The case involved the rape and torture of Gladys Carol Espinoza Gonzáles (“Espinoza”) in 1993 while she was in the custody of the Peruvian National Police (PNP). She was arrested in an abduction investigation—during which she was injured and her partner killed—then detained at police headquarters. She was later accused of belonging to MRTA (a Peruvian insurgent group), investigated for treason and a Special Military Judge issued an arrest warrant. She was convicted a month later. Espinoza was then subject to inhuman detention conditions while incarcerated from 1996 to 2001 and, in 1999, was beaten by agents of the PNP while she was in custody. The case had not been punished by the competent judicial authorities.
Espinoza was one of thousands who experienced sexual violence or torture in Peru from 1980 to 2000 as conflict raged between armed groups—including the Shining Path and the MRTA—and members of the Police and Armed Forces. A 1992 coup d’état coincided with new anti-terrorism laws which defined crimes of terrorism and treason with new norms for penalization, investigation, and trial. Sexual violence and rape against women became systematic within detention centers.
In 2003, after the conflict, Peru’s Supreme Court nullified criminal proceedings before military jurisdictions. Espinoza was tried in the ordinary jurisdiction for “crime against the public peace – terrorism” and convicted to 25 years imprisonment with no consideration of her allegations of torture and sexual violence. Her allegations were investigated in 2012, but no punishment has followed.
The Court found that Peru violated its obligation to respect and ensure rights under Article 1(1) of the American Convention for its failures to address, among other things, the sexual violence perpetrated against Espinoza and its promotion of sexual violence as a strategy to combat “subversive groups.” The Court also exercised jurisdiction over failures to investigate violence against women under the Convention of Belém do Pará.
The Court recognized that a state of emergency can loosen State guarantees, but this must be tailored to the situation. In this instance, the Court found much of Peru’s conduct either (i) not “strictly necessary” or (ii) to “exceed those limits … precisely set out in the provisions that decree[d] a state of emergency.”
First, the Court found violations of Espinoza’s personal liberty—protected by Article 7 of the American Convention—including Articles: 7(2), as her arrest was not promptly and fully recorded; 7(4), as charges were not promptly presented; 7(5) and 7(3), as she was detained a long period before appearing before an improper military court; and 7(6), as the law denied her a claim of habeas corpus.
Second, the Court found violations of Espinoza’s personal integrity and privacy—protected by Articles 5 and 11 of the American Convention. The Court determined she was subject to torture during arrest and detention, including by sexual violence—which the Court considered a form of torture since it causes severe and lasting physical and psychological trauma—and threats, such as the threat to infect her with AIDS—a form of psychological torture. Sexual violence similarly constituted an invasion of her privacy since rape “violated essential aspects and values of her private life … losing control completely of her most personal and intimate decisions.” After the fact, it was cruel, inhuman and degrading treatment to withhold medical treatment during her incarceration.
Third, the Court held Peru’s general strategy of sexual violence and threats discriminated against women in violation of Articles 5 and 11 of the American Convention as well as Articles 1 and 6 of the Inter-American Convention to Prevent and Punish Torture (the “Inter-American Convention”). The Court considered sexual violence in this case as a “strategy of war” which entailed inherently “gender-based violence because it affected women merely because they were women.” Sexual violence was part of “a strategy in the fight against the [MRTA]” used to “obtain information … and to humiliate and intimidate,” and thus “subjecting Ms. Espinoza to this generalized practice constituted discrimination owing to her condition as a woman.”
Fourth, the Court found violations of Espinoza’s right to judicial protection—protected by Articles 8 and 25 of the American Convention, 7(b) of the Convention of Belém do Pará, and Articles 1, 6 and 8 of the Inter-American Convention—since Peru took no steps to address her allegations in 1993 or 2003. The Court made clear that with regards to sexual violence a court is expected to take a statement in a safe and secure environment and provide for medical and psychological appraisal in ways to avoid re-victimization. The failure of judicial protection for sexual violence in particular was held to discriminate against women since “judicial ineffectiveness in individual cases of violence against women … sends the message that violence against women may be condoned.”
Fifth, the Court found violations to personal integrity of Espinoza’s mother and brother, applying a presumption that the victim’s family is also victimized in cases of egregious human rights violations.