Colombia: Supreme Court in Favor of Conjugal Visits for Lesbian Inmate

Judicial Victory Could Affect Groundbreaking Case at the Interamerican Commission of Human Rights

For Immediate Release: October 23, 2001

SAN FRANCISCO - The Colombian Supreme Court issued a verdict October 11 in favor of the right to conjugal visits for Alba Nelly Montoya, a lesbian in the Risaralda Women's Prison, and her partner. The ruling has implications far beyond Ms. Montoya's case. It could also resolve the Marta Alvarez case, in which a lesbian inmate's demands for conjugal visits became the first sexual orientation-related case ever presented before the Interamerican Commission of Human Rights.

Hearing the good news, Lic. Marta Lucía Tamayo R., a feminist lawyer who represents both cases, stated: "This great triumph is due to Martica Alvarez and Alba Nelly, who had the courage to show their faces and fight publicly for love; to women in prison; to lesbians; to the National Women's Network, Bogota section; to the Pereira Ombudsman office."

The Marta Alvarez case was heard at the Interamerican Commission on Human Rights October 1, 1999, after exhausting all legal avenues in Colombia in the preceding five years. In her petition to the Commission, Alvarez argued that her rights to personal dignity, integrity, and equality were being infringed upon by the denial to allow her conjugal visits in prison. The National Institute for Penitentiaries and Prisons (INPEC) grants conjugal visitation rights in a discriminatory fashion to heterosexual men and women (the latter restricted to husband's visits only), and denies this right to same-sex couples.

"Discrimination based on sex or sexual orientation has no place outside or inside prison walls," said Alejandra Sardá, Regional Coordinator for Latin America and the Caribbean at the International Gay and Lesbian Human Rights Commission (IGLHRC). IGLHRC is a co-petitioner in the Alvarez case, together with other international and Colombian human rights organizations (see list of co-petitioners below).

The Colombian government admitted in 1999 before the Interamerican Commission that the denial to grant visitation rights to Alvarez constituted "inhuman and discriminatory" treatment. Nevertheless, it continues to deny these visits--arguing that, however "cruel," the denial fosters security, discipline, and morality in prisons. The government also alleges that Latin-American cultures do not tolerate homosexuality. This last argument ironically contradicts a string of decisions by Colombian courts which recognize the rights of Colombian gays and lesbians to equality and non-discrimination. [See samples in Spanish of Constitutional Court decisions, affirming the constitutional rights of homosexuals in the teaching profession and in the army].

Following the hearing at the Interamerican Commission the parties embarked on over two years of negotiations in order to reach a friendly settlement. At the start of negotiations Alvarez was transferred to a men's prison and submitted to other disciplinary measures, apparently in retaliation for her having come forward with her case. After a domestic and international protest campaign the disciplinary measures were rescinded.

The Alvarez case is case #11,656 at the Interamerican Human Rights Commission. Co-petitioners before the Interamerican Commission are: the Colombia National Women's Network, represented by Lic. Marta Lucía Tamayo R; the lesbian group Triángulo Negro; the gay groups Equiláteros and Trenza; the Latin-American Institute of Alternative Legal Services; the Center for Justice and International Law (CEJIL); the International Human Rights Law Group; and IGLHRC.

Alvarez had exhausted all legal avenues in Colombia before reaching the Interamerican Commission. Alvarez first petitioned in 1994 for same-sex conjugal visits, which are allowed in Colombia under Article 12 of the Penitentiary and Prison Code (Law 65/93). The office of the prosecutor granted her request on July 26, 1994. Prison authorities, however, did not acknowledge receipt of the decision and refused to implement it. Under pressure from the Office of the Ombudsperson, prison authorities released the decision September 30, 1994, but continued to refuse to implement it.

The Office of the Ombudsperson filed a complaint with the Municipal Court on January 20, 1995, alleging that Alvarez's rights to the free development of her personality, equality, privacy, and right to appeal, were being denied. The Court did not rule in favor of Alvarez and the case went through subsequent appeals in the Colombian courts. until May 22 1995, when the Colombian Supreme Court declined a revision of the case.