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When Ms López Soto was 18 years old she was kidnapped, held captive, continually raped, tortured and kept in conditions of sexual slavery over a period of almost 4 months (27 March until 19 July 2001). She was threatened by her assailant with a firearm and moved from place to place, from hotels to apartments. As well as physical violence and sexual abuse she suffered multiple other forms of violence, including psychological, verbal and cyber-abuse as he forced her to perform sex acts on camera. The perpetrator told her that he had powerful connections and that he would never be arrested for these acts. He also posed as her partner and explained any resistance on her part as ‘domestic’ or presented them as ‘relationship difficulties’.
On 19 July 2001, Ms López Soto was able to escape. In addition to her horrific injuries, she testified to further continued suffering at the hands of the State. It took the authorities 5 hours to provide her with medical assistance during which time she remained in the apartment where she had been held fearing the perpetrator’s return (she had managed to attract attention while he was away). Ms López Soto underwent 14 surgeries for the injuries that he had inflicted. Police investigations were from the outset inadequate as they favoured the account of her assailant – a person of high social standing – and his false assertion that she was a “prostitute”. Over the next 5 years, the complainant fought to obtain justice including going on hunger strike. Despite all her efforts, a drawn out judicial process failed to convict her assailant for sexual violence, thereby impugning her credibility and leaving her without remedies for an integral part of the violence that was perpetrated upon her. This process was plagued by irregularities and tainted by gender stereotypes,
The case was also brought by members of the complainant’s family. At the time, Ms López Soto’s sister had immediately and repeatedly reported her absence to the police, but the authorities did not admit any complaint in relation to her disappearance, on the basis that the assailant was ‘her partner’. The police had both the name and telephone number of the kidnapper and yet nothing was done to protect her from the months of violence that she would suffer.
What was the decision?
The Inter-American Court of Human Rights found unanimously that Venezuela had violated a plethora of Ms López Soto’s rights under the Inter-American Convention on Human Rights; the Convention of Belém do Pará and the Inter-American Convention to Prevent and Punish Torture. The rights violated were: to juridical personality, to personal integrity, the prohibition of torture and other cruel, inhuman or degrading treatments; the prohibition of slavery, to personal liberty, to a fair trial, dignity, autonomy and private life; freedom of movement and residence; to judicial protection and equality before the law, all in conjunction with the State’s obligation to respect and guarantee the rights without any discrimination as well as the obligation to adopt domestic provisions.
- Findings relating to torture and cruel, inhuman or degrading treatment or punishment
The Inter-American Court’s significant findings detail the State’s legal responsibility for the acts of violence committed by non-State actors when the State fails to take appropriate action to protect women known to be at risk of violence, and fails to investigate and prosecute in a competent manner which respects victims’ rights. The Inter-American Court also made important comments about the context of patriarchal domination in which sexual violence takes place and how that discrimination makes gender-based violence a form of torture.
It has been a principle of international human rights law since the Velázquez-Rodríguez v. Honduras (29 July 1988) that when a State fails to investigate or to take reasonable steps to prevent killings, acts of disappearance, or torture, this failure incurs the legal responsibility of the State. Developing this principle the Court accepted the expert witness evidence from the former UN Special Rapporteur on torture, Juan Méndez, who said:
“the indifference or inaction of the State constitutes a form of acquiescence or de facto authorization of torture. This principle applies especially when the State […] does not make efforts to prevent gender-based violence. The lack of protection appears when the State does not protect victims from prohibited conduct; when it does not act to end torture when it is reasonable to assume that it is aware that it may be occurring; and when the State does not proceed to investigate and prosecute the violations committed. This is because their indifference to such facts indicates their consent, acquiescence and, sometimes, justification of violence.” (paragraph 149)
Applying this analysis of the law, the Inter-American Court of Human Rights found Venezuela responsible for the torture and ill-treatment experienced by Ms. López Soto in a number of ways.
1(a)Failure to investigate abduction
The police failed to take prompt and effective measures to find Ms. López Soto when her sister first reported her abduction – even though she gave them the name and mobile number of the perpetrator. It transpired that the police called the perpetrator’s mobile but were persuaded by his story that this was “a relationship”. In fact, the perpetrator increased the violence after these calls, to punish Ms. López Soto for her family reporting her disappearance to the authorities.
1(b) A criminal code that discriminates against women
The Venezuelan Criminal Code at the time “was highly discriminatory against women, especially with regard to the definition of sexual crimes.” For example, it specified that sexual crimes committed against a woman engaged in prostitution were less serious and required less serious punishment, than crimes against other women. It also described sexual crimes as offences against “morals and good conduct” rather than as crimes of violence. The legal system was therefore not competent to provide justice for survivors of sexual violence, as it permitted impunity. It acted in fact as the State’s consent, acquiescence and justification of sexual violence, which could amount to torture.
The perpetrator took advantage of this discriminatory Criminal Code by alleging that Ms. López Soto was a sex worker during the domestic investigation and prosecution. The Inter-American Court of Human Rights determined this was intended to “distort the credibility of Linda Loaiza López’s testimony” and in accordance with the law itself deem her of “lesser value or implicitly deserving of the aggressions.” This resulted in “a scenario in the which the victim was constantly questioned and stigmatized”, both by the defence and her aggressor.
1(c) Inadequate investigation, distorted by stereotypes
The Venezuelan authorities inflicted secondary victimization on Ms. López Soto, through allowing further gendered stereotypes to prejudice and distort the investigation and judicial hearing of her case. The investigators failed to carry out a victim and gender-focused examination of the totality of her experience of violence. Instead, she was confronted with the alleged perpetrator’s version of events, which became the focus of the investigation. Police and prosecutors failed to take timely forensic evidence from the apartment where she was held but focused on the alleged “romantic relationship” between Ms. López Soto and the perpetrator.
1(d) Investigation methods re-traumatised the victim of crime
The authorities failed to provide access to female medical and legal professionals to help Ms. López Soto to recover and to prepare the prosecution. Even though it was immediately clear that she had been subjected to severe sexual violence, Ms. López Soto was required to submit to gynaecological and psychiatric investigations by male doctors, although she had specifically asked for female doctors. She was required to give numerous repetitive statements before male guards and investigators. Further questioning at the public hearing took place in the presence of the perpetrator, without any psychological assistance or accompaniment.
1(e) Gendered experience of torture
The Inter-American Court identified the gendered experience of torture – how violence is used to target women and girls and how it operates within a patriarchal system.
“Linda Loaiza López Soto was subjected to constant and extreme physical, sexual and psychological violence. This violence was intended to control her movement, but also to destroy her autonomy and dignity, since [the perpetrator] controlled every aspect of her life, including her sexuality, over which the aggressor exercised exclusivity.”
The Inter-American Court of Human Rights emphasized the sexual aspect of the torture. Rape is “an extremely traumatic experience that has severe consequences and causes great physical and psychological damage that leaves the victim physically and emotionally humiliated.” Referring again to the expert evidence of Juan Méndez, the Court found that the severity of pain and suffering needs to be assessed with reference to the personal characteristics of the victim – their age, health, and particular vulnerabilities – as well as the type of harm inflicted. But even with this context-specific variation, the level of extreme pain and suffering required to prove that an assault is an act of torture is “inherent to sexual rape.”
The Inter-American Court identified the “patriarchal domination” of one man over a young woman as a key factor in identifying violence against women as a form of torture.
the purpose of the aggressor was to intimidate her, annul her personality and subjugate her. In short, to affirm a position of subordination of women, as well as their relationship of power and patriarchal dominion over the victim, which demonstrates the discriminatory purpose. […] the Court has highlighted the transcendental role of discrimination in analyzing violations of women’s human rights and their adaptation to the figure of torture and ill-treatment from a gender perspective. Therefore, the Court determines that Linda Loaiza was subjected to acts of physical, sexual and psychological torture.
- Findings relating to slavery
The Inter-American Court of Human Rights also found that the State of Venezuela was responsible for enabling the sexual slavery of Linda Loaiza by a private actor in Caracas, Venezuela. The decision thus builds on the Court’s jurisprudence on slavery and trafficking in cases such as La Hacienda Brasil Verde v Brasil(2016).
In Hacienda Brasil Verde, the Inter-American Court held that there are two fundamental elements of slavery:
- i) the condition or state of the individual over whom any or all of the powers attaching to the right of ownership are exercised;
- ii) the exercise of ownership, including manifestations of control over a person and the restriction of liberty.
The Inter-American Court of Human Rights lists a number of components which it uses to evaluate the exercise of rights of ownership including the restriction or control of the person’s autonomy, the loss of freedom of movement, the absence of consent or free will of the victim or its impossibility or irrelevance due to threats or the circumstances, a benefit or profit obtained by the perpetrator, the condition of the victim, including whether they are held in captivity, and whether there is exploitation.
In paragraphs 176-182, the Inter-American Court of Human Rights looks specifically at sexual slavery as a particular form of slavery where sexual violence plays a primary means by which a perpetrator exercises the attributes of “property rights” over the victim. The Inter-American Court of Human Rights reminds us that the prohibition of slavery and sexual slavery is a fundamental principle of international law from which no derogation is permitted. It relies upon the definition of sexual slavery set out by the Special Rapporteur on contemporary forms of slavery, including its causes and consequences in the report “Systematic rape, sexual slavery and slavery like practices during armed conflict”. In that report sexual slavery is defined as follows:
Slavery should be understood as the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including sexual access through rape or other forms of sexual abuse. Critical elements in the definition of slavery are limitations on autonomy and on the power to decide matters relating to one’s sexual activity and bodily integrity. A claim of slavery does not require that a person be bought, sold or traded; physically abducted, held in detention, physically restrained or confined for any set or particular length of time; subjected to forced labour or forced sexual activity; or subjected to any physical or sexual violence although these are indicia of slavery.’
2(a) State responsibility
Relying upon the above, the Inter-American Court of Human Rights held that sexual slavery is a human rights violation under Article 6 of the Convention. In addition, it engages a number of other Convention rights (3, 5, 7, 11, 22) given the intrinsic connection between physical and psychological integrity and bodily autonomy including a person’s right to have control over their own body and sexuality.
The Inter-American Court of Human Rights analysed the facts in the present case finding that from the moment that the perpetrator deprived Linda Loaiza of her liberty, until she was rescued, he exercised complete control over her movements and dominated every aspect of her life. She was handcuffed and constantly threatened. The perpetrator determined when and what she ate and when she could go to the bathroom. He exercised sexual control over her, leaving her defenceless. The Court especially noted the extreme violence he subjected her to, including repeated rape and other sexual violence, which annulled her right to autonomy, degraded her and caused her severe humiliation, as well as the physical injuries. The Court found it imperative not only to make a finding of slavery but also to make visible the sexual character of the slavery that affects women disproportionately and forms part of the subordination and domination of women by men.
The Inter-American Court of Human Rights held therefore that the sexual slavery is also a manifestation of discrimination against women, in contravention of Article 1.1. of the Convention. Although the Inter-American Court of Human Rights did not cite it, this links to the understanding under international law, as first articulated under the Declaration on the Elimination of Violence against Women recognising “that violence against women is a manifestation of historically unequal power relations between men and women… by which women are forced into a subordinate position compared with men.” Similar iterations can be found by the Committee on the Elimination of Discrimination against Women (CEDAW) in both their general recommendation no 19 which was published in 1992, and in its updated general recommendation no 35 on gender-based violence against women.
The Inter-American Court of Human Rights went on to consider State responsibility for the sexual slavery. The Inter-American Court of Human Rights found that due to Venezuela’s grave omissions, it had effectively allowed the sexual slavery to take place in violation of Article 6 of the Convention. The Inter-American Court of Human Rights had already found that State officials lacked formal training on violence against women, and their due diligence obligations, leading to inadequate responses to reports of missing women.
a) State responsibility for acts of torture and slavery committed by non-State actors
The case provides a rich discussion of international human rights law, reviewing and approving the legal approaches to gender-based violence as a form of torture by non-State actors established in other courts and by other experts, for instance the Committee against Torture’s General Comment 2 (2008) and the Special Rapporteur on torture’s 2016 report on gender perspectives on torture.
This judgment is therefore a useful consolidation of international human rights law, confirming the recognition of gender-based violence by State and non-State actors alike as a form of torture and ill-treatment.
However, the decision marks the first time that the Inter-American Court or indeed any human rights court has found a State responsible for sexual slavery following the actions of a private actor. It is a significant decision in a region where survivors continue to pursue justice for sexual slavery carried out under State control (for example in Argentina) but also in the context of high levels of violence against women, who are murdered (femicide), trafficked and held in sexual slavery by non-State actors.
As the judgment notes, States have an obligation under the Convention to prevent, investigate, prosecute and punish trafficking and sexual slavery. To this end they must ensure that training and mechanisms are in place to ensure immediate and effective action when they receive a report that a woman has disappeared. They must also ensure that their actions are not distorted by gender stereotypes, for instance that she is a prostitute or that she ‘escaped’ with her boyfriend, or the alleged perpetrator is a respectable member of the community, messages that were also made strongly to Guatemala in the case of Claudina Paiz v Guatemala.
b)Adopting a holistichuman rights approach to crimes of slavery
Sexual slavery has previously been understood as an international crime, listed as such as a war crime and a crime against humanity in the Rome Statute of the International Criminal Court. This ground-breaking judgment acknowledges that the same elements of absolute control, violence and denial of autonomy can be exercised by one person over another in a situation where there is no overt conflict and a single victim. Recognition that such behaviour is not solely a crime for which the individual is responsible but can also constitute a violation of human rights law emphasises the State’s due diligence obligation to adopt a holistic approach to tackling violence against women and ensuring that all involved put it into effect. Failure to do so incurs State responsibility including the obligation to make adequate reparation to the victim. This judgment is thus an important step forward in eradicating this scourge.
c) Transformative reparations
An important part of the Inter-American Court of Human Rights’ jurisprudence relates to its decisions on reparations, which are binding upon the State party and more substantial and transformative than the jurisprudence of the European Court on Human Rights. The Inter-American Court of Human Rights ordered inter alia, the State to carry out an effective criminal process to punish those responsible for the torture and sexual violence that Ms López Soto suffered; pay financial compensation for pecuniary and non-pecuniary damages, create a national database on violence against women, carry out legislative and institutional changes, perform a public act in recognition of its responsibility for violations of international law and adopt and implement protocols on investigation of violence against women.
The reparations go beyond just satisfaction in pronouncing the violations, making it clear that Ms López Soto and her family must be provided with medical and psychological support for the harms they have endured, by professionals of their choice. This is important since many organisations have highlighted the re-victimisation of victims by services which are only provided by the very people who have abused them or have caused trauma. The reparations are also transformative in the sense that they order the State to provide Ms López Soto with a scholarship so that she can finish her professional education in a local or foreign university to which she gains admission. The Court also ordered the State to create an educational programme under Ms López Soto’s name to be taught in the national curriculum.