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Sensitising the legal arm to address sexual offences

In 2018, South Africans watched in disgust and shock as alleged rape survivor Cheryl Zondi endured gruelling and invasive questioning by defense advocate Peter Daubermann about her rape ordeal.

During her rape trial – Zondi alleged that from the tender age of 14, Nigerian Pastor Timothy Omotoso raped and sexually abused her multiple times during her visits to the Pastor’s mission house in Durban.

Representing his client, Daubermann posed the question “Why didn’t you scream?” to Zondi.

But the invasion did not stop there – Daubermann went further to ask Zondi details about her alleged rapist’s penis and how deep he had penetrated her.

Daubermann’s cross-examination of Zondi left South Africans shell-shocked and outraged.

Gender activists and civil society decried the cross-examination as secondary victimisation which forces victims to relive their trauma and places the blame at the victim’s doorstep.

This, however, is common place in an adversarial law system such as the one found in South Africa, said Justice and Constitutional Development Deputy Minister John Jeffrey in an interview with SAnews.

But 25 years into democracy and in a country plagued by gender-based violence particularly perpetrated against women, Jeffrey says it may be time for the country to bolster its efforts to protect the victim.

“I think the whole country saw the cross-examination of Cheryl Zondi in the Omotoso trial and I think that was a good example of secondary victimisation. The response from the public was outrage.

“It made me think that maybe we should extend the use of intermediaries to adults as well so that the prosecution can apply for an adult victim of a rape to also give evidence through an intermediary.”

Intermediaries play a crucial role in protecting witnesses against hostile cross-examination while assisting the witness to understand the questions posed.

As the law stands, this function is currently only offered to children or people with a mental disability.

And while South Africa has made significant progress in trying to deal with gender-based violence and sexual offences since the dawn of democracy, more still needs to be done.

Certainly significant strides have been made, chief among them, the broadening of the definition of rape through the Criminal Law Sexual Offences Act to include any form of penetration and degendering rape.

“It [Criminal Law Sexual Offences Act] basically states that any form of penetration into any part of the body is rape. It degendered rape, as it were, because previously the Act stated that men could not be raped but they could only be sexually assaulted. Now it terms of that definition, men can be raped.

“So it tightened things up quite considerably and we hope, made it easier to enforce the law and made it easier to convict people,” said Jeffrey.

Understanding the complexity of sexual offences, government placed sensitivity at the top of its agenda in dealing with the issue in the justice system.

This included the introduction of one-stop facilities such as the Thuthuzela Care Centres (TCCs).

These centres were introduced as a critical part of South Africa’s anti-rape strategy, aiming to reduce secondary victimisation and to build a case ready for successful prosecution. Fifty-one centres have been established since 2006.

Revered around the world as a model of good practice, the centres are attached to public clinics or hospitals where the incidence of rape is particularly high.

In essence, the care centres provide the first point of interaction with the law following the heinous and traumatic act of a sexual offence.

Court rooms also followed through by providing another balm of protection to survivors of sexual offences.

This was done with the establishment of the Ministerial Task Team on Adjudication of Sexual Offences Matters (MATTSO) in 2012 by then Justice Minister Jeff Radebe.

At the conclusion of its work, the task team released a report recommending the revival of specialist sexual offences courts to provide better services to the victims or survivors of rape and sexual assault.

Among the recommendations was the reconfiguration of facilities to ensure victims are protected against secondary victimisation through the court process.

These include the provision of separate holding rooms for witnesses away from their perpetrators, different entrances for witnesses so that they don’t come into contact with the accused, psycho-social support services, court preparation officers, specialised prosecutors and magistrates who are more familiar with the issues.

But the year is 2019 and the country is still plagued by gender-based violence.

Last year, Stats SA reported that 138 per 100 000 women were raped in 2017, the highest rate in the world.

Addressing sexual offences and under-reporting

In a bid to further address the scourge or how it is dealt with, efforts are being made to align legislation with the complexity that comes with sexual offences and under-reporting of these issues.

These include the amendment of bills such as the Criminal Procedure Amendment Bill of 2018, which amends the Criminal Procedure Act.

A game changer, the proposed Amendment Bill will extend the list of sexual offences and allow for victims to report their cases and the alleged perpetrators to be charged even after 20 years.

“Rape doesn’t prescribe but certain other sexual offences do and you particularly have a problem where sometimes children are sexually abused and conceal it and it only comes to light much later,” says Jeffrey.

According to Jeffrey, the Justice Department withdrew the bill to fine tune a few legislative issues and to bring it in line with the Constitution.

“We introduced that bill into Parliament and we were a bit too proactive. It still has to go to the Constitutional Court and we introduced it before it went to the Constitutional Court and when it got there, the Constitutional Court upheld what the lower court had said but also wanted additional things changed.

“So we actually withdrew the bill and we are about to bring it back and we will also be addressing the issue of prescription in civil cases. We also want to do away with the prescription of certain sexual offences in civil matters,” says Jeffery.

Once signed into law, survivors of sexual offences will be able to bring their alleged perpetrators to book regardless of how much time has lapsed.

While the country continues to grapple with sexual offences and gender-based violence largely perpetrated against women in South Africa, the country has turned a corner. The legal system is in continuous search of ways to address the scourge through crafting legislation and sensitisation of the court.

It is these acts that will craft a path to not only addressing the legal aspect but the societal impact as well.

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