Protesters outside the court where a man appeared for the rape and murder of a 9-year-old Delft girl earlier this year. The charges were dropped last week. File photo: Willem Law

Unless the criminal justice system cleans up its act, most rapists will get away with the crime, says Joy Watson.

Cape Town - Charges against a man accused of raping and setting alight a 9-year-old girl were dropped last week. Before dying, the girl named her attacker.

The director of public prosecutions decided to provisionally withdraw the charges pending further investigation.

This has been attributed to the fact that the forensic evidence against the man was described as being “technical, complicated and would take an undetermined amount of time” to process.

Some of the evidence has been analysed, but the results are inconclusive. The remaining evidence will require a longer process and the State is unable to say when this will be finalised. The man faced charges of abduction, sexual assault, rape and murder.

While the accused has rights, it is a great pity that the path to justice is such a slow, laborious process for most rape victims. It is a pity also that the girl’s dying testimony seems to carry little weight.

Securing forensic evidence after a rape can be fraught with possible complications. When a rape is reported to the police, the victim has to undergo a medical examination to procure forensic evidence.

This is a process that can take as long as two-and-a-half hours. It is invasive as DNA swabs have to been taken from the genitals and the nipples, if the rapist kissed the woman’s breasts. The chances of procuring forensic evidence are greatly diminished if the woman has washed before being examined.

If a rape is reported after 72 hours, then swabs are usually not taken as the chances of finding DNA are slim. Most women are severely traumatised after rape and many probably will not report the incident or to report it much later when they are feeling emotionally stronger.

In one case, a woman was raped and was afraid to tell her husband. Several days after the rape, she was able to talk about the rape and report it. However, by this time, she had washed several times and no DNA could be found. In the case of a woman gang-raped by 20 men, it was not possible to secure the DNA of all of the men involved in the attack.

The woman or girl needs to be medically examined within 72 hours, but some clinical forensic units do not operate 24 hours. Most rapes have been shown to take place after dark.

Yet some clinical forensic units, such as that at the new Mitchells Plain hospital, are open only until 4pm, a disincentive for being examined when one has to wait until the clinic opens.

Once the medical examination has been completed, the swabs taken are sealed in a rape kit. The kit is collected by the police, who send it to a forensic laboratory.

At each point in this chain of custody, a strict process for moving the rape kit has to be followed. It has to be signed for each time it is moved. If this is not done, the evidence becomes compromised and cannot be used, in which case, the rapist can walk.

In the case of the rape of an adult, the suspect can argue the sex was consensual, which means forensic evidence on its own is not conclusive.

With children, the case is more plausible, given that consensual sex with a minor cannot be argued. Yet many children do not report in the 72-hour period and if they do, many are too traumatised to deal with the medical procedure.

In 2011/12 period, only 6.97 percent of all rapes reported to the police resulted in convictions. Of the 64 514 reported sexual offences, only 6 913 resulted in criminal prosecutions and among these there were 4 501 convictions.

The message is abundantly clear – unless the criminal justice system cleans up its act, most rapists will get away with the crime. In dealing with sexual offences, a number of challenges can complicate the court process. One is locating witnesses. If witnesses cannot be located, a case can be withdrawn until such time as a witness can be found.

When a rapist is convicted, a key problem is that there is no system in place for oversight of the sentencing, resulting in varying, inconsistent and, at times, inappropriate sentencing. This highlights the need for the training in appropriate sentencing for sexual offences.

While the physical scars of a rape may heal with time, in all likelihood the emotional and psychological scars will remain for life. For this reason, it is important there is justice for rape victims.

Sexual violence has become so omnipresent that it has resulted in sensory fatigue. It is mostly taken for granted that rape will happen and this seems to have become enmeshed in the rhythm of our lives. Given the extent of the trauma associated with sexual violence, this is just not good enough.

In the case of the 9-year-old girl who lost her life after her rape ordeal, the State needs to expedite the investigation process and give a clear indication of when it will be concluded.

* Joy Watson is a researcher with 19 years' experience in feminist activism. Her specialisation includes women in politics, women and governance, and violence against women.

** The views expressed here are not necessarily those of Independent Newspapers.

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