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Home > WOMEN'S CAUCUS ADVOCACY IN ICC NEGOTIATIONS |
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Recommendations and Commentary
for the Rules of Procedure and EvidenceSubmitted to the 29 November – 17 December 1999 Preparatory Commission for the International Criminal Court
“Their testimonies were based on incidents they had seen, heard or experienced and, in many cases, consisted of a recounting of horrific acts, in some cases committed against themselves, their family members or friends. The Trial Chamber recognizes that recollection and articulation of such traumatic events is likely to invoke strong psychological and emotional reactions, including feelings of pain, fear and loss…The Trial Chamber acknowledges the courage of these witnesses, without whom it would not be able to perform its task.”Prosecutor v. Delalic et al, (Case No. IT-96-21-T), 16 November 1998, para. 595.
Summary of Recommendations
Evidence in cases of sexual violence. Special Rules of evidence should be explicitly provided for cases of sexual violence. In particular:
Consent. Coercive circumstances are inconsistent with the possibility of consent. The Rules must specify that consent is irrelevant where such circumstances or conduct affected the victims. The Rules should also indicate that acquiescence does not constitute consent.Victim’s sexual conduct. Rule 96(iv) of the ICTY/ICTR Rules of Procedure prohibiting the admission of any evidence of the sexual conduct of the victims should be adopted.Evidence in Cases of Sexual Violence
The Rules of Procedure and Evidence Must Contain Special Rules of Evidence for Cases of Sexual Violence.Gender discriminatory assumptions and stereotypes have historically produced discriminatory evidentiary rules and practices in trials of sexual violence crimes when the victim is a woman. These rules revictimize female victims, redirect the focus of the blame to the victim, and divert attention from the accused and from the harm done to the victim. These rules, in turn, have created impunity for perpetrators of sexual violence, denied women an effective remedy for the harm they suffered, and deterred women from participating in the justice process.
For these reasons, the non-discrimination principle under article 21(3) of the Rome Statute requires a rule limiting the admissibility of inflammatory and irrelevant evidence as well as the drawing of discriminatory inferences in cases of sexual violence crimes. Such rules are necessary to encourage women victims of sexual and gender violence to participate in the work of the ICC and to prevent needless retraumatisation of those who do participate.
1. Non-admissibility of consent.
Recommendation: The possibility of a victim consenting to sexual relations is inconsistent with situations where coercive circumstances exist. Thus, the Rules should preclude inquiries into consent in these circumstances and clearly specify that acquiescence does not constitute consent.Commentary:
Coercive circumstances preclude the possibility of voluntary consent to sexual relations. Consent is irrelevant in these circumstances. To permit the defense to introduce purported “evidence” of the victim’s consent would be contradictory and harassing and would deter the participation of victims of sexual violence. In addition, it would violate art. 21(3) of the Statute.
This approach follows that taken by the ad hoc International Criminal Tribunals. Rule 96(ii) of the ICTY/ICTR Rules of Procedure, which formed the basis of Rule 6.5(a) in the RPE rolling text, has proven itself both necessary and effectual in the cases before the Tribunals.
The adoption of Rule 96(ii) by both ad hoc Tribunals was a clear and long overdue recognition at the international level that consent is vitiated under circumstances which are coercive, and that to engage in an inquiry about consent is inappropriate, damaging and counterproductive. Permitting inquiries into consent is one of the classic means of blaming and re-traumatizing the victim.
In The Prosecutor v. Furundzija – a case which concerned sexual violence in captivity – the Trial Chamber stated there has been a trend in the national laws of many States to broaden the definition of rape and understanding of force.1 The Chamber noted that "any form of captivity vitiates consent."2
It also was noted by the Special Rapporteur on Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict that “consent is not an issue as a legal or factual matter when considering the command responsibility of superior officers who ordered or otherwise facilitated the commission of crimes such as rape in armed conflict situations.”3
Sexual violence committed upon a person by those who exert power over the victim’s freedom or security cannot reflect a valid consent. It is appropriate to exclude inquiries into consent in these cases, particularly in light of the admonition of article 27 of the Geneva Conventions to take measures to prevent sexual violence. Article 27 recognizes the ever-present danger that soldiers will take advantage of coercive circumstances to rape and sexually violate women. That danger is an omnipresent terror for women who are subject to the will of another.
The rules proposed implement article 27 by making clear the impermissibility of taking advantage of coercive circumstances and, at trial, inferring consent from a woman’s acquiescence in coercive circumstances. As with other forms of torture, a woman from whom sex is demanded may well acquiesce rather than risk death or harm to herself or to others. Acquiescence to rape is a survival strategy; it is not consent. For related reasons, medical experimentation in detention is precluded by the Geneva Conventions. To preclude a consent defense where the victim has been subjected to coercive conduct or circumstances is both a deterrent and a guarantee of fairness at trial. For the same reasons, the Rules should also specify that acquiescence does not constitute consent.
The recognition that consent does not exist where the victim is subjected to coercive conduct or circumstances does not deprive the accused of essential rights as to the threshold question of coerciveness. Rather, it assumes a legitimate role for the defence. The Prosecutor puts forward the evidence of coercive conduct or circumstances and its impact on the victim and the defence has an opportunity – either in the course of the defence case or in a special hearing at the discretion of the judge – to rebut that evidence through cross-examination or through introduction of other evidence.
The accused must use only evidence other than the purported consent of the victim. For example, if the issue is whether the victim was detained, the defence can argue that the conditions did not amount to detention, or that the victim was free to leave and not otherwise confined by fear. Thus, the rule precluding evidence of consent does not strip the defendant of the tools to contest the proof of coercion; rather it focuses the Court and the public on the conditions or conduct that create coercion and does not allow that essential question to be obfuscated by inflammatory and harmful efforts to suggest consent.
Recommendation: Inquiries into consent should not be permitted unless the Court determines in an in camera hearing that no coercive circumstances exist, and that the evidence is highly relevant and credible.Commentary:
Where the proof of coercive circumstances or conduct is established, consent will be irrelevant and inadmissible. In the very rare case before the ICC where the accused creates a doubt as to whether the coercive circumstances existed or affected the victim, the court might, before dismissing the case, consider whether evidence of consent is inadmissible. The Rules should ensure that the Court hears both the prosecutor’s and defence’s evidence regarding coercion before any inquiry into consent is permitted.
The Court must prevent the essential harm of this type of inquiry which is the retraumatization and humiliation of the victim as a result of the tendering and production of such evidence. Thus, the Court must determine its admissibility in advance.4 Otherwise, the harm to the victim—and the deterrent to others from participating in the future -- will have been caused, thereby depriving the victim of the benefit of the rule mentioned above.
3. Non-admissibility of the sexual conduct of the victim.
Recommendation: The sexual conduct of the victim must not be admissible into evidence under any circumstances.Commentary:
Justice is not served if the victim becomes the unwarranted focus of the accusations at trial. Without very clear safeguards, this danger exists whenever sexual violence is charged. All too frequently in cases of sexual violence, discriminatory assumptions have made the private sexual decisions or character of the victim the central focus. As a result, victims have been subjected to humiliating and traumatizing cross-examination by defence counsel of highly personal matters. Not only is this a violation of their rights to privacy and to non-discrimination. It is also a miscarriage of justice, a traditional instrument of impunity for crimes of sexual violence, and thus a potential barrier to the duty of the ICC to universal justice.
For these reasons, ICTY/ICTR Rule 96(iv) excluding evidence of prior sexual conduct is a necessary protection against discrimination forbidden by Article 21(3) and should be adopted for the ICC. It reflects the practice in common law countries of adopting exclusionary rules as well as the increasingly common informal practice in civil law countries.5
The ICTY/ICTR Rule against admission of evidence of sexual conduct of the victim of sexual violence is essential to guarding against this problem. The need for the rule is illustrated by the fact that even with such a rule in place, abuses have occurred at trial. In the Delalic case before the ICTY, defence counsel questioned a victim of sexual violence about a prior abortion and about her use of contraceptive pills. Despite Rule 96(iv), neither the Prosecutor nor the Court reacted quickly enough. The woman had to testify about these highly personal matters in open court and her testimony was aired on the public telemonitors where media and other members of the public were present. In a subsequent motion by the Prosecutor to redact this evidence, the Trial Chamber decided that the testimony was inadmissible under Rule 96(iv). In doing so, it discussed the rationale underlying the existence of such a provision:
Sub-rule 96(iv) seeks to prevent situations where the admission of certain evidence may lead to a confusion of the issues, therefore offending the fairness of the proceedings. Furthermore, when adopting Sub-rule 96(iv), due regard was given to the fact that in rape or other sexual assault cases, evidence of prior sexual conduct of the victims mainly serves to call the reputation of the victim into question. Moreover, it was considered that the value, if any, of information about the prior sexual conduct of a witness in the context of trials of this nature was nullified by the potential danger of further causing distress and emotional damage to the witnesses.[emphasis added]6
All the reasons for which such evidence of a victim’s sexual history would be admitted are based on discriminatory and biased assumptions. It is discriminatory to assume that a person who has engaged in sex previously will consent to having sex on subsequent occasions or is open to having sex with anyone. This applies as forcefully to prior sexual conduct with the accused as well as with a third person. Indeed, in these situations of internal war, where former acquaintances and even intimates become enemies, rape is one of the most devastating means through which the aggressor exacts revenge or repossess the victim. Allowing the court to infer consent from sexual conduct denies the terrifying reality of sexual violence. It also denies the fundamental right of every person, male or female, to have control over sexual access to their bodies.
Use of evidence of the victim’s sexual conduct has also been based on the sexist belief that a female virgin is more valuable or honest than a woman who is sexually active. The erroneous belief that a “pure” woman is affected more by sexual violence than a woman who has been sexually active ignores the harm of sexual violence and denies the rights of women who do not conform to male and society’s conception of a “good” woman.
Finally, arguments in support of the admission of such evidence reflect a double standard. While women’s credibility is challenged by scrutinizing their sexual history, men’s credibility is not likewise affected by their sexual behaviour. Moreover, the contention that women will make false claims of rape to cover voluntary sexual activity or for revenge ignores the fact that rape claims are no more unfounded than any other crime and that there are tremendous costs to the victim—legal, social and cultural—that preclude most women from even discussing rape let alone charging it.
As noted by the Trial Chamber in the Delalic case above, the sexual conduct of the victim is particularly irrelevant to the types of crimes dealt with by the International Tribunal, and to be dealt with by the future ICC. The Trial Chamber noted that the Judges adopted Rule 96(iv) because of the nature of the crimes over which the International Tribunal has jurisdiction which include the systematic and widespread rape of women. Indeed, in situations of mass rape, for example, the sexual conduct of the victims will be irrelevant to the defence. Moreover, the ICC will most likely prosecute higher officials or particularly villainous lower officials. In such cases, defences of consent for which the victim’s sexual conduct would be proffered will not be applicable.
Pursuant to the Rome Statute, in particular articles 21(3) and 68(1) and (3), the ICC is under a duty to provide a fair and effective remedy for violence committed against women, consistent with the rights of the accused. This duty is also deeply rooted in international conventional and customary law.7 This means that procedures must be adopted which address the barriers that prevent women, particularly as victims of sexual violence, from seeking justice or harm them in the process.
The admission of evidence of the prior sexual conduct of the victim has been a major barrier to gender justice. Accordingly, the Women’s Caucus considers this recommendation to be key in ensuring that the ICC can provide redress for sexual violence.
1 See for example Canada and the United Kingdom where the highest courts have held that resistance is not required to prove lack of consent. Regina v. MLM, 89 C.C.C. (3d) 96 (1994 Supreme Court of Canada) and R v. Olugboja (1982) QB 320. Furundzija judgment, ICTY, paras. 179-181.
2 Furundzija, ICTY, para. 271.
3 Final report submitted by Ms. Gay McDougall, Special Rapporteur on Systemic Rape, Sexual Slavery and Slavery-like practices during armed conflict, 22 June 1998, UN Doc. E/CN.4/Sub.2/1998/13, para. 25.
4 If the Court is to consider whether to allow an inquiry into the existence of consent, the Rules must state that it should do so in an in camera hearing after the consideration of other evidence of coercive circumstances and that it must determine that such evidence is highly credible and relevant.
5 Delalic, Decision on the Prosecution’s Motion for the Redaction of the Public Record, 5 June 1997, paras 47 and 50.
6 Delalic, Decision on the Prosecution’s Motion for the Redaction of the Public Record, para. 48.
7 The Declaration on the Elimination of Violence against Women states in article 4(d) that States should “Develop penal, civil, labour and administrative sanctions in domestic legislation to punish and redress the wrongs caused to women who are subjected to violence; women who are subjected to violence should be provided with access to the mechanisms of justice and, as provided for by national legislation, to just and effective remedies for the harm that they have suffered…” Fourth Geneva Convention relative to the protection of Civilian Persons in Time of War, article 27 states “Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.” . See also article 146 of the Fourth Geneva Conventions, International Covenant of Civil and Political Rights, article 2(3), and Convention on the Elimination of All Forms of Discrimination against Women, article 2(c).