Sexual assault

Notion(s) Filing Case
Appeal Judgement - 27.01.2014 ĐORĐEVIĆ Vlastimir
(IT-05-87/1-A)

850. The Appeals Chamber notes that the definition and elements of sexual assault have been discussed, in various degrees of detail, by several trial chambers.[1] Trial chambers have held that sexual assault is broader than rape and encompasses “all serious abuses of a sexual nature inflicted upon the physical and moral integrity of a person by means of coercion, threat of force or intimidation in a way that is humiliating and degrading for the victim’s dignity”.[2] The Appeals Chamber notes that the Milutinović et al. Trial Chamber, after a thorough analysis, identified the elements of sexual assault as follows:

(a) The physical perpetrator commits an act of a sexual nature on another; this includes requiring that other person to perform such an act.
(b) That act infringes the victim’s physical integrity or amounts to an outrage to the victim’s personal dignity.
(c) The victim does not consent to the act.
(d) The physical perpetrator intentionally commits the act.
(e) The physical perpetrator is aware that the act occurred without the consent of the victim.[3]

851. This definition was adopted by the Trial Chamber in the present case.[4] While the Appeals Chamber is satisfied that this definition correctly reflects the elements of sexual assault (other than rape), it finds that some further elaboration is useful.

852. It is evident that sexual assault requires that an act of a sexual nature take place. The Appeals Chamber notes that the act must also constitute an infringement of the victim’s physical or moral integrity.[5] Often the parts of the body commonly associated with sexuality are targeted or involved. Physical contact is, however, not required for an act to be qualified as sexual in nature.[6] Forcing a person to perform or witness certain acts may be sufficient, so long as the acts humiliate and/or degrade the victim in a sexual manner.[7] Furthermore, the Appeals Chamber agrees with the Milutinović et al. Trial Chamber that “it would be inappropriate to place emphasis on the sexual gratification of the perpetrator […]. In the context of an armed conflict, the sexual humiliation and degradation of the victim is a more pertinent factor than the gratification of the perpetrator” as it is precisely the sexual humiliation and degradation which “provides specificity to the offence”.[8] With regard to the issue of consent, the Appeals Chamber considers that any form of coercion, including acts or threats of (physical or psychological) violence, abuse of power, any other forms of duress and generally oppressive surrounding circumstances, may constitute proof of lack of consent and usually is an indication thereof.[9] In addition, a status of detention, particularly during armed conflict, will normally vitiate consent.[10]

[1]  See Milutinović et al. Trial Judgement, vol. 1, paras 195-201; Brđanin Trial Judgement, para. 1012; Stakić Trial Judgement, para. 757; Furundžija Trial Judgement, para. 186.

[2]  Brđanin Trial Judgement, para. 1012; Stakić Trial Judgement, para. 757; Furundžija Trial Judgement, para. 186 (in these cases, the definition of sexual assault was not challenged on appeal). See Kvočka et al. Trial Judgement, para. 180, referring to Akayesu Trial Judgement, para. 688 (the definition of sexual assault was again not challenged on appeal). See Akayesu Trial Judgement, in which the Trial Chamber held that “sexual violence, which includes rape, [is] any act of a sexual nature which is committed on a person under circumstances which are coercive. [It] is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact” (Akayesu Trial Judgement, para. 688. This definition was also not challenged on appeal).

[3]  Milutinović et al. Trial Judgement, vol. 1, para. 201.

[4]  Trial Judgement, para. 1768.

[5]  See Stakić Trial Judgement, para. 757; Furundžija Trial Judgement, para. 186.

[6]  See Milutinović et al. Trial Judgement, vol. 1, para. 199; Akayesu Trial Judgement, para. 688.

[7] See Milutinović et al. Trial Judgement, vol. 1, para. 199; Brđanin Trial Judgement, para. 1012; Stakić Trial Judgement, para. 757; Furundžija Trial Judgement, para. 186.

[8]  Milutinović et al. Trial Judgement, vol. 1, para. 199.

[9]  See Milutinović et al. Trial Judgement, vol. 1, para. 200.

[10]  See Kvočka et al. Appeal Judgement, para. 396; Kunarac et al. Appeal Judgement, paras 132-133; Milutinović et al. Trial Judgement, vol. 1, para. 200.

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Notion(s) Filing Case
Appeal Judgement - 29.09.2014 KAREMERA & NGIRUMPATSE
(ICTR-98-44-A)

611.   […] The Appeals Chamber considers that whilst the Trial Chamber’s findings on sexual assaults can reasonably underpin a conviction of genocide, they cannot form the basis of a conviction for rape as crime against humanity. The Appeals Chamber recalls that acts of sexual violence are a broader category than rape.[1] […] Accordingly, the Appeals Chamber finds that the Trial Chamber erred in relying on its findings of sexual assaults committed throughout Rwanda to convict Karemera and Ngirumpatse of rape as a crime against humanity.[2] […]

[1] See Rukundo, Trial Judgement, para. 380. See also Kunara~ et al. Appeal Judgement, para. 150.

[2] The Appeals Chamber finds that the Trial Chamber reasonably considered that rapes and sexual assaults amounted to genocide in the form of serious bodily and mental harm. See [Karemera and Ngirumpatse] Trial Judgement, para. 1667.

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