Legal experts are surprised that the Jules High School girl's in camera testimony that the videoed sex was consensual, was leaked to the press.
Legal experts were surprised to find that the latest news about the in camera hearing of the 15-year-old Jules High School girl who was allegedly gang-raped was leaked to the press.
The Mail & Guardian initially ran a news agency article reporting that the girl involved in the case had said on Thursday that the sex was consensual.
Upon further reporting by the M&G, it was discovered that the information was confidential.
On Thursday evening, the Star reported that the teenager who first accused two boys of raping her while she was under the influence of drugs had dropped her claim. According to IOL, the girl now says that the sex was consensual.
Earlier this week it was reported that national director of public prosecutions Advocate Menzi Simelane had decided to charge all three parties involved in the matter with statutory rape. This after a prosecution team dismissed the girl’s rape claim and recommended statutory rape charges against the three, according to The Star.
But Dr Jacqui Gallinetti, a children’s rights expert from the University of the Western Cape (UWC), regarded the news with skepticism. She said that other than the girl and her parents, only the magistrate, prosecutor, probation officer and a legal representative should have been present at her hearing.
According to Gallinetti, as this was still a preliminary enquiry, it was confidential.“If someone came out and said [that the girl had dropped her claim], it would be a breach of court protocol. It’s highly unlikely that it came from the magistrate,” she said.
Protecting the child
Busi Motshana, of the Tshwaranang Legal Advocacy Centre, agreed. “The first question is how [the media] got hold of this information. There was no confidentiality. Were media people allowed into the court and if not, how did that information get out? To me it’s not protecting the child,” she said.
The information appears to have been leaked to the media through an anonymous source close to the matter.
Last week Media Monitoring Africa (MMA) raised concerns about the way the story had been dealt with in the media.
“At a very basic level there have been a number of discrepancies in how the monitored media more broadly has reported this story — MMA calls on all media to ensure that all reports on this matter are reported in such a manner that the best interests of the children involved are respected,” it said in a statement post on the MMA website.
Rape or consensual sex?
In addition to the problematic handling of the case by the media, it has also been clumsily handled by the justice system.
Legal experts who the M&G spoke to said that without knowing the details of the case, it would be difficult to say whether the sex had been consensual or not. They also could not comment on whether the girl may have been pressured into dropping her initial rape claim.
However, Samantha Waterhouse, parliamentary programme coordinator at UWC’s Community Law Centre, pointed out that there is only a 7% conviction rate for rape in South Africa.
“[This] tells you a lot about how reluctant we are as a society to prosecute and convict for rape,” she said. In addition, Waterhouse also said that adolescents, who are not usually sympathetic victims, are less likely to be believed than any other group in society.
If the girl had maintained her rape claim, she would have been called on to give evidence during a trial. If she has indeed dropped her claim and is to be charged with statutory rape alongside the two boys, as has been reported, the trio will be diverted away from the criminal justice system into a tailor-made intervention programme that focuses on life skills.
Problematic Sexual Offences Act
The Jules High case has brought deficiencies in the Sexual Offences Act into sharp relief. A section of the Sexual Offences Act makes consensual sex between children under the age of 16 illegal.
Waterhouse said she believes section 15 of the Sexual Offences Act, which treats consenting sexual acts between children as criminal, should be reviewed. According to Waterhouse, a children’s rights group is currently challenging section 15 of the Act.
Consensual sex among minors is “not a criminal offence, it’s a social offence,” she said.
Gallinetti agreed, saying “One also has to bear in mind that people in South Africa are innocent until proven guilty. The boys were vilified as violent rapists when they were involved in possibly consensual experimentation that could have been dealt with sensitively, not splashed over front pages and talk shows.”
“We have to ask, if there had not been as much hype, would the NDPP [National Directorate of Public Prosecutions] be prosecuting these children?”