Author: Mariana del Pilar Apaza Calderon
San Martin de Porres University, Lima

Introduction:

In a complex world where justice often seems elusive, Angulo Losada vs. Bolivia case stands as a stark reminder of the need to handle sexual violence cases with precision and care. At its core is Brisa, a young girl who endured a harrowing ordeal. She later found the legal system failed to provide the protection and support she needed. As Peru faces similar challenges, it’s vital to extract insights from this case.

Specifically, we must focus on the Inter-American Court of Human Rights’ (IACtHR) guidelines in the case of Losada vs. Bolivia for forensic examinations and victim interviews in sexual violence investigations, particularly those that involve children and adolescents. These guidelines act as a navigational chart. They offer direction on how healthcare professionals should responsibly uncover the truth. They also guide justice administrators to assist those who have suffered harm.

Background of Losada v Bolivia:

In 1990, Brisa and her family moved to Bolivia. Later, Brisa’s cousin E.G.A, aged 26 at the time, came for an internship in veterinary science. During his stay with the family, E.G.A. took care of Brisa and her young sisters. 16 years-old Brisa later claimed that her cousin raper her between October 2001 and May 2002.

In July 2002, Brisa’s father accused E.G.A. of rape. In the first trial, domestic court convicted E.G.A for statutory rape. The court punished him with seven years of imprisonment. However, in 2003, his conviction was later overturned and a new trial was ordered in a different court. In the second trial, which took place in 2005, E.G.A was acquitted. Then, in 2007, the mentioned decision was annulled, and a retrial was ordered by another court.

In the third trial of 2008, E.G.A. failed to appear at the hearings. This lead the Court to order his arrest and suspend the trial. In July 2018, Colombia’s international police notified Bolivia about E.G.A.’s possible presence in Colombia. It initiated efforts to capture and extradite him, which ultimately led to his capture in Colombia in February 2022.

Nonetheless, Colombia canceled the arrest warrant against E.D.A. and set him free because, under their law, a lot of time had gone by, making it impossible to prosecute him for Brisa’s case anymore[1].

Guidelines in Losada v Bolivia:

In cases like V.R.P., V.C.P, and others vs. Nicaragua, the IACtHR emphasized that States must take precise and strict actions in cases of sexual violence against women. This is especially necessary if the victim is a child or an adolescent, as dictated by Article 19 of the American Convention on Human Rights. This responsibility arises from the acknowledged vulnerability of young people, particularly girls, to human rights violations. It is further exacerbated by historical discrimination, leading to increased occurrences of sexual violence, specifically within familial contexts. Hence, in cases involving girls who have experienced sexual violence and are engaged in legal proceedings, there is an increased duty of protection[2].

For these reasons, in Losada vs. Bolivia, the Court assessed whether the investigative procedures experienced by Brisa met its standards. This careful examination took into consideration the gender and age of Brisa. Her dual status as a girl and a minor during the events made her particularly susceptible, both to the perpetrator of the crime and the subsequent legal processes. Furthermore, this legal analysis presented an opportunity to reaffirm and elaborate on established standards for conducting forensic medical exams and victim interviews. Both of these are fundamental procedures for determining sexual violence against a child or adolescent.

Forensic Medical Exams:

The forensic exams conducted on Brisa raised significant concerns. During the initial examination, a male doctor and five male students were present despite Brisa’s objections. Several issues emerged, including a lack of clear consent. The absence of a support person for Brisa, and the use of force against her wishes were also problematic. These factors contributed to the Court’s conclusion that Bolivia conducted the exam improperly, potentially causing further harm to Brisa.

Based on the findings in the case, the Court established critical guidelines.

Guidelines in Losada v Bolivia:

• Qualified Medical Professionals: Trained medical professionals should attend to child victims to ensure a safe and non-intimidating environment during examinations.
• Limited Personnel: Only strictly necessary personnel should be present during sensitive procedures, particularly in cases involving child victims.
• Single Examination: Ideally, a qualified medical expert should conduct gynecological examinations only once to minimize retraumatization.
• Informed Consent: Obtaining informed consent from the victim before any examination is essential.
• Avoiding Use of Force: The use of force during examinations, especially when the victim expresses discomfort, constitutes institutional violence. It is crucial to respect the victim’s boundaries and avoid the use of force.
• Avoidance of Unnecessary Examinations: The State should avoid unnecessary repeated examinations as they can be distressing and potentially harmful. Conduct only relevant and essential examinations.

Victim Interviews:

Brisa recounted her traumatic experience on multiple occasions during the investigations. This practice contradicted the fundamental principle of avoiding repetitive interviews, leading to increased distress for Brisa. One particularly concerning interview occurred in August 2002 when Brisa was not allowed to have a trusted person accompany her. Instead, an unfamiliar representative from the National Child, Women, and Family Agency was present, asking questions that could have made Brisa feel guilty for the sexual violence she endured. The Court considered this interview as revictimizing. Additionally, Brisa reported an informal meeting with Prosecutor N.T.A, during which she felt intimidated, repeatedly asked to retell her painful story, and threatened with defamation charges.

In view of the case findings, the Court established crucial guidelines.

Guidelines in Losada v Bolivia:

• Avoidance of Repetitive Interviews: Repeatedly requiring victims to recount traumatic experiences should be avoided to prevent further distress.
• Supportive Interviews: Interviews with child victims must be conducted in a supportive and empathetic manner, with interviewers trained to interact sensitively with victims of sexual violence, focusing on understanding the victim’s trauma.
• Presence of Trusted Individuals: Victims should be allowed to have a trusted person of their choice present during interviews, providing emotional support and increasing their comfort.
• Avoidance of Guilt-Inducing Questions: Interviewers should refrain from asking questions that could make the victim feel guilty or responsible for the sexual assault, phrasing questions sensitively, and avoiding stereotypes or victim-blaming.
• Recorded Interviews: When feasible, interviews should be recorded to prevent repetition and ensure transparency, serving as a reference for future legal proceedings.

Applying Losada v Bolivia to Peru:

In Peru, implementing the guidelines set by the Angulo Losada vs. Bolivia case for forensic medical examinations and victim interviews in child violence cases presents significant challenges. These challenges stem from a critical lack of recent data, which hinders the country’s ability to assess its compliance with international obligations. However, a vital resource for evaluating these procedures is a 2016 report by the Ombudsman Office[3], which provides valuable insights.

• Challenges in Forensic Medical Exams: Fifteen medical examiners in Lima Metropolitana and El Callao were interviewed. Notably, exams often proceed even in unsuitable conditions, potentially compromising victim dignity. The absence of specialized training for child victims is a significant concern. The study revealed that family and third-party involvement during exams is common practice, sparking privacy and confidentiality issues.
• Challenges in Victim Interviews: Six psychologists responsible for interviewing child and adolescent victims of sexual violence in Lima Metropolitana and El Callao were interviewed. Concerns emerged regarding the connection between underage victims’ consent and their parents’, potentially limiting child autonomy in providing statements. Moreover, malfunctioning sound equipment in half of the interview locations in Lima, Lima Norte, Lima Sur, Lima Este, and Callao threatens interview quality and confidentiality. These interviews play a crucial role in determining criminal responsibility, making it imperative to address the challenges posed by faulty equipment.

Conclusion:

The Angulo Losada vs. Bolivia case serves as a stark reminder of the critical need for sensitivity, precision, and empathy in addressing cases of sexual violence, especially those involving children. The IACtHR’s guidelines provide an invaluable roadmap for justice systems worldwide to follow. Yet, the challenges faced in Peru underscore the urgency of implementing these guidelines effectively. Bridging the gap between guidelines and practice is essential to provide survivors with the justice, support, and protection they deserve, so that no one has to endure what Brisa went through.

[1] Inter-American Court of Human Rights, Case of Angulo Losada v. Bolivia, Judgment of November 18, 2022, Preliminary Objections, Merits, Reparations, and Costs.

[2] Inter-American Court of Human Rights, Case of V.R.P., V.P.C., and Others v. Nicaragua, Judgment of March 8, 2018, Preliminary Objections, Merits, Reparations, and Costs.

[3] Ombudsman Office, The Role of the Institute of Legal Medicine and Forensic Sciences in Defending the Rights of Children and Adolescents Victims of Sexual Violence, (2016), https://www.savethechildren.org.pe/wp-content/uploads/2020/08/Informe-Defensorial-001-2016-DP-ANA-.pdf