If the words of magistrates and judges are anything to go by, we would be able to grade rape crimes into categories- from not so bad to worst.
As if the act of rape itself was not traumatic enough, survivors still have to listen to remarks made during trial, that is, if their case makes it to court.
But who monitors what judges and magistrates say in their courtrooms? No one, really.
While it isn’t possible to monitor every single rape judgment handed down (and I wish I personally could), we can, instead, choose the people who are appointed to the bench, very carefully.
Next month, the Judicial Service Commission will conduct interviews on potential candidates, who may be deemed as fit for the bench.
Candidates are often asked about their experience, past judgments, how long they served as an acting judge for, and what their experience is with civil cases.
Based on previous JSC sittings, rape judgments delivered by these candidates often slip through the cracks.
This year, the case study for “what not to do when presiding over a rape case” is acting Judge Meerchand Maharaj.
Maharaj started off as a prosecutor and then moved up the ranks to become a magistrate. In his impressive CV, he lists being trained in sexual offences.
In his own words, in a rape appeal matter, the acting judge writes: “Rape is undeniably a despicable crime. It is humiliating and degrading and constitutes a brutal invasion of the privacy and dignity of the person…”
But when dealing with an appeal against sentence in a case where a nine-year-old child was raped, Maharaj decides that this is not the most serious rape he has presided over.
He writes, “the learned magistrate overemphasised the seriousness of the crime…”
In considering the substantial and compelling circumstances, he notes, “There is no evidence of serious injury to the complainant or her emotional state.”
Maharaj’s remarks are echoed in many other judgments.
During the 2015 JSC interviews, another shortlisted candidate, Judge Francis Legodi, made similar remarks in a judgment.
In a case where a ten-year-old was raped, Judge Legodi said that compared to other victims, the child was “less affected and traumatised” and that her performance at school was “not seriously affected”. The man’s sentence was changed from life imprisonment to ten years each for two rapes.
Legodi in another rape judgment said: “In coming to the sentence I don’t think this rape was one of the worst. Minimum force was used, ten years imprisonment in my view is a bit severe.”
In 2016, shortlisted candidate Judge Christiaan van der Merwe also expressed similar sentiments of lack of injury in his judgment. “There was no serious or lasting mental injury to the complainant,” he wrote. He concluded that life imprisonment was “disproportionate and unjust” for the rapist due to these circumstances.
These are just a few examples of remarks made by judges about the nature of the rape, “not being the worst”, nor the injuries “too severe”. This may be a result of presiding officers who have become desensitised to the issue of rape because they often preside over many of these cases.
But that’s no excuse. Judges owe it to the survivors and to the justice system to ensure that they are sensitive and strive for impartiality.
The courts are said to be a microcosm of society. Is this really what we think of rape crimes? That some are more serious than others? The act of rape is horrific enough. Full stop. No further explanation is needed.