91. In 2001, when the initial events in this case occurred, Article 310 had already been
significantly modified, with the aggravating circumstance of incest increasing the
penalty by five years if the perpetrator was "an ancestor, descendant or relative
within the fourth degree of consanguinity or second of affinity". Furthermore, the
Law for the Protection of Victims of Crimes Against Sexual Freedom, of October 29,
1999, added an aggravating circumstance for situations in which “the perpetrator
was in charge of the education or custody of the victim, or if the victim was in
situation of dependency or authority”, a circumstance that the State considered, in
its answering brief, as another classification of incest. Since then, although several
laws have modified the aggravating circumstances of sexual crimes (the last
modification having been made in 2019 through Law No. 1173), the section that
traditionally refers to incest has remained practically unchanged. 171 Currently, Article
310, section "o" has the following wording:
Article 310. (AGGRAVATING FACTORS). The penalty will be aggravated in
the cases of the previous crimes, with five (5) years, when: (...) o) The
author was an ancestor, descendant or relative within the fourth degree of
consanguinity or second degree of affinity; (…)
92. The representatives questioned this approach of the Bolivian legal system,
pointing out that incest should not be a mere aggravating circumstance, but rather
classified as autonomous, to give visibility to the "culture of incest" existing in the
country and allow the formulation of specific strategies for prevention. 172 Based
on the mobilization of data from international organizations and NGOs, they
pointed out that incest is a common and taboo fact in Bolivia, remaining hidden
and secret due to the reinforcement of the culture of silence regarding sexual
violence that occurs in the family environment. 173 When specifying their allegation
about the existence of a "culture of incest" in Bolivia, the representatives stated:
Incestuous rape culture is particularly dangerous. This culture is based on a set of beliefs,
norms, values and social constructions that make children and adolescents experience
and accept as normal the supposed right of adult men to be owners of life, feelings,
thoughts, the decisions and bodies of children and adolescents, especially if they are
female. This culture of incest in families is driven by ingrained notions of loyalty and
respect for authority, keeping and protecting family secrets, and toxic and polarizing
gender stereotypes. 174
93. For these reasons, they also stated that a separate classification for incest is
essential to shed light on this systemic and structural problem. They further affirm
that laws can be important accelerators of social change, transforming cultural
practices and contributing to the effective protection of children against this
serious form of violence. 175 Thus, the representatives requested, as a reparatory
measure, the transformation of the aggravating circumstance "o" of Article 310 of
the Penal Code into an autonomous classification that includes incestuous rape.
The State did not address this argument in its considerations.
171
However, section "g" was added to Article 310, which the State understands also refers to incest: “The
perpetrator is in charge of the education or custody of the victim, or if the victim is in a situation of
dependency with respect to the perpetrator or under their authority.”
172
Cf. Brief of Pleadings, Motions and Evidence of November 20, 2020, p.288-90.
173
Ibid.
174
Ibid., p. 2.
175
Ibid., p. 288-90.
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