Until April 1991, rape was treated as a crime against honor under Peru's civilian penal code. Although women's rights activists successfully advocated to modify the definition of the crime of rape to reduce the importance of "honor," attorneys maintain that biased attitudes about women's honor continue to influence the prosecution of rape and are revealed in the inadequate penalties and low conviction rate for this crime.
Lawyers who defend rape victims say the enduring emphasis on honor places a female victim at a legal disadvantage in pursuing a rape case. Her age and sexual past can be as important as the details of the attack. Irrelevant information about the victim's sexual past often is introduced into rape trials and can fuel a highly prejudicial presumption of consent.
To have a chance of convicting her assailant, an adult woman must be able to demonstrate visible and serious physical injuries, according to Dr. César San Martín, a former justice with the Lima Superior Court. A threat with a weapon, like a gun, is not sufficient. Psychological trauma, even a threat against a family member, is not admissible evidence. "The [rape] casesthat have the best chances involve minors under fourteen, women who were seriously injured or killed or women who were gang raped. Otherwise, the possibility of conviction is nearly zero."138
Moreover, according to Dr. Sylvia Loli, a defender of rape and domestic violence victims for the Lima-based Flora Tristán Women's Center, a great deal of ignorance exists among the general population about the value of preserving the direct, physical evidence of violence. Many women, horrified by the rape, bathe and throw away their torn clothing. Using current techniques, sperm samples must be taken within eight days of a rape or are useless. Adult women especially must have such evidence taken promptly, or they risk being accused of having sex with someone else in the interim.
During our 1992 investigation, we found that few medical or police professionals were trained or equipped to collect such evidence. For instance, in Lima, as of 1992, only five doctors in the Judicial Palace examined all victims of violent crime, Dr. Loli told us. Women who were raped on the weekend or holidays—the most common time according to police—had to wait until a working day for attention. By then, much evidence can disappear. Some women were assigned doctors attached to police clinics. In Huamanga, the capital of Ayacucho, all exams of rape victims were performed by police doctors, although the police often were implicated in rape. In rural areas, building a case could be especially difficult. The nearest police station could be days of hard walking away, and most department capitals lacked the tools or trained professionals to collect admissible evidence.
If a suspect is identified, the rape victim must make a second formal accusation, called the ratificación or reaffirmation. This time, the accusation is made in public and while facing the accused. Occasionally, rape cases are dismissed at this point, because the victim decides not to go public with the charge.
"If this is the picture when the perpetrator is a civilian," Dr. Loli told us, "what about a police officer or soldier on active duty? Forget it." Emergency legislation mandates that offenses committed in the line of duty be placed under military jurisdiction, subject to the Code of Military Justice. Despite the fact that rape and murder are common crimes, and thus should be subject to the civilian penal code, we are aware of no case in over fifteen years of internal conflict in which civilian courts have exercised jurisdiction. Instead, human rights-related cases are tried in military court and soldiersaccused of rape are never made available to civilian courts for prosecution. To our knowledge, no officer has ever been punished for rape.
138 Interview, Dr. César San Martín, Lima, Peru, July 7, 1992.
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