Publicly raped all over again by the legal profession
The tactics of Pastor Omotoso's lawyer deserve condemnation, and warrant a rethink of the Criminal Procedure Act
On her 15th birthday, she was lured away from the bus stop, where she waited to go to school, by four young men. She had dated one of the men for several weeks and they had broken up before her birthday. She knew the others a little or not at all. They convinced her to go to the home of one of them, promising they would return her to the bus stop in time for her afternoon classes.
She boarded a bus with the four men, arriving 15 minutes later at a home she had never been to before. She had no money for return transportation. When they arrived at the apartment the four men forced her to engage in sexual acts. She spent May 14 2002 being repeatedly sexually assaulted by these four men.
George Aristos, Joseph Paradiso, Gerald Yasskin and Nadir Sachak acted for the accused at their trial. None of the accused testified nor were any defence witnesses called. The case turned almost entirely on her evidence.
She spent September 15 2003 being extensively cross-examined by these four men. Defence counsel asked her why she did not just run away. Why did she not call out for help? Why did she not tell the police immediately? Why did she tell her friend before she told the police? Why did she wait six days to tell her mother? Why did she not tell the first person she saw in the elevator after the attack, or the bus driver, or the shopkeeper, or any of the other strangers she crossed paths with on the way home?
Defence counsel called her a liar. They said she was evasive and outright dishonest. She was accused of perjury. It was suggested that she made the whole thing up out of animus against one of the accused, who had broken up with her a few weeks before her birthday.
Defence counsel questioned her on her failure to resist the assaults physically, apart from one slap to the face of one of the young men. They asserted that such feistiness in response to the four men suggested that any sexual activity that happened that day was consensual. Some of the defence lawyers argued that she should be disbelieved because of a lack of evidence of significant physical injury. If she had been attacked, as she said, why did she not have any injuries to show for it?
Pardon me for appearing academic in my writing style because I am indeed an academic and not a legal analyst nor a legal ethicist. The above story is related to an actual case referred to in a publication by Elaine Craig titled “The Ethical Obligations of Defence Counsel in Sexual Assault Cases”, which appeared in volume 51 of the Osgoode Hall Law Journal in 2014.
The tactics of the defence lawyer in the rape case of Pastor Timothy Omotoso deserve a curious examination and condemnation. Victims of rape and other forms of sexual assault, and women in particular, approach the courts with the innocent belief that these are sanctuaries away from their abusers.
Alas, think again. This is not always the case. The unethical, scandalous, blatant and public re-humiliating, de-humanising, barbaric, hostile, sarcastic and torturous questioning, and stripping naked of Ms Cheryl Zondi at the hands of an inane lawyer, surely exposed the weakness of the South African justice system.
Not only is the conduct of Mr (Peter) Dauberman towards Ms Zondi questionable and distasteful, his questioning implicitly offered the admission on behalf of his client, Pastor Omotoso, that the pastor did indeed commit statutory rape.
Thanks to the judge who exercised his discretion in terms of section 166 of the Criminal Procedure Act of 1977 to intervene and give Ms Zondi some protection whilst the prosecution was fast asleep. The conduct of Mr Dauberman amounted to scandalising of the court and the legal profession.
There is so much I can say in support of Ms Zondi and in adding my public advocacy voice to carry the message of the entire nation condemning the conduct of Mr Dauberman. But let me detour for a moment and reflect on this issue from a legal point of view. The opinion of Justice White in the famous 1967 United States Supreme Court case of United States v. Wade provides instructive advice on the practice of cross-examination when he wrote the following of the defence lawyer: “If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth.”
It is common knowledge that the right to cross-examination is part of the framework for fair trial that is guaranteed in the Constitution of the Republic of South Africa of 1996. It is ethically permissible even to discredit a patently truthful witness during cross examination. However, the right to cross-examination is not an absolute right. It cannot be abused and used as a tool to violate the dignity rights of victims of sexual assault. Experienced cross-examiners or cross-examiners with a shred of a conscious and decency will always know when and where to stop. And that there is a thick line that may not be crossed. Also, that there are reasonable limits to applying discrediting techniques in cross examination.
The Omotoso rape case calls for urgent attention to, and the amendment of, relevant sections of the Criminal Procedure Act of 1977. Section 166 of the Criminal Procedure Act of 1977 must be amended to afford better protection to victims of sexual assault. In particular, the legislation must be amended to expressly forbid any form of unethical cross-examination including, but not limited to, insulting, sarcastic comments and insinuations, and browbeating of witnesses.
It was clear from the questioning by Mr Dauberman that the learned lawyer was making cruel assumptions about the victim of alleged sexual assault, Miss Zondi. He assumed that Miss Cheryl Zondi liked the alleged sexual assault so much that she had to come back to be raped again. Also, he assumed that she deserved the alleged sexual fate that came her way at the hands of Pastor Omotoso.
It is these assumptions that the South African law on sexual offences must eradicate and outlaw to follow examples of countries like Canada that amended its Criminal Code to prohibit such assumptions. Unlike section 227(2) of the South African Criminal Procedure Act of 1977, which makes it possible for lawyers by way of an exception to present and cross-examine the complainant about her sexual history, the Canadian Criminal Code in two important circumstances prohibits it because such questioning is based on irrational assumptions.
The South African Legal Practice Council has a big role to play in ensuring its practitioners do not continue to act in a manner that characterises what was once called the honourable profession into the country’s foremost dishonourable profession. The council must protect the public and the administration justice from their members. Best practices on how to go about this are many. Mr Dauberman is not the first legal practitioner or member of the legal profession to embrace unethical conduct of re-victimising a victim of sexual assault. You just need to access court transcripts and case reports to investigate the questions asked during cross-examination, how the defence tried to discredit the complainant's responses and, in certain cases, unpalatable remarks made by judicial officers that expose the victims of rape to further humiliation. For South Africa, with its most revered constitution in the world, Ms Cheryl Zondi must be the last to suffer this dehumanising treatment. What a brave young woman.
Author: Prof Dr Omphemetse S Sibanda is a professor of law at the University of Limpopo. He writes in his personal capacity, and the views expressed herein do not represent the view of the University of Limpopo School of Law.