WUNRN
NICARAGUA - COURT DOWNGRADES RAPE TO
"CRIME OF PASSION"
By José Adán Silva
|
"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
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
Reyes'
lawyers and family did not respond to requests for statements from IPS and
local news media.
According to
the
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.