Using prior sexual conduct
The sexual history of a woman is often used as a barometer of trustworthiness and moral uprightness. It is used to undermine a woman’s credibility and demonstrate the probability of ‘consent’ on her part to a sexual act in question. It has been a successful defence tactic and one strategically used in national courts because of the prevalent negative characterization of sexually ‘promiscuous’ women. Apparently, the logic behind the use of prior sexual conduct or a history of sexual relationships is that it demonstrates a propensity to sexual intercourse. In turn, this propensity suggests that the survivor had consented to the sexual acts concerned.
It shifts the Court’s focus onto a set of events in the past, which is not material to the alleged crime. Instead, the Court should be examining whether the specific elements of the crime (the actus reus and mens rea) have been met. This includes examining the behaviour of the defendant, his knowledge and intentions, and the coercive circumstances that may render a discussion of consent redundant.
Advocates should unfold how this use of gender stereotyping amounts to a violation of the right to a fair trial. Rules of procedure and evidence should not apply in a mechanical fashion. They have to be read in light of international human rights norms, including non-discrimination and gender-equal access to the right of fair trial.
Art 21(3) of the Rome Statute of the International Criminal Court serves as an example:
1.The Court shall apply:
(a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;
(b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;
(c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.
2. The Court may apply principles and rules of law as interpreted in its previous decisions.
3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.
In the Delalic case, a statement was made in open court regarding the prior sexual conduct of a witness. Deeming it irrelevant and admissible to the material facts of the case, the Trial Chamber ordered a deletion of that reference from public record. In doing so, the Chamber discussed the importance of the witness’s privacy and the potentially damaging effects if the matter was left available on public record.
Gender-stereotypes and myths relating to how and why sex-based violations occur are also inherent in rules that require corroboration as a legal condition to a conviction. It is worthy to note that the same burden of proof is not necessarily or always required for other crimes.
The corroboration requirement is also a matter of gender-equal access to justice. Most cases of sex-based violations take place in private. It is important that the Prosecution meets the burden of proof required for the finding of guilt. If a single testimony offers sufficient probative value, corroboration should not be an additional legal requirement. If corroborating evidence exists, it may help to confirm a single testimony. However, it is not a legal requirement.
In Kunarac, deliberating that most domestic systems have abolished this requirement, the Trial Chamber ruled that corroboration is also not part of international law.
In some cases, only one witness has given evidence of an incident with which one or other of the accused has been charged. Rule 96 specifically overrules the requirement which exists or which used to exist in some domestic systems of law that the evidence of a complainant who alleges rape must be corroborated – a requirement which has indeed been removed in most of those domestic systems. Nevertheless, the fact remains that only one witness has given evidence of that incident, usually because she has been the only person present other than the particular accused when the incident charged is alleged to have taken place. In such a situation, the Trial Chamber has scrutinised the evidence of the Prosecution witness with great care before accepting it as sufficient to make a finding of guilt against any of the accused. The Trial Chamber has considered the evidence upon the issue of rape given by the three professional witnesses called by the Defence, but has rejected their opinions upon the basis that they assumed either legal requirements which do not exist in international law or the need for factual consequences which the Trial Chamber does not accept.
In Akayesu the Chamber swiftly decided the following:
The Chamber notes that during trial, only one testimony was presented in support of certain facts alleged in the Indictment; hence the question arises as to the principle found in Civil Law systems: unus testis, nullus testis (one witness is no witness) whereby corroboration of evidence is required if it is to be admitted.
Rule 96(i) of the Rules alone specifically deals with the issue of corroboration of testimony required by the Chamber. The provisions of this Rule, which apply only to cases of testimony by victims of sexual assault, stipulate that no corroboration shall be required. In the Tadic judgment rendered by the ICTY, the Trial Chamber ruled that this "Sub-rule accords to the testimony of a victim of sexual assault the same presumption of reliability as the testimony of victims of other crimes, something which had long been denied to victims of sexual assault in common law [which] certainly does not [...] justify any inference that in cases of crimes other than sexual assault, corroboration is required”.
Imprecision in the recalling of events as an impeachment of credibility
Often inconsistent stories, or imprecision in the recollection of the sequence, time, and location of the alleged crimes are used by the Defence to question the credibility of the survivor/witness and/or the actual occurrence of the events alleged.
An advocate should deploy gender analysis in order to contextualize the circumstances within which a crime like sexual violence occurs. An appreciation of the circumstances may render an interpretation of a standard of evidence, for example, too arbitrary or too rigid to be justly applied.
However, advocates must ensure that this approach has to be balanced with the defendant’s rights of a fair trial. A contextual approach to evidence does tamper with the ‘traditional’ rigour in the use of evidence in a criminal trial. This may fall short of or may be argued to fall short of standards relating to key legal principles of ‘proof beyond reasonable doubt’ and ‘innocent until proven guilty’. Indeed even if it is known and documented that sexual violence had occurred, for a conviction to be found, the prosecutor must still be able to link the individual person(s) to the crime. Yet, the traditional burden of proof may be so stringent that it cannot, in times of oppression and conflict, meet the threshold.
The approach demonstrated by the Trial Chamber in Kunarac is an example to emulate. The Chamber had identified a number of circumstances that made it impossible for survivors to recall facts in each minutiae of detail and sequence. The Chamber invoked the ‘reasonable standard’ argument stating that it cannot have been reasonably expected for witnesses to recall the precise sequence of incidents with exact times, dates and location of events given the following circumstances:
a) They were detained over long periods of time without access to clocks or any possibility to document their situation.
b) These experiences were on the whole extremely traumatic and this may have affected their ability of recall with the precision expected in a criminal trial.
In order to proportionally balance reasonable expectations with the defendant’s rights, the Court applied a test of whether the discrepancies between the testimonies and evidences of different witnesses materially impacted upon the elements of which a crime is found. Thus the prosecution was still tasked with meeting the required burden of proof. The Chamber applied the test of whether the witness recounted ‘the essence of the incident charged in acceptable detail:
By their very nature, the experiences which the witnesses underwent were traumatic for them at the time, and they cannot reasonably be expected to recall the minutiae of the particular incidents charged, such as the precise sequence, or the exact dates and times, of the events they have described. The fact that these witnesses were detained over weeks and months without knowledge of dates or access to clocks, and without the opportunity to record their experiences, only exacerbated their difficulties in recalling the detail of those incidents later. In general, the Trial Chamber has not treated minor discrepancies between the evidence of various witnesses, or between the evidence of a particular witness and a statement previously made by that witness, as discrediting their evidence where that witness has nevertheless recounted the essence of the incident charged in acceptable detail. Such an approach varied according to the circumstances of each witness, and in particular according to the quality of that witness’s evidence in relation to the essence of the particular incident charged. The Trial Chamber has also taken into account the fact that these events took place some eight years before the witnesses gave evidence in determining whether any minor discrepancies should be treated as discrediting their evidence as a whole.
In Akayesu, the Chamber appreciated that inconsistencies were a result of trauma, translation issues and the fact that several witnesses were illiterate. However the Chamber concluded that if these inconsistencies were not of ‘material consequence’. Therefore, the credibility of witnesses was not discredited.
[...] The Chamber considers that these inconsistencies are not of material consequence and that they are not substantial enough to impeach the credibility of the witnesses. The Chamber is of the view that the inconsistencies between pre-trial statements and witness testimony can be explained by the difficulties of recollecting precise details several years after the occurrence of the events, the trauma experienced by the witnesses to these events, the difficulties of translation, and the fact that several witnesses were illiterate and stated that they had not read their written statements.
 A. M. De Brouwer, Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of ICTY and ICTR, (Intersentia, 20 Oct 2005) 262
 UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6
 A. M. De Brouwer (n 1)
 The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, (Trial Chamber), 2 September 1998, para. 132- 134. (internal citations omitted)
 Kunarac (n 5) para. 564 (internal citation omitted)
 Akayesu (n 6) para 455-456