39
that produce acute mental or moral suffering for the victim.111 In addition, this
Tribunal has recognized that rape is an extremely traumatic experience that can
have severe consequences and cause significant physical and psychological damage
that leaves the victim “physically and emotionally humiliated,” a situation that is
difficult to overcome with the passage of time, contrary to other traumatic
experiences.112 This reveals that the severe suffering of the victim is inherent in
rape, even when there is no evidence of physical injuries or disease. Indeed, the
aftereffects of rape will not always be physical injuries or disease. Women victims
of rape also experience complex consequences of a psychological and social nature.
125. In the present case, Mrs. Fernández Ortega was subject to an act of sexual
violence and physical control by a soldier who penetrated her intentionally. Her
vulnerability and the coercion that the agent of the State exercised over her was
enhanced by the participation of the other two soldiers, who were also armed,
which exacerbated the context of sexual violence perpetrated against the victim,
and there was even another group of soldiers who were waiting outside the house.
The Court finds it evident that the suffering endured by Mrs. Fernández Ortega, by
being obliged to undergo a sexual act against her will, event that was observed by
two other individuals, was extremely intense. This psychological and moral
suffering was aggravated in view of the circumstances in which the rape occurred,
because she could not ignore the likelihood that the violence suffered could be
further increased by the State agents who witnessed the rape and those outside of
the house, owing to the possibility that they could also rape her. In this same
sense, the presence of her children at the moment prior to the facts, as well as the
uncertainty of whether they remained in danger or had escaped, intensified the
suffering of the victim.
126. In this sense, the expert witness, Correa Gonzalez, referred to the
vulnerable and humiliating situation in which the victim found herself and the
emotional impact resulting from the fact that her children were present until the
moment prior to the rape and that the perpetrators were soldiers, because “for her,
they represented authority figures, and this did not allow her to assess the danger
implied by their presence.” The presence of the other two soldiers “increase[d] the
level of vulnerability and humiliation and made her feel completely powerless and
totally unable to react.” In addition, the expert witness also referred to the
psychosomatic effects of the rape.113 On her behalf, the expert Hernandez Castillo
noted that according to her indigenous worldview, this suffering was experienced as
a “loss of the spirit.”114
iii) Purpose
127. The Court considers that, in general terms, rape, as in the case of torture,
has other objectives, including intimidating, degrading, humiliating, punishing, or
controlling the person who undergoes it.115 The rape of Mrs. Fernández Ortega
111
Cf. Case of Cantoral Benavides v. Perú. Merits. Judgment of August 18, 2000. Series C No. 69,
para. 100, and Case of Maritza Urrutia v. Guatemala. Merits, Reparations, and Costs. Judgment of
November 27, 2003. Series C No. 103, para. 91.
112
Cf. Case of the Miguel Castro-Castro Prison, supra note 107, para. 311. Cf. also ECHR, Case of Aydin v.
Turkey (GC), supra note 92, para. 83.
113
Cf. Psycho-social expert opinion by expert Mrs. Correa González at the public hearing (case file
on the merits, tome IV, folios 1612 and 1613).
114
Opinion by expert Hernandez Castillo at the public hearing at the Inter-American Court on April
15, 2010.
115
Cf. ICTR, Prosecutor v. Jean-Paul Akayesu, Judgment of September 2, 1998. Case No. ICTR-964-T, para. 597, and CAT, Case V.L. v. Switzerland, Decision of 22 January 2007, U.N. Doc.
CAT/C/37/D/262/2005, para. 8.10.