Women who are raped by someone they know are less likely to report and successfully convict their offenders, according to legal experts.
This was despite the fact that the law does not distinguish between acquaintance and stranger rape.
With stranger rape, if there is good identification, it can be fairly clear-cut,” said Lisa Vetten of the Centre for the Study of Violence and Reconciliation. ”But the minute it boils down to someone’s word against another’s, it becomes more difficult, and so many stereotypes and prejudices come into play.”
Vetten described a case in which a woman had gone out with two acquaintances and got drunk before being raped. The defence focused on her drinking and the fact that she had worn a short skirt to weaken the case, which had been dismissed after her testimony.
Dee Smythe, a legal researcher at the University of Cape Town, said the courts tended to treat as ”real rape” sexual assaults in ”a dark alley with a weapon”. And what the public considered to be ”real rape” had a better conviction rate than acquaintance rape.
One reason for the differing conviction rates is the historical tendency of courts to distrust the testimony of acquaintance rape ÂÂsurvivors.
A famous statement by 17th century English jurist Matthew Hale — that the charge is ”easily to be made and hard to be proved, and harder to be defended by the party accused, tho’ never so innocent” — underscores this.
A legacy in South Africa is the cautionary rule, expressed by Judge G Holmes in 1968. Holmes called for a rule of practice in which the court recognised the ”inherent danger” that a rape survivor, like an accomplice in a criminal trial, ”has a deceptive facility for convincing testimony”.
In a 1998 landmark case, Judge Pierre Olivier refuted the grounds for the cautionary principle and found Hale’s statement ”insupportable”. In 2002, however, Judge Wilfred Thring said courts should exercise extreme caution before convicting people on serious charges such as rape, and the evidence of a particular case might warrant a cautionary approach.
The use of character evidence feeds the air of distrust around women who allege rape, and Vetten said that defence lawyers often tried to undermine their credibility.
In one case, the defence used the fact that the complainant was wearing black, lacy underwear to suggest she was a person of loose morals.
The defence also used the fact that she was on psychiatric medication and had been raped by a stranger 18 months previously to suggest that she was emotionally and psychologically unstable. The magistrate threw out the case.
Defence lawyers commonly used these ”nuts or sluts” arguments, said Smythe.
In addition to good prosecution, forensic evidence and police investigation, a successful rape conviction required the woman to stand up well under cross-examination, said Vetten.
The 8% conviction rate of reported rapes indicated that this combination of factors rarely existed, she said. ”It’s about who can create the best spectacle.”