II. Colombia’s Normative Framework for Gender-Based Violence and Rights of the Displaced

Starting in 1996 shortly after ratifying a regional treaty to eradicate violence against women, Colombia’s congress has passed a series of laws aimed at increasing the protection of women’s rights under Colombia’s domestic law, culminating in a comprehensive law on gender-based violence in 2008. The Constitutional Court has also issued rulings related to the rights of internally displaced women and girls, and the congress has promulgated legislation on the rights of victims of the conflict.

Colombia’s legal framework takes into account the unique needs of displaced women and girls, and assigns government actors specific obligations to prevent gender-based violence against displaced women. But poor implementation of these laws fails to diminish or eliminate barriers encountered by displaced women and girls seeking justice and services.

Laws Protecting Women and Girls in Colombia from Gender-Based Violence

Colombia’s normative framework related to intra-familial and sexual violence is grounded in the Constitution of 1991. Article 42 of Colombia’s Constitution provides that “any form of violence in the family is considered destructive to the family’s harmony and unity, and should be sanctioned in conformity to the law.”[51]

Sexual and Intra-Familial Violence Laws and Policies

In 2008 Colombia passed its first comprehensive law to address all forms of gender-based violence: Law 1257/2008.[52] This law created new norms for the prevention and punishment of violence and discrimination against women, established a definition for violence against women,[53] reformed the criminal code and the criminal procedure code, and amended an earlier law on intra-familial violence.[54] The law recognizes the physical, emotional, and psychological harm gender-based violence can cause victims,[55] and enumerates specific rights of victims.[56] It builds on early laws passed in 1996, 2000, and 2006 related to intra-familial violence, including against minors.[57]

The law also prescribes specific awareness and prevention measures to be taken by various actors in government and society.[59] The law charges the national government with executing training programs—guaranteeing prevention, protection, and care for women victims of violence—for all public servants. The law focuses in particular on the need to train judicial officers, health personnel, and police.[60] The national government must also implement measures to change social attitudes to encourage the social sanctioning and the reporting of discrimination and violence against women.[61] It specifically assigns a duty to the national government to develop programs for prevention, protection, and care in relation to acts of violence against displaced women.[62]

While the law comprehensively addressed gender-based violence, ministries still needed to draft their own regulations to implement those elements of Law 1257/2008 within their jurisdiction. In November and December 2011, almost three years after the law was passed, four ministries released administrative decrees concerning their duties under the law. Ministry of Justice Decree 47999— issued in December 2011—regulates the provision of protective measures under the law.[63] The Ministries of Labor and Education similarly defined their duties to implement Law 1257/2008 through decrees in November and December 2011.[64]

Victims’ Rights to Health Services

Colombia’s sophisticated normative framework and policies regarding gender-based violence guarantee displaced women and girls free health services after sexual or intra-familial violence, including examination and treatment for the prevention of HIV/AIDS and other sexually transmitted infections, physical and emotional trauma, and to collect forensic evidence.[65] The treatment of trauma is understood to include the administration of emergency contraception to prevent unwanted pregnancy and—in light of a 2006 Constitutional Court opinion allowing abortion after rape or incest—abortion services.[66]

The Ministry of Health has provided health care professionals guidance on treatment of victims of gender-based violence since 2000.[67] In December 2011 the Ministry of Health promulgated Decree 4796 to implement Law 1257/2008—laying out the steps health providers need to take to detect, prevent, and provide comprehensive services to women victims of violence, including the provision of temporary housing, food, or transportation—creating a more expansive web of responsibility than previously held by the health system.[68] It also mandates the update of existing guidelines for the treatment and protection of abused women and children and the adoption of a protocol and model of comprehensive care to victims of sexual violence.[69] According to the regulation, cases of violence must be reported in the Information System of Social Protection (Sistema de Información de la Protección Social or SISPRO). In March 2012 the ministry issued a new protocol and model of care for victims.[70]

Criminal Laws Related to Intra-Familial and Sexual Violence

Colombia also has reformed provisions of the criminal code and criminal procedure code relating to gender-based violence. Reforms in 1997 increased the penalties for sexual crimes from eight to 20 years, established aggravating factors related to intra-familial violence, and addressed the rights afforded to victims of sexual violence.[71] Later reforms created new categories of intra-familial and sexual violence.[72] A 2004 reform eliminated sexual violence as a manifestation of intra-familial violence, instead classifying it as a general crime against human dignity and sexual formation.[73]

Despite these reforms, Colombia’s criminal code continues to define rape in terms of sexual relations with someone through the means of force.[74] This definition is inconsistent with international legal norms that consider lack of consent rather than use of force as the primary element of rape.[75]

Colombia’s criminal code also specifically proscribes violent sexual acts, forced prostitution, or slavery of persons protected under international humanitarian law.[76] Draft legislation introduced in Congress in August 2012 would amend the criminal code to include additional prohibitions against categories of sexual violence enumerated in the Rome Statute of the International Criminal Court.[77]

Laws on Displacement that Should Help Displaced Victims of Gender-Based Violence

Colombia has an extensive network of social assistance programs for internally displaced persons, first established by Law 387 of 1997.[78] The Constitutional Court of Colombia has ruled on the protection of the rights of displaced people generally, and specifically addressed the vulnerabilities of displaced women and girls to violence. In its 2004 landmark ruling, T-025-04 found that the state’s response to internal displacement constituted an “unconstitutional state of affairs” and recognized that there exist certain minimum rights of the internally displaced population that must be satisfied by the authorities to ensure a life with dignity.[79] The Court’s jurisprudence has confirmed the constitutional right of internally displaced people to preferential treatment by the state.[80]

Auto 092/2008: Constitutional Court Order Protecting Displaced Women and Girls

The Constitutional Court has issued a number of orders, called “autos,” related to the implementation of its 2004 ruling. In 2008 the Court issued order Auto 092/2008, which specifically recognized the unique needs of displaced women and girls and ordered the government to take comprehensive measures to protect the fundamental rights of internally displaced women and to prevent the disproportionate gender impact of the conflict and forced displacement.[81] The Court found that “sexual violence against women is a habitual practice that extends, systematically and invisibly, throughout the context of the armed conflict in Colombia.”[82] Auto 092/2008 instructs the government to establish 13 programs to fill gaps in public policy on forced displacement from the perspective of women’s rights.[83] The Court proposed programs for the prevention of sexual, intra-familial, and community violence against displaced women and girls, and highlighted the special need for the prevention of violence against women human rights defenders. It also proposed programs for the promotion of health and for the elimination of barriers to Colombia’s protection system.

In other orders related to its 2004 ruling, the court has determined that displaced persons require special attention from the authorities—particularly in relation to health—because of the deplorable life conditions they face and the fact that displacement itself makes access to health care harder to achieve.[84] Moreover, due to the higher risks of sexual and intra-familial violence toward this population, the court clarified that affirmative actions are needed to guarantee fundamental rights of women, in particular the right to health.[85]

The Victims and Land Restitution Law

Aside from the Constitutional Court’s jurisprudence on the displaced, in 2011 the Colombian congress also adopted a law on compensation and reparations for victims of the armed conflict, including displaced individuals. Law 1448/ 2011, known as the Victims and Land Restitution Law, allows victims (as defined by the law) to file for judicial, administrative, social and economic, individual, and collective measures to restore or repair their rights. In some cases this means monetary compensation or the reclamation of stolen land. [86]

The law emphasizes non-discrimination and the need for a differential approach when implementing the law vis-à-vis members of vulnerable groups, including women.[87] It specifically provides that women victims have the right to a life without violence and for victims of sexual violence to make claims for compensation.[88] It also provides for protective measures for women who institute administrative or judicial proceedings for the vindication of their rights.[89] Most importantly, it establishes that every victim must be provided information regarding available services, that judicial authorities questioning victims must do so with respect for a woman’s dignity and moral integrity, and that certain evidence may not be used against the victim in cases of sexual violence. For example, consent will not be inferred from the victim when her capacity to pronounce a free and voluntary consent was diminished by the use of force, the threat of use of force, coercion, or the use of a coercive environment.[90]

Referral Pathway: How Victims of Gender-Based Violence Connect to Services

Under the policy framework related to gender-based violence, different ministries and authorities have obligations to provide services for victims. Together, these entities represent the government’s integrated, multi-sector response to address a victim’s need to access health services, the justice sector, protection, and psycho-social support.

Between the laws, decrees, protocols, and guidelines from multiple government actors, the response to gender-based violence in Colombia is complex. To make the system understandable for victims, providers, and officials, the government ombudsman’s office—with the support of USAID and the International Organization for Migration (IOM)—developed flow charts which represent the “pathway of care” (also referred to as a referral pathway). Though widely used, these charts are not formally adopted by ministries, and no formal inter-ministerial protocol compiling all obligations of the government and rights of victims exists to guide officials treating victims. Some ministries have developed their own internal charts to assist officials helping victims navigate within a single ministry or agency.

The entry point into either pathway is dependent on the victim, who can decide to whom to disclose an incident: a trusted friend or family member, a community leader, a teacher or faith leader, a health worker, the police or prosecutors, or others. Once a victim has told someone about the violence, it is important that this person, the “entry point”, has the ability to provide complete information about what services are available and provide appropriate referrals.

Colombia’s referral pathway charts depict the possible role of several institutions in responding to gender-based violence: the attorney general’s office, national police, health sector, Colombian Institute for Family Welfare, units of care and orientation for displaced persons, the Department of Social Action (now known as the Department for Social Prosperity), family commissioners, educational institutions, NGOs, or any of the agencies in the Public Ministry (the ombudsman, the municipal ombudsman, or the inspector general).

The pathway for victims of sexual violence provides that all victims be referred to the attorney general’s office to file a criminal complaint. The pathway for victims of intra-familial violence provides that victims can decide between the civil pathway, where the perpetrator will not face criminal charges, and the criminal pathway, where the perpetrator may face criminal charges.[91] If the victim chooses to go the civil route, she will go to a family commissioner, who can assist with a protection order. If she chooses the criminal route, she will go to the attorney general’s office to file a criminal complaint.[92]

Next, a victim of either type of violence may be referred to the National Institute for Legal Medicine and Forensic Sciences for forensic examination. At any point, authorities may also refer a victim to a health facility.[93]

The Gap between Laws and Reality

Colombia’s progressive legal framework concerning both the government’s response to gender-based violence, and to displacement, should create systems that ensure displaced women and girls are protected from violence and have uninhibited access to services should violence occur. As detailed in the following chapters, Human Rights Watch documented instances where this was simply not the case. There was a consensus among the victims, government officials, and civil society representatives who spoke with Human Rights Watch that, while the laws are good, implementation is failing. As Socorro Y., a displaced woman and human rights defender raped in 2009,  explained to Human Rights Watch, “Law 1257 is passed, and Auto 92 issued, and nothing changes for us women ... more has happened to us since then, and we don’t feel any more protected.”[94] The following chapters look at barriers to access health, justice, and protection services that continue to exist for displaced women and girls who are victims of gender-based violence.