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Published online by Cambridge University Press: 28 July 2009
Evidentiary rules applicable to rape and other sexual offence cases, inherited from nineteenth-century England and based on Victorian notions of women's behaviour, are alive and well in twentieth-century southern Africa. These are the cautionary rules which require a trial judge to warn him or herself of the danger of convicting a rape accused without corroboration, or independent evidence supporting the testimony of the complainant. These rules are applied because the evidence of the complainant in a sexual case is considered to be “suspect”: she is variously said to be prone to lie for reasons of her own, prone to fantasy, and prone to exaggerate. Although the cautionary rule of corroboration is still applied in many countries, most progressive and feminist thinkers consider them to be “a lingering insult to women”. In this article I will canvass the cautionary rules on evidence in sexual cases in southern Africa and attempt to show that they are not only based on outmoded stereotypes, but are also particularly unsuitable to southern Africa.
1 See generally, Edwards, S., Female Sexuality and the Law (Oxford, 1981).Google Scholar
2 See generally Connors, J., “Violence Against Women”, a paper presented to the Meeting of Commonwealth Law Ministers, Zimbabwe, 26 07–1 08, 1986.Google Scholar
3 Arabian, A., “The Cautionary Instruction in Sex Cases: A Lingering Insult” (1987) 10 Southwestern U. L. R. 585.Google Scholar
4 Such a campaign to educate the public on rape has been mounted in Zimbabwe by the Legal Projects Centre. A booklet was published outlining what a woman should do if raped, and students from the University of Zimbabwe have been speaking at secondary schools on the subject.
5 See Radinakedi Moabinyana v. State, Crim.App. No.215 of 1986Google Scholar, Xhara Soul v. State, Crim.App. No. 235 of 1986Google Scholar, State v. Motsami Segadika, Review Case No. 36 of 1982Google Scholar, Letswang Dimbo v.State, Crim.App. No. 284 of 1982.Google ScholarState v. R. M. Rasetshwane, Review Case No. 398 of 1982.Google Scholar
6 Griffiths, , (1985) “Rape Trauma Syndrome: The Overlooked Evidence in Rape Investigations” The Detective, Vol. 12 No. 1, p. 1.Google Scholar
7 Griffiths, , (1985) “Understanding the Behaviour of the Rape Victim: Fear is the Key”, The Detective, Vol. 12 No. 1, p. 5.Google Scholar
8 See generally, Burgess, and Holmstrom, , Rape—Crisis and Recovery (1979).Google Scholar
9 Arabian, A., “The Cautionary Instruction in Sex Cases: A Lingering Insult” (1987) 10 Southwestern U. L. R. 585.Google Scholar
