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Treating rapists as terrorists: how to get more convictions

According to the National Public Prosecution Authority (NPPA) figures 1100 cases of child defilement of over 3000 received in the year 2018 were closed due to lack of scientific evidence. .Photo:Cyril NDEGEYA

Rwanda’s criminal justice system stipulates that when sentencing a suspect in a criminal case, judges must base their decision on “reliable evidence proving beyond a reasonable doubt that the accused committed the offence”.

In this judicial endeavour to administer justice “in the name of the people”, circumstantial evidence and the testimony of the community on the character and conduct of the suspect are considered inadmissible evidence; similarly, little emphasis is placed on the odds of the defendant’s susceptibility to commit acts defined in the indictment, and the likelihood that they could have committed those offences as a result.

This judicial decision-making is particularly problematic in rape and child defilement cases. It explains the big gap between reported rape cases (or accusations) and convictions. Consequently, a justice system that ought to fight crime unwittingly nurtures rape culture and aids impunity.

I recently argued that to address this problem the justice system should treat sexual predators preying on women and girls like terrorists. Some readers asked what solutions I had in mind for justice to prevail in such cases. In this article, I elaborate on the proposals to reform the justice system’s approach to rape and child defilement cases, with a focus on the standard of evidence and sentencing efficiency.

A broader scope of investigations and a lower standard of evidence

The classic judicial process, devoid of any meaningful community participation, intimidates victims and witnesses. Interrogation sessions and courtroom confrotations  aimed at scrutinising  the credibility of witnesses, mostly end up intimidating victims into discomfort and trauma, which jeopardises testimonies.

Without these testimonies, criminals walk free. A key consequence are the shocking numbers of rape and child defilement that has seen alarming rates of teenage pregnancies where no one is held accountable. This is society’s neglect and refusal to protect victims.

Therefore, I submit that it is of imperative to reimagine a justice system geared towards “intimidating” perpetrators rather than victims. The court system should be a place where perpetrators, not victims, of rape and child defilement fear, feel discomforted and frightened.  This is the aim of my proposals. I reiterate, for instance, that it should be made intentionally very hard for rape suspects to be freed from pre-trial detention.

Most importantly, the scope of investigation and the standard of evidence should be revised. First, lawmakers and judges should implement rape justice reforms and adopt practices that incorporate circumstantial evidence, also called indirect evidence, that could lead to the conclusion that the defendant is guilty or innocent. This is important because we have to acknowledge the standard of “beyond a reasonable doubt” (also referred to as “to a moral certainty” of proof) makes proving rape, particularly cases that are not recent, extremely difficult. Since we know that a person who has been raped cannot always report the case immediately (the reasons are numerous), to retain this impractical – from the perspective of victims but very practical and desired from the perspective of perpetrators – standard of proof is to promote impunity. In other words, with this approach the victim has already lost the case before it even reaches the court. I doubt anyone ever intended for such a justice system.

Moreover, assuming that mimicry isn’t the intent and it is up to each society to determine the sufficiency of evidence for any claim, lowering the standard of proof for rape and child defilement from “certainty” to “high probability” is a starting point where society chooses sides whether it will comfort victims or perpetrators of rape.

Indeed, if we hold the principle that “sufficient evidence” is defined by each society’s standard based on the values it holds dear, then each legal system has the right to determine which evidence to consider as valid and sufficient.  It is against this premise, and in pursuit of zero-tolerance against rape and defilement, that circumstantial evidence ougt to be admissible in such cases.

For a society that claims to uphold a value system of zero tolerance against rape and child defilement, it shouldn’t be difficult to make this shift. This shift would be shock therapy for society. It would show perpetrators that they have nowhere to hide, especially not in the community as they do now by the excuse of a combination of the culture of silence and judicial confidentiality. If society wants zero-tolerance against rape and child defilement to the point that it is not just a slogan, this shift is essential. Unless, of course, zero tolerance is a slogan, which it ought not to be.

The scope of the investigation should, therefore, extend to the character of the suspect through a public participatory process, similar to Gacaca’s ‘Ikusanyamakuru’ phase, consisting of community meetings to gather, collate and verify information on the suspect that can reinforce the arsenal of material evidence.

It may be argued that, traditionally, prior deeds and character – known as “propensity” evidence – are objectionable and cannot be probative in determining guilt. However, rape is different from other criminal acts in the sense it is “a violation of bodily and sexual autonomy” where victims’ physical integrity and sexual autonomy are the primary recipients of violence. As Ann J. Cahill observed, “rape must be understood fundamentally as an affront to the embodied subject, a sexually specific act that destroys (if only temporarily) the intersubjective, embodied agency and therefore personhood of a woman”. She added that “rape affects not only those women who are raped but all women who experience their bodies as rapable”.

Therefore, an allegation of rape in the past significantly differs from an allegation of a past theft—having stolen something in the past is not in itself evidence that the offender stole it this time around. The objects that were stolen in the past cannot testify, but the women previously sexually abused or raped can testify.

At the sentencing stage, the evidence law should perhaps apportion 50% evidence value to victims’ testimony, 20% to the material (forensic) evidence, and a 30% evidence value for the circumstantial evidence (community testimonies on the suspect’s character and conduct), for instance. [The allotment of the weight of evidence is suggestive and subject to adjustments from the judicial review – Editor’s note].

The point here is that if Rwanda Investigation Bureau (RIB) registers any of the three sources of evidence, then rapists should immediately be put in detention as investigations continue regarding other forms of evidence for a holistic indictment. This practice would be in line with President Kagame’s expectations (a view shared by most progressive women) that the justice system should allow offenders to be held in detention while investigations are underway, rather than bailing them to encourage impunity. However, this would require that RIB’s GBV Crime Division gets reinforced in order to speed up investigations related to GBV accusations.

In this process, the participation of the community would be a powerful deterrent in itself, as public shame seems to succeed better at persuading men to circumstantially distance themselves from sexual violence rather than the fear of a long prison sentence that they are unlikely to serve due to the current perpetrator-friendly standard of proof.

 Lowering the sentence for non-recent rape to maximize convictions

The Rwandan Penal Code stipulates that anyone who defiles a child between the age of 14 and 18 can be, if convicted, sentenced to a prison sentence of not less than twenty (20) years and not more than twenty-five (25). If child defilement is committed on a child under fourteen (14) years, the penalty is life imprisonment, while the penalty for a person convicted of rape is equally severe, between 10-and-15-year imprisonment.

In establishing these sentences, the lawmakers sought to base deterrence on the severity of the sentence. But in a patriarchal society where sexual violence is not immediately reported due to a culture of silence, cover-ups and shame to the victims, does a long prison sentence actually keep girls and women safer?

If we go by the numbers of teenage pregnancies recorded in Rwanda every year, there should at least be more than 15,000 men sentenced to more than 20 years in prison for child defilement alone.

The combination of two factors, namely the high standard of evidence (certainty) and the severity of the penalty, seems to be unwittingly promoting a culture of impunity.  A mechanism that was supposed to be a deterrent ends up posing an insurmountable challenge to the prosecution and witnesses who bear the burden of proof.

On the one hand, the severity of the sentence must be making judges uncomfortable rendering a guilty verdict; hence their deliberations focus on finding any slight inaccuracy in testimonies or an error in the indictment that they present as a basis of “reasonable doubt”, and they will acquit the defendants. The standard of “beyond a reasonable doubt” turns out to be a pervert lifeline that benefits the defendants, while victims have a right only to the scepticism of the judges.

The truth of the matter is that opinions are divided about the prospect of handing down a sentence of 20–25 years of prison for non-recent child molestation. Therefore, the typical rape trial becomes “a contest of credibility. Who is more credible – the victim or the defendant? Which version of events is more believable?”

This match-up between the perpetrator and the victim is supported by the cynicism of patriarchy which is apt to believe various rape myths, and it explains the reason we so often hear defence lawyers slamming rape victims for what they brand as “fabricated accusations in an attempt to send an innocent man to prison and ruin his life”.

The equal empathy for victims and perpetrators reflects an internal reluctance in the justice system to recognize the guilt of defendants, and consequently refuse to hand down sentences provided for child defilement or rape, because the patriarchal culture perceives those penalties as too harsh.

Finally, the reflection that needs to take place is that the threat of a long prison sentence alone does not deter people from rape and child defilement; but it makes any sentencing almost unlikely, because of the  sceptical judges who by default require extraordinary evidence for claims considered an attack against men’s virility.

Another solution to the problem of impunity of rape and child defilement, particularly for non-recent cases with a zero chance of constituting forensic evidence, is a sentencing reform to give a lighter punishment, for instance between 2 to 3 years for non-recent rape, and 3 to 5 years for non-recent teenage defilement, in an attempt to maximize convictions, improve sentencing and drive out impunity.

Therefore, if both standards of evidence and the sentence are lowered, then judges would not require extraordinary evidence whose side effect is total impunity.

I am aware of the counterargument to these proposals. One, the concern of fake rape accusations and, two, the trivialization of the crime of rape on the other. But it would be disingenuous to maintain the status quo on account of false accusations which represent a very minor percentage of all rape accusations, and generally rarely lead to convictions or wrongful jail time beyond the pre-trial detention stage. Moreover, this argument of fear that lots of men would go to jail because of false rape accusations comes from the camp which remains passive when many rape cases go unreported. If the aim was to deliver justice, it may be necessary to err towards a situation where an insignificant number of men are falsely accused of rape rather than on the side where an alarming number of men are never charged, or get acquitted, of rape and child defilement. Again, the choice would be obvious in the quest for zero tolerance.

With regard to light sentences that may seem to make light of the crime of rape, I would invite critics to consider the difference it would make if deterrence is premised on the significantly increased possibility of actually serving a jail sentence, even if that sentence was short. For instance, serving a 2-3-year sentence may seem extremely lenient given the offense; however, it is a greater deterrent than the current 20-to-25-year sentence that no one ever gets convicted for, which is counterproductive and nurtures impunity in the fight against rape and defilement, a mockery of the zero-tolerance stance.

What matters here is that anyone accused of rape would at least serve the shortest jail term whenever a victim comes up with a testimony, and members of the community also testify to a certain pattern of prior sexual misconduct as evidence of character and propensity to commit a sex crime.  Why not further lower the standard of evidence and the penalty, for instance, to allow suspects in non-recent rape cases, if convicted, to serve at least six months to cause their registration as sexual offenders!

On the whole, there is less benefit in the dramatic aspect of heavy sentences than the practical need to put more rapists behind bars. Therefore, until rape and child defilement are treated differently under the law (different rules of evidence and judges are explicitly instructed that one rape witness’ testimony can constitute sufficient evidence to support a conviction), men will keep terrorising women, and in most cases, the latter’s testimonies will not meet the “beyond a reasonable doubt” standard to convince judges to convict and sentence rapists to 10+ years of imprisonment.

Make no mistake, the lingering question before us is this: Which side are you on, the victims or the rapists?


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