84. Therefore, I join the evaluation of the United Nations Special Rapporteur on Violence
against Women, Dr. Dubravka, who presented a valuable expert opinion before this
Court, and noted that "the existence of a less serious crime that affects adolescents
contributes to the impunity of offenders, since evidence suggests that rapists tend
to be accused of statutory rape and not rape if they face prosecution", so the
classification of "statutory rape" should be abolished in countries where it still exists.
Concern about impunity for sexual crimes is especially relevant in the context of
Bolivia, which, according to data from the Pan American Health Organization, has the
highest rate of sexual violence in Latin America and the second highest in the
American Hemisphere. 164
85. Thus, it seems crucial that the State, in addition to adapting its legal system so that
the lack of consent is central and constitutive of the crime of "rape", also adapts it in
relation to the crime of statutory rape to eliminate it from criminal legislation. 165
d. Partial conclusion
86. Considering the above, an effective remedy in the present case requires the true
incorporation of the criterion of consent in Article 308 of the Bolivian Criminal Code,
as well as the elimination of the classification of "statutory rape" provided for in
Article 309, in order to ensure that all cases of statutory rape are evaluated on the
basis of the amended Article 308. These amendments are necessary for the State to
comply with its obligations under Articles 5, 11, 8 and 25 of the Convention and
especially Article 7(e) of the Convention of Belém do Pará, which establishes the duty
of the State to take all appropriate measures, including legislative measures, to
modify or abolish existing laws and regulations that support the persistence and
tolerance of violence against women.
87. Finally, I note that the effective incorporation of the criterion of consent requires a
precise definition of the meaning of consent and in what circumstances its absence
should be presumed. This definition should be developed on the basis of international
standards on the matter, in particular those included in the Model Law on Rape
prepared by the United Nations Special Rapporteur on violence against women. 166 I
note with satisfaction the research carried out by the representatives of the victims
to prepare their proposal for "Article 308 ter" in the Criminal Code that would define
the meaning of consent, providing a solid substratum for the State to adequately
adopt this measure of non-repetition of crimes.
88. The proposal defines consent as “agree[ment] by choice and (…) freedom and ability
to make that choice,” requiring that “[t]he author's belief and confidence in the
recipient's consent must be reasonable” and that “silence cannot be used to infer
consent.” It is also defined that minors under 14 years of age do not have the legal
capacity to consent to sexual relations and that the absence of consent is presumed
if the act is carried out in circumstances that eliminate or limit the person's capacity
Cf. Pan-American Health Organization. Violence against women in Latin America and the Caribbean. (2013),
p. 9. Available at: https://www.paho.org/hq/dmdocuments/2013/paho-vaw-exec-summ-eng.pdf. Accessed
November 29, 2022. According to data from the NGO Equality Now, Bolivia continues to have the highest rate
of sexual violence in Latin America.
Cf. Equality Now. Sexual Violence Against Adolescent Girls in Bolivia and its Consequences. Available at:
https://www.equalitynow.org/sexual_violence_against_adolescent_girls_in_bolivia/. Accessed November 29,
2022.
165
Cf. Judgment, para. 199, 230 (operative paragraphs 13 and 14).
166
Cf. Human Rights Council. A framework for legislation on rape (Model Rape Law): report of the Special
Rapporteur on Violence against Women, Its Causes and Consequences. A_HRC_47_26_Add.1-EN (2021).
164
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