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204 PRACTITIONERS GUIDE No. 12
penis; vaginal or anal penetration of the victim with another
body part of the perpetrator such as fingers or fists; or
penetration of the victim’s anus or vagina with an object. These
are significant omissions as they also tend to leave out rape of
men and boys from the definition in criminal law.
Avoiding this restrictive approach, the International Criminal
Court regime defines rape as an:
“[invasion of] the body of a person by conduct resulting
in penetration, however slight, of any part of the body
of the victim or of the perpetrator with a sexual organ,
or of the anal or genital opening of the victim with any
object or any other part of the body”. 540 (emphasis
added)
This definition also covers situations where a male victim is
forced to penetrate another victim. A practice often used in
armed conflict is to force family members to rape each other.
Rape in detention as a form of torture
Where the perpetrator is a State agent, such as a police officer
or member of the security forces, rape has been recognized as
a form of torture, 541 whether or not the conduct is perpetrated
in custody or outside of a custodial situation. 542 In the case of
Prosecutor v Kunarac, Kovac and Vukovic, 543 the Appeals
Chamber of the International Criminal Tribunal for the former
Yugoslavia noted that “such detentions amount to
circumstances that were so coercive as to negate any
possibility of consent”. The Rome Statute Elements of Crimes
540
Elements of Crimes, above note 530, relating to Article 7(1)(g)-1,
Article 8(2)(b)(xxii)-1 and Article 8(2)(e)(vi)-1.
541
Aydin v Turkey (1997) ECHR 75, paragraphs 74-76: rape in itself
was identified as a form of torture in paragraph 86. See also Miguel
Castro-Castro Prison v Peru, above note 539, paragraph 310-312.
542
Raquel Martí de Mejía v. Peru, Inter-American Commission on
Human Rights Case 10.970, Report No 5/96 (1 March 1996).
543
Prosecutor v Dragoljub Kunarac, Radomir Kovac and Zoran
Vukovic, ICTY Case IT-96-23 & IT-96-23/1-A (12 June 2002),
paragraph 132.