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Western Cape High Court judgment upholds rights of rape victims to be heard

The Cape Town Magistrate’s Court had previously ruled that a rape survivor had to stay silent about her experience. File Picture: African News Agency(ANA)

The Cape Town Magistrate’s Court had previously ruled that a rape survivor had to stay silent about her experience. File Picture: African News Agency(ANA)

Published Mar 28, 2022

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Cape Town - The Women’s Legal Centre (WLC) has commended the Western Cape High Court for overruling a decision by the Cape Town Magistrate’s Court which ordered a rape survivor to stay silent about her experience.

The woman sought to appeal a decision made by the magistrate which prohibited her from telling any other person she had been raped.

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She argued the order was wrong in law, and that it constituted regression in the national fight against gender-based violence (GBV).

The woman, who owned a modelling agency, said when her boyfriend raped her in 2015, she tried to move on with her life and was advised by a social worker not to report the rape to the police, but rather to find a way to keep herself safe from continuing to be abused.

The court had granted a protection order in November 2020 in favour of the man who claimed he had been harassed by the woman following their break-up.

He claimed her allegations against him made to third parties harmed his fashion business, after they reached social media.

It was the survivor’s case that by telling other people about her experience, she created a community with other victims and also saw this as a form of healing for herself.

She engaged on social media after the incident about the crisis of sexual violence in general and in the fashion industry specifically, but at no time shared his details or tried to publicly shame him.

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In response, the man argued he could not be made the poster child for rape while he had always maintained that he had never raped anyone. According to him, the woman’s conduct illustrated malice in order to elicit harm and there was a link between her utterances and the abuse and harm he suffered.

Judge Daniel Thulare, supported by Judge Robert Henney set aside the protection order and upheld the appeal. The judge found that the man’s failure to deny he raped her during the height of her allegations was consistent with the woman’s version.

Judge Thulare said the magistrate “clearly misdirected himself by not taking into account the totality of the evidence”, where the court made a decision based on the survivor’s failure to lay a rape charge against the man, which had ultimately favoured the man.

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The judge said the magistrate completely ignored evidence of the woman that it was other people who publicly distributed claims that he had raped her, and not herself.

The judge further agreed with the survivor that she was not trying to spread gossip and that she had the right to speak out about her experience.

“I agree she was trying to be heard, to find healing and protect others from suffering the same fate,” Judge Thulare said.

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WLC attorney, Chriscy Blouws, said: “We’re very inspired by the high court in that they took into context the lived reality of those who survive sexual violence, because the lived reality is that we have a criminal justice system that is failing women.

“Women don’t trust the justice system, they know it fails them and so just because the lived reality for women is that they choose not to go through that process, not to get re-traumatised doesn’t mean that the man didn’t rape her and that was an amazing thing that came out of this judgment,” Blouws said.

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