79
221. From a general point of view, the Convention on the Elimination of All Forms of
Discrimination against Women (hereinafter, “CEDAW”) defines discrimination against women as
“[a]ny distinction, exclusion or restriction made on the basis of sex which has the effect or
purpose of impairing or nullifying the recognition, enjoyment or exercise by women,
irrespective of their marital status, on a basis of equality of men and women, of human rights
and fundamental freedoms in the political, economic, social, cultural, civil or any other
field.” 377 In this regard, the United Nations Committee on the Elimination of Discrimination
against Women (hereinafter, “the CEDAW Committee”) has stated that the definition of
discrimination against women “includes gender-based violence, that is, violence that it directed
against a woman because she is a woman or that affects women disproportionately.” It has
also stated that “[g]ender-based violence is a form of discrimination that seriously inhibits
women's ability to enjoy rights and freedoms on a basis of equality with men.” 378
222. In the inter-American sphere, the preamble of the Convention of Belém do Pará indicates
that violence against women is “a manifestation of the historically unequal power relations
between women and men” and recognizes that the right of all women to a life free from
violence includes the right to be free from any kind of discrimination. The Court has indicated
that, when it has been shown that the application of a rule leads to a differentiated impact on
women and on men, the State must prove that this is due to objective factors, unrelated to
discrimination. 379
223. Lastly, the Court has established that women who have been arrested or detained “must
not suffer discrimination, and must be protected from all forms of violence or exploitation.” This
discrimination includes “violence against a woman because she is a woman or that affects
women disproportionately,” and includes “acts that inflict physical, mental or sexual harm or
suffering, threats to commit such acts, coercion and other forms of deprivation of liberty.” 380
224. Since the representatives’ arguments in this case refer to a supposed discrimination in
relation to the obligation to respect and to ensure the right to personal integrity to the detriment
of Gladys Espinoza, the Court will now determine whether the State failed to comply with the
obligation contained in Article 1(1) of the American Convention owing to the alleged application
to Gladys Espinoza of a discriminatory practice of violence and rape during her detention on the
premises of the DIVISE and the DINCOTE in 1993.
B.1. The discriminatory practice of sexual violence and rape
225. In the instant case, the Court has already established that, during the conflict that
occurred between 1980 and 2000, sexual violence was a generalized practice within the security
forces and its main victims were women (supra para. 67). The Court considers that this practice
constituted gender-based violence because it affected women merely because they were women
and that, as revealed by the evidence, it was encouraged by the anti-terrorism laws in force
during that period, which were characterized by the absence of basic guarantees for detainees,
in addition to establishing, among other matters, the power to keep detainees in solitary
confinement and incommunicado (supra paras. 57, 58, 61, 62 and 64).
377
Convention on the Elimination of All Forms of Discrimination against Women of 18 December 1979, Article 1.
378
Cf. Committee on the Elimination of Discrimination against Women, General Recommendation 19: Violence
against women, eleventh session, 1992, UN Doc. HRI\GEN\1\Rev.1 at 84 (1994), paras. 1 and 6.
379
Cf. Case of González et al. (“Cotton Field”) v. Mexico. Preliminary objection, merits, reparations and costs.
Judgment of November 16, 2009. Series C No.205, para. 396, citing EHCR, Opuz v. Turkey, Judgment of 9 June 2009,
paras. 180, 191 and 200.
380
Cf. Case of the Miguel Castro Castro Prison v. Peru. Merits, reparations and costs. Judgment of November 25,
2006. Series C No. 160, para. 303, and Case of González et al. (“Cotton Field”) v. Mexico, supra, para. 397.
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