Proving non-consent in the case of Kunarac and Gacumbitsi
The case of Kunarac concerned the detention and enslavement of women within an apartment that was allegedly being used to transfer people. Contending the Trial Chamber’s definition of enslavement, the appellants in Kunarac claimed that the Prosecution had to prove constant and clear lack of consent by the victims during the entire duration of their detention. They claimed that since the victims were free to roam within and outside the apartment and could have escaped or make attempts to remove themselves from the situation, it was clear that they were not forced into enslavement. On the matter of their performance of household chores, the appellants argued that these were done out of their own volition.
Taking the appellants reasoning above as an example of how consent may be conceptualized, advocates should scrutinise atomistic impressions of consent based on details such as ‘being able to roam outside the apartment’. The conditions of war and military presence, who the perpetrator is in relation to the victim as well as the prevailing power structures within the facility are factors that should dictate whether an enquiry into non-consent is necessary. This is also important in terms of preventing humiliating and invasive cross-examination of the victim as to whether she had expressed interest or initiated the sexual advances.
The appellants also argued that the Prosecutor was obliged to prove a constant lack of non-consent throughout the period of the purported enslavement. The Appeals Chamber rejected ‘lack of resistance’ and ‘absence of a clear and constant lack of consent’ as probative of voluntary and genuine consent. The Chamber also dispelled the myth that force is an element of rape. Therefore having established the necessary conditions for enslavement, namely an exercise of ownership, the Appeals Chamber confirmed that the Prosecutor did not have to meet an additional element of non-consent to establish the crime. The Appeals Chamber further opined:
[...] 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.
ICTY Appeals Chamber used this definition of rape:
[T]he 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.
Nonetheless, the Chamber immediately noted that in most circumstances where crimes in armed conflict are alleged, true consent is highly improbable.
Circumstances which render it impossible to express consent may be sufficient to presume the absence of consent. In the view of the Appeals Chamber, the circumstances in this case were of this kind.
The debate of whether non-consent is a legal requirement of rape was further tackled in Gacumbitsi. The purpose of briefly highlighting this debate is to give advocates a sense of how non-consent is being described; what words are used; and how judges are ascribing new meaning to it. It is envisaged that advocates may discover new strategies for tackling proof of non-consent where coercive circumstances are apparent.
In the Prosecution’s appeal in Gacumbitsi, the Prosecutor sought to clarify the law relating to rape as a crime against humanity and genocide. Invoking the limitations imposed in Rule 96, the Prosecutor argued that ‘non-consent of the victim and the perpetrator’s knowledge thereof should not be considered elements of the offence that must be proved by the Prosecution.’ Instead, the Prosecution argued that non-consent can be raised as an affirmative defence by the accused.
Rule 96(ii) of the Rules of Evidence and Procedure of the ICTR and ICTY states that: ‘consent shall not be allowed as a defence if the victim, (a) has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression, or (b) reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear.’
To clarify the status of non-consent, the Appeals Chamber in Gacumbitsi, posed two questions:
1. First, is non-consent and the knowledge thereof, and element of the crime of rape, or is consent an affirmative defence?
2. Secondly, if non-consent is an element, how is it proved?
The Chamber answered as follows. Firstly, non-consent (and the knowledge thereof) is an element of the crime of rape, thus confirming the definition of rape in Kunarac. The Chamber then affirmed that Rule 96 only governs the circumstances under which evidence is admissible. To put it simply, Rule 96 does not strike out non-consent from the substantive elements of rape nor does it supplement the accused with an option of an affirmative defence.Instead, the Defence can introduce evidence that the victim had consented. Rule 96(ii) functions to circumscribe when the Defence can do this.
Secondly, on the matter of how non-consent is proved, the Chamber affirmed that the Prosecution is not legally required to adduce evidence of ‘words or conduct of the victim or the victim’s relationship to the perpetrator’ or ‘evidence of force’. If the conduct took place during a genocide campaign; within a detention facility; or as part of a widespread and systematic enslavement, the non-consent can be inferred. Thus the idea that the victim does not consent remains. But how non-consent is legally proven will first depend on whether there is proof of coercive circumstances. Following from that approach, since the Prosecutor has to prove the existence of an armed conflict or an attack against civilians (before even specifying the particular acts constituting a crime), then by necessity, the element of non-consent is negated.
On part of the mens rea, the Prosecutor has to prove that the accused had knowledge that the victim did not consent or that ‘the accused was aware or had reason to be aware, of the coercive circumstances that undermined the possibility of genuine consent.’
The Gacumbitsi framework above encompasses both Kunarac (element of non-consent) and Akayesu (coercive circumstances). As a summary of the above, advocates can utilize the Gacumbitsi framework by deploying the following arguments:
1. ‘Lack of resistance’ or ‘absence of a clear and constant lack of consent’ is not evidence of voluntary and genuine consent. Thus the Prosecution does not have to meet such a high threshold of non-consent. Non-consent can be established or inferred by the by proving the existence of coercive circumstances rendering consent impossible. If the Prosecution has already established:
a) the existence of an armed conflict or
b) an attack against the civilian population, or
c) a persecution of the basis of a social group,
then there is no additional requirement to prove further coercion. If the chapeau elements for war crimes, crimes against humanity, and genocide have been sufficiently met, advocates can argue that the violations concerned therefore meet the jurisdictional threshold of criminality. ‘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.’
To further this explanation, advocates can use the following argument: taking the example of rape as a crime against humanity, if the chapeau threshold of an attack against civilians has been met, then the issue of consent may be automatically and legally negated. We can compare this to strict liability laws in national jurisdictions where one cannot consent to acts amounting to grievous bodily harm and murder. In the same way, it is not possible to consent to acts committed during non-consensual attacks in a conflict. ‘In other words, the determination of jurisdiction amounts to a determination that the sexual act took place in a context in which sexual autonomy was absent.’
2. Force is not a constitutive element of sex crimes, though it may evidence non-consent. This means that the Prosecution does not need to prove that there was force or some form of physical attack and struggle.
3. The above principle is important in so-called ‘peacetime’. If the threshold of ‘armed conflict’ or ‘attack against the civilian population’ is not automatically evident or not legally satisfied, advocates can still summon this principle in a national court.
4. Under circumstances strictly defined under Rule 96(ii), the accused cannot introduce evidence of consent.
5. The mens rea for proving culpability is knowledge of non-consent or awareness or a reason to be aware that coercive circumstances rendered consent meaningless.
 Prosecutor v. Kunarac, Kovac and Vokovic, Case No. IT-96-23 & 23/1 (Appeals Chamber), June 12 2002, para. 108
 Alison Cole, ‘Prosecutor v.Gacumbitsi: The New Definition for Prosecuting Rape Under International Law’  8 (1-2) International Criminal Law Review 55, 79
 Kunarac (n 12) para. 128
 Ibid, para 127
 Ibid, para 130
 Ibid, para. 120
 Gacumbitsi (n 6) Prosecution Appeal Brief, para. 155-156
 Gacumbitsi (n 6)
 Ibid, para. 154
 Ibid, para. 157
 Ibid, 155
 Cole (n 14) 76
 Prosecutor v. Milutinovic et al., (Trial Chamber) Case No. Case No. IT-05-87-T, (ICTY), 6 February 2009, para. 200
 Cole (n 14) 76
 Ibid, 75 quoting Adrienne Kalosieh, ‘Consent to Genocide?: The ICTY's Improper Use of the Consent Paradigm to Prosecute Genocidal Rape in Foca’ (2003) 24 Women's Rights L. Rep. 121, 121, 130, 132.
 Kunarac (n 17) para. 129; Milutinovic (n 26) para. 200