Justice for Rape Survivors The sad thing is that erroneous perceptions of women and rape still exist in our society by Dr Prema Devaraj
First, the woman has to report the rape. It is well known that rape is a crime which is seriously under-reported i.e.approximately 1 in 10 rapes are reported.
Second, the police have to decide whether the case warrants investigation (some cases are dropped at this point).
Third, the Deputy Public Prosecutor must decide on whether there is sufficient evidence for prosecution (other cases are dropped at this point).
Fourth, there is the issue of the judgment in court itself.
According to research conducted by the All Women�s Action Society , once a case comes to court there is half a chance that the suspect will be convicted.(conversely there is half a chance that the suspect will not be convicted).
The sad thing is that erroneous perceptions of women and rape still exist in our society. These perceptions strongly influence the decision to report the rape as well as the detention, prosecution, conviction and sentencing of the offender.
These misconceptions which are widely held by the public also cloud the judgement of the service providers (who are meant to be helping the rape survivor) such as investigating officers, welfare officers, hospital personnel, counsellors and court officials. So even when the woman finally gets her case heard in court (despite all the odds), fallacious arguments used by the defence can still swing a court decision against a conviction.
Certain defence arguments - delay in reporting by the survivor, lack of corroboration, and conflicting testimony of the survivor - are used over and over again when rape cases are brought to court. If court officials are unaware of the fallacy in these arguments then rapists will continue to escape conviction. The sooner the courts examines, evaluates and dispels the erroneous perceptions of these arguments, the sooner justice can be provided to rape survivors.
Let�s look at each of these arguments.
Contrary to popular belief, a rape survivor does not rush to the police or the hospital immediately after the rape. A rape survivor may take days, weeks or even months to decide whether to report or not, depending on her situation or the type of rape. This is shown in the table below taken from a study carried out by AWAM in 1999.
Delay in Reporting
AWAM survey from 417 court files
Often the rape survivor may be in shock and may have trouble making decisions. This is a normal aspect of being traumatised. Perhaps she may have trouble admitting to themselves that they were raped. They may not know what to do or where to go for help or how to prove the rape.
There are numerous reasons cited for victims not wanting to report rape. The reasons include embarrassment, humiliation, fear of not being believed, rejection by family and friends, unwanted publicity, the ordeal of the courtcase, the opinions of others, a sense of guilt for having �allowed� the rape, or fear of retaliation by the offender or his friends.
The nature of the relationship between the victim and the rapist plays an important role in whether or not the offence is reported. The closer the victim is to the offender, (e.g. her father, boyfriend or close acquantaince) the less likely she will report the incident as she may not want him imprisoned (although she may want the abuse to stop). If however she suffers a great deal of violence, then she is more likely to report the incident.
Thus when a rape is reported late, the courts have a tendency to doubt the rape survivor because the belief is that she should have lodged a complaint at the first reasonable opportunity. In addition, it has often been suggested that the victim consented to sexual intercourse and only after instigation from other parties e.g. the family, decided to report the incident as rape.
Apparently, 75 per cent of reported rape cases are cold cases, i.e. cases which are more than three days old (AWAM 1999). It is necessary for the authorities concerned, such as the courts and the investigating officers, to understand why survivors delay in reporting rape and not hold it against a rape survivor�s claims.
Lack of Corroboration
In Malaysia, it is a well established rule of practice that evidence of a complainant in a sexual offence case needs to be corroborated. The testimony of the rape survivor alone is rarely sufficient to convict a rapist. There must be corroborating evidence. As rape is a crime which does not occur in public, the chances of someone witnessing the incident are slim.
Hence medical evidence is used as an important source of corroboration. Physical evidence such as bruising or strangulation always makes strong corroboration. However if 75 per cent of rape cases are reported after three days, chances of obtaining such evidence is slim. When there is a delay in reporting the incident, the injuries may have healed by the time the report is made.
In addition, there are also many instances when a survivor does not sustain any physical injury as a result of a rape. For instance if a woman is faced with an armed rapist or with more than one rapist i.e. gang rape, it would be in the best survival interests of the survivor to submit to the assailant(s) to avoid more harm. Or when a child is raped by her father, a person who holds authority over her in more ways than one, it is more likely than not that she will submit without resisting physically.
Unfortunately many people still believe that resistance must be displayed (i.e. physical injury must be present) to prove that there really was no consent.
Conflicting Testimony
Recalling details of sexual assault or abuse is different for every survivor. Some never forget, some have selective memories to cope with the trauma. Some may have multiple memories or just one memory. Or years of abuse may be telescoped into a single recollection.
It can also be difficult for a survivor to recall accurately times which were painful, humiliating and violating. This does not mean that the testimony is flawed or that the witness is mentally impaired. This is the reality of the effect of a sexual assault on the psychology of the survivor.
It is necessary for investigating officers and court personnel to understand how deep the trauma of rape can be (especially if the perpetrator is a parent) as well as the coping mechanism of the survivor which may include spacing out from or blanking out events. It is unrealistic to expect a survivor, on the witness stand, to be able to recall accurately all the incidents of abuse, dates, times and places given the trauma of the situation. Conflicting testimony therefore may arise. But should a rape survivor be penalised for this or should the courts have greater understanding of the issue at hand?
It is vital that personnel from the police, the judiciary and other service providers equip themselves with a deeper knowledge of rape and the effects it has on a rape survivor.
Society as a whole must combat misconceptions about rape. We cannot doubt a rape survivor just because she made a police report late, or did not sustain any physical injuries, or unwittingly accompanied the suspect to the place where the rape occured, or did not fight back or if she happens to be in a relationship with the accused.
If we work towards sensitizing ourselves, the police, the judiciary and other service providers, the rate of reporting, prosecuting and securing convictions for rape would improve.
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When a woman reports a rape, she has a 1 in 10 chance of getting the rapist convicted in court. The reality of the situation is that the majority of reported rapes do not end up with the rapist being convicted. So what stops justice from being efficiently served to rape survivor?