The Michael Arce Case: The First Ruling on Hate Crime in Ecuador

The Afro-Ecuadorian Michael Arce became a cadet of the Eloy Alfaro Military High School (ESMIL) in 2011, with the aspiration of becoming Ecuador's first black general. This objective was blocked by the racial discrimination that pervades the hierarchy of the Ecuadorian Armed Forces. In ESMIL, the lieutenant instructor in charge of teaching Arce the rudiments of military discipline subjected him to a series of humiliating practices that targeted Michael’s race. For him, Arce did not "fit" with the expectations created by the hierarchical model of the Ecuadorian Army, since “there could be no blacks in the army”. Therefore, Arce was forced to resign from the Army.

While these experiences profoundly influenced Michael Arce, with the support of his mother Lilian Méndez, a tenacious woman, he decided to report these events to the Office of the Ombudsman. This institution, in charge of safeguarding and guaranteeing human rights in Ecuador, conducted an investigation among Arce's colleagues in the ESMIL. These people verified his complaints. At the time, those responsible for the Human Rights area of ​​the Ombudsman's Office attempted to agree a process of reparation, but the military objected, claiming that all Arce's grievances were his excuse for not being able to withstand the rigours of military life.

Due to ESMIL’s denial of wrongdoing, the case went to the judicial system. The Attorney General's Office, through the prosecutor Gina Gómez de la Torre, was responsible for the process against ESMIL. Based on a psychosocial expert's report by Gino Grondona and a sociological report by John Antón Sánchez, the Prosecutor's Office tried to argue that the actions against Michael Arce represented a case of hate crime motivated by race. In 2013, the Sixth Court of Criminal Guarantees of Pichincha issued an order of preventive detention for the lieutenant instructor Fernando Encalada. However, the Seventh Court granted him freedom, ignoring the evidence of the Public Prosecutor's Office and the Ombudsman's Office, which alleged that the accused had acted in accordance with the stereotypes and prejudices that Ecuadorian society has about Afro-Ecuadorians, as "dirty, lazy and poor." The Prosecutor's Office and Arce’s lawyer, Juan Pablo Albán, appealed this decision and, after two appeal hearings, Lieutenant Encalada was found guilty. The ruling decreed that Encalada should be imprisoned for 5 months, shoud receive psychological counselling and should apologize publicly to Arce.

The abuses suffered by Michael Arce are on the border between physical and psychological torture. They revealed the racist practices of the Ecuadorian Armed Forces and the justice system, which act on a systematic pattern of discrimination in Ecuador that affects Afro-Ecuadorians and indigenous peoples. This evident act of racism provoked anti-racist protests by Afro-descendant individuals, organizations and movements. These protests included mobilizations in the streets, targeting public institutions and the media. In addition, it involved allying with various mestizo individuals who are defenders of human rights and who saw in this case a strategic opportunity to set a precedent in Ecuadorian legislation regarding hate crimes.    

According to the ruling established by the Ecuadorian courts, the case of Michael Arce is a hate crime. The law defines this as "acts of moral or physical violence of hatred, contempt, or discrimination against one or more persons by reason of their nationality, ethnicity, place of birth, age, sex, gender identity or sexual orientation, marital status, language, religion, ideology, socioeconomic condition, disability or health status shall be punishable by a term of imprisonment of one to three years" (Code of Criminal Procedure, Article 179). These crimes are directed at a person with the purpose of transmitting a message to the social group to which the victim belongs. The message is one of intolerance and is manifested through acts of moral, psychological and physical violence. These acts violate the right to equality and non-discrimination enshrined in Article 11 of the Ecuadorian Constitution of 2008.

Hate crimes not only affect the quality of life of the victim but also that of the entire social group to which he or she belongs, reminding the members of the group of their vulnerability to this type of attack. According to lawyer Juan Pablo Albán, racial hate crimes cause victims to suffer higher levels of emotional and psychological pain than similar non-racial crimes, becuase racial hate crimes affect the dignity of the victims.(1)

 (1) https://prohomine.wordpress.com/2013/11/16/delito-de-odio-delito-contra-los-derechos-humanos/