In a “ground-breaking” case, the Inter-American Court of Human Rights has found Peru responsible for the arbitrary detention and rape of an LGBT+ person. The case marks the first time the Court has had to rule on a complaint of torture against a member of the LGBT+ community.
FACTS OF THE CASE
On 25th April 2008, Azul Rajus Marín, a transgender woman at the time living as a gay man, was detained without reason by police officers. She was beaten and verbally abused for her sexual orientation by three officers, who proceeded to rape her with a truncheon.
State prosecutors initially dismissed the complaint Ms Rojas Marín filed against the officers for rape, abuse of authority and torture. The prosecutors claimed that, firstly, there was no indication that the officers had raped Ms Rojas Marín, and secondly, that the acts lacked the necessary elements under Peruvian law to constitute torture. After prosecutors closed the investigation, the tribunal responsible for the case made the decision to close it.
The human rights groups REDRESS, PROMSEX, and the National Coordinator for Human Rights, brought the case to the attention of the Inter-American Court of Human Rights in 2009 – a Court dedicated to hearing cases concerning human rights abuses in Latin American countries.
OUTCOME OF THE CASE
The Court’s judgement was issued on the 12th March 2020, and made publicly accessible on the 6th April.
The Court found Peru internationally responsible for the violation of Ms Rojas Marín’s rights to personal liberty, personal integrity, privacy, not to be subjected to torture, and judicial protection. It was also held responsible for the violation of the rights of Ms Rojas Marín’s mother who died in 2017, and who suffered greatly due to the incident.
The Peruvian government was ordered to pay Ms Rojas Marín damages and provide her with psychological treatment, as well as adopt new protocols for investigating attacks against LGBT+ people.
The Court made a number of key findings, including that the definition of torture incorporates discrimination based on sexual orientation and gender identity. States therefore have a duty to investigate violence, and any discrimination that motivated it, towards the LGBT+ community.
It also noted that “in Peruvian society, strongly-held prejudices against the LGBT+ population existed both at the time of the events in question and continue today, and that in certain cases, these prejudices are expressed in acts of violence.”
SIGNIFICANCE OF THE DECISION
The Court’s decision has been praised as a significant step for LGBT+ rights in Peru, with one rights activist commenting that “it makes the State responsible for the violence and discrimination that (the LGBT+ community) has historically suffered and continues to suffer.”
The LGBT+ community face significant challenges in Peru; although transgender people may legally change their gender, gay marriage is not recognised. Furthermore, a 2015 study by the Peruvian government found that 90% of LGBT+ residents in and around the capital, Lima, had been victims of some type of violence, 19% of which was at the hands of State security agents.
The decision also came as transgender Peruvians were left vulnerable to invasive questioning by police, as new measures enacted to curb the coronavirus outbreak ordered that men and women could only leave their homes on separate days.
Ross is currently in his second year of studying law at St John’s College, University of Cambridge. He has a keen interest in the intersection between criminal law and international law, particularly where the rights of traditionally under-represented and marginalised groups are at risk.