Tuesday, December 18, 2018
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Discrimination is criminal
Louisa Reynolds
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Despite change to Penal Code, poor, indigenous Guatemalans lack resources to bring discrimination cases to trial.

For two years, Marta, an illiterate, 43-year-old Maya Kaqchikel woman, worked as a housemaid and was abused by her employers.

The non-indigenous family she worked for in San Lucas Sacatepequez, around 35 kilometers from Guatemala City forced her to sleep in a tiny wooden shack with no door among garden tools and buckets filled with dirty laundry, said Marta, who asked that her name be changed, fearing reprisals from her employers.

They barred her from using the family bathroom and she was forced to bathe in the yard, said Marta, originally from the highland department of Totonicapan.

To add insult to injury, her employer´s husband regularly subjected her to a torrent of verbal abuse. “You´re useless. You´re a dirty woman. You ought to wash and be grateful for the fact that we´ve given you a job,” were some of the remarks that she had to endure on a daily basis, she said.

After quitting her job last year, Marta decided to seek help from the Defensoria de la Mujer Indigena, known by the acronym Demi, a government-sponsored office tasked with defending indigenous women´s rights.

More than 40 percent of Guatemala´s 14 million people consider themselves indigenous, though some experts believe the percentage may be as high as 60 percent.

According to Demi lawyer Azucena Socoy, such cases are rarely reported because it is considered “normal” for indigenous domestic workers to be forced by their employers to abandon their traditional clothing, speak Spanish, and suffer such abuse and degradation.

Legislation on paper
In October 2002, Congress added a new article to the Penal Code that classifies various forms of discrimination, including racism, as a crime.

“Discrimination will be understood as all forms of exclusion, restriction or preference based on factors such as gender, race, ethnic origin, age, religion, economic status, health, disability, marital status or any other circumstance that prevents a person or group of people from exercising their legally established rights, including the right to exercise customary law, enshrined by the Guatemalan Constitution and international treaties on Human Rights,” says the law.

But discrimination is still a common feature of daily life for Guatemala´s indigenous population.

“The law has many loopholes that make it difficult to prove discrimination cases in court,” said Dilia Palacios, the Presidential Commissioner Against Racism and Other Forms of Discrimination, or Codisra.

The justice system requires proof that the victim was subjected to racist abuse, such as the testimony of a witness, which is extremely difficult in cases such as Marta´s and those of other domestic workers.

“First of all, you need to persuade the Attorney General´s Office that a crime has been committed and that an investigation should be opened. Discrimination needs to be proven; otherwise the authorities say that it´s merely a ´problem´ that needs to be solved through conciliation”, says Xiomara Vásquez, a legal advisor for Codisra.

In cases such as Marta´s, victims can rarely obtain proof or the testimony of a witness, making it impossible to bring the perpetrators to trial. “You need a videotape to record what someone did or said which is complicated,” says Socoy.

Another hurdle is that for a discrimination case to be tried, it must be tied to another crime, she says, as the Attorney General´s Office does not consider discrimination to be a serious offence.

Cristian Otzin, another legal advisor for Codisra, adds that the maximum penalty for discrimination is a three-year prison sentence.

According to Vásquez, the rare cases that have reached the courts have required the intervention of experts on indigenous culture – known as “peritaje cultural” – which brief the judge on the cultural background of the victim and the importance of certain words or actions.

However, the cost of this intervention is usually around Q10,000 (US$1,200) and ought to be met by the Attorney General´s Office, although the authorities often refuse and demand that the victim should pay for this. Considering that the minimum wage in Guatemala is Q1,800 ($225) a month, it is usually impossible for victims to meet the cost, so in most of the cases that have been successfully tried, the victims have had financial and legal support from a human rights nongovernmental organization or a government body such as Codisra.

Landmark cases
“The law imposes many hurdles for such crimes to be brought to trial”, stresses Socoy.

According to Palacios, “there is still much to be done to raise awareness about discrimination among the judiciary and society at large”.

However, a number of landmark cases are a beacon of hope for victims of racial discrimination like Marta. Palacios quotes two recent cases that were successfully brought to trial under the law against discrimination with the support of Codisra such as that of a domestic worker who was forced to abandon her traditional Maya Kiche clothing and wear a uniform, and a school girl from the highland city of Quetzaltenango who was also forced to abandon her native attire to attend school.

For Mayan political scientist Álvaro Pop, these cases illustrate that even though more needs to be done for the impact of discrimination to be understood and taken seriously by the authorities, “more has been achieved over the past two decades than over the past 200 years”.
–Latinamerica Press.


Legal requirements impede many indigenous workers from reporting on-the-job abuse. (Photo: Louisa Reynolds)
Latinamerica Press / Noticias Aliadas
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