10 YEAR PRISON SENTENCE FOR FALSE RAPE ACCUSATION

A UK court has sentenced a UK woman to 10 years in prison for making false accusations of rape. Over a period of three years she falsely laid criminal charges of rape against four unrelated men. One of the falsely accused men was (wrongly) convicted of rape and sentenced to seven years in prison.

One’s initial reaction is “good” – anyone who falsely accuses another of rape deserves to go to jail. Well known personalities like Cristiano Ronaldo, Makhaya Ntini and Alex Ferguson have all suffered the trauma of being falsely accused of rape. That trauma must be the same for every innocent person who is falsely accused of rape, well known or not.

South Africa has a very real scourge of rape and sexual violence. Rape and other forms of sexual violence are common crimes in South Africa. Many of the instances of rape in our country are never reported, let alone result in the rapist being caught and imprisoned.

Will the fear of being imprisoned for allegedly falsely accusing someone of rape lead to even less cases of rape being reported in South Africa?

In my view, the answer is no, it should not.

If a woman (let us call her “Woman”) alleges that a man (let us call him “Man”) has raped her and she wants him to be prosecuted for it, Woman would need to lay a formal criminal charge of rape against Man with the South African Police Services (SAPS). When laying that charge, Woman will have to make a written statement of her version of events. The SAPS will then investigate the charge. If the SAPS concludes that there is, at least on the face of it, a case of rape to be made out against Man, the SAPS will refer the matter to the National Prosecuting Authority (the NPA). If the NPA agrees with the SAPS’ conclusion, the NPA will bring a criminal prosecution against Man in a court of law.

The onus is on the NPA to prove to the court “beyond reasonable doubt” that Man raped Woman. The court can only convict (find guilty) Man of rape if the court is satisfied that the NPA has proven beyond reasonable doubt that Man raped Woman. If the court is not convinced that the NPA has proven the alleged rape beyond reasonable doubt, it must acquit (find not guilty) Man. This does not automatically mean that Woman lied or falsely accused Man of rape – it simply means that the NPA was unable to prove beyond reasonable doubt that Man raped Woman. It does not mean that Woman is now at risk of being found to have falsely accused Man of rape.

For Woman to be exposed to criminal liability as a result of her having accused Man of rape, the process described above repeats itself, but now with Man as the complainant and Woman as the accused. In order for a court to find Woman criminally liable for having accused Man of rape, the NPA must prove (again “beyond reasonable doubt”) that:

? Woman falsely accused Man of rape;

? Woman did so deliberately in that Woman knew that her accusation of rape against Man was false; and

? Woman is accordingly guilty of a relevant offence.

That is exactly what happened in the UK case. The court found that none of the four men had raped their accuser. That finding in, and of itself did not make the accuser guilty of a crime. What made her guilty of a crime was that she lied under oath when she testified that the men had raped her. That made her guilty of the crime of “perjury” (lying under oath). The court also found her guilty of “perverting the course of justice”. In South Africa, our equivalent of that crime is “defeating or obstructing the course of justice”. Basically, that crime takes place when someone deliberately does something that makes it difficult or impossible to determine who really committed a crime. Or whether a crime was actually committed in the first place. By making the false accusations against the four men, the accuser made it difficult for the police and the prosecution service to determine whether or not a crime had actually been committed.

At the one end of the spectrum is the fact that rape is a horrible, horrible crime. Victims of rape and the law enforcement agencies should be given every lawful and legal tool to bring rapists to justice.

At the other end of the spectrum is the fact that intentionally and falsely accusing someone of rape is a despicable thing to do.

If the South African courts were to follow the UK’s example, do you think that that would be a fair balance between those two ends of the spectrum?

Francois Terblanche

The views expressed in this article are my personal views and are not necessarily the views of any firm that I am associated with or in alliance with.