Latin American Law Confronting Codified Sexism Chile Last

Latin American Law Confronting Codified Sexism Chile Last updated 08 Nov 10

Schedule • • • 21 -Nov Legal education in Lat. Am 23 -Nov VIRTUAL FRIDAY 28 -Nov Oquendo 30 -Nov Assignment 28 (corporate law) 5 -Dec Visit with Prof Oyarce (Peru) 7 -Dec Visit with Prof Reyes ? ? ?

Today’s topics • Sexism in Chilean civil code (1857) – Presumption against paternity – father must confess – Illegitimate children come from “depraved ways” • Reform of Chilean civil code (1998) – Pleading burden in paternity suits: “sufficient antecedents to render alleged facts plausible” • Baez Sierra: mere pleading of paternity insufficient • Espinoza Gonzalez: attaching mother’s affidavit insufficient – Presumption for mother in child custody suits • Carracedo Alvarado: “best interests of child”

Value of knowing other legal systems • • Model for borrowing Gain perspective Discover truths Impose / power Legalized sexism?

Chile’s classic” sexism … Article 271: “The alleged child’s action [to be considered natural descendant of father] must be based on a public or private instrument in which the father or the mother confesses to paternity or maternity. ” How could merely carnal, dubious, and random intercourse, which can in no way guarantee the faithfulness of the degraded woman, establish legitimacy if there has been no corroboration by the father? Andres Bello (1781 -1865)

Some Chilean Data 1990 study (Chile) • "women should obey their husbands" M – 55% agree W – 40% agree • "men should participate more actively in housework so that women are able to work“ M – 70% agree W – 92% agree • Divorce and separation rates – 0. 38 divorces per 1, 000 persons (cf US = 5 per 1000) – 8 separations per 1, 000 persons (highest in Lat. Am) • Of nation's 748 judges – 48% women (1991)

Reform of Bello’s code … More than 10% of Chilean babies do not have legally recognized fathers and half of children are born out of wedlock

Civil Code (rev. 1998) Article 196: “The judge shall accept the complaint [regarding an investigation into paternity or maternity] only if it includes sufficient antecedents to render the alleged facts plausible. ”

Meet pleading standard? Baez Sierra (Chile Sup Ct 2002) – Birth certificate – Complaint allegations Espinoza Gonzalez (Chile Sup Ct 2002) – Birth certificate – Document verifying father’s appearance before Juvenile Court – Notarized sworn statement of mother

Baez Sierra Obviously, such an assessment should not amount to an a priori pronouncement on the evidence that will be introduced and examined at trial; yet it should not involve the acceptance of any antecedent whatsoever or of any unfounded affirmation by the Antecedent: plaintiff either. According to the law, the antecedent must official copy make plausible or acceptable the facts that underlie the complaint. In other words, it must directly bear upon the of the birth account that the plaintiff offers to support of her claim. certificate We cannot agree that she thereby renders her complaint plausible. Otherwise, we would have to accept as plausible any complaint accompanied by this kind of document. This conclusion does not comport with the statute's mandate. Espinoza Gonzales Antecedent: birth certificate and notarized sworn statement [student]

Complaint How prove paternity? [allegations] Changed attitudes Father’s Birth certificate sworn confession Winslow Taylor Mother’s affidavit Witness affidavit DNA tests (2005 law) Uniform Parternity Act NCGS 49 -14 “Clear, cogent, convincing evidence” NCGS 8 -50. 1 “criminal/civil case … blood tests … evidence … taxed as costs”

NCGS Chapter 49 (Bastardy) § 49‑ 14. Civil action to establish paternity. (a) The paternity of a child born out of wedlock may be established by civil action at any time prior to such child's eighteenth birthday. (b) Proof of paternity pursuant to this section shall be by clear, cogent, and convincing evidence. (f) When a determination of paternity is pending in a IV‑D case, the court shall enter a temporary order for child support upon motion and showing of clear, cogent, and convincing evidence of paternity. For purposes of this subsection, the results of blood or genetic tests shall constitute clear, cogent, and convincing evidence of paternity if the tests show that the probability of the alleged parent's parentage is ninety‑seven percent (97%) or higher. If paternity is not thereafter established, then the putative father shall be reimbursed the full amount of temporary support paid under the order. (g) Invoices for services rendered for pregnancy, childbirth, and blood or genetic testing are admissible as evidence without requiring third party foundation testimony and shall constitute prima facie evidence of the amounts incurred for the services or for testing on behalf of the child.

What grade does court opinion deserve?

Baez Sierra (2002) Preview: Procedural history Considerations: I. III. IV. V. VIII. Plaintiff argues Issue: pleading standard? Purpose of pleading standard Dictionary definitions of code terms Birth certificate not enough Holding: judge could not allow action Procedure OK: ex proprio motu Reject cassation appeal Resolution: Reject cassation appeal

Baez Sierra (2002) Preview: Procedural history Considerations: I. III. IV. V. VIII. Plaintiff argues Issue: pleading standard? Purpose of pleading standard Dictionary definitions of code terms Birth certificate not enough Holding: judge could not allow action Procedure OK: ex proprio motu Reject cassation appeal Resolution: Reject cassation appeal

Sources of law … • • Constitution Legislative history Jurisprudence Doctrine Custom Public policy

Paternity and protection of children … Constitution vs. international Treaty Jim Rodden

Children from Fatherless Homes Account for: 63% of youth suicides US Dept. of Health & Human Services, Bureau of the Census 71% of pregnant teenagers US Dept. of Health & Human Services 90% of all homeless and runaway children 70% of juveniles in state-operated institutions come from fatherless homes U. S. Dept. of Justice, Special Report, Sept 1988 85% of all children that exhibit behavioral disorders Center for Disease Control 80% of rapists motivated with displaced anger Criminal Justice & Behavior, Vol. 14, p. 403 -26, 1978 71% of all high school dropouts National Principals Association Report on the State of High Schools 75% of all adolescent patients in chemical abuse centers 85% of all youths sitting in prisons Rainbows for all God`s Children Fulton Co. Georgia jail populations, Texas Dept. of Corrections 1992

Child custody – presumption, standard …

Decide the case … Alexis Angelino 1988 – born to married parents 1989 – goes to live with father 1996 – mother sues for custody 1996 – Juvenile Court accepts complaint 2000 – Appeals Court affirms 2001 – Juvenile Court grants custody to mother On appeal: • • • Evidence of mother’s domestic violence Psychiatric reports on mother’s mental health Mother handed over Alexis due to her immaturity Father has emotionally abandoned Alexis expresses preference for father

Art. 225 “… the mother will take personal charge of the children’s care … both parents may mutually agree to assign personal care of one or more of the children to the father … the judge may designate the other parent to care for the child, if the minor’s interest so demands in cases of abuse, neglect, or other reasonable cause. ” Compare to prior Chilean standard? Jim Rodden Is this “best interests of child” standard?

End

More Chilean Data 2005 study (Corporation Humana and the University of Chile’s Institute of Public Affairs) • 87% of women felt that they suffered discrimination • 95% of women believe that women face discrimination in the labor market • 67% believed that they faced discrimination in politics [consider Michelle Bachelet]. Bianca Hudson Rich Mc. Pherson

Convention on the Rights of the Child GAL ~ SENAME Why is the US not signatory? Melinda Hanzel

Bogota, Colombia (average temperature: 50 -65 F) 4 Nov 07