DEFINITION OF SEXUAL VIOLENCE, RAPE AND SEXUAL SLAVERY

In this report:

Sexual violence is an overarching term used to describe "[a]ny violence, physical or psychological, carried out through sexual means or by targeting sexuality."¹ Sexual violence includes rape and attempted rape, and such acts as forcing a person to strip naked in public, forcing two victims to perform sexual acts on one another or harm one another in a sexual manner, mutilating a person's genitals or a woman's breasts, and sexual slavery.

Rape as defined in the appeals chamber judgment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the 2002 Foca case is "[t]he 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. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim."² The appeals chamber rejected the "resistance" requirement argued by the appellants as it is justified neither in law or fact, and stated that the use of force in itself is not a necessary element of rape. The coercive circumstances present in the Foca rapes, which were committed in circumstances similar to the crimes of sexual violence perpetrated in Sierra Leone, made the victims' consent to the sexual acts impossible. The use or threat of force often removes any requirement that a victim show resistance and most jurisdictions have discarded the idea that a rape victim must resist under all circumstances as impractical, if not absurd. This definition also underscores that rape is an attack on the physical integrity of a woman and not an attack against her honor or that of her family or community.

Rape was defined in the judgment of the Akayesu case at the International Criminal Tribunal for Rwanda (ICTR) as "[t]he physical invasion of a sexual nature, committed on a person under circumstances which are coercive" and is not limited to the insertion of a penis into a victim's vagina or anus or the insertion of a penis in the mouth of the victim.³ This definition, however, has been criticized for being too broad and has not been included in the Rome Statute of the International Criminal Court (ICC).

Sexual slavery, defined by the 1926 Slavery Convention and the 1953 Protocol amending the same convention, refers to "[t]he status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including sexual access through rape or other forms of sexual violence."⁴ The Statute of the ICC includes the trafficking of women and children in its definition of enslavement.⁵

1 United Nations, Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict, Final Report submitted by Ms. Gay J. McDougall, Special Rapporteur (New York: United Nations, 1998), E/CN.4/Sub. 2/1998/13, pp. 7-8.

2 Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Foca case), Appeals Chamber Judgement, June 12, 2002, IT-96-23 and IT-96-23/1, paras. 127-133.

3 Prosecutor v. Jean-Paul Akayesu, Judgement, ICTR-96-4-T, September 2, 1998, para. 688.

4 United Nations, Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict, p. 9. Sierra Leone ratified the Slavery Convention on March 13, 1962.

5 Article 7 (1) (g) lists enslavement as a crime against humanity with the definition given in Article 7 (2) (c). Rome Statute of the International Criminal Court, opened for signature July 17, 1998, Article 7, reprinted in 37 I.L.M. 999 (1998). The Rome Statute entered into force on April 11, 2002 and the ICC has the authority to prosecute the most serious international crimes from July 1, 2002.