/ 7 February 2011

Anonymity a rape survivor’s right

There are significant reasons why the Rape Crisis Cape Town Trust believes that the anonymity of the rape survivor should be protected.

While we appreciate that Naomi Wolf’s piece, “Cloaking rape victims fosters myths” (January 21), draws attention to the myths that make reporting a rape difficult, there are significant reasons why the Rape Crisis Cape Town Trust believes that the anonymity of the rape survivor should be protected.

The points raised by Wolf are valid. The accused is named, but the accuser is not, and this has historically been based on protecting women from the social shame associated with being raped. Wolf is right that hiding the identity of rape survivors perpetuates the idea that there is something to be ashamed of, when in fact there most certainly is not.

Yet there are problems with the assumption that the naming of the more than 68 000 people who reported sexual offences in the 2009-2010 crime statistics would make a difference to the way these crimes are prosecuted, or to a system that does not want to prosecute rapists. In addition, there are several significant reasons why protecting the privacy of rape survivors (or “accusers”, as Wolf calls them) is critical to a system that empowers survivors and is thus more able to prosecute rapists effectively.

An empowered survivor is key to an effective trial, because a survivor who feels safe and respected, who has information about the system and her/his case, and has access to choice about the parts she/he would like to participate in is more likely to stay in the system until the end of the trial and testify strongly.

Even before that, a survivor who is supported when reporting the rape is more likely to give a clear and coherent statement and is more able to give evidence. Essentially, a criminal justice system that empowers survivors is more able and likely to result in convictions where they are due. This is all feasible without the ­survivor being named.

Rape is a crime that systematically disempowers a person. It removes a person’s access to choice, respect and safety. Often, after being raped, a survivor has no idea what to do because the levels of legal literacy in South Africa are extremely low and information on how the system works is difficult to access.

When survivors report the rape, they enter into a system that they in all likelihood do not understand. They do not understand their role and responsibility, they do not understand the difference between a civil and a criminal case and, most significantly, they are often not fully informed about the role they are expected to play, even if they ask. There is no positive duty on criminal justice officials to inform survivors in the same way they inform rapists.

Wolf is right that other crimes require that the accuser is also named, but rape is a crime that is unique in that survivors are often blamed, disrespected, treated insensitively and their behaviour and moral integrity scrutinised beyond that of the victims of other crimes. In addition, the fact of the rape is also the cause of extreme pain to those close to a rape survivor. This intentional process of scrutiny is conducted in the course of most court cases.

Yet the survivor of a rape is relegated to the role of a witness in the state’s case against the accused. An accused can choose to defend him or herself. A rape survivor does not have access to legal representation in the same way that the accused does, neither does the survivor have the right to cross-examine the accused about the accused’s behaviour in the way that the accused can cross-examine the survivor. A rape survivor’s decision to report is a personal one. Despite reporting, survivors may choose not to inform their family, employer or friends. This may relate to social stigma, but it may also come from a desire to protect loved ones from the pain they will feel if they found out the survivor was raped. By naming the survivor in public, without providing suitable psychosocial support to the survivor, family and friends, further trauma is caused to the community.

Making the names of survivors public will subject many survivors to media scrutiny. It may also subject them to a trial by media, particularly when the accused has a high profile. This only serves to protect high-profile perpetrators.

A rape survivor’s name in the press is thus vulnerable to threat, intimidation, shaming attitudes, even condemnation. With estimates as low as one in nine women reporting rape, the trauma caused by making their identity known will only add to the overwhelming disincentive to report the rape or lead them to drop the charges.

Perhaps in a system where all accusers are equipped with the legal literacy to demand their rights from the criminal justice system and are provided with adequate support during the proceedings, they would feel brave enough to choose to make their identity known. Unfortunately, that is not the state of affairs today.

In the interim, Rape Crisis Cape Town Trust supports survivors’ right to dignity, their right to choice, their right to privacy and their right to anonymity.

Jennifer Thorpe is a researcher and advocacy coordinator at the Rape Crisis Cape Town Trust. For more information, visit the website.