physicians in Peru. In addition, the State indicated that, although Plenary Decision No. 12011/CJ-116 was not legally binding, “it provides rules for the classification of the offense of
rape, the validity and assessment of the victim’s statement (including situations when this is
retracted or discontinued), and for general evidence in rape offenses.” It underscored that this
decision stipulated that, “when sexual offenses are evaluated in court, any gender
stereotyping or prejudice must be rejected.” The State also mentioned two other plenary
decisions, one on “assessment of expert evidence in rape offenses” and the other on “rules
for the assessment of the statements of co-defendants and aggrieved parties.”
241. The Court considers that the general criteria established in the documentation cited by
the State signifies an important step forward towards the adaptation of domestic laws and
practices to international standards concerning the protection of LGBTI people. However, it
notes that more specific standards are required that include the criteria established in this
judgment and in other relevant international instruments. For example, witness Ketty Garibay
Mascco testified before the Court that, at the present time, the Public Prosecution Service does
not have precise investigation guidelines and protocols relating specifically to LGBTI people. 306
242. Consequently, the Court finds it appropriate to order the State to adopt, within two years
of notification of this judgment, a protocol on investigations and administration of justice in
criminal proceedings involving members of the LGBTI community who are victims of violence.
The protocol must be addressed at all the public officials who intervene in the investigation
and processing of criminal proceedings in cases involving members of the LGBTI community
who are victims of violence, as well as the public and private health care personnel who
participate in such investigations. This protocol must include the obligation of State agents to
refrain from using discriminatory presumptions and stereotyping when receiving, processing
and investigating complaints.
243. When preparing the protocol, the State must take into account the criteria established
in the international instruments on torture, as well as the standards developed in this
judgment and in the Court’s case law. This protocol must take into consideration that due
diligence in cases of the rape and torture of LGBTI people entails the adoption of special
measures and the development of a process designed to avoid their revictimization, so that it
must include, as a minimum, the standards developed in paragraphs 178 to 204 of this
judgment. In the case of public and private health care personnel, based on the standards
developed in paragraphs 187 to 193 and 198 to 204 of this judgment, the protocol must include
at least the following guidelines: (i) the medical examination of the presumed victim must be
performed with prior informed consent, without the presence of law enforcement or other
state agents, avoiding, insofar as possible, more than one physical assessment; (ii) as soon
as a rape is reported, an immediate complete and detailed medical and psychological
examination must be performed by trained and appropriate personnel, if possible of the sex
preferred by the victim, advising the victim that they may be accompanied by a person of
confidence if they so wish; (iii) this examination must be performed based on protocols
specifically addressed at documenting evidence in cases of sexual violence, and (iv) during
psychological and/or psychiatric evaluations, doctors must refrain from inquiring into the
victim’s sexual history and, in general, using stereotypes of sexual orientation or gender
expression.
244. Lastly, in the case of public officials who are employed in the administration of justice,
the protocol must include, pursuant to the standards developed in paragraphs 178 to 204 of
this judgment, at least the following criteria: (i) agents of justice must not mistreat or exercise
discrimination towards victims and must respect everyone’s sexual orientation and gender
306
Cf. Statement made by Ketty Garibay Mascco during the public hearing held in this case.
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