24.
The Commission reiterates that it has evidence demonstrating that notification of the hearing
was sent to the State in a timely manner. In this regard, by deciding to not attend the hearing, the State was
acting on its own, and its action cannot be attributed to the Commission as an alleged violation of the right to
defense. In any case, during the merits stage, the State was extended the period of time established in the Rules
of Procedure to present its comments on the merits. Also, the hearing held on October 19, 2015, was public, so
it had an opportunity to present, subsequently and in writing, any pleadings it deemed pertinent on the oral
allegations of the petitioner and the statements of Ms. Albarracín and Dr. Ximena Cortés Castillo. It should be
added that this expert witness testimony was presented in writing one year before the hearing and forwarded
to the State on October 21, 2014. In this regard, the Commission finds that no due process violation has taken
place, and the State has been provided with extensive opportunity to mount its defense.
B.
Relevant legal framework
25.
At the time of the facts, both the 1998 Constitution4 and the Code on Minors5 enshrined an
obligation to prevent, eliminate, and punish violence against children, women, and adolescents.
26.
Articles 509 and 510 of the Criminal Code in force at the time of the facts established:
Statutory rape shall be copulation with another person through the use of seduction or deceit
to secure consent.
Statutory rape shall be punished with a prison term of between three months and three years
if the victim is older than the age of 14 and younger than the age of 18.
27.
Regarding sexual harassment, Article 511-A of the Criminal Code reads:
Those soliciting sexual favors for themselves or for a third party in a position of workplace,
classroom, or similar authority with the explicit or tacit understanding that harm can be
caused in relation to the legitimate expectations the victim may have in the realm of that
relationship will be punished with a prison term of six months to two years.
Those who, in the same sense as the foregoing paragraph, act using the fact that they are in
charge of proceedings or resolutions of any kind, shall be punished with the same sentence.
Those soliciting favors or making malicious insinuations of a sexual nature that infringe upon
the sexual integrity of another person in a way that is not set forth in the above paragraphs
will be punished with a prison term of three months to one year.
The punishments established in this article necessarily include the prohibition of conducting
activities that would involve contact with the victim.
If sexual harassment is committed against minors, it shall be punished with a prison term of 2
to 4 years.
28.
Article 512 of the same instrument stated that:
Rape is carnal intrusion, via total or partial penetration with the male organ, orally, anally, or
vaginally; or vaginal or anal penetration with objects, fingers, or body parts other than the
male organ, of a person of any sex, in the following situations:
1.
4
5
When the victim is under the age of 14;
Articles 23, 47, 48, 49, and 50 of the Political Constitution of the Republic of Ecuador of 1998.
Articles 21, 22, 144, and 145 of the Code on Minors.