133. Therefore, taking into account the previous considerations, the Court concludes that Bolivia
exceeded the reasonable period of the investigation and trial related to the sexual violence in
question, in violation of the right to a fair trial and the rights of the child, established in Articles 8(1)
and 19 of the American Convention, read in conjunction with Article 1(1) thereof and Article 7(b) of
the Convention of Belém do Pará, to the detriment of Brisa De Angulo Losada.
B.3 Consent in the crimes of sexual violence and access to justice
134. The Inter-American Commission, the representatives, as well as the expert witness Cillero and
the experts Šimonović and Mesa made reference to the importance of the concept of consent in
crimes of sexual violence and presented arguments both in the sense that this was not an element
taken into account with due care by the Bolivian courts, and that criminal legislation would need to
make the concept of consent a central element of crimes of sexual violence to allow true access to
justice for the victims of said crimes.
135. Moreover, it is highlighted that the two types of criminal offenses used in the criminal
proceedings regarding the sexual violence suffered by Brisa were rape (supra para. 55) and statutory
rape (supra para. 60), in their aggravated forms (Article 310 of the Criminal Code). It is recalled
that, on the date of the events, rape consisted of having "carnal access with a person of either sex",
"anal or vaginal penetration" or introducing "objects for libidinous purposes", through the use of
"physical violence or intimidation", while statutory rape was defined when someone "through
seduction or deception, had sexual intercourse with a person of either sex, over fourteen (14) years
of age and under eighteen (18)." Taking into account the above, the Court will next analyze the
compatibility of the crimes of statutory rape and rape with the American Convention, based on the
international corpus juris on the matter and the expert opinions provided during the processing of
the sub judice case, and the specific impact of the use of these criminal offenses in the judicial
process established as a result of the sexual violence perpetrated against the alleged victim.
136. The Court, following international case law and taking into account the provisions of the
Convention of Belém do Pará, has previously considered that sexual violence consists of actions of a
sexual nature that are committed against a person without their consent, which in addition to
including the physical invasion of the human body, may include acts that do not involve penetration
or even any physical contact.255
137. Similarly, following the jurisprudential and regulatory criteria that prevail both in the field of
International Criminal Law and in Comparative Criminal Law, this Court has considered that rape
must also be understood as acts of vaginal or anal penetration, without the consent of the victim,
through the use of other parts of the aggressor's body or objects, such as oral penetration by the
male organ. In this regard, the Court clarifies that for an act to be considered rape, it is sufficient
that penetration occurs, no matter how insignificant it may be, in the terms described above.256
Cf. Case of the Miguel Castro Castro Prison v. Peru, supra, para. 306, and Case of Women Victims of Sexual Torture
in Atenco v. Mexico. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 28, 2018. Series C No.
371, para. 181.
255
Cf. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Anto Furundzija, Judgment of
December 10, 1998, case No. IT-95-17/1-T, para. 185; International Criminal Tribunal for the former Yugoslavia,
Prosecutor v. Kunarac et al., Judgment of February 22, 2001, case No. IT-96-23-T and IT-96-23/1-T, paras. 437 and 438;
International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Kunarac et al., Appeal judgment of June 12, 2002,
case No. IT-96-23-T and IT-96-23/1-T, para. 127, and Case of J. v. Peru, supra, para. 359. Additionally, the Assembly of
States Parties to the Rome Statute of the International Criminal Court indicated, for the purposes of the classification of the
crime against humanity and the war crime of rape, that rape occurred when “The perpetrator invaded the body of a person
by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual
organ, or of the anal or genital opening of the victim with any object or any other part of the body.” Cf. International
Criminal Court. Report of the Preparatory Commission of the International Criminal Court: The Elements of the crimes, U.N.
256
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