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Colombian Woman's Case Could Establish Domestic Violence as Basis for Refugee Status

Though political dissidents and persecuted minorities are recognized under international refugee law, women who don't qualify as such are afforded few special protections.

by Samuel Oakford
Feb 6 2015, 7:05pm

Photo via Flickr

Mariela Cabrera Ponce's husband Vicente tried to kill her in December 1985. He locked the door to her room, doused their small house in the Colombia city of Cali with gasoline, and lit it on fire. Vicente later told police that he had spilled the gas by accident. They never investigated the fire, and Vicente was never charged with a crime.

The couple married and moved to Cali in 1973. Vicente soon became controlling and violent, particularly after Mariela walked in on him having sex with his mother. She told VICE News that he raped her and repeatedly threatened her life over the years that followed.

"He would hit me and hit me, he left me always with bruises," Mariela recalled. She wanted to leave, but like many victims of domestic abuse, felt hopelessly trapped.

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Soon after the arson, Mariela finally managed to divorce Vicente, but he continued to menace her, even paying men to call and tell her that they would cut out her tongue. The Colombian police never really investigated her complaints, and never detained him for more than 15 days.

"In reality, the authorities do nothing for women," she said. "They don't do anything until you're dead."

Mariela fled to Ecuador in 2001, where she lived in fear of being deported for years before filing for refugee status. Her story is harrowing by any standard, and the neglect of the authorities alarming. But courts in Ecuador, where the 65-year-old woman has lived and worked menial jobs for 14 years, disagree. They have refused to grant her a permanent visa after determining that she doesn't qualify under the UN's Convention on the Status of Refugees, which has guided asylum law for more than 60 years.

'In contexts where the state is unable or unwilling to protect women and give them a normal life without being threatened or killed, they should be offered refugee status.'

Last week, lawyers from Loyola Law School's International Human Rights Clinic and the refugee group Asylum Access Ecuador presented her case to the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW), which governs a treaty of the same name. The legal team lodged a complaint against the Ecuadorian government contending that because Colombian authorities would not or could not stop the crimes committed against her, Mariela should be afforded refugee status by the government in Quito. In not doing so, it alleges, Ecuador is violating the CEDAW treaty.

UN human rights officials are currently reviewing the complaint. If accepted, Ecuador will have six months to reply. Such petitions often take years to conclude, particularly in cases such as Mariela's, which could set an international precedent.

"In recent years, the problem of domestic violence has emerged from being something that happened but that people were not talking about, to being discussed in the public sphere," Cesare Romano, a Loyola law professor working on the case, told VICE News. "In contexts where the state is unable or unwilling to protect women and give them a normal life without being threatened or killed, they should be offered refugee status."

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Several countries, including Australia, Canada, and the United Kingdom have already recognized as refugees women who have fled domestic violence. In April of last year, the United States Board of Immigration Appeals ruled that a woman from Guatemala whose husband beat and raped her qualified as a refugee under US law, opening the door for other battered Guatemalan women to seek asylum.

Mariela has reason to be hopeful. In November, the CEDAW committee recommended incorporating gender as a factor in granting refugee status, something that the original UN convention on refugees neglected to stipulate. Because the refugee convention, unlike other UN treaties, has no committee to issue guidance, groups like Asylum Access are forced to bring cases via other routes — in this case through the CEDAW committee.

"What is missing here is a system to oversee the refugee convention itself," James Hathaway, director of Michigan Law School's Program in Refugee and Asylum Law, told VICE News. "If we had that, we wouldn't be needing to do this through the back door. It's like shoehorning something in where it can fit, but it's not perfect."

Hathaway said that women in domestic violence situations ought to be, and in some cases have been, recognized as a persecuted "social group" — one of the five grounds for seeking asylum under the refugee conventions. The others — race, religion, nationality, or political opinion — do not explicitly offer women special protections.

According to government surveys, nearly half of women in Colombia experience violence at the hands of their partner. Many of them are already vulnerable, having been displaced by a long running conflict between the government and leftist Revolutionary Armed Forces of Colombia (FARC) guerrillas. Thousands of cases go unreported, viewed largely as matters that should be settled privately, while those that are brought to the attention of authorities rarely lead to arrests.

In 2011, the Bogota newspaper El Tiempo calculated that in the first eight months of that year, only 23 aggressors were ever sentenced out of more than 7,000 complaints of maltreatment filed by women in the city.

Because Colombia, like most South American countries, isn't generally thought of as a place where women are systematically persecuted, international attention often focuses elsewhere, according to Romano.

"It's not the case of Afghanistan during the Taliban, where women were openly repressed," he said. "It is a country like many, where women suffer. The difference is Colombia is not willing or able to protect them."

Mariela's complaint is seen as a test case — if Ecuador is found to have violated international law, women fleeing from relentless domestic violence around the world could find themselves entitled to protected legal status as refugees.

Asylum Access Ecuador estimates that 98% of those seeking asylum in Ecuador come from Colombia. Advocates concede the country has made some improvements in how it handles its own domestic violence cases, though it hasn't extended those advancements to the consideration of female refugees.

"There are still many, many steps to go to protect women in the refugee context," Estefania Polit, strategic litigation coordinator at Asylum Access Ecuador, told VICE News.

There were more than 40 cases of gender-based violence among refugees seeking asylum in Ecuador between July and September of last year. Because many women don't report abuse out of fear, the actual figure is likely much higher.

"The committee has already resolved cases about gender-based violence, but the difference in this case is we are talking about domestic violence as a form of gender persecution," said Polit. "So we argue this discrimination is a valid cause for seeking asylum."

Follow Samuel Oakford on Twitter: @samueloakford
Photo via Flickr