19. Likewise, the reply included the report of the Chief of Prevention of Losses, who noted that “on Wednesday August 11 at 21:00 hrs. Approx.; once again we receive complaints from customers, for two male persons who were committing acts of homosexuality openly and in view of all public present on the 2nd floor of the store (restaurant area). This customer felt uncomfortable and annoyed and his underage children were using the playground (area of rides and games). At the time the children entered or left the games they witnessed how two people of equal sex were kissing and caressing. In that moment Srta. Gabriela Madrid (attendance) went upstairs and proceeds to explain and ask them to please avoid performing such acts due to which some customers felt uneasy in such a way that they understood and one of them in a defiant manner leaves her a card of the Homosexual Movement of Lima and comments her that they will have news from them (…)”6. 20. On August 31st 2005 the Commission of Protection declared the complaint unfounded due to lack of enough evidential material to corroborate the alleged unequal treatment. In this regard he considered that: (…) Prior to the analysis of the existence of acts of discrimination, it is relevant and necessary to assess the conduct of the accused company under the perspective of the safeguard of the ultimate interest of the child, for it was raised and intensely discussed by the parties during the conduction of the Oral Report dated June 22, 2005. (…) we have then that the causes of homosexuality (biological or social, or even a mixture of both) find no peaceful and uniform position within the scientific community, but what can be assumed is that the surrounding is not neutral and that if it does not determine, it at least conditions psychosexual conducts of persons, with greater influenceability in children exposed to homosexual behavior (…) Therefore, the importance of this matter is worth highlighting, thus, the need to make a prudent decision, even when the parties submitted contradictory reports before the Commission on the possibility of the existence or inexistence of damage around conducts which are subject of the complaint; for if science has no defined or uniform and peaceful position on what this may mean in children’s health, a correct and prudent attitude of who is to judge any case which may imply damage to third parties, would demand refrainment from the conduct which generates the probability or risk of such damage, especially when it concerns a sensitive group which claims special protection from the State. (…) The Commission has the opinion that, in pursuit of the protection of the minor, it is understandable the attitude of a parent to claim the supplier to demand a homosexual couple prudence in their manifestations of affection they profess in places where children attend, since what is legitimately invoked is the ultimate protection that any child deserves. (…) the evidential difficulty rises when the claimant invokes unequal treatment based on insufficient signs that are not corroborated but denied by the defendant party, situation that in view of the Commission is observed in the present case. (…) In order to corroborate the alleged discriminatory policy a video was presented in which a heterosexual is seen kissing in one of the restaurants of Santa Isabel without being able to notice whether Santa Isabel staff interfered or not. Likewise, based on such video the claimant wanted to prove another discriminatory practice on August 17 in the store located in Dos de Mayo Ave. (San Isidro) upon being requested- by Santa Isabel staff- the cease of their expressions of affection (kisses) during the line to pay at the till. (…) it was clear that the recording was taken from a hidden camera and that the facts of the 17 had been caused by the claimant, which is why the analysis of the facts has been circumscribed to August 11, 2004 which strictly correspond to the complaint. (…) The insufficient facts may lead us to think that there was a discriminatory attitude from Santa Isabel, but may also lead us to think that what existed was a scandalous attitude and expressly provoked by the homosexual couple based not only on what Santa Isabel stated, but also in the multiple contradictions with which the claimant narrates what happened (…) the Commission cannot sanction a supplier only with such elements attributing to it an offense as serious as discrimination, if there is no proof that directly corroborates that under the same circumstances and caused by the same conducts there have been an unequal treatment with neither objective nor reasonable justification.(…) In this order of ideas, the Commission considers that what proceeds is to declare unfounded the complaint for alleged infraction to the set forth in articles 5 literal c and d and 7/B of the Consumer Protection Law. (…) as we have assessed the preceding points in conformity it is reasonable to demand couples in general a moderate conduct in zones destined to or often attended by children by grounding such demand in the best interest of the child, which is why requesting any couple the cease of their manifestations and affective exchanges (kisses, hugs and caresses), it is legitimate, and does not affect the suitability of the service, which is why the Commission Annex 4. Report No 056 of the Chief of Loss’ Prevention of August 12, 2004 along with the Response to the complaint of Peruvian Supermarkets of October 20, 2004. Annex to the writ by the petitioner of November 29, 2011. 6 5