Justice for rape victims? by Joy Watson

Charges against a man accused of raping and setting alight a nine-year old girl were dropped in last week. Before dying, the girl named her attacker. The Director of Public Prosecutions decided to provisionally withdraw the charges pending further investigation. This has been attributed to the fact that the forensic evidence against the man was described as being “technical, complicated and would take an undetermined amount of time” to process. Some of the evidence has been analysed, but the results of the analysis are inconclusive. The remaining evidence will require a longer process and the State is unable to say when this will be finalised. The man had faced charges of abduction, sexual assault, rape and murder.

While the accused certainly has rights, it is a great pity that the path to justice is such a slow, laborious process for most rape victims. It is a pity too that the girl’s testimony seems to carry little weight. The process of securing forensic evidence after a rape is one that is fraught with possible complications. When a rape is reported to the police, the victim has to undergo a medical examination in order to procure forensic evidence. This is a lengthy process that can take up to 2.5 hours. It is invasive as DNA swabs have to been taken from the genitals and the nipples, if the rapist kissed the woman’s breasts. The chances of procuring forensic evidence are greatly diminished if the woman has washed before being examined. If a rape is reported after 72 hours, then swabs are usually not taken as the chances of finding DNA are slim. The problem here is that most women are severely traumatised after rape and many are likely to either not report at all or to report at a much later stage when they are feeling more emotionally contained. In one case, a woman was raped and was afraid to tell her husband. Several days after the rape, she was able to talk about the rape and report it. However, by this time, she had washed several times and no DNA could be found. Similarly, in the case of a woman gang-raped by 20 men, it was not possible to secure the DNA of all of the men involved in the attack.

The need to be medically examined within a 72-hour period is further compounded by the fact that some clinical forensic units do not operate on a 24-hour basis. Most rapes have been shown to take place after dark. Yet, some clinical forensic units, such as the one at the new Mitchells Plain hospital, are only open until 4pm, a disincentive for being examined when one has to wait until such time as the clinic is open. Once the medical examination has been completed and swabs have been taken, they are sealed in a rape kit. This is then collected by the police who send it on to a forensic laboratory. At each point in this chain of custody, a strict process for moving the rape kit has to be followed. It has to be signed for each time that it is moved. If this is not done, the evidence becomes null and void and cannot be used, in which case, the rapist can walk away without any repercussions. In the case of the rape of an adult, the rapist can also argue that the sex was consensual, which means that forensic evidence on its own is not conclusive. In the case of children, the case is more airtight given that consensual sex with a minor cannot be argued. Yet, many children do not report in the 72-hour period and if they do, many are too traumatised to contend with a medical procedure that entails having their genitals touched.

In the 2011/2012 period, 0nly 6.97% of all rapes reported to the police resulted in convictions. Of the 64 514 reported sexual offences, only 6913 resulted in criminal prosecutions and of this, there were 4501 convictions. The message is abundantly clear – unless the criminal justice system cleans up its act, most rapists will get away the crime. As far as dealing with sexual offences cases is concerned, a number of challenges emerge that complicate the court process. One such problem is locating witnesses. If witnesses cannot be located, a case can be withdrawn until such time as the witness can be found. Even instances when a rapist is convicted, a key problem associated with sexual offences cases is that there is currently no system in place for oversight of sentencing in this regard, resulting in varying, inconsistent and, at times, inappropriate sentencing. This highlights the need for the training in appropriate sentencing for sexual offences.

While the physical scars of a rape may heal with time, in all likelihood, the emotional and psychological scars will remain with the victim for a lifetime. For this reason, it is so very important that there is justice for rape victims. Yet, sadly, sexual violence has become so omnipresent in our society that it has resulted in sensory fatigue. It is mostly taken for granted that rape will happen and this seems to have become enmeshed in the rhythm of our lives. Given the extent of the trauma associated with sexual violence, this is just not good enough. In the case of the 9-year old girl who lost her life after being raped, the State needs to be held accountable and needs to expedite the investigation process and give a clear indication of when this will be concluded.

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