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Nunca Más Meets #Niunamenos— Accountability for Pinochet-Era Sexual Violence in Chile

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Nunca Más Meets #Niunamenos— Accountability for Pinochet-Era Sexual Violence in Chile NUNCA MÁS MEETS #NIUNAMENOS— ACCOUNTABILITY FOR PINOCHET-ERA SEXUAL VIOLENCE IN CHILE Caroline Davidson* ABSTRACT Chile has been held up as a transitional justice success story. Emerging from a repressive dictatorship to democracy, it has made meaningful progress in grappling with brutal human rights violations through truth commissions and, more recently, criminal trials. Yet, the Chilean human rights prosecutions have a glaring hole. Courts have convicted scores of state agents for enforced disappearance, execution, and torture (or their equivalents in Chilean law at the time), but have failed to meaningfully address sexual violence crimes, even though almost all women detained by the regime were victims of some form of sexual violence, and many were raped. Recent, however, the issue seems to be gaining more judicial attention. This Article explores the question why it has taken so long for Chilean courts to reach the issue of dictatorship-era sexual violence. The reasons include the “pacted” Chilean transition, deficiencies in Chilean criminal law and procedures on sexual violence, lack of resources for sexual violence prosecutions, normalization of violence against women, and the reluctance of survivors to come forward when the likelihood of success was exceedingly low. The Article also examines the confluence of cultural and legal forces—perhaps most importantly, feminist mobilization and greater judicial openness to * Associate Professor, Willamette University, College of Law. I would like to thank the University of Chile’s Faculty of Law for welcoming me as a visiting scholar in 2017–2018 and Willamette University for supporting my sabbatical research. I also must thank fellow participants in the American Society for International Law’s research forum for their valuable suggestions on an early draft of this article, in particular Jorge Contesse. A special thanks to Myrna Villegas, Cath Collins, and Francisco Ugas, whose early and sustained assistance in suggesting interviewees and tracking down information was invaluable. Above all, I am indebted to the many Chilean lawyers, judges, activists, and scholars who took time away from their important work to speak with me. Any errors are my own. 100 COLUMBIA HUMAN RIGHTS LAW REVIEW [51.1 international norms—that have given rise to recent attempts to litigate sexual violence. Ultimately, it seeks to draw lessons from the Chilean transitional justice experience for future domestic prosecutions for sexual violence in the context of mass atrocities. 2019] Nunca Más Meets #NiUnaMenos 101 TABLE OF CONTENTS Introduction ......................................................................................... 103 I. Background ....................................................................................... 106 II. Taking Sexual Violence to the Courts ........................................... 116 A. Methodology ................................................................................ 117 B. Past Treatment of Sexual Violence in Chilean Human Rights Cases ................................................................................................ 119 C. Recent Efforts to Focus Judicial Attention on Sexual Violence as a Tool of Repression under Pinochet .............................................. 124 D. The Framing Question—Rape, “Political Sexual Violence” or Torture ............................................................................................. 132 1. Political Sexual Violence (“Violencia política sexual”) ......... 133 2. Rape as a Crime Against Humanity ...................................... 136 3. Sexual Violence as Torture .................................................... 137 III. Why the Slow Path to Justice? ..................................................... 139 A. Pacted Transition, Priorities, and Frames................................ 139 1. The Truth Commissions Frame—Prioritizing the Disappeared and the Dead ............................................................................... 139 2. Preservation of this Hierarchy in Prosecutions .................... 142 3. Role of Catholic Church in Early Efforts at Finding Disappeared................................................................................. 143 B. Legal Barriers ............................................................................. 144 1. Narrow Definition of Rape and Theories of Accountability . 144 2. Proof and the Passage of Time ............................................... 145 3. Failure to Comprehend Sexual Violence as an International Crime ........................................................................................... 147 4. Tendency to Convict for One Crime ....................................... 148 C. Resources—Lawyers, Experts, and Support ............................. 150 D. Cultural Norms on Gender and Status Quo of Impunity for Sexual Violence Generally .............................................................. 152 E. Reluctance of Survivors to Come Forward with Claims of Sexual Violence? .......................................................................................... 155 1. Silence of Survivors? ............................................................... 156 2. Process Is Traumatic and Re-victimizing .............................. 159 F. Fragmentation of Human Rights Movement ............................ 162 IV. Why Now? ...................................................................................... 164 A. Reclaiming Agency / Shifting the Narrative of Victimhood ..... 164 B. Feminist Mobilization ................................................................ 166 C. Seizing on Developments in International Law ....................... 168 D. Greater Judicial Openness to International Norms ................ 171 E. Regional Momentum .................................................................. 173 102 COLUMBIA HUMAN RIGHTS LAW REVIEW [51.1 F. Now or Never .............................................................................. 174 V. Lessons from the Chilean Transitional Justice Experience on Sexual Violence .................................................................................... 175 Conclusion ............................................................................................ 179 2019] Nunca Más Meets #NiUnaMenos 103 INTRODUCTION In the world of transitional justice, Chile is considered something of a success story.1 The country transitioned from a brutally repressive dictatorship to a democracy, and Chile has attempted to grapple with its legacy of grave human rights abuses through truth commissions and, more recently, trials. Chilean courts have seen a massive wave of cases involving human rights violations committed during the country’s dictatorship, which spanned 1973 to 1990. Some 1,500 criminal cases based on dictatorship-era human rights abuses are making their way through the courts, with roughly 350 convictions so far.2 Still, the Chilean justice system’s massive human rights reckoning has overlooked some important matters. While the courts have adjudicated many cases of disappearance, homicide, and, more recently, torture, the human rights prosecutions have largely ignored the issues of sexual and gender-based violence. Although judgments have occasionally mentioned sexual violence in passing, there has not 1. See, e.g., Human Rights ‘Success Stories’ Shared at the UN to Serve as Example, and Inspire Others, UN NEWS (Sept. 27, 2018), https://news.un.org/en/ story/2018/09/1021172 [https://perma.cc/NBP5-5GRS] (discussing former Chilean president Michelle Bachelet’s speech to the UN on recent human rights advances, including in Chile); Marny A. Requa, A Human Rights Triumph?: Dictatorship-Era Crimes and the Chilean Supreme Court, 12 HUM. RTS. L. REV. 79, 79–80, 106 (2012) (noting that Chile has received a lot of attention for its accountability efforts relating to dictatorship-era human rights violations, but cautioning that political support is necessary to achieve “consistent and comprehensive accountability”). The perception of Chile’s success may be shifting. As this article goes to print, the Chilean government has been criticized for human rights violations in the wake of massive protests over inequalities. 2. See Procesos en Chile, EXPEDIENTES DE LA REPRESIÓN (2019), http:// expedientesdelarepresion.cl/procesos-en-chile/ [https://perma.cc/6QY6-R6PG] (Chile) (stating that there are around 1,500 pending cases and 350 convictions). A report from the Ministry of Justice and Human Rights shows that, as of August 2018, 174 people were serving sentences at Punta Peuco, the detention center for people convicted of human rights crimes. Another 18 detainees died during their time in detention. JUAN JOSÉ OSSA SANTA CRUZ, MINISTERIO DE JUSTICIA Y DERECHOS HUMANOS, RESPONDE REQUERIMIENTO DEL H. DIPUTADO SR. OSVALDO URRUTIA SOTO, ORD. NO. 5081, anexo 1–2 (Aug. 22, 2018) (Chile) (on file with author). 104 COLUMBIA HUMAN RIGHTS LAW REVIEW [51.1 been a single criminal conviction for rape or other crimes of sexual violence.3 There are some signs that courts may finally turn their attention to sexual violence. Over the past decade, survivors of sexual violence have filed complaints focusing on the sexual violence perpetrated by state agents. 2018 marked the first time the Supreme Court of Chile (and possibly any court in Chile) recognized rape as a crime against humanity, albeit in a civil case for damages against the Chilean state.4 Moreover, in April of 2019, nine
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