Women and Justice: Keywords

Domestic Case Law

Sentencia nº 393 de Tribunal Supremo de Justicia (Número de Expediente: C15-298) Tribunal Supremo de Justicia (2016)

Sexual violence and rape, Statutory rape or defilement

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.