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Fadzai Doreen Mutavayi : Correspondent

Navigating the criminal court system as a complainant can prove to be a daunting task. This is especially so for female complainants in sexual abuse matters.The lack of a proper understanding of what happens at the courts may cause such complainants to feel that they run the risk of further trauma as well as to lose confidence that their matter will be treated with the due care and diligence it deserves. Some of what will be stated may not necessarily apply to complainants in sexual abuse cases but to all complainants in general.

One of the most important issues to understand is that the prosecutor is the complainant’s ‘lawyer’. So often our organisation is approached by female complainants who want a lawyer after they discover that the accused person has a lawyer. According to the Constitution and the Criminal Procedure and Evidence Act, an accused can secure legal representation as he deserves a fair trial and should be given a chance to prove his innocence the best way he can.

This may involve getting a lawyer. On the other hand the complainant’s lawyer is the prosecutor who is provided by the State. The job of the prosecutor is to achieve a fair trial and to prove the guilt of the accused if the evidence so reveals.

Amongst the prosecutor’s duties to the complainant is to interview the complainant in advance, show the complainant her statement so that she refreshes her memory, advise the complainant of court dates and to explain and update the complainant on the flow of the matter.

A case started by one prosecutor may be continued by another to ensure expediency of the matter – there is no need to have a matter postponed because prosecutor A is on study leave. Prosecutor B can continue to handle the same matter.

By virtue of the private and intimate nature of sexual abuse cases, some complainants may find it difficult to testify in open court. Where a young person is involved, the gallery is automatically cleared so that the child witness is not intimidated by a room full of strangers and peering eyes.

The same principle can be applied in sexual abuse matters. The giving of evidence in these cases would require the female to reveal details of the encounter which may be taboo for her to do because of her upbringing or even culture.

The prosecutor needs to be made aware of the difficulties that such a complainant would face which can prejudice unduly the State’s case if she were to be forced to proceed to give her evidence in a room full of people. The prosecutor should then apply to the court to have the court room cleared of all other people except of the court officials, the accused and his lawyer.

Sometimes the complainant is a child or is intellectually challenged and is therefore unable to understand the court proceedings or to express herself. To deal with this situation the State has devised the Victim Friendly Court system whereby the complainant is placed in another room with a live feed camera connected to a television set in the court room.

The complainant’s room is made as friendly as possible by painting it with bright colours and pretty pictures. The complainant is given a doll that resembles her body so that she can explain what happened to her using the doll. A trained officer is placed in the room to convey the questions by the prosecutor and the accused as simply as possible in a way that the complainant can understand.

According to the Criminal Procedure and Evidence Act, the identity of the complainant in sexual abuse cases is not supposed to be published by any radio, television or document without the consent of the complainant and the approval of the court. If any such publication takes place, the publisher will be guilty of an offence.

This provision therefore gives complainants in sexual cases the reassurance that their identities will be kept secret so they should not be afraid to pursue prosecution of the accused.

So often families decide not to report cases of sexual abuse as they want to settle out of court in an effort to ensure financial/material gain. If the complainant is a minor, reporting of such cases is mandatory and therefore an offence if not done. Where the complainant is a major, she runs the risk of being charged with extortion for placing pressure not to report the offence for financial gain. Such complainants also run the risk of losing essential evidence while time lapses in negotiations.

If the issue of compensation is one that is so close to the hearts of the complainant and or her family, the Criminal Procedure and Evidence Act states that criminal prosecution does not stop the complainant from seeking damages in the civil court whether or not a conviction or acquittal has been passed by the court.

From the above, it is hoped that certain fears have been rested so that complainants in sexual abuse cases are confident in the criminal justice system and ultimately ensure that perpetrators are brought to the book.

Fadzai Doreen Mutavayi {Legal Officer –Access To Justice Department} For feedback, questions and comments please feel free to email [email protected] or to send a whatsap message on 0777 828 201 and we will definitely address them. Look out for the next article in this column next week and the Kwayedza every Thursday. Let’s discuss the law. For a 24 hour response to Gender Based Violence Issues, Sexual cases call our toll free number 08080131: hotlines 0776736873/0782900900