Venezuela

The defendant was convicted for the crimes of human trafficking and association to commit crimes on May 15, 2014 in the state of Nueva Esparta. In its decision, the lower court said that in cases of rape and trafficking of persons, anyone who has been accused of having a relationship or knowledge of such crime could be deprived of liberty during trial, if it is deemed appropriate by the authorities. In the defendant’s case, he was accused of seducing and luring the female victim into the island of Margarita, where she was subjected, tortured, drugged, and raped. The defendant appealed the decision, alleging that it violated his right to be judged in freedom. The Court of Appeal for Violence Against Women on January 8, 2016 dismissed the appeal action and ratified the decision of the lower court and determined that the apprehension of the accused before his conviction did not represent a violation of the law. The appellate court ratified the criteria of the lower court according to which those defendants who are linked to the act of people trafficking and gender violence can be arrested before issuing a conviction decision, if deemed appropriate by the authorities.

The female victim declared to the competent authorities that she worked as a motorcycle taxi driver in La Fria, Táchira State. On the morning of September 9, 2014, she transported a male passenger. During the journey, the passenger threatened and sexually assaulted her with an object. On November 18, 2014, the lower court convicted the defendant of the crime of sexual violence even though psychological or physical violence were not proven at the trial, which used to be one of the elements for such crime. The defendant requested a review of the court’s decision to the Constitutional Chamber of the Supreme Court of Justice (the “TSJ”) on the basis that neither physical nor psychological violence were confirmed by the lower court. The TSJ ratified the decision of the lower court and decided that it is no longer necessary to verify that physical or psychological violence occurred in order to determine the crime of sexual violence. As a result of this decision, each of the crimes of sexual, psychological, and physical violence can be committed separately, reinforcing the protection of women’s rights. This decision represents an improvement in rights for women in Venezuela.

A mother was charged with sexual abuse of her own son and daughter. The trial court issued an order of detention pending trial. When the mother brought an extraordinary constitutional petition seeking protection against the order, the court of appeals declined to hear the petition on the ground that such a petition can heard only after ordinary remedies have been exhausted. On appeal to the Supreme Court, the mother argued that the underlying order of detention suffered from various constitutional defects, mainly that special courts have exclusive jurisdiction to hear cases involving sexual violence against a girl and that the trial court therefore lacked jurisdiction. (The mother argued, moreover, that she was being prosecuted and detained in order to prevent enforcement of her visitation rights—this after she had already been deprived of them the two years prior.) The Supreme Court affirmed the appellate decision, noting that the mother had not exhausted any of the three remedies still available to her: motion for reconsideration, motion for substitution, and an ordinary appeal.

An indigenous man was charged with physical violence and threats against his ex-partner (a non-indigenous woman), a violation of the Organic Law on the Right of Women to a Life Free of Violence (the “statute”), which created special courts with exclusive jurisdiction to hear cases under the statute. The special court issued a restraining order in lieu of detention pending trial. Prosecutors appealed. While the appeal was pending, the man violated the restraining order. The court of appeals vacated the restraining order and ordered detention. On a constitutional appeal to the Supreme Court, the defendant argued that, because of his identity as an indigenous person, his community’s authorities had exclusive jurisdiction to hear the case. The Supreme Court acknowledged that (1) the Organic Law on Indigenous Peoples and Communities creates special jurisdiction authorizing indigenous communities to resolve controversies arising among their members within their lands, (2) this special jurisdiction allows the communities to apply their own laws, and (3) the national courts must recognize the decisions of the communities. But the Court also stressed that international conventions, the national constitution, and special laws (such as the statute) placed limitations on that jurisdiction. The Court cited, for example, Article 9 of the ILO Convention on Indigenous and Tribal Peoples, which provides that “the methods customarily practiced by the peoples concerned for dealing with offenses committed by their members shall be respected,” but only “[t]o the extent compatible with the national legal system and internationally recognized human rights.” More precisely, the Court noted that the statute itself established that indigenous authorities could serve as agents for receiving complaints of violence against women, but only without prejudice to the victim’s right to seek remedy in the special courts. Based on that analysis, the Court held that the special courts have exclusive jurisdiction to hear cases under the statute, regardless of the defendant’s ethnic identify. Notably, the Court ordered that its holding be published as binding precedent.

A landlady alleged that two delinquent male tenants assaulted her and threatened to kill her if she sought to evict them. The tenants were charged with “violence against a woman,” a violation of the Organic Law on the Right of Women to a Life Free of Violence (the “statute”), which created special courts with exclusive jurisdiction to hear cases under the statute. The ordinary court declined jurisdiction and referred the case to the special court. In the meantime, after completing their investigation, prosecutors downgraded the charges to “general injuries,” a violation of the general penal code. The special court also declined jurisdiction, reasoning that its jurisdiction under the statute was limited to gender-based violence and that the violence alleged in the case was rooted in a contractual dispute and not in the landlady’s gender. When the jurisdictional conflict was certified to the Supreme Court, it held that the landlady’s gender was sufficient to bring the case within the exclusive jurisdiction of the special courts, irrespective of the statutory classification of the alleged crime. Dissenting judges argued that the special court’s jurisdiction was confined to gender-based crimes and that the majority opinion would result in a separate system of justice for each gender.

A 13-year-old girl reported having consensual sex with her 26-year-old boyfriend. He was charged under a statute that outlaws sexual relations, even without violence or intimidation, to the detriment of a woman who is “vulnerable” because of her age. The trial court convicted the defendant, finding the girl “vulnerable” based on psychological evaluations. On appeal, the court of appeals focused on the girl’s “discernment” to “decide concerning an active sexual life.” The court of appeals then found the girl not “vulnerable” in light of her testimony that she consented to the alleged crime. The court thus vacated the conviction. The court of appeals also found that the psychological evaluations had “nothing to do with” the issue, because they did not focus on the girl’s “discernment,” but rather on her emotional state, which, in any event, was caused by “rigid standards and values” at home and the “the presence of a controlling feminine figure” (her mother), and not by the relationship with the boyfriend. Because the couple had been dating for four months before deciding “by mutual accord” to have sex, the court found that the boyfriend had not taken advantage of the girl. Prosecutors then brought a cassation appeal to the Supreme Court, arguing that the court of appeals had misinterpreted and misapplied the statute. Although the Supreme Court also focused on the “degree of discernment or maturity possessed by the victim to make decisions regarding her sexual freedom,” the Court also held that the girl’s emotional state was essential to the analysis of her vulnerability and her ability to give “free consent,” because “emotions are determinants” that “directly influence human behavior.” The Supreme Court thus remanded the case to a new appeals panel, with directions to rehear the defendant’s appeal in a manner consistent with the Court’s opinion.

In 2013, a woman’s ex-partner wounded her with a machete and knife as she was arriving home at midnight. When the victim’s sister intervened, the man punched the sister and ran off. For his attack against his ex-partner, the man was charged with attempted homicide, a violation of both the general penal code and the Organic Law on the Right of Women to a Life Free of Violence (the “statute”). For his attack against the sister, he was charged with physical violence, a violation of the statute. Amended in 2014, the statute created special courts with exclusive jurisdiction to hear cases brought under the statute, but a subsequent Supreme Court decision clarified that all types of homicide offenses occurring prior to the amendment remained within the jurisdiction of ordinary courts. During the preliminary hearing, the ordinary court found that the allegations did not support the attempted homicide charge but rather the offense of “minor injuries,” a violation of the statute. Accordingly, the ordinary court ruled that it lacked jurisdiction and thus referred the case to the special court. In turn, finding that the allegations did support a homicide charge, the special court also concluded that it lacked jurisdiction. When the jurisdictional conflict was certified to the Supreme Court, it held that the special court had exclusive jurisdiction. The Court explained that the classification of the “homicide” charge was of no consequence, because the charge against the sister vested jurisdiction in the special court over all related charges involving gender violence.