127. [T]he Trial Chamber concluded: [1]   

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.[2]

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.[3]  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.[4] 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”.[5] 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”.[6]  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.[7] 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.[8] 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”.[9]  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.[10] 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.  […]

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.[1] 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.[2] 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.[3] In this respect, the Appeals Chamber notes that Hategekimana did not dispute at trial that Nura Sezirahiga was raped.[4] The Appeals Chamber therefore finds no merit in his challenge to this aspect of the Trial Chamber’s finding on appeal.