Protecting a Woman’s Honor or Protecting Her Sexual Freedom?

The 1973 Penal Code and the Cultural Construction of Rape

The Penal Code that is currently in force in Guatemala was written in 1973. The section that deals with sex crimes is contained in Book 2, Title 3, “De los delitos contra la libertad y la seguridad sexuales y contra el pudor” ² (crimes against sexual liberty and security and against modesty). There are six crimes listed: violación (rape), estupro (sexual relations with a minor), abusos deshonestos (dishonest abuses, meaning sexual acts other than vaginal penetration), rapto(kidnapping with sexual purposes), corrupción de menores (corruption of minors, primarily pushing them into prostitution), and delitos contra el pudor (crimes against modesty, ways of making money from the sexuality of others such as pimping, trafficking, and pornography). All of the definitions explicitly state that these are crimes when the victims are women or suggest that through the term “la ofendida.” They also always refer to the perpetrator as “el autor” suggesting that the perpetrator is always assumed to be a man. The only two exceptions to this are in the definitions of dishonest abuses and trafficking, which state that these are crimes regardless of the sex of the victim. In this section I will mainly focus on violación and estupro, as these cover the more common forms of sexual violence that women face.

The preamble of the 1973 Code (Congreso de la República de Guatemala, 1973) states that “it is necessary and urgent to issue a new Penal Code, in accordance with the Guatemalan reality and advances in criminal science,” but the section on sex crimes reflects many of the same definitions, assumptions, and criteria that were present in the codes of the colonial period and the era of nation building throughout Latin America (Forster, 1999; Guy, 2003; Powers, 2005; Socolow, 2000). For example, the title of the section includes the terms “sexual liberty and security,” both of which suggest the freedom to decide on one’s sexual behavior. Yet a careful reading of the full text of the crimes listed and their definitions and criteria for aggravation suggests that the idea of these crimes as being against a woman’s modesty is still an overriding principle, one that has existed since the colonial period. The word pudor refers to the demonstration of appropriate shame, restraint, and morality regarding one’s sexuality. Interestingly, it is used here to refer not to the sexual behavior of the perpetrator but to that of the victim. In other words, these are crimes that force victims into sexual behaviors that are not appropriate to their modesty. Since most of the definitions presume that the victim is female and the perpetrator is male, it is important to understand what this reveals about the social construction of male and female sexuality.

Numerous studies of gender and sexuality in Latin America argue that historically male and female sexuality were heavily influenced by gendered concepts of honor brought to the Americas by the Spanish. “Honor” refers to public evaluations of one’s social conduct. The behaviors that demonstrate one’s honor are different for men and for women. Men’s honor is based on being financially successful, true to one’s word, willing to protect one’s reputation, and able to control one’s dependents (women and children as the legal wards of fathers and husbands). Men’s honor can be lost by failing to perform any of these behaviors but can also be regained by reasserting one’s authority. Women’s honor, in contrast, is primarily based on sexual conduct, whether directly through sexual activity or indirectly through engaging in behavior that is suggestive of the possibility of inappropriate sexual activity (such as spending time outside of the home where they are exposed to unrelated males). Since a woman who engages in inappropriate sexual behavior (namely, sex outside of marriage) ruins her purity, her honor is something that can only be lost and never really regained (Powers, 2005: 123; Socolow, 2000: 8; Twinam, 1999: 65). Thus, forcing a woman into inappropriate sexual activity is seen less as a crime against her physical integrity than as a crime against her reputation. This is especially important because a woman who has lost her honor has also lost the respect of her community and her right to be protected by male kin (Forster, 1999; Powers, 2005: 95). Since honor is focused on reputation, it is damaged only if the transgression is public knowledge. And since sexual transgressions affect the honor of the woman in the interaction more than that of the man, women have historically been discouraged from reporting sexual violence so as to keep their reputations and honor intact, thereby reinforcing a public silence about its prevalence (Guy, 2003; Powers, 2005: 126).

Another reason that defining sex crimes as crimes against honor is problematic is that honor is seen as the property not only of the individual woman but also of her family, including her husband. This has historically been used as a rationale for men to discipline their wives and daughters in order to maintain male honor. Indeed, Guy (2003) argues that sexual crimes against women have historically been seen more as crimes against their male kin or husbands, who were the aggrieved parties in the legal procedure (also Socolow, 2000: 152). This idea of women as the sexual property of men also contributes to the idea that part of a wife’s duty is to provide sexual services to her husband, thus making marital rape not only not a crime but even a legitimate use of force (Guy, 2003: 379). Though male rights to female sexuality theoretically apply only to their legal wives, it is often presumed to exist in other forms of intimate relationships such as concubinage, consensual unions, and dating (Forster, 1999).

While honor is used to discipline and control female sexuality, it is also used to give men a great deal of sexual liberty. Following the logic of conquest as a masculine endeavor, another way that a male can increase his reputation is through the sexual conquest of women outside of marriage (Guy, 2003: 373; Twinam, 1999: 92). Since this may create conflict with other men who are protecting their own women from sexual predation, men seeking to increase their reputations for sexual prowess often form liaisons with or prey on women with less protection (Powers, 2005: 124; Socolow, 2000: 153). In the case of Guatemala this has historically meant that men preyed on indigenous women and poor mestizas who were either seen as not having any honor to protect in the first place (because of their inferior indigenous or mixed blood) or whose men were too socially and politically vulnerable to protect them (Forster, 1999; Smith, 1995). Many have argued that the need for men to increase their reputations through sexual conquest and for women to protect their honor through sexual modesty has led to a culture of sexual predation in which “normal” sexual relations are based on a continuum between consent and coercion (Diaz, 2007; Forster, 1999). Thus men are presumed to be naturally sexually aggressive and women are taught to negotiate the dual goals of protecting themselves from this predation and consenting in order to form the heterosexual relations so necessary emotionally and economically in a society that privileges the male role of provider and the female role of wife and mother (Hagene, 2008). As can be seen, referring to these crimes through the language of modesty (embedded in the logic of honor) focuses on the damage done to the victim but in a way that reproduces cultural constructions of male and female sexuality as predator and prey respectively. It does nothing to challenge the idea of a male sexuality as naturally aggressive and places responsibility on the woman to protect her reputation.

This logic can also be seen in the way that the crimes are described and defined. For example, rape is defined in Article 173 as “lying with a woman (yaciere con mujer) in any of the following circumstances: (1) using sufficient violence to achieve one’s aim; (2) taking advantage of a circumstance, provoked or not by the agent, to encounter a woman free of reason, or sense, or incapacitated to resist; (3) in any case in which the woman is under twelve years old.” The punishment is 6–12 years in prison. The crime is classified as aggravated when it is perpetrated by two or more people, when “the author” is a parent or guardian, or when it produces “grave harm.”

One problem with this definition of rape is that the term yaciere, while vague, has tended to be interpreted only as vaginal penetration, failing to recognize other ways that women can be raped. Secondly, this form of penetration is seen as a crime only when it is very clear that the woman was coerced through physical force, incapacitation, or extreme youth. This suggests that unless there is clear proof of “sufficient violence” or incapacitation (both left to be determined by the judge), it is assumed that a “woman” over the age of 12 consented to the sex. There is no recognition that other forms of coercion (such as psychological or economic) may have been used or that there may be forms of grave harm produced other than what can be seen on the body (such as emotional trauma). This requirement to provide proof of physical harm places the burden of proof on the woman and requires that she be subjected to exams that many find humiliating and yet another affront to their modesty. It also means that in the absence of physical proof many cases boil down to the woman’s testimony against the man’s. Both historical and current case studies have shown that judges are more apt to believe the man over the woman, especially if the man is of a higher racial and/or class status and/or if he claims to have an intimate relationship with the woman even if the woman denies it (DEMI, 2007; Forster, 1999). This is based on the assumption that women will usually deny any illicit sexual conduct (even if consensual) in order to preserve their honor and that if there is an intimate relationship already established, the male has the right of sexual access to the woman, even if by force.

Another factor that is prevalent throughout this section on sex crimes is the way that the crimes are both defined and qualified by the age of the victim. As we saw in the case of rape, a “woman,” even one as young as 12, must prove sufficient violence or incapacitation in order for vaginal penetration to be considered a crime. However, the definition of estupro (statutory rape) recognizes that sexual access to women under 18 may be gained through means other than physical force. Article 176 defines estupro as “carnal access with an honest woman, older than 12 and younger than 14, taking advantage of her inexperience or gaining her confidence.” Article 177 specifically defines the crime of estupro mediante engaño, in which trickery or a false promise of marriage is used to persuade the girl to engage in sexual relations. Both crimes carry a punishment of one to two years in prison if the “honest woman” is between 12 and 14 years old and six months to one year if she is between 14 and 18 years old. Like rape, it is aggravated if “the author” is a parent or guardian. This crime recognizes the vulnerability of young girls to sexual predation through the ability of men to trick them, but it also presumes that as a girl gets older she is more and more responsible for guarding her sexuality and therefore less of a victim unless there is proof of physical violence. Including the criterion that she must be “an honest woman” also places the evaluation of the crime on the character of the victim rather than that of the perpetrator and thereby provides leeway for the crime to be dismissed if it is found that she was not a virgin or made herself available to the man or displayed any other proof of sexual impropriety (i.e., was not modest). Following the logic of female honor, the assumption is that a modest woman would not have put herself in a compromising position. Only a “loose” woman is likely to be raped without evidence of grave harm; therefore any hint that the woman is “loose” would invalidate the charge of rape, given the “perception that it was impossible ‘to force’ a ‘loose’ woman to have sex” (Forster, 1999: 62). The fact that both rape and statutory rape are aggravated if the aggressor is a parent, guardian, or in some other custodial position over the victim does suggest a recognition that these often occur within the supposedly safe space of the home and involve people on whom the victim relies for economic and emotional support. This also implies that forms of coercion other than physical violence may be used (such as the threat of withdrawing financial support, emotional blackmail, exposing them to the public for the transgression, etc.). However this applies only to legal minors and does not take into consideration that adult women may be equally dependent on their male kin or husbands and subject to similar forms of coercion. Indeed, there is no mention of husbands at all in this section, making marital rape invisible and implicitly sanctioning men’s right to their wives’ bodies.

Another problem with the definition of crimes of sexual violence in the 1973 Penal Code is that they were classified as “private” crimes, which means that they were not considered to have a significant social impact (Red de la no Violencia Contra las Mujeres, 2006). According to the Penal Code most sex crimes are eligible for “substitutive measures” namely, mediation or conciliation, rather than criminal trial, in order to lighten the load of the court. The problem with applying this type of resolution is that the two parties do not come to the table as equals and therefore the outcome is likely to be biased toward the man; the woman must negotiate with someone who has inflicted violence on her, thereby being further traumatized; the man often threatens the woman and her family and is not in police custody, so the woman has no protection from him during the process; and, finally, the message to men is that the punitive consequences of violence against women are few if any (Red de la no Violencia Contra las Mujeres, 2006).

The fact that sex crimes were considered minor/private crimes also meant that they were not always subject to state criminal prosecution (acción pública). If these crimes were subject to state prosecution, then the Public Ministry would have the obligation to pursue the investigation and prosecution regardless of whether the woman had a lawyer and resources to follow through with the case. Instead, because they were considered of minor importance a woman (or a member of her family) had to file a complaint and follow through with the entire legal process on her own or with the help of a lawyer. If a woman dropped the charges, then the Public Ministry had no obligation to continue with the investigation or prosecution of the case (Cházaro, Casey, and Ruhl, 2010; Musalo, Pellegrin, and Roberts, 2010). According to reports by the Defensoría de la Mujer Indígena (Defender of Indigenous Woman—DEMI) and the Grupo Guatemalteco de Mujeres (Guatemalan Group of Women—GGM), in Guatemala it is very common for women to drop the charges or give up on the case for several reasons. The man may threaten the woman and her family once she files a complaint, and since he is often not detained and security measures are very weak, she has very little protection from him during the process. Even when the man is detained, it is common for his family or associates to continue to threaten the woman, and therefore the moment a woman files a complaint is the moment she is at the most risk of violent retribution. ³ Poor women cannot afford legal aid, taking off from work, traveling to where the institutions of justice are located, and paying for the necessary documents and other costs. The judicial process is extremely slow, and success is very unlikely. Many women do not receive the support of their family and community members because of the prevalent belief that men are naturally violent and that women who are sexually violated or victims of domestic violence have brought it upon themselves. Finally, many women are caught in a psychological cycle of violence that leads them to blame themselves and return to their aggressor (Cházaro, Casey, and Ruhl, 2010; DEMI, 2007; GGM, 2010a; Musalo, Pellegrin, and Roberts, 2010).

A final problem with the 1973 Penal Code was the famous Article 200, which says, “In the crimes listed in chapters 1, 2, 3, and 4 above [violación, estupro, abusos deshonestos, and rapto], the punishment for the offender will be extinguished upon the legitimate marriage of the victim with the offender, as long as she is older than 12, and in all cases, with the prior approval of the Public Ministry.” This article was declared unconstitutional in 2006 on the basis that it violated the general principle of equality of men and women in Article 4 of the Constitution (written in 1985). The court, explaining the rationale behind this declaration, wrote (Corte de Constitucionalidad, 2006):

The norm being challenged is based on the subordinate position of a woman, in which an act of sexual violence against her is not considered to be the same as an attack on her sexual liberty but rather is essentially seen as an attack on the honor not of the woman but of her family. It minimizes the act of sexual aggression, the violence, and the humiliation caused by the violent act, privileging the fact that the woman can “recover her honor” or her sexual legitimacy as a “dignified woman” through her marriage to the aggressor. With this disposition, sexual violence comes to occupy a second rank, subordinated to social conceptions of the position of women in society:

An analysis of case studies of sexual violence involving indigenous women and girls conducted by the DEMI (2007) shows that these cultural assumptions about honor, female and male sexuality, and the private nature of sexual crimes result in high levels of impunity. One of the findings is that many women do not even bother to report cases of violence against them or their female kin. This is in part because of the racial discrimination they face and the cost involved, but it is also due to social pressure that places the blame on them for causing problems. As one interviewee said, “When women go to denounce a crime, the first thing the people say is that we have nothing better to do and that women do not put up with it as before. They say that we are no longer good for anything, that we are bad women, that we do it because we like being in the street, that we are sluts, and finally that we have lovers” (DEMI, 2007: 93). Thus most women simply stay silent, thereby protecting their own honor/reputation and that of their aggressor.

There are, however, moments when the acts of sexual violence are considered particularly egregious and the woman or her family decides to take legal action. And yet even when women do dare seek out the agents of justice and denounce a crime of sexual violence they are often dismissed because they must prove physical violence and harm, they are not found to be “honest,” and there is a presumption of male rights of access to the sexuality of women with whom they claim to have had a relationship. As a result, the woman or girl has essentially been violated three times: the rape, the humiliation of public exposure, and the frustration of impunity. What was striking to me in reading these reports was how eerily similar they are to cases reported by Forster from 50 years earlier (1936–1956). For example, one case documented by DEMI (2007: 96) involved Noemi:

A Maya Kekchi adult woman, with some schooling was raped by someone known to her who drugged her in order to achieve carnal access without her resistance. The Tribunal de Sentencia Penal, in a majority ruling, considered that the supposed relationship of noviazgo that the perpetrator had with the victim (and that she repeatedly denied) negates the rape: “The abundance of evidence of a previous sentimental relationship [between the victim and the perpetrator] . . . affects the credibility of the testimony of the presumed victim.” In addition, the Tribunal gave full evidentiary value to the declaration of a witness who gives an account of the behavior of the victim “I came and I said . . . how strange that they have accused him of this . . . because I was aware . . . when she got in the van . . . she thought that they were decent and she got in the car to do who knows what nonsense.” Of this declaration the Tribunal considered that “this disposition does not seem exaggerated or biased, but should be taken into account,” without considering that the witness, essentially, did not speak to the central acts that were the subject of the trial.

In this case the presumed intimate relationship and the assumed immodest character of the victim were used to dismiss this as a crime. As Forster (1999) argues in her analysis of cases from San Marcos in the first half of the 1900s, any hint of promiscuity (the fact that she got into the van with the man willingly, the fact that they had presumably been lovers) invalidates her right to refuse sexual contact and validates his right to assert it. As the final line suggests, less weight was given to the “central acts” (i.e., the rape) and more placed on the behavior of the victim and her relationship to the perpetrator as declared by the perpetrator and the witness. Her own account of events is given little importance, just as in the cases analyzed by Forster, where it was routinely assumed that the woman or girls were lying in order to cover up what was really a consensual, though illegitimate, sexual relationship (1999: 62).

Another case of rape involved Sara (DEMI, 2007: 96),

a ’Kiche girl, 13 years old, raped by a 38-year-old man. The prosecutor charged with the case requested the dismissal of the case having only the declaration of the perpetrator who claims that he had an intimate relationship with the girl. The Tribunal also opined that in these circumstances “the sexual relation was not carried out in a violent form.” This supposed relationship was roundly denied by the girl.

Once again the perpetrator’s claim that he already had established an intimate relationship with the girl was used to disqualify this as rape, despite the huge age difference and the girl’s denial of the relationship. The example also points to the normalization of the “predatory approach to courtship” in which “men suffered considerable confusion over acceptable boundaries of coercion” in a sexual system in which women must play “hard to get” in order to maintain their honor (Forster, 1999: 64). Thus resistance to sexual advances is simply seen as part of the game. Though it may appear to be a stretch for the man in this situation to have this perspective given the very young age of the girl, apparently it was not a stretch for the judges, who believed his account of the relationship. They used the man’s claim to the relationship to negate the rape on the assumption that the sex was consensual. Even if it had been consensual, he could still have been accused of estupro (statutory rape), but ironically the judges used her denial of the relationship to declare that this was not estupro. In the end, a 38-year-old-man’s having sexual relations with a 13-year-old girl was not considered a crime.

A final example of a rape that was dismissed by the Tribunal is that of Luisa (DEMI, 2007: 98):

A Kakchikel girl, 12 years old, monolingual, has not completed primary school, resident of a rural area, was raped four times by her neighbor (an ex-military commissioner) who took advantage of the fact that her parents were not home. The Tribunal decided that they could not formulate an accusation of rape because the medical exams indicated that they did not observe any signs of violence and that the hymen was scarred. The decision says, “It is not established that [the scarring] was caused by rape.” It asserts that “if there is no evidence of violence and no concrete date in order to record the exact day and time at which the supposed rape occurred, then [the accusation of the victim] cannot be given credence.”

As the authors elaborate, “In this case, they discard the testimony of the victim, considering her a liar for not remembering the date of the rape. They do not take into account the social and cultural context of the girl. The judges discard the rape for the lack of evidence of physical violence, without considering psychological violence” (DEMI, 2007: 98) Again as Forster found in her analysis of early-twentieth-century cases, proof of sufficient physical violence was needed in order to prove full penetration and the resistance of the victim, without which the act was presumed to have been consensual. It is surprising that even in the case of such a young girl this proof was required. Forster suggests that this was because “the definition of childhood was open to interpretation and many judges treated the onset of menstruation as the appropriate age of consent, even though the law mandated age eighteen. In general, officials viewed adolescents as adults in contests of sexual power” (Forster, 1999: 63).

In sum, this analysis of the language of the laws regarding sexual violence, the cultural logic behind the laws, and the case studies reveals the use of deeply embedded ideas about honor and female sexual modesty to justify sexual violence, minimize its impact on society in general and women in particular, and avoid its prosecution. As Forster (1999: 71) argues, rape was essentially defined as “male violence against women who belong to other men.” Therefore forced sexual relations with your “own” women (wives, lovers, concubines) was not considered rape, and forced relations with women who did not belong to other men (single women, independent women, or those with absent husbands) was not rape. Rape was really only taken seriously in the case of very young girls (under 12) and “honorable” women who followed all the proscriptions of modesty and had husbands in a position to protect their honor. As a result, many poor and indigenous women were left essentially unprotected by the 1973 Penal Code on the assumption that they had no honor to begin with. But, as we have seen, even women who were seen as “honorable” were not protected from the sexual (and domestic) violence of their husbands. This analysis shows that these attitudes and legal processes have a very long history that has only very recently been reformed.

Challenging The Patriarchal State

The women’s movement has a long history in Guatemala and has achieved a great deal in the way of civil and political rights over the past 100 years (Berger, 2006). It is not until the past couple of decades, however, that issues of violence against women have come to the forefront of political and social activism. In part this increased attention to violence against women is the result of awareness of the horrific violence that women suffered during the period of military dictatorship and armed conflict from 1954 to 1996, when women were assassinated, disappeared, and tortured (as were men) but also subjected to forms of violence particular to their sex (such as being forced to sleep with soldiers and serve them food, having their genitals mutilated, being gang-raped, having fetuses cut out of their wombs, and being tortured in sexualized ways) (Commission for Historical Clarification, 1999). Though the first human rights organizations formed during and after the war were concerned more with political human rights abuses committed by the state and its security forces, in the 1990s some women’s organizations began to focus on forms of violence against women that are pervasive in times of peace and war. These organizations formed the Red de la no Violencia contra la Mujer (Network against Violence against Women), which defines violence against women as a human rights issue and works to increase public awareness of the problem, provide aid to victims, and strengthen legislation to make violence against women criminal (Berger, 2006; Walsh, 2008). Its work has been bolstered by the fact that Guatemala signed the Convention on the Elimination of all forms of Discrimination towards Women in 1982 and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women in 1994, both of which require signatory states to reform legislation in order to protect women from discrimination and violence.

The first piece of legislation passed to address domestic violence was the 1996 Law to Prevent, Punish, and Eradicate Intrafamilial Violence. Though this was the first law to recognize domestic violence as a grave social problem, it did not make domestic violence illegal unless the specific acts of violence met the legal criteria of assault and battery or rape as defined in the Penal Code (which, as we have seen, required proof of “sufficient” physical damage). Instead of criminalizing domestic violence in all its forms (sexual, psychological, economic, and physical) and recognizing its gendered logic, the law simply provides security measures (e.g., restraining orders) to the victims. In response to these weaknesses, women’s organizations pushed for the passage of the Anti-Femicide Law in 2008. This law clearly defines violence against women as any physical, sexual, or psychological form that is facilitated by gender inequality and motivated by sexist ideologies, “taking advantage of any of the following circumstances: (a) having unsuccessfully tried to establish or re-establish an intimate relationship with the victim; (b) having or having had familial, marital, co-residential, intimate, dating, labor, or friendship relations with the victim during the period within which the crime is committed; (c) as a result of group rituals whether with or without weapons of any kind; (d) demonstrating disrespect for the victim’s body in order to satisfy sexual instincts or committing acts of genital or any other kind of mutilation; and (e) for misogyny.”

This list of criteria is not random. Rather, as multiple studies indicate, it includes the common circumstances under which violence against women in general occurs, including sexual violence (see, for example, Central American Council of Human Rights Ombudsman, 2006; Guatemalan Human Rights Commission, 2009; Inter-American Commission on Human Rights, 2003; Madre et al., 2010). It recognizes the frequency with which violence against a woman is carried out by an intimate partner, a man who is trying to “conquer” her, or even a neighbor or coworker. It recognizes that sexual violence is often accompanied by other forms of violence that suggest misogynist motivations above and beyond sexual gratification. And, finally, it recognizes that both femicide and sexual violence may be carried out “as a result of group rituals,” which is essentially a reference to gang rapes and killings committed by gangs as forms of initiation, discipline, and/or revenge.

Though the law addresses all forms of violence against women, not just those that end in death, the use of the term “femicide” in the title is a very important discursive strategy because it focuses attention on the gendered nature of the violence. In Guatemala “femicide” is used to refer to the murder of a woman when it is motivated by ideas about gender and sexuality (for example, by a jealous boyfriend) and/or facilitated by the unequal relations of power between men and women (for example, when a woman puts up with domestic violence out of economic dependence) and/or performed with impunity (Bueno-Hansen, 2010; Trujillo, 2010). This is not to say that all violent deaths of women are femicides or that every time a woman is a victim of violence it is because she is a woman. Rather, it encourages the judicial system and society to recognize that many forms of violence against women are based on cultural and structural forms of gender discrimination that have historically been ignored, considered of little importance, or even condoned. Thus it is not, as some critics have argued, an example of reverse discrimination, in which the murder of a woman is seen as more egregious simply because she is a woman. Rather, the term “femicide” is meant to draw attention to and condemn the circumstances and social structures that make violence against women both common and culturally justified. As we have seen in the case of sex crimes, the social construction of these crimes around the woman’s honor creates immense cultural and logistical barriers to denouncing these crimes and getting legal redress. Thus the way they are described and labeled is important in beginning to make the public aware of them and in dismantling the cultural justifications for sexual violence. In fact, Article 9 of the Anti-Femicide Law speaks to this: “In these crimes against women, cultural or religious customs and traditions cannot be invoked in order to justify, exonerate, perpetuate, inflict, promote, instigate, or tolerate violence against women.”

Finally, the Anti-Femicide Law also addresses the procedural barriers faced by women who try to seek redress through the judicial system. For example, the new law extends the security measures laid out in the 1996 Intrafamilial Violence Law to all female victims of violence regardless of their relationship with the aggressor. What is even more important is that Article 5 says that all crimes listed in the law are subject to state prosecution. Thus even if the woman or her family stops participating in the legal process, the Public Ministry has the obligation to continue with the investigation and prosecution. This is meant to avoid the problem of women’s dropping the charges and is also intended to send a clear message to men that violence against women will be punished by incarceration. The law also removes any possibility of pardon or sentence reduction in the case of femicides, and resolutions other than the punitive (such as mediation) are not allowed. Finally, it commits the state to providing shelters, public defenders, interpreters, and better forensic technology and creates special organs within the judicial system for dealing with such crimes.

Redefining Sexual Violence: From Protecting One’s Honor To Exercising One’s Right To Sexual Liberty

The Anti-Femicide Law is undoubtedly a great achievement for the women’s movement. It has placed the vocabulary of gendered forms of violence in the public realm and has generated public knowledge of these forms through announcements, marches and protests, and media coverage. And yet there are still major problems preventing the effective implementation of the law, some of which have to do with the inefficiency of the judicial system in general and others with the persistence of discriminatory attitudes on the part of the agents of justice (for a complete discussion see GGM, 2010a; Godoy-Paiz, 2008; Guatemalan Human Rights Commission, 2009; Musalo, Pellegrin, and Roberts, 2010). One problem in particular mentioned by Musalo and colleagues is that because the law is a “special law” it does not replace but exists in addition to the Penal Code. Thus, while the Anti-Femicide Law defines violence against women in very specific ways and has specific procedures related to prosecution of violence against women, these are not always the same as those contained in the Penal Code. The existence of different criteria for defining sexual violence, for example, has created confusion over when to apply the Anti-Femicide Law and when to apply the Penal Code, causing some judges to be resistant to applying the new law.

In contrast to special laws, the 2009 Law against Sexual Exploitation and Trafficking in Persons actually reforms specific articles of the 1973 Penal Code and is integrated into it. Much of the law involves revisions of Book 2, Title 3, of the Penal Code, which deals with sex crimes and specifically those involving minors and crimes that fall under the current definition of trafficking in persons. Though the main purpose of this law is to tackle the problem of human trafficking, some of the changes will affect the way in which rape is understood.

Title 4 of the 2009 law lists a series of reforms to the 1973 Penal Code that remove much of its sexist language and define sex crimes much more specifically. One of the main discursive changes is that it removes the word pudor from all definitions of sex crimes. For example, Article 26 changes the name of this entire section of the Penal Code from “De los delitos contra la libertad y la seguridad sexuales y contra el pudor” to “De los delitos contra la libertad y indemnidad sexual de las personas” (Crimes against the Sexual Liberty and Indemnity of Persons). As I have pointed out, the term pudor carries the connotation of a passive sexuality that must be hidden and guarded lest the woman be seen as responsible for her own violation. It also suggests that it is her responsibility to do so not only for herself but also for her family. The words libertad and indemnidad suggest, in contrast, that sexuality is something that all people have the right to exercise regardless of age, gender, marital status, etc., without any of those factors’ being used as a justification to deny them that right or force them to enact that sexuality in such a way that it causes harm to themselves or their dignity. Thus, removing the word pudor and replacing it with indemnidad replaces a passive notion of a woman’s honor’s being protected with a more active notion of her exercising her rights to sexuality free of coercion or violence. The DEMI (2007: 979) report argues that in the case of children the use of the term indemnidad refers to the obligation of the state to “protect their future liberty, or rather, the normal evolution and development of their personality so that when they are adults they can freely decide about their sexual behavior.” Thus the spirit of the law is to guarantee that all persons (adults and minors, males and females) will not be exploited because of their sexual history, nor will their future sexual liberty be compromised by having been exploited at a vulnerable age.

This intention of the law can also be seen in Article 35, which renames Chapter 4 of the Penal Code, formerly “De los delitos contra el pudor,” to “De los delitos de la explotación sexual” (Crimes of Sexual Exploitation). Again this suggests that the victim has a right to sexuality free of exploitation. This is a less paternalistic notion of sexuality—not something that must be guarded and protected by others but something that one has the right to enjoy on one’s own terms. By calling these crimes “sexual exploitation” the new language also directs the shame and moral opprobrium to the exploiter rather than the one whose modesty has been damaged.

Another intent of the revisions is to remove language and definitions that suggest that sexual crimes can only definitively be determined to be against the person’s will if there is evidence of physical violence or if the person is incapacitated or a minor. In this law, definitions recognize many types of coercion that may or may not be obvious, including psychological and economic. It also recognizes that adult women can be susceptible to these crimes in some of the same ways that minors are. This recognition of the vulnerability of even adult women challenges the idea that for an adult woman sex is always consensual unless there is extreme evidence to the contrary. For example, Article 28 of this law modifies Article 173 of the Penal Code by providing a much more explicit definition of rape: “Anyone who, with physical or psychological violence, has carnal access through vaginal, anal, or oral means with another person, or introduces any part of the body or objects through the above-mentioned avenues, or obliges another person to introduce them into themselves, will be punished with 8–12 years in prison.” Here the phrase “sufficient violence” is replaced by “physical or psychological violence.” Removing the word “sufficient” suggests that there is no minimum degree of harm that the victim must prove in order for the crime to be taken seriously, and adding psychological violence broadens the types of evidence that can be used to prove coercion. Though the term acceso carnal is still employed, the description of what that constitutes is much more explicit, leaving less room for interpretation. There is also recognition that forcing someone to perform sexual acts on oneself can also be a form of rape. And to be even more explicit, Article 29 adds the following definition to Penal Code Article 173: “Sexual aggression: Anyone who, with physical or psychological violence, carries out acts with sexual or erotic ends to another person, to the aggressor or to themselves, even when it is not a rape, will be punished with 5–8 years of prison.” This addendum allows for the classification and punishment of cases in which there is no penetration but other types of sexual acts are coerced. And finally, the use of the term “person” instead of “woman” and the inclusion of forms of penetration other than vaginal makes the crime of rape also applicable when the victim is male.

The new law also specifies that both rape and sexual aggression are “always a crime when the victim is a minor less than 14 years old or when it is a person with volitional or cognitive incapacity, even when physical or psychological violence is not used.” Here the age at which sexual relations are automatically seen as a crime is raised from 12 to 14 (which may still seem very young but is the age at which girls may marry in Guatemala) and there is a recognition that for this category of persons it is not even necessary to show evidence of violent coercion.

In sum, considering all of the reforms together, the law increases the ability to define adult women as victims by recognizing a broader array of ways in which they are vulnerable and prone to coercion (regardless of their modesty), and it increases the ability to recognize children and other “tutelary” categories as victims even when there is the appearance of consent or they are not deemed to be “honest.” The result is that the law places responsibility on the exploiters rather than on the victims.

Another major improvement in the law is that Article 30 reforms Article 174’s list of aggravating factors to include, among others, “when the aggressor is a family member or guardian, husband, partner or ex-husband or partner” (my emphasis). By specifically mentioning husbands and partners and even making their aggression an aggravating factor, the law specifically criminalizes marital rape and challenges the idea that men have rights over the sexuality of their wives and lovers.

Finally, Article 46 makes these crimes subject to state criminal action regardless of the status of the victim without the possibility of pardon, suspension, or dismissal. This strengthens the provisions found in the Anti-Femicide Law by integrating them into the Penal Code.

Conclusions

As can be seen in this review of the new laws regarding sexual violence, feminists and activists in the Guatemalan women’s movement have made great progress in rewriting legislation to reflect a less discriminatory definition of sex crimes, make visible the gendered dimensions of these crimes, and reform judicial procedures to address the difficulties that women have historically faced in seeking justice for them. This work has been bolstered by pressure from the international community and the fact that Guatemala has signed various international accords obligating the state to address the problem through legislative reform and the creation of special judicial institutions that attend to victims of gendered violence. These special organs of the state include an elite unit of the National Police meant to deal specifically with femicides, four sections of the public prosecutor’s office dedicated solely to crimes against women, and 24-hour courts intended to provide an around-the-clock venue for reporting acts of violence against women. However, as Musalo, Pellegrin, and Roberts (2010: 207–211) demonstrate, these special units continue to have severe limitations, such as inadequate funding and personnel, inadequate training and access to forensic technology, and a limited geographic range of services, being located primarily in the major cities. In addition, though cases are now supposed to be prosecuted by the Public Ministry even when the woman drops the charges, it is still common for the ministry not to follow through with the investigation (GGM, 2010a). Many have also noted that though personnel in these units are supposed to be trained with a “gender perspective,” women who report crimes continue to face discriminatory attitudes on the part of agents of justice such as being told to make up with their husbands, being blamed for dropping cases, and not having their testimony taken seriously. Thus not only are reported cases likely to result in impunity but many women simply do not report violations against them in the first place because of shame. Finally, perhaps the largest obstacle to justice is the fact that security measures are still very inadequate. I was repeatedly told by members of women’s organizations that a woman who decides to file a complaint is in danger of violent retribution by the aggressor and the security measures do little to protect her. This also serves as a major disincentive to use the new laws even if they have improved on paper.

A recent report in La Prensa Libre (González, Archila, and Orantes, 2011) provides further evidence that the laws have thus far been ineffective in curbing sexual violence. It says that, despite the new laws, the number of reported complaints of sexual violence is on the rise, up to six per day, and the actual number of cases is likely 70 percent higher because most crimes are not reported. According to the report, the majority of the victims are women (95 percent), the rest being males under 14 years of age. The report supports the arguments of women’s organizations, international human rights activists, and academics that new legislation can be made useful to victims only by removing the barriers that prevent victims from coming forward, applying the laws properly, and changing the sexist attitudes of the agents of justice. This has yet to be achieved in Guatemala. However, the flaws in the application of the new laws should not discount the important progress made by the women’s movement in challenging the idea that sex crimes are crimes against a woman’s honor and promoting the idea that those crimes are against her sexual liberty and security. These discursive changes suggest that women should have sexual liberty and that they should be protected for the mere fact of being human, not just in cases where they meet the cultural standards of appropriate female conduct.