International Justice Monitor

A project of the Open Society Justice Initiative

Witness: Scientific Evidence Not Necessary to Prosecute Sexual Crimes

An international investigator and prosecutor told the Kenyan High Court that to prosecute sexual crimes it is not necessary to have medical or physical evidence to corroborate the testimony of survivors of such crimes.

Maxine Marcus said there are examples of cases in Guatemala, at the Special Court for Sierra Leone (SCSL), and at the International Criminal Tribunal for the former Yugoslavia (ICTY) where accused persons were convicted on the basis of the testimony of survivors and witnesses alone.

Marcus made these observations while testifying before the Kenyan High Court on May 25. She was an expert witness for petitioners who want the government to be held responsible for its failure to protect its citizens against sexual and gender-based crimes during the violence that erupted after the December 2007 presidential election.

The petitioners are eight victims of sexual and gender-based violence and three non-governmental organizations. They filed the case in February 2013.

In her May 25 testimony, Marcus said sometimes the only evidence available is the testimony of survivors of sexual violence and eyewitnesses. She said this to explain why medical evidence may not be necessary when investigating or prosecuting such crimes.

Marcus gave the example of Guatemala, where the testimony of victims of sexual crimes committed more than 30 years was the main evidence that led to the conviction of two military officers who served at the time.

“Guatemala has had quite an incredible success in prosecuting sexual crimes as crimes against humanity and war crimes,” said Marcus, speaking about her observations of the cases in that country.

During the examination in chief, Marcus explained she had worked in Guatemala, assisting the office of the prosecution there. She described her work as “mentoring support.”

The Guatemala case Marcus referred to was for crimes committed at the Sepur Zarco military base between 1982 and 1983. In February this year, a three-judge panel found two military officers guilty of sexual violence as well as domestic and sexual slavery of 15 Maya Q’eqchi’ women.

The judges also found Lieutenant Colonel Esteelmer Reyes Giron, a former commander of the Sepur Zarco military base, and Heriberto Valdez Asig, a former military commissioner, guilty of several counts of homicide and forced disappearances. Giron was sentenced to a total of 120 years in prison and Asig was sentenced to a total of 240 years in prison. (More details about other international crimes cases and investigations taking place in Guatemala can be found here.)

Marcus told the Kenyan High Court that it is not in Guatemala alone that cases of sexual violence have been prosecuted solely on witness evidence.

“It is quite common for there not to be documentary evidence, physical evidence because of the circumstances of the crimes themselves,” Marcus said.

She said almost all of the sexual violence cases presented before the SCSL relied on witness testimony.

“The victims did not report [the violations against them] because the perpetrators were the ones who were in authority,” Marcus elaborated.

“Did that failure of the victims to report affect their case?” asked Willis Otieno, the lawyer for the petitioners.

“No, that was not raised at all,” replied Marcus, who served as an international crimes investigator at the SCSL between 2003 and 2005.

Otieno then revisited the issue of evidence to corroborate the testimony of witnesses.

“Must there be corroborating evidence?” he asked.

“No, there is no requirement that there be corroborating evidence…Testimony of a single witness has been sufficient to secure a conviction.” Marcus said. “So long as the survivor is credible and reliable then the conviction can be based on a single witness’ testimony,” she added later.

In cross-examination, Senior State Counsel Moimbo Momanyi asked Marcus about her experience prosecuting and investigating cases involving sexual crimes and the number of convictions she has secured. Momanyi is representing the Office of the Attorney General, the Inspector General of Police, the Ministry of Medical Services, and the Ministry of Public Health in the case.

Marcus said she prosecuted sexual crimes cases at the SCSL for two years and worked as an investigating attorney at the ICTY for five years.

She said that at the ICTY there were convictions in three of the cases she was involved. She also said there is one case she was involved in that is still at the trial stage.

Momanyi then asked her whether she has prosecuted any cases at the domestic level. Marcus said she has not.

In his cross-examination, Senior Assistant Director of Public Prosecutions Edwin Okello asked Marcus about the Guatemala case she had referred to earlier. Okello is representing the Director of Public Prosecutions in the case.

He wanted to know if beyond the convictions there were other steps Guatemalan authorities had taken, such as initiating a reparations process. Marcus said she did not have details about it, but she was aware that steps were being taken on reparations.

Okello then focused his questions on the issue of evidence in sexual crimes cases.

“Would you agree with me that medical and physical evidence is key?” Okello asked.

“No, I do not agree with that,” replied Marcus.

“Why not?” asked Okello.

“Because the survivor can testify to what happened, and a witness can prove what happened,” Marcus said.

Okello asked several questions on this issue and a number of times asked the same question in different ways.

“Isn’t it true that having medical evidence is better?” Okello asked.

“I do not agree with that. If you have other evidence why not bring it but I do not think it is stronger,” replied Marcus.

In one of her answers, Marcus said often there was no scientific evidence in international crimes cases. She said there were cases at the ICTY that involved mass killings but “did not have scientific evidence because the bodies were burnt.”

When Okello continued this lining of questioning, Judge Isaac Lenaola cut in and told him to “leave that for submissions.”

The next witness is scheduled to testify on July 20.

The petition that was the subject of the May 25 hearing was filed by six women and two men survivors of sexual and gender-based violence during the post-election period. Their identity is not public. When they testified in court, those sessions were closed to the public. The other petitioners are the Coalition against Violence against Women, the Independent Medical and Legal Unit, and the Kenya Section of the International Commission of Jurists.

The petition has been filed against the Attorney General, the Director of Public Prosecutions, the Inspector General of Police, the Independent Police Oversight Authority, the Ministry of Medical Services and Ministry of Public Health. When the petition was filed in February 2013, the two ministries existed. They have since been merged to form the Ministry of Health.

The Open Society Foundations has been providing support to the ongoing litigation in Kenyan courts. For more information, please see the following case report.

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