The ‘feminisation’ of the Inter-American Court of Human Rights’ models of adjudication in cases of sexual violence

In this paper, I argue that, over the past two decades, the Inter-American Court has progressively feminised its approaches to the adjudication of sexual violence against women. Beginning with its landmark judgment in Miguel Castro-Castro Prison (2006), the Court has moved from models characterised by silence and evidentiary insufficiency towards forms of soft and full recognition of sexual violence. I further contend that the synergistic application of the American Convention on Human Rights and the Convention of Belém do Pará (the first international treaty specifically addressing violence against women) has been central to this transformation.

I define feminisation as the adoption by courts of a feminist methodology for the assessment of evidence in cases of gender-based violence. Disputes involving sexual violence—regardless of the victim’s gender—provide a particularly fertile context for applying this methodology. Feminisation foregrounds the voices of victims and witnesses, considers socio-cultural contexts, and aids in identifying stereotypes and biases throughout the investigation, prosecution, and punishment of these crimes.

I delineate four models of adjudication in Inter-American jurisprudence concerning sexual violence against women. The silence model reflects the Court’s reluctance to draw conclusions regarding allegations of sexual violence. The insufficiency model recognises that the evidence presented fails to establish its occurrence. The soft recognition model treats the evidence as ‘indicative but insufficient’, signalling a strong belief in the likelihood of sexual violence while compelling states to conduct thorough investigations. Finally, the full recognition model asserts the occurrence of sexual violence and examines whether it constitutes (i) torture or (ii) cruel, inhumane, or degrading treatment. Taken together, the emergence of these models reflects a broader transformation in the Court’s engagement with gender-based violence and has contributed to strengthening the obligations of states to investigate, prosecute, and remedy such violations.

Carlos J. Zelada (University of Oxford – Universidad del Pacífico)

Carlos is Associate Professor at the School of Law of the Universidad del Pacífico (Peru), where he chairs the Public International Law programme. He holds an LL.B. from the Pontificia Universidad Católica del Perú and an LL.M. from Harvard Law School, which he attended as a Fulbright scholar. He is currently pursuing a DPhil in Law at the University of Oxford, where his research examines the jurisprudence of the Inter-American Court of Human Rights on sexual violence against men.

Carlos previously served for a decade as a human rights specialist at the Inter-American Commission on Human Rights. More recently, he led the legal representation of Crissthian Olivera before the Inter-American Court in Olivera Fuentes v Peru (2023), the Court’s first case concerning public displays of affection and discrimination against LGBTI persons in commercial settings. He also acted as expert witness in Vicky Hernández et al. v Honduras (2021), the Court’s landmark judgment applying the Convention of Belém do Pará to a transfemicide. Most recently, he advised the Chilean government on legislative reforms incorporating a human rights framework into the decriminalisation of abortion during the first fourteen weeks of pregnancy.

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