The principles of equality and non-discrimination are essential elements
of a democratic system governed by the rule of law, which is a fundamental
condition for the full observance of human rights.
Despite the will expressed by many states to advance in protecting
women's rights, there is often a yawning gap between the theory and the reality.
Taking this into account, the Inter-American Commission on Human Rights
assigns special importance to women's rights in the hemisphere; the relevance of
this issue was highlighted internationally at the World Conference on Human
Rights held in Vienna in 1993, and at the conference on women's rights held in
Beijing in 1995. In that regard,
the Commission appointed a special rapporteur on women's rights; the rapporteur
submitted a report on the situation of women in the Americas
that was approved by the IACHR at its 98th session.
In addition, the Commission has dedicated a special chapter to the subject of
women's rights in its most recent reports on the situation of human rights in
The promotion and protection of women's rights is very much related to
the question of discrimination against women in the enjoyment of human rights.
While gender discrimination persists, women cannot fully enjoy their
human rights. For this reason,
international legislation bases the protection of women's rights mainly on the
principle of non-discrimination and on the principle of the equality of men and
Even though the Peruvian State has adopted major legal reforms to protect
women's rights and to try to eliminate the forms of discrimination, yet certain
legal norms subsist that entail discrimination.
In this chapter, the IACHR, after outlining the international and
national legal framework for women's rights, presents reports from the Peruvian
State on the matter, and analyzes the problems related to two specific issues:
discrimination and violence against women.
The instruments of the inter-American system of human rights, like those
of the universal systems and other regional systems for the protection of human
rights, are characterized by one of their fundamental pillars being the
principle of equality and non-discrimination.
In the inter-American system, the American Declaration of the Rights and
Duties of Man provides at Article II: "All
persons are equal before the law and have the rights and duties established in
this Declaration, without distinction as to race, sex, language, creed, or any
other factor." Similarly, the
American Convention on Human Rights, ratified by Peru in 1978, provides at
Article 1: "The States Parties
to this Convention undertake to respect the rights and freedoms recognized
herein and to ensure to all persons subject to their jurisdiction the free and
full exercise of those rights and freedoms, without any discrimination for
reasons of race, color, sex...." The
Inter-American Convention on the Prevention, Punishment and Eradication of
Violence against Women, "Convention of Belém do Pará," ratified by
Peru in 1996, defines violence against women as
"... any act or conduct, based on gender, which causes death or
physical, sexual or psychological harm or suffering to women, whether in the
public or the private sphere."
In the United Nations system, the Convention on the Elimination of All
Forms of Discrimination Against Women, ratified by Peru in 1982, defines
discrimination against women as "... any distinction, exclusion or
restriction made on the basis of sex which has the effect or purpose of
impairing or nullifying the recognition, enjoyment or exercise by women,
irrespective of their marital status, on a basis of equality of men and women,
of human rights and fundamental freedoms..."; it adds at Article 2 that
"States Parties condemn discrimination against women in all its forms,
agree to pursue by all appropriate means and without delay a policy of
eliminating discrimination against women...."
The Peruvian Constitution indicates, at Article 2, that "All persons
have the right: ... to equality
before the law. No one may be
discriminated against for reason of origin, race, sex, language...."
As regards the right to work, at Article 23 the Constitution provides:
"Work, in its various forms, is the subject of priority attention by
the State, which protects, in particular, mothers, minors, and disabled persons
who work...." And at Article
26: "In the labor relationship, the following principles are
respected: 1. Equal opportunity
As can be observed, the main norms applicable in Peru, both international
and national, enshrine the principles of equality and non-discrimination as the
basis for women to enjoy their human rights in Peru.
The Peruvian State, as mentioned earlier, has adopted important legal
reforms to protect women's rights to try to eliminate discrimination against
women. At the international level,
one of the most important legislative advances is the recent ratification by
Peru, in 1996, of the Inter-American Convention on the Prevention, Punishment
and Eradication of Violence against Women.
As for domestic provisions, first, Article 24 of the Civil Code, in
force, transformed into a right the obligation of married women to take the
husband's last name appended to their own. Second is the Law Against
Family Violence, No. 26,260, promulgated in 1993, and later amended by Law No.
26,763 of 1997. This law
establishes the State policy of eradicating violence, creates mechanisms for
protecting victims, and defines the role that should be played by social
organizations to defend women and children.
From the standpoint of practical advances, it is important to highlight
the creation, by the Peruvian State, of the Ministry for the Promotion of Women
and Human Development (PROMUDEH), and the general advances suggested by various
indicators. Thus, for example, the
Gender-related Development Index (GDI) used by the UNDP,
indicates that in recent years greater equality as between men and women has
been brought about in three main areas: life
expectancy, educational coverage, and income.
Notwithstanding the effort made by the Peruvian State in this respect,
and the consequent important advances, situations of discrimination against
women persist in Peru in areas such as education, work, marriage, and politics.
This situation is all the more difficult for indigenous women (infra).
In the area of education, for example, the disparity in illiteracy
continues to be significant. The
percentage of illiteracy among women is much higher than among men.
Furthermore, it is significant that according to another index, the Gender
Empowerment Measure (GEM), Peru appears to have slipped in recent years in terms
of the degree of political participation and economic power of women as compared
In its observations on the draft of this report, Peru has described the
situation with respect to women's rights, providing some figures that
demonstrate the degree of "participation of women in the different areas of
public life in Peru." In this
respect, the State reported that from 1995 to 1998, women were designated to
head up five ministries (7.5% of all such appointments).
In addition, it is noted that women occupy 30% of the high-level
management jobs in the public administration, while the percentage is 15.7% in
the decentralized public institutions. The
State adds that, for example, of the diplomatic officials, 14.55% are women, and
that women account for 13.59% of the ambassadors.
In another area, women have been allowed into the National School of the
Merchant Marine, and gender issues are becoming part of the school curriculum.
In addition, the State indicated that in order to promote women's
participation in the exercise of power, the organic law on elections and the
municipal elections law incorporated a rule according to which women have to
account for at least 25% of the candidates.
As regards civil rights, some provisions still in force continue to
violate women's right to non-discrimination.
Previously, a married woman needed to have her husband's authorization in
order to work outside the home, while the husbands could do so freely.
This provision was changed by Article 293 of the current Civil Code,
pursuant to which each spouse requires the consent of the other to work.
In this respect, it has been noted that in practice this provision is
applied exclusively to women, and that consequently it failed to solve the
Furthermore, the civil capacity of unmarried women who have lived in consensual
union is quite limited compared to the civil capacity of married women.
In this regard, the laws do not grant concubines the right to community
property when the partner dies, and only exceptionally are they given the right
to seek alimony when they have been abandoned.
On the question of labor rights, it should be noted that the 1993
Constitution did not expressly include labor rights of women recognized by the
previous Constitution, such as the right to equal opportunity for access to work
in general, thereby reducing this right exclusively to labor relations, and the
right of women and men to equal pay for equal work. On not including the right of women and men to equal pay for
equal work, Peru ignored Recommendation No. 90 of the International Labor
Organization (ILO), and the provisions of ILO Convention 100, which enshrines
that right. In this connection, the
IACHR observes that downgrading such rights from constitutional rank is
tantamount to opposing the trend to accord them recognition at the highest level
of the legal order. In its comments on the draft report, Peru argues that the
Constitution includes a general prohibition on discrimination.
The Commission considers, however, that a generic anti-discrimination
provision does not suffice to implement the ILO recommendations.
Furthermore, the Peruvian government derogated Law No. 2,851, which
established rights for pregnant women, such as prenatal and post-partum leave,
the right to one hour daily to nurse their children, the right to additional
compensation in the case of unjustified dismissal or workplace accident, and the
right to nurseries in the workplace, among others.
As for dismissal attributable to pregnancy, women continue to have the
right to ask to be reinstated, but there is no presumption in favor of the woman
that the dismissal was due to her pregnancy.
To the contrary, the woman bears the burden of proof, which in practice
makes the right to reinstatement inoperable.
In this way, in respect of labor law, not only was discrimination against
women exacerbated, but in addition, pregnant women were left with practically no
As can be seen, despite the creation of a ministry entrusted with seeing
to the human rights of women, there has been backsliding in legislation, and
problems of discrimination against women persist in Peru that have yet to be
resolved by the Peruvian State.
Violence against women is a clear expression of gender discrimination.
The two most common kinds of violence against women are sexual violence
and domestic violence. Even though
these aspects of violence against women are not committed by state agents, their
occurrence gives rise to the responsibility of the State when it fails to
implement reasonable preventive measures, does not duly investigate the
incidents of violence, or fails to punish the persons responsible.
In the area of sexual violence, the IACHR was informed during its on-site
visit that in Peru there is one rape every two hours, on average, and that
paradoxically the number of persons detained on rape charges is declining with
each passing day. The Commission
was told that there is no clear and effective state policy for preventing sexual
violence, or for providing services and treatment to the victims, within or
outside the confines of the criminal proceeding.
The IACHR was also told that the rape of an adult woman in Peru is an
"offense subject to reconciliation," as there is an exemption from the
penalty for rapists who then contract marriage with the victim.
This exemption clearly minimizes the offense and suggests that rape is
considered a purely sexual offense, a private matter, and not a crime that
affects all society insofar as it violates fundamental rights that the State
should protect. The IACHR has
stated, with respect to situations such as that mentioned:
"One widespread problem concerning these crimes is that the right
being protected in the legislation of several of these countries continues to be
'honor', which means that only 'decent women' may be victims, for example, of
When commenting on the draft report, the State pointed out that the 1999 reform
to the Criminal Code has done away with the private cause of action for offenses
involving rape, rape of persons who are unconscious or unable to put up
resistance, rape of persons under authority or surveillance and
seduction. It also noted that
"in addition, the indication that one liable for seduction shall be exempt
from the penalty imposed on rapists if he marries the victim, has been
suppressed; in no case is an exemption from the penalty possible for rapists,
whatever the victim's age."
Also of concern to the Commission are the complaints it has received on
situations of violence against women in the public health services.
As the Commission was told, the forms of violence range from degrading
treatment, verbal offenses, indifference, and negligence to rape and violence
against pregnant women and women who are suspected of having had an incomplete
abortion. In addition, according to
the various versions, there is institutional discrimination in health care for
women, which has become a practice that is tolerated and enjoys impunity, given
the institutional cover-up in response to complaints, and women's reluctance to
lodge complaints for fear of provoking a hostile response on the part of health
As noted, even though the State has the intent to end violence against
and has promulgated laws with this in mind,
in practice, sexual and physical violence against women, in both the private and
public spheres, continues to be a serious problem in the Peruvian State.
Even though the reproductive health programs that have been developed
with full respect for the human rights set forth in the American Convention and
in all other human rights instruments are valued positively by the IACHR, the
issue of reproductive health in Peru is a matter of grave concern to the
Commission, especially with respect to the policy of family planning through
Voluntary Contraceptive Surgery (AQV: Anticoncepción
Quirúrgica Voluntaria). Law
No. 26,530, promulgated in September 1995, established the National Family
Planning Program, and implemented sterilization as a family planning method.
Pursuant to this law, the Ministry of Health began an intensive campaign
to raise awareness, through health fairs, to induce women to make use of
irreversible contraceptive methods in an effort to control the birth rate,
especially in peasant women.
In principle, the Commission considers that a campaign to disseminate
family planning methods is a positive action, so long as it is voluntary family
planning. Nonetheless, in Peru,
according to information received from several sources, the actions involving
"voluntary contraceptive surgery" have led to cases of forced
sterilization. For example, the
Ombudsman's Office told the IACHR, during its on-site visit to Peru, that it had
received 168 complaints regarding forced sterilizations.
As of March 1998, the State undertook to make corrections to the program,
some health fairs were eliminated, and in this way the number of users of AQV
dropped. However, according to
information received by the Commission during its on-site visit, massive and
often forced sterilizations continue in Peru.
The Office of the Human Rights Ombudsman has spoken out against the
following shortcomings: lack of
prior and complete information about contraceptive methods; threats with fines
and imprisonment if the women do not agree to be sterilized; lack of diligence
and sanitation in the surgical procedures; lack of follow-up as a result of
which many women become ill in the wake of the operation, and some have even
died; and discrimination in the implementation of the AQV, insofar as the
campaign is directed mainly to women, not to fertile men.
Peru has indicated in its observations to this report that the Office of the
Human Rights Ombudsman has made a series of recommendations on this issue that
are being implemented by the Government.
One case pending before the IACHR in which the flaws and generally
critical situation of women's reproductive rights in Peru are alleged is that of
María Mamerita Mestanza. A peasant
woman, she died one week after having been subjected to sterilization.
According to the complaint, not only was the procedure forced on her, but
she did not receive the post-surgical care that could have saved her life.
The case is now being processed by the IACHR.
The Commission considers that when a family planning program ceases to be
voluntary and turns women into a mere object of control so as to make
adjustments to population growth, it loses its raison
d'etre and instead poses a danger of violence and direct discrimination
Bearing in mind the foregoing analysis and the specific problems raised,
the Commission makes the following recommendations to the Peruvian State:
Amend Articles 20, 293, 416, 724, and 822 of the Civil Code and all other
provisions or practices that entail discrimination against married or unmarried
Effectively guarantee the principle of equal pay for equal work as
between men and women, and once again expand the right to equal opportunity so
as to include access to work.
Regulate protection of maternity in the area of work, giving women the
same rights they had prior to the derogation of Law No. 2,851.
Disseminate the information on the Convention of Belém do Pará, the
rights protected by it, and the mechanisms of supervision; and implement
reasonable measures to prevent and respond to acts of sexual and domestic
violence, establishing effective guarantees so that victims can denounce
Ensure extensive enforcement of the Law against family violence, No.
26,260 of 1993, so as to guarantee full protection for women's human rights and
take the actions required to make this law effective.
Adopt measures aimed at ensuring respect for women's rights in public
health services, such as: training
in human rights for health care providers, developing mechanisms to eradicate
the covering up of offenses in the health care establishments, and setting up
offices to receive complaints in the hospitals and health centers.
Carry out the recommendations made by the Office of the Human Rights
Ombudsman in its "Report on the Application of Voluntary Surgical
Contraception: the cases
investigated by the Office of the Ombudsman regarding forced
See IACHR, Report on the Status of Women in the Americas, IACHR, Annual
Report 1997, p. 1023 and ff. The
IACHR recognizes the important contribution in this area by the
Inter-American Commission of Women (CIM) within the institutional framework
of the OAS.
See, e.g., IACHR, Report on the Situation of Human Rights in the Dominican
Republic, 1999; Third Report on the Human Rights Situation in Colombia; and
Report on the Situation of Human Rights in Mexico, 1998.
Centro de la Mujer Peruana Flora Tristán, Reporte
sobre la vigencia de los derechos humanos de las mujeres en el Perú.
by: Silvia Loli E. Lima, March 1996.
United Nations. United Nations
Development Program. Human
Development Reports 1995, 1996, 1998, and 1999, Gender-related Development
Index. To understand the GDI,
one must first explain the Human Development Index, or HDI.
The HDI is the index used by the United Nations Development Program
to try to gauge the countries' integral development, by taking the average
of the differences as between men and women.
Illiteracy rates continue to be uneven: While approximately 6% of men are
illiterate, the percentage is about 16% for women.
Id. The GEM measures the
relative power of men and women in the country's political and economic
activity. Three variables are
also used: the first is a composite of two indices, the percentage of men
and women in administrative and managerial positions, and the percentage
share of each sex in professional and technical jobs; the second is the
percentage of legislative seats held by men and women; and the third is the
income, to gauge the power of economic resources as between men and women.
Centro de la Mujer Peruana Flora Tristán, Reporte
sobre ... las mujeres en el Perú, op.
Along the same lines, see also Articles 415, 416, 724, 730, and 822
of the Peruvian Civil Code.
IACHR, Report on the Status of Women in the Americas, Annual Report 1997, p.
CLADEM, CRLP, and DEMUS, Entre el
Olvido y la Manipulación. Derechos
Reproductivos y Políticos de Salud.
from Reporte Sombra, June 1998.
In its observations on the draft report, the State mentioned several
programs that have been implemented at different levels of the State, in
order to bring an end to the problem of violence against women.
It is noted, among other things, that the year 2000 is "the Year
to Struggle against Family Violence"; the creation of a multisectoral
plan that provides for integral projects for the prevention and treatment of
family violence; the project "Formación
de Grupos pro Mujer y Mesas Locales para la Atención de Violencia Familiar,"
whose objective is to integrate the actions of the grass-roots organizations
and the work of local institutions. The
Commission is very pleased to learn of these plans, and hopes that their
objectives can be met.
In its comments on the draft report, the State noted that several laws have
been issued with respect to family violence, including: Law 27,007, which authorizes the Family Prosecutor to reach
pre-trial settlements in the area of family violence; Law 26,842,
"General law on Health," which considers family violence a mental
health problem; and Law 27,115, which establishes a new procedure in
relation to offenses against sexual liberty, which shall be kept
confidential, withholding the victim's name.
 Office of the Human Rights Ombudsman, Informe sobre la Aplicación de la Anticoncepción Quirúrgica Voluntaria: Los casos investigados por la Defensoría del Pueblo, Lima, January 1998.