Justice Denied? Prosecutors and presiding officers

South African CRIME QUARTERLY No. 69 | 2020 Justice Denied? Prosecutors and presiding officers’ reliance on evidence of previous sexual history in South African rape trials Sheena Swemmer1 http://dx.doi.org/10.17159/2413-3108/2020/i69a6380 This article presents data from a study conducted by the Medical Research Council of South Africa, focusing on rape attrition in South Africa at different stages in the processes (from reporting at a police station to potential conviction). The study found that of the 3 952 reported cases of rape analysed 65% were referred to prosecution, and trials commenced in 18,5% of cases. Of the total 3 952 cases reported, 8,6% resulted in a guilty verdict. Using qualitative data from a subset of trial transcripts, the article focuses specifically on the problematic views of both presiding officers and prosecutors based on rape myths and gender-stereotyping at trial, and suggests that these are a factor affecting the attrition rate between cases referred to trial and those that result in a not guilty verdict. Rape is not a South African invention. Nor is it distasteful sex. It is sexualised violence, a global phenomenon that exists across vast periods of human history. Rape has survived as long as it has because it works to keep patriarchy intact. Pumla Dineo Gqola2 In 2018/2019 the South African Police Service (SAPS) received 41 498 reports of rape in South Africa.3 This figure is up from previous years: in 2017/2018 there were 40 035 reported rape cases and in 2016/2017 there were 39 828 cases reported.4 The number of rape cases that are reported to SAPS in South Africa is consistently exceptionally high.5 The number of SA CRIME QUARTERLY NO. 69 • 2020 2 – 45 reported rapes far exceeds the levels of murder in the country during the same periods, with 20 938 murders for the period 2018/2019, 20 336 murder reports in 2017/2018 and 19 016 murders in the period of 2016/2017.6 The numbers presented by SAPS are not a true reflection of the number of sexual offences that actually occur in the country each year. One reason for this is that the police only record cases under the most serious crime category. For example, where sexual offences result in femicide or attempted femicide, these crimes are simply recorded as murder or attempted murder. The sexual violence that coincided with these incidents therefore remains unrecorded.7 Furthermore, femicide and attempted femicide are not separate codified offences in South African law. These shortcomings in the recording of crime impacts the value of SAPS statistics as an accurate measure of the levels of violence against women in our country. A second problem is that sexual violence is generally under-reported in South Africa, as it is in many other countries globally.8 SAPS’s reported statistics therefore severely underrepresent the size of the problem. A 2010 study by GenderLinks found, for example, that only 1 in 25 women raped in Gauteng reported their rape to the police.9 We can conclude that sexual offences are pervasive in South Africa, in particular rape, with very few cases reported to the criminal justice system. Victims of sexual violence may not come forward for many reasons. They may want to avoid the potential trauma associated with the reporting process with the police. Survivors may not be aware that what they have experienced is, in fact, a crime. For example, where the victim of the rape is a child or a person with severe psycho-social disability they may not understand or comprehend the illegal nature of the act. For child victims, the perpetrators are most commonly family members or close 2 – 46 INSTITUTE FOR SECURITY STUDIES & UNIVERSITY OF CAPE TOWN acquaintances, and this also can present barriers to reporting, such as coercion by the perpetrator or family members to keep the incident quiet, or the fact that the child victim is not believed by the people they disclose the crime to.10 Women may similarly choose not to report based on coercion, often by an abusive partner.11 This not only prevents them from reporting the rape to the police, but also prevents them from speaking out to family members and other support structures. Problematic views and stereotypes around rape and victims of rape that permeate the criminal justice system can also frustrate reporting, investigation and prosecution of these crimes. Smythe notes that attitudes and practices by police can lead to secondary victimisation, for example not permitting women to lay charges of rape, reformulating rape as lesser offences and not providing women with private areas to recount the offence. Smythe argues that these behaviours are informed largely by sexist stereotypes, and result in minimising rape complaints and alienated complainants.12 The reliance on stereotypes around rape and victims of rape is not isolated to the criminal justice system, but permeates society. Bonnes analysed articles about rape cases in a print newspaper and found that the publication used rape myths to blame victims for their rapes and move away from holding perpetrators accountable.13 For example, the publication often mentioned that rape victims had consumed alcohol, placing the blame for the rape on the women for acting in an ‘irresponsible’ way and putting herself in a compromised position.14 Stereotyping and victim-blaming also exists in the healthcare system. For example, a study in the United Kingdom found that nurses and trainee nurses held similar common mistaken beliefs around victims of rape as the general public. This included blaming women for their rape if they knew their assailant or placing blame on women if they were seen to be ‘careless’ at the time of the rape.15 The attrition of rape cases from reporting to conviction and sentencing is partly influenced by rape stereotyping and the problematic practices that result from these attitudes. Cases may fail to move from investigation to prosecution due to the intersection of stereotypical attitudes about complainants and bureaucratic interests.16 Smythe illustrates, for example, that police investigation into one particular victim’s case appeared non-existent by the time the case was closed, in part due to the police officer’s views on the complainant. He had written in his investigation diary that the suspects were apparently drunk and the crime was likely to be one of lust.17 A study of rape case attrition in Gauteng found that very few cases (only 8%), proceeded past investigation to result in conviction.18 The reasons cited for the failure of referral of matters for prosecution included that police did not believe the complainant, no formal complaint was made by the victim or the victim dropped charges, prosecutorial concerns of the police and apprehension of the victim around the prosecution process.19 A study conducted by the Medical Research Council of South Africa (the MRC), that focused on rape attrition at different stages in the processes (from reporting a (...truncated)