Radical Rules: The Effects of Evidential and Procedural Rules on the Regulation of Sexual Violence in War
Aolain, Fionnuala Ni, Albany Law Review
"The horror of that moment," the King went on, "I shall never, never forget!"
"You will, though," the Queen said, "if you don't make a memorandum of it."(1)
The International Criminal Tribunal adjudicating war crimes committed on the territory of the former Yugoslavia has traversed unique thresholds since its creation.(2) It is the first international ad hoc tribunal since the Nuremberg trials; the first comprehensive criminalization of acts of violence committed during internal and external war deemed sufficiently abhorrent to warrant international regulation; it is a process which has sharpened the boundaries of international humanitarian law and is casting light on the murky shadows of sexual violence during warfare.(3) The Yugoslav conflict is exceptional because of the way in which violence against women has been widely exposed as a method and means of warfare, not ancillary to military objectives, but innately linked to them.(4) Much has been made of the media attention devoted to the sexual plunder of women during this conflict.(5) Equally, much energy was directed at ensuring that the substantive definition of criminal offenses in the Statute of the Tribunal(6) would adequately recognize the gravity of rape and sexual offenses against women.(7) The starting point of this Article is the inclusion of substantive legal recognition for the seriousness of sexual offenses committed against women during the Yugoslav conflict in the Statute of the Tribunal. Its examination, however, is not on the merits of these legal claims, but rather on the ancillary rules which support them.
The rules that support legal claims of sexual offenses are the Rules of Procedure and Evidence,(8) the existence of which is facilitated by Article 15 of the Statute of the Tribunal.(9) Little attention has been paid to the radical changes wrought by these Rules to the criminal adjudication of sexual offenses against women in the international legal arena.(10) This Article argues that substantive legal recognition of sexual offenses in their own right would have achieved very little, if the procedural mechanisms which apply to the conduct of criminal cases had not been subject to drastic re-evaluation. The rules of evidence which go to the trial of sexual offenses illustrate a chink of international recognition for the significance of process in the institutional treatment of gendered violence.(11)
Existing rules of evidence regulating the conduct of criminal trials concerning gendered violence have been subject to vocal and persistent criticism in many jurisdictions for their perpetuation of unstated social understandings regarding female and male sexuality.(12) Rape and sexual assault trials have been marked by the lack of female perspective in the courtroom and the application of a male standard.(13) As Susan Edwards points out: "It is in the rules of evidence and procedure that we find the reproduction of the precipitating construction of female sexual behaviour that makes a charge of assault by the complainant difficult to sustain."(14) The traditional doctrines of defense reflect this, i.e. that the woman should fend off a violent attack "like a man" or be considered unchaste and thus unworthy of legal protection for violation.(15) The "fresh complaint" doctrine reflects the difficulty for women in making a valid claim; the myth that the truly virtuous woman would immediately complain of any sexual violation.(16) Such views clearly do not account for the fear and reluctance of many women in identifying a personal violation, who publicly fear the prejudice, hostility and disbelief which would follow.(17) The Tribunal faced a dual task. First, to respond to the lacuna in legal definition of the forms of defilement against women as a matter of law during warfare. Second, the task of ensuring that the courtroom experience would be one that was fair to the victims of sexual violence while protecting the due process rights of any accused charged with sexual offenses. …