Universal-Womens-accesss-to-justice-Publications-Practitioners-Guide-Series-2016-ENG

V
WOMEN’S ACCESS TO JUSTICE FOR GENDER-BASED VIOLENCE 201
of a coercive environment”. In the presence of such force,
threat of force or coercion, or taking advantage of a coercive
environment, consent cannot be inferred by reason of any
words or conduct of a victim. 531 Neither can consent be inferred
from silence or lack of resistance of a victim. 532
The Elements of Crimes also used the term “genuine consent”,
which a victim cannot give “if affected by natural, induced or
age-related incapacity”. 533 Thus the legal term “consent” was
limited by important parameters so that the law could instead
recognize “voluntary and genuine consent”.
Again in the case of M.C. v Bulgaria, the European Court of
Human Rights drew on several precedents from international
criminal law relating to the prosecution of rape to conclude that
where rapists deliberately misled the applicant in order to take
her to a deserted area, this created an environment of
coercion 534 and that this was sufficient to overcome the sexual
autonomy of the victim. The Court noted that:
“In international criminal law, it has recently been
recognised that force is not an element of rape and that
taking advantage of coercive circumstances to proceed
with sexual acts is also punishable. The International
Criminal Tribunal for the former Yugoslavia has found
that, in international criminal law, any sexual
penetration without the victim's consent constitutes
rape and that consent must be given voluntarily, as a
result of the person's free will, assessed in the context
of the surrounding circumstances. While the above
definition was formulated in the particular context of
rapes committed against the population in the
conditions of an armed conflict, it also reflects a
531
International Criminal Court, “Rules of Procedure and Evidence”,
UN Doc ICC-ASP/1/3 (2002), Rule 70(a).
532
Ibid, Rule 70(c).
533
Elements of Crimes, above note 530, Article 7(1)(g)-1, footnote
16.
534
M.C. v Bulgaria, above note 528, paragraph 180.