Patriarchal procedure — the hidden problems with criminalising the identification of suspects in sexual matters

A few days ago I was asked to explain the law on publishing the name of the alleged Dros rapist. The law is simple: it is an offence in terms of the Criminal Procedure Act (CPA) to identify a suspect before they have pleaded in court.

But this simplicity hides some controversial dynamics.

It is only an offence to identify a suspect in relation to sexual offence matters (or extortion, but that is a topic for another day). In other words, in all other criminal matters, there is no prohibition on identifying the suspect before they have pleaded. If someone is a suspect in a murder case or an assault case or a corruption case, their name can be published even before the National Prosecuting Authority (NPA) has decided to prosecute.

This distinction is a strange one. If the rationale is to allow the NPA time to consider the evidence and to mitigate reputational harm to the suspect if there is insufficient evidence, why are those considerations not equally applicable to all criminal matters?

There seems no other conclusion to draw but that section 154 of the CPA is a relic from our patriarchal past. Sexual offence laws in South Africa are very much imbibed with gender discrimination. Only in 1998 was the cautionary rule critiqued by the Supreme Court of Appeal. The cautionary rule meant that a rape complainant’s testimony needed to be treated “with caution”. This was because we had adopted the English Law assumption that women (who were the predominant victims of sexual offences) were prone to hysteria and malicious complaints.

Only in 1993 did marital rape become an offence in South Africa. Before that, consent was deemed to always exist within the course of a marriage. Rape trials still include cross-examination of the complainant on what she was wearing and how many sexual partners she’d had before. This is in contravention of section 227 of the CPA which is supposed to prevent the complainant’s prior sexual history from being admitted.

These examples demonstrate that we still treat accused people differently when it is a sexual matter. Throughout the criminal process, the complainant is treated as less worthy of belief than the accused. This gendered discrepancy is not an accident, it impacts how society functions, including the courts. The Judge Brett Kavanaugh situation in the United States illustrates that despite the huge public outcry about rape culture and its dominance, men are not ready to give up that power.

This is a reminder that law is not neutral. It is also a stark reminder that our procedural laws are not neutral — a fact often overlooked because procedure is viewed as “just a set of rules”. Many of these rules are old and (hopefully) no longer reflect the convictions of the public.

With the number of rape cases that are never investigated and never proceed to trial, it is easy to think that we need social media to hold our criminal justice institutions accountable. But social media comments seem to resemble public lynchings these days and may pose other problems to the integrity of the system.

South Africa emerged from apartheid with the goal of protecting accused people from injustice. Are we ready to give up these hard-fought-for protections already? It is not a binary — that we either protect the accused or the complainant. Or at least, it shouldn’t be.

There is an important purpose in trying to prevent the NPA from being influenced before it makes a decision to prosecute. The rationale should be aimed at protecting the functioning of the criminal justice system. But the lack of consistency in the law is troubling and suggests that it is actually aimed at protecting men from being accused publicly — at least for a while.

It gives time to the police to decide that there is nothing to investigate and time for the NPA to decide that there is inadequate evidence. And time for defence attorneys to manipulate the procedural rules to prevent their clients pleading for several months.

We must hold the criminal justice system accountable for its failures. But I do not believe that social media is a constructive way of doing that.

However, I also do not believe that criminalising people who identify suspects before they plead is constructive or even possible, because of social media.

Whether we continue to prohibit premature identification or not, the law should be fit for purpose and applied indiscriminately. This controversial provision in the CPA needs to be reviewed. DM

Jameelah Omar is a Public Law lecturer at the University of Cape Town, specialising in criminal law and criminal procedure.