S v MUSUMHIRI 2014 (2) ZLR 223 (H)

Flynote

Criminal law — offences under Criminal Law Code — rape — evidence — of complainant — c credibility — need to avoid reliance on what "ideal" rape victim would do — need to consider cultural context and inhibitions placed on victim

Headnote

In assessing the prospects of success on appeal in cases involving rape, it is necessary that such cases are looked at, not just from the perspective of the person who has been convicted of rape, but also from the lens of the complainant who has experienced the rape. This is even more so in cases where the alleged rape has taken place between parties who are known to each other, as it is precisely in such cases that the administration of justice can be hampered. In such situations, applicants for bail more often than not, when convicted, seek to take advantage of the fact that the two were known to each other: the conduct of their victims may generally fall short of the standard that society has so relentlessly crafted in terms of the expected behaviour of its ideal rape victim. She must scream — very loudly. She must show evidence of physical resistance. She must be battered and bruised if she is a genuine victim. If she knows her assailant she instantly loses credibility and the understanding is that she was not raped. It is the duty of the court to assess an application for bail pending appeal in rape cases unfettered by such dangerous myths which can clearly threaten the quest for substantive justice.

Research on cultural inhibitors to reporting gender-based violence and sexual assault indicates that silence cannot be equated with acquiescence. Fear of lack of support from the family, fear of the consequences that might befall the complainant, which may include being totally blamed for the event, being thrown out of the home, or being forced to marry the rapist are some of what keeps many women from not reporting. With women

often held culturally as custodians of what is deemed to be appropriate sexual conduct, and with the responsibility for sexual restraint being placed on a woman's shoulder, regardless of her age or power imbalances, it is understandable that a complainant may fail to report even when she was now free of the sexual assault.

The requirements to be met by a rape complainant should therefore not be divorced from the cultural context that might contribute heavily to swift action not being pursued. A young girl who has been raped may not make a voluntary report because her cultural context makes it difficult for her to do so without being re-victimised. She may fail to report without delay as expected by the law, because in her lived reality she has no idea if she will receive support or condemnation, if not eternal damnation. She may not report to the first person she could reasonably be expected to report for fear of being reduced to a liar and a tease. It is these realities that must therefore, with equal measure, inform the scrutiny of the likely prospects of an appeal in a rape case.