Gender Wire ~ July 26 2011
Court Downgrades Rape to "Fit of Passion"
By José Adán Silva
Fátima Hernández at a protest in front of the Supreme Court (Credit:Oscar Sánchez/IPS)
MANAGUA, Jul 25, 2011 (IPS) - The rape of a young woman that has become a symbolic case in Nicaragua was ruled a "crime of passion" by the Supreme Court in a verdict that is suspected to have political overtones.
"There is no excuse. It is a bad precedent for Nicaraguan justice that such a serious crime against a woman should be viewed by the Supreme Court as a lesser case, and that it would let a rapist off the hook," Juana Jiménez, a member of the Autonomous Women's Movement, one of the organisations that held a protest vigil against the verdict, told IPS.
The Supreme Court decided Jul. 22 to reduce Farinton Reyes' prison sentence from eight to four years for the rape of Fátima Hernández, on the grounds that his sexual assault was not violent and was committed "in a fit of passion under the influence of alcohol," and with " permissive cooperation" by the victim, because she had had a few beers with him.
Furthermore, it ordered the release of Reyes, who had spent 18 months in jail on remand, on the grounds that there were mitigating factors such as no criminal record, good behaviour, and lack of malicious premeditation, which in the criminal code are reasons for lighter sentences.
Paradoxically, less than a month ago the Supreme Court launched with great fanfare a campaign with the slogan "Woman, You Are Not Alone", which aims to combat violence against women, and at the same time announced that a seminar will be held in October, focused on sexual violence, which is the third largest cause of medico-legal treatment in the country.
The verdict, in a case that drew a great deal of attention because of Hernández's persistence in demanding justice, and her assailant's links with circles of political power, was rejected by human rights activists, independent jurists and women's rights organisations which have supported her throughout the trial.
After a number of different protests, including a 25-days hunger strike, 23-year-old Hernández succeeded in getting a court to sentence Reyes to eight years in prison for aggravated rape, committed the night of Jul. 25, 2009, when they were both working for the Interior Ministry.
In December, the Managua appeals court reduced the sentence to six years, and soon afterwards Reyes' lawyers called on the Supreme Court to overturn the sentence and acquit the defendant.
Remarkably, the public prosecutor's office supported Reyes "because of reasonable doubts," although it had had none during the first trial when he was convicted.
The Supreme Court ruling, which cannot be appealed in any national court, is viewed by women's organisations and political analysts as politically motivated, because Reyes is a member of the governing Sandinista National Liberation Front (FSLN), as is his mother, Xiomara Larios, a famous former athlete with connections in the different branches of government.
The judge who handed down the ruling, Juana Méndez, is linked to the leftwing FSLN, and became famous in December 2001 for issuing another sentence for sexual assault on a woman, which had resounding political implications.
On that occasion, the Supreme Court dismissed the case against then lawmaker and leader of the FSLN and now incumbent President Daniel Ortega, for charges brought against him by his adopted stepdaughter Zoilamérica Narváez, for abuse, rape and sexual harassment, from 1978 when she was 11, until 1998.
The case was dismissed on the grounds that the statute of limitations for bringing legal action for the alleged crimes had expired, and this smoothed the way for Ortega's re-election to the presidency in 2007, after a previous term of office (1985-1990).
Reyes' main defence attorney, Ramón Rojas, also represented Ortega in his case before the Supreme Court.
Judge Méndez told the press that Reyes "did commit a crime, but without premeditation or malice," and "the victim was permissive," since she had been chatting with him and apparently went willingly to the scene of the crime, although Hernández denies this. "What did happen was an excess in the sexual act," Méndez said.
The verdict was signed by 15 of the 16 Supreme Court justices. The dissenting vote was from Judge Yadira Centeno, who in her minority opinion said the reduction of the sentence was "unlawful."
In the light of the facts and allegations in the case, "I do not find proof that (Reyes') behaviour was due to such a violent emotion or powerful stimulus as to have undermined his will and diminished his responsibility, in a way that would justify reduction of his sentence," said Centeno.
Vilma Núñez, head of the non-governmental Nicaraguan Human Rights Centre (CENIDH), told IPS that the Supreme Court verdict violated basic principles that favour the victim over the aggressor, especially since the fact of the rape was proved.
"There is a victim, an assailant, a crime, a sentence, evidence, witnesses and proof, but in the Court's own judgment, it decided the criminal should go free, and that the victim was to some extent responsible for allowing the crime to happen. This is unheard of," said Núñez.
In her view, establishing the precedent of a "cooperative victim" is "extremely serious" for Nicaraguan women suffering sexual attack, as is the view taken by the Supreme Court that a "fit of passion", producing a state of "fury" and sexual "excitement", constitutes extenuating circumstances for rape.
Although Hernández did not expect the Supreme Court to uphold the original eight-year sentence, hearing that Reyes would be freed was an emotional shock for her. She was readmitted to the hospital, where she has been admitted several times since May. The last time was in June, after another 12-day hunger strike in front of the Supreme Court building.
Her father, Esteban Hernández, said she was in no condition to make statements, but that when she recovers she will make her position clear in an appearance together with her lawyers and national and international human rights activists.
"I can only tell you that in spite of her frail health, she remains strong and dignified, and will continue to demand justice, even if it means we have to go into exile," he told IPS.
Fátima Hernández had said in advance that if the ruling went against her, she might accept the political asylum offered by an unidentified country, and would take her case to the Inter-American Commission on Human Rights to begin proceedings that could put the state of Nicaragua in the dock before the Inter-American Court of Human Rights.
Reyes' lawyers and family did not respond to requests for statements from IPS and local news media.
According to the Institute of Legal Medicine, there were an average 14 cases a day of sexual violence against women in Managua during the first five months of this year.
In 2010, there were 89 murders of women in this country of 5.8 million people, almost all of them "femicides" or gender-based killings. During the first five months of 2011, 40 women were killed. ~~~~
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