On the rape of men in the context of forced marriages at the Extraordinary Chambers in the Courts of Cambodia

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On December 23rd, 2022, the Supreme Court Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) published its full appeal judgment in the Samphân KHIEU case. The Supreme Court Chamber mostly upheld Samphân KHIEU’s conviction, including for forced marriages as crimes against humanity of other inhumane acts. The Supreme Court Chamber, however, reversed the Trial Chamber’s findings that men were not victims of rape or other inhumane acts through sexual violence. It considered that male victims indeed suffered forced sexual intercourse.

Prosecuting sexual violence against men and boys in front of international courts and tribunals is challenging. Sexual crimes against men are often mentioned but not characterized as sexual violence or, worse, mentioned but without any consequences, merely to “set the scene” (see Sivakumaran, pp. 273-274, see also Eichert). The International Criminal Tribunal for the former Yugoslavia (ICTY) never convicted anyone of rape and only once of sexual violence (Ranko Češić case). Different forms of rape (anal and oral) were charged as other inhumane acts (Duško Tadić case), persecutions (Blagoje Simić  and al. case) or were even dropped altogether (Stevan Todorović case). The Special Court for Sierra Leone’s (SCSL) case-law is similar (see Alex Tamba Brima and al. case and Issa Hassan Sesay and al. case). Because the International Criminal Court’s Elements of Crimes’ definition of rape is gender-neutral, it was hoped that the prosecution of sexual violence against men and boys would be made easier. However, sexual violence against men has been condemned, as such, only in the Ntaganda case. Jean-Pierre Bemba’s conviction for the rape of men in first instance was praised as “the first time in international criminal law where sexual violence against men is recognized as rape” (see Katsimardou-Miariti), but he was acquitted on appeal. Trial Chamber IX refused to include charges relating to sexual violence against men and boys in the Dominic Ongwen case as they had not been included in the confirmation of charges.

The ECCC Supreme Court Chamber’s decision is therefore most welcome as it explicitly recognises that men can be victims of sexual violence (see also O’Brien). Under the Khmer Rouge regime, couples were forcibly married and, after the wedding ceremonies, arrangements were made for the newly wedded couples to “sleep in an assigned location specifically to have sexual intercourse.” Militiamen were ordered to “monitor the couples at night to ensure that they had sexual intercourse.” If the couple failed to consummate the marriage, they were “re-educated or threatened with being killed or receiving punishment” (case 002/02, appeal judgment, § 1341).

The Trial Chamber considered that the women who had been forced to marry and consummate the marriage were victims of rape but that their husbands were not because under the applicable law, a rape victim had to be sexually penetrated. In the case at hand, the male victims were penetrating their wife, rather than being penetrated themselves and therefore could not be considered rape victims. When examining whether the male survivors were victims of another international crime, the Trial Chamber considered that “in the absence of clear evidence concerning the level of seriousness of this kind of conduct and of its impact on males, the Chamber […] is unable to reach a finding on the seriousness of the mental and physical suffering suffered by these men” (case 002/02, judgment, § 3701). In the Trial Chamber’s eyes, men were indeed subjected to forced sexual intercourse, but their mental and physical suffering was not serious enough to reach the threshold of other inhumane acts. For the exact same facts, women’s suffering was considered severe enough to warrant a criminal condemnation, but not men’s.

A third-party forcing a man and a woman to engage in sexual intercourse in the context of forced marriage was uncharted territory. The Supreme Court Chamber noted that “incidents of forced marriage in international criminal law have involved “husband” perpetrators and female “wife” victims”” and that “case law involving male victims of forced sexual intercourse is uncommon” (§§ 1183 and 1229). It was therefore particularly important to set a strong precedent, which the Supreme Court Chamber did by unequivocally declaring that the Trial Chamber made a “particularly prominent error” by treating women and men differently “with regard to identical factual circumstances” (§ 1590).

The Supreme Court Chamber considered that the Trial Chamber erred in examining whether the charged conduct constituted rape as an independent crime against humanity. Rather the Trial Chamber should have “considered whether the charged conduct had occurred in fact and whether this conduct otherwise met the elements of crime of other inhumane acts,” namely an intentional act or omission that causes serious mental or physical suffering or injury or constituted a serious attack on human dignity (§§ 1220 and 1434).

When examining those elements of crimes, the Supreme Court Chamber found that, even if they were alternative, they were both fulfilled. Indeed, when looking at mental or physical suffering, the Supreme Court Chamber highlighted that “there is no requirement that physical harm” occurred, thus focussing on the mental suffering endured by male victims, to avoid possible criticism that the physical effects of forced sexual intercourse on a woman can be more severe than on men (vaginal tearing and bleeding or pregnancy – as noted in the Co-Prosecutors’ appeal, § 38). The Supreme Court Chamber found that “it is impossible to envisage how non-consensual sexual intercourse would not be, at a minimum, mentally harmful” (§ 1554). It further noted that the Trial Chamber had “relied on identical findings of fact, the occurrence of forced sexual intercourse, to find that female victims had experienced serious mental or physical suffering or injury.” The Trial Chamber had indeed examined cases of forced sexual intercourse against men. To only give an example, MOM Vun testified that militiamen held her husband’s penis and forced it into her “thing”, while at gunpoint. For the Supreme Court Chamber, “this evidence was of direct relevance […] and should have been considered” (§ 1562).

As for the second element of crimes of other inhumane acts, a serious attack on human dignity, the Supreme Court Chamber noted that sexual violence has “commonly been considered as [a] violation[] of personal dignity” by international courts and tribunals (§ 1575). It considered that the fact the forced sexual intercourse occurred after having been subjected to “the misery of forced marriage, […] [being] forcibly relocated and monitored by armed militia” further exacerbated the humiliation (§ 1578). The women and men forced to consummate their marriage were therefore all victims of forced sexual intercourse as a crime against humanity of other inhumane acts.

In its previous case 001, the Supreme Court Chamber had found that although in the 1970s “rape was not a distinct crime against humanity” under international customary law and treaties, the accused could be convicted of rape as a crime against humanity of torture (case 001, appeal judgment, § 180). The Supreme Court Chamber could therefore have applied this case law to the present case, upheld the Trial Chamber’s findings when it came to the rape of women and expanded it to male victims.

The difficulty here was that in the case 001 the ECCC had defined rape as “the sexual penetration, however slight of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or the mouth of the victim by the penis of the perpetrator”, referring to the definition given by the ICTY in its Kunarac case (case 001, judgment, §362; appeal, § 208). According to the Trial Chamber in the case at hand, and this aspect was not overruled by the Supreme Court Chamber, the understanding of rape in 1975 in Cambodia excluded victims penetrating rather than being penetrated. In application of the principles of legality and non-retroactivity, men could not be recognised as victims of penile rape. Not wanting to differentiate between the victims of the same crime just based on their sex, the Supreme Court Chamber thus opted for the other inhumane act of “forced sexual intercourse” instead of rape as torture.

The qualification of forced sexual intercourse also allowed the Supreme Court Chamber to recognise transgendered women as victims of the crime. Discussing the case of SOU Sotheavy, a biological male who self-identifies as a woman, the Supreme Court Chamber noted that, in addition to the mental and/or physical pain other husbands endured, SOU Sotheavy also suffered because she was forced to “dress and appear as a man, […] [and] engage in sexual intercourse involving the penetration of a biological woman.” She testified that this was the only time she had sex with a woman. According to the Supreme Court Chamber, the Trial Chamber should have further developed her experience when discussing serious mental or physical suffering or injury caused to women (§§ 1529 and 1558).

Interestingly, although the Supreme Court Chamber recognises that men can be victim of sexual violence, the wording of the judgment hints to the fact that sexual violence is still perceived as being committed by male perpetrators against female victims. Indeed, the Chamber noted that “male victims experience a distinctive humiliation, in being forced to penetrate their wives. […] [W]hen victims are forced to victimise others, it subjects them to serious indignity” (§§ 1581 and 1586). Thus, for the ECCC, the male victim was somehow the one forcing the sexual intercourse upon the female victim rather than both being equally victimised and victimising.

In the case at hand, because the crimes were committed in the 1970s and in light of the principle of legality, the Supreme Court Chamber could not have recognise the rape of males. At the time, and still today, most countries do not recognise male rape, especially penile rape (Centre for African Justice, Peace and Human Rights (CAJPHR) and ICRC, pp. 17-18). As such, the Supreme Court Chamber’s decision to find a crime that would apply equally to men and women should be praised.

In future cases, however, when possible, the accurate qualification of rape should be used rather than forced sexual intercourse. As such, the Elements of Crimes  of the International Criminal Court expressly notes that the concept of invasion of the victim’s body for the characterisation of rape is “intended to be broad enough to be gender-neutral” (footnote 15, see also on gender-neutrality Gender Security Project). Recognising that men and transgender women can be victims of rape is important. Pre-existing stigmatisation about sexual violence and the stereotypical place of men, perceived as invulnerable heterosexual combatants, and women, perceived as passive victims, already make the investigation of sexual crimes against men difficult (CAJPHR and Vale). If perpetrators are acquitted or condemned of what can be perceived as a lesser crime, survivors could be even more reluctant to come forward and sexual crimes would remain unpunished.

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