5. The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person's or persons' incapacity to give genuine consent.

5.1. The perpetrator committed an act of a sexual nature against one or more person; OR.

5.2. The perpetrator caused such person or persons to engage in an act of a sexual nature.

5.3. The perpetrator's or victim's acts of a sexual nature occurred through force, threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person's or persons' incapacity to give genuine consent.

5.3.1. Evidence of use of force.

5.3.2. Evidence of threat of force.

5.3.3. Evidence of detention.

5.3.4. Evidence of psychological oppression.

5.3.5. Evidence of abuse of power.

5.3.6. Evidence of a coercive environment.

5.3.7. Evidence of incapacity to give genuine consent.

3. The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person's or persons' incapacity to give genuine consent.

In the Dorđ;ević Appeals Judgement, the Appeals Chamber held that:

"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." [1]

In the Kenyatta Decision on the Confirmation of Charges, the Trial Chamber held that:

"264. Turning to the legal characterization of these acts, the Chamber recalls that it is essential for qualification of a certain act as other forms of sexual violence pursuant to article 7(l)(g) of the Statute that the act in question be of a sexual nature. The Chamber notes that at the confirmation of charges hearing, the Prosecutor submitted "that these weren’t just attacks on men’s sexual organs as such but were intended as attacks on men’s identities as men within their society and were designed to destroy their masculinity".

266. The Chamber finds that the evidence placed before it does not establish the sexual nature of the acts of forcible circumcision and penile amputation visited upon Luo men. Instead, it appears from the evidence that the acts were motivated by ethnic prejudice and intended to demonstrate cultural superiority of one tribe over the other. Therefore, the Chamber concludes that the acts under consideration do not qualify as other forms of sexual violence within the meaning of article 7(l)(g) of the Statute. However, as explained in the following section, the Chamber considers them as part of the Prosecutor’s allegation of acts causing severe physical injuries and will address them accordingly."[20]

According to the Furundžija Trial Chamber:

"[I]nternational criminal rules punish not only rape but also any serious sexual assault falling short of actual penetration. It would seem that the prohibition embraces all serious abuses of a sexual nature inflicted upon the physical and moral integrity of a person by means of coercion, threat or force or intimidation in a way that is degrading and humiliating for the victim's dignity."[2]

5.1. The perpetrator committed an act of a sexual nature against one or more person; OR.

ICC

While considering sexual violence as a crime against humanity, the Pre-Trial Chamber in Kenyatta held that:

"[N]ot every act of violence which targets parts of the body commonly associated with sexuality should be considered an act of sexual violence. In this respect, the Chamber considers that the determination of whether an act is of a sexual nature is inherently a question of fact. The Chamber finds that the evidence placed before it does not establish the sexual nature of the acts of forcible circumcision and penile amputation visited upon Luo men. Instead, it appears from the evidence that the acts were motivated by ethnic prejudice and intended to demonstrate cultural superiority of one tribe over the other. Therefore, the Chamber concludes that the acts under consideration do not qualify as other forms of sexual violence."[3]

ICTY

According to the Trial Chamber in Furundžija:

"[I]nternational criminal rules punish not only rape but also any serious sexual assault falling short of actual penetration. It would seem that the prohibition embraces all serious abuses of a sexual nature inflicted upon the physical and moral integrity of a person by means of coercion, threat or force or intimidation in a way that is degrading and humiliating for the victim's dignity."[4]

After reviewing domestic legal systems, the Trial Chamber in Kunarac et al. determined that:

"The basic principle which is truly common to these legal systems is that serious violations of sexual autonomy are to be penalised. Sexual autonomy is violated wherever the person subjected to the act has not freely agreed to it or is otherwise not a voluntary participant."[5]

ICTR

Sexual violence was defined by the court in Akayesu as:

"[A]ny act of a sexual nature which is committed on a person under circumstances which are coercive. Sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact."[6]

The approach in Akayesu was endorsed by the Trial Chamber in Milutinović et al. regarding sexual assault as persecution. The Trial Chamber held that:

"[...] 'sexual assault' may be committed in situations where there is no physical contact between the perpetrator and the victim, if the actions of the perpetrator nonetheless serve to humiliate and degrade the victim in a sexual manner. [...] Furthermore, the Chamber considers it inappropriate to place emphasis on the sexual gratification of the perpetrator in defining the elements of "sexual assault". 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"."[7]

SCSL

Furthermore, in Brima et al. the Trial Chamber found that:

"[T]he prohibition embraces all serious crimes of a sexual nature inflicted upon the physical and moral integrity of a person by means of coercion, threat of force or intimidation."[8]

5.2. The perpetrator caused such person or persons to engage in an act of a sexual nature.

For example, the Bagasora Trial Chamber held that the following constituted sexual violence:

"Many of the female victims were asked to undress before being killed. He also saw one of the soldiers take a Tutsi female student into an empty room at the Centre. The girl refused, but the soldier forcefully undressed her."[9]

5.3. The perpetrator's or victim's acts of a sexual nature occurred through force, threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person's or persons' incapacity to give genuine consent.

ICTY

The Trial Chamber in Kunarac et al. held that the offence of rape:

"[I]s accompanied by force or threat of force to the victim or a third party [...] or a variety of other specified circumstances which made the victim particularly vulnerable or negated her ability to make an informed refusal."[10]

SCSL

In Taylor, the Trial Chamber concurred with the Appeals Chamber in Kunarac et al. that:

"The consent of the victim must be given voluntarily, as a result of the victim's free will, assessed in the context of the surrounding circumstances. This is necessarily a contextual assessment. However, in situations of armed conflict or detention, coercion is almost universal. Force or the threat of force provides clear evidence of non-consent, but force is not an element per se of rape and there are factors other than force which may render an act of sexual penetration non-consensual or non-voluntary on the part of the victim. 'Continuous resistance' by the victim, physical force or even threat of force by the perpetrator are not required to establish coercion. A person may be incapable of giving genuine consent if affected by natural, induced or age related incapacity."[11]

5.3.1. Evidence of use of force.

5.3.2. Evidence of threat of force.

5.3.3. Evidence of detention.

5.3.4. Evidence of psychological oppression.

5.3.5. Evidence of abuse of power.

5.3.6. Evidence of a coercive environment.

ICTY

The Trial Chamber in Delalić et al.

"[s]exual violence which includes rape, is considered to be any act of a sexual nature which is committed on a person under circumstances which are coercive."[12]

Furthermore, the Kunarac et al. Appeals Chamber held that:

"[T]here 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.

"[...] [T]he 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." "[13]

According to the Trial Chamber in Milutinović et al. (regarding sexual assault as persecution)

"Any form of coercion, including acts or threats of violence, detention, and generally oppressive surrounding circumstances, is simply evidence that goes to proof of lack of consent. In addition, the Trial Chamber is of the view that when a person is detained, particularly during an armed conflict, coercion and lack of consent can be inferred from these circumstances. In this regard, the force required for a sexual assault is only that which is necessary to perform the act of a sexual nature, and actual coercion is not a required element."[14]

ICTR

The Akaseyu Trial Chamber stated that:

"Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or the military presence of Interhamwe among refugee Tutsi women at the bureau communal."[15]

SCSL

The Trial Chamber in Brima et al. acknowledged that:

"[T]he very specific circumstances of an armed conflict where rapes on a large scale are alleged to have occurred, coupled with the social stigma which is borne by victims of rape in certain societies, render the restrictive test set out in the elements of the crime difficult to satisfy. Circumstantial evidence may therefore be used to demonstrate the actus reus of rape."[16]

For example, in Sesay et al.

"The Chamber observes that an atmosphere of violence prevailed in Koidu during the attack, noting the lootings, burnings and killings occurring simultaneously. The Chamber finds that in such violent circumstances the women were not capable of genuine consent."[17]

3.3.7. Evidence of incapacity to give genuine consent.

In the Dorđ;ević Appeals Judgement, the Appeals Chamber held that:

"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. 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. 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. 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". 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. In addition, a status of detention, particularly during armed conflict, will normally vitiate consent."[18]

Additionally, the Trial Chamber in Sesay et al. clarified that:

"[T]he last part of this element refers to those situations where, even in the absence of force or coercion, a person cannot be said to genuinely have consented to the act. A person may not, for instance, be capable of genuinely consenting if he or she is too young, under the influence of some substance, or suffering from an illness or disability."[19]