the criminal offense of rape would protect the legal rights covered by the criminal offense of statutory
rape. Consequently, and in order to ensure that all forms of sexual violence against adolescent minors
are based on lack of consent and are prosecuted and punished in accordance with the seriousness of
the facts, the State must, within a reasonable period of time, eliminate the criminal offense of
statutory rape from its legal system.
200. Regarding the concept of incest, this Court considers that the case revealed special
characteristics of the legal approach to incest in the Bolivian justice system that led to Brisa’s
revictimization. In effect, the representatives criticized the status of incest as a “mere aggravating
circumstance,” requesting as a measure of reparation that it be transformed into an autonomous
offense. The State did not specifically address this argument in its considerations.
201. It should be emphasized that incestuous rape entails a differentiated and particular impact on
the rights of children and adolescents, specifically protected by the American Convention and other
international instruments. Taking into account the prevalence and the differentiated and aggravated
impact of incestuous rape, as well as the importance of increasing visibility of its definition and
prohibition, the Court considers that incest is different from other forms of sexual violation and
requires a specialized approach on the part of the State in its legislation. Thus, the Court considers
it appropriate to order the State to, within a reasonable period of time, make incestuous rape visible
with its own nomen juris in the Bolivian Penal Code.
d.2.
Adoption of standardized protocols for investigation and comprehensive care in
cases of sexual violence to the detriment of children and adolescents
202. The State indicated that it has implemented a series of instruments for the investigation and
prosecution of crimes against sexual freedom with a gender and childhood perspective 326 and for
addressing cases of violence against children and adolescents.327 The Court notes that the
investigation and trial protocols indicated by the State are focused on the prevention, combat and
eradication of gender violence and violence against women in general. Thus, the Court notes that,
according to the information provided, only one protocol refers to the collection of testimony from
children and adolescents who are victims or witnesses, and that the State did not specify whether
the other protocols include a specific section or general guidelines for cases in which the victim is a
child or adolescent.
203. The Court considers that the general criteria established in the cited documentation imply
significant progress in terms of the adaptation of domestic standards and practices to international
regulations. However, it warns that it is necessary to have standards more focused on children, which
take into account the criteria established in this judgment and in other international instruments that
consider the specific conditions and needs of children and adolescents.
Among them, the State made reference to the Gesell Chamber Interview Protocol and Methodology for Collecting
Testimony from Children and Adolescents, victims and/or Witnesses; Medical - Forensic Examination Protocol in Sexual
Crimes; Protocol for specialized medical-forensic care for violence against women; Specialized Forensic Psychology Care
Protocol for women victims of violence; Protocol and institutional critical route for the care and protection of victims, within
the framework of the Law to guarantee women a life free of violence; Gesell Chamber Use Guide. 2nd Edition; Action guide
for protection, assistance, security and comprehensive reparation measures for damages to direct and indirect victims of
gender-based violence; Action Guide for Measures of Protection, Assistance, Security and Comprehensive Remedy of Harm to
Direct and Indirect Victims of Gender-Based Violence; Protocol for the Investigation, Sanction and Comprehensive Remedy of
Harm in Gender-based Violence, and an Investigative Action Protocol for the Pursuit of Cases Provided for in the Law against
harassment and political violence towards women. (Merits file, folios 527 to 528).
327
Among them, the State pointed out the Protocol for Prosecution with a Gender Perspective; Protocol for the Participation
of Children and Adolescents in judicial proceedings and intervention by the interdisciplinary professional team; Integrated
Bolivian Model of Action against Gender-Based Violence, intended to assist different state institutions involved in the path of
care for women in situations of violence, and Guide to Roles and Functions for Ombudsmen for Children and Adolescents. Cf.
List of instruments used by the different actors who deal with cases of violence against children (evidence file, folio 11893).
326
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