Complainant evidence in sexual cases (Zimbabwe)
Approach of courts
In rape and other cases of a sexual nature, such as aggravated indecent assault, indecent assault and sexual relations with a person under the age of 16, the courts used to adopt the approach that because of the danger of false incrimination in such cases, a cautionary rule applies. Essentially this cautionary rule meant that in sexual cases the court had not only to believe the complainant, but in addition it had to be satisfied, by an application of the cautionary rule, whether it might still not have been deceived by a plausible witness. It therefore must seek corroboration or evidence tending to exclude the danger of false incrimination. This was laid down in a series of cases: Mupfudza 1982 (1) ZLR 271 (S); Chitiyo 1989 (2) ZLR 144 (S); Chigova 1992 (2) ZLR 206 (S); Makanyanga 1996 (2) ZLR 231 (H); Zaranyika 1997 (1) ZLR 539 (H).
However, in the case of Banana 2000 (1) ZLR 607 (S) the Supreme Court ruled that the cautionary rule in sexual cases is based on an irrational and outdated perception, and has outlived its usefulness. It unjustly stereotypes complainants in sexual assault cases (overwhelmingly women) as particularly unreliable. There were no convincing reasons for its continued application. It exemplified a rule of practice that placed an additional burden on victims in sexual cases which could lead to grave injustice to the victims involved. It is no longer warranted to rely on the cautionary rule of practice in sexual cases. Despite the abandonment of the cautionary rule, however, the courts must still consider carefully the nature and circumstances of alleged sexual offences.
In the context of sexual cases, usually the strongest evidence which the State will be able to lead will be medical evidence. If the accused has admitted that he had sexual relations with the complainant but maintains that the complainant was a consenting party, medical evidence of injuries consistent with forced sexual relations will be cogent evidence of the complainant's allegation of rape. Where, on the other hand, the accused denies sexual relations, medical evidence indicating that the complainant was raped or at least that the complainant has had sexual relations with someone does not prove the identification of the accused as the culprit
In Musasa HH-52-02 the judge deals with the evidence of child complainants. He states that while the evidence of child witnesses must be approached with caution, such caution must be creative or positive caution, where a judicial officer uses knowledge of psychology or other relevant disciplines in order to maximise the value of such testimony. Psychological research has established that young children do not fantasize about being raped and other unusual, horrific occurrences but that their fantasies and play are characterized by their daily experiences.
Approach of defence
In defending a person who is accused of rape and who denies the allegation, The first line of defence in a rape case (or a case involving some other sexual offence) is to see whether doubt can be cast upon the credibility of the complainant. If the court finds that the complainant is not a credible witness the accused will be acquitted. The objective in the cross-examination of the complainant must therefore be to throw up unsatisfactory features of her testimony, which will lead the court to find that she is not a credible witness.
If the complainant gives evidence in such a manner that it is likely that the court will find that she is a credible witness, the defence lawyer should nonetheless probe during cross-examination to see whether she has some reason for falsely incriminating the accused. Where there is a basis for doing so, in summing up the defence lawyer should point out to the court that, although apparently the witness was plausible and credible, in the particular circumstances, there was a distinct danger that the complainant may have falsely implicated the accused in order to protect her lover or for some other reason (which should be stated).
Finally, where the complainant is an apparently credible witness and there seems to be no evident reason why she would falsely implicate the accused, the defence lawyer should carefully analyse the nature of her testimony and the other evidence advanced by the State and draw the attention of the court to any weaknesses and contradictions in that evidence.