b. Testimony of the victim i. States must guarantee that the rules applicable to gathering and using evidence do not discriminate against victims of sexual violence. ii. For offences involving sexual violence, States must provide for a reversal of the burden of proof such that the victims are not obliged to provide any evidence other than their own statement. This means that, depending on the circumstances, the statement of the victim can be sufficient proof of an act of sexual violence in the absence of any other corroborating evidence (witness statements, documents, medical reports, photos, etc.). iii. States must guarantee that any mention of the previous or subsequent sexual behaviour of the victim is inadmissible as evidence taken into account to determine whether sexual violence has taken place or as a mitigating circumstance, including any potential questions about virginity or arguments that the victim has delayed in reporting the violence. Explanatory Notes: ICTR, Case of Mucić et al, Rules of Procedure and Evidence, Article 96; Namibia, Combating of Rape Act, Article 5 (2000); Law on Sexual Violence, Democratic Republic of the Congo (Law 06/018 of 20 July 2006 amending and supplementing the Decree of 30 January 1940 on the Congolese Criminal Code and Law No. 06/019 of 20 July 2006 amending and supplementing the Decree of 6 August 1959 on the Congolese Criminal Code), Articles 14.2 and 14.3; Rules of Procedure and Evidence, International Criminal Court, Rules 70-71, especially Rule 70 c), indicating that “Consent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence”; International Protocol on the documentation and investigation of sexual violence in conflict, Annex 9, Rules of evidence and procedure as tools for the protection of survivors/witnesses (2014); Kenya, Kenyan National Guidelines on the Management of Sexual Violence (2009); WHO Guidelines for the medico-legal care for victims of sexual violence (2003); Bangladesh High Court, Al Amin & Ors v. the State Bangladesh 51 DLR (1999) 154, which recalls that the statement made by the victim of rape in and of itself constitutes sufficient evidence, as long as it is credible and consistent; European Court of Human Rights, M.C. v Bulgaria, application 39272/98, judgment of 4 December 2003, par. 166; Rule 70 of the ICC’s Rules of Procedure and Evidence provides that “[c]onsent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence.”; Karen Tayag Vertido v the Philippines, Communication No. 18/2008, CEDAW/C/46/D/18/2008, par. 8. 9. (1 September 2010). 41. Legal prosecution launched and conducted by the Public Prosecutor 41. 1. Legal action initiated and conducted by the Public Prosecutor The Public Prosecutor must be able to initiate criminal legal action, even in the absence of a complaint filed by the victim(s). Prosecutors must be able to pursue legal action, even if the victims withdraw their complaint, in agreement with the victims when possible, and always taking into consideration the security and safety of the victims. Explanatory Notes: See the Sexual Offences Courts in South Africa beginning in 1993 and the Sexual and Gender Based Violence Crime Unit in Liberia beginning in 1999. 41. 2. Participation of the victims and witnesses in the proceedings States must take all necessary legislative and other measures so that victims and witnesses of sexual violence have the right to be heard and duly represented, especially by allowing them to present their views and concerns at each stage of the proceedings where this is appropriate, while respecting the rights of the accused. Victims and witnesses must be informed of their roles, guarantees of protection and confidentiality, the schedule of proceedings, appeals, and progress in the trial – such as requests for release filed by the perpetrator of the violence – and be informed of the decision made in their case, especially regarding the arrest, detention and release of the perpetrator of the violence, while respecting the rights of the accused. 34 GUIDELINES ON COMBATING SEXUAL VIOLENCE AND ITS CONSEQUENCES IN AFRICA