Sexual Violence Beyond Reasonable Doubt: Using Pattern Evidence and Analysis for International Cases


Aranburu, Xabier Agirre. 2010. "Sexual Violence Beyond Reasonable Doubt: Using Pattern Evidence and Analysis for International Cases." Law Social Inquiry 35 (4): 855-79.

Author: Xabier Agirre Aranburu


Establishing the pattern of crime is fundamental for the successful investigation of international crimes (genocide, war crimes, and crimes against humanity). A pattern of crime is the aggregate of multiple incidents that share common features related to the victims, the perpetrators, and the modus operandi. Pattern evidence and analysis have been used successfully, mainly in the investigation of large-scale killings, destruction, and displacement; the use for sexual violence charges has been remarkably more limited. There is a need to overcome this gap by setting proper methods of data collection and analysis. At the level of evidence collection, under-reporting should be addressed through victimization surveys or secondary analysis of data available from different sources. At the level of analysis, the available evidence needs to be subject to impartial examination beyond the pre-conceptions of the conflict parties and advocacy groups, in compliance with scientific standards for quantitative, qualitative, and GIS (Geographic Information Systems) methods. Reviewing the different investigative experiences and jurisprudence will help to set the right methodology and contribute most efficiently to putting an end to the impunity regarding sexual crimes.

Keywords: sexual violence, criminal investigations, law



"The investigation of international crimes often requires means of evidence and analysis able to show the series of incidents as a whole and to determine whether they have enough in common to be considered a relevant pattern of crime. Such pattern evidence and analysis, from expert testimony to statistics and crime mapping, have been used successfully mainly for killings and mass destruction and displacement, but their use for sexual violence charges has been remarkably more limited. As Susana SaCouto and Katherine Cleary (2009) have observed, 'Unfortunately, while the ad hoc tribunals have used circumstantial or pattern evidence to establish that an accused ordered certain crimes, a review of sexual violence and gender-based cases before these tribunals indicates that they appear more reluctant to do so in these types of cases' (353)." (2)

 "The record of the ICTR has been assessed as 'shameful' because 'crimes of sexual violence have never been fully and consistently incorporated into the investigations and strategy of the Prosecutor's Office' (Nowrojee 2007, 370). n4 Concerning both the ICTR and ICTY, according to expert assessment, there has been a 'tendency to require that the prosecution meet a higher evidentiary standard in cases of sexual violence and gender based crimes' (SaCouto and Cleary 2009, 356). As an experienced practitioner, I have seen professionals refuse to deal with allegations of sexual violence, neglect the relevant evidence, or set higher standards for evidence on a number of occasions." (3)

"The reluctance to investigate sexual violence appears to result from two main factors: lack of awareness and sensitivity among teams usually led by senior male officers and a certain taboo or embarrassment when dealing with intimate aspects of our bodies and minds. Researchers from the field of cognitive psychology and the psychology of law could probably assist in analyzing such prejudices and suggest corrective measures (the most obvious being evaluation at the recruitment stage, training, clear policies and standards, appointment of designated specialized staff, and gender balance in teams)." (3)

"There are at least four notions in the advocacy literature that criminal investigations need to considercritically: sexual violence is not prevalent in every conflict, it is not necessarily a strategic choice as a 'weapon of war,' underreporting is not an axiomatic universal fact, and women are not the only victims." (4)

"The problem of underreporting seems to be particularly acute among male victims since, according to the United Nations Office for the Coordination of Humanitarian Affairs (2008), 'there is an extremely limited awareness of, and knowledge about, sexual violence against men and boys in conflict among the humanitarian and sexual violence research community' (2). In spite of all the available information, male victims are entirely ignored in the key resolutions adopted by the UN Security Council in relation to sexual violence in armed conflicts (Resolutions 1325, 1820, 1888, and 1889, adopted between 2000 and 2009)." (6)

"Factual typologies, while necessarily situation specific, may be assisted by consideration of the following very frequent types:   1. Opportunistic: As discussed above, a type of sexual looting decided by the direct perpetrator, who aims primarily at his own sexual satisfaction while taking the opportunity offered by the defenselessness of the victim and possibly other factors.  2. Strategic: when used as a means to terrorize, expel, or subjugate the victim, and possibly her or his community. This may become apparent with conducts that may not give sexual satisfaction to the perpetrator (e.g., [*870] sterilization, mutilation, or penetration with objects) or when the aggression is publicized with an intent to offend the wider population.  3. Captivity: Scenarios of sexual violence in conditions of captivity combine opportunistic and strategic aspects, since the aggression may be decided by the direct perpetrator for his own satisfaction, while the opportunity to abuse is systemically constructed by those who established the captivity regime. This type of crime may include scenarios of abduction, sexual slavery, abuse within detention facilities, forced 'marriage,' or sexual abuse of child soldiers." (9-10)

Topics: Armed Conflict, Gender, Women, Men, Justice, Crimes against Humanity, Impunity, Military Forces & Armed Groups, Militaries, UN Security Council Resolutions on WPS, UNSCR 1325, UNSCR 1820, UNSCR 1888, UNSCR 1889, Sexual Violence, SV against Men, SV against Women

Year: 2010

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