The Hon. Maria Laura Altamiranda Took Part in a Landmark Case Involving Sexual Abuse on an Intoxicated Victim

The defendants were sentenced to ten years of imprisonment for sexual abuse with carnal access aggravated by being committed by two persons. The accused had carnal access to the victim by vaginal, anal and oral means, taking advantage of the state of defenselessness in which she was due to her drunkenness, reason for which she could not freely consent to the action.

What was discussed in the trial was whether or not the sexual act was consented to by the victim, who was intoxicated. The judges assigned important probative value to the sworn account of the victim, which was considered credible after being evaluated under the parameters of objective and subjective credibility and the persistence of the incrimination. It was thus apt to disprove the constitutionally based presumption of innocence of the accused.

No motive was found to weaken the veracity of the victim’s testimony, which was credible and corroborated with objective data: the medical report detailing the multiple injuries, the psychological report and the witnesses for the prosecution. The persistence over time of the content of the victim’s statements was considered. His statements were maintained over time without essential modifications, testifying in police headquarters, judicially and also in debate and he accepted to participate in a confrontation with one of the witnesses at the request of the technical parties. As evidence of the defense, the Court observed a one minute and one second video obtained from the cell phone of one of the accused.

The video only reflects an instant of the act, since the victim was with her sexual aggressors for at least a period of no less than one hour. In the video, it could be clearly seen that there is a power relationship over the victim by the two defendants who are subduing her. The videotape does not show an attitude of initiative or interaction with her sexual aggressors. Not only was the physical violence that the defendants exercised on the victim proven, but also the use of her state of inebriation to gain access to her by different means.

In his appeal, the plaintiff pointed out the attitudes that, in his opinion, a victim of a sexual assault should assume and those that should not; ignoring that human reactions to traumatic attacks cover a wide range of possible responses that depend both on the uniqueness of each subjectivity and the circumstances related to the facts. A different consideration would imply disregarding the mandate of Law 26.485 that discourages “…the discriminatory bias that has traditionally governed the evidentiary assessment through stereotypical or prejudicial views about the victim or the accused person…” (Protocol for the investigation and litigation of cases of violent deaths of women (femicides) of the Attorney General’s Office of the Nation, year 2018, pto. 4.2.2.).

The “CIDH”, has said that the influence of discriminatory socio-cultural patterns may result in a disqualification of the credibility of the victim during the criminal process in cases of violence and a tacit assumption of her responsibility for the facts, either by the way she dresses, her occupation, sexual conduct, relationship or kinship with the aggressor, which often results in inaction by prosecutors, police and judges in response to reports of violent acts.

This influence can also negatively affect the investigation of the cases and the evaluation of the subsequent evidence, which can be marked by stereotyped notions of how women should behave in their interpersonal relationships. (Case of “Velázquez Paiz” and other Vs. Guatemala. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 19, 2015, paragraph 209. C).

On the other hand, the minority vote required that during their imprisonment, the defendants take a course on human rights with special reference to women’s rights. My vote on this point, I reiterate, was in the minority.

The decision has citations of jurisprudence of the Inter-American Court of Human Rights, CEDAW and national laws and was recently CONFIRMED by the reviewing Court. Oral Criminal Court No. 6 of Lomas de Zamora, Province of Buenos Aires. Case Registration 4874/6. Date: 17/12/18 – CONFIRMED by Criminal Cassation Court of the Province of Buenos Aires (December 2020).

The article was written by IAWJ member, Dr. María Laura Altamiranda, member of the Oral Criminal Court that issued the conviction. The views presented in this article are those of the author and do not necessarily represent the views of the IAWJ.