Written by Garima Tiwari
While India struggles to make amendments to the existing rape laws a brief look into how the International Criminal Court (ICC) and International Tribunals have dealt with rape would be interesting. A look at the Indian position in the same context would help understand how the process differs particularly with reference to the issue of ‘consent’.
Nicolas Poussin’s famous painting the “Rape of the Sabine Women” depicts women walking away arm-in-arm with their rapists, suggesting “that the abducted women soon accepted their assailants as husbands.” It is not surprising then, that rape and other forms of sexual violence emanating from war have historically been undocumented and unpunished crimes. Rape has been viewed as a reward or “spoil of war.”‘[i]
The first international treaty implicitly outlawing sexual violence, the Hague Convention of 1907, did not end impunity for these crimes: after World War II, for instance, the International Military Tribunal at Nuremberg did not expressly prosecute sexual violence, and the Tokyo Tribunal ignored the Japanese army’s enslavement of “comfort women”. In 1949, the landmark Geneva Conventions stated: “Women shall be especially protected … against rape, enforced prostitution, or any form of indecent assault.” [ii] It was the two ad hoc International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), which, for the first time, dealt comprehensively with the crime of rape.
Position taken by ICTR
The Akayesu case[iii] recognised that rape is an extremely grave crime as it can constitute genocide and a crime against humanity, providing that all the other elements for each of these crimes are met. Here the ICTR adopted a very broad definition of the crime of rape, which is defined as ‘a physical invasion of a sexual nature, committed on a person under circumstances which are coercive’. It also dealt with sexual violence, a broader category which includes the more specific crime of rape, whose identifying elements are recognised as ‘any act of a sexual nature which is committed on a person under circumstances which are coercive. Sexual violence is not limited to a physical invasion of the human body and may include acts which do not involve penetration or even physical contact’.[iv] Thus, in Akayesu coercion was identified as the criteria for rape consent was irrelevant. The Semanza trial chamber[v] held that “the mental element for rape as a crime against humanity is the intention to effect the prohibited sexual penetration with the knowledge that it occurs without the consent of the victim.” In effect, rape went from being a physical act committed on the body of a victim to a psychic act committed in the mind of the perpetrator and the issue of lack of consent became relevant. Kajelijeli[vi], followed Semanza and focused on non-consent and description of body parts when determining whether Mr. Kajelijeli should be held responsible for rapes committed by forces under his command. He was found innocent of rape and was not found guilty of genocide for the rapes his men committed. In the Muhimana case[vii] ICTR stated that, “coercion is an element that may obviate the relevance of consent as an evidentiary factor in the crime of rape.” In other words, the court ruled that most international crimes will be almost universally coercive—making true consent virtually impossible and therefore irrelevant for international prosecution.
The judgment and sentence in Prosecutor v. Karemera et al.[viii], issued recently by Trial Chamber III of ICTR secured the first international judgment to ever hold high-level government officials responsible for rape in such circumstances unlike as we will see what happened in Lubanga.[ix]
Proving rape in genocide (or other violent conflicts) using the Akayesu criteria would be relatively straightforward. Once the context of the violent conflict has been established, rape occurring within that context is assumed to be non-consensual. On the other hand, many rapes that would be provable under Akayesu would be difficult or impossible to prove under the Semanza definition. This would not only insult the victims but severely damage the credibility of the international tribunals for handling rape cases.[x]
Position taken by ICTY
The Delaliæ et al case aka Èelebiæi case[xi] case confirmed the approach that characterises the ICTR jurisprudence on the matter. In fact, the judges adopted the same ‘conceptual’ broad definition found in the Akayesu judgment. However, the ICTY in the Furundžija judgment[xii], adopted a more technical and specific definition. It qualified rape as an outrage upon personal dignity as provided for in Article 3 of the ICTY Statute (war crimes) and torture.The Furundžija definition (para. 185) represents the result of a peculiar approach followed by the ICTY, which involved looking at national jurisdictions to extrapolate what—due to the international lacuna on the matter—should represent a common perception of the elements of the crime. The outcome of this exercise was the following definition of rape, which is divided into two parts:(i) 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; (ii) by coercion or force or threat of force against the victim or a third person. Thus, here coercion and lack of consent both were needed. This amounted to reintroducing the relevance of consent for rape prosecution. In the Kunarac et al case [xiii]it was held that rapes that occurred in a brothel-like setting in Foca were a form of enslavement. The court drew on the Furundzija decision and concluded that “sexual penetration will constitute rape if it is not truly voluntary or consensual on the part of the victim.” It put forward a definition whose elements could be generally recognised as essential by the most representative countries in the world. Therefore, once again, an in-depth research of national jurisdictions was carried out and the conclusion is a step beyond the Furundžija definition. Sexual acts are forbidden when perpetrated against the free will of a person, and the ‘use of force-threat’ element is reduced from the status of an element of the crime to a being evidence of the lack of consent of the victim to the sexual intercourse. The judges confirmed rape as a war crime and crime against humanity. Moreover, the act of rape was considered as one of the underlying acts for the crime of enslavement. Instead, in defining the elements of rape, the Foca Trial Chamber included a consent paradigm, permitting defendants to use consent to sex as a defense, which had been considered and excluded from previous Chambers. While the ICTY’s definition of consent laudably incorporates the notion of sexual autonomy, and is a liberal standard relative to consent requirements globally, the consent paradigm is inappropriate in conflict situations where rape is used as a weapon of war.
The Kvocka et al case [xiv] reintroduced the requirement of the use of force as an element of the crime, together with the lack of consent. The Kunarac et al Appeal Judgement[xv] confirmed the previous definition given by Trial Chamber II in the same case. The Appeals Judges confirmed that the lack of consent is conditio sine qua non of the definition of rape and that the requirement of the use of force is not an essential element but rather a symptom of lack of genuine consent (para. 129).[xvi] The Appeals Chamber leaned toward the need to “presume non-consent” in contexts like genocide. In situations like Foca where women were held in rape camps, “such detentions amount to circumstances that were so coercive as to negate any possibility of consent.”
As Catherine MacKinnon notes : No other crime against humanity, once other standards are met, requires that the crime be proved to be non-consensual. In fact, using victim’s consent as a defense would be bizarre. Consider a trial for murder within a genocide. How plausible would it be if a defendant claimed that, even though the act of killing took place within a setting of genocide, the victim had really wanted to be killed, so the perpetrator simply obliged? The reason that consent is not relevant for prosecuting rape in international crimes is that the crime takes place within a context where what we normally think of as sexual autonomy (at least for women) does not exist. Given the context of radical force, there is no true choice and so no consent in international crimes.[xvii] Thus, ICTY and ICTR are both trying to presume non-consent in coercive situations which I think is very positive.
Position taken by ICC
The Statute of the International Criminal Court proves that the achievements of the ICTR and ICTY with regard to the prosecution of the crime of rape have been generally accepted by the international community. Article 7(g) of the ICC Statute specifically prohibits rape and, in addition, includes ‘sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity’ within the notion of crimes against humanity. Moreover, paragraph (h) of Article 7 confirms persecution as a crime against humanity and includes gender as a new discriminatory ground. At paragraph 3 of the same Article it is further specified that the term gender is general in nature, thus referring to both sexes. Rape is also listed in Article 8 (b) (xxii)-1 as a war crime. In the Elements of Crime annexed to the ICC Statute, the crime of rape requires the penetration of the anal or genital opening of the victim with an object or otherwise the penetration of any part of the body with a sexual organ, thus recalling the analogous first part of the Furundžija definition. Similarly, a reference to coercive situations capable to vitiate the genuine consent of the victim of rape is provided for in Article 7 (1) (g)-1 of the Elements.Thus, both coercion and consent have been discussed.
But the first judgment delivered by the ICC failed to give any help in this regard. In the Lubanga case, despite evidence pointing to wide spread rape and other forms of sexual violence against in particular girl child soldiers, the Prosecutor did not include crimes of sexual violence in the charges. The charges were brought under Article 8, war crimes, and as such could have included charges of torture, rape, sexual slavery or outrages upon personal dignity. The Trial Chamber noted that they chose not to amend the charges. The Prosecutor could have amended the indictment at any time prior to trial or even at a reasonable moment during the presentation of the prosecution case.
Judge Odio Benito, in her dissent, differed from the majority’ decision not to use the evidence of sexual violence as a means to define the legal elements of enlistment, conscription of children or use of children in hostilities as innate to their status as child soldiers. Judge Odio Benito’s reasoning related to the interpretation of the war crime charges at hand and, thus, was not conditioned upon the submission of further amended charges. Evidence or information certainly did come out during the trial concerning the widespread nature of the sexual violence that occurred when these children were conscripted and enlisted. To that extent the case highlights the sexual violence even though it has not been charged.[xviii] Various groups suggested later on that a failure to add more serious charges would run the risk of offending the victims and strengthen the growing feeling of mistrust of the work of the ICC and of the work of the prosecutor especially. [xix]
Rape Law in India
India’s current definition of rape is steeped in outmoded traditions, dates from 1860, and has been amended only twice since then, in 1983 and 2003. In India,it is defined as intentional and unlawful sexual intercourse with a woman without her consent. According to section 375 of the Indian Penal Code, an allegation of rape has to satisfy the either of the following criteria: sexual intercourse between a man with a woman in the following circumstances: (a) against the will of the woman; (b) without her consent; (c) under duress; (d) consent obtained by fraud; (e) consent obtained by reason of unsoundness of mind or intoxication. If the woman is below the age of 16 years, sexual intercourse is deemed to amount to rape. Even if the woman has consented, it would be considered rape under the law. There is however, an exception to this definition of rape. Un-consented sexual intercourse between a man and his wife would not amount to rape if the wife is 16 years or older. According to section 376 of the Indian Penal Code, the minimum sentence for a convicted rapist is seven to 10 years, while the maximum sentence is life imprisonment. Gang rape carries a punishment of 10 years to life imprisonment. However, in certain situations a convicted rapist can get away with serving less time since the law allows the judge discretion to award a lesser punishment in special cases such as an aged person or a person of unsound mind. Under section 354 of the Indian Penal Code, sexual assault is described as “outraging the modesty of a woman” – a description considered archaic, subjective and limited by legal experts. Currently sexual assault crimes carry a maximum punishment of two years. [xx]
Thus, issue of consent and coercive situations both have been incorporated in the Indian law, but the application of law is not in tandem with the requirements of justice as what is consent is linked with various social, cultural and moral annotations along with the character and sexual history of the prosecuterix. In 2011, only 26% of rape trials ended in conviction. In Delhi for instance, there’s only been one conviction out of 635 cases of rape reported in 2011.[xxi] This is also because, various social elements like the stigma attached to pre-marital sex, stereotyping as well as virginity play in the mind. This presumption of consent was embodied in Section 155 (4) of the Indian Evidence Act, which allowed defendants to offer evidence about a victim’s character and sexual history and remained there till altered as recently as 2002. Changing law does not change much, since various practises and notions surrounding rape still stem on the character of the victim, like use of the “two-finger test” being a sufficient testament of the history of sexual intercourse of the victim. Indian law is still based on the colonial times and ironically while Britain changed its rape law with time, we are still caught in the web of antiquity. Another important aspect is the mindset. According to a survey by Sakshi, an NGO active in gender issues, 74% of judges surveyed a decade ago believed that “preservation of the family” should be a principal concern for women even in the event of violence in the home. And 51% believed that women who stay with abusive husbands are “partly to blame” for their plight. Some 68% felt that “provocative attire was an invitation to rape” and 55% felt that the “moral character of the victim” was relevant.
In the Mathura Rape case [xxii] the Supreme Court acquitted the two policemen who raped a sixteen year old girl on the grounds that the victim had no visible marks of injury and that she did not raise an alarm. Here consent has been implied from no resistance. In Mohd. Habib v. State [xxiii] the Delhi High Court acquitted a man who raped a seven year old girl, asserting that there were no marks of injury on his penis. The Court refused to take cognizance of the bite marks on the victim’s person and the fact that she suffered a ruptured hymen on account of the sexual assault. Even the eye- witnesses who witnessed this ghastly act, could not sway the High Court’s judgment. In State of Punjab vs. Gurmit Singh[xxiv] , the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character. The Supreme Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar [xxv] , held that “the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard.” Thus, character, and prior sexual history does not imply consent. In some cases the Supreme Court has also observed that sex with the consent of the girl on a promise to marry her will not constitute rape unless it was shown that such consent was obtained by the man under coercion or threat.[xxvi]
The Mathura case is relevant because a minor change in the law did take place in 1983, focussing on custodial rape in which it would no longer be necessary to prove lack of consent. This is similar to the situation of coercion as used in the International tribunals for the situation is such, wherein the victim is unable to retaliate, consent would not be needed. This has been provided under Section 114A of the Indian Evidence Act 1872 as presumption of no consent.
Justice Verma Committee, formed as a response to the Delhi Gangrape incident, recommends inclusion of marital rape thereby highlighting marriage does not given unequivoval right over the body of the other, and consent remains relevant. The Criminal Law (Amendment) Bill, 2012, widens the ambit by replacing the word rape with sexual assault .While earlier, the definition of rape under the Indian Penal Code was sexual intercourse with a woman without her consent, courts have confined it to penile penetration of the vagina. The new amendment though brings under the ambit of this offence penetration of “vagina, anus, urethra or mouth with any part of the body including the penis, or any other object for a sexual purpose”. The definitions are also making the law gender neutral. Thus, consent in all such cases would be looked into.
As seen above, both in Indian law and international law, two criteria are used to identify rape: Coercion and non-consent.[xxvii] Indian law includes both in some way yet, consent is sometimes judged with eyes of stereotyping. Some countries, may adopt either of the two. The trend of ICTR and ICTY more towards looking at the situation as coercive, because of the nature of events and placing consent irrelevant in such circumstances of war and conflict.
There are several ways that the international crime of rape may be different from some national definitions of rape. There are a important legal and procedural protections offered to rape victims by most international courts which are mostly absent from national courtrooms, such as permitting in camera testimony and not permitting attacks on the victim’s credibility through probing their sexual relationships. The tribunals have also taken positive steps to ensure victims of sexual violence can testify without retribution or fear for their safety. Through the development of its rules of procedure, the ICTY has sought to protect the victims of sexual violence from abusive lines of questioning during testimony. Witnesses can also testify under a pseudonym, with face and voice distortion in video feeds, or in closed session. Thus, the procedural rules in the ICTY and ICTR, and ICC, allow for judicial discretion in granting witness anonymity. Again, in wartime rape crimes, identity does not become a crucial factor, as it does in regular domestic rape cases. Furthermore, as is clear from above discussion, international criminal law does not revolve around the issue of consent to the same extent as it does in many national settings.
Even though a lot can be learnt from the various procedural and legal protections offered by international tribunals, the issue of consent has to be studied differently in different national systems whose national, religious, cultural and political ideologies infuse the laws.
[i] Patricia H. Davis, Comment, The Politics of Prosecuting Rape as a War Crime, 34INT’LLAW 1223,1226 (2000)
[iii] Case No. ICTR-96-4-T, 2 September 1998
[iv] Akayesu, para. 688,Musema, case No. ICTR-96-13, at para. 965
[v] Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgment and Sentence (May 15, 2003)
[vi] The Prosecutor v. Juvénal Kajelijeli (Judgment and Sentence), ICTR-98-44A-T, International Criminal Tribunal for Rwanda (ICTR), 1 December 2003, available at: http://www.unhcr.org/refworld/docid/404466007.html %5Baccessed 30 January 2013]
[vii] The Prosecutor v. Mika Muhimana, Case N° ICTR-95-1B-T
[viii] The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T (issued on 2nd February 2012)
[x] MacKinnon, Catherine A. 2006. “Defining Rape Internationally: A Comment on Akayesu.” Pp. 237-246 in Are Women Human? Catherine MacKinnon. Cambridge, MA: The Belknap Press of Harvard University Press.
[xi] Case No. IT-96-21-T, 1998
[xii] Case No. IT-95-17/1-T, 10 December 1998
[xiii] Case No. IT-96-23 and IT-96-23/1, 22 February 2001)
[xiv] Case No. IT-98-30/1, 2 November 2001; ( paras. 177-178).
[xv] Case No. IT-96-23 & IT-96-23/1 A, 12 June 2002 paras. 125-133),
[xvi] All cases of the ICTY are available at:http://www.un.org/icty/cases/indictindex-e.htm and http://www.asser.nl/default.aspx?site_id=9&level1=13336&level2=13375&level3=13477
[xvii] Supra Note 10.
[xix] “Obtaining further charges in the opening case against Thomas Lubanga”, Statement by women’s rights and human rights NGOs of the DRC on the prosecutions by the ICC, Beni, September 16, 2006
[xxii] 1978) CrLJ 1864 SC
[xxiii] (1989) CrLJ 137 Delhi
[xxiv] (1996) 2 SCC 384
[xxv] AIR 1991 SC 207
[xxvii] Supra Note 10
§ 25.01 General Principles
[A] Common law – Generally speaking, sexual intercourse by a male with a female not his wife, constitutes rape if it is committed:
2.) by means of deception;
3.) while the female is asleep or unconscious; or
4.) under circumstances in which the female is not competent to give consent (e.g., she is drugged, mentally disabled, or underage).
Rape is a general-intent offense. As such, a defendant is guilty of rape if he possessed a morally blameworthy state of mind regarding the female’s lack of consent.
[B] Traditional Statutory Law – Traditional rape statutes define the offense as sexual intercourse achieved “forcibly,” “against the will” of the female, or “without her consent.” Like the common law, such statutes are gender-specific, i.e., only males are legally capable of perpetrating the offense, and only females can legally be victims of the crime.
[C] Modern Statutory Law – Many states now extend the law to specified forms of non-forcible, but nonconsensual, sexual intercourse, e.g., sexual intercourse by a male with an unconscious or drugged female. Increasingly, rape is now defined in gender-neutral terms regarding both the perpetrator and the victim. In the most reformed statutes, the offense has been broadened to include all forms of sexual penetration; the name of the crime has been changed (e.g., “criminal sexual conduct” or “sexual assault”) and the offense is divided into degrees.
[D] Model Penal Code – A male is guilty of rape if, acting purposely, knowingly, or recklessly regarding each of the material elements of the offense, he has sexual intercourse with a female under any of the following circumstances:
1.) the female is less than 10 years of age;
2.) the female is unconscious;
3.) he compels the female to submit by force or by threatening her or another person with imminent death, grievous bodily harm, extreme pain or kidnapping; or
4.) he administers or employs drugs or intoxicants in a manner that substantially impairs the female’s ability to appraise or control her conduct. [MPC § 213.1(1)]
§ 25.02 “Forcible”
The traditional common law rule requires proof that both the female did not consent to the intercourse and that the sexual act was “by force” or “against her will” (“resistance” requirement). Generally speaking, nonconsensual intercourse is “forcible” if the male uses or threatens to use force likely to cause serious bodily harm to the female or, possibly, a third person. Intercourse secured by a non-physical threat does not constitute forcible rape at common law.
A minority of jurisdictions by statute or common law interpretation have abolished the resistance requirement. Where state have retained the resistance requirement, the trend is to reduce the significance of the rule by lowering the barrier, typically requiring only that the alleged victim asserted a degree of resistance that was reasonable under the circumstances or that was sufficient to indicate that the sexual intercourse was without consent.
An extreme minority approach, applied at least in New Jersey, is that a male can be convicted for forcible rape based solely on the lack of permission for the sexual intercourse. [State in the Interest of M.T.S., 609 A.2d 1266 (1992)]
The Model Penal Code defines rape solely in terms of the male’s acts of aggression and does not require proof of resistance by the victim.
§ 25.03 Marital Immunity Rule
At common law, a husband could not be guilty of raping his wife. The majority of states retain a partial exemption under which immunity does not apply if the parties are legally separated or are living apart at the time of the rape.
A minority of states maintain a total exemption for marital rape, while at least twelve states have abolished the rule.
The Model Penal Code recognizes a partial marital exemption that bars a rape prosecution against a spouse or persons “living as man and wife,” although they are not formally married. More stringent than the majority exemption, the only exception to the marital immunity rule is for spouses living apart under a formal decree of separation. [MPC § 213.6(2)]
§ 25.04 Evidentiary Issues at Rape Trials
[A] Corroboration Rule – At common law, the testimony of the alleged rape victim did not need to be corroborated in order to convict for rape. However, a minority of states, by statute or case law, have instituted a corroboration requirement.
The Model Penal Code imposes a corroboration requirement. [MPC § 213.6(5)]
[B] Rape-Shield Statutes – If the defendant contends that the female consented to sexual intercourse with him on the occasion of the alleged rape, evidence of prior consensual sexual acts between the accused and the victim is admissible. However, today, most states bar evidence of the alleged victim’s prior consensual sexual activity with persons other than the accused and her reputation for lack of chastity under the so-called “rape-shield” laws.
The Model Penal Code is silent regarding the admissibility of evidence of the alleged victim’s sexual history or reputation for chastity.
[C] Rape Trauma Syndrome – Rape Trauma Syndrome (RTS) is a set of acute and long-term symptoms resulting from a rape or attempted rape. In the acute phase, a rape victim is as apt to appear calm and subdued immediately after an attack as she is to manifest fear, anger, or anxiety. Many woman in the acute phase also experience physical symptoms, such as tension headaches, fatigue, and disturbed sleep patterns. In the long-term phase, many rape victims develop phobias related to the circumstances of the rape.
There is a split of authority regarding the scientific reliability and, therefore, admissibility of RTS evidence. Jurisdictions that permit RTS expert testimony often admit it only for limited purposes, e.g., to explain the fact that the alleged victim appeared calm immediately after the rape if such conduct would likely be viewed by jurors as inconsistent with a claim of rape. Generally, however, RTS may not be introduced as proof of the commission of the rape itself.
The Model Penal Code is silent regarding the admissibility of evidence of RTS.
§ 25.05 Other Sex Crimes
[A] Statutory Rape – Today, “statutory rape” remains an offense in most states. Many states apply a two-level approach to this offense: sexual intercourse with a very young girl (e.g., twelve years of age or younger) remains punishable at the level of forcible rape; intercourse with an older girl (especially if the male is older than the female by a specified number of years) is a felony of a lesser degree.
The Model Penal Code does not recognize any strict liability crimes, and thus does not recognize statutory rape, although it does punish sexual intercourse by a man with a female less than 10 years of age if he knew or should have known the female’s age.
[B] Gross Sexual Imposition – Unlike the common law, the Model Penal Code does not provide for rape on the basis of fraud. However, such conduct does constitute the offense of gross sexual imposition. Subject to the marital immunity exemption, a male is guilty of gross sexual imposition if he has sexual intercourse with a female in any one of three circumstances:
1.) the female submits as the result of a “threat that would prevent resistance by a woman of ordinary resolution,” e.g., if the woman is threatened by a supervisor with loss of employment. [MPC § 213.1(2)(a)]
2.) a male has sexual relations with a female with knowledge that, as the result of mental illness or defect, she is unable to appraise the nature of his conduct. [MPC § 213.1(2)(b)]
3.) a male knows that the female is unaware that a sexual act is being committed upon her or that she submits because she mistakenly believes that he is her husband. [MPC § 213.1(2)(c)]