The facts

Ányela Patricia was a trans woman who worked as a hairdresser in the municipality of Garzón in the department of Huila.  In contrast to the life experiences of other trans women in Colombia that have been marked by stigma, she was recognized and loved by the community.  It is thus that when Ányela was assassinated in February 2017, the community of Garzón took to the streets during her funeral to march with posters and flags, calling for an investigation into her homicide (see here the image and news about it: http://www.lanacion.com.co/2017/02/11/lo-mate-porque-me-hizo-dano-homicida-de-estilista/).

The incidents that occurred in February 2017 apparently transpired quickly in Ányela’s hair salon in the morning hours: she was shot several times by Mr. Davinson Estiven Eraso, who on a previous occasion in August 2016 had tried to attack Ányela with a machete and was stopped by the intervention of [her] friends and relatives.  Although on this occasion the alleged assailant was taken to a police station, no further consequences ensued with regard to this antecedent (particularly serious because the matter was limited to a police detention proceeding without a criminal investigation that delves into the gravity [of the act], as occurs in many cases in Colombia).

When Mr. Eraso finally achieved his goal in 2017, he was caught by the authorities, before whom he declared he had carried out unfinished business, additionally adding in front of regional media of the department of Huila that Ányela was a person who should die: “This is a person who deserved to die.  She should not be in this life.”

The sentence

The Second Criminal Circuit Court, led by Judge Catalina María Manrique Calderón, sentenced Mr. Eraso as the author of the crime of aggravated femicide for the crimes established in the Criminal Code, Articles 104 A and 104 B, and the crime of illegally bearing arms.  Nonetheless, he was declared immune from prosecution because during the criminal process he demonstrated signs of schizophrenia associated with, among other things, drug dependence and in any case, with “the existence of a permanent mental disorder.”  As such, the assailant was ordered imprisoned for 20 years in a psychiatric institution or an establishment that could appropriately attend to him.

There are several elements that are fundamental to understanding this sentence and that represent important progress in terms of the approach to violence committed against trans women, including the following we wish to highlight: recognition of gender identity; recognition of the motivation behind gender-based violence and indictment for the crime of femicide; [and] use of national and international regulatory frameworks.  Nonetheless, other issues should [also] be carefully reviewed in the name of criminal procedural guarantees.

Recognition of gender identity

One of the first signs of clear progress made by this sentence represents a milestone in Colombia: the express recognition of the victim’s gender identity.  It might seem to be a small thing, but keeping in mind that while sentences and decrees exist in Colombia that recognize the gender identity of trans persons, in this case the scope of the recognition of gender identity also translates into the possibility of applying a criminal regulation that traditionally has been utilized exclusively to protect the lives of cisgender women, despite the fact that Article 104 A also recognizes gender-based violence against women.

This recognition is important because it clarifies the concerns of public prosecutors and lawyers in this matter, as evidently the Office of the Public Prosecutor in this case adopted an interpretation regarding gender identity consistent with Colombian jurisprudence and the recommendations and international declarations in this area.  This had very concrete effects, one of the most interesting of which was the acceptance by the Office of the Public Prosecutor in a court of first instance as supporting evidence regarding the female gender identity of the victim the testimonies of friends and relatives who recognized Ányela as a transgender woman, as well as her expression of feminine gender.  Secondly, while the Office of the Public Prosecutor mentions the existence of surgical interventions that had been performed on the victim’s body (breast augmentation), this is considered to be a supplementary part of the construction of her own identity.

Recognizing the victim’s identity is very important because for some public prosecutors and jurists working in this field, gender identity could only be proved through changes in identification documents – the personal identification credential.  This, of course, would be an unnecessary requirement that would contravene Colombian constitutional jurisprudence, as well as international standards in this matter, in the sense that gender identity is made up of actual life experiences and is not based on legal recognition.  This proposition of the Office of the Public Prosecutor was seconded by the judge hearing the case that, although it delves into the description of the autopsy which describes the surgical intervention, it takes up anew the social construction of Ányela as a woman who was well-known in her community.

In conclusion, there is no single standard for proving gender identity; therefore, demanding a sex change that is recorded in the public registry as proof would not acknowledge the personal and social processes for constructing gender identity.

 Recognition of the motivation behind gender-based violence and indictment for the crime of femicide

As a result of the Office of the Public Prosecutor’s recognition of the victim’s gender identity, it is not only possible to indict for the crime of femicide, but in addition, the gender identity itself of the victim becomes a central element for understanding the motivation for the violence.

When there is an indictment for femicide in the case of a trans woman, it not only requires a woman to be the victim but also for the motivation behind the violence to be related to the fact that she is a woman or due to her gender identity.  In this case, both the Office of the Public Prosecutor as well as the judge who heard the case agreed that in light of the fact that the assailant followed the victim and saw her repeatedly in her hair salon, he was able to establish the victim’s gender identity; this was also evidenced in situations of verbal aggression in which he insultingly mentioned Ányela’s gender identity.

The fact that the assailant had followed Ányela, verbally attacked her, and even progressed to the point of trying to attack her with a bladed weapon (machete) in 2016 prior to the homicide denotes a context of persecution and violence based on the victim’s gender identity.

While the sentence could have been richer in detail in order to make a clear connection between the assailant’s prejudice, the violence, and its relationship to the victim’s gender identity over the course of the trial, the Office of the Public Prosecutor was able to demonstrate that the fact that Ányela was a trans woman played a fundamental part in her homicide.  In declarations made by the assailant to some media outlets, Mr. Eraso clearly manifested a series of social prejudices and stereotypes that were negatively linked to his perception of trans persons.  This type of declaration accords with the investigation standards such as those employed in the United States for gathering data on hate crimes [and] denotes prejudice by the assailant against trans persons in this case.

Use of national and international regulatory frameworks

Another aspect that, while previously mentioned, merits being highlighted: the application by the judge hearing the case of national and international standards for understanding gender identity in this case.  For the judge, understanding her duty is framed by the protection and recognition of gender identity, whether through constitutional jurisprudence pursuant to the C-584 sentence in 2015 (among others) that recognizes gender identity, or the interpretation of the scope of the Colombian State’s responsibility to investigate this type of violence, in accordance with the OAS declarations signed by the State, adherence to the Inter-American Court sentence in the Karen Atala case that explains gender identity as a different category of sexual orientation, and the use of the Yogyakarta principles as an important referent.

While the judge does not delve into all of these legal referents, she employs them as points of reference for juridically positioning the discussion regarding the recognition of gender identity, the obligation to investigate, and the appropriate application of criminal justice in this concrete case.

The discussions that remain outstanding

An initial observation that can be made regarding the body of the sentence would be to give preference both in the text as well as throughout the entire criminal trial to the recognition of identity vis-à-vis the victim’s name.  While the name ‘Ányela’ is recognized in the text of the sentence, throughout the text her masculine name, as recorded in the National Civil Registry [‘registraduría’], is repeated over and over, whereas Ányela’s identity-based name should have been given preference in the reasoning of the sentence.  In future, the identity-based name could be utilized throughout the sentence, with an initial clarification that the victim’s identity is fully established in the registry with a masculine name but that, as an integral part of the sentence, the identity-based name of the victim will be given preference.  This should also be standard practice throughout all legal proceedings involving a trans person, whether the person is the victim or the suspect.

A larger problem covers the use of aggravating circumstances.  On one hand, while an aggravating circumstance is applied related to the state of the victim’s defenselessness at the moment she was attacked, an[other] aggravating circumstance is applied related to the victim’s gender identity.  This is an important discussion and merits careful analysis in order to prevent the violation of procedural guarantees of the accused.

As has been mentioned, in this case the recognition of the victim’s gender identity allowed for the application of the crime of femicide because the gender identity of the victim was recognized and [the fact that] she was socially recognized as a trans woman.  Nonetheless, this same crime considers one of its aggravating circumstances to be that the violence be committed due to the victim’s sexual orientation (or gender identity, taking into account constitutional jurisprudence).  It is strange that a person who is charged with criminal responsibility for an action – in this case, assassinating a person due to her gender identity – in addition has his sentence increased because he committed the action due to the victim’s gender identity.

This double jeopardy for criminal responsibility would be a clear violation of the rights of the accused and in this case, be susceptible to being appealed.  A clearer or more logical example of when this aggravating circumstance could be applied would be in the case of a cisgender female victim of femicide who had additionally been assaulted due to being bisexual or lesbian, in which case the aggravating circumstance would clearly be in effect due to sexual orientation.

These theoretical clarifications in criminal matters are essential for safeguarding the procedural guarantees of the accused who in all cases has criminal rights and guarantees that must be protected.

In conclusion

We have here a sentence that makes progress in recognizing trans women’s identity and resolves some practical discussions that should be held during the course of criminal proceedings, both in the investigation process and imputation by the Office of the Public Prosecutor, as well as in the legal proceedings themselves.

Other aspects that could be expanded in the future are the standards for establishing the connection between the assailant’s prejudice and the violence he/she visits upon the victim; for the time being, the express knowledge of gender identity [and] prior existence of verbal and physical violence are useful for demonstrating the occurrence of a femicide-focused assault in this type of case.

Other aspects meriting greater discussion are preventing double jeopardy for criminal responsibility for the same actions with the use of aggravating circumstances that center the analysis on gender identity in the case of trans persons.  Giving preference to other aggravating circumstances – such as in this case the victim’s state of defenselessness – appears clearer and more protective for the victimizer.  In any case, the defense of those of trans persons is not at odds with the procedural guarantees of the accused.

About the Autor:  Mauricio Noguera
LGBTI Program Officer for Latin America