Republic of Haiti Submission for the 63rd Session of the United Nations Committee on the Elimination of All Forms of Discrimination against Women, February 25, 2016



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Republic of Haiti

Submission for the

63rd Session of the United Nations Committee on the Elimination of All Forms of Discrimination against Women, February 25, 2016

Review of Haiti’s Report under the Convention on the Elimination of All Forms of Discrimination against Women

Violence against Women, Trafficking, Prostitution, and Exploitation by UN Peacekeepers

(CEDAW Articles 1, 2, 3, 5, 6)

Submitted By:

Bureau des Avocats Internationaux

FAVILEK (Fanm Viktim Leve Kanpe)

FEMCADH (Femmes Combattantes Avisées Pour le Développement d’Haïti)

Gender Action

Institute for Justice and Democracy in Haiti

KOFAVIV (Kòdinasyon Fanm Viktim Pou Viktim)

KONAMAVID (Kòdinasyon Nasyonal Ansyen Mawon Viktim Dirèk)

Li, Li, Li! Read

MOFAS (Mouvman Òrganizasyon Fanm Aktiv Sodo)

RFFA (Réalité de Femmes Pour Fort-National en Action)

January 22, 2016


I. EXECUTIVE SUMMARY
1 This report considers and informs on the real situation of women’s rights under the Convention of the Elimination of Discrimination Against Women (“CEDAW”) focusing on particular issues in Haiti. The issues addressed are societal discrimination and widespread sexual violence against women, impunity for perpetrators of gender based violence and sex trafficking, exploitation of prostitution and sexual abuse by peacekeepers. The issues addressed in this report were chosen due to the specific focus and expertise of the organizations that drafted the report. This is not intended to be an exhaustive examination of the situation of women’s rights in Haiti.
2. Following Haiti’s devastating earthquake in 2010, a number of Haitian grassroots women’s organizations mobilized to support women and girls who have long suffered from cultural and political violence as well as the effects of extreme poverty, all of which was exacerbated by the earthquake damage. Groups like Fanm Viktim Leve Kanpe (FAVILEK) (Women Get Up Stand Up), Komisyon Fanm Viktim pou Viktim (KOFAVIV) (Commission of Women Victims for Women) and Kodinasyon Nasyonal Mawon Viktim Direk (KONAMAVID) (National Coordination of Direct Victims in Hiding) not only played an important role in helping earthquake victims, but also raised awareness of cultural and legal changes necessary to improve the lives of Haitian women and girls in the longer term.
3. The combined efforts of women’s groups, along with the legal community, are changing the legal system. Since 2010, the police have become more receptive to women’s complaints of sexual assault, and the courts are convicting record numbers of sexual assault offenders with prison sentences of 10 years to life. Moreover, support groups organized during these tragedies formed the basis of a women’s movement that demands legal accountability and continues to thrive.
4. The Government of Haiti (“Government”) has made some advances to combat discrimination, exploitation and violence against women and girls, but these efforts fall short of meeting their obligations under CEDAW. For example, under the leadership of the Ministry of Women’s Affairs, a revised Penal Code and Violence Against Women law has been drafted, but neither has been finalized or submitted to Parliament. Similarly, while the courts are convicting record numbers of sexual assault cases, women victims still face poor treatment by police and the courts, and domestic violence is largely unprosecuted. Women and girls remain vulnerable to sex trafficking, exploitation of prostitution, and sexual abuse by UN peacekeeping soldiers, with virtually no assistance from the Government; no social services, law enforcement protection or legal remedies. As a result, victims distrust, and in some cases, have given up on the Government, and rely on whatever help their family and communities can provide.
5. Overarching recommendations that the Government should take into account in order to combat discrimination and violence against women include consulting with and providing organizational and financial support to women’s groups, implementing awareness raising and educational measures on women’s rights and increasing transparency and disseminating information about current governmental interventions and mechanisms available to women.
6. This report also recommends more concrete measures to address the problems of gender discrimination and gender-based violence. Adequate and effective measures must be taken to end the pervasive societal discrimination against women, for example, inserting gender equality education into school’s curricula, removing the stereotyping of women in school books, and inviting women’s groups to hold gender sensitivity training seminars in Parliament.
7. The Haitian justice system must be strengthened to remove the current impunity for perpetrators of gender-based violence, including domestic violence. This should be done through ensuring the gender equality of Haitian legislation, improving access to justice for women, taking measures to combat the discriminatory attitudes of law enforcement and judicial officials, and eliminating the de facto requirement of a medical certificate to initiate criminal proceedings for rape.
8. The legal protections for victims of trafficking and exploitation of prostitution should be clarified and existing protections should be enforced. The Government should also take effective measures to combat sexual exploitation by United Nations (UN) staff and peacekeepers.
9. Lastly, comprehensive baseline data on gender-based violence should be collected to facilitate effective targeted response planning through a national information gathering system.
II. HAITIAN AND INTERNATIONAL LEGAL FRAMEWORK AND PRACTICE
10. Under the Haitian Constitution, international treaties, once ratified, become a part of the legislation of Haiti and abrogate any pre-existing, conflicting laws. 1 Haiti ratified CEDAW in 1981, and submitted its first report in 2008. 2 The Constitution provides that Haitians shall be equal before the law and guarantees them freedom to exercise civil rights regardless of sex or marital status. 3 The Constitution also establishes the guarantee of the right to life, health, and respect of the human person for all citizens without distinction in conformity with the Universal Declaration of Human Rights (UDHR). 4
11. Haitian courts apply a set of legal codes adopted from the French legal tradition, which have generally not been updated to protect human rights. The Haitian penal code and code of criminal procedure date back to 1825. Per a 2005 executive decree, rape is punishable by 10 years5 to life, depending on whether the victim is under fifteen years old,6 the assault was a gang rape, or the victim died.7 Haitian law does not specifically criminalize intimate partner violence or marital rape. The 2005 rape law does not define rape, sexual assault or the elements of consent, making it difficult to use the law to prosecute rape, especially intimate partner rape.
III. IMPLEMENTATION: PROMOTION AND PROTECTION OF HUMAN RIGHTS IN HAITI

  1. Articles 1, 2, 3 and 5 and General Recommendation No. 19 Violence against Women: Insufficient measures to combat discrimination, violence against women and impunity for perpetrators of gender-based violence

12. The Government has the obligation to eliminate gender discrimination in all its forms8 and to modify the social and cultural patterns of conduct of men and women in order to eliminate prejudices and stereotypes based on the inferiority of either of the sexes.9 As the Committee for the Elimination of Discrimination Against Women (“Committee”) noted in its concluding observation in 2009, measures “to modify social and cultural attitudes which are the root causes of most forms of violence targeting women” are vital to combat widespread gender violence and discrimination in Haiti.10


13. CEDAW General Recommendation 19 defines gender-based violence as a “form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men.”11 To fulfill this obligation the Government needs to take appropriate and effective measures to eliminate discrimination and overcome all forms of gender-based violence.12 This includes ensuring that laws adequately protect all women, encouraging the compilation of statistics and research on gender-based violence, implementing gender-sensitive training of judicial and law enforcement officers and providing effective complaints procedures and remedies. 13


  1. Insufficient measures to combat societal discrimination against women

14. Haiti has a long history of patriarchy and discrimination against women in the home, in government, at work and in the courts. 14 Gender discrimination is still pervasive in Haiti and systematically denies women the power to either prevent or address injustice against them.15
15. The UN Human Rights Committee in its 2014 Concluding Observations noted that “the stereotyping of women remains rooted in Haitian society, particularly as regards household financial management and the image of women in some school textbooks.”16
16. One recent example of the pervasiveness of sex discrimination is a comment made by President Michel Martelly at a campaign rally in August 2015, wherein he responded to a woman’s complaint about the failure of the government to provide electricity to her area by telling her to “go get a man and go into the bushes.”17 This sexist remark by the Head of the Government was allegedly greeted by cheers and clapping from the audience.18 Three officials in Haiti’s governing coalition resigned in protest to the remark, signifying some disapproval of sex discrimination at high levels of government, but the President was otherwise unaccountable.
17. In its Response to the CEDAW List of Issues, the Government noted that “during periodic campaigns around symbolic dates the Ministry of Women’s Affairs works with the media to transmit non stereotyped images of women/girls, inform them of their rights and prevent discrimination and gender based violence.”19The report authors are unfamiliar with this campaign, but more information on it and more action to combat existing negative stereotypes, preconceived ideas and prejudices against women are welcomed. However, such initiatives are unlikely to succeed if top government officials can make derogatory, sexist comments in public with impunity.


  1. Prevalence and lack of reporting of gender-based violence

18. While reliable statistics are difficult to find, reports indicate that between 25 and 70 percent of Haitian women have been victims of gender-based violence.20 In Cité Soleil, a poor commune on the outskirts of Port-au-Prince between 50-72 percent of women are estimated to have been raped (the estimates differ depending on the source).21 Since 2009, reports of violence against women and girls have steadily increased, with a spike in reports after the 2010 earthquake due to the unsafe living conditions in displacement camps.22 According to the UN Office for the Coordination of Humanitarian Affairs approximately 60,000 earthquake victims still live in displacement camps in and around Port-au-Prince. 23
Intimate partner sexual violence

19. Intimate partner violence is common and widespread in Haiti. It is so ingrained in Haitian society that it is considered normal that women are raped by their husbands.24 Solidarité Fanm Ayisen (SOFA), a women’s rights NGO that offers intake and support services to women victims of violence, reports that over 85 percent of their clients are victims of domestic violence.25 Such violence includes “insults, death threats, blackmail, manipulation, humiliation, harassment, isolation, rape, forcible confinement, murder, and paternal irresponsibility.” 26 Intimate partner violence occurs when women are pregnant as well. The results of a 2008 study showed that “44 percent of pregnant Haitian women [out of 200 women interviewed seeking prenatal care at community health dispensaries in the Artibonite Valley] had experienced violence in the 6 months preceding interview, with 77.8 percent of these expectant mothers experiencing abuse perpetrated by an intimate partner.”27


20. Intimate partner violence cases go largely unreported unless there is a breakdown of the relationship or if the abuse results in physical injury or unwanted pregnancies.28 One women’s organization estimated that only a quarter of intimate partner abuse cases are reported to law enforcement. 29 Reasons for not reporting the incidents to authorities include embarrassment and shame, the threat of ostracism from their family and community, lack of resources, potential reprisals from the aggressor and his family, and apathy and abuse from the judiciary. 30
Non-partner sexual violence

21. Non-partner sexual violence is also prevalent in Haiti. A 2015 study into symptoms of Post-Traumatic Stress Disorder (PTSD) in female victims of sexual violence in post-earthquake Haiti reveals the consequences of non-partner sexual violence. Participants informed that,



Sexual violence in their experience comprised particularly injurious rapes including broken marbles, rubber bands and other objects in addition to the male genitalia. They reported each of their experiences involved multiple, unknown perpetrators who used strangulation to subdue, intimidation and silence them and who intentionally aim to ‘crush the uterus’ of their victims.31
22. Barriers to reporting non-partner sexual violence are similar to those preventing reporting of intimate partner violence, including embarrassment and shame, fear of stigmatization, and potential reprisals from the aggressor and his family.32 One example of the types of reprisals victims face can be seen in a case the Bureau des Avocats Internationaux (BAI) received in January 2016. A 68-year-old man had repeatedly raped a 13 year old girl at her house when her parents were at work and threatened her with a weapon. Her father finally caught the assailant as he was raping his daughter and called the police. Since then, the family of the rapist has persecuted the family of the victim, threatening the father and his family with death.

Sexual violence against children

23. Over 25 percent of Haitian women aged 18-24 reported experiencing some sexual abuse prior to age 18, and over 6 percent reported experiencing physically forced sex.33 Targeted interventions to protect children and encourage them to report the abuse they have suffered is necessary and important. Focusing on child victims may prevent future abuse, as unwanted sexual touching or unwanted attempted sex in childhood are “highly predictive of later unwanted completed sex.”34 A study in Haiti found that over 40 percent of girls who experienced unwanted completed sex had previously experienced unwanted sexual contact.35 The first abuse occurred on average two years prior to the first episode of unwanted completed sex, a “feasible time frame for effective intervention to occur.”36


Sexual violence, gender and transmission of HIV/AIDS

24. Victims of sexual violence, particularly gang rapes, are at a high risk of contracting HIV/AIDS. Measures combatting sexual violence must also include measures to prevent and address HIV/AIDS transmission, through both preventive measures and rapid response for victims of rape.


25. While educational efforts on condom use are encouraged, more needs to be done to translate knowledge into practice. A 2012 governmental survey revealed that 98 percent of men know that people can reduce their chances of contracting HIV if they consistently use condoms.37 However, only 36 percent of HIV-negative and 44 percent of HIV-positive men reported using a condom the last time they had sex.38 A 2014 study found that the beliefs men held regarding gender relationships were also associated with condom use; men who believed it was justified for a woman to ask her husband to use a condom were more likely to use condoms and the reverse was observed among men who believed it was justified for a husband to hit or beat his wife if she refused to have sex with him. 39 The study concluded that,

Interventions designed to change gender norms and attitudes toward intimate partner violence among men may also increase condom use. Interventions that have integrated HIV prevention with gender-based violence prevention have been successful in reducing men’s negative attitudes and violence toward women and increased men’s communication with sex partners about condoms.40
26. The Haitian Ministry of Public Health and Population has taken positive steps toward making HIV/AIDS services accessible to rape victims by providing free ARV-PEP (post exposure drugs reducing the likelihood of infection) and pre/post HIV counselling at publicly funded facilities. However, despite governmental initiatives, uptake to ARV-PEP following sexual assault is reportedly low at l’Hopital de l’Université d’État d’Haiti, the largest publicly funded health facility in the nation.41 Suggested reasons for the low uptake include fear of stigmatization and the fact that many young victims are accompanied by non-relatives who may not be capable or authorized to make medical decisions for the child.42 The barriers to accessing and reasons for not accessing post-rape health care and specifically HIV/AIDS treatment should be further investigated and solutions to resolve them should be formulated to fill the “gap in tailored programming designed for the special needs of sexual assault survivors.”43


  1. Lack of national information gathering system

27. There is no national database collecting information on instances of sexual harassment and violence against women, which undermines the Government’s ability to track the problem and develop an effective response. In its 2012-2016 National Plan, the Government vowed to introduce a system of management of information on gender-based violence, but it has failed to do so.44 In its Response, the Government informed that a system of gathering information on the situation of women does not exist but claimed that “the Haitian Institute of Statistics and Information does studies” which “disaggregate the information according to sex and its analyses take gender into account.”45 The Institute publishes studies on economics, demographics, inquiries and census figures, but it does not publish statistics on incidents of sexual harassment, discrimination or violence against women. There is a critical need for a database and reliable statistics to monitor gender-based violence crimes, including rape, to ensure that the Government is able to implement appropriate responses and track the effectiveness of such strategies. Even with an effective information gathering system, there would still be challenges with underreporting, another problem the Government needs to address.


  1. Impunity for perpetrators of gender-based violence due to the failure or inadequacy of prosecution

28. The Government recognizes that impunity exists for all crimes, including gender-based violence, and identifies the following reasons: corruption and/or politicization of the judicial system, incompetence of judges or their misunderstanding of the laws, and the insufficiency of the legal framework.46 Although recognising these problems is a positive step, the Government does not propose any measures to combat them. It also does not address the particular problems enabling impunity for gender-based violence. Problems identified by civil society include negative attitudes of law enforcement and judicial officials and misuse of medical certificates.
Limited access to justice

29. Most Haitians have no access to the formal justice system for various socio-economic, cultural and political reasons.47 Poverty is a significant barrier - 61 percent of the population earns less than $1.25 per day, ranking Haiti among the poorest countries in the world,48 and legal costs and lawyers are expensive. Lack of access to education prevents many Haitians from understanding their rights and the workings of the legal system. Legal proceedings are generally conducted in French, which 80 percent of the population does not speak.49 The Government recognizes that “a true system of public legal assistance does not exist.” It noted that the Ministry of Justice is working on this issue with the Bar Association, but did not furnish further information about concrete steps. 50


30. Women are particularly marginalized by limited access to justice due to the added economic disenfranchisement and gender discrimination they face.51 Accessing justice for crimes of gender-based violence is difficult. Administrators of justice at all levels of the judiciary do not prioritize incidents of violence against women, do not take women seriously, do not take account of the critical evidence to identify the culprits, and do not have response for the victims and their families when they try to cooperate in investigations.52 Police often do not take complaints of sexual abuse from sex workers, leaving them exposed to violence without recourse.53
31. In 2012, the UN released a report based on a study on the treatment of reported rape cases in the criminal justice system in Port-au Prince.54 Its findings “indicate that the low rate of prosecution of rape in the Port-au-Prince area is a result of the shortcomings of the police and judicial system in general.”55 It monitored 62 rape cases filed in Port-au-Prince during a three-month period. Eighteen months after complaints were filed with the police, none of the cases had gone to trial.56 The police and courts lack the basic resources they need to fulfil their duties and adequately respond to complaints of gender-based violence.57
32 The lack of access to justice for victims further dissuades the reporting of rape and sexual assaults. To make matters worse, victims and their families are often mistreated when attempting to avail themselves of judicial remedies. This abuse further inhibits women and girls from reporting their assault.58
33 The Government is taking welcome measures to combat low levels of reporting of rape such as “providing education on human rights and the availability of reliable and secure mechanisms for victims.”59 More information about the human rights education training and the availability and the rates of participation of these reliable and secure mechanisms for victims is welcome. Measures to strengthen the judicial system and law enforcement capacity, as well as enforcing sanctions for wilfully inadequate, discriminatory or threatening conduct are also essential to enabling access to justice.
Negative attitudes of law enforcement and judicial officials

34 Public officials in the justice system (often males) who interact with female victims of gender-based violence frequently have attitudes that perpetuate the stigma associated with rape and obstruct female victims’ access to justice,60 which includes police, prosecutors and judges. The negative attitudes of the police towards victims discourage reporting instances of gender-based violence. Furthermore, the discriminatory or sexist form and attitude of some police officers when they receive complainants at the station re-traumatizes the victims and dissuade them from reporting.61


35 Some investigatory judges blame the victim for having done something to attract the aggression or trivialize the experience.62 In one harrowing case, a young woman was repeatedly badgered with the question, “What did you do to make him violate you?”63 In that case, the victim spent more than 24 hours travelling from police stations to state hospitals and clinics, trying to register her complaint and obtain a medical certificate, as the officers mistakenly demanded medical certificates to open investigations or press charges, refusing to write up the rape allegation until she paid a bribe.64
36 A 2012 study found that “[m]ore than half of sexual assault victims and household members who tried to report the crime to the police complained that officers refused to make a report or tried to dissuade the victim or family members from doing so. Roughly 12 percent of sexual assault victims reported paying or being asked for bribes by police; the average bribe given was 1200 gourdes, about USD $30.”65
37. The Government reports having taken measures to inform judges, prosecutors and lawyers on the provisions of CEDAW and on the negative effect of prejudices and stereotypes through training seminars and awareness raising campaigns.66 However, the Government acknowledges that these interventions have yet to be formalized as part of the training curriculum.67 More rigorous training remains needed, and this training must also be extended to the police force.
Misuse of medical certificates

38. The Government notes that “[t]he medical certificate is an element of proof but is not legally obligatory in order to make a complaint.”68 In practice, however, as noted by the UN Human Rights Committee in 2014, “a medical certificate is required to initiate criminal proceedings for rape”. 69 Judges will often not pursue a case if one has not been provided or does not provide sufficient detail.70


39. Apart from having no basis in law, the de facto requirement of a medical certificate is problematic for several reasons. First, victims may not be able to obtain them due to the costs associated with the process. Medical facilities often charge fees to issue certificates, which can be cost-prohibitive. The UN Human Rights Committee noted the “progress made in enabling victims of rape to obtain a medical certificate free of charge.”71 Even if they are made available free of charge, however, victims still face costs of transportation to the medical facility. Second, victims may also prefer not to obtain a medical certificate due to fears of being examined, especially by a male doctor.
40. Moreover, a medical certificate can be misleading or irrelevant. Some doctors register only that a victim had sex, and even in violent rape cases, may refuse or fail to write up bruises, cuts, or other blatant indicators of aggression, including the victim’s psychological state.72 And in many instances, rapes may not leave injuries that indicate a use of force, especially if the victim was not a virgin when assaulted. Nonetheless, judges and prosecutors frequently dismiss cases where medical certificates do not indicate evidence of force, under the misconception that this indicates that no rape took place.73 In a recent case currently pending before the Haitian Supreme Court, the prosecutor and appellate court relied on an inconclusive medical certificate that found no evidence of force rather than the victim’s detailed testimony that she was bound, beaten and raped twice.74 This case is unfortunately typical.
41. This suggests that the requirement of a medical certificate indicates the belief that a woman’s testimony by its nature is questionable in Haiti. Meanwhile, men’s testimonies are accorded weight. In the above case, the young woman submitted her testimony and pressed charges, arriving to the station with ripped clothes and blood matted on her head from the assault; but the police still refused to pursue the case simply because the attacker had claimed the sex was consensual.75
The gender inequality and inadequacy of Haitian legislation

42. The Haitian legal framework reflects the gender discrimination and disregard for the position of women and girls that is pervasive within the legal system itself. Rape was criminalized in Haiti in 2005.76 However, the elements of the crime of rape are still not codified; consent is not defined and marital rape is not criminalized.77 Ambiguous legal definitions are significant barriers to successful investigation and prosecution of rape cases, especially in cases of intimate partner violence. The lack of criminalization of marital rape means women in abusive relationships have no legal recourse. Sexual harassment is similarly not criminalized. The UN Human Rights Committee recommended in 2014 that “the State party should accelerate the adoption of specific legislation on violence against women with a view to strengthening the legal framework for protection against domestic violence, sexual harassment, rape, including marital rape, and other forms of violence suffered by women.”78


43. The Government acknowledged in its Response that the elimination of discriminatory laws has to be done by revising the Penal Code and Civil Code.79 However, the revision of the Civil Code has not begun and the revision of the Penal Code is still pending. Other proposed reforms the Government mentions in its Response include proposed laws on Sex Equality, Gender Based Violence, Decriminalizing Abortion, Criminalizing the Trafficking of People, and Working Conditions of House Workers. The law on the Working Conditions of House Workers was passed by Parliament in 2009 but the Government still has not promulgated it, demonstrating its refusal to take women’s rights seriously.
44. The proposed law on Sex Equality and the proposed law on Gender Based Violence await parliamentary debate and approval. Due to a lack of timely elections, most of Parliament termed out in January 2015, leaving President Michel Martelly to rule without legislative oversight.80 The Government, including the Prime Minister and Ministry of Women and Ministry of Justice must support and encourage the prompt passage of these laws once the new Parliament is seated. While these laws are pending, the Government should take even more care to aggressively pursue other efforts to address intimate partner violence, sexual harassment and gender discrimination.
45. The law on Working Conditions of Domestic Workers awaits promulgation by the executive. Parliament adopted the law on Working Conditions of Domestic Workers in 2009. The proposed law Decriminalizing Abortion is still being drafted. This drafting process needs to be completed as soon as possible. In 2008, CEDAW encouraged “the State party to enact the law on partial decriminalization of abortion as it expressed the intention to do so.”81 While abortion is a controversial issue particularly in Haiti’s socio-religious context, women are dying because abortion is illegal irrespective of the circumstances of the pregnancy.82 This puts women and girls in danger, as there is no legal alternative, and there is a trade in illegal abortions, which are dangerous and can be fatal. Haiti has the highest maternal mortality rate in the Western Hemisphere, with 530 maternal deaths per 100,000 children born, at least a fifth of them linked to abortions. Early pregnancies often happen one year after the first periods, as young as 12 or 13 years old.83


  1. Article 6: Sex Trafficking, Exploitation of Prostitution and Child Prostitution in Haiti

46. Sex trafficking, exploitation of prostitution and child prostitution are prevalent problems in Haiti. These terms have significant overlap, and are addressed together in the Government’s obligation to “Take all appropriate measures, including legislation, to suppress all forms of trafficking in women and exploitation of prostitution of women.”84 To fulfill this obligation the Government needs to take specific preventive and punitive measures to overcome trafficking and sexual exploitation.85 As a signatory to the Palmero Protocol of trafficking in persons, the Government respects the definition of trafficking as the “recruitment, transportation, transfer, harbouring or receipt of persons...for the purpose of exploitation.”86 The Government’s obligations to prevent and punish not only trafficking, but coercion or exploitation of prostitution, especially that of children, are discussed in this report. These must be addressed through joint measures.






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