97
thus making stereotyped assessments limited to verifying the integrity of the hymen, the loss of
virginity, and the physical traces of violence (supra para. 273).
278. The Court finds it pertinent to underscore that a guarantee of access to justice for women
victims of sexual violence must be the establishment of rules for the assessment of the evidence
that avoid stereotyped affirmations, insinuations and allusions. 460 In this regard, the Court
observes that, Plenary Decision No. 1-2011/CJ-116 of the Supreme Court of Justice of December
6, 2011, 461 which “establishe[d] as legal doctrine” the criteria for the assessment of the
evidence of sexual offenses in Peru following that date, 462 affirmed that “some sectors of the
community assume that this assessment of the evidence is governed by gender stereotypes
among the police, prosecutors and judges” and recognized the need “to make an appropriate
assessment and selection of the evidence in order to neutralize the possibility of producing any
error that injures human dignity and is a sources of impunity.” Thus, the Court considers that, in
the instant case, the absence, in 2004, of norms that would regulate the special assessment of
the evidence that is called for in cases of sexual violence encouraged the use of gender
stereotypes in the Permanent Criminal Chamber’s assessment of the evidence that Gladys
Espinoza had been a victim of torture and sexual violence.
279.
Based on all the foregoing, the Court considers that the statement of the Permanent
Criminal Chamber of the Supreme Court that Gladys Espinoza manipulated the reality in her own
interests is consistent with the opinion of expert witness Dador, in the sense that, in cases of
sexual violence, the Peruvian judicial authorities used gender-based stereotypes in the
assessment of the evidence, detracting from the statements of women victims of such acts.
Added to this, the Court considers that the following factors reveal that this Chamber chose the
evidence selectively to the detriment of Gladys Espinoza: (i) the fact that the judge rejected the
allegation of the possible existence of torture by indicating that she was a person who
manipulated the reality; (ii) the existence of medical expert opinions that did not deny the
possibility that Gladys Espinoza had been a victim of torture, and (iii) the failure to analyze the
other evidence in the judicial case file, such as the medical examinations performed on her,
which reveal elements that would reasonably constitute evidence of torture. In addition, the
absence of norms for the assessment of the evidence in this type of case promoted the selective
choice of evidence in order to reject Gladys Espinoza’s allegations of torture, which resulted in
the failure to order any investigation into this. The above constituted treatment that
discriminated against her by the Permanent Criminal Chamber of the Supreme Court of Justice
460
Cf. Affidavit made by expert witness Rebecca Cook on March 27, 2014 (merits file, folio 1142).
461
Plenary Decision No. 1-2011/ CJ-116 is an instrument prepared in order to respond to “the need to
incorporate into the assessment of the evidence of sexual offenses” the standards contained in Rules 70 and 71 of the
Rules of Procedure and Evidence of the International Criminal Court. The text of these rules is as follows:
“Rule 70. Principles of evidence in cases of sexual violence
In cases of sexual violence, the Court shall be guided by and, where appropriate, apply the following principles:
(a) Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force,
coercion or taking advantage of a coercive environment undermined the victim’s ability to give voluntary and genuine
consent.
(b) Consent cannot be inferred by reason of any words or conduct of a victim where the victim is incapable of
giving genuine consent;
(c) Consent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual
violence;
(d) Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason
of the sexual nature of the prior or subsequent conduct of a victim or witness.
Rule 71. Evidence of other sexual conduct
In the light of the definition and nature of the crimes within the jurisdiction of the Court, and subject to article 69,
paragraph 4, a Chamber shall not admit evidence of the prior or subsequent sexual conduct of a victim or witness.”
462
Plenary decision No. 1-2011/CJ-116 of the Supreme Court of Justice of December 6, 2011, paras. 6, 7 and 40
(evidence file, folios 5191 to 5203).
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