Is rape a ‘cultural issue’? – Naturalization of oppression against girls, indigenous women by state justice and indigenous justice

María-Cruz La Chica

El Impenetrable: Paraje Nueva Población, noroeste del Chaco.

In northern Argentina, an indigenous Wichí girl is raped by her stepfather, José Fabián Ruíz, from the time she is six years old (2001) until she is nine years old (2004), at which point she becomes pregnant. The girl is admitted to the hospital because of the risk to her life and the mother separates from her partner. She then went to court to denounce the situation. In her statement she says that she fears that her ex-partner will rape her other daughters. She also states that the Cacique (Roque Miranda, Ruíz’s brother-in-law) has threatened to expel her from the community, which he does shortly thereafter. When the mother returns to ratify the complaint, she changes her statement and denies everything she said before. In addition, the complainant and other members of the community come to demand Ruíz’s release, saying that the whole conflict is a cultural misunderstanding. However, the prosecution goes ahead with the proceedings and the defendant is found guilty. Subsequently, the defense appeals, and the case reaches the Provincial Supreme Court of Salta, which declares the proceedings null and void, with a judge voting against. In its argument, the court states that among the cultural guidelines of the Wichí community is the “privignatic marriage”, according to which a man can have relations with a woman and her daughter. The defendant is prosecuted again, but a new anthropological expertise shows that this practice is neither widespread nor accepted by most members of the community. The defendant is finally convicted in 2016 and is released after serving seven years in prison. 

Most cases of sexual violence experienced by indigenous girls never reach the state justice system, which is why this case is of utmost interest. In the process, the weighing between collective rights to indigenous jurisdiction and individual rights was discussed. However, if we take into account that all international and national legal instruments governing Argentina subordinate collective rights to individual rights, such a discussion should not have taken place. This proves that this case is an example of the patriarchal state justice approach that naturalizes the structural oppression of women and girls in the name of indigenous collective rights. Or in other words, indigenous collective rights serve as a pretext for indigenous and state justice to naturalize and legitimize the oppression of women and girls. 

Would this supposed ‘indigenous custom’ have been naturalized if the victim were a male child? Why is the version of the indigenous culture that the complainant mother has not valid for the experts? Why is the version given by the indigenous men valid?

The situation is much more complex than a mere question of hierarchy of rights. From an intersectional perspective with gender mainstreaming, the girl is living a situation of structural oppression that involves different fronts. If we consider that every oppressed group has a privileged group that benefits from its disadvantage (Young, 2000), we could say that the girl child, a) as an indigenous person, is oppressed by mestizos; b) as a poor person, by the rich; c) as a woman, by men; and d) as a girl child, by adults. All these oppressions, however, are experienced at the same time. The result is a specific form of structural oppression and not a mere juxtaposition of these situations of disadvantage. 

The situation of vulnerability that characterizes the “indigenous, woman and girl” group is not the consequence of the characteristics shared by a group of people, but the consequence of the barriers that society erects in the face of these characteristics. The logic of equality developed by judicial mechanisms prevents them from addressing structural aspects of intersectional discrimination and attend only to some of its consequences (Barranco and Churruca, 2014). 

The situation of structural oppression that the girl and the mother experienced was not addressed, but only one of its effects. But the crime cannot be judged in isolation from its context because it revictimizes the complainants, as in fact happened. The negative consequences that the judicial process could have for them were not taken into account, nor the interpretation that possible or future victims in similar circumstances would make of it. Throughout the judicial process, the victim and the mother were treated as if their situation was resolved with the sentence imposed on the accused. 

In a previously published paper I analyze this case from a critical approach that considers that formal law is insufficient in cases of structural oppression. State justice must incorporate an intersectional perspective and gender mainstreaming when carrying out a judicial process in which the rights of people in vulnerable situations are involved. You can read in this link the full article as well as the recommendations.