Journalist and rape survivor Charlene Smith last week chose to testify in open court in the trial of the person who allegedly raped her. Rape survivors usually choose to testify in a court closed to the public. She explains her decision
Two-and-a-half centuries ago, French philosopher, Alexis de Tocqueville, writing on American democracy observed, “The courts are the most obvious organs through which the legal body influences democracy.”
However, courts can only influence democracy if we as citizens beat the drums in their rather dingy hearing rooms. If we fail to lay charges against criminals, do not harass the police to investigate our cases, and refuse to testify before courts how can criminality can be curbed or ended?
It is silence that allows criminality to flourish and democracies to wither.
It is silence that allows society to victimise survivors of violent crime – and surrender power to criminals
Because victim is a term of abuse, everyone from police officers to medical staff, to friends and colleagues treat the “victim” with lessened respect – a criminal has triumphed over them. And thus, society strengthens the hand of the criminal.
A survivor is a person who, from the beginning, asserts their triumph – through good luck or their own actions they have survived a potentially fatal attack on their being. It was Nelson Mandela who said, “Judge me not on how I have risen, but on how many times I have fallen and risen.”
All of which is another way of saying, it is neither courageous, nor extraordinary to testify before court in a rape trial, it is necessary.
It is necessary because if we don’t lay charges against rapists or testify they will do it again.
The thought of testifying is more terrifying than the actual event, and once you have done it, there is a tremendous feeling of release and relief. In the month before the trial I became progressively more anxious. I asked family and friends to stay away because I needed a clear mind.
The most difficult part was reliving the event, although I have recounted the tale many times before, as time has progressed I find it more difficult to relive certain aspects.
I was warned that for the cross- examination I should not look at the defence lawyer, I should look directly at the magistrate, “because the defence will try and intimidate you.”
But we never know how we will react until things occur. When cross- examination began I sat on a chair kindly furnished by the court interpreter. I felt an absolute cold calm, I was polite and tried to give clear answers. I looked the defence attorney in the eye the whole time.
I don’t know if it was because of that, but I felt the defence cross-examination, although often mysterious to me, was fair. I’d heard of cruel, disrespectful defence attorneys but I felt that within the bounds of his duties I was fairly examined. But then again I was also not a quivering “victim” on the stand – it is easier to badger the young, or those who seem weak, than those who look you in the eye.
Many of us, by opting for closed courts, allow defence counsel to be more aggressive than many would dare be in an open court where the public sit behind them; their eyes watching, their ears hearing – they will make harsher judgments than any court.
Although the law says survivors should be given the option of open or closed courts, not all are. I’ve seen women testify without that option in Sebokeng and Johannesburg. I refused to return to court reporting as a young journalist after watching a young woman raped by eight, battle to give testimony while the rapists sniggered and joked in the dock.
Women who have been gang raped should be given the real in-camera option, given to children in certain courts, of never entering the court to face the alleged rapists but to testify before a camera and their evidence to be relayed by video to court.
If we opt for closed courts, we opt for shame, we draw the veil over our pain, and the rapist’s savagery, we allow society to slumber instead of saying, this is your doing – heal it.
But the trial does not end with our testimony, others have to testify, and the truth is not an exact science, recollections do not always concur, time may erode exactitude. There may be technical flaws we cannot envisage.
The outcome of a court hearing is like going for an HIV test. You know you want a certain outcome. But you also know that destiny and circumstance may not be with you.
You have to prepare yourself to accept the outcome you don’t want, and find ways to restructure your life accordingly.
But if we never report, never testify, how will we ever get rapists off our streets and protect the next woman?
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