Legislation against gender-based and domestic violence: from text to practice

There are several complementary legislations in Cuba today to address and judge gender and domestic violence, in its different forms and manifestations, present in the daily context of Cuban society today.

These are the cases, for example, of the National Program for the Advancement of Women, approved by Presidential Decree in 2021; the Comprehensive Strategy for the Prevention and Attention to Violence, also issued in 2021; the Procedural Code; the Criminal Procedure Law; the Criminal Code; and, most recently, the Family Code, approved by popular referendum on September 25, 2022.

However, as pointed out by specialists and experts, having legislation is an important step, but not enough to combat forms of family and gender violence. Hence, there are challenges for its implementation, which were recently addressed in a panel of experts at the José Martí International Institute of Journalism, entitled Challenges for the implementation of the legislation on violence in Cuba.

FAMILY CODE: BETWEEN GREAT ADVANCES AND CHALLENGES

The entry into force of the Code of Families was only the first step of a long road, which begins with its effective implementation, said Dr. Ana María Álvarez-Tabío Albo, full and senior professor of Family Law at the University of Havana, referring to the challenges to work this text of affections, modern and inclusive.

Given the situation, she said, that in our society there are those who have naturalized the facts of violence, mainly in the socio-family space, the new normative text bets on the incorporation of that perspective from the very moment it designs each of its institutions. “All of them are designed to promote equality, balance possible inequalities and produce concrete effects in the presence of violence,” she said.

Thus -exemplified the specialist- the new Code, in the matter of preventing and facing gender and intra-family violence, recognizes the rights of women in their diversity, with access to all family institutions without discrimination; it banishes sexist language and embraces an inclusive one; and it does not distinguish, neither in gender nor in sex, to have the right to enjoy all the alternatives of its articles.

He also emphasized that the text reinforces co-responsibility from a gender perspective, protecting both maternity, which is usually glorified, and paternity, which has always been disadvantaged; it offers the possibility of choosing the order of surnames; it authorizes gestation in solidarity, but with a more than reinforced protection for the pregnant woman, to avoid its commercialization; it eliminates adolescent marriage, and reinforces the economic value of work in the home, assumed mainly by women.

The Code also physically recognizes care as a right, makes it possible to agree on the economic regime of marriage, and establishes a strong protection against discrimination and violence, which goes beyond recognition and repudiation, and in every situation of violence, the Code produces a palpable legal effect.

For example, said Dr. Álvarez Tabío-Albo, violence will be cause for: the termination of the legal obligation to provide alimony, deprivation of parental responsibility, deprivation of inheritance rights, nullity of donation contracts, prohibition to have the custody and care of children; matrimonial nullity; impediment to be appointed guardian, or to remove a guardian already appointed, revocation of adoption, among others.

She added that with all these efforts, other legal transformations and social policies converge at the legislative level, in family matters, which in an integral manner will help to face the challenges we have in the area of women’s empowerment and the fight against expressions of discrimination and violence.

As an elementary challenge to implement this advanced and necessary norm in the Cuban context, the teacher pointed out the preparation and sensitivity to be able to detect the slightest expressions of gender-based violence, or in intra-family environments.

Putting into practice with effectiveness and impact the current legislation against violence presents many challenges, but also opportunities that can be used to make progress in this area.

Lisy Jorge Méndez, Protection Officer of the Office in Cuba of the United Nations Children’s Fund (UNICEF), explained, among the challenges, the insufficient visibility of the issue, even though progress has been made in terms of communication; the naturalization of violence in the daily context, and the need to generate evidence and data on the problem.

He also mentioned the need to raise awareness and transform social and gender norms that are at the root of violence; the urgency of training institutional actors, since implementing these norms necessarily implies that those involved strengthen their capacities to communicate violence and take on each of the challenges involved; and strengthening the capacities of mothers, fathers and caregivers.

Jorge Méndez also pointed out as challenges the strengthening and articulation of the protection services we have today in the country; to deepen in the digital context and its impact, as well as what to do with violence in these areas, and to evaluate the interventions and programs that are implemented.

On the opportunities that today open the way to fight against violence, the UNICEF Protection Officer highlighted the current context of normative updating, which she described as “the opportunity that we cannot miss, to place in the norms that are being updated or created the issues of violence in a strategic way,” she said.

She also mentioned the follow-up mechanism to the Program for the Advancement of Women, the increasing visibility of violence issues in the media, and the rise of respectful parenting issues, based on the Family Code.

IN FAVOR OF THE FIGHT AGAINST VIOLENCE

Dr. Tania de Armas Fonticoba, professor of Criminology at the University of Havana, spoke about the challenges and advances that have been made in the field of criminal law regarding violence.

The expert said that, although there are still challenges ahead, in the wide and deep legal reform currently being carried out in the country, gender violence was made visible as a concept in the Criminal Law, without inferences, without camouflage and without other terminology.

In turn, it can be used statistically as data for investigations; the victim reaches the status of procedural subject and has the right to be heard; the police must take the victim’s statement in conditions of security and privacy; there are 36 modifications related to gender violence: in mitigating circumstances, aggravating circumstances, in the aggravation of penalties, and the figure of sexual aggression appears.

Regarding the challenges for the implementation of criminal legislation on gender violence, the professor highlighted some such as the belief that criminal law will solve the phenomenon of violence, enhance prevention, involve all actors of society, implement and evaluate protocols for prevention, dismantle prejudices, patriarchal culture and structural cultural resistance.