12nov15 Peru's crc submission 71st session final

I. The Right to Safe and Legal Abortion Services for Victims of Sexual Violence

1. Peru’s Penal Code imposes prison sentences on victims of sexual violence who seek abortion services.

Abortion in Peru is criminalized under Article 114 of the Penal Code of 1924 (as amended, the “Penal Code”).³ The Penal Code provides a limited exception where abortion is necessary to prevent the death or serious injury of the woman (commonly referred to as “therapeutic abortion”), however no exception is available for pregnancies resulting from non-consensual sex or insemination, rape or incest.⁴ A woman who terminates a pregnancy through abortion may receive a prison sentence of up to two years.⁵ Since 1991, a reduced sentence of three months has been available for certain victims of rape, however to qualify for the reduced sentence the rape must be (1) outside of marriage and (2) reported to the police.⁶ Women who experience marital rape or who, as is common, fail to report their rape to police⁷, are subject to the full two-year penalty under the Penal Code. Doctors who perform an illegal abortion, regardless of the circumstances, face a prison term of one to four years.⁸

2. Criminalizing abortion in cases of sexual violence creates significant health risks for women and girls

Peru’s criminalization of abortion fails to respond adequately to hundreds of women who are victims of sexual violence every year, rather, it aggravates the serious health risks, including death, that can result from denying safe and legal abortion services for these victims. In accordance with the National Demographic and Family Health Survey (Encuesta Demográfica y de Salud Familiar -ENDES 2015-), 7.2% of the women who have been once coupled where obliged to have intercourse by their partners at some point during their relationships. This percentage increases significantly when speaking about Peruvian women who live in rural areas, such as Apurímac (17,8%), Cusco (12,5%) or Puno (11,4%)⁹. In 2014, the National Police of Peru reported at least 5,201 complaints in relation to sexual violence, from which 71% these, victims where underage. From these complaints, the prevalence of age of the victims was between 14 and 17 years old, followed by girls between 7 to 9 years old. ¹⁰

Peru has a high rate of sexual violence with 34,966 reported cases of rape between 2007 and 2014.¹¹ Eight in ten of those victims are minors.¹² According to information provided by the Peruvian Ministry of Health and the United Nations Population Fund (“UNFPA”), approximately 34% of girls between 10 and 19 who were victims of sexual violence become pregnant as a result of the episode experienced.¹³ Because children who are victims of sexual violence cannot legally access safe abortion services (and because, as discussed in Section II below, they cannot access emergency contraception), these children are forced to continue with their unwanted pregnancies, or must choose between having an unsafe clandestine abortion or the spectrum of health risks that come as a result of an adolescent pregnancy.

a. Health risks from unsafe abortions.

As repeatedly recognized by the World Health Organization (“WHO”), criminalizing abortion does not reduce the demand for the procedure, but instead creates legal obstacles which force women and girls to resort to unsafe procedures.¹⁴ In accordance to the researcher Delicia Ferrando, of Pathfinder International, approximately 376,000 unsafe abortions are performed each year in Peru.¹⁵ That is over 1000 abortions a day. Having an unsafe abortion is one of the five main causes of pregnancy-related death in Peru.¹⁶ In rural areas, almost half (44%) of women and girls who seek an abortion are at risk of complications, and for low-income women and girls who live in urban areas, almost two thirds (63%) reported to be at risk.¹⁷ Other social factors, such as a desire to hide the pregnancy from their family and an initial period of denial, result in young women and minors often seeking termination at an advanced stage in the pregnancy when complications are more likely to occur.¹⁸ Approximately 26.3% of Peruvian women hospitalized for unsafe abortions are under 24 years old.¹⁹

b. Health risks from carrying a pregnancy to term.

The health risks of unwanted pregnancies disproportionately affect girls and adolescents, who suffer severe physical and psychological consequences and are often not physically capable of carrying a pregnancy to term. The WHO reports that adolescent pregnancies are dangerous both for the mother and the child, and have adverse effects on the communities. Being pregnant for underage women poses significant physical health risks, including death, as it exposes women to higher risks of pregnancy complications such as anemia, malaria, HIV, and other sexually transmitted infections, postpartum hemorrhages, mental disorders and maternal deaths²⁰. As explained before, adolescent pregnancy also poses risks to the life and health of the born child, as risk of stillbirth and death are considerately higher among babies born to mothers younger than 20 years²¹.

The Penal Code’s exception for therapeutic abortions is intended to allow a pregnancy to be terminated when the life and health of the woman is at risk. However, due to the limited comprehension of the human rights protection in the health system, health providers and other state agents ignore or apply restrictively the therapeutic exception, limiting the access for women whose health might be at risk by a broad range of factors²². The interpretation given to the Penal Code sets a high bar, allowing therapeutic abortion only when “it is the only means to save the life of the woman or to avoid serious and permanent damage to her health.”²³ Women and girls should not be forced to wait until potentially life-threatening complications develop to access legal abortion services.

3. A national movement towards legalization of abortion in cases of rape and sexual violence is gaining support in Peru.

Despite Peru’s long history of restrictive reproductive rights, there is a growing national movement that supports expanding access to abortions in cases of rape and sexual violence. In June 2014, the Peruvian Government approved a national protocol to standardize accessibility to therapeutic abortion, spurred to act by the case of K.L, presented to the CCPR²⁴ and the case of L.C., presented to the Committee on the Elimination of Discrimination against Women (“CEDAW Committee”).²⁵ However, the government has recognized the lack of access to safe therapeutic abortions despite their legality and enacted a national protocol.²⁶ Furthermore, as the protocol is designed for cases when the life or health of the woman is at risk because of the pregnancy it has being insufficient when providing access to abortion for victims of sexual violence.

In May 2015, a bill that proposed the legalization of abortion in the case of sexual violence or artificial insemination without consent, which had the support by women’s rights groups and the signatures of 64,200 citizens²⁷, was tabled by the Peruvian Congress due to the strong opposition by the Catholic Church and conservative politicians.

In October, 2016, a new bill was proposed to the Peruvian Congress to reform the Penal Code to decriminalize abortion in cases when “the pregnancy is the result of an act of sexual violence, forced artificial insemination or forced embryo transfer”.²⁸ This Bill has been supported by leading human rights organizations and activists in the country.²⁹ The bill reaffirms that “all the institutions of the public and private health system shall comply with the obligation of providing services related to the abortions permitted under the law”,³⁰ and considerate the creation of an annual report from the Ministry of Women to the Congress about the implementation of a National System to Prevent, Sanction and Eradicate Violence against Women.³¹ Unfortunately, civil society organizations have a general perception that the Congress will not approve the bill. A recommendation of the CCPR that supports the importance of decriminalizing abortion in cases of sexual violence – following the previous recommendations of other treaty bodies like the CEDAW Committee in the case L.C v. Perú³²- it’s decisive in this context.

The upcoming consideration of the Bill by the Peruvian Congress is a significant opportunity to achieve meaningful change in the reproductive rights of Peruvian adolescents, particularly in cases of rape and sexual violence.