Protecting the LGBTQI Community in Latin America

By: Jessica Skelly

In a landmark decision, the Inter-American Court of Human Rights ruled that the country of Peru was responsible for the kidnapping, rape, and torture of a gay man by police.[1] The decision is the first decision by the judicial institution involving abuse of the LGBTQ community.[2] The case is historic because it classifies the violence that Marin suffered as a member of the LGBTQ community as torture.[3]

The Inter-American Court of Human Rights, the Court that made the ruling, plays a judicial role in the Organization of American States and hears cases involving human rights abuses in Latin America.[4] It was established by the Organization of American States.[5] The Court has the authority to order criminal investigations and victim compensation as a result of offenses by member governments.[6] The Court also works with the Inter-American Commission of Human Rights, which has urged countries to decriminalize consensual same-sex sexual relations and to address abuse of LGBTQ communities.[7] Notably, this is not the first occasion the Court has addressed LGBTQ communities, generally. The other time the Court ruled on LGBTQ rights was in 2018, when the Court issued a landmark ruling that recognized same-sex marriage and trans rights in the Western hemisphere.[8]

The case at hand involves Azul Rojas Marin, who identified as a gay man at the time of the assault, and now identifies as a transgender woman.[9] The attack occurred in 2008, in a small town in northern Peru called Casa Grande.[10] In February of 2008, Marin was detained by police, taken to the station, and investigated.[11] The facts of the decision state that over the next six hours “she was forcibly stripped naked, beaten on several occasions, [subjected to] derogatory comments about her sexual orientation by state agents, and was victim of rape” with a baton.[12] She was finally released the next morning.[13] No reasoning for detainment is mentioned.

Soon after release, Marin reported the circumstances to national authorities.[14] However, Peruvian investigators ultimately decided that the circumstances did not constitute torture under Peruvian law, and closed off the possibility of assault charges, rape, and kidnapping.[15] According to Redress, which is a London-based human rights organization fighting for tortured survivors, the case was dismissed even though the prosecutors recognized significant evidence to open an investigation.[16]

However, Marin did not give up. With the help of local rights groups called Redress and Promsex, and Peru’s National Coordinator for Human Rights, Marin went to the Inter-American Court of Human Rights, who ruled in her favor.[17]

The ruling was issued on March 12, 2020 but was made public on April 6, 2020.[18] In its decision, the Court found that the acts constituted “an act of torture against the victim.”[19] Thus, the Court found that Peru violated her human rights.[20] Notably, the Court pointed that in Peru there existed “strong prejudices” against the LGBT population, and it was manifested in violent acts by the state agents.[21] The Court ultimately ordered Peru to pay restitution to Marin and her late mother, who died in 2017.[22] The damages were unspecified.[23] Marin’s mother is said to have suffered greatly due to the assault and its aftermath and passed away in 2017.[24] Additionally, the ruling ordered Peru to provide psychological treatment to the victim, adopt new protocols for investigating attacks on the LGBTQI community, and track statistics of violence against the community.[25]

Marin is quoted as having “no words to describe how I feel… After all that happened a Court finally believed by word.”[26]

A study in 2015 performed by the Peruvian government found that 90% of LGBTQI residents in and around the capital city, Lima, had been a victim of some type of violence, and of that violence, about 19% was at the hands of state security agents.[27]

The coordinator of strategic litigation at Promsex, one of the local rights who supported Marin, is quoted: “It is a sentence that should represent a before and after for the LGTBI community in Peru and in the region, since it establishes parameters for the proper investigation of crimes committed because of people's sexual orientation, identity or gender expression, be [it] real or perceived.”[28] Ultimately, the decision establishes the obligations of the nation states to protect LGBTQU people in acts of violence that are motivated by sexual orientation and gender expression.[29]

Notably, there has been a growing acceptance of LGBTQI people in Peru, although there are still challenges.[30] For example, in Peru, gay marriage is still not recognized.[31] However, trans people are allowed to change their gender legally.[32]

#Skelly #LGBTQI #LatinAmerica #Peru

[1] Donald Padgett, Peru Held Responsible for Police’s Anti-LGBTQ Rape, Torture, Advocate (April 14, 2020), https://www.advocate.com/crime/2020/4/14/peru-held-responsible-polices-rape-torture-lgbtq-person.

[2] Oscar Lopez, Top Americas court finds Peru responsible for torture of trans woman, Reuters (April 6, 2020), https://www.reuters.com/article/us-peru-rights-ruling-trfn/top-americas-court-finds-peru-responsible-for-torture-of-trans-woman-idUSKBN21O35L.

[3] Id.

[4] Padgett, supra note 1.

[5] Azul Rojas Marin: Peru found responsible for torture of LGBT person, BBC News (April 7, 2020), https://www.bbc.com/news/world-latin-america-52204222 [hereinafter BBC].

[6] Padgett, supra note 1.

[7] Michael Lavers, Peru found responsible for rape, torture of transgender woman, Washington Blade (April 14, 2020), https://www.washingtonblade.com/2020/04/14/peru-found-responsible-for-rape-torture-of-transgender-woman/.

[8] Id.

[9] Padgett, supra note 1.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Muri Assuncao, Top human rights court finds Peru responsible for raping, torturing transgender woman, Daily News (April 8, 2020), https://www.nydailynews.com/news/world/ny-human-rights-court-peru-responsible-trans-woman-azul-20200408-rhqeyvjhpre6pembyubavnyhj4-story.html.

[17] Lopez, supra note 2.

[18] Oscar Lopez, Peru is responsible for rape and torture of trans woman, rules human rights court, Independent (April 7, 2020), https://www.independent.co.uk/news/world/americas/peru-trans-woman-torture-rape-detention-azul-rojas-marin-human-rights-a9451871.html.

[19] Assuncao, supra note 16.

[20] Id.

[21] BBC, supra note 5.

[22] Padgett, supra note 1.

[23] BBC, supra note 5.

[24] Padgett, supra note 1.

[25] Lopez, supra note 2.

[26] BBC, supra note 5.

[27] Lopez, supra note 2.

[28] Padgett, supra note 1.

[29] Id.

[30] Assuncao, supra note 16.

[31] Lopez, supra note 2.

[32] Id.