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.

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

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

3.3. 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.

3.3.1. Evidence of use of force.

3.3.2. Evidence of threat of force.

3.3.3. Evidence of detention.

3.3.4. Evidence of psychological oppression.

3.3.5. Evidence of abuse of power.

3.3.6. Evidence of a coercive environment.

3.3.7. 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.

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

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

"[...] not 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."[1]

According to the Trial Chamber in Furundžija,

"[...] international 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]

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

"[...] the 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."[3]

Sexual violence was defined by the court in Akayesu as:

"[...] any 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."[4]

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"."[5]

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

"[t]he 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."[6]

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

3.3. 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.

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

"[t]he 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."[7]

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

"[...] is 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."[8]

3.3.1. Evidence of use of force.

According to the Kvočka Trial Chamber:

"The Akayesu Trial Chamber defined sexual violence as "any act of a sexual nature which is committed on a person under circumstances which are coercive." Thus, sexual violence is broader than rape and includes such crimes as sexual slavery or molestation. Moreover, the Akayesu Trial Chamber emphasized that sexual violence need not necessarily involve physical contact and cited forced public nudity as an example."[9]

3.3.2. Evidence of threat of force.

3.3.3. Evidence of detention.

3.3.4. Evidence of psychological oppression.

3.3.5. Evidence of abuse of power.

3.3.6. Evidence of a coercive environment.

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."[10]

The Akaseyu Trial Chamber stated that:

"[t]hreats, 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."[11]

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

"[...] there 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." [...] the 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." "[12]

The Trial Chamber in Brima et al. acknowledged that:

"[...] the 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."[13]

For example, in Sesay et al:

"[t]he 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."[14]

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

"[a]ny 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."[15]

According to the Jelisić Appeal Chamber:

"The validity of cumulative convictions in relation to the same conduct, charged as a violation of the laws or customs of war under Article 3 and as a crime against humanity under Article 5 of the Statute, is based on the notion that each crime has a special ingredient not possessed by the other. Following the reasoning of the Appeals Chamber in the Delali:

"appeal judgement, the Appeals Chamber notes that, Article 3 requires a close link between the acts of the accused and the armed conflict; this element is not required by Article 5. On the other hand, Article 5 requires proof that the act occurred as part of a widespread or systematic attack against a civilian population; that element is not required by Article 3. Thus each Article has an element requiring proof of a fact not required by the other. As a result, cumulative convictions under both Articles 3 and 5 are permissible. In such a situation, it is not possible to hold, as is submitted by the cross-appellant, that either offence is a "lesser included offence" of the other."[16]

The Kvočka Trial Chamber followed the Jelisić Appeal Chamber's holding that:

"Article 3 crimes and Article 5 crimes each contain 'a special ingredient not possessed by the other'. Crimes charged under Article 3 require proof of 'a close link between the acts of the accused and the armed conflict', whereas Article 5 crimes require proof 'that the act occurred as part of a widespread or systematic attack against a civilian population'. Murder and other crimes charged under both Articles 3 and 5 are thus allowed, as each offence requires a materially distinct element not demanded by the other."[17]

3.3.7. Evidence of incapacity to give genuine consent.