[eng] Hillary Hiner - New Chilean Constitution and Gender Violence

1. All women, girls, adolescents and persons of sexual and gender diversity and dissidence have the right to a life free of gender-based violence in all its manifestations, both in the public and private spheres, whether it comes from private individuals, institutions or agents of the State.
 2. The State shall adopt the necessary measures to eradicate all types of gender-based violence and the sociocultural patterns that make it possible, acting with due diligence to prevent, investigate and punish it, as well as to provide attention, protection and comprehensive reparation to the victims, especially considering the situations of vulnerability in which they may find themselves (Political Constitution of the Republic of Chile, 2022, Article 27, p. 12).

Those who have been punished for sexual harassment or any type of abuse will not be able to access competitive funds for research. Actions and not just words. Our government is committed to an equality agenda (Flavio Salazar Onfray, Minister of Science, Technology, Knowledge, and Innovation of Chile, via Twitter @DrFSalazar, August 17, 2022).

Since the 1980s in Chile feminist and women's movements have been fighting against violence. Since 2015 and the growing mobilizations of students in universities denouncing sexual harassment by professors, which led to the Feminist Tsunami of 2018, we have also observed how gender violence in higher education has become an unavoidable issue within the feminist movement. As part of the Red de Historiadoras Feministas (RHF) [Feminist Historians Network], we have been actively fighting to end violence in our study and research environments. The RHF was founded in 2017, in large part due to multiple allegations of sexual harassment that surfaced in History departments across the country.  

In 2019 the RHF became aware of a serious problem related to this issue and published a column, signed by the Network, and naming the case of the historian involved, Milton Godoy. Although this column was written by the RHF, this historian subsequently filed a criminal complaint against me for libel. This lawsuit is still open and is scheduled for December (see: https://redhistoriadorasfeministas.cl/2021/03/12/carta-publica-sobre-querella-criminal-por-injurias-contra-la-red-de-historiadoras-feministas/).

To date, we have made important advances in terms of sexual harassment and gender violence in higher education and research. An important milestone was Law Nº21.369, on Sexual Harassment in Higher Education, proposed by the Network of Women Researchers and enacted in September 2021. Also, at the institutional level, there have been different initiatives, norms, protocols, and programs implemented, largely due to demands and pressures made by students, academics and researchers.  

The Chilean National Agency for Research and Development (ANID) has also taken action on the matter, first through implementing a gender policy in January 2020, and, subsequently, through studies such as, "Evaluation of gender gaps in the research trajectory," done by the Undersecretary of Science, Technology, Knowledge and Innovation and published on its website in February 2022. More recently, the same Minister of Science, Technology, Knowledge and Innovation (CTCI), Dr. Flavio Salazar, sent a strong signal when he tweeted that those sanctioned for sexual harassment will no longer be able to receive public funding via competitions (see second quote of the epigraph). There is still a long way to go, but we are definitely in a different moment compared to what existed ten or twenty years ago in Chile.

What does all this have to do with the New Constitution? Well, quite a lot.  In January 2022, the Chilean Network against Violence against Women, together with more than forty feminist organizations, such as the Coordinadora 8 de marzo, the Association of Feminist Lawyers ABOFEM, Ni Una Menos Chile, among others, presented the Popular Initiative of Norm Nº50.754, on the right to live a life free of violence. According to the Chilean Network against Violence against Women (http://www.nomasviolenciacontramujeres.cl/) this initiative got 19,501 online supports, and as such, it was a priority to be worked among feminist constituents. In April 2022, what is now Article 27 (see first quote of the epigraph) passed the plenary of the Constitutional Convention and was approved. It is important to note that the definition of gender-based violence includes violence that occurs "in all its manifestations, both in the public and private spheres, whether it comes from private individuals, institutions or agents of the State".  This is important, since clearly higher education and research institutions have been particularly marked by gender violence and, at the same time, have also been accomplices and even cover-ups of this same violence. 

In conjunction with this, the New Constitution, written by a parity convention and with a large number of feminists, also includes substantive equality and measures against gender-based discrimination and violence in a cross-cutting manner.  This is seen, for example, in Articles: 6 (parity and substantive equality of representation), 10 (diverse families), 22 (against forced disappearance), 23 (against banishment, relegation and exile), 24 (right to clarification on human rights violations and crimes against humanity; truth, justice and comprehensive reparation for victims of human rights violations), 25 (against discrimination), 37 (non-discrimination in the National Education System), 40 (comprehensive sexual education to prevent violence), 44 (gender approach and non-discrimination in the National Health System), 46 (equitable working conditions and salaries; non-discrimination in the workplace), 49 (recognition of domestic and care work as an economic activity; co-responsibility), 51 (decent housing and creation of shelters for survivors of violence), 52 (violence-free cities and settlements), 53 (right to live in safe and violence-free environments), 65 (right to identity and integrity of indigenous peoples), 61 (gynecological-obstetric violence), 63 (prohibition of slavery, forced labor, servitude and trafficking), 64 (gender identity), 89 (violence-free digital spaces), 93 (cultural rights of the Chilean Afro-descendant tribal people), 172 (non-election to public office due to violence), 242 (violence against rural women and girls), 297 (gender and parity in the police), 299 (gender and parity in the armed forces), 312 (gender and parity in the National Justice System), and 350 (parity in autonomous bodies).  

As can be appreciated with this small summary, it is abundantly clear that the New Constitution is a Constitution that takes charge of gender discrimination and violence and, moreover, focuses it in a way not seen before in Chilean Constitutions. In that sense, the way of dealing with gender violence in the Constitution is really very novel and very necessary, standing out, in addition, at regional and global level for its intersectional feminist approach.

Finally, beyond this, does the New Constitution also have something to say about sexual harassment in higher education and research? Would it protect us, for example, against new complaints of harassers in our environments, when they apply for projects or even against the issue of the extension of violence through the filing of lawsuits for slander or libel when we denounce? I think so, although evidently not everything goes through the Constitution and we could make a lot of progress with better laws and public policies: a comprehensive law on gender violence, amendments to laws on slander and libel, better internal protocols of universities and research institutions on violence (modifying the bases for applications to competitive funds, for example, very much in line with what Minister Salazar proposes, mentioned above), and also more policies aimed at closing the gender gaps in research. But where do we see connections between these proposals and the New Constitution?

In the first instance, there is evidently a deep connection with the New Constitution and the struggles against gender violence, precisely because of Article 27, about which we have already spoken. In addition, the New Constitution explicitly promotes academic freedom (Article 27, Paragraph 2), and furthermore, "The entrance, permanence and promotion of those who study in higher education shall be governed by the principles of equity and inclusion, with particular attention to historically excluded and special protection groups, prohibiting any type of discrimination" (Article 27, Paragraph 5).  This obviously applies for women and also for LGBTQ+ people and, taken together, both this article and Article 27 provide us with a solid framework when it comes to working well with sexual harassment and gender-based violence within higher education.
In conjunction with academic freedom, the New Constitution also explicitly guarantees freedom of expression and opinion (Article 82, Paragraph 1). This is not a minor issue considering the restrictions to freedom of expression that existed during the dictatorship and post-dictatorship, made with the 1980 Constitution and whose examples are abundant and well remembered (perhaps the most famous case of the post-dictatorship being the prohibition to exhibit the movie The Last Temptation of Christ in 1988, which was renewed in 1997 and reached the Inter-American Court of Human Rights, IACHR, which ruled against the State of Chile). Within the following article, Article 83, it is also made explicit that "The State shall respect freedom of the press" (Article 83, Paragraph 2).

Finally, and to close, it is important to remember that the case of Milton Godoy is not only a case of freedom of expression or freedom of the press, but, in the first and last instance, it has to do with a case of sexual harassment presented at the Universidad Academia de Humanismo Cristiano in 2015. In that sense, there was an affected by this case, an affected who, like thousands of other Chilean women, saw her academic life, but also professional and personal, deeply affected by this situation. The State owes her, as well as thousands of other women like her, survivors of gender violence, a deep and comprehensive reparation, as guaranteed in Article 27, paragraph 2.  

Today we live in a historic moment, with the possibility of approving a New Feminist Constitution. This Constitution would provide us with important legal and political frameworks, frameworks that could open up new possibilities and new horizons in our quest to live lives free of violence. It would also be the culmination of decades of struggles and mobilizations against gender violence, carried out by feminists, diverse women and LGBTQ+ people. Because we want to be alive, this September 4 we will vote Apruebo! [I approve].

* Hillary Hiner, Associate Professor, School of History, Universidad Diego Portales, Chile; Coordinator (central zone), Red de Historiadoras Feministas de Chile [Network of Feminist Historians of Chile]. Author of Violencia de género, pobladoras y feminismo popular [Gender violence, suburban women and popular feminism] (Tiempo Robado, 2019) and co-author of Históricas. Movimientos feministas y de mujeres en Chile, 1850-2021 [Historical women. Feminist and women's movements in Chile, 1850-2021] (LOM, 2021).

[1] Translated from the Spanish by Andrea Balart.

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