suffered during the initial arrest. In general, an analysis of these statements reveals that Ms. J.
indicated on at least two occasions that at the time of the initial arrest: (i) she had been beaten and
pulled by the hair; (ii) a man had hit her legs and had touched her sexually, and (iii) she had been
blindfolded. The Court considers that the statements by Ms. J. reveal this description of the facts
consistently. Furthermore, these characteristics of the events also appear in the briefs filed by the
442
presumed victim during the proceedings before the inter-American system.
323. Regarding the alleged “sexual touching,” the Court has established that sexual abuse is a
particular type of violence that, in general, is characterized by occurring in the absence of persons
other than the victim and the perpetrator or perpetrators. Given the nature of this type of violence,
the existence of graphic or documentary evidence cannot be expected and, therefore, the victim’s
statement constitutes fundamental proof of the act. 443 Notwithstanding the legal definition of the
facts established infra, the Court considers that this standard is applicable to sexual violence in
general. In addition, when analyzing the said statements it must be borne in mind that sexual
violence corresponds to a type of offense that the victim does not usually report, 444 owing to the
stigma that reporting it usually entails (supra para. 316).
324. Furthermore, the Court considers that the variations in the legal definitions of sexual
violence and rape that the presumed victim’s representative has accorded to the facts throughout
the proceedings before the inter-American system does not discredit the testimony provided in the
domestic sphere by Ms. J. concerning the events that occurred. 445 Moreover, the Court notes that
this is true even in relation to later statements made by the presumed victim. In this regard, the
440
On that occasion Ms. J. stated that, during the search of the building on Las Esmeraldas Street “they covered [her]
eyes all the time.” She also stated that “it is not true that I tried to escape the police; to the contrary when I realized that they
were trying to open the door saying that they were the owners, I tried to clarify the error that I thought they were committing,
and at that moment they broke the window and took me by the hair and also pointed a gun at me.” Preliminary statement of
June 15, 1992, before the Tenth Investigating Court of Lima (file of annexes to the answering brief, annex 42, folio 3704).
441
On that occasion Ms. J. stated that she remained “more or less three hours, lying on the ground face down, with [her]
eyes blindfolded and [her] arms behind, while someone was permanently treading on [her] leg.” Preliminary statement of June
19, 1992, before the Tenth Investigating Court of Lima (file of annexes to the State’s brief of June 24, 2013, annex 17, folio
4742).
442
Cf. Initial petition before the Inter-American Commission on Human Rights received on June 17, 1997 (file of the
proceedings before the Commission, folio 585); Communication of the representative of July 11, 2008 (file of the proceedings
before the Commission, folio 1703); Communication of the representative of October 23, 2007 (file of the proceedings before the
Commission, folio 779); motions and arguments brief (merits report, folios 185 to 218) and brief with final arguments of the
representative (merits report, folios 2074 to 2097).
443
Cf. Case of Fernández Ortega et al. v. Mexico, supra. Preliminary objection, merits, reparations and costs. Judgment of
August 30, 2010. Series C No. 215, para. 100, and Case of Rosendo Cantú et al. v. Mexico. Preliminary objection, merits,
reparations and costs. Judgment of August 31, 2010. Series C No. 216, para. 89.
444
Cf. Case of Rosendo Cantú et al. v. Mexico, supra, para. 95.
445
In the first briefs before the Inter-American Commission, the representative of Ms. J. at the time indicated that: “[t]he
acts committed against Petitioner at the time of her arrest and detention at DINCOTE […] included [… t]he sexually abusive
search of Petitioner, whereby a GEIN officer placed his hands under her cloth[e]s and molested her body[, and t]he rape of
Petitioner by the GEIN officer when he inserted his fingers inside her vagina while molesting her during her arrest” (original text
in English). Cf. Initial petition before the Inter-American Commission on Human Rights received on June 17, 1997 (file of the
proceedings before the Commission, folio 585). Subsequently, in October 2007 and July 2008, the representative clarified that
“the original text in English […] refer[red] erroneously to ‘rape’ instead of ‘sexual abuse.’ The petitioner was sexually assaulted
by the agents who arrested her as described in the complaint in circumstances in which she was blindfolded and tied up and
rendered powerless by the brute force of two men.” Communication of the representative of July 11, 2008 (file of the
proceedings before the Commission, folio 1703) and, see also, Communication of the representative of October 23, 2007 (file of
the proceedings before the Commission, folio 779). Furthermore, in the proceedings before the Court, the representative
indicated in her motions and arguments brief that what had occurred to the presumed victim constituted “a physical attack of a
sexual nature (sexual violence) and not a rape.” She explained that “[t]his correction of the facts described in the original
petition was made at the first opportunity that J. had [following the change in the representative].” However, following the public
hearing, the presumed victim’s representative indicated that these acts were legally characterized as rape. In this regard, she
indicated that: “the vagina is defined not only as a tract. The only things she said was that he did not enter her vagina, which
does not mean that he did not introduce his fingers in the vagina; so that there is factually no contradiction.”
94
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