Defining Rape: A Means to Achieve Justice in the Special Court for Sierra Leone

Sierra Leone was ravaged by civil war for ten years, during which thousands of civilians were tortured, raped, and killed by both rebel and government forces. To punish the perpetrators of these crimes, the United Nations and the government of Sierra Leone created the Special Court for Sierra Leone ("SCSL") in 2002 to prosecute "persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law."1 To date, twelve people have been indicted by the SCSL for numerous crimes listed in the Statute of the Special Court of Sierra Leone ("SCSL Statute"), a legal instrument that establishes the SCSL's jurisdiction. Of the twelve people indicted, ten were charged with rape as a crime against humanity. The crime of rape, however, is left undefined by the SCSL Statute; thus, the Court must develop a suitable definition of rape as an international crime as it hears and decides these cases. Three international tribunals have developed definitions of rape, giving the SCSL a considerable body of precedent upon which it can rely. These tribunals developed different definitions of rape, which they believed would best promote human dignity, combat gender discrimination, and support victims and witnesses, while also providing fair trials to defendants. While the International Criminal Tribunal for Rwanda ("ICTR") broadly defined rape as an act of violence akin to torture, the International Criminal Tribunal for the Former Yugoslavia ("ICTY") and the International Criminal Court ("ICC") narrowly defined rape in a way that mimics domestic rape laws." There are two main differences between the tribunals' definitions of rape: (1) whether the definition incorporates an implicit or explicit consent paradigm; and (2) whether the definition includes a detailed list of physical acts that constitute the actus reus of rape. Taking an expansive view of rape, the ICTR incorporated an implicit consent paradigm that requires a determination of whether the act occurred in "coercive circumstances." Furthermore, the ICTR defined the actus reus of rape conceptually, declining to establish a list of physical acts that constitute rape. The ICTY and ICC took a narrow approach. Modeling their definitions on domestic rape laws, the ICTY and ICC required an affirmative showing of nonconsent to establish the commission of a rape. The ICTY and ICC also created detailed lists of physical acts that constitute rape. The SCSL should adopt a definition of rape that best balances the competing interests of promoting human dignity, gender equality, and victims' rights, on one hand; and providing due process to defendants, on the other hand. Part I of this paper briefly describes the conflict in Sierra Leone and analyzes the relevant SCSL provisions-the Special Court's Statute and Rules of Procedure and Evidence. Part II describes the international precedent developed by the ICTR, ICTY, and ICC. Having explored the provisions and goals of the SCSL and the international precedent, Part III presents several issues the SCSL must consider when choosing a definition of rape and argues that adopting a broad definition of rape, similar to the definition set forth by the ICTR, will best serve the goals of the SCSL. I. THE SPECIAL COURT FOR SIERRA LEONE The context in which the SCSL was created and the Court's provisions should inform the SCSL's definition of rape. The UN and the government of Sierra Leone collaborated to create the Special Court for Sierra Leone to prosecute leaders responsible for large-scale human rights abuses, terror campaigns, and widespread rapes committed against civilians. The SCSL Statute was drafted to enable the Court to prosecute these crimes, placing special emphasis upon rape and sexual violence by criminalizing several forms of sexual violence and, through various provisions, providing support to victims and witnesses. From 1991 to 2002, Sierra Leone was torn by a civil war in which different rebel groups, government soldiers, and peacekeepers brutalized the mostly impoverished civilian population across all areas of the country, despite various peace accords and regime changes throughout the period. …