Table of contents:
Element:
ICC
As noted by the Trial Chamber in The Prosecutor v. Jean-Pierre Bemba Gombo:
"Rape requires "invasion" of a persons body by "conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body" The Chamber emphasises that, according to the Elements of Crimes, "the concept of invasion is intended to be broad enough to be gender-neutral". Accordingly, "invasion", in the Courts legal framework, includes same-sex penetration, and encompasses both male and/or female perpetrators and victims. The Chamber notes that the definition of rape encompasses acts of "invasion" of any part of a victims body, including the victims mouth, by a sexual organ. Indeed, as supported by the jurisprudence of the International Criminal Tribunal for the former Yugoslavia ("ICTY"), oral penetration, by a sexual organ, can amount to rape and is a degrading fundamental attack on human dignity which can be as humiliating and traumatic as vaginal or anal penetration." [1]
ICTY
While the Furundžija Trial Chamber determined the following as the objective elements of penetration:
"(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."[2]
SCSL
The Trial Chamber in Sesay et al. held that:
"[t]he first part of the provision refers to the penetration of any part of the body of either the victim or the Accused with a sexual organ. The "any part of the body" in this part includes genital, anal or oral penetration [...] This definition of invasion is broad enough to be gender neutral as both men and women can be victims of rape."[3]
In addressing whether or not witnesses need to describe the act of penetration, the Trial Chamber in Sesay et al. was satisfied that:
"the term "rape" by credible witnesses describes acts of forced sexual penetration consistent with the actus reus of the offence of rape."[4]
ICTR
The Akayesu Trial Chamber noted that:
"[w]hile rape has been defined in certain national jurisdictions as non-consensual intercourse, variations on the act of rape may include acts which involve the insertion of objects and/or the use of bodily orifices not considered to be intrinsically sexual."[5]
SCSL
Furthermore, in Sesay et al., the Trial Chamber stated that:
"[t]he second part of the provision refers to the penetration of the genital or anal opening of the victim with any object or any other part of the body. This part is meant to cover penetration with something other than a sexual organ which could include either other body parts or any other object. This definition of invasion is broad enough to be gender neutral as both men and women can be victims of rape."[6]
3.3. Evidence of an invasion of the anal or genital opening with any object
3.4. Evidence of an invasion of the anal or genital opening with any other part of the body
Footnotes:
[1] ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Trial Judgement 21 March 2016, para. 99-101.
[2] ICTY, Furundžija Trial Judgment 10 December 1998, para. 185.
[3] SCSL, Sesay et al. Trial Judgment 2 March 2009, para. 146.
[4] SCSL, Sesay et al. Trial Judgment 2 March 2009, para. 148. This approach was followed in ICTR, Hategekimana Appeals Judgment 8 May 2012, para. 162.
[5] ICTR, Akayesu Trial Judgment 2 September 1998, para. 596. This approach was supported in ICTR, Musema.
[6] SCSL, Sesay et al. Trial Judgment 2 March 2009, para. 146.
