A humane court is not a bad court

Pastor Tim Omotoso’s lawyer, Peter Daubermann, seemingly thinks, wrongly, that his client’s right to a fair trial includes the nonexistent right of a defence lawyer to victimise a rape survivor.

It is important that the trial of this pastor should lead to a critical reflection on the relationship between law and society. Laws regulate our behaviour as social creatures. Legal processes, in turn, are designed to ensure that the social norms codified in law are effectively enforced.

The extent to which society benefits from the law and the associated legal processes must be the ultimate criterion for deciding whether the legal system works. When the system is found wanting, it must be fixed to serve society better.

Legal processes aren’t inherently good. They only have instrumental value in regulating social life. It is therefore not desirable that the debate about law and society should be restricted to lawyers. Every citizen is entitled to debate the place of law in our society. Indeed, some lawyers who are fluent in legalese but weak in their understanding of disciplines such as sociology and psychology are bad ambassadors for the law.

I know many lawyers who have an excellent interdisciplinary approach to the law. Some studied subjects and disciplines other than the law before they decided to become lawyers. Many are simply agile enough to teach themselves a baseline level of knowledge and gain insight into the subject matter that is before a court. But there are too many lawyers who think that rote learning the law and mechanically applying the lessons from law school exhaust the obligations they have as practising lawyers.

Daubermann appears to be the latter kind of lawyer, the dangerous kind. If he is familiar with life beyond law and with disciplines outside of law then he seems determined to ignore his expertise when he enters a courtroom.

Just because the criminal justice system is adversarial by design is no excuse for the secondary victimisation of a rape survivor during cross-examination. What Daubermann did to courageous Cheryl Zondi with gratuitous questions about the depth of vaginal penetration or features of the rape accused’s penis is unethical and unforgivable.

His cross-examination inflicted secondary trauma by effectively telling a survivor that they cannot be believed if they hadn’t examined their attacker’s penis. What does such an irrelevant line of questioning achieve other than to brutalise and belittle the witness?

The ultimate purpose of cross-examination is to help the court to administer justice. It achieves that by excavating the truth. When we deal with witness accounts that cannot easily be verified empirically, cross-examination has the additional legitimate aim of testing the credibility of the witness so that, in administering justice, a judicial officer can determine how much weight, if any, to attach to the testimony of a witness.

In other words, we recognise that not every person in society is a reliable witness. The epistemic agency of a witness, including their ability to acquire and share knowledge, must be rock-solid if someone is to be jailed on account of their testimony. That is why cross-examination is robust. It is often when people are put under pressure that we see whether they are lying, gaming, faking or being sincere.

If we understand this then we must accept that Daubermann can ask tough questions of a witness and can do so in a tough manner.

But none of these aims of cross-examination justifies what happens too often in cases when sexual assault victims are put on the stand. It is false to claim that the only way to help the court to determine the reliability of a witness’s testimony is to shame her, to belittle her, to bring her to tears. You can ask difficult questions to determine a witness’s character and test their testimony without, for example, “putting it” to them that, if they were “genuinely coerced”, they would have screamed or they would have run away when an opportunity presented itself.

Which brings me to the importance of an interdisciplinary approach to the law. If you are a decent criminal lawyer, you ought to pay attention to research in disciplines that are adjacent to criminal law but salient to the application of the law. You need not become an expert in another discipline but even a cursory glance at what is orthodox in fields such as psychology matters — not least if you take seriously your role to help the court to administer justice.

We know beyond any research doubt that there is no one way of responding to the trauma of being raped. We know that many survivors bury some of their memories as a coping mechanism. Doing so can help them to get up in the morning without being weighed down by the ever-present and visceral imagery in their head of what had happened to them. Some victims require clinical intervention to recover some of their memories. Many others remember unexpectedly, because there is no linear progression to perfect recall.

A defence lawyer can legitimately pressure a witness by asking them why they omitted certain details when they gave the police an initial statement of what happened to them. But if that witness tells you several times when you repeat the question that they had chosen not to remember everything initially and only decided to lift the lid on all their memories when they felt safe and ready to do so, what is the aim of repeating the same question aggressively for another few minutes? This is an example of what Daubermann did and I challenge anyone to explain to me the value of the aggressive repeating of the question.

The witness understood his question. Her answer was direct and full. And if repeating the question has the legitimate narrow aim of pressure testing the sincerity of the response given, surely three or four calm and consistently identical responses are sufficient? Then it is time to move on. Unless your aim is simply to badger.

Daubermann’s insinuation was that the witness is a liar. She either made up a detail later or she lied when she had earlier claimed she had told the police everything she had experienced.

Another reasonable alternative explanation, as the calm Zondi explained cogently, is that you truthfully shared with police what you could recall or what you were emotionally ready to recall at the time of the initial reporting of the crime. No one is any less a survivor of rape for failing to recall every bit of detail when they initially report the crime.

This is an excellent example of how a defence lawyer could have spoken to psychologists, who are experts on what trauma does to memory, and then prepared for the cross-examination to ensure the witness is neither let off the hook nor brutalised.

Weak lawyers seem to believe that one must choose between asking tame questions or being aggressive. Those cannot be the only stances to adopt. Lawyers must do better even if the aggressive stance often gets clients acquitted.

Remember that law must serve society and it must help with the administration of justice. A “not guilty” verdict must be the result of the proper administration of justice. A “not guilty” verdict must not be the result of a witness having been brutalised.

Lawyers who are involved in sexual assault cases and do not have time to read widely should at the very least pick up two excellent and readable texts that would help them to approach these cases better without abandoning their duties to their clients.

One is Pumla Gqola’s Rape: A South African Nightmare, which will help lawyers to understand rape culture. Another text is Redi Tlhabi’s Khwezi, especially the chapters on the rape trial of Jacob Zuma when he was deputy president. She did an excellent job of closely examining the court record and showing how the law often retraumatises survivors.

Judicial officers can show some humanity without being prejudiced. Daubermann was at his most pathetic when he suggested that, if a judge wished a witness good luck for their exams, then his client’s right to a fair trial would be trampled on and the judge should recuse himself. A judge could find Zondi not to be a reliable witness and still have the humanity to wish her the best for her future after her involvement in a rape trial.

Courts are scary places because they are charged adversarial spaces. It won’t undermine the administration of justice if we make courts more friendly for all citizens.

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Eusebius McKaiser
Eusebius McKaiser
Eusebius McKaiser is a political and social analyst at the Wits Centre for Ethics. He is also a popular radio talk show host, a top international debate coach, a master of ceremonies and a public speaker of note. He loves nothing more than a good argument, having been both former National South African Debate Champion and the 2011 World Masters Debate Champion. His analytic articles and columns have been widely published in South African newspapers and the New York Times. McKaiser has studied law and philosophy. He taught philosophy in South Africa and England.

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