examination because not all cases of sexual violence and/or rape cause physical injuries or
diseases that can be verified by a medical examination.199
154. Even though several of the alleged abuses did not leave physical traces, the Court notes
that the injuries found in the extragenital and genital areas are consistent with the presumed
victim’s assertion that she was hit several times during her detention and that they introduced
the police baton in her anus.
B.3
Expert appraisal of the presumed victim’s clothing
155. In the course of the investigation, the clothing that the presumed victim was wearing on
the day of the incident was examined. The expert report indicated that, on the “outside back
of [the trousers], at the level of the pockets, brownish contact stains can be observed. On the
central part of the inside reddish-brown stains are impregnated.” The analysis of the latter
determined that this was type “O”200 human blood, which coincides with the presumed victim’s
blood type.201
156. The correspondence between the blood type of the blood found on the back of the
presumed victim’s trousers and the blood type of the presumed victim is additional evidence
to support the statements made by Ms. Rojas Marín.
B.4
Determination of the ill-treatment that occurred
157. Based on all the preceding considerations, the Court finds that it has been sufficiently
proved that, during her detention, Ms. Rojas Marín was forcibly undressed, hit on several
occasions, the state agents made derogatory comments about her sexual orientation, and she
was the victim of rape because a police baton was introduced into her anus twice. This
determination is based on: (1) the statements made by Ms. Rojas Marín; (2) the medical
examinations performed on Ms. Rojas Marín, and (3) the expert report on the presumed
victim’s clothing. In addition, the Court recalls that the detention of Ms. Rojas Marín was
carried out without meeting the legal requirements, including the obligation to record the
detention, and that this detention was carried out for discriminatory purposes (supra paras.
100 to 134). The conditions in which the detention was carried out support the conclusion that
the ill-treatment alleged by the presumed victim occurred.
B.5
Legal classification
158. The Court has indicated that any use of force that is not strictly necessary owing to the
conduct of the person detained constitutes an attack on human dignity in violation of Article
5 of the American Convention.202 In the instant case, the State has not shown that the force
used at the time of the detention was necessary. In addition, the rape of which Ms. Rojas
Marín was a victim also constituted a violation of her right to personal integrity.
159. The violation of the right to physical and mental integrity has different connotations of
degree and ranges from torture to other types of abuse or cruel, inhuman or degrading
Cf. Case of Fernández Ortega et al.. v. Mexico. Preliminary objection, merits, reparations and costs, supra,
para. 124, and Case of Valenzuela Ávila v. Guatemala. Merits, reparations and costs, supra, para. 185.
199
200
Cf. Expert report of March 12, 2008 (evidence file, folio 2236).
201
Cf. Expert report of March 11, 2008 (evidence file, folio 2238).
Cf. Case of Loayza Tamayo v. Peru. Merits. Judgment of September 17, 1997. Series C No. 33, para. 57, and
Case of Díaz Loreto et al. v. Venezuela. Preliminary objections, merits, reparations and costs. Judgment of November
19, 2019. Series C No. 392, para. 91.
202
42