Given that some women will make false rape allegations, shouldn’t the law protect the identity of both the alleged culprit and victim before the courts issue a verdict?
It should, says Dr. Zein Kebonang, a legal expert and former law lecturer at the University of Botswana who is now operations director at Botswana-UPenn Partnership.
It shouldn’t, counters Mpho Mahopolo of Women Against Rape (WAR), a Maun-based NGO.
Kebonang says that once made, the allegation becomes a stigma that attaches itself to the falsely accused for the rest of his life. He suggests that largely has to do with the fact that the court of public opinion is notoriously unforgiving.
“It doesn’t matter whether the court clears you of the charges; in the eyes of the public there will always be lingering doubt. And all it takes is just an accusation. Even if you are cleared before the case reaches court, people would say that you bought the victim off. That is why I feel that it is important to protect the identity of the alleged culprit in the same way that the law protects that of the victim,” he says.
Conversely, Mahopolo does not think that it would be proper to equate the rights of the culprit with those of the victim. Her argument is that if the identity of the alleged culprits was protected, rape cases would skyrocket. The theory she advances is that criminally lustful men would rape with impunity.
She poses: “Can you imagine how many rape cases there would be? There would be many cases without names, without faces when woman have been raped.”
Mahopolo sees nothing wrong with the rape shield law as it is. She acknowledges the fact that some women would make false rape allegations but argues that there is recourse for the victims.
“In cases where it has been established that a woman falsely accused a man of raping her, the state prosecutes and the man also has the option of suing the woman,” she says.
However, Kebonang maintains that no amount of righting things after the fact works because the falsely accused man’s life and reputation would be permanently ruined. He gives as an example the Jacob Zuma case. Before he became South Africa’s president, Zuma was accused by a young woman of rape but was subsequently cleared by the court.
“Although he has been cleared, Zuma will live with the rapist stigma for the rest of his life. When he went to London earlier this year, newspapers in the United Kingdom were more interested in writing about the rape case despite the fact that the court said he did not rape. The stigma is permanent. Men who are falsely accused of rape also have to deal with very devastating psychological impact,” he says, adding that the false accusations also have severe and long-term psychological impact on the victim.
Parliament enacted the rape shield law some years ago to protect rape victims and encourage more of such women to come forward. Kebonang says that in the process of strengthening laws to deal with rape, the government failed to provide proper education to law enforcement officials.
“The result is that the police are unable to tell the difference between fact and fiction. To them the mere act of reporting means that rape has occurred. They arrest the alleged culprit on that basis and carry out investigations latter. When the case reaches the court, damage has already been done to one’s life and reputation,” he asserts.