/ 12 December 2006

Protecting rights of rape survivors

For many of us working in the gender-based violence sector, the defining images of 2006 will be those from the Jacob Zuma rape trial: headlines in newspapers promising details of the “15 minutes of delicious sex”; Zuma supporters burning pictures of the complainant outside the court; and the gruelling, humiliating cross-examination of the complainant about her sexual history in a packed courtroom. In many ways, the trial represents the worst of the criminal justice system, highlighting how easy it is to undermine the constitutional rights of a rape survivor to dignity and privacy, under the guise of protecting the rights of the accused to a fair trial.

Many survivors who have gone through a criminal trial will identify with these issues, and those contemplating laying charges of rape will remember them and may hesitate to proceed. Unfortunately, these issues are not new — there is much research, local and international, that documents the trauma experienced by rape survivors at the hands of the system that is meant to protect them.

In a criminal trial, the complainant is a witness for the prosecution, and she has no independent rights — she cannot be represented by an attorney or advocate during the trial and, unlike an accused, she herself has no right to a “fair” trial. In many cases, the complainant only meets the prosecutor on the morning of the trial and she is unable to influence trial strategy on which witnesses are called, what evidence is led and what arguments are made on her behalf. One complainant described herself as a “mere spectator”.

Currently, the Criminal Procedure Act, which regulates how criminal trials are conducted, provides limited protection to complainants in sexual violence cases. These measures are largely inadequate and frequently implemented in a manner that further undermines the rights of complainants, rather than enhancing them. An example of this relates to the right of a complainant to give her evidence in a closed court, an exception to the general rule that trials are conducted in open court.

The purpose of section 153 is to spare her the humiliating and degrading experience of having to recount the sexual details of the assault before a room full of strangers, many of whom may be sympathetic to the accused. A practice that has emerged illustrates how the courts fail to use this provision to protect complainants from unnecessary violations of their rights to privacy and dignity. Many courts allow a complainant to nominate members of her family or friends to remain in court to support her during her evidence. This is a good thing, but the accused is allowed to choose an equal number of people to remain in court to support him while the complainant is testifying. This often has the effect of revictimising the complainant, as the accused frequently chooses those in his entourage who are openly hostile to the complainant, and she is still forced to give her evidence in front of strangers. It is notable that there is no provision made in section 153 compelling this — the section simply states that the court can order any person “whose presence is not necessary at criminal proceedings” to vacate the court.

The courts also frequently allow the press to remain in court, merely enjoining them not to report the name of the complainant, or any details that would reveal her identity. In the Zuma trial, despite the ruling of the court that the complainant give her evidence in a closed court, the courtroom was so full that it was often difficult to get a seat.

In its comprehensively researched paper on reforming the law of sexual offences, the South African Law Reform Commission recognises the inherent difficulties in the current system and the need to do more to protect the rights to dignity and privacy of complainants. It has made extensive recommendations to the department of justice, suggesting that all complainants in sexual offences trials be declared vulnerable witnesses, and have access to protective measures. Prosecutors would have a duty to inform complainants about the existence of these measures and the court would be obliged to use at least one. These measures, which included allowing complainants to testify via CCTV, preventing an unrepresented accused from directly cross-examining a complainant and allowing a complainant to have a support person present with her in court at the state’s expense, have been removed from the Sexual Offences Bill and will therefore not become law when the Bill is passed next year.

The question therefore remains: How do we better protect the rights of complainants during sexual violence trials? I offer three suggestions: first, reinstate the protective measures for vulnerable witnesses in the Sexual Offences Bill; second, ensure that complainants have adequate access to psycho-social support during and after the trial (provisions making such support available at state expense were also excised from the Sexual Offences Bill by the department of justice); and finally, perhaps more radically, allow complainants to have access to legal advice and representation. Many will argue against such a right, particularly on the grounds that it may “stack the deck” against an accused. But, considering the extraordinary low rates of convictions in rape cases and the continued re-traumatisation of complainants, the time has come for more drastic action.

Liesl Gerntholtz is the director of the Tshwaranang Legal Advocacy Centre