The Cuban legal system is being renewed and updated as a result of the still recent Constitution of the Republic. Also, because the reality of current Cuban society inevitably leads to it. And, among the new aspects that it is contemplating, is gender-based violence.
If we review the Magna Carta, we will find that in its article 43 the State is obliged to protect women from gender-based violence in any of its manifestations and to create the institutional and legal mechanisms for it. Two years later, on March 8, 2021, the National Advancement Program for Women was published through a Presidential Decree. It calls for the “comprehensive improvement of policies and substantive and procedural legislation in family, labor, social security, administrative and criminal matters, to guarantee effective treatment in confronting the different manifestations of gender-based and intrafamily violence.” (Area 5, section 5)
Consequently, the draft Family Code, Penal Code and Criminal Enforcement Law, in addition to the already approved Process Code, include provisions related to gender-based violence. In particular, the Preliminary Draft of the Penal Code that must be discussed in the Cuban National Assembly of People’s Power, will be the object of reflection along the following lines, since it deserves a more focused look since violence is almost always related to behavior classified as crimes.
Wise and unwise moves
The expression gender-based violence is used 33 times in the Preliminary Draft of the Penal Code, of which 14 were used to indicate an aggravated form of criminal conduct; fundamentally in crimes against life and physical integrity, in crimes against honor, in crimes against individual rights, and against sexual freedom and indemnity.
The incorporation of gender-based violence in the draft is extremely important because it assimilates as a particular type of violence those behaviors that transgress people’s rights for a reason as special as belonging to a certain gender. This is explained not only by the violent actions themselves, but also by these as the ultimate expression of a network of historical inequalities that have been built based on the male cisheterosexist predominance and domination over social relations. In other words, they are expressions of patriarchal behavior in violent forms on specific bodies such as those of women and people with different gender identities and sexual orientations. Likewise, this recognition obliges the operators of the right to specifically take into account dynamics considered criminal that attend to gender.
For greater clarity in the concepts, the preliminary draft refers to the following definition as gender-based violence:
“a very particular type of violence, which is based on the patriarchal culture that is based on the inequality of power between men and women. As part of that male domain, violence is exercised as a control mechanism; it is based on sexist stereotypes, generators of prejudices that derive in expressions of discrimination based on sex, gender, sexual orientation or gender identity; it can be physical, psychological, sexual, moral, symbolic, economic or patrimonial, and has a negative impact on the enjoyment of rights, freedoms and the comprehensive well-being of people; it occurs in family, work, school, political, cultural and any other spheres of society; and its most generalized, frequent and significant expression is that which occurs against women.”
Another novel figure in the draft is Workplace Harassment.
“Anyone who affects the labor rights of a person with whom they have a work or employment relationship, through their direct or indirect harassment through actions of isolation, threats, demands or with any other act or means potentially capable of producing said purpose, incurs in a sanction of deprivation of freedom from six months to two years or a fine of two hundred to five hundred quotas or both.”
Certainly, work or labor relations, whether state or private, by contracts for the provision of services or by employment contracts for an indefinite period, are spaces where gender-based violence is also manifested; through harassment with and without sexual connotation. Precisely this is an omission of the article 327 in question, harassment can involve, and generally does, requirements of sexual types. Although the article mentions that this crime will be imposed as long as another more serious crime is not constituted, it is very necessary that care be taken to include the sexual nature of an important part of the acts classified as Workplace Harassment. Although not all feminists agree that workplace bullying in all its dimensions has criminal consequences, it is true that workplace bullying can cause stress, authentic psycho-physical illnesses, collapses, and more; that is, the level of social damage required to opt for criminalization must be specified.
One wise move has been to eliminate the subjective differentiation between men and women in the crimes of rape and pederasty with violence, among others. This responded to sexist biases in the formulation of the criminal types mentioned. However, legislators have also chosen to eliminate Rape in its usual denomination and, instead, have titled it Sexual Assault. In Spain, in 1995, the title of Rape was also eliminated and replaced by Sexual Assault, however, in 1999 it was retitled as rape to preserve a technical word that coincided with common language.
Debates about retaining the term rape, or distinguishing between sexual assault and abuse, are not without dilemmas. On the one hand, the stigma of “the raped woman” persists, and on the other the moral and sexist taboo that the facts are more serious when it is men who are raped; for this reason, the tendency to eliminate the title of rape has been born. There are also positions against differentiating abuse from sexual assault in terms of severity, since, from a gender and feminist perspective, abuse without penetration is as serious as assault with penetration. There are specialists who advocate the recognition of a single crime that assimilates all these criminal variations and that is called “Sexual Assault.”
Certainly, it is not only of concern that Rape, as a term, is eliminated from criminal language in Cuba and a discrepancy between technical uses and common language is originated; but even the term sexual assault implies a euphemism that conceals the sexist morality in rape against men. As long as any legal body has greater clarity and distinction in its definitions, the greater the legal certainty it provides for the people in charge of applying it and also for those who need to seek protection in its articles; and this cannot depend on the gradations in the seriousness of the crimes.
In the Code (1987) still in force, for example, harassment does not find a denomination but as a section of the crime entitled Sexual Insult. This resulted in an invisibility of facts and behaviors that we call harassment. In fact, in the current Preliminary Draft it was decided to change its title to Harassment and Sexual Insult. Therefore, it is known that it is essential to call things by their name, and name crimes in clear and unequivocal ways. It is expected that before its approval, Rape as a criminal offense will return to being named as such.
On the other hand, it is important to keep in mind that Rape takes place not only when force, violence or sufficient intimidation is used on the victim; or when the victim is penetrated. If we rely on testimonial evidence, we will also verify that the victims have felt raped even without being penetrated, but where contact with the genitals, of the victim or the perpetrator, orally or with the hands or objects, has been determinant in the definition as rape and not as abuse; for example, forcing/inducing the victim to perform or receive oral sex; receive masturbation or practice it. Rape also occurs after periods or episodes of harassment; when preceded by insistent sexual requirements; within couple relationships; even when the so-called sufficient intimidation is not demonstrable. Gender studies have shown that, on many occasions, victims agree to have sexual relations with their aggressor in the hope of putting an end to harassing behaviors or sexual requests that disturb their existence and daily life. However, this willingness to “accept” is vitiated, that is, it is not a legitimate and full consent, but is conditioned by behaviors external to their will that lead them to change a “no” for a “yes.”
There are several examples that illustrate that the fact of “agreeing” or “allowing” is not consent (thus it could not be suggested that consent is the central element in the configuration of sexual crimes in general), and that gender-based violence does not have to be subject to intimidation or the use of force, but also to other elements such as the conditions in which the events occur, how they are produced and how the results are achieved. Finally, rapes, sexual assaults and abuses are basically violent and coercive acts, since they imply the unleashing of hostile actions against the victims. Taking into account the sexual as defining in these crimes, it is important that our criminal law overcome the notion of force and intimidation and present the gender perspective as an evaluative perspective of humiliation for the victim and from the social-collective damage that it causes. the verification of the survival of gender schemes of submission-subordination. (Asúa, 1998)
To integrate these crimes from a gender perspective, where the use of force or intimidation is not decisive, it is also necessary to take into account the characteristics of the aggressor (if he or she has significant social capital, if he or she is a well-known personality , having influences that allow them to evade justice, having economic capital, being a habitual extortionist or manipulator, etc.), and also the characteristics of the affected person (who is, for example, in a situation of vulnerability not only by age or disability, but also by economic, housing, territorial, social vulnerability). And in another order of things, what may be sufficient intimidation for one person may not be enough for another, so how will the magistrates measure the sufficiency?
Sexual abuse, in the draft Code, has a vague wording. It is practically subordinated to the crime called Sexual Assault (Rape) except that the abusive person has no intention of penetrating the abused person. In addition to the fact that penetration is the focal point to distinguish one crime from another, the wording subordinated to the intention brings many problems when the configuration is achieved solely based on a subjective element. It all depends on the priority that legislators want to give to sexual crimes: if the damage to the freedom and integrity of the victim above the specific sexual act performed.
It would be more clarifying when describing touching, verbal abuse with sexual connotations that do not necessarily have to be requests or threats, even sexual abuse can be included as lascivious looks (for example, in group abuses those who remain watching).
All this occurs in a context where asymmetries of power, dominance and subordination are determined by gender; and these, in turn, shape what is related to the use of force, intimidation, vices in consent. These non-schematic considerations need to be reflected in the future legal body. It is not enough to insert the phrase “gender-based violence” in each aggravating figure. If the draft Code does not clarify these dynamics, if these unequal gender relations and their conditions are not clearly drafted, the obstacles to access to justice will continue when it comes to gender-based violence.
Another example with a limited vision of gender is found in the crime of Injuries. There we find serious injuries or injuries that, although they do not generate aftereffects, require medical treatment. There are women who are beaten, pinched, squeezed, pushed, humiliated through “non-serious” physical violence and whose complaint is not admitted, or a medical certificate of injuries is issued because the blows “are not visible” or “are not serious.”¹ However, they are episodes that they may be experiencing systematically and from which they cannot find a way out. The draft Penal Code does not protect them. It is important that the crimes be adapted to the dynamics in which gender-based violence takes place or develops, it is insufficient that the term “gender-based violence” appears as a cause that provokes the application of a higher sanction.
Femicide and associated crimes
The preliminary draft formulated the recognition of femicide through a section of the criminal type of Murder. The proposal is as follows:
Article 344. Whoever kills another person in any of the following circumstances is punished with a 20-to-30-year prison sentence, life imprisonment or death:
(…)
- d) committing the crime due to gender-based discrimination;
(…)
Article 345. 1. Incurs the same sanctions provided for in the previous article, even if there is no circumstance of qualification provided for in the fact, whoever:
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a) on purpose, kills an ascendant or descendant, or the person with whom he maintains or has maintained an affective marital or de facto relationship;
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b) kills a woman as a result of gender-based violence;
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c) is executed out of hatred against the victim because of her race, religion, gender, gender identity or sexual orientation.
This recognition is undoubtedly the result of the feminist struggle in the country, despite the fact that its assimilation is not through specific classification, but rather is subordinated to Murder. In addition, it contemplates murders based on gender identity, that is, those known as transfemicides and travesticides. The formulation is similar to the case of Argentina, a country that in 2012 recognized the concepts of femicide, transfemicide and transvesticide in its criminal law, although they were not approved as specific and independent criminal types of homicide, but rather as aggravated forms of homicide.
Faced with this type of penal formulations, in which the phenomenon is recognized, but it is not titled despite substantial studies that reveal the importance of a specific and independent classification, the advantages and disadvantages are presented in an ambiguous way. From the legal and symbolic point of view, and after crimes traditionally enunciated “blindly” with respect to gender, the advantages are unquestionable. From the procedural, strategic and interdisciplinary point of view, the disadvantages are translated into difficulties for the labeling of cases, inconsistencies with the design of investigation and pursuit of the crime, inconsistencies with the investigation of the fact itself, affectation in the reports and statistics, obstacles to develop preventive policies, etc.
The discussion that preceded this proposal was inclined to ignore its specific classification under the argument that all murders and homicides could be treated and prosecuted according to the law without the need to call them femicides. However, it is important to note that criminal law does not only fulfill the function of prosecuting and imprisoning the guilty. It fulfills, and that is what is desirable, a social and preventive mission; it must constitute one more means for measuring the impacts of certain crimes in pursuit of their gradual eradication. Criminal science is in interaction with other legal and social sciences; therefore, its objectives must also be intertwined with the needs of the populations seen to by these branches of knowledge and that, almost always, are the most vulnerable.
An example of how counterproductive it is to not have clear and unequivocal definitions and categories is the inconsistency between the use of the femicide rate in the country (0.99 per 100,000 women aged 15 and over) given in the voluntary report Cuba presented to ECLAC in 2019, and the female mortality rate due to aggressions (1.9 per 100,000 women) given in the voluntary report before the same organization but for the year 2021. With these inconsistencies, how can the evolution of this phenomenon be measured? Without adequate qualifications, denominations and categorizations, how can crime behavior be recorded and how can strategies be drawn up to reduce it?
It is expected that, as a result of this novelty in the draft Penal Code, protocols will be applied for its correct registration (including transfemicides), transparency and publication, disaggregated by territory, race or skin color, place of the events , records of victims and perpetrators and their relationship to each other, age, and more. It is also expected that what, in criminal and criminological theory and in reality itself, has a name, types and classifications, will be named. As has been done with Workplace Harassment and Harassment in general.
Note:
1 From networks: testimony 1, testimony 2. A study by Cubadebate also recognizes the problem
