“the criminal offense of statutory rape from its legal system.” 107 Below, I will develop
some of the foundations set forth in the judgment to inform this resolution.
a. The classification of the crimes “rape” and “statutory rape” in the
Bolivian legal system
53. Although some sexual crimes were already criminalized in Bolivian criminal
legislation since the Criminal Code of Santa Cruz (1831), the classification of the
crimes of "rape" and "statutory rape", in a form close to the current one, only
occurred in 1972, with the approval of the Criminal Code currently in force. 108 The
separation between "rape" and "statutory rape" was very common in Latin
American countries and still persists in most legal systems in the region, 109 with
"statutory rape" generally describing cases in which an adult has sexual relations
with a minor of legal age of consent through seduction or deception, with much
reduced penalties compared to "rape."
54. The offense of “statutory rape” has persisted practically unchanged in Bolivia since
the entry into force of the Criminal Code, being defined, both at the time of the
events and today, as follows in Art. 309 of the Criminal Code:
Whoever, through seduction or deception, has sexual intercourse with a person of
either sex over fourteen (14) and under eighteen (18) years of age, will be punished
with imprisonment for three to six years.
55. "Rape", in turn, is classified in article 308 of the Criminal Code, being defined, at the
time of the events, after some modifications to the original text, as follows:
Whoever, using physical violence or intimidation, has sexual intercourse with a person
of either sex; anal or vaginal penetration or introducing objects for libidinous purposes, will
incur imprisonment from five (5) to fifteen (15) years.
Anyone who, under the same circumstances as in the previous paragraph, even if there
was no physical violence or intimidation, taking advantage of the victim's mental illness,
serious psychological disturbance or severe intellectual impairment, or who was incapable
of resisting for any other reason, will incur imprisonment of fifteen (15) to twenty (20)
years.
56. Since 2001, the sexual crimes chapter of the Bolivian Criminal Code has been
amended by several laws, in particular Law No. 348 of 2013, Law No. 548 of 2014
and Law No. 1173 of 2019. 110 The most relevant change to Article 308 was
introduced by the Comprehensive Law to Guarantee Women a Life Free of Violence
(the aforementioned Law No. 348 of 2013), which increased the penalty imposed
on the crime and modified its definition, which currently reads:
Anyone who, through intimidation, physical or psychological violence, performs,
with a person of either sex, non-consensual sexual acts that involve carnal access,
through penetration of the male member, or any other part of the body, or any object,
vaginally, anal or orally, for libidinous purposes will be punished with deprivation of
liberty for a period of fifteen (15) to twenty (20) years; and who, under the same
Ibid., para. 198-199.
Cf. Amicus Curiae presented by networks and organizations defending women’s human rights from the
Plurinational State of Bolivia, para. 21.
109
A recent report by the NGO Equality Now noted that 17 of the 43 jurisdictions studied in the American
Continent still adopt the separation of “statutory rape” from “rape.” Cf. Equality Now. Failure to protect how
discriminatory sexual violence laws and practices are hurting women, girls, and adolescents in the Americas.
Available: http://www.equalitynow.org/esvamericas. Accessed November 29, 2022.
110
Cf. Escrito de Contestación de 17 de febrero de 2021, párr. 312.
107
108
18