By Lucas Fauno Gutiérrez. Today, the Oral Criminal and Correctional Court No. 16 of the City of Buenos Aires finally upheld the sentence that, for the first time, considers "hate based on sexual orientation" as an aggravating factor in the crime of serious bodily harm. With this ruling, the court addressed the attack perpetrated on December 1, 2017, against Jonathan Castellari, who was assaulted by seven men. On November 20, these men admitted to attacking him because he is gay and reached an agreement with the prosecution for a plea bargain with a three-year suspended prison sentence and community service. Although the Oral Court ratified this agreement today, Castellari's defense team is evaluating whether to appeal the sentence. "This is the first case in which a serious bodily harm conviction considers hate based on sexual orientation as an aggravating factor ," the victim's lawyer, Gastón Llopart, told Presentes. In addition to the three-year suspended prison sentence, the attackers were ordered to perform 96 hours of community service. Initially, the option existed for the community service to be performed at the Mocha Celis Popular High School, the Trans House, and/or the Endocrinology Department of the Fernández Hospital. The lawyer confirmed to this agency that the ruling stipulates the tasks will be carried out at the Endocrinology Department. In addition, the seven must attend the course on 'Discrimination and Rights' offered by the National Institute Against Discrimination, Xenophobia, and Racism (INADI). Gastón Alejandro Trotta, Alejandro Matías Trotta, Rodrigo Nahuel Cardozo, Facundo Curto, Juan Bautista Antolini, Jonathan Antony Romero Escobar, and Juan Ignacio Olivieri admitted to attacking Jonathan Castellari because of his sexual orientation. They reached a plea agreement with the 16th Prosecutor's Office before the Oral Criminal and Correctional Courts. Today, this agreement was ratified, and the sentence was issued, signed by María Cristina Bertola, Gustavo González Ferrari, and Inés Cantisani. Regarding the application of summary trials, Gastón Llopart, lawyer for Jonathan Castellari (a member of Ciervos Pampas, the first LGBTQ+ rugby team in Latin America), considers its application at least questionable. “ It is debated whether, in these types of crimes where the Argentine State bears responsibility, there is an obligation to hold a trial. The State has an obligation to prosecute these crimes, given the applicability of the American Convention on Human Rights and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Convention of Belém do Pará), which is understood to also apply in cases of violence motivated by sexual orientation.”

[READ MORE: #TackleHomophobia: Pampas Deer, Latin America's first sexually diverse rugby team]]

Another reason they are still considering whether or not to appeal this ruling is the amount of community service imposed as a penalty: 96 hours over three years. “We think that’s not enough,” she said. “Furthermore, the sentence says nothing about a restraining order against Jonathan and his attackers.”

The attack

A year ago, Jonathan Castellari was hospitalized at the Güemes Hospital in Buenos Aires with broken teeth, a fractured orbital bone that threatened his eye, and several other injuries. The hospital is located just a few meters from the McDonald's at 3188 Avenida Córdoba, where seven assailants attacked Castellari and a friend who was with him, Sebastián Sierra. “Today I woke up wanting to punch a faggot like you… get outside you fucking faggot“,” Olivieri and Romero Escobar told Jonathan Castellari in the early hours of December 1, 2017. Once in the parking lot of the fast-food restaurant, Alejandro Trotta attacked him from behind. The other assailants then joined in.

[READ ALSO: Brutal homophobic attack on member of the Ciervos Pampas rugby team]

“Kill him for being a faggot,” These are some of the phrases they said while beating him, which are included in the court ruling. Sebastián Sierra intervened to stop the attackers, and when they were distracted, Jonathan Castellari was able to escape and be taken to the hospital. All of this is detailed in the statements of the victim and his friend. In addition to the statements of Jonathan Castellari and Sebastián Sierra, the manager and a McDonald's employee testified that the attack was motivated by the victim's sexual orientation. Security camera footage of the incident was also considered, as well as a 911 call in which a woman reported that a group of intoxicated men were attacking two young gay men. The seven attackers initially claimed they only learned Jonathan was gay after the fact, through the media. However, they have now admitted to the court that they acted because of his sexual orientation.