II. Discussion

Despite the lack of a clear definition for a coercive environment, the choice of language by the State Parties to the Rome Statute provides explicative clues. The linguistic decisions within the Rome Statute demonstrate an adoption of an evolved view of consent in rape law that sheds light on how the ICC should construe “coercive environment.”2 This contemporary view finds that a coercive environment removes the ability to give voluntary and genuine consent. Coercion and consent are closely intertwined concepts, though, which require a bit of background knowledge to understand the assumptions utilized by the Rome Statute, which are provided next.

A. The Evolution of Contemporary Rape Law

For a variety of reasons, rape law used to require some proof of resistance or physical force (or threat thereof) to demonstrate a lack of consent. This made less and less sense to many primarily because in typical sexual relationships, men inherently possess an implied threat based upon their dominant physical strength.3 After all, wouldn’t many women give in rather than face potential physical brutality? That contemporary view was challenged by those who felt that no woman would share sexual intimacy without putting up a vigorous fight.4 While the latter view has since been abandoned in the United States,5 and most other countries, the question of what constituted genuine consent remained.

At first, a showing of a failure to give consent necessitated proof of acts constituting non-consent. Naturally, that seemed like putting the victim on trial, so eventually the law evolved to its current state: any quantum of force applied without affirmative consent equates to no consent given.6 That change is quite important because it meant for the first time that victims effectively did not have to prove their own lack of consent. It also meant that proof of the crime turned on the circumstances of the sexual encounter much more than an “individual[’s] psychic space.”7 This change in the law allowed for the introduction of the doctrine of coercive circumstances.

Coercion is widely understood as the actions or circumstances that remove the ability of a reasonable person to choose. In rape law, this means that a reasonable person feels obliged to submit to the sexual desires of another. The controversial nature of this doctrine arises not from that principle, but from its application. For instance, what kinds of circumstances create an inherent presumption that no genuine consent can be proffered? For the purposes of this paper, I will address this question with an eye towards conflict or post-conflict zones.

B. From Coercion to Coercive Environments

To develop a coercive environment theory in an area marred by conflict, it is obviously necessary to define coercion within those surroundings. The tricky part of this exercise revolves around the exclusion of those types of pressure lacking a certain compelling quality. For example, one party may use the promise of property, status, or favor to extract sex in something akin to a transaction—or, put more bluntly, sexual extortion. In the United States, the Model Penal Code has addressed this concern by noting in its comments that certain kinds of so-called sexual transactions, which only provide “an unattractive choice to avoid some unwanted alternative,”8 do not possess a “compulsion overwhelming the will of [a] victim.”9 Somewhat more illuminating, the Model Penal Code, in an attempted synthesis of U.S. law, also offers the following section dedicated to coercion:

Criminal Coercion

(1) Offense Defined. A person is guilty of criminal coercion if, with purpose unlawfully to restrict another’s freedom of action to his detriment, he threatens to:

(a) commit any criminal offense; or

…

(c) expose any secret tending to subject any person to hatred, contempt, or ridicule, or to impair his credit or business repute; or

(d) take or withhold action as an official, or cause an official to take or withhold action.10

Therein, as noted by the comments previously referenced, a criminal actor must present her victim with a stark choice: acquiesce to my desires or face serious consequences—whether those are criminal, wreak tremendous reputational damage, or simply bring about governmental action or inaction that would not have occurred otherwise.

Similarly, the State of California has also adopted a provision that relies solely upon coercion for prosecution, which is particularized for the sexual violence context: “[Rape occurs] [w]here it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.”11 Duress is defined as “a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a rational person.... The total circumstances…[are] consider[ed ] in appraising the existence of duress.”12 In contrast, the State of New Jersey finds sexual assault when the “actor uses physical force or coercion, but the victim does not sustain severe personal injury.”13 Consequently, the current development of the coercion doctrine in the United States remains spilt between what Professor Catharine MacKinnon describes as coercion‘s definitional focus on “power,” verses non-consent‘s definitional focus on “love or passion gone wrong.”14

Germany has enacted legislation incorporating the coercive environment theory, in which it criminalizes, among other things, sexual acts with prisoners and persons in the custody of a public authority:

(1) Whoever coerces another person:

1. with force;
2. by a threat of imminent danger to life and limb; or
3. by exploiting a situation in which the victim is unprotected and at the mercy of the perpetrator’s influence.15

While this provision also targets other kinds of traditional coercion, it recognizes the notion that some environments breed inherent coercion.

For the purposes of this paper, understanding the assumptions underlying the theory of coercion remains crucial for comprehending the next step in coercion theory—a step Germany has found amenable, as delineated above. While showing coercion generally involves demonstrating that a perpetrator exerted a sufficient amount of pressure that would overwhelm a person of ordinary disposition, this strand of coercion theory asks whether a set of circumstances will, as a practical matter, almost always create that sort of pressure or coercion.

The State Parties, in their adoption of the Elements of Crimes,16 apparently believed that certain types of circumstances would create coercive environments by their inclusion of the following language that appears in all crimes strictly related to sexual violence:

[The crime was] committed 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 other person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.17

Importantly, no showing of non-consent is required if a proper showing of a coercive environment is made. The question, of course, is how. Further, the Rules of Procedure and Evidence prohibit an inference of consent to sexual violence by words or conduct of a victim where a coercive environment, among others, undermined voluntary and genuine consent, or from silence or lack of resistance.18 These provisions expressly permit reliance upon the coercive environment theory.

This is also a salient place to distinguish, as the Rome Statute does, between “fear of violence, duress, detention, psychological oppression, or abuse of power,” and a “coercive environment.”19 Noscitur a sociis, a canon of statutory interpretation, counsels that the meaning of a word is given more precise content by the neighboring words in which it is associated.20 Here, the key observation is that while “coercion” results from a prohibited act (e.g., psychological oppression) or threat thereof, a “coercive environment” is presumably different because (1) it is separate apart from the delineated possibilities of “coercion,” and (2) an “environment,” as opposed to an act, is described as “coercive.” This distinction leads to the conclusion that the term, “coercive environment,” refers to circumstances creating inherent compulsion—as contrasted to an act or acts generating coercion.

C. Coercive Environments and Mass Rape

The provisions of the Elements of Crimes, and Rules of Procedure and Evidence, which relate to coercion in the context of sexual violence, likely arose due to developments in international criminal law. These evolutions occurred primarily at the international criminal tribunals established in response to atrocities in the former Yugoslavia, Rwanda, and Sierra Leon.

The seminal case on this point originates from the International Criminal Tribunal for Rwanda (“ICTR”). There, in Prosecutor v. Akayesu, the ICTR delineated a new international standard for rape.21 Therein, the scope of the sexual invasion was conceptually broadened to allow for rape to consist of “a physical invasion of a sexual nature.”22 And for the purposes of this paper, the ICTR made another significant decision: it employed a proof standard that could turn solely on a coercive environment, without a showing of non-consent.23

The International Criminal Tribunal for the former Yugoslavia (“ICTY”) seemed to initially embrace that twin-proposition in Prosecutor v. Delalic,24 before it reverted back to a more mechanical definition.25 Significantly, this definition also disposed of a focus on objective circumstances relevant to the question of coercion, as had been delineated in the Akayesu decision.26 Soon thereafter, when the trial chamber in Prosecutor v. Kunarac attempted to follow this guidance,27 the ICTY Appellate Chamber chastised the Trial Chamber for focusing on whether the prosecutor demonstrated an absence of consent.28 The Appellate Chamber has acknowledged that “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 universally coercive.”29 Consequently, courts should presume that in wartime-like circumstances, “true consent will not be possible.”30

In a decision by the trial chamber in Prosecutor v. Muhimana,31 the ICTR in 2005 reinforced the broad standard for rape it originally established in Akayesu.32 Not surprisingly, the Rome Statute appears to borrow heavily from Akayesu in what has emerged as the international criminal standard for rape.33 Consequently, the rationale animating that decision in particular helps illuminate an analytical framework for both interpreting the language in the Rome Statute that relates to sexual violence, as well as applying it to the factual circumstances that give rise to atrocities.

D. An Analytical Framework for Determining the Presence of a Coercive Environment

In Akayesu, the ICTR appears to consider a few key factors in its analysis of the coercive nature of the environment(s) in which atrocities related to sexual assaults occurred.34 These include:

1. the number of individuals effectively supporting the sexual encounter;
2. whether the incident immediately followed a situation involving combat; and
3. the brandishing and/or usage of weaponry.

While unlikely, I would also add the existence of a prior relationship between the perpetrator(s) and the victim(s), if any. This totality of the circumstances test provides a roadmap for considering whether a coercive environment exists under the Rome Statute. And like any factors test, some of these factors receive more weight than others. Discussion of each factor follows, including the importance ascribed to them by the tribunals.

Notably, no international criminal tribunal has ever clearly elucidated this kind of coercion analysis in a step-by-step fashion, instead relying upon conclusory or broad statements of law such as: “it is worth observing that 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;”35 or “coercive circumstances need not be evidenced by a show of physical force.”36

1. The number of individuals effectively supporting the sexual encounter.

Even during incidents of rape in private homes, the factual findings distilled by the tribunals indicate that the number of individuals present plays an important role in assessing whether a coercive environment existed. That conclusion stems from an important legal conclusion by the ICTY: “‘any form of captivity vitiates consent.’”37 Accordingly, as the tribunal analyzes the effect upon the environment inuring from the number of people present, another inquiry related to constructive captivity38 is also explored. A tribunal’s analysis of constructive captivity appears to turn on whether the victim(s) was held utilizing the presence of other individuals.

Within the circumstances of the various instances of rape in Muhimana, the ICTY takes into account both those individuals present for the encounter, as well as those within earshot. During one rape, the tribunal notes that while the Perpetrator may have been alone with both girls in a room in his home, another man who heard the cries for help shouted back, “shut up.”39 Laying aside the probable reality that the defendant utilized force, the women here clearly had a strength disadvantage, which was exacerbated by the fact that the women were also apparently outnumbered by others sympathetic to the defendant—in other words, they were effectively trapped. As one of the incidents amounting to mass rape, the tribunal convicted the defendant without any definitive showing in these facts of non-consent or force.40 It instead relied upon a definition of rape premised upon a demonstration of whether a coercive environment existed, which it found under these facts.41 And because the Muhimana tribunal highlighted the effect of the presence of individuals other than the Perpetrator before abstaining from any other consent or force analysis, the tribunal indicated the substantial weight it placed upon them.

The Akayesu decision lends credence to this interpretation, as it also recognized the potential for inherent coercion in circumstances where the victim(s) is outnumbered.42 In other words, it found that factor has particular relevance when other individuals support the obvious consequences of refusing a sexual advance from another, thereby increasing the compulsion present.

In each of the instances amounting to mass rape, the tribunals carefully note the number of individuals effectively supporting the sexual violence as if some type of evidentiary presumption attaches upon a showing that a victim(s) is outnumbered. Thus, eliminating an alleged victim’s ability to flee explains why the ICC would place great weight on this factor.

2. Whether the incident immediately followed a situation involving combat.

Intuitively, fresh fighting would seemingly affect a tribunal’s view of the factual circumstances tending to indicate the presence of coercion; and it does. After all, recent battlefield experience probably produces a greater tendency towards aggressive behavior, particularly towards those people in any captured territory. Akayesu expressly noted at least two categories of environments that would qualify as inherently coercive. One generally resulting from armed conflict, and another specifically derived from “the military presence” at a compound where refugee Tutsi women were staying (during the earlier period of the Rwandan genocide).43 Thus, the ICTY’s willingness to expressly condition coercive circumstances on the military presence alone suggests that fresh conflict is not a necessary condition.

In the ICTR’s most recent treatment of rape in the context of coercive circumstances, a reoccurring theme appears to recognize the importance of temporal proximity to conflict. In Muhimana, all of the incidents of rape for which the defendant was found criminally liable occurred within two weeks of the extermination campaign against the Tutsi.44 The effect of this campaign must be said to have affected the environment of the rapes. Notably, the situations where the tribunal found the defendant guilty of rape as a crime against humanity varied greatly. Many of these rapes occurred in private homes or a hospital basement,45 which did not dissuade the ICTY that coercive circumstances were present. Nearly all of these rapes did occur within two weeks of the campaign, though.46 Thus, Muhimana teaches that temporal and/ or relational proximity to a conflict positively affects the coercive nature of the circumstances, but the presence of this factor is not determinative in the analysis.

That conclusion jives with Akayesu, where the tribunal appeared to articulate an alternative path for demonstrating coercive circumstances which did not turn on fresh fighting. It also suggests that the ICC, in explicating the terms “coercive environment,” should view the proximity of combat as persuasive, but not a requisite, for showing coercive circumstances.

3. The brandishing and/or usage of weaponry.

While no international criminal tribunal has explored, in any great depth, the coercive effects upon an environment which solely result from the presence of weapons, the ICTY has provided some guidance. The Akayesu tribunal discussed, in broad terms, the necessary ingredients for coercive circumstances. In so doing, it provided key insights about when weaponry might transform an environment into one that is coercive.

Clearly when a perpetrator utilizes a weapon, even if only as a club, the analysis turns to a question of force, and not coercion. But what about when no force (or threat thereof) is utilized, such as upon a brandishing of arms? Interestingly, the Akayesu tribunal found that a “show of physical force” represented an obvious candidate for analysis as a coercive environment.47 In making that observation, the tribunal clearly intimated that other forms of coercion, i.e., lesser forms of coercion, would also qualify.

How the ICC judges will utilize that somewhat broad guidance, however, is not clear. The ICC would probably find that intentional shows of force with weaponry create coercive circumstances, while passively holstered or otherwise unutilized weapons would not raise the specter of coercion.

4. The existence of a prior relationship between the perpetrator(s) and the victim(s), if any.

In both a sad and interesting way, Muhimana provides examples of how of prior relationships precipitated sexual violence. Notably, at least according to the factual findings, none of these relationships was sexual in nature. In the words of one witness found credible by the tribunal, the Perpetrator was a “very close friend of the family.”48 If shown, this factor could assist the defense by dispelling the notion that a “coercive environment” existed. Conversely, it could also demonstrate a unique environment of coerciveness inuring from personally damaging knowledge possessed by the defendant.

The tribunals do not appear to place any particular emphasis upon it, although that may have more to do with the fact that no defense team tried to push forward with a theory premised on relational familiarity for that particular incident. It is included here given its potential relevance.

E. Operationalizing the Test for Coercive Circumstances

A factor test does not tend to offer anything close to precision, and this test is no different. It does allow capture, however, of those factual scenarios where mass rape occurs without an obvious use of force or threats thereof, and a specific act of coercion isn’t present, e.g., detention. In those situations, without a showing of coercive circumstances, the ICC Prosecutor may find herself unable to prove an element of the crime.

The test above helps tease out the international criminal law as it has developed regarding inherent coercion in certain circumstances. First, it recognizes the crucial nature of demonstrating the number of others present for the encounter who possess at least some sympathy or loyalty to the accused. While the lack of at least passive assistance from others does not conclusively indicate the lack of a coercive environment, a showing of multiple actors aiding in some capacity (if only through their presence) is important for showing the inherent nature of the compulsion present.

Second, fresh fighting also provides persuasive indicia of a coercive environment; though that, too, is neither dispositive nor a requisite for showing the presence of a coercive environment. Third, intentional brandishing of weaponry likewise suggests the presence of coercive circumstances. Fourth, the existence of a prior relationship between the accused and the victim(s) could assist either the prosecution or the defense in their theory of the case.

III. Conclusion

An analytical framework for determining the presence of coercive circumstances must capture the various factual iterations that accompany crimes of mass rape. Many of them involve recent combat. For instance, in places where a conflict still remains,49 the specific context of the rapes that occurred may create a coercive environment under the Rome Statute’s EOC. Coercive circumstances can also be shown when a victim is outnumbered in a way that suggests a kind of quasi-detention. By taking into account the circumstances that produce significant, inherent compulsion, this paper’s test provides an analytically rigorous tool for determining which situations make voluntary and genuine consent no longer possible.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Susan Estrich, Teaching Rape Law, 102 Yale L.J. 509, 510 & 516 (1996). ↩

2. 2.

   Catharine A. MacKinnon, Defining Rape Internationally: A Comment on Akayesu, 44 Colum. J. Transnat’l L. 940, 956-58 (2006). ↩

3. 3.

   Vanessa E. Munro, From Consent to Coercion: Evaluating International and Domestic Frameworks for the Criminalization of Rape, in Rethinking Rape Law 17, 19 (Clare McGlynn & Vanessa E. Munro eds., 2010). ↩

4. 4.

   See Michelle Anderson, Reviving Resistance in Rape Law, 1998 U. Ill. L. Rev. 953, 985-87. ↩

5. 5.

   See Model Penal Code § 213.1. ↩

6. 6.

   See, e.g., In the Interest of M.T.S., 609 A.2d 1266 (1992). ↩

7. 7.

   MacKinnon, supra note 2, at 941. ↩

8. 8.

   Model Penal Code § 213.1, comment on 314. ↩

9. 9.

   Id. ↩

10. 10.

    Model Penal Code § 212.5. ↩

11. 11.

    Cal. Penal Code § 261(a)(2) (emphasis added). ↩

12. 12.

    § 261(b). ↩

13. 13.

    N.J. Stat. Ann. § 2C:14-2c(1). ↩

14. 14.

    MacKinnon, supra note 2, at 941. ↩

15. 15.

    German Criminal Code, Chapter 13, Section 177, available online (english translation). ↩

16. 16.

    See International Criminal Court, Elements of Crimes, Adopted and Entry into Force 9 September 2002, updated at Kampala, 31 May–11 June 2010, ICC-ASP/1/3 (part II-B) ↩

17. 17.

    Id. at Art. 7(1)(g)-1 2., Crime against humanity of rape (emphasis added). ↩

18. 18.

    International Criminal Court, Rules of Procedure and Evidence, Adopted and Entry into Force 9 September 2002, ICC-ASP/1/3, Rule 70(a). ↩

19. 19.

    See International Criminal Court, supra note 16, at Art. 7(1)(g)-1 2. ↩

20. 20.

    Norman J. Singer and J.D. Shambie Singer, Sutherland Statutes and Statutory Construction, § 47.16 (7th ed. 2007). ↩

21. 21.

    Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment, ¶ 688 (Sept. 2, 1998), available online. ↩

22. 22.

    Id. ↩

23. 23.

    Id. ↩

24. 24.

    Prosecutor v. Delalic et al., Case No. IT-96-21-T, Judgment, ¶¶ 478-79 (Nov. 16, 1998), available online. ↩

25. 25.

    Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgment, ¶ 185 (Dec. 10, 1998), available online (“The Trial Chamber finds that the following may be accepted as the objective elements of rape: (i) the sexual penetration, however slight:…(ii) by coercion or force or threat of force....”). ↩

26. 26.

    Id. ↩

27. 27.

    Prosecutor v. Kunarac et al., Case Nos. IT-96-23-T & IT-96-23/1-T, Judgment (Feb. 22, 2001), available online. ↩

28. 28.

    Prosecutor v. Kunarac, Case No. IT-96-23 & IT-96-23/1-A, Appeals Judgment, ¶ 129 (June 12, 2002). ↩

29. 29.

    Id. at ¶ 130 (emphasis added). ↩

30. 30.

    Id. ↩

31. 31.

    Prosecutor v. Muhimana, Case No. ICTR 95-1B-T, Judgment (Apr. 25, 2005). ↩

32. 32.

    Id. at ¶ 546. ↩

33. 33.

    MacKinnon, supra note 2, at 957-58. ↩

34. 34.

    See Akayesu, supra note 19, at ¶¶ 688, 692, & 693. ↩

35. 35.

    Kunarac, supra note 26, at ¶ 130. ↩

36. 36.

    Akayesu, supra note 19, at ¶ 688. ↩

37. 37.

    Id. at ¶ 545 (citing Furundzija, supra note 25, at ¶ 271). ↩

38. 38.

    Constructive captivity, a term I have invented to describe the ability to constrain an individual’s freedom, is distinguished from “detention” by its informal nature. ↩

39. 39.

    Id. at ¶ 18, 22, & 23. ↩

40. 40.

    Id. at ¶ 552. ↩

41. 41.

    Id. at ¶ 551-52. ↩

42. 42.

    See Akayesu, supra note 19, at ¶ 688 (including the presence of soldiers at a governmental compound where a group of refugee Tutsi women were staying). ↩

43. 43.

    Id. ↩

44. 44.

    Muhimana, supra note 31, at ¶¶ 552-53. ↩

45. 45.

    Id. ↩

46. 46.

    Id. ↩

47. 47.

    Id. ↩

48. 48.

    Id, at ¶ 18. ↩

49. 49.

    Recent reports push back against the notion that Eastern DRC has emerged from a conflict that has raged over a decade. See Stephen Castle, In Congo, Self-Defense Can Offer Its Own Risk, NY Times, Mar. 28, 2012, at A4. ↩