Definition of rape
For a long time there didn’t seem to be consensus on the definition of rape in international criminal law as ICTY and ICTR Chambers came up with different definitions of the crime, sometimes including ‘lack of consent’ and other times ‘coercive circumstances and/or threat of force’ as an element (e.g. in Akayesu; Furundzija; Kunarac et al., Gacumbitsi). A big achievement is the acknowledgements that the definition of rape does not need to include lack of consent as an element of the crime. The recognition that consent is virtually meaningless in a context of structural force and subjugation, reflects an important achievement from a victim’s perspective. It reflects a recognition that the traditional burden of proof of the lack of consent (often more commonly found in national jurisdictions) is putting an unjustifiable burden on the victim/witness, notably in the context of conflict situations where conditions of force and threat preclude any freedom to consent. In 2014, before the ICC in the case of the accused Katanga (DRC situation), but also in later judgments, this interpretation was confirmed. Indeed, pursuant to the non-binding Elements of Crimes of the ICC, lack of consent is, in principle, not an element of the crime of rape.
Sources ( a selection):
- Patricia Viseur Sellers, “The ‘Appeal’ of Sexual Violence: Akayesu/Gacumbitsi Cases”, in Karen Stefisyn (ed.), Gender-Based Violence in Africa (University of Pretoria, Pretoria, 2007), 51-103.
- Patricia Viseur Sellers, “The Prosecution of Sexual Violence in Conflict: The Importance of Human Rights as Means of Interpretation”, 1-41.
- Anne-Marie de Brouwer, “Gacumbitsi Judgement”, in Göran Sluiter and André Klip (eds.), Annotated Leading Cases of International Criminal Tribunals: The International Criminal Tribunal for Rwanda 2005-2006 (Volume 24) (Intersentia, Antwerp/Oxford/ Portland, 2009), 583-594.
Assignment
Study the cases of Akayesu (ICTR, 1998), Kunarac et al. (ICTY, Appeals Chamber 2002), and Katanga (ICC, 2014) together with the ICC Elements of Crimes, on the definition of rape and give several reasons why it is important to keep “lack of consent” outside the definition of rape in international criminal law. In other words, why would a focus on coercive circumstances and use of force (more broadly interpreted) be better in these types of cases? (in case you do not agree with this, please elaborate why so)
In addition, explain whether you would prefer to have a definition of rape focussed on certain body parts (such as in Kunarac et al.) or not (i.e. a more open ended broadly defined definition of rape, such as in Akayesu).
Definition of rape in international criminal law (a quick overview):
Definition 1 – Rape: Akayesu (ICTR, 1998):
“A physical invasion of a sexual nature, committed on a person under circumstances which are coercive. (…).”
Definition 2 – Rape: Kunarac et al. (ICTY Appeals Chamber, 2002):
“the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim.”
Definition 3 – Rape: ICC Elements of Crimes:
- The perpetrator invaded[15] the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.
- The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.[16]
[15] The concept of “invasion” is intended to be broad enough to be gender-neutral
[16] It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or agerelated incapacity.