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
© Juta and Company (Pty) Ltd
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 efcacy 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- specic 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 denit 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
© Juta and Company (Pty) Ltd
To continue reading
Request your trial