Amicus Curiae Brief to the Constitutional Court of Colombia
SAHR submitted an amicus curiae brief to the Constitutional Court of Colombia in May 2021, aiming to contribute to the development of jurisprudence on sexual violence in universities.
Summary of the case
Professor Carlos Antonio Julio Arrieta teaches in the Mathematics department at the Francisco José de Caldas District University in Bogotá DC, Colombia. Though several students of Professor Arrieta’s reported unfair, discriminatory, and inappropriate treatment; sexual harassment in class and through late-night WhatsApp messages; and academic persecution, the University failed to take action to protect students or discipline Professor Arrieta.
Students appealed to the Ministry of Education, the Attorney General's Office, and the Personería de Bogotá. When these institutions also failed to investigate their reports, the students filed a protection action with the Seventh Municipal Court for Small Labor Causes, seeking to restore their fundamental rights to physical, mental and moral integrity; equality and non-discrimination; the free development of the personality; due process; education; and a life free of violence. The Court declared the protection action inadmissible in June 2020, holding that the University, the Attorney General's Office, and the Personería de Bogotá had indeed taken the necessary steps to address the students’ claims. The students contested the decision, but the Thirty-seventh Labor Court of the Circuit of the Judicial District of Bogotá DC confirmed the decision of first instance in July 2020.
Objectives of the amicus
Taking the case against Professor Arrieta as its focus, the amicus aims to contribute to the development of jurisprudence on the right to live a life free from violence and institutional obligations to prevent, investigate, and punish violations of this right. It begins by framing sexual harassment as a manifestation of gender-based violence, explaining its inextricability from patriarchal culture and highlighting the prevalence of sexual harassment in universities. The amicus then examines applicable international standards in cases of sexual harassment, with a particular focus on the Americas. Finally, the amicus underscores the necessity of institutional due diligence in educational settings and the limits of university autonomy in cases of gender-based violence.
Key findings
The amicus highlights several key findings regarding gender-based violence in universities:
Sexual harassment as a manifestation of gender-based violence
The amicus characterizes sexual harassment as an asymmetric form of violence rooted in the asymmetrical gender relations of patriarchal culture. Sexual harassment persists in part because, in patriarchal societies, it is often considered a normal and inevitable outcome of human nature. To clarify how asymmetric gender relations contribute to the perpetuation of sexual harassment, the amicus examines two concepts: the “right not to know” and “cultivated ignorance.”
With a particular focus on South and Central America, the amicus also examines the prevalence of sexual harassment in universities. Studies conducted in Peru, Mexico, and Colombia indicate that despite the alarming regularity of sexual and gender-based violence in universities, perpetrators are rarely punished. The situation in the Americas at large “seems to be reproduced in the case of the Francisco José de Caldas District University,” the amicus points out, where students did not receive redress from the University or state entities for their complaints of sexual harassment despite their persistence.
Applicable international standards in cases of sexual harassment
The amicus provides a thorough overview of the international jurisprudence on the right to live a life free of violence, with a particular focus on sexual harassment, examining how different countries define and sanction sexual harrassment. Surveying international standards for cases of sexual harassment, the amicus cites international conventions and declarations including the Convention on the Elimination of All Forms of Violence Against Women, the Beijing Declaration, the Beijing Platform for Action, the International Labor Organization (ILO) Employment and Occupation Equality Convention, the ILO Indigenous and Tribal Peoples Convention, the ILO Violence and Harassment Convention, and the Convention of Belém do Pará.
The amicus points out that, having ratified the main human rights treaties, including the Belém Do Pará Convention, the State of Colombia has an obligation to act in accordance with its Article 7:
“(t)he States Parties condemn all forms of violence against women and agree to adopt, by all appropriate means and without delay, policies aimed at preventing, punishing and eradicating such violence and to carry out the following : b. act with due diligence to prevent, investigate and punish violence against women; and the obligation to facilitate access to suitable and effective judicial remedies.”
In the case of the Francisco José de Caldas District University, acts of sexual harassment occurred in the complicit silence of the University and the other state entities to which students appealed.
Moreover, the amicus points out, the State of Colombia has an obligation under the Belém do Pará Convention to ensure “the investigation and compilation of statistics and other pertinent information on the causes and frequency of violence against women, in order to evaluate the effectiveness of the measures to prevent, punish and eliminate violence against women and to formulate and apply the necessary changes” (article 8.h). The absence of consolidated, accurate national-level statistics on violence against women in Colombia constitutes a failure to meet this obligation.
Due diligence in cases of sexual harassment in educational settings and the limits of university autonomy in cases of gender-based violence
The amicus also examines the jurisprudence on the due diligence obligations that arise from the right to live a life free of violence. With regard to cases of sexual harassment in universities, the amicus points out that “The Ministry of Education is also bound by international and constitutional obligations regarding gender-based violence in educational settings and as such, it should play a more active role in preventing gender-based violence in these settings.”
Finally, the amicus highlights the role universities play in perpetuating institutional violence, arguing that the principle of university autonomy does not excuse universities from fulfilling their obligations in cases of sexual violence.
Recommendations
In light of these findings, SAHR recommended that the Constitutional Court consider:
Adopting a decision that protects the fundamental rights of students to physical, mental and moral integrity; equality and non-discrimination; the free development of the personality; due process; education; and a life free of violence.
Declaring that the University and the other entities in charge of the investigation and punishment of the facts have not complied with their due diligence duties to prevent, investigate, and punish gender-based violence.
That it is necessary that an effective investigation of the denounced events be carried out by the Office of the Attorney General of the Nation in order to guarantee access to justice for the victims and avoid the repetition of acts of gender-based violence and sexual harassment in education.
That the District University has a constitutional obligation to adopt protective measures in its favor in order to avoid scenarios of revictimization and / or retaliation, as well as to carry out a diligent and effective investigation that leads to the sanction of the person directly responsible and others who failed to take action.
Examining how the University’s failure to implement its "Protocol for the prevention and care of cases of gender-based violence and sexual violence of the Francisco José De Caldas District University” violated the fundamental rights of students, and calling upon the University to take specific actions to apply the protocol effectively.
Issuing a ruling defining the obligations of educational institutions and specifically universities in cases of gender-based violence and sexual harassment, which may include formulating mechanisms to diagnose and analyze sexual harassment, carrying out campaigns and training workshops to prevent and raise awareness of sexual harassment, and designing clear and effective protocols for the care, monitoring, and punishment of sexual harassment.
Designating a deadline for the Ministry of Education to comply with the order provided in Sentence T-239 of 2018; defining standards for addressing cases of sexual harassment in higher education institutions; and establishing the specific duties of higher education institutions in cases of sexual and gender-based violence, school bullying, discrimination, abuse of power, and arbitrariness.
Contributing to the creation of a strategy for the prevention of gender-based violence and discrimination based on sexual orientation and gender identity in education by examining:
The negative impacts of the absence of easily accessible public statistics on sexual and gender-based violence in the educational field, ignorance of the formal channels of attention to these behaviors, and the institutional culture of impunity for cases of sexual harassment.
The extent to which higher education institutions have implemented care protocols in cases of gender violence and sexual harassment, and the extent to which these protocols comply with international and constitutional standards.
The passive or non-existent role of the Ministry of Education in overseeing actions to prevent gender-based violence and the implementation of protocols for dealing with cases of gender-based violence, discrimination, and sexual harassment in educational institutions.
The effects of the lack of an articulated public policy that establishes programs, strategies, and guidelines for transforming gender stereotypes and developing non-violent masculinities in educational institutions.