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Fernández Ortega’s] opinion of herself and her reputation.” Although the
representatives did not consider that a woman’s reputation is harmed whenever a
rape occurs, this did happen in the present case; consequently, the alleged victim’s
right to honor and dignity were violated. Likewise, they stated that this right has
also been violated owing to the absence of an adequate investigation into the facts
because, despite the gravity at hand, no serious and effective investigation has
been conducted to identify those responsible. Based on the aforementioned, they
asked the Court to declare that the State was responsible for the violation of Article
11 of the Convention and Article 7 of the Convention of Belem do Pará to the
detriment of Mrs. Fernández Ortega.
95.
Mexico regretted “the consequences of a rape for both the victims and their
close family members. However, […] neither the crime nor those responsible for it
have been proven, hence the State cannot acknowledge and accept that the rights
to personal integrity and to honor and dignity […] have been violated to the
detriment of Mrs. Fernández Ortega.” It considered that, “the obligation to prove
that Mrs. Fernandez Ortega was raped by agents of the State, […] depends on the
elements of proof that the Commission […] and the other petitioners present, given
that these parties sustain their allegations with evidence, which to date is
improperly substantiated, and as a consequence, makes it unviable for the burden
of proof to fall on the State. Similarly, it considered that based on what the
Commission and the petitioners have stated, “it cannot be implied or inferred that
there were sufficient elements to corroborate the existence of a situation of real
and imminent risk to the life or safety of Mrs. Fernández Ortega at the time the
facts she denounced occurred,” or that “the motive for the alleged conduct was to
send a message to [her or to] her community.”
96.
Specifically, in regard to the evidence of rape, the State noted that: i) the
statements of the alleged victim did not constitute sufficient proof, rather it has to
be associated with other elements; ii) the arguments of other alleged rapes are not
related to this specific case and have not been duly proven; iii) the reason for
which the evidence went missing has been explained and thus cannot lead to a
logical conclusion that attributes responsibility to the State, and iv) the
testimonials, statements, and expert opinions of individuals who affirm that Mrs.
Fernández Ortega was raped by officials of the Mexican Army cannot be considered
by the Court, given that the individuals were not direct witnesses of the facts. In
addition, it stated that National Human Rights Commission reported that there is no
evidence to deem the Army responsible. In the briefs presented to the Court by the
State, it assess all the information related to the activities of the battalion that
fought against crime in the area where the facts took place, its mission, orders,
objectives, as well as its geographic location, parameters of georeference, motion
control logs of this platoon and its coordinates, and even an expert opinion. This
information proves that there were no soldiers in the area where the facts allegedly
took place.
97.
Notwithstanding the aforementioned, in regard to the classification of the
rape as torture, the State indicated that, since the perpetrators of the acts that she
allegedly suffered had not been identified, it cannot be “affirmed that State agents
were involved.” It added that “an attempt is being made to confuse the Court by
indicating that a rape, in and of itself, constitutes torture.” To be able to classify an
act as torture, a detailed analysis must be made of the circumstances in which the
conduct occurred, the purpose for which it was perpetrated, the degree of severity,
and the real consequences.
98.
Finally, in regard to the alleged violation of the right to honor and dignity,
the State emphasized that, “during the investigation of the facts reported by Mrs.
Fernández Ortega, no evidence was found that revealed or suggested acts of public