IN THE TRIAL CHAMBER
Before: Judge Adolphus G. Karibi-Whyte, Presiding
Judge Elizabeth Odio Benito
Judge Saad Saood Jan
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 5 June 1997
ZDRAVKO MUCIC, also known as "Pavo"
ESAD LANDZO, also known as "Zenga"
DECISION ON THE PROSECUTIONS MOTION FOR THE REDACTION
OF THE PUBLIC RECORD
The Office of the Prosecutor:
Mr. Eric Ostberg Mr. Giuliano Turone
Ms. Teresa McHenry Ms. Elles van Dusschoten
Counsel for the Accused:
Ms. Edina Residovic, Mr. Ekrem Galijatovic, Mr. Eugene OSullivan, for Zejnil Delalic
Mr. Zeljko Olujic, Mr. Michael Greaves, for Zdravko Mucic
Mr. Salih Karabdic, Mr. Thomas Moran, for Hazim Delic
Mr. John Ackerman, Ms. Cynthia McMurrey, for Esad Landzo
Pending before this Trial Chamber of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("International Tribunal") is a Motion for the Redaction of the Public Record filed by the Office of the Prosecutor ("Prosecution") on 19 March 1997 (Official Record at Registry Page ("RP") D3133-D3132) ("the Motion").
On 25 March 1997, the Defence for the four accused persons, Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo, ("Defence") filed a joint Reply to the Prosecutors Motion to Redact the Testimony of Grozdana Cecez ("the Reply") (RP D3178-D3168). The Prosecution filed a Reply to Defendants Reply to the Prosecutors Motion to Redact the Testimony of Grozdanaz (sic) Cecez ("the Response") on 27 March 1997 (RP D3189-D3187). On 15 April 1997, both the Prosecution and the Defence ("Parties") argued their positions orally before the Trial Chamber in closed session.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and oral arguments of the Parties,
HEREBY ISSUES ITS DECISION.
1. The trial of the four accused persons commenced on 10 March 1997. Ms. Grozdana Cecez appeared before this Trial Chamber as a witness (the "Witness") for the Prosecution on 17 and 18 March 1997. The Witness testified to Counts 18 and 19 of the indictment against the four accused persons. These counts detail allegations of acts prohibited by the Statute of the International Tribunal ("Statute") including the rape and torture of the Witness.
2. In private session on 18 March 1997, during examination in chief by the Prosecution, the Witness stated that during the course of her detention at the Celebici camp, she had in her possession contraceptive pills. Subsequently, during cross-examination in open session, counsel for the accused Hazim Delic, Mr. Thomas Moran, asked the Witness whether she had been pregnant. Ms. Teresa McHenry, on behalf of the Prosecution objected to the question and the Trial Chamber sustained the objection. Then, Mr. Moran asked the Witness whether or not she had been prescribed contraceptive pills. At that moment, the Witness stated that she had an abortion at the beginning of April 1992.
3. The record of the hearing, in relevant part, reads:
[MR. MORAN]: Well, at the end of March in 1992 you had gotten pregnant, had you not?
MS. McHENRY: Objection, your Honour, as to relevancy.
MR. MORAN: Your Honour, if I may continue, I think I can tie it up.
JUDGE KARIBI-WHYTE: I think I sustain the objection.
MR. MORAN: Thank you, your Honour. Maam, would you like me to repeat the question? Do you need me to repeat it? Maam, would it surprise you if your doctor said that you came to him around the end of April --excuse me-- the beginning of April or late March in 1992 and that at that time he did not prescribe any contraceptive pills for you, and, in fact, he told you that because of your age he would recommend a different type of contraceptive?
[MS. CECEZ]: I was pregnant that year and I didnt have enough of those medicines, so that I didnt use them for a time, and indeed I became pregnant. I think his name was Sejo. I went for a check-up. He told me it was positive, that I was pregnant. I came back. I agreed with my husband what we should do. He said I should have an abortion. I came to Sejo. He was going to send me to Sarajevo but the situation there was already tense. I didnt dare to go. Then he told me to come and I think on 1st April I had that abortion. Then I came back and I found those pills and bought five little boxes in this pharmacy, and I continued using them. That is true. I did have an abortion on April 1st.
[MR. MORAN]: Maam, my question was not about an abortion on April 1st. My question was whether you would be surprised if --
[MS. CECEZ]: I know what happened to me.
[MR. MORAN]: In fact, your doctor told you it would be better to use some other kind of contraceptive form because of your age; is that not right?
[MS. CECEZ]: He didnt say anything at the time. He just carried out the abortion. I came back home. I rested for a day or two and then I continued working. Maybe he said something, but I really dont remember, but it is a fact that I used those pills from before, and they could be purchased without a prescription.
4. On 19 March 1997, the day following the Witnesss testimony, the Prosecution filed the Motion. According to the Motion, it is at the Witnesss request that the Prosecution implores the Trial Chamber to expunge the statement regarding her abortion from the public records of the International Tribunal.
5. Proceedings before the International Tribunal are public. They are transmitted by television to the public gallery of the courtroom, the press lobby and to other locations within the International Tribunal. Pursuant to an Order of the Trial Chamber (Order on the Prosecutors Motion for Delayed Release of Transcripts and Video and Audio Tapes of Proceedings, dated 1st October 1996) there is a thirty minute delay mechanism on the transmission of the proceedings to every monitor other than the monitor in the public gallery. This mechanism operates in such a way that when in the course of open session, a witness or any of the court participants accidentally discloses information of a confidential nature, a party can request the redaction of such information so that, in the subsequent public broadcast the information will not be included.
6. The Prosecution submits the Motion for determination by the Trial Chamber pursuant to Rule 75 and 96 of the Rules of Procedure and Evidence ("Rules").
7. The Prosecution submits that the Trial Chamber is under the obligation to ensure the protection and privacy of victims and witnesses. Contending that the information about the Witnesss abortion is private, the Prosecution submits that the Witness is entitled to ask that it be expunged by the Trial Chamber in the exercise of its authority to protect the privacy of victims and witnesses under Rule 75.
8. Further, the Prosecution requests an order by the Trial Chamber whereby subsequent transcripts and videotapes of the session of 18 March 1997, containing the Witnesss testimony, are edited so that any references to her abortion are removed.
9. In addition, the Prosecution contends that the information should be expunged because it is inadmissible under Rule 96. According to Sub-rule 96(iv), in cases of sexual assault, the prior sexual conduct of the victim shall not be admitted into evidence.
10. The Prosecution states that the Defence improperly raised the issue of the Witness being prescribed contraceptives. According to the Prosecution, due to the fact that the Witness had been asked about her pregnancy and contraceptive pills, she believed that she was being asked about her abortion and this prompted her response. Therefore, the information was not volunteered. In addition, the Prosecution contends that such questioning of the Witness by the Defence is improper under Rule 75(C).
11. The Prosecution acknowledges that the request is untimely because the information has already been disseminated through the International Tribunals public information system as described above. However, the Prosecution believes that the facts of the abortion
have not been widely reported and, therefore, it seeks to restrict future access of the public to this information when the transcripts are consulted.
12. Furthermore, in its Response, the Prosecution asserts that the redaction of such information will not affect the credibility or the fairness of the proceedings before the Trial Chamber. On the contrary, allowing the information to remain as part of the record may generate a sentiment of insensitivity and unfairness to witnesses, in particular, to victims of sexual assault.
13. In the course of oral arguments, the Prosecution asserts that the Trial Chamber has the power to enter such an order for redaction and that, in fact, it has done so on numerous occasions.
14. The Defence opposes the Motion on five main grounds.
15. First, the Defence asserts that the Witness waived any privacy interest when she volunteered the information, which as the record reflects, was offered in the absence of a specific question on the issue.
16. Secondly, the testimony of the Witness was given in open session and has, therefore, been disseminated to the world. Thus, the fact that the Witness had an abortion ceased to be private when she made reference to it during the course of public proceedings. The Defence submits that an order of the Trial Chamber to redact the information would be an exercise in futility. Furthermore, during oral argument, counsel for Zejnil Delalic declared that the information has been published in newspapers in Serbia.
17. Thirdly, although the Trial Chamber may under Sub-rule 75(B) assign pseudonyms to witnesses, expunge information identifying witnesses, order the non-disclosure of identifying information and/or order that testimony of witnesses be heard using image and
voice altering devices, there is no authority under this Rule to expunge public information from the public record. In addition, no protective measures were sought by the Prosecution on behalf of the Witness, and in the course of her public testimony, the Witness stated she did not wish to be protected. The Defence avers that the lack of a request for protective measures by the Witness prior to her appearance before the Chamber, precludes the possibility of a request for the redaction of part of her testimony.
18. Fourthly, the Defence argues that the public perception of justice may be hampered if the Trial Chamber orders a redaction of information that was publicly disseminated. The Defence avers that the fairness of proceedings of the International Tribunal must not be confined to the courtroom at The Hague, but must reach all those interested in the judicial process. The International Tribunal would be creating an unfortunate precedent by allowing witnesses who testify to modify their statements at any time. The public must be well informed of what occurs at the International Tribunal and the interest of the public must be respected. In the course of oral argument, counsel for the accused Esad Landzo asserted that, in her view, information which comes out in open court should always stand, unless, in the interests of justice, there is good cause that justifies a redaction. In the present case, she argues, there is an absence of such good cause.
19. Fifthly, the Reply states that an abortion is a medical procedure which was lawful under the laws of the former Yugoslavia at the time relevant to the events in the present case. Both counsel for the accused Zdravko Mucic and Hazim Delic during oral argument submitted that Sub-rule 96(iv) does not apply to the present case because prior sexual conduct implies sexual activity and that an abortion is a medical operation. Mr. Greaves, on behalf of the accused Zdravko Mucic stated that in his submission, "having an abortion, it is a very special and very important operation for a woman".
20. In addition, counsel for the accused Zdravko Mucic and Hazim Delic expressly stated that the information concerning the Witnesss abortion is irrelevant to their Defence.
21. The Trial Chamber shall proceed to address each of the Prosecutions grounds for relief in turn. Two grounds are advanced by the Prosecution in support of the Motion. The first of these is the affirmative duty of the Trial Chamber to protect the privacy of the witnesses. The second is that the information sought to be redacted is irrelevant and should not form part of the record.
22. Article 20 of the Statute of the International Tribunal provides in paragraphs 1 and 4 as follows:
1. The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.
4. The hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence.
23. The proceedings before the International Tribunal are, in essence, public. The right of every accused to a public hearing is a fundamental principle of justice and a basic human right of every accused person. In accordance with the Statute, this right must be balanced with the protection of victims and witnesses. The need to protect victims and witnesses, especially in cases of rape and sexual assault is stressed in the Report of The Secretary-General Pursuant to Paragraph 2 of the Security Council Resolution 808 (1993), (U.N. Doc. S/25704, 3 May 1993), ("Report").
24. The Judges of the International Tribunal, in the exercise of the authority conferred upon them by Article 15 of the Statute, have drafted and adopted Rules of Procedure and
Evidence which govern their proceedings and uphold the fundamental premises of international justice conforming to the specific requirements and circumstances in which the International Tribunal operates.
25. The Rules contain specific provisions which enunciate the right of an accused to a public hearing. Rule 78 exemplifies that principle by stating that "[a]ll proceedings before a Trial Chamber, other than deliberations of the Chamber, shall be held in public, unless otherwise provided". Furthermore, Rule 81, "Records of Proceedings and Evidence" entrusts the Registrar of the International Tribunal with producing and preserving "a full and accurate record of all proceedings". This record comprises transcripts and audio recordings. When necessary, the Trial Chamber may also order the video recording of proceedings.
26. Subject to the provisions of The Directive for the Registry, Judicial Support Services (IT-121) public access to the records of the International Tribunal is allowed in furtherance of the public interest in the proceedings before the International Tribunal. Thus, it is evident that the Judges of the International Tribunal place considerable importance on the need to ensure a public and transparent judicial process.
27. However, the press and the public may be excluded from all or part of the proceedings when the Trial Chamber considers that public order, morality, safety and security or non-disclosure of the identity of a victim or witness, and/or the protection of the interests of justice so require, in accordance with Rule 79. In these instances, the Trial Chamber may hold closed sessions. These sessions are designed, inter alia, to encourage and facilitate the giving of evidence by vulnerable witnesses. In such cases where the public and the media are excluded from the proceedings, access to the records of these sessions is restricted to the parties and the Trial Chamber. The disclosure of records of closed sessions may only be ordered by a Trial Chamber when the reasons for their confidentiality no longer exist.
28. Thus, the protection of victims and witnesses permits a departure from the general principle of public proceedings. As has been elaborated by this Trial Chamber in previous
decisions (see Prosecutor v. Delalic et al, Decision on the Motions by the Prosecution for Protective Measures for the Prosecution Witnesses Pseudonymed "B" through to "M", 28 April, 1997), the balance between these two fundamental interests must be assessed within the context of the circumstances of each case.
29. Rule 75 provides
Measures for the Protection of Victims and Witnesses
(A) A Judge or a Chamber may, proprio motu or at the request of either party, or of the victim or witness concerned, or of the Victims and Witnesses Unit, order appropriate measures for the privacy and protection of victims or witnesses, provided that the measures are consistent with the rights of the accused.
(B) A Chamber may hold an in camera proceeding to determine whether to order:
(i) measures to prevent disclosure to the public or the media of the identity or whereabouts of a victim or a witness, or of persons related to or associated with him by such means as:
(a) expunging names and identifying information from the Chambers public records;
(b) non-disclosure to the public of any records identifying the victim;
(c) giving testimony through image- or voice- altering devices or closed circuit television; and
(d) assignment of a pseudonym;
(ii) closed sessions, in accordance with Rule 79;
(iii) appropriate measure to facilitate the testimony of vulnerable victims and witnesses, such as one-way closed circuit television.
(C) A Chamber shall, whenever necessary, control the manner of questioning to avoid any harassment or intimidation.
30. As a matter of principle, Rule 75 was envisioned to protect potential witnesses by providing the necessary safeguards to facilitate and encourage their appearance before the International Tribunal. This, however, does not preclude the possibility that at various stages of the trial proceedings, victims and witnesses may request the Trial Chamber to afford them necessary protection. The grounds on which measures to protect victims and witnesses are requested differ as the proceedings unfold.
31. The Trial Chamber, pursuant to Rule 75, may order a wide range of measures aimed at protecting victims and witnesses, including, but not limited to, the protection of their privacy. These measures, which must at all times be consistent with the rights of the accused, encompass the non-disclosure to the public and the media of the identity or whereabouts of the victim or witness or his family, either by the use of a pseudonym, the expurgation of names and identifying information from the public record, or by any other means which the Trial Chamber may deem appropriate to secure the protection of the witness and/or victim. The Trial Chamber now turns to the question of whether the request made by the Prosecution falls within the scope of the measures that the Trial Chamber may employ to protect a witness or victim pursuant to Rule 75.
32. The Prosecution contends that the Witness is entitled to ask for the redaction of the information concerning her abortion because this is strictly a private matter. The Defence, a contrario, asserts that the Witness renounced her privacy rights when she decided not to request any protective measures and, consequently, gave testimony in open court. Moreover, the Defence avers that the Trial Chamber only has the authority under Rule 75 to order the redaction of information when it relates to identifying information about the witness or victim.
33. Pursuant to Rule 75, a Trial Chamber may order the redaction from the records of information regarding names or identifying information of a witness who has been granted protection. This will be done, for example, in the case of accidental disclosure of information concerning the identity of a protected witness. In this particular case, the rationale provided by Rule 75 for the exclusion of the information is that such information never should have been part of the public record in the first place. It is worth noting that in such a case, the information is struck from the public record of the International Tribunal but continues to exist in the confidential record. This confidential record must not and cannot be disclosed to the public unless ordered by the Trial Chamber in accordance with Rule 81.
34. In the Trial Chambers view, Rule 75 prescribes just one instance of the inherent and broad power of a court to redact information. There can be no doubt that the Trial Chamber has, as any other criminal court, the authority to strike out information from the record when it finds this necessary for the proper administration of justice.
35. In this case, the information about the Witnesss abortion crossed the threshold of privacy and entered the public domain when it was pronounced in the course of the public hearing. Therefore, the privacy order sought by the Prosecution on the basis of Rule 75 would not fulfil its objective, namely to protect private information from being disclosed to the public.
36. The Trial Chamber notes that the request made by the Prosecution seeks to prevent the public from gaining access to the said information in the future because it has not been widely disseminated. This argument, however, fails to grasp the essence of the matter. The core of the issue is, rather, that the information has been made public. While it is clear that the sentiments of the Witness have been offended by the public dissemination of the information, the Trial Chamber cannot ordinarily transform a public fact into a private one by virtue of an order.
37. An order for the redaction of the information based on reasons of privacy would serve no purpose and its effectiveness would be of no avail. The testimony of the Witness was broadcast to the public on the same day she testified through the medium of the International Tribunals television network. Moreover, members of the public were present in the public gallery of the courtroom during her testimony. Therefore, Rule 75 is not applicable for the resolution of this matter.
38. An examination of the request made in the Motion must be made in light of other provisions of the Rules. The Prosecution raises the issue of the relevance of the information about the Witness abortion in the present proceedings. The Prosecution submits that under Sub-rule 96(iv) the information is inadmissible.
39. Rule 96 entitled "Evidence in Cases of Sexual Assault" provides in paragraph (iv) that in cases of sexual assault, the prior sexual conduct of the victim shall not be admitted in evidence.
40. In accordance with Rule 89, the Trial Chamber has a wide discretion as to the nature and type of evidence admissible before it. Rule 89 provides
(A) The rules of evidence set forth in this Section shall govern the proceedings before the Chambers. The Chambers shall not be bound by national rules of evidence.
(B) In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.
(C) A Chamber may admit any relevant evidence which it deems to have probative value.
(D) A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.
(E) A Chamber may request verification of the authenticity of evidence obtained out of court.
41. The need for a flexible rule for the admissibility of evidence was emphasised by several governments in their recommendations to the United Nations Secretary-General for the adoption of rules of procedure and evidence (see for example, Permanent Mission of the Argentine Republic to the United Nations, 27 July 1993, IT/4, 16 November 1993 and Letter dated 29 November 1993 from the Permanent Representative of Canada to the United Nations Addressed to the Secretary-General, IT/15, 29 November 1993). In general, these recommendations drew particular attention to the limitations arising from the conflict and the conditions in the former Yugoslavia. These limitations referred to the restricted possibilities of gaining access to documentary evidence in the process of an ongoing armed conflict and, therefore, the need to rely on viva voce evidence. Thus, it was submitted that the International Tribunal could not be too strict about the criteria for the admissibility of evidence. Therefore, it was considered that the inclusion of technical rules would only encumber the judicial process.
42. The discretion conferred upon the Trial Chamber by virtue of Rule 89 to examine and admit evidence is limited in that any evidence must have probative value and must be relevant. In addition, evidence which is relevant may be inadmissible on the grounds that its probative value is substantially outweighed by the need to ensure a fair trial in accordance with Sub-rule 89(D).
43. In spite of the non-technical character of the Rules, Rule 96 is a special evidentiary rule which applies to the admissibility of evidence in cases of sexual assault. In contrast to the general presumption of admissibility which governs the Rules, evidence concerning past sexual conduct of the victim is inadmissible under Sub-rule 96(iv).
44. The rationale underlying the existence of such a provision is closely related to the nature of the conflict during which the crimes over which the International Tribunal has jurisdiction were committed and where appalling allegations have been made of the systematic and mass rape of women. Prior to the establishment of the International Tribunal, the Security Council repeatedly condemned the violations of international humanitarian law that were being committed in the territory of the former Yugoslavia and placed special emphasis on the rape of women (S/RES/798 (1992), S/RES/808 (1993), S/RES/820 (1993)). Moreover, in establishing the International Tribunal, the Security Council in Resolution 827 (1993), once again expressed its grave alarm at the situation in the region, emphasising the continuing detention and rape of women.
45. Additionally, the Report states in paragraph 108 as follows:
In the light of the particular nature of the crimes committed in the former Yugoslavia, it will be necessary for the International Tribunal to ensure the protection of victims and witnesses. Necessary protection measures should therefore be provided in the rules of procedure and evidence for victims and witnesses, especially in cases of rape and sexual assault (emphasis added).
46. Furthermore, the Special Rapporteur for the United Nations Human Rights Commission, the Commission of Experts established pursuant to Security Council Resolution 780 of 1992 and non-governmental organisations stressed that due to fear of reprisals, retraumatisation and feelings of shame, survivors of the conflict would be reluctant to appear as witnesses before the International Tribunal.
47. In drafting Rule 96, the Judges of the International Tribunal took into account all of the above mentioned concerns. In addition, the Judges carefully considered national proceedings regarding sexual assault cases and focused mainly on recent developments in national laws regarding the prosecution of sexual offences. Therefore, it is through this unique perspective that Rule 96 must be examined and interpreted; namely, within a distinctive approach on sexual assault cases by an international tribunal established to do justice, deter further crimes and to contribute to the restoration and maintenance of peace.
48. Regarding Sub-rule 96(iv), the Judges considered that the prime objective of this provision is to adequately protect the victims from harassment, embarrassment and humiliation by the presentation of evidence which relates to past sexual conduct. Sub-rule 96(iv) seeks to prevent situations where the admission of certain evidence may lead to a confusion of the issues, therefore offending the fairness of the proceedings. Furthermore, when adopting Sub-rule 96(iv), due regard was given to the fact that in rape or other sexual assault cases, evidence of prior sexual conduct of the victims mainly serves to call the reputation of the victim into question. Moreover, it was considered that the value, if any, of information about the prior sexual conduct of a witness in the context of trials of this nature was nullified by the potential danger of further causing distress and emotional damage to the witnesses.
49. The Government of Canada in its recommendation for the rules of procedure and evidence of the International Tribunal, urged "the Tribunal to find evidence concerning a victims prior sexual history to be irrelevant, in challenging or supporting her credibility, assessing the gravity of the offence, determining the likelihood of consent, or as a consideration in sentencing". (Letter dated 29 November 1993 from the Permanent Representative of Canada to the United Nations Addressed to the Secretary-General IT/15, 29 November 1993)
50. In some common law systems, similar provisions aim at shielding the jury from considering irrelevant matters that would have an impact on their fair assessment of the
evidence in sexual assault cases. The International Tribunal operates on a different premise. The Judges of the International Tribunal are triers of fact and law. As triers of fact the Judges are presumed to be less susceptible to prejudicial evidence than a jury. However, at the time of the adoption of the Rules, it was considered that in the interests of justice, the existence of Sub-rule 96(iv) was required.
51. This Trial Chamber (Judge McDonald presiding) considered the giving of evidence by victims of sexual assault in The Prosecutor v Dusko Tadic, (Decision on the Prosecutors Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995) and stated in paragraphs 46 and 49 that
It has been noted that rape and sexual assault often have particularly devastating circumstances which, in certain instances may have a permanent detrimental impact on the victim. (...) the need to show special consideration to individuals testifying about rape and sexual assault has been increasingly recognised in the domestic law of some States. (...) In consideration of the unique concerns of victims of sexual assault, a special Rule for the admittance of evidence in cases of sexual assault was included in the Rules of the International Tribunal. Rule 96 provides that corroboration of the victims testimony is not required and consent is not allowed as defence if the victims has been subject to physical or psychological constraints. Finally, the victims prior sexual conduct is inadmissible.
52. Sub-rule 96(iv) is silent as to the meaning of prior sexual conduct. Thus, a preliminary question is, what is past sexual conduct? As the International Tribunal has never considered Sub-rule 96(iv) before, it is helpful to look at other jurisdictions as persuasive authority in this regard.
53. In the United States of America, for example, both State and Federal evidentiary rules have provisions similar to Sub-rule 96(iv) which are generically referred to as "rape shield rules". Under those rules, the past sexual conduct of a victim is inadmissible in evidence in all Federal and most State courts unless presented for a particular purpose specified in the rules. Section 409B of the Crimes Act 1900 (NSW) of the Commonwealth of Australia constitutes another example of an exclusionary rule where evidence relating to the sexual reputation of the victim is inadmissible in cases of sexual offences.
54. In The State of Kansas, Appellee v Floyd Carmicheal, Appellant 240 Kan. 149 (1986), the Court held that with regard to the admissibility of evidence "a court is able to determine what conduct is sexual in nature and what evidence of such is prohibited by the statute". It further stated that
Within the context of the rape shield statute, a court is able to determine what conduct is sexual in nature and what evidence of such is prohibited under the statute. The term "sexual conduct," as used in the context of the rape shield statute, is not so vague that a person of common intelligence must necessarily guess at its meaning.
55. In Moore v. State Indiana 271 Ind. 464, 393 N.E.2d 175 (1979), the Supreme Court of Indiana held that:
A pregnancy which has been aborted can only be the result of "past sexual conduct". This is what the Rape Shield Statute proscribes. The statute has been held to exclude evidence of pregnancy and should also exclude evidence of termination of pregnancy. Any reference to a prior abortion inherently contains a reference to prior sexual conduct.
56. Likewise, in Commonwealth of Pennsylvania v. Michael Weber 675 A.2d 295 (1996), the Superior Court of Pennsylvania stated that "the issue of [...] abortion is so tied to the issue of [...] chastity that, for the purposes of the Rape Shield Law, they are one and the same". In addition, Judge J. Eakin stated that
I agree completely that evidence of an abortion is necessarily evidence of prior sexual activity, so as to bring it within the scope of the Rape Shield Law. Abortion does not arise without sexual activity, and if the latter is inadmissible, to treat evidence of the former differently would defeat the purpose of the laws intent.
57. Furthermore, in United States of America, Appellee v. George Don Galloway, Appellant, 937 F.2d 542 (1991), the court treated evidence concerning birth control pills as evidence of sexual behaviour. In particular, Judge Seymour in a separate but concurring opinion made a finding that "in the circumstances of the case, such evidence constitutes evidence of past sexual behaviour". He quoted with approval Wright & Graham (22 Federal Practice and Procedure Z 5384, at 545 (1978)) which states that "sexual behaviour clearly encompasses any conduct involving or related to sexual intercourse or analogous acts, e.g., the use of contraceptives". He concluded that it is clear that "the inference arising from the possession of contraceptive pills was that the victim was sexually active".
58. Sub-rule 96(iv) is an exclusionary rule which totally forbids the introduction of evidence concerning prior sexual conduct in sexual assault cases and there can be no waiver of its imperative application. The fact, therefore, that the Witness gave evidence of
her abortion does not affect the applicability of the rule: the rule is not susceptible to waiver. The question of whether a victim may waive the rule in order to introduce evidence of prior sexual conduct was examined by the Supreme Court of Illinois in The People of the State of Illinois, Appellant, v. Santiago Sandoval, Appellee 135 III. 2d. 159 (1990). In this case, Justice Miller in a concurring opinion expressed that
The statute does not purport to establish an evidentiary privilege, which a witness may elect to assert or waive, but is instead phrased as a general prohibition, applicable to both the prosecution and the defense. It is therefore something of a fiction to say, as the appellate court did in the proceedings below, that the complainant in this case waived the protection of the statute by her testimony.
59. The question which the Trial Chamber has to answer is whether the statements made by the Witness regarding her abortion, in the course of her testimony about rape allegations, are admissible into evidence. Considering that, first, the Judges have an unfettered discretion to determine what is admissible as evidence under the Rules, secondly, under Sub-rule 96(iv) the trial Judges are able to exercise such wide discretion in order to determine what constitutes previous sexual behaviour and; thirdly, the persuasive nature of the previously cited authorities, the Trial Chamber is of the view that the information about the Witnesss abortion constitutes prior sexual conduct.
60. Furthermore, the statements of the Witness that she had an abortion in April 1992 have no relevancy whatsoever to the proceedings before the Trial Chamber. They do not affect the credibility of the Witness in any way. During the course of the hearing of the Motion, the Defence were repeatedly asked if the said statements had any bearing on their case to which there was no positive response. Therefore, there can be no doubt that the Trial Chamber has the inherent power to redact a statement which is irrelevant, in particular, when it hurts the sensibility of a person.
THE TRIAL CHAMBER,
CONSIDERING the inherent power of the Trial Chamber to order that information may be expunged from the records,
AND PURSUANT TO SUB-RULE 96(iv),
HEREBY ORDERS that any reference made by the Witness during the course of her testimony before the Trial Chamber to her having had an abortion be removed from the transcripts, audio-recordings and video recordings of the International Tribunal.
Done in English and French, the English text being authoritative,
Judge Adolphus G. Karibi-Whyte
Dated this fifth day of June 1997
At The Hague
[ Seal of the Tribunal ]