The resistance requirement in the prosecution of rape in Rwanda

Under Rwandan law consent does not require physical resistance, as explained in Chapter 2. Despite this, the study revealed a persistent application of the resistance requirement in Rwandan judicial practice. This finding is based on the review of case files, as well as analysis of the interviews with the legal practitioners. For instance, the vast majority of the elite participants stated categorically that victim resistance during the assault is essential to establish rape. One interviewee, JUDGE4, simply stated that “without victim resistance, [they] do not consider rape.” In dismissing cases where the victim did not resist, some were concerned that evidence of force used by the assailant was difficult to find in such cases. Many others merely claimed that the absence of resistance was indicative of victim consent. For example, PROSEC9 stated that:

When the complainant is adult and she did not resist we immediately consider that she consented and that she made the accusation of rape because of some other misunderstanding. (PROSEC9)

LAWYER5 similarly noted:

In cases where the complainant did not resist it is considered that she has consented especially if the complainant is an adult. (LAWYER5)

Commenting on the issue, one female judge laughed and exclaimed:

“If the woman does not resist, for example she does not scream or attempt to fight, then it means that she consented, especially given that Rwandan women do not say expressly ‘yes’ to men’s sexual advances” (JUDGE7)

Such comments illustrate the common belief that silence means consent. As we have seen above, such beliefs can carry damaging implications for victims of rape.

From the elite interviewees’ comments it was clear that they meant by resistance either a physical struggle or at least a loud scream. They conceded that in some exceptional cases it could be understandable that the victim did not resist, such as cases of persons with cognitive impairments or very old and weak women. PROSEC1 gave the following example:

I remember the case of a very old woman severely injured by the defendant. The police asked her why she did not at least bite him. She replied that she had no teeth. The court convicted him.

Analysis of case files also showed that prosecutors’ and judges’ tendency in cases of absence of victim resistance was to conclude that the rape did not occur. For example, in PP v. Byararangiye the complainant did not scream, so the court reasoned as follows: “What happened is a drama because an adult person cannot be raped and fail to scream.”667

The danger of such an understanding is that when a victim is unable to scream or chooses to submit after realising that it is the best option for her in order to survive or sustain less injury, any reports of rape are likely to be dismissed. Further evidence of this finding was found in multiple case files. For example, in the case of N.J.668 the complainant was very sick and was being treated by a doctor who allegedly raped her during the treatment while her mother was waiting outside the treatment room. Asked if she screamed, the woman answered that she attempted to but her voice could not be released because of her condition. In spite of this, the prosecutor concluded: “If she had been raped, she would have screamed and her mother who was nearby would have helped her.”669 The case was consequently dropped. In another case the complainant stated that she could not scream as she was threatened by the assailant (witnesses confirmed that the suspect was armed with a knife), yet the judge noted that “...it is not understandable that she was raped while she did not call for help.”670

In many cases prosecutors and judges additionally expected rape victims to fight with their utmost energy to prevent the intercourse before it could be accepted that they did not

667

PP v. Byararangiye Leonard, 30 October 2014, para. 8.

668

Prosecution case file RONPJ 54590/S1/MD/MOB.

669

Report on provisional closure of case file, 21 September 2015, para. 7.

670

consent to the sexual conduct. They also expected that the resistance should be sustained throughout the duration of the attack, similar to the decision of the Supreme Court of Wisconsin in 1906 quoted above. A case in point is PP v. Ntahomvukiye.671 In this judgment, the court decided that the sexual intercourse in question “was consensual” for a number of reasons, including that:

Ntahomvukiye had enough time to put on condoms. The first was torn down and he found more time to put on a second one while she was looking on.672

In a similar case, one prosecutor dismissed the complaint because it was “not understandable that he [the accused] could find time to put on a condom.”673 In another case, the prosecutor noted:

She never screamed. In addition, she stated that he raped her two times, which is impossible because after the first rape she would have tried to flee.674

According to this understanding, the victims were supposed to permanently resist the assault. This interpretation of non-consent does not conform to the reality of rape, as it has been established that not all rape victims physically resist the attack (see discussion above). Further, there is no evidence that those who do struggle to prevent the rape fight persistently from the beginning to the end of the assault. On the contrary, empirical evidence shows that victims may resist but submit out of exhaustion or discouragement.675 These examples also reveal the lack of awareness that a rape victim may be in a state of powerlessness or inhibition, which may prevent her from resisting physically or verbally. Further, they expose the failure to conceive that a woman may express non-consent in other ways than physical resistance or screaming.

The study of the cases further revealed that the screaming expected of rape victims must be loud enough to be heard at a good distance. In many instances, if the incident was alleged to have happened in a neighbourhood or at a time when people were around and

671 PP v. Ntahomvukiye Emmanuel, RP 0029/12/TM. 672 Ibid, p. 4. 673

Prosecution case file RONPJ 29509/S1/2015/JM/NE.

674

Report on provisional closure of case file, 26 February 2015, Prosecution case file RONPJ 009374/S2/15/BB/MA.

675

that the complainant was not rescued, it was assumed that she did not scream and consent was presumed. For example, in one case,676 the prosecutor concluded:

The complainant says that she screamed until she lost her voice then he raped her but at that place where N.B. [the accused] lives there are many people living around. Therefore, it is not understandable how she can scream to the point of losing her voice and not be rescued while it happened in day time.677

Such attitudes highlight how justice professionals continue to hold victims responsible for the lack of assistance of other people. It reveals the failure to recognise that women may call for help and not be heard, or even be heard but not be rescued. Each of these misconceptions about victim resistance are profoundly damaging to rape complainants. They reinforce the myth that women are prone to making false rape allegations (see Chapter 3) and dismiss women’s experiences of sexual violence. They consequently aggravate the harms experienced by complainants while simultaneously contributing to the discharging of rape offenders.

Nevertheless, it is worth noting that there are legal practitioners in the Rwandan criminal justice system who are not categorical about the resistance requirement. A small minority of the elites interviewed appreciated that a rape victim may be unable to resist depending on the circumstances and that the lack of resistance should not bar conviction for rape. JUDGE11 stated that:

If the victim does not resist, this should not rule out rape because she may be unable to do so for various reasons.

JUDGE8 also remarked:

A woman may find herself in a state of defencelessness. In this situation she may submit because she had no other alternative. This is rape.

Unlike PROSEC5 and JUDGE6, JUDGE1 emphasised that: “If the victim says ‘no’ and the defendant proceeds with the sexual intercourse then he must be convicted of rape.” Yet it was only this single judge who adopt the “no means no” model of rape explained above.

676

Prosecution case file RONPJ 009230/S2/15/BB/UJP.

677

The review of the cases also revealed one exceptional judgment which did not require victim resistance to establish the lack of consent. The decision in PP v. Uwizeyimana678 is the only case of conviction without evidence of victim physical or verbal resistance identified out of the sample of 175 court rulings analysed in the present study. In this unique case the defendant did not use force to obtain sexual intercourse and the victim did not resist. The court convicted the defendant based on the following:

When Uwizeyimana Jerome [the defendant] was interrogated by the prosecutor, he confessed in these terms: ‘The girl had been told to sleep in the living room. She found me in the bedroom where I was sleeping and told me that she was feeling cold. She then came and shared the bed with me. I touched her tummy and she did not react, then I pulled up her skirt and went upon her without exchanging any word with her and immediately proceeded to have sexual intercourse.’ Uwizeyimana Jerome also confessed before the judge of detention that he had a sexual relationship with M.C. [the complainant] without mutual agreement.679

This judgment is very significant, although the case is unusual with respect to evidentiary matters because on top of the medical evidence provided, the defendant confessed and was later tried in absentia. It shows that the lack of consent does not always require victim physical or verbal resistance. Nevertheless, the decision is challengeable based on the state of current Rwandan law, which requires force, threat or fraud to prove the lack of victim consent.680 In this case it was found that the woman did not consent to the sexual intercourse but a strict application of the law would have dismissed the offence of rape despite the lack of consent because the defendant did not use force, threat or fraud. The judgment reveals not only a gap in the law but also the misconception of consent among the majority of the legal practitioners interviewed. If one endorses the understanding of many professionals shown above, the victim’s passivity in this case may be interpreted as consent. This would be reinforced by the fact that the woman freely joined the defendant on his bed. If the defendant had been present and had not confessed,

678

PP v. Uwizeyimana Jerome, RP 0445/15/TGI/MHG, 28 January 2016.

679

PP v. Uwizeyimana, para 5.

680

these weaknesses would most likely have been exploited by his defence lawyer and they could perhaps have influenced the verdict.

Notwithstanding the potential legal challenge to this decision and the speculations about an alternative outcome of the trial, the Uwizeyimana judgment is outstanding. Its merits are that it did not focus on the complainant to enquire what she did to show non-consent or why she did not fight to avoid the rape. It found that consent was absent based principally on the actions of the defendant. This is what has been constantly advocated for by feminists to ensure women’s sexual autonomy and preserve them from being the focus of the trials. Had this judge concentrated on the complainant’s behaviour rather than the defendant’s actions, he would possibly have acquitted him, given the tendency revealed above, since the complainant had not expressed non-consent. This would have been unfair because in spite of her passivity, this woman did not consent to the intercourse and was in fact raped.

The judge in this case seems to have adopted a position somewhere between the communication and the negotiation models. Both theories require communication between the parties about the sexual relationship. Therefore, the intercourse that happened in this case may not be legitimate under these models because communication never took place. This judge’s stance better protected the victim’s sexual autonomy because it did not infer sexual consent from the complainant’s silence and passivity, her act of joining the defendant on the bed, and her willingness to sleep on the same bed with him the whole night. The “no means no” and the “affirmative consent” models would have failed the victim in this case because they could have allowed the above victim’s acts to be interpreted as consent. This judgment is a signal that Rwandan law needs amendment in order to more effectively protect women against sexual violence.

5.3. VICTIM BEHAVIOUR AFTER RAPE

The literature on rape reveals traditional legal expectations in many jurisdictions that in the aftermath of rape the victim had to promptly report the assault to the authorities. The present section analyses this requirement in the broader literature before exploring the issue in the context of Rwanda.