Press Release

IACHR Evokes Inter-American Standards in Reaction to a Court Ruling in Argentina

June 3, 2015

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Washington, D.C. - In light of a ruling issued by the Criminal Court of Cassation of Buenos Aires Province, in Argentina, the Inter-American Commission on Human Rights (IACHR) believes it is important to call attention to inter-American standards that apply to the subject in question. In the ruling, the court considered a 6-year-old boy’s purported sexual orientation, as well as previous episodes of abuse and abandonment he had suffered, to be extenuating circumstances in imposing sentence for sexual abuse.

Information received by the IACHR indicates that the ruling by the appeals court judges changed the category of offense from “gravely outrageous sexual abuse” to “simple sexual abuse”; eliminated the aggravating cause of “exploiting the victim’s defenselessness”; and reduced the prison sentence from six years to three years and two months. The grounds that were laid out in the decision raise the issue of the victim’s purported sexual orientation, alleging that the 6-year-old boy had already made his “sexual choice,” as there was testimony linking him to sexual acts in exchange for money (“dishonorable proposal”) and “transvestism.” The judges then determined that while the accused had engaged in “lewd behaviors” with the boy, the elements were not in place to convict him of “gravely outrageous sexual abuse.” In justifying this determination, the judge who wrote the majority opinion—an opinion also signed by the second judge—stated, “In this regard, I am affected by a profound doubt based on that familiarity the child had already demonstrated in reference to his sexual disposition.” Immediately thereafter, he concluded: “In any case and at that young age, he was making a precocious choice of that sexuality before the complacent eyes of those who could have (and should have) come to his aid in that process.”

The IACHR welcomes the statements of condemnation made by officials of the Argentine government, and notes that the Province of Buenos Aires Supreme Court has agreed to hear a special appeal and that the Attorney General’s Office asked that the case be reserved for federal court, which means the case could reach the national Supreme Court. The Commission will continue to follow the case.

Under international human rights law, the fact that a child has been a victim of sexual abuse is not grounds for stigmatizing the child and does not lessen the gravity of other acts of sexual violence against the child or imply a lesser protection of his or rights. Moreover, a person’s sexual orientation or gender identity or expression should not be considered relevant to extenuate or justify the seriousness of criminal conduct committed against that person, even more so when it involves child sexual abuse. International human rights law establishes that children are entitled to a greater degree of protection, as is anyone in an especially vulnerable situation, such as a child who is a victim of sexual abuse.

In its report Guarantees for the Independence of Justice Operators, the IACHR recommended that the States adopt measures to ensure ongoing, accessible training for justice operators. Specifically, the IACHR recommended that States give priority to implementing specialized training for judges, prosecutors, and public defenders regarding the rights of groups that, due to their vulnerable situation, warrant special treatment. That is essential for cases such as this one, which calls for a specialized approach concerning the rights of victims of sexual crimes, children, adolescents, and LGBT persons.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 059/15