Lawyer wants those accused of sexual offences named before they plea
· Citizen
In South Africa, it is illegal to name a person accused of a sexual offence before they plead in court according to the Criminal Procedure Act, however, this week, the Western Cape High Court heard a constitutional challenge by the Women’s Legal Centre claiming that this law is unconstitutional.
Caroline Peters, the centre’s representative, now risks criminal prosecution after she allegedly made the accused’s name public prematurely.
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Why was Caroline Peters arrested?
Speaking to The Citizen, Advocate Bronwyn Pithey said Peters, a lifelong gender and community activist, was attending a regional court matter to support a rape survivor, who was also her client.
Three years ago, when the accused appeared in court, she took a picture of the court roll. It displayed the accused’s identity. In a second incident, she then took a photo of him from behind in the court.
Peters later posted those images on social media. At the time, the accused had not yet pleaded to the rape charge.
In response, the accused then laid criminal charges against Peters.
The National Prosecuting Authority (NPA) has not yet decided to proceed with the charges, so the matter is currently pending, said Pithey.
If convicted, she could face up to three years’ imprisonment, said the organisation.
Pithey told The Citizen that while Peters technically infringed on Section 154(2)(b) of the Criminal Procedure Act, she argues the provision needs revision as it is selective in nature.
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Irrational and unconstitutional law
Pithey said the problem is that anonymity only applies to sexual offences and extortion-related cases.
“If someone appears in court on a charge of murder, assault, fraud, that person’s name can be published by the media once in court,” she said.
The Women’s Legal Centre believes it is an irrational law as it protects the anonymity of accused rapists.
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It’s not about naming and shaming
The organisation argues that naming sexual offence suspects helps other victims come forward, strengthens police investigations and protects women while the court hears the case.
“There has been a lot of pushback where people think we want to expose accused rapists, but that is simply not true.
“The problem with this law is that it can take months or usually years for an accused to plead in court.
“During this time, the inability to publish the rapist’s name makes it much harder for other victims to come forward, to gather eyewitness or other witness testimony and for new forensic evidence to be collected,” said Pithey.
She argues that the law limits freedom of expression and equality rights.
“There are far more women affected by this law as there are so many more female complainants in sexual offence cases than there are obviously men. So there is a discrepancy.”
Pithey says the Women’s Legal Centre also challenged a rule that prevented victims from naming themselves or allowing the media to use their names, but officials have now resolved this issue.
“The justice minister has conceded that it is unconstitutional to force a victim to remain anonymous if they wish to go public with their identity,” confirmed Pithey.
The ConCourt ruled in 2019 that adult survivors of childhood crimes may choose to reveal their identities.
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Justice minister defends law
Pithey said the minister argues the section is in place to protect complainants in sexual offence cases.
“But we refute that,” she said.
“There are other provisions which already protect the identity of the complainant and for that reason we can rely on those sections, with a little bit of amendment to ensure the complainant is protected right through if she so wishes to be.
“Either we have a law that protects everyone, innocent until proven guilty, or we allow everybody to be named,” she said.
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The high court is expected to deliver its judgment in about three months.
It is likely that the matter will proceed to the Constitutional Court for confirmation or appeal.
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