A grave responsibility
CARMEL RICKARD: How our courts bungle rape cases
This week’s In Good Faith column is free to read. The appeal court’s judges labelled an opinion as objectionable for a judicial officer to hold, let alone express in open court to a recidivist rapist
This year’s slogan of the annual campaign to end violence against women and children is "Count me in". So I tried to imagine how the rape trial of Gwetya Stokwe would have been different if the magistrate, prosecutor and everyone else involved in the case woke up each day saying "Count me in."
Instead, the trial was a recital of errors suggesting they really didn’t care.
Stokwe has 13 previous convictions, four involving violence. When he attacked and raped the woman in this case he was out on parole, having been sentenced to an effective 26 years for rape, murder and robbery.
First mistake right there — deciding he was a suitable candidate for release.
He and the woman were involved in "a romantic relationship", said the court. But here is the reality of that romance: he was furious when she declined food he offered her one night, so he "irrationally accused her of infidelity", then beat her up, tying her wrists with cables so she could not defend herself. Later, he took off her clothes, "penetrated her vaginally with a stick ... wrapped with a cloth" and then passed out.
When he attacked and raped the woman in this case he was out on parole
She escaped and told the wife of a bishop who lived nearby. They called the police who arrested Stokwe. The bishop’s wife later told the trial court about the woman’s "distressed state", her "bloodied and swollen face" and the report she made of rape with a stick.
The regional magistrate found the woman and the bishop’s wife honest and credible witnesses; Stokwe, who "told a pack of lies", was given a life sentence. But when the case was examined on automatic appeal the judges found a great deal wrong with the trial.
Stokwe was charged under a section that stipulates jail for life where a rape involved "grievous bodily harm".
But no-one asked if the woman had indeed suffered serious injury, and the examining doctor did not give evidence even though the highest courts have "deprecated" the practice of not calling the doctor in such a case.
No-one asked about the impact of the injuries listed in the medical report or what treatment she received; in fact, no evidence was elicited to support the charge of "grievous" bodily harm. The appeal court thus found a different section applied — with a lesser sentence of 15 years.
The judges also said that comments by the magistrate "cried out for censure."
Count who in?
Speaking of the rape, the magistrate said: "It would have been better if (Stokwe) was using his penis rather than a stick."
Later he said Stokwe could have had intercourse with the woman "but instead you chose to take a stick and poke her vagina, because you knew that if you use your penis she would feel nice, enjoy the sexual intercourse but surely with an instrument like a stick it would be painful."
Any suggestion that a woman "enjoys the traumatic experience [of rape] if a penis is used" brought the administration of justice into disrepute, said the appeal court, adding: "It is objectionable for a judicial officer to hold such an opinion, let alone express it in open court to a recidivist rapist."
Their judgment has been sent to the relevant authorities to consider action against the magistrate.
At a recent cabinet meeting, SA’s top political leadership said of the 16-day campaign that society should understand that violence against women was not a government or justice system problem, but a societal problem.
Sure, it is a societal problem. But government and the justice system also have grave responsibilities and Stokwe’s poorly handled case is far from unusual.
It is, in fact, so common that I have to ask: is "Count me in" seriously intended to include judges, magistrates, police and prosecutors?
Read the judgment below: