Zuma trial sends grim message to survivors of violence
Despite the rather dramatic decrease of supporters for the accused, the levels of hostility and antipathy towards the complainant and those deemed to be her supporters, did not wane during the first week of the trial. This atmosphere, so obvious outside the court, was mirrored inside the court during a lengthy and abusive cross examination of the complainant. It was however disguised as due process of the law and while women and men wearing purple T-shirts were permitted to show their support for the complainant outside the court, she was not so lucky inside. At the beginning of his cross examination, Kemp J Kemp, senior counsel and leader of the defence legal team, requested permission from the court to lead evidence on the complainant’s previous sexual history. The grounds for this application, and the reasons why the presiding judge, a man that Eugene De Kock has described as “scrupulously fair”, decided to permit this cross examination, were decided behind closed doors. Only the lawyers and the accused were present. The complainant, whose most intimate thoughts and actions were soon to be exposed to the harshest public scrutiny, was also requested to leave. As part of his cross examination on her past sexual history, Kemp produced 16 pages of writing by the complainant. It remains unclear how the defence came into possession of this material, but it is abundantly clear that the complainant regarded these writings as private and not for publication. These pages reveal that while living in exile, the complainant was raped twice at the age of about 13 years. It is not disputed that these events occurred ‘ in fact; the defence agrees that they were reported to the ANC in exile and a special committee was established to investigate and adjudicate on the allegations. This committee found both men, both significantly older than the complainant at the time, guilty of having sex with, in the words of Kemp himself, “a young child”. It does not appear that the committee enquired into the issue of whether the complainant had consented to sex ‘ quite rightly it obviously did not believe that a 13 year old is capable of consenting to sex. The defence does not appear to understand the law in this regard ‘ Kemp put it to the complainant that she did in fact consent to having sex with both men, that she regarded them as her “boyfriends” and that these events did not constitute rape. In support of this, he emphasized on several occasions that the ANC committee had not found the men guilty of rape but rather of having sex with a child. Perhaps it is necessary to remind Kemp that sex with a minor is statutory rape. It appears to have escaped his attention that sex with a minor is unlawful and the courts do not require a youthful complainant to prove that she did not consent to sex. The complainant herself tried in vain to raise this issue that she had not given her consent and could not have done so even if she had wanted to. Her pleas fell on deaf ears and this “scrupulously fair” judge allowed the defence to lead evidence about the sexual abuse of a young girl as the basis for suggesting that she is in the habit of engaging in consensual sex and then making unfounded allegations of rape. The complainant was also subjected to a wholesale examination of her past sexual history ‘ she was asked how many sexual partners she has had, how many times she has engaged in penetrative sex and what other sexual acts she has engaged in. The prosecution failed to object to any of these questions, essentially leaving the complainant at the mercy of the court. Unfortunately, the court failed to extend any at all. The Criminal Procedure Act specifically prohibits the leading of evidence on past sexual history and experience, unless it is relevant to the offence. This provision, traditionally more honoured in the breach, is intended to protect survivors of rape and sexual assault from being subject to embarrassing and humiliating cross examination, a tactic that defence lawyers have often resorted to, to intimidate and silence complainants. Similar provisions have been enacted in many jurisdictions internationally to protect the rights of women who have been raped and to encourage them to report assaults without fear that they themselves will be put on trial. In South Africa, where the rights to dignity and to freedom from all forms of violence are protected by the Constitution, one would have hoped that these provisions would be more strictly enforced. It is unclear what the relevance of either her childhood rapes or her general sexual history is to this offence. The accused’s version, which was finally put to the complainant at the end of cross examination, indicates that the case will revolve around the question of consent, whether the complainant actually consented or whether the accused reasonably believed that she had. What is clear however is that many rape survivors who have been watching this case unfold in the media will think twice about reporting rape and subjecting themselves to a process that fails to protect them and uphold their dignity. l Liesl Gerntholtz is the Executive Director of Tshwaranang Legal Advocacy Centre. This article is part of the Gender Links Opinion and Commentary Service .