20 March 1998

This submission deals with the introduction of comprehensive legislation to address present shortcomings in the legal position relating to sexual assault.

The Women & Human Rights Project of the Community Law Centre and Rape Crisis (Cape Town) have made submissions to this Committee on two previous occasions, namely on 6 June 1997 and 6 October 1997. On the first occasion, our submission dealt with proposed amendments to the Prevention of Family Violence Act. Among other areas we concentrated on the introduction of legal representation for a complainant in domestic violence matters. We also proposed a number of amendments to the law relating to sexual assault.

The second submission expressed our concern regarding amendments to bail legislation, and we specifically pointed out that the present position ignores the perspective of the rape survivor and denies her adequate protection.

In this submission, we have chosen to limit our focus to specific aspects of the law relating to sexual assault, firstly because we have identified the area of sexual assault as one requiring urgent intervention, and secondly, because we believe that these matters, which can be addressed expeditiously, will significantly improve the position of rape survivors


Non-governmental organisations providing services to rape survivors have consistently noted that the South African law relating to sexual assault is not only outdated, but operates as a source of secondary victimisation and fails to protect the rights or interests of rape survivors. Previous attempts by such organisations to effect changes to the legal position through proposed law amendments were largely unsuccessful, as clearly illustrated in the 1985 South African Law Commission report on sexual offences against women.

During 1994, a group of women's organisations submitted proposals for law reform to the Transitional Executive Council. Although this document contained concrete suggestions for legislative intervention, there is no evidence that these proposals were pursued in any way.

Rape Crisis and the Women & Human Rights Project submitted a proposal to the Ministry of Justice during 1997, suggesting areas of law requiring urgent consideration. We were subsequently informed that the Law Commission would be instructed by the Minister to investigate the matter. As far as can be established, the Commission has not yet received such instruction (in spite of press reports suggesting the contrary).

At present, the South African Law Commission is investigating the legal position regarding sexual offences against children. Since many of the concerns outlined by the Commission in its Discussion Paper are similar to the areas we have identified, we have consistently argued for an extension of the scope of this investigation to encompass all sexual offences, with the important proviso that the interests of adult survivors should be adequately represented in such inquiry.

In July 1997, the Namibian Law Reform and Development Commission published a report on the law pertaining to rape, which inter alia contained a draft bill. This bill represents an attempt to effect reforms to the existing legal position, and to introduce a number of new measures.

At the time of compiling this submission, this bill is in the final stages of revision before legislative introduction. Although we recognise that there may be differences between the published bill and the version which will ultimately be tabled, we believe that the bill offers interesting opportunities for comparison (given the similarities between South African and Namibian law). Such a comparative analysis may pave the way to the formulation of comprehensive legislation regulating the entire area of sexual assault in South African law -including aspects of substantive criminal law, law of evidence and criminal procedure.

Although we have elected to draw the attention of this Committee to selected clauses of the Namibian draft bill only, we urge that the bill should be examined in its entirety.

The bill inter alia provides for the following:
a) a redefinition of the offence of rape (the offence is now defined as 'an intentional sexual act under coercive circumstances') [clause 2];
b) minimum sentences for a conviction on a charge of rape [clause 3];
c) orders for the payment of compensation to the complainant [clause 4],
d) mandatory. commencement of rape trials within three months from the date of arrest of the accused [clause 5];
e) the abolition of the common law rule that a boy under the age of 14 is deemed incapable of performing sexual intercourse [clause 6];
f) the abolition of the cautionary, rule relating to sexual offence cases [clause 7];
g) disallowing a negative inference based solely on the length of the delay between the commission of the act and the laying of a complaint [clause 8];
h) the admissibility of evidence of the psychological effect of rape [clause 9];
i) the right of a complainant to be legally represented during criminal proceedings [clause 10],
j) the right of a complainant to be heard in bail applications in rape cases [clause 12];
k) mandatory imposition of bail conditions aimed at ensuring that the accused does not make contact with the complainant;
l) closure of the court during the testimony of a rape survivor [clause 15];
m) protection of the privacy of the rape survivor [clause 15]; and
n) a prohibition of evidence relating to the previous sexual history of the complainant [clause 7].

This submission will specifically examine the rights of the complainant in relation to bail application and legal representation during the criminal trial proceedings. We will also address evidentiary aspects, most notably the cautionary rule in sexual offence cases, the admissibility of previous consistent statements and the admissibility of evidence relating to the complainant's sexual history.


Section 12 of the draft bill inserts the following section into the Criminal Procedure Act 51 of 1977:

59A. (1) Where a court is considering the question whether an accused who is in custody for a charge of rape, is to be released on bail, the complainant shall have the right to address the court (whether personally or through a legal representative) and shall also have the right to present any relevant evidence or information to the court.
(2) If an accused is in custody on a charge of rape, the person in charge of the police station or place referred to in section 50(1), shall cause the complainant to be informed, as soon as practical, by means of a written notice served on him or her, in the same manner mutatis mutandis as a summons referred to in section 54, or of it is not possible, in any other manner
(a) of the date, time and place of the first appearance of the accused in court;
(b) of the rights of the complainant under subsection (1);..
(5) If the complainant is present in proceedings where the accused is before the court for rape, and such proceedings are postponed, the complainant shall be informed of the date to which such proceedings have been postponed and of his or her rights under this section and section 10(1) of [this Act]...
(7) If in proceedings where the accused is before the court for rape, such proceedings are postponed in the absence of the complainant, the prosecutor in such proceedings shall cause the complainant to be informed
(a) of the matters referred to in subsection (5); and
(b) whether the accused has been released on bail.

As we have recently stated to this Committee, we are concerned that the amendments to the Criminal Procedure Act regarding bail in serious criminal matters will not go far enough to ensure that the interests of complainants in sexual assault cases are represented adequately. We specifically urged the Committee to consider the inclusion of legislative provisions regarding the duties of prosecutors in bail applications, for example, to consult with all survivors without exception, to keep survivors informed at all stages of the proceedings, to make use of expert witnesses and to request the imposition of appropriate bail conditions.

This proposal was based on our practical experience around bail matters, which indicates that one of the major causes of anxiety to rape survivors is uncertainty about the arrest of the suspect, whether or not he has been released on bail, which conditions have been imposed and the procedure to be followed in the event of a breach of the bail conditions.

The impact of certain constitutional provisions should be considered here. In terms of section 34 everyone has the right to a legal hearing. A complainant whose rights have been adversely affected by administrative action also has the right to be given written reasons. Furthermore, in terms of section 32, everyone has the right to access to information.

The significance of the Namibian provision is that it recognises the right of the complainant to be heard during the bail application and to present evidence. It also recognises the right to legal representation during bail proceedings.

This recognition has the immediate implication that the complainant should be informed of her rights, and the bill imposes statutory duties on various officials to ensure that this information Is conveyed

In its explanatory notes to the bill the Law Reform and Development Committee explains that the provisions are an attempt to balance the right of the complainant with the right of the accused to bring an application for bail. Since the South African Constitution does not expressly guarantee the rights of victims (this is done by implication, for instance through recognition of the right to freedom from violence), it is important to ensure that these rights are given express recognition elsewhere. We believe that the inclusion of similar provisions in South African legislation will not only serve to ideologically entrench the rights of rape survivors, but will also solve a number of the practical problems which rape survivors face during the criminal process.

We propose that a similar provision be enacted in South African law. We also propose the inclusion of a provision requiring a prosecutor in a sexual assault case to consult with the complainant prior to bail proceedings.


Clause 10 of the bill reads as follows:
10. (1) In criminal proceedings where the accused has been charged with rape, the complainant has the right (either personally or through a legal representative) to -
(a) address the court on any issue on which the prosecutor may address the
(b) put any question to a witness called by the prosecutor that the prosecutor may have put to such a witness;
(c) object to any evidence adduced by the prosecution or the defence, or to any question put to any witness, whether by the prosecution or the defence;
(d) adduce any admissible evidence, which the prosecution has not adduced;
(e) cross-examine any witness (including the accused) who is called by the defence.

In previous submissions both to this Committee and the Law Commission, we have attempted to show how a criminal trial disempowers a rape survivor and fails to accommodate her rights and interests. The focus of criminal proceedings is on the advancement of the state interest in obtaining a conviction. As a complainant, the rape survivor is at best seen as an adjunct to the state case, and consideration of her perspective of the violence is effectively excluded by the limited role which she is expected to play. She is subject to gender bias and secondary victimisation without any legal recourse when, for example, prosecutorial inexperience and insensitivity lead to a failure to react to hostile or degrading cross-examination by the defence. This is often exacerbated by a failure by presiding officers to curtail invasive cross-examination.

It has been stated repeatedly that the role of the prosecutor is not that of an attorney representing a client. By virtue of the respondent's right, in terms of section 35(3)(g) of the final Constitution, to legal representation at state expense, one sees that an imbalance of power exists between the complainant and the (legally represented) accused. In Govender v Manikum [l991 1 SA 1178 (N) 1185] the court took the view that '[a] person who can be affected by any order is entitled to legal representation unless there is a special exclusion of that common law right'. We would argue that given the interest of the rape survivor in the criminal proceedings, a right to legal representation should be recognised.

In terms of section 395(1) of the German Strafprozessordnung, a complainant who has been injured by an unlawful act of, inter alia, rape, sexual coercion, insult and bodily harm, may participate as an ancillary accuser (Nebenklager) in the criminal prosecution of the accused. The rationale for the participation of the Nebenklager is not the public interest in the prosecution of crimes, but her personal interest in obtaining satisfaction for the suffering that is the consequence of the crime. The fact that she is also a state witness does not detract from her right to participate as Nebenklagerin.

The tripartite nature of proceedings that involve the participation of the Nebenklagerin is founded on the inquisitorial model of criminal procedure adhered to in German law. Since the judicial function comprises an investigative inquiry aimed at establishing the truth, the state and the accused are not pitted against each other in an adversarial contest to win the case. The introduction of a third person as a party to the proceedings does therefore not cause an imbalance in the proceedings that prejudices the accused.

By contrast, the adversarial model of criminal procedure apparently adhered to in South African law is premised on a contest between the state and the accused in which the judge acts as impartial umpire. It may accordingly be argued that the introduction of the Nebenklagerin procedure will cause an imbalance in the proceedings that is contrary to the essence of South African criminal procedure.

However, a comparative analysis of German and South African criminal procedure indicates that the latter already embodies several inquisitorial elements. In terms of section 167, read with section 186, of the Criminal Procedure Act, the South African judicial officer has the power to call witnesses to give evidence and to put questions to such witnesses concerning their evidence. He or she may also question the accused after he has given evidence. In addition, in terms of section 112(1)(b) and section 113, the South African judge has a duty to question an accused who pleads guilty to serious offences and, if not satisfied that the accused has admitted all the elements of the offence, to change the plea to a plea of not guilty. The concept of the South African judge as an impartial umpire in a contest between the state and the accused is accordingly inaccurate.

It may also be argued that the characterisation of a complainant in sexual assault cases as an ancillary, prosecutor will infringe the accused's right to a fair trial in section 35(3) of the final Constitution. However, the secondary victimisation of the complainant in such proceedings and the failure to consider the personal effect of the offence on her constitutes a violation of her right to gender equality. We accordingly submit that the introduction of the Nebenklagerin procedure will rectify this inequality rather than infringe the respondent's right to a fair trial. In German law, the procedure is regarded as consistent with the German Basic Law.

However, even it is found to violate the accused's right to a fair trial, we submit that, in view of the complainant's rights to gender equality and freedom from violence, this violation is justifiable in terms of section 36(1) of the final Constitution.

It should be noted that the Namibian Law Reform and Development Commission has also pointed out that the special nature of a rape trial justifies the provisions enabling legal representation in sexual assault cases.

For these reasons, we have proposed the introduction of a system analogous to the German one, where the rape survivor can join as an ancillary prosecutor. This would have the implication that her rights to legal presentation, to adduce evidence, to cross-examine witnesses and to appeal against a finding on the facts would be recognised. Although this proposal was specifically formulated in the context of domestic violence, we have pointed out that it has similar implications in sexual assault matters.

We welcome the Namibian proposal, since the implementation of such clause may address some of the shortcomings we have identified. We however wish to point out that in addition to the procedural rights referred to above, the complainant should also have the right to appeal against a finding both on fact and on a point of law.


Clause 7 of the Namibian Bill prevents a court from treating the evidence of the complainant in criminal proceedings with special caution merely because such accused is charged with rape or an offence of an indecent nature.

The so-called cautionary rules are rules of practice which require judges, in assessing evidence, to exercise caution before accepting evidence of certain witnesses on the ground that the evidence of such witnesses is inherently potentially unreliable. This rule inter alia applies to the evidence of complainants in sexual offence cases.

S v S [1990 1 SACR 5 (A)] illustrates the weight attached to this rule by our courts. The Appellate Division (per Eksteen JA) held that mere reference to the cautionary rule would not suffice. The court must be satisfied that the cautionary rule applicable to single witnesses has been overcome and must also clearly show that it was conscious of the inherent danger of such evidence in sexual cases

The rationale for this cautionary rule has been explained by the South African Law Commission as follows:
Rape usual takes place in secret and it is easy to lay a false charge and difficult to refute it. Furthermore a complaint could be motivated by an emotional reaction or spite, an innocent man may be falsely accused because of his wealth, the complainant may be forced by circumstances to admit that she had intercourse and then represent willing intercourse as rape.

The existence of the rule thus rests on stereotypical assumptions about women's inclination to lie in matters relating to sexual offences. Apart from the fact that this assumption is offensive, degrading and clearly discriminatory, it is important to note that it has no rational basis or empirical evidence to support it. In fact, studies have shown that the rate of unfounded rape charges are similar to that of other crimes (about 2%).

A further objection is that although the rule is framed in gender-neutral terms (it also applies where the complainant in a sexual offence case is a man), experience has shown that the vast majority of complainants in these cases are women. The rule thus operates to discriminate disproportionately against women.

South African (and Namibian) authors and non-governmental organisations have consistently called for the scrapping of this cautionary rule. It is argued (correctly, we would submit) that the presumption of innocence, the burden of proof on the State to prove its case beyond reasonable doubt and the rule which requires caution to be exercised where the state case depends on the evidence of a single witness, would more than adequately safeguard the accused against an unjustified conviction.

In S v D [1992 1 SA 509 (NmHC)], the Namibian High Court (per Frank J) rejected this rule on the grounds that it is irrational (given the absence of empirical evidence that false charges are laid more frequently in sexual offence cases). He also pointed out that the vast majority of complainants in sexual assault cases are women, and added:
...I am of the view that the so-called cautionary rule has no other purpose than to discriminate against women complainants. This rule thus probably also is contrary to art 10 of the Namibian Constitution which provides for the equality of all persons before the law regardless of sex.

The subsequent South African judgment in S v M [1992 2 SACR 188 (W)] addressed these arguments, and Du Toit AJP and Flemming AJP held that it was misconceived to construe the cautionary rule as discriminatory. The rule was not a rule of law, but simply an admonition to adjudicators to apply common sense (whether the complainant was male or female). The court listed the dangers inherent in a complainant's evidence, which included the consideration that because of the nature of the evidence, it was always possible for the complainant to be influenced to portray voluntary participation as involuntary.

We submit that this dictum displays a lack of insight into the concept of indirect discrimination based on sex and gender. and perpetuates the objectionable assumptions referred to above. In misconstruing the nature of the rule, the court also clearly underestimates its practical and ideological effects

The most important reason for disregarding this judgment is to be found in the fact that S v M was decided before the implementation of the (interim) Constitution. We submit that the test for discrimination would be construed differently in the light of present constitutional provisions In the recent judgment in S v Chapman [1997 2 SACR 3 (SCA)], the Supreme Court of Appeal (per Mahomed CJ) enunciated the implications of the constitutional entrenchment of rights in the context of rape as follows:
Rape is a very serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the Constitution and to any defensible civilisation. Women in this country are entitled to the protection of these rights.

It is important to note that rules analogous to the South African cautionary rule have also been challenged in other jurisdictions. In Canada, for example, a warning to look for corroboration in sexual offence cases was abolished by section 274 of the Criminal Code of Canada.

In the light of the entrenchment of the right to gender equality and the right to freedom from violence in the Constitution, we submit that this rule no longer has any place in South African law (to the extent that it ever had), and we urge the Committee to ensure the inclusion of a provision similar to the Namibian clause 7 in proposed sexual assault legislation.


Clause 8 of the bill proposes that where the accused is charged with rape, the court shall not draw any inference only from the length of the delay between the commission of the act and the laying of a complaint.

The law of evidence prohibits the admission of statements made by witnesses prior to their testimony during the trial, even where these statements conform with their subsequent testimony. This is described as a rule against narrative or self-corroboration. An exception to this common law rule is allowed in sexual offence cases: where the complainant made a statement soon after the alleged offence, this previous consistent statement is admissible in court. In order for the statement to be admitted, it must have been made voluntarily and at the first reasonable opportunity. (The determination of what constitutes 'a reasonable opportunity' rests with the presiding officer.) This requirement of 'first reasonable opportunity' bears the influence of the English 'hue and cry' rule.

This statement may however not be admitted to prove the truth of its contents, but merely to show consistency in the complaint (and may contribute to establish lack of consent).

Although this exception may have originally been made in order to facilitate the inclusion of evidence to support the complainant's credibility, practical experience has shown that the rule also has a darker side: where the survivor does not make a statement at the first reasonable opportunity, it is argued (usually successfully) that a negative inference is justified. The existence of the rule in its present form thus allows the defence to exploit a complainant's failure to report timeously and to shift the focus to the credibility of the complainant.

The negative inference that may be drawn reflects assumptions about the psychological effects of rape and the subsequent conduct of the survivor which are not borne out by modern advances in this area. It is now widely recognised that there are many psychological and social factors which may inhibit a rape survivor from making a complaint, and the absence of a complaint can never be a reliable criterion in assessing credibility.

It has been suggested that the first complaint exception should no longer be recognised in South African law, and that previous consistent statements should only be admitted under the general rule which allows for admission to counter an allegation that the witness's version is a recent fabrication. We are of the opinion that this suggestion does not allow for the specific nature of sexual offence trials, and that the present exception should rather be retained in qualified form.

The South African Law Commission suggested in 1985 that legislation should lay down that absence of a complaint or a late complaint may not be used to cast doubt on the complainant's credibility. Similar legislation has been enacted in Victoria, Australia and in Canada.

The Namibian Law Reform and Development Commission recognises that the trauma of the complainant may cause her to delay the laying of a complaint, while she might not be able to give a satisfactory explanation for the delay. In order to balance this consideration with the accused's right to a fair trial, they propose that the court should not assume that a late complaint per se would cast a negative light on the complainant's credibility. The court may therefore draw an inference from a late complaint if it, together with other evidence, suggests that the charge is false.

We are concerned that the retention of a possible negative inference, as proposed in the Namibian bill, may leave the door open to exploitation by the defence similar to the current position. We therefore recommend that the formulation suggested earlier should be followed, viz. that legislation should provide that absence of a complaint or a late complaint may not be used to cast doubt on the complainant's credibility.


Clause 17 of the bill inserts the following section after section 227 of the Criminal Procedure Act:

227A (1) No evidence shall be admissible and no question shall be put to any witness relating to previous sexual conduct or experience of the complainant, or the sexual reputation of the complainant, in a charge of rape or an offence of an indecent nature, unless the court has granted leave to adduce such evidence or to put such questions, which leave shall only be granted if-
(a) such evidence is adduced or such question is asked to contradict or disprove evidence adduced by the prosecution;
(b) such evidence is adduced or such question is asked in order to explain the presence of semen or injury to the complainant; or
(c) such evidence relates to or such question is asked in relation to the incident for which the accused is charged.

The general rule in criminal cases is that the character of the witness (complainant) is not relevant to credibility. Consequently, evidence which is directed at establishing that the witness has bad (or good) character is prohibited.

The exception to this general rule is to be found in cases involving a charge of rape or indecent assault. In terms of section 227 of the Criminal Procedure Act (as amended in 1989) the admissibility of evidence relating to previous sexual history of the complainant depends on a finding of relevance by the court. This evidence will only be allowed on application by the accused (who has to satisfy the court that such evidence or questioning is relevant). The complainant's sexual history with the accused remains at all times relevant.

The general criterion for the admissibility of evidence in trials is relevance. Traditionally prior sexual conduct was believed to be relevant to credibility and consent in rape cases. This logic implies that a woman who has previously engaged in sexual activity is more likely to consent to sexual activity on any other occasion.

In practice, this evidentiary rule is used to attack the complainant's credibility and character. If we accept that women are entitled to sexual autonomy then such a law has to be regarded as undermining women's Constitutional right to equality on the basis of gender. Asking about previous sexual history can only serve to intimidate and humiliate the complainant and consequently discourages women from reporting incidents of rape.

The shift in emphasis suggested by the 1989 amendment unfortunately does not go far enough to provide protection against unwarranted cross-examination. The eventual admissibility of such evidence is left to the discretion of the presiding officer, and the question now becomes which criteria are used to decide whether such evidence is relevant. Practical experience has shown that section 227(2), even as it currently stands, is seldom applied properly. Therefore we propose that a more specific test should be formulated to determine relevance.

In terms of section 276 of the Criminal Code of Canada, evidence of previous sexual history, even if it is with the accused himself, is inadmissible to support an inference that, by reason of the sexual nature of that activity, the complainant is more likely to have consented to the sexual activity that forms the subject matter of the charge or is less worthy of belief. In addition no such evidence shall be led unless the judicial officer determines that the evidence is of specific instances of sexual activity, is relevant to an issue at the trial, and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. The section then lists the factors to be taken into consideration in determining admissibility:
a) the interests of justice, including the right of the accused to make full answer and defence;
b) society's interest in encouraging the reporting of sexual assault offences;
c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
d) the need to remove from the fact-finding process any discriminatory belief or bias;
e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
f) the potential prejudice to the complainant's personal dignity and rights of privacy;
g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
h) any other factor that the presiding officer considers relevant.

Where the defence seeks to introduce sexual history evidence it must submit a written application containing detailed particulars of the evidence which the accused seeks to adduce and set out the relevance of the evidence to the issue at the trial. The application, if in order, will then be followed by a hearing in the absence of both the jury and the public at which evidence will be examined and witnesses called. At the conclusion of the hearing the judge will determine whether the evidence or part of it is admissible. The complainant is not a compellable witness at such hearing. The judge must give reasons in writing for the decision and state in particular how sexual history is relevant to the issue at trial

In addition, section 277 of the Canadian Criminal Code provides that evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.

The present formulation of section 276 follows the finding in R v Seaboyer: R v Gayme [1991 83 DLR (4th) 193] that an earlier version of section 276, which considerably limited the admissibility of evidence regarding previous sexual history, was inconsistent with the principles of fundamental justice guaranteed in sections 7 and 11 of the Canadian Charter of Rights and Freedoms. The basis for this finding was the fact that this provision unduly limited judicial discretion to admit relevant evidence. On the other hand, section 277 (which was also challenged in casu) was held not to infringe the right to a fair trial.

We are Concerned that the Namibian proposal, which is reminiscent of the contested version of section 276 may suffer a similar fate if subjected to constitutional scrutiny. It would thus appear that the Canadian model may be preferable.

We therefore recommend that provisions similar to the present sections 276 and 277 of the Canadian Criminal Code should be adopted. However, we suggest that the factors which the Court should take into consideration in determining admissibility should be limited to prevent the intrusion of a subjective value judgement (in the guise of a requirement of relevance) into an inquiry into admissibility.

In emphasising specific areas in this submission, we do not wish to undermine the urgent need to address all aspects of the law relating to sexual assault. The Namibian bill provides a clear example of how comprehensive sexual assault legislation may be structured, and also offers a number of innovative measures in this regard.

We are concerned that the process which at present seems to be favoured (i.e. a separate inquiry by the South African Law Commission) will not only be unduly time-consuming, but will also duplicate both the inquiry into sexual assault against children and existing South African research on sexual assault legislation. We therefore request the urgent assistance of your Committees in taking this initiative further.

Bronwyn Pitbey
Helene Combrinck
Nicolette NayIor