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The law of sexual assault and legislative changes governing this section of the law has evolved considerably, but this does not mean that the results are being presented in the courtrooms. The topic of sexual violence continues to be a hot debate in the public sphere. One such topic that continues to spark heated debate is the concept of ‘consent’. The reason that this topic can cause quite a stir is that people around the globe differ in their view about the definition of consent. For example, some people believe in the notion of ‘implied consent’, some believe that ‘no means no’ and others take the approach that only ‘yes means yes’. In no other crime does consent – its presence or absence – play such a pivotal role in the characterisation of the acts as criminal or non-criminal.

The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 defines the term ‘consent’ as a ‘voluntary or uncoerced agreement’. Consent means the ‘voluntary agreement of the complainant to engage in the sexual activity in question’ (see www.justice.gc.ca, accessed 13-7-2020). The first essential point in this definition, arising from the words ‘voluntary agreement’ is that to be legally effective, consent must be freely given. It is stripped of its defining characteristics when it is applied to the submission, non-resistance, non-objection, or even the apparent agreement, of a, deceived, unconscious, or compelled will. The second essential point, arising from the words ‘the sexual activity in question’, is that consent must be ongoing. Consent requires an ability to evaluate and to decide on every sexual act in a particular encounter: Lack of consent is established where the complainant was not consenting in their mind while the touching took place, even if she expressed her consent before or after the fact.

In sexual assault cases that centre on differing interpretations of essentially similar events, courts should first consider whether the complainant, in their mind, wanted the sexual touching in question to occur. Once the complainant has asserted that they did not consent, the question is then one of credibility. In making this assessment, the court must take into account the totality of the evidence, including any ambiguous or contradictory conduct by the complainant. If the court is satisfied beyond a reasonable doubt that the complainant did not in fact consent, the actus reus of sexual assault is established and the inquiry must shift to the accused’s state of mind. Cases involving a true misunderstanding between parties to a sexual encounter infrequently arise, but are of profound importance to the community’s sense of safety and justice. The law must afford women and men the peace of mind in knowing that their bodily integrity and autonomy in deciding when and whether to participate in sexual activity will be respected. At the same time, it must protect those who have not been proven guilty from the social stigma attached to sexual offenders.

This article focuses on the assessment of South African courts on the evidence of rape victims. It seems despite radical changes by the legislature, victims of sexual crimes, and especially women, cannot get rid of the burden, which rests on them. These burdens are not an exhaustive list, but it seems as if the cross to bear towards Golgotha is too heavy.

Human behaviour reactions

In criminal proceedings, opposing parties in most instances express views about the predictability of human behaviour in reaction to discomfort, stress, upset, fear, or shock. From the state’s perspective, reactions to an array of stressors are variable and unpredictable. Because of this, in the credibility analysis, the variability of responses and reactions should not detrimentally impact the credibility of a witness. The unpredictability of reactive behaviours does not lend itself to value judging the actions of a complainant. Legal representatives and legal practitioners for the accused emphasises the ‘reasonable person test’, wherein a complainant, who is in a stressed position, should react with certain measures to support their stated intentions. For example, if a complainant says there was no consent to sex, then there would be a set of predictable responses to support the non-consent. If those predictable, reasonable, or logical responses are not present, then this would detrimentally impact on the credibility of a complainant. There has been considerable research on the ‘fight or flight’ response when people find themselves in a situation of stress, fear, shock, or crisis. The reality is behavioural responses to these scenarios are highly unpredictable. Most people have a tendency, and perhaps even a strong desire, to structure human behaviour based on predictability and certainty. It is easier to live that way. Many operate more effectively in all areas of their lives when their reactive scripts are predictable, certain, and logical. There is no rule as to how victims of sexual assault are likely to behave. The reference to case law illustrates how South African courts have adopted an approach of myths and stereotyping to form part of decisions that are made. This mythology influences the court’s perception of guilt or innocence of the accused and the ‘good’ or ‘bad’ in the victim, and has ‘carved out a niche in both the evidentiary and substantive law governing the trial of the matter’ (see Lyndon Maither The 325: The Supreme Court and our Criminal Code and Ors (https://books.googleusercontent.com, accessed 13-7-2020)). Common law dictates a negative assessment of credibility, based on an unfounded stereotype to constitute an error of law.

It is understood that someone viewing the behaviour of complainants in sexual crimes, saying ‘you could have done this’ or ‘you should have done that’ or asking ‘why did you not do this?’ or ‘why did you not do that?’ Those who approach it this way want to classify the complainant’s behaviour according to the paradigm of predictability, certainty and logic. The danger of this approach is two-fold.

Firstly, reactive human behaviour is variable and unpredictable. The humanness of this must be understood. Generally, so-called, non-logical behaviour should not be allowed to detrimentally impact the credibility assessment, for example, a woman’s credibility should not be considered based on predetermined scripts as to how she should behave.

Secondly, the reasonable person test approach falls into stereotypical thinking as to how, for example, a female complainant should react in a given scenario. This stereotypical thinking does not derive from the findings of fact but mythical assumptions that when a woman says ‘no’ she is saying ‘yes’, ‘try again’, or ‘persuade me’. Such an approach denies a woman’s sexual autonomy and implies that all women are ‘walking around … in a state of constant consent to sexual activity’ (see Janine Benedet ‘Sexual assault cases at the Alberta Court of Appeal: The roots of Ewanchuk and the unfinished revolution’ (www.albertalawreview.com, accessed 13-7-2020)).

It is an error of law to draw adverse interferences against the credibility of a sexual assault complainant by purporting to measure their reactions to such an alleged offence by reference to some misguided notional concept of how the victim of such an offence normally would be expected to react and behave in such circumstances. There are simply no such norms of reaction or behaviour that one should expect of such victims, and making express or implicit use of such supposed but non-existence benchmarks of ordinary behaviour.

Historically, a host of factors were deemed relevant to the credibility of complainants in sexual assault trials that did not bear on the credibility of witnesses in any other trial and which functioned to the prejudice of victims of sexual assault. Common law dictates presiding officers should reject outdated stereotypical assumptions and myths of how persons react to such trauma, and instead recognise that there is no inviolable rule on how people who are the victims of sexual assault will behave. Here follow a few examples of outdated stereotypes and myths:

• A suggestion that a victim of a sexual assault should be expected to flee before, during, or immediately after the sexual assault has taken place perpetuates myths and stereotypes about the nature of the sexual assault. The law of sexual assault does not require fleeing; it requires consent. In sexual crimes, there is very often a radical power imbalance between the attacker and the victim. The violence is often a silent, raging on aggression, which threatens overt violence but rarely inflicts it. It is a serious misunderstanding of the nature of sexual assault to expect a complainant to ferociously fight back to prevent the offence against them. Some may do so, but others will feel obligated to submit out of fear and paralysis.

In Tshabalala v S (GP) (unreported case no A 74/2011, 12-6-2013) (Oosthuizen AJ) the court held: ‘On the complainant’s version she had more than one opportunity to escape, to make [an] alarm or to call for help. She did neither and this passiveness, over a sustained period of time, cannot be explained simply on the basis that she was afraid of the appellant. That alleged fear would have been all the more reason to get away from him at the first available opportunity, especially if she also feared for her life, as she claimed in her testimony’.

• A suggestion that a sexual assault complainant who does not raise an alarm, resists with forceful struggle, or fights back is consenting to sexual touching relies on archaic, outmoded and unreliable stereotypes. The issue in such cases is the existence of consent, and not why the complainant did not fight back. Common law and the Sexual Offences Act regulates that the evidence of a complainant cannot be rejected, because they did not report the crime immediately. A complainant’s evidence cannot be rejected because their demeanour does not match a stereotypical idea of how a victim of an incident should act.

In Makhubela v S (FB) (unreported case no A320/2017, 9-5-2018) (Benade AJ) at para 20 the court’s criticism is based on the behaviour of the complainant. The court held ‘when she initially tried to flee from the shack and the accused accosted her from the front she did not scream or call for help when he allegedly forced her back to the shack’.

• It is wrong to suppose that the thoughts and responses of sexual assault victims at or around the time of the offence will conform consistently to detailed rational analysis, carefully weighing all the relevant factors that might militate in favour of one course of action or another. It is far more likely that a person in that position might have fleeting thoughts of different sorts that were not the subject of such detailed rational analysis. Exposure of rational inconsistencies through cross-examination of a complainant accordingly should not be given undue weight, although it remains a piece of the overall mosaic of the case to be considered.

See S v Fourie (NWM) (unreported case no CA 33/12, 28-2-2013) (Hendricks J) at para 11 ‘Out of the blue, the next day, she made a report to her father and she was very emotional about it. Mind you, she is not a small child. She is the mother of two children. Not only was she all of a sudden overcome by emotions when she made the report to her father but even during the trial, [she was] so emotional that she cried and the Regional Magistrate had to ask her mother to sit next to her whilst she testified in order to comfort and morally support her. Strange behaviour indeed from what her reactions [were] after the ordeal with the appellant on 1st April 2010’.

See also S v Damane (WCC) (unreported case no SS 16/12, 4-12-2012) (Yekiso J) at para 77, where the court held: ‘A common thread relating to the incidents of the alleged rapes is that, ostensibly because the complainants involved are children, no specific dates are mentioned on which the alleged sexual molestation could have occurred’. Generalisations and false analogies may obscure a failure to perceive the predicament in which a sexual offence complainant can find herself. When that is done, it can be seen that rather than behaving bizarrely, the complainant’s handling of the situation was completely understandable and rational. Careful attention to the facts and the imagination to see the situation from the complainant’s perspective are all that is required.

• Traditional myths and stereotypes have long tainted the assessment of the conduct and veracity of complainants in sexual assault cases, namely –
  • the belief that women of ‘unchaste’ character are more likely to have consented or are less worthy of belief;
  • that passivity or even resistance may constitute consent; and
  • that some women invite sexual assault because of their dress or behaviour.
• An illustration of stereotypical assumptions about how a young sexual assault victim ‘ought’ to behave is in Makhubela at para 20, where the court held: ‘Her standing, as a mere Grade 9 schoolgirl, is tainted as she was supposed to stay with her father but she took it upon her (without any parental permission) to stay for more than a week at her friends’ sister’s home – in other words where her parents did not know where she was’.

See also S v Christo (NWM) (unreported case no CA 292009, 7-6-2020) (Kgoele J) where the court held at para 14: ‘Her strange behaviour on this aspect of not reporting immediately is worsened by the fact that, even at the stage when she was confronted, she did not immediately say she was raped, she waited for her boyfriend to further ask whether the sexual intercourse was consensual and only replied with the word “no” thereafter’.

• The belief that sexual assault complainants are likely to be lying. The defence uses the existence of a relationship between the parties to blame the victim. Rapists are usually strangers to the victims. There is a myth that rapists are strangers who leap out from the bushes to attack their victims. The view that interaction between friends or between relatives does not result in rape is prevalent.

In S v Moipolai (NWM) (unreported case no CA 53/2004, 20-8-2004) (Mogoeng JP) the court held: ‘This rape should, therefore, be treated differently from the rape of one stranger by another between whom consensual intercourse was almost unthinkable. The Appellate Division was more understanding and even lenient in a case where a man had raped his friend. The mitigatory effect of a relationship of friendship between the assailant and the victim was articulated as follows by Corbet JA (as he then was) in S v N 1988 (3) SA 450 (A) at 465H – I: “In the concluding portion of his judgment on sentence the magistrate said: “This is not the usual or ordinary type of case where the rapist grabs an unknown person and rapes her. In this case you knew the complainant well and you had often associated with her”. It is not clear whether he regarded this as a mitigating or an aggravating factor. To my mind, it is a mitigating factor in that the shock and affront to dignity suffered by the rape victim would ordinarily be less in the case where the rapist is a person well-known to the victim and someone moving in the same social milieu as the victim’.

Conclusion

It is the duty of legal practitioners to eliminate myths and stereotyping in the adjudication of sexual crimes and it should be a high priority in South African courts. Misguided beliefs about sexual assaults skew the fact-finding processes. The reliance on those beliefs is one reason why many victims experience and perceive courtrooms as hostile environments. It is recognised that there is no room for special protections that apply to complainants, who may particularly be vulnerable and who have, historically, been subjected to abuse while giving evidence. That extra protection might be afforded to complainants, however, it does not take away from the proposition that myth-based evidence does not meet standards of relevance or cogency, and should not be allowed to be used as a basis for decisions in a criminal trial. Criminal courts carry a heavy responsibility in ensuring every person has a fair trial, which includes a complainant. Courts must reject discriminatory lines of reasoning. While we are loosening the rope against rape victims lets untie it completely.

Desmond Francke BIuris (UWC) is a magistrate in Ladysmith.

This article was first published in De Rebus in 2020 (Aug) DR 9.