The Prosecutor v. Francisco Soares

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	14/2001
Decision title	Judgement
Decision date	12 September 2002
Parties	The Public Prosecutor Francisco Soaeres
Categories	Human rights violations
Keywords	rape
Links	Judgement
Other countries involved	Indonesia

Summary

Indonesia illegally occupied East Timor from 1975 until 2002. During this period, members of the Indonesian Armed Forces (TNI) and local militia groups perpetrated a number of attacks against the civilian population, particularly against those suspected of being independence supporters. In 1999, the crimes increased particularly in the wake of the referendum in which the majority of the Timorese people voted in favour of independence.

It was within this general climate of fear that the Accused, Francisco Soaeres, a member of the TNI, raped a woman on a beach. He had previously taken her away from the army base where she was being detained on the pretext of moving her to another town, but had instead taken her to the beach. The Special Panels for Serious Crimes convicted Soaeres of rape and sentenced him to 4 years’ imprisonment. The case was the first conviction for rape by the Special Panels.

Procedural history

On 15 May 2001, the Public Prosecutor indicted the Accused, Francisco Soaeres, for one count of rape as a domestic offense, contrary to section 9 of UNTAET Regulation 2000/15 and Article 285 of the Indonesian Penal Code.

The preliminary hearing was held on 13 November 2001 at which time the Accused entered a plea of not guilty and a statement to the effect that he had sexual intercourse with the victim out of temptation.

The trial commenced on 22 March 2002 and concluded on 17 July 2002 with closing statements.

Related developments

The Defense lodged an appeal on 18 December 2002. On 2 October 2003, the Court of Appeal upheld the decision of the Special Panel.

Legally relevant facts

The Accused was a member of the Indonesian Armed Forces (TNI) in 1999 (para. 26).

On the morning of 12 September 1999, the Accused travelled to the 744 Battalion Base and took the victim, X, with him in order to transport her to Dili. Instead of his intended destination, however, the Accused took X to Useleo Beach (para. 27).
There, the Accused proceeded to have sexual intercourse with X twice and then returned her to the Base (para. 28).

Core legal questions

Where a victim of rape does not object to sexual intercourse, is the perpetrator’s criminal liability excused?
Is the use of force by the perpetrator against the victim an element of the offense of rape?

Specific legal rules and provisions

Section 9 of UNTAET Regulation 2000/15.
Section 34.3 of UNTAET Regulation 2000/30.
Article 285 of the Indonesian Penal Code.

Court's holding and analysis

The law does not require, at any time, that the victim voices an objection, shouts or otherwise objects. The Accused has to establish that the victim consented and, before evidence of the victim’s consent is admitted, the Accused shall satisfy the Court that the evidence is relevant and credible. In the present instance, the Defense has failed to do so (para. 33). Both the testimony of the Accused and the victim herself confirm that the intercourse was not consensual (paras. 36-37).

The law does not require physical force. Whether or not the Accused physically forced X to have sexual intercourse cannot be determined from the evidence and, in any event, is not an element required by the law (para. 42). Rather Section 34.3 of UNTAET Regulation 2000/30 provides that in the case of sexual assault, consent shall not be allowed as a defense if the victim has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression (para. 43). In the opinion of the Panel, X was forced by the circumstances and by the actions and threats made by the Accused to have intercourse with him (para. 44). In assessing the circumstances existing at the time, the Panel took note of the general tense feeling prevailing in East Timor in 1999 as many people had fled their villages in fear of the militias (paras. 45-46).

The Accused was convicted of rape (para. 59) and sentenced to 4 years’ imprisonment (para. 72).