Related Rule
Democratic Republic of the Congo
Practice Relating to Rule 93. Rape and Other Forms of Sexual Violence
The Democratic Republic of the Congo’s Military Penal Code (2002) provides:
Article 169
Any of the following acts, perpetrated as part of a widespread or systematic attack knowingly directed against the Republic or the civilian population, equally constitutes a crime against humanity and is punished by death, whether committed in time of peace or in time of war:
7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and other forms of sexual violence of comparable gravity. 
Democratic Republic of the Congo, Military Penal Code, 2002, Article 169.
The Democratic Republic of the Congo’s Law Relative to Sexual Violence (2006), modifying and completing the Congolese Penal Code, provides:
Legislative background
Until now, Congolese penal law did not contain all the incriminations that international law, since 1946, has established as offences, as a dissuasive bulwark against those who, big or small, violate international law, in particular humanitarian law, thereby denying the civilian population the quality and the values of humanity.
Thus, the present law modifies and completes the Congolese Penal Code by integrating rules of international humanitarian law relative to offences of sexual violence. Thereby, it largely takes into account the protection of the most vulnerable persons, notably women, children and men victims of offences of sexual violence.
Law
Article 2
Section II of Title VI of the Penal Code, Book II is modified and completed as follows.
Section II: Sexual violence offences
First paragraph: Indecent assault
Article 167
Any act contrary to morals intentionally and directly exercised against a person without their valid consent constitutes an indecent assault.
Any indecent assault committed without violence, trickery or threats against the person or through the person of a child aged less than 18 years shall be punished with penal servitude between six months and five years. The age of the child can be determined by medical examination, official information on personal data lacking.
Article 168
Indecent assault committed with violence, trickery or threats against persons of either sex shall be punished with penal servitude between six months and five years.
Indecent assault committed with violence, trickery or threats against the person or through the person of a child aged less than 18 years shall be punished with penal servitude between five and fifteen years. If the assault was committed against persons or through persons aged less than ten years, the penalty shall be between five and twenty years.
Paragraph 2: Rape
Article 170
Shall have committed rape, either by aid of violence or grave threats or by coercion against a person, directly or through a third person, or by surprise, psychological pressure, or at the occasion of a coercive environment, or by abusing a person who due to illness, alteration of faculties or any other accidental reason has lost the use of his/her senses, or who has been deprived of them by artifice:
a) any man, whatever his age, who has inserted his sexual organ, however slight, into that of a woman, or any woman, whatever her age, who has forced a man to insert, if only superficially, his sexual organ into hers;
b) any man who has penetrated, however slight, the anus, mouth or any other orifice of the body of a woman or a man with a sexual organ, with any other part of the body, or with any object whatsoever;
c) any person who has inserted, however slight, any other part of the body or any object whatsoever into the vagina;
d) any person who has forced a man or a woman to penetrate, however slight, his anus, mouth or any orifice of the body with a sexual organ, with any other part of the body, or with any object whatsoever;
Whoever is found guilty of rape shall be punished with a penalty of penal servitude between five and twenty years and a fine of not less than 100,000 Congolese francs.
Article 171
If the rape or the indecent assault has caused the death of the person against whom it was committed, the perpetrator shall be punished with penal servitude for life.
Article 171bis
The minimum of the penalties provided in articles 167, paragraph 2, l68 and 170, paragraph 2, of the present Code shall be doubled:
2. if [the perpetrators] belong to the category of those who have authority over [the person against whom or through whom the assault was committed].
4. if the assault has been committed either by public agents … who have abused their position to commit it …;
5. if the perpetrator has been aided in the execution of the offence by one or several persons;
6. if it is committed against captive persons by their guards;
10. if the rape was committed by use of a weapon or threat therewith.
Article 3
Section III of Title VI of the Penal Code, Book II is modified as follows:
Section III: Other sexual violence offences
Paragraph 3: Enforced prostitution
Article 174 c
Whoever caused one or more persons to engage in one or more acts of a sexual nature, by force, by threat of force, or by coercion, or by taking advantage of such persons’ incapacity to give genuine consent, with a view to obtain pecuniary or other advantage, shall be punished with three months to five years of penal servitude.
Paragraph 5: Sexual slavery
Article 174 e
Punished with a penalty of five to twenty years of penal servitude and a fine of 200,000 Congolese francs shall be whoever has exercised one or all of the powers attached to the right of ownership over a person, notably by detaining or imposing a similar deprivation of liberty or by purchasing, selling, lending or bartering such a person for sexual purposes, and has caused that person to engage in one or more acts of a sexual nature.
Paragraph 10: Trafficking and exploitation of children for sexual purposes
Article 174 j
Any act or transaction related to the trafficking or exploitation of children or any other person for sexual purposes in return for remuneration or any advantage whatsoever is punished with ten to twenty years of penal servitude.
Paragraph 11: Forced pregnancy
Article 174 k
Punished with a penalty of penal servitude between ten and twenty years shall be whoever has confined one or more women made pregnant by force or trickery.
Paragraph 12: Enforced sterilization
Article 174 l
Punished with five to fifteen years of penal servitude shall be whoever has committed against a person an act depriving that person of the biological and organic reproductive capacity, without such an act having been previously been made the object of a justified medical decision and the genuine consent of the victim.
Paragraph 14: Child prostitution
Article 174 n
Punished by penal servitude between five and twenty years and a fine of 200,000 Congolese francs shall be whoever has used a child of less than 18 years for purposes of sexual activities against remuneration or any other form of advantage. 
Democratic Republic of the Congo, Law Relative to Sexual Violence, 2006, Legislative background and Law, Articles 2–3.
In 2009, in the Basele Lutula and Others case, the Military Garrison Court of Kisangani convicted several Mai-Mai militia members of various crimes, including rape. The Court stated:
B. Simple voluntary beating and wounding (article 46 of the CPO [Penal Code])
Article 46 of the CPO, book II, provides that: “Whoever voluntarily wounds or beats [a person] is liable to punishment of between eight days to six months’ imprisonment and a fine … ”.
It follows from this definition that the following three elements are constitutive of this offence:
- Material elements
- The human nature of the victim
- An element of intent
The material element consists of not only an act, but an act which is material. The act must be positive, not negative, that is, [not] an omission or inaction. The act must also be material such as beating [someone] with one’s hand or foot, or with a weapon or any other object or instrument.
In the present case, by punching … [the victims] and beating [them] with a stick and … a weapon , … because they offered resistance to rape, the defendants Kipeleka Nyembo, Koti Okoke, Osumaka Loleka and Okanga Likunda carried out a material act in its double dimension.
This offence is only punishable if it is committed against living human persons.
Indeed, all the victims are living … human persons who inhabited Lieke, Losole or Likako.
Mens rea is required. The perpetrator must have acted in order to physically harm another person, that is, he must have the intention to wound or to beat, regardless of the means and of the consent or mistake by the victim.
In the present case, the acts of punching and beating with a weapon … and a stick were committed consciously and voluntarily by the defendants against the victims because the latters … offered resistance to rape …
D. Rape by aid of violence (article 170 of the CPO as modified to date)
Article 170 of the CPO, as modified by … [the Law Relative to Sexual Violence (2006)], provides that:
Shall have committed rape, either by aid of violence or grave threats or by coercion against a person, directly or through a third person, or by surprise, psychological pressure, or at the occasion of a coercive environment, or by abusing a person who due to illness, alteration of faculties or any other accidental reason has lost the use of his/her senses, or who has been deprived of them by artifice:
a) any man, whatever his age, who has inserted his sexual organ, however slight, into that of a woman …
It follows from this provision that the commission of this offence requires the following elements to be present:
- material element
- lack of consent
- moral element
The material element consists of a sexual physical penetration, even if slight, of another person. Such penetration must be carried out on any opening of someone else’s body with a sexual purpose.
… [T]here was penetration by the sexual organ of the defendant Basele Lutula, alias Colonel Thoms, on the sexual organ of the victim … [T]his was confirmed by the victim …
Pursuant to the … [1998 ICC] Statute, the victim of the offence can, on this matter, be also a witness of the act.
For rape to be committed, the victim must not have given her consent.
The lack of consent is defined by the means used by the perpetrator … , that is: surprise, psychological pressure, coercion, [and] abuse of a person who has lost her senses due to an illness, a change to her mental faculties or any other accidental cause …
The Public Prosecutor’s Office argue that article 170 of the CPO, as modified and completed to date, provides that rape is committed with violence if it is committed in a coercive environment.
According to Public Prosecutor’s Office, the Larousse pocket dictionary defines “coercion” as a constraint; and “to constrain” means to oblige a person to carry out something unwillingly.
Also according to the Public Prosecutor’s Office, international case-law, in particular case-law from the ICTR with regard to rape, defines coercion as intimidation, blackmail and other forms of violence which exploits fear and desperation (… Akayesu case, … [Judgement], 2 September 1998).
… Pursuant to the Public Prosecutor’s Office, the defendant Basele Lutula, known in all territory of Opala as a serviceman and mainly a Colonel of the FARDC [Armed Forces of the Democratic Republic of the Congo] who had previously arrested the local mayor [chef de groupement] of Yawende … , the father of the victim, and tried to kill him. This would have created an atmosphere of coercion, terror, intimidation [and] threat against … [the mayor’s] family, in whose house the defendant installed himself by force and imposed repeated sexual relations with the girl …
For the Court, … the terror [and] the atmosphere of fear [and] intimidation created by the defendant in Groupement de Yawembe, and mainly the coercive environment created by him during the period when he stayed in the mayor’s house, dismisses … the [alleged] consent by the victim …
The victim did not offer resistance to the … defendant … due to the fear that her father … or herself … would be killed by him. Mens rea is hardly distinguishable from the means used by the perpetrator.
In the present case, the defendant was aware … that his intimidations and threats, as well as the coercive environment created by him, would make it possible for him to achieve his objective, namely, to obtain sexual relations.
E. Crime against humanity [of rape]
[a)] Applicable law
Considering that the Public Prosecutor’s Office upheld the category of crime against humanity by rape provided for and punished by article 7(1)(a)-1 of the … [1998 ICC] Statute … ;
Considering that articles 165 and 169 of the Penal Code provide for and punish the same crime;
Considering that the Democratic Republic of the Congo ratified the … [1998 ICC] Statute through Decree No. 0013/002 of 20 March 2002;
Considering that the … [1998 ICC] Statute punishes war crimes, crimes against humanity and the crime of genocide [which have been committed] since 2002;
Considering the domestic courts have jurisdiction in first place, due to the principle of subsidiarity [complementarity] of the International Criminal Court regarding such courts;
That the International Criminal Court only intervenes under the circumstances provided for in its statute;
Considering that article 215 of the Constitution … (2006) provides that “regularly concluded international treaties and agreements … have a higher authority than laws … ”;
Considering that the … [1998 ICC] Statute, contrary to the statutes of the ad hoc tribunals, namely the ICTR and the ICTY, and [contrary to] … [the Military Penal Code (2002)], is not ambiguous regarding the definition of … terms, in particular “attack”, [and] “widespread or systematic character” …
Considering that the provisions of the … [1998 ICC] Statute on those crimes are soft to the defendants and favourable to the victims;
Considering that in its judgement … RDN No. 086/05, RMP No. 279/2005 of 12 January 2005, the … [Military Garrison Court of Mbandaka], to which [a case on] crimes against humanity had been referred pursuant to article 166 of the Military Penal Code [(2002)], decided to … [apply] the provisions of the … [1998 ICC] Statute because they are not ambiguous;
… [I]n the present case, in view of the above, the Court will apply the relevant essential provisions of the … [1998 ICC] Statute.
b) Merits
Article 7(1) of the … [1998 ICC] Statute defines crimes against humanity as follows: “For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack … ”.
In paragraph 2: “attack directed against any civilian population … means a course of conduct involving … the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack”.
In light of the above, the defendants Kipeleka Nyembo Bumba, alias Kata Moto, Osumaka Loleka, alias Effacer Le Tableau, Okanga Likunde, alias Musique, and Koti Okeke, [alias] Koy Likoloya Ngomba are prosecuted for the crime against humanity of rape.
Elements of the crime:
1. The perpetrator [invaded] the body of the person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.
2. The invasion was committed by force, or by … coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.
3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.
… [T]he defendants Kipeleka Nyembo, Osumaka Loleka, Okanga Likunda and Koti Okeke invaded the body of the victims and had sexual intercourses with them by penetrating the genitals of the victims with their male sexual organ.
Considering that the defendants … fired shots into the air and into the ground with weapons of war in the locality of Lieke Lesole in order to intimidate the population;
Considering that the defendants punched, beat with sticks and weapons, and lashed … those men who offered resistance or who were cutting down fruit trees;
Considering that these acts created an atmosphere of fear and panic in the locality, which made all men flee into the forest, creating a coercive environment in the entire locality;
Considering that the jurisprudence of the ad hoc tribunals [and] the doctrine acknowledge that a coercive environment may be sufficient to constitute the use of force;
Considering the high number of victims, namely 31 women, of which 8 were minors, and the fact that the perpetrators acted in group, that is, a group of 4 people with two AK-47 weapons, establish the massive and collective character of the attack;
… [T]he frequency … also characterises a widespread attack … as these rapes were committed for over a day, during the period from 14 to 28 July 2007;
Considering that the quantitative criterion cannot be objectively defined (ICTR, … Kayishema and Ruzindana case, judgement], … 21 May 1999 … ), the judge … shall assess it.
Considering that population is understood as all the inhabitants of a given geographic area;
That, according to Le Robert micro dictionary, the term “civilian” refers to everything that is not military;
Considering that the term “civilian population” must be interpreted broadly …
That, in the present case, the above-mentioned defendants committed rape against the female population of the locality of Lieke Lesole, sector of Yawenda Loolo, territory of Opa La, district of Tshopo;
Considering that the defendants were part of the group [and] that there was indeed a widespread attack against the population of Lieke Lesole which ended in the rape of 31 women, of which 8 minors;
… [I]t follows from the above that there was intention and knowledge by the defendants, the two elements constitutive of the moral element … as they wanted [to commit] those acts and … they knew that their attack [was] directed against the civilian population. 
Democratic Republic of the Congo, Military Garrison Court of Kisangani, Basele Lutula and Others case, Judgment, 3 June 2009, pp. 16–24.
In 2010, in the Barnaba Yonga Tshopena case, the Military Garrison Court of Ituri-Bunia convicted a leader of the Front for Patriotic Resistance in Ituri (FRPI) of several war crimes, including rape. The Court stated:
112 … [T]he defendant … is charged with the war crime of rape pursuant to article 8(2)(e)(vi)-1 of the … [1998 ICC] Statute. He is accused of raping civilian women who inhabited Collectivité Chefferie de Nyankunde and Groupement Musedzo in the territory of Irumu or who were present during the successive attacks against those places, respectively on 5 and 12 September 2002, including … [two] victim-witnesses …
113 … [This crime] is provided for in article 8(2)(e)(vi)-1 of the … [1998 ICC] Statute as a serious violation of the laws and customs of war applicable in armed conflicts not of an international character.
114 … [The 2000 ICC] Elements of Crimes specify that the war crime of rape pursuant to article 8(2)(e)(vi)-1 of the … [1998 ICC] Statute requires, in addition to evidence of the existence of a link between the crime and … an armed conflict not of an international character, that the perpetrator was aware of factual circumstances establishing the existence of such conflict, as well as that:
i) the perpetrator invaded the body of the victim by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body; ii) this act was committed by force or by threat of force or coercion, such as that caused by threat of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.
115 … [I]n the present case, there is sufficient evidence to establish substantial grounds to believe that, during and after the attacks carried out by FRPI Ngiti combatants, respectively in Collectivité Chefferie de Nyankunde on 5 September 2002, and Groupement Musedzo on 12 September 2002, the latter indeed committed acts of rape against civilian women who inhabited those places or who were present at the moment of the attacks …
116 … This conclusion is based on the elements of evidence from the statement of the first victim-witness … who, at the time of the facts, was a civilian aged 16 years and inhabited the locality of Lawa in Groupement Musedzo when the attack … of 12 September 2002 by FRPI Ngiti combatants took place. She says that she and another young lady from her village were abducted from Lawa and taken … close to the … residence of the defendant …
117 … [T]his victim-witness states that she was detained for a year and two months in Tsheyi, where she was closely watched. Under threat of death, she became the “wife” of an Ngiti combatant, called Papy, not otherwise identified, who was a guard close to the defendant … During the time when she was held in captivity … , the victim-witness was compelled to live in the same house as such Ngiti combatant … , who repeatedly raped her …
118 … [T]his conduct of rape, [which was] often committed by the FRPI Ngiti combatants, was [also] reported in the statement of the second victim-witness … She stated that she had been successively raped by a group of seven Ngiti combatants in her village of Talolo in Collectivité Chefferie de Nyankunde. Those rapes took place towards the end of 2007, during violent punitive incursions committed against civilian populations in reprisal to the arrest of the defendant … by members of the FARDC [Armed Forces of the Democratic Republic of Congo] a few months earlier, [as the defendant] was the founder and supreme spiritual leader of this political-military movement called FRPI.
119 … [T]he cases of rape attributed to FRPI Ngiti combatants were also mentioned by witness n. 1, who said … that his own daughter, a minor, had also been abducted and subjected to acts of sexual violence by FRPI Ngiti combatants with the support, authorization and/or blessing of the leaders of this political-military movement, including the defendant. 
Democratic Republic of the Congo, Military Garrison Court of Ituri-Bunia, Barnaba Yonga Tshopena case, Judgment, 9 July 2010, §§ 112–119.
Regarding the applicable law, the Court stated:
[T]he constitutional provisions of the Democratic Republic of the Congo, namely articles 153(4) and 215 of 18 February 2006 [Constitution (2006)], authorize both civil and military courts and tribunals to apply duly ratified international agreements and treaties, and give them higher authority than domestic legislation. This constitutional authorization combined with the self-executing nature of the … [1998 ICC] Statute justify the direct application of this treaty by Congolese courts and tribunals. 
Democratic Republic of the Congo, Military Garrison Court of Ituri-Bunia, Barnaba Yonga Tshopena case, Judgment, 9 July 2010, § 63.
In 2005, in its third periodic report to the Human Rights Committee, the Democratic Republic of the Congo stated:
88. Mass rape in the east of the Democratic Republic of the Congo during the war has led to increased awareness in the country.
89. In the context of prevention of and efforts to combat violence against women, information and awareness campaigns are conducted by public institutions and non-governmental organizations for the public and officials in judicial institutions. Thus, the Government, through the Ministries of Human Rights and Social Affairs, Status of Women and the Family, organized a national human rights conference in 2001 and a women’s forum in 2003. In coordination with civil society organizations it launched a national campaign against sexual violence against women and is involved in efforts to combat such violence (Ministry of Social Affairs, Status of Women and the Family, national report of the Democratic Republic of the Congo on review and implementation of the Beijing Platform for Action +10, Kinshasa, February 2004, pp. 5 and 11).
90. Since 2003 the Ministries of Social Affairs, Status of Women and the Family, and of Justice and Human Rights, have taken part in the initiative on efforts to combat rape and violence against women. In this connection the Ministry of Justice organizes retraining throughout the country for judges, supplemented by seminars by non-governmental organizations in the justice sector, with specific pedagogical support.
91. After a lengthy period of inactivity, owing to the protracted war, which lasted from 1998 to 2003, legal proceedings are being undertaken in various parts of the country (e.g. at Kalemie, March 2004, against police officers). 
Democratic Republic of the Congo, Third periodic report to the Human Rights Committee, UN Doc. CCPR/C/COD/2005/3, 3 May 2005, §§ 88–91.
In 2007, in its second periodic report to the Committee on the Rights of the Child, the Democratic Republic of the Congo stated:
157. Sexual violence is also a very disturbing trend which especially affects women and girls. During the war, it took on barbaric forms, in that it involved mainly members of armed forces and groups, but it is now increasingly committed by civilians. Since mid-2005, more than 30,000 victims of sexual violence have been reported nationwide. Between the start of 2005 and January, 2006, a health service centre in North Kivu counted 174 cases of rape, 80 per cent of which pertained to girls. In June, 2006, 14 cases of sexual violence committed in the territory of Mueneditu were reported by the divisional head of the Ministry on the Status of Women and the Family.
158. With a view to preventing and severely punishing violations involving this type of violence while at the same time ensuring systematic care for victims, … [the Law Relative to Sexual Violence (2006)] and [Act] No. 06/019 of 20 July 2006 were adopted to take more vigorous action against sexual violence. They amend, respectively, provisions of the Penal Code and the Code of Criminal Procedure.
159 … [The Law Relative to Sexual Violence (2006)] strengthens penalties for rape and criminalizes other forms of anti-social behaviour which had heretofore gone unpunished. Certain violations were drawn from the [1998 ICC] Statute … , others from the [2000] Optional Protocol … on … [Child Trade], … [P]rostitution and … [P]ornography.
160. Thus, the definition of rape now encompasses several situations which had heretofore been characterized simply as indecent assault. Mention should be made of the following new offenses: corruption of a minor, forced prostitution, sexual harassment, … forced marriage, genital mutilation, bestiality, intentional transmission of incurable sexually transmitted diseases, … forced pregnancy, forced sterilization, child pornography, child prostitution.
161. Act No. 0619 provides for an expedited procedure for investigation and trial of sexual violence cases …
166. Following the awareness-raising efforts concerning the fight against sexual violence, the adoption of these laws, and dissemination of information about them among the public, the perpetrators of rape and other sex offenses are being prosecuted and convicted, especially in military jurisdictions. Among the cases decided, the following are noteworthy:
- RP 086/005 - RP101/006, of 20 June 2006, a judgment handed down by the military tribunal of the garrison of Mbandaka (Equateur Province) against nine soldiers found guilty, in particular, of rape of 46 persons in Bokala, and who were sentenced for crimes against humanity to penal servitude for life, based on articles 7, 9, 21, 25, 31, 32, 33 and 37 of the [1998 ICC] Statute … ;
- RP 084/2005 of 12 April 2006, a judgment handed down by the military tribunal of Mbandaka against 12 soldiers prosecuted for the rape of 31 persons in Songo Mboyo and sentenced to penal servitude for life, based on the [1998 ICC] Statute … ;
- RP 011/05 of 26 October 2005, a judgment handed down by the military tribunal of the garrison of Kindu, in Maniema Province, against two Mai-Mai militia members who committed acts of rape and sexual slavery against four women in the locality of Kimanda, and who were sentenced to death based on articles 5, 6, 165, 169 (7) and 172 of the Military Penal Code [(2002)].
167. Also noteworthy is the conviction of two soldiers to 10 years’ penal servitude for the rape, respectively, of a 5-year-old girl and a 13-year-old girl, by the military tribunal of the garrison of Kalemie (Katanga Province) in May, 2006. 
Democratic Republic of the Congo, Second periodic report to the Committee on the Rights of the Child, 24 July 2008, UN Doc. CRC/C/COD/2, submitted 23 October 2007, §§ 157–161 and 166–167.
In 2008, a training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, including war crimes, was adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo. The training manual states:
Rape and other forms of sexual violence are often perpetrated in times of war …
Historically, sexual violence in times of armed conflict was considered to be an unavoidable component of war. It was unfortunately not treated as a war crime …
Sexual violence committed in the context of an armed conflict has been very recently considered to require a particular legal treatment and special methods of investigation. The reason is that the victims tend to hesitate to make themselves known due to fear of stigmatization, rejection or reprisals. The other challenge is the scale of these crimes and the difficulty of establishing a connection between the direct perpetrators and the political or military leaders.
The general outcry caused by the use of rape as a weapon of war in former Yugoslavia and the generalization of such practices in the Rwandese genocide of 1991 led the ICTY and the ICTR to give crimes of sexual violence the same status of other international crimes.
… Sexual violence constitutes both a huge problem of public health and serious human rights violations.
[Sexual violence constitutes a] violation of the [following] fundamental rights of the victims:
a. right to life;
b. right to health;
c. right to physical integrity;
d. right to dignity. 
Democratic Republic of the Congo, Training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo, Military Justice seminar, 2008, pp. 43, 46 and 50.
Regarding the assessment of the consent by a victim of sexual violence, the training manual states:
a. the consent cannot, in any case, be inferred from the words and conduct of the victim when his or her faculty to freely give a genuine consent has been affected by the use of force, threat or constraint, or … [by] a coercive environment;
b. the consent cannot, in any case, be inferred from the words and conduct of the victim when he or she is unable to give a genuine consent;
c. the consent cannot, in any case, be inferred from the silence or lack of resistance by the victims of alleged sexual violence;
d. the credible or honourable nature of a victim or a witness, as well as his or her sexual availability, cannot, in any case, be inferred from his or her previous or later sexual behaviour. 
Democratic Republic of the Congo, Training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo, Military Justice seminar, 2008, p. 61.
The training manual further states:
The prosecution of sexual offences
2. The concept of sexual offences
… [S]exual offences mean any offences related to the various forms of sexual violence …
Sexual violence is defined as an act, a tentative, a commentary or any other act of a sexual character, with or without physical contact, committed by an individual without the consent of the person addressed, or in certain cases, in particular where the victim is a child, with the use of emotional manipulation or blackmail.
Thus, [sexual violence] refers to a situation where sexual services are obtained through the use of force, moral or physical coercion, or even threats.
A. The prosecution of sexual offences under Congolese law …
In our country, sexual offences … are prosecuted and punished based on … [the Law Relative to Sexual Violence (2006)]. The application of such law was reinforced by Law No. 06/019 of 20 July 2006 modifying and completing the Decree of 6 August 1959 on the Congolese Code of Procedure, which was enacted in the same context and regulate the procedure to be followed in the prosecution of such offences.
Before the promulgation of these two laws, on 20 July 2006, the prosecution of sexual offences was carried out within the framework of the Decree of 30 January 1940 on the Congolese Penal Code, in particular article 170 on rape, and articles 168 and 167 on indecent assault [attentat à la pudeur and attentat aux moeurs, respectively].
The applicable procedure was provided for in the Decree of 6 August 1959 on the Congolese Code of Procedure.
The insufficiencies of these two decrees, with regard to both substance and procedure, motivated the reform of 20 July 2006.
… [Law Relative to Sexual Violence (2006)]
This law … brought new definitions of rape and indecent assault [attentat à la pudeur and attentat aux moeurs, and incorporated offences from international humanitarian law. [It provides for:]
1. Rape
Other than the penetration of the vagina of a woman with the sexual organ of a man, the new version of article 170 extends rape to the following acts:
- the penetration of a woman’s sexual organ with any object other than the sexual organ of a man;
- the penetration of any orifice in the body of a woman other than the vagina, in particular the anus or mouth, with a sexual organ or any other object;
The perpetrator or the victim of rape may be a man or a woman.
Article 171 provides that the following circumstances aggravate the crime of rape:
- cases of captive victims [raped by] their guards or [victims who] live with a handicap;
- [cases] where the rape is committed in public or with the use of a weapon.
2. Indecent assault [articles 168 and 168]
3. Debauching of minors and procuring … (articles 172, 173, 174 and 174b)
4. Enforced prostitution (article 174c)
5. Sexual harassment (article 174d)
7. Forced marriage (article 174f)
8. Sexual mutilation (article 174g)
9. Intentional transmission of incurable sexually transmitted infections (article 174i)
12. Forced pregnancy (article 174k)
13. Enforced sterilization (article 174l)
14. Child pornography (article 174m)
15. Child prostitution (article 174n)
B. The prosecution of sexual offences as international crimes
In our country, the prosecution of such offences are based in two legal instruments, namely, the … [1998 ICC] Statute and the Military Penal Code [(2002)].
The … [1998 ICC] Statute provides for sexual offences among other human rights violations which constitute crimes against humanity and war crimes.
In article 8, the Statute defines war crimes as breaches of the 1949 Geneva Conventions … , namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: “rape, … enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions”.
It is important to note that article 153(4) of the Constitution … [(2006)] allows civil and military courts and tribunals to apply duly ratified international treaties … [T]he ratification of the Statute was authorised by Decree-Law No. 013/2002 of 3 March 2002.
This is the framework within which the Military Garrison Court of Mbadaka, in 2006, applied the … [1998 ICC] Statute regarding sexual violence in a case where certain servicemen in rebellion in the locality of Songo Mboyo, in the Province of Équateur, committed mass or collective rapes against women in 2003.
The Military Penal Code [(2002)] treats sexual offences as crimes against humanity and punishes them in article 169, which states that
any of the following acts, perpetrated as part of a widespread or systematic attack knowingly directed against the Republic or the civilian population, equally constitutes a crime against humanity and is punished by death, whether committed in time of peace or in time of war: … rape, … enforced prostitution, forced pregnancy, enforced sterilization, and other forms of sexual violence of comparable gravity.
Conclusion
Our country has nowadays an appropriate and up-to-date legislation for the prosecution and punishment of sexual offences. 
Democratic Republic of the Congo, Training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo, Military Justice seminar, 2008, pp. 66–69, 71–72 and 75.