Warning: This case deals with topics that are especially grave and may cause trauma invoked by memories of past abuse. If you have experienced violence and need assistance, please refer to this list of country help lines provided by UN Women.
Rape, sexual violence
Inter-American Commission of Human Rights
In June 1989, Sendero Luminoso (Shining Path) terrorists killed soldiers in Posuzo. A few days later, 100 members of the Peruvian armed forces were sent to Oxampa – just outside Posuzo – to conduct counterinsurgency operations.
Raquel and her husband, Fernando Mejia Egocheaga, lived in Oxampa. Raquel was a teacher and principal of a school for disabled children and Fernando was a lawyer, journalist and political activist.On 15 June 1989 soldiers entered their home, attacked Fernando and ordered him to get into their truck. Fifteen minutes later, they returned. The man in charge of Fernando’s abduction asked Raquel for Fernando’s identification documents and explained that he was on a list of individuals suspected of belonging to subversive movements. Ignoring Raquel’s explanation that they were not members of any movements, the man raped her and left. Twenty minutes later, the same man returned and raped Raquel again. She would spend the rest of the night fearing the man’s return and for Fernando’s life. Her daughter was asleep in the next room.
The next day, Raquel went to the police station to report Fernando’s abduction but was told that she would have to wait four days before filing a missing person report. She was also refused help from the Mayor and Provincial Prosecutor of Oxampa, as well as the examining magistrate. On 18 June, Fernando’s body was discovered on the bank of a river. He had been severely tortured before being killed.
Following the discovery of Fernando’s body, Raquel received death threats to withdraw her complaint. Afraid for her life, she relocated to Sweden on political asylum. The Peruvian Government ordered her extradition for alleged association with a subversive organisation. There was no evidence to substantiate the Government’s claims. On 17 October 1991, the Inter-American Commission on Human Rights received a petition on the violation of Fernando and Raquel’s human rights.
What was the decision?
The Commission considers that sexual abuse, besides being a violation of the victim’s physical and mental integrity, implies a deliberate outrage to their dignity.
Through its analysis, the Commission decided that Peru was responsible for violating Raquel’s human rights, specifically:
- American Convention on Human Rights
- Article 5: Right to humane treatment
- Article 8: Right to a judicial hearing
- Article 11: Right to privacy
- Article 25: Right to an effective remedy
Although seven years had passed since the attacks on Raquel, the Commission found the facts of Raquel’s complaint to be true. This is because the circumstances surrounding the attack provided sufficient evidence that the Peruvian armed forces had perpetrated the rapes. Raquel’s complaint reflected the systematic practice of sexual violence carried out by soldiers in Oxampa – which amounted to torture.
Torture, according to the Commission, exists when three elements are present:
- There must be “…an intentional act through which physical and mental pain and suffering is inflicted on a person”
- The act must be “committed with a purpose”
- The act must “…be committed by a public official or by a private person acting at the instigation of” a public official.
The Commission recognised all three elements in Raquel’s story. The man who raped her was a security officer and was accompanied by soldiers. The rape was perpetrated with the intention (i.e. with the aim to produce a certain result in Raquel) of punishing and intimidating her. And after Raquel had been attacked, she experienced physical and mental pain and suffering. The Commission concluded that Peru was responsible for violating Article 5 of the Convention.
The Commission also stressed that rape not only violates the right to humane treatment, but is also an assault on the survivor’s dignity. Specifically, the Commission referred to the UN Special Rapporteur against Torture who stated “[w]omen are affected in the most sensitive part of their personality and the long-term effects are perforce extremely harmful, since in the majority of cases the necessary psychological treatment and care will not and cannot be provided.” Rape, therefore, also invades the survivor’s private life and amounts to a violation of Article 11 under the Convention.
Finally, the Commission noted that Raquel lacked access to an effective remedy capable of addressing the human rights violations she suffered. According to the Commission, Article 25 of the Convention:
“…must be understood as the right of every individual to go to a tribunal when any of his rights have been violated (whether a right protected by the Convention, the constitution or the domestic laws of the State concerned), to obtain a judicial investigation conducted by a competent, impartial and independent tribunal that will establish whether or not a violation has taken place and will set, when appropriate, adequate compensation.”
When Raquel was attacked, she had not brought her case to domestic courts because cases like hers were never investigated and those who reported them risked further violence. Without access to a judicial investigation conducted by independent and impartial judges, it was “materially impossible” for Raquel to access compensation for what had happened. The Commission concluded that Peru was in violation of Article 25 of the Convention.
Finally, when combined with Article 8, the right to an effective remedy must be guaranteed with full impartiality of the presiding judge. Regardless of the charges brought against Raquel (affiliation with subversive groups, terrorism), she should have been considered innocent until proven otherwise. This, was clearly not the case. Once charges were filed against Raquel, Article 13 of Peru’s Decree Law 25.475 obliged judges to order her arrest – without establishing whether there was even sufficient evidence of a crime and/or Raquel’s guilt in the commission of it. Therefore, Peru had violated Raquel’s rights under Article 8 of the Convention.
For these reasons, the Commission recommended:
- To declare that the Peruvian State is responsible for violating the right to humane treatment, the right to protection of one’s honour and dignity, the right to a fair trial and the right to judicial protection guaranteed, respectively, in Articles 5, 11, 8 and 25 of the American Convention, and its general obligation to respect and guarantee the exercise of those rights, under Article 1.1 of the Convention.
- To recommend to the Peruvian State that it conduct a thorough, rapid and impartial investigation into the events in the kidnapping, torture and subsequent murder of Fernando Mejía, in order to identify those responsible and, where appropriate, impose the appropriate punishment.
- To recommend to the Peruvian State that it conduct a thorough, rapid and impartial investigation of the sexual abuse of which Raquel Mejía was the victim, in order to identify the perpetrators so that they may be punished in accordance with the law, and that it pay the injured party a fair compensation.
- To recommend to the Peruvian State that it abolish or amend Article 13 of Decree Law 25.475, so that it guarantees everyone’s right to a fair trial.
- To recommend to the Peruvian State that it drop the criminal proceedings against Raquel Mejía for the alleged crime of terrorism, inasmuch as it has failed to guarantee her right to a fair trial.
- To publish this Report in the Annual Report to the General Assembly.
Learning from other institutions
Throughout the text of the case document, Raquel’s story was supported by what other institutions and authorities had said about violence against women, gender-based discrimination and human rights. This reinforces the legal value of international human rights standards on gender equality, and helps build a unified global commitment to tackling VAW. Some of the references to these institutions and authorities included:
Prior to Raquel Martin de Mejía v. Peru, the Inter-American Commission on Human Rights had only recognised rape as a minor form of inhuman treatment or as an invasion of privacy that violated Article 11 (the right to privacy) under the Convention. Thanks to Raquel’s bravery in sharing her story, the Commission’s decision changed the way rape is understood. No longer was rape a mild form of inhumane treatment, but an act that causes severe harm to survivors and can amount to torture when perpetrated in specific circumstances.
Raquel’s story has also been used to influence other cases around the world. In Aydin v. Turkey, for example, Amnesty International referred to Raquel Martin de Mejía v. Peru to argue that the rape of a young girl while in detention amounted to torture under the European Convention on Human Rights and Fundamental Freedoms.