107. Regarding the physical examination, the Court has already ruled that the authorities should
avoid, as far as possible, subjecting victims of sexual violence to more than one physical evaluation,
which could lead to revictimization. The medical examination in these cases must be carried out by
a professional with extensive knowledge and experience in cases of sexual violence against children
and adolescents, who will seek to minimize and avoid causing additional trauma or re-victimizing
them. It is recommended that the victim, or if appropriate their legal representative, be able to
choose the sex of the professional and that the examination be carried out by a health professional
specializing in child and adolescent gynecology, with specific training in performing forensic medical
examinations in cases of sexual violence. In addition, the medical examination must only be carried
out following the informed consent of the victim or their legal representative, according to their level
of maturity, taking into account the right of the child or adolescent to be heard, in an appropriate
place, respecting their right to privacy, and allowing the victim to have a trusted companion
present.196 It is also considered necessary to prepare a record of the examination, which records the
information provided to the victim prior to and during the examination, and the record of the victim's
informed consent regarding each stage of the examination. Said report must be signed by the doctor
or specialist who performed the examination, the victim or their legal representative, and the trusted
person accompanying them.197 The necessity of a gynecological examination must be considered
based on a case-by-case analysis, taking into account the time elapsed from the moment in which
the sexual violence is alleged to have occurred. Consequently, the Court considers that the request
to perform a gynecological examination must be justified in detail and, if it is not required or does
not have the informed consent of the victim, the examination must be omitted, which under no
circumstances should serve as an excuse to discredit and/or prevent an investigation.198.
108. Taking into account the criteria developed above, based on the relevant articles of the American
Convention and the Convention of Belém do Pará, and in light of the international corpus juris for
the protection of children and adolescents, the Court will analyze below if, within the framework of
the development of the criminal proceedings for Brisa’s rape, the State violated its duty of enhanced
due diligence, special protection and non-revictimization, as well as the rights to humane treatment,
to Brisa's private and family life. To do this, it will analyze whether the investigative procedures and
judicial actions met the previously mentioned criteria or whether, on the contrary, they subjected
the victim to re-victimization. In this regard, the Court considers it important to emphasize once
again that, in cases of sexual violence, it has highlighted that the investigation must try to avoid, as
far as possible, re-victimization or re-experiencing of the victim's profound traumatic experience.199
This becomes especially relevant in the case of girls, by virtue of the State's duty of enhanced
diligence and the aggravated vulnerability characterizing their situation, having been victims of
sexual violence.
B.1.(b) Due diligence in the criminal proceedings for the sexual violence suffered by
Brisa
109. Based on the standards developed above, the Court will analyze whether in this case the State
complied with its duty of due diligence regarding (i) the forensic medical examinations carried out;
(ii) Brisa's interviews and statements during the investigations and criminal proceedings, and (iii)
other state acts and omissions.
i)
196
The forensic medical examinations conducted
Cf. Case of V.R.P., V.P.C. et al. v. Nicaragua, supra, para. 169.
The Court understands that the main function of the record is to avoid possible irregularities or violations during the
forensic examination and to serve as a document evidencing each step that was carried out throughout the procedure.
197
198
Cf. Case of Espinoza Gonzáles v. Peru, supra, para. 256, and Case of V.R.P., V.P.C. et al. v. Nicaragua, supra para.
169. See also, WHO. Guidelines for medico-legal care for victims of sexual violence. 2003, pp. 18, 43 and 58. Available at:
https://www.who.int/publications/i/item/WHO-RHR-15.24
199
Cf. Case of Fernández Ortega et al. v. Mexico, supra, para. 196, and Case of V.R.P., V.P.C. et al. v. Nicaragua, supra,
para. 171.
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