divided Over Fate
of Pinochet," Inter Press Service, 20 April 1999, Nexis (27
April 1999). back
11
"Former Chilean Dictator Augusto Pinochet Must Stay in
England for Extradition Process," NotiSur - Latin American Political
Affairs, 23 April 1999, Nexis (27 April 1999). back
12
"Chile: Country Fact Sheet," EIU NewsWire, 22 April 1999,
Nexis (27 April 1999). back
13
Paul W. Drake and Iván Jaksic, 13. back
14
Gustavo Gonzalez, "Rights-Chile: Public Divided Over Fate
of Pinochet," Inter Press Service, 20 April 1999, Nexis (27
April 1999). back
15
Hendrik Groth, "General Pinochet - the Man who Symbolizes
Latin America's Dark Ages," Deutsche Presse-Agentur, 24 March
1999, Nexis (27 April 1999). back
16
Brian Loveman, 305. back
17
"Chile: Country Fact Sheet," EIU NewsWire, 22 April 1999,
Nexis (27 April 1999). back
18
Brian Loveman, 306. back
19
Ibid., 312-313. back
20
"Former Chilean Dictator Augusto Pinochet Must Stay in England
for Extradition Process," NotiSur - Latin American Political
Affairs, 23 April 1999, Nexis (27 April 1999). back
21
Hendrik Groth, "General Pinochet - the Man who Symbolises
Latin America's Dark Ages." back
22
Garzón launched an investigation into the crimes committed
by military regimes in Argentina and Chile three years ago;
"Former Chilean Dictator Augusto Pinochet Must Stay in England
for Extradition Process," NotiSur - Latin American Political
Affairs, 23 April 1999, Nexis (27 April 1999). back
23
"Former Chilean Dictator Augusto Pinochet Must Stay in
England for Extradition Process," NotiSur - Latin American Political
Affairs, 23 April 1999, Nexis (27 April 1999). back
24
Gustavo Gonzalez, "Rights-Chile: Public Divided Over Fate
of Pinochet." back
25
"Former Chilean Dictator Augusto Pinochet Must Stay in
England for Extradition Process," NotiSur - Latin American Political
Affairs, 23 April 1999, Nexis (27 April 1999). back
26
Ibid. back
27
Gustavo Gonzalez, "Rights-Chile: Public Divided Over Fate
of Pinochet." back
28
Brian Loveman, 325-326. back
29
Human Rights Watch, Freedom of Expression and the Public
Debate in Chile (November 1998). back
30
Committee to Protect Journalists, Country Report: Chile.
As of 31 December 1998, available at: http://www.cpj.org/countrystatus/1998/Americas/Chile.html,
accessed 30 April 1999. back
31
Ibid. back
32
Gustavo Gonzalez, "Rights-Chile: Outcry over Attack on
Freedom of Express," Inter Press Service, 21 April 1999, Nexis
(30 April 1999). back
33
Gustavo Gonzalez, "Chile-Media: Debate on Pluralism in
the Chilean Press," Inter Press Service, 14 May 1998, Nexis
(30 April 1999). back
34
Committee to Protect Journalists, Country Report: Chile.
back
35
Brian Loveman, 327-328. back
36
Ibid., 327. back
37
Gustavo Gonzalez, "Environment Chile: Tensions Rise as
Loggins Talks Fail," Inter Press Service, 9 April 1999, Nexis
(27 April 1999). back
38
Ibid. back
39
Ibid. back
40
"A Warm Goodbye for Expelled Activists," Inter Press Service,
17 March 1999, Nexis (27 April 1999). back
41
"Elderly Indigenous Women Tried by Military Courts," Inter
Press Service, 29 March 1999, Nexis (27 April 1999). back
42
"Native Chileans Under Threat," The Press (New Zealand),
27 January 1999, Nexis (27 April 1999). back
43
La Tercera, on line, available at http:tercera.entelchile.net/diario/1999/02/27/27.21/3A.ECO.MASSAD.html,
accessed 27 February 1999. back
44
The International Confederation of Free Trade Unions, 1998
Annual Survey of Violations of Trade Union Right: Chile (Brussels:
ICFTU, 1998): 45-46. back
45
Ibid. back
46
Ibid. back
47
Instituto de la Mujer, "Presentación del Estado de
Cumplimiento del CEDAW," Santiago, Chile, April 1999. back
48
Ibid. Appendix 1. back
49
Corporación de la Mujer La Morada, Comité Latinoamericano
y del Caribe para la Defensa de los Derechos de la Mujer, and
Foro Abierto de Salud y Derechos Reproductivos, "Reporte Alternativo
al III Informe periodico del estado del Cumplimiento de CEDAW,"
Santiago, Chile, April 1999. back
50
Ibid. back
51
Ibid. back
52
Ibid. back
53
Instituto de la Mujer, "Presentación del Estado de
Cumplimiento del CEDAW," Santiago, Chile, April 1999. back
54
For several examples see Appendix 1. Instituto de la Mujer,
"Presentación del Estado de Cumplimiento del CEDAW," Santiago,
Chile, April 1999. back
55
Instituto de la Mujer, "Presentación del Estado de
Cumplimiento del CEDAW," Santiago, Chile, April 1999. back
56
International Labor Organization, on line, available from:
http://www.ilolim.org.pe/homeagenew/spanish/260ameri/publ/panorama/1998/anexest/cdro3a.shtml,
accessed 19 March 1999. back
57
Ministry of Planning, Encuesta de Caracterización
Socioeconómica Nacional (CASEN), 1998. back
58
Instituto de la Mujer, "Presentación del Estado de
Cumplimiento del CEDAW," Santiago, Chile, April 1999. back
59
Ibid. back
60
"Discriminación a Mujeres Fertiles en Sistema Privado
de Salud," Mujer/Fempress (July 1998):201. back
61
The Center for Reproductive Law and Policy and The Open
Forum on Reproductive Health and Rights, "Women Behind Bars,"
1998. back
62
Instituto de la Mujer, "Presentación del Estado de
Cumplimiento del CEDAW," Santiago, Chile, April 1999. back
63
Violeta Bermúdez Valdivia, "Silencios Públicos
Muertes Privadas," Comite de America Latina y el Caribe para
la Defensa de los Derechos de la Mujer, 1998. back
64
The Center for Reproductive Law and Policy, "Reproductive
Freedom News," vol. VIII, number 1, January 1999, 5. back
65
Instituto de la Mujer, "Presentación del Estado de
Cumplimiento del CEDAW," Santiago, April 1999. back
66
The Center for Reproductive Law and Policy, on line, available
at http://www.crlp.org, accessed 18 March 1999. back
67
Karen L. Anderson, "Women, AIDS and Poverty in Urban Shantytowns
in Chile," Women, Vulnerability and HIV/AIDS A human Rights
Perspective, Women's Health Collection, vol. 3, 1998. Latin
American and Caribbean Women's Health Network. back
68
Centro de Estudios para el Desarrollo de la Mujer, "Mujeres
Rurales." Instituto de la Mujer, Presentación del Estado
de Cumplimiento del CEDAW, Santiago, Chile, April 1999.
back
69
Ibid. back
70
Ibid. back
71
Instituto de la Mujer, "Presentación del Estado de
Cumplimiento del CEDAW," Santiago, Chile April 1999. back
72
Ibid. back
73
"Mayoría Aprueba el Divorcio," Mujer/Fempress (October
1998):204. back
74
Instituto de la Mujer, "Presentación del Estado de
Cumplimiento del CEDAW," Santiago, Chile, April 1999. back
75
"Mayoría Aprueba el Divorcio," Mujer/Fempress (October
1998):204. back
76
Ibid. back
77
M. Elena Valenzuela, "El desafio de hacer política
feminista desde el Estado," Cuarto Propio del Estado, Especial/Fempress,
1998. back
78
Corporación de la Mujer La Morada, Comité Latinoamericano
y del Caribe para la Defensa de los Derechos de la Mujer, and
Foro Abierto de Salud y Derechos Reproductivos, "Reporte Alternativo
al III Informe periodico del estado del Cumplimiento de CEDAW,"
Santiago, Chile, April 1999. back
79
Instituto de la Mujer, "Presentación del Estado de
Cumplimiento del CEDAW," Santiago, Chile, April 1999. back
80
Ibid. back
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