Case #41.770 - “C.A.”, Argentina, Buenos Aires Criminal and Correctional Court, 2011.
The victim was twelve to thirteen years old when she had sexual relations with the defendant. There was no presumption of sexual immaturity. It had to be proven by evidence and expert testimony. In this case, the testimony of experts, text message evidence, and the testimony of the victim demonstrated that she was not mature enough to consent to sex. While the outcome of this case was a positive one, the general Argentinean attitude towards statutory rape is not: sexual immaturity must be proven regardless of age.
Matter of N., R. F. Sexual Abuse, Argentina, San Carlos de Bariloche Supreme Court, 2010.
A seventeen-year old girl won her court petition for an abortion despite the fact that there was no issue of fetus viability. The minor had suffered repeated sexual abuse at the hands of her father and uncle for the past six years. The court reaffirmed constitutional and human rights protections for fetuses against abortions, but explained that the right to life is not protected from conception to death with the same intensity. In this case, the fact that the pregnant minor had suffered repeated sexual abuse, had passed a psychological evaluation, and was only 11 weeks pregnant were sufficient reasons to override the presumption of protection for the fetus.
L.M.R. v. Argentina, Argentina, Human Rights Committee, 2007.
VDA, on behalf of her daughter LMR, filed a petition alleging violations of LMR’s rights under the International Covenant on Civil and Political Rights (ICCPR). The petition alleged violations of LMR’s right under article 2 (right to protection from state against violations of the rights within the ICCPR), article 3 (right to be free from discrimination), article 7 (to freedom from torture or other cruel, inhuman or degrading treatment), article 17 (freedom from arbitrary interference with privacy, family, home or correspondence, or unlawful attacks on honor or reputation), and article 18 (right to freedom of thought, conscience and religion).
At the time of the incident, LMR was 20 years old but had permanent mental disability with a mental age between 8 and 10 years old. When LMR’s mother brought her to hospital after LMR complained of pains, she discovered that LMR was raped by her uncle and was 14.5 weeks pregnant. Under section 82.6 of the Argentinean Criminal Code, abortion is legal if the pregnancy is the result of the rape of a mentally impaired woman. LMR filed a police complaint and scheduled an abortion, but the abortion was prevented by an injunction against the hospital. LMR appealed unsuccessfully to the Civil Court. The Supreme Court of Buenos Aires ruled the abortion could take place. However, under pressure from anti-abortion groups, the hospital refused to perform the abortion because her pregnancy was too far advanced. LMR eventually obtained an illegal abortion.
Article 2 of the Optional Protocol to the ICCPR creates an obligation for state parties to protect individuals’ rights under the Covenant. The United Nations Human Rights Committee found that court hearings caused LMR’s abortion to be delayed to the point that she required an illegal abortion. The Committee found that although forcing LRM to endure a pregnancy that resulted from rape did not constitute torture under Article 7, it did cause physical and emotional suffering and therefore still constituted a violation of LRM’s rights under Article 7. Article 7 protects individuals from mental as well as physical suffering, and the Committee saw the violation as particularly serious given LRM’s status as a person with a disability. Further, the Committee found that because the decision of whether to proceed with an abortion should only have been made between the patient and her physician, LRM’s right to privacy under Article 17 was violated. Even though the Supreme Court ruled in favor of LRM’s abortion, this litigation process was so prolonged that LRM’s pregnancy had advanced to the stage that her physician would no longer perform the abortion. This fact, the Committee reasoned, amounted to a violation of Article 2, because LRM did not, in fact, have access to an effective remedy (the abortion) and was forced to obtain one illegally.
This case contributed to a growing consensus in international law that restricting women’s access to an abortion may be considered torture or cruel, inhuman or degrading treatment under Article 7 of the ICCPR. It also demonstrated that obstructing access to legal, elective medical procedures may violate the Covenant. Additionally, it indicated that the Court will analyze the right of a person with a disability under Article 7 in a way which heightens the recognized impact of the violation.
L.N.P. v. Argentina, Argentina, Human Rights Committee, 2007.
A 15-year-old girl, P, was allegedly sexually assaulted by three men. She immediately reported the attack to the police, but was kept waiting for hours at the police station and a medical center before being performed anal and vaginal palpations which caused her intense pain and despite complaining the sole anal nature of the attack. A social worker was sent to interview P's neighbors and relatives about her sexual history and morals during the investigation, leasing aside the three accused. The three accused were acquitted following a trial solely in Spanish despite the first language of P and several of the witnesses was Qom, and in which great reliance was placed on P's sexual history by the prosecution and the judge. P was not notified of her rights to participate in the trial nor of the outcome of the trial and she only became aware of the acquittal after two years and was unable to appeal. The Human Rights Committee found violations of Articles 2(3), 3, 7, 14(1), 17, 24, 26 of the Convention. The Committee found that the police, medical examiner and the court did not provide appropriate protections to P's age, discriminated against her in the emphasis that was placed on her sexual history, and denied her right of access to the courts when she was not informed of her legal rights. It also found that the events at the police station and the medical examination constituted inhumane or degrading treatment, and that the investigation had arbitrarily interfered with P's private life. The Committee called on the State to guarantee access for victims, including victims of sexual assault, to the courts in conditions of equality in the future. However the operative gender stereotypes, including that as a young women from a marginalized ethnic minority group, she was sexually promiscuous, which contributed towards the acquittal of the accused of the rape were unnamed, leaving the role of the stereotypes in discriminating against similar victims and their rights unaddressed.
Y., C. I. c/ L., B. A., Argentina, Fallo de la Sala F de la Cámara Nacional en lo Civil, 2007.
Reviewing a trial court decision that granted a divorce based on the actions of both parties, the Appellate Court rejected a husband's suit for divorce, and instead granted the divorce based on the wife's counter suit, holding that the marriage failed due to the husband's domestic abuse of his wife.
B., M.P. v. G., R.A., Argentina, Lomas de Zamora Family Court #3, 2006.
M.P.B. suffered repeated domestic violence and abuse at the hands of her husband R.A.G. In civil suit, M.P.B. was granted exclusive control of the spousal home and custody of her children. The court imposed a restraining order on R.A.G.; he was unable to go within 300 meters of the family home, his wife’s work, or the 9 and 12 year-old children’s school. This case is fairly punitive toward the father by Argentinean standards. The judge cited both Argentinean statutes and international human rights law in arriving at her decision.
Matter of S., R. A., E. O. A. y A., R. A., Argentina, Buenos Aires Supreme Court, 2006.
In this case, a defendant who had been sentenced to twenty five years for kidnapping, among other crimes, appealed his conviction, contending that he had committed lesser kidnapping (plagio) instead of the more serious crime of premeditated kidnapping (rapto) of which he was convicted. The court decided to uphold his conviction, despite the fact that there was only coercion involved. The “lessening of sexual integrity” against the will of the victims made the defendant guilty of the greater crime of rapto under article 130 of the Argentinean Penal Code.
OTS v. No Defendant, Argentina, Mendoza Supreme Court, 2006.
A mentally handicapped young woman was allowed to have an abortion per article 86 of the Argentinean Penal Code. The woman was impregnated through rape. Because of the woman’s mental disorders and medication issues, it was impossible to ensure a viable child and a healthy mother. This decision also declared that article 86, which allows for abortion in the case of non-viability, can be employed at a doctor’s discretion without formal court proceedings.
Yapura, Gloria Catalina v. Nuevo Hospital El Milagro y Provincia de Salta, Argentina, Supreme Court, 2006.
Plaintiff sought an order requiring a hospital to perform a tubal litigation on her after she delivered her fourth child. Plaintiff lived in poverty and neither she nor her husband was employed. The trial and appellate courts refused to grant the order, but the Supreme Court remanded the case for the lower court, citing the lower court's failure to examine the facts of the case.
Fallo c85566, Argentina, Supreme Court of Buenos Aires, 2002.
A married woman with three children was allowed to undergo a therapeutic abortion for an anencephalic fetus for health reasons. To do so, she had to file a request with the hospital and the court, which had a formal hearing to determine that the rights of the fetus were being respected and that the procedure was strictly for health reasons. The decision was appealed to a higher court, which affirmed the family court’s decision. They cited international law to support the decision, citing both the mother’s rights to raise a family as she saw fit and the rights of the anencephalic fetus. Along with Argentinean Supreme Court, the most cited laws were the Convención de los Derechos del Niño and the Convención Americana sobre los Derechos Humanos. While this ruling may not seem progressive by American standards, abortion is still essentially outlawed in Argentina.
Luque, Guillermo Daniel y Tula, Luis Raúl s/ homicidio preterintencional, Argentina, Supreme Court, 2001.
Defendant was convicted as accomplice in a rape and murder while under the influence of narcotics. The regional appellate court affirmed the trial court's ruling, but the national Supreme Court, while upholding the conviction, held that Article 13 of Law 23.737, which calls for heavier sentences when crimes are committed under the influence of narcotics, was not applicable in this case. The case was remanded to the regional appellate court.
Maria Merciadri de Morini v. Argentina, Argentina, Inter-American Commission on Human Rights, 2001.
Maria Merciadri de Morini v. Argentina, Argentina, Inter-American Commission on Human Rights, 2001. Gender Discrimination, Political Rights, Equal Protection, Due Process. Ms. Maria Merciadri de Morini’s political party produced an election ballot that violated Argentine law. The law required election ballots to include 30% of women candidates. Ms. Merciadri de Morini’s political party only placed one woman out of five candidates where, by law, there should have been at least two women on the ballot. Ms. Merciadri de Morini brought suit against the political party for the violation of the voting law. Ms. Merciadri de Morini attempted to exhaust domestic remedies but the Argentine domestic courts violated her rights to due process and equal protection by continuously rejecting her claim. Ms. Merciadri de Morini petitioned her case to IACHR. Argentina ultimately responded to the allegation and dictated to the IACHR that the two parties had come to a friendly settlement. Argentina changed the way it regulated the voting law and recognized the violations against all women including Ms. Merciadri de Morini. The Inter-American Commission on Human Rights approved the friendly settlement between Ms. Merciadri de Morini and Argentina.
X and Y v. Argentina, Argentina, Inter-American Commission on Human Rights, 1996.
Vaginal inspections for visits to family inmates. A complaint was brought against Argentina by a woman and her 13-year old daughter who were routinely subjected to vaginal inspections when they would visit the woman's husband (and girl's father) at a prison. The complaint alleged that such inspections violated the "American Convention as it offends the dignity of the persons subjected to such a procedure (Article 11), and is a degrading penal measure which extends beyond the person condemned or on trial (Article 5.3) and, furthermore, discriminates against women (Article 24), in relation to Article 1.1." Argentina argued that such inspections were reasonably necessary and conducted with as little intrusion as possible by female guards. The Commission opined that such an inspection should not occur unless absolutely necessary. In this case, the Court found that the procedure was not absolutely necessary as there were alternatives that could achieve the same objective. The Commission also held that in cases where such an inspection was absolutely necessary, they should only be carried out by pursuant to a judicial order, and by qualified medical personnel. The Commission found the inspections in this case to violate Articles 5, 11, 17, 19 of the American Convention on Human Rights.
Vistos los autos: “Review of fact by an Appeal court in the cause of Anonymous” , Argentina, Supreme Court, .
Anonymous had been continually sexually abused and raped by her father since 2001 at the age of twelve. An Argentinean trial court had sentenced the father to eighteen years in prison for abusing his daughter, but this decision was overturned by an Argentinean appellate court, believing the father was not clearly guilty and his punishment was, thus, incommensurate with the crime. The Supreme Court overturned the appellate court decision, stating that there was clear guilt on the father’s part, repeated cries for help by Anonymous, and that the appellate court showed a lack of regard for the facts and the suffering of Anonymous. The case was remanded for new sentencing.