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Foca Trial - Defence argues lack of medical evidence undermines validity of rape charges.

Tribunal Update 190 Last Week in The Hague (September 11-16, 2000)

They claimed there were insufficient medical reports to corroborate victims' statements.

Furthermore, expert witnesses called by the defence argued the classic definition of rape could not be applied in these cases. During cross-examination by defence counsel rape victims had admitted they had not dared to resist their alleged attackers. The soldiers and paramilitaries, the women said, were armed, ruthless and often drunk. This "lack of resistance", defence legal experts argued, undermines the applicability of rape charges.

Sanda Raskovic-Ivic, a Belgrade doctor specialising in the psychotherapy of rape victims, said she was "shocked" no medical records accompanied the statements from victims. Such records, Raskovic-Ivic said, would have detailed the inevitable medical consequences the women "should have developed if those things happened to them."

"Without a file," Raskovic-Ivic added, "it's as if the rape did not happen."

Prosecutor Peggy Kuo then reminded the witness of the circumstances surrounding the alleged rapes - war, displacement, detention and the absence of any opportunity to seek a medical examination or to gather together a medical file.

Moreover, the prosecutor said, only a small number of victims - those who had best dealt with their ordeal - had had the strength to appear before the court. When asked if she was claiming the rapes did not happen, Raskovic-Ivic said, "No, I cannot claim that."

A Belgrade specialist in forensic medicine, Dusan Dunjic, said a medical examination to crucial to proving the validity of the rape charges.

"This is the position of forensic doctors," Dunjic said, "[rape allegations] must be medically proven because half of the women who report rape have not been raped at all, but report it out of deception or blackmail." The prosecutor asked the witness to remain within the limits of his medical expertise.

The defence's arguments on the lack of medical evidence are likely to have only limited significance as neither the indictment against Kunarac, Kovac and Vukovic, nor the prosecution's case relies on such material, but rather on victims' statements and eye-witness accounts.

Another defence expert witness, Professor of Law at Belgrade University Stanko Beatovic, said according to the laws of the former Yugoslavia relating to rape, the court should consider a number of mitigating circumstances when considering sentence.

For example the sentence could be milder if "the behaviour of a woman-victim contributed to the rape" or if a man committed the offence for "biological reasons" - a need to satisfy his sexual urges. But the trial judges reminded the defence that only the law as prescribed by the Tribunal Statute was relevant to this courtroom.

If the rape charges are to stand, the defence added, then "biological reasons" should be taken as mitigating circumstances. The attacks should not be construed as politically or ethnically motivated.

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