As a result of all the exposure rape and abuse of women is getting in the popular press, there is an enormous amount of pressure on both the police services and the prosecuting authorities to prosecute these and related offences vigorously. Similarly, there is a lot of pressure on courts to deal severely with persons convicted of these offences. The result is that one seems to deal almost with a type of reverse onus situation, in that when someone is charged with rape or some sexual offence, the accused is almost invariably regarded as being guilty until he has succeeded in proving his innocence. Technically, the accused is still regarded as innocent until proven guilty, but the general approach in my experience seems to be that it requires less from the prosecution to prove rape that it would in other offences not of a sexual nature.
In South Africa, the law of evidence traditionally approached the evidence of a rape victim (or victims of other sexual offences) with circumspection, as it was considered all too easy for a girl to shout “rape!” after the fact when she finally comes to the realisation of the enormity of what she got involved in. The result was that a “cautionary rule” developed in our common law which required that a court must deal with the complainant’s evidence in a very careful fashion, in order to avoid the innocent being convicted. By their very nature, offences of a sexual kind rarely have any witnesses except for the perpetrator and the victim. The result is that it is extremely difficult to corroborate the evidence of the complainant, especially in cases where intercourse is proven to have taken place, and it is only the say-so of the complainant that supports the claim that she was raped.
In consequence of the enormous pressure on courts to deal severely with perpetrators of these offences, the South African Supreme Court of Appeal some years ago abolished the cautionary rule in approaching the evidence of a single witness in sexual offences. Instead, we now deal with this kind of evidence on the basis of it being the evidence of a single witness (as any other single witness’ evidence would be dealt with), and a court must therefore be cautious in adjudicating this evidence, requiring corroboration of good quality.
This, however, still does not solve the problem. The fact of intercourse together with an allegation that there was lack of consent, creates an enormous problem for the accused. How does he prove a statement (consent) when the person who made it denies having done so emphatically?
Without wishing to create the impression that all rape victims are untrustworthy witnesses, it must be understood that there is grave danger in the way these offences are dealt with, with the ensuing risks of incorrect conviction. The truth of the matter is unfortunately, that males have only themselves to blame, because for too long these offences were committed without the victims obtaining proper redress. The reaction, however, has been more severe that necessary.
Having said that, while I have much empathy with the victims of the false cry of rape, the solution to the dilemma is not apparent, and if ever found, will not be an easy one to employ.
Perhaps the solution lies in getting the initially willing partner to sign an indemnity, stating that he or she fully inderstands the act, the consequences and consents thereto. Result: Clinical sexual intercourse, but without the risks of being falsely accused. Oh, and be sure to get the willing partner to sign the document before he or she has any beers.