Cuban Judge on Domestic Violence

By Veronica Vega

HAVANA TIMES — After writing a post titled “The Serious Issue of Machismo”, I decided to approach a well-known attorney and former judge at the Tribunal Provincial Popular de la Habana in Centro Habana. She agreed to grant me an interview, provided she could remain anonymous (for she fears losing her current job). I will, thus, refer to her simply as Laura.

HT: Is domestic violence considered a crime in Cuba, technically speaking?

Laura: It is not typified as a crime in the Penal Code, no. It falls under a broader category which refers to a person’s injuries. That is to say, a case in which a person assaults another, where no distinctions with respect to gender or age are made or the circumstances which led to the injuries specified. These crimes are divided into cases involving less serious injuries, which of course entail less severe sanctions (up to a year in prison) and more serious ones, which entail prison terms anywhere from two to five years.

HT: What about sexual harassment?

Laura: That’s considered a crime, but it is referred to as a “sexual offense” or as “sexual abuse”.

HT: What if there is no “abuse” per se, what if, let’s say, it’s only a case of harassment or psychological provocation? Is that typified by Law?

Laura: No. If the person stalks you, for instance, or, say, yells at you in public, the Law already considers it a form of abuse, that is, a sexual advance which is not reciprocated.

HT: What if threats are involved?

Laura: Threats constitute a different crime altogether. And they are placed under different categories depending on whether the threat involves a weapon or not. If an assault is involved and the judge can prove that the previous threats were made with the express intention of injuring the victim, it could even be considered attempted murder.

HT: What kind of protection does the police provide in the case of a woman who is threatened, say, by a former partner?

Laura: A preventive measure which does not entail imprisonment is applied, through a restraining order drafted at a police headquarters. But there really aren’t any effective control mechanisms in place. The thing is, that’s the responsibility a community’s District Chief, who, among other things, must keep the offender under surveillance, or at least pretend to do so. If the victim presses charges and claims the offender approached her, harassed her or threatened her again, the preventive measure may become temporary imprisonment.

HT: For how long?

Laura: That depends…In this case, if the threat involved a weapon, the sentence could be up to six months in prison.

HT: How are cases of domestic violence handled? For instance, let’s imagine a woman who is forced to live with the father of her children because she has nowhere else to go, and she is being abused by her partner, including in front of her children. Does the Law offer her any protection?

Laura: Not protection as such, no. She’s offered some support at women’s and family homes run by the Federation of Cuban Women, she’s given psychological counseling, something which really doesn’t solve the problem. There are no places in Cuba where, say, that woman can be temporarily housed until the situation with the offender is resolved.

Laura: Workshops are offered, again, by women’s and family homes, but they’re completely voluntary, and, with Cuba’s male chauvinist culture, it’s hard to picture an offender agreeing to take part in counseling sessions for couples, or even individual counseling, for that matter.

HT: Are there any compensation mechanisms for cases of police negligence? Say, if a woman pressed charges with the police, saying a man was threatening her, and no measures were taken and the man ultimately carried out his threats…

Laura: The only compensation for a crime that the Law envisages is a type of civil compensation for damages caused, say, for the cost of the medical attention needed for the injuries, be it the medication or the wages one doesn’t earn while on medical leave, but these are always paid by the culprit, that is, the perpetrator.

HT: Is there no mechanism designed to report a case of negligence by the police?

Laura: Yes, you can register a complaint via the District Attorney’s Citizen Services Office, or you can press charges against a specific police officer through a military unit, but that will never secure compensation for the victim.

HT: Are police officers knowledgeable of the Law?

Laura: (Laughs) Well…they “should” be.

HT: Who is responsible for ensuring that a police report is processed efficiently?

Laura: The District Attorney, who is responsible for supervising the investigative phase. He must ensure respect towards the rights and guarantees that protect both the victim and alleged culprit. Since no constitutional court exists in Cuba, the District Attorney is more or less responsible for this.

HT: Can a woman press charges if she is raped by a person who is, or was, her partner?

Laura: Yes. Any form of sexual penetration against a woman’s will is considered rape and, as such, can be reported to the police.

HT: In your experience, do these reports yield any results?

Laura: Yes. However, gathering all of the required evidence is a complex process and, though it may seem contradictory, in these cases the most incriminating piece of evidence is the woman’s testimony. As you can imagine, these crimes are usually committed when the victim is alone and there aren’t any witnesses. When there is a witness, they usually don’t testify, because people generally prefer to stay out of such matters.

Gathering forensic evidence can also be difficult sometimes, because there are men who rape women using condoms, such that you find no semen, not even vaginal lacerations, because the lubricants used on condoms prevent such lesions.

Crimes against a person’s sexual integrity are very traumatic. The rape victim has to endure the ordeal again when they press the charges. Her statements are probably not enough to get a case moving and the District Attorney gets another statement from her…then comes the trial, and even though the proceedings are carried out behind closed doors, anyone the judge authorizes can be present there. So the woman must relieve the terrible ordeal, in front of the man who raped her. These are complex crimes, particularly those involving minors.

HT: What sentence is handed down for the rape of a minor?

Laura: That is very clearly typified by Law, and it depends on the victim’s age range and other factors, such as whether the crime is perpetrated by two or more persons, whether the perpetrator, in order to carry out the crime, puts on a military uniform or pretends to be a public official…if the victim is over 12 and under 14, the sentence is from 7 to 15 years in prison. In the case of a minor who is under 12, even if the child consents to intercourse, the sanction is anywhere from 15 to 30 years in prison.

HT: What happens if the victim dies as a result of being raped?

Laura: It is considered murder, and typified according to the circumstances.

HT: In your years as a judge, have you heard many cases of domestic violence?

Laura: Yes, it’s a fairly common crime, usually having to do with jealousy.

HT: Who keeps a record of these crimes?

Laura: I don’t know whether the Federation of Cuban Women keeps statistics on cases of domestic violence. What courts do is record the incidence of crimes, but from the perspective of the crime as such. For instance, it keeps tabs on crimes involving injuries, without specifying whether these were caused in a domestic dispute, or in a quarrel between two men, or between an adult and a minor.

HT: If a person wishes to study these cases, do they have access to such statistics?

Laura: No.

HT:  In your opinion, what mechanisms could Cuba put in place in order to reduce the incidence of domestic violence?

Laura: From the administrative point of view, perhaps it could give these women’s and family homes a legal status, such that they belong to a government mechanism and not a grassroots organization. I don’t even know whether they even have a budget with which to operate nowadays.

But the most effective step would be to typify the crime as such, as has been done in other countries. Then, the legislator could prescribe a more severe sanction in more serious cases, and the outcome of a case would not be so dependent on the perception of the judge, who is, after all, a human being, and can be swayed by subjective factors. Typifying domestic violence as a crime would serve to diagnose that social ill which domestic violence constitutes, in and of itself.