Victims’ perception about their lack of participation in the legal process

The eleven rape survivors interviewed in this study were asked what they thought about the trial taking place without their participation (see appendix 3). They were unanimous in expressing their disappointment. For example, SURVIVOR8 and SURVIVOR5 stated:

I really wished to give testimony in court because I am the only person to have tangible information of what happened. I would have explained to them how the offence was committed and they would have understood. If they had

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PP v. Hakizimana Jean de Dieu, RP 0412/12/TGI/NYGE, 30 November 2012.

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any issue I would have facilitated them. It would have been useful, but they never approached me. (SURVIVOR8).

I would solidify the case. They would have understood my version. I feel that if they had understood my side, it could have changed the course. (SURVIVOR5)

Several survivors were particularly upset by the fact that they were not even informed about the outcome of their cases or if the trial took place at all (note that their cases had all been tried at the time of the interviews). SURVIVOR2 complained: “I do not know if he [the accused] was arrested or not, or if he was prosecuted at all.”

All the survivors interviewed expressed the feeling that their cases had simply been neglected; regardless of whether the defendants were convicted or not. In the case of SURVIVOR4, the defendant was convicted but still the victim felt that she was uncared for because she was not informed about the process and its outcome. She simply concluded: “I consider that they neglected me.” SURVIVOR7 knew that the defendant was convicted but still she was not satisfied because she did not participate in the process:

I am very upset. Perhaps if they had seen me they would not have given him that punishment. They must have thought that it was a simple matter. (SURVIVOR7)

This survivor had multiple scars on her face, visible at the moment of the interview which took place nearly one year after the assault. Her assailant was convicted to a term of seven years’ imprisonment - the maximum punishment - but she was still unsatisfied because she did not participate in the trial, and was not duly informed of the outcome of the case. This shows the importance of procedural justice. Procedural justice is concerned with the sense of fairness and respect in the interactions between individuals and criminal justice authorities.366 Miller and Hefner’s study found that victims were more concerned about the fairness of the process than its outcome.367 They argue that when victims are treated with respect and dignity, and are given the opportunity to participate fairly in the legal process,

366

Wood, W.R. (2015), “Why restorative justice will not reduce incarceration”, British Journal of Criminology (55), p.885.

367

Miller, S.L. and Hefner, M.K. (2015) “Procedural justice for victims and offenders: Exploring restorative justice processes in Australia and the US”, Justice Quarterly, 32:1, 142-167.

this gives more legitimacy to authorities’ decisions and more satisfaction to victims, regardless of the outcome of the process. They believe that a victim may remain unsatisfied despite the offender’s conviction if the process was not inclusive or did not fairly take into account the victim’s needs. Konradi’s study on rape survivors in particular, reveals that participants gave more importance to solving the emotional pain resulting from the rape than obtaining substantive justice and punishment of the offender.368 She advocates for well sustained participation of rape survivors in various proceedings of the criminal justice process to meet the needs of the survivors, which include continued “ownership of the rape” during the whole criminal justice process.

In this study, some survivors managed to go to court without the court’s invitation, seeking the opportunity to participate in the process. SURVIVOR6 went there but she was not allowed to testify. This is how she expressed her disappointment:

I wished to give evidence in court but they did not give me the opportunity. It could have been useful. They would not have freed him like that. They would have benefited from my testimony, for example some issues which they did not understand.

Her friends later informed her that the defendant was acquitted. She concluded: I had realised that they had not given any weight to my case. I did not even appeal. It would have been useless.

SURVIVOR11 also went to court and tried to find a way to testify in court but she returned without giving her testimony:

I rose in the court and asked to speak but they said: ‘how come you are here?’ and yet I was the victim of the crime being tried!

They told this survivor that she was represented by the prosecutor but she was not satisfied. She was frustrated and deeply disappointed for being disregarded in a case directly affecting

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Konradi, A. (2007), Taking the Stand. Rape Survivors and the Prosecution of Rapists, Greenwood Publishing Group, p.196.

her. During the court observations, a similar scene was witnessed. Below is an extract of the notes taken from one hearing:369

The judge asks the prosecutor to explain the complainant’s absence of consent...

One woman holding a baby, seated on the left side of the courtroom stands up and says: ‘It is me.’

The judge asks: ‘What do you want?’

The woman replies: ‘How can you consent to somebody who breaks your door...?’

The judge says: ‘Stop! Madam. The prosecution is here and they did not invite you. The court neither found it necessary to invite you. You do not appear anywhere and you did not even seek damages. You will follow the hearing like anyone else here.’

The woman: ‘I wanted to participate in the process!’ Judge: ‘We do not know that.’

(The baby held by the woman cries.) Then the judge says: ‘Please see how you can rock the baby.’

The woman looks extremely frustrated, sits down and tries to take care of her baby.

The defendant raises his hand and says: ‘I do not understand why she screamed. It must be because I gave her less money than agreed.’

The defendant was convicted and sentenced to six years’ imprisonment. The court based its verdict on the medical evidence which certified injuries and statements of witnesses who intervened to rescue the victim (the value attached to these forms of evidence is explained in Chapter 4). It is unknown whether the victim was informed about the verdict and whether she was able to sue for civil damages.

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This shocking scene witnessed during court observations is an illustration of the frustration that can result from victims’ exclusion from the legal process. Victims’ marginalisation is negating efforts by the criminal justice system to punish rape offenders. This problem is summarised in the question posed by SURVIVOR5: “For whom did they think they were doing justice while the person concerned was excluded?” This is a powerful statement that shows the need to rethink the judicial practice.

In summary, analysis of the victims’ interviews reveals that the victims were disappointed by their lack of participation in the legal process particularly because they believed that their lack of involvement made conviction less likely. Victims were also frustrated because they felt silenced. In many instances they attempted to speak out in court but they were refused any opportunity to speak. As observed above, the silencing of victims is very damaging because they have a personal interest in the trials therefore they should have a voice in the process, and their lack of participation only aggravates their emotional state.

A further potential effect of victims’ marginalisation is the lack of opportunity to claim civil damages. The chances for seeking damages are affected by the fact that the victims are not informed and do not take part in the legal process. The law allows the victims to claim damages during the criminal trial without necessarily waiting for the verdict. This procedure is normally cost effective for the judiciary and fast for the victims. Nevertheless, rape victims rarely used this option. The victims sought damages only in nine cases out of the sample of 175 cases reviewed for this thesis (five per cent). This figure almost coincides with a national figure released by the National Commission for Human Rights which reported that rape victims filed for damages in only four per cent of all the cases tried for the period of 2015- 2016.370

It is beyond the scope of this study to examine the effects of the quality of rape trials on reporting rates. However, the marginalisation of victims from the legal process is likely to have a significant effect on rape reporting. The failure to allow victims to testify, combined with a lack of information provided to victims throughout the legal process and the resulting

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The New Times, “Awareness could be the missing link in sexual abuse cases”, available at

frustration of victims will undoubtedly reduce the trust in the system’s response to rape. This may dissuade reports and result in higher levels of impunity for rape offenders.

CONCLUSION

This chapter explored the role of rape victims in the legal process as their involvement is essential for a fair and efficient criminal justice process for rape cases. The chapter has revealed that rape victims play a very marginal role in the justice process. It was found that rape complainants are profoundly distrusted by most legal professionals interviewed, and that this scepticism leads prosecutors and judges to dismiss many rape complaints, regardless of the contents of the criminal files. The main cause of this disbelief is the influence of the myth that women are prone to making false accusations of rape. It was revealed that in most cases this disbelief is not based on any evidence.

The chapter also revealed that rape victims are rarely allowed to participate in criminal trials. Their role is limited to reporting the crime and providing written evidence. Not only are the victims denied a voice in various proceedings of the legal process, they are also denied the opportunity to give testimony in court. The lack of victims’ participation deprives prosecutors and judges of substantial input that can improve the evaluation of complaints. It also causes victims much dissatisfaction with the criminal justice system. This results in immense distrust which, when combined with the marginalisation of rape victims, inevitably impacts on the provision of evidence in rape cases. The next chapter explores further the effects of the disbelief and marginalisation of victims on the provision of different types of evidence in rape cases.