August 23, 2013

Ecuador’s Laws on Violence against Women and Reproductive Health

Ecuador has a number of laws and policies relevant to violence against women, reproductive and maternal health, and post-rape care. Some are rights-respecting, and others are in major need of reform.

Article 32 of the 2008 Constitution provides significant protection for the rights of women and girls, guaranteeing the right to health and obligating the state to promote and provide sexual and reproductive healthcare. The provision explicitly invokes a set of principles including equity, prevention, and quality, and a focus on women’s rights.[3] Victims of domestic and sexual violence also have the constitutional right to receive priority and specialized care in the public and private health sectors.[4] All people have a right to a life without violence and to make free, responsible, and informed decisions about one’s health and reproductive life, and decide when and how many children to have.[5]

Ecuador also has laws specifically addressing and criminalizing domestic and sexual violence,[6] as well as policies and protocols to implement those laws, as described below (under the section on “Detection of Sexual Violence or Other forms of Gender-Based Violence”).

These protections are undermined by the criminal penalties for termination of pregnancies resulting from rape—for anyone other than a woman who is an “idiot or demented” or who is not covered by other exceptions.[7] If not covered by the exceptions, the criminal code imposes prison sentences for those who receive or perform abortions.[8] Article 443 criminalizes the act of providing abortion services or abortifacients to a woman who has voluntarily sought an abortion, and it imposes punishment of prison terms from two to five years.[9] Article 444 of the code punishes women who have abortions with one to five years in prison.[10]

Criminal Code Reform

Ecuador is undertaking a revision of its criminal code. In October 2011, the executive branch introduced a draft criminal code to the Justice and State Structure Committee of the National Assembly. The Committee held 39 hearings on the bill before it was referred to the full Assembly for debate in July 2012. That debate ended without the bill being adopted. A second debate is expected to be held in late August 2013, before a final vote is taken on the criminal code.[11]

An amendment to the draft criminal code presented in the first debate would modify the exception to punishment for abortion in the case of rape by eliminating the provision that limits abortion after rape only when the victim is a so-called “idiot or demented woman.” This would have the effect of establishing an exception to penalties for abortion in all instances of rape.[12] This provision was in the final draft of the bill submitted by the Justice Committee, headed by the majority party, for debate in July 2012. In fact, Mauro Andino, a member of Correa’s Alianza País party and president of the Justice Committee in the Assembly, explained that the change was not a “decriminalization of abortion,” but rather a correction of discriminatory language in the code.[13] It is this version of the bill, however, that President Correa has repeatedly promised to veto precisely because it loosens restrictions on abortion.[14] The December 9, 2012 draft of the criminal code bill, prepared after the first debate, maintained this proposed change. However, a new draft is expected to be released prior to the August 2013 debate, and it is unknown whether it will address penalties for abortion after rape.

[3]Constitution of Ecuador, 2008, art. 32.

[4]Ibid., art. 35.

[5]Ibid., arts. 66(3)(b) and (10).

[6] See Law against Domestic Violence and Violence against Women, N. 103, 2007, art. 4; Criminal Code of Ecuador, Cap. II.

[7]Criminal Code of Ecuador, 1971, arts. 441- 447.

[8] In addition to criminalizing abortions that are sought and performed with the consent of the woman, articles 441 and 442 of the Criminal Code of Ecuador, 1971, prohibit abortions provoked without a woman’s consent and punish such acts with prison terms from six months to six years.

[9]Criminal Code of Ecuador, art. 443. Under art. 446, when medical professionals are suspected of an offence under articles 441-443, the prison terms can be increased.

[10] Ibid., art. 444.

[11] A simple majority (more than half of the total members) of the National Assembly is needed to pass a bill. Constitution of Ecuador, 2008, art. 133. Once the bill is approved by the National Assembly, it will be sent to the President to review. The president can either approve it or veto it. If he signs it or does not act for more than 30 days, the bill becomes law, and will be published in the official registry. Ibid, art. 137.

[12]Proyecto de Código Orgánico Integral Penal, June 13, 2012, art. 142. Non-punishable abortion: An abortion practiced by a doctor, with the consent of the woman or of her spouse, partner, close family members or her legal representative when she is not in a position to give consent, will not be punishable in the following cases: 1 if it is done to avoid danger to the life or health of the woman and such danger cannot be prevented by other means; and 2) if the pregnancy is the consequence of rape. (Translation by Human Rights Watch).

[13]Andino stated in July 2012, “What we are doing in this proposed bill is to take out these two words (an idiot or demented woman) that are discriminatory against women. No more.”(Translation by Human Rights Watch). El Universo, July 9, 2012, Debate sobre aborto queda casi definido por advertencia de Rafael, available at http://www.eluniverso.com/2012/07/10/1/1355/debate-sobre-aborto-queda-casi-definido-advertencia-rafael.html (accessed July 17, 2013).

[14]President Correa stated on his Twitter account, “con todo respeto a otras opiniones, vetaré cualquier artículo sobre aborto que vaya más allá de lo que ya existe en el Código Penal.” The original Twitter post can be found at: https://twitter.com/MashiRafael/status/221113741784256512 (accessed July 17, 2013).