Introduction

The lack of a gender perspective in access to justice is a persistent problem for the criminal prosecution of cases involving gender-based violence. It results in survivors feeling unprotected, thus limiting their participation in prosecution processes, and inhibiting their efficacy (Facio 1999; Prieto Bravo 2013; Coñuecar Barría 2015). Gender-based violence is violence against people due to their sex, gender, or both, or because individuals do not act in conformity with these categories, which are dictated by the heteronormative patriarchal system (Rubin 1986; Segato 2003; Sepúlveda and Sovino 2017). Statistically, the vast majority of survivors of gender-based violence are women and LGBTQI+ persons (Segato 2003; CIDH 2015, 81; Sepúlveda and Sovino 2017; MovilH 2017). It has been recognised as a human rights issue by the United Nations (UN) and the Inter-American Commission on Human Rights (Rico 1996; Sepúlveda and Sovino 2017). Domestic violence is one of the manifestations of gender-based violence. It is essential to understand how survivors of gender-based and domestic violence participate in judicial processes against perpetrators, for example, by reporting acts of violence and giving their testimonies in court. However, their effective participation is often inhibited by how the police, prosecutors and judges treat them (Prieto Bravo 2013; Coñuecar Barría 2015). A gender-based perspective in the judicial process is a relevant factor for ensuring the effectiveness of access to justice for women, girls and LGBTQI+ community members.

On 26 September 2017, the National Prosecutor of Chile, Jorge Abbott, announced the creation of the Special Unit for Human Rights, Gender-Based Violence, and Sex Crimes at the National Prosecution Bureau of the Public Ministry, which is the institution in charge of penal investigations (Unidad de Comunicaciones de la Fiscalía Nacional, Ministerio Público de Chile 2017). This Unit is part of the Special Units of the National Prosecution Bureau, which advises the National Prosecutor in terms of prosecution policies; analysing, registering, coordinating, educating, informing and creating technical documentation for the Bureau (Ministerio Público n.d. a; n.d. b).

The recently created Unit within the Bureau is an institutional change. Still, does this change on its own indicate a regendering of the Institution in a way that allows the introduction of new rules and procedures with a gender perspective for the criminal prosecution of crimes associated with gender-based violence? What other changes related to the adoption of a gender perspective are happening at the Bureau?

In this article, we use a feminist institutionalist (FI) perspective to analyse how institutional and other changes are taking place at the National Prosecution Bureau and whether they might act as institutional regendering. It is hoped that these institutional changes might insert a gender perspective on the investigation of crimes related to gender-based violence within the Bureau, improving access to justice for women, girls and LGBTQI+ survivors. Furthermore, we seek to explain why institutional change occurs by identifying formal and informal norms, what kind of difference it represents (displacement, layering, derivation or drift, or conversion) and its potential scope. Moreover, it is important to note that the Unit is the first to mention gender-based violence in the title of a state office, and furthermore, this is the first study of this kind to analyse the judicial system from an FI standpoint.

This article is composed of six sub-themes. The first one is a brief review of feminist institutionalism (FI) and institutional change. The second is a concise analysis of institutional change in Chile and how it has been studied. The third is a description of the methodology used to research the Special Unit for Human Rights, Gender-Based Violence, and Sex Crimes within the National Prosecution Bureau. The fourth refers to gender relations within the National Prosecution Bureau. In the fifth, specific information about the creation of the Special Unit for Human Rights, Gender-Based Violence, and Sex Crimes is provided, as well as an analysis from an FI standpoint regarding its creation. The sixth sub-theme is a succinct cautionary note about how norms may be ‘sticky’, that is, resistant to change. Finally, we conclude by proposing a future assessment of the effectivity of the institutional changes reviewed, as well of the definition of ‘gender’ that is being used by the Bureau.

Feminist institutionalism (FI)

InstitutionsFootnote 1 —understood as laws, rules, norms and practices (March and Olsen 1989)—are not gender-neutral: in fact, they are masculine (Acker 1992; Waylen 1993, 2014). Therefore, institutions determine the behaviour of the actors who are constrained by them. Feminist institutionalism (Mackay et al. 2010) reveals the existence of gender norms that permeate institutions and their functioning. In other words, since gender is a relational category that establishes social hierarchies (Scott 1996), it is also anchored in institutions that are structured under the rules of social functioning. On a day-to-day basis, gender stereotypes can be glimpsed in the operation of various institutions, as well as in the division of functions within them (Acker 1992; Waylen 1993, 2014).

Moreover, FI has proposed that these gender roles within institutions can be modified or ‘regendered’ through the introduction of an explicit gender perspective (Waylen 1993, 2014, 2016). Hence, when an institution has not introduced an explicit gender perspective, the androcentric paradigm is dominant, shaping the behaviour of the actors involved in patriarchal ways (Facio and Fríes 1999). Franceschet (2006) and Kittilson (2010) argue that the insertion of a gender perspective at the institutional level produces changes in both public perception of traditional gender roles, as well as a ‘broader’ base for people to feel comfortable expressing their demands on these issues. This is because a gender ‘barrier’ is erased, allowing the insertion of challenging visions in relation to it. Hence, the traditional patriarchal paradigm is broken (to some extent).

By introducing changes in government institutions, it is possible to implement a gender perspective or view that recognises the existence of gendered norms within the organisation. This recognition allows the application of procedures, rules and values that disintegrate the androcentric and patriarchal paradigm that dominates the functioning of the institution and daily work of its employees, thus allowing the institutionalisation of a gender perspective. This is what Chappell and Waylen (2013) refer to as regendering: the recognition of the 'original' institutions' masculinity, and the introduction of norms that denaturalise this, under a perspective of gender awareness. In the case of judicial institutions, we argue that the introduction of a gender perspective facilitates access to justice for women and LGBTQI+ persons, since the judicial process 'loses' its masculine standards, becoming more welcoming in terms of procedures and treatment of other, non-masculine groups. Throughout this case study, there are examples on the insertion of a gender perspective in an institution of the judicial process, thus illustrating the connection between institutional regendering and access to justice. For the purposes of this article, 'institutional regendering' will be defined in a similar way to 'gender mainstreaming': as the insertion of a vision of gender equality into the functioning of an organisation (Waylen 2014). However, it is important to bear in mind that when defining gender, we use it not as a synonym for women, but extend it to the multiple and varied forms assumed by human sexuality beyond binary frames (Butler 2007).

A fundamental aspect in the analysis of institutions is their ability to survive long term, as well as their potential to produce changes (March and Olsen 1989). Institutional change derives either from political will that seeks to change norms, rules and procedures, or from informal practices that are crystallised in the functioning of organisations and therefore become the actions of the people within them (March and Olsen 1989). Moreover, the capacity for institutions to change is dependent on where that emphasis originates. The source can be endogenous or exogenous, and dependent upon the type of norms that underlie it (formal or informal), which open different modalities of its implementation. Informal institutions may act for or against institutional change (Waylen 2014). Therefore, it is essential to identify both informal and formal norms. Waylen (2014) reaffirms Mahoney and Thelen’s (2010) identification of four types of institutional change: displacement, layering, derivation or drift and conversion.Footnote 2 Throughout this article, we use this FI standpoint to analyse the data provided, especially when assessing the institutional change that took place at the Bureau in order to specify which type of institutional change it corresponds to. Hence, this theoretical framework guides our analysis.

The study of institutional change in Chile

The first institutional change relevant to this study is the creation of the Public Ministry, composed of the National Prosecution Bureau (at the national level) and the Regional Prosecution Bureaus (at the regional level), along with the reform of the prosecution system in Chile between 2000 and 2005. The Ministry and its Bureaus were created in 1999 (Law 19.640),Footnote 3 and by 2000 they were key actors for the transformation from an inquisitorial to an adversarial legal system (Ross and Barraza Uribe 2019). The adversarial system now operates with a guarantee-based rights-focused approach to justice. Judges no longer carry out investigations before applying a sentence. Instead, it is the Public Ministry, an entity that is autonomous and independent from the Judicial Branch, that investigates and prosecutes.

Thus, within the new system, the application of judicial sentences is no longer performed by the same entity that investigates criminal offences. The Public Defence Lawyers Bureau exists to provide people with public judicial defence. Evidence is presented by the Public Ministry as well as the Public Defence Lawyers Bureau, which is used by Justices to hand down their sentences. Moreover, at the country level, the National Prosecution Bureau is responsible for designing the prosecution policies and the standards and protocols for the protection of survivors and witnesses.

In Chile, research on institutional change has been conducted on the economic market (Huneeus 2000; Angell et al. 2001), government reforms (Huneeus 1997; Nohlen and Baeza 1998; Mardones 2006; Weyland 2011; Siavelis 1997, 2001,2010) and the electoral system (Angell 2003; Siavelis 2004; Remmer 2008). In the judicial field, research into the functioning of transitional justice mechanisms has been undertaken (Hilbink 2007). From gender studies, FI has reported on the feminism's institutionalisation or institutional feminism (e.g., Matear 1996; Waylen 2000; Franceschet 2003, 2006; Arce 2018), as well as gendered changes in the Executive Branch under Bachelet's two governments (e.g., Franceschet and Thomas 2010, 2011; Waylen 2016; Franceschet 2016; Thomas 2016). With regard to institutional changes in the judicial system, it is important to highlight the document, Recomendaciones para el abordaje de una política de género en el Poder Judicial chilenoFootnote 4 (Asociación de Magistradas Chilenas-MACHI 2015), which while not an academic text, is a relevant technical report, which provides crucial definitions and recommendations for the insertion of a gender perspective into the judicial system. Nonetheless, from the theoretical current of FI, there has been no account of institutional change within the judicial arena. Therefore, the organisational change within the National Prosecution Bureau opens a new line of research on the subject and its effects on access to justice.

The analysis of the Special Unit for Human Rights, Gender-Based Violence, and Sex Crimes at the National Prosecution Bureau is an essential piece of research as this is the first time the term ‘gender-based violence’ is explicitly mentioned in the title of a government office, so it is compelling from a symbolic point of view. The changes that may accompany the Unit’s creation could improve gender-based access to justice within the Public Ministry and its National Prosecution Bureau, in their role as advisors on human rights issues to the National Prosecutor. The Unit is also tasked with the design of a coherent juridical, theoretical and procedural framework regarding violence against women, children, migrants, people imprisoned and anyone who is in a vulnerable position, advising prosecutors throughout the country (Unidad de Comunicaciones de la Fiscalía Nacional, Ministerio Público de Chile 2017). Finally, it is important to analyse, from an FI standpoint, the policies implemented at the National Prosecution Bureau, since they have a relevant gender perspective and could prove to be signs of institutional regendering.

Methodology

The Special Unit for Human Rights, Gender-Based Violence, and Sex Crimes within the National Prosecution Bureau was analysed as a case study (Simons 2009; Blatter and Haverland 2012). Since there are several methodologies that suit FI (Waylen 2016), we adopted congruence analysis (CON), combined with causal process tracing (CPT) (Blatter and Haverland 2012). CON is a qualitative case study methodology that explains the formation, development, evolution or failure of a phenomenon. It is most useful in testing whether specific theories provide explanatory power to the case under study. In its ‘pure’ form it proposes, as a first step, the selection of the theory(ies) to be evaluated, followed by the selection of cases that are consistent or dissimilar to those theories. However, in empirical practice, CON is also used to give theoretical support to a case study. In this way, the theories are selected according to the case (Blatter and Haverland 2012). This second, empirical form of CON was used in this research.

CPT is also a qualitative methodology for case studies that seeks to understand how a phenomenon develops by investigating the mechanisms, contexts and dynamics that make a phenomenon possible or impossible. In other words, CPT focuses on the dependent variable or the result, to analyse the causal relationships that produce it. For this purpose, a researcher must collect data about the issue under consideration and classify it in a contingent and temporary form to develop ‘causal narratives’ (Bennett 2010; Blatter and Haverland 2012) that characterise the observed data and phenomena according to whether they were necessary or sufficient conditions, or both, in the dynamics that led to the analysed result. Thus, this method clarifies the existence of causal conditions that may be additive or multiplicative, or causal configurations (mechanisms of action) with these characteristics, which can operate with conjunctions or chains (Bennett 2010; Blatter and Haverland 2012). In summary, this methodology allows us to understand which conditions have enabled the creation of the Specialized Unit of the National Prosecution Bureau.

The combined techniques of CPT and CON were used to develop the causal narration of the events that led to the creation of the Specialized Unit from a gender perspective. To do this, we first analysed legal documents, public accounts, rules and protocols, which set institutional milestones within the organisation from a formal perspective (binding rules written and known by all officials). Through direct contact with two officials of the Unit, we were provided with the necessary information for the study and even further details on changes taking place at the Bureau.

Following our documentary analysis, five in-depth face-to-face interviews were carried out with officials who occupy positions that were or are related to the Unit's creation, to enhance the documents’ analysis and identify informal norms (i.e., unwritten and non-binding practices and rules) (Waylen 2016). These interviews were necessary to supplement the limited information about gender within the Unit in the aforementioned documents. The identities of the interviewees are confidential in order to avoid compromising their positions, as they are still in office. Their identification throughout this article will be as follows (Table 1):

Table 1 Characterisation of interviewees
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The National Prosecution Bureau: a gendered institution

Throughout the interviews, we gathered information on the gendered nature of the National Prosecution Bureau. Acker (1992), Waylen (1993, 2014) and Chappell and Waylen (2013) propose that institutions are masculine because they are mostly made by and for men. The ‘ideal’ citizen is a man, white, a property owner and heterosexual. It is important to highlight this point because, in this way, the state, in its initial conception, is considered not only masculine but heterosexual (Curiel 2007). In addition, following Mendoza (2014), the post-dictatorial states in Latin America are neoliberal and act as agents of the neo-colonisation that comes hand in hand with this economic current, thus excluding from their sphere of action all the subjects that do not conform to the ‘ruling criollo’Footnote 5 paradigm: indigenous peoples, Afro-descendant people, women, LGBTQI+ groups. Furthermore, the post-dictatorial state imposes an androcentric paradigm based on the aforementioned heterosexual regime (with its particular characteristics of race), which works through its organisations and institutions. In addition, there is a ‘gender[ed] logic of what is appropriate’ within organisations (Chappell 2006). From this perspective, it is possible to assume that because of the state’s patriarchal origin, the National Prosecution Bureau is masculine, heterosexual and criollo-centric. As the institutions affect the behaviour of the people who work in them—based on values, norms, interests, identities, beliefs and meanings—then the Bureau has an androcentric, heterocentric and criollo-centric ‘effect’ on the actions of its officials.

A clear example of this is the number of men in management positions, which are associated with authority. In the case of the Bureau, this could be seen in the number of male Head Prosecutors who were mostly considered ‘white’ or as not belonging to an indigenous community or of African descent. When asked about the job segmentation by gender in the Bureau, an interviewee with three years in the post said that in general terms, there was a 50–50 proportion, but when looking more closely at the data, more women than men were in administrative positions, and more men could be found in managerial positions. Thus, it is clear how gender and race stereotypes are replicated throughout the job composition at the National Prosecution Bureau (interviewee with three years in the Bureau, interviewed 7 January 2019).

The interviewee with 12 years in the Public Ministry provided information about how women officials were treated. This included being discriminated against and overlooked because of their gender. In particular, maternity was highly disrespected and taken as an impediment to professional advancement. Women were not considered for professional promotion even if they had the requisite qualifications or were overqualified because there was a chance of them getting pregnant, so men were selected instead:

(…) they did not value femininity…they did not consider them [women] for career advancements and I even heard situations in which there were public job tenders [for career advancement], and the best participant, the one that was the oldest in her position, the most experienced and with the best qualifications was pregnant, so they chose someone else instead, with weaker qualifications for the advancement (…) (interviewee with 12 years in the Public Ministry, interviewed 28 December 2018; translated by the authors).

Furthermore, when officials returned to work after maternity leave, they would find their desks empty. They would not know who to report to, which was symbolic of their job being endangered due to maternity (interviewee with 12 years in the Public Ministry, interviewed 28 December 2018). Hence, sexist informal norms operated throughout the Bureau, discriminating against women. We consider these norms to be informal because they are not written, but are still widely known and consistently implemented.

Regarding maternity rights, Chile passed a law in 2011 (Law 20.545)Footnote 6 that allows women to have six months of paid maternity leave or 4.5 months of leave if they want to share time with the infant's father. In the first version of this law, female civil servants were eligible for maternity leave, but the salary they could receive had a maximum limit. This discriminated against women working in the public sector because women who worked in the private sector retained their full salary while on leave. It also compromised women in managerial positions and acted against the principle of not lowering civil service wages to avoid corruption (interviewee with 12 years in the Public Ministry, interviewed 28 December 2018).

In protest against this, the Female Prosecutors Association, jointly with a Justice, asked for an audience with the Inter-American Commission of Human Rights. Their plea was admitted, and they took their case to the Commission. The Chilean Government at the time (Michelle Bachelet’s second term) was summoned by the Commission to explain why this salary reduction was taking place (Toro 2014). With this, the Government, led by Bachelet,Footnote 7 changed this part of the Law 20.545, and civil servants started receiving their full wages when on maternity leave. This was an historic event for women in the civil service, showing how powerful a women’s association such as the Female Prosecutors Association could be for the respect of their rights (interviewee with 12 years in the Public Ministry, interviewed 28 December 2018).

This case demonstrates that formal norms, such as those underlying advocacy for maternity rights, have been a source of institutional change, which permeates all public services by changing other formal norms (written and binding) such as Law 20.454. Formal norms regarding the right to maternity were pushed by feminist groups and channelled through the National Women’s Service (SERNAM, which later became the Ministry of Women and Gender Equality) and have challenged informal norms that acted against maternity rights, thus pushing towards the effective change of the latter. Moreover, as we will see in the following section, this struggle for women’s rights in the National Prosecution Bureau changed the view of managers, which prompted changes towards gender mainstreaming.

Nonetheless, it is important to note that when asked about the definition of gender, to assess the possibilities of broadening the access to justice for LGBTQI+ persons, the interviewee with three years in the National Bureau said that they do not have a clear definition. From her interview, we could gather that the term ‘gender’ is still associated with ‘women’ in a cis and heterosexual way, leaving out sexual differences. Moreover, once the system registers the sex of a person, it may not be modified. Hence, it is possible to see that policies regarding sexual differences are still under-developed at the Bureau (interviewee with three years in the Bureau, interviewed 7 January 2019). For example, protection against violence based on sexual orientation, gender identity, or both, is secured by Law 20.609,Footnote 8 also known as the Zamudio Law, which establishes measures against discrimination. Article 12 of the Criminal Code was modified by this law, including the motivation of the violent act on the grounds of sex, sexual orientation, gender identity, or both, of the victim as aggravating criminal liability in the face of a crime. However, it only acts as an aggravating measure, and not as a law against gender-based violence. Still, the existence of this law obliges the Public Ministry to protect LGBTQI+ people from gender-based violence.

Due to the androcentric, heterocentric and criollo-centric paradigm that permeates the National Prosecution Bureau, it is logical to think that criminal prosecution and survivor protection operate under these same norms, no matter how much gender neutrality is presumed. It is important to keep in mind that the National Prosecution Bureau saw the need to implement a gender perspective when prosecuting domestic violence cases due to the results they were obtaining, where survivors recanted because they felt they did not have a ‘safe space’ within the prosecution system, thus not having complete access to justice (Prieto Bravo 2013; Coñuecar Barría 2015).

Internationally, there are minimum standards for access to justice from a gender perspective, applicable to the penal investigation and prosecution of gender-based violence, which can be summarised as non-discrimination, non-secondary victimisation, availability of information, protection of the survivor assessing their risk against further violence, protection of the intimacy of the victim and/or survivor, and respect for the will of the survivor (Sepúlveda and Sovino 2017, 157–158). The absence of a guarantee of these standards represents a failure of the State in meeting its responsibilities to secure human rights (Sepúlveda and Sovino 2017, 151). The Public Ministry of Chile has received the generally agreed-upon recommendations to comply with these standards, adopting measures that include the design of a policy of access to justice with a gender perspective, among othersFootnote 9 (Sepúlveda and Sovino 2017, 158–159). These recommendations signalled the first time that the National Prosecution Bureau acknowledged that family violence has its roots in gender-based violence, which is crystalised through the creation of the Special Unit for Human Rights, Gender-Based Violence, and Sex Crimes, which will be analysed in the section below.

Creation of the Special Unit for Human Rights, Gender-Based Violence, and Sex Crimes as institutional change

On 31 October 2017, the resolution creating the Special Unit for Human Rights, Gender-Based Violence, and Sex Crimes was approved by the National Prosecutor (Resolución FN/MP Nº 2078/2017).Footnote 10 This Special Unit was created in part due to the work by Advisor Lawyers from the former Special Unit for Domestic Violence and Sex Crimes, who pushed for the recognition of domestic violence as a form of gender-based violence (interviewee with 17 years in the Public Ministry, interviewed 8 November 2018; interviewee with two years in the Bureau, interviewed 8 November 2018).

The National Prosecution Bureau has five Special Units. The National Prosecutor is empowered by Article 17c of Law 19.640 to create Special Units, depending on the needs of the Institution. Hence, the Special Units depend directly on the National Prosecutor’s office. As mentioned above, these Units act as technical offices where prosecution policies and protocols are designed according to law and to the special characteristics of the crimes that they are related to, and where training and advisory activities are organised and executed for prosecutors throughout the country.

According to our findings, the Special Units have been created as a technical response to the passing of criminal laws, which have also been an answer to the signing and ratification of international human rights treaties. The Special Unit for Human Rights, Gender-Based Violence, and Sex Crimes (Resolución FN/MP Nº 2078/2017) analysed herein comes from the Special Unit for Domestic Violence and Sex Crimes, meaning that its creation signifies an expansion of the former Special Unit to include human rights, and recognise domestic violence as a form of gender-based violence. This has strong symbolic power, but it is still necessary to analyse whether it brought effective changes regarding institutional regendering.

The earlier Special Unit for Domestic Violence and Sex Crimes was created from two separate units: Domestic Violence and Juvenile Law, and the Special Unit for Sex Crimes and Violent Crimes. Both were designed as a response to laws that had been passed on these issues. They were meant to give the National Prosecution Bureau and prosecutors throughout the country the technical means to implement the legal dispositions of new laws. From an FI perspective, therefore, the creation of these units was for exogenous reasons (Waylen 2014). Moreover, they are reactive changes, as they reacted to what was happening in the Chilean legal system, as will be explained below.

Chile, as a member state of the UN and the Organization of American States (OAS), has signed and ratified various treaties on the protection of people against violence. It signed the Belém do Pará Convention (OAS 1994)Footnote 11 on 15 November 1996, which is a regional human rights treaty that speaks explicitly about mechanisms to eradicate violence against women. The first Chilean Domestic Violence Act is from 1994, but it was modified in 2005 to include femicide as a crime (Biblioteca del Congreso Nacional 2005). That same year, Law 20.084Footnote 12 for juvenile justice was passed (reforming Law 16.618 from 1967), although Chile had ratified the Convention on the Rights of the Child (1989) in 1990. With these events at hand, the Special Unit for Domestic Violence and Juvenile Justice was created (Table 2).

Before this, in 2003, Law 19.874,Footnote 13 which improves the complaint procedures for sexual offences and allows for better investigation of sex crimes, was passed, with the subsequent creation of the Special Unit for Sex Crimes and Violent Crimes.Footnote 14

As time passed, the Units shown in Table 2 were reorganised into the Special Unit for Domestic Violence and Sex Crimes and Special Unit for Juvenile Law and Violent Crimes. The former was adapted in this fashion because officers recognised that survivors of sex crimes were often also victims of domestic violence and needed to receive special treatment with this crossover in mind. It is important to note here that it was due to the experience of an officer at the Special Unit who worked in the National Service of Women (Servicio Nacional de la Mujer, now Ministry of Women and Gender Equality) before entering the Bureau, that this gender perspective was applied to the prosecution of cases relating to domestic violence and/or sex crimes (interviewee with 17 years in the Public Ministry, interviewed 8 November 2018).

Table 2 Laws passed and consequent creation of Special Units in the National Prosecution Bureau of Chile
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Notwithstanding the importance of the classification of violence against women and girls and femicide, it must be emphasised that within the Chilean legal system, such crimes are confined to the area of family and formal couple relationships (cohabitation), and are thus inapplicable to the murder of women outside of these contexts, such as dating, friendship or a stranger. Therefore, the laws on domestic violence and/or sex crimes cannot themselves be considered as laws on violence against women in a broad sense, since acts of violence against women are remitted to the domestic or private sphere. This avoids the problematisation of violence against women in the framework of the social hierarchy produced by the binary gender roles and prevents its recognition of the dynamics that underlie violence against women (VAW) as a social or public problem. Hence, they are not contained in a general law against gender-based violence.Footnote 15

Htun and Weldon (2013) have found that a strong feminist social movement is a necessary condition to pressure legislators, politicians and political organisations to sanction violence against women and recognise it as a human rights problem. The foregoing, added to the diffusion of international and regional human rights norms, constitutes the mix that the authors call ‘tipping points’ or points of change in the balance of power. These tipping points are: (1) the existence of strong and organised feminist movements that drives governments to legislate on violence against women and to allocate public funds for awareness, prevention and training programmes for public officials; this is established as a necessary condition for a State to adopt measures to stop violence against women. This is followed by (2) the existence of international treaties, such as the Convention on the Elimination of All Forms of Discrimination Against Women or CEDAW (UN 1979)Footnote 16 and the Declarations of Beijing (1985) and Vienna (1993) that encourage States to seek international legitimacy through the signing and ratification of binding instruments (CEDAW) and the adherence of soft-law instruments (declarations and/or norms), and also gives a base to feminist organisations to demand the commitments contracted by States at an international level. In addition, in CEDAW’s case, States must make periodic reports. Accordingly, feminist and human rights organisations meet with the Expert Committee to submit their (shadow) reports in which they present their requests and/or evaluations of the State’s work. Finally, (3) regional treaties to eliminate violence against women can enhance or function as a precedent for the implementation of international treaties. This is particularly true in the case of Latin America with the Belém do Pará Convention (OAS 1994), as States also respond better to instruments that are generated in their regional and cultural context because they are understood to appeal to a problem of national and local reality. Even the diffusion of norms and good practices is more effective in contexts of common language or cultures and similar histories, which occurs through contact between political elites and international lobbying networks (Moser and Moser 2005; Htun and Weldon 2013).

Everything mentioned above is particularly visible in the case of Chile. Since the 1980s, the country has had a strong feminist movement that has put violence against women at the political forefront, first in family contexts (Franceschet 2001, 2006; Sepúlveda and Sovino 2017) and currently as a social problem based on traditional gender relations. Moreover, Chile has signed and ratified important international human rights treaties such as CEDAW and regional treaties such as the Belém do Pará Convention. The signature of CEDAW took place in 1980 and its ratification in 1989, before the country passed a bill to eliminate violence against women within a domestic context (1994) and more recently against femicide (2005),Footnote 17 which, as mentioned above, only applies to formal romantic relations. In this matter, it is important to mention that the laws against domestic violence (Law 20.480,Footnote 18 which was modified by Law 20.066)Footnote 19 were not purposefully aimed at women, but women are the ones who ‘use’ the modified version the most (approximately 80% according to data from the Public Ministry).

It is also important to take into account the existence of international human rights norms and their insertion into the domestic sphere of states. From the International Relations and human rights field, Risse and Sikkink (1999) theorised about the stages in the process of states’ domestic change in the adoption of supranational human rights norms. They argued that initially, actors adapt to new rules as a response to external pressures, mainly due to instrumental purposes (Risse and Sikkink 1999, 17). However, as each state changes its rhetoric and validates international human rights norms, it is more likely to institutionalise these regulations, thus establishing a dynamic through which the precepts of human rights are incorporated into the internal operations of the state. Consequently, the implementation of human rights norms and principles no longer depends on the goodwill of a particular person, but becomes a ‘protocol’ for state officials (Risse and Sikkink 1999).

Within the Chilean case, the laws regarding specific forms of gender-based violence, such as domestic violence and sex crimes, have been passed after the signing and ratification of the international human rights treaties discussed above. Because treaties oblige member states to adapt their domestic institutions and laws to comply with them, Chile passed legislation that would help the fight against violence against women, and consequently, the National Prosecution Bureau would establish Special Units that would provide prosecution policies according to law. However, the new Special Unit does not respond to a treaty regarding gender-based violence as a whole, that is, including LGBTQI+ groups (such treaty does not exist in the region). Moreover, there is no Chilean law referring specifically to gender-based violence as exposed through this research. Thus, the Special Unit for Human Rights, Gender-Based Violence, and Sex Crimes is a novelty in the country both in terms of name and in terms of the source of creation, as it is a proactive change rather than a reactive one, differentiating itself from the previous Special Units. However, it is possible to say that the former Special Unit for Domestic Violence and Sex Crimes was a necessary condition for the creation of the new Unit. The work they carried out set the stage for an evolution of viewing and recognising domestic violence as a form of gender-based violence:

(…), now, to decidedly change name last year and definitely call it [the Special Unit] gender-based violence, there is without a doubt, a political decision to change the view and without a doubt to incorporate the gender themes, starting this year with the creation of the Gender-Based Violence Committee (…) (interviewee with 17 years in the Public Ministry, interview 8 November 2018. Translated by the authors).

Hence, reactive changes such as the creation of the former Special Units were necessary for a proactive change such as the creation of the new Special Unit for Human Rights, Gender-Based Violence, and Sex Crimes.

Moreover, the presence of the new Special Unit mandated by the National Prosecutor could also be proof of the internalisation of international human rights standards. This is because the special unit is in charge not only of gender-based violence but also of human rights; therefore, the connection between human rights and gender-based violence is made explicit. In addition, officials in charge of gender-based violence regard international human rights instruments as a source for prosecution standards (interviewee with two years in the Bureau, interviewed 8 November 2018).

The creation of the new Unit for Human Rights, Gender-Based Violence, and Sex Crimes has proved to be an institutional change that corresponds to an institutional displacement, according to Mahoney and Thelen’s (2010) classification, as seen in Waylen (2014). Within institutional displacement, first, old rules are replaced by new rules (i.e., the prosecution of domestic violence solely in family terms, against the prosecution of gender-based violence) through the creation of a new Special Unit that explicitly mentions gender-based violence in its title and mission, which replaced an old Special Unit for the prosecution of domestic violence and sex crimes. It is important to keep in mind that although the new Unit for Human Rights, Gender-Based Violence, and Sex Crimes bases its work on the work done by the the old Special Unit for the prosecution of domestic violence and sex crimes, it broadens its perspective, thus recognising domestic violence as a form of gender-based violence, with associated human rights implications and obligations. Second and third, old actors have very weak veto possibilities and a low level of discretion, interpretation, or both of the new norms, as these are instructed by managers such as the National Prosecutor and the National Executive Director and are written and binding (formal), and they are made explicit through official documents (Resolución FN/MP Nº 2078/2017). Fourth, the agents of change are insurrectional, as they oppose old traditional ways of the institution and they ally with institutional challengers rather than institutional goers. For example, the Advisor Lawyers at the new Special Unit belonged to the old Special Unit for Domestic Violence and Sex Crimes, and they allied with managers that wanted to change the status quo at the Bureau (National Prosecutor and National Executive Director) (interviewee with two years in the Bureau, interviewed 8 November 2018; interviewee with 17 years in the Public Ministry, interviewed 8 November 2018).

In addition to the creation of this new Special Unit, the Bureau, following the instructions given by the National Prosecutor and the National Executive Director, implemented other pro-gender-affirmative action policies, including giving women candidates an extra 5% in their evaluation for career advancement (to offset the fact that they hold fewer managerial positions due to family responsibilities), and the use of quotas for women to participate in training activities and seminars (interviewee with three years in the Bureau, interviewed 7 January 2019). Moreover, the Institutional Management Agreement document (Oficio FN Nº 948/2017)Footnote 20 (i.e., the document that sets the institutional plan of action for the following year) promised the creation of a Technical Gender Committee, as well as the hiring of staff to conduct a diagnostic of gender relations between officials.

At the time of writing, both agreements have been met. The Technical Gender Committee includes all leading chief positions throughout the National Prosecution Bureau. That is, it is formed by the National Executive Director, the Director of Planning and Strategic Coordination Unit, the Director of Human Resources Division, the Director of the Legal Assessment Unit, the Manager of the Division for Research, Evaluations, Development and Managerial Control, the Manager of the Division of Assistance for Victims and Witnesses, the Director of the Specialized Unit in Human Rights, Gender-Based Violence, and Sex Crimes, and an Advisor Lawyer from the same Unit. It is in charge of analysing gender relations within the Bureau as well as in the judicial services provided to citizens. The diagnostic report has already been submitted to the Bureau, and will be used for the improvement of the relations between personnel from a gender perspective (interviewee with three years in the Bureau, interview 7 January 2019; interviewee with one year and six months in the Bureau, interviewed 15 November 2018).

It is possible that the historical or traditional gender logic of what is appropriate (Chappell 2006) in the National Prosecution Bureau will be challenged through these changes, as well as the informal sexist norms identified in the previous section (discrimination against women’s career advancements and maternity rights). For example, the aforementioned masculine logic of the workplace that discriminated against women and their career advancement is challenged by the extra 5% awarded to women in their evaluation when applying for a promotion, as well as by quotas for women to participate in seminars and training activities. Moreover, the creation of the Technical Gender Committee is proof of gender mainstreaming at the Bureau, due to its transverse composition and the activities it carries out. It can be argued that these represent the insertion of formal gender norms within the Bureau because they are written, known by all, and binding.

Moreover, the Bureau has a strong policy for survivors of domestic violence, who are assisted through the Division of Assistance for Victims and Witnesses, where officers make sure that women who are in danger of further violence during and even after the legal process are relocated and able to access financial and psychological help. This has proven to be a positive measure of access to justice from a gender perspective, because it recognises that domestic violence against women has a structural nature and that many women who are survivors of domestic violence suffer not only physical violence but also psychological and economic violence. According to one of the interviewees, a strong Division of Assistance for Victims and Witnesses is a novelty at a regional level, since in her experience, similar divisions throughout the continent do not have strong budgets or enough power for decision-making in terms of policies (interviewee with 12 years in the Public Ministry, interviewed 28 December 2018).

‘Stickiness’ and definite shifting of old gender norms

Before moving on to the conclusions, we must remember that Chappell and Waylen (2013) say that gender norms are ‘sticky’, which means they display a certain resistance to change:

Gender norms have, however, proven to be very ‘sticky’. Challengers of existing gender logics of appropriateness have often been treated as ‘deviants’ and punished through acts of censure, ridicule, or harassment. With the weight of history on their side, defenders of the gender status quo—those advantaged by existing power arrangements—have often defeated attempts to subvert the existing regime. The intersection between the gender regime and other structures of power further compound the challenge for those seeking change and improved outcomes. (Chappell and Waylen 2013, 603)

Hence, for gender norms to shift definitely, this ‘stickiness’ needs to be overcome. We have assessed changes at the central level of the Public Ministry through the National Prosecution Bureau, but further information is needed to evaluate how things are working at regional levels in the Regional Prosecution Bureaus, where survivors of gender-based violence go for assistance. We know that changes are taking place at the central level, but it is still too soon to know whether these changes will permeate the whole Institution to the extent that prosecutors change the way they relate to survivors and people they assist, ensuring their access to justice. The Bureau acts at a central level, but for real everyday actions of prosecutors to take place with a gender perspective, all regional levels need to adopt the institutional changes that will bring a gendered perspective and secure the access to justice for survivors. We still do not know whether the traditional informal gender norms in the National Prosecution Bureau will stick and act against the new norms, or whether they will shift thanks to these new pro-gender policies. This is an area that requires further analysis.

However, as a cautionary note, we believe that the shift in gender norms in an institution will only be crystallised if there is a shifting of gender norms in other related institutions as well. To investigate the forms of violence related to gender-based violence, the Public Ministry receives support from the Police forces (Carabineros and Investigations Police), as well as from Health Services. As an example, if the Police implement a gender perspective when investigating a gender-based crime, they would be able to provide the prosecutor with better evidence—for example gender-specific evidence—and hence, be able to develop stronger cases. In sum, the change in an institution of the Justice System depends on the change in other related institutions, therefore forming what we call a ‘matrix of change’ that could help regender the whole system, and thus provide better access to justice for women and LGBTQI+ people.

Conclusions

As part of a post-dictatorial Latin American State, the National Prosecution Bureau was formed within patriarchal and criollo-centric standards, that is, functioning according to racial, sexual and class standards inherited from the colonial period. However, many changes are taking place at the National Prosecution Bureau regarding gender norms. The main one, which is the creation of the Special Unit for Human Rights, Gender-Based Violence, and Sex Crimes, means that now, cases of domestic violence against women are recognised as gender-based violence, thus obliging officials to pay regard to the underlying structure of gender inequality within these cases. This is fuelled by the role that the Special Unit plays at the National Prosecution Bureau, which implies the assessment of prosecution policies for the National Prosecutor; the analysis, registering, coordination, information and creation of technical documentation for the Bureau, as well as the design and practice of education policies for prosecutors in Santiago and other regions (Ministerio Público n.d. a; n.d. b). This is being done with a gender perspective, which could allow prosecutors to understand the diverse forms of gender-based violence in their full complexity.

Moreover, gender-based violence is now recognised in itself as related to human rights issues (Risse and Sikkink 1999). It is important to keep in mind that gender-based violence and human rights are attended at the same Special Unit. This could be read as gender-based violence being considered a human rights issue in itself (Rico 1996). That is, its approach is based upon rules and norms set by international human rights instruments such as the CEDAW and Belém do Pará, which put violence against women on the international agenda.

We assessed these changes from a feminist institutionalist (FI) standpoint, which proposes the possibility of regendering for institutions, so they become aware of their original masculine standards, and introduce new standards based on gender equality. The changes implemented challenge a traditionally masculine and criollo-centric institution, inserting a gender perspective, or regendering its daily functioning. The new Special Unit for Human Rights, Gender-Based Violence, and Sex Crimes proves to be a proactive change, as it is not a response to an existing law on gender-based violence; it is the implementation of policies against gender-based violence in the absence of a law that regulates it directly, looking to improve access to justice for survivors of this type of violence. Moreover, it constitutes an institutional displacement, because new gender norms replace old masculine ones; they are written, known by all and binding, so there is little veto or discretionary power in their application, and people who are the most closely mandated by these new norms act as institutional challengers who are allied with the insurrectional agents of change.

The National Prosecution Bureau should have a preventive role regarding gender-based violence, and this role will not take its place in the national agenda if the Institution and other pertinent institutions are not regendered, changing the masculine logics that underlie them. Their aim should be not just to guarantee better access to justice to survivors, but to also have fewer survivors over the years. The ways in which the Bureau operates could change the social logics regarding gender relations, by introducing new logics in Chilean society with gender equality in mind. Also, their success should be measured according to human rights standards because gender-based violence is a human rights issue.

The concluding remarks mentioned are relevant because, following March and Olsen (1989), bureaucrats treat users of an institutional service according to how they act within institutions, following the rules and procedures that are acceptable in them. Thus, if there is the implementation of a gender perspective to the daily functioning of the Bureau, its officials should act according to these rules when it comes to users. Hence, they may act according to a gender perspective in their role in securing access to justice (Acker 1992; Waylen 1993; Franceschet 2006; Kittilson 2010; Chappell and Waylen 2013; Waylen 2014). However, traditional gender norms are ‘sticky’, and it is still too soon to know whether they will shift definitely or whether they will remain, working against formal gender norms applied by the Bureau. At this time, further research is needed to investigate whether traditional gender norms shift towards an effective institutional regendering, or whether they are ‘stuck’ and remain in their place. In other words, it remains to be seen whether the changes made by the Bureau are merely formal or whether they have brought profound changes that would effectively improve access to justice for women and LGBTQI+ persons. Additionally, the implementation of a gender perspective in the Bureau falls short of the term ‘gender’ as we define it in this article, since the Bureau only considers, for the time being, policies regarding cis and heterosexual women, thereby excluding gender and sexual diversity from these policies. Hence, we propose the need for further assessment of how the institutional changes reviewed in this article are working in practice, as well as the definition of ‘gender’ used by the Institution.