became sexually active.265 Also, during the psychiatric assessment, the presumed victim was
asked whether she masturbated, the frequency with which she had sexual relations, at what
age she had become sexually active, the number of sexual partners she had had, whether she
practiced oral sex, whether she watched pornography, whether she had frequented brothels,
whether she had had sexual contact with animals, and whether she had had sexual relations
with minors.266
202. This Court notes that opening lines of investigation into the previous social or sexual
behavior of victims in cases of gender-based violence is merely the expression of policies or
attitudes based on gender stereotypes. 267 There is no reason why this is not applicable in
cases of sexual violence against LGBTI people, or those perceived as such. In this regard, the
Court considers that questions regarding the presumed victim’s sexual life are unnecessary as
well as revictimizing.
203. In addition, it should be noted that, during the forensic medical examination, during the
interrogations, and in the decision of the Administrative Court, the expression “unnatural” is
used to refer to anal penetration. 268 The use of this term stigmatizes those who perform this
type of sexual act, branding them as “abnormal” because they do not conform to
heteronormative social rules.269
204. The Court considers that these types of inquiries and the terms used in the
investigation constitute stereotyping. Even though these stereotypes were not explicitly used
in the decisions relating to the dismissal of the criminal investigation, their use reveals that
the complaints filed by the presumed victim were not being considered objectively. Also,
during the disciplinary administrative proceeding against the members of the Peruvian
National Police, one of the arguments used to consider that the facts had not been proved was
that Ms. Rojas Marín “has been practicing unnatural relations since the age of 14 and has
sexual relations 3 or 4 times a day.”270
B.2.e Conclusion concerning due diligence
205. Based on the foregoing considerations, the Court concludes that the State failed to act
with due diligence to investigate the sexual torture of the presumed victim. The circumstances
that surround the different statements made by Ms. Rojas Marín, especially the judicial
inspection and reconstruction procedure, constituted acts of revictimization. In addition, the
medical examination was performed more than 72 hours after the event and the report did
not include an interpretation of the probable relationship between the physical symptoms and
the aggressions narrated by the presumed victim. Added to this, there was a failure to collect
evidence, and the presumed victim’s clothing and the police baton possibly used were not
265
2822).
266
Cf. Forensic Medical Certificate of examination of Azul Rojas Marín on February 29, 2008 (evidence file, folio
Cf. Psychiatric assessment of September 13, 2008 (evidence file, folios 2920 and 2921).
267
Cf. Case of Véliz Franco et al. v. Guatemala. Preliminary objections, merits, reparations and costs. Judgment
of May 19, 2014. Series C No. 277, para. 209, and Case of Women Victims of Sexual Torture in Atenco v. Mexico.
Preliminary objection, merits, reparations and costs, supra, para. 316.
Cf. Forensic Medical Certificate of examination of Azul Rojas Marín on February 29, 2008 (evidence file, folio
2822); Statement made by Azul Rojas Marín at the Casa Grande Police Station on February 28, 2008 (evidence file,
folio 2812), and Decision of the Territorial Disciplinary Administrative Tribunal of September 2, 2008 (evidence file,
folio 3062).
268
Cf. Inter-American Commission on Human Rights, Violence against Lesbian, Gay, Bisexual, Trans and Intersex
Persons in the Americas, OEA/Ser.L/V/II.rev.2, November 12, 2015, para. 31.
269
270
3062).
Cf. Decision of the Territorial Disciplinary Administrative Tribunal of September 2, 2008 (evidence file, folio
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