From memory to justice: addressing sexual violence in Chile 40 years on

In February 2018, authorities in Chile granted historical monument status to a  clandestine detention center formerly located in the basement of Plaza Constitución, in the heart of Santiago’s civic district. Known as Cuartel N°1 (headquarters N°1) of the police intelligence services (SICAR), or as El Hoyo (the Hole), this site functioned as an interrogation and torture center during the dictatorship era, between 1973-1974. This recognition is symbolic given the site’s location at the time, under a square in front of La Moneda presidential palace. It is also significant because this site was one of many where prisoners, in particular women, were subjected to systematic sexual torture during the 1973-1990 military regime. Over this last decade, other detention centers notorious for sexual violence have attained national heritage status. These memorialization initiatives are a form of reparations to the victims. They are also the result of sustained advocacy efforts by victim groups, who have demanded that public steps be taken to memorialize the atrocities of the Pinochet regime.

However, dealing with the past is complex, and a gap remains between memory processes and justice efforts. To date, there have been no convictions for sexual violence in human rights trials in Chile. The 2004 Valech truth commission report marked the first public acknowledgement that the military regime routinely used sexual violence against political opponents in state-run detention facilities. Focusing on cases of political prisoners and torture, the report identified various sites where this tactic was used. The Valech commission’s archives could not be made available to the courts as a 50-year secrecy law prohibited public and judicial access to this information, although partial judicial access has since been granted. Importantly, the law did not prevent survivors from separately pursuing criminal or civil actions.

When survivors and witnesses of sexual violence have come forward in human rights trials, judges have largely disregarded their evidence. Courts have tended to prioritize the prosecution of deaths and disappearances, focusing primarily on murder and kidnapping charges. Torture has been considered of lesser gravity, in part due to its inadequate inclusion in the law in force at the time of the offences. While several recent decisions have included torture convictions and have reflected its gravity in the penalties imposed, courts have yet to expressly recognize sexual violence as a form of torture. Judges have also been reluctant to convict individuals for sexual violence due to the absence of physical evidence, failing to apply international precedents in reaching their findings.

In recent years, sexual violence survivors have demanded justice, insisting on categorizing these abuses as torture. In 2016, two women publicly denounced the sexual torture committed against them at the SICAR’s Cuartel N°1. Through their legal representatives, both had also previously filed criminal complaints for these crimes (in 2010 and 2015 respectively). The decision in this case (case N° 629-2010) is currently pending, but it is unlikely to result in convictions for sexual torture. The indictment against the twelve accused in the case only included charges for kidnapping, with sexual violence as an aggravating circumstance. A handful of sexual violence survivors have brought similar complaints −including several former detainees of an infamous torture center in Santiago known as Venda Sexy (Sexy Blindfold) or as the Discotheque, where guards played loud music while they sexually abused blindfolded prisoners. As state-funded legal aid is only available for the relatives of absent victims (the dead and disappeared), and not for torture survivors, these survivors have had to seek their own legal representation.

While criminal accountability for sexual violence has been lacking, the Supreme Court has recognized the right of survivors to bring civil claims for dictatorship-era sexual violence. In January 2018, in the case of Lara Reyes vs the State of Chile (case N° 31.711-17), the Supreme Court overturned a 2017 ruling of the Santiago Appeals Court for failing to uphold a plaintiff’s right to seek reparations for the sexual violence she suffered. The crimes occurred on 8 March 1984 during a political protest. Policemen arrested the victim, then a minor, and took her to a local police station, where she was held in a basement and gang-raped by several policemen. While the Appeals Court acknowledged that the policemen had sexually assaulted the victim, it found that the statute of limitations applied to the civil action for damages−filed 31 years after the crimes occurred. It held that the sexual violence did not amount to a crime against humanity, but rather was an isolated and private act, committed for personal motives by the perpetrators and not in furtherance of a State policy. It further noted that two of the perpetrators had already been convicted for the crimes under ordinary criminal provisions.

In overturning this decision, the Supreme Court made several key findings, reaffirming its prior jurisprudence on reparations for torture survivors. It found that the sexual violence in the case amounted to a crime against humanity given the political context in which it occurred, the participation of state agents and the fact that the victim’s illegal arrest had facilitated the crimes. It reasoned that, in these circumstances, the statute of limitations did not apply to either the criminal or civil actions. Finally, it held that the Chilean state and the courts have the duty to uphold the right to reparations of victims of dictatorship-era abuses. Although this case was not included in the Valech report, the Supreme Court accepted the state’s duty to provide reparations on the basis of international law.

Chile has come a long way in reckoning with its violent past. But this process remains unfinished. According to official estimates from September 2017, 1328 human rights criminal cases are currently pending at different procedural stages. Between mid-2016 and mid-2017, the Supreme Court’s criminal chamber handed down 55 judgments in human rights trials (for more details, see pages 68-71 of this report). However, accountability efforts have not included sexual violence survivors, and they have had to bear the burden of triggering compliance with the state’s obligations under international law to prosecute those responsible. Decades after the crimes took place, the window to provide redress to these victims is quickly closing.

 

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