South Africa’s rape shield: Does section 227 of the Criminal Procedure Act affect an accused’s fair trial rights?

• Jurisdiction: South Africa
• Published date: 24 May 2019
• Pages: 1-23
• Author: Jameelah Omar
• Citation: (2016) 29 SACJ 1
• Date: 24 May 2019

South Africa’s rape shield: Does

section 227 of the Criminal

Procedure Act affect an accused’s

fair trial rights?

JAMEELAH OMAR*

ABSTRACT

Rape shield laws are a critical a spect of the protection of rape complainants

during the crim inal justice process. T he rationale of rape shield laws is

to protect complainants fr om having their sexual reput ation or behaviour

used to reduce their credibi lity, particularly as the i nferences drawn are

based on historical pre judices against women, and do not act ually assist

with the fact-nding role of t he court. This ar ticle will argue t hat Section

227 of the Crimin al Procedure Act 51 of 1977 aims to nding the cor rect

balance between the protec tion of the complainant’s rights to pri vacy and

dignity, while upholding an accused’s right to a fai r trial, including the right

to adduce and challenge evidence. However, the sparse case law related to

section 227 raises quest ions about its successful implement ation by courts.

1 Introduction

The evidence that a rape accused may lead in his own defence –

particularly as it per tains to the character and conduct of h is accuser

– has been a matter of erce debate over the past decades. Prior to

the enactment in 1989 of section 227 of the Crim inal Procedure Act

(‘section 227’), there was no ‘rape shield’ available to protect rape

complainants and evidentiary r ules were governed by the common

la w.1 The statutory enac tment of the rape shield law in the Crimina l

Procedure Act has since faced amendment by the Crim inal Law

(Sexual Offences and Related Matters) Amendment Act (‘SORMA’)2

in order to bring it more in line with South A frica’s constitutional

dispensation. The prima ry purpose of its enact ment is to prevent

irrelevant information from bei ng admitted as evidence.3 A further

rationale, albeit an ancillar y one, is to protect a complainant in a

* LLB LLM (UC T), Lecturer, Criminal Just ice, Department of Public Law, University of

Cape Town

1 Crimina l Procedure Act 51 of 1977.

2 Crimina l Law (Sexual Offences a nd Related Matters) Amendment Ac t 32 of 2007.

3 South Afric an Law Commission (Pro ject 45) ‘Women and Sexual Offences i n South

Africa’ (1985).

1

(2016) 29 SACJ 1

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sexual offence matter from secondar y victimisation duri ng the trial as

far as possible,4 by restricting the type of ev idence that is admissible

and the circumstances u nder which such evidence can be found to be

admissible.

There has been no challenge to the constitut ionality of section

227 before a court yet, but the importance of the fair t rial rights of

an accused means that section 227 may always have the potential

to be constitutionally chal lenged in so far as section 227 restricts

the evidence which can be raised in defence of an accused. More

importantly, the sparse case law in relation to section 227 in t he high

court raises questions about the ef cacy of section 227’s use in the

magistrates’ court s where the bulk of sexual offence cases are heard

but the judgments are unrepor ted. The absence of reported judgments

cannot lead to the assumption that section 227 is bei ng properly

implemented,5 however, the efcacy of implementation of section 227

in the magistrates’ cour ts is beyond the scope of this art icle but is an

area that requires more research.

In this article it wi ll be argued that there is no in fringement of an

accused’s right to a fair trial because prior sexua l history evidence will

generally be irrelevant and therefore not protected under the r ight

to adduce and challenge evidence as contained in section 35(3)(i) of

the Constitut ion.6 This author will begin by set ting out the purpose

of rape shield laws in order to understand their legitimate role in

our law and the continued need for a rape shield. This author will

interpret the scope of the right to challenge and adduce evidence to

show that limiting the inclusion of prior sexual h istory evidence does

not unconstitutionally inf ringe an accused’s fair trial rights. Besides

making the argument t hat section 227 does not generally infr inge

the right to a fair trial, th is author will also consider individual sub -

provisions of section 227 for potentially problematic implications.7

2 The purpose of rape shield laws

It is impossible to engage with the constitutionalit y of section 227

without rst discussing the r ationale behind rape shield laws in

4 D Haxton ‘Rape sh ield statutes: Constit utional despite unconst itutional exclusions

of evidence’ (1985) 5 Wisconsin LR 1219 at 1220.

5 Case law that does ex ist shows that section 227 remains incon sistently applied, see

S v Katoo 2005 (1) SACR 522 (SCA).

6 Constitution of t he Republic of South Africa, 1996.

7 The author uses gender- specic language in this ar ticle. The reason for this is two-

fold. Firstly, for ease of writi ng, and secondly, and more importa ntly, under the

common law denit ion of rape, only women could be raped , and at present the

majority of repor ted sexual offence compl ainants remai n women. That does not

discount the fact t hat men can be raped and are v ictims of sexual offences.

2 SACJ . (2016) 1

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