‘Old-fashioned alpha males’ against ‘professional homosexuals’: media justice and discriminatory reporting in the wake of the Greek #MeToo movement

Dr. Dimitris Akrivos, Lecturer in Media Law, University of Essex

From the exposure of Hollywood producer Harvey Weinstein’s crimes to the Westminster sexual harassment scandal, the #MeToo movement has in recent years spread around the world, empowering survivors of sexual violence to share their traumatic experiences on social and news media. It was not until January 2021, however, that the impact of the movement became apparent in Greece.

Talking in an online event about the protection of children in sports on the 14 January 2021, Greek Olympic medallist Sofia Bekatorou publicly accused the vice president of the Hellenic Sailing Federation of sexually assaulting her in 1998. Bekatorou’s allegations led to the emergence of the hashtag #metinSofia (i.e. with Sofia) on Twitter with many other athletes but also actresses, singers and influencers following her example and reporting their own experiences of physical and/or psychological victimisation by powerful men (including famous actor Giorgos Kimoulis as well as actor and former Deputy Minister of Social Security Pavlos Haikalis). It was no surprise that, due to the celebrity status of many of the alleged victims and perpetrators, such claims dominated the Greek news agenda during these past two months alongside stories about the COVID-19 pandemic.

In February 2020, the Greek #MeToo movement acquired even greater momentum with clear political ramifications when former director of Greece’s National Theatre Dimitris Lignadis was remanded over allegations of serial rape – some of which involved underage victims. Responding to criticisms for appointing Lignadis, culture minister Lina Mendoni stated that he is a ‘dangerous man’ who ‘deceived her’ and ‘with deep acting talent tried to convince her that he had nothing to do with all this’. At the same time, Lignadis’ defence attorney Alexis Kougias dismissed the allegations against his client as a ‘crude fabrication’ made by ‘professional homosexuals’.

The news media’s involvement in Lignadis’ and all the other cases forming part of the Greek #MeToo movement constitutes an indicative example of what Greer and McLaughlin (2010: 27) define as a trial-by-media: ‘a dynamic, impact-driven, news media-led process by which individuals – who may or may not be publicly known – are tried and sentenced in the “court of public opinion”.’ In the era of 24/7 news, media seek to perform an alternative function of ‘justice’ which runs parallel to that administered by formal institutional authorities. There is an undeniable benefit in shedding light to such historic cases of sexual violence and thereby encouraging an honest, free-from-stigma discussion around the issue. Despite its belated emergence (or possibly because of it) the Greek #MeToo appears to extend the boundaries of the movement even further by also placing emphasis on cases of gender-based workplace bullying as well as male victimisation.

The shortcomings of this ‘trial-by-media’, however, including its impact on the defendant’s right to a fair trial, the consequent reputational damage and the risk of vigilantism also need to be taken into consideration. In the context of the ongoing discussion on the allegations made, journalistic objectivity and due process can easily give way to moralising, sensationalist speculation about the motives and actions of the accused who are assumed to be ‘guilty until proven innocent’ and therefore deserving to be ‘named and shamed’.

In addition, the homophobic dimension of some of the relevant mediated discourse also need to be highlighted. From the Greek state television censoring a gay kiss from an episode of Downton Abbey to bishop Amvrosios publicly urging people to ‘spit on gays’ because they are ‘freaks of nature’ and the killing of LGBT+ activist Zak Kostopoulos by the police, there is still a lot of progress to be made in order for LGBT+ people to achieve equal rights in Greek society. This is something that became even more apparent with the recent rise of the Greek #MeToo.

Apart from Kougias building Lignadis’ defence around claims (in Greek) of ‘crude lies’ told by ‘professional homosexuals’ who are ‘untrustworthy personalities’, the language used in some relevant news stories in the Greek press has been salacious, offensive and discriminatory: indicatively, tabloid newspapers ran controversial front-page stories with headlines like ‘Fa—[anti-gay slur] and paedophile bathhouse brings down the government’ (Makeleio, 20 February 2021), ‘Dirty nights with Ali and Saleem: dark-skinned boys at Lignadis’ disposal’ (Espresso, 25 February 2021) and ‘Homosexuals, perverts and paedophiles run the country with Mitsotakis [the incumbent Greek PM] in charge’ (Makeleio, 27 February 2021).

Such stories clearly associate homosexuality with paedophilia, creating a ‘signification spiral’ (Hall et al., Policing the Crisis, 1978) in the context of which both behaviours are constructed as sexual ‘perversions’. Such an association is intrinsically linked to and largely legitimised by the patriarchal discourse used by some of the accused to explain their actions – for example, Haikalis’ claim that he is an ‘old-fashioned alpha male’ – which also favours a view of non-heterosexual masculinities as deviant and socially reprehensible (Buchbinder, Studying Men and Masculinities, 2013).

There is extensive research on moral panics and the media’s role in marginalising social groups, portraying them as ‘folk devils’ who allegedly behave in ways that pose a risk towards society’s dominant moral values (Cohen, Folk Devils and Moral Panics, 2002[1972]). The aforementioned homophobic reporting can largely be made sense of within this framework. What is disconcerting, however, in the case of Greek media is not merely the exposure but most importantly the limited protection offered to LGBT+ people against such prejudicial and sensational media coverage on a regulatory level.

On the one hand, ESIEA, which is main trade union of Greek journalists based in Athens, provides in its Ethical Guidelines for Journalists (in Greek) that news reporting should be free from ‘discrimination based on nationality, sex, ethnicity, religion, political beliefs, financial situation and social status’ [Article 2(a)]. Although discrimination on the basis of gender identity or sexual orientation could in principle fall under the broad category of ‘social status’, it could be argued that the Code’s failure to refer explicitly to this particular form of discrimination creates an ambiguity which allows cases of homophobic reporting like those mentioned earlier to emerge without any threat of serious sanctions.

On the other hand, the National Council for Radio and Television (NCRT), which is the main regulator for public and private broadcast Greek media, seemingly adopts a more inclusive approach in its Code of Ethics for News and other Current Affairs and Political Programmes (in Greek): Article 4.1 of the Code specifically states that discriminatory reporting based on sexual orientation is not allowed while Article 4.2, which prohibits demeaning comments towards ‘ethnic and religious minorities and other vulnerable or powerless social groups’ (emphasis added), potentially covers sexual minorities too even if these are not explicitly mentioned.

This prima facie protection from discriminatory reporting offered by the NCRT Code to LGBT+ people is contradicted by the Council’s regulatory practice which has on several occasions led LGBT+ supporters to accuse NCRT of institutional homophobia and transphobia. For instance, in 2013, NCRT rejected (in Greek) the request of the Athens Pride organisers to air the event’s TV spot on all major Greek TV stations free of charge on the grounds that the spot ‘could not be described as one with a social message’.

Similarly, in 2010, NCRT imposed a fine of €20,000 on the Star Channel afternoon show Fotis and Maria Live for interviewing trans actress and author Betty Vakalidou based on the following rationale (emphasis added):

‘the issue of homosexuality (the sexual preference for individuals of the same sex) and of sex change with or without surgical intervention that was presented in the show constitutes a social issue and a reality that concerns only a small minority of people. It constitutes a condition that goes beyond the normal and, for that reason, it largely sounds strange to the underage viewer… The presentation of information about the sex life of homosexuals or transsexuals, about the sex change procedure and the feelings and experiences of the woman being interviewed, could possibly have a negative impact on underage viewers.’

Such discourse not only fails to protect LGBT+ people from discrimination but has the potential to add to their vulnerability and marginalisation even further by portraying them as ‘others’ who live outside the boundaries of the normal, heterosexual society. By prioritising a moralistic argument about how a discussion on LGBT+ issues might affect underage viewers, it also neglects the impact that prejudicial media portrayals or the lack of media representation can have on LGBT+ people’s mental well-being, self-image and aspirations. Positive LGBT+ representation in the news and entertainment media can play a key role in promoting social acceptance and tackling homophobic and transphobic violence. In a country like Greece where, according to a 2020 survey by the EU Agency for Fundamental Rights, 73% of LGBTI individuals avoid holding hands in public out of fear of being assaulted, threatened or harassed (one of the highest percentages among the 28 EU member states), it is profoundly disappointing and alarming that regulatory bodies like the NCRT fail to see the importance of responsible media reporting in creating a more inclusive Greek society and thereby improving LGBT+ individuals’ quality of life.

Finally, it is worth noting that, in our multi-mediated world, those identified as ‘folk devils’ and their advocates can use different outlets to challenge their demonisation in mainstream media instead of being completely defenceless against it. Following Kougias’ statement about his client’s reputation being tarnished by ‘professional homosexuals’, several well-known public figures hastened to criticise the lawyer’s language on news and social media: songwriter Foivos Delivorias condemned (in Greek) Kougias’ attempt to associate homosexuality with paedophilia and rape while, in a sarcastic move, both he and journalist Elena Akrita changed their employment statuses on Facebook to ‘Employed at Professional Homosexuals’.

The power to resist the conservative ideology of traditional media, however, does not change the fact that more work is required by media professionals and the relevant authorities in order to approach and report on the complex issues raised by the #MeToo movement sensitively. The Greek #MeToo movement can be seen as a tipping point which has the potential to effect societal change by eliminating the stigma attached to those issues and encouraging an open dialogue around them. But, as shown by some of the news coverage in former National Theatre director Dimitris Lignadis’ case, more responsible reporting is needed for this potential to be materialised.

In an attempt to show it is taking these allegations seriously (and perhaps also to divert attention away from its own unforeseen implication in Lignadis’ scandal), the Greek government set up the website metoogreece.gr to provide victims with the contact details of relevant support services. Allegations of rape, sexual assault, paedophilia and bullying against Lignadis and other powerful men of the Greek show business still dominate the Greek media at the time of writing. The exact number of victims and perpetrators, the actual impact of the ongoing ‘trial-by-media’ on due process and ultimately the extent to which the Greek #MeToo movement will succeed in rocking the hetero-patriarchal foundations of the Greek society remain to be seen.

This piece was originally published on The International Forum for Responsible Media and is reproduced here with permission and thanks.

The Defamation ‘Drag Race’ against Laurence Fox

Photo by Harry Quan

Dr. Alexandros Antoniou and Dr. Dimitris Akrivos, School of Law, University of Essex

On 6 October 2020, Drag Race UK participant Crystal publicly announced her intention to pursue a defamation action against actor and aspiring politician Laurence Fox after calling her a ‘paedophile’ on Twitter.

The comment was made in relation to an earlier tweet posted on Sainsbury’s account, which expressed support for Black History Month. Fox accused the supermarket of promoting ‘racial segregation and discrimination’ and encouraged people to boycott the groceries retailer. Crystal criticised Fox’s tweet, writing: ‘Imagine being this proud of being a racist! So cringe. Total snowflake behaviour.’ In response, Fox tweeted: ‘Says the paedophile.’

The reality show contestant claimed that Fox’s comment on the microblogging platform amounted to ‘homophobic defamation’. In her statement, she said: ‘An accusation of paedophilia is one of the oldest homophobic tropes, and it was very shocking to have that levelled at me, not just by Mr Fox, but also his many followers who believed him. I may have had to endure homophobic bullying as a child, but I will not tolerate it as an adult.’

Crystal is the second individual seeking to bring a legal action against the actor over comments on the social networking platform. Simon Blake, deputy chair of the LGBT rights organisation Stonewall, also advised his lawyers to begin defamation proceedings against Fox, after the actor called him a ‘paedophile’ as well. Earlier, Blake had challenged him over his Sainsbury’s tweet by writing ‘What a mess. What a racist t**t’, to which Fox replied: ‘Pretty rich coming from a paedophile.’

Fox subsequently deleted his tweets, but screenshots continued to circulate online. He appears to have regretted posting these comments. In a Channel 5 interview, he stated: ‘It was in response, possibly, to 10 months now of being called a racist by people on Twitter, which I think is a career-ending slur, actually, and I find very hurtful. If the point is that words mean nothing, seeing as it’s a totally baseless allegation and is entirely in opposition to what my feelings are, I thought, you know what, if words meaning nothing nowadays, I can call you anything I want in return. Was it my finest hour? No.’

Defamation is committed by publishing a statement which lowers the reputation of the person referred to. In order to succeed in an action for defamation, the claimant must prove that the statement complained of was defamatory; that the statement was published and referred to the claimant; and that the publication of the statement has caused or is likely to cause serious harm to the claimant’s reputation. Whilst it is well-arguable that Fox’s tweets could provoke strong feelings against Crystal and Blake, the introduction of a serious harm threshold is one of the major changes introduced by the Defamation Act 2013 and is likely to prove a challenge when/ if these cases come before the court.

The early judicial opinion in Cooke and Anr v MGN Ltd and Anr [2014] EWHC 2831 suggests that in cases involving grave imputations serious harm will be so obvious that the need for evidence can be dispensed with, such as where an individual was wrongly accused of being ‘a terrorist or a paedophile’ in a national newspaper (Mr. Justice Bean, para. 43). More recently, however, the Supreme Court held in Lachaux v Independent Print Ltd and Anr [2019] UKSC 27 that, in assessing whether a publication has caused serious harm to reputation, the meaning of the words and their inherent tendency to do harm are not the sole factors. As Lord Sumption stated:

The reference to a situation where the statement ‘has caused’ serious harm is to the consequences of the publication, and not the publication itself. It points to some historic harm, which is shown to have actually occurred. This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. The same must be true of the reference to harm which is ‘likely’ to be caused. In this context, the phrase naturally refers to probable future harm.

Para. 14

So, the threshold has been raised and its application is to be determined with reference to a two-pronged test, i.e. the meaning of the words, plus their actual impact. The Supreme Court recognised, nevertheless, at para. 21 of the decision that inferences of fact can still be drawn from the circumstances and context of the publication, including factors like the scale of publication and the gravity of the allegation(s). The same court confirmed the importance of context in Stocker v Stocker [2019] UKSC 17, where the fact that publication was in a Facebook post was critical, as Facebook is ‘a casual medium; it is in the nature of conversation rather than carefully chosen expression; and that it is pre-eminently one in which the reader reads and passes on’ (Lord Kerr, para. 43). Twitter is not too dissimilar. One of the messages sent is that in many instances not much thought is invested by people publishing on forums like these, and so far as defamation is concerned, ordinary readers on such platforms recognise this and are not overly analytical: ‘People scroll through it quickly. They do not pause and reflect. They do not ponder on what meaning the statement might possibly bear. Their reaction to the post is impressionistic and fleeting’ (Lord Kerr, para. 44; see also Monir v Wood [2018] EWHC 3525, para. 90, Mr. Justice Nicklin).

A similar approach had earlier been taken in Monroe v Hopkins [2017] EWHC 433, in which Twitter was seen by Mr. Justice Warby as ‘a conversational medium’ to which ‘an impressionistic approach is much more fitting and appropriate’ (para. 35), taking into account the immediately surrounding contextual material. But, would it be fair to say that crude, provocative and controversy-seeking messages on Twitter are not often taken seriously because they are considered by ordinary readers ‘mere abuse’ or are perhaps expected in a forum of this nature? And, does it follow that the harm suffered will often be less serious? Every case depends on its own facts, but in Monroe, Mr. Warby Justice had little difficulty in accepting that the absence of evidence that a tweet was believed was not evidence of a lack of harm (para. 71).

Ultimately though, does it really make a difference if someone is accused of paedophilia in a ‘casual’ social medium like Twitter or a national newspaper? In our multi-mediated world, the so-called ‘trial-by-media’ – which often involves a sensationalist, moralistic speculation over the actions and motives of those who find themselves accused in the ‘court of public opinion’ – extends beyond news stories produced by professional journalists to also cover claims made on social media. More importantly, the age of ‘fake news’, the Jimmy Savile scandal and the #MeToo movement is also an age of mistrust towards society’s institutions (including traditional media organisations), especially when the matter at issue is paedophilia. From this perspective, social media have the power to challenge the top-down information flow in contemporary democratic societies and therefore their ordinary users might attribute more importance to content like Facebook posts or tweets than they are often assumed to.

With regard to how a tweet containing accusations of paedophilia could be interpreted, it is also worth briefly noting here the similarities between Fox’s case and that of the equally temperamental Tesla CEO Elon Musk, who was sued for defamation in the USA by a British cave explorer, Vernon Unsworth, after Musk called him a ‘pedo guy’ on Twitter in 2018. Musk claimed at the time that he used the term as a generic insult meaning ‘creepy old man’ and not with the intention to literally accuse Unsworth of paedophilia – an explanation that was accepted by the Los Angeles court which cleared Musk a year later. However, coming back to Fox’s tweets, an assessment of the harm they could cause to the claimants’ reputation would be deficient without a careful consideration of their identities and, particularly, their sexuality. Targeted towards two members of the LGBT community, Fox’s claims acquire an additional layer of meaning (and by extension, a greater capacity to harm) as they allude to the homophobic myth conflating homosexuality with child predation and paedophilia.

Post-Lachaux case law indicates that solely relying on the inherent tendency to cause harm may not be optimal for the success of a libel claim. Adducing as much evidence as possible can maximise a claimant’s likelihood of success. This could include: first, reliable evidence as to the extent of publication. Although Fox’s tweets were deleted, a sound assessment can still be made of the scale of publication through a combination of the number of his followers, the number of profile visits to his ‘home page’ and Twitter analytics. Hence, efforts should be made prior to the deletion of the tweets to obtain and preserve the analytics data regarding publication. The importance of Twitter analytics was noted by Mr. Justice Warby in Monroe (para. 84). And, even if a tweet is deleted, ‘what matters […] is not the period of time for which a person is exposed to the message but the impact the message has’ (Monroe, para. 71). Second, evidence of serious harm in the form of abusive tweets from other Twitter users who had read the tweet complained of can also be helpful, so long as the alleged abuse is causally linked to the offending tweet and reflects harm to reputation (see Monroe, para. 71). Third, evidence of substantial further indirect (“grapevine”) dissemination of the allegations complained of would be useful; as Fentiman v Marsh [2019] EWHC 2099 suggests, the likelihood of repetition of the allegation beyond the original publishees may be ‘typically’ inferred in cases involving social media (para. 55). Finally, evidence of the statement’s adverse effect on the way right-thinking members of society generally would treat the claimant could strengthen the serious harm argument, but the absence of direct evidence of adverse impact does not of itself mean a claim should fail. As noted earlier, Lord Sumption in Lachaux referred to the court’s ability to draw inferences and to the ‘inherent probabilities’ (para. 21).

At the time of writing, letters of claim have not been issued. If, however, the cases eventually reach the court, a difficult evidential burden will have to be shouldered. In the absence of such evidence, serious harm arguments may be open to question and weakened.

This post first appeared on the International Forum for Responsible Media Blog and is reproduced here with permission and thanks.

Discriminatory Torture of an LGBTI Person: Landmark Precedent Set by the Inter-American Court

Photo by Harry Quan

Professor Clara Sandoval (University of Essex), Chris Esdaile (REDRESS) and Alejandra Vicente (REDRESS)

Trigger warning: this report contains a description of sexual violence.

In the midst of the coronavirus crisis, the Inter-American Court of Human Rights (IACtHR) has issued a landmark judgment in the case of Azul Rojas Marín and Another v. Peru, enhancing the rights of LGBTI persons, and setting new standards with the potential to reduce the levels of violence suffered by this group both within and beyond the Americas. Through this case the IACtHR has developed the concept of “violence motivated by prejudice”; it concluded that discrimination based on sexual orientation can lead to arbitrary detentions of LGBTI people; it has developed its understanding of discriminatory torture; and it has set specific due diligence standards to ensure the effective investigation of these cases. The Court has ordered Peru to provide reparations to Azul including the implementation of important guarantees of non-repetition.

The case of Azul is not an isolated decision to protect LGBTI rights in the Inter-American System. Both the Inter-American Commission (IACHR) and IACtHR have been at the forefront of the protection of LGBTI rights, as illustrated by the Court’s controversial but significant Advisory Opinion 24/17 on Gender identity, and equality and non-discrimination with regard to same-sex couples, and cases such as Atala Riffo and daughters v. Chile and Duque v. Colombia. However, the Azul case goes a step further and complements other key European Court of Human Rights (ECtHR) cases such as M.C and A.C v. Romania and Identoba and others v. Georgia where the ECtHR found violations of the prohibition of torture and inhuman or degrading treatment and discrimination in relation to applicants who participated in peaceful LGBTI demonstrations, considering the States’ failure to protect demonstrators from homophobic violence and the lack of effective investigations.

What happened to Azul?

Azul Rojas Marín is a transgender woman, who at the time of the events self-identified as a gay man. She was detained late at night on 25 February 2008 by members of the Peruvian police when she was walking home. Some of the officers knew who Azul was. They insulted her and made derogatory remarks about her sexual orientation. She was forcibly taken to a police station and kept there for almost six hours, although her detention was not officially registered. During her detention, Azul was stripped naked, beaten repeatedly, and anally raped with a police baton. The insults and derogatory remarks about her sexual orientation continued throughout. She was released early the next day.

Azul reported the crime to the authorities, but they did not believe her and did not investigate properly. Different members of the justice system revictimized Azul. During the reconstruction of the crime scene, Azul was forced to face her perpetrators while they made fun of her. The prosecutor was present during her medical examination, without Azul’s consent, and kept making comments to influence the findings of the doctor. Azul’s complaint was eventually dismissed. To date, no one has been held to account or punished for what happened.

The litigation of the case

In this context REDRESS, the Coordinadora Nacional de Derechos Humanos (CNDH) and Promsex, joined efforts and filed a complaint before the IACHR in April 2009. Peru challenged the admissibility of the case, and presented various arguments to the Court on the merits.

The case was decided on the merits through the IACHR’s report 24/18. Given that Peru did not comply with the recommendations made by the IACHR, the case was referred to the Court in August 2018. The Commission noted this would be the first case before the IACtHR dealing with violence against LGBTI persons. The Court held a hearing in August 2019, and decided the case in March 2020, making significant findings of facts and law.

The arbitrary detention of LGBTI persons can be inferred when there are signs of discrimination and no other apparent reason for the detention

Peru argued that the detention of Azul took place in order to carry out an identity check as she did not have her ID with her (124). Peru disputed the length of the detention. However, the Court found that the detention was not carried out in accordance with domestic law, that one of the officers who detained Azul knew who she was, and that derogatory comments about her sexual orientation were made. The Court, following the views of the UN Working Group on arbitrary detention and those of the expert Maria Mercedes Gómez, considered that the lack of a legal basis for Azul’s detention and the existence of discriminatory elements together inferred that she was detained based on her sexual orientation (128), which automatically rendered the arrest arbitrary. The development of this standard could be crucial to combat arbitrary arrests of LGBTI people around the world for reasons based on a person’s sexual orientation or gender identity, including in the context of COVID-19.

The purposive element of the definition of torture incorporates discrimination based on sexual orientation and gender identity

Peru alleged that it was not proven that sexual violence took place, because the domestic courts were unable to establish it due to the lack of direct evidence of the crime (138 and pleadings before the IACHR). It also argued that torture did not take place because two elements of the crime were missing: the intent and the purpose.

The IACtHR concluded Azul was anally raped while in detention. In contrast to the domestic courts’ approach, the IACtHR reached this conclusion by assessing various pieces of evidence, including Azul’s statements, medical examinations and the forensic analysis of the clothes she wore at the time of the events (157). The IACtHR considered that what happened amounted to torture as the intentionality, severity and purposive elements were met. Further, the Court expanded the list of specific purposes by which sexual violence can constitute torture, to include the motive of discrimination based on the sexual orientation or gender identity of the victim. Following the expert opinions of Juan Méndez and Maria Mercedes Gómez, the Court found that sexual violence that involves anal rape, especially when carried out with a tool of authority such as a police baton, all while derogatory remarks were made, shows that the specific motive of the crime was to discriminate against Azul (163).

The Court went further to label it as a hate crime given that it was the result of prejudice (165), and stated that the crime not only breached Azul’s rights but also the freedom and dignity of the whole LGBTI community (165). This finding constitutes a major development under international law as this is the first case decided by an international tribunal to conclude that torture can take place with the specific purpose of discriminating against a person because of sexual orientation or gender identity.

States have a duty to investigate violence motivated by discrimination against members of the LGBTI community

Peru argued that as soon as it learned about Azul’s allegations, it opened an investigation that was carried out with due diligence (172), although this was disputed by Azul’s legal representatives. Given the prevailing levels of impunity for such crimes in the Americas the IACtHR made a careful assessment of the facts in this regard.

The IACtHR reiterated its case law regarding due diligence in cases of sexual violence, but extended their application to violence against LGBTI persons, adding new dimensions to its existing standards. Notably, the Court found that when investigating violence States have a duty to take all necessary steps to clarify if it was motivated by prejudice and discrimination (196). The Court said that this implies that the State should collect all the required evidence, provide full reasons for its decisions and decide in an impartial and objective manner. The authorities should not ignore any facts that could establish that the violence was motivated by discrimination (196). In the case of Azul, the authorities never considered discrimination and did not pursue this line of investigation. This finding by the Court demonstrates its ongoing dialogue with the ECtHR, as it took note of Identoba (67) (which set a similar precedent but in relation to ill-treatment). However, in contrast to the ECtHR, the IACtHR does not make any reference to the difficulty of the task or the fact that it is, in the views of the ECtHR, “an obligation of best endeavours, and is not absolute”.

The Court also noted that investigations should avoid the use of stereotypes. In this case, local prosecutors undermined the declaration of Azul by stating, “but if you are gay, how am I going to believe you?” (200), and by inquiring about her past sex-life. The Court noted that such stereotypical lines of inquiry should not be used in cases of sexual violence, including when that violence is committed against members of the LGBTI community (202). This is another important contribution of the Court to the protection of LGBTI people under international law, which does not exist under ECHR jurisprudence.

The IACtHR tackles structural discrimination through reparations

The IACtHR ordered very holistic forms of reparation for both individual as well as societal harm. From an individual perspective, the Court recognised Azul and her mother as victims in the case and awarded them compensation for pecuniary and non-pecuniary damage. The Court also ordered that there should be a public ceremony, where senior government figures recognise the State’s international responsibility (232-234). It also required the State to provide rehabilitation to Azul for physical and psychological harm, including access to medicines and transport expenses necessary to undergo treatment (236).

But what is most remarkable about this judgment, and which Peru challenged during the litigation, are the measures requested by Azul and awarded by the Court to address structural discrimination as a cause of hate crimes. The Court ordered Peru to adopt a protocol for the effective criminal investigation of violence against members of the LGBTI community. The protocol shall be binding under domestic law, instruct State representatives to abstain from applying stereotypes (242), and include due diligence standards developed by the Court in the judgement (243). The Court instructed the State to provide training to members of the justice system and the police on LGBTI rights and due diligence investigations. Additionally, Peru must implement a data collection system to officially register all cases of violence against members of the LGBTI community, including disaggregated information (252).

Finally, the Court ordered Peru to eliminate from its local/regional security plans the reference to ‘eliminate homosexuals and transvestites’ since this exacerbates discrimination against members of the LGBTI community (255).

So far Peru has not commented publicly on the judgment, and it is expected that it will act in good faith and implement the judgment in full.  


The case of Azul Rojas Marin enhances the protection of LGBTI persons from violence and discrimination.

This decision is also a wake-up call for States, at a time when some governments in the region, including Peru and Panama, are responding to COVID-19 by adopting a gender-based alternating lock-down schedule restricting essential business such as grocery shopping. These new measures take into account only the sex that appears in identity documents, and such a simplistic method has generated a negative reaction from the LGBTI community. Hopefully, the Inter-American decision in Azul’s case will remind authorities that even emergency responses should not lead to discrimination, especially when the particular vulnerabilities of the LGBTI community require a more sensitive approach.

The authors of this blog have been representing Azul in the litigation before the Inter-American System on behalf of REDRESS.

This piece was first published on the Blog of the European Journal of International Law and is reproduced here with permission and thanks.

Essex Lawyer Plays Part in Landmark Legal Judgment in Latin America

Photo by Jose Pablo Garcia

An Essex lawyer has helped win a landmark judgment at the Inter-American Court of Human Rights, supporting the human rights of LGBTI people across the continent.

Trigger warning: this report contains a description of sexual violence.

Professor Clara Sandoval, from the School of Law and Human Rights Centre, has been litigating for over ten years on behalf of Azul Rojas Marín, a transgender woman, who was beaten, stripped naked and subjected to torture and rape by Peruvian police in February 2008.

Rojas Marín (who at that time self-identified as a gay man and now self-identifies as a woman) was arrested arbitrarily. Throughout the process, the police officers made derogatory remarks about her sexual orientation.

On 6 April, The Inter-American Court of Human Rights (IACtHR), the ultimate authority on human rights in the Americas, found Peru responsible for torture and sexual violence against an LGBTI person. It is the first time in its history that the IACtHR has considered a case of discriminatory torture.

The Court found Peru responsible for the violation of a range of rights in relation to Rojas Marín, in breach of its obligations to respect and ensure those rights without discrimination. Peru was also found responsible for the violation of the right to personal integrity of Rojas Marín’s mother, who died in 2017. 

On learning of the ruling, Azul Rojas Marín said:

I am very grateful to all the people who have made this possible. I have no words to describe how I feel. I thank God above all. After all that I have been through, finally a court believes me. I only wish I could have been able to share this joy with my mother, who was always alongside me in my efforts to report the crime and find justice.

In its ruling, the IACtHR determined that the State of Peru did not act with due diligence in its investigation of the sexual torture of Rojas Marín and its violation of the rights to judicial guarantees and judicial protection. The Court found that the process was riddled with discriminatory stereotypes and the Peruvian authorities should have investigated whether there were reasonable indications that the violence had been motivated by discrimination.

The Court ordered Peru to adopt a series of measures to redress the damage to Azul Rojas Marín and prevent these crimes from being repeated. They reaffirmed that a person’s sexual orientation, gender identity or gender expression are categories protected by the Inter-American Convention on Human Rights.

Professor Sandoval, whose recent work includes focusing on reparations for gender-based violence, said:

This is a landmark judgment where the Court develops, for the first time, the concept of torture as a result of discrimination because of sexual orientation, and where the tribunal tries to address some of the structural causes of these violations, including discrimination, by ordering Peru to implement significant reparation measures to prevent recurrence of the violations. This judgment paves the way in fundamental ways for the future protection of members of the LGBTI community in the Americas and around the world.

Rojas Marín brought her case before the Inter-American System of Human Rights with the legal assistance of the Center for the Promotion and Defense of Sexual and Reproductive Rights (Promsex), the National Coordinator of Human Rights (CNDDHH) and REDRESS, an international organisation that fights against torture. Professor Sandoval has been part of the REDRESS team litigating the case.

Jorge Bracamonte, Executive Secretary of the CNDDHH, said:

This ruling represents a historic opportunity for the Peruvian State to eradicate systematic violence against LGTBI people from its institutional practices and is a precedent of great importance for the protection of LGTBI people throughout the region.

This post first appeared on the website of the University of Essex and is reproduced here with permission and thanks.

Haim Abraham’s paper on Parenting, Surrogacy and the State cited by the Supreme Court of Israel

The Israel Supreme Court recently cited a paper written by Haim Abraham, Lecturer in Law at the University of Essex.

The paper titled ‘Parenting, Surrogacy, and the State’ demonstrates that Israel’s legislation, and regulation of assisted reproduction treatments, systematically discriminates individuals and same-sex couples based on sexual orientation, family status, or gender.

By surveying the legislative and social developments in Israel in relation to surrogacy and the conceptualisation of the family unit, Haim shows that the right to parenthood is a fundamental negative constitutional right which extends to the use of surrogacy treatments. Furthermore, Haim establishes that the prohibition on same-sex couples and single individuals to engage in surrogacy arrangements fails to adhere to the principle of proportionality, as other less discriminatory practices are available and the harm to same-sex couples and single individuals in the current legislation outweighs its benefits.

On 27 February 2020, the Supreme Court reached the same conclusion. It held that the current Surrogacy Act of 1996 discriminates against same-sex couples and single men, and that the infringement on the rights to equality and parenthood is disproportionate.

Haim Abraham’s full paper in Hebrew is available here.