An 11-year-old girl was repeatedly raped by a 34-year-old man. As a result, she became pregnant and consequently attempted to commit suicide by jumping from a building. She survived the suicide attempt but sustained serious injuries which required emergency surgery. The hospital declined to perform the surgery based on the risk posed to the pregnancy, and refused to perform an abortion despite that therapeutic abortion is legal in Peru and that the pregnancy posed a danger to her physical and mental health. As a consequence, she was completely paralyzed from the neck down. The Center for Reproductive Rights and the Center for the Promotion and Defense of Sexual and Reproductive Rights filed a human rights petition on behalf of her against Peru before CEDAW alleging violations of Articles 1, 2 (c) and (f), 3, 5, 12 and 16 (e) of CEDAW by failing to implement measures that guarantee a woman’s ability to obtain essential reproductive health services in a timely manner. The Committee upheld the claim and asked Peru to provide L.C. reparation, including physical and mental rehabilitation, and issue necessary measures so that no other woman is denied her right to comprehensive healthcare and therapeutic abortion. This decision demonstrate a willingness on the part of the CEDAW to view the denial of reproductive rights as a discrimination issue and is flagged as an innovative juridical resource for reforming abortion laws.
Peru
International Case Law
Karen Noelia Llantov Huaman v. Peru Human Rights Committee (2005)
Karen Noelia Llantoy Huamán, a 17-year-old Peruvian, decided to terminate her pregnancy when she discovered that carrying her anencephalic fetus to term would pose serious risks to her health. When she arrived at Archbishop Loayza National Hospital in Lima to obtain the abortion procedure, the hospital director refused to allow the procedure because article 119 of the Criminal Code permitted therapeutic abortions solely when termination was the only way of saving the mother’s life or avoiding serious and permanent damage to her health. Huamán gave birth to an anencephalic daughter who died four days later, causing Huamán to fall into a deep depression. In her complaint to the Committee, Huamán asserted that by forcing her to continue her pregnancy, the hospital caused her not only physical pain but mental suffering in violation of article 7 of the Covenant on Civil and Political Rights prohibiting cruel and inhuman treatment. Huamán also cited a violation of article 17, which protects women from interference in decisions that affect their bodies, lives, and opportunity to exercise their reproductive rights. Finally, she claimed that Peru’s failure to adopt economic, social, and cultural measures to safeguard her rights under article 17 was tantamount to a violation of article 24 of the Covenant. The Committee concluded that the State’s refusal to allow Huamán to obtain a therapeutic abortion was the direct cause of the suffering she experienced, and that the protection from physical pain and mental suffering under article 7 is particularly important in the case of minors. The Committee noted that Huamán’s case presented the conditions for a lawful abortion, and the refusal to act in accordance with her wishes to terminate the pregnancy equated to a violation of article 17. Finally, in the absence of any information from Peru on Huamán’s claim that she did not receive the medical and psychological support necessary during her pregnancy, the Committee found that the facts presented reveal a violation of article 24 which guarantees State protection to minors.
K.L. v. Peru Human Rights Committee (2003)
HRC held that Peruvian government violated Article 7 (the right to be free from cruel, inhumane and degrading treatment), Article 17 (the right to privacy) and Article 24 (special protection of the rights of a minor) when it denied 17 year-old the right to a legal therapeutic abortion.
Maria Mamerita Mestanza Chavez v. Peru Inter-American Commission on Human Rights (2003)
Forced sterilization. A complaint was raised against Peru for the forced sterilization of Mestanza Chavez, forced sterilization which eventually caused her death. The complaint alleged that she was pressured into sterilization as part of a government objective to curve the population numbers of poor, Indian and rural women. After the sterilization, Mestanza Chavez fell ill from complications and eventually died. The complaint alleged the violation of Articles 4, 5, 1, and 24 of the American Convention on Human Rights, Articles 3, 4, 7, 8, and 9 of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women, Articles 3 and 10 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights, and Articles 12 and 14(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The parties reached a friendly settlement under which Peru agreed to investigate and punish those responsible for the forced sterilization, pay the victim's next of kin moral and corollary damages, pay the victim's medical expenses to her next of kin, provide her children with free primary, provide secondary and public university education to the victim's children, and pay money for the victim's spouse to purchase a home. Peru also agreed to amend its reproductive laws to eliminate any discriminatory policies within such laws.
Cantoral-Huamaní and García-Santa Cruz v. Peru Inter-American Court of Human Rights (2007)
The IACHR lodged an application against Peru for the violation, among other things, of the right to free association. Garcia-Santa Cruz was founder of a women's organization in a mining community, and provided support to the families of miners during a mining strike. Garcia-Santa Cruz was executed, and the Court held that her execution was an attempt to intimidate miners into not unionizing. The Court held this type of intimidation to be a violation of the freedom of association (Article 16 of the American Convention). The Court also found Peru to have violated Articles 1(1), 4, 5, 7, 8(1) and 25 of the American Convention on Human Rights. The Court ordered Peru to investigate and punish those who carried out these violations, to publicly acknowledge international responsibility for these violations, to provide psychological services to the victims' next of kin, and to pay pecuniary and non-pecuniary damages and costs.
De La Cruz-Flores v. Peru Inter-American Court of Human Rights (2004)
De La Cruz-Flores was detained, charged and convicted by a "faceless judge" for the crime of terrorism. In 2003, laws were passed ordering the annulment of judgments made by secret judges and practitioners. De La Cruz-Flores, however, remained in captivity, captivity she argued was arbitrary. The Court held that Peru violated De La Cruz-Flores's rights under Articles 1(1), 5, 7 and 8 of the American Convention on Human Rights. The Court ordered Peru to reinstate De La Cruz-Flores in her previous employment, grant her any previous retirement benefits, pay her costs, pecuniary and non-pecuniary damages, grant her medical and psychological treatment and provide her with a grant for professional development.
Lori Berenson-Mejía v. Peru Inter-American Court of Human Rights (2004)
The IACHR submitted an application to the Court to determine whether Peru violated Articles 1(1), 5, 8 and 9 of the American Convention on Human Rights to the detriment of Berenson-Mejia in relation to proceedings that took place against her before both military and civil courts, as well as to the inhumane conditions of detention to which she was subjected. The Court held that Peru violated Berenson-Mejia's right to humane treatment (Articles 5(1), 5(2) and 5(6) of the American Convention on Human Rights) due to the conditions she faced while incarcerated, violated Articles 1(1), 2, 8(1), 8(2), 8(2)(b)-(d), (f), and (h), 8(5) in relation to her military trial, but not to her civil trial. The Court ordered Peru to provide Berenson-Mejia with adequate medical care, to discharge the reparation established against her in favor of the State in her civil trial, to improve the conditions at the prison in which she was detained to meet international standards, and to pay costs and expenses.
María Elena Loayza-Tamayo v. Peru Inter-American Court of Human Rights (1997)
Loayza-Tamayo was detained by the National Counter-Terrorism Bureau ("DINCOTE"). While detained, she was threatened with torture and was repeatedly raped in an effort to force her to confess to belonging to the Peruvian Communist Party ("Shining Path"). She was charged and found guilty of treason and was held in solitary confinement. She filed a complaint with the Inter-American Commission of Human Rights, alleging numerous human rights violations and requesting her release. The Commission, unable to reach a decision, submitted the case to the Inter-American Court. The Court held that Peru violated Articles 5, 7, 8(1), 8(2) and 8(4) of the American Convention on Human Rights, in relation to Articles 25 and 1(1) thereof. The Court ordered that Loayza-Tamayo be released, and that she and her next of kin be compensated for any relevant expenses.
Miguel Castro-Castro Prison v. Peru Inter-American Court of Human Rights (2006)
Approximately 135 female prison inmates (along with about 450 male inmates) were subjected to violent attacks by guards and other state agents over the course of three days at the Castro-Castro maximum security prison. Some female inmates were humiliated, stripped-down and subjected to further physical and psychological abuse. Many inmates were held in solitary confinement, were denied medical care, and were kept from communicating with their families or their attorneys. The Court found Peru to have violated Articles 4, 5(1), 5(2), 8(1) and 25 of the American Convention on Human Rights, Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture, and Article 7(b) of the Inter-American Convention to Prevent, Punish and Eradicate Violence against Women. The Court ordered Peru to investigate and punish those responsible for these violations, to return the bodies of any inmates killed to their next of kin, to publicly acknowledge and apologize for these violations, to provide at no cost medical and psychological treatment to the victimized inmates and next of kin, and to pay reparations to the victims or their next of kin.
Ato del Avellanal v. Peru Human Rights Committee (1988)
In 1978, the court of first instance ruled in favor of Graciela Ato del Avellanal on a claim for overdue rent owed to her by tenants of two apartment buildings she owned in Lima. The Superior Court reversed the judgment in 1980 because article 168 of the Peruvian Civil Code stated that when a woman is married, only the husband is entitled to represent matrimonial property before the Courts; therefore, Avellanal did not herself have standing to sue. Avellanal appealed to the Peruvian Supreme Court, arguing that the Peruvian Magna Carta and the Peruvian Constitution guarantee equal rights to both men and women. After the Supreme Court upheld the lower court’s decision, Avellanal interposed the recourse of amparo (an order to guarantee protection of the complainant’s constitutional rights), claiming a violation of article 2(2) of Peru’s Constitution, which the Supreme Court rejected. In her complaint to the Committee, Avellanal cited violations on the ground that Peru discriminated against her because she was a woman. With respect to the requirements set forth in article 14 of the Covenant on Civil and Political Rights that all persons shall be equal before the courts and tribunals, the Committee noted that the Superior Court reversed the lower court’s decision on the sole ground that Avellanal was a woman and did not have standing as such under Peruvian Civil Code article 168. The Committee also concluded that the facts before it disclosed a violation of article 3 of the Covenant which requires the State party to undertake “to ensure the equal right of men and women to the enjoyment of all civil and political rights,” and article 26 which provides that all persons are equal before the law and are entitled to its protection.
J. v. Peru, Report No. 76/11, Case 11,769A Inter-American Commission on Human Rights (2011)
In April 1992, the Petitioner was arrested during a raid by DINCOTE, the counter-terrorism branch of the Peruvian police. The police believed that the Petitioner was a member of the Sendero Luminoso, a communist militant group in Peru. During the raid, the Petitioner was blindfolded, beaten and raped by some of the police officers. When she protested the sexual violence, the officers beat and kicked her. After the raid, the officers took the Petitioner to a DINCOTE facility, where she was detained for more than a year in cells infested with roaches and rats. While detained, DINCOTE officers deprived the Petitioner of access to her attorney, forced her to urinate in a can in the presence of two male officers, and doused her with cold water if she resisted their orders. The Inter-American Commission on Human Rights (the “IACHR”) found that the Peru violated the Petitioner’s rights by failing to conduct a serious investigation of her claims, even though her claims “fit a pattern known to have existed at that time” and involved violence (¶ 207). According to the IACHR, Peru had a duty to investigate the Petitioner's claims of rape, including ordering medical tests and examinations, to either corroborate or disprove her claims. The IACHR concluded that Peru, inter alia, violated the rights recognized in articles 5(1), 5(2) and 11 of the American Convention on Human Rights (the “American Convention”), as well as Article 1 and 6 of the Inter-American Convention to Prevent and Punish Torture. Noting its well-established precedent that “rape committed by members of the security forces of a state against the civilian population constitutes, in any situation, a serious violation of the human rights protected by Articles 5 and 11 of the American Convention,” the IACHR established that rape is particularly reprehensible when it perpetrated by a state agent against a detainee, because of the victim’s vulnerability and the agent’s abuse of power (¶ 188). In addition, noting that various reports had shown a pattern of rape and sexual abuse against women by members of Peru’s security forces, the IACHR found that such sexual violence was part of a “broader context of discrimination against women” (¶ 65).
Domestic Case Law
Exp. No. 018-96-I/TC Constitutional Tribunal (2007)
A public defender challenged the constitutionality of Article 337 of the Civil Code, which stated that in domestic disputes, a judge could take into consideration the education, custom and conduct of both spouses when dealing with cases of cruelty, dishonest behavior or grave injury. He argued that such a law violated the constitutional right of equality before the law. The Constitutional Tribunal agreed in part and disagreed in part, holding that such considerations could only be examined when dealing with cases of grave injury.
Exp. No.1348-2004-AA/TC Constitutional Tribunal (2004)
A male schoolteacher was accused of sexually abusing one of his female students, a third-grader, and was removed from his job pending the outcome of his trial. He filed a constitutional challenge to his removal, arguing that it violated his due process right to a presumption of innocence, as enumerated in Article 2 of the Peruvian Political Constitution. The court of first instance agreed with the teacher, ordering the school system to reinstate him. The school system argued that the Law of Teachers ("Ley de Profesorado") allows for termination of a teacher without a conviction. The Constitutional Tribunal held that while professionals normally cannot be removed from a job until proven guilty, the interest of protecting minor children outweighed the interest of the teacher in this case. The Court held that the teacher's removal was consistent with Article 34 of the Convention on the Rights of the Child, and Article 2 of the Interamerican Convention on the Prevention, Punishment and Eradication of Violence Against Women, as well as numerous other Peruvian laws.