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By Alejandra Zani

On June 28, 2019, while some were celebrating International LGBTI+ Pride Day and the 50th anniversary of Stonewall, the Oral Criminal Court No. 26 of the City of Buenos Aires sentenced Mariana Gómez to one year of suspended imprisonment and to pay the costs of the trial for "crime of resistance to authority in conjunction with aggravated minor injuries".

The ruling, issued by Judge Marta Yungano, failed to consider that Gómez was trying to defend herself against officers of the City Police, Jonatan Rojo and Karen Villarreal, after they violently arrested her for smoking a cigarette in the rain and for kissing his wife, Rocío Girat, at the Constitución station in 2017. A year after the sentence, the case is under appeal due to a request from the defense attorney, Lisandro Teszkiewicz. 

[READ ALSO: Mariana Gómez before the Justice system: “The judges didn’t let me speak” ]

“For Marian, the conviction meant the impossibility of accessing formal employment. Nobody wants to hire someone with a criminal record for contempt of authority. Luckily, the case is under appeal, and that gives us a little more time to believe that the ruling can be overturned and that we won't have to pay the court costs,” Rocío Girat explained to Presentes.

For Mariana's partner, it's unfair to have to pay the state for the aggression committed by its institutions and officials. “We suffered a devastating judicial persecution. We had to move from where we were living. We were living with my grandparents, and the prosecutor and judge at the time ordered a raid on our home. Notifications arrived at our address where Mariana was referred to as a man, called Mariano—zero respect for anything. We demanded Mariana's acquittal because, for us, but also for the entire LGBTTI+ community, it would be restorative justice so that we can feel safe in 'the city of diversity,' as they portray it. So that we can walk visibly, without fear of being arrested and thrown in jail.”

“We believe there was arbitrariness and illegitimate application of the law.”

According to lawyer Lisandro Teszkiewicz, the appeal to overturn the case was filed based on three fundamental issues. The first concerns the incorrect application of Article 72 of the Penal Code, under which Marian was convicted of minor injuries against Officer Villarreal. “This conviction assumes that Marian pulled out a lock of the officer's hair. But Article 72 states that minor injuries can only be prosecuted if there is a request from the injured party, that is, if the injured party requests that the minor injury be prosecuted. When she received summonses to undergo medical examinations, she never appeared, and in her statements, she did not express any desire to prosecute Marian for pulling out a lock of her hair, a fact that is also unproven.”

The second issue the lawyer explains as a misapplication of substantive law is resisting authority and the problem of the smoking ban. “ Mariana was convicted of resisting authority. This crime occurs when an authority issues a legitimate order, in accordance with the law and within its jurisdiction. People are obligated to abide by the law when it is just. No one is obligated to endure injustice. The smoking ban within the Constitución train station stems from City Law 1799. That law provides for a penalty for the person responsible for the establishment that allows smoking, but it does not provide for any penalty for the smoker,” Teszkiewicz explains.

[READ ALSO: Mariana Gómez's trial: "I never went to trial for my sexual abuse, but I did for contempt of court" ]

According to this law, the person in charge of the establishment must ask anyone smoking to extinguish their cigarette, and if they refuse, they can call on law enforcement. “In this sense, the police must do the same: ask the person to leave or extinguish their cigarette. Law enforcement is not authorized to detain the person. Jonatan Rojo, in his sworn statement, says that at one point during the argument, Marian extinguished her cigarette and tried to leave, but he prevented her from doing so. And this was proven by the judge. If Marian had left, she would have been complying with the law, but by preventing her, Jonatan Rojo gave her an illegitimate order, which is that he prevented her from leaving the premises, and as such, Marian had the right not to obey it. Therefore, there was no resistance to authority.” 

On the other hand, according to the lawyer, there was an arbitrary evaluation of the evidence. “From what was said at the trial, from the videos that were shown, and from the statements of all parties, it is clear to us that Jonatan Rojo always referred to Marian as a kid, but two people contradicted that: the officer himself and a person named Pérez, who was the Metrovías employee. The second issue that we believe was proven, but which the judge did not accept as proven, is the hair pulling. The statements of Rojo, Villarreal (who was the victim of the hair pulling), and Marian—all three of whom participated in the struggle—coincide at every stage that the hair pulling occurred when Jonatan Rojo was throwing Marian to the ground,” the lawyer explains. 

This would prove that she didn't choose to take the lock of hair, but rather acted as a mechanical force and grabbed a lock. “Article 34 of the Penal Code establishes that when someone acts as a mechanical force pushed by another person, there is no intentional act and therefore no crime. But the judge maintains in the ruling that this is not clear. Now, if it is not clear, the principle of Article 3, In dubio pro reo . In case of doubt, one is declared innocent. That is why we are asking the Court of Appeals to overturn the ruling, to revoke it, and to acquit Marian of the charges.”

The case against Officer Rojo is on hold.

On October 2, 2017, Mariana accompanied Rocío to catch a ride at Constitución station. When it began to rain heavily, the young women decided to take shelter in the entrance of the subway terminal. Like them, many other people were also seeking refuge from the rain, chatting, and smoking. But only Mariana was confronted by a member of the Buenos Aires City Police, Jonatan Rojo. He was joined by Officer Karen Villarroel. When Mariana tried to leave, Officer Rojo addressed her using masculine pronouns and attempted to arrest her by force. “There was an illegitimacy in the order, not a resistance to authority,” is how the defense attorney, Lisandro Teszkiewicz, described the situation in one of the trial hearings.

The day after Mariana's arrest, Rocío and Mariana went to the Office of the Prosecutor for Institutional Violence (PROCUVIN) to file a complaint against Jonatan Rojo for abuse of power and institutional violence. "He was the one who hit Mariana and disrespected her identity," Rocío said. But, according to Rocío, Officer Rojo was not subjected to any disciplinary proceedings. He also received no reprimands or gender perspective training. In fact, he continued his duties as if nothing had happened. 

[READ ALSO: Mariana Gómez before the Justice system: “The judges didn’t let me speak” ]

“During the trial, we often had to run into him in Constitución, where we took public transportation to get to the hearing, and it was awful to have to see him. Meanwhile, Marian was convicted and has an unfair stain on her record. Furthermore, if she is indeed convicted and this ruling that we appealed doesn't result in an acquittal, she will remain on the system for another five years.”

For Rocío, it's important to remember that Jonatan Rojo "acted under Larreta's orders and directives." "We continue to demand that the Buenos Aires City Police receive training. All state entities and institutions involved must be trained in gender perspective."

A lesbian-hating ruling 

Numerous media outlets, human rights organizations, and Mariana Gómez's defense team denounced Judge Marta Yungano's ruling for its lack of gender perspective. "It's an abhorrent sentence. We demand that Marta Yungano explain her homophobic and lesbian-hating rulings, and we believe that someone like her cannot be a judge." 

Beyond Mariana's case, Rocío continues, “Yungano is someone who, throughout her career, has dedicated herself to releasing pedophiles, freeing police officers, and granting benefits to trigger-happy cops. She makes mistakes as you can imagine. On the same day that Mariana was sentenced, Yungano acquitted a pedophile for abusing her son. This judge cannot hold that position. We demand that she at least be trained to rule in accordance with what society needs.”

The police accused Mariana of “resisting arrest” and assault. However, some time later, an expert report from the Forensic Medical Corps of the Supreme Court of Justice of the Nation revealed that Mariana Gómez did not assault the police. Then the talk of lesbophobia began. “In general, the lesbian ‘chonga’ is labeled as disobedient, as someone who attacks men, as violent, and those are the stereotypes we want to eradicate.”