In two recent decisions, the Inter-American Court of Human Rights (IACtHR) has affirmed the existing binding obligations of States to address gender-based violence against women by State and non-State actors. The López Soto vs Venezuela decision (published in November 2018) is the IACtHR’s first ruling on State responsibility for acts of sexual torture and sexual slavery by a private actor and its first case for gender-based violence against Venezuela. The Women Victims of Sexual Torture in Atenco vs Mexico decision (published in December 2018) sets out the State obligations in cases of sexual torture by state security forces. Both rulings build on the IACtHR’s prior gender jurisprudence and set important new precedents by providing detailed content to the duties of due diligence and by explaining the circumstances in which States can be held liable for breaching them.
The López Soto vs Venezuela case examines the circumstances in which acts of gender-based violence by private actors can be attributed to the State. In 2001, a well-connected private individual kidnapped Linda Loaiza López Soto, then 18 years old, in Caracas, Venezuela, holding her hostage for over three months. During her captivity, she was brutally tortured, raped and humiliated. In her February 2018 testimony before the IACtHR, she provided a harrowing account of the sadistic abuse she endured, the multiple surgeries she underwent for her injuries following her rescue, and the lasting impact of these injuries. López Soto brought her case before the IACtHR after domestic authorities failed to duly investigate and prosecute the crimes, convicting her abductor of lesser charges.
The Court focused its analysis on two contentious issues: (1) whether the conduct of a private actor could be attributed to Venezuela; and (2) whether this conduct amounted to torture and sexual slavery under international law, as argued by the plaintiff.
Regarding the first question, the Court examined whether the State knew or should have known that López Soto was in a situation of real or imminent risk and whether it took measures reasonably available to prevent or avoid that risk. Although Venezuela had accepted its responsibility for failing to properly investigate the case after the victim’s rescue, it denied any responsibility for the violence she suffered during her captivity. The Court recalled that, under the American Convention on Human Rights, States have a positive duty to prevent human rights abuses, including those committed by private individuals. In cases of violence against women, States must adhere to a strict due diligence standard. Relying on the Belém do Pará Convention, the Court clarified this standard by stating that the report of an abduction or disappearance of a woman is, in itself, sufficient to trigger the State’s due diligence duty to act. The Court thus departed from prior decisions where it had additionally required proof of the State’s awareness of a context of violence against women.
A critical issue was establishing when the authorities became aware of López Soto’s disappearance. Her sister’s testimony was crucial. During her captivity, López Soto’s sister repeatedly went to the police to report her sister’s disappearance. The sister also reported the threatening phone calls she received from the perpetrator, providing his name and phone number to the police. However, the police did not take her concerns seriously and made no real effort to locate López Soto. While the exact dates and number of reports were in dispute, the Court found that the news of López Soto’s disappearance and the reported violent conduct of the perpetrator should have prompted the authorities to take immediate action. The awareness of these factors made it foreseeable to the authorities that López Soto would be harmed, including through sexual violence. The Court found that Venezuela had failed to exercise due diligence to prevent the crimes.
As for the second question, the Court found that the violations of torture and sexual slavery had been established. It held that López Soto had suffered torture due to the presence of intent, severe physical and mental suffering, and purpose to discriminate on the basis of gender. It recalled that the definition of torture does not only encompass acts of violence by persons acting in official capacity, and that acts of violence against women by private actors can amount to torture when they are perpetrated with the State’s tolerance or acquiescence. Additionally, referring to its 2016 decision in the case of Hacienda Brasil Verde Workers vs Brazil—which focused on the right not to be subjected to slavery or trafficking, the Court found that López Soto had been sexually enslaved. It based its findings on the loss of liberty, the degree of control and the restrictions on her sexual autonomy she experienced in captivity. The Court concluded that, due to its gross omissions, Venezuela was responsible for these violations.
Turning to the second case, the case of Women Victims of Sexual Torture in Atenco v. Mexico deals with police brutality committed against eleven women during police operations in the municipalities of Texcoco and San Salvador Atenco on 3-4 May 2006. On 3 May 2006, the police prevented a group of flower vendors from selling at the Texcoco local market. In response, the flower vendors and some residents from neighbouring localities blocked the highway to Texcoco. In a meeting on the night of 3 May, federal and state authorities decided to quell the protests by force. The violent clashes between state and federal police and the protestors resulted in many injured, two killed and scores of arrests. Dozens of women, including the eleven plaintiffs in the case, were verbally, physically and sexually abused by the police. Mexican authorities later acknowledged that excessive police force was used against the protesters, but blamed individual policemen for exceeding their powers. Justice officials failed to carry out credible investigations and prosecute those responsible.
The Court stated that a State can be held liable for the excessive use of force by security forces when it fails to prevent abuses. In this case, Mexican authorities could have exercised due diligence to prevent the violence by: adequately regulating the use of force by the police; training police officers to behave professionally; monitoring developments on the ground and taking immediate action to stop the abuses as they happened; and putting proper verification, control and accountability measures in place to address abuses. According to the Court, the use of force against the protesters was excessive, indiscriminate and unwarranted.
A salient feature in the police response was the widespread use of sexual violence against female protesters. Women reported being groped, stripped, beaten, and insulted with vulgar language and sexual slurs. Many were raped. Others were threatened with rape. The Court found that these acts amounted to torture. It held that the police used sexual violence as a tactic of social control aimed at intimidating and silencing the women, as well as the other protesters. In the Court’s view, the police “instrumentalized the bodies of the women as tools to convey a message of repression and disapproval” to the protesters. While this is not the Court’s first case dealing with violence against women in Mexico, it provides a compelling example of this violence, exposing its pervasive nature and its use by the security forces.
A common aspect in both cases was the impact of gender stereotypes and biases on the authorities’ response. In the López Soto case, the police dismissed her sister’s claims, telling her that López Soto was probably with her boyfriend and that she should not interfere in the “matters of a couple”—suggesting that such matters are outside the police’s remit. In the Atenco case, during the assaults, the police told the women that they should have stayed home cooking and taking care of their children. Various high-ranking officials—including the then governor of the State of Mexico and former Mexican President, Enrique Peña Nieto—minimized the reports of sexual violence and publicly claimed that the women were lying. The IACtHR recalled that States have a due diligence duty to tackle gender stereotypes and discriminatory attitudes against women which are entrenched in public institutions and in society. A failure to do so reproduces and institutionalizes this violence, perpetuating it.
Finally, the outcome of these cases is a testament to the plaintiffs’ perseverance and courage in their pursuit of justice. These cases transcend their personal stories and epitomize the discrimination and violence that women continue to face in the Latin American region and beyond. The plaintiffs and their legal representatives (CEJIL, Centro Prodh in Mexico and COFAVIC in Venezuela) have demanded an end to impunity. The Court ordered various forms of reparations, including financial compensation, psychosocial support, a public recognition of responsibility, proper investigations into the crimes and measures to prevent their repetition. While implementation will be challenging in both Venezuela and Mexico, the plaintiffs’ quest for justice and the Court’s acknowledgement of their suffering will likely inspire and empower other victims to come forward.
Editor’s note: The author served as an expert witness in the cases discussed in this post.