Originally published 2020-11-13.
In November 2020 a court ruling from the southern Peruvian region of Ica set off protests across the country. Three judges had acquitted a man accused of rape, and part of their reasoning rested on the colour of the complainant's underwear. They suggested that red lingerie showed she had been ready for sex. The decision was annulled on appeal in January 2021, and in March 2022 the three judges were suspended for six months.
The case became a symbol of a wider problem that activists across Latin America have fought for years: courts and societies judging survivors of sexual violence by how they look, dress or behave, rather than by whether consent was given.
What the court decided
The case reached a collegiate criminal court of the Superior Court of Justice of Ica. According to the prosecution, a young woman, reported as 20 or 21 years old, went to a gathering with a man in his early twenties in January 2019. She said she lost consciousness there and woke up in his bed, and she accused him of raping her. The defence argued that she had invented the accusation.
The panel of judges, Ronald Anayhuamán Andía, Lucy Castro Chacaltana and Diana Jurado Espino, acquitted him. The detail that caused uproar was in their written reasons. They argued that the shy personality described in the case did not fit with the underwear she wore, which they said is usually kept for "special occasions leading to moments of intimacy." From that, they concluded she gave the impression of being prepared to have sex.
Critics pointed out the obvious flaw. What a person wears says nothing about whether she agreed to sex at a particular moment, and the complainant's account was that she had been unconscious. A person who is unconscious cannot give consent at all.
How Peru reacted
When the reasoning became public, it was condemned within days. Peru's Ministry of Women and Vulnerable Populations said it strongly rejected the judgment and called for a justice system free from gender stereotypes. Lawyers, academics and feminist organisations argued that the ruling broke with basic principles of evidence and with Peru's own commitments on violence against women.
Demonstrations followed in Ica, in Lima and in other cities. Many protesters carried or hung up red underwear as a deliberate answer to the judges, turning the garment from a supposed proof of consent into a sign of solidarity. Others held signs repeating a simple message: clothing is not an invitation.
The protest anthem from Chile
Several demonstrations used "Un violador en tu camino" ("A Rapist in Your Path"), a protest performance by LasTesis, a feminist collective from Valparaíso, Chile. Drawing on the work of Argentine anthropologist Rita Segato, it was first performed in public on 20 November 2019 in Valparaíso's Plaza Aníbal Pinto.
Videos of the performance spread rapidly. Within days thousands of women staged it in Mexico City's main square, and by 2021 the mapping group GeoChicas had counted performances in more than 400 places across over 50 countries. Its best-known line turns the blame away from survivors: "The fault was not mine, nor where I was, nor what I was wearing." That message matched the Ica case so closely that the chant became an obvious choice for Peruvian protesters.
The appeal and the judges' suspension
The acquittal did not stand. On 3 January 2021 the First Criminal Chamber of Appeals in Ica declared the decision null, which meant the case had to be heard again.
Peru's judicial oversight office, then known as OCMA, also opened disciplinary proceedings against the three judges. In March 2022 Supreme Judge Mariem De La Rosa Bedriñana imposed a six-month preventive suspension on all three. The office found that they had relied on "unnecessarily stereotypical grounds", a gender stereotype that went beyond the limits of judicial independence and clashed with principles of dignity, equality and a life free from violence. One judge was also sanctioned for using court computer equipment for unrelated purposes.
Public reports have not made clear how the retrial ended, so it is not possible to say whether the accused was later convicted or cleared.
Why clothing is not evidence of consent
The Ica reasoning is an example of what researchers call a rape myth: a widely held but false belief that shifts responsibility from the person accused to the person harmed. Familiar examples include the idea that a woman's outfit, drinking, flirting or presence at a party means she was asking for it.
Courts in many countries now explicitly reject this kind of thinking. Consent is about agreement to a specific act at a specific time, and it can be withdrawn. It cannot be read from a skirt length or a colour of lingerie, and it cannot be given by someone asleep, unconscious or too intoxicated to understand what is happening. Peru's penal code itself treats sex with a person in a state of unconsciousness, or unable to resist, as a form of rape.
A well-known exhibition, "What Were You Wearing?", first shown at the University of Arkansas in 2013, makes the same point visually. It displays outfits described by survivors, from pyjamas to work clothes to children's dresses. The ordinary clothes are the message: assault is not caused by what someone wears.
The wider picture in Peru
Sexual violence is a serious and persistent problem in Peru, and campaigners have long argued that survivors face disbelief from police, prosecutors and courts. The mass movement Ni Una Menos ("Not One Less"), which began in Argentina in 2015, has organised large marches in Lima since 2016 against femicide and gender-based violence.
The red-underwear ruling became a reference point in that debate because it was so easy to understand. Anyone could see the problem with a judgment that treated a piece of clothing as a sign of consent. The swift annulment and the later suspension of the judges showed that the system can correct itself, but activists argue that real change depends on training judges, police and prosecutors so that such reasoning never reaches a written verdict in the first place.
For readers affected by sexual violence, local crisis services and trusted health professionals can offer confidential support and advice on next steps.
Sources: Infobae, 22 March 2022: Judges who valued the type of underwear worn by the complainant of rape were suspended; Daily Mail, November 2020: Peru judges rule woman's red underwear signalled she was willing; Wikipedia: A Rapist in Your Path.
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