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Lack of Consent As the Constituent Element of Rape

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Lack of Consent As the Constituent Element of Rape 2 Lack of Consent as the Constituent Element of Rape An analysis of the International Obligations of Norway and how they affect the definition of Rape in the General Civil Penal Code of 1902 Candidate number: 216 Submission deadline: 01.06.14 Number of words: 38 732 Abstract The incorporation of the European Convention on Human Rights (ECHR) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) into the Human Rights Act, and transformation of the Rome Statute into the Norwegian Penal Code of 2005(NPC) has actualized the impact of international tendencies in regard of positive obligations under the Conventions to penalise any non-consensual activity as rape. Failure to comply with these international obligations provides different outcomes for the Member State Parties. At the present, the current definition of rape in Section 192 of the General Civil Penal Code of 1902 (GCPC) is in conflict with the international obligations of Norway, as it does not penalise non- consensual sexual activity as rape. The ECtHR stated in M.C v. Bulgaria that the Member State Parties have a positive obligation to penalise any non-consensual sexual act cf. Articles 3 and 8 of the ECHR. Failure to comply with this obligation may give rise to damage liability for the State of Norway towards individuals subject to non-consensual sexual activity. The Committee of CEDAW urged Norway in its Eight Periodic Report of Norway to: “Adopt a legal definition of rape in the Penal Code so as to place the lack of consent at its centre, in line with the Commit- tee´s general recommendation No. 19, and the Vertido case.” In the light of relevant domestic statutory law and case law, this recommendation can be interpreted as a specific provision under CEDAW and thus a positive obligation for Norway to undertake. Failure to comply with this ob- ligation might contribute to continued discrimination of women in law and practice. The Rome Statute was transformed into the Norwegian Penal Code (NPC) of 2005 chapter 16 penalising rape as war crimes and crimes against humanity. Rape is not specifically defined, but the prepara- tory works held that the specified provisions were to be interpreted in the light of, and in accord- ance with the international obligation. The definition of rape as a war crime and as a crime against humanity is at the present unresolved. There are currently pending cases before the Inter- national Criminal Court expected to bring clarity as to how rape is defined in the light of the Rome Statute. During the late 1990´s and beginning of the 21st century, three definitions of rape were issued by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Current trends of international law seem to favour the non-consensual definition of rape held by the ICTY in the Kunarac case. The object and purpose of transforming the Rome Statute into chapter 16 of the NPC was to prosecute war II crimes and crimes against humanity under Norwegian jurisdiction. Failure to revise or expand the definition of rape in the GCPC might prevent Norwegian Courts from convicting people accused of crimes against humanity and war crimes, contrary to the object and purpose of chapter 16 of the NPC. The situation with two different definitions of rape in Norwegian Criminal Statutes may be considered unsatisfactory. Even if there were no conceptual or systemic arguments decisively against maintaining this dual system, the International criminal solution may provide additional policy arguments in favour of redefining rape in the domestic Penal Code. The Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) confirms the international trend towards regarding lack of consent as the constituent element of rape. Case law, and reports from the ECtHR, Committee of CEDAW, ICTY, ICTR and ICC shows that these supranational organs refer to one another in deciding the common denominator of rape. The Constitution of Norway and the Supreme Court´s strict practice of the principle of legality limit the scope of the immediate affect of International Obligations in the realm of crimi- nal law, in favour of the accused. Fulfilment of the International Obligations of Norway is thus based on the consensus of the State. III Table of contents 1 INTRODUCTION ......................................................................................................... 1 1.1 The Subject Matter of the Thesis .................................................................................. 1 1.2 The Method and Structure of the Thesis ....................................................................... 2 1.3 Definitions .................................................................................................................... 3 1.4 Demarcation of Thesis .................................................................................................. 4 2 THE CURRENT DEFINITION OF RAPE IN THE GENERAL CIVIL PENAL CODE .......................................................................................................................... 5 2.1 The constituent elements of Rape in Section 192 of the General Civil Penal Code ..... 5 2.1.1 Introduction ..................................................................................................... 5 2.1.2 Section 192 litra a in the General Civil Penal Code ........................................ 6 2.1.3 Section 192 litra b in the General Civil Penal Code ........................................ 8 2.2 The Principle of Legality of Criminal Law in Norway .............................................. 12 2.2.1 No one may be convicted except according to law ....................................... 12 2.2.2 No one may be convicted based on customary rules ..................................... 13 2.2.3 “Law” in Article 96 of the Constitution is practiced more narrow than “law” in Article 7 of the European Convention on Human Rights ........................ 14 2.2.4 Article 97 cf. Article 96 of the Constitution absolutes the boundaries for criminal liability in Norway ......................................................................... 15 2.2.5 The Supreme Court of Norway practice a strict contextual interpretation of the principle of legality ................................................................................ 16 2.3 Summary and Conclusion ........................................................................................... 19 i 3 THE INTERNATIONAL CONVENTIONS INCORPORATED INTO THE HUMAN RIGHTS ACT SECTION 3 AND THEIR DEFINITION OF RAPE 21 3.1 The standing of the Human Rights Act in domestic Norwegian Law ........................ 21 3.1.1 Introduction ................................................................................................... 21 3.1.2 The Conventions incorporated into the Human Rights Act shall take precedence over conflicting provisions in other legislation ......................... 22 3.1.3 Article 110 c of the Constitution securing human rights as a source of law of significant weight and influence in domestic law ........................................ 24 3.2 The Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) ...................................................................................................................... 26 3.2.1 Introduction ................................................................................................... 26 3.2.2 The dynamic and teleological interpretation of the ECtHR constitutes new obligations for the Member States Parties under the ECHR ........................ 26 3.2.3 The weight of judgments from the ECtHR as a source of law in domestic Norwegian Law ............................................................................................ 28 3.2.4 The constituent elements of rape defined by the ECtHR, interpreted in the light of Articles 3 and 8 of the ECHR .......................................................... 30 3.2.5 Conflicting provisions between the definition of rape in Article 3 and 8 of the ECHR and the definition of rape in Section 192 of the GCPC cf. the Human Rights Act Section 3 ..................................................................................... 47 3.2.6 Positive obligation for the Member State Party to penalize any non- consensual sexual act ................................................................................... 59 3.2.7 Potential damage liability for the State of Norway towards individuals exposed to non-consensual sexual activity .................................................. 61 3.2.8 Summary and Conclusion .............................................................................. 65 3.3 The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) .................................................................................................................. 68 3.3.1 Introduction ................................................................................................... 68 ii 3.3.2 The weight of decisions, general comments and reports from the Committee on the Elimination of Discrimination against Women as a source of law in domestic Norwegian law .............................................................................. 69 3.3.3 The constituent elements of rape as defined by the Committee on the Elimination of Discrimination against Women interpreted in the light of
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