By Barbara Jimenez-Santiago
WASHINGTON DC, Jan 5 2022 – Across Latin America and the Caribbean there is a culture of impunity for perpetrators of sexual violence. Crimes against women and girls often go unpunished and under-reported due to societal misconceptions about victimhood and the nature of sex crimes.
The stigmatization of survivors and the permissive attitude toward abusers is reinforced by discriminatory laws that perpetuate harmful gender stereotypes.
Equality Now recently undertook an analysis of rape laws across the Americas region and what we found were woefully insufficient laws that failed to adequately prevent sexual violence and ensure justice for women and girls who have been violated. One of the most common yet insidious forms of legal loopholes that we found in Latin America specifically were so-called “estupro provisions.”
Estupro provisions, which provide for a lesser penalty for adults who rape adolescents above the legal age of consent than for children or adult women, are based on the idea that adolescents seduce and tempt older men into assaulting them or that older men seduce impressionable and naive teenagers into sexual acts.
This interpretation suggests a notion of a hierarchy of rape where some perpetrators are deemed less guilty than others for effectively the same crime and some victims are implied to be less harmed by the experience and so less deserving of justice.
These laws are rooted in outdated perceptions about chastity, morality, and female sexuality and enable prosecutors to argue that adolescent victims manipulated their aggressor into abusing them. Estupro laws and provisions perpetuate the idea that a victim is, at least partially, responsible for the crimes committed against her.
Estupro is often wrongly defined on the internet as “statutory rape,” but these two charges are not the same. Statutory rape, used commonly in penal codes of the United States of America, refers to what would otherwise be considered consensual sex, except that it involves a minor whose young age means that the law deems her or him incapable of being able to consent.
The penalty for statutory rape is often higher than for other categories of rape, whereas for estupro there is a lesser penalty.
For our report on rape laws in the Americas, Failure to Protect: How Discriminatory Sexual Violence Laws and Practices are Hurting, Women, Girls and Adolescents in the Americas, we interviewed Doña Petita, a woman whose daughter Paola was raped by a school vice principal in Ecuador.
Paola tragically killed herself after she became pregnant and was pressured by her abuser to have an abortion. Her femicide followed sustained abuse and grooming by an adult man who manipulated his position of power and her trust in him.
Doña Petita was unable to get support following the tragic death of her adolescent daughter. Not from the school, not from law enforcement, and not from the courts. Paola’s rapist was a very powerful man in the community who had access to lawyers, resources, and political connections that Doña Petita did not.
Additionally, Paola’s community did not perceive her as the victim that she was, but as an equally culpable actor in the abuse that she suffered. As Doña Petita told us: “Paola was a girl and he was a man in his 60s but people blamed my daughter, saying that she must have seduced him. They didn’t understand that he was an old man manipulating her and not the other way around. She was the victim.”
Estupro laws reinforce the concept of victim-blaming, thus it is not surprising that Ecuador is one of the 17 jurisdictions found in our report to have such provisions. In practice, estupro provisions are often used to circumvent application of the rape offense, thus minimizing the crime and implying that the sex act was not an act of violence.
By applying estupro provisions, prosecutors and judges perpetuate the myth that it is adolescent girls who are treacherously seductive and manipulative, preying on helpless adult men. As demonstrated by the case of Paola, these harmful myths and gender stereotypes have far-reaching impacts.
Justice was elusive for Doña Petita in her home country of Ecuador. She pursued three different courses of legal action, but in each instance her case was dismissed. Her daughter’s abuser fled the country and was never held accountable for his crimes.
Thanks to Doña Petita’s ceaseless determination and the efforts of the non-profit organizations Centro Ecuatoriano para la Promoción y Acción de la Mujer (CEPAM-Guayaquil) and the Center for Reproductive Rights, the Inter-American Court of Human Rights held Ecuador responsible for failing to protect Paola and violating her rights to life, personal integrity, private life and dignity; her right to enjoy special protection from the State as a child; her right to equality and non-discrimination; her right to education; and her right to live free from gender violence.
The Court’s ruling is a victory not just for Paola and Doña Petita, but for girls throughout the region. However, Doña Petita should not have had to wait 18 years for justice – she should have been able to rely on national laws to protect her daughter and hold her daughter’s abuser to account. so that.
If that had happened, Paola would have been recognized for the exploitation she suffered and offered support services and she might still be alive today. But sexual violence laws across the region, like the ones that Paola encountered, are failing women, girls, and adolescents resulting in tragic outcomes.
Discriminatory laws, like estupro provisions, not only deny victims justice but they legitimize the practice of victim-blaming by suggesting that an adult perpetrator could be seduced or tricked into have sex with a minor. Latin American governments must act now to repeal any existing estupro provisions.
This reform must be complemented by a complete overhaul of sexual violence laws, including adopting consent-based definitions of rape, to ensure that adolescent girls and all survivors are protected from sexual violence in all circumstances.
Reforming sexual violence laws will both allow survivors of sexual violence access to dignified justice but will play a critical role in shaping the way that society understands sexual and gender-based violence.
Barbara Jimenez-Santiago is Latin American Regional Representative for Equality Now