Colleen Lowe Morna
15 May 2006

It is ironic that as South Africans celebrated the tenth anniversary of the Constitution last week [8 May], a young woman who dared to lay a charge of rape against the man who would be president prepared to surrender that most basic of rights: her citizenship.

Former deputy president Jacob Zuma may have won his case, but what have we as South Africans lost? Much, unfortunately, in the campaign that had just begun to gather momentum post apartheid to recognise the right of women who feel they have been violated to speak out.

While Zuma, who has shown no remorse in a case that at the very least leaves him guilty of adultery and irresponsible behaviour, repositions himself to lead, a young woman whose troubled sexual past dates back to her years in exile is forced into hiding. What would her father – Zuma’s comrade-in-arms, who died in a car crash during the struggle – have to say?

It fell on an old school judge to hear the case because, much as we have become a nation of principle, none of the more senior black judges wanted to handle the case. Judge Willem van der Merwe is no doubt a learned man and his judgment must be respected. At the same time it must raise questions about just how transformed the legal system really is.

One has to start by understanding that rape is not just another crime. It is often about hugely disproportionate power relations between a victim under every conceivable societal pressure to drop the case; an accused with access to money, influence and power; and a criminal justice system that is at best unfriendly; at worst obstructionist.

Man-made laws on sexual offences – those current in South Africa included – have been designed to paint women as temptresses; throw into question their intentions (the so called “cautionary rule”) and place an excessive burden of proof on complainants to show beyond “reasonable doubt” both lack of consent and “intent” to rape on the part of the accused. These laws have also allowed judges to dredge up a complainant’s past sexual history to prove patterns of behaviour that could discredit the allegations.

The judge, who claimed to have read the South African Law Commission research and the upcoming Sexual Offences Bill on more enlightened approaches, said he became stumped when trying to understand why the complainant would make such an allegation, knowing the consequences, if in fact nothing had happened. The explanation, he claimed, could only be found by digging up the past and establishing that she had a history of crying wolf.

This line of argument is weak and outmoded. It is especially galling that the judge allowed evidence extending well below the age of consent (when by law any sexual intercourse by an adult with a child is statutory rape) to be admitted as evidence. That much of this should have come from a private diary, without the consent of its owner, and that the judge apparently had no ethical concerns about such conduct is deeply disturbing.

In buying into the defence line about the seductive powers of a kanga worn without underwear and dismissing the psychologist’s evidence that it is possible to freeze during rape, especially with someone you know, the judge reinforced the prevailing notions that women “invite” such experiences and that unless you scream the house down (even if you know the assailant) your case is doomed.

But this case goes well beyond legal technicalities. It is fundamentally about the tests of leadership in our new democracy. While finding Zuma “not guilty” the judge chided him for having sexual intercourse with a friend’s daughter many years his junior, and for the “inexcusable” fact that he had unprotected sex with an HIV positive woman. Does such a man deserve to lead South Africa?

In the immediate context, this case and the weaknesses in the criminal justice system that it has revealed should prompt us to pass the Sexual Offences Bill (ten years in the making) that tightens the definition of consent and limits the admissibility of various types of evidence, especially those relating to one’s sexual past.

Police bungling in the Zuma case again points to the need to strengthen investigations, one of the many loopholes in sexual offenses cases, only 7% of which result in convictions in the regular courts.

The case should also give added impetus to the National Action Plan to end Gender Violence endorsed by a broad cross section of South Africans last week under the banner: “Ten years later: making the constitution work for women and children.” This should be the real yardstick of success over the coming decade.

Colleen Lowe Morna is Executive Director of Gender Links. This article is part of the Gender Links Opinion and Commentary Service that provides fresh views on everyday news.

The above commentaries are from the Gender Links Opinion and Commentary Service. While we feel that they present important viewpoints to the trial that acquitted Zuma of rape, they do not necessarily represent the opinions of all who work at the Saartjie Baartman Centre.