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IN THE TRIAL CHAMBER OF THE
INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA
Re: Prosecutor v. Anto Furundzija
Case No. IT-95-17/1-T
AMICUS CURIAE BRIEF
RESPECTING THE DECISION AND ORDER OF THE TRIBUNAL OF 16 JULY
1998
REQUESTING THAT THE TRIBUNAL RECONSIDER ITS DECISION
HAVING REGARD TO THE RIGHTS OF WITNESS “A” TO
EQUALITY, PRIVACY AND SECURITY OF THE PERSON,
AND TO REPRESENTATION BY COUNSEL
The undersigned are
women’s human rights legal scholars and non-governmental
organisations who are working to ensure the substantive and
systemic recognition of and accountability for violence against
women in the United Nations system and, in particular, to
guarantee gender justice in the operation of the International
Criminal Tribunals for the Former Yugoslavia and Rwanda. The
undersigned have extensive expertise in human rights and
humanitarian law, international and domestic criminal law and
the gendered aspects of criminal law and criminal prosecutions.
The undesigned also have considerable and valuable knowledge and
expertise relating to the criminal trial process and its
relationship to women’s inequality.
The undersigned
hereby respectfully request, pursuant to Tribunal Rule 74, leave
to file the following Amicus Curiae Brief.
I. Introduction:
The Importance of this Amicus
Curiae Brief to the Proper Determination of the Case
. This Amicus Curiae
Brief relates to the Decision and Order of the Tribunal of 16
July 1998 in which the Tribunal ordered, with reference to the
rights of the accused to a fair trial but without reference to
the rights of Witness “A” to equality, privacy and security of
the person, that the trial be re-opened and that Witness “A” be
available for cross-examination “on any medical, psychological
or psychiatric treatment or counselling received by Witness “A”“.
The Tribunal also ordered that the Prosecutor “disclose
any documents in its possession relating to the Material and
relevant to the issue of any medical, psychological or
psychiatric treatment or counselling received by Witness “A”
after May 1993”.
2. The Amici recall that
the Trial Chamber held in its Decision on the Prosecutor’s
Motion Requesting Protective Measures for Victims and Witnesses
in the Prosecutor v. Dusko Tadic that the Tribunal is
expected to comply with recognized standards of fundamental
human rights and the Tribunal has a duty pursuant to Rules 75
and 79 of the ICTY Rules of Procedure to take measures to
protect victims and witnesses. The rights and interests of
victims and witnesses in this regard must be balanced against,
but not subsumed by, the rights and interests of the accused to
a fair trial. In its Decision, the Trial Chamber ruled that “a
fair trial means not only fair treatment to the defendant but
also to the prosecution and to the witnesses”.
Reference: Decision on the
Prosecutor’s Motion Requesting Protective Measures for Victims
and Witnesses in the Prosecutor v. Dusko Tadic,
paragraph 33 (10 August 1995) paragraphs 33 and 55.
Rules of Procedure of the ICTY,
Rules 75, 79
3. In response to a
motion by the Defence in this case, the Tribunal has ordered the
production of potentially highly discriminatory, intimate and
prejudicial confidential information regarding Witness “A”, the
disclosure of which may cause profound harm to Witness “A” and
to the criminal trial process. The Amici are concerned that the
Tribunal failed to consider the motion by the Defence in this
matter with due regard to the duties of the Tribunal as
expressed in its Decision in Tadic referred to above.
Reference: Decision on the
Prosecutor’s Motion Requesting Protective Measures for Victims
and Witnesses in the Prosecutor v. Dusko Tadic,
paragraph 33 (10 August 1995) paragraphs 33 and 55.
Rules of Procedure of the ICTY,
Rules 70(f), 75, 96
4. The Amici are, in
particular, concerned that:
(a) The Trial Chamber was
not alerted to nor did it consider the discriminatory
assumptions and attitudes toward women victims of sexual assault
which underlie requests for disclosure of otherwise irrelevant
confidential information in cases of sexual assault. These
assumptions may underlie the Defence request in this case and
may have unwittingly informed the Tribunal’s Decision and Order
of 16 July 1998. Further, the Trial Chamber was not alerted to
nor did it consider the fact that the effort by Defence counsel
to obtain confidential information is historically one tactic in
a long line of tactics based upon discriminatory attitudes
toward women and rejected by this Tribunal in Rule 96;
(b) The Trial Chamber
arrived at its Decision and Order without hearing substantive
evidence or argument with respect to the balancing of the rights
of the accused with the international principles concerning the
rights of Witness “A” to equality, privacy and security of the
person. Further the Trial Chamber arrived at its decision
without the benefit of Witness “A” being provided with the
opportunity to have counsel represent her rights and interests
in maintaining the confidentiality of the information to which
she will be subject to cross-examination. Since the interests
of Witness “A” are distinct from both those of the defence
and the prosecutor, she should have been given the
opportunity to select independent representation to put her
rights properly before the Tribunal;
(c) The Trial Chamber was
not presented with evidence and therefore did not consider in
its Decision and Order the harm to victims which would result in
the disclosure of intensely personal records and in the broad
cross-examination of witnesses in respect of their medical,
psychological and psychiatric records. Nor did the Trial
Chamber consider in its Decision and Order the extent to which
its ruling might affect the participation of victims in bringing
perpetrators to justice before the ICTY and the Tribunal’s
mandate pursuant to Rule 75 of the ICTY Rules of Procedure to
protect victims and witnesses;
(d) The Trial Chamber
arrived at its Decision and Order without considering evidence
regarding the societal interest in protecting the relationship
between victims of trauma and their counsellors and without
considering explicit United Nations statements stressing the
importance of counselling and treatment in the psychological and
emotional healing process for victims of sexual assault;
and
(e) The Decision and Order
of 16 July 1998 was arrived at by a procedure which is
inconsistent with leading national jurisdictions that have
directly considered the issue of disclosure of confidential
records and the necessity to protect the rights of the witness
to the confidentiality of those records. In addition, the Trial
Chamber’s Decision and Order was considerably broader than would
be acceptable in these jurisdictions.
5. In accordance with
the above concerns, this Brief will submit that: (1) gender
discrimination fundamentally informs requests for disclosure of
confidential records in cases of sexual violence; (2)
requests for disclosure are most often founded upon irrelevant
and prejudicial rape myths and discriminatory attitudes toward
women who are victims of sexual assault; (3) the
cross-examination of survivors of sexual violence risks
unwarranted and severe intimidation and revictimization of these
witnesses, thus jeoparidzing both their mental and physical
integrity; and (4) the disclosure of counselling records
profoundly affects (a) women’s equal rights to access to
justice; and (b) the goal of bringing perpetrators of sexual
violence in armed conflict before the two International Criminal
Tribunals.
6. As a result of the
above concerns, the Amici respectfully urge the Tribunal to
reconsider and rescind its Decision and Order of 16 July 1998
and to:
(a) hold a hearing, taking into
account Rules 75, 70(f) and 96(ii), prior to the commencement of
the cross-examination of Witness “A” in order to consider the
rights of Witness “A” to equality, privacy, security of the
person and to witness protection;
(b) ensure that Witness “A”
is fully informed of her rights to equality, privacy and
security of the person and to protection as a witness;
(c) appoint Witness “A” and the
holder of the records, Medica, counsel if they wish to be
represented.
II. Understanding
Discrimination against Women in the Prosecution of Sexual
Violence
a. Sexual Violence
and Sexual Inequality
7. Sexual violence is a
crime which is predominantly committed against women, including
during times of armed conflict. Moreover, the violence is
committed against these women because of their gender, in
addition to their ethnic origin or religion. Although sexual
violence in armed conflict is often a tool used to subordinate a
group of people, it is in every case a means of
subjugating, objectifying and dehumanizing women. For
this reason, the Amici have argued before the ICTR and the ICTY
that a failure by the Tribunals to respect the dignity and
autonomy of victims of sexual violence amounts to a denial of
equal justice to women. Such a failure deprives women, in this
case women from the former Yugoslavia, of the recognition and
vindication of their suffering that is an essential component of
their ability to rebuild their lives and their self-esteem on a
foundation of equality and dignity.
Reference: Amicus Curiae Brief of
the Coalition for Women’s Rights in Conflict Situations
submitted to the International Criminal Tribunal for Rwanda in
the case of the Prosecutor v. Jean-Paul Akayesu; Amicus
Curiae Brief submitted by Rhonda Copelon, Felice Gaer, Jennifer
Green and Sara Hossain in the matter of protective measures for
victims and witnesses in the case of the Prosecution v. Dusko
Tadic.
b. The Tribunal’s Duty
to Respect and Consider the Equality Rights of Witnesses
8. The Amici respectfully
submit that prior to taking further evidence from Witness “A” in
this matter, the Tribunal consider whether the taking of this
evidence violates international principles concerning the
equality rights of Witness “A”.
9. The Amici recall that
the Trial Chamber held in its Decision on the Prosecutor’s
Motion Requesting Protective Measures for Victims and Witnesses
in the Prosecutor v. Dusko Tadic that the Tribunal is
expected to comply with internationally recognized standards of
fundamental human rights. This would include the
internationally recognized right of non-discrimination.
Reference: Decision on the
Prosecutor’s Motion Requesting Protective Measures for Victims
and Witnesses in the Prosecutor v. Dusko Tadic,
paragraph 33 (10 August 1995) paragraph 25
10. The rights of women to
equality and to non-discrimination are guaranteed by numerous
international instruments and customary international law.
Reference: Charter of the United
Nations, Articles 1(3) and 55(c)
Universal Declaration of Human
Rights, Article 2
International Covenant on Civil and Political Rights, Article 24
International Covenant on Economic, Social and Cultural Rights,
Article 3
Convention on the Elimination of Discrimination Against Women,
Articles 2, 5
United Nations Declaration on the
Elimination of Violence Against Women
Declaration of Basic Principles
of Justice for Victims of Crime and Abuse of Power, paragraph 3,
adopted by General Assembly Resolution 40/34 (29 November 1985)
Geneva Convention Relative to the
Protection of Civilian Persons in Time of War, Article 3
Askin, Kelly Dawn, War Crimes
Against Women: Prosecution in International War Crimes Tribunals
(1997: Kluwer Law International, The Hague) at 230-231, 236.
11. It is clear in
international law that non-discrimination principles are to be
applied in international criminal trial processes. For
example, non-discrimination clauses are found in all four Geneva
Conventions. More recently, the Statute creating the
International Criminal Court states that the application and
interpretation of law by the Court must be consistent with
internationally recognized human rights, “and be without any
adverse distinction founded on grounds such as gender”, among
other grounds.
Reference: Article
21, Rome Statute of the International Criminal Court, U.N. Doc.
A/Conf.183/9 (17 July 1998).
12. In addition, the United
Nations has undertaken to mainstream gender into all of its
mechanisms:
“The equal status of women and
the human rights of women should be integrated into the
mainstream of United Nations system-wide activity. These issues
should be regularly and systematically addressed through
relevant United Nations bodies and mechanisms”.
Reference: Vienna
Declaration and Platform of Action, para. 37
U.N. Doc. A/Conf. 157/23 (12 July
1993)
13. Having regard to the
above international principles recognizing and guaranteeing the
rights of Witness “A” to equality and non-discrimination and the
Tribunal’s Decision on the Prosecutor’s Motion Requesting
Protective Measures for Victims and Witnesses, the Amici
respectfully submit that the Tribunal is obligated to consider
the disclosure of confidential information in the context of the
equality rights of Witness “A” and, accordingly, is bound to
reconsider its decision of 16 July 1998 before the commencement
of cross-examination of Witness “A”.
Reference: Decision on the
Prosecutor’s Motion Requesting Protective Measures for Victims
and Witnesses in the Prosecutor v. Dusko Tadic,
paragraph 33 (10 August 1995) paragraph 25
c. Insidious
Discrimination in the Criminal Trial Process: The Rape Myths
14. Efforts by defence
counsel to obtain confidential records and to cross-examine
witnesses on these records is one of the latest in a long
history of discriminatory practices used by defence counsel in
rape trials. The Rules of this Tribunal, in particular Rule
96(ii) , but also Rules 70(f) and 75 are designed to prevent
such discriminatory practices. These Rules should be applied in
this case to prevent the discriminatory treatment of women
survivors of sexual violence, in this case Witness “A”.
Reference: Rules of Procedure of
the ICTY, Rules 70(f), 75 and 96(ii)
15. The Rules in the ICTY
statute, the academic literature, domestic legislation and the
highest levels of national courts have recognized that the
prosecution of sexual violence against women has been fraught
with pervasive and institutionalized gender discrimination.
Reference: Rules
70(f), 75 and 96 of the Rules of Procedure of the ICTY;
Consolidated Statutes of Canada, Criminal Code, S.C. 1997, ch.
30 (introduced as Bill C-46, “An Act to amend the Criminal Code
(production of records in sexual assault proceedings)”, ss.
278.1 to 278.91 entered into force May 12, 1997) (Hereafter
referred to as Bill C-46); Evidence Act 1995, sections 126G-L,
New South Wales Consolidated Acts (Australia) available at
www.austlii.edu.au/legis/nsw/consol_act/ea199580/s126g.html;
Draft Evidence (Confidential Communications) Amendment Bill 1998
(draft Bill to amend South Australia’s Evidence Act of 1929); M.
Torrey, “When Will We Be Believed? Rape Myths and the Idea of
Fair Trial in Rape Prosecutions” (1991) 24 University of
California Davis Law Review 1013; Bushby K. “Discriminatory
Uses of Personal Records in Sexual Violence Cases” 9 Canadian
Journal of Women and the Law 148 (1997); Kelly K., “You Must
Be Crazy if You Think You Were Raped” 9 Canadian Journal of
Women and the Law 178 (1997); Capoccia, R. “Piercing the
Veil of Tears: The Admission of Rape Crisis Counselor Records
in Acquaintance Rape” 68:1355 Southern California Law Review
(1995); For legislation and jurisprudence in the United States,
please refer to the citations contained in the Amicus Curiae
Brief of the Center for Civil and Human Rights, Notre Dame
University.
16. The differential and
discriminatory treatment of women who appear before courts as
complainants in sexual assault trials is based upon a
foundational set of myths which have pervaded our “common sense”
for centuries. These myths include the discriminatory
presumptions that women and child victims of sexual violence
are uniquely prone to lie, are susceptible to suggestion by
others, and to hysteria and emotional upheavals which
substantially call into question their credibility as
witnesses.
Reference: See
decisions of Canadian Supreme Court of Canada Justice L’Heureux
Dubé in R v. Seaboyer, [1991] 2 S.C.R. 577 (dissent) and
R. v. O’Connor, [1995] 4 S.C.R. 411 (dissent) [Note that,
although Justice L’Heureux-Dubé was in dissent in each of these
cases, her approach was incorporated into the amendments to the
Canadian Criminal Code (supra), and the approach of the majority
in O’Connor was rejected by Parliament] ; Women’s Legal
Education and Action Fund, submissions to the Standing Committee
on Justice and Legal Affairs, Review of Bill C-46, (March
1997); McCrimmon M., “Developments in the Law of Evidence: The
1991-92 Term, Truth, Fairness and Equality” 4 Supreme Court
Law Review 225; Bushby, supra; Kelly, supra; Torrey, supra;
Capoccia, supra.
17. In an attempt to
overcome the unequal treatment of women victims of rape, it has
been acknowledged by courts in Canada and other jurisdictions
that, historically, the laws of criminal evidence and procedure
which governed the conduct of sexual assault trials were
informed by discriminatory myths and stereotypes about women.
In particular, as explained by Supreme Court of Canada Justice
L’Heureux-Dubé, rape myths have been used to undermine the
credibility of victims of sexual violence:
Historically, a host of factors
were deemed relevant to the credibility of complainants in
sexual assault trials that did not bear on the credibility of
witnesses in any other trial and which functioned to the
prejudice of victims of sexual assault. In Seaboyer, _ I
discussed at length the hurdles that complainants faced in
sexual assault trials due to these unfounded presumptions. They
include myths that deem certain types of women “unrapable” and
others, because of their occupations or previous sexual history,
unworthy of belief. These myths suggest that women by their
behaviour or appearance may be responsible for the occurrence of
sexual assault. They suggest that drug use or dependence on
social assistance are relevant to the issue of credibility as to
consent. They suggest that the presence of certain emotional
reactions and immediate reporting of the assault, despite all of
the barriers that might discourage such reports, lend
credibility to the assault report, whereas the opposite
reactions lead to the conclusion that the complainant must be
fabricating the event. Furthermore, they are built on the
suggestion that women, out of spite, fickleness or fantasy and
despite the obvious trauma for victims in many, if not most,
sexual assault trials, are inclined to lie about sexual
assault. The net result has been that sexual assaults are, and
continue to be, underreported and underprosecuted.
Reference: R v.
Osolin, [1994] 4 S.C.R. 595 at 624-625 (per L’Heureux Dubé
in dissent). See also the decisions of L’Heureux Dubé in R
v. Seaboyer,supra, and R. v. O’Connor, supra.
18. Rule 96 of this
Tribunal’s Rules of Procedure recognizes the need to protect
women who are victims of sexual violence from some of these
discriminatory biases which pervade the prosecution of sexual
assault. Rule 96 refers to “Evidence in Cases of Sexual
Assault” and specifically states that no corroboration of the
victim’s testimony is required, consent shall not be allowed as
a defence under certain circumstances, and that evidence of
prior sexual conduct of the victim shall not be admitted into
evidence.
Reference: E.g.
Criminal Code sections 276-277, R.S.C. 1985, ch. C-46 (Canada),
makes it impermissible to challenge the credibility of a
complainant by adducing evidence of her sexual reputation. See
also Crimes Act, 1900 ss. 409 (New South Wales, Australia) for a
similar amendment. In the United States, Fed. R. Evid. 412
makes evidence of past sexual behaviour generally inadmissible
in federal cases. See also State statutes: 725 Ill. Comp. Stat.
Ann. 5/115-7 (1997), Mo. Ann. Stat. s. 491.015 (1996), N.J.
Stat. Ann. ss. 2A:84A-32.1 (1996). See Bronitt, Simon and
McSherry, Bernadette, “The Use and Abuse of Counselling Records
in Sexual Assault Trials: Reconstructing the “Rape Shield”
(1997) 8(2) Criminal Law Forum 259 at ft. 3.
19. After defence counsel
were prohibited by evidentiary rules such as Rule 96 of the ICTY
Rules of Procedure from attacking rape victims by raising rape
myths concerning prior sexual history, defence counsel began to
pursue other tactics. These tactics were grounded in
dehumanizing and discriminatory attitudes toward women,
especially by capitalizing upon the myth that women are
inherently unreliable and prone to suggestion. Defence counsel
have pursued this line of attack through requests for victims’
counselling records, a matter that has received considerable
attention in Canada.
Reference: Bronitt
and McSherry, supra, at 260-262 and 265; Bushby, K.
“Discriminatory Uses of Personal Records in Sexual Violence
Cases” 9 Canadian Journal of Women and the Law 148
(1997); Evidence (Confidential Communications) Amendment Bill
1998 Report (South Australia) at 1-2: “In recent years, the law
of sexual assault … has been changed by Parliaments and, to a
lesser degree the judiciary, to provide more protections for the
complainants of sexual assault. Statutory provisions have
[lists changes in laws with respect to prior sexual conduct
evidence, consent, cross-examination in preliminary hearings,
abolished corroboration, and modified the recent complaint
doctrine]…”. Not surprisingly, defence counsel have sought ways
in which to circumvent these restrictions. One of the main ways
in which that has been done in recent times is for the defence
to seek to undermine the credibility of the complainant by
gaining access to the psychiatric or treatment history rather
than the sexual history of the complainant”.
20. Similarly, defence
counsel in domestic jurisdictions have sought the disclosure of
counselling records on the basis of the unfounded and
prejudicial assumption that the very fact that a woman has
sought counselling suggests that she is mentally unstable and,
therefore, an unreliable witness. The pervasiveness of this
discriminatory assumption is reflected by the fact that the
Canadian legislation specifically prohibits disclosure simply on
the basis of the fact that a woman has received counselling
Reference: Bill C-46, supra; see
also R v. Osolin, supra, at 625
21. Because rape
mythology is so much a part of the “common sense” of the
sexually unequal cultures in much of the world, many legal
professionals fail to realize that most of these disclosure
claims rest on discriminatory generalizations. The assumption
underlying most disclosure requests and orders is that victims
of sexual violence as a class - overwhelmingly women and
children - are inherently uncreditworthy so must be subjected to
additional and extraordinary credibility testing.
Reference: McCrimmon, supra; R
v. Osolin, supra; Women’s Legal Education and Action Fund,
supra, at p.27;
22. The empirical evidence
has borne out the prevalence of these prejudicial myths and
assumptions. In Canada, for example, one study found that, of
140 cases in which production of personal records was ordered
over an approximately 6 year period, 120 cases involved sexual
assault and almost all involved the records of women witnesses.
Requests for personal records are simply not regularly made in
other domestic criminal trials and in relation to other victims
and witnesses. Victims in other criminal trials are not
subjected to the same oppressive and exhaustive credibility
testing to prove them worthy of justice, redress and the law’s
protection.
Reference: Study
prepared by Diane Oleskiw for the National Association of Women
and the Law, supra. This study was for the time period
1990-September 1996. The Amici updated this study which is
attached in the Appendix to this Brief.
23. Similarly, the
Amici note that in the trial of Furundzija before the Tribunal,
defence counsel has sought to impeach only Witness “A” on the
basis of her credibility in relation to her medical,
psychological and psychiatric treatment and counselling records.
The defence did not cross-examine nor request disclosure of
personal records of Prosecution witness Sulejman Kavazonic,
despite his testimony that he “underwent medical treatment for
about 20 days, because...[he] had some mental problems”.
Reference: Transcript
of Proceedings, 15 June 1998, page 522, lines 10-13.
24. More importantly, the
Defence counsel explicitly attempts to subvert the evidence of
Witness “A” by relying on a rape myth which has been prohibited
by Rule 96. At least three points in his closing argument,
defence counsel argues that the evidence of Witness “A” should
be discounted because her evidence is not corroborated. Defence
counsel argues that “unlike most cases that you will try, there
is no corroborating evidence for Witness “A”. None”. Later
defence counsel states: “Here we are talking very much about
witness memory, witness testimony, no corroboration”.
Reference: Transcript of
Proceedings, 22 June 1998, p.676, lines 5-6
Transcript of Proceedings, 22
June 1998, p.684, lines 3-4
Transcript of Proceedings, 22
June 1998, p.693, lines 13-15
25. Having regard to the
above statements by the defence and to the prejudicial and
discriminatory attitudes toward rape victims pervasive in sexual
assault proceedings generally, the Amici urge the Trial Chamber
to reconsider the characterization of Witness “A” and her
counselling treatment by the Defence. In particular, the Amici
urge the Trial Chamber to question, with an awareness of sexual
equality and gender discrimination, the implicit biases which
underlie the defence’s attack on the credibility of Witness “A”,
the Defence’s unfounded allegations that Witness “A” suffered
from “suppressed memory” and the inferences which the defence
wishes to be drawn from the fact that Witness “A” suffered
“psychological trauma”, and to Order that Witness “A” not be
subjected to further discrimination through cross-examination.
Reference: Transcript of
Proceedings, 22 June 1998, p.
Transcript of Proceedings, 22
June 1998, p.684,
Defendant’s Motion to Strike the
Testimony of Witness “A” due to Prosecutorial Misconduct or, in
the Event of a Conviction, for a New Trial (9 July 1998), p. 1
III. Irrelevance: The Practice
of Sexual Inequality in Law Distorts the Criminal Justice
Process
26. In addition to the fact
that requests for disclosure of confidential information and
counselling records are very often motivated by discriminatory
and sexist attitudes and beliefs, the relevance of such
information and records must be seriously called into question.
In Canada, this irrelevance has been recognized by Canadian
legislation and by Supreme Court of Canada Justice
L’Heureux-Dubé, whose ruling below is reflected in the Canadian
legislation drafted after her decision:
...the assumption that private
therapeutic or counselling records are relevant to full answer
and defence is often highly questionable, in that these records
may very well have a greater potential to derail than to advance
the truth-seeking process:
...medical records containing
statements made in the course of therapy are both hearsay and
inherently problematic as regards reliability. A witness’s
concerns expressed in the course of therapy after the fact, even
assuming they are correctly understood and reliably noted,
cannot be equated with evidence given in the course of a
trial...In a trial, a witness is sworn to testify to the
particular events in issue. By contrast, in therapy, an entire
spectrum of factors such as personal history, thought, emotions
as well as particular acts may inform the dialogue between
therapist and patient. Thus, there is a serious risk that such
statements could be taken piecemeal out of the context in which
they were made to provide a foundation for entirely unwarranted
inferences by the trier of fact.
...[therapy] is not a fact
finding exercise. Consequently, the vast majority of
information noted during therapy sessions bears no relevance
whatsoever or, at its highest, only an attenuated sense of
relevance to the issues at trial. Moreover, as I have already
noted elsewhere, much of this information is inherently
unreliable and, therefore, may frustrate rather than further the
truth-seeking process.
Reference: R v.
O’Connor, [1995] 4 S.C.R. 481-482 & 498
R v. Osolin,
[1993] 4 S.C.R. 595 at 622-623
For other non-Canadian sources
discussing irrelevancy see: Commonwealth v. Fuller
(1996), 667 N.E. (2d) 847 (S.C. Mass.) “[t]he likelihood that
the records will contain information that would held a defendant
avoid an erroneous conviction may be characterized as remote”.
27. The purpose of
counselling is inimical to the truth-seeking processes of the
criminal justice system. Notes which are taken in the
counselling process are not taken down for the purposes of, or
with attention to, accuracy or detail concerning the events
described. Nor is the speaker concerned that descriptions be
accurate or detailed. The notes are made for the eyes of the
therapist only and not with a view to their being reviewed by
others for purposes outside of the therapy relationship.
Pertinent questions about facts are often not asked during the
counselling session: the subject matter of therapy is the
emotional landscape, not the factual basis giving rise to the
need for the counselling.
28. The Trial Chamber in
the case of the Prosecutor v. Jean Paul Akayesu at the
ICTR recognized the inherent unreliability of unsworn evidence,
in particular when it is used to impeach the credibility of a
witness. In discounting the inconsistencies between the
evidence at trial and the evidence contained in previous unsworn
statements made by witnesses, the ICTR Trial Chamber held that:
“[m]oreover, the statements were
not made under solemn declaration and were not taken by judicial
officers. In the circumstances, the probative value attached to
the statements is, in the Chamber’s view, considerably less than
direct sworn testimony before the Chamber, the truth of which
has been subjected to the test of cross-examination”.
Reference:
The Prosecutor vs. Jean-Paul Akayesu, Case No.ICTR-96-4-T ,
Decision of the Trial Chamber (September
2, 1998), para. 137.
29. Moreover, defence
counsel in Canada have been explicit about the fact that
disclosure of confidential information and records has often not
been sought for the relevancy of the information nor to protect
the rights of the accused, but rather to humiliate and
intimidate the witness and thereby derail the trial.
Reference: Feldthusen,
Bruce, “The Best Defence is a Good Offence: Access to the
Private Records of Sexual Assault Complainants under the
O’Connor Guidelines and Bill C-46" (1997) Can. Bar Rev.
537 at 546; Kelly; supra .
30. Finally, the
intersection of sexual inequality and disclosure of confidential
information severely distorts the criminal justice process when
the fact that a witness has a counselling history or a
mental health record is virtually automatically deemed to
be relevant to her credibility and a justification for the
disclosure of confidential information.
31. The issue of the attack
on the credibility of victims of sexual violence on the basis
of their psychiatric history has been addressed by Supreme Court
of Canada Justice L’Heureux Dubé:
...the competence of witnesses to
testify is normally presumed and challenges to the reliability
of evidence on the basis of psychiatric condition of the witness
rarely form part of the trial process. Unless we are to
resurrect, consciously or unconsciously, the myth that
complainants in sexual assault trials are inherently more
untrustworthy than witnesses in any other trial where
credibility is an issue, challenges to a witness’s testimony on
mental or psychiatric grounds must be measured against the same
standard of relevance in sexual assault trials as in the trial
of any other offence. Thus, even a request, let alone an order,
for the production of a complainant’s medical records should be
an extraordinary event.
Reference: R v. Osolin,
supra, at 628
32. In the case before the
Tribunal, Witness “A” was suffering from Post Traumatic Stress
Disorder. Witness “A” is not unique in this regard. Many, if
not all, victims appearing before this Tribunal have suffered
severe trauma and, therefore, may often be suffering from PTSD.
Such victims are not confined to victims of sexual violence. If
the fact that a witness suffers from PTSD triggers an inquiry
into counselling - which can be a lifeline for survivors - it
should apply to all witnesses and it would negate the
protections of this Tribunal’s Rules which specifically
authorize the Registry to provide supportive services. Beyond
that, PTSD often does not affect the memory of traumatized
witnesses in any significant way. In many cases, PTSD causes
sufferers to have heightened memories of the events which caused
the psychological trauma. In other words, it is a disorder
which may in fact increase their reliability as witnesses.
Reference: Please refer to
in-depth discussion of PTSD in the Amicus Curiae Brief of the
Center for Civil and Human Rights, Notre Dame University.
33. Although other
witnesses before the ICTY and the ICTR have suffered from PTSD[1],
this is the first case in which the Tribunal is being asked to
act on its duty to analyse the impact of the syndrome on the
ability of witnesses to testify. In the submission of the Amici,
the question with respect to PTSD and any other psychiatric
disorder is whether the trauma is so severe that the witness is
not competent to testify. PTSD alone does not trigger
this concern. Rather, there must be some clear evidence in the
behaviour or testimony of the witness (and not simply some
inconsistencies in the witness’ testimony or memories years
after the event) that gives rise to a concern about competence.
If such a concern is raised, it should be determined, not by
delving into highly personal and potentially inflammatory
records of past treatment, but rather through the appointment of
a qualified professional to conduct the necessary tests. There
is no issue of competence in this case and thus no warrant to
permit the defendant to engage in a fishing expedition for the
purposes of more broadly attacking the credibility of the
witness.
Reference: Please refer to
in-depth discussion of PTSD in the Amicus Curiae Brief of the
Center for Civil and Human Rights, Notre Dame University.
IV. Protecting the
Counselling Relationship
34. To permit
defence counsel access to counselling records and other
confidential information or to cross-examinations about such
records is inconsistent with the Tribunal’s Rules and the
international recognition of the critical need of traumatized
survivors for counselling in general and in connection with the
giving of testimony itself.
Reference: Rules of Procedure of
the ICTY, Rule 34
35. Rule 34 of the
Tribunal’s Rules of Procedure states that the Victims and
Witnesses Unit shall be set up with qualified staff to “provide
counselling and support” for victims and witnesses, “in
particular in cases of rape and sexual assault”. Therefore,
victims of sexual assault who also agree to serve as witnesses
are put in an untenable situation while under the care of the
Victims and Witnesses Unit: if they are counselled by the Unit’s
qualified staff, they risk potential disclosure of their
counselling records under the precedent set by the Trial
Chamber’s Decision and Order of 16 July 1998.
Reference: Rules of Procedure of
the ICTY, Rule 34
36. The United Nations
General Assembly and the Tribunal’s Rules encourage women who
have suffered sexual violence to seek counselling. General
Assembly resolution 50/192 of December 1995 urges all States and
relevant organizations to support the provision of “necessary
medical and psychological care to victims of rape within the
framework of programmes to rehabilitate women and children
traumatized by war, as well as the provision of protection,
counselling and support to victims and witnesses”, as well as
expresses its concern for the welfare of those who have suffered
extreme trauma and “require” psychosocial and other assistance.
Reference: “Rape and
Abuse of Women in the Areas of Armed Conflict in the Former
Yugoslavia”, General Assembly Resolution 50/192 of 22 December
1995, paras. 7 and 8. Similar calls for the provision of
counselling are also found in “Rape and Abuse of Women in the
Areas of Armed Conflict in the Former Yugoslavia, Report of the
Secretary General”, UN Doc. A/52/497 (17 October 1997), para. 4.
37. There is an obvious
public interest in the promotion of counselling for women who
have suffered sexual violence, as these women can better heal
with assistance and support. The relationship between a
counsellor and her client should be based on trust and be as
conducive to healing as possible. However, if victims are not
guaranteed confidentiality within a counselling relationship,
they will likely be inhibited in their discussions and unable to
receive the full benefit of that counselling. In fact,
disclosure of records could prove to be a substantial
disincentive for victims to even use counselling services in the
first place.
Reference: Bronitt and McSherry,
supra, at 266, citing Annie Cossins, “Contempt or
Confidentiality, 21(5) Alternative L.J. 223 (1996)
38. Victims are likely to
be further traumatized by the knowledge that the accused may
find out about the effects of the abuse or that personal
information that the victim may not have even told to her
closest friends and family will be disclosed in court if they
undertake counselling. The recovery process can thereby be
interrupted or stalled completely and victims face the
possibility of suffering long-term psychological harm.
39. If the Tribunal develops a
practice of disclosing the confidential information of women who
are victims of sexual violence, many women will simply choose
not to report sexual violence against them, will not agree to
testify before the Tribunal or will not obtain counselling. It
is submitted that production applications will operate to deny
women who have been sexually assaulted the right to both seek
counselling and participate as a witness to the prosecution of
her perpetrator. Women will, therefore, be forced into making
choices unrelated to their best interests, and the public
interest, in order to avoid revictimization in the court
process.
40. It is submitted that,
for these reasons, the precedent set by wide disclosure orders
such as Disposition B(1) of the Trial Chamber’s Decision and
Order of 16 July will have a chilling effect on the number of
female victims of sexual assault willing to participate as
witnesses in prosecutions at the International Criminal
Tribunals for the Former Yugoslavia and Rwanda. Such a
deterrence to participation in criminal justice proceedings will
result in both a violation of the rights of victims of sexual
violence to equal access to justice and in the subversion of the
very purpose and mandate of the Tribunal.
V. The Equal Right of
Witness “A” to Privacy
41. The right to privacy is
protected under Rule 75 of the ICTY Rules of Procedure, article
12 of the Universal Declaration of Human Rights and article 17
of the International Covenant on Civil and Political Rights.
Any interference with the right to privacy under Rule 34
requires the Tribunal to engage in balancing. Similarly,
article 17 of the ICCPR requires the “precise balancing of the
circumstances in a given case, paying regard to the principle of
proportionality”.
Reference:
Nowak, Manfred, U.N. Covenant on Civil and Political Rights:
CCPR Commentary (1993: N.P. Engel, Publisher, U.S.A.), page
293, para. 13.
42. Moreover, “privacy protects
the special, individual qualities of human existence, a person’s
manner of appearance, his or her identity. Identity includes
[one’s] feelings and thoughts, one’s specific past”.
Reference: Nowak, supra,
p. 295, para. 17.
43. The Supreme Court of Canada
has stated in R v. O’Connor that the right to privacy
includes the right to maintain control over a biographical core
of personal information, and is grounded in the need for
physical and moral autonomy and is essential for the well-being
and dignity of individuals. It also noted that the essence of
privacy is that once invaded, for example by disclosure, it can
seldom be regained. In the context of counselling records,
there is the additional factor that the counselling relationship
can be compromised by public exposure. These considerations
lead to the presumption against ordering production of private
records in sexual violence cases.
Reference: R
v. O’Connor, supra. These comments were made by
L’Heureux-Dube J, speaking on behalf of a minority of three
justices and adopted by general agreement by the majority
judges.
44. The importance of the right
to privacy for sexual assault victims within the context of this
Tribunal has been noted by the General Assembly, stressing “the
need for the protection of the rape victims and the provision of
effective guarantees of privacy and confidentiality of
the rape victims, and desirous of facilitating their
participation in the proceedings of the International Tribunal
and ensuring that further traumatization will be prevented”.
Reference: “Rape
and Abuse of Women in the Areas of Armed Conflict in the Former
Yugoslavia”, General Assembly Resolution 50/192 of 22 December
1995, introductory para. 7 (emphasis added).
45. Male as well as female
survivors of the atrocities within the jurisdiction of this
Tribunal suffer trauma and need counselling. However, more
women than men are victims of sexual assault, and therefore more
women than men seek medical treatment and counselling following
a sexual assault. The fact that medical and counselling records
are routinely targeted by defence counsel in cases of sexual
assault and not in other cases, results in the privacy rights of
women witnesses being more often violated than those of male
witnesses. As well, since it is primarily women whose privacy
rights are violated in this way, the equality rights of women
who are victims of sexual violence are also directly implicated
and violated.
46. The victim’s right to privacy
was not addressed by the Trial Chamber in its Decision and Order
of 16 July. The failure to consider Witness A’s right to
privacy presents a serious concern with respect to: 1) the
finding in paragraph 18 of the Decision and Order that any
evidence relating to the medical, psychiatric or psychological
treatment or counselling that this witness may have received
should have been disclosed to the Defence - this statement is
made without any discussion of the balancing of the right of the
accused to a fair trial and the right of Witness “A” to privacy;
2) the Order for further disclosure of documents relating to the
issue of medical, psychological or psychiatric treatment or
counselling received by Witness “A” after May 1993 (Disposition,
B(1)) is also made without reference to Witness “A”’s right to
privacy.
VI. The Equal Right to
Security of the Person
47.
The Universal Declaration of Human Rights and the International
Covenant on Civil and Political Rights set out the right to
security of the person in articles 3 and 9 and respectively.
Security of the person is a right which must be taken into
account before confidential records are disclosed, as disclosure
could unintentionally reveal information about the victim which
identifies her whereabouts, even if names and addresses are
redacted. This information can provide enough information for
the accused to locate the victim through her support people. In
the Tribunal’s Decision and Order of 16 July, the Tribunal did
not address the issue of whether the additional information
ordered disclosed from the Prosecutor would affect the victim’s
right to security of the person.
VII. Balancing the Rights
of the Accused and the Rights of Witnesses
48. The decision of this Tribunal
in Decision on the Prosecutor’s Motion Requesting Protective
Measures for Victims and Witnesses in the Prosecutor v.
Dusko Tadic stated that the rights of accused persons to a
fair trial must be balanced against the protection of victims
and witnesses, especially victims of sexual assault.
Reference: Decision
on the Prosecutor’s Motion Requesting Protective Measures for
Victims and Witnesses in the Prosecutor v. Dusko Tadic,
paragraph 33 (10 August 1995) paragraph 50.
49. Having recognized the
applicability of internationally recognized standards of
fundamental human rights for both accused persons and victims,
the Tribunal must, therefore, balance these rights. This does
not mean, however, that the rights of either accused persons or
victims who appear before the Tribunal can be violated,
dismissed or subsumed by the rights of the other.
Reference: Decision
on the Prosecutor’s Motion Requesting Protective Measures for
Victims and Witnesses in the Prosecutor v. Dusko Tadic,
paragraph 33 (10 August 1995) paragraph 25
50. The challange of balancing
rights has been given considerable attention in Canada. The
Supreme Court of Canada has held that, when approaching the
balancing of rights, no particular right presumptively trumps
any other constitutional right and that all constitutional
rights implicated in a given case must be reconciled:
“A hierarchical approach to
rights, which place some over others, must be avoided both when
interpreting the Charter and when developing the common
law. When the protected rights of two individuals come into
conflict...Charter principles require a balance to be
achieved that fully respects the importance of both sets of
rights”.
Reference:
Dagenais v. Canadian Broadcasting Corporation, [1994]
3 S.C.R. 835, per Lamer C.J. at 87
51. The Amici submit that the
Tribunal must balance the rights of the accused and the rights
of Witness “A”. Respect for the fair trial rights of the
accused, however, does not mean that the defence is entitled to
pursue any and every tactic simply because it may be effective.
52. Moreover, the Amici submit
that where disclosure of confidential information is
fundamentally justified by sexual stereotyping, there is no
“conflict” between the rights of the accused and the rights of
witnesses. In this case, the Defence has had full opportunity
to test the credibility of Witness “A” during cross-examination
and any further cross-examination risks perpetuating the rape
myths and undermining both the truth-seeking function of the
international criminal trial process and the meaning of a “fair
trial” as defined by thisTribunal.
VIII. Conclusion
53. For the above reasons, the
Amici respectfully submit that the Tribunal reconsider and
rescind its Decision and Order of 16 July 1998 and accordingly:
(a) hold a hearing taking into
account Rules 75 , 70(f) and 96(ii) prior to the commencement of
the cross-examination of Witness “A” in order to fully consider
the rights of Witness “A” to equality, privacy, seucirty of the
person and to protection as a witness;
(b) ensure that Witness “A” is
fully informed of her rights to equality, privacy and security
of the person and to protection as a witness; and
(c) appoint Witness “A” and the
holder of the records, Medica, counsel if they wish to be
represented.
All of which is respectfully
submitted.
Of counsel:
Joanna Birenbaum
Valerie Oosterveld
Working Group on Engendering the Rwandan Criminal Tribunal
Rhonda Copelon
International Women’s Human Rights Law Clinic
City of University of New York Law School
Jennifer Green
Center for Constitutional Rights
Supporting Organizations and
Individuals
Arfem (Rwanda)
Avega Barakabaho (Rwanda)
Club Maman Sportive (Rwanda)
Hagaruka (Rwanda)
Hope Clinic (Rwanda)
International Centre for Human
Rights and Democratic Development (Canada)
International Federation of Women
Lawyers (FIDA) (Kenyan Chapter)
Jody Ranck, Research Fellow,
Human Rights Fellow, University of California at Berkeley
Rwandan Women Net (Rwanda)
Women’s International League for
Peace and Freedom - Toronto Branch (Canada)
[1]
e.g. General Romeo Dallaire, to name one well-known
example.
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