Beyond Consent: Conceptualising Sexual Assault in International Criminal Law

in International Criminal Law Review
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Abstract

This article examines the development, definition and treatment of sexual assault in international criminal law over time. It charts the evolution of sexual assault as a crime, with particular focus on the relevant statutory provisions and jurisprudence of the ICTY, ICTR and ICC, noting that the recent characterisation of sexual assault as a genus crime including rape significantly broadens the scope of the offence. The article analyses some of the legal and conceptual problems arising from the use of non-consent as an element of sexual crimes, comparing the approach of the ad hoc tribunals with the (as yet untested) principles in the ICC's foundation documents. It is submitted that proof of coercion, rather than proof of non-consent, is the appropriate test to use in conceptualising crimes within the genus of sexual assault, and that consent should instead be raised as a defence where relevant.

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