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Mogoeng Mogoeng spot on about giving rape and gender-based violence special attention

National director of public prosecutions advocate Shamila Batohi, as a major stakeholder in the administration of justice, has not made her stance on gender-based violence and rape clear. /Thulani Mbele
National director of public prosecutions advocate Shamila Batohi, as a major stakeholder in the administration of justice, has not made her stance on gender-based violence and rape clear. /Thulani Mbele

It was Women's Day last week Friday and of all the gatherings across our country that celebrated women, the 15th conference of the South African Chapter of the International Association of Women Judges that was addressed by chief justice Mogoeng Mogoeng at the University of Mpumalanga was the most encouraging.

I was struck by the chief justice when he spoke about the sensitivities around cases of gender-based violence and rape. The chief justice acknowledged the difficulties that plague gender-based violence and rape cases and said his office was in the process of establishing debrief centres for judges who handle traumatic cases.

This is encouraging, in the sense that finally there is an acknowledgement that rape and gender-based violence cases require much more attention. Mogoeng further said the judiciary had the "responsibility to educate the nation about how the law works". In essence, the chief justice was saying that gender-based violence and rape cases are not so black and white and that all stakeholders, including society, are required to put their heads together to curb it.

And in interrogating issues around cases involving sexual abuse and gender-based violence, I pondered about the National Prosecuting Authority and its role in ensuring that it too interrogates these issues.

I ended up asking myself: where is the national director of public prosecutions, Shamila Batohi, given the gravity of sexual abuse? But I remembered that Batohi has not even uttered a single word about the calamity of sexual abuse.

I did however remember how a friend of mine once told me about a joke at the NPA about certain rape cases: "at the tavern, to the tavern, from the tavern - no prosecution".

This implies that cases where the complainant was allegedly raped at the tavern or was on the way to the tavern or had been at the tavern, regardless of the circumstances, those cases are not prosecutable.

We both didn't laugh. The joke was extremely vulgar but I realised that prosecutors may be giving our courts the wrong impression of what rape is. Kindly note that a rape may certainly be perpetrated at a tavern or on the way home from the tavern or on the way to the tavern.

The other issue this raised was why prosecutors are so reluctant to take these "difficult-to-prove cases" to our courts.

Yes, we have heard the argument: the NPA cannot prosecute cases where there are very little prospects of success in court. But the truth is that prosecutors may be more concerned about their performance targets instead.

Prosecutorial performance targets was highlighted in a recent report (Rape Justice in South Africa 2017) where researchers expressed their disapproval.

In the report, researchers recommended that rape cases that are closed by prosecutors "should be monitored to identify and reduce the impact of target chasing on premature closure of cases".

It was recommended further that prosecutors' performance targets should "consider the nature of rape cases" and that the prosecution authority should set up audit processes to review decisions not to prosecute cases with a special focus on "the no evidentiary aspects of such decisions".

We do not know if the NPA took heed of these recommendations, but I did hope that Batohi took note of the chief justice's valuable comments on Women's Day. The bottom line is that the way the NPA treats cases may be a major contributor to this national crisis and may also be perpetuating rape myths that plague our society.

A woman can be raped at a tavern!

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