38
119. The Court, following international jurisprudence and taking into account the
provisions of the said Convention, has considered previously that sexual violence is
committed by means of acts of a sexual nature, committed on a person without
their consent and that in addition to involving physical invasion of the human body,
may include acts which do not involve penetration or even any physical contact.107
Sexual abuse constitutes a paradigmatic form of violence against women, the
consequences of which even transcend the personhood of the victim.
120. The Court will examine whether the facts of the present case can be
subsumed in the crime of torture, as affirmed by the Inter-American Commission
and the representatives. In this sense, the Court recalls that, in Bueno Alves v.
Argentina,108 pursuant to the definition established in the Inter-American
Convention to Prevent and Punish Torture, it understood that it is confronted with
an act of torture when the mistreatment is: i) intentional; ii) causes severe physical
or mental suffering, and iii) is committed with any objective or purpose.
i) Intentionality
121. Regarding the existence of an intentional act, from the evidence in the case
file it has been verified that the mistreatment was inflicted deliberately against the
victim. Indeed, the Court considers it proven that one of the attackers took Mrs.
Fernández Ortega by the hands, obliged her to lie down on the floor and, while rifles
were pointed at her, penetrated her sexually while the other two observed the
perpetration of the rape.
ii) Severe physical or mental suffering
122. In order to analyze the severity of the victim’s suffering, the Court must take
into account the specific circumstances of each case. As such, characteristics of the
action, the duration, the method used, or the way in which the suffering was
inflicted, the potential physical and mental effects, and also the status of the person
who endured this suffering, including their age, gender, and physical condition,
among other personal details, must be considered.109
123. Regarding the physical suffering, the Court recalls that a medical certificate
issued three days after the incident indicated that there was no evidence of physical
injuries (supra para. 86). However, the Court also has testimonial evidence
indicating that the day following the incident Mrs. Fernández Ortega was sore and
had physical aches and pains, and even summoned the assistance of a private
physician (supra para. 84).110
124. Regardless of the above, in previous cases, the Court has established that
an act of torture can be perpetrated both by acts of physical violence and by acts
107
Cf. Case of the Miguel Castro-Castro Prison v. Perú. Merits, Reparations, and Costs. Judgment
of November 25, 2006. Series C No. 160, para. 306.
108
Cf. Case of Bueno Alves v. Argentina. Merits, Reparations, and Costs. Judgment of May 11,
2007. Series C No. 164, para. 79.
109
Cf. Case of the “Street Children”” (Villagrán-Morales et al.) v. Guatemala. Merits. Judgment of
November 19, 1999. Series C No. 63, para. 74, and Case of Bueno Alves, supra note 108, para. 83.
110
Cf. Statement of Mr. Prisciliano Sierra before a public notary, supra note 66, folios 1500 and
1501; sworn statement of Mrs. Eugenio Manuel before a public notary, supra note 72, folio 1152; sworn
statement of Mr. Ramírez Rodríguez before a public notary, supra note 72, folio 1510; sworn statement
of Mr. Lugo Cortés before a public notary, supra note 67, folio 1532, and sworn statement of Noemí
Prisciliano Fernández before a public notary, supra note 68, folio 1494.