Chapter 8—Offences against humanity and related offences

Division 268—Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court

Subdivision G—War crimes that are other serious violations of the laws and customs applicable in an armed conflict that is not an international armed conflict

268.87 War crime—sexual violence

(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator does either of the following:
(i) commits an act or acts of a sexual nature against one or more persons;
(ii) causes one or more persons to engage in an act or acts of a sexual nature;
without the consent of the person or persons, including by being reckless as to whether there is consent; and
(b) the perpetrator's conduct is of a gravity comparable to the offences referred to in sections 268.82 to 268.87; and
(c) the conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.

Penalty: Imprisonment for 25 years.

(2) Strict liability applies to paragraph (1)(b).

(3) In subsection (1):
consent means free and voluntary agreement.

The following are examples of circumstances in which a person does not consent to an act:
the person submits to the act because of force or the fear of force
to the person or to someone else;
the person submits to the act because the person is unlawfully detained;
the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;
the person is incapable of understanding the essential nature of the act;
the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);
the person submits to the act because of psychological oppression or abuse of power;
the person submits to the act because of the perpetrator taking advantage of a coercive environment.

threat of force or coercion includes:
(a) a threat of force or coercion such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against the person or another person; or
(b) taking advantage of a coercive environment.

(4) In subsection (1), being reckless as to whether there is consent to one or more acts of a sexual nature includes not giving any thought to whether or not the person is consenting to the act or acts of a sexual nature.

Article 8
War crimes
2. For the purpose of this Statute, "war crimes" means:
(e) Other serious violations of the laws and customs applicable in armed conflicts not of
an international character, within the established framework of international law, namely, any of
the following acts:
(vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions