116
their weapon at them while they performed their physiological needs (supra para.
197(49)). The Tribunal considers that these women, besides receiving a treatment
that violated their personal dignity, were also victims of sexual violence, since they
were naked and covered only with a sheet, while armed men, who apparently were
members of the State police force, surrounded them. What classifies this treatment
as sexual violence is that men constantly observed the women. The Court, following
the line of international jurisprudence and taking into account that stated in the
Convention to Prevent, Punish, and Eradicate Violence against Women, considers
that sexual violence consists of actions with a sexual nature committed with a person
without their consent, which besides including the physical invasion of the human
body, may include acts that do not imply penetration or even any physical contact
whatsoever.161
307. The Court points out the context in which said acts were carried out, since the
women who suffered them were subject to the complete control and power of State
agents, absolutely defenseless, and they had been injured precisely by State police
officers.
308. Having forced the females inmates to remain nude in the hospital, watched
over by armed men, in the precarious health conditions in which they were,
constituted sexual violence in the aforementioned terms, which caused them
constant fear of the possibility that said violence be taken even further by the police
officers, all of which caused them serious psychological and moral suffering, which is
added to the physical suffering they were already undergoing due to their injuries.
Said acts of sexual violence directly endangered the dignity of those women. The
State is responsible for the violation of the right to humane treatment enshrined in
Article 5(2) of the American Convention, in detriment of the six female inmates that
suffered those cruel treatments, and whose names are included in Appendix 2 of
victims of the present Judgment, that for these effects is considered part of the
same.
309. On the other hand, in the present case it has been proven that one female
inmate who was transferred to the Police Sanity Hospital was object of a finger
vaginal “inspection”, carried out by several hooded people at the same time, in a
very abrupt manner, with the excuse of examining her (supra para. 197(50)).
310. Following the jurisprudential and legal criterion that prevails both in the realm
of International Criminal Law as in comparative Criminal Law, the Tribunal considers
that sexual rape does not necessarily imply an non-consensual sexual vaginal
relationship, as traditionally considered. Sexual rape must also be understood as act
of vaginal or anal penetration, without the victim’s consent, through the use of other
parts of the aggressor’s body or objects, as well as oral penetration with the virile
member.
311. The Court acknowledges that the sexual rape of a detainee by a State agent
is an especially gross and reprehensible act, taking into account the victim’s
vulnerability and the abuse of power displayed by the agent.162 Similarly, sexual rape
161
Cfr. ICTR, Case of Prosecutor v. Jean-Paul Akayesu. Judgment of September 2, 1998. Case No.
ICTR-96-4-T, para. 688.
162
Cfr. Eur.C.H.R., Case of Aydin v. Turkey (GC). Judgment of 25 September 1997, App. No.
57/1996/676/866, para. 83.