Key international criminal law instruments provide that some evidence should not be admissible in cases involving sexual and gender-based violence (SGBV) due to their discriminatory, victimising, stigmatising and, importantly, irrelevant nature. For instance, the International Criminal Court (ICC) Rules of Procedure and Evidence provide that corroboration of a victim’s testimony is not required to prove a sexual crime, and it is not permitted to admit evidence on the prior or subsequent sexual conduct of a victim or witness [1]. This approach is reflected across a range of human rights instruments, such as the African Commission of Human and Peoples’ Rights (ACHPR) Guidelines on combating sexual violence and its consequences in Africa, which provides that such evidence should not be "taken into account to determine whether sexual violence has taken place or as a mitigating circumstance, including […] arguments that the victim has delayed in reporting the violence" [2].

Corroboration

Corroboration requires that the testimony of a victim is supported by additional evidence that validates, or proves the accuracy, of the victim’s account. In other words, it means that a conviction for sexual violence cannot be reached only on the basis of a victim’s testimony. Corroborating evidence can include medical prescriptions, pictures, forensic evidence, written materials and often, witnesses who support the truthfulness of the victim’s account [3]. Due to the particular circumstances in which sexual violence occurs, often in closed settings or in the absence of witnesses, a requirement of a corroborating testimony from a witness almost inevitably results in blocking the victim/survivor from reporting the crime or, if the corroboration is required at a later stage, a failure to prosecute or convict the perpetrator.

The requirement of corroboration is rooted in historic stereotypes and misconceptions. First, it relies on the erroneous assumption that women’s testimonies are unreliable as they are inclined to lie, exaggerate or be emotional [4]. It assumes the availability of physical evidence, such as injuries that would result from the crime of sexual violence, which reflects a common yet inaccurate assumption that this type of violence always involves physical struggle or resistance [5]. This disregards the different ways in which victims may respond to the assault, which can include immobility, the feeling of being frozen or feeling detached from the body [6].