Court of Appeal Sets Example in Combating Secondary Victimisation

By O’Brien Kaaba and Ndindase Chirwa

It is a sadly frequent occurrence that female survivors of sexual assault face significant skepticism within the criminal justice system. Far too often, they endure re-victimisation and are unjustly treated as suspects rather than recognised as victims.

The legal framework frequently fails to acknowledge their unique needs and struggles. Inadequate and insensitive investigations, restrictive rules of evidence, and intrusive cross-examinations, among other factors, contribute to their marginalization within the criminal justice system. In many cases, the system disproportionately favours the accused, overlooking the essential needs of survivors, their families, and the broader public interest.

Fortunately, in the recent case of Sinyolo Muchiya v The People Appeal No 139/2021 [24 August 2023], the Court of Appeal demonstrated remarkable understanding of the needs of victims of sexual assaults and the need for balancing the rights of the accused and those of the victim. In this case, the appellant was tried and convicted of rape in the Subordinate Court.

In April 2018, the circumstances unfolded as follows: The complainant, a student at Rusangu University in Monze, visited Tooters nightclub for a night out. Around 23:00 hours, she decided to leave and hired a taxi to transport her back to the university. According to the complainant, she experienced a traumatic event during the taxi ride, alleging that she was sexually assaulted by the taxi driver. In contrast, the appellant contended that the sexual encounter was consensual, asserting that the complainant was, in fact, his girlfriend, and that they had engaged in sexual activity prior to this incident.

The magistrate believed the version of the complainant, largely based on her credibility, her early reporting of the rape, her identification of the Appellant and bruises found on the Appellant which were consistent with her story that she had scratched his neck in the struggle.

The Subordinate Court convicted the appellant of rape and committed him to the High Court for sentencing. The High Court sentenced him to 18 years of imprisonment. The appellant appealed to the Court of Appeal, challenging both his conviction and sentence.

Although the appellant launched many grounds of appeal, of interest to us is the argument that the sexual intercourse could not have been forced as there was tranquility as the complainant could have fled or asked for help had she felt threatened, but chose to stay. It must be noted that the Courts have historically given credence to the unfounded belief that it can only be rape if the victim made efforts to flee or cried for help. Usually, the law has been used to make unwarranted negative claims against the ‘silent’ victim.

The case of The People v Golden Bola, involving allegations of rape of a secretary by her supervisor is illustrative. In this case, the trial magistrate, in dismissing the case, made completely unwarranted accusations against the complainant as follows: “It was highly questionable for an old woman to be forced into having sex on several occasions without revealing to anyone…. Silence raised concern and showed that she consented to the alleged offence… The complaint was baseless and the complainant had hallucinated showing that she was traumatized”.

This approach to treatment of female sexual assault victims has long historical roots and was imported as part of the common law baggage. As a result, the law has for long been used as a tool for tolerating, or perpetrating gender violence and re-victimising complainants, turning them into suspects. It is in this context that the decision of the Court of Appeal must be appreciated. The Court rejected the notion that if the woman did not flee or call for help then she consented. It asserted: “As regards the failure to flee or call for help, it is our view that the mere fact that the victim of a sexual assault does not flee or call for help, cannot lead to a conclusion that she consented to such assault”.

The Court went further to state that such failure should be considered in context, as in this case, the victim’s appearance soon after the act gave credence to her claim that she had not consented to the sexual intercourse.

In taking this approach, the Court of Appeal rejected the outdated prejudiced view of women as liars when they complain about sexual assaults. As Holmes J stated in Commonwealth v Clearly, such a rule or requirement is simply a “perverted survival of the ancient requirement that a woman should make hue and cry as a preliminary to an appeal of rape”.

The decision by the Court of Appeal is progressive and must be celebrated as it shows sensitivity towards women, who are often the victims of sexual assault. It represents a remarkable appreciation of the Golden Triangle in the criminal justice system. The Golden Triangle emphasizes the need for fairness on all the three facets of the criminal justice: the accused, the victim and the public.

That is, the Court must triangulate the accused’s right to a fair trial; the need to protect victims from re-victimisation; and the public interest to ensure fair trail and protection of victims. It is a recognition that while the rights of the accused are paramount in order to secure a fair trial, it is also crucial that the rules of evidence operate to protect and support victims of crime from secondary victimisation. The Court of Appeal got the balance right in this case and must be applauded.