40
occurred in the context of a situation in which the soldiers were questioning the
victim and did not obtain a response to the information they required (supra paras.
82 and 108). Without denying the possibility that there were also other objectives,
the Court considers it proven that, in the present case, the rape had the specific
purpose of punishing the victim because she failed to provide the required
information.
128. On the other hand, this Court finds that rape may constitute torture even
when it is based in a single fact alone and takes place outside State facilities,116
such as in the victim’s home. This is so because the objective and subjective
elements that classify an act as torture do not refer either to the accumulation of
facts or to the place where the act is committed, but to the intention, the severity of
the suffering, and the purpose of the act, requisites that, in the present case, have
been fulfilled. Based on the aforementioned, the Court concludes that the rape in
the present case entailed a violation of the personal integrity of Mrs. Fernández
Ortega, constituting an act of torture in the terms of Article 5(2) of the American
Convention and Article 2 of the Inter-American Convention to Prevent and Punish
Torture.
129. Regarding the alleged violation of Article 11 of the American Convention
based on the same facts, the Court has specified that, even though this provision is
entitled “Right to Privacy” [Note: it is entitled Protection of Honor and Dignity in
Spanish], its contents include, inter alia, the protection of private life.117 Moreover,
the concept of private life is a wide-ranging term, which cannot be defined
exhaustively,118 but includes, among other protected forums, sexual life,119 and the
right to establish and develop relationships with other human beings.120 The Court
finds that the rape of Mrs. Fernández Ortega violated essential aspects and values
of her private life, represented an intrusion in her sexual life, and annulled her right
to decide freely with whom to have intimate relations, causing her to lose total
control over these most personal and intimate decisions, and over her basic bodily
functions. 121
130. As indicated previously, the Committee for the Elimination of Discrimination
against Women has stated that the definition of discrimination against women
“includes gender-based violence, that is, violence that is directed against a woman
[i] because she is a woman or [ii] that affects women disproportionately.”
Furthermore, it has also indicated that “[v]iolence against women is a form of
discrimination that seriously inhibits women's ability to enjoy rights and freedoms
on a basis of equality with men.”122
116
Cf. CAT, Case V.L. v. Switzerland, supra note 115, para. 8.10.
117
Cf. Case of the Ituango Massacres v. Colombia. Preliminary Exceptions, Merits, Reparations,
and Costs. Judgment of July 1, 2006, Series C No. 148, para. 193; Case of Tristán Donoso v. Panamá.
Preliminary Exceptions, Merits, Reparations, and Costs. Judgment of January 27, 2009. Series C No.
193, para. 55, and Case of Escher et al., supra note 97, para. 113.
118
Cf. ECHR, Case of Niemietz v. Germany, Judgment of 16 December 1992, App. No. 13710/88,
para. 29, and Case of Peck v. United Kingdom, Judgment of 28 January 2003, App. No. 44647/98, para.
57.
119
Cf. ECHR, Case of Dudgeon v. the United Kingdom, Judgment of 22 October 1981, App. No.
7525/76, para. 41, and ECHR, Case of X and Y v. the Netherlands, Judgment of 26 March 1985, App.
No. 8978/80, para. 22.
120
Cf. ECHR, Case of Niemietz v. Germany, supra note 118, para. 29, and ECHR, Case of Peck v.
United Kingdom, supra note 118, para. 57.
121
Cf. ECHR, Case of M.C. v. Bulgaria, supra note 104, para. 150, and ICTY, Case of Mucic et. al.
“Celebici Camp”. Judgment of November 16, 1998. Case No. IT-96-21-T, para. 492
122
Case of González et al., (“Cotton Fields”), supra note 15, para. 395