Mariana Gómez, convicted for defending herself against the police, was acquitted: the ruling sets a precedent against discrimination

The National Court of Cassation acquitted Mariana Gómez of the charges of minor injuries and contempt of authority, for which she was convicted in 2019. The ruling acknowledges the lesbophobic discrimination of the Police and the Judiciary.

April 7, 2021

By Ana Fornaro and Alejandra Zani

The Second Chamber of the National Criminal Court of Cassation acquitted Mariana Gómez of the charges of minor injuries and contempt of authority, for which she had been convicted in 2019.That judicial decision was denounced by human rights organizations as homophobic and brought feminist and LGBTQ+ activists to the streets. After four years of systematic institutional violence, Mariana obtained justice. "We still can't believe it, we're very emotional," Rocío Girat, Mariana's wife, told Presentes.

The case dates back to 2017, when Mariana and Rocío were confronted by police for kissing in a Buenos Aires subway station. They were accused of smoking in a prohibited area, and Mariana ended up beaten and detained for several hours at a police station. Two years later, she was the one convicted. “For Mariana, the conviction meant being unable to get a formal job. Nobody wants to hire someone with a criminal record for disobeying authority,” Girat explained to Presentes last year.

For his part, Mariana's lawyer, Lisandro Teszkiewicz, expressed great satisfaction with the Court of Cassation's ruling, because it recognizes the discriminatory bias of the Police and the Judiciary and calls for action. "It sets a technical and public policy precedent," he told Presentes.

“The Court of Cassation’s ruling is interesting from two perspectives: a technical one and a public policy one. From a technical standpoint, it argues that Judge Marta Yungano cannot act as the accuser. In her ruling, she establishes something that even the prosecution didn’t argue at trial: that Mariana’s alleged aggression against the officer was more serious because the officer was a public servant. The judge must be impartial. The second part of the ruling directly addresses the discriminatory nature of the police action and the actions of the Metrovías employee. It also states that the prohibition of smoking in public spaces—the reason the police gave against Mariana—is an administrative regulation and does not justify police action. This sets an important technical precedent. Finally, the ruling alludes to the fact that when there is a discriminatory act by the State—in this case, the police—the Justice system cannot validate it,” Teszkiewicz told Presentes. He added, “This highlights the urgent need to implement the Micaela Law within the Judiciary.”

Lawyer and lesbian activist Greta Pena, a member of the organization 100% Diversity and Rights, told Presentes that the problem isn't the laws but the justice system. "We have to reflect on these four years of ordeal that Mariana suffered, not only psychologically, but also because it prevented her from accessing employment, with all that that implies. These lesbophobic rulings have a very disciplinary effect. Mariana's case is not isolated. Lesbian couples who express affection in public are punished. They might be forced off the train or kicked out of a bar, or even suffer physical or verbal attacks. It's a structural phenomenon. This is a very hypocritical society: pornography featuring sex between women is consumed nonstop, but when two lesbians express affection outside of that context, we are punished."

Regarding the next steps and the analysis of this ruling, Pena said that activists intend to call for the impeachment of the judge who issued the homophobic ruling and the prosecutor. She also stated that this decision by the Court of Cassation is a sign of change within the judiciary: "The justice system is showing small signs of change on gender issues, and this is related to the efforts of organizations to litigate with a gender and diversity perspective and achieve rulings that set a precedent."

A lesbian-hating ruling is reversed

From numerous media outlets, human rights organizations, and from Mariana Gómez's defense team, Judge Marta Yungano's ruling was denounced for its lack of a gender perspective.

“Yungano is someone who, throughout her career, has dedicated herself to releasing pedophiles, freeing police officers, and granting benefits to trigger-happy cops. She judges according to her own judgment. On the same day that Marian Yungano was sentenced, she acquitted a pedophile for abusing her son. This judge cannot hold that position. We demand that she at least be properly trained to rule in accordance with the needs of society,” Girat said at the time.

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.”

The National Institute Against Discrimination, Xenophobia, and Racism (INADI) joined the appeal as an amicus curiae. In his presentation, Emiliano Montini, representing the Legal Affairs Directorate, argued that Mariana Gómez was a victim of institutional violence, not only at the hands of the police, but also through judicial actions, reflected in the various procedural steps and, above all, in the contested decision that dismissed two testimonies favorable to the prosecution.

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.

“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."

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