In the wake of the appearance of Cheryl Zondi, the first witness, at the rape trial of Timothy Omotoso, opinions are divided in so far as the line of questioning by defence lawyer Advocate Peter Daubermann.
Many of those opinions believe Daubermann’s line of questioning was insensitive.
This is precisely the matter that the Commission for Gender Equality (CGE) has been raising, particularly in rape cases, where survivors suffer secondary victimisation due to the nature of the questions being raised.
Section 166 of the Criminal Procedure Act gives rights to the accused to cross-examine witnesses. Such rights are limited, however, by the interpretative duty of the defence to ensure that, during cross-examination, the basic rights of witnesses are not encroached upon.
The Criminal Procedure Act further forbids questions in a rape case related to previous sexual conduct, unless the judge grants specific permission. Juxtapose that with advocate Daubermann’s over-the-top questioning, with him going as far as to want to establish if consent was given.
No lawyer can ever ask if Zondi consented to sex when she submitted to his requests for intercourse, knowing very well that she was just 14 years old when the alleged abuse began.
It should be borne in mind that submission is not consent, and that whether Zondi screamed or not, didn’t determine whether or not the act was rape.
I strongly believe that there is a greater risk that the trial could prevent women from coming forward. Zondi’s strength, while handling Daubermann’s tough questions, could also empower women.
A question about how deeply Zondi was penetrated was utterly wrong and irrelevant.
Often we ask ourselves why survivors of rape withdraw cases. It is precisely because of this kind of questioning which forces women to relive the trauma and abuse that they endured over a period of time.
Equally, our police stations are not victim-friendly, and the insensitivity starts at the police station where survivors are asked the nature of clothes they were wearing at the time of the rape or if they were virgins. It begs the question: What did all those irrelevant questions have to do with whether an act of rape took place or not?
I’ve always argued that even if the intention is to seek justice by laying women bare in courts, the same justice-seeking mechanisms should not allow prejudice and patriarchal nuances to find expression in the cause of seeking the truth.
Zondi’s resolve while giving testimony and her bravery should be commended. It is for this reason that the Department of Justice and Correctional Services should consider establishing sexual offences courts. These courts will deal only with sexual offences services to survivors.
It is my view that these courts will reduce the trauma of a survivor by preparing and debriefing them for court, speed up cases, and there will be increased reporting of sexual offence cases as the personnel would be better skilled to understand their nature.
I’m mindful that trials are inherently confrontational, but what advocate Daubermann was doing was clearly re-traumatising or victimising Zondi all over again.
Judge Mandela Makaula should be applauded for not allowing such questioning as it was clearly secondary victimisation of Zondi.
It is against this backdrop that I believe advocate Daubermann should be reported to the Bar Council of Lawyers, Magistrates’ Commission and the Office of the Chief Justice, who should look at the manner in which judges intervene in sexual offence cases.
This would help to stop lawyers from further victimising the already traumatised survivors.
Imagine if this case had not been broadcast live, and that the CGE had not been monitoring it? What would have become of Zondi? Would she have received the same support from the media and society at large?
Some questions are very difficult to answer, but I do know that it is for us to prevent such a line of questioning from ever happening again.