THE PROSECUTOR v. FRANCISCO SOARES
Case No. 14/2001
United Nations Transitional Administration in East Timor
Special Panel for the Trial of Serious Crimes in the District Court of Dili
September 12, 2002
Judge Sylver Ntukamazina
Judge Benfeito Mosso Ramos
Judge Maria Natercia Gusmao Pereira
Ms. Brenda Sue
Mr. Stuart Alford
Mr. Eric MacDonald
Ms. Molly Groom
Ms. Beatriz Sanchez
Ms. Marcia Sarmento
Gender Keyword(s): Coercion, Consent, Corroboration, Rape
Procedural History: On May 15, 2001, an indictment was filed against Francisco Soares in the Dili District Court ( 4) charging him with committing one count of rape based on allegations that on or about September 12, 1999, Soares, a soldier of the Indonesian National Army (TNI), allegedly forced a woman (alias “X”) to ride with him on his motorcycle to Usuleu Beach, where he forced her to have sexual intercourse with him against her will two times ( 22). Soares was arrested and detained on April 23, 2001, then granted conditional release on May 24, 2001 ( 7). Soares stated at a November 13, 2001 preliminary hearing that he had had sexual intercourse with the alleged victim, and also stated that “he was tempted and fell into temptation” ( 10). After consulting with his Public Defender, Soares entered a plea of not guilty (id.). The trial began on March 23, 2002 ( 1). This is the digest of the written Judgment and Sentence, issued by the Special Panel on September 12, 2002 ( 16).
Disposition: The Special Panel finds Soares guilty of the single count of rape that was charged, with Judge Ramos partially dissenting ( 59). In determining the Defendant’s sentence, the Panel considers both that the accused “took advantages [sic] of the circumstances prevailing in East Timo[r] in September 1999,” and that his victim was “helpless” and “already had a boyfriend” as aggravating circumstances in this case ( 66). It does not consider the fact that the accused is married and has children as a mitigating circumstance “in a case of this gravity” ( 67). Taking into account the sentencing policy of the United Nations Transitional Administration in East Timor (UNTAET) and mindful that the objective of the court is to “promote national reconciliation and the restoration of peace,” the Special Panel sentences Soares to four years of imprisonment with credit for time served ( 69-74).
Key Gender-Based Holdings:
• As noted below in the section on “Consent,” the Special Panel recognizes the fact that “the law does not require physical force” to establish rape and analyzes the concept of coercion within the broader circumstances surrounding the allegations of sexual assault ( 42-43). Specifically, while the Panel does not use the term ‘coercive circumstances’ or cite other tribunals’ analysis on this issue,1 the Panel notes that the “[t]he use of force or threat of force to oblige X to have sexual intercourse have to be considered within the circumstances prevailing in East Timor at that period” ( 44). Thus, the Panel stresses that the position of the accused as a TNI soldier and local militia commander meant that he had a say regarding whether X’s family stayed in the relative safety of 744 barracks during the conflict ( 46) and finds that this made X’s fear of the accused reasonable, as she understood both herself and her family were being threatened by Soares if she did not have sexual intercourse with him ( 46-47). The victim stated: “I was very afraid….He said if you refuse your family are the one’s [sic] at risk. They would stay at the base and their lives were threatened there” ( 46).
• Referencing Section 34.3 of UNTAET Regulation 2000/30,2 which governs the rules of evidence in cases of sexual assault, the Panel notes: “[T]he law does not require, at any time, that the victim needs to voice objection, to shout or object. The accused has to establish that the victim consented, and before evidence of the victim’s consent is admitted, the accused shall satisfy the Court that the evidence is relevant and credible” ( 33). Additionally, the Special Panel notes that pursuant to UNTAET Regulation 2000/30, in the case of sexual assault, consent may not be used as a defense if the victim “has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression” ( 43). As discussed above under “Coercion,” this approach echoes the concept of “coercive circumstances” vitiating consent as discussed in the jurisprudence of other international tribunals.3 The Special Panel finds that it is undisputed that the accused took X on his motorbike to Usuleu Beach, where the two engaged in sexual intercourse two times, and finds the only issue in the case to be one of consent of the alleged victim ( 25-30).
• The Defense argued that X agreed to have sexual intercourse with Francisco Soares, otherwise she could have shouted or screamed, that she went willingly with the accused and “did not do anything to prevent this incident, and she had a lot of opportunities to do it” ( 24). Similarly, during the preliminary hearing, the accused said: “It was not forced because I did not bring any gun or a [sic] any sword; if she did not want to, she should have shouted or screamed. She did not scream or shout; I did not force, actually I did not force” ( 31). The Defense questioned how it was possible that X “was almost all day with Francisco Soares, passed through various places, he was not armed and she had not any opportunity to try to escape or asked [sic] for emergency assistance, and knew what was going to happen since at that moment the accused proposed to maintain sexual relationship?” ( 32).
• Rejecting that argument, the Special Panel reiterates that “the law does not require, at any time, that the victim need to voice objection, to shout or object” and that “[t]he accused has to establish that the victim consented” ( 33).
• The Special Panel also points out discrepancies between the testimony of the accused on this issue at the preliminary hearing and the trial hearing, in contrast with the consistency of X’s account of the events, and thus concludes “the absence of any consent for X to have sex with the accused person is also shown many times in the testimony of the victim” ( 37-39, 41).
o For example, the Special Panel notes in its judgment that Soares testified that X “removed her own skirt” and that he thought she wanted to have intercourse “because she was quiet” ( 38- 39). However, on cross examination, the accused admitted that X cried after he asked for sex the second time and after the act itself ( 35). He said, “I gave her 200,000 Rupiah because I felt sorry for her, because she was crying” (id.). He also admitted that “she could not stand anymore, so she agreed to have sex.” Moreover, the Special Panel refers to the Preliminary Hearing at which the defendant stated that that he “committed [the sexual intercourse] against the will of X” ( 37).
o The Panel also notes that: X testified that she screamed and cried when Soares asked her to have sexual intercourse with him ( 34); she said, “I could only cry, I could not defend myself” (id.); she testified that the accused held her leg to keep her from leaving and told her that if she refused his advances her “family….may be threatened” ( 41); and she testified that when the accused removed her underpants and trousers, she pleaded “don’t, please don’t do that” (id.).
• Considering the totality of the evidence, the Special Panel is convinced from the testimony produced at trial that X did in fact scream and did not want to have sexual intercourse with the accused ( 33, 36, 40). Furthermore, given the “use of force or threat of force” by the accused, coupled with the political situation in East Timor on September 12, 1999, the Special Panel concludes that X had reason to be afraid of the accused ( 44-48). Therefore, it finds that “X was forced by the circumstances which Francisco Soares created and by actions and threats he made into having sexual intercourse with him” ( 44). The findings above support the conviction of Francisco Soares of rape ( 55-59).
• The Panel recognizes that there were no eyewitnesses to the incident itself, but takes into consideration the testimony of witnesses who observed both the accused and X after the incident took place and concludes that these three witnesses corroborate the victim’s version of events in their descriptions of the victim’s appearance and demeanor as “distressed,” “upset,” “dirty, tired, and weak,” as well as her claim that she “did not want to talk to anyone” ( 50-54).
• Section 9 of the UNTAET Regulations states that, with regard to charges of sexual offenses, “the provisions of the applicable Penal Code in East Timor shall, as appropriate, apply.”4 Accordingly, the Special Chamber notes that, in this case, it has applied Article 285 of the Penal Code of Indonesia (PCI), insofar as that provision does not contravene internationally recognized human rights standards and the mandate of UNTAET ( 18-20). Article 285 of the PCI, in turn, states: “Any person who by using force or threat of force forces a woman to have sexual intercourse with him out of marriage, shall, being guilty of rape, be punished by a maximum of twelve years.”5 As discussed in the section on “Consent” above, X’s consent or lack thereof was at the center of the case ( 30). Based upon the Panel’s findings on that issue, the Panel finds the accused guilty of rape.
• In his partially dissenting opinion, Judge Ramos agrees with the finding of guilt for the charge of rape in violation of UNTAET Regulations and the PCI, but takes issue with the PCI’s definition of “rape” above (Ramos Dissenting Opinion, p. 15). He notes that the definition does not criminalize marital rape as it only punishes forced sexual intercourse that is committed outside of the context of marriage (id.). While the issue of marital rape was not directly relevant to this case, Judge Ramos expresses his view that the definition is incompatible with internationally recognized human rights standards as formulated in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Declaration on the Elimination of Violence Against Women, as well as the provision of the East Timorese Constitution that provides for gender equality (pp.15-16). In this regard, Judge Ramos stresses that UNTAET Regulation 1 of 1999 provides that, “[u]ntil replaced by UNTAET regulations or subsequent legislation of democratically established institutions of East Timor, the laws applied in East Timor prior to 25 October 1999 shall apply in East Timor insofar as they do not conflict with the standards [encompassed in human rights instruments] referred to in section 2,” which includes CEDAW (Ramos Dissenting Opinion, p. 16). Given the conflict between CEDAW and Article 285 of the PCI, Judge Ramos reasons that “to the extent that [Article 285] allows marital rape, [it] does not apply in East Timor” (id.). He also calls for legislative measures to be taken in order to “harmonize ordinary legislation with the letter and the spirit of the Constitution and internationally recognized Human Rights Standards” (id.).
• In determining a sentence, the Special Panel considers both that the accused “took advantages [sic] of the circumstances prevailing in East Timo[r] in September 1999,” and that his victim was “helpless” and “already had a boyfriend” as aggravating circumstances in this case ( 66). It does not consider the fact that the accused is married and has children as a mitigating circumstance “in a case of this gravity” ( 67).
1 See e.g., Kunarac Trial Judgment, 460 (defining the crime of rape to include a lack of consent and holding that “[c]onsent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances”); id. 646 (holding that that Witness D.B. was raped, even though she initiated sexual intercourse with the defendant, because her lack of consent should have been known by the defendant “given the general context of the existing war-time situation and the specifically delicate situation of the Muslim girls detained in Partizan or elsewhere in the Foca region during that time”). See also Kunarac Appeals Judgment, 129 (concurring with the Trial Chamber’s definition of rape and advancing the position that “[a] narrow focus on force or threat of force could permit perpetrators to evade liability for sexual activity to which the other party had not consented by taking advantage of coercive circumstances without relying on physical force”); id. 133 (concluding that the Trial Chamber was correct in its determination that “the coercive circumstances present in this case made consent to the instant sexual acts by the Appellants impossible” and rejecting the defendant’s appeal on this ground).
(1) has been subjected to or threatened with or has had reason to fear
violence, duress, detention or psychological oppression, or
(2) reasonably believed that if the victim did not submit, another person
might be so subjected, threatened or put in fear;
(c) before evidence of the victim’s consent is admitted, the accused shall satisfy the court, in camera, that the evidence is relevant and credible.