Torture Based on Sex Alone: Do Women Have Special Asylum Claims? They Do, and They Ought to Be Recognized

Article excerpt

Rodi Alvarado Pena cleans houses for a living, thinks about her two children in Guatemala and waits. For six years she has been in the United States seeking asylum, watching her case go back and forth in a flurry of dizzying inconsistency. One judge granted her the right to stay in this country; a panel of other judges reversed that decision. The U.S. attorney general herself vacated that ruling and said the case should be decided in light of soon-to-be-released regulations. But administrations changed, the new regulations have not appeared, and Rodi cleans and worries and waits some more.

The question of immigration in America is like one of those ill-fated science experiments in school that blow up with a boom. It combines a passive element, the great unyielding bureaucracy of the Immigration and Naturalization Service, with an active one, the hot-button issue of allowing foreigners residency in a land that in theory is welcoming but in practice is hostile. The question of asylum ups the ante, because it goes to the very heart of what the United States professes to be: a nation in which those who have been persecuted in their own country can be guaranteed succor and a second home.

But the issue of asylum for women as women raises the stakes even higher, because it shines unwelcome light on the violence that has long been inflicted on one part of the population by another as a matter of course. Rodi Alvarado says that during a decade of marriage her husband, a member of the Guatemalan military, raped her, tried to abort one of their children by kicking her, and hit her until she lost consciousness in front of those children. And she says that as a matter of policy the government of her country looked the other way, that a judge told her domestic violence was a private matter, that the police would not arrest her husband. In May 1995 she fled for her life to the United States.

She arrived here at a moment of both great promise and great confusion for women seeking asylum because of persecution related to their sex. Standards created half a century ago extend asylum to those persecuted because of race, religion, nationality, membership in a social group or political opinions. One category is glaringly missing from that list, of course, and it is gender. Asylum standards have remained frozen in the amber of a time when silence about gender politics prevailed and asylum was understood as a remedy for unpopular views, not devalued human status.

As a result, women who seek asylum because of sex-based persecution seek it under the rubric of membership in a social group, as though gender were somehow less definitive than race, religion or nationality instead of more so. And they have made some progress. Karen Musalo, the director of the Center for Gender and Refugee Studies at the University of California's Hastings College of Law, who is representing Rodi Alvarado, was responsible for a major victory in 1996 in the successful asylum claim of an African woman who would have faced traditional genital mutilation had she returned home. …