ALOYSIUS CHANG (Associate Editor)

Imagine that you are in courtroom. Imagine an ongoing trial where the accused is, for all intents and purposes, a rapist with no way out. The rapist represents himself. He wears the same clothes he wore on the night of the incident. He attempts to cross-examine the victim six times, changing his mind on the first five times. He attempts to make the victim relive that night of the incident by asking her what he wore, what she wore, how he did it, and what he smelt like. He questions her sexual history and paints her as a promiscuous woman.

And all this while, he is grinning and thoroughly enjoys himself.

Sounds like something out of a movie? You could not be more wrong. The above scenario is an amalgam of the infamous 1996 Ralston Edwards case, where the accused, a condom salesman, relished in tormenting his victim in court, and the 2000 case of Camille Hourani, where the accused bullied the victim to tears, demanded the jury to give their names, then went berserk and fled the court, never to reappear again, leaving the desperate Judge to comment, “I don’t know what to do… there has to be an end to this… I can’t put this girl through any more that I have.”

The truth is that such scenarios play out all too often and contribute to low conviction rates in rape and other sex-crime trials. The law and the judicial process have often been slow to protect victims as witnesses to crimes. Witnesses, as legal philosopher Jeremy Bentham once said, “are the eyes and ears of justice”. If the victim himself/herself is so traumatised as to refuse to testify, it can only lead to a paralysed trial.

By now you should be wondering what the law and the criminal justice system have done, or could have done, to protect the victims; they must, after all, be protected against being made victims twice over. This calls for an examination of the tools the law has at its disposal, starting from the initiation of the trial to the dreaded cross-examination.

1. Anonymity of Victims

It is well known that rape victims have their identities kept confidential in order to prevent further social humiliation. Several jurisdictions have measures in place to do this, such as the New Zealand Evidence Act of 1908, Section 11 of the UK Contempt of Court Act 1981, and Canadian common law’s privilege of anonymity.

Singapore itself has the Women’s Charter (Cap. 353, 2009 Rev. Ed. Sing.). Section 153 enables the court to hold trials in camera for female victims of sex crimes, and s. 153(4) prevents the press from revealing any information about or leading to identification of any witness in the proceedings. Oddly enough, there does not seem to be an equivalent provision for male victims.

It is particularly important for the victims to have in camera trials because it is unthinkable for the court to allow cross-examination of the victim whilst hundreds of unrelated onlookers are privy to the answers to extremely embarrassing or sensitive questions. In Pakistan, public outrage erupted after district and sessions judge Nizar Ali Khawaja conducted the trial of four men who allegedly gang-raped 13-year-old Kainat Soomro, who was not given the expected in camera trial. The courtroom was jam-packed with at least 80 non-related onlookers whilst the victim was asked a string of invasive questions about the rape. When the Public Prosecutor requested the absence of all unrelated onlookers, the judge sided with the Defence that there was no legal obligation to bar citizens from an open court. The victim had an extremely sheltered and conservative upbringing, causing her to struggle with answering questions regarding how she was raped. This was further exacerbated by the fact that the accused were all influential men that had allegedly bribed or threatened Soomro’s family and that Pakistan is a largely patriarchal State with a gender bias against women in general.

It is submitted here that perhaps the use of in camera trials be made mandatory for all victims of sexual abuse and assault, including male victims. If the criminal law were to help victims achieve justice, facilitating their move back into living out a normal life in society is paramount.

However, sometimes the victim might not be mentally prepared to even appear in court. This calls upon the creative use of technological advancements to surmount this hurdle.

2. Use of Technology

Victims of sex crimes often express that they considered the ordeal of facing cross-examination in a criminal trial to be even worse than the rape itself. Understandably, this would lead to a vast number of incidents not going to trial at all. The advent of technology, such as video conferencing, can help alleviate some of these troubles by helping victims avoid direct confrontation with the accused. In the UK, video conferencing is admissible in certain cases, including offences under the Sexual Offences Act 2003 (U.K.), 2003, c. 42 and Indecency with Children Act 1960 (U.K.), 1960, c. 33.

Singapore has followed suit with s. 364A, Criminal Procedure Code (Cap. 68, 1985 Rev. Ed. Sing.). Under the code, a person may give evidence through a live video or live television link in any trial, inquiry, appeal or other proceedings under certain conditions, including when the offence is a sex crime, or when the court is satisfied that it is expedient in the interest of justice to do so.

The use of video conferencing would enable the victim to avoid all direct contact with the accused and would also provide sufficient support by enabling social welfare officials and legal officers to remain at the side of the victim. It is also submitted that perhaps pre-recorded messages could be used in trial if the victim was so traumatised as to be unable to speak coherently in trial.

However, this does not take in account the persisting social and personal pressures that the victim is already facing, such as death threats from the perpetrators and public shame. Other jurisdictions have often exercised the right to change the location of the trial to enable the victim to be relieved of such undue influences.

3. Changing Venue of Trial

If the victim is especially reluctant to testify due to fears of repercussions (especially if the accused has connections with secret societies or is a highly-influential figure), the venue of the trial may be shifted to a different location. In India, Sections 406 and 407 of the Code of Criminal Procedure 1973 contains provisions in respect of transfer of cases. The Supreme Court has recently ordered a shift in the venue of the case of Zahira Sheikh from Gujarat to Maharashtra. The UK and Northern Ireland has similar measures in place.

A rather extreme example is shown the alleged gang rape of 16-year-old Nasima by 11 persons in Pakistan. The victim was forced to parade back home naked by the alleged perpetrators. No proper police investigation was initiated due to alleged pressure from the Minister of Irrigation of Sindh provincial government. The victim was forcibly discharged from the government hospital in Sukkur City Civil hispital on the instructions of the police, and the doctor who examined the victim allegedly provided a false medical report that the girl was not raped due to heavy pressure from influential persons. Severe threats were allegedly made to the victim and her family by the perpetrators in a bid to get them to withdraw the claim. In response, the Sindh High Court transferred the case from Mirpur Mathelo to Karachi.

Singapore too has such provisions under ss. 185 and 186, CPC, however this is perhaps ineffective in Singapore, seeing how our geographical constraints will result in no difference whether the trial is held in the High Court or the Subordinate Courts. It is thus inevitable that Singaporean victims could be subjected to such undue pressure. Even though it might be less of a problem than in other states, social welfare groups and the legal institutions must be attuned to such difficulties faced by the victim.

This, however, inexorably leads the victims into the cross-examination portion of the judicial process, the area that draws the most controversy and criticism.

4. Cross-examination of Victims

Perhaps the most controversial aspect of sex-crime trials is the fact that the accused can represent himself and cross-examine his own victim. This has led to much mental anguish and trauma. In R. v. Brown (Milton), [1998] 2 Cr. App. R. 364, the accused sacked his defence lawyer and proceeded to conduct his own defence. In sentencing the accused to 16 years’ imprisonment, Judge Pontius had this to say to him:

“It is a highly regrettable and extremely sad aspect of this case that despite my repeated efforts during the first two days of your trial you insisted on dispensing with the services of highly competent leading and junior counsel and solicitors, the third set you had been allocated at public expense, thereafter subjecting your victims to merciless cross-examination clearly designed only to intimidate and humiliate them. In the course of your questioning you made outrageous and repulsive suggestions to both witnesses.”

In response to growing outcries from women’s groups as well as to the Ralston Edwards case, the UK amended legislation, specifically the Youth Justice and Criminal Evidence Act, to prevent defendants who opt to represent themselves rather than employing barristers from having the right to question their alleged victims.

However, this does not address the problem of the defence lawyers themselves from grilling the victims in a morally reprehensible manner, as the Judge is often persuaded by the same lawyers that it is relevant to the case at hand. It also poses some problems by suggesting that exceptional methods are required to convict sex offenders and the appearance of the circumvention of the accused’s human rights. Even if technology was used to circumvent direct confrontation, it still does not resolve the difficulties of victims being subjected to invasive and often irrelevant questioning.

In the Philippines, this is alleviated somewhat by the 1998 Rape Victim Assistance and Protection Act. Section 6 provides that in prosecutions for rape, evidence of the complainant’s past sexual conduct, opinion thereof or of his/her reputation shall not be admitted unless and only to the extent that the court finds that such evidence is material and relevant to the case.

As of now, there is no specific local legislation that prevents the accused  from questioning his alleged victim, though there is the existence of s. 153 of the Evidence Act (Cap. 97 1997 Rev. Ed. Sing.), which enables the court to forbid any “indecent and scandalous” questioning unless they are relevant or necessary to the case at hand, thereby somewhat preventing the defence lawyers from asking inappropriate questions.

However, this is oddly juxtaposed by s. 157(d), which enables a man accused of rape or attempted rape to impeach the credibility of the victim as a witness by showing that the victim was of “generally immoral character”. This paves the way for the introduction of sexual history evidence in order to show that the alleged victim is immoral and that the victim actually consented to the alleged act of rape. The victim could then be subjected to cross-examination on the sexual relationships she had in the past with different men; want of chastity or evidence that the victim is a prostitute would then be relevant to both credit and consent.

It is submitted that this statutory provision seems to adopt a very strange line of reasoning: that a woman’s past sexual history or reputation would deem her to be immoral, and thus there is reason to believe that she somehow consented to the alleged act. This notion of “immorality” seems archaic by modern times, and there is no way of ascertaining any objective standard of what “immoral” means. It is also odd to suggest that chastity and dishonesty have some sort of correlation, and incredulous to suggest that a sexually experienced woman is implied to say “yes” to all men at all times via some kind of non-verbal communication. At worst, it seems to suggest that a morally “loose” woman is, to put it simply, “asking for it”.

It should by now be obvious that the privacy of the victim is compromised by such attempts to discredit her, with intimate details of her private sexual life being open to discussion and cross-examination during trial. It is also obvious that this would actually deter victims to come forward and report the crime. It is submitted that this section should be repealed. Victims, particularly women and children, are often extremely embarrassed in sex-related cases due to the questions put by the Defence that were calculated to embarrass or confuse the victims into not speaking out or giving details of certain acts committed by the accused. Admissibility of evidence of sexual history should be subjected to strict regulation, being allowed only in certain situations such as when the circumstantial evidence (e.g. semen, pregnancy or disease) found on the victim is shown to not originate from the accused.

Academics have submitted that it is perhaps ideal to hand the questions over to the Judges before the hearing itself instead, where the Judge will then be able to rephrase those questions to such language which is not embarrassing or traumatic to the victim in trial, thus preventing victims from being jeopardized by deliberate attempts of uncomfortable questioning. Although that is certainly more laborious or perhaps even inefficient to do so, it is submitted that this would better perform substantive justice to victims of such harrowing experiences.

Conclusion

The law in various jurisdictions has several tools at its disposal to help victims of sex crimes, including but not limited to ensuring anonymity, changing the location of the trial, using technology to avoid direct confrontations and attempts to prevent invasive and traumatic cross-examinations. Many are often warranted and are rightly in place, but more needs to be done if the law were to perform its purpose of upholding holistic justice. After all, procedural justice is just as important as getting to the end result. The criminal law must be aware of not just protecting the accused’s rights, but also that of the victims’. It must be remembered that it is the accused who is on trial, not the victim.

What more can the law do to adequately protect such victims? Make some suggestions in the comments box below!