L.N.P. v Argentine Republic, Comm. No. 1610/2007, UN Doc. CCPR/C/102/D/1610/2007 (2011)
The Human Rights Committee found that Argentina’s treatment of a 15 year-old rape survivor violated articles 2(3), 3, 7, 14(1), 17, 24 and 26 of the International Covenant of Civil and Political Rights.
L.N.P., an Argentinian of indigenous origin, claimed three young men raped her soon after she turned 15 years of age. She reported the rape to local police immediately and was subsequently sent to the local medical centre. L.N.P. claimed that staff at the police station and medical centre kept her waiting for hours, and that police failed to record a complaint of rape, despite her being in tears and covered in blood. The author also claimed that the medical staff subjected her to painful and unnecessary tests, including to ascertain her virginity.
The three accused were eventually arrested and put on trial. A social worker was appointed as part of the judicial investigation to “enquire into lifestyles, habits and any other factors of interest for the investigation.” The author alleged, however, that the social worker only investigated her, ignoring the three accused. The author further alleged that she was never informed of her right to appear as a plaintiff and proceedings were conducted without an interpreter.
The accused were eventually acquitted of raping L.N.P. Although the trial court found that the alleged sexual acts had been proven, it concluded that it had not been established that they occurred without the author’s consent. The fact that the author was not a virgin was a decisive factor in the court’s finding. The court also made repeated enquiries as to whether the author had a boyfriend and was a sex worker.
After learning of the acquittal almost two year later, L.N.P. submitted a communication to the Human Rights Committee, alleging violations of articles 3, 7, 14(1), 17, 24 and 26 of the ICCPR.
Right to non-discrimination (ICCPR, art 26)
The Committee concluded that Argentina had discriminated against L.N.P. on the basis of her sex and ethnicity, in violation of article 26 of the Covenant. It noted that the Court based its assessment of whether or not the author consented to the sexual conduct on her sex life, including whether or not she was virgin and a prostitute. It explained that “[t]he court … invoked discriminatory and offensive criteria, such as ‘the presence of long-standing defloration’ of the author to conclude that a lack of consent to the sexual act had not been demonstrated.” Her treatment by the police and medical staff, which included subjecting her to painful and unnecessary treatment, inter alia, to ascertain whether or not she was a virgin, constituted discriminatory treatment aimed at casting doubt on the morality of the victim.
The Committee hinted that the decision of the trial court was based on gender stereotypes, though it stopped short of naming the specific stereotypes in operation. The HRC’s decision in this regard, stands in juxtaposition to the recent decision of the Committee on the Elimination of Discrimination against Women in Karen Tayag Vertido v. The Philippines, which expressly names the gender stereotypes that the trial judge relied upon in acquitting the accused of rape.
Right to such measures of protection as are required by status as minor (ICCPR, art 24)
The HRC determined that the court, police and medical staff failed to adopt measures of protection as required by the author’s status as a minor, in violation of article 24 of the ICCPR.
Equality before the law (ICCPR, art 14(1))
According to the Committee, the failure to inform the author of her right to act as a plaintiff, which prevented her from participating as a party to the proceedings and being notified of the acquittal, as well as irregularities with the court’s procedures, such as the failure to provide an interpreter, constituted a violation of the right to equality before the law.
Freedom from cruel, inhuman or degrading treatment (ICCPR, art 7)
The HRC determined that the physical and mental suffering the author experienced because of how she was treated by police and medical staff after being raped, as well as by the court, amounted to a violation of the freedom from cruel, inhuman or degrading treatment.
Freedom from arbitrary interference in private life (ICCPR, art 17)
The HRC concluded that repeated enquiries made by the social worker, medical staff and the court about the author’s sex life and morality constituted a violation of freedom from arbitrary interference in private life. Recalling its General Comment No. 28 on equality, the HRC reiterated that “interference, in the sense in which the term is used in article 17, arises when the sexual life of a woman is taken into consideration in deciding the extent of her legal rights and protections, including protection against rape.”
Right to an effective remedy (ICCPR, art 3(2) read in conjunction with arts 3, 7, 14(1), 17, 24, 26)
Finally, the HRC determined that Argentina had failed to provide access to an effective remedy, as there was no remedy available to the author that would have enabled her to address the violations of her rights by the trial court.
Relevance to the Victorian Charter
The Victorian Charter does not contain an express prohibition against gender-based violence against women. It does, however, protect almost all of the rights implicated in the L.N.P. decision. Criminal investigations and legal proceedings, including in relation to rape, must be conducted in accordance with the rights protected under the Charter, including the rights to non-discrimination (s 8(2)) and equality before the law (s 8(3)) and the freedoms from cruel, inhuman or degrading treatment (s 10) and from arbitrary interference in private life (s 13). Public authorities are also under an obligation to ensure that victims / survivors of rape, who are minors, receive such protection as is in his or her best interests and is needed by him or her by reason of being their status as minors (s 17(2)).
The decision can be found online at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/454/32/PDF/G1145432.pdf?OpenElement
Simone Cusack is a human rights consultant and author (with Rebecca J Cook) of ‘Gender Stereotyping: Transnational Legal Perspectives’ (2010).