|Appeal Judgement - 12.06.2002||
KUNARAC et al.
(IT-96-23 & IT-96-23/1-A)
127. [T]he Trial Chamber concluded: 
the actus reus of the crime of rape in international law is constituted by: 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) the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim.
128. The Appeals Chamber concurs with the Trial Chamber’s definition of rape. Nonetheless, the Appeals Chamber believes that it is worth emphasising two points. First, it rejects the Appellants’ “resistance” requirement, an addition for which they have offered no basis in customary international law. The Appellants’ bald assertion that nothing short of continuous resistance provides adequate notice to the perpetrator that his attentions are unwanted is wrong on the law and absurd on the facts.
129. Secondly, with regard to the role of force in the definition of rape, the Appeals Chamber notes that the Trial Chamber appeared to depart from the Tribunal’s prior definitions of rape. However, in explaining its focus on the absence of consent as the conditio sine qua non of rape, the Trial Chamber did not disavow the Tribunal’s earlier jurisprudence, but instead sought to explain the relationship between force and consent. Force or threat of force provides clear evidence of non-consent, but force is not an element per se of rape. In particular, the Trial Chamber wished to explain that there are “factors [other than force] which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim”. A narrow focus on force or threat of force could permit perpetrators to evade liability for sexual activity to which the other party had not consented by taking advantage of coercive circumstances without relying on physical force.
130. The Appeals Chamber notes, for example, that in some domestic jurisdictions, neither the use of a weapon nor the physical overpowering of a victim is necessary to demonstrate force. A threat to retaliate “in the future against the victim or any other person” is a sufficient indicium of force so long as “there is a reasonable possibility that the perpetrator will execute the threat”. While it is true that a focus on one aspect gives a different shading to the offence, it is worth observing that the circumstances giving rise to the instant appeal and that prevail in most cases charged as either war crimes or crimes against humanity will be almost universally coercive. That is to say, true consent will not be possible.
131. Under the chapter entitled “Crimes Against Sexual Self-Determination,” German substantive law contains a section penalising sexual acts with prisoners and persons in custody of public authority. The absence of consent is not an element of the crime. Increasingly, the state and national laws of the United States — designed for circumstances far removed from war contexts — support this line of reasoning. For example, it is a federal offence for a prison guard to have sex with an inmate, whether or not the inmate consents. Most states have similar prohibitions in their criminal codes. In State of New Jersey v Martin, the Appellate Division of the New Jersey Superior Court commented on the purpose of such protections: “[the legislature] reasonably recognised the unequal positions of power and the inherent coerciveness of the situation which could not be overcome by evidence of apparent consent”. And, in some jurisdictions, spurred by revelations of pervasive sexual abuse of women prisoners, sexual contact between a correctional officer and an inmate is a felony. That such jurisdictions have established these strict liability provisions to protect prisoners who enjoy substantive legal protections, including access to counsel and the expectation of release after a specified period, highlights the need to presume non-consent here.
132. For the most part, the Appellants in this case were convicted of raping women held in de facto military headquarters, detention centres and apartments maintained as soldiers’ residences. As the most egregious aspect of the conditions, the victims were considered the legitimate sexual prey of their captors. Typically, the women were raped by more than one perpetrator and with a regularity that is nearly inconceivable. (Those who initially sought help or resisted were treated to an extra level of brutality). Such detentions amount to circumstances that were so coercive as to negate any possibility of consent.
133. In conclusion, the Appeals Chamber agrees with the Trial Chamber’s determination that the coercive circumstances present in this case made consent to the instant sexual acts by the Appellants impossible. […]
 Trial Judgement, paras 447-456.
 Ibid., para 460.
 See, e.g., Furundžija Trial Judgement, para 185. Prior attention has focused on force as the defining characteristic of rape. Under this line of reasoning, force or threat of force either nullifies the possibility of resistance through physical violence or renders the context so coercive that consent is impossible.
 Trial Judgement, para 458.
 Ibid., para 438.
 California Penal Code 1999, Title 9, Section 261(a)(6). The section also lists, among the circumstances transforming an act of sexual intercourse into rape, “where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another” (Section 261(a)(2)). Consent is defined as “positive cooperation in act or attitude pursuant to an exercise of free will” (Section 261.6).
 Indeed, a more recently enacted German Criminal Code (Strafgesetzbuch), Chapter 13, Section 177, which defines sexual coercion and rape, recognizes the special vulnerability of victims in certain situations. It was amended in April 1998 to explicitly add “exploiting a situation in which the victim is unprotected and at the mercy of the perpetrator’s influence” as equivalent to “force” or “threat of imminent danger to life or limb”.
 See, e.g., N.J. Stat. Section 2C: 14-2 (2001) (An actor is guilty of, respectively, aggravated and simple sexual assault…[if] “[t]he actor has supervisory or disciplinary power over the victim by virtue of the actor’s legal, professional, or occupational status” or if “[t]he victim is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor’s legal, professional or occupational status.”).
 State of New Jersey v Martin, 235 N.J. Super. 47, 56, 561 A.2d, 631, 636 (1989). Chapter 13 of the German Criminal Code has similar provisions. Section 174a imposes criminal liability for committing “sexual acts on a prisoner or person in custody upon order of a public authority.” Section 174b punishes sexual abuse by means of exploiting a position in public office. In neither instance is the absence of consent an element.
 See Women Prisoners of the District of Columbia Department of Corrections v District of Columbia, 877 F. Supp. 634, 640 (D.D.C. 1994), rev’d on other grounds, 93 F.3d 910 (D.C. Cir. 1996) and Prison Litigation Reform Act of 1996, Pub. L. 105-119, 18 U.S.C. Section 3626.
|Appeal Judgement - 28.02.2005||
KVOČKA et al.
395. The Trial Chamber relied on the definition of rape as given in the Kunarac et al. Trial Judgement, which reads as follows:
In light of the above considerations, the Trial Chamber understands that the actus reus of the crime of rape in international law is constituted by: the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances.
This definition was confirmed by the Appeals Chamber, which added that the “assertion that nothing short of continuous resistance provides adequate notice to the perpetrator that his attentions are unwanted is wrong on the law and absurd on the facts”. Any diverging definition of the crime in Yugoslav law is irrelevant. Radić’s argument that the Statute was not in force when the crimes were committed is without merit: the prohibition of rape in armed conflicts has been long recognized in international treaty law as well as in customary international law.
 Trial Judgement, para. 177.
 Kunarac et al. Trial Judgement, para. 460.
 Kunarac et al. Appeal Judgement, para. 128.
 Radić Reply Brief, para. 75.
 Furundžija Trial Judgement, para. 168; Čelebići Trial Judgement paras 476-479; Furundžija Appeal Judgement, para. 210.
|Appeal Judgement - 08.05.2012||
162. The Appeals Chamber is satisfied that the Trial Chamber reasonably relied on Witness Sezirahiga’s testimony in finding that the actus reus of rape was established. It follows from the Trial Judgement that Witness Sezirahiga observed the commission of the crime from a distance of four meters. Although the witness was not specifically asked about the penetration of his daughter, he clearly and constantly used the word “rape” throughout his testimony to describe what happened to her. The Appeals Chamber is satisfied that this term was reasonably understood in the context of this case as sexual penetration by the witness, the Trial Chamber, and the parties. In this respect, the Appeals Chamber notes that Hategekimana did not dispute at trial that Nura Sezirahiga was raped. The Appeals Chamber therefore finds no merit in his challenge to this aspect of the Trial Chamber’s finding on appeal.
 Trial Judgement, para. 459.
 T. 6 April 2009 pp. 8, 41. In addition, as accepted by the Trial Chamber, Witness Sezirahiga clearly recounted that Murigande immobilized his daughter during the rape. See T. 6 April 2009 p. 41; Trial Judgement, para. 461. See also infra para. 199.
 The Appeals Chamber recalls that in the Kordić and Čerkez case, the ICTY Appeals Chamber considered that a trial chamber reasonably found that a woman was sexually assaulted even though the victim’s testimony was limited to answering in the affirmative to a question posed by the Prosecution as to whether or not she had suffered sexual assault. See Kordić and Čerkez Appeal Judgement, para. 462.
 Rather, Hategekimana focused principally on the credibility of the evidence implicating him and soldiers from the Ngoma Military Camp in the attack. See Defence Closing Brief [Mémoire final de la défence d’Ildephonse Hategekimana, 1 February 2012 (the Englsih translation was filed on 23 March 2012)], paras. 455-473; T. 26 April 2010 p. 61. The Appeals Chamber further observes that Hategekimana referred to the perpetrator of the crime as a “rapist” in his Closing Brief. See Defence Closing Brief, para. 462 (“It emerges clearly from the testimony of this witness that although he claimed that his daughter, Nura Sezirahiga, was raped by a soldier, on the orders of Michel Muligande, nothing in his testimony identifies the rapist. In the presentation of its evidence, the Prosecution was never able to prove the identity of the person who raped the witness’s daughter.”).
|Appeal Judgement - 07.07.2006||
The Prosecution was arguing that non-consent is not an element of the crime of rape as a crime against humanity or as an act of genocide but that consent should rather be considered an affirmative defence. In the Prosecution’s view, rape should be viewed in the same way as other violations of international criminal law, such as torture or enslavement, for which the Prosecution is not required to establish absence of consent.
The ICTR Appeals Chamber followed the holding of the Kunarac Appeal Judgement that lack of consent and the accused's knowledge of that lack of consent are elements of rape as a crime against humanity. It rejected the Prosecution's contrary argument that consent should be treated as an affirmative defense. It held, however, that lack of consent and the accused's knowledge thereof may be inferred from the existence of coercive circumstances, as the Trial Chamber correctly did in this case (paras 151-157).
 Kunarac et al. Appeal Judgement, para. 127.
|ICTR Statute Article 3(g) ICTY Statute Article 5(g)|