To Name or Not to Name? High Court Weighs Law That Silences Survivors Until Rapists Plead

Can a woman name the man who raped her before he pleads in court? Under current law, she cannotand that prohibition is now being challenged in the Western Cape High Court.

Anti-gender based violence activist Caroline Peters has taken the Minister of Justice and Constitutional Development to court, arguing that sections of the Criminal Procedure Act (CPA) are unconstitutional because they criminalise women and survivors for naming men accused of rape before they plead.

The Case

The matter, heard before Judges Andre le Grange, Masoodah Pangarker, and Acting Judge Pinda Njokweni, challenges two sections:

• Section 154(2)(b): Prohibits publication of any information relating to a charge involving a sexual offence before the accused has pleaded.

• Section 335A: Prohibits publication of the identity of persons towards or in connection with whom a sexual offence has been committed.

The Women’s Legal Centre (WLC) , representing Peters, argues that these sections have real consequences in a country where sexual violence disproportionately affects women.

They submit that the law violates women’s rights to equality and freedom of expression, silences survivors, and undermines the investigation and prosecution of sexual offences.

The Irony

Unlike murder or any other serious crime, once a charge has been laid against an accused rapist, it is illegal to name himor mention any identifying detailsuntil he enters a plea.

The WLC argues that the purpose of the section is to protect the accused, not the complainant. Peters contends that this is inconsistent with the Constitution.

The Court’s Questions

Judge Le Grange questioned the purpose of naming a rape accused before he has pleaded “if the only purpose (in naming him) would be to shame him.”

He noted that perpetrators are considered innocent until proven guiltya principle echoed by Njokweni, who said there are sections protecting the victim and sections protecting the perpetrator, and each has the right to a fair trial.

Advocate Ashleigh Christians, for Peters, argued that her interpretation of the Act is that a charge is properly called only when the prosecutor makes the decision to put chargeswhich could mean in court or by summons.

Judge Pangarker posed a hypothetical: if an investigation concludes and the state says they “don’t have a hope in hell” of securing a conviction, charges could be withdrawn before the plea stage.

In such cases, Njokweni noted, the alleged perpetrator “walks away with their dignity.”

The Minister’s Position

The Minister opposes the challenge, contending that Section 154(2)(b) serves two purposes:

• It creates a holding position until a court may make an order under Section 153(3)

• It protects the identity of complainants in relation to listed offences

The Stakes

If Peters succeeds, the law will be declared unconstitutionaland survivors will be free to name their alleged attackers before they plead.

If the Minister succeeds, the prohibition remainsand women will continue to face criminal sanction for speaking out.

The Bottom Line

A rape survivor wants to name her alleged attacker. The law says she cannot until he pleads. The Constitution says she has rights. The court must now decide which prevails.

The matter continues on Wednesday. The outcome will shape the rights of survivorsand the fate of accused rapistsfor years to come.

{Source: IOL}

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