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Violence Against Lgbti Persons 33 A Una multitud lapida a un joven gay y lo graba en vídeo OAS/Ser.L/V/II.rev.1 Doc. 36 12 November 2015 Original: English INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Violence against Lesbian, Gay, Bisexual, Trans and Intersex Persons in the Americas 2015 www.iachr.org OAS Cataloging-in-Publication Data Inter-American Commission on Human Rights. Violence against lesbian, gay, bisexual, trans and intersex persons in the Americas. v. ; cm. (OAS. Official records ; OEA/Ser.L) ISBN 978-0-8270-6580-2 1. Gays--Violence against. 2. Lesbians--Violence against. 3. Transsexuals--Violence against. 4. Sexual minorities. I. Title. II. Series. OEA/Ser.L/V/II. Doc.36/15 Rev.2 The Inter-American Commission on Human Rights (IACHR) is grateful for the financial support provided by the Arcus Foundation, Chile, Denmark, the Joint United Nations Programme on HIV/AIDS (UNAIDS), the Netherlands, the United Kingdom, and the United States of America between 2011 and 2015. The drafting and publication of this Report was made possible by these financial contributions. The content of this Report is to be attributed solely to the IACHR. INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Members Rose-Marie Belle Antoine James L. Cavallaro José de Jesús Orozco Henríquez Felipe González Rosa María Ortiz Tracy Robinson Paulo Vannuchi Executive Secretary Emilio Álvarez-Icaza L. Assistant Executive Secretary Elizabeth Abi-Mershed Approved by the Inter-American Commission on Human Rights on November 12, 2015. TABLE OF CONTENTS EXECUTIVE SUMMARY 11 CHAPTER 1 | INTRODUCTION 21 A. Background 21 B. Methodology of the Report 23 C. Terminology 25 1. Diversity in Orientations, Identities and Bodies 25 2. Sex as a Social Construct 27 3. Sexual Orientation, Gender Identity, Gender Expression 29 CHAPTER 2 | UNDERSTANDING AND DEFINING VIOLENCE AGAINST LGBTI PERSONS 33 A. Features of Violence against LGBTI Persons 33 B. Heteronormativity, Cisnormativity and the Binary Systems of Sex and Gender 36 C. Stigma, Stereotyping and Discrimination 38 D. Violence Based on Prejudice 41 E. Violence and Discrimination against Women 45 CHAPTER 3 | IMPACT OF LAWS THAT CRIMINALIZE LGBT PERSONS ON VIOLENCE 49 A. Legislation Criminalizing Same-Sex Intimacy and Non- Normative Gender Identities 50 1. “Buggery” or “sodomy” Laws 52 2. “Serious Indecency” and “Gross Indecency” Laws 57 3. Legislation Criminalizing Non-normative Gender Identities and Expressions 58 4. Impact of these Laws on Violence 60 B. Legislation to Protect “public morals” and its Impact on Violence 64 CHAPTER 4 | FORMS AND CONTEXTS OF VIOLENCE AGAINST LGBTI PERSONS 71 A. Introduction 71 B. General trends in the findings of the IACHR 71 1. Underreporting and Lack of Official Data 71 2. Pervasiveness of Violence 73 3. Invisibility of everyday Violence 74 4. Invisibility of Violence against certain Groups: Trans men, Bisexual and Intersex Persons 74 5. High levels of Cruelty 76 6. Violence in Response to Public Displays of Same-sex Affection 79 C. Violations of the Right to Life 80 1. Extrajudicial Executions 80 2. Killings 82 D. Violations of the Right to Personal Integrity 87 1. Violations in the Context of Law Enforcement: Torture, Cruel, Inhuman and Degrading Treatment 87 • Persons Deprived of Liberty 97 2. Rape and other Acts of Sexual Violence 107 3. Mob attacks 111 E. Medical Violence against Intersex Persons 114 F. Other Forms of Violence in the Provision of Health Services 120 G. Violence related to Attempts to “change” Sexual Orientation and Gender Identity 121 H. Hate Speech and Incitement to Violence 128 1. Freedom of Expression and Equality 129 2. Definition of Hate Speech 131 3. Freedom of Expression and the Prohibition of Hate Speech: Inter- American Law and Standards 132 4. Hate Speech and Public Officials 140 5. Non-legal Measures to Counter Hate Speech 142 CHAPTER 5 | VIOLENCE AND INTERSECTION WITH OTHER GROUPS 151 A. Indigenous Peoples 151 B. Women 154 C. Persons in the Context of Human Mobility 161 D. Children and Adolescents 169 E. Human Rights Defenders 180 F. Afro-descendant Persons and other Persons who are Affected by Racial Discrimination 192 G. Persons Living in Poverty 197 CHAPTER 6 | STATES’ RESPONSE TO VIOLENCE AND ACCESS TO JUSTICE 207 A. States’ obligation to Prevent Violence 208 1. Data Collection 210 2. Legislative Measures to Prevent Violence 217 a. Enhanced Legal Protection from Violence Based on Prejudice 218 b. Enactment of Legislation Protecting and Recognizing the Rights of LGBTI Persons 222 c. Ensuring that Laws do not Discriminate or Fuel Violence Based on Prejudice 224 3. Eradication of Stigma and Negative Stereotypes 226 4. Prevention of Violence in Specific Contexts 231 a. Prevention of Violence in the Context of Law Enforcement 231 b. Prevention of Violence in the Health Sector 232 c. Prevention of Violence in the Education Sector 236 B. The State’s Obligation to Investigate, Prosecute and Punish Crimes committed against LGBTI Persons 237 1. The obligation to Ensure Access to Justice 237 a. Inadequate Treatment when Reporting Crimes 239 b. Protection of Victims and Witnesses in Criminal Proceedings 241 c. Legal Aid Programs 242 d. Training for Justice Operators 243 2. The Obligation to Investigate, Prosecute and Punish with Due Dilligence 245 a. Impunity for Violence 245 b. Deficiencies in Investigation and Prosecution 247 i. Prejudice in the Conduct of Investigations, and Lack of a Differentiated Approach 247 ii. Acquittal or Mitigated Sentencing Due to the Sexual Orientation or Gender Identity of the Victim 251 c. The Due Diligence Standard 254 C. States’ Obligation to Provide Reparations for Human Rights Violations 260 CHAPTER 7 | CONCLUSIONS AND RECOMMENDATIONS 265 EXECUTIVE SUMMARY Executive Summary | 11 EXECUTIVE SUMMARY 1. The Inter-American Commission on Human Rights (hereinafter “Inter-American Commission,” “the Commission,” or “IACHR”) is concerned about the high levels of violence against lesbian, gay, bisexual, trans, and intersex (LGBTI) persons, or those perceived as such in the Americas and the lack of an efficient response from the States. This is evidenced by the lack of adoption of effective measures to prevent, investigate, sanction and provide reparations to acts of violence committed against LGBTI persons, under the due diligence standard. Even though the IACHR acknowledges some steps forward in some Member States of the Organization of American States (hereinafter “OAS”), violence against LGBTI persons is pervasive throughout the Americas. 2. This Report focuses particularly on the acts of physical violence committed against persons with non-normative sexual orientations, identities and gender expressions, or whose bodies vary from the standard for female and male bodies in the Americas. In relation to the acts of violence against lesbian, gay, bisexual and trans (LGBT)1 persons, the IACHR highlights that these acts often show high levels of cruelty. For example, in several cases documented by the IACHR, the lifeless bodies of LGBT persons show signs of torture, mutilation of their genitalia; and their bodies have been quartered and marked with signs that indicate high levels of prejudice. 3. In this Report, the Commission focuses on violence against LGBT persons as a contextualized social violence in which the perpetrators’ motivation needs to be understood as complex and multi-faceted, and not only as a individual-based act. In this regard, the IACHR understands that acts of violence against LGBT persons, commonly referred to as “hate crimes,” homophobic or transphobic acts, are best understood under the concept of violence based on prejudice against non- normative sexual orientations and gender identities (hereinafter “violence based on prejudice”). Violence based on prejudice is a social phenomenon, addressed toward specific social groups, such as LGBT persons, it has a symbolic impact and sends a message of terror to the LGBT community in general. Similarly, the IACHR considers violence against intersex persons as being violence based on prejudice against bodily diversity, and more specifically against persons whose bodies differ from the socially accepted standard for female and male bodies. 1 The IACHR uses the LGBTI acronym when referring to lesbian, gay, bisexual, trans and intersex persons. When referring to violence only experienced by lesbian, gay, bisexual, and trans persons, the IACHR uses the LGBT acronym. Inter-American Commission on Human Rights | IACHR 12 | Violence against Lesbian, Gay, Bisexual, Trans and Intersex Persons in the Americas Chapter 3 4. With respect to legislation that expressly criminalizes same-sex intimacy, the IACHR notes that eleven OAS Member States in the Commonwealth Caribbean maintain laws criminalizing private, consensual, adult sexual activity, and one such state has legislation that criminalizes cross-dressing, which has an impact on the lives of trans persons. Even if prosecutions are not common, the IACHR notes that this type of legislation contributes to an environment that condones discrimination, stigmatization, and violence against LGBT persons. These laws reinforce existing societal prejudices and increase the negative effects of such prejudices on the lives of LGBT persons, particularly in contexts where the violence based on prejudice against LGBT persons is pervasive. These laws provide a social sanction for abuse, breed intolerance, and have been used to justify arbitrary detention, police abuse, and extortion and torture. As a result, LGBT persons are drawn into the criminal justice system. Once such persons are
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