7.a. [Mental element for Element 5] [Conduct of invading]: The perpetrator meant to invade the body of a person 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.

7.a. [Mental element for Element 5] [Conduct of invading]: The perpetrator meant to invade the body of a person 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.

ICC

As noted by ICC Trial Chamber in The Prosecutor v. Jean-Pierre Bemba Gombo:

"As the Statute and the Elements of Crimes do not provide a particular mental element for the crime of rape, the Article 30 requirements of intent and knowledge apply.

As to the requirement of "intent", it must be proven that the perpetrator intentionally committed the act of rape. Intent will be established where it is proven that the perpetrator meant to engage in the conduct in order for the penetration to take place.

As to the requirement of "knowledge", it must be proven that the perpetrator was aware that the act was committed by force, by the threat of force or coercion, by taking advantage of a coercive environment, or against a person incapable of giving genuine consent. " [1]

ICTY

According to the Trial Chamber in Kunarac et al.

"The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim."[2]

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, para. 511:

"511. Rape is listed as a crime against humanity under Article 5(g) of the Statute and may constitute an underlying act of persecution if the general requirements of persecution are met. Rape involves 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 given voluntarily, as a result of the victim’s free will, and is assessed in the context of the surrounding circumstances. The perpetrator must intend to effect this penetration and have the knowledge that it occurs without the consent of the victim."

SCSL

In Sesay et al., the Trial Chamber stated that the mens rea required that:

"[T]he invasion was intentional and that it was done in the knowledge that the victim was not consenting."[3]