ANALYSIS OF THE BRISA LAW PROJECT N° 010

The purpose of this article is to analyze whether the implementation of The Brisa Law Project N° 010 demonstrates the need to modify the Penal Code and the Code of Criminal Procedure in light of the shortcomings of the current criminal system, since it forces different victims of sexual violence to meet a series of requirements that prevent prompt action by the justice system by omitting the standards that must be met regarding enhanced due diligence, both in sexual violence crimes against children/adolescents and in sexual offenses in general.

The Brisa Law project arises from the judgment that the Inter-American Court of Human Rights (IACHR) imposed on the Plurinational State of Bolivia for its inadequate diligence in the case of Brisa de Angulo Losada vs. Bolivia, a victim of sexual violence. The Court concluded that Brisa’s right of access to justice was violated by failing to act with the enhanced due diligence required in cases of sexual violence against girls/boys and adolescents, obliging the State not only to compensate the victim in that case, but also to comply with a set of standards on victims’ access to justice in cases of sexual violence against children and adolescents. These standards apply not only to our country but also obligate States Parties to use this judgment to confront structural obstacles in their justice systems.

What did the Inter-American Court of Human Rights establish in its judgment?
In the case of Brisa de Angulo Losada vs. Bolivia, the Inter-American Court of Human Rights, in its judgment of November 18, 2022, established the following standards for access to justice in cases of sexual violence against girls and adolescents:

• States have the obligation to guarantee access to justice in cases of sexual violence without discrimination on grounds of gender or age, acting with enhanced due diligence when the victims are girls and adolescents.

• Investigations and judicial proceedings must be free from gender, age, or expected-behavior stereotypes, and may not impose undue evidentiary burdens or require behaviors such as physical resistance, immediate complaint, or absolute consistency of the account.

• Consent must occupy a central place in the analysis of sexual violence offenses. It cannot be inferred from silence, lack of resistance, or the victim’s prior conduct, especially where there are relationships of power, authority, or dependence.

• In contexts of power inequality, such as where the perpetrator holds a position of authority or there is a marked age difference, any presumed consent cannot be considered valid.

• Criminal figures such as the offense of “estupro” (statutory rape based on seduction or corrupted consent), which relativize sexual violence against adolescents by relying on notions of seduction or vitiated consent that are incompatible with international human rights standards, must be eliminated.

• States must adopt comprehensive measures of prevention, investigation, sanction, and reparation, including the development of appropriate protocols, specialized and continuous training for justice operators, and the provision of comprehensive services to victims to avoid revictimization.

These standards form regional precedents that should guide the response of justice systems of States Parties to sexual violence against girls/boys and adolescents, and they are already being implemented and must be implemented obligatorily, while respecting citizens’ constitutional rights and guarantees.

What modifications does the Brisa Law project propose to incorporate into criminal legislation?
The Brisa Law project proposes various changes concerning sexual offenses in both the Penal Code and the Code of Criminal Procedure, among which the following stand out:

1. Non‑prescription (imprescriptibility) of sexual violence crimes: allows these crimes to be reported regardless of the time elapsed since the commission of the offense.

2. Redefinition of consent: focuses on the absence of consent, eliminating the need for the victim to prove resistance to the reported act through marks demonstrating violence.

3. Incorporation of incestuous rape: typifies this offense as an aggravated form of sexual assault, increasing the penalty and preventing the use of filters that could detract from the main offense.

4. Elimination of “estupro”: removes this legal figure that left victims unprotected by centering on age and moral aspects instead of the sexual aggression.

Could the Brisa Law project cause harm by failing to filter false accusations?
Many criticisms on this point arise from misinformation, since the majority of complaints filed do not end in a conviction or acquittal of the accused person; about 70% of these proceedings end even before the preparatory stage due to the various requirements imposed on the victim so that the complaint contains elements that judges consider vital to prove the reported act. These requirements are precisely what end up violating the victim’s right of access to justice by constantly revictimizing them and by failing to make appropriate use of the Interinstitutional Route of the Public Prosecutor’s Office, which is already included in the procedural manual of our justice system.

In conclusion, the Brisa Law aims to obligate justice operators not to be guided by biased stereotypes. By strictly defining or typifying the different acts and settings in which abuses of minors occur, revictimization is avoided, leaving no room for interpretations that might result in abandonment of the victim’s complaint, and forcing the system and justice operators to adhere strictly both to the law and to the instruments they already possess when examining a sexual offense complaint.

Silvana Orieta Diaz Gutiérrez

Criminal Laywer