The case for the abolition of the de facto corroboration requirement

There is a case for legal proscription of the practice of the corroboration requirement for the following four reasons. First, this practice is based on a misconception that women tend to lie about rape. The previous chapter has demonstrated that although the belief in false accusations is deeply entrenched among many legal practitioners, there is no cogent evidence which indicates that women are inclined to fabricate rape allegations. Indeed, when pressed, most interviewees in this study could not give a single example of a tangible case of a false rape accusation in their experience of handling rape cases. For those interviewees who did give some examples, further analysis of these examples revealed that the suspicion of a false accusation was based mostly on stereotypes about women who report rape, such as the late reporting of the incident or the absence of the victim’s resistance, as against any conclusive evidence that the victim had actually lied about her victimisation. In fact, the study showed that in the few cases where prosecutors and judges

393

SeeHazel, M. (2004), Disabled Women and Socio-spatial “Barriers” to Motherhood, ProQuest Dissertations Publishing.

had concluded there had been a false accusation, these determinations had clearly been influenced by similar stereotypes and did not show any reasonable ground to suspect fabrication.

Second, the requirement is unfair to rape victims and potentially contributes to the high rate of attrition for rape. By dismissing victims’ statements altogether, the prosecutors and judges disregard important evidence in the cases and lose the opportunity to build on these reports to find further evidence. Note that prosecutors and judges have the legal responsibility in Rwandan law to conduct additional investigation when necessary.394 The failure to exploit victim evidence appropriately gives the accused an unfair advantage that frequently results in charges being dropped, thereby affecting the rights of many victims to obtain redress for the damage caused by the crime.

Third, the practice has no legal basis. There is no legal justification for denying the evidential value of rape victims’ testimony. Rwandan law of evidence does not preclude complainants’ evidence; on the contrary, it recognises the value of this type of evidence. Indeed, the Supreme Court has had the opportunity to specify that complainants’ statement or testimony is a legitimate form of evidence.

In PP v. Hakizimana et al,395 the appellant requested the Supreme Court to quash the High Court decision on the ground that the court had relied on the complainant’s testimony, among other evidence, to convict the accused. The Supreme Court rejected the appeal because “there is no legal provision preventing the complainant from giving testimony in court…”396 The court cited Article 63 of the Evidence Law which specifies that “any person can be allowed to testify in court, with the exception of those people who have no capacity to be witness in court,” so it concluded that the High Court had the discretionary power to decide on the veracity and admissibility of the complainant’s evidence, based on Articles 19 and 44 of the Code of Criminal Procedure 2004. Although this was a case of child rape rather than adult rape, this ruling has broader applicability to sexual offence cases. The decision provides general guidance on the issue of whether a complainant’s statement or testimony is a legitimate form of evidence that can be relied upon to convict a defendant.

394

Article 44, Code of Criminal Procedure 2013.

395

PP v. Hakizimana Servillien et al. RPAA –12/08/CS, 26 November 2010.

396

In addition, the law does not stipulate any obligation of corroboration of rape victims’ testimony. It only provides that the testimonies of children aged 14 and below and adult persons with incapacity must be corroborated by other evidence.397 There is no provision requiring that victims’ testimony in general or rape victims’ testimony in particular must be corroborated. On the contrary, the law emphasises that the number of witnesses is irrelevant as regards the validity of their testimony.398 This clearly shows that the testimony of the complainant alone can be sufficient to prove the accused’s guilt. The law provides further guidance in this regard, stating that the court shall consider the “knowledge of facts and the objectivity and sincerity” of the witness, not their number.399

Fourth, the requirement of corroboration of rape victims’ testimony is discriminatory. The law has limited the corroboration requirement to two categories of witnesses: children aged 14 and below and people incapable of communicating what they witnessed.400 This means that testimony of all other adults and children above 14 does not require any corroboration. Therefore, if among adults, rape complainants are conflated with those who lack capacity, it is discriminatory against this category of complainants. As the overwhelming majority of these victims are women, their assimilation to the incapable is a violation of women’s rights.

In other jurisdictions, the corroboration requirement has similarly been criticised for discriminating against women.401 Ferguson has emphasised that it is unacceptable to impose stricter rules of evidence on one category of witnesses unless it is proved that there is some fundamental difference in that particular category of people, and yet, there is no evidence of such difference in the case of rape victims.402 Further, the “presumption of perjury” implied in the requirement of corroboration has also been denounced as pure discrimination against women.403 In this regard, Quansah’s statement is particularly apt to the Rwandan context:

397

Article 63, para 3, Law n° 15/2004 of 12/06/2004 Relating to Evidence and its Production, Official Gazette. Special nº of 19/07/2004. (Evidence Law) 398 Ibid. Art 65. 399 Ibid. 400

Article 63, para 2. Evidence Law.

401

Tapper, C. (2010), Cross and Tapper on Evidence, 12th ed, Oxford. OUP, p.257; Quansah, E.K. (1996), “Corroborating the Evidence of a Rape Victim in Botswana: Time for a Fresh Look”, Botswana Notes and Records, 28. p.236; Ferguson, p.155; Adler, p.16.

402

Ferguson (2000).

403

The general constitutional rule that an accused is to be presumed innocent until proven guilty seems to have been translated, as far as the complainant in a sexual case is concerned, into one of being a liar until proven credible.404

In light of the negative effects of the requirement of corroboration, as evidenced above, this unlawful and prejudicial practice must be brought to an end. Nevertheless, it can be expected that its prohibition will raise questions about the rights of the defendants and the risks of convicting innocent people.

3. Protection of defendants’ rights without the corroboration requirement

Whereas the belief that women tend to fabricate rape accusations is a myth, this does not mean that false accusations never occur in rape cases. False allegations are possible in rape cases as in any other criminal case, regardless of the offence. As such, concerns will inevitably be raised that by not requiring corroboration of the complainant’s testimony, the accused will be left unprotected in the eventuality of a false accusation.

A number of points must be highlighted in response to such concern. First of all, it should be noted that the rejection of the corroboration requirement does not mean that victim testimony must be automatically relied upon and that conviction will automatically follow. Nor does the abolition of this rule mean that there is no value in having corroborating evidence in rape cases. The point is that victim testimony must be accepted as a legitimate form of evidence and that it can be sufficient to prove the accused’s guilt. What is important is that this evidence be evaluated and scrutinised objectively, both by the prosecutors in deciding to proceed with a case, and by the court in determining whether an accused has committed an offence. Both maintain their discretion to evaluate this evidence as any other evidence. In this regard, Quansah has argued that:

If the judiciary's [sic] ability to evaluate evidence and to ascertain the veracity of a witness' testimony in cases other than rape, then, it is submitted that it must also be a sufficient safeguard for an accused charged with rape.405

Temkin also points out that the accused in rape cases, as other persons charged with different offences, are protected by the requirement that he cannot be convicted unless his

404

Quansah (1996), p.231.

405

guilt is established beyond reasonable doubt. The defence lawyer as well as the judge have every opportunity to check any insufficiency in the prosecution case. Therefore, the absence of a corroboration requirement should not be perceived as an unfair disadvantage for rape defendants.406

In the case of Rwanda, there are many legal safeguards that protect the accused regardless of the charge.407 The whole range of mechanisms that safeguard defendants’ rights remain available to the judges in rape cases. Moreover, the court keeps the full discretion to assess the relevance and pertinence of testimonial evidence.408 It has the powers to decide at its sole discretion on the veracity and admissibility of the evidence produced.409 Beyond all these prerogatives, “the court may itself collect evidence which has not been collected by the Public Prosecution, the plaintiff, the accused or their representatives.”410 With all these prerogatives entrusted in the judges, and knowing that the absence of a corroboration requirement does not impose any obligation on the courts to automatically rely on victims’ testimonies without thorough and objective evaluation, there should be no genuine concern that the abolition of the corroboration requirement in rape cases would leave accused persons unprotected against false complaints.

4.2. THE ROLE AND IMPACT OF MEDICAL EVIDENCE IN RAPE CASES

Another critical issue related to the corroboration requirement which adds to the case for its abolition, is the finding from the study that the supporting evidence required to corroborate victims’ testimony can itself be very problematic. Specifically, medical evidence and direct witness testimony seem to be the only evidence that is admitted as corroborating evidence in rape cases. This thorny issue is examined in the following sections. First, the limitations of medical evidence in proving rape will be discussed. After that, the study will explore the application of medical evidence by prosecutors and judges in Rwandan cases. Finally, the framing of medical evidence by doctors in Rwandan cases will be analysed.

406

Temkin (2002), p.262

407

The constitution as well as the Code of Criminal Procedure guarantee a series of defendants’ rights traditionally recognised in various jurisdictions across the world, such as the presumption of innocence, the right to a fair trial, the right to cross-examine witnesses and so on.

408

Art 65, Evidence Law.

409

Art. 86, Code of Criminal Procedure 2013.

410