On April 2, 2009, by Presidential decree, the President of the Bolivarian Republic of Venezuela created the Ministry of Popular Power for Women. The reasons announced by the President for the creation of such Ministry were (i) to reduce discrimination against women, (ii) to promote the welfare and social security of the women in Venezuela, (iii) to eradicate discrimination against women, and (iv) to equal women and men in all aspects of social life.
Women and Justice: Jurisdiction
The objective of this law is to protect the human rights of every Venezuelan woman or woman resident in Venezuela. This law, independent of the race, creed, political, economic or social affinity of the women, seeks to defend the rights of the women in the following aspects: social, family, work and in all areas of daily life. This law intends to dignify women by providing that their fundamental rights are inviolable. It also recognizes as “violence” any form of abuse that violates or annuls any of the women’s human rights and sets forth diverse categories for all forms of violence against women and the procedures for the defense of the women’s rights. This legal instrument provides for all rights, regulations, and specific defense procedures necessary to protect the Venezuelan women from gender violence, but it is unclear the degree to which it will be enforced.
The Court ratified the decision made by the Second Court of the Criminal Judicial Circuit of the State of Amazonas by which the lower court declared the accused guilty of criminal violence, instead of a frustrated femicide attempt, as per the plaintiff complaint. The victim declared to the competent authorities that she was in her bed when her husband came to the house to spend time with his children. However, once inside the house, he started to hit her. During the fight he tried to kill her using a pillow. The victim’s brother arrived to the house just at the moment that the defendant was asphyxiating the victim. The victim’s brother pushed the man away from her, saving her life. In the reasoning for its decision, the Court considered that, even though all the evidence that the plaintiff presented to the lower court seemed to be sufficient to determine that the crime committed was in fact “frustrated femicide attempt,” the Court could not change the lower court’s decision and admit the frustrated femicide attempt because the attorney representing the plaintiff did not include in the file of its appeal petition the evidence necessary for such categorization.
The defendant was convicted for the crimes of human trafficking and association to commit crimes on May 15, 2014 in the state of Nueva Esparta. In its decision, the lower court said that in cases of rape and trafficking of persons, anyone who has been accused of having a relationship or knowledge of such crime could be deprived of liberty during trial, if it is deemed appropriate by the authorities. In the defendant’s case, he was accused of seducing and luring the female victim into the island of Margarita, where she was subjected, tortured, drugged, and raped. The defendant appealed the decision, alleging that it violated his right to be judged in freedom. The Court of Appeal for Violence Against Women on January 8, 2016 dismissed the appeal action and ratified the decision of the lower court and determined that the apprehension of the accused before his conviction did not represent a violation of the law. The appellate court ratified the criteria of the lower court according to which those defendants who are linked to the act of people trafficking and gender violence can be arrested before issuing a conviction decision, if deemed appropriate by the authorities.
In 2001, the female victim was kidnapped, tortured, raped and kept in captivity for four months. All complaints made by her sister to the competent authorities related to her sister’s disappearance were dismissed by the police. In 2007, the competent criminal court issued a partial conviction to the offender. He was convicted for the crimes of kidnapping and captivity. However, the acts of physical, verbal, psychological and sexual violence were not considered by the court because, according to the court, there was not enough evidence to determine that sex and violence were committed without the plaintiff’s consent. Between 2001 and 2007 the victim went through many judicial processes. Decision No. C07-0187 was the final decision issued by Venezuelan Supreme Court of Justice, as the court of last recourse in Venezuela. After having exhausted all national procedures, the complainant referred her case to the international courts in order to sue the Venezuelan state for failing to safeguard and protect her human rights. On March 6, 2018 the Inter-American Commission on Human Rights found the Venezuelan state responsible for the violation of the rights established in the Inter-American Convention to Prevent and Punish Torture.
The female victim declared to the competent authorities that she worked as a motorcycle taxi driver in La Fria, Táchira State. On the morning of September 9, 2014, she transported a male passenger. During the journey, the passenger threatened and sexually assaulted her with an object. On November 18, 2014, the lower court convicted the defendant of the crime of sexual violence even though psychological or physical violence were not proven at the trial, which used to be one of the elements for such crime. The defendant requested a review of the court’s decision to the Constitutional Chamber of the Supreme Court of Justice (the “TSJ”) on the basis that neither physical nor psychological violence were confirmed by the lower court. The TSJ ratified the decision of the lower court and decided that it is no longer necessary to verify that physical or psychological violence occurred in order to determine the crime of sexual violence. As a result of this decision, each of the crimes of sexual, psychological, and physical violence can be committed separately, reinforcing the protection of women’s rights. This decision represents an improvement in rights for women in Venezuela.
The plaintiff, a female Venezuelan citizen married to a female Venezuelan citizen, got married in Argentina, where LGBT marriage rights are fully granted to homosexual couples. In the following years, they tried to validate their marriage in Venezuela through a judicial homologation process. Such homologation was denied on the basis that the marriage regulations in Argentina did not comply with the provisions of Article 44 of the Venezuelan Civil Code, which regulates marriage rights in Venezuela and provides that “marriage cannot be entered into except between one single man and one single woman.” Thereafter, the couple conceived a child through the assisted reproduction method in Argentina, who was born and presented for registration as their son in Argentina. Immediately after the baby was born, the couple moved back to Venezuela, where they tried to present the newborn as their son to the Venezuelan competent authorities, requiring that the baby carried the surnames of both mothers. The registration was denied. The couple introduced a complaint before the competent court and the judge decided the registration of the boy was inadmissible. The plaintiff appealed this decision until it reached the Constitutional Chamber of the Supreme Court of Justice (“TSJ”), Venezuelan’s highest judicial body, which decided to annul the decision of the lower court. The TSJ overruled the lower court’s decision on the basis that the decision violated the plaintiff’s right to present the child as an LGBTIQ couple’s child. Likewise, the TSJ stated that this action violated the child’s constitutional right to have an identity. The TSJ final decision was to allow the registration of the child with both mothers’ surnames.
A mother was charged with sexual abuse of her own son and daughter. The trial court issued an order of detention pending trial. When the mother brought an extraordinary constitutional petition seeking protection against the order, the court of appeals declined to hear the petition on the ground that such a petition can heard only after ordinary remedies have been exhausted. On appeal to the Supreme Court, the mother argued that the underlying order of detention suffered from various constitutional defects, mainly that special courts have exclusive jurisdiction to hear cases involving sexual violence against a girl and that the trial court therefore lacked jurisdiction. (The mother argued, moreover, that she was being prosecuted and detained in order to prevent enforcement of her visitation rights—this after she had already been deprived of them the two years prior.) The Supreme Court affirmed the appellate decision, noting that the mother had not exhausted any of the three remedies still available to her: motion for reconsideration, motion for substitution, and an ordinary appeal.
A man invaded his neighbor’s house at night while two girls (12 and 17 years old) and their grandmother slept, and sexually assaulted the two girls. The trial court convicted him of sexual abuse and physical violence. After the court of appeals affirmed the conviction, the defendant brought a cassation appeal to the Supreme Court, arguing that the court of appeals erred by (1) selectively giving weight only to certain testimony of the victims and their grandmother, while ignoring exculpatory evidence; and (2) finding facts without articulating grounds for each finding. Noting that weighing of evidence and fact finding are the exclusive domain of the trial court and that appellate review must be limited to assessment of the sufficiency of the evidence, the Supreme Court denied the appeal, expressly rejecting it as an attempt to replay the appeal below.
An indigenous man was charged with physical violence and threats against his ex-partner (a non-indigenous woman), a violation of the Organic Law on the Right of Women to a Life Free of Violence (the “statute”), which created special courts with exclusive jurisdiction to hear cases under the statute. The special court issued a restraining order in lieu of detention pending trial. Prosecutors appealed. While the appeal was pending, the man violated the restraining order. The court of appeals vacated the restraining order and ordered detention. On a constitutional appeal to the Supreme Court, the defendant argued that, because of his identity as an indigenous person, his community’s authorities had exclusive jurisdiction to hear the case. The Supreme Court acknowledged that (1) the Organic Law on Indigenous Peoples and Communities creates special jurisdiction authorizing indigenous communities to resolve controversies arising among their members within their lands, (2) this special jurisdiction allows the communities to apply their own laws, and (3) the national courts must recognize the decisions of the communities. But the Court also stressed that international conventions, the national constitution, and special laws (such as the statute) placed limitations on that jurisdiction. The Court cited, for example, Article 9 of the ILO Convention on Indigenous and Tribal Peoples, which provides that “the methods customarily practiced by the peoples concerned for dealing with offenses committed by their members shall be respected,” but only “[t]o the extent compatible with the national legal system and internationally recognized human rights.” More precisely, the Court noted that the statute itself established that indigenous authorities could serve as agents for receiving complaints of violence against women, but only without prejudice to the victim’s right to seek remedy in the special courts. Based on that analysis, the Court held that the special courts have exclusive jurisdiction to hear cases under the statute, regardless of the defendant’s ethnic identify. Notably, the Court ordered that its holding be published as binding precedent.
A male dance teacher was charged with sexually abusing a three-year-old girl at a dance school, by inducing her to perform oral sex and rubbing his penis against her behind. Trial witnesses included the child, a security guard, and the parent of another student. The trial court convicted the man and sentenced him to over 15 years of imprisonment. On appeal, he argued that the conviction was illogical and groundless because the testimony of the guard and parent disproved that he was alone with the child at the school at the time of the alleged crime. He also asserted that the prosecution turned down his offers to test his DNA against any found on the child’s undergarment. The court of appeals affirmed the conviction, noting that factual and credibility determinations were for the trial court to make. On a cassation appeal, the defendant argued that the court of appeals failed to state the grounds for its decision. The Supreme Court also affirmed the conviction, finding that the defendant failed to specify the legal errors he claimed.
A landlady alleged that two delinquent male tenants assaulted her and threatened to kill her if she sought to evict them. The tenants were charged with “violence against a woman,” a violation of the Organic Law on the Right of Women to a Life Free of Violence (the “statute”), which created special courts with exclusive jurisdiction to hear cases under the statute. The ordinary court declined jurisdiction and referred the case to the special court. In the meantime, after completing their investigation, prosecutors downgraded the charges to “general injuries,” a violation of the general penal code. The special court also declined jurisdiction, reasoning that its jurisdiction under the statute was limited to gender-based violence and that the violence alleged in the case was rooted in a contractual dispute and not in the landlady’s gender. When the jurisdictional conflict was certified to the Supreme Court, it held that the landlady’s gender was sufficient to bring the case within the exclusive jurisdiction of the special courts, irrespective of the statutory classification of the alleged crime. Dissenting judges argued that the special court’s jurisdiction was confined to gender-based crimes and that the majority opinion would result in a separate system of justice for each gender.
A teenage girl reported she had been sexually abused by a man. A medical exam confirmed she had suffered involuntary anal penetration on the date of her report. At trial, however, the girl testified that she was in a sexual relationship with a boyfriend at the time of the alleged abuse, another girl had advised her to blame the defendant in order to protect the boyfriend, and the defendant was innocent. Her father corroborated her testimony, explaining that she recanted her accusations when he told her “where the defendant was being held.” Noting “contradictions” in the girl’s and father’s testimony (e.g., the girl did not know the full name or the address of the boyfriend or the other girl), the trial court gave “no weight” to the recantation, indicating that it was the product of “manipulation.” Instead, based on the medical evidence and the testimony of witnesses who responded to the girl’s initial report, the trial court convicted the defendant. The court of appeals affirmed. On a cassation appeal to the Supreme Court, the defendant argued that (1) the trial court failed to articulate the grounds for finding each element of the offense, and (2) the conviction was incongruous because there was no evidence identifying him as the perpetrator other than the girl’s own now-recanted statements. The Supreme Court vacated the conviction and ordered a new trial, ruling that the trial court had made certain findings about the alleged crime without citing a basis in the record. Notably, after a lengthy discussion of the importance of protecting victims from “secondary victimization” in the legal process, the Court authorized the trial court to read the girl’s testimony from the first trial into the record of the new trial, in lieu of requiring her to submit to live re-examination.
A 13-year-old girl reported having consensual sex with her 26-year-old boyfriend. He was charged under a statute that outlaws sexual relations, even without violence or intimidation, to the detriment of a woman who is “vulnerable” because of her age. The trial court convicted the defendant, finding the girl “vulnerable” based on psychological evaluations. On appeal, the court of appeals focused on the girl’s “discernment” to “decide concerning an active sexual life.” The court of appeals then found the girl not “vulnerable” in light of her testimony that she consented to the alleged crime. The court thus vacated the conviction. The court of appeals also found that the psychological evaluations had “nothing to do with” the issue, because they did not focus on the girl’s “discernment,” but rather on her emotional state, which, in any event, was caused by “rigid standards and values” at home and the “the presence of a controlling feminine figure” (her mother), and not by the relationship with the boyfriend. Because the couple had been dating for four months before deciding “by mutual accord” to have sex, the court found that the boyfriend had not taken advantage of the girl. Prosecutors then brought a cassation appeal to the Supreme Court, arguing that the court of appeals had misinterpreted and misapplied the statute. Although the Supreme Court also focused on the “degree of discernment or maturity possessed by the victim to make decisions regarding her sexual freedom,” the Court also held that the girl’s emotional state was essential to the analysis of her vulnerability and her ability to give “free consent,” because “emotions are determinants” that “directly influence human behavior.” The Supreme Court thus remanded the case to a new appeals panel, with directions to rehear the defendant’s appeal in a manner consistent with the Court’s opinion.
In the predawn hours of a Sunday morning, police officers came upon a cab parked in a secluded location. A woman (apparently an adolescent) emerged from the car naked and told the officers she was being raped by the driver, who was found with his pants down. Prosecutors charged the driver with attempted sexual violence. After the driver pled guilty and was sentenced to 50 months of imprisonment, the victim appealed the classification of the offense and prosecutors opposed the appeal. Based on evidence in the record, the court of appeals modified the conviction to sexual violence, doubling the time of the prison sentence. On the driver’s cassation appeal, the Supreme Court held that, by upgrading the conviction beyond the driver’s plea, the modification denied the driver the opportunity to present a defense and thus violated his right to due process. The Supreme Court accordingly vacated the modification and remanded the case for rehearing of the victim’s appeal.
In 2013, a woman’s ex-partner wounded her with a machete and knife as she was arriving home at midnight. When the victim’s sister intervened, the man punched the sister and ran off. For his attack against his ex-partner, the man was charged with attempted homicide, a violation of both the general penal code and the Organic Law on the Right of Women to a Life Free of Violence (the “statute”). For his attack against the sister, he was charged with physical violence, a violation of the statute. Amended in 2014, the statute created special courts with exclusive jurisdiction to hear cases brought under the statute, but a subsequent Supreme Court decision clarified that all types of homicide offenses occurring prior to the amendment remained within the jurisdiction of ordinary courts. During the preliminary hearing, the ordinary court found that the allegations did not support the attempted homicide charge but rather the offense of “minor injuries,” a violation of the statute. Accordingly, the ordinary court ruled that it lacked jurisdiction and thus referred the case to the special court. In turn, finding that the allegations did support a homicide charge, the special court also concluded that it lacked jurisdiction. When the jurisdictional conflict was certified to the Supreme Court, it held that the special court had exclusive jurisdiction. The Court explained that the classification of the “homicide” charge was of no consequence, because the charge against the sister vested jurisdiction in the special court over all related charges involving gender violence.
A 12-year-old girl with the cognitive ability of a nine-year-old reported that she had had consensual sex with her boyfriend and separately with his roommate, both adult males. A medical exam confirmed she had engaged in intercourse. The roommate came forward to the police, saying that he wished to clear his name and felt “remorse” because he “had been with” the girl. The two men were charged under a statute that outlaws sexual relations, even without violence or intimidation, to the detriment of a woman who is “vulnerable” because of her age. A girl under 13 is per se vulnerable under the statute. At trial, the girl’s mother and a psychologist testified that the girl had told them that she falsely accused the defendants because the real perpetrator, who had subsequently died, had threatened her. But the psychologist further explained the girl’s contradiction was the product of cognitive limitations and did not mean that the defendants were innocent. For his part, the roommate admitted that he had made the above-quoted statements to the police, but added that he made them under coercion. Based on that admission, the trial court convicted the roommate and sentenced him to over 17 years of imprisonment. The roommate appealed, arguing that the trial court failed to articulate the grounds for finding each element of the alleged offense. The appellate court denied the appeal in a conclusory opinion. On a cassation appeal, the Supreme Court agreed with the roommate’s argument, vacated the appellate decision, and remanded the appeal for rehearing before a different appellate court.
The Supreme Court declared the Organic Law on Women's Right to a Life Without Violence approved by the National Assembly on 25 November 2006 constitutional. The Court found that the Law develops the constitutional protection referred to in article 21.2 of the Constitution for the benefit of women, a traditionally vulnerable social group.