The intense verbal battering of the complainant in Jacob Zuma’s rape trial by defence counsel Kemp J Kemp would have been subject to far tougher restrictions if the long-delayed changes in the legislation dealing with sexual offences was on the statute book.
In 2003, Parliament’s portfolio committee on justice and constitutional development began considering the Criminal Law (Sexual Offences) Amendment Bill, which set out to overhaul radically the definition of rape and sexual assault, and correct profound structural imbalances in the treatment of rape survivors compared with complainants in other criminal cases.
Its first draft, prepared by the South African Law Reform Commission, was welcomed by rape activists as substantially improving the legal position of rape survivors.
Among other things, it removed the term ”consent” from the definition of rape, replacing it with the notion of sexual penetration in ”coercive circumstances”; set sharply defined limits on the circumstances in which victims could be questioned about their sexual history; provided mechanisms for children’s testimony; and provided for support personnel to assist survivors in court.
Crucially, it declared all complainants in rape cases ”vulnerable witnesses” and required prosecutors to inform them of protective measures available to them, such as ordering the public to leave the court, testifying via closed circuit camera and prohibiting the publication of certain details.
The committee, chaired by Johnny De Lange, now Deputy Minister of Justice, proposed numerous changes, some of them so substantial as to require redrafting, and resubmitted the Bill to Cabinet.
That process languished through the latter half of 2004 and much of 2005, with officials responsible for doing the drafting tied up in other projects, and the justice ministry distracted by the Khampepe commission and the row over judicial reforms. The Bill is now working its way through the Cabinet system.
Pressed by committee chair Fatima Chohan this week on when the legislation would be retabled in Parliament, justice officials were unable to give a firm date, but said it was ”a priority”.
The most recent draft of the Bill available for public scrutiny is the committee’s final version, dated April 2004. ”Each draft following the law reform commission’s version has weakened the rape survivor’s position,” said Lisa Vetten of the Centre for the Study of Violence and Reconciliation.
Vetten pointed to a number of changes made by the committee, including the reinsertion of consent in the definition of rape, the removal of ”vulnerable witness” protection clauses, and the removal of provisions for support personnel.
The ”cautionary rule”, which warns that some categories of witness — notably children and complainants in sexual offences — are less reliable, was abolished in the original draft, but is left intact by the committee.
Consent is crucial to ”acquaintance rape” cases like the Zuma trial, in which the accused admits to sex but not rape. Kemp’s questioning has focused not only on discrediting the complainant by probing her sexual history, but on showing that her behaviour implies consent. In terms of the draft Bill, the contest might instead have been over whether the circumstances in which Zuma and the complainant had sex were ”coercive”.
But even in terms of the latest draft, the prosecution would have had more weapons at its disposal. The 2004 draft defines consent as ”free agreement” and sets out circumstances in which it might be absent — the use of force, threats, the abuse of authority, and fraudulent claims.
On this definition, a court might find that rape took place even under circumstances where the complainant offered no obvious verbal or physical resistance.
And despite the committee’s changes, the draft Bill suggests a wide range of other improvements in the law beyond making it gender neutral.
The protection from irrelevant questioning on past sexual history is beefed up, and delays in reporting the offence are no longer seen as casting doubt on rape allegations.
If that were the case with current legislation, Kemp’s interrogation of the complainant’s failure to raise an immediate hue and cry might have been beside the point.
It seems that the committee, under De Lange, was concerned about the practicalities of implementing certain provisions — especially those designed to support witnesses. The jurisprudence of other provisions particularly those surrounding consent, and the criminal procedure changes that direct courts on how to treat evidence have also been of concern.
What the Zuma trial underscores is that even the modest protection currently available to rape survivors is not fully deployed in court.
Pressure for change is mounting. Some are quietly mooting a move to the European-style inquisitorial system for sexual offences.
What the psychologist had to say
Clinical psychologist Merle Friedman, who testified this week in the Jacob Zuma trial, was asked by the Director of Public Prosecutions to assess the rape complainant’s behaviour during and after the alleged rape. The following are excerpts from her evaluation:
On the complainant’s demeanour:
”F is … straightforward and clear. She engaged well in the interview and answered all questions without avoidance or denial, and with appropriate emotionality. This is consistent with someone who has had opportunities … to reflect on and process the traumatic event.”
On her relationship with Jacob Zuma:
”What is clear is that F came to the house of the accused because she saw him as a protector. A child in the family was in hospital in Swaziland as a result of a snakebite. She reported that he persuaded her to come to his house, as she would feel safe at this stressful and difficult time. During the evening they discussed her health, possible treatments for her HIV infection, and the accused suggested she should have a boyfriend for her future … These conversations can be seen as consistent with the complainant’s view of him as a father figure and protector.”
On her reaction to the alleged rape:
”She reports that she was completely overwhelmed and shocked … and that she said ”no” twice, to no avail. She reports that she froze during the incident and closed her eyes, as she was not able to believe what was happening … She describes the time until she arrived at work the following morning as if she was in a trance. She was only able … to seek medical help and report [the incident] when she had support to do so.”
On why there was no struggle:
”When an attack is completely unexpected and the victim is woken from sleep and perceives herself to be trapped, it is probable that her response would be to freeze and submit, rather than to fight … The history of the relationship, as that of father/daughter, and the respect in which she held him, would further reduce the chance of her fighting. The shock at being awoken from sleep by the man she regarded as a father figure, naked with an erect penis, with his intentions clear, was a shock; she was trapped, terrified and helpless, and unable to respond in any way other than to freeze. This is typical of a response to rape.”
On her confusion:
F sent SMSs that were confused. She mentioned discomfort with sexual innuendo, but not rape … Naming an incident like rape means facing the full reality of what has happened; this was too difficult for her. The trance-like state she describes, referred to as dissociation, is the response to very severe traumatic exposure … In addition, the public and powerful figure of the accused, together with the display of power that rape is, would further explain her confusion and traumatisation … My own experience with rape victims is that in the hours after traumatic exposure they are certainly not able to think clearly … Her confusion and her actions [are] entirely consistent with what I would expect from a rape victim … One might expect that the first thing that someone who has been raped might do is run out and contact the police. But this seldom happens.”
On symptoms of post-traumatic stress disorder:
F reported fearing for her survival, in her words, ”I didn’t think I could live through it”, and feeling confused, very scared, helpless and weak. The comments fulfil part … of the criterion for traumatic exposure … F reports some vivid flashbacks, which were triggered again on reading newspaper reports. These flashbacks were recurrent over more than a month and were accompanied by fear, disgust and a further dissociative episode. She also reports recurrent nightmares in which she meets the alleged perpetrator … Being asked ”Are you sleeping?” … triggers great distress; in her words: ”I feel like screaming. I can’t bear to hear that.”
On long-term effects:
”F reported violation of very significant areas of her life — the physical violation of the rape and the emotional violation resulting from the alleged perpetrator being a father figure and protector. She reports that her basic trust in other human beings, and men in particular, has been damaged … The very public nature of this process and trial means that a great deal of courage has been needed to report and pursue the case … There has been great disruption of F’s life, including the investigative and legal processes, the voiced suspicion around her integrity as well as the experience of witness protection. All these will have a long-term impact on her life.”