‘Cautionary rule’ victory for sexual assault victims

First published by Legalbrief 06 March 2018 and reused with permission.

The judgment is written in a clinical, dispassionate tone even though it concerns an almost unspeakable crime. We have become used to stronger language from SA’s courts when it comes to rape, with judges often speaking out about the shocking actions of an accused and the horrific prevalence of rape, and so the lack of any acknowledgment of the child’s experience jars at first reading.

The accused was charged with ‘aggravated defilement’, where ‘defilement’ is the normal legal term in Uganda for rape or sexual assault of a child under 18. Although the court gives his name and that of the child, we are not naming him here, to protect his daughter. She was just 14 in 2006, the year of the crime for which he was charged.

One afternoon children in their village, believing he was raping her, began throwing stones at his house. He stormed out, brandishing a panga and threatening to chop them with it. But the commotion the children created with their stone-throwing caused other adults to investigate what was going on. Some went into the man’s house and when they found used condoms they took him to the police.

He was charged, tried, convicted and then sentenced to 14 years. First, he challenged the outcome of his case at the court of appeal, and then, when that failed, he tried again at Uganda’s supreme court, the highest court in that country.

The girl’s evidence must have been painful for the trial court to hear: she confirmed that the accused was her father, and said he had been having intercourse with her almost every day for the previous two years. ‘She stated that though she felt pain in the stomach whenever he had sexual intercourse with her, she feared to report him to any person because he had threatened to cut her into pieces if she reported him.’

There are two judgments by the Supreme Court in response to the man’s appeal. The first considers the objections raised by his lawyers to his conviction, working through them systematically and finding no substance to his challenges. Along the way the court deals with the objection raised by counsel for the man, that there was inadequate corroboration of the daughter’s evidence, and that the trial court should, for this reason alone, not have convicted him.

In response to this argument, the five judges trawled through the record highlighting other evidence, as found by the previous courts. The judges added, ‘a conviction can be solely based on the testimony of the victim as a single witness, provided the court finds her to be truthful and reliable’.

But attached to this unanimous decision upholding conviction and sentence, there is a second judgment, written and signed by just one of the five, former law professor Lillian Tibatemwa-Ekirikubinza. The judge began by saying she completely agreed with the first decision – that the appeal ought to be dismissed, with the conviction and sentence upheld. But despite her agreement with the main judgment, since this was a ‘defilement prosecution’, she believed it necessary to ‘discuss the law on corroboration’ in sexual assault cases.

Historically, courts were required to ‘warn themselves of ‘the danger’ of acting on the uncorroborated evidence of a complainant in a sexual assault case’. Without such a warning, a conviction might be set aside. In East Africa the leading case on the issue was a judgment delivered in 1967 and the Ugandan courts had followed the principle set in that matter. The judge referred to a book she had written on sexual assaults and the criminal law in Uganda, in which she examined the reasons given for the rule: ‘women are by nature peculiarly prone to malice and mendacity and are particularly adept at concealing it’. She traced the development of the rule from 1671 but found that even as far back as the 1970s, courts had begun to question the rule, suggesting that it had neither scientific nor logical basis. In SA at least, it was abolished on similar grounds in 1998.

The rule discriminated against women; since most victims of sexual assault were women the cautionary rule affected far more women than men. ‘It therefore follows that (it) violates Uganda’s constitutional provisions on equality before the law.’ It had been criticised by other African courts too: in Kenya the courts had held that requiring corroboration in cases of sexual offences was unconstitutional ‘to the extent that the requirement is against them qua women or girls,’ and there was widening agreement that there existed neither scientific proof nor ‘research findings’ to show that women and girls will as a general rule ‘give false testimony or fabricate cases against men in sexual offences’.

The judge said the crucial point was that the evidence of ‘a victim in a sexual offence’ had to be ‘treated and evaluated’ in the same way as the evidence of a complainant in any other kind of offence. And she concluded her solo judgment by saying she would find it right to invoke the constitutional provisions allowing the Supreme Court to depart from its previous decisions when it appeared to the court that it was right to do so. In this case it would mean no longer following the line of decisions where the cautionary rule was held to be a requirement in sexual assault prosecutions.

It is a landmark ruling for girls and women considering whether to lay charges against their attackers in cases of sexual assault. And it’s also crucial in the development of a jurisprudence that no longer discriminates against women. None of her colleagues objected to her separate judgment: clearly, they found it legally sound. But you have to wonder why they did not regard her contribution as an essential element of the main judgment – and what the impact would have been if all five members had signed it.

Get in touch if you require a copy of the Judgment.