Translated into English with author permission
On October 14 of this year a young Law student, of 19 years old was arrested, Maria Guadalupe Pereda Moreno alleged responsible of a murder crime. According to media reports, threatened by her former partner, attorney Carlos Balderas of 37 years old, with a gun during an argument outside Pereda Moreno’s home who disarmed and shot him to death three times; information provided by the authorities themselves realize a history of domestic violence by Carlos Balderas, in life, against the today detained.
The case is socially relevant because of the judiciary and political implications, whatever the sense of judgment that drives the prosecution in the next hours against the detained: either intentional homicide, negligent homicide (excess of legitimate self-defense), or by homicide in legitimate self-defense (justification that causes that eliminates unlawfulness)
If the prosecutor establishes a charge of intentional homicide, involve the following:
1. The denial of the version of the facts provided by the press, in the sense of a probable legitimate defense. Denial from which it follows the prosecutor proceedings and that the accused could certainly appeal if these do not correspond to the facts.
2. The denial of a legit self-defense, in the facts given by the press, as a justification of the offense; which at first instance also can be counteracted, where, from a gender perspective, it would be key.
In my view, in the first case, even if the proceedings were correct, the society would give greater credit to the press version than to the prosecutors; in the second case, a population ravaged by violence in its various manifestations, I would consider more legitimate the answer of a young abused previously and repeatedly: three shots against an abuser it cannot be read as excess in an area where extreme violence against women keep them up in a constant fear and even terror (last week the press reported brutal murders against 5 women in less than 36 hours in this town).
In both cases, the authority faces considerable social disavowal (that heavily depends on the press coverage on Pereda Moreno’s case) with possible and desirable protest actions. The rejection will be based on distrust more than justified by the cumulative discredit of the justice institutions, locals and nationals, that in a quarter of century and systematic attacks against the women of this border, have been characterized by their omissions, collusion and frank protection of criminals, especially of those with high profile closer to the established power.
Our student partner, in both cases, faces a trial whose penalty would go from 8 to 20 years in prison, depending on the mitigating and aggravating that consider the Judge in his decision or judgment.
Moreover, if the prosecutor establishes an indictment for manslaughter or the judge discarded it, after an argument against the accusation of homicide opting for the wrongful, it would imply that if faced an excess in the answer because of the aggression could remain within the framework of legitimate defense, but without diluting the unlawfulness and therefore a penalty, but attenuated response.
Under the Criminal Code of the State of Chihuahua, the penalty for murder with an excess of legitimate defense is a quarter of that willful, thing that could make her face a possible penalty of 2 to 5 years in prison, and if the sentence is less than 3 years she could obtain her freedom with a suspended sentence. If this were the case, the political pressure in general of relatives, friends, partners, feminists and activists could play an important role for her freedom.
Finally, if it’s established that the murder was in legitimate defense, Pereda Moreno would be released without penalty. But we must say that legally this is the most difficult given the lack of gender perspective at the time of solving these kind of cases and notwithstanding the political struggle of women has made the law obliges according to their consideration. Recurrent criteria ‘rationality of the means employed’ merely confined to an immediate context of the fact, without mediate considerations such as gender, class or race, put our colleague in an adverse scenario. It is important to consider that her legal defense turn on consideration of the facts as legitimate defense to ensure the implementation of a gender perspective. For this, it would be essential, resume not just legal but also politically, the contributions of Amicus Curiae2 presented by the Human Rights Commission of the Federal District and Liberation Committee of Yakiri Rubio, an important precedent in this type of cases.
The more likely is it that, first, the authority denies the cause as justification alleging that the three shootings were disproportionate or, in the worst of the scenarios, that Pereda Moreno wasn’t anymore, in a situation of defense. These considerations of a purely formal character, deny, as already mentioned, the mediate context where it can be explained the “legally disproportionate” answer and out of a restricted defense framework.
The jurisprudence regarding a legitimate defense, had been a cold interpretation, promptly, which strictly application to the women raises moral and political injustice, because in a mediate level , not considered repeatedly the application of law, the real constant existence against women of our city, and in general in the country, put them in a constant defensive position. The demand for a broader interpretation considering gender, which already requires the law, poses a methodological problem to overcome the risk of falling into a relativism that will end in other injustices that is designed to prevent them. Against this legal problem, the duty of give solution is mainly of jurists, as is ensuring a fair trial, with a gender perspective, for Pereda Moreno.
The primary duty of us is demand justice and not allows the strict application of the law without the gender considerations that requires the authority.
But beyond what the law may say and interpretation of it, María Guadalupe Pereda must be defended, firstly from moral and political criteria, considering that this act was not only fair and decent, but politically relevant for women empowerment and their right to self-defense, in a highly aggressive context that is tolerated, fomented and built by an openly criminal State.
We must defend our colleague Maria Guadalupe Pereda Moreno because the current court system in the state of Chihuahua will not grant justice. We must defend her because it is unlikely that the Mexican State will consider the law student’s actions to be a legitimate act of self-defense, not only for alleged legal reasons, but also for political reasons, while her behavior sends a message of weariness and indignation against patriarchal violence and at the same time calls for a worthy self-defense in a society where the law of the strongest prevails. Maria Guadalupe’s actions openly and courageously confront this State of Exception where not even the most basic human rights are respected
The freedom of the student Maria Guadalupe Pereda, as in Yakiri Rubio emblematic case, must be demanded by the women’s movement and everyone in general who aspire to justice and emancipation of mankind. The call should be to the creation of a committee for the liberation of our colleague.
1 Originally from Nuevo Casas Grandes, Chihuahua. Bachelor of Literature, Law student and Master in Literary Studies. Militant of the Revolutionary Socialist League.
2Amicus Curiae. Latin term meaning “friend of the court”. The name for a brief filed with the court by someone who is not a party to the case. Copyright 1998-2008 David Carney, dba Tech Law Journal. All rights reserved. Retrieved October 18, 2015 from http://www.techlawjournal.com/glossary/legal/amicus.htm