South America

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Domestic Case Law

AA v. Fiscalía General de la Nación, Caso No. 375/2007 Tribunal Apelaciones Penal 3º Tº (Third Criminal Appeals Court) (2007)

Domestic and intimate partner violence

The Trial Court sentenced the accused (AA) to 20 months in prison for crimes of domestic violence against his wife (BB). AA filed an appeal to the Appeals Court arguing that the scope of the law against domestic violence applied only to victims that were deemed to be defenseless. AA argued that the victim, BB was a member of the military and as such could not be deemed a defenseless person. The Appeals Court dismissed the appeal affirming the decision of the Trial Court. The Appeals Court determined that the fact that the victim was a member of the military was irrelevant and that the acts of violence were appropriately analyzed considering only the aggressor’s actions.

El Tribunal de Primera Instancia condenó al acusado (AA) a 20 meses de prisión por delitos de violencia doméstica contra su esposa (BB). AA presentó una apelación ante el Tribunal de Apelaciones argumentando que el alcance de la ley contra la violencia doméstica se aplicaba solo a las víctimas que se consideraban indefensas. AA argumentó que la víctima, BB era miembro del ejército y, como tal, no podía considerarse una persona indefensa. El Tribunal de Apelaciones desestimó la apelación afirmando la decisión del Tribunal de Primera Instancia. El Tribunal de Apelaciones determinó que el hecho de que la víctima era miembro de las fuerzas armadas era irrelevante y que los actos de violencia se analizaron adecuadamente considerando solo las acciones del agresor.



AA v. Fiscalía General de la Nación, Caso No. 327/2008 Tribunal Apelaciones Penal 1º Tº (First Criminal Appeals Court) (2008)

Domestic and intimate partner violence

The Trial Court of Tacuarembó sentenced AA to 12 months in prison for domestic violence, deemed as aggravated because the victim was a woman. AA and the victim had been living together in a common law marriage since 2000. In 2002 the victim reported on several occasions multiple instances of physical abuse and of psychological violence. In September 2003, the victim filed a complaint against AA for injuries inflicted to her neck and arm, which were verified by a public health doctor. The couple reconciled, but thereafter got separated again. On January 1, 2004 the victim was on her way to visit a friend when AA intercepted her on the street and forcibly grabbed her left arm while pressing a ring against her mouth until he broke her front tooth. Between December 2003 and January 2004 the victim had also reported several threats and aggressions from AA. AA appealed to the Appeals Court. The Court dismissed the appeal affirming the decision of the Trial Court and ruling that the 12-month sentence was appropriate considering the evidence presented and AA’s dangerous personality.

El tribunal de primera instancia de Tacuarembó condenó a AA a 12 meses de prisión por violencia doméstica, lo que se consideró agravado porque la víctima era una mujer. AA y la víctima habían estado viviendo juntas en un matrimonio de hecho desde 2000. En 2002, la víctima denunció en varias ocasiones múltiples casos de abuso físico y violencia psicológica. En septiembre de 2003, la víctima presentó una denuncia contra AA por las lesiones infligidas en su cuello y brazo, que fueron verificadas por un médico de salud pública. La pareja se reconcilió, pero luego se separaron nuevamente. El 1 de enero de 2004, la víctima se dirigía a visitar a una amiga cuando AA la interceptó en la calle y la agarró por la fuerza del brazo izquierdo mientras presionaba un anillo contra su boca hasta que le rompió el diente frontal. Entre diciembre de 2003 y enero de 2004, la víctima también había denunciado varias amenazas y agresiones de AA. AA apeló ante el Tribunal de Apelaciones. El Tribunal desestimó la apelación afirmando la decisión del Tribunal de Primera Instancia y resolvió que la sentencia de 12 meses era apropiada considerando las pruebas presentadas y la personalidad peligrosa de AA.



Caeiro v. Tecnosolar S.A., Caso No. SEF-0013-000001 / 2015 Tribunal Apelaciones Trabajo 2ºT (Second Labor Court of Appeals) (2015)

Employment discrimination, Sexual harassment

The plaintiff sued the defendant in Civil Labor Court for damages suffered because of sexual harassment in the workplace. The plaintiff was an employee of the defendant for 13 years, always received good performance reviews, and was promoted. One of the company’s directors continuously harassed her in the workplace for over two years even though the plaintiff rejected his propositions. Over the course of those two years, the director sent several inappropriate text messages and emails to the plaintiff, to which she never responded. On one occasion, he sent an email with more than 70 pictures of sexual content to the plaintiff. After this incident, the plaintiff filed a formal complaint with one of the company’s executives who asked the director to apologize, but did not take any additional action. The plaintiff then quit her job and sued her employer for sexual harassment in the workplace. The Trial Court ruled in favor of the plaintiff and awarded her UR$ 880.272 pesos and a 10% administrative fine against the defendant. The defendant appealed, arguing that there was insufficient evidence to find for the plaintiff and that, if anything, the plaintiff had consented to the director’s advances. The Appeals Court analyzed all the unanswered harassing emails and messages sent to the plaintiff and determined that the appeal had no basis. The court determined that the director’s conduct qualified as sexual harassment in the workplace per Law No. 18.561 and that his conduct had effectively created a hostile work environment for the plaintiff, which had forced her to quit her job. Therefore, The Appeals Court affirmed the Trial Court’s award.

La demandante demandó al acusado en el Tribunal de Trabajo Civil por los daños sufridos por el acoso sexual en el lugar de trabajo. La demandante era empleada del acusado durante 13 años, siempre recibió buenas evaluaciones de desempeño y fue promovida. Uno de los directores de la compañía la acosó continuamente en el lugar de trabajo durante más de dos años, a pesar de que la demandante rechazó sus propuestas. En el transcurso de esos dos años, el director envió varios mensajes de texto y correos electrónicos inapropiados al la demandante, a lo que ella nunca respondió. En una ocasión, envió un correo electrónico con más de 70 imágenes de contenido sexual a la demandante. Después de este incidente, la demandante presentó una queja formal ante uno de los ejecutivos de la compañía que le pidió disculpas al director, pero no tomó ninguna medida adicional. La demandante luego renunció a su trabajo y demandó a su empleador por acoso sexual en el lugar de trabajo. El Tribunal de Primera Instancia falló a favor de la demandante y le otorgó UR $ 880.272 pesos y una multa administrativa del 10% contra el acusado. El acusado apeló, argumentando que no había pruebas suficientes y que, en todo caso, la demandante había dado su consentimiento a los avances del director. El Tribunal de Apelaciones analizó todos los correos electrónicos y mensajes de acoso no respondidos enviados a la demandante y determinó que la apelación no tenía fundamento. El tribunal determinó que la conducta del director calificaba como acoso sexual en el lugar de trabajo según la Ley N ° 18.561 y que su conducta había creado efectivamente un ambiente de trabajo hostil para la demandante, lo que la había obligado a renunciar a su trabajo. Por lo tanto, el Tribunal de Apelaciones confirmó la conclusión del Tribunal de Primera Instancia.



AA v. Fiscalía General de la Nación, Caso No. 413/2008 Tribunal Apelaciones Penal 2º Tº (Second Criminal Court of Appeals) (2008)

Domestic and intimate partner violence

The Trial Court sentenced the accused (AA) to 10 months with a suspended sentence for the crime of domestic violence against his wife (BB). AA intimidated and committed continuous acts of violence against BB. The Trial Court deemed the continuous and manipulative nature of this violence to be an aggravating circumstance. AA appealed, arguing that the Trial Court had improperly analyzed the evidence and that there was not enough evidence to convict him. The Appeals Court determined that the evidence on file should be analyzed in the context of the contentious relationship between AA and BB. While AA argued that BB had mental problems, the court found this argument a mere pretext to deflect attention away from his own misconduct. The facts of the case showed that BB supported the home and paid for AA’s expenses, which demonstrated that AA had interests in BB aside from affection. The doorman of the building where AA and BB lived testified that he once saw AA breaking things in a violent rampage. This  testimony contradicted AA’s statement that he was not destructive. The Appeals Court found that there was sufficient evidence in the record to demonstrate AA’s guilt and affirmed the decision of the Trial Court.

El Tribunal de Primera Instancia condenó al acusado (AA) a 10 meses con una sentencia suspendida por el delito de violencia doméstica contra su esposa (BB). AA intimidó y cometió actos continuos de violencia contra BB. El Tribunal de Primera Instancia consideró que la naturaleza continua y manipuladora de esta violencia era una circunstancia agravante. AA apeló, argumentando que el Tribunal de Primera Instancia había analizado incorrectamente las pruebas y que no había suficientes pruebas para condenarlo. El Tribunal de Apelaciones determinó que la evidencia en el archivo debe analizarse en el contexto de la relación entre AA y BB. Mientras AA argumentó que BB tenía problemas mentales, el tribunal consideró este argumento como un simple pretexto para desviar la atención de su propia mala conducta. Los hechos del caso mostraron que BB apoyaba la casa y pagaba los gastos de AA, lo que demuestra que AA tenía intereses en BB además de ser afectuoso. El portero del edificio donde vivían AA y BB testificó que una vez vio a AA rompiendo cosas en un violento alboroto. Este testimonio contradecía la declaración de AA de que no era destructivo. El Tribunal de Apelaciones determinó que había pruebas suficientes en el expediente para demostrar la culpabilidad de AA y afirmó la decisión del Tribunal de Primera Instancia.



AA v. Fiscalía General de la Nación, Caso No. 328/2011 Tribunal Apelaciones Penal 2º Tº (Second Criminal Appeals Court) (2011)

Sexual violence and rape

The Trial Court sentenced the 28-year-old accused (AA) to seven years and six months in prison for the crimes of rape, kidnapping and robbery. On March 27, 2011, AA approached the 18-year-old victim (BB) at a bus station and threatened her with a knife. BB offered him money, but AA put a knife to her throat and took her to a nearby field where he sexually assaulted her several times during the night, hit her repeatedly, and videotaped the sexual assault with his cellphone. AA then tied up BB and, before leaving her in the field, used BB’s cellphone to text her mother the location where BB could be found. He stole the cellphone and sold it at a fair. On July 22, 2011, AA was arrested. The police found in his possession a memory card with pornography and the video of BB’s rape. The Appeals Court dismissed the appeal and affirmed the decision of the Trial Court. The Appeals Court amended the qualification of the crimes to aggravated and rendered opinion that the sentence imposed by the Trial Court should have been more severe due to the proven dangerous nature of AA.

El Tribunal de Primera Instancia condenó al acusado (AA) de 28 años a siete años y seis meses de prisión por los delitos de violación, secuestro y robo. El 27 de marzo de 2011, AA se acercó a la víctima que tenía 18 años (BB) en una estación de autobuses y la amenazó con un cuchillo. BB le ofreció dinero, pero AA le puso un cuchillo en la garganta y la llevó a un campo cercano donde la agredió sexualmente varias veces durante la noche, la golpeó repetidamente y grabó en video la agresión sexual con su teléfono celular. AA luego ató a BB y, antes de dejarla en el campo, usó el teléfono celular de BB para enviarle un mensaje de texto a su madre sobre el lugar donde se podía encontrar a BB. Robó el teléfono celular y lo vendió en una feria. El 22 de julio de 2011, AA fue arrestado. La policía encontró en su poder una tarjeta de memoria con pornografía y el video de la violación de BB. El Tribunal de Apelaciones desestimó el recurso y confirmó la decisión del Tribunal de Primera Instancia. El Tribunal de Apelaciones modificó la calificación de los delitos a agravada y emitió una opinión de que la sentencia impuesta por el Tribunal de Primera Instancia debería haber sido más severa debido a la naturaleza peligrosa comprobada de AA.



M.D. v. Prieta, Caso 312/2007 Tribunal Apelaciones Familia 1ºT (First Family Appeals Court) (2017)

Domestic and intimate partner violence

A Trial Court awarded the plaintiff UR$4,500 for actual damages and UR$30,000 for emotional distress damages, resulting from the domestic violence committed by the defendant, her common-law husband.  The defendant appealed, arguing that, beyond the plaintiff’s testimony and a medical diagnosis based on that testimony, there was no proof that he had committed acts of domestic violence. The defendant further argued that the plaintiff’s depression and anxiety were the consequences of a preexisting medical condition.  Additionally, the defendant proposed on appeal that the law does not recognize emotional distress damages in a common law marriage because the duty of fidelity and the duty to do no harm only arise from marriage. Finally, the defendant said that the plaintiff had consented to the acts of domestic violence acts and, therefore, there could be no damages.  The Family Appeals Court determined that domestic violence is a human rights violation: a victim cannot consent to be the victim of domestic violence and every person has a general duty to not harm another.  The Family Appeals court also ruled that the medical and psychological diagnoses were not hearsay. The Family Appeals Court dismissed the appeal and partially affirmed the decision of the Trial Court, concluding that the defendant breached a duty to the plaintiff, that there was causation between the harm and the domestic violence, and that the plaintiff suffered damages.  However, it reduced the award of actual damages from $4,500 to $2,250 due to the fact that the defendant had already made payments to the plaintiff.

Un Tribunal de Primera Instancia le otorgó al demandante UR $ 4,500 por daños reales y UR $ 30,000 por daños por angustia emocional, como resultado de la violencia doméstica cometida por el acusado, su marido en matrimonio común. El acusado apeló, argumentando que, más allá del testimonio del demandante y un diagnóstico médico basado en ese testimonio, no había pruebas de que hubiera cometido actos de violencia doméstica. El acusado argumentó además que la depresión y la ansiedad del demandante fueron las consecuencias de una afección médica preexistente. Además, el acusado propuso en apelación que la ley no reconoce los daños por angustia emocional en un matrimonio común porque el deber de fidelidad y el deber de no hacer daño solo surgen del matrimonio. Finalmente, el acusado dijo que el demandante había consentido a los actos de violencia doméstica y, por lo tanto, no podía haber daños. El Tribunal de Apelaciones de la Familia determinó que la violencia doméstica es una violación de los derechos humanos: una víctima no puede consentir ser víctima de violencia doméstica y cada persona tiene el deber general de no dañar a otra. La corte de Apelaciones de Familia también dictaminó que los diagnósticos médicos y psicológicos no eran rumores. El Tribunal de Apelaciones de la Familia desestimó la apelación y confirmó parcialmente la decisión del Tribunal de Primera Instancia, concluyendo que el acusado incumplió el deber del demandante, que había conexión entre el daño y la violencia doméstica, y que el demandante sufrió daños. Sin embargo, redujo la adjudicación de daños reales de $ 4,500 a $ 2,250 debido al hecho de que el acusado ya había realizado pagos al demandante anteriormente.



AA v. Fiscalía General de la Nación, Caso No. 299/2010 Tribunal Apelaciones Penal 1º Tº (First Criminal Appeals Court) (2010)

Domestic and intimate partner violence

The Trial Court sentenced the accused (AA) to two years in prison for aggravated domestic violence.  The court considered the aggravating circumstances to be the accused’s recidivism and the use of his strength to overpower his female victim.  AA had a history of domestic violence against his wife (BB).  Even though he had repeatedly assaulted BB and stabbed her once, BB refused to file a complaint against him.  A family court judge imposed a restraining order against AA pursuant to which he could not get closer than 300 meters to BB and her children. However, BB on several occasions allowed AA back in her home and near the children.  On October 7, 2008, AA came over to BB’s house with the intention of moving back in, but when BB declined, AA locked her and her children in a room for two hours.  He did not physically assault them, but did threaten to kill them.  BB filed a complaint and AA was convicted of domestic violence.  AA appealed arguing that BB had subsequently withdrawn her criminal complaint against him, which constituted consent to his conduct. The Appeals Court determined that the victim’s withdrawal of her complaint was a consequence of “battered women’s syndrome,” and had no bearing on a criminal action.  The Appeals Court dismissed the appeal and affirmed the decision of the Trial Court.

El Tribunal de Primera Instancia condenó al acusado (AA) a dos años de prisión por violencia doméstica agravada. El Tribunal consideró que las circunstancias agravantes eran la reincidencia del acusado y el uso de su fuerza para dominar a su víctima femenina. AA tenía antecedentes previos de violencia doméstica contra su esposa (BB). Aunque había asaltado repetidamente a BB y la apuñaló una vez, BB se negó a presentar una queja contra él. Un juez de un tribunal de familia impuso una orden de restricción contra AA en virtud de la cual no podía acercarse más de 300 metros a BB y sus hijos. Sin embargo, BB en varias ocasiones permitió que AA regresara a su casa y estuviera cerca de los niños. El 7 de octubre del 2008, AA vino a la casa de BB con la intención de regresar, pero cuando BB declinó, AA la encerró a ella y a sus hijos en una habitación durante dos horas. No los agredió físicamente, pero amenazó con matarlos. BB presentó una queja y AA fue condenado por violencia doméstica. AA apeló argumentando que BB había retirado posteriormente su denuncia penal contra él, lo que constituía un consentimiento para su conducta. El Tribunal de Apelaciones determinó que la retirada de la denuncia de la víctima fue una consecuencia del "síndrome de las mujeres maltratadas" y no tenía relación con una acción penal. El Tribunal de Apelaciones desestimó el recurso y confirmó la decisión del Tribunal de Primera Instancia.



AA v. Fiscalía General de la Nación, Caso No. 6/2009 Tribunal Apelaciones Penal 2º Tº (Second Criminal Appeals Court) (2009)

Sexual violence and rape, Statutory rape or defilement

The Trial Court sentenced the accused (AA) to three years and six months in prison for the kidnapping and continuous sexual abuse of a 15-year-old girl (BB). AA had been sexually abusing BB once a week since she was 11 years old. When BB was 15 years old, AA called her over to his house under false pretenses and then, against her will, he locked her inside and raped her for six hours.  AA was drunk and when he got distracted, BB was able to escape and find a neighbor who helped her.  The Trial Court determined that there was enough evidence to prove the kidnapping and the continuous sexual abuse. The Appeals Court dismissed AA’s appeal and  affirmed the decision of the Trial Court, except for qualifying the rape as continuous sexual abuse. Based on the facts of the case, the Appeals Court ruled the sexual abuse as repetitive instead of continuous.  It also determined that AA’s inebriation was voluntary, and thus had no relevance in sentencing.

El Tribunal de Primera Instancia condenó al acusado (AA) a tres años y seis meses de prisión por el secuestro y el abuso sexual continuo de una niña de 15 años (BB). AA había abusado sexualmente de BB una vez por semana desde que tenía 11 años. Cuando BB tenía 15 años, AA la llamó a su casa con falsos pretextos y luego, contra su voluntad, la encerró y la violó durante seis horas. AA estaba borracho y cuando se distrajo, BB pudo escapar y encontrar a una vecina que la ayudó. El Tribunal de Primera Instancia determinó que había pruebas suficientes para probar el secuestro y el abuso sexual continuo. El Tribunal de Apelaciones desestimó la apelación de AA y confirmó la decisión del Tribunal de Primera Instancia, excepto que calificó la violación como abuso sexual continuo. Con base en los hechos del caso, el Tribunal de Apelaciones dictaminó que el abuso sexual era repetitivo en lugar de continuo. También determinó que la embriaguez de AA era voluntaria y, por lo tanto, no tenía relevancia en la sentencia.



AA v. Fiscalía General de la Nación, Caso No. 359/2013 Tribunal Apelaciones Penal 1º Tº (First Criminal Appeals Court) (2013)

Sexual violence and rape, Statutory rape or defilement

The Trial Court sentenced the accused (AA) to four years in prison for aggravated sexual abuse of a minor (BB). AA and the mother of BB had a common law marriage. AA had been sexually abusing BB since she was eight years old and started raping her when she turned 11.  At age 14, BB became pregnant as a result of rape committed by AA.  BB’s mother discovered AA’s abuse and filed the criminal complaint.  AA confessed to being the victim’s “lover.”  The court found aggravating circumstances including that AA had taken advantage of his domestic relationship with BB’s mother and that he had abused his victim during the night. AA’s confession constituted an attenuating circumstance, reducing the sentence imposed.  The Appeals Court dismissed AA’s appeal and affirmed the Trial Court’s decision, ruling that there was enough evidence presented to establish the facts of the case.

El Tribunal de Primera Instancia condenó al acusado (AA) a cuatro años de prisión por abuso sexual agravado de un menor (BB). AA y la madre de BB tenían un matrimonio común. AA había abusado sexualmente de BB desde que tenía ocho años y comenzó a violarla cuando cumplió los 11. A los 14 años, BB quedó embarazada como resultado de una violación cometida por AA. La madre de BB descubrió el abuso de AA y presentó esta denuncia penal. AA confesó ser el "amante" de la víctima. El tribunal encontró circunstancias agravantes, incluyendo que AA se había aprovechado de su relación doméstica con la madre de BB y que había abusado de su víctima generalmente durante las noches. La confesión de AA constituyó una circunstancia atenuante, reduciendo la sentencia impuesta. El Tribunal de Apelaciones desestimó la apelación de AA y confirmó la decisión del Tribunal de Primera Instancia, dictaminando que se presentaron suficientes pruebas para establecer los hechos del caso.



Sentencia nº 358 de Tribunal Supremo de Justicia (Número de Expediente: C16-208) Tribunal Supremo de Justicia - Sala de Casación Penal (Venezuela Supreme Court of Justice - Criminal Appeal Chamber) (2016)

Domestic and intimate partner violence, Femicide

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.  



Decisión nº 002-16 de Corte de Apelaciones de Violencia contra la Mujer (Número de Expediente: CA-1708-14VCM) Corte de Apelaciones de Violencia contra la Mujer (Court of Appeals for Violence Against Women) (2016)

Sexual violence and rape, Trafficking in persons

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. 



Sentencia nº 226 de Tribunal Supremo de Justicia (Número de Expediente: C07-0187) Tribunal Supremo de Justicia - Sala de Casación (Venezuela Supreme Court of Justice - Appeal Chamber) (2007)

International law, Sexual violence and rape

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.



Sentencia nº 752 de Tribunal Supremo de Justicia (Número de Expediente: 16-0203) Tribunal Supremo de Justicia - Sala Constitucional (Venezuela Supreme Court of Justice - Constitutional Chamber) (2016)

Sexual violence and rape

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.



Decision No. DP01-S-2015-000647 (2016)

Sexual violence and rape, Statutory rape or defilement

The defendant was a 39-year-old man who repeatedly raped a six-year-old girl without penetration.  The Court sentenced the defendant, after finding him guilty of the charges, to three years in prison, following the applicable case law.  Venezuelan case law differentiates rape crimes depending on whether there has been vaginal or anal penetration.  In this case, as there was no penetration, the defendant was only sentenced to house arrest, which was located a few meters from the victim’s house.  



Decision No. 16-0357: Sentencia Familia Homoparentales por reproduccion asistida El Tribunal Supreme de Justicia (Venezuela Supreme Court of Justice) (2016)

Gender discrimination, LGBTIQ

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.  



Lei Nº 13.811 (2019)

Forced and early marriage, Gender discrimination

This law amends Article 1,520 of the Civil code in order to establish that only persons who have reached the age of marriage determined in article 1,517 of the Civil Code may marry. Article 1,517 of the Civil Code provides that a man and woman who have not reached the age of majority may marry at age 16 if they have received authorization from both of their parents or their legal representatives. (Article 5 of the Civil Code provided that minority ceases at the age of 18, when the person is entitled to practice all acts of civil life.) Before this amendment, Article 1,520 of the Civil Code established that those who had not yet reached the age of marriage according to Article 1,517 would be allowed to marry to avoid the imposition or enforcement of criminal penalties or in the case of pregnancy. This is no longer permitted as a reason to marry younger than the age of 16.



Habeas Corpus 124.306 Superior Tribunal de Justiça (Superior Court of Justice of Brazil) (2016)

Abortion and reproductive health rights, Gender discrimination

The Superior Court of Justice of Brazil revoked the pretrial detention order issued against staff and patients of a clinic that was alleged to have been performing clandestine abortions. The Court found that criminal laws against abortion were unconstitutional, and the criminalization of voluntary termination of pregnancy during the first three months was incompatible with the protection of multiple fundamental rights of women. The decision set an important precedent for the sexual and reproductive rights of women in Brazil. The court also discussed that the criminalization of abortion disproportionately affected women living in poverty who do not have access to private or public abortion clinics. Judge Barroso stated that while the potential life of the foetus is important, the criminalisation of abortion before the end of the first three months of pregnancy violated several fundamental rights of women granted by the Brazilian Constitution of 1988 (personal autonomy, physical and mental integrity, sexual and reproductive rights and gender equality). This decision does not decriminalize abortion but suggests that abortion may be legalised in the future. This is perhaps a softening of the law regarding abortion in Brazil.  



Direct Action of Unconstitutionality (ADI) 4275 Supremo Tribunal Federal (Supreme Federal Court of Brazil) (2009)

Gender discrimination, LGBTIQ

Brazil’s Supreme Court decided by a majority that transgender individuals could change their legal name and gender marked in the civil registry. The court stated that this does not require psychological evaluation, hormonal treatment, transition surgery, or any other medical procedure. The court recognized the right of transgender persons to change their civil registry without gender change or even judicial authorization. All the justices of the court recognized the right and the majority understood that no judicial authorization is necessary of the amendment.



Habeas Corpus 106.212 Supremo Tribunal Federal (Supreme Federal Court of Brazil) (2011)

Domestic and intimate partner violence

This case refers to a writ filed by the accused in order to not apply to his case Article 41 of Law 11.340/ 2006 (Maria da Penha Act). Article 41 states that the domestic crimes committed against women cannot be tried by the procedural rite of 9.099/1995 (Small Courts Act), which regulates the trial of petty offenses. The accused argued that his conduct did not fit into Article 41, and that applying this article would be unconstitutional for giving special treatment to women. The Supreme Court of Brazil denied the order and declared Article 41 constitutional. They found that the Constitution gave the legislator freedom to define which crimes will be considered petty offenses. The Court decided that the domestic crimes against women imply greater complexity because they are crimes against the family institution, for which the Constitution has established special protection.



Habeas Corpus 143.641 São Paulo Supremo Tribunal Federal (Supreme Federal Court of Brazil)

Gender discrimination

In this case, Brazil’s Supreme Court issued a landmark ruling that pregnant women, mothers of children up to the age of 12, and mothers with disabled children accused of non-violent crimes should be permitted to await trial under house arrest rather than in detention. Minister Ricardo Lewandowski of the Federal Supreme Court granted in this judgment habeas corpus ex officio so that prisoners with children who have not yet been placed under house arrest are entitled to the benefit.



Decision of the Constitutional Tribunal, Case 2208/2013 Constitutional Tribunal (2013)

Domestic and intimate partner violence

The Court held that it was not empowered to impose measures that guaranteed the physical and psychological integrity of domestic violence victims when other tribunals and bodies established for that purpose were competent. However, plaintiffs have the right to make the requests from the competent courts to take necessary measures in order to enforce its orders, using persuasive or coercive means.

La Corte sostuvo que no estaba facultada para imponer medidas que garantizaran la integridad física y psicológica de las víctimas de violencia doméstica donde otros tribunales y organismos establecidos con ese fin eran competentes. Sin embargo, los demandantes tienen el derecho de hacer las solicitudes de los tribunales competentes para tomar las medidas necesarias para hacer cumplir sus órdenes, utilizando medios persuasivos o coercitivos.



Decision of the Constitutional Tribunal, Case 1708/2013 Constitutional Tribunal (2013)

Employment discrimination, Gender discrimination

The plaintiff in this action was an elected councilor in the municipality of Tolata. She was forced to sign a letter of resignation under pressure from a group of intruders who had entered the session room of the municipal building. The plaintiff alleged that her rights relating to legal security in the exercise of a public function under Articles 46 and 144 of the constitution were violated and sought constitutional protection and the return to the office of municipal councilor of Tolata. The Constitutional Tribunal granted these requests.

La demandante en esta acción era un concejal electo en el municipio de Tolata. Se vio obligada a firmar una carta de renuncia bajo la presión de un grupo de intrusos que habían entrado en la sala de sesiones del edificio municipal. La demandante alegó que sus derechos relacionados con la seguridad jurídica en el ejercicio de una función pública en virtud de los Artículos 46 y 144 de la constitución fueron violados y solicitó protección constitucional y el regreso a la oficina del concejal municipal de Tolata. El Tribunal Constitucional concedió estas solicitudes.



Decision of the Constitutional Tribunal, Case 1961/2013 Constitutional Tribunal (2013)

Domestic and intimate partner violence, Gender discrimination

The Constitutional Tribunal held that the conduct of the municipal authorities forcing a victim of gender violence to reconcile with her aggressor under the threat of taking her children to a shelter violates the right of women to live free from violence. The Tribunal held that this conduct constituted undue harassment.

El Tribunal Constitucional sostuvo que la conducta de las autoridades municipales, obligando a una víctima de violencia de género a reconciliarse con su agresor bajo la amenaza de llevar a sus hijos a un refugio es contra el derecho de las mujeres a vivir libres de violencia. El Tribunal sostuvo que esta conducta constituía indebida acoso.



Decision of the Constructional Tribunal, Case 0033/2013 Supreme Tribunal: Criminal Bench (2017)

Domestic and intimate partner violence

The Supreme Tribunal confirmed the decision of the Appeal Court, which refused to review the decision of the First Instance Court that had allowed summary proceedings in a case of domestic violence and had sentenced the accused to two years of prison. The Supreme Tribunal held that the Court of Appeal had sufficiently reasoned its decision by holding that the judge of First Instance had correctly applied Article 272 of the Criminal Code, which provides for abbreviated proceedings and for the imposition of the maximum penalty suggested by the public ministry where the accused pleads guilty and agrees with the public ministry to abbreviated proceedings.  

El Tribunal Supremo confirmó la decisión del Tribunal de Apelación, que se negó a revisar la decisión del Tribunal de Primera Instancia que había permitido un proceso sumario en un caso de violencia doméstica y había condenado al acusado a dos años de prisión. El Tribunal Supremo sostuvo que el Tribunal de Apelación había razonado suficientemente su decisión al sostener que el juez de Primera Instancia había aplicado correctamente el Artículo 272 del Código Penal, que prevé un procedimiento abreviado y la imposición de la pena máxima sugerida por el ministerio público donde el acusado se declara culpable y está de acuerdo con el ministerio público para abreviar los procedimientos.



Decision of the Constitutional Tribunal, Case 0206/2014 Constitutional Tribunal (2015)

Abortion and reproductive health rights, Gender discrimination

Patricia Mansilla Martínez, a member of the Bolivian Parliament, challenged the constitutionality of several articles of the Criminal Code on the basis that they discriminated against women. The Court held that some of the challenged articles were unconstitutional and upheld others. On the grounds of gender discrimination, the Court found unconstitutional Article 56, which prevented imprisoned women from being employed outside of prisons while allowing imprisoned men outside employment, and Article 245, which recognized as a defense to the offense of falsifying a birth record the motive of protecting the honor of one’s wife, mother, daughter, or sister. The Court declared unconstitutional the words “fragility” and “dishonor” in Article 258 regarding infanticide also due to gender discrimination, although this did not affect the operation of the offense. The final unconstitutional issue was that Article 250 criminalized an unmarried man abandoning a woman who became pregnant with him, but did not criminalize a married father’s abandonment of his pregnant wife. The Court was unwilling to hold restrictions on abortion unconstitutional. As such, receiving an abortion remains prohibited under Articles 263 and 264, and the performance of abortion is prohibited under Article 269. However, the Court did declare unconstitutional the requirements in Article 266 that a woman inform the police and obtain judicial authorization in order to obtain an abortion in the case of rape or incest (article 266).

Patricia Mansilla Martínez, quien es miembro del Parlamento boliviano, cuestionó la constitucionalidad de varios artículos del Código Penal sobre la base de que eran discriminatorios contra las mujeres. El Tribunal sostuvo que varios de los artículos impugnados eran inconstitucionales: el Artículo 56, que impedía que las mujeres encarceladas fueran empleadas fuera de las cárceles mientras que los hombres encarcelados, por otro lado, podían tener empleo y el Artículo 245, que reconocía la protección del honor de la esposa, la madre, la hija o la hermana de uno como defensa al delito de falsificar un registro de nacimiento. Ambos Artículos se consideraron inconstitucionales sobre la base de la discriminación de género. La Corte declaró que las palabras "fragilidad" y "deshonra" contenidas en el Artículo 258 en asociación con el infanticidio eran inconstitucionales por la misma base, aunque esto no afecta el funcionamiento del delito. Además, la distinción dentro del Artículo 250 que penalizaba el abandono por parte de un padre de una mujer que no es su esposa después de dejarla embarazada pero que no se aplicaba a la esposa de un padre también se consideró inconstitucional. La Corte no estaba dispuesta a mantener las restricciones sobre el aborto como inconstitucionales. Como tal, recibir un aborto sigue prohibido según los Artículos 263 y 264, y el aborto está prohibido según el Artículo 269. Sin embargo, la Corte declaró inconstitucional los requisitos del Artículo 266 de que una mujer informe a la policía y obtenga la autorización judicial para obtener un aborto en caso de violación o incesto (artículo 266).



M., L. del V. v. G., E.J. Tribunal de Familia de la Provincia de Jujuy (Family Court of the Jujuy Province) (2012)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Following the separation of the plaintiff, Ms. L. del V., from the defendant, Mr. G., the defendant failed to pay their daughter’s school tuition or English lessons, took all of the family’s working vehicles, and sporadically paid no more than 40% of stipulated child support.  The plaintiff further alleged that the parties’ attempt at a negotiated solution constituted extortion given that she would not receive any support until they reached an agreement.  The parties subsequently negotiated an agreement, which the plaintiff later found to be inadequate.  In finding for the plaintiff, the court found that the defendant’s conduct constituted economic violence defined as the failure to provide required assistance, particularly where the woman has dedicated herself to childrearing at the time of separation and that the repeated failure to provide required support following separation would have a severe effect on the mother and child.

Luego de la separación del demandante, la Sra. L. del V., del demandado, el Sr. G., el demandado no pagó la matrícula escolar o las clases de inglés de su hija, tomó todos los vehículos de trabajo de la familia y esporádicamente no pagó más del 40% de la pensión alimenticia estipulada. La demandante además alegó que el intento de las partes por una solución negociada constituía una extorsión, dado que ella no recibiría ningún apoyo hasta que llegasen a un acuerdo. Posteriormente, las partes negociaron un acuerdo, que luego el demandante consideró inadecuado. Al encontrar al demandante, el tribunal determinó que la conducta del acusado constituía violencia económica definida como la falta de asistencia requerida, en particular cuando la mujer se habia dedicado a la crianza de los hijos desde el momento de la separación y que la falta reiterada de proporcionar la asistencia necesaria después de la separación tendría un efecto severo en la madre y el niño.



R.M., L.R. v. C.A., A.D. (Denuncia por violencia familiar) Camara Civil (Civil Court) (2014)

Domestic and intimate partner violence, International law

Child protective services appealed a decision of the court of first instance denying its request to extend to Ms. R.M.’s children an order of protection against her partner on the basis that (1) Ms. R.M. did not request that protection and (2) weaknesses were found in the determination by the Office of Domestic Violence regarding the degree of risk faced by the children.  In overturning the trial court’s ruling, the appellate court (1) found that applicable rules permit a judge to take measures that put an end to the crisis in order to enable the victim of domestic violence to return to a daily routine free from the influence of violence and (2) noted that the Office of Domestic Violence reported that the situation presented a high degree of risk, including in relation to the children.  In addition, the appellate court noted that in the cases brought before the judiciary, judges must ensure that the principals and rights set forth in the Treaty on the Rights of Children are observed.

Los servicios de protección infantil apelan una decisión del tribunal de primera instancia que denegó su solicitud de extender a los niños de la Sra. R.M. una orden de protección contra su pareja sobre la base de que (1) la Sra. R.M. no solicitó que se encontraran protección y (2) debilidades en la determinación de la Oficina de Violencia Doméstica con respecto al grado de riesgo que enfrentan los niños. Al anular el fallo del tribunal de primera instancia, el tribunal de apelación (1) encontró que las reglas aplicables permiten que un juez tome medidas para poner fin a la crisis a fin de permitir que la víctima de violencia doméstica regrese a una rutina diaria libre de la influencia de violencia y (2) notó que la Oficina de Violencia Doméstica informó que la situación presentaba un alto grado de riesgo, incluso en relación con los niños. Además, la corte de apelaciones señaló que en los casos presentados ante el poder judicial, los jueces deben garantizar que se respeten los principios y derechos establecidos en el Tratado sobre los Derechos del Niño.



Causa nro. 44601/2010 Juzgado Nacional en lo Criminal de Instrucción nro. 17 (2015)

Domestic and intimate partner violence

Mr. M. R. committed successive acts of violence and made threats against his wife, Mrs. F.M.S.  Upon finding that the declarations made by Ms. F.M.S., photographs and medical reports constituted sufficient probative evidence, the court determined that Mr. M. R. committed simple aggravated assault based on the relationship between the parties and that the threats made against Mrs. F.M.S. were grave and imminent.  Accordingly, the court found sufficient cause to hold the defendant in preventative confinement.

El Sr. M. R. cometió varios actos de violencia e hizo amenazas contra su esposa, la Sra. F.M.S. Al descubrir las declaraciones hechas por la Sra. F.M.S., las fotografías y los informes médicos constituyeron pruebas probatorias suficientes. El tribunal determinó que el Sr. M. R. cometió un asalto agravado simple basado en la relación entre las partes y que las amenazas contra la Sra. F.M.S. Fueron graves e inminentes. En consecuencia, el tribunal encontró causa suficiente para retener al acusado en confinamiento preventivo. 



Causa Nº 4.792/13 Ex Juzgado de Instrucción Formal Quinta Nominación (2014)

Domestic and intimate partner violence, Femicide, Gender discrimination, LGBTIQ

Defendant Mr. H.R.A was convicted of aggravated homicide based on his prior ties and relationship with the victim, Ms. N.A. (his partner), whom he murdered with a gun.  Mr. H.RA. was sentenced to life in prison pursuant to Law No. 26,791, Article 80, which provides that “[l]ife imprisonment or confinement shall be imposed upon a person that murders an ascendant, descendent, spouse or ex-spouse or a person that kills another with whom he or she maintains a relationship, irrespective of whether they maintained a joint household.”  The defendant challenged the constitutionality of the statute, arguing that it violates principles of equal protection because it does not afford (or it is not clear that the statute affords) equal protection to similarly situated homosexual couples.  In rejecting the defendant’s challenge, the court notes (1) Supreme Court precedent making clear that holding legislation unconstitutional is a grave act that should be taken as a last resort and when it is clear that the legislation is clearly unconstitutional, and (2) the legislation in question sought to introduce as aggravating circumstances factors that had previously been ignored, extending the definition of the concept of “family” to include different family realities.

El acusado, el Sr. H.R.A fue condenado por homicidio con acciones agravadas debido a sus vínculos anteriores y su relación con la víctima, la Sra. N.A. (su pareja), a quien asesinó con un arma. El Sr. H.RA. fue condenado a cadena perpetua con conformidad con la Ley Nº 26.791, Artículo 80, que dispone que “se impondrá la reclusión o el encarcelamiento a una persona que asesine a un ascendiente, descendiente, cónyuge o ex cónyuge o una persona que asesine” otro con quien él o ella mantiene una relación, independientemente de si mantuvieron un hogar conjunto ”. El acusado impugnó la constitucionalidad de la ley, argumentando que violaba los principios de protección igualitaria porque no permite (o no está claro si el el estatuto otorga igual protección a las parejas homosexuales en situación similar). Al rechazar la impugnación del acusado, el tribunal señala (1) el Tribunal Supremo precedente, dejando en claro que mantener la legislación inconstitucional es un acto grave que debe tomarse como último recurso y solamente cuando está claro que la legislación es claramente inconstitucional, y cuando (2) la legislación en cuestión buscaba introducir como circunstancias agravantes factores que anteriormente se habían ignorado, extendiendo la definición del concepto de "familia" para incluir diferentes realidades familiares.



A., R.H. and other v. E.N. M Seguridad – P.F.A. and others Cámara Nacional de Apelaciones en lo Contenciosos Administrativo Federal (National Appeals Court for Federal Administrative Litigation) (2011)

Domestic and intimate partner violence, Femicide

The plaintiff daughters, R.H. and V.C., filed suit against the State government and certain police officials requesting damages for the loss of the lives of their mother, Mrs. S., and father, Mr. A.  The day after her decision to flee her home together with her daughters and reside with other family members, Mrs. S. filed a civil proceeding against Mr. A. for domestic violence.  Mr. A. was prohibited from approaching Mrs. S. and his daughters, and Mrs. S. obtained permission to remove her and her daughters’ personal belongings from their previous home while escorted by police officers.  While accompanied by police officers and her sister to remove the belongings, Mr. A. killed Mrs. S. with a knife and subsequently committed suicide.  In finding for the daughters in the case of Mrs. S., the appellate court identified the following factors in support of its finding: (1) the existence of a real and immediate risk that threatened the rights of Mrs. S. and her daughters that had the potential to materialize immediately and which was expressly referenced by the Office of Domestic Violence, (2) the risk related to a specific threat against a woman and was therefore particular, (3) the State knew of the risk or should have reasonably known of the risk and (4) the State could have reasonably prevented and avoided the materialization of the risk.

Las hijas de la demandante, RH y VC, presentaron una demanda contra el gobierno del estado y ciertos oficiales de policía que solicitaron daños por la pérdida de la vida de su madre, la Sra. S. y el padre, el Sr. A. El día después de su decisión de huir de la casa junto con sus hijas, la Sra. S. presentó un proceso civil contra el Sr. A. por violencia doméstica. Al Sr. A. se le prohibió acercarse a la Sra. S. y a sus hijas, y la Sra. S. obtuvo permiso para retirar a ella y las pertenencias personales de sus hijas de su hogar anterior mientras estaba escoltada por agentes de policía. Mientras estaba acompañada por oficiales de policía y su hermana para retirar las pertenencias, el Sr. A. mató a la Sra. S. con un cuchillo y posteriormente se suicidó. Al encontrar a las hijas en el caso de la Sra. S., la corte de apelaciones identificó los siguientes factores que respaldan su descubrimiento: (1) la existencia de un riesgo real e inmediato que amenazaba los derechos de la Sra. S. y sus hijas que tenía el potencial de materializarse de inmediato y que la Oficina de Violencia Doméstica hacía referencia expresamente, (2) el riesgo relacionado con una amenaza específica contra una mujer y, por lo tanto, era particular, (3) el Estado sabía del riesgo o debería haberlo hecho razonablemente conocido del riesgo y (4) el Estado podría haber prevenido y evitado razonablemente la materialización del riesgo.



M.L.A. S/Lesiones Leves Agravadas y Amanazas de Muerte Corte Suprema Justicia de San Miguel de Tucumán (2016)

Domestic and intimate partner violence

In a criminal proceeding for domestic violence, the prosecutor appealed a judgment in favor the of the defendant on the basis that the trial court failed to confer proper evidentiary status to victim statements, medical and other reports, and photographs taken by the Office of Domestic Violence, a division of the Argentine judiciary.  In finding for the government, the appellate court noted that while investigating matters relating to domestic violence is a difficult task given that the disputed facts generally take place in intimate settings or when only the victim and aggressor are present, a victim’s testimony has inherent probative value.  The appellate court noted that “the work of judicial staff and employees (doctors, social workers, psychologists, etc.) that actively participate in the counseling of victims of domestic or gender violence must not be hidden and much less ignored in their entirety (…) The interviews, reports, physical inspections and medical reports carried out by professionals of the judiciary branch must constitute an essential component of the investigation into the facts,” irrespective of the decision on whether to proceed with the prosecution of the alleged perpetrator.

En un proceso penal por violencia doméstica, el fiscal apeló una sentencia a favor del demandado sobre la base de que el tribunal de primera instancia no otorgó el estatus de evidencia adecuada a las declaraciones de víctimas, informes médicos y otras, y fotografías tomadas por la Oficina de Violencia Doméstica , una división del poder judicial argentino. En la búsqueda para el gobierno, el tribunal de apelaciones señaló que si bien la investigación de asuntos relacionados con la violencia doméstica es una tarea difícil dado que los hechos en disputa generalmente tienen lugar en entornos íntimos o cuando solo la víctima y el agresor están presentes, el testimonio de la víctima tiene un valor probatorio inherente . La corte de apelaciones señaló que “el trabajo del personal judicial y los empleados (médicos, trabajadores sociales, psicólogos, etc.) que participan activamente en el asesoramiento a las víctimas de violencia doméstica o de género no debe ocultarse y mucho menos ignorarse en su totalidad (... ) Las entrevistas, informes, inspecciones físicas e informes médicos llevados a cabo por profesionales del poder judicial deben constituir un componente esencial de la investigación de los hechos ", independientemente de la decisión de proceder con el enjuiciamiento del presunto autor.



FSM 10518/2016/TO1 Tribunal Oral en lo Criminal Federal nº 3 de San Martín (Federal Oral Tribunal No. 3 of San Martín) (2017)

Trafficking in persons

The defendant was found guilty of aggravated economic exploitation through the prostitution of vulnerable women, having been found to be the operator of a prostitution establishment in which the four identified victims were sexually exploited.  Despite evidence that the women (1) could enter and leave the establishment as they pleased, (2) were never treated with violence, (3) were never required to work for minimum periods of time and (4) would not be charged an “exit” fee if they terminated their employment at the establishment, the court found that (1) the vulnerable status of the women was confirmed by their inability to finish their formal education and their difficulty in finding employment that would enable them to meet their basic needs, (2) the immigrant status of two of the women resulted in social, cultural and economic disadvantages that facilitated their exploitation and (3) their decision to work at the establishment was not the result of a truly free election, but rather was viewed as their only means to subsist.  The court further noted that fines imposed for tardiness served as a mechanism to control the women given the financial impact of such fines.  Based on these findings, the court ratified the plea bargain of five years imprisonment.



A.F. re: Self-Satisfying Measure Corte Suprema de Justicia de la Nación (Supreme Court of Argentina) (2011)

Abortion and reproductive health rights, International law, Sexual violence and rape, Statutory rape or defilement

A.F. sought an abortion for her 15-year-old daughter, A.G., whose stepfather raped and impregnated her.  The courts of first and second instance rejected A.F.’s petition because Argentina’s criminal code permits abortion in cases of sexual assault of a mentally impaired woman and A.G. is not mentally impaired.  The appellate court, however, authorized the abortion, holding that the relevant statute should be read broadly to encompass all pregnancies resulting from sexual assault.  Following the abortion, the local guardian ad-litem and family representative (“Tutor Ad-litem y Asesor de Familia e Incapaces”) challenged the appellate court’s decision on the basis that the appellate court’s broader interpretation of the statute violated constitutional protections for the fetus as well as protections found in treaties to which Argentina is a signatory.  Despite the abortion having already been performed, the Supreme Court agreed to adjudicate the matter given its importance and affirmed the appellate court’s ruling, noting that (1) certain of the referenced treaties had been expressly amended to permit abortions resulting from sexual assault and (2) any distinction between victims of sexual assault who are mentally impaired in relation to those who are not is irrational and therefore unconstitutional.  



González de Delgado and Others v. Universidad Nacional de Córdoba Corte Suprema de Justicia de la Nación (Supreme Court of Argentina) (2000)

Gender discrimination, International law

Parents of students enrolled at Colegio Nacional de Monserrat, a private all-male high school, filed suit to prevent the implementation of an order of the High Council of the National University of Córdoba (Consejo Superior de la Universidad Nacional de Córdoba) mandating that the high school admit female applicants. They argued that parents have the right to choose the type of education their children receive. The court of first instance found partially in favor of the parents, which was overturned by the appellate court.  Among other reasons, the Supreme Court upheld the appellate court ruling on the basis that (1) the High Council of the National University of Córdoba acted within its statutory authority, (2) the Argentine constitution does not guarantee the right to enroll children in schools limited to a specific gender, (3) mixed gender schools do not infringe on the rights of parents to elect the type of education their children receive, and (4) establishing a mixed gender school is the only alternative compatible with the constitutional principles of equality and the Convention on the Elimination of All Forms of Discrimination Against Women to which Argentina is a signatory.



H.V.N. v. EM-M Defensa-FAA and Others Cámara Nacional de Apelaciones en lo Contencioso Administrativo Federal (National Federal Administration Appeals Court) (2015)

Employment discrimination, Sexual harassment

The plaintiff filed suit against her employer, the Ministry of Defense—Argentine Air Force, seeking damages for sexual harassment and workplace persecution because her supervisor made indecent proposals, threatened her employment if she did not accede to his demands, made sexually explicit comments, and impeded her advancement.  The trial court ruled against the plaintiff on the basis that (1) a psychological report indicated that she suffered from “moderate reactive development,” therefore making it impossible to determine the level of fault that corresponded to the alleged hostile conduct or to her “moderate reactive development,” (2) while certain testimony indicated the plaintiff was subject to certain “inconveniences” caused by her supervisor, the court found that these were insufficient to support a claim of sexual harassment or other unlawful conduct and (3) the plaintiff was therefore subject to a higher burden of proof in relation to the alleged conduct and that this burden was not met.   In reversing the trial court’s ruling, the appellate court noted that (1) workplace sexual harassment is characterized by extreme psychological violence in the workplace that is both systematic and prolonged and that is carried out for the purpose of devaluing, perturbing, or debasing the victim so that the victim abandons the workplace or accepts other workplace conditions, and (2) particular difficulties arise in proving that the offensive conduct took place. For this reason, the court noted, special importance must be given to testimony given by work colleagues, medical or psychological reports to determine the existence of physical or psychological damage and documentary evidence.  Specifically, the appellate court found that the plaintiff presented sufficient witness testimony, documentary evidence and psychological and accounting reports to sustain her claims. In addition to allowing damages, the appellate court ordered the defendants to pay costs.



De Sousa v. Administración de Parques Nacionales Camara Federal de San Martin (Federal Court of San Martin) (2018)

Employment discrimination, Gender discrimination, International law

On July 6, 2016, the plaintiff notified the defendant-employer of her pregnancy and intention to take maternity leave.  As of the date of notification, the plaintiff held a temporary executive position.  On July 11, 2016, the defendant notified the plaintiff that her temporary designation as an executive was of no effect.  The defendant subsequently provided a maternity compensation package beginning on the date her temporary designation was revoked, but it did not reflect her higher earnings as a temporary executive.  The court of first instance granted the plaintiff maternity leave at a salary corresponding (1) to her executive status as from the date she provided notice until 30 days before the probable date of birth and (2) to her non-executive status during the 100 days following the birth of the plaintiff’s child.  On appeal, the plaintiff challenged the trial court’s ruling denying her executive pay for the 100-day period following the birth of her child, while the defendant challenged the trial court’s ruling granting the plaintiff executive pay from the date of notice of her pregnancy because of the subsequent cancellation of the plaintiff’s executive status on July 11, 2016.  The appellate court found in favor of the plaintiff, noting that (1) the Argentine Constitution provides for the full protection of women during pregnancy and breastfeeding, (2) the International Treaty for the Elimination of all forms of Discrimination against Women (to which Argentina is a signatory) requires the adoption of laws that prevent discrimination based on marriage or pregnancy, and (3) the failure to award the plaintiff maternity compensation corresponding to her executive status would result in a failure to ensure employment stability.  The appellate court ruled against the plaintiff’s request to return to her executive position following maternity leave on the basis that the designation was temporary in nature and that laws protecting women during maternity leave cannot alter the fundamental nature of the relationship prior to maternity.



Sisnero, et al. v. Taldelva SRL, et al. Corta Suprema de Justicia de la Nación (2014)

Employment discrimination, Gender discrimination

The plaintiffs, Mirtha Graciela Sisnero and the Women’s Foundation (Fundación Entre Mujeres), filed suit against the Automotive State Transportation Company (Sociedad Anònoma del Estado del Transporte Automotor), the Metropolitan Transportation Authority (Autoridad Metropolitana de Transporte), and seven companies that provided public transportation services in the city of Salta.  The plainiffs alleged, citing Ms. Sisnero’s failure to obtain a bus driver position despite having met the job requirements, that defendants refuse to hire female drivers in violation of equal rights and anti-discrimination laws. The plaintiffs demanded that (1) the defendants cease to discriminate based on gender, (2) Ms. Sisnero be hired as a bus driver, and (3) the defendants set aside a certain number of positions to be filled exclusively by women until such time as the composition of drivers reflected gender integration.  The court of first instance found in favor of the plaintiffs, mandating that 30% of openings for bus drivers be set aside exclusively for women.  The appellate court reversed the trial court’s decision based on the plaintiff’s failure to prove that the defendants failed to hire Ms. Sisnero solely because she was female, further noting that the defendants’ failure to accept Ms. Sisnero’s multiple applications for employment were insufficient to sustain a claim of discrimination because the defendants were under no constitutional obligation to hire her.  The Supreme Court reversed the appellate court’s decision, noting that the appellate court failed to adequately consider the evidence provided by the plaintiffs. The lower court should have considered (1) the fact that the defendants had not hired any female bus drivers after receiving complaints from Ms. Sisnero and (2) discriminatory statements made by representatives of the defendants (e.g., “women should focus on demonstrating their culinary abilities”). The Supreme Court further noted that once the claimant has proven the existence of acts that are allegedly discriminatory, it is the defendant’s burden to disprove the existence of the alleged discrimination.   



Sentencia nº 965 de Tribunal Supremo de Justicia (Número de Expediente: 11-1310) Tribunal Supremo de Justicia (2012)

Sexual violence and rape, Statutory rape or defilement

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. 



Sentencia nº 407 de Tribunal Supremo de Justicia (Número de Expediente: C16-189) Tribunal Supremo de Justicia (2016)

Sexual violence and rape, Statutory rape or defilement

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. 



Sentencia nº 1325 de Tribunal Supremo de Justicia (Número de Expediente: 11-0645) Tribunal Supremo de Justicia (2011)

Domestic and intimate partner violence, Gender-based violence in general, Harmful traditional practices, International law

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.   



Sentencia nº 620 de Tribunal Supremo de Justicia (Número de Expediente: C15-289) Tribunal Supremo de Justicia (2015)

Statutory rape or defilement

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.   



Sentencia nº 500 de Tribunal Supremo de Justicia (Número de Expediente: CC13-348) Tribunal Supremo de Justicia (2013)

Gender-based violence in general

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.     



Sentencia nº 542 de Tribunal Supremo de Justicia (Número de Expediente: C14-496) Tribunal Supremo de Justicia (2015)

Sexual violence and rape, Statutory rape or defilement

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.    



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.    



Sentencia nº 235 de Tribunal Supremo de Justicia (Número de Expediente: C15-366) Tribunal Supremo de Justicia (2016)

Sexual violence and rape

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. 



Sentencia nº 357 de Tribunal Supremo de Justicia (Número de Expediente: CC15-173) Tribunal Supremo de Justicia (2015)

Domestic and intimate partner violence, Gender-based violence in general

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. 



Sentencia nº 660 de Tribunal Supremo de Justicia (Número de Expediente: C15-3) Tribunal Supremo de Justicia (2015)

Sexual violence and rape, Statutory rape or defilement

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.   



Applicants McEwan, Clarke, et al. v. Attorney General High Court of the Supreme Court of Judicature (2013)

Gender discrimination, LGBTIQ

On February 6, 2009, four transgender individuals (A, B, C, D) identifying as female were arrested and charged with both Loitering and Wearing Female Attire.  The police detained the Applicants for the entire weekend without explaining the charges against them.  Wearing Female Attire is prohibited under Section 153(1)(XLV11) of the Summary Jurisdiction (Offences) Act, chapter 8:02.  At the hearing on February 9, 2009, the Chief Magistrate commented that the Applicants were confused about their sexuality and told them they were men, not women, and needed to give their lives to Jesus Christ.  The Applicants, who were all unrepresented at the time, pleaded guilty to the charge of Wearing Female Attire.  Applicants A, B and D were fined $7,500, and Applicant C was fined $19,500 (Guyanese dollars).  The loitering charges were eventually dismissed.  The Applicants contacted the Society Against Sexual Orientation Discrimination (SASOD), the Equal Rights Trust’s Guyanese partner, about the case.  SASOD agreed to represent Applicants and filed a Notice of Motion challenging the Magistrate’s Court decision and seeking redress.  The Applicants argued that the police violated the Constitution because the officers failed to inform them of their arrest and did not permit the Applicants to retain counsel.  They also argued that Section 153 (1) (XLV11) of the Summary Jurisdiction (Offences) Act 1893 is: (1) vague and of uncertain scope; (2) irrational and discriminatory on the ground of sex; and (3) a continuing threat to their right to protection against discrimination on the ground of sex and gender under the Constitution.  Applicants further argued that, by instructing the Applicants to attend Church and give their lives to Jesus Christ, the Chief Magistrate discriminated against them on the basis of religion, which violated a fundamental norm of the Co-operative of the Republic of Guyana as a secular state in contravention to the Constitution.  The Court upheld the Applicants’ claims in relation to their fundamental right to be informed of the reason for their arrest under Article 139 of the Constitution, but rejected all of their other claims.  The Court found that the prohibition of cross-dressing for an improper purpose was not unconstitutional gender or sex discrimination, impermissibly vague, or undemocratic.  The Court also struck SASOD’s application in full, finding that SASOD did not have standing to be an applicant in the case.



Decision T-045 of 1995 Constitutional Court of Colombia (1995)

Domestic and intimate partner violence

The plaintiff filed a writ of constitutional challenge and requested the respondents, the plaintiff’s common-law partner for fifteen years and his current live-in partner, not disturb her home and that the house in which she was currently residing be granted to her. The trial court denied the relief sought on the grounds that the plaintiff could resort to other legal means such as liquidation of the partnership at will. The appeal court affirmed. The Constitutional Court denied the writ on lack of evidence showing torture or cruel, inhumane or degrading treatment. The Court did not equate a declaration of intent to sue (by the respondents over the property) to taking the law into one’s own hands, duress or threats against the person or family of the petitioner. The Court concluded that the plaintiff was independently employed and was not defenseless or subordinate to her former partner, and she had other legal means to enforce her rights.



Decision T-420/92 Constitutional Court of Colombia (1992)

Gender discrimination

Plaintiff dropped out from her high school in 1990 due to pregnancy after attending from 1985 to 1989. After giving birth, she requested re-admission and was denied based on moral grounds by the principal, including the fact that she was a single mother. The plaintiff filed a writ of constitutional challenge for readmission. The trial court granted relief and the Constitutional Court affirmed. The Court found that the school violated the plaintiff’s right to education by denying re-admission on moral basis and without due process. The Court also held that the plaintiff’s right to equality was violated because she was discriminated against based on her status as a single mother. The Court also ruled that the plaintiff’s right to free development of personality was violated as this right includes the path of motherhood.



Case of Lucia Sandoval Prosecution Appeal Court (Fiscalía apelará del tribunal) (2014)

Domestic and intimate partner violence, Gender discrimination

On August 27, 2014 Lucia Sandoval was acquitted after the court found insufficient evidence of her involvement in her husband’s death. In 2011, Sandoval was charged for the intended homicide of her husband. She subsequently spent over three years in prison awaiting trial. The incident that formed the basis for the charges took place on February 11, 2011, when Lucia Sandoval informed her husband that she had filed a complaint of domestic violence and had obtained a restraining order against him, which required him to leave their home. Sandoval’s husband responded violently and threatened her with a gun. When Sandoval tried to escape, a physical fight ensued and the gun was fired, resulting in her husband’s death. Amnesty International Paraguay, the Committee of Latin America and the Caribbean for the Defense of Women’s Rights (CLADEM) and Catholics for the Right to Decide (CDD Paraguay) helped advocate as to Sandoval’s innocence. These organizations claimed that “the first failure of the judicial system was that protection measures [for] . . . Sandoval were not applied. The court gave the [restraining] order to Sandoval, instead of sending the notice to the Police for it to be given to [her] husband.” The organizations noted that Paraguay had passed a law against domestic violence in 2000 but contended that the law “does not comprehensively address the problem, no[r] does it allow for a coordinated and coherent system in the country to collect data about gendered violence.” It should be noted that in 2013, the Human Rights Commission at the United Nations recommended that Paraguay implement a law to “prevent, punish, and eradicate gender violence, as well as assure that complain[t]s of domestic violence are effectively investigated, with perpetrators being punished appropriately and the survivors receiving attention and compensation.” Background information available at http://blog.amnestyusa.org/americas/victory-in-paraguay-is-a-big-step-fo... http://www.cladem.org/paraguay/Lucia-Sandoval-absuelta.pdf http://www.justice.gov/eoir/vll/country/amnesty_international/2014/Peru.pdf https://www.youtube.com/watch?v=Hk6bjsNKmrM



Sentencia T-627/12 Constitutional Court of Colombia (2013)

Gender discrimination

A group of 1280 Colombian women filed a writ of constitutional challenge for the protection of their fundamental rights to information, dignity, autonomy, free development of the individual, health, education, reproductive rights, and the right to benefit from scientific progress. They claimed that the Inspector General’s Office had breached their rights by misrepresenting the Constitutional Court’s order by, inter alia, making statements contrary to the jurisprudence of the Constitutional Court, contrary to determinations made by the World Health Organization, and making false assertions about the existence of a right to life of the unborn and the public’s demand for protection of the unborn by the civil servants. The Court held that the Inspector General had issued false information about the Court’s order in sentence T-388 of 2009 (asserting that the Court’s decision promoted abortion where in fact it promoted access to information on sexual and reproductive rights, including information on abortion) and thus had violated his duty to provide accurate information. The Court held that the Inspector General’s statement that emergency contraceptives are abortive contradict the WHO’s findings and ordered the official position of the Inspector General’s Office be rectified accordingly. The Court held that Deputy Inspector General Hoyo’s letter, which relieved health clinics of the obligation to remove obstacles to abortion, was a violation of the duties of that office and ordered the letter be rectified. The Court also found for the Applicants the right to receive accurate information with respect to: (1) institutions’ rights to claim conscientious objection or the possibility of its collective exercise regarding abortion; and (2) the inclusion in the Compulsory Health Plan of misoprostol, a drug which was authorized by the Food and Drug Surveillance Institute and the WHO in voluntary interruption of pregnancy but was inaccurately alleged by the Deputy Inspector’s letter as dangerous for women’s health. The Court for the first time held that it was the obligation and duty of public servants to provide accurate, reliable and timely information to women regarding their rights to sexual and reproductive health. This decision is significant not only within Colombia but in the Latin American region with respect to women’s access to the sexual and reproductive health services.



Sentencia T-636/11 Constitutional Court of Colombia (2011)

Gender discrimination

In 2011, Ms. Tenjo Hernandez discovered that she was six weeks pregnant and requested voluntary termination of pregnancy based on information provided by the medical staff that her epilepsy medications could cause congenital deformities in the fetus. The doctor refused to perform the procedure unless a court order was issued. Ms. Hernandez filed a writ of constitutional challenge to enforce her rights, which the Courts of first and second instance denied based on the reasoning that Ms. Hernandez’s grounds for relief did not fall under any of the prongs of Decision C-355 of 2006 which permitted Colombian women and girls the right to voluntary termination of pregnancy. The Constitutional Court reviewed the case, despite the fact that there were not any deformities in the fetus and Ms. Hernandez had withdrawn her request for relief. The Court held that women do not carry the burden of establishing their health conditions and the status of their pregnancy; healthcare facilities and doctors are responsible to determine any fetal deformities incompatible with life outside the womb. Therefore, the Court ruled that healthcare facilities should comply with the Constitutional Court’s rulings in Decision C-355 of 2006, should not make value judgments of women who request voluntary termination of pregnancy and are prohibited from requesting court orders to perform voluntary termination of pregnancy.



Sentencia T-841/11 Constitutional Court of Colombia (2011)

Gender discrimination

A twelve-year-old girl requested voluntary termination of pregnancy after having consensual sex with her boyfriend on the grounds that her mental and physical health, particularly with respect to the effects from obstetric complications, were in jeopardy as a result of the pregnancy. The healthcare provider denied her request, despite the fact that the request fulfilled legal requirements, on the grounds that the medical certificate to the girl’s health conditions was issued by a doctor who did not belong to the same healthcare provider network as the girl’s healthcare network. The pregnancy was carried to term and the girl’s mother filed a writ of constitutional challenge to enforce the girl’s right to abortion when the girl was not yet five months pregnant. After nearly a month, the Court of First Instance denied the writ, finding that the girl’s life was not in danger. The Constitutional Court ruled, however, that insurance providers and healthcare providers should not erect improper obstacles to the performance of voluntary termination of pregnancy except for the conditions established by Decision C-355 of 2006, and that they have a duty to take all necessary measures to ensure that women meeting the legal requirements under Decision C-355 of 2006 may have the procedure performed. In this case, one medical certificate would have been sufficient to clear the girl for the performance of voluntary termination of pregnancy as there was no requirement under Decision C-355 of 2006 that the medical certificate must come from doctors in the network of the healthcare provider of the girl or women requesting the procedure. The Court also ruled that the healthcare provider violated its duty to provide timely and clear diagnosis when they took almost a month to deny the request. The Court ordered the healthcare provider to pay restitution damages to the girl including all damages caused by its improper refusal to perform the procedure and any medically necessary services resulting from the birth.



Process No. 23508 (Nelson Armando Otalora Cardena) Supreme Court of Justice (2009)

Sexual violence and rape

In 2002, Ms. Sandra Patricia Lamprea Duque, a 23 year old Colombian woman, reported that she was raped by Nelson Otalora, the accused. The rape was part of multiple instances of mistreatments, threats, harassments and economic exploitations that lasted for eight years between 1994 and 2002. Due to statutory limitations, the accused was only charged with rape which took place in 2002. The Court of First Instance acquitted the accused based on the reasoning that Sandra Patricia had had a relationship, albeit a difficult one, with the accused and therefore the act at issue could not be ascertained as without consent. The Court of Second Instance found the accused guilty and sentenced him to imprisonment on the reasoning that occurrence of violence renders historical sexual intimacy and lack of resistance during the act at issue irrelevant. The Court also concluded that the credibility of the victims of sexual violence could not be questioned by the court based on previous sexual relations, that lawyers must respect fundamental human rights and that a victim of sexual violence should not be “re-victimized” by legal professionals during legal proceedings involving sexual violence. The Court noted, however, that lack of consent could not be inferred from a dysfunctional relationship, as was the case between the aggressor and the accused.



Decision T-946/08 Constitutional Court of Colombia (2008)

Gender discrimination

The plaintiff’s daughter suffered from Prader Willi syndrome or Down Syndrome and was mentally disabled. The mother noticed changes in her daughter’s body and discovered that she had been pregnant as a result of rape. The mother asked the healthcare provider to terminate pregnancy and filed a writ of constitutional challenge after her request was denied by the healthcare provider on conscientious objection. The Court of First instance denied the writ on the grounds that there was no medical certificate showing that the daughter’s life was jeopardized by the pregnancy, that the fetus had deformities, or that a crime had been reported. The mother appealed the decision and stated that Decision C-355 of 2006 specifically contained a rape prong as a ground for requesting voluntary termination of pregnancy. The Court of Second Instance also denied abortion on the grounds that even though a rape may have occurred, the pregnancy had reached an advanced gestational age (25 or 26 weeks). The Constitutional Court found for the plaintiff mother and held that the healthcare provider violated the rights of the daughter, a victim of a violent sex crime. The Court ruled that conscientious objections must be made with sufficient number of professionals in a network and may only be claimed by natural persons, that the healthcare provider must provide the service in a timely manner, i.e., within five days of request (so as to not let the pregnancy be carried to term), failure to perform the procedure under discriminatory circumstances carry the consequence of investigations by the disciplinary bodies of both the healthcare provider and the lower court judges, which the Constitutional Court ordered.



Decriminalization of Abortion in Cases of Anencephaly: Claim For Disobeying a Fundamental Constitutional Dispositive No. 54/2004 (in Portuguese) Brazilian Federal Supreme Court (2012)

Gender discrimination

In 2004, the Brazilian Federal Supreme Court (Supremo Tribunal Federal or “STF”) considered a claim brought by the National Trade Union of Health Workers and ANIS (Institute of Bioethics, Human Rights, and Gender) to determine whether terminating a pregnancy in which the fetus suffers from anencephaly (absence of major portion of the brain, skull, and scalp) violates the prohibition on abortion as set forth in Brazil’s Penal Code. On April 12, 2012, the STF rendered an 8-2 decision (with one abstention) that abortion in the circumstance of anencephaly is not a criminal act under the Penal Code. The majority extended a woman’s right to terminate her pregnancy to cases of anecephalic fetuses because the fetus does not have the potential for a viable life outside of the womb, and to force a woman to carry such a pregnancy to term is akin to torture. Justice Marco Aurelio and the majority held that to interpret the Penal Code to prohibit such abortion would violate a woman’s constitutional guarantees of human dignity, autonomy, privacy, and the right to health. A woman therefore may seek and receive treatment to terminate the anencephalic pregnancy without risk of criminal prosecution and without judicial involvement.



Rape Defined As Heinous Crime for Sentencing Purposes: Habeas Corpus No. 81.288-1 (in Portuguese) Brazilian Federal Supreme Court (2003)

Sexual violence and rape, Statutory rape or defilement

The Brazilian Federal Supreme Court (Supremo Tribunal Federal or “STF”) denied the petition for writ of habeas corpus of Valdemiro Gutz, who had been convicted by the Superior Court of Justice – Santa Catarina of raping his two, minor daughters, both under the age of fourteen, over a period of five years. Although Gutz had been sentenced to 16 years and 8 months in jail for his crimes, the lower court subsequently reduced Gutz’s sentence by one-quarter, pursuant to Presidential Decree 3.226/99 (“Decree”). The lower court determined that the reduction was not barred by Article 7, Section 1 of the Decree, which states that a reprieve shall not apply to those convicted of “heinous crimes and those of torture, terrorism, illegal trafficking.” In response to the reduced sentence, the public prosecutor argued that Gutz’ crime fell within the “heinous crimes” exception to sentence reductions. The Service of Criminal Review of the State of Santa Catarina subsequently filed for writ of habeas corpus, arguing that crimes of rape and sexual assault do not fall within the scope of the “heinous crimes” exception except where serious bodily injury or fatality results. The Court examined the legislative language and treatment of rape, sexual assault, and other crimes, with respect to qualifying such crimes as “heinous.” The majority of the Court held that the legislation already had classified rape as a heinous crime. The Court denied the writ, and Gutz’s sentence remained without reduction.



Sexual Assault Against a Minor is a Presumed Violent Act: Habeas Corpos No. 74.983-6 (in Portugeuse) Brazilian Federal Supreme Court (1997)

Sexual violence and rape, Statutory rape or defilement

The Brazilian Federal Supreme Court (Supremo Tribunal Federal or “STF”) denied the petition for writ of habeas corpus of Mario Somensi, upholding the constitutionality of Article 224(a) of the Penal Code which establishes a presumption of violence in sex crimes against minors. Somensi was convicted of rape and child abuse, and was sentenced to a prison term of eight years for rape and one year and ten months for child abuse. In his appeal and writ, Somensi argued he had committed no violence and that the presumption of violence set forth in Article 224(a) of the Penal Code was unconstitutional. The Court first noted that the provision in question predated Brazil’s 1988 Constitution and could not be found “unconstitutional” with respect to its construction. Rather, the Court examined its compatibility with the 1988 Constitution and found that the purpose of the presumption – to protect minors who legally are incapable of offering consent – was consistent with and expressed by the broad statement in Article 227 § 4 of the Constitution that “[t]he law shall severely punish abuse, violence and sexual exploitation of children and adolescents.” The STF held that the presumption did not violate constitutional principles, even when the presumption embraced what otherwise would be a factual matter requiring evidentiary proof.



Constitutionality of Lei Maria da Penha (Federal Domestic Violence Law ) (ADC 19 and ADI 4424) (in Portuguese) Brazilian Federal Supreme Court (2012)

Domestic and intimate partner violence, Gender discrimination, Gender-based violence in general

Following a request to Brazil’s Federal Supreme Court (Supremo Tribunal Federal or “STF”) by then-President Luiz Inácio Lula da Silva, the STF reviewed and upheld the constitutionality of the Lei Maria da Penha (“LMP”). The LMP is Brazil’s first law to address the problem of domestic violence against women on a national scale. The law’s provision for the creation of special courts, as well as the law’s differentiated protection of women, had come under scrutiny in many of Brazil’s lower courts as unconstitutional. The STF, however, has previously held that those articles were constitutional. President Silva argued that the LMP was constitutional due to Article 226, § 8 of the Federal Constitution, and Brazil’s ratification of the Convention on the Elimination of All Forms of Discrimination Against Women and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women. The Justices agreed that the LMP does not create a law of unequal treatment as between men and women, but addresses the reality of longstanding discrimination and aggression directed at women, and offers substantive mechanisms to promote equality without impinging on the rights of males. The Court also found that the provision of specialized courts is constitutional and not in conflict with state control of the local courts. Finally, with a majority vote of 10-1, the Justices held that the office of the public prosecutor can prosecute domestic violence cases even when the victim fails to appear or file a complaint against her aggressor. The majority reasoned that state intervention is necessary to guarantee the victim’s protection from the risk of ongoing violence, which may be aggravated by the victim appearing in the action against her aggressor.



Constitutionality of Social Security Minimum Payment Provision as Applied During Maternity Leave: ADI 1946-5 (in Portuguese) Brazilian Federal Supreme Court (2003)

Employment discrimination, Gender discrimination

The Brazilian Federal Supreme Court (Supremo Tribunal Federal or “STF”) reviewed the constitutionality of the 1998 Amendment 20 of the federal Social Security Law. The amendment imposed a maximum value on the amount of social security benefits that could be paid to a beneficiary under the general social security system at R$1,200 per month. On its face, the R$1,200 maximum applied equally to a number of eligible benefit categories, including maternity or pregnancy-related leave. The amendment was challenged on the grounds that, when read together with Article 7, Section XVIII, of the 1988 Brazilian Constitution, the amendment had a discriminatory effect on women. This provision essentially guarantees that an employee is paid her full salary during maternity leave. By imposing a cap on social security coverage during maternity leave, Amendment 20 would require the employer to cover the difference between the R$1,200 cap and the employee’s full pay. The party challenging the amendment argued that this created a negative incentive to employers who would discriminate in hiring women or in setting women’s salary by paying women less in order to stay under the R$1,200 cap. The Court agreed that Amendment 20 was discriminatory in its effect. In a unanimous decision, the STF held that the effect of Amendment 20 conflicted with the Brazilian Constitution’s equal protection provisions that prohibit discrimination on the basis of sex. The Court therefore ordered that Amendment 20 be interpreted in a manner consistent with the Article 7 of the Constitution such that implementation of the social security cap does not extend to maternity and pregnancy-related leave.



Chile v. Nelly Viviana Condori Nicolas Oral Criminal Court (2006)

Trafficking in persons

The female defendant was charged with trafficking in person for the purpose of sexual exploitation. The defendant used an employment agency in Peru to offer Peruvian women waitress jobs at her residence in Chile. She would assist them in crossing the border and would pay travel costs. Upon arrival, the victims were kept at the defendant’s residence and were forced to provide sexual services to clients arranged by the defendant. The defendant also kept the victims’ passports so that they would be unable to leave until their debts were paid. The defendant was found guilty and sentenced to six months of imprisonment.



El Tribunal Constitucional de Chile Constitutional Court of Chile (2007)

Forced sterilization

A parliamentary minority requested that the Constitutional Court declare unconstitutional a Ministry of Health decree that determined the availability of family planning methods and permitted distribution of emergency contraception by national health centers.  The constitutional court noted that the “right to life” is fundamental under the Chilean Constitution. It rejected scientific arguments that emergency contraception did not affect the life of a conceived but unborn embryo.  In a dissenting opinion, one judge noted that the rights protecting the reproductive rights of women were enshrined in CEDAW in conflict with the Constitutional Court’s decision.  The Constitutional Court’s decision did not prevent all distribution of emergency contraception in Chile, but banned it from being distributed by clinics and hospitals that are part of national health system. The constitutional court decision was effectively overruled in January 2010 by Law No. 20.418, promulgated by President Bachelet, which permitted distribution of emergency contraceptive pills in both public and private health centers, including to persons under 14 without parental consent.  The law also requires high schools to enact sexual education programs.



Chile v. Rodrigo Gacitua Escobar, Criminal Court of Viña del Mar, 2013 Criminal Court of Viña del Mar (2013)

Gender discrimination

The Criminal Court of Viña del Mar sentenced Rodrigo Gacitúa Escobar to life imprisonment for a series of robberies, rapes, and other crimes committed between 2010 and 2012. The prosecutor, Vivian Quiñones, expressed satisfaction at the result, and pointed out the impact of the testimony from the victims. The defense unsuccessfully attempted to discredit the victims’ testimony, including using postings on social media.



RUC 1100440193-1 RIT199-2012 Oral Criminal Court (4° Tribunal de Juicio Oral en lo Penal de Santiago) (2012)

Trafficking in persons

Five defendants were charged with participating in an organized criminal group for the purpose of trafficking in persons. Each defendant was charged with having a specific function in the group for facilitating the entry of several Dominican women into Chile. The women were deceived into coming to Chile, with promises of legitimate work, such as employment in the tourism field. Upon arrival in Chile, however, the women were forced into prostitution. Four of the defendants were found guilty, and imprisoned for various amounts of time depending on their position within the criminal organization. One defendant was found not guilty on the basis that he did not have knowledge of the criminal acts.



Ministerio Publico v. Jose Luis Castro Juzgado de Garantia de Antofagasta (Warranty Court), Antofagasta (2007)

Trafficking in persons

The defendant was charged with trafficking in persons. He was accused of recruiting Peruvian women to come to Chile, where they then were engaged in prostitution. The defendant used an employment agency in Peru to recruit the women, who signed labor contracts to serve as waitresses in the defendant’s premises. The women victims were forced to wear provocative clothing and drink alcohol with the premises’ clients. There also was prostitution at the premises. The defendant was found guilty and sentenced to six years in prison.



Vistos los autos: “Review of fact by an Appeal court in the cause of Anonymous” Supreme Court of Argentina

Sexual violence and rape

Anonymous had been continually sexually abused and raped by her father since 2001 at the age of twelve. An Argentinean trial court had sentenced the father to eighteen years in prison for abusing his daughter, but this decision was overturned by an Argentinean appellate court, believing the father was not clearly guilty and his punishment was, thus, incommensurate with the crime. The Supreme Court overturned the appellate court decision, stating that there was clear guilt on the father’s part, repeated cries for help by Anonymous, and that the appellate court showed a lack of regard for the facts and the suffering of Anonymous. The case was remanded for new sentencing.

Anónimo había sido continuamente abusada sexualmente y violada por su padre desde 2001 a la edad de doce años. Un tribunal de primera instancia argentino había condenado al padre a dieciocho años de prisión por abusar de su hija, pero esta decisión fue revocada por un tribunal de apelación argentino, creyendo que el padre no era evidentemente culpable y que su castigo era, por lo tanto, incompatible con el crimen. La Corte Suprema anuló la decisión de la corte de apelaciones, declarando que había una clara culpabilidad por parte del padre, repetidos gritos de ayuda por parte de Anonymous, y que la corte de apelaciones mostró una falta de respeto por los hechos y el sufrimiento de Anonymous. El caso fue remitido para nueva sentencia.



Case #41.770 - “C.A.” Buenos Aires Criminal and Correctional Court (2011)

Statutory rape or defilement

The victim was twelve to thirteen years old when she had sexual relations with the defendant. There was no presumption of sexual immaturity. It had to be proven by evidence and expert testimony. In this case, the testimony of experts, text message evidence, and the testimony of the victim demonstrated that she was not mature enough to consent to sex. While the outcome of this case was a positive one, the general Argentinean attitude towards statutory rape is not: sexual immaturity must be proven regardless of age.

La víctima tenía entre doce y trece años cuando tuvo relaciones sexuales con el acusado pero no hubo presunción de inmadurez sexual, la cual tenía que ser probada por la evidencia y el testimonio de expertos. En este caso, el testimonio de expertos, la evidencia del mensaje de texto y el testimonio de la víctima demostraron que no era lo suficientemente madura como para consentir el sexo. Si bien el resultado de este caso fue positivo, la actitud general argentina hacia la violación estatutaria no lo es: la inmadurez sexual debe probarse independientemente de la edad.



Fallo c85566 Supreme Court of Buenos Aires (2002)

Female infanticide and feticide

A married woman with three children was allowed to undergo a therapeutic abortion for an anencephalic fetus for health reasons. To do so, she had to file a request with the hospital and the court, which had a formal hearing to determine that the rights of the fetus were being respected and that the procedure was strictly for health reasons. The decision was appealed to a higher court, which affirmed the family court’s decision. They cited international law to support the decision, citing both the mother’s rights to raise a family as she saw fit and the rights of the anencephalic fetus. Along with Argentinean Supreme Court, the most cited laws were the Convención de los Derechos del Niño and the Convención Americana sobre los Derechos Humanos. While this ruling may not seem progressive by American standards, abortion is still essentially outlawed in Argentina.

A una mujer casada con tres hijos se le permitió someterse a un aborto terapéutico para un feto anencefálico por razones de salud. Para hacerlo, tuvo que presentar una solicitud ante el hospital y el tribunal, que tuvo una audiencia formal para determinar que se respetaban los derechos del feto y que el procedimiento era estrictamente por razones de salud. La decisión fue apelada ante un tribunal superior, que confirmó la decisión del tribunal de familia. Citaron el derecho internacional para respaldar la decisión, citando tanto los derechos de la madre de criar a una familia como consideraba oportuno como los derechos del feto anencefal. Junto con la Corte Suprema argentina, las leyes más citadas fueron la Convención de los Derechos del Niño y la Convención Americana sobre los Derechos Humanos. Si bien esta decisión puede no parecer progresista para los estándares estadounidenses, el aborto aún está esencialmente prohibido en Argentina.



OTS v. No Defendant Mendoza Supreme Court (2006)

Gender-based violence in general, Sexual violence and rape

A mentally handicapped young woman was allowed to have an abortion per article 86 of the Argentinean Penal Code. The woman was impregnated through rape. Because of the woman’s mental disorders and medication issues, it was impossible to ensure a viable child and a healthy mother. This decision also declared that article 86, which allows for abortion in the case of non-viability, can be employed at a doctor’s discretion without formal court proceedings.

A una joven con discapacidad mental se le permitió abortar su embarazo, conforme con el artículo 86 del Código Penal Argentino. La mujer fue impregnada por violación. Debido a los trastornos mentales y los problemas de medicación de la mujer, era imposible garantizar un hijo viable y una madre sana. Esta decisión también declaró que el artículo 86, que permite el aborto en caso de no viabilidad, puede emplearse a discreción de un médico sin procedimientos judiciales formales.



Matter of N., R. F. Sexual Abuse San Carlos de Bariloche Supreme Court (2010)

Gender-based violence in general, Sexual violence and rape

A seventeen-year old girl won her court petition for an abortion despite the fact that there was no issue of fetus viability. The minor had suffered repeated sexual abuse at the hands of her father and uncle for the past six years. The court reaffirmed constitutional and human rights protections for fetuses against abortions, but explained that the right to life is not protected from conception to death with the same intensity. In this case, the fact that the pregnant minor had suffered repeated sexual abuse, had passed a psychological evaluation, and was only 11 weeks pregnant were sufficient reasons to override the presumption of protection for the fetus.

Una niña de diecisiete años ganó su petición en la corte para un aborto a pesar del hecho de que no había ningún problema de viabilidad del feto. La menor había sufrido repetidos abusos sexuales a manos de su padre y su tío durante los últimos seis años. El tribunal reafirmó las protecciones constitucionales y de derechos humanos para los fetos contra los abortos, pero explicó que el derecho a la vida no está protegido desde la concepción hasta la muerte con la misma intensidad. En este caso, el hecho de que la menor embarazada había sufrido abuso sexual repetido, había pasado una evaluación psicológica y tenía solo 11 semanas de embarazo era razón suficiente para anular la presunción de protección para el feto.



Matter of S., R. A., E. O. A. y A., R. A. Buenos Aires Supreme Court (2006)

Gender-based violence in general, Sexual violence and rape

In this case, a defendant who had been sentenced to twenty five years for kidnapping, among other crimes, appealed his conviction, contending that he had committed lesser kidnapping (plagio) instead of the more serious crime of premeditated kidnapping (rapto) of which he was convicted. The court decided to uphold his conviction, despite the fact that there was only coercion involved. The “lessening of sexual integrity” against the will of the victims made the defendant guilty of the greater crime of rapto under article 130 of the Argentinean Penal Code.

En este caso, un acusado que había sido condenado a veinticinco años por secuestro y otros delitos, apeló su condena, alegando que había cometido secuestro menor (plagio) en lugar del delito más grave de secuestro (rapto) premeditado del cual fue condenado. El tribunal decidió defender su condena, a pesar del hecho de que solo hubo coerción. La "disminución de la integridad sexual" contra la voluntad de las víctimas hizo que el acusado fuera culpable del mayor delito de rapto en virtud del artículo 130 del Código Penal argentino.



B., M.P. v. G., R.A. Lomas de Zamora Family Court #3 (2006)

Domestic and intimate partner violence

M.P.B. suffered repeated domestic violence and abuse at the hands of her husband R.A.G. In civil suit, M.P.B. was granted exclusive control of the spousal home and custody of her children. The court imposed a restraining order on R.A.G.; he was unable to go within 300 meters of the family home, his wife’s work, or the 9 and 12 year-old children’s school. This case is fairly punitive toward the father by Argentinean standards. The judge cited both Argentinean statutes and international human rights law in arriving at her decision.

M.P.B. sufrió repetida violencia doméstica y abuso a manos de su esposo R.A.G. En una demanda civil, a M.P.B. se le otorgó el control exclusivo de la casa del cónyuge y la custodia de sus hijos. El tribunal impuso una orden de restricción a R.A.G: no podía ir a menos de 300 metros del hogar familiar, del trabajo de su esposa o de la escuela de niños de 9 y 12 años. Este caso es bastante punitivo hacia el padre para los estándares argentinos. El juez citó tanto los estatutos argentinos como el derecho internacional de los derechos humanos al llegar a su decisión.



Constitutionality of the Women's Right to a Life Without Violence Law Tribunal Supremo de Justicia - Sala Constitucional (Venezuela Supreme Court of Justice - Constitutional Chamber) (2007)

Gender-based violence in general

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.



Mario Ramón González Cáceres, Raúl Antonio Maidana Duarte y Carolina Maidina Duarte sobre trata de personas en Independencia, Paraguay Court of Appeal of Paraguay (2005)

Trafficking in persons

Defendants were convicted in a Paraguayan trial court for mistreatment of persons, in violation of Article 129 of the Penal Code, for deceiving several women into thinking that the defendants had found them jobs as grocery store cashiers in Spain, and then trying to force the women to work at a brothel upon arrival in Spain. The Appellate Court reversed the conviction, saying the trial court lacked jurisdiction because in a case where a crime begins in one jurisdiction and is completed in another, the latter jurisdiction, in this case Spain, should hear the case. The Supreme Court, Penal division, disagreed with the appellate court, holding that the trial court did have jurisdiction, and further held that the conviction was consistent with Article 6 of the American Convention on Human Rights (“Pact of San Jose”), Article 8 of the International Pact of Civil and Political Rights, Articles 2 and 3 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, and Articles 3 and 5 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children.



Oscar Eugenio Paniagua Batochi s/ Coacción Sexual en San Juan Neponuceno Sala de Acuerdos los Señores Ministros de la Excelentísima Corte Suprema de Justicia Sala Penal (2005)

Sexual violence and rape

The Supreme Court, Penal division, upheld the conviction of a defendant who raped his stepdaughter under threat of death or grievous injury. The Court held that the conviction was consistent with Article 54 of the National Constitution, Article 19 of the American Convention on Human Rights ("Pact of San Jose"), Article 24 of the International Pact of Civil and Political Rights, Article 19 of the Convention on the Rights of the Child, Article 3 of the Code of Children and Adolescents, and Article 1 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women.



Exp. No. 018-96-I/TC Constitutional Tribunal (2007)

Gender discrimination

A public defender challenged the constitutionality of Article 337 of the Civil Code, which stated that in domestic disputes, a judge could take into consideration the education, custom and conduct of both spouses when dealing with cases of cruelty, dishonest behavior or grave injury. He argued that such a law violated the constitutional right of equality before the law. The Constitutional Tribunal agreed in part and disagreed in part, holding that such considerations could only be examined when dealing with cases of grave injury.



Exp. No.1348-2004-AA/TC Constitutional Tribunal (2004)

Sexual violence and rape

A male schoolteacher was accused of sexually abusing one of his female students, a third-grader, and was removed from his job pending the outcome of his trial. He filed a constitutional challenge to his removal, arguing that it violated his due process right to a presumption of innocence, as enumerated in Article 2 of the Peruvian Political Constitution. The court of first instance agreed with the teacher, ordering the school system to reinstate him. The school system argued that the Law of Teachers ("Ley de Profesorado") allows for termination of a teacher without a conviction. The Constitutional Tribunal held that while professionals normally cannot be removed from a job until proven guilty, the interest of protecting minor children outweighed the interest of the teacher in this case. The Court held that the teacher's removal was consistent with Article 34 of the Convention on the Rights of the Child, and Article 2 of the Interamerican Convention on the Prevention, Punishment and Eradication of Violence Against Women, as well as numerous other Peruvian laws.



Sentencia T-877/07 Constitutional Court of Colombia (2007)

Gender discrimination

The Court affirmed that an employer is not only constitutionally-required to provide adequate maternal leave for pregnant workers, but also bound by regional and international treaties to which Colombia is a signatory, such as the Additional Protocol to the American Convention on Human Rights  ("Protocol of San Salvador").



Sentencia C-507/04 Constitutional Court of Colombia (2004)

Forced and early marriage, Gender discrimination

The Court was asked to examine the constitutionality of Article 34 of the Colombian Civil Code, which established the minimum age of marriage for women as 12, while the minimum age for men as 14. The Court struck the wording from the Civil Code that differentiated in age based on gender, and set the minimum age of marriage at 14.



Sentencia T-988/07 Constitutional Court of Colombia (2007)

Gender-based violence in general

The Court ordered defendant, a health-care provider, to provide a mentally and physically-disabled woman with an abortion after she became pregnant from nonconsensual sexual intercourse. The Court held that because of her mental disability, the woman's parents could request the abortion, despite the fact that the woman was 24-years old. The Court also held that the rape need not have been reported to the authorities, as was argued by the defendant.



Sentencia C-534/05 Constitutional Court of Colombia (2005)

Gender discrimination

The Court held that 4, while prima facie unconstitutional, is acceptable if done with the constitutional purpose of furthering the rights of women, considered a constitutionally-protected class, and not with the purpose of maintaining traditional societal roles. The Court held that "the special protection of women allows for discriminatory treatment with constitutional ends." The Court also affirmed that minors are a protected class, protected both by the Colombian Constitution but also by the international treaties to which Colombia is a signatory.



Sentencia C-667/06 Constitutional Court of Colombia (2006)

Gender discrimination

The Court held that existing legal provisions and international treaties that provide women with special rights and considerations were not in violation of the Colombian Constitution's equal rights provision. The Court reasoned that such provisions were not aimed at withholding rights from men, but instead were aimed at correcting any shortcomings in the rights owed to women. 



Sentencia T-058/08 Constitutional Court of Colombia (2008)

Gender discrimination

Reversing an appellate court ruling and affirming a trial court ruling, the Court reaffirmed the rights to employment of pregnant and nursing women.  



Naturaleza de compensación económica en divorcio Tribunales Superiores de Justicia de Chile (2006)

Divorce and dissolution of marriage, Domestic and intimate partner violence

In this divorce proceeding, the court reiterated that in situations in which one of the two parents, most commonly the mother, stays at home and thereby forfeits the opportunity to develop a career and earn a living wage, she is entitled to economic assistance from her husband if the marriage ends. This was especially relevant in this case, given that the husband had previously abused his wife, and after initially leaving him, she was forced to return to the marriage for economic reasons.



Sentencia T-088/08 Constitutional Court of Colombia (2008)

Gender-based violence in general

Recognizing the constitutional vulnerability of pregnant women and unborn and newborn children, the Court ordered defendant, and insurance company, to insure plaintiff, an 18-year old pregnant woman, who had lost the right to her parents' insurance upon reaching the age of 18. 



Rol No. 465 Constitutional Court of Chile (2006)

Harmful traditional practices

In a case challenging the constitutionality of a Ministry of Education directive setting minimum standards for pre-schools, the Court reiterated the rights of both boys and girls to receive at least a certain minimum level of education.



Sentencia T-209/08 Constitutional Court of Colombia (2008)

Gender-based violence in general

Therapeutic abortion in cases of rape, incest, and to save the health and life of the woman. The Court reaffirmed that a ban on abortion in all instances would an unconstitutional violation of women's fundamental rights. 



Auto 102-07 Constitutional Court of Colombia (2007)

Gender-based violence in general

The Court ordered the Secretary General of the Court to hold a planning session along with several other governmental and non-governmental entities to address issues of forced displacement of women.



Sentencia T-496/08 Constitutional Court of Colombia (2008)

Gender violence in conflict

Court recognized the special vulnerability of women in situations of armed conflict and ordered the Ministry of the Interior and the Ministry of Justice, as well as the Attorney General, to implement and revise programs to protect victims and witnesses of armed conflicts, consistent with national and international law and practice.



Sentencia A092/08 Constitutional Court of Colombia (2008)

Gender violence in conflict

The Court recognized the special constitutional protection that women displaced by armed conflict are entitled to, as well as international obligations applicable to women displaced by armed conflict. The Court ordered the creation of programs to bring attention to the plight of displaced women and to strengthen their constitutional rights. The court also granted protective orders to more than 600 displaced women. Finally, the court alerted the Attorney General of numerous sexual crimes committed against women during Colombia's armed conflict. 



Sentencia T-549/07 Constitutional Court of Colombia (2007)

Sexual violence and rape

Court held that plaintiff, who was accused of raping two women, did not have his due process rights violated when tried by an indigenous tribunal because the due process followed by the indigenous tribunal was consistent with the due process requirements of the national courts. 



Sentencia C-101/05 Constitutional Court of Colombia (2005)

Gender discrimination

Explaining that the right to marry or remarry is a fundamental right, the Court held that wills and testaments that required a woman to remain single or widowed were unconstitutional. 



Sentencia T-549/08 Constitutional Court of Colombia (2008)

Gender discrimination

Reversing a lower court's finding, the Court ordered defendant to reinstate plaintiff in her prior place of employment after it found that defendant had improperly fired plaintiff due to her pregnancy, thereby violating her rights as a pregnant woman. 



Sentencia C-322/06 Constitutional Court of Colombia (2006)

Gender-based violence in general

The Court was asked to reexamine the domestic implications of Colombia's adoption of the CEDAW. Those opposing the CEDAW argued that its adoption would have grave consequences and be inconsistent with the Colombian Constitution. The Court affirmed the constitutionality of Colombia's participation in the CEDAW.



Sentencia T-622/05 Constitutional Court of Colombia (2005)

Custodial violence, Gender-based violence in general, Sexual harassment

The Court held that prison procedural rules that required vaginal inspections of female visitors, and that did not allow female visitors to enter the prison while menstruating, violated female visitors' right to dignity, personal liberty and health. The Court ordered the National Institute of Prisons and Jails (Instituto Nacional Penitenciario y Carcelario) to stop such intrusive inspections and install at the prison in question, the Cárcel Distrital Villahermosa de Cali, equipment necessary to accomplish the safety objectives of a vaginal inspection without needing to conduct such an inspection.



Sentencia C-355/06 Constitutional Court of Colombia (2006)

Gender-based violence in general

The Court ruled that a complete ban on abortion was unconstitutional and legalized abortion in cases of incest, danger to the health of the mother, and rape, involuntary insemination, serious deformity to the fetus, or when the mother is under the age of 14. In instances of deformity to the fetus or danger to the mother, the Court required that medical evidence be provided.  The Court relies on its obligations in international law to protect women's rights to health and life, among others.



Manuel Enrique Peralta Cabrera c/ Eulogio Chino Poma Sala Penal (2000)

Sexual violence and rape

Defendant was charged with homicide and rape of a woman, in violation of Articles 251 and 308 of the Penal Code. Defendant admitted to having raped the victim, but claimed that he did not kill her, claiming he left her alone after he finished raping her. The trial court found there was sufficient evidence to convict the defendant of both crimes. The appellate and supreme courts affirmed the ruling.



Luque, Guillermo Daniel y Tula, Luis Raúl s/ homicidio preterintencional Supreme Court of Argentina (2001)

Sexual violence and rape

Defendant was convicted as accomplice in a rape and murder while under the influence of narcotics. The regional appellate court affirmed the trial court's ruling, but the national Supreme Court, while upholding the conviction, held that Article 13 of Law 23.737, which calls for heavier sentences when crimes are committed under the influence of narcotics, was not applicable in this case. The case was remanded to the regional appellate court.

El acusado fue condenado como cómplice en una violación y asesinato bajo la influencia de narcóticos. El tribunal de apelación regional confirmó la decisión del tribunal de primera instancia, pero el Tribunal Supremo nacional, aunque confirmó la condena, sostuvo que el artículo 13 de la Ley 23.737, que exige penas más severas cuando los delitos se cometen bajo la influencia de narcóticos, no era aplicable en este caso . El caso fue remitido a la corte de apelaciones regional.



Miguel Flores López c/ Cresencio Vedia Quispe Sala Penal (2000)

Sexual violence and rape

Charges were brought against defendant for the aggravated rape of a 20-year old handicapped woman, suffering from muscular atrophy. According to the victim, who was the defendant's sister-in-law, the defendant entered her room, threw her on the bed, raped her and left. The defendant allegedly raped the victim a number of more times, resulting in pregnancy. The defendant then allegedly attempted unsuccessfully to induce victim's abortion, at which time the victim reported the incidents to her father. The trial court ruled in favor of the defendant, holding the victim's testimony to be too inconsistent and contradictory to secure a conviction. The appellate and Supreme Court, disagreed, holding that there was sufficient evidence for a conviction.



Y., C. I. c/ L., B. A. Fallo de la Sala F de la Cámara Nacional en lo Civil (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Reviewing a trial court decision that granted a divorce based on the actions of both parties, the Appellate Court rejected a husband's suit for divorce, and instead granted the divorce based on the wife's counter suit, holding that the marriage failed due to the husband's domestic abuse of his wife.

 

Al revisar una decisión del tribunal de primera instancia que otorgó un divorcio basado en las acciones de ambas partes, el Tribunal de Apelación rechazó la demanda de divorcio de un marido y, en su lugar, otorgó el divorcio basado en la demanda de la esposa, sosteniendo que el matrimonio fracasó debido al abuso doméstico del marido hacia su esposa.



Ministerio Público c/ Julián Cachiqui Da Costa Sala Penal (2001)

Sexual violence and rape

Defendant was accused of aggravated rape of his 11-year old daughter, in violation of Art. 308 and 310-2 of the Penal Code. The defendant admitted to the rape, explaining it was an irresistible impulse. The trial court held that there was sufficient evidence not only to prove that the Defendant had raped his daughter, but that he had used force and threats of force to do so. Defendant was sentenced to 12 years in jail, and fined punitive damages. On appeal, the appellate court held that the appropriate sentence was 13 years, and that the penal code did not allow for the punitive damages. The Supreme Court affirmed.



Yapura, Gloria Catalina v. Nuevo Hospital El Milagro y Provincia de Salta Supreme Court of Argentina (2006)

Gender-based violence in general

Plaintiff sought an order requiring a hospital to perform a tubal litigation on her after she delivered her fourth child. Plaintiff lived in poverty and neither she nor her husband was employed. The trial and appellate courts refused to grant the order, but the Supreme Court remanded the case for the lower court, citing the lower court's failure to examine the facts of the case.

La demandante solicitó una orden que requería que un hospital le realizara un litigio tubárico después de que ella dio a luz a su cuarto hijo. La demandante vivía en la pobreza y ni ella ni su esposo estaban empleados. Los tribunales de primera instancia y de apelación se negaron a otorgar la orden, pero el Tribunal Supremo devolvió el caso al tribunal inferior, citando el fallo del tribunal inferior de examinar los hechos del caso.



Susana Hurtado de Barrero c/ Francisco Barranco Ramos Sala Penal (1998)

Sexual violence and rape

Defendant was charged with the aggravated rape of his 9-year old daughter. After considering a medical exam that confirmed rape had occurred, and hearing testimony from the victim naming her father as the aggressor, the lower court found defendant guilty of aggravated rape. The defendant appealed, alleging the accusation of rape was an attempt by the girl's mother of getting revenge against him. Finding there to be sufficient evidence for a conviction, the Court affirmed the lower court's ruling.



Agripina Guzmán Paredes de Soliz c/ Alberto Soliz Carrillo Sala Civil (2006)

Domestic and intimate partner violence

Plaintiff appealed a lower court's ruling that there was insufficient evidence to convict her husband of psychologically and physically abusing her, in violation of Art. 130-4 of the Family Code ("Codigo de Familia"). The Court reversed the lower court's finding, holding that the lower court failed to give adequate weight to evidence that proved defendant had violated Art. 130-4 by physically and psychologically abusing his wife. The Court chided the lower court for placing the plaintiff in danger and for failing to carry out its duty to prevent violence against women.



Dorotea Ortega de Guerrero c/ Efraín Guerrero Tarifa Sala Penal (1998)

Sexual violence and rape

Charges were brought against defendant for allegedly sexually abusing his 14-year old daughter for a period of 30 days while they were in Argentina. The lower court found defendant guilty of aggravated rape, in violation of Article 308-2 and 310-2 of the Penal Code. Upon defendant's appeal, the Court affirmed the lower court's ruling, holding that the victim's testimony coupled with that of the defendant's brother, who witnessed and first reported the rape, was sufficient evidence to convict the plaintiff.



Facundo Tito Pocomani c/ Félix Mamani Tite Sala Penal (2000)

Sexual violence and rape, Statutory rape or defilement

Defendant appealed a conviction for raping his 15-year old niece as many as three times, rape which resulted in her pregnancy. Defendant argued that the evidence against him was circumstantial and insufficient, and alleged that the victim had engaged in sexual relations with another man, from which the pregnancy resulted. The Court held that there was sufficient evidence not only of the fact that the victim was a minor at the time of the rape, but that force and intimidation had been used by the defendant. The Court affirmed the defendant's conviction.



Hilda Ana Merlo Vásquez c/ Hernán Ramos Méndez Sala Penal (2000)

Sexual violence and rape

Alleged victim claimed that defendant pushed her down the stairs and raped her while she was unconscious. The trial court ruled in favor of the defendant, finding there was insufficient evidence to convict him of committing grave bodily injury, harassment and rape. The Appellate Court affirmed acquittals for grave bodily injury and harassment, but reversed the acquittal for rape, finding that there was sufficient medical evidence for a conviction. Medical testimony indicated that the victim had recently engaged in sexual relations, but that after the victim had fallen down the stairs, she would have been in so much pain that consensual sexual relations would have been highly unlikely. The Supreme Court affirmed the appellate court's ruling.



José Santos Colque Góngora c/ Angela Muriel Aguilar y otros Sala Penal (1999)

Gender-based violence in general

Jose Santos Colque Gongora, his mother, Angela Muriel Aguilar and one other woman, Marina Medina Estevez, were convicted of performing an abortion on Miriam Colque Villca without her consent, in violation of Article 263-1 of the Penal Code. The victim was Colque Gongora's wife. Colque Gongora and his mother took the victim to Medina Estevez's house, telling her it was for a check-up, at which time Medina Estevez conducted the abortion. The appellate and supreme courts affirmed the conviction.



Julia Arhuata de Flores c/ Mario Flores Flores Sala Penal (2000)

Sexual violence and rape

Defendant was charged with repeatedly raping his two underage daughters. The victims alleged that they did not report the incidents immediately because their father threatened them against doing so. Witnesses testified that the defendant was regularly drunk and abusive. The trial court found him guilty of rape. The appellate and supreme courts affirmed the conviction.



Lucio Rojas Lizarazu c/ Víctor Gandarillas Galarza Sala Penal (2000)

Sexual violence and rape, Statutory rape or defilement

Defendant was convicted of the rape of a minor age 14 to 17, in violation of Article 309 of the Penal Code. The defendant admitted to having engaged in sexual relations with the victim, but claimed the relations were consensual, and apologized for his actions. Taking into account the defendant's apology and previous record of good conduct, defendant received a prison sentence of only 4 years. Both parties appealed, but the appellate court affirmed the trial court ruling, finding that the victim had failed to produce evidence of force which would carry a heavier sentence.  The Supreme Court affirmed, holding that the defendant had seduced the minor, but that it had not been shown that he used force.



Legislation

Decree with Rank, Value and Force of Law for the Creation of the Ministry of Women (2009)

Gender discrimination

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.  



Ley Orgánica sobre Derecho de las Mujeres a una VIda Libre de Violencia Capítulo (Organic Law on Women's Right to a Life Free from Violence) (2007)

Gender-based violence in general

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.  



Decreto Lei No 2.848 (1940)

Abortion and reproductive health rights, Gender discrimination

Under this law it is illegal to kill a child during pregnancy, during childbirth, or shortly afterwards. Under Article 124 to provoke abortion in itself or to allow others to provoke it, is illegal. Under Article 125 to proceed with abortion, without the consent of the pregnant woman is illegal. It is illegal under Article 126 to provoke abortion with the consent of the pregnant woman. Brazilian law only allows abortion if the woman’s life is at risk, if the pregnancy resulted from rape, or if the foetus has an anencephaly. However, the issue of legalizing abortion has been taken to the Supreme Court and may be reformed soon.



Lei Nº 11.441 (2007)

Divorce and dissolution of marriage

This law, passed in 2007, allowed both consensual divorce and consensual separation to be dealt with in the civil registry so that divorce, separation, and inventory and division of assets would become extra judicial affairs when the parties agreed on its terms. This means that the process of getting a divorce became significantly easier as a result of the lower financial costs and the decrease in the number of procedures required in getting the divorce. Divorce therefore became more accessible.



Lei Nº 12.705 (2012)

Employment discrimination, Gender discrimination

This law allowed women to serve in the Brazilian army. Article 7 allows women to enter into the military line of education within five years of the law being passed (therefore it allowed women to commence combat training in 2016).



Lei Nº 9.029 (1995)

Abortion and reproductive health rights, Employment discrimination, Gender discrimination

This law prohibits any discrimination that is based upon gender, race, colour, marital status, family status or age. Article 1 prohibits any discriminatory and limiting practice for the effect of access to employment, or their maintenance, by reason of sex, origin, race, colour, marital status, family situation or age (except in the protection of the child). Article 2 prohibits any discriminatory practices such as i) requiring a test, examination, skill, award, attestation, declaration or any other procedure concerning sterilization or pregnancy, ii) the adoption of any measures, at the initiative of the employer that constitute induction, promotion of birth control. The Act provides for the detention of one to two years and a fine.



Lei Nº 11.108 (2005)

Abortion and reproductive health rights, Gender discrimination

On April 7, 2005, Law No. 11.108/2005 was published to amend existing Law No. 8.080/1990. It included a new chapter that mandated that all health services of the Unified Health System (“SUS”) must allow the presence of an accompanying party chosen by the parturient woman, throughout the entire labor, birth, and the immediate post-partum period.



Lei Nº 11.340 (2006)

Domestic and intimate partner violence, International law

On August 7, 2006, Law No. 11.340 was enacted to create a new body of legal provisions tackling the issue of domestic violence against women in Brazil. Commonly known as “Lei Maria da Penha” (or Maria da Penha Act), the new law criminalized different forms of domestic violence against women, established stricter punishment for offenders, facilitated preventive arrests, and created other special protective and relief mechanisms for women, including special courts, designated police stations, and shelter for women. The new law, considered a landmark statute, was named after Maria da Penha, a Brazilian bio-pharmacist who became paraplegic after being shot and electrocuted by her husband. After nearly two decades of ineffective criminal prosecution, Maria da Penha took the case to the Inter-American Commission on Human Rights, where Brazil was ultimately criticized for its inefficient treatment of issues regarding domestic violence (case available here). In effect since 2006, the Maria da Penha Act has been praised by the United Nations as one of the most progressive laws in combatting domestic violence against women.



Lei Nº 11.770 (2008)

Employment discrimination, Gender discrimination

On September 9, 2008, Law No. 11.770 was enacted to create a tax incentive program for private companies that offer an additional sixty (60) days of maternity leave on top of the mandatory 120 days set forth in Decree No. 5.452/1943. The incentive also applies for adoptions.



Resolução nº 175/2013 (2013)

Gender discrimination, LGBTIQ

On May 14, 2013, the National Justice Council issued a resolution stating that competent authorities are not allowed to refuse (a) to celebrate same-sex civil marriages nor (b) to convert same-sex common-law marriages (stable union) into civil marriages.  The National Justice Council is a public administrative body that aims to advance the work of the Brazilian judicial system. The resolution was issued after the Supreme Court declared in 2011 that it is unconstitutional to apply a different legal treatment to same-sex common-law marriages (stable union), from the one applied to heterosexual common-law marriages (stable union). 



Law No. 13.104/2015 (“Lei do Feminicídio”) (2015)

Female infanticide and feticide, Femicide

On March 9, 2015, Brazil’s existing criminal code was amended to criminalize femicide, with sentencing ranging from twelve to thirty years of imprisonment. The new legislation defined femicide as a sex-based homicide committed against women, with the involvement of domestic violence, discrimination or contempt for women. The crime is aggravated if the victim is a pregnant woman, a woman within the first three months of maternity, a girl under the age of fourteen years or a woman over sixty years of age. Besides amending the existing criminal code, the new legislation also amended Law no. 8.072/1990, adding femicide to the list of heinous crimes.



International Case Law

Case of the Yakye Axa Indigenous Community v. Paraguay Inter-American Court of Human Rights (2005)

Property and inheritance rights

The Inter-American Commission on Human Rights alleged that, by not respecting ancestral property rights, the Government of Paraguay threatened the Yakye Axa Indigenous Community’s access to food, water and health care, and survival in violation of Articles 4 (right to life), 8 (right to fair trial), 21 (right to property) and 25 (judicial protection) of the American Convention on Human Rights. The court noted several specific examples of dangers faced by the women of the Community, including instances in which a woman was threatened by a man wielding a shotgun and another in which a woman was sexually exploited by State workers. The court noted that Paraguay was obligated to take into account the economic and social characteristics, special vulnerability, and customary laws, values and customs of indigenous peoples in order to effectively protect them, and found that Paraguay’s delay in recognizing the Community’s leadership, legal status and claims to land violated the Community’s rights to judicial protection, a fair trial, property, and ultimately a decent life. The court also found that the Community had a right to be granted legal status in order to take advantage of its members’ full rights as a people, and that Paraguay’s ongoing refusal to recognize that status was a violation of this right. As such, the court ordered that Paraguay provide the Community – “especially children, the elderly and pregnant women” -- with reparations, including compensation, food and water, sanitation, access to health care, and rightful title to their traditional territory.



Comunidad Indígena Xákmok Kásek v. Paraguay Inter-American Court of Human Rights (2010)

Property and inheritance rights

The Indigenous Community Xákmok Kásek and its members sued Paraguay because of its inability to recover certain ancestral property. The Community claimed that this lack of access to property and possession of its territory, in addition to threatening the survival of the Community, resulted in nutritional, medical and health vulnerability to its members, causing, among other things, the death of pregnant women, children, and the elderly. The court found Paraguay in violation of Articles 3 (Right to Juridical Personality), 4 (Right to Life), 5 (personal integrity), 8.1 (Trial), 19 (Rights of the Child), 21 (Right to Property) and 25 (Judicial Protection) of the Convention, in relation to the obligations established in Articles 1.1 (Obligation to Respect Rights) and 2 (duty to adopt domestic law). The court ordered Paraguay to engage in a series of reparation measures, including returning land to the Community, damages and undertakings not to repeat such conduct and to assist the Community with rehabilitation. Among other measures ordered by the court, Paraguay must provide immediate “special care to women who are pregnant, both before birth and during the first months thereafter, and the newborn.”



L.M.R. v. Argentina Human Rights Committee (2007)

Sexual violence and rape

VDA, on behalf of her daughter LMR, filed a petition alleging violations of LMR’s rights under the International Covenant on Civil and Political Rights (ICCPR). The petition alleged violations of LMR’s right under article 2 (right to protection from state against violations of the rights within the ICCPR), article 3 (right to be free from discrimination), article 7 (to freedom from torture or other cruel, inhuman or degrading treatment), article 17 (freedom from arbitrary interference with privacy, family, home or correspondence, or unlawful attacks on honor or reputation), and article 18 (right to freedom of thought, conscience and religion). At the time of the incident, LMR was 20 years old but had permanent mental disability with a mental age between 8 and 10 years old. When LMR’s mother brought her to hospital after LMR complained of pains, she discovered that LMR was raped by her uncle and was 14.5 weeks pregnant. Under section 82.6 of the Argentinean Criminal Code, abortion is legal if the pregnancy is the result of the rape of a mentally impaired woman. LMR filed a police complaint and scheduled an abortion, but the abortion was prevented by an injunction against the hospital. LMR appealed unsuccessfully to the Civil Court. The Supreme Court of Buenos Aires ruled the abortion could take place. However, under pressure from anti-abortion groups, the hospital refused to perform the abortion because her pregnancy was too far advanced. LMR eventually obtained an illegal abortion. Article 2 of the Optional Protocol to the ICCPR creates an obligation for state parties to protect individuals’ rights under the Covenant. The United Nations Human Rights Committee found that court hearings caused LMR’s abortion to be delayed to the point that she required an illegal abortion. The Committee found that although forcing LRM to endure a pregnancy that resulted from rape did not constitute torture under Article 7, it did cause physical and emotional suffering and therefore still constituted a violation of LRM’s rights under Article 7. Article 7 protects individuals from mental as well as physical suffering, and the Committee saw the violation as particularly serious given LRM’s status as a person with a disability. Further, the Committee found that because the decision of whether to proceed with an abortion should only have been made between the patient and her physician, LRM’s right to privacy under Article 17 was violated. Even though the Supreme Court ruled in favor of LRM’s abortion, this litigation process was so prolonged that LRM’s pregnancy had advanced to the stage that her physician would no longer perform the abortion. This fact, the Committee reasoned, amounted to a violation of Article 2, because LRM did not, in fact, have access to an effective remedy (the abortion) and was forced to obtain one illegally. This case contributed to a growing consensus in international law that restricting women’s access to an abortion may be considered torture or cruel, inhuman or degrading treatment under Article 7 of the ICCPR. It also demonstrated that obstructing access to legal, elective medical procedures may violate the Covenant. Additionally, it indicated that the Court will analyze the right of a person with a disability under Article 7 in a way which heightens the recognized impact of the violation.

VDA, en nombre de su hija LMR, presentó una petición por violación de los derechos de LMR en virtud del Pacto Internacional de Derechos Civiles y Políticos (PIDCP). La petición alegaba violaciones del derecho de LMR en virtud del artículo 2 (derecho a la protección del Estado contra violaciones del derecho en virtud del PIDCP), artículo 3 (derecho a no ser discriminado), artículo 7 (a no ser sometido a torturas u otros actos crueles, inhumanos o trato degradante), el artículo 17 (libertad de interferencia arbitraria con la privacidad, familia, hogar o correspondencia, o ataques ilegales a honor o reputación), y el artículo 18 (derecho a la libertad de pensamiento, conciencia y religión). Al momento del incidente, LMR tenía 20 años de edad, pero tenía una discapacidad mental permanente que la hacía tener una edad mental entre 8 y 10 años. Cuando la madre de LMR la llevó al hospital después de que LMR se quejó de dolores, descubrió que LMR fue violada por su tío y tenía 14.5 semanas de embarazo. Bajo la sección 82.6 del Código Penal Argentino, el aborto es legal si el embarazo es el resultado de la violación de una mujer con discapacidad mental. LMR presentó una denuncia policial y programó un aborto, pero el aborto fue prevenido por una orden judicial contra el hospital. LMR apeló sin éxito al Tribunal Civil.

La Corte Suprema de Buenos Aires determinó que el aborto podría llevarse a cabo. Sin embargo, bajo la presión de los grupos contra el aborto, el hospital se negó a realizar el aborto porque el embarazo estaba muy avanzado. LMR finalmente obtuvo un aborto ilegal. El artículo 2 del Protocolo Facultativo del Pacto Internacional de Derechos Civiles y Políticos establece la obligación de los Estados parte de proteger los derechos de las personas en virtud del Pacto. El Comité de Derechos Humanos de las Naciones Unidas determinó que las audiencias judiciales causaron un retraso en el aborto de LMR hasta el punto de que ella requirió un aborto ilegal. El Comité determinó que aunque obligar a LRM a soportar un embarazo que resultó de una violación no constituía una tortura en virtud del Artículo 7, causaba sufrimiento físico y emocional y, por lo tanto, seguía constituyendo una violación de los derechos de LRM en virtud del Artículo 7. El Artículo 7 protege la salud mental de las personas además del sufrimiento físico, y el Comité consideró que la violación era particularmente grave dado el estado de LRM como persona con discapacidad. Además, el Comité determinó que debido a que la decisión de proceder o no con un aborto solo debería haberse realizado entre la paciente y su médico, se violó el derecho a la privacidad de LRM en virtud del Artículo 17. A pesar de que la Corte Suprema falló a favor del aborto de LRM, este proceso de litigio fue tan prolongado que el embarazo de LRM había avanzado a la etapa en que su médico ya no realizaría el aborto. Este hecho, razonó el Comité, equivalía a una violación del artículo 2, porque LRM no tenía, de hecho, acceso a un recurso efectivo (el aborto) y estaba obligada a obtener uno ilegalmente. Este caso contribuyó a un consenso cada vez mayor en el derecho internacional de que restringir el acceso de las mujeres a un aborto puede considerarse tortura o tratos crueles, inhumanos o degradantes en virtud del Artículo 7 del PIDCP. También demostró que obstruir el acceso a procedimientos médicos electivos y legales puede violar el Convenio. Además, el caso indicó que la Corte analizará el derecho de una persona con una discapacidad según el Artículo 7 de una manera que aumenta el impacto reconocido de la violación.



L.C. v. Peru CEDAW Committee (2011)

Sexual violence and rape, Statutory rape or defilement

An 11-year-old girl was repeatedly raped by a 34-year-old man. As a result, she became pregnant and consequently attempted to commit suicide by jumping from a building. She survived the suicide attempt but sustained serious injuries which required emergency surgery. The hospital declined to perform the surgery based on the risk posed to the pregnancy, and refused to perform an abortion despite that therapeutic abortion is legal in Peru and that the pregnancy posed a danger to her physical and mental health. As a consequence, she was completely paralyzed from the neck down. The Center for Reproductive Rights and the Center for the Promotion and Defense of Sexual and Reproductive Rights filed a human rights petition on behalf of her against Peru before CEDAW alleging violations of Articles 1, 2 (c) and (f), 3, 5, 12 and 16 (e) of CEDAW by failing to implement measures that guarantee a woman’s ability to obtain essential reproductive health services in a timely manner. The Committee upheld the claim and asked Peru to provide L.C. reparation, including physical and mental rehabilitation, and issue necessary measures so that no other woman is denied her right to comprehensive healthcare and therapeutic abortion. This decision demonstrate a willingness on the part of the CEDAW to view the denial of reproductive rights as a discrimination issue and is flagged as an innovative juridical resource for reforming abortion laws.



Alyne da Silva v. Brazil CEDAW Committee (2011)

Gender discrimination

A, a 28-year-old Afro-Brazilian woman, died of complications resulting from pregnancy after her local health center misdiagnosed her symptoms and delayed providing her with emergency care. A’s death is not an isolated case. Brazil's maternal mortality rates are disproportionately high for a country of its economic status and the chances of dying in pregnancy and childbirth are greatest among indigenous, low-income, and Afro-descendant women. The Center for Reproductive Rights and Brazilian partner Advocaci filed a communication before the CmEDAW alleging violations Articles 2 and 12 of CEDAW. The Committee affirmed the violations despite Brazil’s claims that it had made "qualified obstetric care" a priority in its National Plan for Women's Policies. It also highlighted that "the State is directly responsible for the action of private institutions when it outsources its medical services, and that furthermore, the State always maintains the duty to regulate and monitor private health-care institutions". The Committee recommended Brazil ensure affordable access for all women to adequate emergency obstetric care and to effective judicial remedies, provide adequate professional training for health workers, ensure compliance by private facilities with national and international standards in reproductive healthcare, and reduce preventable maternal deaths. The case was important as it was the first case on maternal mortality to be brought before CEDAW. The Committee took a leap forward in increasing coherence in international human rights law on women's economic, social and cultural rights. Further, the Committee's inclusion of factors affecting A's access to health services, such as poverty and race were a milestone in the development of an intersectional understanding of women's ESCR.



L.N.P. v. Argentina Human Rights Committee (2007)

Gender discrimination, Statutory rape or defilement

A 15-year-old girl, P, was allegedly sexually assaulted by three men. She immediately reported the attack to the police, but was kept waiting for hours at the police station and a medical center before being performed anal and vaginal palpations which caused her intense pain and despite complaining the sole anal nature of the attack. A social worker was sent to interview P's neighbors and relatives about her sexual history and morals during the investigation, leasing aside the three accused. The three accused were acquitted following a trial solely in Spanish despite the first language of P and several of the witnesses was Qom, and in which great reliance was placed on P's sexual history by the prosecution and the judge. P was not notified of her rights to participate in the trial nor of the outcome of the trial and she only became aware of the acquittal after two years and was unable to appeal. The Human Rights Committee found violations of Articles 2(3), 3, 7, 14(1), 17, 24, 26 of the Convention. The Committee found that the police, medical examiner and the court did not provide appropriate protections to P's age, discriminated against her in the emphasis that was placed on her sexual history, and denied her right of access to the courts when she was not informed of her legal rights. It also found that the events at the police station and the medical examination constituted inhumane or degrading treatment, and that the investigation had arbitrarily interfered with P's private life. The Committee called on the State to guarantee access for victims, including victims of sexual assault, to the courts in conditions of equality in the future. However the operative gender stereotypes, including that as a young women from a marginalized ethnic minority group, she was sexually promiscuous, which contributed towards the acquittal of the accused of the rape were unnamed, leaving the role of the stereotypes in discriminating against similar victims and their rights unaddressed.

Una niña de 15 años, P, presuntamente fue agredida sexualmente por tres hombres. Ella informó de inmediato del ataque a la policía, pero se mantuvo esperando durante horas en la estación de policía y en un centro médico antes de que se realizaran las palpaciones anales y vaginales, lo que le causó un dolor intenso, además ella especificó la naturaleza anal única del ataque. Se envió a una trabajadora social para entrevistar a los vecinos y familiares de P sobre su historial sexual y su moral durante la investigación, dejando a un lado a los tres acusados. Los tres acusados fueron absueltos después de un juicio únicamente en español a pesar del primer idioma de P y varios de los testigos era Qom, y en los que la fiscalía y el juez depositaron una gran confianza en la historia sexual de P. P no fue notificada de sus derechos a participar en el juicio ni del resultado del juicio y solo se enteró de la absolución después de dos años, cuando ya era muy tarde para apelar. El Comité de Derechos Humanos encontró violaciones de los artículos 2 (3), 3, 7, 14 (1), 17, 24, 26 de la Convención. El Comité determinó que la policía, el médico forense, y el tribunal no proporcionaron las protecciones adecuadas a la edad de P, la discriminaron por el énfasis que le pusieron en su historial sexual y negaron su derecho de acceso a los tribunales cuando no se le informó de sus derechos legales. También encontró que los eventos en la estación de policía y el examen médico constituían un trato inhumano y degradante, y que la investigación había interferido arbitrariamente en la vida privada de P. El Comité pidió al Estado que garantice el acceso de las víctimas, incluidas las víctimas de agresión sexual, a los tribunales en condiciones de igualdad en el futuro. Sin embargo, los estereotipos operativos de género, incluyendo que como mujeres jóvenes de un grupo minoritario étnico marginado, la tacharon como sexualmente promiscua, lo que contribuyó a la absolución de las acusadas de la violación no fue identificado, dejando el papel de los estereotipos en la discriminación contra víctimas similares y sus derechos no defendidos. 



Maria Merciadri de Morini v. Argentina Inter-American Commission on Human Rights (2001)

Gender discrimination

Maria Merciadri de Morini v. Argentina, Argentina, Inter-American Commission on Human Rights, 2001. Gender Discrimination, Political Rights, Equal Protection, Due Process. Ms. Maria Merciadri de Morini’s political party produced an election ballot that violated Argentine law. The law required election ballots to include 30% of women candidates. Ms. Merciadri de Morini’s political party only placed one woman out of five candidates where, by law, there should have been at least two women on the ballot. Ms. Merciadri de Morini brought suit against the political party for the violation of the voting law. Ms. Merciadri de Morini attempted to exhaust domestic remedies but the Argentine domestic courts violated her rights to due process and equal protection by continuously rejecting her claim. Ms. Merciadri de Morini petitioned her case to IACHR. Argentina ultimately responded to the allegation and dictated to the IACHR that the two parties had come to a friendly settlement. Argentina changed the way it regulated the voting law and recognized the violations against all women including Ms. Merciadri de Morini. The Inter-American Commission on Human Rights approved the friendly settlement between Ms. Merciadri de Morini and Argentina.

La señora María Merciadri, cuyo caso, "Morini contra Argentina," fue visto ante la Comisión Interamericana de Derechos Humanos en el 2001. Se analizó la discriminación de género, derechos políticos, igualdad de protección, y debido proceso. El partido político de la Sra. Maria Merciadri de Morini produjo una boleta electoral que violaba la ley argentina. La ley exigía que las boletas electorales incluyeran el 30% de las candidatas. El partido político de la Sra. Merciadri de Morini solo colocó a una mujer de cada cinco candidatas donde, por ley, debería haber al menos dos mujeres en la boleta electoral. La Sra. Merciadri de Morini presentó una demanda contra el partido político por la violación de la ley de votación. La Sra. Merciadri de Morini intentó agotar los recursos internos, pero los tribunales nacionales argentinos violaron sus derechos al debido proceso y la igual protección al rechazar continuamente su reclamo. La Sra. Merciadri de Morini solicitó su caso a la CIDH. Argentina finalmente respondió a la acusación y dictó a la CIDH que las dos partes habían llegado a un acuerdo amistoso. Argentina cambió la forma en que regulaba la ley de votación y reconoció las violaciones contra todas las mujeres, incluída la Sra. Merciadri de Morini. La Comisión Interamericana de Derechos Humanos aprobó el acuerdo amistoso entre la Sra. Merciadri de Morini y Argentina.



Atala Riffo and Daughters v. Chile Inter-American Court of Human Rights (2010)

Gender discrimination

Karen Atala Riffo, a judge in Chile, and her husband separated in 2002 and agreed that she would retain custody of their three daughters. After a few years, Ms. Atala began to live with her female partner. In response, her husband filed for custody claiming that the mother’s homosexuality was detrimental to the children. The lower court confirmed the grant of custody to the mother, finding that there was no evidence that homosexuality was pathological conduct that would make Ms. Atala unfit as a mother. On appeal, however, the Supreme Court of Chile granted custody to the father, on the basis that the mother’s sexuality would cause irreversible harm to the children’s development. Ms. Atala took the case to the Inter-American Court of Human Rights (“IACHR”), marking the first time that the IACHR heard a case related to LGBT rights. The IACHR held that sexual orientation is a suspect class and that the Chilean courts had discriminated against Atala in the custody case in violation of the American Convention’s right to equality and non-discrimination. In 2012, the court ordered Chile to pay Atala USD $50,000 in damages and $12,000 in court costs. The Chilean government agreed to abide by the IACHR’s ruling.



Chile v. Javier Sebastián Parra Godoy Angol Criminal Court (2013)

Gender violence in conflict

While the victim was sleeping, her partner Sebastian Javier Parra Godoy attacked her by striking her in the head. She suffered near-fatal head injuries as a result of the blow. On February 5, 2013, the criminal court in the province of Angol found Mr. Godoy guilty of the crime of attempted intimate femicide. In their ruling, the judges explicitly referenced the fact that the case presented a case of gender-based violence. It concluded that that Parra Godoy had acted as a result of traditional views considering women as subordinate perpetuating stereotypes of violence and coercion. The court stated that in such cases, international standards of human rights such as the Inter-American Convention to Prevent, Punish and Eradication of Violence Against Women and the general recommendations of the Committee on the Elimination of Discrimination Against Women (CEDAW) should apply. The prosecutor Raul Espinoza explained that the main challenge of the case was the absence of direct evidence because the only potential witnesses were the victim, who was sleeping at the time of the attack and who suffered neurological damage which affected her memory, and the victim’s autistic son, who was mentally handicapped. To bring the case, he relied instead on strong circumstantial evidence.



Teixeira v. Brazil CEDAW Committee (2011)

Gender discrimination

Alyne da Silva Pimentel Teixeira, a Brazilian national of African origin, suffered a high-risk pregnancy and was repeatedly denied timely care at public health facility, before dying of a digestive hemorrhage following delivery of her stillborn fetus. The husband of the deceased then filed a civil claim for material and moral damages, and twice requested the judicial mechanism of tutela antecipada, which requests the judge to anticipate the protective effects of a decision. The first request was ignored and the second denied. The mother of the deceased then submitted a complaint to CEDAW Committee, alleging that the State violated her daughter’s right to life and health under the Convention (CEDAW). The State contended that the evidence offered no link between the deceased’s gender and the possible errors committed, and that such errors therefore did not fall within the definition of discrimination set out in the Convention. Upon consideration, the Committee found that the death of the deceased must be regarded as maternal, that the deceased was denied appropriate services in connection with her pregnancy, that the State failed to fulfill its obligations under the Convention pursuant to the right to health, and that the State’s lack of appropriate maternal health services has a differential impact on the right to life of women. The Committee directed the State to take the following steps: compensate the deceased’s family, ensure women’s right to safe motherhood and affordable access to adequate emergency obstetric care, provide adequate professional training for health workers, ensure that private health care facilities comply with national and international standards on reproductive health care, and ensure that sanctions are imposed on health professionals who violate women’s reproductive health rights.



Karen Noelia Llantov Huaman v. Peru Human Rights Committee (2005)

Gender discrimination

Karen Noelia Llantoy Huamán, a 17-year-old Peruvian, decided to terminate her pregnancy when she discovered that carrying her anencephalic fetus to term would pose serious risks to her health. When she arrived at Archbishop Loayza National Hospital in Lima to obtain the abortion procedure, the hospital director refused to allow the procedure because article 119 of the Criminal Code permitted therapeutic abortions solely when termination was the only way of saving the mother’s life or avoiding serious and permanent damage to her health. Huamán gave birth to an anencephalic daughter who died four days later, causing Huamán to fall into a deep depression. In her complaint to the Committee, Huamán asserted that by forcing her to continue her pregnancy, the hospital caused her not only physical pain but mental suffering in violation of article 7 of the Covenant on Civil and Political Rights prohibiting cruel and inhuman treatment. Huamán also cited a violation of article 17, which protects women from interference in decisions that affect their bodies, lives, and opportunity to exercise their reproductive rights. Finally, she claimed that Peru’s failure to adopt economic, social, and cultural measures to safeguard her rights under article 17 was tantamount to a violation of article 24 of the Covenant. The Committee concluded that the State’s refusal to allow Huamán to obtain a therapeutic abortion was the direct cause of the suffering she experienced, and that the protection from physical pain and mental suffering under article 7 is particularly important in the case of minors. The Committee noted that Huamán’s case presented the conditions for a lawful abortion, and the refusal to act in accordance with her wishes to terminate the pregnancy equated to a violation of article 17. Finally, in the absence of any information from Peru on Huamán’s claim that she did not receive the medical and psychological support necessary during her pregnancy, the Committee found that the facts presented reveal a violation of article 24 which guarantees State protection to minors.



Sawhoyamaxa Indigenous Community v. Paraguay Inter-American Court of Human Rights (2006)

Abortion and reproductive health rights, Gender discrimination, International law, Property and inheritance rights

This case involved issues involving the exposure of vulnerable members of indigenous communities, particularly children, pregnant women, and the elderly. A petition was filed against Paraguay on behalf of the Sawhoyamaxa Indigenous Community, alleging violations of, among other things, the right to fair trial and judicial protection, the right to property and the right to life. The petition noted that these violations placed children, pregnant women and the elderly in particularly vulnerable situations. The Court found Paraguay to be in violation of Articles 1(1), 2, 3, 4(1), 8, 19, 21 and 25 of the American Convention on Human Rights. The Court ordered Paraguay to formally and physically convey to the Sawhoyamaxa their traditional lands, to establish a community development fund, to pay non-pecuniary damages, to provide the Sawhoyamaxa with basic necessities until their lands were restored, to provide the Sawhoyamaxa with the necessary tools for communication to access health authorities, and to domestically enact legislation creating a mechanism for indigenous communities to reclaim their traditional lands.



Ato del Avellanal v. Peru Human Rights Committee (1988)

Gender discrimination, Property and inheritance rights

In 1978, the court of first instance ruled in favor of Graciela Ato del Avellanal on a claim for overdue rent owed to her by tenants of two apartment buildings she owned in Lima. The Superior Court reversed the judgment in 1980 because article 168 of the Peruvian Civil Code stated that when a woman is married, only the husband is entitled to represent matrimonial property before the Courts; therefore, Avellanal did not herself have standing to sue. Avellanal appealed to the Peruvian Supreme Court, arguing that the Peruvian Magna Carta and the Peruvian Constitution guarantee equal rights to both men and women. After the Supreme Court upheld the lower court’s decision, Avellanal interposed the recourse of amparo (an order to guarantee protection of the complainant’s constitutional rights), claiming a violation of article 2(2) of Peru’s Constitution, which the Supreme Court rejected. In her complaint to the Committee, Avellanal cited violations on the ground that Peru discriminated against her because she was a woman. With respect to the requirements set forth in article 14 of the Covenant on Civil and Political Rights that all persons shall be equal before the courts and tribunals, the Committee noted that the Superior Court reversed the lower court’s decision on the sole ground that Avellanal was a woman and did not have standing as such under Peruvian Civil Code article 168. The Committee also concluded that the facts before it disclosed a violation of article 3 of the Covenant which requires the State party to undertake “to ensure the equal right of men and women to the enjoyment of all civil and political rights,” and article 26 which provides that all persons are equal before the law and are entitled to its protection.



K.L. v. Peru Human Rights Committee (2003)

Gender-based violence in general

HRC held that Peruvian government violated Article 7 (the right to be free from cruel, inhumane and degrading treatment), Article 17 (the right to privacy) and Article 24 (special protection of the rights of a minor) when it denied 17 year-old the right to a legal therapeutic abortion.



Maria Mamerita Mestanza Chavez v. Peru Inter-American Commission on Human Rights (2003)

Forced sterilization

Forced sterilization.  A complaint was raised against Peru for the forced sterilization of Mestanza Chavez, forced sterilization which eventually caused her death. The complaint alleged that she was pressured into sterilization as part of a government objective to curve the population numbers of poor, Indian and rural women. After the sterilization, Mestanza Chavez fell ill from complications and eventually died.  The complaint alleged the violation of Articles 4, 5, 1, and 24 of the American Convention on Human Rights,  Articles 3, 4, 7, 8, and 9 of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women, Articles 3 and 10 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights, and Articles 12 and 14(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The parties reached a friendly settlement under which Peru agreed to investigate and punish those responsible for the forced sterilization, pay the victim's next of kin moral and corollary damages, pay the victim's medical expenses to her next of kin, provide her children with free primary, provide secondary and public university education to the victim's children, and pay money for the victim's spouse to purchase a home. Peru also agreed to amend its reproductive laws to eliminate any discriminatory policies within such laws.



Cantoral-Huamaní and García-Santa Cruz v. Peru Inter-American Court of Human Rights (2007)

Gender-based violence in general

The IACHR lodged an application against Peru for the violation, among other things, of the right to free association. Garcia-Santa Cruz was founder of a women's organization in a mining community, and provided support to the families of miners during a mining strike. Garcia-Santa Cruz was executed, and the Court held that her execution was an attempt to intimidate miners into not unionizing. The Court held this type of intimidation to be a violation of the freedom of association (Article 16 of the American Convention). The Court also found Peru to have violated Articles 1(1), 4, 5, 7, 8(1) and 25 of the American Convention on Human Rights. The Court ordered Peru to investigate and punish those who carried out these violations, to publicly acknowledge international responsibility for these violations, to provide psychological services to the victims' next of kin, and to pay pecuniary and non-pecuniary damages and costs.



De La Cruz-Flores v. Peru Inter-American Court of Human Rights (2004)

Gender-based violence in general

De La Cruz-Flores was detained, charged and convicted by a "faceless judge" for the crime of terrorism. In 2003, laws were passed ordering the annulment of judgments made by secret judges and practitioners. De La Cruz-Flores, however, remained in captivity, captivity she argued was arbitrary. The Court held that Peru violated De La Cruz-Flores's rights under Articles 1(1), 5, 7 and 8 of the American Convention on Human Rights. The Court ordered Peru to reinstate De La Cruz-Flores in her previous employment, grant her any previous retirement benefits, pay her costs, pecuniary and non-pecuniary damages, grant her medical and psychological treatment and provide her with a grant for professional development.



Lori Berenson-Mejía v. Peru Inter-American Court of Human Rights (2004)

Custodial violence, Gender-based violence in general

The IACHR submitted an application to the Court to determine whether Peru violated Articles 1(1), 5, 8 and 9 of the American Convention on Human Rights to the detriment of Berenson-Mejia in relation to proceedings that took place against her before both military and civil courts, as well as to the inhumane conditions of detention to which she was subjected. The Court held that Peru violated Berenson-Mejia's right to humane treatment (Articles 5(1), 5(2) and 5(6) of the American Convention on Human Rights) due to the conditions she faced while incarcerated, violated Articles 1(1), 2, 8(1), 8(2), 8(2)(b)-(d), (f), and (h), 8(5) in relation to her military trial, but not to her civil trial. The Court ordered Peru to provide Berenson-Mejia with adequate medical care, to discharge the reparation established against her in favor of the State in her civil trial, to improve the conditions at the prison in which she was detained to meet international standards, and to pay costs and expenses.



María Elena Loayza-Tamayo v. Peru Inter-American Court of Human Rights (1997)

Custodial violence, Sexual violence and rape

Loayza-Tamayo was detained by the National Counter-Terrorism Bureau ("DINCOTE"). While detained, she was threatened with torture and was repeatedly raped in an effort to force her to confess to belonging to the Peruvian Communist Party ("Shining Path").  She was charged and found guilty of treason and was held in solitary confinement. She filed a complaint with the Inter-American Commission of Human Rights, alleging numerous human rights violations and requesting her release. The Commission, unable to reach a decision, submitted the case to the Inter-American Court. The Court held that Peru violated Articles 5, 7, 8(1), 8(2) and 8(4) of the American Convention on Human Rights, in relation to Articles 25 and 1(1) thereof. The Court ordered that Loayza-Tamayo be released, and that she and her next of kin be compensated for any relevant expenses.



Miguel Castro-Castro Prison v. Peru Inter-American Court of Human Rights (2006)

Custodial violence, Sexual violence and rape

Approximately 135 female prison inmates (along with about 450 male inmates) were subjected to violent attacks by guards and other state agents over the course of three days at the Castro-Castro maximum security prison. Some female inmates were humiliated, stripped-down and subjected to further physical and psychological abuse. Many inmates were held in solitary confinement, were denied medical care, and were kept from communicating with their families or their attorneys. The Court found Peru to have violated Articles 4, 5(1), 5(2), 8(1) and 25 of the American Convention on Human Rights, Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture, and Article 7(b) of the Inter-American Convention to Prevent, Punish and Eradicate Violence against Women.  The Court ordered Peru to investigate and punish those responsible for these violations, to return the bodies of any inmates killed to their next of kin, to publicly acknowledge and apologize for these violations, to provide at no cost medical and psychological treatment to the victimized inmates and next of kin, and to pay reparations to the victims or their next of kin.



Perozo et al. v. Venezuela Inter-American Court of Human Rights (2009)

Custodial violence, International law, Sexual harassment

This case was brought against Venezuela under allegations of harassment and physical and verbal assault toward journalists, including some female journalists, by state actors over a period of four years. While the Court found Venezuela to be in violation of the right to speak freely, to receive and impart information, and to humane treatment (violations of Articles 1(1), 5(1) and 13(1) of the American Convention on Human Rights), the Court also found there was insufficient evidence to establish violations of Articles 13(3), 21 and 24 of the American Convention on Human Rights.  The Court further noted that it would not analyze the alleged actions under Articles 1, 2 and 7(b) of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women.



X and Y v. Argentina Inter-American Commission on Human Rights (1996)

Custodial violence, Gender-based violence in general, Sexual harassment

Vaginal inspections for visits to family inmates.  A complaint was brought against Argentina by a woman and her 13-year old daughter who were routinely subjected to vaginal inspections when they would visit the woman's husband (and girl's father) at a prison. The complaint alleged that such inspections violated the "American Convention as it offends the dignity of the persons subjected to such a procedure (Article 11), and is a degrading penal measure which extends beyond the person condemned or on trial (Article 5.3) and, furthermore, discriminates against women (Article 24), in relation to Article 1.1."  Argentina argued that such inspections were reasonably necessary and conducted with as little intrusion as possible by female guards. The Commission opined that such an inspection should not occur unless absolutely necessary. In this case, the Court found that the procedure was not absolutely necessary as there were alternatives that could achieve the same objective. The Commission also held that in cases where such an inspection was absolutely necessary, they should only be carried out by pursuant to a judicial order, and by qualified medical personnel. The Commission found the inspections in this case to violate Articles 5, 11, 17, 19 of the American Convention on Human Rights.

Inspecciones vaginales para visitas a familiares de internos. Una mujer y su hija de 13 años de edad fueron sometidas de forma rutinaria a una inspección vaginal cuando visitaban al marido de la mujer (y al padre de la niña) en una prisión, por lo cual demandan a Argentina. La queja alegó que tales inspecciones violaron la "Convención Americana, ya que ofende la dignidad de las personas sometidas a tal procedimiento (Artículo 11), y es una medida penal degradante que se extiende más allá de la persona condenada o enjuiciada (Artículo 5.3) y además, discrimina a las mujeres (artículo 24), en relación con el artículo 1.1 ". Argentina argumentó que tales inspecciones eran necesarias y que se llevaron a cabo con la menor intrusión posible de las guardias. La Comisión opinó que tal inspección no debería ocurrir a menos que sea absolutamente necesario. En este caso, el Tribunal consideró que el procedimiento no era absolutamente necesario ya que había alternativas que podrían lograr el mismo objetivo. La Comisión también sostuvo que en los casos en que dicha inspección fuera absolutamente necesaria, solo deberían llevarse a cabo de conformidad con una orden judicial y por personal médico calificado. La Comisión consideró que las inspecciones en este caso violan los artículos 5, 11, 17 y 19 de la Convención Americana sobre Derechos Humanos.



Maria da Penha Fernandes v. Brazil Inter-American Commission on Human Rights (2000)

Domestic and intimate partner violence, International law

The Applicant, Maria da Penha Fernandes, brought this case to the Inter-American Commission, arguing that Brazil effectively condoned violence against women through ineffective judicial and prosecutorial action. The Applicant was shot in the back by her husband while she was sleeping.  She survived, but was paralyzed from the waist down.  Her husband received a sentence of two years in prison after 19 years of trial.  The Inter-American Commission found that the delays and the lack of protections in Brazil for domestic violence survivors amounted to violations of da Penha's human right to live free from violence and to access justice.



Monica Carabantes Galleguillos v. Chile Inter-American Commission on Human Rights (2002)

Gender discrimination

Discrimination against pregnant girl in school.  Chile agreed to cover the educational expenses of a pregnant teenager who was expelled from her school for being pregnant.



X and Relatives v. Colombia Inter-American Commission on Human Rights (2008)

Sexual violence and rape

Rape by military members. Case was brought before the Commission against Colombia for failing to prosecute members of the Colombian military for sexually assaulting the victim. The Complaint sought to have Colombia assume international responsibility for violating articles 1(1), 5, 7, 8, 10, 11 and 22 of the American Convention on Human Rights, as well as Articles I, V, VII, XI, XVIII and XXVI of the American Declaration of the Rights and Duties of Man. Colombia and the petitioners were able to reach a friendly settlement under which the victim was awarded moral and material damages. Under the friendly settlement, Colombia also agreed to pay for the victim's education, provide her with medical and psychological services, and other necessary services to fully compensate the victim and her family. Colombia also agreed to reopen the criminal investigation and to work with the victim to fully investigate and prosecute her case.



J. v. Peru, Report No. 76/11, Case 11,769A Inter-American Commission on Human Rights (2011)

Custodial violence

In April 1992, the Petitioner, Mónica Feria Tinta, was arrested during a raid by DINCOTE, the counter-terrorism branch of the Peruvian police. The police believed that Ms. Tinta was a member of the Sendero Luminoso, a communist militant group in Peru. During the raid, Ms. Tinta was blindfolded, beaten and raped by some of the police officers. When Ms. Tinta protested the sexual violence, the officers beat and kicked her. After the raid, the officers took Ms. Tinta to a DINCOTE facility, where she was detained for more than a year in cells infested with roaches and rats. While detained, DINCOTE officers deprived Ms. Tinta of access to her attorney, forced her to urinate in a can in the presence of two male officers, and doused her with cold water if she resisted their orders. The Inter-American Commission on Human Rights (the “IACHR”) found that the Peru violated Ms. Tinta’s rights by failing to conduct a serious investigation of her claims, even though her claims “fit a pattern known to have existed at that time” and involved violence (¶ 207). According to the IACHR, Peru had a duty to investigate Ms. Tinta’s claims of rape, including ordering medical tests and examinations, to either corroborate or disprove Ms. Tinta’s claims. The IACHR concluded that Peru, inter alia, violated the rights recognized in articles 5(1), 5(2) and 11 of the American Convention on Human Rights (the “American Convention”), as well as Article 1 and 6 of the Inter-American Convention to Prevent and Punish Torture. Noting its well-established precedent that “rape committed by members of the security forces of a state against the civilian population constitutes, in any situation, a serious violation of the human rights protected by Articles 5 and 11 of the American Convention,” the IACHR established that rape is particularly reprehensible when it perpetrated by a state agent against a detainee, because of the victim’s vulnerability and the agent’s abuse of power (¶ 188). In addition, noting that various reports had shown a pattern of rape and sexual abuse against women by members of Peru’s security forces, the IACHR found that such sexual violence was part of a “broader context of discrimination against women” (¶ 65).



Reports

Women in Prison in Argentina: Causes, Conditions, and Consequences (2013)

Gender-based violence in general

Report by the Avon Global Center for Women and Justice and International Human Rights Clinic, University of Chicago Law School's International Human Rights Clinic, and the Public Defender's Office in Argentina finding that women and their families are disproportionately affected by the harsh penalties imposed for low-level drug offences in Argentina.

Informe del Centro Mundial para las Mujeres y la Justicia y la Clínica Internacional de Derechos Humanos de Avon, la Clínica Internacional de Derechos Humanos de la Facultad de Derecho de la Universidad de Chicago, y la Oficina del Defensor Público de Argentina que encuentran que las mujeres y sus familias se ven afectadas de manera desproporcionada por las duras sanciones impuestas por delitos de drogas de nivel en la Argentina.



Meeting Minutes: Expert Group Meeting on the Causes, Consequences and Conditions of Women's Imprisonment (2013)

Custodial violence, Sexual harassment, Sexual violence and rape

On May 14th, The Avon Global Center and the University of Chicago Law School co-hosted a meeting of experts on the causes, conditions and consequences of women’s imprisonment globally. About 35 experts from the U.S., U.K., Russia, and Argentina participated in the meeting, including policy advocates, impact litigators, scholars, service providers, and senior department of corrections officials.

El 14 de mayo, el Avon Global Center y la Facultad de Derecho de la Universidad de Chicago organizaron conjuntamente una reunión de expertos sobre las causas, las condiciones y las consecuencias del encarcelamiento de mujeres en todo el mundo. Alrededor de 35 expertos de los EE. UU., EE. UU., Rusia y Argentina participaron en la reunión, incluidos defensores de políticas, litigantes de impacto, académicos, proveedores de servicios y funcionarios superiores del departamento de correcciones.