Challenging corroboration rule

 

As 33-year-old Esnath Frank walked home from work one night, she met a couple of young men who raped her.

From around eight in the evening to dawn, the men took turns.

When they finally let her go, she went back to her boss to tell him that she would not be available for work that day, and explained everything.

She went on to report her case at Nancholi Police Station.

Some lawyers showing support for abolishment
of corroboration rule

“The police at Nancholi were helpful. They even managed to apprehend one of my assailants the same day. His friends fled. They later referred me to Blantyre Police Station.

“However, the questions they asked me at Blantyre Police were even more heartbreaking. They thought I was lying. As old as I am, would I just wake up and accuse someone of raping me?” she wonders.

Her case was then brought to court where they required a medical report to proceed with it. She had been unable to get it on time from the hospital, despite numerous follow ups.

“The court said without the medical report they could not do anything. And they freed my assailant,” she adds.

Frank left her job; she was afraid to face the world. She could not even socialise with friends anymore, and stayed indoors most of the time.

As time passed, through a women’s rights non-governmental organisation, Women and Law in Southern Africa (WLSA) -Malawi, she started seeing psychologist Chiwoza Bandawe.

“Following my sessions with Dr Bandawe at College of Medicine, I am much better although it still hurts,” she explains.

Although she still has not received justice, Frank is one of the women advocating for change in the corroboration rule, a law dating back to colonial times that requires judges to warn themselves of the ‘danger’ of convicting an accused rapist solely based on the testimony of the woman.

The Equality Effect is an international organisation that is using the law to bring to life, the rights of women and girls. They recently partnered WLSA Malawi on addressing the issue of impunity for rape.

“Following extensive research, consultation and collaborative analysis, it was decided that a priority issue in Malawi relating to the issue of impunity is the corroboration rule.

“It was decided that the corroboration rule presented such a significant barrier to justice, and is so offensive in its historical roots and discriminatory rationale and impact, that it should be a priority for reform,” says Julia Bellehumeur from the Equality Effect.

She noted that the culture of impunity for rape is a challenge that exists everywhere, with rape survivors often assumed to be lying or seeking revenge, and blamed for the violence they have experienced.

Chancellor College professor, Bernadette Malunga says rape and defilement are the most commonly reported sexual offences but they tend to have high evidentiary requirements, as courts want corroborative evidence to the victim’s testimony.

“Sexual allegations are easy to charge but difficult to defend. Usually the woman or girl is blamed for the crime of which she is a victim. The police and courts treat her evidence as suspect,” she explains, adding: “The court examination itself is very horrendous, sometimes even requiring the victim to give her sexual history.”

The corroboration rule requires a woman to present a medical report and show some other evidence of rape such as wounds, torn clothes, bruises or scratches which would indicate the absence of consent. However, she notes that in some cases none of these might be there.

“If the perpetrator was stronger, for instance, there would be no wounds. A medical report is another required piece of evidence, but some medical personnel are reluctant to examine rape victims,” she pointed out.

She stressed that corroborative evidence is usually not easy to find, as such cases are not sent to court and the assailants are acquitted; increasing the trauma already felt by the victim.

The corroboration rule has undergone review in many jurisdictions around the world and Malunga recommends that Malawi should do the same.

Corroborative evidence is any independent evidence, apart from the complainant’s testimony, that confirms that a crime was committed and connects the accused to the crime.

WLSA Malawi’s programmes officer, Clara Lungu also observes that mostly, a woman’s first instinct after rape is to clean herself up, destroying the evidence which could be used in a court of law.

“And in rural areas, with police stations and health facilities stationed very far from communities, most rape victims would wash up and all the evidence is lost. That makes it hard for the courts to convict assailants. The corroboration rule has to go. Let us support the need to believe her,” she said.

Equality Effect’s Michelle Beck also dreams of the day the corroboration rule would be declared unconstitutional in Malawi.

“Ending the application of the corroboration rule in sexual assault cases is one concrete way to address the impunity problem, and to provide women and girls, and all survivors of sexual violence with equal access to the law,” she says. n

 

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