Siya Khumalo: ‘How Many Centimetres’: A plea for judges to recuse themselves from rape and sexual abuse cases

Most of our rape and sexual abuses cases have no business being heard in our courts of law. The sensitivity of witnesses matches the rules of evidence to acquit (real) rapists more than anything else.

Cross-examination routinely violates the constitutionally-protected right to freedom of conscience by cornering witnesses to testify, answering in “yes” or “no” half-truths, forcing them to breach their sworn oath to tell “the whole truth”. What use are Constitutional rights if a person can’t enjoy them in a court of law? Under questioning, truth is dissected into facts and repackaged into whatever context fits the better-paid lawyer’s narrative by a standard of admitting evidence, I’ve been told, designed for jurors who weren’t professionally trained to assess it. We don’t have jurors. Our judges are equipped to weigh evidence, not just arguments about which evidence ought to be weighed. Can a verdict or legal truth emerge that matches actual truth, despite these issues? Maybe. Can it do so for sexual offences cases? Not often enough for those judges to hear the cases in the first place. I recently asked a lawyer how the constitutional right to psychological integrity squares with cross-examination practices. If I followed her response correctly, she said this right is connected to the constitutional right to dignity (one’s perception of oneself) and reputation, which is others’ perception of one. Cross-examination allows defence attorneys to protect their clients’ right to the presumption of innocence by robustly questioning the only evidence that suggests their guilt — which, in most sexual offences cases, is the testimony of the victims themselves and those victims’ right to psychological integrity. To the extent that she or he is telling the truth, to that extent a rape victim’s right to psychological integrity means nothing less than being believed. This is sacrificed, upfront, on the altar of a very patriarchal prioritisation of rights, deterring many victims from ever reporting when they’ve been raped. At the Omotoso rape trial, Peter Daubermann asked Cheryl Zondi “how many centimetres” she’d been penetrated by. I don’t imagine that officers of the court ask burn victims, “What temperature was the fire?”, as though their bodies were thermometers. Everyone’s rights could be prioritised more realistically; failing this, judges should recuse themselves. Judge Mandela Makaula reprimanded Daubermann for how he chose to do this; in return, Daubermann called for Makaula to recuse himself for showing sympathetic tendencies towards the witnesses (I hear that at some point he told the judge that his humanity was getting the better of him). Any attempt by the Bench to limit the defence attorney’s manipulation of witnesses’ post-traumatic stress to undermine their testimony will attract protests that judges are biased; this will limit the protection that the judge can offer witnesses until, while it’s as much as convention allows, it will still be less than the protection witnesses will need to bare the whole truth. Being asked to recuse yourself from a case because your humanity keeps getting in the way is a very good thing, and there’s no reason the humanity of judges should be inveigled into a bid to draw out cases until witnesses can no longer sustain their testimony. Judges could simply say to Parliament that rules for judging such cases don’t make full use of constitutional provisions towards justice, given what we know (from a psychological perspective) about the effects of potential trauma. Alternatives can be developed, and Parliament can kick-start their development or accelerate it where others have started it. It’s not by some unfortunate coincidence that 95% of rape cases don’t end in a conviction; it’s by legal engineering. Over time, sending rape cases through this criminal justice system will reinforce the public perception that our society is okay with the war on women’s bodies; the severity and frequency of sexual crimes then escalates in proportion to the perceived probability of not guilty verdicts. The damage spills outside court steps, implicating those courts in an ongoing crime against humanity. Even if recusing themselves breaks existing law, the society for which laws exist is quite broken. This isn’t the best we’re capable of. I also submit that any “no” to this request says more about the responders’ agendas and preferences than it does about the reasonableness of what I’m saying. Judges preside over courts of law, but what the public has seen regarding Cheryl Zondi has strengthened a new court — the court of public opinion, whose legitimacy grows by the day. While populism is a real danger and should be avoided, whole governments have risen and fallen on the verdicts of this court. Sheena St. Clair Jonker has been posting about restorative justice. Its merits as an alternative have to be weighed up. I don’t know what other systems exist, but the authority of the existing system no longer holds public imagination as it used to. What would we lose if we took the time to step back and consider alternatives to the existing criminal justice system that wouldn’t be lost if we continued business as usual? DM