Overview of anti-torture legislation in Latin America and the Caribbean b. Gendered approaches to the criminalization of torture50 Women and girls are at risk of torture and ill-treatment in three main ways: by perpetrators acting in an official capacity, by private or non-State actors for which the State may be held accountable, or by private actors without the nexus to State accountability. Torture and illtreatment against women and girls might take the form of custodial violence, which can include rape, forced nudity, and other forms of sexual abuse or deprivations.51 The InterAmerican Court and the Inter-American Commission on Human Rights have established that rape can amount to torture52, due to the severe suffering of the victim. The Inter-American Court has also confirmed the failure to investigate the sexually related disappearances and murders of several women violated their rights to life, humane treatment and to personal liberty.53 Within the family and the community sphere, violence can amount to torture and ill-treatment54, if the State fails to exercise due diligence to prevent, investigate, prosecute and/or punish torture. The CAT has clarified that: “Where State authorities or others acting in official capacity or under colour of law, know or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by non-State officials or private actors and they fail to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private actors consistently with the Convention, the State bears responsibility and its officials should be considered as authors, complicit or otherwise responsible under the Convention for consenting to or acquiescing in such 55 impermissible acts.” The CAT has applied this principle to States parties’ failure to prevent and protect victims from gender-based violence, such as rape, domestic violence, female genital mutilation, and trafficking. To reinforce the protection of women and girls from torture and ill-treatment, a number of laws include different approaches for instance:  Costa Rica and Chile’s Criminal Codes include gender discrimination as a motive to become a punishable act of torture.  In its Article 150 A, the Criminal Code of Chile expands the definition of torture by incorporating “sexual suffering”.56  Ecuador recognizes sexual assault as an aggravated form of torture when it is committed for the purpose of intimidation, exploitation, degradation, humiliation, discrimination, revenge or punishment. 57 50 In this paper the gendered approach to the definition of torture will be focused on women and girls, although it is recognized that there are other aspects to a gendered approach. 51 See, Inter-American Court of Human Rights, Miguel Castro-Castro Prison v. Peru (2006). 52 See, Inter-American Court of Human Rights, Martí de Mejia v Peru (1996), Loayza-Tamayo v. Peru (1997) and Ortega et al v Mexico (2010). 53 See, Gonzalez et al (‘Cotton Field’) v. Mexico (2009). 54 UN Committee against Torture, General Comment No. 2: Implementation of article 2 by States parties, UN Doc. CAT/C/GC/2 (24 January 2008); UN Special Rapporteur on torture, Report to the Human Rights Council, UN Doc. A/HRC/7/3 (15 January 2008), § 44; see UN Special Rapporteur on torture, UN Doc. A/HRC/31/57, (5 January2016) § 55. 55 UN Committee against Torture, General Comment No. 2: Implementation of article 2 by States parties, UN Doc. CAT/C/GC/2 (24 January 2008), para. 18. 56 The Congress of Chile incorporated the real concurrence of offences when the accused of torture commits homicide, sexual violence, aggravated sexual assault, mutilation, etcetera incrementing the penalties. History of the Law N°20.968 Typifies the crimes of torture, and other cruel, human or degrading treatment or punishment, (December, 2016), p.11 12