April 1, 2023
On the rape of men in the context of forced marriages at the Extraordinary Chambers in the Courts of Cambodia
Written by Juliette Rémond Tiedrez

On December 23rd, 2022, the Supreme Court Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) published its full appeal judgment in the Samphân KHIEU case. The Supreme Court Chamber mostly upheld Samphân KHIEU’s conviction, including for forced marriages as crimes against humanity of other inhumane acts. The Supreme Court Chamber, however, reversed the Trial Chamber’s findings that men were not victims of rape or other inhumane acts through sexual violence. It considered that male victims indeed suffered forced sexual intercourse.

Prosecuting sexual violence against men and boys in front of international courts and tribunals is challenging. Sexual crimes against men are often mentioned but not characterized as sexual violence or, worse, mentioned but without any consequences, merely to “set the scene” (see Sivakumaran, pp. 273-274, see also Eichert).
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The ECCC Supreme Court Chamber’s decision is therefore most welcome as it explicitly recognises that men can be victims of sexual violence (see also O’Brien).
Under the Khmer Rouge regime, couples were forcibly married and, after the wedding ceremonies, arrangements were made for the newly wedded couples to “sleep in an assigned location specifically to have sexual intercourse.” Militiamen were ordered to “monitor the couples at night to ensure that they had sexual intercourse.” If the couple failed to consummate the marriage, they were “re-educated or threatened with being killed or receiving punishment” (case 002/02, appeal judgment, § 1341).

The Trial Chamber considered that the women who had been forced to marry and consummate the marriage were victims of rape but that their husbands were not because under the applicable law, a rape victim had to be sexually penetrated. In the case at hand, the male victims were penetrating their wife, rather than being penetrated themselves and therefore could not be considered rape victims. When examining whether the male survivors were victims of another international crime, the Trial Chamber considered that “in the absence of clear evidence concerning the level of seriousness of this kind of conduct and of its impact on males, the Chamber […] is unable to reach a finding on the seriousness of the mental and physical suffering suffered by these men” (case 002/02, judgment, § 3701).

In the Trial Chamber’s eyes, men were indeed subjected to forced sexual intercourse, but their mental and physical suffering was not serious enough to reach the threshold of other inhumane acts. For the exact same facts, women’s suffering was considered severe enough to warrant a criminal condemnation, but not men’s.
A third-party forcing a man and a woman to engage in sexual intercourse in the context of forced marriage was uncharted territory.

Full article: https://www.ejiltalk.org/on-the-rape-of ... -cambodia/