Peru judges throw out rape case over complainant's red underwear

Judges throw out rape case in Peru because alleged victim’s red underwear ‘suggested the woman was prepared she was willing to have sex’, sparking national outcry

  • A court in the city of Ica has acquitted an accused rapist based on the colour of his accuser’s underwear in an October 29 decision that sparked outrage in Peru
  • The ruling claimed women only wear red knickers when intending to have sex 
  • The accused rapist was acquitted and protesters have rallied against the ruling
  • The decision comes as activists across Latin America urge their governments to do more to tackle endemic levels of violence against women

A Peruvian court has declared that a woman who wore red underwear to a party could not have been raped because the garment signalled she intended to have sex.

The South Zone Transitory Supraprovincial Collegiate Criminal Court ruled in a rape case that the complainant’s choice of lacy red knickers gave the impression she was ‘prepared or willing’ to have sex with the defendant.

The judges said that the victim was not shy and reserved as she claimed, citing her choice of underwear as evidence and acquitting the defendant.

The decision, made in the city of Ica on October 29, sparked outrage in Peru, where women having taken to the streets in protest – some with red knickers around their legs. 

Protesters gather in Peru after a court’s decision to acquit an accused rapist based on the belief that a woman wearing red underwear must be intending to have sex. Some demonstrators wore red underwear around their legs to show solidarity with the complainant

The identities of those involved in the case – first reported in late January 2019 – have not been included in official documents.

However, Peruvian media have named the accused as a 22-year-old man. The victim – who has not been named in the media – is reportedly a 20-year-old woman. 

According to local media, the woman said she fell unconscious at a party after being taken their by the accused who told her they were going to collect some official documents. 

The following day she awoke naked in the accused’s bed. 

The accused maintains that the allegations are an act of ‘revenge’ against him by the victim. 

Peruvian protesters hold placards bearing messages including: ‘Listen up, judges. Don’t use my underwear to justify rape’

Judges Ronald Anayhuaman Andia, Diana Jurado Espino and Lucy Castro Chacaltana argued that the complainant had misrepresented herself, claiming that women only wear red underwear when intending to have sex.

‘The supposed personality represented by her [the victim] (shy) does not relate to the undergarment she used on the day of the incident as this type of women’s underwear is normally used on special occasions leading to moments of intimacy, which gives the impression that the woman prepared or willing to have sexual relations with the accused.’ 

The judges also claimed there were ‘omissions’ in the complainant’s testimonies. 

Video shows women and others gathered outside the Ica courthouse to protest the decision and chanting A Rapist in Your Path – a feminist protest song. 

Protests have also been held in the Peruvian capital, Lima. 

Many of the demonstrators have red knickers pulled down around their legs, in a show of solidarity with the alleged victim. 

Some hold banners bearing messages including: ‘Listen up, judges. Don’t use my underwear to justify rape.’

And in reference to the complainant’s underwear: ‘Lace is just lace, it’s not an insinuation.’ 

Others, hold placards bearing the faces of the judges who made the ruling. 

‘Lace is just lace it’s not an insinuation’ reads one sign held by a protester in Peru following the court’s decision to acquit an alleged rapist on the basis of the underwear chosen by his accuser

Peru’s Public Ministry issued a statement on October 30 – a day after the court’s decision – saying they had requested that it be nullified and that a new trial take place in a different court. 

The Control Office of Judiciary (OCMA) on Monday opened an investigation into suspected misconduct by the judges and will decide if a disciplinary investigation needs to be conducted.

Peru’s Ministry of Women said it ‘profoundly rejected’ the court’s argument which it said contained stereotypes and ‘revictimised’ the complainant.

‘The eradication and punishment of violence against women can only be possible with an impartial Judicial Power that is aware of its fundamental role in order to eradicate rape and discrimination based on gender,’ it said. 

The Ombudsman’s Office has said it will present a request ordering that a new court reinvestigate the case ‘with better objectivity.’

Amid the outrage sparked by the ruling, Ica’s Human Rights Coordinator invited several official bodies from the city’s legal system to undertake an extensive course on gender bias.  

Some protesters chanted the lyrics to A Rapist in Your Path – a feminist protest song which went viral after being performed in Chile in 2019 and has since been adopted by women’s rights protesters around the world. Others held placards bearing the judges’ faces

A Rapist in Your Path – the song chanted by the protesters in Peru – has become a rallying cry for women’s rights protesters around the world after first being performed in Chile for the International Day of the Elimination of Violence against Women on November 25.  

The song is a reworking of a slogan used by Chile’s military police in the 1990s and came at a time when security forces were accused by local and international human rights organisations of wounding, raping and killing protesters during mass demonstrations in the country. 

It includes lyrics such as: ‘The fault was not mine, nor where I was, nor what I was wearing.’ and makes explicit reference to how legal systems protect accused rapists, saying ‘The patriarchy is a judge that judges us for being born.’

The repeated refrain ‘The rapist is you! The rapist is you!’ is intended to counterbalance victim-blaming strategies that typically surround rape cases and allegations. 

The song has been performed at protests in Turkey, France, Spain and the United Kingdom, as well as in Latin America, where activists in several countries have become increasingly vocal in demanding governments tackle endemic levels of violence against women.

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