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- Title
La evolución del delito de acceso carnal violento en aplicación de la perspectiva de género: caso Maria Odilia Henao Aristizábal. Comentario a la sentencia de la Corte Suprema de Justicia del 12 de mayo de 2021, radicado 51.936, M.P. Patricia Salazar Cuellar.
- Authors
ARTURO ACERO SOLER, MIGUEL ALEJANDRO
- Abstract
The article analyzes the Supreme Court's ruling on the case of María Odilia Henao Aristizábal, a victim of violent sexual assault. It examines the evolution of the crime of violent sexual assault from a gender perspective, highlighting the historical sexist approach and the requirements of violence and consent in the configuration of the crime. The Supreme Court issued a ruling stating that the victim's consent cannot be inferred from silence or lack of resistance. Furthermore, it concludes that the victim is not obligated to act in a specific way to demonstrate that the aggressor's action was violent. The Court also called on judicial officials to incorporate a gender perspective in these cases. This document is a study conducted by the Humanas Corporation on Colombian jurisprudence in cases of sexual crimes against women and girls. 210 rulings were analyzed, finding that 32% correspond to cases of violent sexual assault. It is evident that in 63% of the acquittal rulings, judges base their arguments on prejudices. Additionally, it is highlighted that the higher courts have made progress in protecting the rights of victims, but first and second instance judges still maintain prejudiced and discriminatory perspectives. Another document analyzes 20 cases of sexual crimes, determining that violent sexual assault is committed with intent and is a crime of one's own hand. It is also emphasized that the victim's lifestyle should not affect the protection of their rights. This text analyzes the application of the concepts and vision of the Supreme Court in protecting the victim's sexual freedom and the configuration of the crime of violent sexual assault. It concludes that Colombian doctrine and jurisprudence agree with the definition of the crime, which is found in Article 205 of the Penal Code, and is configured when a person carnally accesses another without consent, exerting physical or psychological violence. The text also highlights the importance of analyzing the element of violence from an ex ante perspective, considering all the factual circumstances of the case. Additionally, it is noted that first and second instance judges often make mistakes in assessing the adequacy of violence and tend to disregard probative evaluation of this element. The study conducted by the Humanas Corporation analyzes Colombian jurisprudence on the element of violence in sexual crimes. It is highlighted that the courts have understood violence as any action used to bend the will of the victim and achieve a typical result. Furthermore, it is observed that jurisprudence has determined that physical evidence of violence is not necessary for the crime to be configured, but rather it is important that the punishable act has been committed against the victim's will. However, it is noted that some judges have interpreted that the victim must act in a certain way to demonstrate that they did everything possible to resist, which violates the rights of victims and revictimizes them. Regarding consent, it is established that it is the authorization or permission to engage in a sexual encounter and is considered a cause of absence of criminal responsibility. It is highlighted that the Constitutional Court has determined that the victim cannot be questioned about aspects of their private life and that the victim's way of life cannot infer their consent in a sexual act. The article analyzes the importance of consent in the crime of violent sexual assault in Colombia. It emphasizes that consent must be clear, express, and unequivocal on the part of the individuals involved in the sexual activity for there to be no crime. Rulings from the Supreme Court of Justice that protect the rights and interests of victims from a gender perspective are mentioned.
- Subjects
COLOMBIA; SEX crimes; CRIMES against girls; SEXUAL assault; CRIMES against women; LEGAL judgments; SEXUAL consent; VIOLENT crimes; RAPE culture; SEX discrimination
- Publication
Nuevo Foro Penal, 2022, Vol 18, Issue 99, p137
- ISSN
0120-8179
- Publication type
Article