90
256. Furthermore, in cases of sexual violence, the Court has underlined that the investigation
must try, insofar as possible, to avoid the re-victimization of the presumed victim or the reexperience of the profoundly traumatic incident. 428 Regarding examinations of sexual integrity,
the World Health Organization has established that, in this type of case, the gynecological
examination should be made as soon as possible. 429 In this regard, the Court considers that the
gynecological and anal examination should be performed, if it is considered appropriate to
perform it and with the prior informed consent of the presumed victim, during the first 72 hours
after the reported act, based on a specific protocol for attention to victims of sexual violence. 430
This does not preclude the gynecological examination being performed after this period, with the
presumed victim’s consent, because evidence can be found some time after the act of sexual
violence, particularly with the development of forensic investigation technologies. 431
Consequently, the time limits established for performing an examination of this nature must be
considered as guidelines, rather than as rigid policy. Thus, the appropriateness of a
gynecological examination must be considered on the basis of a case-by-case analysis taking
into account the time that has passed since the alleged sexual violence occurred. Accordingly,
the Court considers that the authority requesting a gynecological examination must provide
detailed reasons for its appropriateness and, should it not be appropriate or if the presumed
victim has not given her informed consent, the examination should be omitted, although this
should never serve as an excuse for doubting the presumed victim and/or avoiding an
investigation.
257. Bearing in mind the foregoing, the Court observes that the said medical examination was
performed approximately three weeks after the time at which the State became aware of the
acts of sexual violence perpetrated against Gladys Espinoza. Moreover, the case file does not
reveal any reason that would justify such a delay in performing this medical examination.
258. Third, the Court considers that doctors and other health personnel are obliged not to
engage, actively or passively, in acts which constitute participation or complicity in, or
incitement or attempts to commit torture or other cruel, inhuman or degrading treatment. 432 In
particular, in their reports, forensic doctors are obliged to record the existence of evidence of ill428
Cf. Case of Fernández Ortega et al. v. Mexico, supra, para. 196, and Case of Rosendo Cantú et al. v. Mexico,
supra, para. 180.
429
Cf. World Health Organization, Guidelines for medico-legal care for victims of sexual violence, supra, inter
alia, pp. 18, 43 and 58.
430
The Court observes that the following countries in the region have adopted the standard of 72 hours for the
collection of forensic evidence in cases of rape: (i) Bolivia: Atención Integral a las Mujeres Adultas y Adolescentes
Víctimas de Violencia Sexual: Normas, Protocolos y Procedimientos, 2010, inter alia, p. 51 and 94, Available at:
http://www.justicia.gob.bo/index.php/normas/doc_download/92; (ii) Costa Rica: Instrumento de Trabajo y Consulta,
Protocolo Interinstitucional de Atención Integral a Víctimas de Violación Sexual, supra, inter alia, p. 13 and 26; (iii)
Paraguay: Protocolo de Intervención con Víctimas/Sobrevivientes de Agresión Sexual en Facilidades de Salud, 2006,
inter alia, p. 26, Available at: http://www.salud.gov.pr/Programas/ORCPS/ProtocolosMedicos/Protocolos/Protocolo%
20de%20Intervencion%20con%20sobrevivientes%20de%20Agresion%20Sexual%2030%20oct%202006.pdf, and (iv)
Peru: Guía Técnica de Atención Integral de Personas Afectadas por la Violencia Basada en Género, 2007, supra, p. 34.
The Court observes that in the case of: (v) United States of America, even though many jurisdictions have
traditionally used 72 hours after the rape as a standard time limit for collecting evidence, many jurisdictions have
established longer periods (for example, five days or one week). Cf. United States of America: A National Protocol for
Sexual Assault Medical Forensic Examinations Adults/Adolescents, 2013, p. 7, Available at: https://www.
ncjrs.gov/pdffiles1/ovw/241903.pdf .
431
432
Cf. A National Protocol for Sexual Assault Medical Forensic Examinations Adults/Adolescents, supra, p. 8.
Cf. United Nations, General Assembly, Principles of Medical Ethics relevant to the role of health personnel,
particularly physicians, in the protection of prisoners and detainees against torture, and other cruel, inhuman or
degrading treatment or punishment, Resolution 37/194 of 18 December 1982, principle 2, Available at:
http://www.un.org/documents/ga/res/37/a37r194.htm. See also: World Medical Association, Tokyo Declaration,
adopted in October 1975 and revised in May 2006, art. 1, Available at: http://www.wma.net/en/
30publications/10policies/c18/
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