Confronting Codified SexismChile

Last updated 08 Nov 10

Latin American Law

Schedule

• 21-Nov Legal education in LatAm • 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”

• Model for borrowing

• Gain perspective

• Discover truths

• Impose / power

Value of knowing other legal systems

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% agreeW – 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 LatAm)

• 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

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

plaintiff either. According to the law, the antecedent must make plausible or acceptable the facts that underlie the complaint. In other words, it must directly bear upon the

account that the plaintiff offers to support of her claim.

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.

Baez Sierra Espinoza Gonzales

[student]

Antecedent: official copy of the birth certificate

Antecedent: birth certificate

and notarized

sworn statement

DNA tests

(2005 law)

Witness

affidavit

Mother’s

affidavit

Birth

certificate

Complaint[allegations]

Father’s

sworn

confession

Uniform Parternity ActNCGS 49-14

“Clear, cogent, convincing evidence”

How prove paternity?

NCGS 8-50.1“criminal/civil case …

blood tests … evidence … taxed as costs”

Changed attitudes

Winslow Taylor

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. Plaintiff argues

II. Issue: pleading standard?

III. Purpose of pleading standard

IV. Dictionary definitions of code terms

V. Birth certificate not enough

VI. Holding: judge could not allow action

VII. Procedure OK: ex proprio motu

VIII. Reject cassation appeal

Resolution: Reject cassation appeal

Baez Sierra (2002)

Preview: Procedural history

Considerations:I. Plaintiff argues

II. Issue: pleading standard?

III. Purpose of pleading standard

IV. Dictionary definitions of code terms

V. Birth certificate not enough

VI. Holding: judge could not allow action

VII. Procedure OK: ex proprio motu

VIII. Reject cassation appeal

Resolution: Reject cassation appeal

Sources of law …

• Constitution• Legislation • Legislative history• Jurisprudence• Doctrine• Custom• Public policy

Paternity andprotection of children …

Constitution vs.international Treaty

Jim Rodden

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

Rainbows for all God`s Children

85% of all youths sitting in prisons Fulton Co. Georgia jail populations, Texas Dept. of Corrections 1992

Children from Fatherless Homes Account for:

Child custody –presumption, standard …

Decide the case …

Alexis Angelino1988 – born to married parents 1989 – goes to live with father1996 – mother sues for custody1996 – Juvenile Court accepts complaint2000 – Appeals Court affirms2001 – 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• Alexis expresses preference for father

Compare to prior Chilean standard?

Is this “best interests of child” standard?

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.”

Jim Rodden

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 HudsonRich McPherson

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