Within the general obligation to ensure the free and full exercise of rights recognized by the American Convention on Human Rights (ACHR) for every person under its jurisdiction, the Inter-American Court of Human Rights (IACHR) has condemned several states in the region for failing to provide effective judicial remedies (ACHR, Article 25) in accordance with due process (ACHR, Article 8.1) in cases of violence against women. Further, Article 7.b of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Belem do Para Convention) specifically obliges Member States to exercise due diligence in preventing, punishing, and eradicating violence against women.
Why do judges adopt certain behaviors and decisions that are discriminatory and re-victimizing for women victims of violence? What is the cognitive process of judicial operators in cases of sexual violence? These questions become especially relevant in order to determine effective reparative measures. For that reason, firstly, an overview of the approach to gender-based violence cases in the Inter-American Court of Human Rights (IACHR) will be addressed. Then, the intersection of neuroscience and law will be analyzed from the perspective of social cognition. Finally, by way of conclusion, based on a social cognition standpoint, an alternative will be proposed to establish the effectiveness of reparative measures in the framework of non-repetition guarantees in cases of violence against women.
Gender Stereotypes Restrict Access to Justice
In Bedoya Lima v. Colombia, the IACHR held that there is a reinforced standard of due diligence regarding the prevention and protection of women against gender-based violence. It entails the obligation to identify and investigate the special and differential risks faced by women because of their gender. Despite this, the IACHR determined that domestic judicial officials were influenced by discriminatory gender stereotypes, which had the effect of restricting female litigants’ access to justice. Those stereotypes are preconceived notions of attributes, behaviors, or roles that are or should be performed by men and women, respectively, and that can be associated with the subordination of women to practices based on socially dominant and persistent gender stereotypes. Those preconceptions become one of the causes and consequences of gender-based violence against women, conditions that worsen when they are reflected, implicitly or explicitly, in policies and practices, particularly in the reasoning and language of state authorities (as was stated in López Soto v. Venezuela). Also, these stereotypes have a negative impact on the impartiality of state officials responsible for investigating the complaints presented to them, influencing their ability to determine whether an act of violence occurred or not and their evaluation of the credibility of witnesses and the victim herself. Moreover, they distort the way they perceive situations and lead to decisions based on preconceived beliefs and myths rather than objective facts, which can result in the denial of justice, including the revictimization of those who file complaints (López Soto v. Venezuela).
Considering the general obligation of ACHR Member States (Article 2) to adapt their national legal systems to comply with the commitments imposed by the Inter-American system, there is a duty for states to combat all socio-cultural stereotypes that hinder the guarantee of rights as envisaged in the system, as was recognized in Atala Riffo and Girls v. Chile. Therefore, in various cases of violence against women where the right of access to justice was violated, the IACHR has ordered reparative measures such as guarantees of non-recurrence, including the implementation of courses, training, and awareness plans for judicial officials to identify acts and manifestations of violence against women based on gender stereotypes, overcoming stereotypes about the social role of women, and exercising due diligence in the investigation and prosecution of cases of sexual violence, among other aspects of human rights from a gender perspective.
Social Cognition and Judicial Decision Making
Social cognition seeks to understand and explain how the emotions, behaviors, and thoughts of people, whether real or imaginary, influence an individual. It is an interdisciplinary field that combines the tools of cognitive neuroscience with questions and theories from various social sciences, including social psychology, economics, and political science. It encompasses a variety of processes aimed at analyzing human behavior in detail, each focused on a particular aspect, including the identification, expression, and management of emotions, theory of mind (ToM), empathy, perception of others, and related processes with the self. Furthermore, it investigates the extent to which motivation and emotions intervene in behavior and cognition (Salas-Picón et al., 2017). Particularly, the “cognitive neuroscience examines social phenomena and processes using cognitive neuroscience research tools such as neuroimaging and neuropsychology” (Lieberman, 2007).
Judges, when interacting with parties, whether through lawsuits or hearings, necessarily listen to the difficulties of the parties and understand the emotions of those involved. Thus, unwittingly, they establish different emotional connections with each of the parties, whether of compassion, empathy, contempt, rejection, indignation, etc. The judicial operator is not aware that they have established this emotional connection, but their limbic brain, which controls emotions, detects this tacit, non-verbalized, and unconscious communication. Therefore, judicial decisions are based on emotions generated by the judge’s silent emotional communication with the parties and legal proceedings (Peña, 2016). In this sense, it is possible to assess changes in blood flow in specific areas of the brain and observe the brain regions that are activated or involved in a particular mental operation of the judge, for which technologies can be used to read brain electrical activity (Peña, 2016). For the matter at hand, it would be relevant to determine the brain regions involved when a judge is making decisions regarding a case of violence against women.
According to Mathew Lieberman (2007), social cognitive neuroscience has four dimensions: (a) understanding others, (b) understanding oneself, (c) controlling oneself, and (d) the processes that occur at the interface of self and others. In the first dimension, social cognition studies the representation of others’ minds (theory of mind) and the experiencing of others’ mental states, one could analyze the level of empathy that a judge can have with a woman victim of gender-based violence. This may reduce the likelihood of re-victimizing behaviors, such as making the victim repeat her statement countless times, making sexist remarks, among others. Similarly, the fourth dimension allows to understand in a single mental self and social world, that is, the complex network of social interactions, relationships, and institutions that individuals navigate in their daily lives and that shape its neural processes, in this case, in relation to gender stereotypes with which people socialize in patriarchal environments.
It is useful to consider jurisprudential foundations and the tools of social cognition that intersect neuroscience and the law, particularly from the analysis of the cognitive processes that lead a judicial operator to decide. This allows us to understand the cognitive process of judges in making their decisions, especially considering the involvement of the gender factor. Moreover, it is recommended to use social cognitive neuroscience studies to verify the effectiveness of the measures ordered as guarantees of non-recurrence in cases of violence against women in the Inter-American Human Rights system. This could be useful to prevent gender stereotypes from negatively influencing and becoming obstacles to access to justice and the effective investigation and prosecution of cases of violence against women.
The IACHR often orders training and awareness programs with a gender focus for judicial officials. In this regard, it would be relevant to analyze the brain stimuli that lead a judge to adopt re-victimizing, discriminatory, and stereotypical attitudes and decisions within a judicial investigation against victims, but also to determine which stimuli are required to adapt their behaviors. Additionally, conducting a comparison between the results before and after cycles of training and education in human rights and gender to analyze their effectiveness.
In conclusion, social neuroscience from social cognition is a tool that could be used to understand how gender stereotypes affect the perception of violence against women and the decision-making of judicial operators. Furthermore, to advance in the fight against discrimination and revictimization in the judicial system, as well as the reparations, it is fundamental to evaluate the effectiveness of the gender and human rights training programs that the IACHR often orders for judicial officials. This comparative analysis can contribute to the continuous improvement of justice in cases of gender-based violence and ensure more effective access to justice for victims.