Omotoso’s rape defence is legitimate – human rights lawyer

While the cross-examination of alleged rape victim Cheryl Zondi was met with outrage, a human rights lawyer has warned that rape accused clergyman Timothy Omotoso was within his rights to try to prove Zondi was lying.

Three days of gruelling questioning at the hands of defence attorney Peter Daubermann at the Port Elizabeth High Court left activists and political figures enraged by the lawyer’s line of questioning, which included a description of the accused’s penis and how he used it to penetrate her when she was 14 years old.

But lawyer Tracy Lomax said while she agreed some questions may have overstepped the line, protecting the right of an accused was an imperative part of SA’s criminal justice system. It had to be adhered to, to be considered a fair trial.

The outrage over Daubermann’s questioning was better directed at society, rather than the legal system, as it reflected many of the country’s issues with rape culture, she said.

“The defence to a charge of rape is going to be one of the following things: a denial of the encounter, or an allegation that it was consensual sex. The only way is to show her behaviour was consenting,” she said.

“The problem with that narrative is that it doesn’t take into account Stockholm syndrome. It doesn’t take into account threats and intimidation, and the fear that would have prevented a victim from escaping. I would expect the state to lead evidence about that to counter this matter.”

The Women’s Legal Centre, as well as the Economic Freedom Fighters, claimed Daubermann’s cross-examination was indicative of a justice system that was not equipped to deal with rape.

The EFF said the “dehumanising” cross-examinations “contribute in the protection and perpetuation of toxic patriarchal masculinity”.

Charlene May, an attorney at the WLC, said more reforms were needed in the justice system. “Our criminal justice system does subject women to secondary victimisation and trauma, through the process of giving evidence. This case highlights the critical need for the reform of the system, which is not victim-centred or victim-friendly.”

The overemphasis on the rights of perpetrators meant the survivors of sexual violence were often forgotten, May said.

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