1. INTRODUCCIÓN
1.6. OBJETIVOS
2.1.30 La educación media nocturna
With respect to Congolese Criminal Law, two conducts are discussed and relate to prostitution and child pornography. It is also important to take note of the fact that any conduct involving children into sexual activities, whether prostitutional or not amount to rape
as indicated above, due to the absence of genuine consent.325
Prostitution per se is not a crime in the DRC.326 Where the parties to such a transaction are
consenting adults, they can, therefore, not be prosecuted under Congolese criminal law. The fact that it is no violation of any local law to be involved with prostitutes constitutes one of the reasons why peacekeepers in the DRC have gained their particular reputation for
fraternisation with local women.327 A Norwegian researcher who conducted an interview with
MONUC personnel was told by his interviewees that fraternisation with prostitutes was a
positive intervention, since girls and women get money from them.328 The interview did not
reveal, however, the ages of the girls involved, although one should not lose sight of the fact that engaging the services of a prostitute as young as 12 or 13 years old remains punishable as
rape.329 Despite the unjust economic power imbalances between local women and UN
personnel, instances in which the latter may have paid for the services of adult prostitutes are
not considered unlawful conduct330 under Congolese Criminal Law.331 In fact prostitution per
se is not criminalised in DRC as well as in most of the countries who have contributed
MONUC personnel. It is probably, therefore, difficult for peacekeepers to see how they are
violating the law.332 If peacekeepers, however, were accused of running brothels of one kind
or another, playing the role of intermediaries between prostitutes and their clients, then they
324
Article 7 ter of the Revised Draft Model Memorandum of Understanding (UN. Doc. A/61/494 of 3 October 2006).
325
Supra 2.3.3.1.
326
As prostitution per se is not criminalised, the Penal Code does not deal with the issue. No legal definition exists.
327
Higate PR ‘Men, Masculinities and Peacekeeping in Sub-Saharan Africa’ in Karamé K (ed) Gender and Peace-building in Africa (Training for Peace – NUPI (Norsk Utenriskpolitik Institutt) Oslo 2004) 67-90, 75.
328
Ibid. 76.
329
Article 170 of the Congolese Penal Code.
330
Quenivet N ‘The Dissonance between the UN Zero-Tolerance Policy and the Criminalization of Sexual Offences on the International Level’ 2007 (7) International Criminal Law Review 657-676, 668.
331
See supra (n 326).
332
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might be found to be in the situation of enforced prostitution.333 These aspects are
criminalised in Congolese criminal law.334
(a) Enforced prostitution:335 Article 174 c
Whoever compels one or several persons to perform an act or several acts of a sexual nature, by force, by threat of force or coercion or by taking advantage of their inability to give an informed consent, in order to obtain a pecuniary advantage or other benefit, shall be punished with a penal servitude of three months to five years.336
The elements of the crime of enforced prostitution under the above article are the same as under article 8 (2) (b) (xxii) of the Rome Statute of the International Criminal Court in that the preamble to the law that criminalises enforce prostitution under the DR Congolese Penal Code expressly indicates that the aim of enacting that law was to keep up with international
law.337 It is, however, not apparent from the reading of the preamble how the requirement of
connection to an armed conflict can actually be fulfilled. For this crime, therefore, to be established, the prosecution must prove that (1) the perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent; (2) the perpetrator, or another person, obtained or expected to obtain pecuniary or other advantage in exchange for, or in connection with, the acts of a sexual nature; and (3) the perpetrator knew that he was compelling the victim to engage in or to remain in, prostitution. With respect to the grounds of justification, one sees none excluding the unlawfulness of the crime of enforced prostitution as consent forms part of the definitional elements.
Where the perpetrator can establish that the victim was a willing party in engaging in prostitution, the crime cannot be proved, but the perpetrator can still be prosecuted for ‘pimping’ or brothel keeping.
333
UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, approved by UN.G.A. Res. 317 (IV) of December 2, 1949 entered into force July 25, 1951.
334
Articles 174 b and 174 c of the Loi nº 06/018 du 20 juillet 2006 JORDC du 1er aout 2006, or article 174 bis avant ladite modification. The crime of enforced prostitution may overlap with the crime of rape in that the victim is compelled to perform a sexual act.
335
The term ‘Enforced prostitution’ used in Congolese Penal Code is the same as the one used in Articles 7-8 of the Rome Statute of the ICC.
336
Article 174 c of the DR Congolese Penal Code.
337
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(b) Pimping and brothel keeping: Article 174 b338
Shall be punished with a penal servitude of three months to five years and with a fine of fifty thousand to one hundred thousand Congolese constant Francs:
1. Whoever, in order to satisfy someone else’s passions, hires, drives or causes a person of eighteen years of age or older to engage in prostitution, even with the consent of such a person; where the age of the person cannot be determined, this will be determined by medical expertise;
2. Whoever owns or keeps a house of prostitution;
3. The pimp: a pimp is someone who lives wholly or in part on the earnings of the prostitution of another person, at the expense of the person whose prostitution the pimp is exploiting; 4. Whoever exploits habitually, whatever the strategy used, the prostitution of others. Shall be punished with the same sentence as in the previous paragraph of this article:
1. Whoever distributes a document or pornographic movie to children under 18 years of age; 2. Whoever broadcasts on television obscene dances or indecent clothes, susceptible of
corrupting good morals.
When the victim is a child who has not reached 18 years of age, the sentence will be five to twenty years.
From an analysis of the above provisions, it appears that the perpetrator may be a male or a female person. The prohibition deals with the fact that a person earns a living from the
proceeds of the prostitution of others.339 The conduct consists of a number of acts, such as
recruiting prostitutes, owning or keeping a house of prostitution, and living on the earnings of
the prostitution of another person.340
A person can also be punished with the sentence incurred by a pimp where such a person distributes documents or movies, broadcasts lewd dances, or indecent clothes to children under the age of 18. The legislator considers such conduct as a way of enticing young people into obscene behaviour since the conduct is susceptible of corrupting good morals.
338
The provisions of this article have not been changed by the law supplementing the DR Congolese Penal Code.
339
See also Kakule Kalwahali The Criminalisation of Prostitution in South African Criminal Law (unpublished LLM thesis UNISA 2005) 30.
340
Living on ... refers to the habitual exploitation of prostitution of another person. The prosecution has to show an element of repetition to constitute the habit which is actually punishable but a single act of pimping or receiving money from a prostitute is not.
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From an analysis of the crime of displaying pornographic material to children, it is obvious that, for such crime to be established, the prosecution has to show that the persons to whom the document was distributed or the viewers to whom the broadcast was directed are actually children under the age of 18. If the movie or document was produced using children or adults disguised as children, the perpetrator can be charged with child pornography.
(c) Child pornography: Article 174 m
Shall be punished with a penal servitude of five to ten years and a fine of one hundred fifty thousand constant Congolese Francs, whoever makes any representation, by whatever means, of a child taking explicit play in sexual activities, whether real or simulated, or any representation of the sexual organs of a child, mainly for sexual ends.
With respect to the specific case of child pornography, Congolese law explicitly criminalizes the depiction of images or representations involving child pornography, even if such depiction
is simulated.341 The crime consists of the possession of pornographic materials even if such
material was actually produced using consenting adults. A person who is found in possession of such material, and it is discovered subsequently that he or she produced them using children, may be charged with crimes such as rape, or with the crime of being found in
possession of pornographic material involving children.342
2.3.3.3 Murder
Although there are no reported instances of unlawful killing of civilians by peacekeepers in the DRC, it remains necessary to discuss the specific elements of the crime of wilful killing or murder in the DR Congolese criminal law for the purposes of comparative analysis.
(a) Definition of murder
Murder is defined as a homicide perpetrated wilfully, with the intention of causing the death
of a human being.343 Where the killing has been premeditated, it is subsumed under the term
341
Article 174 m of the Congolese Penal Code.
342
Ibid.
343
Homicide intentionally committed to cause death is called murder. Murder committed with premeditation is assassination. They are both punished with death. See Articles 44-45 of the D.R. Congolese Penal Code. See also Avocats Sans Frontières Étude de jurisprudence : l’application du statut de Rome de la cour pénale internationale par les juridictions de la République démocratique du Congo (Francesca Boniotti Bruxelles 2009) 40.
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‘assassination’.344
They are both punished by the death penalty.345 There is no practical
interest, therefore, regarding the distinction between murder and assassination.346
(b) Definitional elements
The definitional element of murder consists in the act which causes the death of human
being.347 The said act must be not only material to the death of the victim, it must also be both
the factual and the legal cause of the death of the victim,348 although, and generally the act
consists in a commission, an omission in specific circumstances can cause the death of a human being. Thus, where a person has voluntarily omitted to execute a legal duty to act positively and a link can be established between such an omission and the death of the victim,
the perpetrator can be held criminally accountable for the death of the victim.349 Indeed, there
is no difference between causing death of a victim by assaulting the victim and reaching the same result (death of the victim) by refraining from executing a legal duty. This would be the case where a mother, without justification or just cause, refuses to breastfeed a newborn defenceless child or in a situation where a prison custodian does not give food to the
inmates.350 The omission is in such a case an act of commission by omission.351
Since murder can exist only in respect of a living human being, murder must be committed
against a person who has been born alive and was still alive at the moment of the act.352 There
is, therefore, no such a thing as murder on a corpse, nor on an unborn foetus not yet separated
344
Articles 44-45 of the D.R. Congolese Penal Code. Although the term ‘assassination’ is usually linked to the murder of political figures, in penal codes of French-speaking countries the term is used to mean any murder perpetrated with premeditation, even if the victim is not a political leader. See for instance article 394 of the Belgium Penal Code; article 144 of the Burundian Penal Code; 221-3 of the French Penal Code. See also Article 3(a) of the ICTR French version which uses the term assassinat ‘assassination’ where the English version uses the term ‘murder’ [Statute of the International Criminal Tribunal for Rwanda U N Doc. S/RES/955 (1994)].
345
Boma 10 décembre 1907 (Jur. Etat, II, p. 204).
346
See Likulia Bolongo op cit (n 300) 49.
347
Avocats Sans Frontières Étude de jurisprudence : l’application du statut de Rome de la cour pénale internationale par les juridictions de la République démocratique du Congo (Francesca Boniotti Bruxelles 2009) 40.
348
Ibid.
349
Ire inst. Stan. 23 décembre 1952 (J.T.O. 1954, 360); Kakule Kalwahali Droit Penal Special (unpublished course ULPGL-Goma 2011) 14.
350
For comparison, see English cases R v Gibbins and Proctor [1918] CCA where failure to feed a 7-year-old child constituted the required mens rea for murder for the accused to be found guilty of murder; R v Instan [1893] CCR where similar failure to feed a person constituted manslaughter.
351
Kakule Kalwahali op cit (n 349) 14.
352
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from its mother.353 Murder can be established and its perpetrator convicted only if no ground
of justification exists. (c) Unlawfulness
It is an element of murder that the crime must be unlawful. Grounds of justification such as performance of a duty imposed by law or executing superior orders, private defence, lawful use of arm by public officer, and a state of necessity may have some bearing on the criminal liability of the perpetrator.
Performance of a duty imposed by law and the lawful use of arms by a public officer This ground of justification applies when it has been legally enacted as such. The individual who has, for instance, overseen the process and execution of a person sentenced to death, in
observance of the required procedure, cannot be considered to have committed murder.354
Likewise, policemen who make use of firearms to disperse demonstrators or to repress riots cannot be found guilty of murder if death to some victims results from their conduct; no
condemnation can be pronounced against them because they are justified.355 This would apply
to peacekeepers prosecuted to have caused the death of a person during a rampage directed at UN peace mission headquarters.
Private defence
Under DR Congolese criminal law, private defence is not a written principle. This explains the absence of any reference to enacted legislation. It has been decided by courts that private defence should be resorted to only if one finds one’s self in imminent unavoidable grave
danger, without any other way out.356 The reaction must be proportionate to the aggression.357
State of necessity
Necessity is an available defence to any person accused of having committed a crime under Congolese criminal law. It remains, however, an unwritten general principle of criminal law.
353
Killing a foetus in the womb is treated as an abortion.
354
For instance a pregnant woman cannot be executed if it has been proven that she is an expecting mother. The execution has to be suspended until the child is born. See article 3 of the Arrêté du gouverneur général – Exécutions capitales. (R.M., 1898, p. 59; Rec. Us., III, p. 46) du 9 avril 1898.
355
Likulia Bolongo op cit (n 300) 74.
356
Boma 30 septembre 1902 (Jur. Etat I. 216).
357
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Indeed, when a person acting under a threat of severe and irreparable harm to his life or limb, or to the life or limb of another person, perpetrates an offence, the person under such a threat cannot be punished. To stand as defence and justify the would-be-perpetrator, four requirements have to be met: (1) the act which would constitute the offence must be performed under an immediate threat of severe and irreparable harm to life or limb; (2) there must be no other adequate way of averting the evil; (3) the crime committed is not disproportionate to the evil threatened, i.e. the violation of the law is a lesser evil than the evil avoided; and (4) sometimes the threatening situation must not have been created by the person
asserting the justification.358 Since there has been no allegation of murder against MONUC
personnel, it suffices to refer to the discussion under Somali and Burundian law regarding the
issue of whether necessity can justify murder.359
Presumed circumstances excluding punishment
The envisioned instances here are those in which a person attacked viewed the attack as unlawful whereas it was lawful. The defence of self-defence cannot, therefore, stand. This will be the same where a person mistakenly believed himself or herself to be in danger and to avoid the danger such a person committed a crime. It cannot be said he or she has committed the crime wilfully. Intention cannot be established for he or she presumed he or she was acting in circumstances excluding liability. In such situations the accused lacks culpability. (d) Culpability
As it has been argued above, peacekeepers are adults; the issue of criminal capacity, therefore, does not arise, except where the capacity issue includes that of mental illness and
intoxication.360 The latter defences, however, are usually discussed together with the issue of
the mental element of the crime. The mens rea required for the crime of murder is intention.
This requirement is clear from the formulation of the provisions on murder and assassination
which reads that a homicide must be ‘intentionally committed to cause death’.361
358
Nyabirungu mwene Songa Traité du droit pénal général congolais 2e éd. (Editions Universitaires Africaines Kinshasa 2007) 168-175. If a person put himself into a situation of necessity to be able to perpetrate a prohibited act, such a person cannot be justified. See Ibid. 175.
359
See supra 2.3.1.3 and 2.3.2.3.
360
See supra 2.3.1.3.
361
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2.3.3.4 Assault
The provision of the DR Congolese Criminal Code which criminalises assault defines this
crime in terms of voluntarily causing injuries to another human being.362 Premeditation, viz
the planning of the perpetration of such a crime is not only a psychological element of mens
rea but also an aggravating circumstance.363 Therefore, for assault to be present, the
prosecution must prove that there was a voluntary conduct which resulted in a human being suffering and such act produced unlawful consequences.
(a) Definitional elements of assault
For the crime of assault to be present, the conduct must have caused injuries to the body of the
victim.364 The injuries may be inflicted by direct contact with the body of the victim or