The author of the communication is Lucía (pseudonym), a national of Nicaragua born on 16 July 1999. She claims that the State Party has violated her rights under article 2 (3) of the Covenant, read in conjunction with articles 3, 6 (1), 7, 9, 17, 19, 24 (1) and 26; article 6, read alone and in conjunction with article 24 (1); article 7, read alone and in conjunction with article 24 (1); article 9; article 17, read alone and in conjunction with article 24 (1); article 19; and articles 3 and 26 of the Covenant. The author is represented by counsel. The Optional Protocol entered into force for the State Party on 12 June 1980.
On 19 and 26 April 2021, the Committee received two third-party submissions (see paras. 4 and 5 below and annexes I and II).
Facts as submitted by the complainant
The State Party has the highest proportion in Latin America of births among girls aged 18 years or below (28.1 per cent).4 Between 2000 and 2010, the pregnancy rate among girls aged between 10 and 14 years increased by 47 per cent.5 Between 2010 and 2015, an average of 1,500 girls between the ages of 9 and 14 years became pregnant each year, representing 5 per cent of all births.
- Jorge Rodríguez Vignoli, Fecundidad no deseada entre las adolescentes latinoamericanas: un aumento que desafía la salud sexual y reproductiva y el ejercicio de derechos (Unwanted fertility among Latin American adolescent girls: an increase that poses challenges for sexual and reproductive health and the exercise of rights), Economic Commission for Latin America and the Caribbean, 2017. ↩
- Planned Parenthood Global, Stolen Lives (2015). ↩
On 26 October 2006, pursuant to Act No. 603, article 165 of the Criminal Code, which established the right to therapeutic abortion in cases of girls who were victims of sexual crimes, was repealed. This reform to the Nicaraguan Criminal Code (Act No. 641) introduced full criminalization of abortion, with penalties of up to two years’ imprisonment for women and up to six years’ imprisonment and disqualification from practising medicine for health professionals who perform abortions with a woman’s consent. Since the adoption of this reform, numerous remedies of unconstitutionality have been filed, but to date, the Supreme Court has not ruled on the matter. On 12 January 2007, 32 remedies of unconstitutionality were filed against Act No. 603; to date, they have not been settled. On 15 July 2008, another 46 partial remedies for unconstitutionality were filed against articles 143, 144, 148 and 149 of the Criminal Code. Although some of these remedies have been admitted, the Supreme Court has not yet issued a decision.
Despite the introduction, in 2012, of the Comprehensive Care Model for women who are victims of gender-based violence,6 which aims to contribute to effective access to justice for women, children and adolescents, impunity remains high, with only approximately 10 per cent of assailants reported to the authorities having faced criminal charges.7
The author was born in Jinotepe, Nicaragua. At the time the events took place, she was 13 years old, in her second year of secondary education and living with her parents and younger brother in the municipality of La Concepción in the Department of Masaya, Nicaragua. Her family was Catholic, and her grandmother was a parish leader for the local church.
At the end of 2012, the author decided to join the Coro de Renovación Carismática – the parish youth choir in La Concepción – which was overseen by the main priest. She attended rehearsals several times a week and sang in the choir every Sunday. In February 2013, a new priest arrived in the parish and became the priest and spiritual guide for the group of young people who belonged to the choir. In early March 2013, the new priest asked the author for her phone number and began sending her messages. One of the messages he sent her read: “Would you have sex with an adult?” The author replied that she would not. A week after the message was sent, at the end of the prayer meeting, the priest asked the author to accompany him to the parish house. There, taking advantage of the fact that they were alone, he led her to a room with a bed, asked her to sit down and remove her clothes, and raped her, telling her “we are not doing anything wrong”. Afterwards, he said to her “if you are smart, you won’t say anything; think about who people will believe: me or you?” The author went home feeling scared and ashamed.
At the end of March 2013, the priest asked her to go to the church, where he raped her for a second time. He told her that they had a “spiritual relationship” and reminded her not to tell anyone. On that occasion, he gave her an emergency contraception pill and asked her to take it. The author did not understand what it was but obeyed and took it anyway. She stopped replying to the priest’s messages. He then intercepted her several times outside her school, threatened her, forced her into his car and took her to a motel, where he raped her on multiple occasions. In August 2013, he was transferred to another city. Nevertheless, he returned to Jinotepe six times to rape the author, telling her that she should buy emergency contraception pills so that she did not become pregnant. The author did not buy the pills as she was very embarrassed and did not have enough money for them. In July and August 2014, the priest intercepted the author on the street and forced her into his vehicle, where he raped her.
In late September 2014, the author’s mother noticed that her daughter did not want to leave the house and felt nauseous and tired. She thought she was suffering from gastritis and took her to the doctor’s office at the Alejandro Calero Health Centre in San Juan de la Concepción, where the doctor prescribed medication for gastritis. As there was no improvement, a week later they returned to the clinic where they were seen by a doctor who asked her if she had had sexual intercourse. The author replied that she had not, so the doctor ordered an abdominal and pelvic ultrasound examination. During the examination, the radiologist informed the author that she was 14 weeks pregnant and referred her for prenatal care. When she heard the news, she felt like she wanted to die and was afraid of having to tell her mother what had happened. She knew she had no choice but to have the baby. She did not want to have a baby; she wanted to continue studying, but her academic performance changed and she wanted to leave school.
On 23 October 2014, the author went for her first prenatal visit. As she was only 15 years old, the doctor considered it to be a high-risk pregnancy and referred her to the regional hospital, located one hour away from her home by bus. Although she was treated kindly at the regional hospital, the rules and protocols on prevention, detection and care for domestic violence were not followed. The case was not referred to the Special Police Unit for Women for investigation. She was not informed of her options. On 27 November 2014, she underwent a screening interview, which found that the pregnancy had been the result of rape, and she was referred to the psychology service. The author reports having attended only three meetings with the psychologist, who focused solely on “acceptance of motherhood”.
As soon as the author’s body began to change, her schoolmates made fun of her. In her local neighbourhood, they shouted “there goes the priest’s wife”. The author nevertheless continued with her studies until one month before the birth.
In February 2015, the author was harassed by a friend of the priest, who intercepted her in the street on several occasions and asked her to keep quiet. Her father alerted the police.
During the prenatal check-up, the doctor suggested a caesarean delivery based on the author’s age and physical condition and because she considered that, after rape, a natural delivery was not advisable and would be traumatic. In a subsequent consultation, a different doctor asked her if her parents had not looked after her. He examined her and determined that a vaginal delivery was feasible, arguing that both methods of delivery would be traumatic. On 4 April 2015, the author attended the regional hospital with pains. An attending physician said that her file contained a recommendation for a caesarean delivery. Before entering the operating theatre, the Foley catheter8 that had been fitted had to be changed because the author’s “physical size” had not been considered and the catheter had detached and caused a tear in the bladder. The author continues to suffer recurrent urinary tract infections as a result.
- A Foley catheter is a thin, flexible tube that is inserted through the urethra into the bladder to drain urine. ↩
After the caesarean delivery, the nurses provided post-partum care and pressured her to see and breastfeed the child. The author reports that she felt terrible and unprepared for motherhood. She was given no psychological or social work support after delivery, receiving only a post-partum check-up. Three months later, she returned to school and her mother cared for the child.
On 20 October 2014, the author’s parents went to the Special Police Unit for Women, Children and Adolescents in Masaya to file a formal criminal complaint for rape. Following medical and psychological evaluation, it was determined that the author did not require specialized treatment. Four days after the complaint was filed, the assailant’s lawyer asked the author’s parents to withdraw it, telling them that if they did, the priest would take care of the child and give them money. The priest’s lawyer gave them a waiver document stating that they would accept the sum of 15,000 córdobas (C$) (approximately US$ 450). The author’s parents returned the document unsigned.
The author’s parents requested information on the progress of the investigation. At the police station, however, they were reportedly informed that the police were “awaiting orders from above to proceed” because the accused was not a “mere mortal”. In March 2015, the author’s father filed a complaint with the Internal Affairs Division of the National Police in respect of the lack of action taken by the local police. In the complaint, he highlighted the delay in referring the case to the Public Prosecution Service for criminal prosecution. The proceedings were referred to the Public Prosecution Service in April 2015, six months after the filing of the complaint. On 11 May 2015, a DNA test confirmed that the priest was the father of the child.
On 21 August 2015, the Assistant Prosecutor for the Gender-based Violence Unit in Masaya filed multiple counts of aggravated rape in a single charge and multiple counts of aggravated statutory rape in a single charge, in combination with aggravated rape, against the assailant before the District Criminal Court specialized in cases of violence in Masatepe. The author’s parents were not notified that the charges had been filed. On 25 August 2015, the District Court issued an arrest warrant and a search warrant in respect of the assailant. However, despite the fact that the National Police knew where the priest lived and worked, he was never arrested and the search was never conducted, and no criminal proceedings have been initiated.
On 3 August 2018, staff from the Legal Cooperation Directorate visited the author’s home to confirm whether she was still interested in pursuing the case. The author confirmed that she was. Although the officials informed her that they would contact her, they have not yet done so.
The author managed to continue studying thanks to the support of her parents and, in 2017, qualified as a nursing assistant. She continues to live with her parents and works fulltime. However, she suffers from physical sequelae (see para. 2.11), social maladjustment and a mood disorder. After the birth, she did not receive any health, physical, mental or social support from the State Party. She and her family were subjected to harassment in the community and were stigmatized by the judicial authorities for reporting “a man of God”.
Complaint
The author claims that the available domestic remedies were unreasonably prolonged and rendered ineffective given that she has not received justice since the filing of the complaint in October 2014 and that, despite the issuance of an indictment and arrest warrant in 2015, to date no action has been taken to arrest her assailant.
The author also claims that she had no effective remedy in the form of access to reproductive health services such as abortion or termination of pregnancy. In particular, she alleges that, despite the fact that the pregnancy posed a serious risk to her life and health given her young age, there was no mechanism that would have enabled her to obtain a legal abortion because the procedure is prohibited and criminalized in all circumstances under article 143 of the Criminal Code. Even if, in spite of her limited access to health facilities and services, she had attempted to file an action, the only appropriate judicial route would have been to attempt an amparo appeal on the ground that the applicable rule was unconstitutional. However, since the Criminal Code was revised, more than 50 remedies of unconstitutionality have been filed, none of which have been settled to date. There is therefore no suitable or efficient remedy in the State Party, since the only possible legal action would not have been successful in this case, as the highest national court that could resolve the legal situation that arose from the violations that occurred as a result of the author’s forced pregnancy has refused for years to rule on the merits of the matter.
The author alleges a violation of her right to an effective remedy under article 2 (3) of the Covenant, read in conjunction with articles 3, 6, 7, 9, 17, 19, 24 (1) and 26, in relation to both the criminal proceedings and forced motherhood.
In relation to the criminal proceedings, the author argues that since October 2014, when the criminal complaint was filed, the State Party failed in its duty to locate, capture and prosecute the perpetrator. For four years, no progress was made in the case, nor was any action taken by the Police or the Public Prosecution Service, despite the fact that she was a child victim of sexual violence perpetrated by a member of the Catholic Church. In addition, the author was denied access to any legal means that would have allowed her to obtain a legal abortion.
The author recalls that the procedural component of the right to an effective remedy means that States Parties have an obligation to take appropriate measures to investigate the facts, even when the perpetrators of violations are private persons. She further recalls that a State Party’s failure to investigate may, in itself, be a violation of the Covenant and that remedies must be tailored to the particular vulnerability of children.
The author argues that the procedural component of States Parties’ obligation under article 2 (3) of the Covenant includes the duty to provide mechanisms for women to obtain legal abortion services when required and, at a minimum, when the life and/or health of the woman or girl is at risk. In addition, despite the fact that the author’s life and physical and mental health were at risk, she reportedly would not have been able to request an abortion owing to legal provisions criminalizing all forms of abortion9, and because the available avenues for challenging those provisions were not accessible or effective.10 The only legal avenue would have been to attempt to file an amparo appeal on the ground that the applicable rule was unconstitutional, which she was not permitted to do. There was, therefore, no effective remedy that would have allowed the author access to a safe abortion, making the State Party responsible for a violation of article 2 of the Covenant.
The author also recalls that the substantive component of the right to an effective remedy means that States Parties have an obligation to ensure access to an appropriate remedy and to provide reparation, including restitution, rehabilitation, satisfaction and guarantees of non-repetition. She states that special measures must be guaranteed to achieve recovery, rehabilitation and social reintegration of the child “taking into account [his or her] right to survival and integral development”.11
- Inter-American Court of Human Rights, V.R.P., V.P.C. et al. v. Nicaragua, Judgment, 8 March 2018, paras. 170 and 171. ↩
The author also argues that the State Party violated her right to life by failing to ensure that she could obtain sexual and reproductive health services, resulting in: (a) a risk of maternal mortality; (b) an impact on her mental health; and (c) an impact on her right to a dignified life.
The author recalls that article 6 is violated when the authorities fail to take measures to mitigate reasonably foreseeable threats that can result in loss of life.12 She argues that failure to provide healthcare can generate just such a risk to life, in violation of article 6 of the Covenant. In particular, the Committee has previously requested States Parties to remove restrictive abortion regulations or practices that put women’s lives at risk.13 The Committee also established that restrictions on access to abortion must not jeopardize the lives of women or girls or subject them to physical or mental pain or suffering.14 The Committee on the Rights of the Child has recognized that those risks are higher for pregnant minors and has urged States to guarantee them access to abortion to protect their lives.15 The author was 15 years old when she became pregnant, exposing her to a high risk of maternal mortality because of her age.
- Human Rights Committee, general comment No. 36 (2018), para. 7. ↩
- CCPR/C/CHL/CO/5, para. 8; and CCPR/CO/78/SLV, para. 14. ↩
- General comment No. 36 (2018), para. 8. ↩
- General comment No. 20 (2016) on the implementation of the rights of the child during adolescence. See also Latin American Federation of Obstetrics and Gynaecology Societies, Factores relacionados con el embarazo y la maternidad en menores de 15 años en América Latina y el Caribe (Factors related to pregnancy and motherhood in girls under 15 years of age in Latin America and the Caribbean), Lima, January 2011; and International Planned Parenthood Federation and Women’s Link Worldwide, Pautas para la toma de decisiones clínicas cuando el embarazo pone en riesgo la vida de la mujer (Guidelines for clinical decision-making when pregnancy puts a woman’s life at risk) (2018). ↩
The forced pregnancy had serious consequences for the author’s mental health. According to the psychiatric report,16 the impact of the violence was worse as she was unable to tell anyone about it because the priest had threatened her, leading her to choose isolation and social exclusion.
- Psychological assessment conducted at the Special Police Unit for Women and Children in Jinotega on 21 March 2018. ↩
With regard to the right to a dignified life (article 6 of the Covenant), the author recalls that this means that States Parties must take measures to ensure the enjoyment of economic, social and cultural rights.17 In particular, they should not interfere with a child’s life goals, but should nurture and encourage them.18 The author maintains that the State Party not only failed to provide her with access to abortion after preventable rape, forcing her into pregnancy and motherhood without the necessary psychological support, but also failed to provide her with support following the change in her life circumstances.
- Human Rights Committee, general comment No. 36 (2018), para. 8. ↩
- Inter-American Court of Human Rights, Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala, Judgment, 19 November 1999, paras. 144 and 191; Case of the Gómez-Paquiyauri Brothers v. Peru, Judgment of 8 July 2004, para. 128; and Case of Myrna Mack Chang v. Guatemala, Judgment, 27 November 2003, para. 152. ↩
Lastly, the author alleges a violation of the right to life, as protected by article 6 of the Covenant, read in conjunction with article 24 (1), because, as a child victim of rape, the State Party should have taken special measures to protect her.
The author also claims that the State Party violated her right not to be subjected to torture or inhuman or degrading treatment, given that the sexual violence, although committed by a private person, has gone unpunished. The author mentions the jurisprudence of the Committee against Torture, the Committee on the Elimination of Discrimination against Women, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment and the Inter-American Court of Human Rights.19 She recalls that, in the case of child victims, the impact “can be exacerbated and they may suffer emotional trauma that differs from that suffered by an adult, with extremely profound effects, in particular when the victim’s relationship with the perpetrator is based on trust and authority”.20 She also recalls that article 7 is violated when the authorities fail to investigate effectively, thus depriving victims of their right to reparation, and that when the victim is a minor, the obligation of due diligence is enhanced.21
- Committee against Torture, general comment No. 2 (2007), para. 22; V.L. v. Switzerland (CAT/C/37/D/262/2005); joint general recommendation No. 31 of the Committee on the Elimination of Discrimination against Women/general comment No. 18 of the Committee on the Rights of the Child (2019), para. 31; A/HRC/31/57; Inter-American Court of Human Rights, Miguel Castro-Castro Prison v. Peru, Judgment, 25 November 2006, paras. 306 and 311; and Inter-American Court of Human Rights, Fernández Ortega et al. v. Mexico, Judgment, 30 August 2010, para. 119. ↩
- Inter-American Court of Human Rights, V.R.P., V.P.C. et al. v. Nicaragua, Judgment, 8 March 2018, para. 163. ↩
- Purna v. Nepal (CCPR/C/119/D/2245/2013); X. v. Sri Lanka (CCPR/C/120/D/2256/2013); and Inter-American Court of Human Rights, V.R.P., V.P.C. et al. v. Nicaragua, para. 156. ↩
The author argues that the inhuman or degrading treatment was caused by the lack of access to abortion, which led to forced pregnancy and motherhood. She recalls that the treaty bodies have already found that the denial of access to abortion constitutes a violation of article 7 when a woman’s physical or mental health is at risk. The author alleges that the sexual violence constituted torture because: (a) it was intentional, with the assailant – a priest – sexually assaulting her from the age of 13 years, when she was helpless and dominated by a man who took advantage of her young age and of his investiture, which allowed him to remain in a position of power; (b) the sexual violence caused her severe physical and mental suffering, considering the perpetrator’s position, the power dynamics because of the religious aspect and the profound effects of sexual violence, including significant physical and mental harm; and (c) it was committed with the purpose of sexually abusing her, intimidating her, destroying her personality and subjugating her, and involved gender subordination and a relationship based on power and patriarchal dominance over the victim, a defenceless girl. All of this is evidence of a discriminatory motive.
The author argues that the inhuman or degrading treatment was also caused by the State’s inaction and failure to make any effort to investigate the case, punish the perpetrator or repair the harm caused by the sexual violence. The authorities did not act with the enhanced due diligence required in a case of sexual violence against a child. Even though there was DNA evidence confirming the rape and the assailant’s whereabouts were known, the authorities opted not to enforce the arrest warrant because he belonged to and held a position within the Catholic Church.
The author argues that the inhuman or degrading treatment was also caused by the lack of comprehensive care and recalls that, according to the Special Rapporteur on torture, when women have children as a result of rape, they need special psychological support since the impact on their lives and mental health is greater.22 Because she was a child victim of sexual violence, she also alleges a violation of article 24 (1) due to the lack of medical and psychological care appropriate for minors and the absence of any measures to prevent her from being subjected to acts of violence or cruel or inhuman treatment.23
Lastly, the author argues that forced pregnancy and forced motherhood caused her to suffer “social maladjustment”. Her adolescence ended and was replaced by unwanted motherhood. She has been unable to leave home and has no friends or leisure activities, and her ability to enjoy interaction with other people has been undermined. She claims to have chosen social exclusion due to the stigma, mockery and finger-pointing to which she has been subjected.
The author also alleges that being forced into motherhood has seriously affected her physical, mental and social integrity. She claims that there was also a violation of article 9, recalling that the concept of security of person concerns freedom from injury to the body and the mind, or bodily and mental integrity, and applies to all persons whether or not they are deprived of liberty.24
- Ibid., general comment No. 35 (2014), para. 4. ↩
The author also maintains that the lack of access to abortion represented arbitrary interference in her private life. The decision to terminate a pregnancy is a decision related to reproductive autonomy, which is a component of the right to privacy. The author did not have access to the health system until her labour began. In any case, she would not have been able to terminate her pregnancy because of the full criminalization of abortion in the State Party. Despite the fact that the author stated that she did not want to take care of the child, she was ignored by health practitioners, who denied her relevant information about options such as adoption, which went against her best interests as a child and violated her autonomy and privacy, as well as her right to be informed and to be able to express her opinion, on the basis of the best interests of the child.
The author also alleges a violation of article 19 (2) of the Covenant since she did not receive: (a) education on sexual and reproductive health; (b) information on pregnancy and childbirth; (c) accurate information about adoption; or (d) information about the criminal proceedings.
According to the author, the Committee on the Rights of the Child recommended to the State Party that the national policy to tackle adolescent pregnancies should take into account access to information, and that adolescents should receive sexual and reproductive health education as part of their regular school education in public or private establishments and through the media.26
- CRC/C/ECU/CO/5-6, paras. 35 (b) and (d). ↩
Lastly, the author alleges violations of articles 3 and 26 of the Covenant, recalling that a State Party’s refusal to provide for the performance of certain reproductive health services for women is discriminatory,27 and claims that her assailant had discriminatory motives, given his position of patriarchal power and dominance over a defenceless girl. The author recalls that the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health has determined that the criminalization of abortion is a clear expression of State interference with a woman’s sexual and reproductive health because it restricts a woman’s control over her body, possibly subjecting her to unnecessary health risks. It also requires women to continue unplanned pregnancies and give birth when it is not their choice to do so.28 The total prohibition on abortion in the State Party is a discriminatory measure that has a disproportionate effect on women, preventing them from enjoying the rights recognized in the Covenant, including the right to life, health, privacy and freedom from cruel, inhuman and degrading treatment, on an equal basis with men.29
- Committee on the Elimination of Discrimination against Women, general recommendation No. 24 (1999), para. 11; and L.C. v. Peru (CEDAW/C/50/D/22/2009), para. 8.15. ↩
- A/66/254, para. 27. ↩
- See https://ccprcentre.org/files/documents/INT_CCPR_NGO_NIC_94_9748_S.pdf, p. 15; and Llantoy Huamán v. Peru, para. 3.2. ↩
The author asks the Committee to set out in detail the measures that the State Party should take. First, it should grant rehabilitation measures consisting of access to comprehensive health services, including mental health services for the author and her child; compensation for the moral harm suffered; and compensation for the cost of pregnancy care, childbirth and the upkeep of her child, as well as for the legal proceedings. Second, satisfaction measures should be considered, including effective access to justice, the execution of the arrest warrant issued in respect of her assailant and compliance with the evidentiary standards for cases of sexual violence. Third, measures of non-repetition should be considered, including guaranteeing access to abortion and to adequate comprehensive healthcare for girls who are victims of sexual violence, developing appropriate adoption policies, training health and justice professionals on the provision of comprehensive care and support in cases of sexual violence and establishing staff selection processes for dealing with cases of sexual violence against girls.
Third-party submissions[[fn:30]]
On 19 April 2021, the Committee received a third-party submission from the Centre for International Human Rights of the Pritzker School of Law at Northwestern University and from Anand Grover, former Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. In the submission, it is argued that forced motherhood constitutes a violation of the right to a dignified life.31
- See annex I. ↩
On 26 April 2021, the Committee received a third-party submission from students at the Paris Human Rights Centre and Assas International Law Clinic at the Panthéon-Assas University. The submission deals with the violation of the right to privacy to which forced pregnancy gives rise.32
- See annex II. ↩
Lack of cooperation by the State Party
In notes verbales sent on 4 July 2019, 7 October 2020, 25 January 2021 and 16 June 2021, the Committee requested the State Party to provide information and observations on the admissibility and the merits of the present communication. The Committee regrets the State Party’s failure to provide any information with regard to the admissibility or the merits of the author’s claims. It recalls that article 4 (2) of the Optional Protocol obliges States Parties to examine in good faith all allegations brought against them and to make available to the Committee all information at their disposal. In the absence of a reply from the State Party, due weight must be given to the author’s allegations, to the extent that they are properly substantiated.
Consideration of admissibility
Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.
The Committee recalls that the purpose of requiring that domestic remedies be exhausted is to give States Parties the opportunity to perform their duty to protect and guarantee Covenant rights.33 The Committee also recalls that, for the purposes of article 5 (2) (b) of the Optional Protocol, authors need submit only those remedies that offer them a reasonable prospect of redress.34 In the present case, with regard to remedies available for access to voluntary termination of pregnancy, the Committee notes that the State Party has not responded to the author’s argument that, based on the legislation in force, there is a total ban on abortion and no remedy is available for access to such termination. In the absence of any information from the State Party identifying another remedy that would have been effective and available to the author to remedy the lack of access to termination of pregnancy, the Committee considers that article 5 (2) (b) of the Optional Protocol does not preclude it from considering the communication. With regard to the criminal investigation into the acts of sexual violence, the Committee notes that the authorities have taken no action since the complaint was filed in 2014 and that the State Party has provided no explanation on that point, and therefore also concludes that article 5 (2) (b) of the Optional Protocol does not preclude it from considering the communication.
The Committee notes the author’s claims under article 9 (1) of the Covenant and considers that she has not provided sufficient information to explain how the facts as set out in the present communication could have undermined the enjoyment of her rights under that article. Accordingly, the Committee considers that these claims have not been sufficiently substantiated and therefore finds them inadmissible under article 2 of the Optional Protocol.
The Committee also takes note of the author’s claim of an autonomous violation of articles 3 and 26 of the Covenant. The Committee considers that this claim is closely related to those made under other articles of the Covenant and that it should therefore consider them together.35
- L.M.R. v. Argentina, para. 8.5. ↩
The Committee considers that the allegations relating to article 2 (3) of the Covenant, read in conjunction with articles 3, 6, 7, 9, 17, 19, 24 (1) and 26, and to articles 6, 7, 17 and 19, read in conjunction with articles 3, 24 (1) and 26, have been sufficiently substantiated for the purposes of admissibility and proceeds with its consideration of the merits.
Consideration of the merits
The Committee has considered the present communication in the light of all the information submitted to it, in accordance with article 5 (1) of the Optional Protocol.
The Committee notes the author’s claim that the facts of the present case constitute a violation of her rights under article 6 (1) of the Covenant, read alone and in conjunction with articles 2 (3) and 24 (1), because, given that the State Party failed to provide her with access to sexual and reproductive health services, she was exposed to the risk of maternal mortality inherent in pregnancy and childbirth at a young age, and that her right to a dignified life was also affected because, by not providing her with access to abortion or information about her options, including the option of giving up her child for adoption, the State Party imposed forced motherhood on her without providing her with protective measures or any support in attaining her life goals, which were altered due to forced motherhood, especially given her status as a minor. Lastly, the Committee notes that the author links the foregoing to a violation of article 2 (3) of the Covenant, on the basis of a lack of due diligence in the criminal investigation and the lack of access to an effective remedy in relation to her forced motherhood, in the absence of a mechanism for access to legal abortion.
The Committee also notes that almost 10 years have passed since the author filed the complaint, that the assailant’s full identity is known, that there is still no progress in the criminal investigation and that, despite the pressure the assailant is known to have exerted on the author and her family and the existence of an arrest warrant, he has not yet been arrested. The Committee considers that the lack of action to bring the assailant to justice also constitutes an omission on the part of the State Party in relation to its obligation to exercise an enhanced duty of protection in the case of a child victim of violence.36
- Portillo Cáceres et al. v. Paraguay (CCPR/C/126/D/2751/2016), para. 7.8. See also Lugumire and Barhatulirwa v. Democratic Republic of the Congo (CCPR/C/137/D/2790/2016), para. 6.3; and Committee on Economic, Social and Cultural Rights, general comment No. 22 (2016), para. 59. ↩
The Committee recalls that the right to life cannot be properly understood if it is interpreted in a restrictive manner; the protection of this right requires that States adopt positive measures.37 In this connection, the Committee notes that violations through acts of omission include the failure to take appropriate steps towards the full realization of everyone’s right to sexual and reproductive health and the failure to enact and enforce relevant laws.38 In addition, the Committee notes that access to healthcare, including access to sexual and reproductive healthcare, is extremely limited for rural women, for whom maternal mortality and morbidity are disproportionately high. When abortion is illegal, the health impact is even greater.39 The Committee recalls that States Parties must provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk, or where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering, most notably where the pregnancy is the result of rape or incest, and should remove existing barriers to effective access by women and girls to safe and legal abortion.40 The Committee also notes that the Committee on the Rights of the Child considered that, in the case of pregnant girls, consideration should be given to the particularly high risk to their lives because of possible complications during pregnancy and childbirth.41 The Committee on the Rights of the Child has also urged States to decriminalize abortion to ensure that girls have access to safe abortion and post-abortion services, review legislation with a view to guaranteeing the best interests of pregnant adolescents and ensure that their views are always heard and respected in abortion-related decisions.42
- Toussaint v. Canada (CCPR/C/123/D/2348/2014), para. 11.3. ↩
- Committee on Economic, Social and Cultural Rights, general comment No. 22 (2016), para. 55. ↩
- Committee on the Elimination of Discrimination against Women, general recommendation No. 34 (2016), paras. 37 and 38. ↩
- Human Rights Committee, general comment No. 36 (2018), para. 8. ↩
- Camila v. Peru (CRC/C/93/D/136/2021), para. 8.5. ↩
- Ibid.; and Committee on the Rights of the Child, general comment No. 20 (2016), para. 60. ↩
The Committee recalls its general comment No. 36 (2018), in which it established that the right to life also concerns the right to enjoy a dignified life and that States Parties should take all appropriate measures to address the general conditions in society that may give rise to threats to the right to life or prevent individuals from enjoying their right to a dignified life. Moreover, States Parties may be in violation of article 6 of the Covenant even when such threats and situations have not resulted in loss of life.43 The Committee also notes that every child has the right to plan his or her life in a way that is supported and encouraged by the public authorities so that it provides personal benefits for the child, as well as benefits for the society to which he or she belongs.44 In particular, the Committee notes the considerations put forward in the first third-party submission to the effect that forced motherhood interrupts and hinders personal, family, educational and professional goals and severely restricts the lives and futures of adolescent mothers and their right to a dignified life. The Committee further notes the view of the Committee on the Rights of the Child that, regarding the situation of pregnant girls, consideration should be given to the potentially serious impact that it can have on their development and their life goals.45
- Human Rights Committee, general comment No. 36 (2018), paras. 3, 7 and 26. See also Portillo Cáceres et al. v. Paraguay, para. 7.3. ↩
- Inter-American Court of Human Rights, Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala, Judgment, 19 November 1999, para. 191. ↩
- Camila v. Peru, para. 8.5 ↩
In the light of the foregoing, the Committee is of the view that the facts before it disclose a violation of article 6 (1) of the Covenant, read alone and in conjunction with articles 2 (3) and 24 (1).
The Committee notes that the author alleges that the facts of the present case constitute a violation of article 7 of the Covenant, read alone and in conjunction with articles 2 (3) and 24 (1) for the following reasons: (a) failure to prevent sexual violence; (b) sexual violence and subsequent impunity; (c) the legal prohibition of abortion, which led to forced pregnancy and forced motherhood, even though she was still a child; (d) the lack of effective investigation in the context of the rape complaint, depriving her of her right to redress; (e) revictimization; and (f) the lack of comprehensive care she required, delivered in an appropriate manner given her status as a minor. The Committee also takes note of the author’s claims that the sexual violence caused her severe physical and mental suffering, considering her assailant’s position and the power he enjoyed owing to his rank and religious affiliation.
The Committee recalls that the legality of a particular conduct or action under domestic law does not mean that it cannot infringe article 7 of the Covenant.46 The Committee recalls that the right protected by article 7 of the Covenant relates not only to physical pain but also to mental suffering and that this protection is particularly important in the case of children.47 In particular, the Committee notes the view of the Committee on the Rights of the Child that, in the case of pregnant girls, consideration should be given to the special and differential physical and mental health impacts of child pregnancy, whose effect on each girl will depend on her age and physical and psychological maturity, her family and community support systems and other factors that can have a bearing on mental health, including a history of rape or incest and socioeconomic or cultural factors that increase vulnerability.48 In the case of child victims, the impact “can be exacerbated and they may suffer an emotional trauma that differs from that suffered by an adult, with extremely profound effects, in particular when the victim’s relationship with the perpetrator is based on trust and authority”.49 Lastly, the Committee also recalls that, when the victim is a minor, the obligation of due diligence is enhanced and impunity constitutes an aggravating circumstance.50
- Whelan v. Ireland (CCPR/C/119/D/2425/2014), para. 7.4. ↩
- General comment No. 20 (1992), paras. 2 and 5. ↩
- Camila v. Peru, para. 8.5. ↩
- Inter-American Court of Human Rights, V.R.P., V.P.C. et al. v. Nicaragua, para. 163. ↩
- See Purna v. Nepal; X v. Sri Lanka; and Inter-American Court of Human Rights, V.R.P., V.P.C. et al. v. Nicaragua, paras. 158 and 171. ↩
The Committee considers that the author suffered a high level of distress caused by a combination of elements – having become a mother against her will and at a young age, having been isolated due to teasing and stigmatization at school and within her community and having felt guilt for placing a financial burden on her already poor family – and by omissions attributable to the State Party. The Committee notes that the right to termination of pregnancy is not guaranteed in the State Party and recalls that denial of access to abortion constitutes a violation of article 7 when the physical or mental health of the woman is at risk, the age of the victim influences the degree of suffering and, even more seriously, the victim is a minor who has been sexually abused by a priest who exercised his authority over her.51 The Committee also notes that the psychological support she received during her pregnancy was insufficient, was focused on ensuring that, even though she was a child, she accepted the fact that she would become a mother and did not help her overcome the trauma of having been a victim of sexual violence.
- Llantoy Huamán v. Peru, para. 6.3; Mellet v. Ireland (CCPR/C/116/D/2324/2013), paras. 7.4; Whelan v. Ireland; and L.M.R. v. Argentina. ↩
The Committee also takes note of the author’s claims that the authorities did not act with the enhanced due diligence required in the case of a child victim of sexual violence, that it took months after the complaint was filed for the case to be referred to the Public Prosecution Service, which happened only after the author’s father filed a complaint with the Internal Affairs Division of the National Police, and that, once the arrest warrant was issued in August 2015, and despite the fact that the police know the identity, institutional affiliation and location of the assailant, no action has been taken to arrest him. Based on the information provided, the author has currently been awaiting justice for almost 10 years. The Committee also notes that, according to the author, the impunity stems from the priest’s role in society and in the Church.
In the light of the foregoing, the Committee is of the view that the facts before it disclose a violation of article 7 of the Covenant, read alone and in conjunction with articles 2 (3) and 24 (1).
The Committee notes the author’s claim that the facts also constitute a violation of article 17 of the Covenant because the lack of access to abortion represented arbitrary interference with her reproductive autonomy, which is a component of the right to privacy.
In the circumstances of the case, the Committee considers that the full criminalization of the right to terminate a pregnancy constitutes unreasonable interference by the State Party in the author’s decision, particularly in view of her age and her status as a victim of sexual violence, and therefore constitutes arbitrary interference with the author’s right to privacy, in violation of article 17 of the Covenant, read alone and in conjunction with articles 2 (3) and 24 (1).53
- Llantoy Huamán v. Peru, para. 6.4; and Whelan v. Ireland, para. 7. ↩
The Committee notes the author’s claim that the facts also constitute a violation of article 19 of the Covenant, read alone and in conjunction with articles 2 (3) and 24 (1), as she did not receive either sexual and reproductive health education, which would have enabled her to identify sexual violence and realize that she was pregnant, or accurate information about her right to give up her child for adoption.
The Committee recalls that the right of access to information includes the right to receive quality and evidence-based information and education on sexual and reproductive health.54 The Committee notes that the lack of information about the possibility of placing her child for adoption prevented the author from making informed decisions about her sexual and reproductive health and resulted in forced motherhood.
- Human Rights Committee, general comment No. 36 (2018), para. 8. See also joint general recommendation No. 31 of the Committee on the Elimination of Discrimination against Women/general comment No. 18 of the Committee on the Rights of the Child (2019), para. 68; Committee on Economic, Social and Cultural Rights, general comment No. 22 (2016), paras. 9, 18 and 19; and Camila v. Peru, para. 8.14. ↩
In the light of the foregoing, the Committee is of the view that the facts before it disclose a violation of article 19 of the Covenant, read alone and in conjunction with articles 2 (3) and 24 (1).
Lastly, the Committee takes note of the author’s claim that the facts also constitute a violation of articles 3 and 26 of the Covenant, both because of the failure to provide certain reproductive health services and because of the forced pregnancy and forced motherhood. The Committee considers that both the lack of institutional response and the vexatious and stereotyped comments made by the State Party’s authorities, including healthcare workers and police officials, indicate discriminatory treatment by the police and health authorities aimed at calling into question the author’s morals.55
- L.N.P. v. Argentina (CCPR/C/102/D/1610/2007), para. 13.3. ↩
The Committee notes that the total lack of access to abortion in itself constitutes differential treatment based on the sex of the author, on the basis of a gender stereotype related to the reproductive role of women, primarily as mothers. By being stereotyped as a reproductive tool, she was subjected to discrimination.56 The Committee also notes that the lack of protection from sexual violence, the forced pregnancy, forced motherhood and the lack of access to women’s health services are forms of gender-based violence against women and gender discrimination.57 The Committee therefore considers that the facts of the present communication also disclose a form of intersectional discrimination based on the author’s gender and age.58
- Mellet v. Ireland, para. 7.12. ↩
- Chakupewa et al. v. Democratic Republic of the Congo (CCPR/C/131/D/2835/2016). See also Committee on the Elimination of Discrimination against Women, general recommendation No. 35 (2017) on gender-based violence against women, para. 18. ↩
- Inter-American Court of Human Rights, Guzmán Albarracín et al. v. Ecuador, Judgment, 24 June 2020, paras. 113 and 141. ↩
Based on the foregoing, the Committee concludes that the facts before it reveal a violation of articles 6 (1), 7, 17 and 19 of the Covenant, read alone and in conjunction with articles 2 (3), 3, 24 (1) and 26.
In the light of the above findings, and considering the complete ban on abortion in the State Party and the total absence of investigations in the present case, the Committee considers that the facts before it also disclose a violation of article 2 (3) of the Covenant, read in conjunction with articles 3, 6, 7, 17, 24 (1) and 26.59
- CCPR/C/NIC/CO/4, paras. 19 and 20; Purna v. Nepal, para. 12.4; A.S. v. Nepal (CCPR/C/115/D/2077/2011), para. 8.6; Tharu et al. v. Nepal (CCPR/C/114/D/2038/2011), para. 11; and Himal and Devi Sharma v. Nepal (CCPR/C/122/D/2265/2013), para. 10.1. ↩
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State Party of articles 2 (3) of the Covenant, read in conjunction with articles 3, 6, 7, 17, 24 (1) and 26, and of articles 6 (1), 7, 17 and 19, read alone and in conjunction with articles 2 (3), 3, 24 (1) and 26.
Pursuant to article 2 (3) (a) of the Covenant, the State Party is under an obligation to provide an effective remedy. Accordingly, the State Party should: (a) provide the author with full reparation, including adequate compensation, for the harm she has suffered; (b) repair the harm inflicted on her life plans; (c) ensure that her child has access to education at all levels; (d) provide specialized psychological care to the author and her son, as a child born of sexual violence, for as long as the author and the specialist deem necessary; and (e) make a public acknowledgement of responsibility. The State Party is also under an obligation to take steps to prevent similar violations from occurring in the future. In this regard, the Committee requests the State Party to: (a) review its legal framework and ensure access to pregnancy termination services for all women and girls who are victims of sexual violence, including incest or rape, and/or in cases where there is a risk to the mother’s health; (b) take action to combat sexual violence in all sectors, including by conducting education and awareness campaigns for the general public and in the field of administration of justice; (c) train health and justice professionals on comprehensive care in cases of sexual violence; and (d) develop adequate adoption policies.
Bearing in mind that, by becoming a Party to the Optional Protocol, the State Party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State Party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State Party, within 180 days, information about the measures taken to give effect to the present Views. The State Party is also requested to publish the present Views and to have them widely disseminated.
Annex I
The realization of economic, social and cultural rights is an element of the right to a dignified life. When the realization of these rights is prevented, forced motherhood constitutes a violation of the right to a dignified life. In particular, forced motherhood is the result of a failure by States Parties to protect the right to health, despite their duty to protect girls from sexual violence, guarantee them access to sexual and reproductive health education and information and ensure that sexual and reproductive health services, including abortion, are available, accessible and acceptable, particularly for pregnancies resulting from rape. Forced motherhood has serious repercussions for girls’ physical and mental health, causing anxiety and depression that can lead to suicidal thoughts or behaviour, and for their social well-being and also results in violations of their right to education and the subsequent impact on their employment opportunities and high poverty rates.
In the submission, it is argued that the ability to set and pursue one’s own life goals is also an element of the right to a dignified life. When personal, family, educational and professional goals are interrupted or impeded, forced motherhood constitutes a violation of the right to a dignified life. In particular, girls who are forced to become mothers often drop out of school, and the damage to their educational goals causes irreparable harm to their professional goals, as they will have access only to unskilled jobs with minimal prospects for professional growth.
Being able to enjoy autonomy is also an element of the right to a dignified life. When girls’ personal autonomy is seriously restricted, forced motherhood constitutes a violation of the right to a dignified life. In particular, sexual violence and lack of access to abortion remove girls’ ability to exercise their personal autonomy in respect of their sexual and reproductive health, leading to forced motherhood and a series of limitations on their personal, family and professional lives.
Annex II
The submission begins by proposing a definition of forced pregnancy that is broader than the one set out in the Rome Statute of the International Criminal Court. Under the proposed definition, forced pregnancy constitutes a manifold human rights violation consisting of a form of gender-based violence in which a woman or girl is forced to become pregnant, or to continue with a pregnancy, as a result of acts or omissions by a State Party or non-State actors before or during pregnancy and which results in physical, sexual, psychological, economic or social harm or suffering.
The submission states that, in accordance with paragraph 20 of general recommendation No. 35 (2017) of the Committee on the Elimination of Discrimination against Women, given that forced pregnancy results from a series of acts or omissions, it can originate both from action and from the absence of action, protection or measures necessary to prevent or remedy it. A State Party’s failure to provide education and information before pregnancy occurs may contribute to forced pregnancies. Sexual violence, especially rape or incest, and its prevalence in a society are also central elements leading to forced pregnancies. During pregnancy, a lack of access to abortion, in law or in practice, results in a woman being forced to carry her pregnancy to term against her will.
The submission argues that reproductive autonomy is protected by article 17 of the Covenant: (a) the Committee has recognized that the denial of abortion services constitutes a violation of article 17 because it constitutes interference with the victim’s reproductive life; (b) the Committee on the Elimination of Discrimination against Women has stated that sexual and reproductive rights include the right to autonomy and privacy; (c) the Committee on Economic, Social and Cultural Rights recognizes in its general comment No. 22 (2016) on the right to sexual and reproductive health the indivisibility from and interdependence of that right with respect to the right to privacy; and (d) according to regional jurisprudence, the right to privacy encompasses both the right to make decisions about one’s own body and the right to decide whether or not to become a parent.
Lastly, the submission details States Parties’ obligations under article 17 with respect to forced pregnancies. States Parties should criminalize forced pregnancies in their national legislation and prevent them from occurring. Given that they are the result of multiple ongoing violations, States Parties must take action on the specific elements that lead to forced pregnancy and must ensure that all women and girls have access to quality, evidence-based sexual and reproductive health information and education. Age-appropriate, comprehensive and inclusive sexual and reproductive health education that is developed with the involvement of adolescents should be part of the mandatory school curriculum and reach any adolescents not attending school. Once a girl or woman suffers a forced pregnancy, States Parties must guarantee her the right to access to justice, protect her from constant revictimization by healthcare providers, the judiciary and other authorities and enable her to access sexual and reproductive healthcare, including abortion.