How childhood rape victims can still pursue legal justice

DESPITE the passage of time and lack of physical evidence, adult survivors of childhood rape still have legal options.

Legal expert Desiree David explains how South African law supports victims seeking justice years after abuse, and why delayed reporting should not be a barrier to pursuing cases

Desiree David, a lecturer at the Department of Criminal and Procedural Law at the Nelson Mandela University, said historically, it was believed that rape was supposed to be reported soon after it occurred due to the need for DNA evidence.

But she said the law allowed for cases to be opened years after sexual crimes occurred.

“There are many reasons a victim will choose to wait for a long time before thinking about opening a case. A very young child may have reported it to the family. Usually the mother tries to protect the perpetrator, who may be a family member. The mother would tell the child not to speak about it, because if the father goes to jail, they would have no finances and no food.

“That is something prevalent in the Indian community. Children are told not to report the rape due to the stigma associated with it, and they feel that reporting it would bring shame to the family.

“The crime is often swept under the carpet and the child is left dealing with the trauma. Another reason rape is not reported is that families want to protect their family name, and they protect the perpetrator at the expense of the victim,” added David.

She said from a legal perspective it was not impossible for these matters to go before court years after the crime, although it would be more difficult to prove the rape.

“When a child is raped, it is usually only when they are adults that they realise what had happened to them and are able to understand and comprehend it.

“As a child, they believe that what is happening is normal punishment. The realisation comes in their teenage years. When victims come forward after a long period of time, there is usually a knee-jerk reaction that the victim is making it up, as they waited so long to come forward.

“The process to open a case is the same, but a rape test might not be necessary. There would still be an investigation. Police would go through the process of taking statements, and obtaining witnesses and medical records.

“It would be much more difficult for the State to be able to make out a prima face case of rape. Investigation has to be very thorough. 

“But legally, time is not a vital factor to stop a case from being opened. The difficulty is with the evidence that is going to be presented. DNA evidence is lost. Bruises will fade. Injuries may not be apparent. The evidence needed for a conviction might not be enough.

“In cross examination, victims feel re-victimised when testifying after they choose to bring their case. The legislature understands that there are many different factors at play, and there are legitimate reasons as to why victims do not report immediately and wait for years. 

“There was a case where a woman who reported a rape 30 years after it happened secured a conviction. There were also cases where mothers who were aware that the fathers had raped the children were charged as a co-accused for not preventing the rape.

“Child victims who wished they had told their mothers or relatives about the rape could bring charges of aiding and abetting, and potential civil claims for damages if they wish to do so. There is also no time lapse that should affect the charges,” added David.

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