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We Met With Justice Elena Highton to Talk Abortion, Feminism and the Catholic Church

By | [email protected] | July 23, 2018 8:00am

HightonSupreme Court Justice Elena Highton
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Supreme Court justice Elena Highton’s office is impossibly tucked away, hidden somewhere in the heart of Tribunales, and I feel grateful to the guard leading the way and delivering me at her doorstep. The walls of her office are covered with books and legal codes. Light falls in through tall windows while employee brings me coffee.

Elena Highton has reached the age of 75 but looks vibrant; she’s petite and neatly dressed, with small, sharp eyes and a dry, humorous smile. ‘Today marks exactly fourteen years ago that I was appointed Justice to the Supreme Court,” she begins.

Highton was born in the southern suburb of Lomas de Zamora and inherited her surname, fluent English, and persistence from her Scottish and English ancestors. Her wish to study law caused quite a stir in the family. Both parents had only finished primary school, but their Anglo descent and the English spoken at home had granted them access to a broader social circle. Her father had made it to purchase manager in a gelatin factory and her mother was a secretary. In their opinion, with Elena being bilingual herself, a shorter education track to become a professional translator would be more sensible. There was worry about her health, as she had undergone various operations due to a spinal condition and was often in pain. But Elena refused to give up on her dream. She told them she would study both careers during the first year to see what she liked best.

After passing her exams with flying colors, she was determined “to never open a book about phonetics again,” and dedicated herself entirely to her legal studies at the University of Buenos Aires, where she would later teach for many years, and later at Harvard Law School.

After a long career first as a public defender and from 1979 on as a judge, Elena Highton was the first woman in Argentina to become a Supreme Court justice under a democratic government.

And today she is meeting with me.

(Photo courtesy of Elena Highton)

Isn’t it time for abortion to be legal in Argentina?

“I will not give my personal opinion on the abortion debate, the whole of Argentine society needs to discuss this important topic. I can only have an opinion in cases that reach the Court, such as the the F.A.L. case,” she says, in reference to a unanimous Supreme Court decision from 2012 that decriminalized any abortion in the case of rape without the necessity of a previous judicial authorization; a historic verdict at the time.

“We reached this decision in spite of the influential role of the Church,” she tells me.

Is there separation of Church and State in Argentina?

“Yes, the church is separated from the state. There is Article 2 of the Argentine Constitution that stipulates an obligation for the Federal Government to sustain religion. This means that the Government has to support the Church financially. It is true that the Church tries to influence many issues in society and wages a strong lobby against certain controversial legislation.

Take the law legalizing same-sex marriage [Argentina was the first country in Latin America to legalize same-sex marriage in July 2010], and now there is the protest by the Church against the abortion decriminalization bill that has recently been passed by the Lower House (and is headed to the Senate). The Church acts according to its own convictions and conscience. And abortion is one of the most important topics for the church.”

What do you think sparked the sudden engagement and feminist activism in Argentina?

“We are living a democratic moment, there is no dictatorship, no repression. There is much more tolerance. Argentine society has notably advanced and matured. Things like same-sex marriage would have been unthinkable in the recent past. The women’s movement has become very strong, the different groups are more united now, they fight under the same banner.”

Rumor has it that leaders of women’s rights organizations asked you to remain in office in spite of the fact that you have reached the retirement age.

“Yes, that is true. And I presented an amparo (a form or legal protection) in order to stay on. (In  2017 Elena Highton was granted permission by a lower court judge on her application to remain in office beyond the retirement age of 75. The Macri administration, who was against her continuity in the court at first, eventually refrained from appealing).

“I am convinced that nobody is ever irreplaceable, but at the same time I know too well how much work there still needs to be done, I just feel that I have not completely fulfilled my function yet.”

Elena Highton

The persisting problematic situation of domestic violence against women in Argentina, which has contributed to alarmingly high rates of femicides, prompted Highton to take initiative attempting to change that situation once she set foot in the Supreme Court. In 2004 she created the Domestic Violence Office, which responds directly to the Supreme Court in order to guarantee effective access to justice for victims of domestic violence (both women and men).

“There was certainly opposition but after four years we pushed it through and managed to get the budget for it. We started out with 70 collaborators, now we have 170 of them working 24 hours a day, 365 days a year,” she says proudly. The office works with interdisciplinary teams consisting of experts in the fields of law, medicine, psychology, and social work. “The selection was very strict and aimed at getting the very best professionals from the entire country.”

Their interdisciplinary work makes it possible to prepare a document in one step that not only serves as a basis for initiating legal proceedings, but also is a risk assessment report on the situation, as well as a medical report on the injuries. Once a victim comes to the Office for Domestic Violence, they are assisted and interviewed by a unit team consisting of a lawyer, a psychologist, and a social worker. All the paperwork to file a formal complaint is then completed.

“There is a dedicated space with preschool teachers that help take care of the children in the meantime.” If the situation is more extreme, and the victim can’t leave home, she can call a mobile squad, belonging to the Victims against Violence Program, that will transport the victim to the Office’s headquarters.

The workings of the office have managed to speed up the process considerably. At the very moment victims file their claim, all information needed by the criminal and civil courts to order a protective remedy, like a restraining order, is available and a decision is often made on the same day. In addition to the added swiftness that comes with avoiding bureaucratic institutions, the new procedure is less traumatic for the victims: “There used to be a situation of re-victimization: women had to tell their story, painful enough in itself, over and over again. First at the police station, not infrequently a machista environment, where the officer will sometimes tell the victim to go home and accept her husband’s apology. Then again at the hospital, where qualified personnel capable of dealing with domestic violence victims is often not available. And then yet again during the proceedings at the court.”

(Photo via Que Pasa Salta)

From the early days of the Office of Domestic Violence, Highton has been very active trying to create more consciousness in Argentine society about abusive and violent crimes against women and femicide. She assures that machismo is still very much alive here: “I have often publicly spoken out against the strong machismo that pervades society. There is improvement, however. Sometimes it can be something as subtle as language. The lexicon that the media uses has changed. There is less talk about ‘crimes of passion’ when describing gender violence, and more willingness to portray the partner as the author of the crime instead of implicitly blaming the woman for her behavior.”

At the same time, she recognizes her limitations: “Raising awareness and training others is not the task of the Supreme Court. We are only filling in the holes for the Executive power. The same goes for the Domestic Violence Office. This is really their responsibility. Argentina is part of the UN Convention against discrimination of women and has an obligation to comply. The law for Integral Protection of Women exists since 2009 in Argentina, but the department that is responsible, according to this law, does not receive the needed financial means so we try to help them as best we can.”

She finds that #NiUnaMenos does play a very important role in the fight for women’s rights: Ni Una Menos is on fire, not only in Argentina, but also abroad. They managed to unify the women’s movement and channel the demands for better political solutions and effectiveness of the laws. The marches are also useful for raising awareness among Argentines, promoting the idea that violence is not the solution. Women are beginning to understand that they are not bearers of guilt, that it is the perpetrator of the violence who is responsible. In spite of their often difficult economic circumstances, they begin to consider divorce instead of sticking it out. And women from the upper classes, on the other hand, feel less shame about coming forward and reporting violent crime instead of projecting a false image of the perfect family. At the Domestic Violence Office, they can denounce these crimes with complete confidentiality.” Highton speaks on a regular basis to the women’s movement: “There is constant dialogue and mutual inspiration on our quest to move forward.”

Asking about the highs and lows of her career, I brought up the controversy and public outcry over the “2×1” case last year where the Supreme Court ruled that Luis Muina, convicted of torture and kidnappings committed during the military dictatorship, could retroactively benefit from the law aimed at reducing the overuse of pretrial detention to speed up trials, opening the door for the reduction of sentences for crimes against humanity.

“It was definitely a low in the sense that it was a very difficult decision, and I was heavily criticized for it, something that had never happened before in the forty years of my career. My task is to test the constitutionality of a ruling. And according to the principle of legality, the decision didn’t go against the Constitution. The problem was the ambiguity of the law itself. And luckily the Supreme Court’s ruling, combined with the massive protests on the streets, caused the executive power to pass a new law [excluding repressors from the applicability of the 2×1 benefit] within a week after our ruling.”

In 2014 the Domestic Violence Office opened a register to record and keep track of the number of femicides in the country. Highton is disheartened about the reality that the femicides continue to occur every day in Argentina, and that the numbers are on the rise. “It is a permanent, never-ending campaign and struggle. That is why I want to keep doing my job at the Court as long as I have the strength [to carry on].”

Elena Highton is currently the only female justice in Argentina’s Supreme Court (Left to right: Justice Horacio Rosatti, Justice Elena Highton, Chief Justice Ricardo Lorenzetti, Justice Juan Carlos Maqueda and Justice Carlos Rosenkrantz)

I asked her what, in her opinion, are the main issues Argentine society needs to overcome today.

“Apart from the recurring economic crises -in Argentina we have learned how to live with crisis – one of the main issues is that we need to learn to behave ourselves.”

She smiles then shrugs.

“This country has a culture of corruption and a lack of transparency,” she says, although she says she thinks the situation is improving under the current administration. “There is clearly more will and effort to do things better.” She feels that generally in politics there exists a tendency to exaggerate: “politicians like to blame the opponent, to persecute the government officials that were in power before them. We can only wait and see until a case is judged.”

The Argentine judicial system is not exactly famous for its agility, and is often criticized for being highly inefficient, which can result in de facto impunity. A legal proceeding against corruption takes about 11 years on average, and that is even a conservative estimate. “There are unresolved corruption cases in the lower courts against members of five administrations ago… At the Supreme Court we can accelerate our process by taking inconsequential cases of the role, giving preference to the cases that constitute important judicial precedents and that fulfill a guiding role to society.”

She is in favor of the recent reform of the Criminal Process Code in order to speed up the process: “there have been attempts to reform during the past 40 years,” she says, but she is wondering if there will be real, tangible improvement: ‘The modifications to the [Criminal Process] Code have yet to be put into practice. Budget is needed to make that happen. And with a country traversing so many economic crises, a budget is often lacking.”

The independence of the Argentine judiciary has always been precarious. Former president Carlos Menem caused great damage to the credibility of the Court in the nineteen-nineties, increasing the number of judges from five to nine, thereby adding unqualified yes-sayers to his own advantage, infamously known as the “automatic majority.” When Nestor Kirchner took office, he brought the number down to five again and appointed a series of highly respected independent justices, one of them Elena Highton.

And this brings me to my final question: Is the separation of powers real in Argentina?

“It is of course stated in the Constitution, and yes, I would say that nowadays the balance of powers is a reality in our country. The large majority of the judges are hard-working and honest people, but of course there are always exceptions. Under the Menem administration, there was severe interference with the Supreme Court by the Executive power and several cases were not resolved as they should have been until O’Connor and the others were removed from office after calling into force the instrument of the political process in Congress.”