Institute for Justice and Democracy in Haiti

Mario Joseph on rights enforcement as solution to sexual violence in Haiti

In this speech, Bureau des Avocats Internationaux (BAI)’s Managing Attorney, Mario Joseph, re-frames Haiti’s challenges as the result of a lack of rights enforcement: While many assume that Haiti’s disasters are so severe because of poverty, Mario explains that the true problem lies with human rights, particularly those of women. Poor women are especially vulnerable due to gender discrimination, limited access to the justice system, and economic disenfranchisement. Mario hails grassroots organizing and advocacy by women’s groups as the most effective solution to the problem.

May 12, 2014

Speech by Mario Joseph, at a conference entitled, The Initiative for the Prevention of Sexual Violence in Conflict Situations, sponsored by the Mexican Ministry of Foreign Affairs and British Embassy

Introduction

I would like to say Bonjou (buenos dias) and Mesi (gracias) to the Mexican Ministry of Foreign Affairs and the British Embassy for the honor of being invited to participate in this important and historic discussion about the fight against sexual violence in the Caribbean and Latin America.

There are many causes of sexual violence in Haiti, like in any country. But I see “rights enforcement” – the ability of women and children to enforce their right to live without violence – as the primary solution to the problem.

When you think about Haiti, most of you probably picture misery:  a country that is poor and that has endless bad luck with natural disasters. When I look at my country, I see the same misery you do, but I do not see it caused by a lack of resources or bad luck. I see Haiti’s misery caused by a lack of rights enforcement. The inability to enforce rights keeps individual Haitians from earning, learning and voting their way out of poverty. It makes my country so vulnerable to stress that acts of nature that cause minor damage elsewhere cause catastrophes in Haiti.

Even our 2010 earthquake was a rights enforcement disaster. Worse earthquakes hit harder in Chile, Japan, and other places, causing a tiny fraction of the estimated 200,000 deaths that Haiti’s earthquake caused. In Haiti many buildings- including my office and my house—suffered damage but did not collapse. Most of the buildings that did collapse on people were constructed below building code standards on hillsides so steep that construction was, in principle, prohibited. But poor Haitians built there anyway because they needed a place to live with their family while they looked for a job in Port-au-Prince.

This same lack of rights enforcement in Haiti is one of the underlying causes of sexual violence. Before our work at the Bureau des Avocats Internationaux (the BAI), International Lawyers Office, in partnership with grassroots women’s organizations, police officers ignored complaints of sexual violence and refused to arrest aggressors; prosecutors did not have the knowledge or will to try sexual assault cases; and judges did not take these cases seriously – often shaming and blaming the victim.

The BAI has not been able to change the entire system overnight, but we have seen encouraging success.  Since the earthquake in 2010, we have been referred over 500 sexual assault cases, which are in the hands of our Haitian legal team.  We’ve help secure multiple police investigations, arrests and prosecutions. Despite the slowness of the justice system, we have seen convictions in 11 of the 14 cases that have gone to trial.  When victims of sexual violence can access the justice system and enforce their rights, their confidence in themselves, their government, and the rule of law increases.  Successful prosecutions also send a message to their families and communities that the government will not tolerate sexual violence, nor should they.

Causes of Sexual Violence in Haiti: Poverty, cultural stereotypes, and lack of rights enforcement

As I mentioned, the causes of sexual violence in Haiti are many.  Poverty, cultural stereotypes, and lack of rights enforcement are just a few of the major causes. The standard of living of the Haitian people is the worst in the Western Hemisphere, and as a result, fundamental economic, cultural and social rights are routinely violated for most of our population.  Poverty results in a lack of education and employment opportunities for everyone, but especially women who are largely dependent on men financially. Women’s economic dependence on men reinforces stereotypes that women are inferior, as is women’s “domestic” work such as cooking, cleaning, and raising children. Women and girls are also seen as sexual objects.

To most women and girls without education or a stable income, rights enforcement through the legal system is only an abstract concept.  I agree with a 2005 report from the Inter-American Commission on Human Rights that said Haiti’s judicial system reflects a culture of exclusion and impunity that make it difficult for women and children who are victims of violence to access justice.  Victims and their families are often mistreated when they try to enforce their rights and they lack confidence in the justice system’s ability to provide redress.  This combination of factors leaves victims a sense of insecurity, vulnerability and mistrust of the justice system and rule of law.

The lack of access to justice

The judicial system in Haiti reinforces the social, political and economic exclusion that prevents the poor from asserting their fundamental rights. Most Haitians have no access to the formal justice system. Legal costs and lawyers are too expensive for the poor to pay. Legal proceedings are generally conducted in French, which most Haitians do not speak. Elitist legal training conditions lawyers, judges and prosecutors to give preferential treatment to the powerful, either based on class prejudice or in search of bribes, while they discount the testimonies and legal needs of the poor. Poor women are particularly marginalized by the limited access to the justice system due to deep-rooted gender discrimination and the added economic disfranchisement they face.

The result is that the administrators of justice at all levels of the judiciary do not consider incidents of violence against women as a priority, do not take women seriously, do not take account of the critical evidence to identify the culprits and lack of respect for the victims and their families when they try to cooperate in investigations.

The justice system also suffers from a lack of human and financial resources.  Police and judges are poorly paid and receive insufficient training and resources to manage these cases.  Few resources are available to victims of sexual assault such as legal assistance, emergency shelter or psychological counseling.

The Solution: the participation of grass women’s groups as rights enforcers

In response to the shocking levels of violence in the internal displaced persons (IDP) tent camps in the months following the January 12, 2010 earthquake, grassroots women’s groups mobilized to stop the violence.  Many of the members and leaders of these groups were forced to live in camps themselves and witnessed or experienced the violence first-hand.  Groups like KOFAVIV, FAVILEK and KONAMAVID, which lost their offices in the earthquake, convened at the BAI office to organize press conferences, demonstrations and rallies to denounce the numbers of rapes taking place in the camps.

In light of this flurry of activity by its grassroots partners, the BAI decided to develop the “Rape Accountability and Prevention Program” (RAPP). Through this program, BAI lawyers provide legal assistance to women and children victims of sexual violence, while working closely with grassroots groups on organizing and capacity building to address and prevent future gender-based violence.

RAPP also shifts the paradigm of groups and victims of sexual violence as human rights enforcers, not only as rights defenders.  The grassroots groups are organized, with the aid of a grassroots coordinator, as a Women’s Network to cultivate solidarity and collective mobilizing among the women’s groups facing the same social and economic issues in Haiti.  By bringing cases through the Haitian legal system, the BAI reinforces the existing legal framework to provide redress to victims of sexual violence.  At the same time, the success and advancement of the legal cases depend heavily on the crucial groundwork and advocacy of partner grassroots groups that mobilize on the frontlines to identify victims and provide them with accompaniment to rehabilitate and reintegrate them into society.

In this model of advocacy, women and girls defend themselves against attacks, but their efforts have a much larger impact.  The victims use advocacy to promote and enforce women’s right to equality and to be free from violence on a societal level.

The model thus moves beyond legal representation before the courts. It uses the community networks as well as innovation and solidarity of women victims to move the judicial process while allowing communities the opportunities to promote social and political change.

A.     Participation as plaintiffs and witnesses

The BAI uses a criminal procedure called the “civil party”, which allows victims to bring claims for civil damages in criminal cases. Through the civil party procedure, BAI’s lawyers represent the victim in the criminal hearing, present evidence to the court, recommend witnesses, and assist with the examination of witnesses. Any evidence we present for the civil claim may be considered by the court for the underlying criminal charges.

Community workers from grassroots women’s organizations refer and accompany the victims to the BAI for free legal assistance if they wish, but the participation of women’s groups goes much further as I will describe for you now.

B. Engaging with the legal system

1. Accompanying victims to police stations

First, women’s groups assist victims engage with the legal system by accompanying them to police stations. Many women do not report their rape because they fear abuse or discriminatory treatment by the police. The police have asked the complainants what they wore that may have caused sexual assault or if they had already had sexual relations with this man. The abusive behavior and discriminatory by some police officers when they receive complaints often re-traumatize and discourage victims from reporting sexual violence.

The police also struggle to respond effectively to the problem due to a lack of officers, vehicles and other necessary resources. In some cases, women do not report abuse because they fear retribution from the aggressor. If the police do not have the will or resources to investigate their case, then why risk retribution from the aggressor.

Community agents from grassroots women’s groups accompany victims of sexual violence to police stations to file complaints and demand that a suspect be arrested. Given the abuse and discrimination faced by victims, the accompaniment from women who have filed complaints before and understand the system is a critical form of support. Repeated accompaniment also forces police officers to take the complaints seriously and investigate.

2. Accompanying victims to the hospital

Women’s groups send community agents to accompany victims of sexual assault to hospitals to obtain any necessary medical treatment as well as a medical certificate.  Medical certificates represent one of the most important obstacles to justice. Though medical certificates are not required to prosecute rape cases, judges will often not pursue a case if: (1) their medical certificate has not been issued by the General Hospital; (2) the medical certificate did not provide sufficient detail; or (3) the medical establishment did not provide the victim with a medical certificate.

The requirement of a medical certificate indicates the belief that a woman’s testimony by its nature is questionable. Such a requirement is problematic because women, especially poor women, are facing considerable obstacles to obtaining a medical certificate that can adequately support their legal case.

In many cases, even the best medical review will not produce relevant evidence to show force. Many are rape cases that will not leave these types of medical signs.  Moreover, the use of force is not a constituent element of rape under Haitian law, and it is not necessary to prove that there was use of force to prove the absence of consent.

3. Accompanying victims in court

Grassroots community agents also accompany BAI lawyers during court proceedings to provide comfort to the victims and to increase the number of supporters in a system plagued by corruption. Male judges and prosecutors often try to intimidate and threaten the lawyer representing the victims in court. The presence of women’s gorups in the court communicates the significance of these cases to judges and court staff. Observation of court proceedings also empowers women’s groups with knowledge about the justice system and their members’ cases.

C. Accountability with the Government

Lawyers and women’s groups also seek dialogue and accountability with the government. I travelled to Geneva in 2011 and 2012 during Haiti’s Universal Periodic Review. Along with leaders from KOFAVIV, we asked the UN Human Rights Council to urge the Haitian government to take concrete steps to address women and children vulnerable to violence in IDP camps.

We also participated in a request to the Inter-American Commission on Human Rights in 2010, which resulted in precautionary measures to the Government of Haiti. The recommendations of the Commission impose an additional obligation on Haiti to adopt specific measures to reduce gender-based violence and to protect against future instances of violence, including strengthening the capacity of the Haitian justice system. Women’s groups have been attempting to urge the government to follow up on these recommendations, including focusing more resources on the issue, providing more training for medical professionals and legal actors and the strengthening of the commitment of the State to eradicate violence against women.

Representatives from women’s groups have also sought the expertise of the UN special rapporteur on violence against women and the independent expert on Haiti. It is unfortunate that we sometimes have to fly to Geneva and Washington DC to get the attention of our government. But without this international pressure, the government will not listen to the voices of poor undereducated women or initiate measures to change the system.

In 2011, the Haitian Ministry on the Status and Rights of Women as well as the Organization of American States (OAS) and the national dialogue on the prevention of violence against women have launched an initiative to develop, in consultation with civil society and lawyers, a broad bill on violence against women and girls. The Bill is still at the drafting stage, but marks an important step towards protecting the rights of women and girls to be free from discrimination and violence.

The new law proposes to:  (1) provide a modern definition of rape, including a specific provision dealing with marital rape as a crime; (2) criminalize sexual harassment; (3) legalize abortions during the first 12 weeks of pregnancy if the mother’s health is in danger; (4) protect against discrimination based on sexual orientation.

Proposed revisions to the Haitian penal code would also criminalize marital rape and harmonize Haitian law with the majority of the Latin America. All the countries of Latin America except two have criminalized such marital rape.

D. Engagement with civil society

Grassroots women’s groups also engage with civil society by holding demonstrations and speaking with the media.   Women use press conferences, radio interviews and educational events to let all sectors of Haitians, from governmental leaders to peasants in the countryside, know about their efforts to stop violence against women. The voices of victims are critical to challenge gender stereotypes, condemn the violence and build solidarity for equality and women’s rights around the country.

Results

By bringing cases through the Haitian judicial system, BAI strengthens the existing legal framework to provide reparations to victims of sexual violence. At the same time, the success and advancement our legal cases depend on collaboration with our grassroots partners that are mobilizing on the frontlines to identify victims and provide them with support to rehabilitate and reintegrate into society. Our goal with every sexual assault case is to make the judicial system more efficient for women, stimulate societal debate, and create rights enforcers with transferable skills in a variety of contexts.

Before the tremendous work of victims groups after the earthquake, rape not widely reported, despite its prevalence known in all sectors of Haitian society. Victims facing many obstacles to reporting rape, including stigma, limited resources and information on services available, the fear of reprisals, and lack confidence in the judicial system. Although there are still obstacles, local groups have come a long way in raising awareness of women and girls to speak, get essential medical care immediately after an attack, to file a complaint with the police.

Advocates provide periodically “Know your rights” training for women’s groups to empower them to identify and respond to the violations that they encounter as they accompany the victim through medical and law enforcement post-rape institutions. Due to the increased awareness of the victims of their rights under the Haitian law, legal services are in great demand.

It is not without results: engagement with police stations, judicial personnel, lawyers and other representatives of the government produced a noticeable change in attitude 2010-2014. Although many police officers continue to express discriminatory attitudes towards the complainants of rape or other forms of gender-based violence, there are a growing number of trained officers that do not have the same level of reluctance to receive a complaint of rape. In addition, prosecutors are not as dismissive of rape today as they were immediately after the earthquake.

Although more awareness and training for the various players in the justice system are needed, women’s groups have set up a framework for the participation of the public in the rape trial and the treatment of women in the Haitian judicial system.

As a result, more women and girls are reporting sexual violence and these cases are making their way on court dockets. We have a lot of work ahead of us to strengthen the Haitian justice system to process the increasing numbers of rape cases. But I am convinced that encouraging women and girls to be rights enforcers is the most effective approach to ending sexual violence in Haiti.

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