Judge Pierre Olivier rejected a seven-year sentence for a rapist because the victim `suffered no serious injury’. Gaye Davis reports
AS Mr Justice Pierre Olivier was being interviewed for an Appeal Court post this week, it emerged that a rapist whose jail sentence was set aside in a controversial decision by the judge has been charged with another rape.
Human rights and gender lobby groups this week made formal objections to the Judicial Services Commission (JSC), expressing “extreme concern” about the judge’s views on violence against women and renewing calls for the JSC’s hearings to be thrown open to the public. Judge Olivier, currently an acting Appeal Court judge, is a candidate for one of three permanent positions in the Appellate Division (AD).
Meanwhile, in a Cape Town regional court, evidence was being led that one of the two men whose sentences were set aside by Judge Olivier had later faced a subsequent charge of rape and was convicted of having intercourse with a minor. It was also alleged that he had attempted raping his sister — now the wife of his co-defendant — when she was a schoolgirl .
The court was hearing fresh evidence — including a report on the men’s suitability for correctional supervision, rather than jail terms — as ordered by Judge Olivier in his March 1994 ruling. Among those giving evidence was the woman who, at the time of the rape in 1989, was 19 years old and a virgin.
But at issue for the groups who laid objections before the commission this week were the grounds on which Judge Olivier decided to set aside the sentences originally imposed by the trial court, and which were later upheld in a Cape Supreme Court appeal.
Judge Olivier found that:
* the rape was based not on violence but the need for sexual gratification;
* she had suffered no serious injury or psychological harm;
* the fact that she knew one of the men well meant she was not raped “by total strangers”;
* she must have known that the men were lying when they threatened her by saying they had a gun.
“These findings fly in the face of years of international research on women’s experience of rape,” said Dr Cathy Albertyn, head of the Gender Research Project at Wits University’s Centre for Applied Legal Studies in an open letter to the commission.
“Not only do they appear to suggest that the judge does not believe that rape in itself is a serious offence, but they appear to reinforce and perpetuate within the law many of the myths and stereotypes that surround rape and that have resulted in the unfair treatment of women as complainants in rape trials.”
Albertyn’s letter — endorsed by Rape Crisis, Lawyers for Human Rights, the University of Cape Town’s Institute of Criminology and its Caucus on Law and Gender — echoed other objections laid by the Black Sash and UCT’s Law, Race and Gender Project in urging the commission to throw open its hearings.
Said Albertyn: “We believe that the public has a right to know what prospective judges think on issues such as violence against women. We strongly urge the JSC to make public its concern about these issues and to find a way of making the proceedings themselves open or accessible to the public.”
Margot Locherenberg of UCT’s Institute of Criminology also expressed concern at Judge Olivier’s “worrying disregard for the facts of the case”. While he found the woman suffered no psychological harm, the trial court magistrate had said he couldn’t make a finding on this as no evidence related to it had been led.
Judge Olivier was closely questioned about the judgment when interviewed as a candidate for the Constitutional Court by the JSC in October. Those hearings were open to the public. This week’s proceedings, in which the JSC is interviewing candidates for a number of AD and supreme court appointments, are not.
In its objection, the Black Sash’s Legislation Watch Group said it was “extremely concerned” by the grounds for Judge Olivier’s decision, which recognised neither “the seriousness of the crime nor the reality of women’s experience of rape. The AD is the most influential court with regard to setting guidelines for sentencing, for provincial judges and magistrates alike. We are concerned by the attitude to women and rape displayed by this judgment”.
* Albertyn’s letter noted “with concern” that no women or black candidates had been nominated for appointment to the AD, when three “extremely able” women candidates had been turned down for the Constitutional Court.
It was crucial the court’s judges represented society at large in the interests of legitimacy and its “fair and effective working in a constitutional setting such as ours”, Albertyn said.
She said concern over the secrecy of the hearings was compounded by rumours in legal circles that only sitting supreme court judges would be eligible for appointment.
“Given the current race and gender composition of the provincial Bench, such a procedural requirement can only further exclude women and black people from appointment to the AD. We request the chairperson of the JSC to confirm immediately that this rumour is not true.”